[Federal Register Volume 80, Number 3 (Tuesday, January 6, 2015)]
[Rules and Regulations]
[Pages 745-790]
[FR Doc No: 2014-30279]

Vol. 80

Tuesday,

No. 3

January 6, 2015

Part IV

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 234

 National Highway-Rail Crossing Inventory Reporting Requirements; Final
Rule

Federal Register / Vol. 80 , No. 3 / Tuesday, January 6, 2015 / Rules
and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2011-0007, Notice No. 4]
RIN 2130-AC26

National Highway-Rail Crossing Inventory Reporting Requirements

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

ACTION: Final rule.

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SUMMARY: This final rule requires railroads that operate one or more
trains through highway-rail or pathway crossings to submit information
to the U.S. DOT National Highway-Rail Crossing Inventory about the
crossings through which they operate. These amendments, mandated by
section 204 of the Rail Safety Improvement Act of 2008, require
railroads to submit information about previously unreported and new
highway-rail and pathway crossings to the U.S. DOT National Highway-
Rail Crossing Inventory and to periodically update existing crossing
data.

DATES: This final rule is effective March 9, 2015. Petitions for
reconsideration must be received on or before February 25, 2015.
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 April 13, 2015.

ADDRESSES: Petitions for reconsideration and any comments to petitions
for reconsideration must be identified by docket number FRA-2011-0007
and may be submitted by any of the following methods:
     Online: 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., Room W12-140, Washington,
DC 20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, U.S. Department of Transportation, Docket Management
Facility, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identifier Number (RIN) for this
rulemaking (2130-AC26). Note that all comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ronald Ries, Staff Director, Highway-
Rail Crossing and Trespasser Prevention Programs Division, Office of
Railroad Safety, FRA, 1200 New Jersey Avenue SE., Mail Stop 25,
Washington, DC 20590 (telephone:<PHONE_NUMBER><EMAIL_ADDRESS>or
Kathryn Shelton Gresham, Office of Chief Counsel, FRA, 1200 New Jersey
Avenue SE., Mail Stop 13, Washington, DC 20590 (telephone: 202-493-
6063<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background
III. The U.S. DOT National Highway-Rail Crossing Inventory Program
    A. History
    B. Overview of the Reporting Process
    C. Use of Crossing Inventory Data in Private Litigation
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Federalism
    D. Paperwork Reduction Act
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act

I. Executive Summary

    On October 18, 2012, consistent with the statutory mandate of
Section 204(a) of the Rail Safety Improvement Act of 2008 (RSIA)
(codified at 49 U.S.C. 20160), FRA published a notice of proposed
rulemaking (NPRM) proposing to require railroads to submit certain
information to the existing U.S. DOT National Highway-Rail Crossing
Inventory (Crossing Inventory). 77 FR 64077. After careful
consideration of comments received in response to the NPRM and
testimony received at a February 19, 2013 public hearing on FRA's
proposal, FRA is amending 49 CFR part 234 to require railroads that
operate one or more trains through highway-rail or pathway crossings
(i.e., ``operating railroads'') to submit certain information to the
Crossing Inventory about the highway-rail and pathway crossings through
which they operate. This rule furthers FRA's efforts to improve
existing data on the characteristics of the Nation's highway-rail and
pathway crossings and implements the statutory mandate. Consistent with
the statute, this rule requires operating railroads to submit initial
reports to the Crossing Inventory, including current information about
warning devices and signs, for previously unreported and new highway-
rail and pathway crossings. This rule also requires operating railroads
to periodically update data in the Crossing Inventory, including the
prompt reporting of a crossing sale, crossing closure, or changes in
certain crossing characteristics.
    In the NPRM, FRA estimated the costs of the proposed rule to be
$2.1 million over a 20-year period. Using a 7-percent discount rate,
the cost estimate would have been $1.5 million. The final rule's
estimated cost is $2.8 million, discounted to $2.0 million (7%). The
base cost estimates increased in the final rule due to adjustment of
the Congressional Budget Office (CBO) real wage forecasts for each year
of the analysis. FRA also updated wage inputs using the Surface
Transportation Board's newest wage rates for 2012, which impacted the
overall cost estimate. FRA also assumed that the implementation year
will be 2014 and adjusted all wages accordingly. While the final rule
will not take effect until 2015, FRA does not believe this will
materially impact the findings of its analysis. FRA conducted a break-
even analysis of the rule and believes that potential benefits from the
rule will equal or exceed total costs.
    FRA analyzed the industry costs associated with requiring railroads
to establish and maintain an inventory for all public and private
highway-rail crossings and pathway crossings. Many railroads have
already implemented components of the final rule prior to publication
of this rulemaking. FRA estimates that as many as 50 percent of all
highway-rail crossings have up-to-date information in the current
Crossing Inventory. For more details on the costs, see the Regulatory
Evaluation contained

in the public docket. The burdens of the rule relate to the collection
of recent information and to the periodic update of the Crossing
Inventory. The table below presents the estimated costs associated with
the rule.

                       20-Year Cost for Final Rule
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------------------------------------------------------------------------
Initial Update of Inventory.............................      $1,178,701
Periodic Update of Inventory............................         819,473
                                                         ---------------
    Total...............................................       1,998,174
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Future costs are discounted to present value using a 7-percent discount
  rate.

    In the Regulatory Evaluation, FRA has explained what the likely
benefits are for the final rule and provided a break-even analysis. The
main benefit of the rule is improved Crossing Inventory data. This more
precise information will better enable FRA, railroads, and any other
entity, to accurately analyze pertinent data, detect trends, and if
needed, initiate crossing-related safety initiatives. In this analysis,
FRA determined that if there were a decrease of 0.015 percent in
crossing accidents over the twenty-year period, the costs of the rule
will break-even with the benefits. In the last decade there were over
26,000 collisions at grade crossings. This break-even analysis
indicates that preventing at least three incidents over the next twenty
years would justify the rule. FRA anticipates that this rulemaking will
increase the precision, completeness, and utility of railroad records
and will improve the Crossing Inventory and safety. This will allow FRA
to identify certain highway-rail crossings and pathway crossings that
are not currently recorded in the existing voluntary crossing inventory
and analyze the data to identify safety trends and issues. FRA believes
that these benefits will offset costs associated with the rulemaking by
simplifying the reporting process and decreasing crossing accidents.
FRA also believes the value of the anticipated benefits justifies the
cost of implementing the final rule.

II. Statutory Background

    This final rule implements section 204(a) of RSIA, Public Law 110-
432, Division A (Oct. 16, 2008) (codified at 49 U.S.C. 20160 and titled
``National crossing inventory''). Consistent with Section 20160, this
rule is intended to improve existing data on highway-rail and pathway
crossings in the Crossing Inventory. Section 20160 requires the
Secretary to establish reporting requirements for railroad carriers for
highway-rail and pathway crossings. As stated above, the Secretary
delegated this responsibility to the FRA Administrator. 49 CFR 1.89(b).
    Section 20160 mandates that the Secretary issue regulations
requiring railroad carriers to report certain information, including
current information about warning devices and signage, for new and
previously unreported highway-rail and pathway crossings to the
Crossing Inventory. Section 20160 also requires the Secretary to issue
regulations that require railroad carriers to periodically update
existing information in the Crossing Inventory about highway-rail and
pathway crossings through which they operate. Under Section 20160,
whenever a railroad carrier sells all, or a portion of, a highway-rail
or pathway crossing it must submit updates. However, in the interim,
Section 20160 provides that the Secretary may enforce the Crossing
Inventory policy, procedures, and instructions in effect at the time of
Section 20160's enactment (October 16, 2008). The policy, procedures,
and instructions in effect at the time of Section 20160's enactment are
the guidance we issued in August 2007 titled, ``U.S. DOT National
Highway-Rail Crossing Inventory Policy, Procedures and Instructions for
States and Railroads.''

III. The U.S. DOT National Highway-Rail Crossing Inventory Program

A. History

    As detailed in the preamble to the NPRM, in August 1972, DOT
submitted a Report to Congress titled ``Railroad-Highway Safety Part
II: Recommendations for Resolving the Problem'' (Report). DOT intended
for the Report to provide recommendations to Congress for actions that
would lead to a significant reduction in accidents, fatalities,
personal injuries, and property damage at highway-rail crossings. In
the Report, DOT recommended the establishment of an information system
consisting of a national database of all highway-rail crossings in the
Nation.
    Following the submission to and acceptance of the Report by
Congress, FHWA, FRA, AAR, certain States and railroads cooperatively
developed the Crossing Inventory. Based on an instruction manual that
was issued in the early 1970s, railroads and States surveyed each
highway-rail crossing --public and private, grade-separated and at-
grade--and recorded the data on an inventory form railroads submitted
to FRA. This instruction manual evolved into the ``Highway-Rail
Crossing Inventory Instructions and Procedures Manual,'' dated December
1996. A revised policy and set of instructions, ``U.S. DOT National
Highway-Rail Crossing Inventory Policy, Procedures and Instructions for
States and Railroads,'' were subsequently issued in August 2007.
    As a result of these efforts, the Crossing Inventory has become a
national database of highway-rail crossings, both at-grade and grade-
separated, that railroads, States, and others use to obtain information
about the physical and operating characteristics of individual
crossings. The Crossing Inventory is intended to provide a uniform
inventory database which public and private agencies responsible for
highway-rail crossing safety, as well as the railroad industry and
academia, can merge with highway-rail crossing collision files and use
to analyze information for planning and implementation of crossing
improvement programs.
    The Crossing Inventory receives information from individual
railroads and States to form a composite record for each crossing. This
composite record has many purposes because it can be used to predict
the likelihood of an accident at a specific crossing. Armed with this
information, States, law enforcement organizations, the Federal
Government, and others can focus their efforts on crossings that have a
high risk of collisions and implement measures such as improved warning
systems, enhanced enforcement, and community awareness.

B. Overview of the Reporting Process

    As previously explained, the Crossing Inventory is a national
database that contains data on highway-rail crossings, which States and
railroads have voluntarily submitted. Because the crossing data has
been submitted to the Crossing Inventory voluntarily, FRA estimates the
Crossing Inventory contains up-to-date information for approximately 50
percent of the highway-rail crossings reported.
    To improve the accuracy of existing data in the Crossing Inventory
and implement the statutory mandate contained in Section 20160, this
final rule requires primary operating railroads (i.e., generally, the
railroads that either own or maintain the track through the highway-
rail or pathway crossing, or operate the most trains through the
crossing) to assign Inventory Numbers to previously unreported and new
highway-rail and pathway crossings and, in most cases, to provide the
assigned Inventory Number to the other railroads that operate through
the crossing. In addition, the rule will require primary operating

railroads to submit completed Inventory Forms (or the electronic
equivalent) for previously unreported and new highway-rail and pathway
crossings to the Crossing Inventory.
    FRA recognizes that as related to new and previously unreported
highway-rail and pathway crossings, this rule requires primary
operating railroads to submit some crossing data State agencies have
traditionally maintained. Therefore, FRA strongly encourages primary
operating railroads to work with the appropriate State agencies to
obtain this information. However, in the event the primary operating
railroad requests crossing data from a State agency that the State has
traditionally maintained (e.g., highway system class, highway speed
limit, estimated percent of truck traffic, and the average number of
school buses per day), but does not timely receive the requested data,
the primary operating railroad may notify FRA of the State's lack of
response. In such a case, FRA will not hold the primary operating
railroad responsible for failing to submit the requested data to the
Crossing Inventory. (See the Section-by-Section Analysis of Sec. Sec.
234.405(d) and 234.407(d) for more information.)
    This final rule also requires primary operating railroads to submit
periodic updates to the Crossing Inventory every three years. To
minimize the burden of submitting periodic updates, the final rule only
requires the primary operating railroad to submit updated crossing data
for specific data fields on the Inventory Form. Railroads have
traditionally completed these data fields, identified in Appendix B to
the Inventory Guide, which consist of information that railroads can
identify and supply on their own (e.g., the total number of daily train
movements and the speed of the trains at the crossing).
    This final rule also will require primary operating railroads to
submit updates to the Crossing Inventory to report the closure of a
highway-rail or pathway crossing within three months of the closure. In
addition, the rule will require primary operating railroads to report
changes in crossing surface or changes in warning devices at public
highway-rail grade crossings within three months of the change. Also,
any railroad that sells all, or part, of a highway-rail or pathway
crossing must report the crossing sale to the Crossing Inventory within
three months of the sale.
    As further explained below, this final rule implements the
statutory mandate in Section 20160 to issue regulations requiring
railroads to submit crossing data to the Crossing Inventory. Although
this final rule does not require States to report crossing data to or
update data in the Crossing Inventory, DOT, and FRA in particular, will
continue to evaluate whether additional regulations are needed to
address State reporting to the Crossing Inventory to maintain the
accuracy of crossing records contained in the Crossing Inventory. DOT
may issue regulations in the future that would address State reporting
of public highway-rail and pathway crossing data to the Crossing
Inventory. However, as stated above, FRA strongly encourages railroads
to work with appropriate State agencies to obtain crossing data the
State maintains. Similarly, FRA encourages State agencies responsible
for maintaining crossing data to promptly release State-maintained data
to railroads, upon request, and to submit timely updates to existing
crossing records in the Crossing Inventory. As reflected by the
detailed and thoughtful comments our State partners submitted during
the course of this rulemaking, State agencies generally share FRA's
interest in ensuring that Crossing Inventory records are up-to-date and
accurate to the extent permitted by existing resources.

C. Use of Crossing Inventory Data in Private Litigation

    FRA received comments on the proposed rule from Orion's Angels, a
non-profit organization located in Chattanooga, Tennessee, which
recommended that this final rule should allow all crossing data to be
discoverable in private litigation so courts can determine whether
there has been compliance with railroad safety regulations. However,
this recommendation falls outside the scope of FRA's statutory
authority. The current prohibition against the use of crossing data in
private litigation can be found in 23 U.S.C. 409. RSIA did not amend
this statute. Therefore, in the absence of specific statutory authority
to revise the current Federal prohibition against the use of crossing
data in private litigation, FRA cannot adopt this recommendation in
this final rule.

IV. Section-by-Section Analysis

    In response to the NPRM, FRA received comments from several State
agencies, AAR, the Brotherhood of Railroad Signalmen (BRS), and other
individual stakeholders. Although commenters generally expressed
support for FRA's goal of improving the accuracy and completeness of
Crossing Inventory data, commenters did make several recommendations
about the practicalities of implementing the proposed reporting scheme.
Accordingly, in developing this final rule, FRA carefully considered
each of the comments received, as well as the testimony presented at
the February 19, 2013 public hearing on the NPRM. Within the
constraints imposed by the specific statutory mandate, FRA has, as
appropriate, modified its original proposals in response to the
comments received and those modifications are discussed in detail in
the relevant section-by-section analyses below.

Section 234.1 Scope

    To reflect the proposed expansion of part 234 to include a new
subpart F titled, Highway-Rail and Pathway Crossing Inventory
Reporting, in the NPRM, FRA proposed to revise paragraph (a) of this
section to include a reference to new proposed subpart F. FRA received
no substantive comments in response to this specific proposal.
Accordingly, with the slight modifications to the proposed language
discussed below, FRA is adopting its proposed revisions to this section
substantially as proposed.
    We are changing references to ``public, private, and pathway
crossings'' in Sec.  234.1 and throughout subpart F to ``highway-rail
and pathway crossings,'' to accurately reflect the proper
classification of crossings in the Crossing Inventory. Pathway
crossings are not included in the definition of the term ``highway-rail
crossing.'' Thus, pathway crossings (like highway-rail crossings) can
be classified as either ``public'' or ``private'', depending on the
nature of the pathway.

Subpart F--Highway-Rail and Pathway Crossing Inventory Reporting

Section 234.401 Definitions
    This section contains definitions of terms used in this subpart,
listed alphabetically. We provide additional explanation for some of
these definitions below.
    FRA received comments from the Illinois Commerce Commission (ICC)
recommending that the definitions of all terms used in the Inventory
Guide should be included in the Definitions section of the final rule.
However, this section is intended to define terms that are used in the
text of the final rule. Therefore, while FRA has reviewed the
definitions provided in the Inventory Guide to ensure consistency with
the definitions provided in this section, we have not added the
definitions of terms used exclusively in the Inventory Guide to this
section.
Class I
    In the NPRM, FRA proposed to define the term ``Class I'', the same
as Surface

Transportation Board (STB) regulations. (See 49 CFR part 1201, General
Instructions 1-1, Classification of carriers). As explained in the
NPRM, this definition would include any revision to the definition the
STB makes after the publication of this subpart, including any
modifications in the class threshold based on revenue deflator
adjustments. FRA received one comment in response to this proposed
definition. Denver Regional Transportation District (Denver RTD), a
transit agency that provides passenger rail service, asserted that it
seems inappropriate to classify rail transit agencies as Class I, II,
or III railroads since rail transit agencies are essentially subsidized
public transportation operations. In response to Denver RTD's comment,
FRA notes that it does not consider urban rapid transit operators as
Class I rail carriers for purposes of this subpart. While the
electronic submission requirement set forth in Sec.  234.403(c) applies
to Class I railroads, urban rapid transit operators may submit hard
copy Inventory Forms to the Crossing Inventory or submit their crossing
data electronically.
Closed Crossing
    Although not proposed in the NPRM, we added a definition of the
term ``closed crossing'' in this final rule. As discussed below in the
Section-by-Section Analysis of Sec.  234.409(a), we added an exception
to the requirement to submit periodic updates to the Crossing Inventory
for closed crossings. To clarify the crossings to which this exception
applies, we defined the term ``closed crossing'' as a location where a
previous crossing no longer exists because either the railroad tracks
have been physically removed, or each pathway or roadway approach to
the crossing has been physically removed, leaving behind no
intersection of railroad tracks with either a pathway or roadway. A
grade-separated highway-rail or pathway crossing that has been
physically removed is also considered a closed crossing.
Highway-Rail Crossing
    In the NPRM, FRA proposed to define ``highway-rail crossing'' as
``the location where one or more railroad tracks intersect with a
public highway, road, street, or private roadway, including associated
sidewalks and pathways, either at-grade or grade-separated.'' In
response to this proposed definition, in its comments, Denver RTD asked
whether a pathway crossing is essentially a type of highway-rail
crossing. A pathway crossing is not a type of highway-rail crossing. As
reflected in the current version of FHWA's Manual on Uniform Traffic
Control Devices (MUTCD), pathways are public ways that are physically
separated from the roadway by an open space or barrier. Therefore, in
order to draw a clear distinction between highway-rail and pathway
crossings in this final rule, FRA has revised the proposed definition
of ``highway-rail crossing'' by removing the reference to pathways. For
purposes of this subpart, the term ``highway-rail crossing'' is defined
as ``the location where one or more railroad tracks intersect with a
public highway, road, street, or private roadway, either at grade or
grade-separated, including associated sidewalks.'' This revised
definition of ``highway-rail crossing'' is consistent with generally
accepted use of this term.
    As explained in the NPRM, for purposes of the Crossing Inventory,
railroad tracks that lie within the same pair of crossing warning
devices are considered a single highway-rail or pathway crossing. For
example, an intersection of a roadway with three tracks (e.g., two
mainline and one spur) where the mainline tracks are equipped with
flashing lights and the spur track is equipped with crossbucks would be
considered two crossings with two separate Inventory Numbers for
purposes of the Crossing Inventory. One highway-rail crossing would
consist of the mainline tracks that lie between the flashing lights,
while the other highway-rail crossing would consist of the spur track
which is equipped with crossbucks.
Operating Railroad
    In the NPRM, FRA proposed to define the term ``operating railroad''
as any railroad that operates one or more trains through a highway-rail
crossing or pathway crossing. FRA received three comments about this
proposed definition. First, noting that the Inventory Form contemplates
the submission of information related to ``transit operations,'' AAR
asserted that it would be inconsistent with FRA's existing statement of
agency policy on its safety jurisdiction to require submission of
information related to transit operations to the Crossing Inventory.
See 49 CFR part 209, appendix A (Appendix A). Despite this assertion,
AAR suggested that if FRA were to require rail transit operations to be
reported on the Crossing Inventory Form, transit operators, as opposed
to general system railroads, should be required to submit the relevant
information about those operations. The California Public Utilities
Commission (CPUC) and Denver RTD, submitted comments seeking clearer
guidance as to the applicability of the reporting and updating
requirements contained in this subpart to transit agencies. In its
comments, Denver RTD noted that rapid transit operations within an
urban area that are not connected to the general railroad system of
transportation are generally not considered to be ``railroads'' subject
to FRA regulation. The CPUC submitted comments questioning whether
transit agencies may submit crossing data for crossings which are not
subject to train movements by railroads that are part of the general
railroad system of transportation.
    In response to these comments, FRA first notes that AAR's assertion
that FRA's policy on jurisdiction over passenger operations
``categorically excludes rapid transit operations from [the agency's
safety] jurisdiction'' is incorrect. Instead, FRA's policy statement
(published at 49 CFR part 209, appendix A and titled ``FRA's Policy on
Jurisdiction Over Passenger Operations''), specifically notes that the
agency's statutory authority extends to all railroads except ``rapid
transit operations in an urban area that are not connected to the
general system of transportation.'' 49 U.S.C. 20102.
    As explained in more detail in Appendix A, the ``general railroad
system of transportation'' is generally defined as the network of
standard gage track over which goods may be transported throughout the
nation and passengers may travel between cities and within metropolitan
and suburban areas. Further, as explained in Appendix A, FRA can
exercise its jurisdiction over a rapid transit operation if it is
connected to the general railroad system and the agency does so
depending upon the nature of the connection(s). For example, as noted
in Appendix A, a connection that involves operation of transit
equipment as part of, or over the lines of, the general system will
trigger FRA's exercise of jurisdiction. Similarly, as also noted in
Appendix A, another connection to the general system sufficient to
warrant FRA's exercise of jurisdiction is a railroad crossing at grade
where the rapid transit operation and other railroad cross each other's
tracks. Further, Appendix A notes that FRA will also exercise
jurisdiction to a limited extent over a rapid transit operation that,
while not operated on the same tracks as a conventional railroad, is
connected to the general system by virtue of operating in a shared
right-of-way involving joint control of trains and in situations where
transit

operations share highway-rail grade crossings with conventional
railroads.
    Thus, consistent with Appendix A and after careful consideration of
the comments received, in this final rule FRA is revising the
definition of ``operating railroad'' to include urban rapid transit
operators that operate ``one or more trains through a highway-rail or
pathway crossing on, or connected to, the general railroad system of
transportation.''
    In other words, the term ``operating railroad'' as defined in this
final rule includes urban rapid transit operators that operate trains
through highway-rail and pathway crossings which are located on the
same track used by railroads that are part of the general railroad
system of transportation. Examples of these types of operations include
(1) urban rapid transit operations that, even though conducted on the
same track used by a general system railroad, are temporally separate
from those general system operations, and (2) urban rapid transit
operations that constitute simultaneous joint use with train movements
by general system railroads. Please see FRA's policy statement
(published at 49 CFR part 211, appendix A and titled ``Statement of
Agency Policy Concerning Waivers Related to Shared Use of Trackage or
Rights-of-Way by Light Rail and Conventional Operations'') for a
definition of the term, ``simultaneous joint use.''
    The term ``operating railroad'' also includes urban rapid transit
operators that operate trains through highway-rail and pathway
crossings located within a common corridor or right-of-way with
railroads that are part of the general railroad system of
transportation. For example, an urban rapid transit operator that
operates trains on separate tracks through highway-rail and pathway
crossings, which are located within a common corridor or right-of-way
with railroads that are part of the general railroad system of
transportation and are served by the same set of crossing warning
devices, is considered an operating railroad.
    However, this final rule does not require urban rapid transit
operators that operate through highway-rail and pathway crossings which
are not on, or connected to, the general system of railroad
transportation to submit crossing data to the Crossing Inventory for
those crossings. Nevertheless, we encourage urban rapid transit
operators to voluntarily submit (and update) crossing data to the
Crossing Inventory for highway-rail and pathway crossings that are not
on, or connected to, the general system of railroad transportation, in
order to improve the accuracy of crossing data reflected in the
Crossing Inventory.
    It should be noted that urban rapid transit operators are
distinguished from commuter railroads that serve an urban area, its
suburbs, and more distant outlying communities in the greater
metropolitan area. FRA considers commuter railroads, whose primary
function is moving passengers back and forth between their places of
employment in the city and their homes within the greater metropolitan
area, to be part of the general railroad system of transportation and
are therefore required to comply with the requirements of this subpart.
    In its comments, Denver RTD also requested guidance on whether FRA
would consider an entity that has a long-term contract with a public
transit agency to operate and maintain that agency's rail network the
operating railroad, independent of the transit agency. CPUC submitted
similar comments requesting guidance on whether a railroad that
contracts out its train operations, such as commuter railroads, should
identify itself as the primary operating railroad. The CPUC recommended
that, in this instance, the commuter railroad should be identified as
the primary operating railroad on the Inventory Form, as opposed to the
short-term contracted railroad operator. FRA agrees. In situations
where a railroad or public transit agency contracts with a third-party
to conduct train operations or maintain the track that runs through the
highway-rail or pathway crossing at issue, FRA will consider the
railroad or public transit agency (not the third-party contractor) to
be the operating railroad for purposes of this subpart to ensure long-
term continuity in reporting to the Crossing Inventory.
Pathway Crossing
    Denver RTD submitted comments seeking clarification as to whether
FRA considers pedestrian station crossings to be pathway crossings and
whether pathway crossings are considered to be a type of highway-rail
crossing.
    As discussed above, a pathway crossing is separate and distinct
from a highway-rail crossing. While highway-rail crossings may include
associated sidewalks, pathway crossings are physically separated from a
nearby roadway by an open space or barrier. As explained in the
preamble to the NPRM, consistent with Section 20160, for purposes of
the Crossing Inventory, a pathway crossing must have all of the
following characteristics: (1) Explicit authorization by a public
authority or an operating railroad; (2) dedicated use by non-vehicular
traffic, including pedestrians, bicyclists, and others; (3) no
association with a public highway, road, or street, or a private
roadway; and (4) cross one or more railroad tracks either at grade or
grade-separated. Since pedestrian station crossings generally have all
of these characteristics, we consider them pathway crossings. However,
as also noted in the NPRM, we do not consider an area where pedestrians
trespass, even routinely, a pathway crossing.
    Denver RTD also submitted comments recommending that we revise the
definition of ``pathway crossing'' to require explicit authorization by
both the relevant public authority and the railroad that owns or
operates over the crossing rather than one or the other. In this final
rule, FRA is not adopting this recommendation because it would be
inconsistent with the specific criteria for a pathway crossing
paragraph (d)(1) of Section 20160 establishes.
Primary Operating Railroad
    In the NPRM, FRA proposed to define the term ``primary operating
railroad'' as ``the operating railroad responsible for submitting and/
or updating data in the Crossing Inventory for a highway-rail crossing
or pathway crossing.'' Denver RTD objected to this proposed definition
and asserted that the proposed criterion for determining what entity is
a primary operating railroad over a particular grade crossing was
confusing and conflicting, especially with respect to rail transit
operators. Therefore, in this final rule, FRA is revising the
definition of ``primary operating railroad'' to include specific
criteria that will determine primary operating railroad status. Under
this definition, an operating railroad will qualify for primary
operating railroad status if the operating railroad either owns or
maintains the track through the highway-rail or pathway crossing,
unless the crossing is located within a private company, port or dock
area. If there is more than one operating railroad that qualifies for
primary operating railroad status on the basis of this criterion, then
the operating railroad that operates the most trains over the crossing
is the primary operating railroad. If there is only one operating
railroad that operates one or more trains through a highway-rail or
pathway crossing, that operating railroad is the primary operating
railroad.
    A different method is used to determine primary operating railroad
status for crossings located within a private company, port, or dock
area. In recognition of the existing practice of

general system railroads to assign Inventory Numbers to these
crossings, the definition of ``primary operating railroad'' provides
that each railroad that owns track leading to the private company,
port, or dock area is considered a primary operating railroad for the
crossings within the private company, port, or dock area--even if the
operating railroad does not own or maintain track through the
crossings.
Private Crossing
    In the NPRM, FRA proposed to define the term ``private crossing''
as ``a highway-rail crossing that is not a public crossing.'' In the
interest of clarity, in this final rule FRA is revising this proposed
definition to include a specific reference to pathway crossings in
addition to highway-rail crossings. As explained in the NPRM, the term
``private crossing'' includes intersections of railroad tracks and
roadways that are not open to public travel or maintained by a public
authority. This explanation in the NPRM, however, failed to recognize
that just as railroad tracks may cross roadways that are not open to
the public or maintained by a public authority, railroad tracks also
may cross private pathways that are not open to the public or
maintained by a public authority. Typical types of private crossings
include farm crossings, industrial plant crossings, and residential
access crossings.
Public Crossing
    In the NPRM, FRA proposed to define the term ``public crossing'' as
follows: ``a highway-rail crossing where the roadway is under the
jurisdiction of and maintained by a public authority and open to public
travel. All roadway approaches must be under the jurisdiction of the
public roadway authority and no roadway approach may be on private
property.'' FRA received several comments in response to this proposed
definition. In response to those comments, which are discussed below,
FRA is revising the definition of the term ``public crossing'' in this
final rule to include a specific reference to pathway crossings (in
addition to highway-rail crossings) and to replace references to
``roadway approaches'' in the proposed definition with the more generic
term ``approaches'' because pathway crossings generally do not have
roadway approaches. FRA also revised the definition to specify that all
approaches to a public crossing must be under the jurisdiction of the
public authority and no approach may be on private property, ``unless
State law or regulation provides otherwise.'' Further, FRA notes that
for purposes of this definition, ``open to public travel'' means that
the road or pathway section is available (except during scheduled
periods, extreme weather, or emergency conditions) and open to the
general public for use without restrictive gates, prohibitive signs, or
regulation.
    As noted in the NPRM, FRA recognizes this definition of ``public
crossing'' contains different criteria for determining the public
nature of a highway-rail crossing than the existing definition of
``public highway-rail grade crossing'', contained in 49 CFR 222.9
related to the use of locomotive horns and quiet zones. However, as
also noted in the NPRM, these criteria are intended to make the
definition of the term ``public crossing'' in this final rule more
consistent with the definition of the term ``public grade crossing''
contained in 23 CFR 924.3, which is widely used by States for Highway
Safety Improvement Program planning and funding purposes.
    FRA received comments on the definition of ``public crossing'' from
the ICC, which asserted the definition in the proposed rule failed to
address situations in which a public authority, such as a forest
preserve, owns and maintains the roadway or pathway approaches on both
sides of the crossing. In addition, the Louisiana Department of
Transportation and Development (LaDOTD) submitted comments recommending
that pathway crossings should be classified as public or private, based
upon the entity that maintains the approaches to the crossing.
    As explained above, if the highway-rail or pathway crossing is open
to public travel and each approach to the crossing is under the
jurisdiction of and maintained by a public authority, we will generally
consider the highway-rail or pathway crossing to be a public crossing
for purposes of this subpart. Therefore, a highway-rail or pathway
crossing is considered a public crossing for purposes of this subpart,
if each approach to the crossing is under the jurisdiction of and
maintained by a governmental entity and the crossing is open to the
general public for use without restrictive gates, prohibitive signs, or
regulation. If only one approach is under the jurisdiction of and
maintained by a governmental entity, the crossing will be considered a
private crossing unless otherwise provided by State law.
    Denver RTD also submitted comments requesting guidance on how to
determine the proper classification of a highway-rail or pathway
crossing. In its comments, Denver RTD noted that, in many instances,
the railroad owns the land on which the highway-rail or pathway
crossing is located. While FRA acknowledges that highway-rail and
pathway crossings are generally located on privately-owned railroad
rights-of-way, the public/private nature of a highway-rail or pathway
crossing has traditionally been determined by ownership of the
approaches that lead up to the railroad's right-of-way. FRA intends its
definition of the term ``public crossing'' in this final rule to be
consistent with this practice.
    As noted in the NPRM, with respect to crossings in States where a
State agency (such as a State department of transportation, State
highway department, public utility commission, or State commerce
commission) has been empowered to make determinations as to whether
individual crossings are public or private, the determinations of that
State agency will govern the public/private classification of highway-
rail and pathway crossings in the State for purposes of the Crossing
Inventory. To clarify this point in the final rule and in response to
comments received from LaDOTD and Tavla Solutions noting that some
States have classified high-way rail grade crossings as public
crossings despite the fact that there is only one roadway approach to
the crossing on public property, in this final rule, we revised the
definition of ``public crossing'' to include an exception to the
requirement that all approaches to the crossing must be on public
property ``unless State law or regulation provides otherwise.''
Temporary Crossing
    In the NPRM, FRA proposed to define ``temporary crossing'' to mean
``a highway-rail crossing created to serve a specific activity for a
temporary time period not to exceed six months.'' We revised this
definition in the final rule to include a specific reference to pathway
crossings, which we inadvertently omitted from the definition proposed
in the NPRM.
    As explained in the NPRM, given the short-term nature of temporary
crossings, Inventory Numbers have not historically been assigned to
such crossings. FRA intends to maintain this practice and therefore,
the reporting and updating requirements contained in this final rule do
not apply to any crossing that meets the definition of ``temporary
crossing.''
    AAR's comments recommend that the definition of ``temporary
crossing'' be revised to include crossings that are in existence for a
period ``not to exceed 12 months.'' In support of this recommendation,
the AAR asserted that

railroads are often faced with circumstances, such as construction,
that necessitate use of a crossing on a temporary basis, but for
periods exceeding six months. In its comments, Denver RTD concurred
with AAR's recommendation.
    Although FRA recognizes the potential for certain non-permanent
circumstances, including construction activities, to take longer than
six-months, FRA does not believe that it is appropriate for purposes of
this rule to define a ``temporary crossing'' as a crossing that exists
more than six months. Moreover, FRA notes that the Crossing Inventory
procedure in place for at least 18 years uses a six-month period for
classifying highway-rail and pathway crossings as temporary crossings.
Consistent with this existing practice, FRA is not revising the
proposed definition to increase the temporary time from six months to
12 months. Therefore, if a highway-rail or pathway crossing is
reasonably expected to be in use for more than six months, or if it
becomes apparent that the highway-rail or pathway crossing will need to
remain in use for longer than a six-month period, the primary operating
railroad must assign an Inventory Number to the crossing and report the
crossing to the Crossing Inventory. When the crossing is no longer
needed, the primary operating railroad is required to close the
crossing and, under Sec.  234.411(b), provide notification of the
crossing closure to the Crossing Inventory.
Section 234.403 Submission of Data to the Crossing Inventory, Generally
    As proposed in the NPRM, paragraph (a) of this section requires use
of the Inventory Form, or its electronic equivalent, to submit highway-
rail and pathway crossing data to the Crossing Inventory. Although we
are adopting this paragraph substantially as proposed, in the final
rule FRA modified the language slightly to include specific references
to both highway-rail and pathway crossings to reflect the two basic
categories of grade crossings for which data will be collected. As also
proposed in the NPRM, paragraph (a) generally allows submission of the
Inventory Form in both hard copy format or electronically.
    Consistent with the proposal in the NPRM, paragraph (b) requires
completion of the Inventory Form in accordance with the Inventory
Guide. In this final rule, FRA is adopting paragraph (b) substantially
as proposed, but adding a reference to the ``electronic equivalent'' of
the Inventory Form to make it clear the rule allows for submission of
the Inventory Form electronically. As noted in the NPRM and explained
in the Inventory Guide, with the exception of highway-rail and pathway
crossings that are located in a railroad yard, a passenger station, or
an area belonging to a private company, port, or dock, one Inventory
Form (or its electronic equivalent) must be submitted to the Crossing
Inventory for each highway-rail or pathway crossing. Where there is
more than one crossing in a railroad yard, a passenger station, or an
area belonging to a private company, port, or dock area, the primary
operating railroad may choose to either submit an Inventory Form (or
its electronic equivalent) to the Crossing Inventory for each
individual crossing or to submit an Inventory Form (or its electronic
equivalent) for all (or a group) of the crossings within the railroad
yard, passenger station, or area belonging to a private company, port,
or dock.
    In the NPRM, FRA requested comments on whether it should retain its
current practice of allowing railroads to assign a single Inventory
Number to a group of crossings in a railroad yard, passenger station,
or an area belonging to a private company, port, or a dock area should
be retained. FRA received comments on this issue from a private
citizen, the AAR, the CPUC, the ICC, Denver RTD, and BRS.
    AAR recommended that FRA retain the current practice of allowing
railroads to assign a single Inventory Number to a group of crossings
in a railroad yard or an area belonging to a private company, a port,
or a dock. While noting there are a number of private restricted access
facilities that have railroad crossings, the AAR asserted that
railroads are often granted limited access into these facilities due to
security concerns. Therefore, the AAR argued that there continues to be
a need for a flexible approach allowing the assignment of a single
Inventory Number to multiple crossings located within such facilities.
In addition, the AAR noted that assigning a single Inventory Number to
a group of crossings in a railroad yard or area belonging to a private
company, a port, or a dock would be consistent with FRA requirements to
place and maintain only one Emergency Notification System sign at each
vehicular entrance to a railroad yard or port or dock facility.
    FRA also received comments from the CPUC, ICC, and the BRS
asserting that the practice of assigning a single Inventory Number to a
group of crossings should cease. The BRS expressed concern that the
practice of assigning a single Inventory Number to multiple crossings
could hinder accurate reporting of crossing malfunctions, stalled
vehicles at crossing locations, and grade crossing accidents. While
noting that large ports may have hundreds of crossings, the CPUC
asserted that assigning a single DOT Inventory number to an entire port
area would make it nearly impossible to identify the location of
accidents and safety issues at a particular crossing within the
facility. The CPUC recommended that each crossing should be assigned an
individual DOT identification number because each crossing may have
independent characteristics and accident history. In the alternative,
the CPUC recommended that FRA should consider limiting the assignment
of a single Inventory Number to multiple crossings located within a
very small area, which is privately owned and subject to strictly
limited access. The ICC recommended that each unique pathway crossing
within a passenger station should be assigned an individual DOT
identification number.
    After careful consideration of these comments and because the
commenters did not provide any specific safety data to support their
concerns, FRA has decided to retain the current practice of allowing
railroads to assign one Inventory Number to multiple crossings that are
located within an area belonging to a private company, a port or a dock
area. FRA notes that crossing malfunctions and other crossing incidents
are often reported directly to the facility or to an authorized
facility representative who has knowledge of, or is otherwise familiar
with, the location of crossings on the property. Section 204(a) of the
RSIA directs the Secretary of Transportation to issue regulations that
require railroads to submit crossing data to the Crossing Inventory.
Consistent with that authority, while it might otherwise be reasonable
and appropriate to require private property owners to obtain an
individual Inventory Number for each highway-rail and pathway crossing
on their property, we have determined that the responsibility for
obtaining an Inventory Number for crossings located on private property
or in a port or dock area should continue to be placed on the railroads
who operate through the crossings. Therefore, FRA is retaining the
current practice of assigning a single Inventory Number to a group of
crossings located on private property, or in a dock or port area, which
does not appear to have a negative impact on emergency response to
crossing malfunctions or other types of crossing incidents.
    As for crossings within passenger stations, Denver RTD recommended
that

the Inventory Guide be revised to specifically state that one Inventory
Number can be assigned to multiple crossings within a passenger
station. As noted above, in these types of locations crossing
malfunctions and other crossing incidents are typically reported
directly to the facility or to an authorized representative of the
facility who has knowledge of, or is otherwise familiar with, the
location of the crossings on the property. In addition, the current
practice of assigning a single Inventory Number to a group of crossings
located in a railroad yard or passenger station does not appear to have
a negative impact on emergency response to crossing malfunctions or
other types of crossing incidents. Therefore, FRA also has decided to
retain the current practice of allowing railroads to assign one
Inventory Number to multiple crossings that are located in a railroad
yard or passenger station.
    Paragraph (c) of this section requires Class I railroads to submit
all crossing data to the Crossing Inventory electronically. The net
effect of this provision is that Class II and Class III railroads, as
well as urban rapid transit operators and State agencies, may submit
their crossing data to the Crossing Inventory on a hard-copy Inventory
Form or its electronic equivalent, while Class I railroads must submit
the data electronically.
    In the proposed rule, FRA requested comments on whether it should
require additional railroads to submit crossing data electronically to
the Crossing Inventory. FRA received comments from the BRS recommending
that all parties who are required to submit data to the Crossing
Inventory should be required to submit their data electronically. By
applying this requirement to all parties, the BRS asserted that FRA
would be better able to track crossing data and there would be no
issues with the legibility of the data entered on the hard copy
Inventory Form. FRA also received comments from the ICC recommending
that the scope of the electronic submission requirement should be
expanded to require all primary operating railroads and States with
more than 5,000 crossings to submit their crossing data electronically
to the Crossing Inventory. Denver RTD submitted comments recommending
that all crossing data be electronically submitted to the Crossing
Inventory, whether submitted by a State agency or an operating
railroad. On the other hand, the North Carolina Department of
Transportation (NCDOT) submitted comments asserting it would be
impractical and cost burdensome to require all railroads to submit
crossing data electronically to the Crossing Inventory because some
Class III railroads do not have electronic databases for their crossing
records.
    FRA encourages Class II and Class III railroads, as well as urban
rapid transit operators and State agencies, to submit their data
electronically to the Crossing Inventory. However, in order to minimize
the burdens associated with the reporting and updating of this subpart,
the final rule does not require Class II or Class III railroads or
urban rapid transit operators to submit crossing data electronically to
the Crossing Inventory (unless they are a parent corporation submitting
crossing data to the Crossing Inventory on behalf of a subsidiary
railroad under paragraph (e) of this section). As for voluntary
reporting by State agencies, State agencies may elect to either submit
crossing data electronically to the Crossing Inventory or through
submission of hard-copy Inventory Forms.
    Currently, some States and railroads use a PC-based software
product (GX 32) to update the existing Grade Crossing Inventory System
(GCIS) that contains the Crossing Inventory database. However, GX 32
will be replaced with a new secure Web-based application on the final
rule effective date. This new Web-based application will allow
railroads and States to either upload their crossing data to the
Crossing Inventory as an electronic file or to complete an online
version of the Inventory Form. The new Web-based application will also
have the capability to support bulk crossing data submissions.
Railroads and States that previously used the GX 32 software product to
update the Crossing Inventory will need to adjust their existing
electronic data systems to ensure their systems work with the new Web-
based application. Please refer to the Electronic Submission
Instructions that have been placed in the public docket for more
information. FRA also intends to conduct outreach and training on the
new Web-based application. More information about these upcoming FRA
outreach and training sessions will be provided on FRA's Web site.
    Paragraph (d) of this section specifically addresses reporting by
State agencies on behalf of operating railroads. In the proposed rule,
FRA noted that it intended to allow State agencies with jurisdiction
over highway-rail and pathway crossings to submit crossing data to the
Crossing Inventory on behalf of primary operating railroads. These
provisions were proposed in Sec. Sec.  234.405(a)(3), 234.405(b)(4),
and 234.405(c)(4). However, as proposed, the rule might have allowed a
wide range of third parties to submit crossing data to the Crossing
Inventory on behalf of the primary operating railroad, which would have
inadvertently expanded the intended scope of this provision. Therefore,
in this final rule, FRA has redrafted these provisions and included
them in paragraph (d) of this section, to specifically address the
submission of data to the Crossing Inventory by a State agency on
behalf of an operating railroad.
    Paragraph (d) is intended to minimize any potential burden the
requirements of this subpart may impose on Class III railroads and to
accommodate existing arrangements between shortline railroads and State
agencies, where State agencies have agreed to submit crossing data to
the Crossing Inventory on the railroads' behalf. To take advantage of
this provision, the State agency and the operating railroad are
required to provide written notice to the FRA Associate Administrator
that the State agency has agreed to report and update crossing data in
the Crossing Inventory on behalf of the operating railroad for all of
the operating railroad's highway-rail and pathway crossings within the
state. Unlike FRA's proposal in the NPRM, the operating railroad and
State agency are not required to provide positive identification of
each individual crossing for which the State agency has agreed to
submit and update crossing data in the Crossing Inventory.
    NCDOT submitted comments seeking clarification as to the types of
sanctions and/or consequences FRA might use to enforce the reporting
and updating requirements contained in this subpart against State
agencies that have agreed to report and update crossing data in the
Crossing Inventory for operating railroads, yet fail to do so. FRA
expects State agencies that agree to report and update crossing data on
behalf of operating railroads will share FRA's interest in ensuring
that Crossing Inventory records for highway-rail and pathway crossings
within the State are kept up-to-date and accurate to the extent
possible. FRA anticipates there will be few instances in which State
agencies fail to timely report and/or update crossing data in the
Crossing Inventory, per their agreement with the operating railroad.
Nevertheless, FRA does reserve the right to take enforcement action
(e.g., in the form of civil penalties or otherwise) against the
operating railroad, when appropriate, if a State does not timely comply
with the

reporting and updating requirements contained in this subpart on behalf
of the operating railroad.
    The ICC also submitted comments recommending that the primary
operating railroad be allowed to assign responsibility for updating
crossing data to a contractor, but not be allowed to assign
responsibility for updating crossing data to the appropriate State
agency. FRA is not adopting this recommendation with respect to State
agency reporting. Operating railroads (including the primary operating
railroad) may choose to enter into separate contractual arrangements
with third-party contractors for the submission of crossing data to the
Crossing Inventory on their behalf without regulatory authority.
However, the operating railroad will remain fully responsible to FRA
for any errors or omissions in crossing data the third-party contractor
submits on its behalf.
    We added a new paragraph (e) to this section of the final rule to
provide an option for reporting and updating of crossing data to the
Crossing Inventory by the parent corporation of certain integrated
railroad systems. Specifically, paragraph (e) provides that a parent
corporation, and one or more subsidiary railroads, may provide written
notification to the FRA Associate Administrator that the parent
corporation will assume the reporting and updating responsibilities of
its subsidiary railroad for purposes of complying with this subpart.
Any written notification provided under paragraph (e) of this section
must contain a list of all subsidiary railroads for which the parent
corporation will assume reporting and updating responsibility and an
explanation of how the parent corporation and the subsidiary railroads
operate as a single, seamless, integrated United States railroad
system. In addition, any written notification provided under paragraph
(e) of this section must include a statement signed by the chief
executive officer of the parent corporation, that the parent
corporation consents to guarantee any monetary penalty assessments or
other liabilities owed to the United States government the named
subsidiaries incur for violating the reporting and updating
requirements of this subpart. The parent corporation also must agree to
provide immediate written notification to the FRA Associate
Administrator of any change in the list of subsidiary railroads for
which the parent corporation has assumed reporting and updating
responsibility. Finally, the parent corporation must agree to submit
crossing data for all of the subsidiary railroad's highway-rail and
pathway crossings to the Crossing Inventory electronically.
Section 234.405 Submission of Initial Data to the Crossing Inventory
for Previously Unreported Crossings
    As proposed, this section would have included requirements that
primary operating railroads submit data to the Crossing Inventory for
previously unreported crossings (proposed paragraph (a)) and new
crossings (i.e., crossings not in existence as of effective date of
final rule) (proposed paragraph (b)), as well as periodic update
requirements (proposed paragraph (c)), and update requirements related
to crossing sales, closures and changes in crossing characteristics
(proposed paragraph (d)). In this final rule, FRA is revising this
section by moving the provisions that address the reporting of new
crossings and the periodic updating of existing crossing data, and the
provisions that address the reporting of crossing sales, crossing
closures, and changes in crossing characteristics, to separate
sections. The reporting of new highway-rail and pathway crossings is
now under Sec.  234.407, while the periodic updating of existing
crossing data is under Sec.  234.409. In addition, the reporting of a
crossing sale, crossing closure, or change in crossing characteristics
is now under Sec.  234.411.
    As proposed in the NPRM, this section made primary operating
railroads responsible for submitting completed Inventory Forms or their
electronic equivalents, to the Crossing Inventory for previously
unreported crossings through which the railroads operate. FRA received
a number of comments relating to FRA's proposal to make railroads
responsible for submitting completed Inventory Forms, as opposed to
limiting railroads' duty to report to only railroad-maintained crossing
data. In its comments, AAR recommended that the final rule require
railroads to report only railroad-maintained crossing data (e.g., the
total number of daily train movements and the speed of the train at the
crossing) to the Crossing Inventory and should leave State agencies
responsible for reporting State-maintained crossing data (such as
highway system class, highway speed limit, estimated percent of truck
traffic, and the average number of school buses per day). NCDOT
submitted similar comments. In its comments, the Virginia Department of
Transportation (VDOT) recommended that State agencies be responsible
for updating crossing data because railroads do not have staff in every
state. The Florida Department of Transportation (FDOT) recommended that
primary operating railroads be required to coordinate with State
agencies to obtain State-maintained crossing data before they submit
this data to the Crossing Inventory for previously unreported highway-
rail and pathway crossings. The ICC submitted comments recommending
that State agencies be permitted to submit crossing data to the
Crossing Inventory for previously unreported crossings, if the primary
operating railroad fails to do so in a timely fashion.
    After careful consideration of all comments submitted on this
issue, FRA has retained the requirement that primary operating
railroads must submit completed Inventory Forms (or the electronic
equivalent) to the Crossing Inventory for previously unreported
highway-rail and pathway crossings in the final rule. This final rule
implements the statutory mandate in Section 20160 to issue regulations
requiring railroads to submit crossing data to the Crossing Inventory
for previously unreported crossings. While DOT may issue regulations in
the future that would address State reporting of public highway-rail
and pathway crossings to the Crossing Inventory, this final rule does
not require State agencies to report or update the Crossing Inventory.
However, FRA strongly encourages primary operating railroads to work
with State agencies to obtain crossing data the State maintains.
    In response to commenters expressed concerns, and in recognition of
the fact that even a primary operating railroad may not have access to
all the data necessary to complete an Inventory Form, FRA added a new
paragraph (d) to this section. This paragraph establishes a procedure
for primary operating railroads to provide official notification to FRA
if the primary operating railroad is unable to timely submit a complete
Inventory Form (or its electronic equivalent) to the Crossing Inventory
because it requested State-maintained crossing data from the State
agency that has not yet been received.
    This section implements the statutory mandate contained in
paragraph (a)(1) of Section 20160, which requires railroad carriers to
report current information to the Secretary about warning devices and
signs at each previously unreported crossing through which they
operate. With respect to the reporting to the Crossing Inventory of
previously unreported highway-rail and pathway crossings (which, for
purposes of this subpart, are highway-rail and pathway crossings (both
at-grade and grade-separated) that were not reported to the Crossing
Inventory as of the effective date of this final rule), we

revised paragraph (a) of this section. Paragraph (a) has been revised
to include a provision, in paragraph (a)(1)(i), requiring the primary
operating railroad to assign an Inventory Number to each previously
unreported highway-rail and pathway crossing through which it operates,
unless the crossing is located in a railroad yard, passenger station,
or within a private company, port, or dock area. If the previously
unreported crossings are located in a railroad yard, passenger station,
or within a private company, port, or dock area, paragraph (a)(1)(ii)
requires the primary operating railroad(s) to assign one or more
Inventory Numbers to the previously unreported crossings. In these
instances, each railroad that owns track leading to the private
company, port, or dock area is considered the primary operating
railroad for the crossings within the facility (see definition of
``primary operating railroad'' in Sec.  234.401). Thus, if more than
one railroad owns track leading into a private company, port, or dock
area, it is possible that a single crossing could have more than one
unique Inventory Number assigned to it. If a primary operating railroad
does not already have an Inventory Number it can assign to the
previously unreported highway-rail or pathway crossing, then the
railroad must obtain an Inventory Number. Instructions for obtaining an
Inventory Number are found in the Inventory Guide.
    As proposed in the NPRM, paragraph (a)(1)(iii) specifically
provides that the requirements to assign Inventory Numbers to crossings
and to submit Inventory Forms to the Crossing Inventory do not apply to
any crossing meeting the definition of a ``temporary crossing.''
    We also revised paragraph (a)(2) in the final rule to require the
primary operating railroad to provide the assigned Inventory Number to
each operating railroad that operates through the previously unreported
highway-rail or pathway crossing within ten months of the final rule's
effective date. FRA added this requirement because each operating
railroad will need to know the Inventory Number assigned to the
previously unreported crossing. (For example, the operating railroad
will need to be able to verify whether the primary operating railroad
has timely reported the previously unreported crossing to the Crossing
Inventory.) However, this requirement does not apply to the Inventory
Numbers assigned to highway-rail and pathway crossings that are located
within a private company, port, or dock area. As stated above, if more
than one railroad owns track that leads into a private company, port,
or dock area, each railroad that owns track leading to the private
company, port, or dock area must assign its own Inventory Number to the
highway-rail and pathway crossings that are located within the
facility.
    As proposed in the NPRM, primary operating railroads would have had
six months after the effective date of a final rule to report any
previously unreported highway-rail and/or pathway crossings to the
Crossing Inventory. NCDOT submitted comments recommending that the
reporting requirements contained in the final rule should allow for a
12-month transition period to accommodate changes to database code and
validation rules, while FDOT submitted comments recommending that the
final rule should allow for a six- to 12-month transition period. On
the other hand, the ICC submitted comments recommending that the final
rule should allow for a 24-month period after the final rule's
effective date before the electronic submission of crossing data to the
Crossing Inventory is required, in order to provide sufficient time
within which to modify existing crossing database systems or to develop
new systems to retain crossing data.
    After consideration of these comments, we revised paragraph (a)(3)
of this section to extend the proposed six month initial reporting
period to allow primary operating railroads to submit completed
Inventory Forms (or their electronic equivalent) to the Crossing
Inventory for the previously unreported highway-rail and pathway
crossings through which they operate within 12 months of the final rule
effective date. This will provide additional time for railroads, as
well as State agencies, to modify existing systems or to develop new
systems. FRA believes 12 months is ample time for railroads to modify
their existing systems of reporting or to develop new systems. This 12-
month reporting period is applicable, regardless of whether the
crossing data is submitted electronically or by hard-copy. FRA
recognizes that some Class II and Class III railroads may elect to
retain their crossing data on an electronic database, yet submit their
crossing data to the Crossing Inventory on hard-copy Inventory Forms.
FRA has no objection to this non-Class I railroad practice.
    FRA added paragraph (b) of this section to the final rule to
address the situation when multiple operating railroads operate trains
on separate tracks through the same highway-rail or pathway crossing.
As discussed in the Section-by-Section Analysis of the definition of
the term ``highway-rail crossing,'' railroad tracks that lie within the
same pair of crossing warning devices are considered a single highway-
rail or pathway crossing for purposes of the Crossing Inventory.
    AAR's comments expressed agreement with FRA's proposal that when
two or more railroads operate on the same track and through the same
highway-rail or pathway crossing, the primary operating railroad should
provide crossing data to the Crossing Inventory. However, when multiple
railroads operate on separate tracks through the same crossing, AAR
recommended that each operating railroad should submit separate reports
to the Crossing Inventory for crossing data that is unique to its
tracks. Denver RTD also submitted comments questioning whether any one
railroad should be designated the primary operating railroad in the
case of a shared crossing where each operating railroad owns, operates,
and maintains its portion of the crossing.
    On the other hand, FRA received comments from the ICC recommending
that only two entities--the primary operating railroad and the State--
be authorized to edit or update crossing data in the Crossing
Inventory. In situations involving multiple operating railroads, the
ICC recommended that FRA require other operating railroads to provide
crossing data to the primary operating railroad for submission to the
Crossing Inventory. The Minnesota Department of Transportation
submitted similar comments recommending that the railroad responsible
for the maintenance of the track at the crossing be the reporting
railroad with the obligation to collect the required data, if any, from
the other railroads that operate on its line. FDOT also submitted
comments recommending that the primary operating railroad should not
submit train count data to the Crossing Inventory until after it
obtains a total count from all other railroads that operate through the
crossing.
    As reflected in paragraph (a) of this section, the primary
operating railroad is required to submit an accurate and complete
Inventory Form, or its electronic equivalent, to the Crossing Inventory
for previously unreported highway-rail and pathway crossings. However,
in situations involving multiple railroads that operate on separate
tracks through the same crossing, it may not be practicable for the
primary operating railroad to submit train count and train speed data
to the Crossing Inventory on behalf of all of the operating railroads
that operate trains through the crossing. The primary

operating railroad may not have sufficient information related to train
movements for tracks over which it does not operate or dispatch trains.
Therefore, paragraph (b) of this section requires multiple operating
railroads that operate on separate tracks through the same highway-rail
or pathway crossing to assume responsibility for reporting certain
crossing data directly to the Crossing Inventory consistent with the
Inventory Guide. This crossing data includes railroad-specific train
count and train speed data, as well as railroad-specific location data
such as the milepost location, railroad subdivision, and railroad
division data. However, the primary operating railroad is still
required to submit an accurate and complete Inventory Form, or its
electronic equivalent, to the Crossing Inventory for the crossing,
which includes train count and train speed data that is specifically
related to the primary operating railroad's train operations.
    We intend for paragraph (c) of this section to address the
situation when the primary operating railroad has not submitted a
completed Inventory Form (or its electronic equivalent) to the Crossing
Inventory for a previously unreported highway-rail or pathway crossing,
under paragraph (a) of this section. Unless the primary operating
railroad has provided a written certification statement to the FRA
Associate Administrator under paragraph (d) of this section that it
requested certain crossing data from the appropriate State agency which
the State agency has not yet provided, other operating railroads that
operate through the previously unreported crossing will need to monitor
the Crossing Inventory to confirm that the primary operating railroad
has timely submitted a completed Inventory Form (or its electronic
equivalent) to the Crossing Inventory for the crossing. If an operating
railroad discovers that the primary operating railroad has not
submitted a completed Inventory Form (or its electronic equivalent) to
the Crossing Inventory for a previously unreported highway-rail or
pathway crossing (which is not a temporary crossing) by March 7, 2016,
the operating railroad must provide written notification of this
oversight to the FRA Associate Administrator. Otherwise, each operating
railroad (including the primary operating railroad) that operates
through the unreported highway-rail or pathway crossing may be subject
to civil penalties for failure to timely report the crossing to the
Crossing Inventory.
    FRA received a number of comments that were critical of the
requirement contained in paragraph (c) of this section that each
operating railroad must notify the FRA Associate Administrator when the
primary operating railroad has not submitted a completed Inventory
Form, or its electronic equivalent, to the Crossing Inventory. The AAR
and the ICC submitted comments asserting that this requirement is
burdensome. The AAR further asserted that FRA could implement the
statutory mandate in Section 20160, without imposing reporting
requirements on secondary railroads, by giving entities other than the
primary operating railroad the ability to submit crossing data to the
Crossing Inventory. For example, the AAR noted that the proposed rule
already contained provisions that would allow reporting by other
entities on behalf of the primary operating railroad, which appear to
be consistent with other assignment provisions that appear in the rail
safety regulations.
    Section 20160 contains specific language requiring that each
railroad carrier ensure crossing data for previously unreported
crossings has been reported to the Crossing Inventory by another
railroad carrier that operates through the crossing. As discussed
earlier, paragraph (a) of this section requires the primary operating
railroad to submit an accurate and complete Inventory Form, or its
electronic equivalent, for previously unreported highway-rail and
pathway crossings. However, if the primary operating railroad fails to
submit a completed Inventory Form in a timely manner, paragraph (c) of
this section implements Section 20160's mandate to require each
operating railroad to provide written notification to the FRA Associate
Administrator that a previously unreported highway-rail or pathway
crossing has not been timely reported to the Crossing Inventory.
Therefore, we did not change this requirement in the final rule.
    The AAR also submitted comments asserting that requiring operating
railroads to notify the FRA Associate Administrator when the primary
operating railroad has not timely submitted crossing data to the
Crossing Inventory would require operating railroads to differentiate
between crossings through which they operate trains and crossings
through which they simply have trackage rights (but do not operate
trains), in order to determine whether they must follow up on a primary
railroad's reporting responsibility. FRA acknowledges that the final
rule will require railroads to differentiate between crossings through
which they operate trains and crossings for which they simply have
trackage rights to determine the extent of their reporting and updating
responsibilities under this final rule. If a railroad or urban rapid
transit operator simply has trackage rights (but does not operate
trains) over a highway-rail or pathway crossing that is on, or
connected to, the general railroad system of transportation, the
railroad or rail transit operator will not be considered an ``operating
railroad'' with respect to that crossing. Therefore, the railroad or
rail transit operator will not be required by this subpart to submit or
update crossing data to the Crossing Inventory for the highway-rail or
pathway crossing for which it simply has trackage rights but does not
operate trains.
    FRA added paragraph (d) of this section to the final rule to allow
the primary operating railroad to provide written notification that it
has requested, but not received, certain crossing data, from the
appropriate State agency responsible for maintaining highway-rail and
pathway crossing data. We added this paragraph to the final rule in
response to comments noting that under the proposed rule, the primary
operating railroad and all other operating railroads could be held
responsible for the timely submission of crossing data, which may only
be obtainable from the State agency that maintains highway-rail and
pathway crossing data. As noted earlier, the AAR submitted comments
asserting that railroads should only be required to report railroad-
maintained crossing data to the Crossing Inventory, thus leaving the
responsibility for reporting State-maintained crossing data to State
agencies. Denver RTD also submitted comments recommending that
railroads only be responsible for failing to submit or update crossing
information in the Crossing Inventory if the State timely provided the
information requested and the railroad nevertheless failed to timely
update the Crossing Inventory. The ICC submitted comments recommending
that the final rule contain a mechanism for any party to inform the FRA
Associate Administrator of the failure of the State agency (or the
primary operating railroad) to submit data in a timely manner.
    Paragraph (d) will allow the primary operating railroad to submit a
written statement to the FRA Associate Administrator, by certified
mail, return receipt requested, certifying it requested certain
crossing data from the appropriate State agency responsible for
maintaining highway-rail and pathway crossing data at least 60 days
earlier, which the State has not yet provided. If the primary operating
railroad provides

this written statement to the FRA Associated Administrator, FRA will
not hold the primary operating railroad responsible for failing to
submit an accurate and complete Inventory Form (or its electronic
equivalent) to the Crossing Inventory. In addition, the rule will not
require other operating railroads that operate through the crossing to
notify the FRA Associate Administrator that a completed Inventory Form
(or its electronic equivalent) has not been submitted for the
previously unreported crossing.
    To take advantage of this provision, the primary operating railroad
must limit the crossing data requested to one or more of the data
fields that contain State-maintained crossing data, which the States
are being asked to voluntarily update in the Crossing Inventory. We
have identified these data fields in Appendix B in the Inventory Guide.
The primary operating railroad must mail a written statement to the FRA
Associate Administrator by certified mail, return receipt requested,
which includes a list of each data field for which the primary
operating railroad requested crossing information from the appropriate
State agency and the date the crossing data was requested. The primary
operating railroad also must mail copies of the written certification
statement to each operating railroad that operates through the highway-
rail or pathway crossing and to the State agency responsible for
maintaining highway-rail and pathway crossing data. In addition, the
primary operating railroad must submit the requested crossing data to
the Crossing Inventory within 60 days of receipt from the appropriate
State agency.
Section 234.407 Submission of Initial Data to the Crossing Inventory
for New Crossings
    Proposed Sec.  234.407 set forth the recordkeeping requirements for
this subpart that would apply to each railroad subject to this subpart.
In this final rule, we moved these recordkeeping requirements to
Sec. Sec.  234.413 and 234.407 now addresses the reporting of new
highway-rail and pathway crossings to the Crossing Inventory. This
section implements paragraph (a)(1) of Section 20160, which requires
railroad carriers to report current information to the Secretary about
warning devices and signs at each new crossing through which they
operate. Specifically, paragraph (a)(1)(i) of this section requires the
primary operating railroad to assign an Inventory Number to each new
highway-rail and pathway crossings through which it operates.
Consistent with the reporting requirements in Sec.  234.405 regarding
previously unreported crossings, this requirement does not apply to new
highway-rail and pathway crossings located in a railroad yard,
passenger station, or within a private company, port, or dock area or
to temporary crossings.
    If new crossings are located in a railroad yard, passenger station,
or within a private company, port or dock area, paragraph (a)(1)(ii)
requires the primary operating railroad(s) to assign one or more
Inventory Numbers to the crossings. The primary operating railroad(s)
may assign an Inventory Number to a specific highway-rail or pathway
crossing or to a group of highway-rail and pathway crossings located in
a railroad yard, passenger station, or within a private company, port,
or dock area.
    For new highway-rail and pathway crossings located within a private
company, port, or dock area, we will consider each railroad that owns
track leading to the private company, port, or dock area the primary
operating railroad for the crossings within the facility (see
definition of ``primary operating railroad'' in Sec.  234.401). Thus,
if more than one railroad owns track leading into a private company,
port or dock area, it is possible that a single crossing could have
more than one unique Inventory Number assigned to it. If a primary
operating railroad does not already have an Inventory Number that it
can assign to the new highway-rail or pathway crossing, the railroad
must obtain an Inventory Number. Instructions for obtaining an
Inventory Number can be found in the Inventory Guide.
    Paragraph (a)(1)(iii) of this section provides that the requirement
to assign Inventory Numbers to crossings and report those crossings to
the Crossing Inventory does not apply to any crossing meeting the
definition of a ``temporary'' crossing. However, the primary operating
railroad must report a highway-rail or pathway crossing that was deemed
to be a ``temporary'' crossing to the Crossing Inventory as a new
crossing if it becomes apparent the highway-rail or pathway crossing
will remain in place for more than six months.
    We also revised paragraph (a)(2) in the final rule to require the
primary operating railroad to provide the assigned Inventory Number to
each operating railroad that operates through the new highway-rail or
pathway crossing no later than four months after the date the crossing
becomes operational or ten months after the effective date of this
rule, whichever occurs later. FRA added this requirement to the final
rule because each operating railroad will need to know the Inventory
Number assigned to the new highway-rail or pathway crossing. (For
example, the operating railroad will need to verify whether the primary
operating railroad timely reported the new crossing to the Crossing
Inventory.) However, this requirement does not apply to the Inventory
Numbers assigned to highway-rail and pathway crossings located within a
private company, port, or dock area. As stated above, if more than one
railroad owns track that leads into a private company, port, or area,
each railroad that owns track leading to the private company, port, or
dock area must assign its own Inventory Numbers to the highway-rail and
pathway crossings that are located within the facility.
    As proposed in the NPRM, primary operating railroads would have had
six months after the effective date of the final rule to report any new
highway-rail and/or pathway crossings to the Crossing Inventory. In
this final rule, FRA is providing additional flexibility in the
timeframe for reporting of new crossings to the Crossing Inventory.
Specifically, paragraph (a)(3) of this section requires primary
operating railroads to submit accurate and complete Inventory Forms (or
their electronic equivalent) to the Crossing Inventory for new highway-
rail and pathway crossings through which they operate no later than six
months after the crossing becomes operational or within twelve months
of the final rule's effective date, whichever occurs later.
    FRA received comments from the ICC and the Brotherhood of Railroad
Signalmen recommending that the timeframe for reporting new crossings
to the Crossing Inventory should be changed to 90 days from the date on
which a new crossing is established. In its comments, the ICC explained
that this recommended change would standardize the time period for
reporting new crossings and changes in crossing characteristics.
However, we retained the requirement to report new crossings within six
months of the date on which the crossing becomes operational in this
final rule consistent with the mandate of Section 20160. We also
extended the deadline for submitting crossing data for new highway-rail
and pathway crossings to the Crossing Inventory in the final rule to
provide additional time for railroads and State agencies to modify
existing reporting systems or to develop new systems. This initial
extended reporting period applies to the submission of all new crossing
data to the Crossing

Inventory, regardless of whether the crossing data is submitted
electronically or by hard-copy.
    FRA also received comments from the Iowa Department of
Transportation recommending not adding new crossings to the Crossing
Inventory unless railroads and State agencies have submitted crossing
data. However, this final rule implements the statutory mandate in
Section 20160 to issue regulations requiring railroads to report
current information about new crossings through which they operate.
While DOT may issue regulations in the future that address State
reporting of public highway-rail and pathway crossing data to the
Crossing Inventory, this final rule does not require State agencies to
submit crossing data to the Crossing Inventory for new crossings.
Therefore, paragraph (a)(3) requires primary operating railroads to
submit accurate and complete Inventory Forms (or their electronic
equivalent) to the Crossing Inventory for new crossings through which
they operate. However, FRA strongly encourages primary operating
railroads to work with State agencies to obtain crossing data the State
maintains.
    Consistent with the addition of paragraph (b) to Sec.  234.405 as
applied to previously unreported crossings (discussed above), FRA added
a new paragraph (b) to this section in the final rule to address the
situation in which multiple operating railroads operate trains on
separate tracks through the same highway-rail or pathway crossing.
Paragraph (b) requires multiple operating railroads that operate on
separate tracks through the same highway-rail or pathway crossing to
assume responsibility for reporting certain crossing data directly to
the Crossing Inventory consistent with the Inventory Guide. This
crossing data includes railroad-specific train count and train speed
data, as well as railroad-specific location data such as the milepost
location, railroad subdivision, and railroad division data. However,
the primary operating railroad is still required to submit an accurate
and complete Inventory Form, or its electronic equivalent, to the
Crossing Inventory for the crossing, which includes train count and
train speed data that is specifically related to the primary operating
railroad's train operations.
    Consistent with paragraph (c) of Sec.  234.405 as applied to
previously unreported crossings, paragraph (c) of this section
establishes a requirement that each operating railroad must provide
written notification to the FRA Associate Administrator, if the primary
operating railroad has not submitted a completed Inventory Form (or its
electronic equivalent) to the Crossing Inventory for a new highway-rail
or pathway crossing. Again, this provision is intended to implement
paragraph (a)(2) of Section 20160, which states that each railroad
carrier must ensure another railroad carrier that operates through the
crossing submits crossing data for new highway-rail and pathway
crossings to the Crossing Inventory.
    Unless the primary operating railroad has provided a written
statement to the FRA Associate Administrator, in accordance with
paragraph (d) of this section, certifying that it requested State-
maintained crossing data from the appropriate State agency responsible
for maintaining highway-rail and pathway crossing data which the State
agency has not yet provided, other operating railroads that operate
through the new crossing will need to monitor the Crossing Inventory to
confirm that the primary operating railroad has timely submitted a
completed Inventory Form (or its electronic equivalent) to the Crossing
Inventory for the crossing. If an operating railroad discovers that the
primary operating railroad has not submitted a completed Inventory Form
(or its electronic equivalent) to the Crossing Inventory for a new
highway-rail or pathway crossing (which is not a temporary crossing)
within six months of the date on which the crossing became operational
or March 7, 2016, whichever occurs later, the operating railroad must
provide written notification of this oversight to the FRA Associate
Administrator. This written notification must include, at a minimum,
the latitudinal and longitudinal coordinates of the new highway-rail or
pathway crossing. If the operating railroad fails to provide written
notification of this oversight to the FRA Associate Administrator, FRA
may assess civil penalties against each operating railroad (including
the primary operating railroad) that operates through a new crossing,
which was not timely reported to the Crossing Inventory.
    The AAR submitted comments expressing concern that the written
notification requirement in paragraph (c) of this section would create
confusion. In its comments, the AAR further asserted that a secondary
railroad would have no way of knowing when a primary operating railroad
opens a crossing because the primary operating railroad is not required
to share this information. However, the installation of new highway-
rail and pathway crossings necessarily involves coordination between
the primary operating railroad and all other operating railroads that
operate trains through the crossing. At the very least, train crews for
each operating railroad must be notified of changes in railroad
operations that are necessary to accommodate construction work, such as
slow orders. When the highway-rail or pathway crossing is complete,
train crews will also need to be notified of required actions they must
take upon approach to the crossing, such as sounding the locomotive
horn to provide an audible warning for highway users. Therefore, it is
reasonable to expect that each operating railroad will receive
notification from the crossing owner whenever a new highway-rail or
pathway crossing becomes operational. Upon receiving notification that
a new highway-rail or pathway crossing has become operational, each
operating railroad will need to monitor the Crossing Inventory to
ensure that the new crossing is timely reported by the primary
operating railroad.
    Consistent with the addition of paragraph (d) to Sec.  234.405
regarding the reporting of previously unreported crossings to the
Crossing Inventory, FRA added a new paragraph (d) to this section
allowing primary operating railroads to provide written notification
that they have requested, and have not received, certain crossing data
from the appropriate State agency responsible for maintaining highway-
rail and pathway crossing data. If written notification is provided
under this provision, we will not hold the primary operating railroad
responsible for failing to submit the crossing data it has requested
from the appropriate State agency and not received. In addition, we
will not require the other operating railroads that operate through the
crossing to notify FRA that a completed Inventory Form (or its
electronic equivalent) has not been submitted for the new crossing.
However, the primary operating railroad must submit the requested
crossing data to the Crossing Inventory within 60 days of receipt from
the appropriate State agency.
Section 234.409 Submission of Periodic Updates to the Crossing
Inventory
    As proposed, provisions related to the periodic updating of
information submitted to the Crossing Inventory were contained in
paragraph (c) of proposed Sec.  234.405. FRA moved these provisions to
Sec.  234.409 in this final rule and revised them to reflect
consideration of comments received. We also made minor revisions to
this section to include specific references to highway-rail and pathway
crossings to reflect the two basic categories of

crossings for which data will be collected in the Crossing Inventory.
This section is intended to implement paragraph (b)(1) of Section
20160, which requires railroad carriers to periodically report current
information, including information about warning devices and signage as
specified by the Secretary, to the Crossing Inventory concerning
crossings through which they operate.
    As proposed in Sec.  234.405(c)(1), Sec.  234.409(a) of this final
rule requires each primary operating railroad to periodically update
existing crossing data in the Crossing Inventory for each highway-rail
and pathway crossing through which it operates consistent with the
Inventory Guide. However, we do not require submission of these
periodic updates for closed or grade-separated highway-rail and pathway
crossings. FRA has determined that changes in crossing characteristics
do not appear to have a significant impact on existing risk levels at
closed or grade-separated crossings. Once the highway-rail or pathway
crossing has been closed or grade-separated, there will not be any
changes at the crossing (other than re-opening the crossing) that have
a significant impact on crossing safety.
    Paragraph (a) requires each primary operating railroad to submit
up-to-date and accurate crossing data on a periodic basis to the
Crossing Inventory for each highway-rail and pathway crossing (except
grade-separated or closed crossings) through which it operates
consistent with the Inventory Guide. The primary operating railroad
must submit updated crossing data at least every three years from the
date of the most recent submission of data by the primary operating
railroad (or on behalf of the primary operating railroad) for the
crossing or March 7, 2016, whichever occurs later. For hard-copy
submissions to the Crossing Inventory, this three-year period is
measured from the date on which the most recent submission of data for
the crossing was mailed to the Crossing Inventory by the primary
operating railroad (or on behalf of the primary operating railroad).
However, FRA recommends that the primary operating railroad submit an
update to the Crossing Inventory as soon as practicable, if there is
any significant change in train count or train speed data, as opposed
to waiting for the next required three-year periodic update to report
the change.
    FRA extended the deadline for submitting initial periodic updates
for existing highway-rail and pathway crossings to the Crossing
Inventory in this final rule to three years from the last submittal or
12 months after the final rule effective date, whichever is later (the
NPRM provided for updates within three years from the last submittal or
six months after effective date of final rule) to provide additional
time for primary operating railroads to implement necessary changes to
their crossing databases to ensure compatibility with FRA's new Web-
based application for the Grade Crossing Inventory System (GCIS)
system. We made this revision in response to comments requesting
additional time within which to comply with the final rule. FDOT
submitted comments recommending that the final rule should allow for at
least a six-month period for State agencies and railroads to address
issues that will result from subjecting existing records to new
validation rules. On the other hand, the AAR submitted comments
recommending that the final rule effective date should be at least
three years from the date on which the final rule is published to
accommodate modifications that railroads and State agencies will need
to make to crossing databases they maintain to comply with the
reporting and updating requirements of this rule.
    FRA notes that primary operating railroads will have at least 14
months from the publication date of this final rule to prepare for the
submission of their initial required periodic updates to the Crossing
Inventory. Moreover, the deadline for submitting required periodic
updates is directly related to the date on which the primary operating
railroad last submitted data for the crossing to the Crossing
Inventory. Therefore, railroads that have recently submitted updates to
their crossing data in the Crossing Inventory will have close to three
years to prepare for the submission of their initial required periodic
updates.
    FRA received comments from LaDOTD recommending that the final rule
require submission of periodic updates on a five-year cycle, as opposed
to every three years. However, LaDOTD did not submit any evidence to
support the longer reporting period. On the other hand, the CPUC
submitted comments recommending that we should encourage railroads to
provide updates to train counts and train speed when they make
significant operational changes. In making this recommendation, the
CPUC noted that errors in the average count or maximum speed of trains
can result in significant inaccuracies, especially when used in
conjunction with the DOT Accident Prediction Formula.
    In the absence of evidence that a three-year cycle for the
submission of periodic updates to the Crossing Inventory will pose an
undue burden on primary operating railroads, FRA retained the
requirement to submit periodic updates at least every three years.
Section 20160 directs the Secretary to establish requirements for the
periodic updating of the Crossing Inventory on either an annual basis
or as otherwise specified by the Secretary. The three-year cycle for
submitting periodic updates to the Crossing Inventory, which paragraph
(a) of this section established, is intended to balance the updating
burden imposed on primary operating railroads with the benefits derived
from having up-to-date and accurate crossing data in the Crossing
Inventory, such as improved grade crossing safety analyses.
    FRA also received comments from NCDOT recommending that the final
rule be revised to require submission of periodic updates to the
Crossing Inventory for grade-separated crossings at least every six
years (or possibly every 12 years) to coincide with the three-year
periodic updates that must be submitted for highway-rail and pathway
grade crossings. Because FRA has found that changes in crossing
characteristics do not appear to have a significant impact on existing
risk levels at grade-separated crossings, we did not adopt this
recommendation.
    FRA received a number of comments recommending who FRA should
consider the appropriate party required to submit periodic updates of
crossing data to the Crossing Inventory. The BRS submitted comments
expressing strong support for requiring the primary operating railroad
to submit updated crossing data to the Crossing Inventory, especially
because FRA has noted its lack of oversight authority with regard to
the reporting of crossing data by State agencies. FDOT submitted
comments recommending that railroads be required to coordinate with
State agencies to obtain State-maintained crossing information for data
fields that States are being asked to update on a voluntary basis, as
reflected in Appendix B to the Inventory Guide. NCDOT submitted
comments recommending that FRA ask State agencies to voluntarily submit
crossing data to the Crossing Inventory for data fields on the
Inventory Form historically completed by State agencies within three to
six months after the primary operating railroad submits crossing data
to the Crossing Inventory. Tavla Solutions submitted comments
recommending that the GCIS system be designed to facilitate electronic
communication with State agencies, especially with respect to data
fields on the Inventory Form that have

traditionally completed by State agencies.
    The ICC submitted comments recommending that FRA require railroads
to continue to provide crossing data updates to the appropriate State
agencies for incorporation into the Crossing Inventory. In the
alternative, the ICC noted that a mechanism could be developed to
provide notice to the appropriate State agency that the primary
operating railroad has submitted an update to the Crossing Inventory.
While noting that a similar mechanism could be developed to notify the
primary operating railroad whenever State agencies submit updated
crossing data to the Crossing Inventory, the ICC asserted that this
process would be preferable to that outlined in the proposed rule
because the appropriate State agency will know whenever a new crossing
is added to the Crossing Inventory.
    FRA also received comments from the CPUC recommending sending
notifications to the appropriate State agency with jurisdiction over
grade crossing safety and the operating railroad(s) responsible for
submitting crossing data to the Crossing Inventory whenever updated
data is posted to the Crossing Inventory. In the alternative, the CPUC
recommended that the GCIS system should allow Crossing Inventory users
to generate reports that show all changes made during a specified time
period, such as the last month, quarter, or year.
    After consideration of these comments, FRA has decided to retain
the process in the proposed rule wherein the primary operating railroad
(and, as further discussed below, other operating railroads) submit
updated crossing data directly to the Crossing Inventory. In response
to comments the BRS submitted, although FRA previously stated it did
not have authority to require States to report, upon further
consideration FRA believes that Section 20160 does give the Secretary
authority to require States to report and update highway-rail and
pathway crossing information in the Crossing Inventory. Therefore, DOT
may issue regulations in the future that address State reporting to the
Crossing Inventory, which are based upon this existing statutory
mandate. However, in the interim, FRA encourages primary operating
railroads to send copies of their crossing data to the appropriate
State agency responsible for grade crossing safety when they submit
crossing data to the Crossing Inventory. As reflected in Appendix B to
the Inventory Guide, data fields on the Inventory Form that State
agencies have historically completed have generally been assigned to
State agencies for updating on a voluntary basis. Therefore, State
agencies are encouraged to submit updates to these data fields at least
every three years.
    We have not designed the current version of the GCIS system to
provide email notification or to facilitate electronic communication
between State agencies and the primary operating railroad whenever
crossing data related to a highway-rail or pathway crossing is
submitted to the Crossing Inventory. However, we have configured the
GCIS system to allow Crossing Inventory users to download crossing data
for multiple crossings or individual crossings. This functionality will
allow State agencies and operating railroads to verify that new or
previously unreported crossings have been reported to the Crossing
Inventory and that required updates have been submitted by the primary
operating railroad. In addition, the GCIS system has been designed to
allow Crossing Inventory users to generate reports showing all changes
that have been made in the Crossing Inventory during a specified time
period.
    The CPUC submitted comments recommending that there be a process
for resolving conflicts that may arise due to State agencies and
railroads providing conflicting data for the same data field. To
address this potential concern, a private citizen submitted comments
proposing that the Crossing Inventory be designed to reflect two
entries for data fields for which conflicting data was submitted--one
entry for data the primary operating railroad submits and the other
entry for data the State submits. The commenter believes that by
adopting this approach, the Crossing Inventory could flag conflicting
data and record the date on which the data was submitted to the
Crossing Inventory, but not allow the crossing data to be overridden by
another entity.
    The AAR submitted comments recommending that FRA address the
possibility that one entity could incorrectly modify or nullify a data
field assigned to another entity for updating purposes. FRA also
received comments from a private citizen, the Iowa Department of
Transportation, the Minnesota Department of Transportation, and NCDOT
recommending that railroads be prohibited from overwriting existing
highway data and State agencies be prohibited from overwriting existing
railroad data in the Crossing Inventory. In addition, LaDOTD
recommended that there be a process in place for resolving
discrepancies between States and railroads.
    In response to these comments, we revised Appendix B to the
Inventory Guide to identify which data fields on the Inventory Form
must be updated by the primary operating railroad for purposes of the
three-year periodic update and which data fields State agencies are
being asked to update on a voluntary basis. As a result, there should
be fewer potential conflicts between the State agency and the primary
operating railroad regarding the appropriate data for a specific data
field since the entity responsible for updating the data field is
ultimately responsible for ensuring the accuracy of the data submitted
for that field. While the historical records associated with each
highway-rail and pathway crossing will reflect changes in data that are
submitted to the Crossing Inventory by the State agency and the primary
operating railroad (and, in some cases, each operating railroad), the
GCIS system has not been designed to reflect separate entries for an
individual data field on the Inventory Form. Nor has the GCIS system
been designed to prohibit entities that are authorized to submit
crossing data to the Crossing Inventory from submitting revised data
for existing crossing records. However, in the event that disputes
arise over the accuracy of crossing data submitted to the Crossing
Inventory, FRA will provide assistance upon request.
    Consistent with FRA's addition of paragraph (b) to Sec. Sec.
234.405 and 234.407, we added paragraph (b) to this section to address
submission of periodic updates by multiple operating railroads that
operate trains on separate tracks through the same highway-rail or
pathway crossing. For highway-rail and pathway crossings where multiple
operating railroads operate trains on separate tracks through the
crossing, paragraph (b) requires each operating railroad to
periodically submit up-to-date and accurate crossing data for certain
specified data fields on the Inventory Form to the Crossing Inventory
consistent with the Inventory Guide. These data fields include
railroad-specific train count and train speed data fields, as well as
the milepost location, railroad subdivision, and railroad division data
fields. Each operating railroad must submit these periodic updates at
least every three years from the date of the most recent submission of
data for the crossing by that operating railroad, or by March 7, 2016,
whichever occurs later. For hard-copy submissions to Crossing
Inventory, this three-year period will be measured from mailing date of
the most recent

submission of data by the operating railroad (or on behalf of the
operating railroad). However, if there is a significant change in train
count or train speed data, FRA recommends that the operating railroad
submit an update to the Crossing Inventory, as opposed to waiting for
the next required three-year periodic update.
    Consistent with paragraph (c) of Sec. Sec.  234.405 and 234.407,
paragraph (c) of this section establishes a requirement that each
operating railroad must provide written notification to the FRA
Associate Administrator if the primary operating railroad fails to
timely submit up-to-date crossing data to the Crossing Inventory for a
highway-rail or pathway crossing (other than a grade-separated
crossing) through which it operates. This provision is intended to
implement paragraph (b)(1)(B) of Section 20160, which states that each
railroad carrier must ensure updated crossing information is
periodically submitted to the Crossing Inventory by another railroad
carrier that operates through the crossing.
    If the primary operating railroad fails to submit up-to-date
crossing data to the Crossing Inventory for a highway-rail grade
crossing or pathway grade crossing within three years from the date of
its last submission of crossing data to the Crossing Inventory for that
crossing or March 7, 2016, whichever occurs later, each operating
railroad that operates through the crossing must provide written
notification of this oversight to the FRA Associate Administrator. This
written notification must include, at a minimum, the Inventory Number
for each highway-rail and pathway crossing through which it operates
that was not timely updated by the primary operating railroad.
Section 234.411 Changes Requiring Submission of Updated Information to
the Crossing Inventory
    Paragraph (d) of proposed Sec.  234.405 addressed changes requiring
submission of updated information to the Crossing Inventory. In this
final rule, FRA moved those provisions to Sec.  234.411. Specifically,
proposed Sec.  234.405(d) is now Sec.  234.411(a) and proposed Sec.
234.405(e) is now paragraphs (b) and (c) of this section.
    Paragraph (a) contains updating requirements for the sale of a
highway-rail or pathway crossing. This provision implements paragraph
(b)(2) of Section 20160, which requires each railroad carrier that
sells a crossing or any part of a crossing to report to the Secretary
current information concerning the change in ownership of the crossing
within three months of the date of sale, or as otherwise specified in
regulations.
    Paragraph (a) requires any railroad that sells all, or part, of a
highway-rail or pathway crossing to submit updated ownership data to
the Crossing Inventory within three months of the date of sale or March
7, 2016, whichever occurs later, in accordance with Sec.  234.403. In
this final rule, FRA has provided additional flexibility in the
reporting of crossing sales by extending the reporting deadline to the
latter of three months after the date of sale or 12 months after the
final rule effective date. This will provide additional time for
operating railroads to implement necessary changes to their crossing
databases prior to the submission of updated crossing ownership data to
the Crossing Inventory.
    FRA received comments from Denver RTD recommending that the final
rule confirm that the ``date of sale'' referenced in paragraph (a) of
this section refers to the date title passes, not the date a purchase
and sale agreement has been executed. In response to this comment, FRA
confirms that the ``date of sale'' in paragraph (a) of this section
means the date title is transferred.
    A railroad that sells all, or part, of a highway-rail or pathway
crossing should consult the Inventory Guide for guidance on reporting
the crossing sale to the Crossing Inventory. In addition, FRA strongly
recommends that the primary operating railroad submit updated crossing
data for all of the data fields Appendix B to the Inventory Guide
assigns to railroads within six months of the date on which the
crossing was sold.
    The rule requires the primary operating railroad to submit a
periodic update to the Crossing Inventory for the recently acquired
highway-rail or pathway crossing to the Crossing Inventory under Sec.
234.409 within three years of the date on which the last periodic
update for the crossing was submitted to the Crossing Inventory. The
report of crossing sale by the previous owner does not constitute a
periodic update and therefore cannot be used for purposes of
determining the date on which the next periodic update required by
Sec.  234.409 will become due for the recently acquired highway-rail or
pathway crossing.
    Paragraph (b) of this section contains the reporting requirements
applicable to the closure of a crossing (these requirements were
included in proposed Sec.  234.405(e) of the NPRM). When a highway-rail
or pathway crossing is closed, the primary operating railroad is
required to submit an Inventory Form (or its electronic equivalent) to
the Crossing Inventory that reflects the closure of the crossing within
three months of the date on which the crossing is closed or March 7,
2016, whichever occurs later. We extended this deadline from the NPRM
proposed three month deadline to allow reporting up to 12 months after
the final rule's effective date. This will provide additional time for
primary operating railroads to implement necessary changes to their
crossings databases prior to the submission of updated crossing data to
the Crossing Inventory. The primary operating railroad should consult
the Inventory Guide for guidance on reporting the closure of a highway-
rail or pathway crossing to the Crossing Inventory.
    Paragraph (c) in the final rule requires the primary operating
railroad to submit an Inventory Form (or its electronic equivalent) to
the Crossing Inventory which reflects updated crossing information
consistent with the Inventory Guide and Sec.  234.403, when there is a
change in crossing surface or a change in warning device at a public
highway-rail grade crossing within three months of the date the change
was implemented. This is a change from the NPRM proposed requirement
which would have required the reporting of a change in crossing surface
or change in warning device at any public or private highway-rail or
pathway crossing to the Crossing Inventory. The scope of this proposed
requirement has been limited in the final rule because railroads are
not required to submit data on crossing surface or crossing warning
devices for private highway-rail grade crossings, pathway crossings, or
grade-separated crossings. However, FRA strongly encourages railroads
to voluntarily report data on train-activated warning devices, crossing
signs, and crossing surface at private highway-rail grade crossings and
pathway crossings to the Crossing Inventory. The National
Transportation Safety Board (NTSB) recently issued Safety
Recommendation R-14-48 that FRA should require equivalent levels of
reporting for both public and private highway-rail grade crossings. FRA
also received comments in support of requiring railroads to complete
the entire Inventory Form for private highway-rail grade and pathway
crossings. Therefore, FRA may issue regulations in the future that
would require railroads to provide additional data on private highway-
rail and pathway crossings to the Crossing Inventory.
    Paragraph (c)(2) defines a ``change in warning device'' as ``the
addition or removal of a crossbuck, yield or stop sign, flashing
lights, or gates at a public

highway-rail grade crossing.'' Consistent with the NPRM, a ``change in
warning device'' means a change in the type of warning device installed
at the crossing as opposed to a modification of an existing crossing
device or replacement of a damaged or missing warning device. For
example, the addition of cantilevered lights to a crossing that is
already equipped with post-mounted flashing lights would be considered
a ``change in warning device'' for the purpose of this provision. The
installation of two-quadrant, three-quadrant, or four-quadrant gate
systems where none were previously installed, or where existing warning
systems are upgraded, would also be considered a ``change in warning
device'' for the purpose of this provision. However, a change from
incandescent to LED flashing lights would not be considered a ``change
in warning device'' for the purpose of this provision.
    Prior to the submission of updated information concerning a change
in crossing surface or change in warning device, the primary operating
railroad should consult the Inventory Guide for guidance. FRA revised
the Inventory Guide to clarify that, when there has been a change in
crossing surface (such as replacing an asphalt crossing surface with a
concrete crossing surface) or a change in warning device at a public
highway-rail grade crossing, the primary operating railroad must update
all data fields in Parts II and III of the Inventory Form. However, as
stated in paragraph (c)(2), primary operating railroads are not
required to report changes in warning devices to the Crossing Inventory
that will be in place for a period not to exceed six months.
    In the preamble to the proposed rule, FRA solicited comments on the
proposed requirement to report changes in crossing surface and changes
in warning devices to the Crossing Inventory. The AAR submitted
comments in support of the proposed requirement to report changes in
crossing surface and changes in warning devices, as well as crossing
closures, to the Crossing Inventory within three months of the date on
which either the change is made or the crossing is closed. The CPUC
submitted comments recommending that the proposed requirement to report
changes in crossing surface and changes in warning devices be revised
to require the primary operating railroad to report these changes to
the appropriate State agency within 30 days. The CPUC then recommended
that the State agency should be given 60 days within which to report
the change to the Crossing Inventory. FRA also received comments from
the ICC recommending that the reporting of changes to crossing
characteristics be expanded to include changes to any data field
element that feeds into the national risk assessment tool (PCAPS)
utilized by FRA.
    On the other hand, FRA received comments from NCDOT recommending
that the final rule be revised to provide a six-month timeframe for the
reporting of crossing closures, changes in crossing surface, and
changes in warning device at highway-rail and pathway crossings. In
making this recommendation, NCDOT asserted that the proposed three-
month timeframe will not provide sufficient time to generate the
required reports for the Crossing Inventory and may result in an undue
financial burden, especially for State agencies that agree to submit
crossing data to the Crossing Inventory on behalf of operating
railroads. In addition, Denver RTD submitted comments recommending that
the final rule be revised so that FRA will not hold the primary
operating railroad responsible for failing to timely report changes in
crossing characteristics if the appropriate State agency fails to
notify the primary operating railroad of a change that has been made to
the crossing.
    After considering these comments, FRA decided to retain the
requirement that the primary operating railroad must report changes in
crossing surface and changes in warning devices directly to the
Crossing Inventory within three months. We retained the three-month
period for reporting changes in crossing surface and changes in warning
devices by the primary operating railroad in the final rule to be
consistent with the requirement in paragraph (a) of this section to
report the sale of all, or part, of a highway-rail or pathway crossing
to the Crossing Inventory within three months. FRA notes that changes
in crossing surface and changes in warning devices are generally
planned well in advance and require coordination between the crossing
owner and the State agency during the planning process. Therefore, we
recommend that State agencies which agree to submit crossing data on
behalf of operating railroads include an additional step in their
planning processes for the reporting of changes in crossing surface and
changes in warning devices to the Crossing Inventory to ensure the
timely reporting of these changes.
    With regard to the concern expressed by Denver RTD related to FRA
enforcement activity in situations in which a State or local government
has installed or removed a yield or stop sign at a public highway-rail
grade crossing without notifying the primary operating railroad, FRA
has prosecutorial discretion to forgo enforcement if the primary
operating railroad fails to submit updated crossing data to the