[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Proposed Rules]
[Pages 11992-12012]
[FR Doc No: 2011-4759]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

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

49 CFR Part 234

RIN 2130-AC12

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

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing amendments to its primary regulations on
grade crossing safety. The major amendments proposed would require a
railroad that dispatches a train through a public or private highway-
rail or pathway grade crossing to establish and maintain a system that
allows a member of the public to call the railroad and report an
emergency or other unsafe condition at the crossing. Upon receiving
such a report, the railroad would be required to warn all trains
authorized to operate through the crossing of the reported unsafe
condition, inform local law enforcement of the reported unsafe
condition, and either investigate the report itself or request that the
railroad with maintenance responsibility for the crossing investigate
the report. If the report is substantiated, the railroad with
maintenance responsibility for the crossing would be required to take
certain actions to remedy the condition found.

DATES: Written comments must be received by May 3, 2011. Comments
received after that date will be considered to the extent possible
without incurring additional expenses or delays.
    FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to May 3, 2011, one will be scheduled, and
FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0041 may
be submitted by any of the following methods:
     Online: Comments should be filed at the Federal
eRulemaking Portal, http://www.regulations.gov. Follow the online
instructions for submitting comments.

     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays.

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

Table of Contents for Supplementary Information

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

I. Statutory Background

    The proposed rule is intended specifically to help implement Sec.
205 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-
432, Division A, which was enacted October 16, 2008, and generally to
increase safety at highway-rail and pathway grade crossings. See 49
U.S.C. 20152, Notification of grade crossing problems, and definitions
in proposed Sec.  234.301. Sec. 205 of RSIA mandates that the Secretary
of Transportation (Secretary) require certain railroad carriers
(railroads) to take a series of specified actions related to setting up
and using systems for the public to notify the dispatching railroad of
grade crossing problems. A separate statutory provision, 49 U.S.C.
20103, gives the Secretary very broad authority to prescribe rail
safety regulations and issue rail safety orders pursuant to notice-and-
comment procedures. The Secretary has delegated the responsibility to
carry out both Sec. 205 of RSIA and 49 U.S.C. 20103 to the
Administrator of FRA. 49 CFR 1.49(m), (oo). Essentially, Sec. 205 of
RSIA imposes a mandate requiring FRA as the Secretary's delegate to
prescribe regulations or orders imposing the requirements specified in
that section; FRA has chosen to require the railroads to set up and use
a notification program specified by Sec. 205 of RSIA by conducting a
rulemaking and prescribing a regulation.
    In particular, under Sec. 205 of RSIA, FRA is to require railroads
to ``establish and maintain a toll-free telephone service for rights-
of-way over which the railroad dispatches trains'' through ``the grade
crossing of railroad trains on those rights-of-way and public or
private roads,'' ``to directly receive calls reporting'' any of three
types of unsafe conditions at the grade crossings or other safety-
related information involving such a grade crossing. Under that
section, the three types of reportable unsafe conditions are as
follows: (1) Malfunctions of warning signals, crossing gates, and other
devices intended to promote safety at the highway-rail grade crossing;
(2) disabled vehicles blocking railroad tracks at such grade crossings;
and (3) obstructions to the view of a pedestrian or a vehicle operator
for a reasonable distance in either direction of a train's approach to
such a grade crossing. To the extent that the requirements proposed in
this NPRM exceed the requirements specified by Sec. 205 of RSIA, such
as covering pathway grade crossings, FRA relies primarily upon its
general safety rulemaking authority under 49 U.S.C. 20103.
    In addition to specifying the requirement that the Secretary must
impose on dispatching railroads to establish a telephonic notification
system, Sec. 205 of RSIA includes a series of additional specifications
to be reflected in FRA's regulation. When a railroad receives a report
of a malfunction of a warning signal, crossing gate, and/or other
device intended to promote safety at the grade crossing or a report of
a disabled vehicle blocking a railroad track at a grade crossing
through which the railroad dispatches a train, the dispatching railroad
must immediately contact trains operating near the grade crossing to
warn them of the malfunctioning device or disabled vehicle. After
contacting the trains as necessary, the dispatching railroad must
contact, as necessary, appropriate public safety officials having
jurisdiction over the grade crossing to provide them with the
information necessary for them to direct traffic, assist in the removal
of the disabled vehicle, or carry out other activities. When a railroad
receives a report of either obstructions to the view of a pedestrian or
a vehicle operator for a reasonable distance in either direction of a
train's approach to the grade crossing or other safety information
involving such grade crossings, the railroad must timely investigate
the report, remove the obstruction if possible, or correct the unsafe
condition.
    Further, under Sec. 205 of RSIA, FRA must require that the owner of
the track at the grade crossing ``ensure the placement * * * of
appropriately located signs'' bearing, at a minimum, a toll-free
telephone number to be used by the public for placing calls to report
unsafe conditions at the crossing to the railroad that dispatches
trains on that right-of-way through the crossing, an explanation of the
purpose of that toll-free telephone number, and the grade crossing
number assigned to that crossing by the U.S. Department of
Transportation (DOT) National Crossing Inventory File.
    Finally, Sec. 205 of RSIA allows FRA to waive the requirement in
the mandated rule that the telephone service be toll-free for Class II
and Class III rail carriers if the agency determines that the toll-free
service would be cost prohibitive or unnecessary.

II. History of Accidents Relevant to This Rulemaking

    There are approximately 221,000 public and private at-grade
highway-rail and pathway grade crossings in the United States. In other
words, the country has 221,000 locations where a collision can occur
between a train and a car, truck, or other motor vehicle, or a
pedestrian at any one time. Grade crossing collisions are among the
most challenging areas in FRA's efforts to reduce deaths and injuries
along the Nation's railroads. In fact, since 1997, grade crossing
collisions have caused more railroad-related fatalities per year than
any other single factor except for trespassing on railroad property.
During the 11-year period from 1999-2009, 2,306 collisions occurred at
highway-rail and pathway grade crossings where a vehicle was stalled or
sight obstructions were reported to FRA. See accident reporting
regulations at 49 CFR part 225 and 49 CFR 234.7.
    A train striking a pedestrian can result in serious injury or
death. Further, a collision between a train and a vehicle of any size
can be catastrophic. Serious injuries or deaths are far more likely to
occur with a collision between a train and a vehicle than with a
collision between two vehicles. While significant improvements have
been achieved over the last two decades, grade crossing collisions
still pose a significant public safety threat that can spiral beyond
the immediate impact of the vehicle and train.
    The derailment of a train as a result of a collision at the grade
crossing can have a disastrous effect on the train crew or even on an
entire community, especially if the derailment results in a release of
hazardous material that necessitates the evacuation of a neighborhood
or the community. Moreover, if a passenger train derails as a result of
a collision, the risk of injuries extends beyond the vehicle occupants
to the crew and passengers of the train. This was the case in 1999 in
Bourbonnais, Illinois, when a National Railroad Passenger Corporation
(Amtrak) passenger train struck a truck loaded with steel at a highway-
rail grade crossing. Almost the entire train derailed, causing 11
deaths and 131 injuries to the passengers and crew of the train.
    Other vehicles and pedestrians in the vicinity of a highway-rail or
pathway grade crossing collision can also be at grave risk. This was
the scenario in 1993 when an Amtrak passenger train collided with a
gasoline tanker truck at a highway-rail grade crossing in Ft.
Lauderdale, Florida. The truck driver was attempting to cross through a
grade crossing where traffic was congested. The tanker truck was
punctured when it was struck by the Amtrak train; a fire erupted and
engulfed the truck and nine other vehicles near the crossing. The fire
killed the driver of the truck and five occupants of three stopped
vehicles near the grade crossing.

III. History of Emergency Notification Systems

A. In General

    The ability to provide an effective means for a member of the
public to immediately alert the railroad to an emergency situation or
other unsafe condition at a highway-rail or pathway grade crossing
enables the railroad and local public safety officials to respond
earlier to avert a serious incident. Currently, all Class I railroads
have put in place some sort of means by which they can receive
notification from the public of any emergency or unsafe condition at
most of their grade crossings, whereas many regional and short line
railroads do not have any such kind of notification system in place.
The proposed rule would require certain railroads to implement such a
system, which this proposed rule calls an Emergency Notification System
(ENS), covering public and private highway-rail and pathway grade
crossings.

B. Various ENS Programs in the United States

    In 1983, the State government of Texas established the first toll-
free call-in program in the United States that has enabled the public
to notify a State call center of problems at the State's public
highway-rail grade crossings equipped with automated warning devices.
In the current Texas program, after receiving such a call, the Texas
call center operated by the Texas Department of Public Safety in turn
notifies the railroad involved. The call-in system requires that a sign
be posted at the highway-rail grade crossing with the crossing's unique
identifying number from the U.S. DOT National Crossing Inventory File,
as well as a toll-free telephone number. Texas's call center has a
dedicated computer with a modified inventory database that facilitates
the call recipient's identification of the relevant crossing and
railroad. The Center operator then calls the appropriate railroad and
relays the report of the problem. At last report the Texas system
handles more than 1,200 calls per month for the State's public
crossings, even though only those crossings equipped with active
warning devices are equipped with the signs containing the Center's
toll-free telephone number. It should be noted that if FRA adopts the
proposed rule, railroads using State programs for notification of
unsafe conditions at grade crossings, such as Texas's program, may no
longer comply with the regulation. However, a State would be allowed to
operate as a ``third-party telephone service'' as described in the
proposed rule as long as the program complies with all the conditions
specified.
    Following the successful establishment of this program in Texas,
and in part at the urging of FRA and the National Transportation Safety
Board (NTSB), our Nation's major railroads have voluntarily adopted
similar systems for the majority of their highway-rail and pathway
grade crossings, sometimes including all grade crossings, i.e., systems
not limited only to public highway-rail grade crossings or only to
those equipped with active warning devices. Unfortunately, more than
72,000 public and private highway-rail and pathway grade crossings
belonging to our Nation's short line and regional railroads are not
included. Many of these railroads do not have 24-hour operations and do
not have the resources to establish such a call-in program.
    In 1994, Congress directed FRA to conduct pilot projects in at
least two States to demonstrate the efficiency of such ``emergency
notification system'' programs covering highway-rail grade crossings
and to report to Congress on the results of the programs. Sec. 301,
``Emergency Notification of Grade Crossing Problems,'' of Public Law
103-440 (108 Stat. 4626). Initial efforts were spent in a cooperative
effort with the Texas Department of Emergency Management evaluating the
Texas system. Texas was designated one of the pilot States, and an
extensive list of software, hardware, and operating improvements was
developed. FRA prepared and implemented new software on an upgraded
system in 1999. Based on comments and suggestions, further improvements
were implemented in 2001 when the Texas call center operation was
transferred to the Texas Department of Public Safety.
    This 2001 version was modified for use by a 911 center in Clinton
County, Pennsylvania, with the participation of eight short line
railroads. A 30-month demonstration program was initiated in November
2001.
    In 2002, an agreement was reached with the Paducah & Louisville
Railroad to conduct an additional pilot project (the third). At the
time this was a

regional railroad with 24-hour operations and approximately 400 grade
crossings. FRA modified the program software to accommodate the
railroad's needs.
    Further, the 1994 Highway-Rail Crossing Safety Action Plan issued
by DOT recommended an automated telephone answering system for handling
telephone calls to report emergencies, malfunctions, and other safety-
related problems at highway-rail intersections. However, the automated
system proved to be unworkable, whereas the staffed systems were
successful.

C. FRA's 2006 Report to Congress

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

IV. Section-by-Section Analysis

Section 234.1 Scope

    FRA proposes to expand this part to include new subpart E,
Emergency Notification Systems for Reporting Unsafe Conditions at
Highway-Rail and Pathway Grade Crossings. For this reason, FRA proposes
to amend the description of the scope of the part, Sec.  234.1, by
inserting the following sentence: ``[t]his part also prescribes minimum
requirements that railroads establish a system for receiving toll-free
telephone calls from the public at large about unsafe conditions at
highway-rail and pathway grade crossings and taking certain actions in
response.'' Further, for readability of the section, FRA proposes to
designate the text of proposed Sec.  234.1 as two paragraphs, with
paragraph (b) consisting of the last sentence of current Sec.  234.1.

Section 234.3 Application and Responsibility for Compliance

    FRA also proposes to amend Sec.  234.3, Application. Currently,
that section, says that, except for Sec.  234.11 (which requires
certain States to file State-specific grade crossing safety action
plans), part 234 applies to all railroads with the exception of three
types. The first type of railroad not subject to part 234 is a railroad
that ``exclusively operates freight trains only on track which is not
part of the general railroad system of transportation.'' 49 CFR
234.3(a). This existing exception is intended to cover ``plant
railroads'' as defined in proposed Sec.  234.5, discussed below. The
second category of railroads not subject to part 234 is ``[r]apid
transit operations within an urban area that are not connected to the
general railroad system of transportation.'' 49 CFR 234.3(b). The third
category of railroads not subject to part 234 is each ``railroad that
operates passenger trains only on track inside an installation is
insular * * *.'' The term ``insular'' is explained in the rest of the
exception. 49 CFR 234.3(c).
    Proposed Sec.  234.3(a) would clarify that these same three
categories--(1) Plant railroads, (2) urban rapid transit operations not
connected to the general railroad system of transportation, and (3)
insular tourist, scenic, historic, and excursion railroads (tourist
railroads) that are not part of the general railroad system of
transportation--are exempt from the requirements of part 234. See 49
CFR part 209, app. A for a discussion of the term ``general railroad
system of transportation'' (general system). FRA's reasons for
excluding these three categories of railroads are policy or statutory.
FRA almost never exercises its statutory safety jurisdiction over plant
railroads as a matter of policy. FRA lacks statutory jurisdiction over
urban rapid transit operations not connected to the general system. See
49 U.S.C. 20102, 20103. As a matter of policy, FRA generally does not
exercise its statutory jurisdiction over tourist railroads that operate
only off the general system; however, part 234 is an existing example
of an FRA safety regulation that does apply to tourist railroads that
operate only off the general system but only if the tourist railroads
are noninsular, e.g., because they have a public highway-rail grade
crossing that is in use.
    In addition, proposed paragraph (b) of Sec.  234.3 explains that
even though a provision of part 234 is stated as requiring certain
action by a railroad, a railroad may not avoid fulfilling the
requirements of this part by using contractors or subcontractors. For
example, if a railroad uses a contractor to put up ENS signs required
by proposed Sec.  234.311, FRA will still enforce the provisions of
Sec.  234.311 to ensure that the proper signs have been posted and
maintained. FRA will hold the railroad liable for its contractor's or
subcontractor's failing to fulfill the requirements of this proposed
part.

Section 234.5 Definitions

    FRA proposes three amendments to the existing ``Definitions''
section for part 234. First, FRA proposes to amend part 234's existing
definition of ``credible report of system malfunction.'' Currently,
subpart C and proposed subpart E refer to ``credible reports of warning
system malfunctions'' rather than ``credible report of system
malfunction.'' To address this inconsistency, FRA proposes to replace
``credible report of system malfunction'' with ``credible report of
warning system malfunction'' in Sec.  234.5. Furthermore, as a minor
clarification within the definition of ``credible report of system
malfunction,'' FRA proposes to replace ``an identified highway-rail
crossing'' with ``an identified highway-rail grade crossing.''
``[H]ighway-rail crossing'' would be replaced with ``highway-rail grade
crossing'' because Subpart C was never intended to apply to grade-
separated highway-rail crossings because Subpart C deals only with

reports of warning system malfunctions and grade-separated highway-rail
crossings are not equipped with warning systems.
    Second, FRA proposes to add a definition of ``FRA.'' The term would
be an acronym meaning the Federal Railroad Administration of the U.S.
Department of Transportation.
    Finally, FRA proposes to add a definition of ``plant railroad.''
The term refers to a type of operation that has traditionally been
excluded from the application of FRA regulations because it is not part
of the general railroad system of transportation. There is a more
extensive explanation of the general railroad system of transportation
in appendix A to 49 CFR part 209, and it is explicitly defined there as
``the network of standard gage track over which goods may be
transported throughout the nation and passengers may travel between
cities and within metropolitan and suburban areas.''

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

    FRA proposes to amend part 234 by adding new subpart E, Emergency
Notification Systems for Reporting Unsafe Conditions at Highway-Rail
and Pathway Grade Crossings (proposed subpart E), which would include
Sec. Sec.  234.301-234.317.

Section 234.301 Definitions

    This proposed section contains definitions of terms used in
proposed subpart E, listed alphabetically without designations.
``Automated answering service'' means a type of answering service in
which a telephone call is answered by any means other than a human
being speaking live to the caller at the time the call is made.
Multiple provisions in proposed subpart E prohibit a railroad from
using an automated answering service to receive calls. See proposed
Sec. Sec.  234.303(a), 234.305(h)(2), 234.307(a), and 234.307(b)(2).
The rationale for this prohibition is FRA's belief that because in
certain scenarios, such as a disabled vehicle blocking the crossing,
time is of the essence, and speaking to a human being rather than a
machine or recording reduces the time required to initiate the
appropriate remedial action, thus improving the opportunity to avert a
collision. FRA is considering and seeks comment regarding setting forth
a maximum amount of time a caller must wait before a call is answered
by the railroad.
    ``Class II'' and ``Class III'' have the meanings assigned by
regulations of the Surface Transportation Board, which may be found at
49 CFR part 1201, General Instructions 1-1, Classification of carriers.
To ensure that the definitions of ``Class II'' and ``Class III'' as
used in this proposed subpart incorporate any changes that the Surface
Transportation Board may make after the publication of this proposed
subpart, FRA's definition includes any revision to the regulations as
applied by the Surface Transportation Board, which includes
modifications in the class threshold based on revenue deflator
adjustments.
    In certain scenarios the railroad that dispatches or otherwise
provides the authority for the movement of a train through a grade
crossing (such as movement on the mainline under yard limit authority)
is not the same railroad that has maintenance responsibility for that
crossing. To address this type of situation, FRA proposes to use the
terms ``dispatching railroad'' and ``maintaining railroad.''
``Dispatching railroad'' is defined as a railroad that dispatches or
otherwise provides the authority for the movement of one or more trains
through a highway-rail or pathway grade crossing. The definition of
``maintaining railroad'' is discussed below.
    To properly receive notification of unsafe conditions at grade
crossings, a railroad or group of railroads would be required to
implement a system that consists of multiple components. To refer to
the entire set of these various components, the term ``Emergency
Notification System'' or its abbreviation (``ENS'') is used.
Specifically, ``Emergency Notification System'' means a system in place
by which a railroad informs the public how to report an unsafe
condition at a highway-rail or pathway grade crossing and enables the
public to do so and receives, processes, and attends to reports of
unsafe conditions at highway-rail or pathway grade crossings. The
required components of an Emergency Notification System are as follows:
(1) Signs, placed and maintained at the grade crossings by the railroad
responsible for maintaining the crossing, that display the information
necessary for the public to report an unsafe condition at the grade
crossing to the railroad that dispatches trains through the crossing;
(2) the method that the dispatching railroad uses to receive and
process a telephone call reporting the unsafe condition; (3) the
remedial actions that the dispatching railroad takes to address the
report of the unsafe condition; (4) the remedial actions that the
maintaining railroad takes if the dispatching railroad does not have
maintenance responsibility; and (5) the recordkeeping conducted by the
railroad or railroads in response to the report of the unsafe condition
at the grade crossing. Although the word ``emergency'' is part of the
term ``Emergency Notification System,'' FRA does not intend to imply
that all reportable unsafe conditions are emergencies, i.e., conditions
that create an imminent hazard of death or injury to an individual or
damage to property. In other words, some reportable unsafe conditions
are not emergencies. The term ``Emergency Notification System'' is used
in part because of its use in the 1994 legislation and its use
colloquially.
    It may be noted that this proposed section lacks a proposed
definition of ``highway-rail grade crossing.'' Such a proposed
definition is unnecessary because the current definition in Sec.  234.5
applies to part 234 as a whole and would apply to proposed subpart E.
Existing Sec.  234.5 defines ``highway-rail grade crossing'' as ``a
location where a public highway, road, street, or private roadway,
including associated sidewalks and pathways crosses one or more
railroad tracks at grade.''
    ``Maintaining railroad'' means the owner of the track at the
highway-rail or a pathway grade crossing. If the track owner has
contracted out the responsibility to maintain the warning system or
track structure at a highway-rail or a pathway grade crossing, the
contractor is considered the ``maintaining railroad'' for the purposes
of this subpart. As mentioned previously, the railroad that dispatches
a train through a grade crossing and the railroad that maintains the
crossing may not necessarily be the same entity. To address this
scenario, FRA proposes a definition for ``maintaining railroad.''
    ``Pathway grade crossing'' means a pathway that has all of the
following characteristics: (1) It is explicitly authorized by a public
authority or a railroad; (2) it is dedicated for the use of
nonvehicular traffic, including pedestrians, bicyclists, and others;
(3) it is not associated with a public highway, road, or street, or a
private roadway; and (4) it crosses one or more railroad tracks at
grade. Sec. 205 of RSIA provides that the Secretary should require
railroads to provide for telephonic notification of safety problems at
``the grade crossing of railroad tracks on those rights-of-way and
public or private roads.'' 49 U.S.C. 20152(a)(1)(A) and references to
``such grade crossings'' in 49 U.S.C. 20152(a)(1)(B)-(D). In other
words, Sec. 205 of RSIA does not mention pathway grade crossings.
Section 2 of RSIA, however, defines ``crossing,'' as used in RSIA, as a
location, other than a location where one more railroad tracks

cross one or more railroad tracks, where--

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

122 Stat. 4848, 4849-50. Since the term ``crossing,'' as defined in
section 2 of RSIA, includes pathway grade crossings, proposed subpart E
will also include pathway grade crossings. Furthermore, during the 11-
year period from 1999-2009, 22 deaths and 13 injuries resulted from
accidents at pathway grade crossings. It is reasonable to expect that
an ENS system that includes pathway grade crossings would increase the
safety of pathway grade crossings by increasing the likelihood that the
public will notify railroads of unsafe conditions there and enable the
railroads to intervene in time to avert accidents at the crossings and
any resulting fatalities and injuries. Therefore, FRA believes that the
inclusion of pathway grade crossings in proposed subpart E is
``necessary'' for ``railroad safety'' within the meaning of 49 U.S.C.
20103.

    FRA recognizes that the definition of ``crossing'' from section 2
of RSIA includes public, private, and pathway crossings that are grade
separated; however, at this time FRA does not intend to expand part 234
and proposed subpart E to include grade-separated crossings. FRA
declines to include grade-separated crossings in the proposed rule
either because the unsafe conditions that an ENS addresses do not occur
at grade-separated crossings \1\ or because there is no clear,
unambiguous place to put an ENS sign at a grade-separated highway-rail
or pathway crossing; therefore, an ENS at grade-separated crossings
would not be effective to increase the safety of those crossings.
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    \1\ For example, warning system malfunctions do not occur at
grade-separated crossings because grade-separated crossings do not
have warning systems.
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Section 234.303 Telephonic Notification of Unsafe Conditions at
Highway-Rail or Pathway Grade Crossings

    Proposed Sec.  234.303(a) requires each railroad that dispatches a
train through a highway-rail or pathway grade crossing, or provides
authority for a train to traverse such a crossing, to set up a system
to directly receive telephonic notification of certain unsafe
conditions at the crossing. This proposed section would require these
dispatching railroads to establish and maintain a toll-free telephone
service by which the railroad can directly receive calls from the
public reporting any of the unsafe conditions listed in proposed Sec.
234.303(b) (with respect to highway-rail grade crossings) and Sec.
234.303(c) (with respect to pathway grade crossings).
    FRA recognizes that in certain scenarios there may be multiple
railroads dispatching trains on one or more tracks through one highway-
rail or pathway grade crossing. While FRA believes that an ENS should
include these types of crossings, it is not clear whether the
responsibility to receive reports of unsafe conditions at these types
of crossing should fall on one railroad or whether each railroad that
dispatches a train through the crossing should be responsible to
receive reports. FRA seeks comments on how to handle these types of
situations.
    The frequency with which a crossing is used does not determine
whether it is included in the system established pursuant to proposed
Sec.  234.301(a). FRA believes that it is important to provide an
immediate means to communicate a notice of an unsafe condition even at
grade crossings traversed infrequently. Imagine, for example, the
driver of a logging truck stuck at a seldom-used private crossing in
the Rocky Mountains with no knowledge of what actions to take or whom
to contact.
    The FRA Administrator, as the Secretary's delegate, has the
discretion to issue a waiver to a Class II or Class III railroad
relieving it from the requirement that the telephone number used be
toll-free. 49 U.S.C. 20152(b); 49 CFR 1.49. The Administrator may waive
the toll-free telephone service requirement for a Class II or Class III
railroad if the Administrator determines that the use of a toll-free
telephone service would be cost prohibitive or unnecessary. FRA's
procedures for seeking a waiver are at 49 CFR part 211 (e.g.,
Sec. Sec.  211.7, 211.9, and 211.41).
    A railroad that dispatches a train through a highway-rail or
pathway grade crossing or provides authority for a train to traverse
such a grade crossing must be able to directly receive calls through
the toll-free telephone service. ``Directly'' does not necessarily mean
that the railroad must be the first entity that receives the telephone
call when the toll-free service is used. However, ``directly'' does
mean that only a limited number of entities may be placed between the
caller reporting the unsafe condition(s) at the grade crossing and the
dispatching railroad. FRA proposes that only one entity may exist
between the caller and the railroad. This restriction is addressed
further in proposed Sec.  234.307. Regardless if an additional entity
is used, the railroad ultimately remains responsible for setting up and
using a system by which it can receive notification of unsafe
conditions at a grade crossing and take the appropriate action in
response to a notification. This responsibility is placed on the
railroad because it is in the best position to immediately contact and
warn the trains authorized to operate through the grade crossing about
which the report pertains.
    The four types of unsafe conditions at highway-rail grade crossings
that are to be reportable through the ENS system are set forth in
proposed Sec.  234.303(b). (Again, the four types of unsafe conditions
at pathway grade crossings that are to be reportable through the ENS
system are listed in proposed Sec.  234.303(c).) The first type of
reportable unsafe condition at a highway-rail grade crossing is a
warning system malfunction at the crossing. ``Warning system
malfunction,'' as defined in proposed Sec.  234.5, means an activation
failure, a partial activation, or a false activation of a highway-rail
grade crossing warning system. The terms ``activation failure,''
``partial activation,'' and ``false activation'' are all defined in
existing Sec.  234.5 as well.
    The second type of reportable unsafe condition at a highway-rail
grade crossing is a disabled vehicle or other obstruction blocking a
railroad track at the crossing. As mentioned in Section II of this
preamble, a significant number of collisions between a train and a
vehicle have occurred at highway-rail grade crossings due to a vehicle
blocking the railroad tracks at the crossing, with many of these
collisions resulting in injuries and fatalities. While FRA acknowledges
that not all of these incidents may have been prevented by the presence
of an ENS, such a system increases the likelihood that the dispatching
railroad will learn of the disabled vehicle in time to alert any trains
authorized to operate through that crossing, thus potentially averting
a collision and any resulting casualties. Further, other obstructions,
aside from a disabled vehicle, may block the tracks at a crossing and
create an unsafe condition that needs to be reported to the railroad.
For instance, as a result of a severe storm, a large tree may fall onto
the tracks at a highway-rail grade crossing, and if a railroad is not
alerted

about this unsafe condition, a train that is authorized to operate
through that crossing could collide with the downed tree, thus
potentially causing a derailment. Under Sec. 205 of RSIA, the second
category of unsafe conditions is a disabled vehicle blocking the tracks
at a grade crossing. To the extent that FRA's proposed rule requires
more than Sec. 205 of RSIA would have it require, the agency relies on
its general safety rulemaking authority.
    The third type of a reportable unsafe condition at a highway-rail
crossing is an obstruction to the view of a pedestrian or a vehicle
operator for a reasonable distance in either direction of a train's
approach to the crossing. FRA's Track Safety Standards provide that
``vegetation on railroad property which is on or immediately adjacent
to the roadbed shall be controlled so that it does not [o]bstruct
visibility of railroad signs and signals [a]t highway-rail grade
crossings.'' 49 CFR 213.7(b)(1) (Sec.  213.7(b)(1)). Proposed Sec.
234.303(b)(3) allows a member of the public to inform the railroad of
conditions at highway-rail grade crossings that may not fall under
Sec.  213.7(b)(1), but that, in the individual's opinion, present an
unsafe condition involving a sight obstruction at the crossing. FRA
seeks comment regarding what is a ``reasonable distance'' to determine
whether an obstruction to a pedestrian or vehicle operator's view of a
train's approach to a highway-rail grade crossing presents an unsafe
condition at the grade crossing.
    The final type of reportable unsafe condition at a highway-rail
grade crossing is any condition at the crossing that may be considered
unsafe and is not covered by Sec.  234.303(b)(1)-(3). A downed or
missing crossbuck sign illustrates the type of condition at a highway-
rail grade crossing that may be deemed unsafe, and therefore should be
reported to the railroad, but does not fall into one of the three other
categories. However, a downed or missing crossbuck sign is merely an
example and is not intended to be an exhaustive list of the various
conditions that may be considered unsafe under this catch-all
provision.
    Proposed Sec.  234.303(c) sets forth the four types of reportable
unsafe conditions at pathway grade crossings as opposed to highway-rail
grade crossings. These four types of reportable unsafe conditions at
pathway grade crossings are, essentially, the same as those for
highway-rail grade crossings, but, as detailed below, the four types of
reportable unsafe conditions at pathway grade crossings are not
described in the exact same words, and unlike the first type of report
for a highway-rail grade crossing, the first type of report for a
pathway grade crossing does not trigger the duty to address the report
in the manner prescribed by existing 49 CFR part 234, subpart C
(subpart C).
    The first type of reportable condition for a pathway grade crossing
is a failure of the active warning system at the pathway grade crossing
to perform as intended. Proposed Sec.  234.303(c)(1) does not use term
``warning system malfunction'' to refer to a failure of an active
warning system at a pathway grade crossing because, as defined in Sec.
234.5, a ``warning system malfunction'' is an activation failure,
partial activation, or false activation of the active warning system at
a highway-rail grade crossing, not a pathway grade crossing. Further,
``activation failure,'' ``partial activation,'' and ``false
activation'' are all defined in Sec.  234.5 and only apply to highway-
rail grade crossings. FRA has not proposed specific standards regarding
the maintenance and repair of active warning systems at pathway grade
crossings and does not intend to do so at this time. However, FRA does
intend to require that certain railroads provide the public with a
means to report when the active warning system at a pathway grade
crossing is not performing as intended and is creating an unsafe
condition at the crossing.
    While the term ``failure of the active warning system at the
pathway grade crossing to perform as intended'' as used in proposed
Sec.  234.303(c)(1) is not specifically defined, FRA believes that the
term sufficiently addresses the scenarios in which an active warning
system at a pathway grade crossing malfunctions and poses a significant
safety risk to a pathway grade crossing user. FRA seeks comment
regarding the types of failures of an active warning system at a
pathway grade crossing that may differ from failures of active warning
systems at highway-rail grade crossings. Additionally, FRA seeks
comment regarding how the maintenance and repair of an active warning
system at a pathway grade crossing differ from the required maintenance
and repair of an active warning system at a highway-rail grade
crossing.
    The second type of reportable unsafe condition at a pathway grade
crossing is an obstruction blocking a railroad track at the crossing.
To avoid confusion, the term ``disabled vehicle'' is purposely omitted
from proposed Sec.  234.303(c)(2), though it is used in proposed Sec.
234.303(b)(2), because, as defined in proposed Sec.  234.301, a
``pathway grade crossing'' is, among other things, dedicated for the
use of nonvehicular traffic; thus, by the definition, a vehicle should
not be using a pathway grade crossing. However, to ensure that all
possible scenarios in which an obstruction could be blocking the tracks
at a pathway grade crossing, including certain disabled vehicles that
may be using the pathway (such as all-terrain vehicles, golf carts,
maintenance vehicles, or snowmobiles), Sec.  234.303(c)(2) uses the
broad term ``obstruction.''
    The third type of reportable unsafe condition at a pathway grade
crossing is an obstruction to the view of a pathway user for a
reasonable distance in either direction of a train's approach to the
crossing. See discussion of proposed Sec.  234.303(b)(3).
    The final type of reportable unsafe condition at a pathway grade
crossing is any condition at the crossing that may be considered unsafe
and is not covered by Sec.  234.303(c)(1)-(3). See discussion of
proposed Sec.  234.303(b)(4).
    As mentioned previously, the FRA Administrator has the discretion
to waive the requirement that the ENS telephone number be toll-free for
Class II and Class III railroads. The Administrator may waive the toll-
free requirement for these railroads if he or she determines that the
use of a toll-free service would be cost prohibitive or unnecessary.
FRA believes that there may be certain scenarios in which a caller
would be discouraged from reporting an unsafe condition at a grade
crossing because the use of a non-toll-free number would impose an
additional cost on the caller as opposed to if a toll-free number was
used. Further, the requirement for the number to be toll-free may be
overly burdensome to a short line or other small railroad. To avoid
these types of situations, FRA proposes in Sec.  234.303(d) that if a
Class II or Class III railroad dispatches trains within an area in
which the use of a non-toll-free number would not incur any additional
fees for the caller compared to if a toll-free number was used, then
that railroad may use that non-toll-free number to receive calls
pursuant to Sec.  234.303(a) regarding each grade crossing in that
area.
    Paragraph (e) ensures that if a report of an unsafe condition at a
highway-rail or pathway grade crossing was not made through the
telephone service described in proposed Sec.  234.303(a), subpart E
does not apply. Since subpart E only sets forth the requirements of an
ENS and the actions taken in response to a report of unsafe condition
received through an ENS, a report that is not received

through an ENS does not invoke the requirements in subpart E.
    FRA is considering whether to extend proposed subpart E to cover
all public highway-rail grade crossings located within a port, or dock
facility, railroad yard or private industrial facility and such a
facility/yard is subject to part 234 as set forth in amended Sec.
234.3. If these types of crossings are covered by proposed subpart E,
FRA is considering whether to treat all of the crossings located in
such facilities/yards as a single public highway-rail grade crossing
for the purposes of proposed subpart E. These areas often have a
significant number of crossings located in a small area, and FRA
believes that it may be impracticable to consider each crossing within
these areas as a separate grade crossing. Treating all the public
highway-rail grade crossings within these facilities/yards as one
public highway-rail grade crossing is consistent with the U.S. DOT
National Highway-Rail Crossing Inventory, Policy, Procedures and
Instructions for States and Railroads, published August 2007, which can
be found at-- http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructions0807.pdf. FRA seeks comment whether proposed
subpart E should be extended to incorporate public highway-rail grade
crossings located within a port, or dock facility, railroad yard or
private industrial facility. FRA also seeks comment whether it is
practicable to treat all of the public highway-rail grade crossings
within such facilities/yards as one public highway-rail grade crossing
for the purposes of proposed subpart E.

Section 234.305 Remedial Actions

    Proposed Sec.  234.305 addresses the actions that a railroad must
take in response to an ENS-generated report of an unsafe condition at a
highway-rail or pathway grade crossing. Paragraph (a) of the proposed
section is the general rule on required response to ENS-generated
credible reports of warning system malfunctions. If a railroad receives
an ENS-generated report of a warning system malfunction that is a
credible report of warning system malfunction and the railroad has
maintenance responsibility for the warning system at the highway-rail
grade crossing to which the report pertains, the railroad is required
to take the appropriate action as required by subpart C. As defined in
proposed Sec.  234.5, a ``credible report of warning system
malfunction'' is ``specific information regarding a malfunction at an
identified highway-rail grade crossing, supplied by a railroad
employee, law enforcement officer, highway traffic official, or other
employee of a public agency acting in an official capacity.'' If a
report of a warning system malfunction is not provided by one of the
four specific types of people listed, then the report is not a credible
report of system malfunction within the meaning of both subpart C and
proposed subpart E, and subpart C does not require any remedial action
in response to those reports. It should be noted that a credible report
of warning system malfunction only applies to highway-rail grade
crossings and does not include pathway grade crossings. At this time
FRA does not plan to expand the definition of ``credible report of
warning system malfunction'' to include pathway grade crossings. Thus,
regardless of who reports a warning system malfunction at a pathway
grade crossing, the report is not considered a ``credible report of
warning system malfunction'' within the meaning of both subpart C and
proposed subpart E. However, it is important to note that the term
``credible'' does not go to the accuracy or truthfulness of the report;
rather, it distinguishes the type of person providing the report to the
railroad. Just because a report is not considered a ``credible report
of warning system malfunction,'' as defined by proposed Sec.  234.5,
does not mean that it is not accurate or truthful.
    If the report is a credible report of warning system malfunction,
but the railroad that initially receives the report is not the railroad
that has maintenance responsibility for the warning system at the
highway-rail grade crossing to which the report pertains, that railroad
is already responsible for contacting the trains that are authorized to
operate through the highway-rail grade crossing and warn the trains of
the reported malfunction under subpart C. After warning the trains, the
railroad must then contact the railroad that has maintenance
responsibility for the warning system at the highway-rail grade
crossing, which will then be responsible for taking the appropriate
remedial action under subpart C. FRA recognizes that in many instances
the railroad that initially receives the report may not be the railroad
that has maintenance responsibility over the warning system at that
crossing. Therefore, to ensure that the responsibility to take the
appropriate remedial action as required by subpart C falls on the
appropriate railroad, proposed Sec.  234.305(a)(2) requires the
railroad with maintenance responsibility to take the appropriate
remedial action under subpart C, except for immediately contacting the
trains operating through the crossing; this responsibility remains with
the dispatching railroad.
    Paragraph (b) of proposed Sec.  234.305 is the general rule on
response to ENS-generated reports of warning system malfunctions at
highway-rail grade crossings that are not considered credible reports
of warning system malfunctions as defined by proposed Sec.  234.5 and
requires that railroads take certain specified remedial action in
response to those reports. In other words, proposed Sec.  234.305(b)
addresses ENS-generated reports of warning system malfunctions that do
not fall within the amended definition of ``credible report of warning
system malfunction'' in Sec.  234.5 because the report is made by
someone who is not a railroad employee, law enforcement officer,
highway traffic official, or other employee of a public agency acting
in an official capacity. In particular, if a railroad receives a report
of a warning system malfunction that is not a credible report of
warning system malfunction and that railroad has maintenance
responsibility for the warning system at the crossing, the railroad
must immediately contact all trains that are authorized to operate
through the grade crossing about which the report pertains and warn
those trains of the reported malfunction. The railroad must then
promptly contact the law enforcement agency that has jurisdiction over
the crossing and provide the necessary information for the law
enforcement agency to direct traffic or carry out other activities to
maintain safety at the grade crossing. Further, the railroad must
promptly investigate the report and determine the nature of the
malfunction and, if necessary, take appropriate action as required by a
provision of existing 49 CFR part 234, subpart D, i.e., Sec.
234.207(a), which requires that ``[w]hen any essential component of a
highway-rail grade crossing warning system fails to perform its
intended function, the cause shall be determined and the faulty
component adjusted, repaired, or replaced without undue delay.''
    If a railroad receives a report of a warning system malfunction
that is not a credible report of warning system malfunction and that
railroad does not have maintenance responsibility for the warning
system at the highway rail grade crossing, the railroad must
immediately contact all trains that are authorized to operate through
the grade crossing to which the report pertains and warn those trains
of the reported malfunction. The railroad must then promptly contact
the law enforcement agency that has jurisdiction over the

grade crossing and provide the necessary information for the law
enforcement agency to direct traffic or carry out other activities to
maintain safety at the grade crossing. The railroad must then promptly
contact the railroad that has maintenance responsibility for the
warning system and inform that railroad of the reported malfunction.
The railroad having maintenance responsibility must promptly
investigate the report, determine the nature of the malfunction and
take the appropriate action as required by Sec.  234.207(a) if
necessary.
    Proposed Sec.  234.305(c) is the general rule on response to a
warning system failure at a pathway grade crossing. If the dispatching
railroad receives a report pursuant to Sec.  234.303(c)(1) and that
railroad also has maintenance responsibility for the active warning
system at the pathway grade crossing, the railroad shall immediately
contact all trains that are authorized to operate through the pathway
grade crossings to which the report pertains and warn the trains of the
reported failure. The railroad shall then promptly contact the law
enforcement agency having jurisdiction over the pathway grade crossing
and provide the necessary information to the law enforcement agency to
direct traffic or carry out other activities to maintain safety at the
pathway grade crossing. Finally, the railroad shall the promptly
investigate the report and determine the nature of the reported failure
and repair the warning system if necessary.
    If the dispatching railroad receives a report of a warning system
failure at a pathway grade crossing and that dispatching railroad does
not have maintenance responsibility for the warning system at the
pathway grade crossing, the dispatching railroad must immediately
contact all trains that are authorized to operate through the pathway
grade crossing to which the report pertains and warn those trains of
the reported failure. The dispatching railroad must then promptly
contact the law enforcement agency that has jurisdiction over the
pathway grade crossing and provide the necessary information for the
law enforcement agency to direct traffic or carry out other activities
to maintain safety at the pathway grade crossing. The dispatching
railroad must then promptly contact the railroad that has maintenance
responsibility for the warning system at the pathway grade crossing and
inform that railroad of the reported failure. The railroad having
maintenance responsibility shall then promptly investigate the report
and determine the nature of the reported failure and repair the warning
system if necessary.
    Proposed Sec.  234.305(d) is the general rule on a dispatching
railroad's response to reports of a disabled vehicle or other
obstruction blocking a railroad track at a highway-rail or pathway
grade crossing through which it dispatches trains. When a railroad
receives a report of a disabled vehicle or obstruction blocking a
railroad track at a grade crossing, the railroad must immediately
contact all trains that are authorized to operate through the grade
crossing to which the report pertains and warn the trains of the
reported disabled vehicle or obstruction. Once all of the necessary
trains are contacted, the railroad must then contact the law
enforcement agency having jurisdiction over the grade crossing to
provide that agency with the information necessary to assist in the
removal of the disabled vehicle or other obstruction or carry out other
activities as appropriate. FRA is considering and seeks comments on
whether to require the railroad that receives the report (dispatching
railroad) to contact the maintaining railroad if the obstruction is
anything other than a disabled vehicle. The maintaining railroad would
then be responsible for contacting the law enforcement agency and any
other entities to assist in directing traffic (if necessary) and
removing the obstruction.
    Proposed Sec.  234.305(e) is the special rule on contacting a train
that is not required to have communication equipment. Section 220.9 of
FRA's regulations on railroad communications sets forth communication
equipment standards for trains. 49 CFR 220.9 (Sec.  220.9). These
standards vary according to specific criteria set forth in Sec.  220.9.
According to Sec.  220.9(b), no communication equipment is required on
a train if that train does not transport passengers or hazardous
material and does not engage in joint operations or operate at greater
than 25 miles per hour. See 63 FR 47188; Sec.  220.9(b)(1)-(4).
However, as proposed in subpart E, upon receipt of a report of a
warning system malfunction, a warning system failure at a pathway grade
crossing, or a disabled vehicle or other obstruction blocking a track,
a railroad will be required to immediately contact a train authorized
to operate through the highway-rail or pathway grade crossing to which
the report pertains. If that train is not required by Sec.  220.9 to
have any communications equipment, the railroad must contact that train
by the quickest means available. Currently, railroad employees are
required by 49 CFR 220.13(a) (Sec.  220.13(a)) to immediately report
certain emergencies by the quickest means available. To maintain
consistency among FRA regulations, proposed Sec.  234.305(e) requires
that the quickest means used to contact a train upon receipt of a
report of a warning system malfunction or disabled vehicle or other
obstruction blocking a track at the crossing is consistent with the
quickest means that an employee would use to report an emergency
pursuant to Sec.  220.13(a).
    Proposed Sec.  234.305(f) is the general rule on response to
reports of an obstruction to the view of a pedestrian or a vehicle
operator for a reasonable distance in either direction of a train's
approach to the highway-rail or pathway grade crossing (visual
obstruction). FRA proposes that when the dispatching railroad receives
a report of a visual obstruction and the railroad also has maintenance
responsibility for the highway-rail or pathway grade crossing, the
railroad shall timely investigate the report and, if the report is
confirmed, shall remove the visual obstruction if it is feasible and
lawful to do so. If the dispatching railroad does not have maintenance
responsibility for the highway-rail or pathway grade crossing, the
dispatching railroad shall promptly contact the railroad having
maintenance responsibility for the highway-rail or pathway grade
crossing, which shall timely investigate the report; and, if the report
is confirmed, shall remove the visual obstruction, if it is lawful and
feasible to do so. FRA recognizes that in certain instances a visual
obstruction may not be removed, such as a natural visual obstruction
due to the steepness of the road or path approaching the crossing or a
visual obstruction due to the curvature of the track, or it may not be
lawful to do so. Therefore, proposed Sec.  234.305(f)(2) imposes a duty
on the maintaining railroad to remove the visual obstruction only if it
is lawful and feasible to do so. FRA seeks comment on what types of
visual obstructions are not feasible to remove.
    Proposed Sec.  234.305(g) is the general rule on response to
reports of other unsafe conditions at highway-rail or pathway grade
crossings. Proposed Sec.  234.305(g)(1) states that if the railroad
receives a report related to a safety device at a highway-rail or
pathway grade crossing, such as a downed crossbuck, that is not covered
by proposed Sec.  234.305(a), (b), or (c), and the railroad has
maintenance responsibility for the device, the railroad must timely
investigate the report, and if the railroad finds that the unsafe
condition exists, the railroad must timely correct it. However, if the

railroad that receives the report does not have maintenance
responsibility over the device, upon receipt of the report, the
railroad must timely inform the railroad with maintenance
responsibility for correcting the unsafe condition. The railroad with
maintenance responsibility must then timely investigate the report and
if it finds that the unsafe condition exists, it must timely correct it
if it is lawful and feasible to do so. FRA seeks comment on what types
of other unsafe conditions are not feasible to correct.
    Proposed Sec.  234.305(g)(2) states that if the dispatching
railroad receives a report relating to any other unsafe condition at
the highway-rail or pathway grade crossing that is not covered by
proposed Sec.  234.305(g)(1) and the dispatching railroad is also the
maintaining for the grade crossing, the dispatching railroad shall
timely investigate the report and if it finds that the unsafe condition
exists, the dispatching railroad shall timely correct it if it is
lawful and feasible to do so. If the dispatching railroad is not the
maintaining railroad, the dispatching railroad shall timely inform the
maintaining railroad of the report and the maintaining railroad shall
timely investigate the report. If, after investigating the report, the
maintaining railroad finds that the unsafe condition exists, the
maintaining railroad shall timely correct it if it is lawful and
feasible to do.
    Paragraph (h) is the general rule on contacting the maintaining
railroad. If the dispatching railroad is not the same as the
maintaining railroad, the maintaining railroad shall provide the
dispatching railroad with sufficient contact information by which the
dispatching railroad may immediately contact the maintaining railroad
upon receipt of a report if necessary. Furthermore, the maintaining
railroad shall not use an automated answering service for the purpose
of receiving a call from the dispatching railroad.

Section 234.307 Third-Party Telephone Service

    Proposed Sec.  234.307 would address the third-party telephone
service that a dispatching railroad may use to receive reports
concerning an unsafe condition at a highway-rail or pathway grade
crossing pursuant to proposed Sec.  234.303.
    For a railroad to ``directly'' receive calls reporting unsafe
conditions at a crossing as required by proposed Sec.  234.303, FRA
proposes that one entity is the maximum number of entities that may
exist between (1) a caller reporting an unsafe condition at a grade
crossing and (2) the railroad. FRA believes that allowing more than one
entity in between could potentially delay the railroad's receipt of the
report and therefore delay its response to the unsafe condition to the
extent that the ENS would not be effective. Proposed Sec.  234.307 sets
forth the requirements for the third-party telephone service.
    FRA recognizes that many regional and short line railroads may not
have the capability and resources to set up and operate a 24-hour
system to respond to reports of unsafe conditions at highway-rail and
pathway grade crossings. To ensure that the public can call in such
reports and that more dispatching railroads can receive the reports,
the proposed rule allows railroads to use a third-party telephone
service.
    Paragraph (a) permits a railroad to use a third-party telephone
service to receive reports pursuant to proposed Sec.  234.303. FRA
believes that it is in the railroad's interest to use a third-party
telephone service that is in the business of receiving and processing
calls from the public because that is its specialty. Even if the
railroad uses a third-party telephone service, the railroad ultimately
remains responsible for receiving the report received by the third
party, and the railroad is responsible for taking the appropriate
remedial action as required by proposed Sec.  234.305 and complying
with the proper recordkeeping requirements proposed in Sec.  234.313.
The third-party telephone service is merely an extension of the
railroad. The third-party service must be reached directly by the
telephone number placed on the sign pursuant to proposed Sec.  234.309.
Furthermore, the third-party service is prohibited from using an
automated answering service, as defined in proposed Sec.  234.301, to
receive calls. The railroad remains responsible for ensuring that an
automated answering service is not used.
    Proposed paragraph (b) obliges a railroad that uses the third-party
service to provide the service with sufficient contact information so
that when the third-party service receives a report of an unsafe
condition at a grade crossing, it can immediately contact the railroad.
The railroad is prohibited from using an automated answering service to
receive calls from the third-party service. There may be an unsafe
condition for which immediate action by the railroad is necessary, such
as a disabled vehicle blocking a track at the crossing; therefore, the
contact information that the railroad provides the third-party service
must be sufficient to the extent that when the third-party service
contacts the railroad, a railroad employee answers the call and takes
the appropriate action necessary under proposed Sec.  234.305. The
responsibility of the third-party service is solely to receive reports
and relay those reports to the railroad; any remedial action that is
necessary to correct the unsafe condition is the responsibility of the
railroad.
    Proposed paragraph (b) also requires a railroad to promptly inform
FRA of its intent to use a third-party service to receive reports
pursuant to proposed Sec.  234.303. The railroad must also provide FRA
with the contact information of the third-party service that the
railroad intends to use. Further, the railroad must provide FRA with a
list of the grade crossings about which the third-party service will be
receiving reports pursuant to proposed Sec.  234.303. This information
will allow FRA to evaluate whether the use of a third-party service
substantially increases the railroad's response time to the extent
that, because of the use of the service, the railroad is no longer
considered to be receiving calls ``directly.'' Finally, proposed
paragraph (b) reaffirms the requirement that once a railroad receives a
report of an unsafe condition at a grade crossing pursuant to proposed
Sec.  234.303, the railroad must, at a minimum, take the remedial
action required by proposed Sec.  234.305.
    Proposed paragraph (c) sets forth the duties of the third-party
service. The third-party service is required to contact the contracting
railroad immediately when the third-party service receives a report
pursuant to proposed Sec.  234.303. The third-party service must then
provide the contracting railroad with a minimum amount of information.
The first type of information that the third-party service must provide
is the nature of the reported unsafe condition. The nature of the
reported unsafe condition must fall into one of the categories listed
in proposed Sec.  234.303(b)(1)-(4) or (c)(1)-(4) so that the
contracting railroad can take the appropriate remedial action as
required by proposed Sec.  234.305. Second, the third-party service
must provide information on the location of the unsafe condition, which
includes providing the U.S. DOT National Crossing Inventory File Number
for the crossing. Third, the third-party service must inform the
contracting railroad whether the person reporting the unsafe condition
is a railroad employee, law enforcement officer, highway traffic
official, or other employee of a public agency acting in an official
capacity. The third-party service is required to provide this
information so that the contracting railroad can determine

whether the report is a credible report of warning system malfunction
and, if it is, the railroad can take the appropriate remedial action
required by proposed Sec.  234.305 and existing subpart C. Finally, the
third-party service must provide the contracting railroad with any
additional information provided by the caller that may be useful to
restore the crossing to a safe condition.
    Paragraph (d) ensures that the third-party service, in addition to
the contracting railroad, is responsible for complying with proposed
subpart E and that both the railroad and the third party service can be
held liable for a violation of proposed subpart E.
    FRA recognizes that future advances in technology may provide
opportunities for call-in systems that are not specifically described
in this rule. FRA is willing to review any new technology and consider
its applicability to the regulation, or consider amending the
regulation in the future if warranted. FRA welcomes comments on any
such technologies that meet the requirements of the proposed
regulation.

Section 234.309 Signs in General

    Proposed Sec.  234.309 would specify the color, minimum required
dimensions, contents, and other aspects of the signs that Sec.  234.311
requires to be placed and maintained at highway-rail and pathway grade
crossings as part of an ENS. A minimum amount of information must be
placed on the sign so that the unsafe condition may be properly
reported and remedied. This minimum information is the toll-free number
established to receive reports pursuant to Sec.  234.303(a) (or non-
toll-free number as provided for in Sec.  234.303(d)), an explanation
of the purpose of the sign, and the U.S. DOT National Crossing
Inventory File Number assigned to the crossing. To maintain a certain
amount of consistency among the signs so that a grade crossing user may
be able to easily identify and understand it, FRA proposes that the
sign dimensions must be at least 12 inches by 9 inches, the lettering
must be, at a minimum, 1 inch in height, and the sign must have a white
legend and border on a blue background.
    FRA is considering whether the final rule should require that the
sign be designed in accordance with the applicable provisions of the
FHWA's MUTCD and Standard Highway Signs and Markings (SHSM) book.
Currently, Sec.  8B.18 of the 2009 edition of the MUTCD provides
standards and guidance regarding emergency notification signs. Figure 1
is the example of an emergency notification sign provided in the MUTCD.
Further, the new edition of the SHSM book, which had not been published
at the time of the writing of this NPRM, provides two alternate designs
for emergency notification signs, one of which is identical to the
emergency notification sign provided in the MUTCD. The SHSM can be
found at http://mutcd.fhwa.dot.gov/shsm_interim/index.htm. Figure 2 is
an alternate design found in the new edition of the SHSM book. FRA is
seeking comment regarding which standards and guidance provided in the
MUTCD and SHSM book should be adopted in the final rule as the
requirements for the signs placed at crossings pursuant to proposed
Sec. Sec.  234.309 and 234.311.
[GRAPHIC] [TIFF OMITTED] TP04MR11.000

Section 234.311 Sign Placement and Maintenance

    Proposed Sec.  234.311 would require signs of the type specified by
proposed Sec.  234.309 to be placed and maintained at highway-rail and
pathway grade crossings. The maintaining railroad would be responsible
for the proper placement and maintenance of the sign. The dispatching
railroad would be responsible for providing the telephone number posted
on the sign to the maintaining railroad if the two are not the same
railroad.
    A sign must be placed and maintained for each direction of traffic
at that grade crossing. This will ensure that grade crossing users will
be able to see the sign from whichever direction they

approach the crossing. A pathway grade crossing is considered to have a
minimum of two directions of traffic unless specifically designed for
traffic in one direction only.
    Each sign placed at a highway-rail or pathway grade crossing must
be placed and maintained so that the sign is conspicuous to the users
of the roadway or pathway, optimizes nighttime visibility, minimizes
the effect of mud splatter and debris, and does not obscure any other
sign at the crossing. FRA does not propose a specific location at a
crossing where a sign must be placed because such a specific location
may not exist at every crossing. However, FRA proposes general
requirements regarding the placement of the sign so that the sign may
be easily seen and does not interfere with any other traffic control
devices at the crossing. FRA is seeking comment on sign placement so
the appropriate placement for optimal visual effectiveness of the sign
may be determined. FRA is also seeking comment on how many and where to
place signs at a highway-rail or pathway grade crossing in which there
are multiple railroads dispatching trains on one or more tracks through
that crossing.
    Proposed paragraph (c) does not prohibit the placement of an ENS
sign on a signal bungalow; however, a sign on the signal bungalow and
nowhere else at the crossing does not comply with proposed Sec.
234.311. It is difficult to envision a scenario in which placing the
sign on the signal bungalow would satisfy all of the requirements in
proposed Sec.  234.311(b), particularly, Sec.  234.311(b)(1), which
requires a sign to be placed at a grade crossing so that it is
conspicuous to the users of the roadway or pathway. FRA seeks comment
on other locations at grade crossings where the placement of the sign
would not satisfy proposed Sec.  234.311(b).
    As mentioned previously, FRA is considering whether to expand
proposed subpart E to cover all public highway-rail grade crossings
located within a port or dock facility, railroad yard, or private
industrial facility and to make such a facility or yard subject to part
234. In turn, if these types of crossings would be covered by proposed
subpart E, FRA is considering whether to treat all of the crossings
located in such a facility or yard as a single public highway-rail
grade crossing for the purposes of proposed subpart E. If these
crossings are treated as a single public highway-rail grade crossing,
FRA is considering whether to require a sign that conforms to proposed
Sec.  234.309 to be placed and maintained as provided under proposed
Sec.  234.311(a) and (b) at each point at which a public highway enters
the facility or yard. FRA seeks comment whether this would be the
optimal location for the sign for these types of facilities or yards if
they are covered.

Section 234.313 Recordkeeping

    Proposed Sec.  234.313 sets forth the recordkeeping requirements
for this proposed subpart that apply to each railroad subject to this
proposed subpart. Proposed paragraph (a) of this section requires each
railroad to keep records pertaining to compliance with this subpart.
Records may be kept on paper forms generated by the railroad or kept
electronically in a manner that conforms with proposed Sec.  234.315.
Each railroad must keep the following information for each report
received under the proposed subpart: (1) The nature of the reported
unsafe condition; (2) the location of the grade crossing (by highway
name and U.S. DOT National Crossing Inventory File Number); (3) the
time and date of receipt of the report by the railroad; (4) whether the
person who provided the report was a railroad employee, law enforcement
officer, highway traffic official, or other employee of a public agency
acting in an official capacity; (5) the actions taken by the railroad
prior to rectifying the reported unsafe condition; (6) the actions
taken by the railroad to rectify, if possible, the reported grade
crossing problem; (7) the date and time at which the reported unsafe
condition was rectified; and (8) if the railroad is required to contact
the railroad with maintenance responsibility, the time and date the
railroad contacted the railroad having maintenance responsibility. FRA
is considering whether to require the railroad to also record the
caller's name and contact information so the railroad can follow-up
with the caller if necessary. FRA seeks comment on what other
information the railroad should be required to record.
    Subpart C at 49 CFR 234.109 (Sec.  234.109) already has specific
recordkeeping requirements for a railroad that receives a credible
report of warning system malfunction; therefore, there is no separate
recordkeeping requirement in proposed subpart E for credible reports of
warning system malfunction. Proposed Sec.  234.313(c) requires that
each railroad retain for at least one year (from the latest date of
railroad activity in response to a report received under this part) all
records that it makes that are required by this section. Records
required to be kept must be made available to FRA as provided by
statute (49 U.S.C. 20107).

Section 234.315 Electronic Recordkeeping

    Proposed Sec.  234.315 would address the keeping of records
required by proposed subpart E electronically. This proposed section
applies to railroads that choose to conduct electronic recordkeeping
under proposed subpart E. These proposed electronic recordkeeping
requirements are modeled after the requirements set forth in 49 CFR
217.9(g).
    If a railroad chooses to conduct electronic recordkeeping of
records required by proposed subpart E, the railroad must provide
adequate security measures to limit employee access to its electronic
data processing system and must prescribe who is allowed to create,
modify, or delete data from the database. Although FRA does not
identify the management position authorized to institute changes in the
database, the railroad must indicate the source authorized to make such
changes. The railroad must have a computer and a facsimile or printer
connected to the computer to retrieve and produce records for immediate
review. Section 217.9(g) requires the computer to be a desk-top
computer. However, FRA recognizes that all railroads may not
necessarily maintain their records on a desktop computer, so rather
than adopting this requirement from Sec.  217.9(g); FRA proposes to
allow railroads the flexibility to maintain their records on other
types of computers, such as laptops. However, regardless of the
computer on which the railroad maintains its electronic records, it
must be possible for a facsimile or printer to be connected to the
computer to retrieve and produce records for immediate review. The
documents must be made available for FRA inspection during ``normal
business hours,'' which FRA interprets as the time, any day of the
week, when railroads conduct their regular business transactions.
Nevertheless, FRA reserves the right to review and examine the
documents prepared in accordance with the applicable section of part
234 at any reasonable time if situations warrant. Each railroad must
also designate who will be authorized to authenticate the hard copies
produced from the electronic format. In short, each railroad electing
to retain its records electronically must ensure the integrity of the
information and prevent possible tampering of data, enabling FRA to
fully execute its enforcement responsibilities.

Section 234.317 Compliance Dates

    Proposed Sec.  234.317 would state the date by which each of
various groups of railroads must comply with this proposed subpart. If
a railroad does not have an ENS of any kind in place on the effective
date of the subpart, the railroad has 18 months from the effective date
of the final rule to implement a system that conforms to the subpart.
This paragraph applies to railroads that do not have anything any place
that could be considered an ENS as defined in Sec.  234.301. However,
if a railroad has a system in place, but some or all of the components
do not conform to this subpart, the amount of time the railroad has to
bring it into compliance depends on which component is non-compliant.
    If a railroad already has its own ENS telephone service or is using
a third-party telephone service on the effective date of this subpart,
but that telephone service does not comply with the requirements
proposed in Sec. Sec.  234.303 and 243.307, the railroad has six months
from the effective date of the final rule to bring the telephone
service into compliance.
    If a railroad already has ENS signs in place on the effective date,
but those signs do not comply with the requirements set forth in
proposed Sec.  234.309, subject to proposed Sec.  234.317(d)(2), the
railroad has five years from the effective date of the final rule to
bring the signs into compliance. If the railroad replaces a non-
conforming sign before the five-year period, the railroad must replace
the sign with one that conforms to proposed Sec.  234.309. However,
there is an exception to this five-year period. To ensure that a non-
conforming sign is still large enough to be visible to the majority of
grade crossing users, if a sign is less than 60 square inches, the
railroad has 18 months from the effective date of the final rule to
bring the sign into compliance with proposed Sec.  234.309. If the
railroad replaces a non-conforming sign before the 18-month period, the
railroad must replace the sign with one that conforms to proposed Sec.
234.309.
    FRA is considering whether to reduce the amount of time that the
railroad has to bring the sign into compliance based on whether the
non-compliant element of the sign effectively renders the sign useless.
For example, if a sign does not comply because the telephone number on
the sign is not the correct number, the sign is effectively useless
because a person is unable to report any unsafe conditions at the
crossing to the appropriate railroad. In these instances it is as if
there were not a sign at the crossing, thus, the railroad would then
have 18 months, as required by Sec.  234.317(a), to place a sign at the
crossing. Therefore, FRA is considering reducing the compliance period
from five years to 18 months if the non-compliant element of the sign
effectively renders the sign useless. FRA seeks comment regarding
reducing the compliance period.
    If a railroad already has ENS signs in place on the effective date,
but the placement of those signs does not comply with the requirements
set forth in proposed Sec.  234.311, the railroad has five years from
the effective date of the final rule to ensure the placement of the
signs conforms to proposed Sec.  234.311. If the railroad changes the
placement of the sign before the expiration of the five-year period,
the placement of the sign must conform to proposed Sec.  234.311.
Furthermore, if a railroad replaces a sign before the expiration of the
five-year period so that the sign conforms to proposed Sec.  234.309
and the placement of the sign does not conform to proposed Sec.
234.311, the railroad must also change the placement of the sign so
that it conforms to proposed Sec.  234.311.
    FRA is considering whether to reduce the amount of time that the
railroad would have to bring the placement of the sign into compliance
if the only sign at the crossing is placed on the signal bungalow. As
mentioned previously, signs placed on a signal bungalow are not
considered to be conspicuous to the grade crossing user; therefore, FRA
believes that giving the railroad five years to replace signs on the
bungalow may be excessive and is considering reducing this period to 18
months. FRA welcomes comments regarding reducing the compliance period
from five years to 18 months.
    If a railroad already conducts recordkeeping as part of its ENS on
the effective date, but the recordkeeping does not conform to proposed
Sec.  234.313, the railroad has six months from the effective date of
the final rule to ensure that the recordkeeping conforms to proposed
Sec.  234.313.

V. Regulatory Impact

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

    This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 12866 and 13563 and DOT policies and procedures. See 44
FR 11034; February 26, 1979. FRA has prepared and placed in the docket
a regulatory evaluation addressing the economic impact of this proposed
rule. FRA has met with and made presentations to those who are likely
to be affected by this rule in order to seek their views on the rule.
    As part of the regulatory evaluation, FRA has assessed quantitative
measurements of the cost streams expected to result from the
implementation of this proposed rule. For the 20-year period analyzed,
the estimated quantified cost that would be imposed on industry totals
$36.6 million with a present value (PV, 7 percent) of $18.9 million.
The requirements that are expected to impose the largest burdens relate
to recordkeeping and the purchase and installation of signs at grade
crossings. The table below presents the estimated costs associated with
the proposed rulemaking.

------------------------------------------------------------------------

------------------------------------------------------------------------
Section 234.303--Toll-free telephone service...............   $2,052,898
Section 234.307--Third-party telephone service.............        3,520
Section 234.309--Signs (materials).........................    6,709,437
Section 234.309--Signs (installation)......................    4,704,433
Section 234.311--Post (materials)..........................      410,379
Section 234.311--Post (installation).......................      345,293
Section 234.313--Recordkeeping (initial)...................      363,571
Section 234.313--Recordkeeping (remedial)..................    4,265,979
                                                            ------------
    Total..................................................   18,855,511
------------------------------------------------------------------------
Dollars are discounted at a Present value rate of 7 percent.

    As part of the regulatory evaluation, FRA has explained what the
likely benefits for this proposed rule would be, and provided numerical
assessments of the potential value of such benefits. The proposed
rulemaking is expected to improve railroad safety by ensuring that all
highway-rail and pathway grade crossings have adequate signage to
enable the public to inform the railroad of emergencies and other
unsafe conditions. The primary benefits include a heightened safety
environment in grade crossing areas and potential avoidance of
casualties, fatalities, and damage through earlier awareness of track
obstructions, including stalled highway vehicles, and other safety
hazards. Thus, in general, the proposed rule should decrease grade
crossing accidents and incidents and associated casualties and damages.
FRA believes the value of the anticipated safety benefits would meet or
exceed the cost of implementing the proposed rule. Over a 20-year
period, this analysis finds that $49.2 million in cost savings

would accrue through casualty prevention and damage avoidance. The
discounted value of this is $23.4 million (PV, 7 percent). The table
below presents the estimated benefits associated with the proposed
rule.

------------------------------------------------------------------------

------------------------------------------------------------------------
10.2 Fatalities (Prevented)...............................   $17,663,562
10.3 Injuries (Prevented).................................     4,908,998
10.4 Highway Vehicle Damage (Avoided).....................       436,715
10.5 Railroad Equipment Damage (Avoided)..................       249,537
10.6 Track/Structure Damage (Avoided).....................       138,718
                                                           -------------
    Total.................................................    23,397,531
------------------------------------------------------------------------
Dollars are discounted at a Present value rate of 7 percent.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant impact on a
substantial number of small entities. Pursuant to the Regulatory
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities. No small railroads
will be affected by the rule. FRA has prepared and placed in the docket
this certification. FRA requests comments on this certification as well
as all other aspects of this NPRM.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small
business concern that is independently owned and operated, and is not
dominant in its field of operation. The U.S. Small Business
Administration (SBA) has authority to regulate issues related to small
businesses, and stipulates in its size standards that a ``small
entity'' in the railroad industry is a for profit ``line-haul
railroad'' that has fewer than 1,500 employees, a ``short line
railroad'' with fewer than 500 employees, or a ``commuter rail system''
with annual receipts of less than seven million dollars. See ``Size
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A.
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. Federal agencies
use a different standard for small entities, in consultation with SBA
and in conjunction with public comment. Pursuant to that authority FRA
has published a final statement of agency policy that formally
establishes ``small entities'' or ``small businesses'' as being
railroads, contractors and hazardous materials shippers that meet the
revenue requirements of a Class III railroad as set forth in 49 CFR
1201.1-1, which is $20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003,
codified at appendix C to 49 CFR part 209. The $20-million limit is
based on the Surface Transportation Board's revenue threshold for a
Class III railroad. Railroad revenue is adjusted for inflation by
applying a revenue deflator formula in accordance with 49 CFR 1201.1-1.
FRA is using this definition for this rulemaking.
    Certain provisions of this proposed rule would apply to all
railroads that dispatch trains over highway-rail or pathway grade
crossings. Out of the 674 Class III railroads, FRA estimates there are
117 small railroads that do not have a dispatching function as part of
their operations and, therefore, would not be affected by these certain
provisions of this regulation. Therefore, FRA has concluded that 557
small railroads would be affected by those provisions of this rule.
However, the impact on these small railroads would not be significant.
    Other provisions of this proposed rule would require railroads that
own track at highway-rail or pathway grade crossings (or maintain grade
crossing signal warning systems at such crossings per rule text) to
incur fixed costs, such as the purchase of signs and posts, which are
directly proportional to the number of crossings. Additionally, the
number of calls received is also expected to be proportional to the
number of highway-rail or pathway grade crossings owned or maintained
by each railroad.
    Smaller railroads generally have fewer highway-rail or pathway
grade crossings than larger railroads do. Although each grade crossing
may have the same probability of being the subject of an ENS-generated
call, the total burden on smaller railroads should be smaller, when
implementing and complying with the major requirements of purchasing
signage and recordkeeping. For example, FRA has found that there are
137 extremely small railroads, accounting for 4,408 grade crossings. On
average, each of the 137 railroads has approximately 32 grade
crossings. Additionally, the average total implementation cost for
these railroads is approximately $2,300 per railroad for the first year
and $519 per railroad per year for each of the following 14 years.
Expressed differently, the cost for these railroads to comply with this
proposed rule is about $72 per crossing per railroad for the first year
and approximately $16 per crossing per railroad for each of the
following 14 years. Railroads with just a few crossings would incur
minimal costs to comply with this proposed rule. Thus, FRA believes
that this proposed regulation would not have a significant impact on
these railroads.
    Some small railroads are subsidiaries of large short-line holding
companies with the expertise and resources comparable to larger
railroads. The proposed requirements to install two new signs per
highway-rail or pathway grade crossing and provide a toll-free
telephone number to report emergencies and other unsafe conditions
would not have a significant impact on these railroads. Short lines
affected by this proposed rule might collaborate with other small
railroads to jointly implement its requirements, which would lower the
burden on these small railroads.
    Previously, FRA sampled small railroads and found that revenue
averaged approximately $4.7 million (not discounted) in 2006. One
percent of average annual revenue per small railroad, or $47,000, is
far less than the average annual cost that these railroads would incur
because of this proposed rule. FRA concludes that the proposed burden
would not have a noticeable impact on the competitive position of small
entities, or on the small entity segment of the railroad industry as a
whole.
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601(b)), FRA
certifies that this proposed rule would not have a significant impact
on a substantial number of small entities. Although a substantial
number of small railroads would be affected by the proposed rule, these
entities would be significantly impacted. A more thorough discussion on
the basis of this certification can be found in Appendix B of the
Regulatory Evaluation, which has been submitted to the docket for this
proposed rulemaking. FRA invites all interested parties to submit data
and information regarding the potential economic impact that would
result from adoption of the proposals in this NPRM. FRA will consider
all comments received in the public comment process when making a final
determination for certification of the final rule.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
    This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. FRA has determined that
the proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, nor on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
proposed rule will not impose substantial direct compliance costs on
State and local governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    This NPRM amends part 234, which contains FRA principal regulations
regarding grade crossing safety. Although the final rule on State-
specific highway-rail grade crossing action plans published June 28,
2010 (75 FR 36552) removed the preemptive effect provision in part 234,
FRA notes that this part could have preemptive effect by the operation
of law under a provision of the former Federal Railroad Safety Act of
1970 (former FRSA), that is, 49 U.S.C. 20106 (Sec. 20106). Sec. 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to Sec. 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the preemption of State laws
covering the subject matter of this proposed rule, which occurs by
operation of law under 49 U.S.C. 20106 whenever FRA issues a safety
rule or order. Accordingly, FRA has determined that preparation of a
federalism summary impact statement for this proposed rule is not
required.

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
are duly designated, and the estimated time to fulfill each requirement
is as follows:

----------------------------------------------------------------------------------------------------------------
                                       Respondent         Total annual     Average time per      Total annual
       CFR section/subject              universe           responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
234.303(b)--Report to ENS--Unsafe  594 railroads.....  63,891 reports...  1 minute..........  1,065 hours.
 Condition at Highway-Rail
 Crossing.
234.303(c)--Report to ENS          594 railroads.....  1,860 reports....  1 minute..........  155 hours.
 Service--Unsafe Condition at
 Pathway Grade Crossing.
----------------------------------------------------------------------------------------------------------------
234.305(a)--Reported Malfunction   594 railroads.....  465 contacts.....  1 minute..........  8 hours.
 of Warning System at Highway-
 Rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate through
 That Crossing.
--Contact of Crossing Maintenance  594 railroads.....  465 contacts.....  1 minute..........  8 hours.
 Railroad by Dispatching Railroad.
--(b) Other Report of Warning      594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 System Malfunction at Highway-
 Rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate Through
 That Crossing.
--Other Report of Warning System   594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 Malfunction at Highway-rail
 Grade Crossing Necessitating
 Prompt Contact by Dispatching RR
 of Law Enforcement Agency to
 Direct Traffic/Maintain Safety.
--(2) Other Report of Warning      594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 System Malfunction at Highway-
 rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate Through
 That Crossing.
--Dispatching RR Contact of Law    594 railroads.....  920 contacts.....  1 minute..........  15 hours.
 Enforcement Authority to Direct
 Traffic/Maintain Safety.

--Dispatching RR Contact of        594 railroads.....  920 contacts.....  1 minute..........  15 hours.
 Maintaining RR re: Malfunction.
234.305(c)(1)--Report of Warning   594 railroads.....  2 contacts.......  1 minute..........  .03333 hour.
 System Failure at Pathway Grade
 Crossing and Need of Dispatching
 RR to Contact All Trains
 Operating Through It.
--Report of Warning System         594 railroads.....  2 contacts.......  ..................  .03333 hour.
 Failure at Pathway Grade
 Crossing and Need of Dispatching
 RR to Contact Law Enforcement
 Agencies.
--(d) Dispatching RR Contact of    594 railroads.....  2,556 contacts...  1 minute..........  43 hours.
 All Trains Operating Through
 Highway-rail or Pathway Grade
 Crossing Upon Receiving Report
 of Disabled Vehicle or Other
 Obstruction.
--Dispatching RR Contact of Law    594 railroads.....  2,556 contacts...  1 minute..........  43 hours.
 Enforcement Authority Upon
 Receiving Report of Disabled
 Vehicle or Other Obstruction.
--(h) Maintaining RR Provision of  594 railroads.....  10 contacts......  1 minute..........  .1667 hour.
 Contact Information to
 Dispatching RR.
----------------------------------------------------------------------------------------------------------------
234.307--3rd Party Telephone       594 railroads.....  50 contacts......  15 minutes........  13 hours.
 Service.
--RR Contact Information to        594 railroads.....  50 letters.......  60 minutes........  50 hours.
 Service.
--RR Notification to FRA of Use    594 railroads.....  100 contacts.....  1 minute..........  2 hours.
 of Service.
--3rd Party Notification to RR of  50 third parties..  100 contacts.....  1 minute..........  2 hours.
 Report Pursuant to section
 234.303.
----------------------------------------------------------------------------------------------------------------
234.309(a)--ENS Signs--General--   594 railroads.....  10 contacts......  30 mintues........  5 hours.
 Provision of ENS Telephone
 Number to Maintaining RR by
 Dispatching RR.
--(b) ENS Signs Located at         594 railroads.....  422,802 signs....  15 minutes........  105,701 hrs.
 Highway-Rail or Pathway Grade
 Crossings as required by section
 234.311 with Necessary
 Information to Receive Reports
 Required under section 234.303.
----------------------------------------------------------------------------------------------------------------
234.313--Recordkeeping--Records    594 railroads.....  186,000 records..  4 minutes.........  12,400 hours.
 of Reported Unsafe Conditions
 Pursuant to Section 234.303.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning the following issues:
whether these information collection requirements are necessary for the
proper performance of the functions of FRA, including whether the
information has practical utility; the accuracy of FRA's estimates of
the burden of the information collection requirements; the quality,
utility, and clarity of the information to be collected; and whether
the burden of collection of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology, may be minimized. For information or a
copy of the paperwork package submitted to OMB, contact Mr. Robert
Brogan, Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Kimberly
Toone at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

F. Environmental Assessment

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

proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and Tribal governments and the private sector.
For the year 2010, this monetary amount of $100,000,000 has been
adjusted to $140,800,000 to account for inflation. This proposed rule
would not result in the expenditure of more than $140,800,000 by the
public sector in any one year, and thus preparation of such a statement
is not required.

H. Energy Impact

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

I. Privacy Act Statement

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

List of Subjects in 49 CFR Part 234

    Highway safety; Penalties; Railroad safety; and Reporting and
recordkeeping requirements.

The Proposal

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

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

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

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

    2. The heading for part 234 is revised to read as set forth above.
    3. Section 234.1 is revised to read as follows:

Sec.  234.1  Scope.

    (a) This part imposes minimum maintenance, inspection, and testing
standards for highway-rail grade crossing warning systems. This part
also prescribes standards for the reporting by railroad and public
agency employees of failures of such systems and prescribes minimum
actions that railroads must take when such warning systems malfunction.
This part also requires particular identified States to develop State
highway-rail grade crossing action plans. This part also prescribes
minimum requirements that railroads establish systems for receiving
toll-free telephone calls from the public at large about unsafe
conditions at highway-rail and pathway grade crossings and for taking
certain actions in response to those calls.
    (b) This part does not restrict a railroad from adopting and
enforcing additional or more stringent requirements not inconsistent
with this part.
    4. Section 234.3 is revised to read as follows:

Sec.  234.3  Application and responsibility for compliance.

    (a) With the exception of Sec.  234.11, this part applies to all
railroads, all contractors for railroads, and all subcontractors for
railroads except the following:
    (1) Operations of a plant railroad as defined in Sec.  234.5;
    (2) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; or
    (3) Tourist, scenic, historic, or excursion operations conducted
only on track used exclusively for that purpose (i.e., there is no
freight, intercity passenger, or commuter passenger railroad operation
on the track) and only on track inside an installation that is insular;
i.e., the operations are limited to a separate enclave in such a way
that there is no reasonable expectation that the safety of the public--
except a business guest, a licensee of the railroad or an affiliated
entity, or a trespasser--would be affected by the operation. An
operation will not be considered insular if one or more of the
following exists on its line:
    (i) A public highway-rail crossing that is in use;
    (ii) An at-grade rail crossing that is in use;
    (iii) A bridge over a public road or waters used for commercial
navigation; or
    (iv) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
    (b) Although the duties imposed by this subpart are generally
stated in terms of the duty of a railroad, each person, including a
contractor or subcontractor for a railroad, who performs any task
covered by this subpart, shall perform that task in accordance with
this subpart.
    5. Section 234.5 is revised by revising the definition of
``Credible report of system malfunction'' and adding definitions of
``FRA'' and ``Plant railroad'' in alphabetical order to read as
follows:

Sec.  234.5  Definitions.

    As used in this part--
* * * * *
    Credible report of warning system malfunction means specific
information regarding a malfunction at an identified highway-rail grade
crossing, supplied by

a railroad employee, law enforcement officer, highway traffic official,
or other employee of a public agency acting in an official capacity.
* * * * *
    FRA means the Federal Railroad Administration, U.S. Department of
Transportation.
* * * * *
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
* * * * *
    6. The heading to subpart C of part 234 is revised to read as
follows:

Subpart C--Response to Reports from Railroad and Public Agency
Employees of Warning System Malfunction at Highway-Rail Grade
Crossings.

* * * * *
    7. Subpart E of part 234 is added to read as follows:

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

Sec.
234.301 Definitions.
234.303 Telephonic notification of unsafe conditions at a highway-
rail or pathway grade crossing.
234.305 Remedial actions.
234.307 Third-party telephone service.
234.309 ENS signs in general.
234.311 ENS sign placement and maintenance.
234.313 Recordkeeping.
234.315 Electronic recordkeeping.
234.317 Compliance dates.

Sec.  234.301  Definitions.

    As used in this subpart--
    Automated answering service means a type of answering service in
which a telephone call is answered by any means other than an actual
human being speaking live to the caller at the time that the call is
made.
    Class II and Class III have the meaning assigned by regulations of
the Surface Transportation Board (49 CFR part 1201; General
Instructions 1-1), as those regulations may be revised and applied by
order of the Board (including modifications in class threshold based on
revenue deflator adjustments).
    Dispatching railroad means a railroad that dispatches or otherwise
provides the authority for the movement of one or more trains through a
highway-rail or pathway grade crossing.
    Emergency Notification System means a system in place by which a
railroad receives, processes, and attends to reports of an unsafe
condition at a highway-rail or pathway grade crossing through which it
dispatches a train. An Emergency Notification System includes the
following components:
    (1) Signs, placed and maintained at the grade crossings by the
railroad responsible for maintaining the crossing, that display the
information necessary for the public to report an unsafe condition at
the grade crossing to the railroad that dispatches trains through the
crossing;
    (2) The method that the dispatching railroad uses to receive and
process a telephone call reporting the unsafe condition;
    (3) The remedial actions that the dispatching railroad takes to
address the report of the unsafe condition;
    (4) The remedial actions that the maintaining railroad takes if the
dispatching railroad does not have maintenance responsibility; and
    (5) The recordkeeping conducted by the railroad or railroads in
response to the report of the unsafe condition at the grade crossing.
    ENS means Emergency Notification System as defined in this section.
    Highway-rail and pathway grade crossing means a highway-way rail
grade crossing and a pathway grade crossing.
    Highway-rail or pathway grade crossing means either a highway-rail
grade crossing or a pathway grade crossing.
    Maintaining railroad means the owner of the track at the highway-
rail or the pathway grade crossing. If the track owner has contracted
out the responsibility to maintain a warning system or track structure
at a highway-rail or a pathway grade crossing, the contractor is
considered the ``maintaining railroad'' for the purposes of this
subpart.
    Pathway grade crossing means a pathway that has all of the
following characteristics:
    (1) That is explicitly authorized by a public authority or a
railroad;
    (2) That is dedicated for the use of nonvehicular traffic,
including pedestrians, bicyclists, and others;
    (3) That is not associated with a public highway, road, or street,
or a private roadway; and
    (4) That crosses one or more railroad tracks at grade.

Sec.  234.303  Telephonic notification of unsafe conditions at a
highway-rail or pathway grade crossing.

    (a) Duty of dispatching railroad in general. Each dispatching
railroad shall establish and maintain a toll-free telephone service by
which the railroad can directly receive calls from the public reporting
any of the conditions listed in paragraph (b) of this section with
respect to a highway-rail grade crossing through which the railroad
dispatches a train and paragraph (c) of this section with respect to a
pathway grade crossing through which the railroad dispatches a train.
The railroad shall not use an automated answering service for the
purpose of receiving reports pursuant to this section.
    (b) Reportable unsafe conditions at highway-rail grade crossings.
Each dispatching railroad shall establish a service pursuant to Sec.
234.303(a) to receive reports or specific information regarding the
following conditions with respect to a highway-rail grade crossing
through which it dispatches a train:
    (1) A warning system malfunction at the highway-rail grade
crossing;
    (2) A disabled vehicle or other obstruction blocking a railroad
track at the highway-rail grade crossing;
    (3) An obstruction to the view of a pedestrian or a vehicle
operator for a reasonable distance in either direction of a train's
approach to the highway-rail grade crossing; or
    (4) Any information relating to any other unsafe condition at the
highway-rail grade crossing.
    (c) Reportable unsafe conditions at pathway grade crossings. Each
dispatching railroad shall establish a service pursuant to Sec.
234.303(a) to receive reports or information regarding the following
conditions with respect to a pathway grade crossing through which it
dispatches a train:
    (1) A failure of the active warning system at the pathway grade
crossing to perform as intended;
    (2) An obstruction blocking a railroad track at the pathway grade
crossing;

    (3) An obstruction to the view of a pathway grade crossing user for
a reasonable distance in either direction of a train's approach to the
pathway grade crossing; or
    (4) Any information relating to any other unsafe condition at the
pathway grade crossing.
    (d) Class II or III dispatching railroads. A Class II or Class III
railroad that dispatches a train through a highway-rail or pathway
grade crossing within an area in which the use of a non-toll-free
number would not incur any additional fees for the caller compared to
if a toll-free number was used, may use that non-toll-free number to
receive calls pursuant to Sec.  234.303(a) regarding each such crossing
in that area.
    (e) If a report of an unsafe condition at a highway-rail or pathway
grade crossing was not made through the telephone service described in
paragraph (a) of this section, subpart E does not apply to that report.

Sec.  234.305  Remedial actions.

    (a) General rule on response to credible reports of warning system
malfunction at highway-rail grade crossing. (1) If a railroad receives
a report pursuant to Sec.  234.303(b)(1) that is a credible report of
warning system malfunction at a highway-rail grade crossing and the
railroad has maintenance responsibility for the warning system to which