National Highway-Rail Crossing Inventory Reporting Requirements |
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Karen J. Hedlund
October 18, 2012
[Federal Register Volume 77, Number 202 (Thursday, October 18, 2012)]
[Proposed Rules]
[Pages 64077-64093]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25623]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[Docket No. FRA-2011-0007, Notice No. 1]
RIN 2130-AC26
National Highway-Rail Crossing Inventory Reporting Requirements
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to require railroads to submit information to
the U.S. DOT National Highway-Rail Crossing Inventory about highway-
rail crossings and pathway crossings over which they operate. These
amendments, which are required by the Rail Safety Improvement Act of
2008 (RSIA), would require railroads to submit information about
previously unreported and new public and private highway-rail crossings
and pathway crossings to the U.S. DOT National Highway-Rail Crossing
Inventory and to periodically update the Inventory.
DATES: Written comments must be received by December 17, 2012. Comments
received after that date will be considered to the extent possible
without incurring additional expense or delay. FRA anticipates being
able to resolve this rulemaking without a public hearing. However, if
FRA receives a specific request for a public hearing prior to November
19, 2012, a hearing 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.
FRA intends to hold a technical symposium during this comment
period, in order to facilitate discussion on the technical implications
associated with the electronic submission of data to the Crossing
Inventory. The date and location of the technical symposium will be
announced through issuance of a separate notice in the Federal
Register.
ADDRESSES: Interested parties may submit comments identified by docket
number FRA-2011-0007 by any of the following methods:
Fax: 202-493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590;
[[Page 64078]]
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Online: Comments may be filed through the Federal
eRulemaking Portal, http://www.regulations.gov. Follow the online
instructions for submitting comments.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identifier Number (RIN) for this
rulemaking (2130-AC26). Note that all comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ronald Ries, Staff Director, Grade
Crossing Safety and Trespass Prevention, Office of Safety Analysis,
FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590
(telephone: 202-493-6299), ronald.ries@dot.gov; or Kathryn Shelton,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 13,
Washington, DC 20590 (telephone: 202-493-6063),
kathryn.shelton@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Statutory Background
III. History of the U.S. DOT National Highway-Rail Crossing
Inventory Program
IV. Proposed Revisions to Inventory Guide and Inventory Form
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
I. Executive Summary
FRA is proposing amendments to 49 CFR Part 234 which would require
railroads to submit information to the U.S. DOT National Highway-Rail
Crossing Inventory (Crossing Inventory) about both public and private
highway-rail crossings and pathway crossings over which they operate.
These proposed amendments are intended to further FRA's efforts to
improve existing data on the characteristics of the Nation's public,
private, and pathway crossings and are intended to implement section
204(a) of the RSIA. Consistent with the statute, FRA is proposing to
require that railroads submit initial reports to the Crossing
Inventory, including current information about warning devices and
signage, for each previously unreported and new public and private
highway-rail crossing and pathway crossing, and that railroads
periodically update that information, including the submission of
updated ownership information after the sale of a crossing.
FRA has estimated the costs of this rule, evaluated over a 20-year
period and using a discount rate of 7 percent. For the 20-year period
analyzed, the estimated quantified cost that would be imposed on
industry totals $2.1 million with a present value (PV, 7 percent) of
$1.5 million. FRA considered the industry costs associated with
requiring railroads to establish and maintain an inventory for all
public and private highway-rail crossings and pathway crossings. Many
railroads have already implemented components of the proposed rule. FRA
estimates that as many as 50 percent of all highway-rail crossings are
currently updated in the Crossing Inventory. The requirements that are
expected to impose the largest burdens relate to the collection of
recent information and to the periodic update of the inventory.
The table below presents the estimated costs associated with the
proposed rulemaking.
20-Year Cost for Proposed Rule
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Initial Update of Inventory................................ $874,280
Periodic Update of Inventory............................... 646,856
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Total.................................................... 1,521,136
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Future costs are discounted to present value using a 7 percent discount
rate.
FRA anticipates that this rulemaking will increase the accuracy,
precision, completeness, and utility of railroad records and will
improve the Crossing Inventory. This would allow FRA to identify
highway-rail crossings and pathway crossings not currently recorded in
the existing voluntary crossing inventory. FRA believes that such
clarification in the inventory would help offset costs associated with
the rulemaking by simplifying the reporting process. FRA conducted a
break-even analysis of the rule and believes that potential benefits
from the proposal would likely equal or exceed total costs.
II. Statutory Background
The proposed rule is intended specifically to implement Section
204(a) of RSIA, Public Law 110-432, Division A, which was enacted
October 16, 2008, and generally to increase safety at highway-rail
crossings and pathway crossings. See 49 U.S.C. 20160. (National
crossing inventory). Section 20160 of title 49 of the United States
Code (Section 20160) requires the Secretary of Transportation
(Secretary) to establish reporting requirements for railroad carriers
related to public and private highway-rail grade crossings and pathway
crossings. Specifically, Section 20160 mandates that the Secretary
issue regulations requiring railroad carriers to report certain
information, including current information about warning devices and
signage, related to new and previously unreported public, private, and
pathway crossings to the Crossing Inventory. In addition, Section 20160
mandates that the Secretary issue regulations requiring railroad
carriers to periodically update certain information submitted to the
Secretary about public, private, and pathway crossings through which
they operate or public, private, and pathway crossings that are located
on trackage over which they operate. In accordance with Section 20160,
additional updates would also be required, pursuant to such
regulations, whenever a railroad carrier sells all, or a portion of, a
public, private, or pathway crossing. However, until these implementing
regulations are issued, Section 20160 provides that the Secretary may
enforce the Crossing Inventory policy, procedures, and instructions
that were in effect on October 16, 2008. The Secretary delegated the
responsibility for carrying out the mandates of Section 20160 to the
FRA Administrator. 49 CFR 1.49(oo).
III. History of the Crossing Inventory Program
In August 1972, the U.S. Department of Transportation (DOT)
submitted a Report to Congress entitled, ``Railroad-
[[Page 64079]]
Highway Safety Part II: Recommendations for Resolving the Problem.''
The primary goal of this report was to provide recommendations for
actions that would lead to a significant reduction in accidents,
fatalities, personal injuries, and property damage at highway-rail
crossings. In this Report to Congress, DOT recommended the
establishment of an information system consisting of a national
database of all highway-rail crossings in the Nation. Although various
local, State, and Federal agencies had collected and maintained
information about highway-rail crossings, most information systems or
databases were fragmented and incomplete because all information was
submitted on a voluntary basis. However, site-specific information was
needed to provide for a systematic approach for the planning and
evaluation of highway-rail crossing safety improvement programs at both
the State and Federal level.
Therefore, DOT recommended that the FRA: (1) Issue requirements for
the railroads to assign and display identification numbers at all
highway-rail crossings based on a uniform national standard to be
prescribed by DOT, (2) arrange with the railroads to provide site-
specific inventory data for all crossings on their respective lines,
and (3) update the inventory periodically by following the procedures
and standards established jointly by FRA and the Federal Highway
Administration (FHWA) in conjunction with railroad and State
representatives.
In accordance with these recommendations, the Crossing Inventory
was developed in the early 1970s through the cooperative efforts of
FHWA, FRA, the Association of American Railroads, individual States,
and individual railroads. Each highway-rail crossing was surveyed--
public and private, grade-separated and at-grade--and data was recorded
on an inventory form. The resulting inventory contained data on the
location of the crossing, the amount and type of highway and train
traffic, traffic control devices, and other physical elements of the
crossing.
As a result of these efforts, the Crossing Inventory has become a
national database of highway-rail crossings, both at-grade and grade-
separated, that is used by railroads, States, and others to obtain
information about the physical and operating characteristics of
individual crossings. The Crossing Inventory is intended to provide a
uniform inventory database which can be merged with highway-rail
crossing collision files and used to analyze information for planning
and implementation of crossing improvement programs by public and
private agencies responsible for highway-rail crossing safety, as well
as the railroad industry and academia. However, in order for the
Crossing Inventory to serve as an effective database, States and
railroads need to exchange information with each other and promptly
update the crossing data records as changes occur. Therefore, FRA has
historically acted as a clearinghouse for the exchange of crossing data
between these entities.
The Crossing Inventory receives information from individual
railroads and States to form a composite record for each crossing. This
composite record has many purposes, as it can be used to predict the
likelihood of an accident at a specific crossing. Armed with this
information, States, law enforcement organizations, the Federal
Government, and others can focus their efforts on crossings that have a
high risk of collisions and implement measures, such as improved
warning systems, enhanced enforcement, and community awareness.
As with any information system from which decisions are made, the
incorporation of accurate and timely data into the Crossing Inventory
is key. If the data is suspect, then verification is usually required
before resources may be committed. Verification requires additional
resources and may delay the implementation of improvements that could
reduce the probability of a collision. Therefore, an instructions and
procedures manual (commonly referred to as the ``Inventory Guide'') was
issued and then revised over the years, as changes were made to the
inventory form, in order to establish procedures for submitting data to
the Crossing Inventory.
IV. Proposed Revisions to Inventory Guide and Inventory Form
As part of this rulemaking, FRA proposes to make certain revisions
to the existing Inventory Guide and to the existing Form FRA F 6180.71,
which is used to report data to the Crossing Inventory (and is commonly
referred to as the ``Inventory Form''). The Inventory Guide and the
Inventory Form have been placed in the docket for public review. For
example, FRA proposes to require railroads to complete the entire
Inventory Form for previously unreported and new public crossings, in
order to satisfy the legislative intent of Section 20160 to improve the
Crossing Inventory by obtaining critical data for public crossings.
Most of the remaining changes proposed have, however, resulted from
ongoing discussions with Crossing Inventory subject matter experts
representing a wide array of crossing safety stakeholders over several
years. Nonetheless, FRA seeks comments on the draft revised Inventory
Form (Draft Inventory Form) and draft revised Inventory Guide (Draft
Guide), both of which have been placed in the docket, from all
interested parties.
FRA proposes to pare down the Inventory Guide to focus primarily on
providing instructions for completing the Inventory Form. With respect
to the Draft Guide, FRA specifically seeks comment on the following
items:
With respect to the Instructions provided in the Header of
the Draft Inventory Form, FRA seeks comment on whether the proposed
Instructions are helpful and should be retained. It should be noted,
however, that FRA intends to remove the incorrect mailing address that
is provided in the proposed Instructions.
With respect to item C in the Header of the Draft
Inventory Form, Reason for Update, FRA seeks comment on whether
railroads and States should be given the option to select more than one
reason for submitting data to the Crossing Inventory. With respect to
this item, FRA also seeks comment on whether a separate category should
be retained for crossings that are located on an abandoned segment of
track since the abandoned status of the underlying track segment may
not necessarily determine whether the crossing is still in use.
With respect to item D in the Header of the Draft
Inventory Form, DOT Crossing Inventory Number, FRA seeks comment on
whether the current practice of allowing railroads to assign a single
Inventory Number to a group of crossings in a railroad yard or an area
belonging to a private company, a port, or a dock area should be
retained.
With respect to items 17 and 18 in Part I of the Draft
Inventory Form, box 17 (Crossing Type) has been revised by removing the
category for pedestrian crossings, in order to draw a clear distinction
between public and private crossings. However, box 18 (Crossing
Purpose) has been added to the Draft Inventory Form, so that railroads
and States can identify highway-rail crossings, pedestrian crossings
located within railway stations and other pedestrian/pathway crossings.
FRA seeks comment on the proposed change to box 17, and the addition of
box 18, on the Draft Inventory Form.
With respect to item 4 in Part II of the Draft Inventory
Form, Type and Number of Tracks, FRA seeks comment on the definitions
provided for the various types of track listed, including
[[Page 64080]]
the definition for ``spur/lead'' track. Are spur/lead tracks generally
used for storage purposes?
With respect to item 5 in Part II of the Draft Inventory
Form, Train Detection, FRA seeks comment on whether it would be
advisable to collect data on the number of tracks that are equipped
with the various types of train detection.
With respect to item 2D in Part III of the Draft Inventory
Form, Advance Warning Signs, FRA seeks comment on whether the Inventory
Form should reflect the actual number of signs posted at the crossing,
as opposed to the number of posts or masts bearing advance warning
signs.
With respect to the various types of train-activated
warning devices listed in item 3 in Part III of the Draft Inventory
Form, FRA seeks comment on whether railroads should be required to
submit interim updates to the Crossing Inventory after implementation
of one or more of each type of warning device.
With respect to item 3A in Part III of the Draft Inventory
Form, Gate Arms, FRA seeks comment from all interested parties on
whether States should be assigned the responsibility for updating this
data field.
With respect to item 3D in Part III of the Draft Inventory
Form, Post-Mounted Flashing Light Assemblies, FRA seeks comment on
whether the Inventory Form should be revised to reflect the presence of
side lights that might also have been installed on the post-mounted
flashing light assemblies for the benefit of highway users on an
approaching parallel roadway.
With respect to item 3F in Part III of the Draft Inventory
Form, Original Installation Date of Current Active Warning Devices, FRA
seeks comment from all interested parties on whether the Crossing
Inventory should collect data on the installation date of active
warning devices that will be installed after the effective date of any
regulation that may be issued through this rulemaking effort.
With respect to item 2 in Part V of the Draft Inventory
Form, Functional Classification of Road at Crossing, FRA seeks comment
on whether the ``Local Access'' functional classification code should
be changed to ``Local'', in order to be consistent with the official
functional classification codes that are contained in the FHWA's
Highway Performance Monitoring System (HPMS) Manual.
With respect to item 10 in Part V of the Draft Inventory
Form, Regularly used by Hazmat Vehicles, FRA seeks comment on how to
define ``regular use'' of crossings by vehicles transporting hazardous
materials in commerce.
With respect to item 11 in Part V of the Draft Inventory
Form, Regular Emergency Services Route, FRA seeks comment on how the
term ``regular emergency services route'' should be defined.
A copy of the Draft Guide and a Draft Inventory Form have been placed
in the docket for this rulemaking and FRA seeks comment on their
content. With respect to the Draft Guide, FRA specifically seeks
comment on the proposed Crossing Inventory Responsibility Table in
Appendix B, which assigns responsibility for updating specific data
fields on the Draft Inventory Form to either the State or Railroad.
V. Section-by-Section Analysis
Section 234.1 Scope
FRA proposes to expand part 234 to include a new subpart F,
entitled: Highway-Rail Crossing Inventory Reporting. For this reason,
FRA proposes to revise paragraph (a) of this section by including a
reference to the proposed Crossing Inventory reporting and updating
requirements for railroads.
Subpart F--Highway-Rail Crossing Inventory Reporting
Section 234.401 Definitions
This section contains proposed definitions of terms used in this
subpart, listed alphabetically. Additional explanation for some of the
proposed definitions is provided below.
``Class I'' would have the meaning assigned by regulations of the
Surface Transportation Board (STB), which may be found at 49 CFR part
1201, General Instructions 1-1, Classification of carriers. To ensure
that the definition of ``Class I'' as used in this proposed subpart
incorporates any changes that the STB may make after the publication of
this subpart, this definition would include any revision to the
regulations as applied by the STB, which would include modifications in
the class threshold based on revenue deflator adjustments.
Consistent with Section 20160's definition of ``crossing'',
``highway-rail crossing'' would be defined to mean the location where
one or more railroad tracks intersect with a public highway, road,
street, or private roadway, including associated sidewalks and
pathways, either at-grade or grade-separated. For purposes of the
Crossing Inventory, railroad tracks that lie within the same pair of
crossing warning devices will be considered a single highway-rail
crossing. For example, an intersection of a roadway with three tracks
(e.g., two mainline and one spur) where the mainline tracks are
equipped with flashing lights and the spur track is equipped with
crossbucks would be considered, for purposes of the Crossing Inventory,
two crossings with two separate crossing inventory numbers. One
highway-rail crossing would consist of the mainline tracks that lie
between the flashing lights, while the other highway-rail crossing
would consist of the spur track which is equipped with crossbucks.
``Operating railroad'' would be defined to mean any railroad that
operates one or more trains through a highway-rail crossing or pathway
crossing. Thus, for purposes of this subpart, a railroad would be
considered an operating railroad even if the railroad does not own the
highway-rail crossing or pathway crossing through which it travels, or
the railroad is not responsible for maintaining the warning devices at
the highway-rail or pathway crossing. As this definition implies, there
may be multiple operating railroads for a single highway-rail crossing
or pathway crossing.
Consistent with Section 20160, a ``pathway crossing'' would be
defined to mean a pathway that has all of the following
characteristics: (1) Is explicitly authorized by a public authority or
an operating railroad; (2) is dedicated for the use of non-vehicular
traffic, including pedestrians, bicyclists, and others; (3) is not
associated with a public highway, road, or street, or a private
roadway; and (4) that crosses one or more railroad tracks either at
grade or grade-separated. However, an area where pedestrians trespass,
even routinely, is not considered to be a pathway crossing.
Pathways that are contiguous with, or separate but adjacent to,
highway-rail crossings are presumed to be part of the highway-rail
crossing and are not considered separate crossings. However, pathways
that are located at least 25 feet from the location where a highway,
road, or street intersects with one or more railroad tracks are
generally considered to be separate pathway crossings. Accordingly,
separate Inventory Numbers should be assigned to such crossings. (The
proposed rule defines ``Inventory Number'' as ``the number assigned to
a highway-rail crossing or pathway crossing in the Crossing
Inventory'').
``Primary operating railroad'' would be defined to mean the
operating railroad responsible for submitting data to, and/or updating
data in, the Crossing Inventory for a particular highway-rail crossing
or pathway crossing. Generally,
[[Page 64081]]
the primary operating railroad would be the operating railroad that
owns the highway-rail crossing (or pathway crossing) or maintains the
warning devices at the highway-rail crossing (or pathway crossing). In
the event that there is more than one operating railroad that owns the
highway-rail crossing (or pathway crossing) or maintains the warning
devices at the highway-rail crossing (or pathway crossing), the largest
operating railroad with the most rail traffic over the crossing at
issue should accept the primary operating railroad designation. Absent
an agreement between or among operating railroads delineating each
railroad's respective reporting and/or updating responsibilities
pursuant to the requirements set forth in proposed Sec. 234.405, FRA
proposes to hold each operating railroad liable for the reporting and
updating requirements set forth in this subpart.
``Private crossing'' would be defined to mean a highway-rail
crossing that is not a public crossing. Therefore, private crossings
would include intersections of roadways and railroads that are not open
to public travel or not maintained by a public authority. Typical types
of private crossings include farm crossings, industrial plant
crossings, and residential access crossings.
``Public crossing'' would be defined to mean a highway-rail
crossing where the roadway is under the jurisdiction of and maintained
by a public authority and open to public travel. All roadway approaches
must be under the jurisdiction of the public roadway authority and no
roadway approach may be on private property. FRA acknowledges that this
proposed definition contains different criteria for determining the
public nature of a highway-rail crossing than the existing definition
of ``public highway-rail grade crossing'', contained in 49 CFR part 222
related to the use of locomotive horns and quiet zones. However, this
proposed definition is consistent with the definition of the term
``public grade crossing'' in 23 CFR 924.3, which is widely used by
States for Highway Safety Improvement Program planning and funding
purposes. Based on the generally accepted usage of this definition by
States, FRA believes it is logical to use this definition for Crossing
Inventory reporting purposes as well.
With respect to crossings in States where a State agency (such as a
State Department of Transportation, State Highway Department, Public
Utility Commission, or State Commerce Commission) has been empowered to
make determinations as to whether individual crossings are public or
private, the determinations of that State agency will govern the
public/private classification of highway-rail crossings in the State
for purposes of the Crossing Inventory.
``Temporary crossing'' would be defined to mean a highway-rail
crossing created to serve a specific activity for a temporary time
period not to exceed six months. For example, highway-rail crossings
that provide access to construction sites would fall into this
category. Given their temporary nature, Inventory Numbers are not
assigned to temporary crossings and FRA is not proposing to require
railroads to report such crossings to the Crossing Inventory.
Section 234.403 Submission of Data to the Crossing Inventory, Generally
Proposed paragraph (a) of this section would require use of the
Inventory Form to submit data to the Crossing Inventory, in accordance
with the requirements of proposed Sec. 234.405. Prior to the effective
date of this subpart, FRA will continue to accept hard copy submissions
of the current Inventory Form from all railroads and States. However,
as of the effective date of any final rule issued as a result of this
rulemaking effort, FRA proposes to allow only Class II and Class III
railroads, as well as States, to either use the Draft Inventory Form (a
draft form has been placed in the docket for review and comment) or to
submit data electronically to the Crossing Inventory. Proposed
instructions for submitting hard copies of the Inventory Form can be
found in the Draft Guide, while proposed instructions for submitting
data electronically to the Crossing Inventory can be found in the draft
Electronic Submission Instructions. The Draft Guide and the draft
Electronic Submission Instructions have been placed in the public
docket for this rulemaking. FRA seeks comment on the content of both of
these documents.
As explained in the Draft Guide, FRA intends to discontinue use of
the GX32 software program for submitting electronic data to the
Crossing Inventory. FRA proposes to replace the GX32 software program
with a secure web-based application. FRA also proposes to allow
railroads and states to use multiple submission formats (.xml, .mdb,
.xls, and .xlsx), in addition to the web-based application. (Please
refer to the draft Electronic Submission Instructions that have been
placed in the public docket for more information.) Since FRA proposes
to require that Class I railroads submit crossing data to the Crossing
Inventory electronically, Class I railroads would need to make the
necessary adjustments to their existing electronic data systems in
order to facilitate compatibility with the proposed electronic file
formats and data specifications contained in the draft Electronic
Submission Instructions. Therefore, FRA intends to hold a technical
symposium during this NPRM's comment period for all interested parties,
particularly those involved in the technical aspects of the actual
electronic submission of data to the Crossing Inventory, to discuss the
technical implications of using only these formats (.xml, .mdb, .xls,
and .xlsx). FRA will publish a separate notice in the Federal Register
providing the logistics of such a meeting once the details are
finalized. The proposed changes include changes to the content of the
form (new field and expanded codes) and to the specified type of file
allowed for submission.
Proposed paragraph (b) of this section would require completion of
the Inventory Form, in accordance with the instructions contained
within the Draft Guide. As explained in the Draft Guide, one Inventory
Form should be submitted to the Crossing Inventory for each public,
private or pathway crossing. The Draft Guide contains exceptions to
this general rule related to crossings located in railroad yards or
areas belonging to private companies, ports, or dock areas and
crossings located within railroad stations. Where there is more than
one crossing in a railroad yard or a private railroad yard belonging to
a private company, a port, or a dock area, the primary operating
railroad may choose to submit one Inventory Form that would assign one
Inventory Number to all (or a group) of the crossings within the
private property limits. Alternatively, the primary operating railroad
may submit one Inventory Form that would assign one Inventory Number to
each individual crossing located within private property limits. (See
Draft Guide discussion of item D in the Header of the Draft Inventory
Form, DOT Crossing Inventory Number.) FRA believes this approach is
consistent with current generally accepted practice in the industry,
but seeks comment on whether this exception should be retained, as the
decision to assign one Inventory Number to a group of crossings instead
of a single crossing cannot be revised once the Inventory Number has
been assigned.
The Draft Guide contains a similar exception for multiple pathway
crossings that are contained within a railroad station. Therefore, the
primary operating railroad may choose to submit one Inventory Form that
would assign
[[Page 64082]]
one Inventory Number to all (or a group) of the pathway crossings at a
railway station. Alternately, the primary operating railroad may submit
one Inventory Form that would assign one Inventory Number to each
individual pathway crossing located within a railroad station. FRA also
seeks comment on this proposed exception.
Paragraph (c) proposes to require Class I railroads to submit all
crossing data to the Crossing Inventory electronically. Since most
Class I railroads already submit crossing data to the Crossing
Inventory electronically, FRA does not believe that this proposed
requirement would be unduly burdensome. In accordance with paragraph
(a) of this section, Class II and Class III railroads, as well as
States, may choose to submit their crossing data to the Crossing
Inventory electronically or submit hard copies of the Inventory Form.
An explanation of the proposed file formats and data specifications can
be found in the draft Electronic Submission Instructions, a copy of
which has been placed in the docket for review and comment by all
interested parties. FRA seeks comment as to whether additional
railroads should be required to submit crossing data to the Crossing
Inventory electronically.
As noted above, FRA intends to discontinue use of the GX32 software
product, which currently allows States and railroads to submit revised
data to the Crossing Inventory electronically through use of a computer
disk or the Internet. FRA intends to discontinue use of the GX32
software and replace it with a secure web-based application that
provides similar functionality, yet facilitates instantaneous updates
to crossing data. Therefore, any pending changes using GX32 software
would need to be submitted prior to implementation of the web-based
system. FRA also intends to transition the official Crossing Inventory
database to the new web-based application. Therefore, railroads that
are currently using the GX32 software product to submit crossing data
electronically to the Crossing Inventory or who are submitting data
electronically via other means would be required to make adjustments to
their existing electronic data systems to ensure such systems will work
with the revised Crossing Inventory database. Accordingly, FRA seeks
comment as to the feasibility of Class I railroads being able to make
the necessary adjustments to their existing electronic data systems (or
to develop new electronic data systems) that would allow for compliance
with the draft Electronic Submission Instructions, as well as
compliance with the timeframes proposed in Sec. 234.405 for reporting
previously unreported and new highway-rail crossings and pathway
crossings.
As noted above, FRA intends to hold a technical symposium during
this NPRM's comment period for all interested parties, particularly
those involved in the actual electronic submission of data to the
Crossing Inventory, to discuss the technical implications of using only
certain specified submission formats (.xml, .mdb, .xls, and .xlsx). FRA
will publish a separate notice in the Federal Register providing the
logistics of such a meeting once the details are finalized.
Section 234.405 Submission of Initial Data and Periodic Updates to the
Crossing Inventory
Proposed paragraph (a) of this section would require the submission
of data to the Crossing Inventory for previously unreported crossings.
Specifically, proposed paragraph (a)(1) is intended to implement
paragraph (a)(1) of Section 20160, which requires railroad carriers to
report to the Secretary ``current information, including information
about warning devices and signage * * * concerning each previously
unreported crossing through which it operates or with respect to the
trackage over which it operates.'' Proposed paragraph (a)(1) would
require that each primary operating railroad submit a completed
Inventory Form (or its electronic equivalent) to the Crossing
Inventory, in accordance with proposed Sec. 234.403, for each
previously unreported public, private, and pathway crossing through
which it operates no later than six months after the effective date of
any final rule implementing this requirement. This requirement would
apply to previously unreported at-grade and grade-separated crossings,
but would not apply to temporary crossings. For purposes of proposed
paragraph (a) of this section, ``previously unreported'' crossings
would be public, private, and pathway crossings that have not been
reported to the Crossing Inventory as of the effective date of any
final rule implementing this requirement.
Proposed paragraph (a)(1) would further require that the completed
Inventory Form (or its electronic equivalent) reference the assigned
Inventory Number for the crossing. If the primary operating railroad
does not already have an Inventory Number that can be assigned to a
previously unreported crossing, an Inventory Number will need to be
obtained for the crossing. Instructions for obtaining an Inventory
Number can be found in the Draft Guide. Once an Inventory Number has
been placed on an Inventory Form (or its electronic equivalent) and
submitted to the Crossing Inventory, the Inventory Number will be
permanently assigned to the crossing.
Historically, since submission of crossing information to the
Crossing Inventory was voluntary, the primary operating railroad would
submit a partially completed copy of the Inventory Form to the
applicable State authority, so that the State authority could provide
the remaining data and submit the completed Inventory Form to the
Crossing Inventory for processing. Given existing constraints on the
scope of FRA's statutory authority, this NPRM does not propose to
require States to submit crossing information to the Crossing
Inventory. While FRA would encourage State agencies to participate
fully in the submission of updated information to the Crossing
Inventory, FRA has refrained from proposing regulatory language that
would require railroads to submit copies of their Inventory Forms to
the applicable State authorities for completion. However, this proposed
rule would require railroads to complete data fields on the Inventory
Form that have historically been completed by State authorities for
each previously unreported public highway-rail at-grade crossing in
order to satisfy the legislative intent of Section 20160 to improve the
Crossing Inventory by obtaining critical data for public crossings. FRA
expects that railroads will seek input from State authorities with
respect to certain data fields. FRA seeks comment on this proposal.
Therefore, as stated in proposed paragraph (a) of this section, as
well as the Draft Guide, railroads would be required to obtain
Inventory Numbers from FRA and to assign a specific Inventory Number to
each previously unreported public, private, or pathway crossing (unless
the proposed exception for multiple crossings located in railroad
yards, within railway stations, or areas belonging to private
companies, ports, or dock areas would be applicable). Railroads would
then be required to provide information for all of the data fields on
the Inventory Form for each previously unreported public highway-rail
at-grade crossing and to submit the completed Inventory Form (or its
electronic equivalent) to the Crossing Inventory no later than six
months after the effective date of any final rule that may be issued as
a result of this rulemaking. In accordance with generally accepted
practice, however, railroads would only be required to provide
information for the data fields in the Header and Part I of the Draft
[[Page 64083]]
Inventory Form for previously unreported private highway-rail
crossings, pathway crossings, and grade-separated crossings. FRA has
not historically collected data associated with Parts II-V of the
Inventory Form for these crossings.
Proposed paragraph (a)(2) of this section would require operating
railroads, other than the primary operating railroad, to confirm that a
completed Inventory Form (or its electronic equivalent) was timely
submitted to the Crossing Inventory in accordance with proposed
paragraph (a)(1) of this section. If the operating railroad discovers
that one or more previously unreported public, private or pathway
crossings (except a temporary crossing) over which it operates was not
timely reported to the Crossing Inventory, proposed paragraph (a)(2) of
this section would require that the operating railroad provide written
notification of the unreported crossing to the FRA Associate
Administrator for Railroad Safety/Chief Safety Officer (Associate
Administrator). This provision is being proposed in order to implement
49 U.S.C. 20160(a)(2), which requires railroad carriers to ``ensure
that the [current information, including information about warning
devices and signage, concerning each previously unreported crossing]
has been reported to the Secretary by another railroad carrier that
operates through the crossing.''
At a minimum, the proposed written notification requirement
contained in paragraph (a)(2) of this section would require operating
railroads to provide the latitudinal and longitudinal coordinates for
each previously unreported public, private, or pathway crossing for
which a completed Inventory Form (or its electronic equivalent) was not
timely submitted to the Crossing Inventory. While State agencies have
historically submitted latitudinal and longitudinal coordinates to the
Crossing Inventory, railroads provide this data to FRA for rail-
equipment train accident reporting purposes. Therefore, FRA believes
that this proposed requirement will not be unduly burdensome. FRA seeks
comment on this proposal.
FRA proposes to hold each operating railroad liable, including the
primary operating railroad, for each unreported public, private, and
pathway crossing for which written notification was not timely provided
to the FRA Associate Administrator, in accordance with proposed
paragraph (a)(2) of this section. However, in order to facilitate
compliance with this proposed requirement, FRA proposes to establish an
automated FRA email notification system that would notify participating
States and railroads whenever public, private, or pathway crossings are
added to the Crossing Inventory. FRA seeks comment from all interested
parties on whether this proposed notification system would be useful.
Proposed paragraph (a)(3) of this section would allow an entity
other than the primary operating railroad to submit a completed
Inventory Form (or its electronic equivalent) to the Crossing Inventory
for one or more previously unreported public, private, or pathway
crossings, in order to satisfy the proposed reporting requirements
contained in paragraph (a)(1) of this section. This proposed provision
is intended for use by State agencies with jurisdiction over the
previously unreported crossings that may wish to submit crossing data
to the Crossing Inventory on behalf of the primary operating railroad.
In the event that an entity other than the primary operating
railroad would like to submit crossing data to the Crossing Inventory
on behalf of the primary operating railroad, proposed paragraph (a)(3)
of this section would require that the reporting entity and the primary
operating railroad provide written notification to the Associate
Administrator of the entity assuming reporting responsibility. Proposed
paragraph (a)(3) of this section would further require that any such
notification must contain positive identification of the locations that
will be covered.
Proposed paragraph (a)(3) of this section is not, however, intended
to allow the primary operating railroad to completely transfer its
responsibility for timely compliance with the proposed reporting
requirements of paragraph (a)(1) of this section to the reporting
entity. Therefore, FRA reserves the right to hold the primary operating
railroad, as well as the reporting entity liable, as appropriate, for
failure to timely comply with the reporting requirements of paragraph
(a)(1) of this section. Other operating railroads could potentially
also be held liable for the failure to comply with the reporting
requirements of paragraph (a)(1) of this section, if they fail to
provide written notification of the unreported crossing in accordance
with paragraph (a)(2) of this section.
Proposed paragraph (b) of this section would require the submission
of data to the Crossing Inventory for new public and private highway-
rail crossings and pathway crossings, including new grade-separated
crossings. For purposes of this paragraph, ``new'' crossings would be
public, private, and pathway crossings that were not in existence prior
to the effective date of any final rule implementing this proposal.
Proposed paragraph (b) of this section would not, however, apply to
temporary crossings.
Proposed paragraph (b)(1) of this section would require that each
primary operating railroad submit a completed Inventory Form (or its
electronic equivalent) to the Crossing Inventory for each new public,
private, or pathway crossing (except a temporary crossing) through
which it operates no later than six months after the crossing becomes
operational. If the primary operating railroad does not already have an
Inventory Number that can be assigned to the new crossing, an Inventory
Number will need to be obtained for the crossing. Instructions for
obtaining Inventory Numbers can be found in the Draft Guide. Once an
Inventory Number has been assigned to the crossing, proposed paragraph
(b)(1) of this section would require that the primary operating
railroad submit a completed Inventory Form (or its electronic
equivalent) to the Crossing Inventory, in accordance with Sec.
234.403, which references the assigned Inventory Number.
Paragraph (b)(1) of this section has been proposed to implement 49
U.S.C. 20160(a)(1), which states that ``[n]ot later than * * * 6 months
after a new crossing becomes operational, * * * each railroad carrier
shall--(1) report to the Secretary of Transportation current
information, including information about warning devices and signage,
as specified by the Secretary, concerning each previously unreported
crossing through which it operates or with respect to the trackage over
which it operates.''
Proposed paragraph (b)(2) of this section would require operating
railroads, other than the primary operating railroad, which operate
through a new crossing for which a completed Inventory Form (or its
electronic equivalent) has not been submitted to the Crossing Inventory
within six months after the crossing becomes operational, to provide
written notification of this oversight to the FRA Associate
Administrator. This provision has been proposed in order to implement
49 U.S.C. 20160(a)(2), which states that, ``[n]ot later than * * * 6
months after a new crossing becomes operational, * * * each railroad
carrier shall--(2) ensure that the [current information, including
information about warning devices and signage, concerning each
previously unreported crossing] has been reported to the
[[Page 64084]]
Secretary by another railroad carrier that operates through the
crossing,''
At a minimum, the proposed written notification requirement
contained in paragraph (b)(2) of this section would require railroads
to provide the latitudinal and longitudinal coordinates for each new
public, private, or pathway crossing that was not timely reported to
the Crossing Inventory in accordance with paragraph (b)(1) of this
section. While State agencies have historically submitted latitudinal
and longitudinal coordinates to the Crossing Inventory, railroads
provide this data to FRA for rail-equipment train accident reporting
purposes. Therefore, FRA believes that this proposed requirement would
not be unduly burdensome. FRA seeks comment on this proposal.
FRA proposes to hold each operating railroad, including the primary
operating railroad, liable for each new public, private, and pathway
crossing (including grade-separated crossings, but excluding temporary
crossings) that was not timely reported to the Crossing Inventory, in
accordance with paragraph (b)(1) of this section, unless the operating
railroad provides written notification to the Associate Administrator
of the unreported crossing. In order to facilitate compliance with this
proposed requirement, FRA proposes to establish an automated FRA email
notification system that would notify participating States and
railroads whenever public, private, or pathway crossings are added to
the Crossing Inventory. FRA seeks comment on this proposal.
Proposed paragraph (b)(3) of this section would allow multiple
operating railroads to assume joint responsibility for submitting data
to the Crossing Inventory for new public, private, or pathway
crossings, in accordance with the Draft Guide. As stated in the Draft
Guide, two or more railroads that have agreed to file their own
separate inventory information for the same public, private, or pathway
crossing would need to check the box labeled ``Multiple Forms Filed''
in Item no. 7 of Part I of the Draft Inventory Form, in order to notify
FRA of their agreement.
Proposed paragraph (b)(4) of this section would allow an entity
other than the primary operating railroad to submit a completed
Inventory Form (or its electronic equivalent) to the Crossing
Inventory, in order to satisfy the proposed reporting requirements
contained in paragraph (b)(1) of this section. This proposed provision
is intended for use by State agencies with jurisdiction over the new
public, private, or pathway crossings that may wish to submit crossing
data to the Crossing Inventory on behalf of the primary operating
railroad.
In the event that an entity other than the primary operating
railroad would like to submit crossing data to the Crossing Inventory
on behalf of the primary operating railroad, proposed paragraph (b)(4)
would require that the reporting entity and the primary operating
railroad provide written notification to the Associate Administrator of
the entity assuming reporting responsibility. Proposed paragraph (b)(4)
of this section would further require that any such notification
include positive identification of the locations that will be covered.
Proposed paragraph (b)(4) of this section is not, however, intended
to allow the primary operating railroad to completely transfer its
responsibility for timely compliance with the proposed reporting
requirements of paragraph (b)(1) of this section to the reporting
entity. Therefore, FRA reserves the right to hold the primary operating
railroad and the reporting entity, as appropriate, liable for failure
to timely comply with the reporting requirements of paragraph (b)(1) of
this section. Other operating railroads might also be held liable if
they fail to provide written notification of an unreported crossing in
accordance with paragraph (b)(2) of this section.
Proposed paragraph (c) of this section would require that the
primary operating railroad periodically submit up-to-date and accurate
data to the Crossing Inventory for each public, private, and pathway
crossing through which it operates, in accordance with the Draft Guide.
Submission of these periodic updates would not, however, be required
for temporary crossings, since FRA is not proposing to require the
reporting of temporary crossings to the Crossing Inventory, or to
require periodic updating for grade-separated crossings since changes
in crossing characteristics do not appear to have a significant impact
on existing risk levels at grade-separated crossings.
Proposed paragraph (c)(1) of this section sets forth a proposed
timeframe within which the primary operating railroad would be required
to submit updated crossing data for each public, private, and pathway
crossing to the Crossing Inventory. This provision has been proposed in
order to implement 49 U.S.C. 20160(b)(1)(A), which mandates that
railroads periodically ``report to the Secretary current information,
including information about warning devices and signage, as specified
by the Secretary, concerning each crossing through which it operates or
with respect to the trackage over which it operates.''
Proposed paragraph (c)(1) would require that the primary operating
railroad submit up-to-date and accurate crossing data for each public,
private, and pathway crossing (other than a temporary crossing or a
grade-separated crossing) through which it operates at least every
three years from the date of the most recent railroad submission (or
submission on behalf of a railroad) to the Crossing Inventory or within
six months of the effective date of any final rule implementing this
requirement, whichever occurs later.
Appendix B to the Draft Guide contains a proposed Crossing
Inventory Responsibility Table that assigns responsibility for updating
data fields on the proposed Inventory Form to the operating railroad
and/or the applicable State agency. In accordance with paragraphs
(a)(1) and (b)(1) of proposed Sec. 234.405, railroads would be
required to complete all of the data fields on the Inventory Form when
initially reporting previously unreported and new public highway-rail
at-grade crossings. However, a primary operating railroad would only be
required to submit up-to-date and accurate information for the data
fields on the Inventory Form that are assigned to the operating
railroads by the Crossing Inventory Responsibility Table in Appendix B
to the Draft Guide. (All remaining data fields on the Inventory Form
would be updated by State authorities on a voluntary basis.) Similarly,
even though the primary operating railroad would be required to submit
up-to-date and accurate information for all of the data fields in the
Header and Part I of the Draft Inventory Form for previously unreported
private crossings, previously unreported pathway crossings, new private
crossings, and new pathway crossings, the primary operating railroad
would only be required to submit up-to-date and accurate information
for the data fields in the Header and Part I of the Draft Inventory
Form that are assigned to the operating railroad by the Crossing
Inventory Responsibility Table in Appendix B to the Draft Guide. FRA
seeks comment on the proposed assignment of responsibility for updating
data fields on the Inventory Form.
If each applicable railroad-assigned data field in the Crossing
Inventory is accurate and up-to-date when the periodic update becomes
due, the primary operating railroad should simply update the
information contained in the data fields in the Header portion of the
Draft Inventory Form (or its electronic equivalent) for the affected
crossing, in accordance with the Draft Guide.
[[Page 64085]]
Proposed paragraph (c)(2) of this section would require operating
railroads, other than the primary operating railroad, that operate
through any at-grade public, private, or pathway crossing (other than a
temporary crossing or a grade-separated crossing) for which up-to-date
and accurate information has not been submitted to the Crossing
Inventory in accordance with paragraph (c)(1) of this section to
provide written notification of this oversight to the Associate
Administrator. This provision proposes to implement 49 U.S.C.
20160(b)(1)(B), which mandates that railroads periodically ``ensure
that [current information, including information about warning devices
and signage] has been reported to the Secretary by another railroad
carrier that operates through the crossing.''
As was the case with proposed paragraph (c)(1) of this section, FRA
proposes to exercise the discretion granted to the Secretary to
determine the intervals by which periodic updates must be submitted to
the Crossing Inventory. Accordingly, the proposed written notification
requirement contained in paragraph (c)(1) of this section would not
take effect unless up-to-date and accurate information was not
submitted to the Crossing Inventory for a public, private, or pathway
crossing (other than a temporary crossing or a grade-separated
crossing) at least three years from the date of the most recent
railroad submission or within six months after the effective date of
any final rule implementing this requirement, whichever occurs later.
At a minimum, the written notification that would be required by
proposed paragraph (c)(2) of this section must include the Inventory
Number for each public, private, or pathway crossing that has not been
updated. FRA proposes to hold each operating railroad, including the
primary operating railroad, liable for each Crossing Inventory record,
for public, private, or pathway crossings (other than a temporary
crossing or a grade-separated crossing) over which the railroad
operates, that has not been updated in accordance with paragraph (c)(1)
of this section, unless written notification of the outdated record is
provided to the Associate Administrator by the operating railroad in
accordance with proposed paragraph (c)(2) of this section. However, in
order to facilitate compliance with this proposed requirement, FRA
proposes to establish an automated FRA email notification system that
would notify participating States and railroads whenever changes have
been made to the Crossing Inventory data associated with certain
specified public, private, or pathway crossings. FRA seeks comment on
whether this proposed notification system would be useful.
Proposed paragraph (c)(3) of this section would allow two or more
operating railroads to assume joint responsibility for submitting
periodic updates to the Crossing Inventory in accordance with the Draft
Guide. As stated in the Draft Guide, two or more operating railroads
that have agreed to file their own separate inventory information for
the same public, private, or pathway crossing would need to check the
box labeled ``Multiple Forms Filed'' in Item no. 7 of Part I of the
Draft Inventory Form, in order to notify FRA of their agreement.
Proposed paragraph (c)(4) of this section would allow an entity
other than the primary operating railroad to submit up-to-date and
accurate crossing data to the Crossing Inventory, in order to satisfy
the proposed periodic updating requirements contained in paragraph
(c)(1) of this section. In the event that an entity other than the
primary operating railroad assumes responsibility for submitting the
required updates for a particular crossing, proposed paragraph (c)(4)
would require that the reporting entity and the primary operating
railroad provide written notification to the FRA Associate
Administrator of the entity assuming the periodic updating
responsibility. This paragraph would further require that any such
notification must contain positive identification of the locations that
will be covered.
Proposed paragraph (c)(4) of this section is not, however, intended
to allow the primary operating railroad to completely transfer its
responsibility for timely compliance with the proposed periodic
updating requirements in paragraph (c)(1) of this section. Therefore,
FRA reserves the right to hold the primary operating railroad and the
reporting entity, as appropriate, liable for failure to timely comply
with the periodic updating requirements of paragraph (c)(1) of this
section Other operating railroads might also be held liable if they
fail to provide written notification of outdated Inventory records for
public, private, or pathway crossings over which they operate, in
accordance with paragraph (c)(2) of this section.
Paragraph (d) of this section contains proposed updating
requirements related to the sale of a public, private, or pathway
crossing. With respect to the sale of all or part of any public,
private, or pathway crossing, proposed paragraph (d) of this section
would require the selling railroad to submit an Inventory Form (or its
electronic equivalent) that reflects the crossing sale to the Crossing
Inventory. This proposed provision is intended to implement 49 U.S.C.
20160(b)(2), which requires that railroads that sell a crossing report
to the Secretary, within three months of such sale, current
information, concerning the change in ownership of the crossing or part
of the crossing.
Accordingly, proposed paragraph (d) of this section would require
the submission of updated crossing data to the Crossing Inventory, no
later than three months after the date of sale, in accordance with
proposed Sec. 234.403 and the Draft Guide. Pursuant to the Draft
Guide, the selling railroad would simply be required to update the
Crossing Inventory by revising either the Primary Operating Railroad
data field (item one in Part I of the Draft Inventory Form) or the
Operating Railroad data field (item 8 in Part I of the Draft Inventory
Form) to reflect the change in ownership. The selling railroad should
not, however, attempt to close the crossing record in the Crossing
Inventory, since the crossing will remain in use and its assigned
Inventory Number will remain the same.
With respect to certain specified changes in crossing
characteristics, involving crossing closure, change in crossing
surface, or change in warning device at a public, private, or pathway
crossing, proposed paragraph (e)(1) of this section would require that
the primary operating railroad submit an Inventory Form (or its
electronic equivalent), which reflects updated information in all
applicable data fields, to the Crossing Inventory, in accordance with
the Draft Guide and Sec. 234.403 of this part, within three months
after the implementation date of the change. For purposes of this
provision, a ``change in warning device'' means a change in the type of
warning device installed at the crossing, as opposed to the
modification of an existing crossing warning device. Therefore,
upgrades from crossbuck signs to crossbuck and STOP signs would be
considered a ``change in warning device'' that would trigger the update
requirements contained in this section. Another example of a ``change
in warning device'' that would trigger the proposed updating
requirements would be the addition of cantilevered lights to a crossing
that is already equipped with post-mounted flashing lights. Other
changes in warning devices that would trigger the proposed updating
requirement would include the installation of a crossbuck, yield, or
stop sign, flashing lights, conventional
[[Page 64086]]
gates, and 4-quadrant gates at a grade crossing. FRA seeks comment on
whether the 3-month period for reporting these changes in crossing
characteristics should be shortened. Also, FRA seeks comment on whether
this list of changes to crossing characteristics, which would trigger a
requirement to submit updated data to the Crossing Inventory,
adequately reflects the spectrum of significant changes to crossing
characteristics that should be reported to the Crossing Inventory
shortly after implementation, or whether this list of changes to
crossing characteristics should be expanded to include significant
changes to train counts and train speed as well, or other relevant
factors.
Proposed paragraph (e)(2) of this section would allow an entity
other than the primary operating railroad to submit updated crossing
data to the Crossing Inventory, in order to satisfy the proposed
reporting requirements contained in paragraph (e)(1) of this section.
In the event that an entity other than the primary operating railroad
assumes responsibility for submitting the required updates for a
particular crossing to the Crossing Inventory, proposed paragraph
(e)(2) of this section would require that the reporting entity and the
primary operating railroad provide written notification to the
Associate Administrator of the entity assuming the reporting
responsibility. Proposed paragraph (e)(2) of this section would further
require that any such notification contain positive identification of
the location(s) that will be covered.
Proposed paragraph (e)(2) is not, however, intended to allow the
primary operating railroad to completely transfer its responsibility
for timely compliance with updating requirements of paragraph (e)(2) of
this section. Therefore, FRA reserves the right to hold the primary
operating railroad and the reporting entity liable for failure to
timely submit updated crossing data to the Crossing Inventory in
accordance with the proposed updating requirements of paragraph (e)(1)
of this section.
Section 234.407 Recordkeeping
Proposed Sec. 234.407 sets forth the recordkeeping requirements
for this subpart that would apply to each railroad subject to this
subpart. Proposed paragraph (a) of this section would require each
railroad to keep certain records pertaining to its compliance with this
subpart. Records may be kept on paper or electronically in a manner
that conforms with proposed Sec. 234.409.
Proposed paragraph (b) of this section would require operating
railroads, including the primary operating railroad, to keep either a
duplicate copy of each Inventory Form that was submitted in hard copy
to the Crossing Inventory, or a copy of the electronic confirmation
received from FRA after new or updated crossing data has been
electronically submitted to the Crossing Inventory.
Proposed paragraph (c) of this section would require that the
railroad maintain a list of locations where a copy of any record
required to be retained by this subpart is accessible for inspection
and photocopying. Proposed paragraph (c) would further require that
this list of locations be kept at the office where the railroad's
reporting officer conducts his or her official business.
Proposed paragraph (d) of this section would require that each
operating railroad retain for at least four years (from the date of
submission to the Crossing Inventory) either a duplicate copy of the
Inventory Form that was submitted in hard copy by the railroad to the
Crossing Inventory or a copy of the email confirmation received from
FRA after new or updated crossing data has been electronically
submitted to the Crossing Inventory. Records required to be kept must
be made available to FRA as provided by statute (49 U.S.C. 20107).
Section 234.409 Electronic Recordkeeping
Proposed Sec. 234.409 contains requirements that would apply to
the electronic retention of records required by this subpart.
If a railroad chooses to conduct electronic recordkeeping of
records required by this subpart, proposed paragraph (a)(1) of this
section would require that the railroad adopt adequate security
measures to limit employee access to its electronic data processing
system and prescribe which employees will be allowed to create, modify,
or delete data from the database.
Proposed paragraph (a)(2) of this section would require the
railroad to have a terminal at the office where the railroad reporting
officer conducts his or her official business and at each location
designated by the railroad as having a copy of any record required to
be retained by this subpart that is accessible for inspection and
photocopying. In addition, proposed paragraph (a)(3) of this section
would require the railroad to have a computer and a facsimile or
printer connected to the computer to retrieve and produce records for
immediate review.
Proposed paragraph (a)(4) of this section would require the
railroad to designate someone who will be authorized to authenticate
hard copies produced from the electronic format.
Proposed paragraph (a)(5) would require the railroad to make
electronic documents 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 would reserve the right to review and examine the
documents prepared in accordance with this subpart at any reasonable
time if situations warrant. In addition, in the event that an
electronic record kept by the railroad pursuant to this subpart does
not comply with the proposed requirements contained in paragraph (a) of
this section, proposed paragraph (b) of this section would require that
the record be kept on paper in accordance with the recordkeeping
requirements contained in Sec. 234.407. In short, each railroad
electing to retain its records electronically would be required to
ensure the integrity of the information and prevent possible tampering
of data, thus ensuring the overall integrity of the inventory.
Appendix A to Part 234--Schedule of Civil Penalties
Appendix A to part 234 contains a schedule of civil penalties for
use in connection with this part. FRA intends to revise the schedule of
civil penalties when issuing the final rule to reflect revisions made
to part 234. Because such penalty schedules are statements of agency
policy, notice and comment are not required prior to their issuance.
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to
submit suggestions to FRA describing the types of actions or omissions
for each proposed regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalties may be appropriate, based upon the relative severity of
each type of violation.
VI. Regulatory Impact and Notices
A. Executive Order 12866 and 13563 and DOT Regulatory Review 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.
[[Page 64087]]
As part of the regulatory evaluation, FRA has assessed quantitative
estimates 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
$2.1 million with a present value (PV, 7 percent) of $1.5 million. FRA
conducted a break-even analysis of the rule and believes that potential
benefits from the proposal would likely equal or exceed total costs.
FRA considered the industry costs associated with requiring
railroads to establish and maintain an inventory for all public and
private highway-rail crossings and pathway crossings. Many railroads
have already implemented components of the proposed rule. FRA estimates
that as many as 50 percent of all highway-rail crossings currently have
up-to-date information in the National Inventory. For more details on
the costing, please see the Regulatory Evaluation found in the docket.
The requirements that are expected to impose the largest burdens relate
to the collection of recent information and to the periodic update of
the inventory. The table below presents the estimated costs associated
with the proposed rulemaking.
20-Year Cost for Proposed Rule
------------------------------------------------------------------------
------------------------------------------------------------------------
Initial Update of Inventory.................................. $874,280
Periodic Update of Inventory................................. 646,856
----------
Total...................................................... 1,521,136
------------------------------------------------------------------------
Future costs are discounted to present value using a 7 percent discount
rate.
As part of the Regulatory Evaluation, FRA has explained what the
likely benefits for this proposed rule would be, and provided a break-
even analysis. The main benefit derived from the rule would be improved
crossing inventory data. This more precise information would better
enable FRA, railroads, and any other entity to accurately analyze
pertinent data, detect trends, and if needed, initiate crossing-related
safety initiatives. In this break-even analysis, FRA determined that if
there were a decrease of 0.015 percent of crossing accidents over the
twenty-year period the costs associated with the rule would break-even.
In the last decade there were over 26,000 collisions at grade crossing,
this break-even analysis expects that over a twenty-year period there
would be at least 3 fewer incidents due to the proposed rule. FRA
anticipates that this rulemaking will increase the precision,
completeness, and utility of railroad records and will improve FRA's
national crossing inventory. This would allow FRA to identify certain
highway-rail crossings and pathway crossings that are not currently
recorded in the existing voluntary crossing inventory. FRA believes
that such clarification would help offset costs associated with the
rulemaking by simplifying the reporting process. FRA believes the value
of the anticipated benefits would justify the cost of implementing the
proposed rule.
B. Initial 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. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant impact on a substantial
number of small entities. FRA has not determined whether this proposed
rule would have a significant impact on a substantial number of small
entities. Therefore, FRA is publishing this IRFA to aid the public in
commenting on the potential small business impacts of the proposed
requirements in this NPRM. FRA invites all interested parties to submit
data and information regarding the potential economic impact on small
entities that would result from the adoption of this NPRM. FRA will
consider all comments received in the public comment process when
making a final determination.
The proposed rule would apply to all railroads which own or
maintain public and private highway-rail crossings (both at-grade and
grade-separated) as well as pathway crossings. Based on information
currently available, FRA estimates that Class III railroads own 28
percent of the total highway-rail crossings. However a number of the
Class III railroads are owned by larger holding companies. FRA often
treats these holding companies as Class I or Class II railroads as they
have more resources than a Class III railroad. Excluding the 113
railroads that are owned by a holding company, the small entities own
17 percent of the total highway-rail crossings. FRA analysis estimates
that the cost of the proposed rule would be $2.1 million with a present
value (PV, 7 percent) of $1.5 million.
As calculated below, there are 569 Class III railroads that would
be considered small for the purposes of this analysis. As explained
above, FRA believes that 113 of these railroads should be excluded
because they are part of large holding companies that do not meet the
criteria established by the U.S. Small Business Administration (SBA) in
determining small entities. Therefore there are 456 railroads that
comprise around 17 percent of the total highway-rail crossings. All of
these railroads would have to make some labor investment to meet the
proposed requirements. As these railroads have less mileage, an
indicator of fewer crossings, in their system than Class I and Class II
railroads, FRA expects them to meet the proposed requirements at a
lower overall cost. Thus, although numerous small entities in this
sector would likely be impacted, the economic impact on them would
likely not be significant. This IRFA is not intended to be a stand-
alone document. In order to get a better understanding of the total
costs for the railroad industry, which forms the basis for the
estimates in this IRFA, or more cost detail on any specific
requirement, please see the Regulatory Evaluation that FRA has placed
in the docket for this rulemaking.
In accordance with the Regulatory Flexibility Act, an IFRA must
contain:
(1) A description of the reasons why the action by the agency is
being considered.
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
(3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
(4) A description of the projected reporting, record keeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the types of professional skills necessary for
preparation of the report or record.
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
1. Reasons for Considering Agency Action
The goal of the U.S. DOT Highway-Rail Crossing Inventory is to
provide information to all stakeholders in the rail industry (e.g.,
Federal Government, State Governments, Local Governments, all
railroads, public) for the improvement of safety at highway-rail
crossings. The improved and more accurate information will help to add
to a general pool of information regarding accidents at crossings,
which might be able to help prevent future accidents.
RSIA required that all railroads submit an inventory of all
existing crossings to the FRA. Although the FRA currently has a
national inventory, it has
[[Page 64088]]
not been consistently updated. FRA believes that around 99 percent of
the crossings that exist are currently in the database, but much of the
information on each crossing needs to be updated, and numerous
nonexistent crossings need to be removed from the database.
The FRA reviewed RSIA in order to determine the best, most cost
efficient and beneficial way to issue the proposed rule. FRA
anticipates that the proposed requirements will be accepted by the
industry as being as unobtrusive as possible. A team in the FRA carried
out a careful review of the mandates in RSIA to incorporate these
requirements into these proposed Federal regulations.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The purpose of this rulemaking is to require railroads to submit
information for public and private highway-rail crossings and pathway
crossings. The proposed rule also sets forth regulations mandating the
periodic update of the national crossing inventory. Any crossings that
have been sold should also be updated in the inventory.
Section 204 of RSIA has a requirement for a National Crossing
Inventory. Congress gave the Secretary of Transportation the authority
to prescribe the regulations to implement Section 204. The task of
creating the necessary regulation was delegated to the Administrator of
the Federal Railroad Administration. This proposed regulation will be
codified in Title 49 of the Code of Federal Regulations, Part 234.
3. A Description of, and Where Feasible, an Estimate of Small Entities
to Which the Proposed Rule Would Apply
The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. This proposed rule would affect all
railroads that own or maintain public or private highway-rail crossings
or pathway crossings.
``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under Section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operation. The SBA stipulates in its size
standards that the largest a railroad business firm that is ``for
profit'' may be and still be classified as a ``small entity'' is 1,500
employees for ``Line Haul Operating Railroads'' and 500 employees for
``Switching and Terminal Establishments.'' 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 may adopt their own size standards 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 proposing to use this
definition for this rulemaking. Any comments received pertinent to its
use will be addressed in the final rule.
Railroads
There are a total of 756 regulated railroads. FRA is excluding 150
railroads from the rulemaking because they do not own any crossings.
There are 7 Class I railroads and 12 Class II railroads, all which are
not considered to be small. There are a total of 29 commuter/passenger
railroads, including Amtrak, with 19 that would be affected by this
rule. However, all the affected commuter railroads are part of larger
public transportation agencies that receive Federal funds and serve
major jurisdictions with populations greater than 50,000.
The level of costs incurred by each railroad should generally vary
in proportion to the number of crossings they maintain. For instance,
railroads with fewer crossings should have lower overall costs
associated with implementing the proposed standards. There are 710
Class III railroads, and of those railroads, only 569 are affected by
the rule. However, 113 of these railroads are owned by large holding
companies, and are therefore not considered to be small entities for
the purposes of this analysis. Hence there are 456 railroads which
would be considered to be small entities impacted by this proposed
rule. The impact on these small railroads is discussed in the following
section.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
For a thorough presentation of cost estimates, please refer to the
Regulatory Evaluation, which has been placed in the docket for this
rulemaking.
For the purpose of this analysis, FRA broke Class III railroads
into two categories. We considered any Class III railroad that had more
than 40 crossings to be a Large Class III railroad and any Class III
railroad with 40 or less crossings to be a Small Class III railroad.
Crossing specialists in FRA's Office of Safety anticipate that the
majority of the Large Class III railroads use FRA's web based program,
to submit their inventories to the FRA. FRA assumes that the Large
Class III railroads would continue to use a web-based program to input
their crossing inventories into the national database. FRA believes
that the Small Class III railroads would manually send their inventory
forms, by either mail or email, to the FRA. FRA also estimates that 50
percent of all railroads in the industry are already in compliance with
the proposed rule.
There are 240 Large Class III railroads that would be considered
small entities. FRA estimates that each Large Class III railroads would
initially task one person for approximately one week to review and
update their inventory. Subsequently, FRA estimates that it would take
one person two days to update a Large Class III railroads inventory
every year. The initial cost associated with Large Class III railroads
would be around $900 per railroad. The cost to periodically update
their inventory is estimated to be about $350 per railroad. FRA
believes that although the Large Class III railroads would be burdened
by the proposed regulation, none of these small entities would be
significantly impacted.
There are 216 Small Class III railroads that would be considered
small entities. FRA estimates that each Small Class III railroad would
initially need one person to work 8 hours to review and update each
inventory. Subsequently, the periodic inventory update cost would be
the same, requiring one person to work 8 hours each year. The initial
cost
[[Page 64089]]
associated with Small Class III railroads would be $173 per railroad.
The cost to periodically update their inventory is $173 per railroad.
Again, FRA believes that although all of the Small Class III railroads
would be affected by the proposed regulation, none of these small
entities would be significantly impacted.
In conclusion, FRA believes that both the Large Class III railroads
and the Small Class III railroads, thus a substantial number of small
entities (small railroads) would be impacted by the proposed
regulation. However, FRA has found that these entities that are
directly burdened by the regulation would not have an economic
significant impact. FRA believes that the costs associated with the
proposed rule are reasonable and would not cause any significant
financial impact on their operations.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
FRA is not aware of any relevant Federal rules that may duplicate,
overlap or conflict with the proposed rule.
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 determination.
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, 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. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
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 possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.
D. 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:
----------------------------------------------------------------------------------------------------------------
Total annual Average time Total annual
CFR Section/subject Respondent universe responses per response burden hours
----------------------------------------------------------------------------------------------------------------
234.403--Submission of Information 50 states & 607 6,942 forms.......... 30 3,471
to the U.S. DOT Highway-Rail railroads. 257 lists............ 30 129
Crossing Inventory (Formerly 50 states & 607
Voluntary). railroads.
50 states & 607 1,111 lists.......... 30 556
railroads.
50 states & 607 38,982 records....... 6 3,898
railroads.
234.405--Submission of initial 607 railroads........ 450 written 30 225
data and periodic updates to the 50 states & 607 notifications. 30 88
U.S. DOT Highway-Rail Crossing railroads. 175 written 30 33
Inventory (New Requirement). 607 railroads........ notifications.
65 written
notifications.
607 railroads........ 12 written 30 6
notifications.
50 states & 607 10 written 30 5
railroads. notifications.
607 railroads........ 950 written 20 317
notifications.
607 railroads........ 650 written 20 217
notifications.
50 states & 607 525 written 20 175
railroads. notifications.
234.407 Recordkeeping (New 607 railroads........ 5,674 copies......... 1 95
Requirement). 607 railroads........ 2,837 copies......... 1 47
607 railroads........ 607 forms............ 5 51
----------------------------------------------------------------------------------------------------------------
[[Page 64090]]
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: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at
202-493-6073.
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 email to Mr. Brogan or Ms. Toone at the following
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
E. Environmental Impact
FRA has evaluated this 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).
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.
F. 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.
The proposed rule will not result in the expenditure, in the aggregate,
of $140,800,000 or more (as adjusted annually for inflation) in any one
year, and thus preparation of such a statement is not required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that 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 is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM is not a
``significant energy action'' within the meaning of Executive Order
13211.
H. Trade Impact
The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards setting
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. FRA has
assessed the potential effect of this NPRM on foreign commerce and
believes that its requirements are consistent with the Trade Agreements
Act of 1979. The requirements imposed are safety standards, which, as
noted, are not considered unnecessary obstacles to trade.
I. Privacy Act
Interested parties should be aware that anyone is able to search
the electronic form of all written comments received into any agency
docket by the name of the individual submitting the document (or
signing the document, 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 (65 FR
19477-78) or you may visit http://www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements, State and local governments.
[[Page 64091]]
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
part 234 of chapter II, subtitle B of title 49, Code of Federal
Regulations, as follows:
PART 234--GRADE CROSSING SAFETY
1. The authority citation for part 234 is revised to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 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 amended by revising paragraphs (a)(3) and (4)
and by adding paragraph (a)(5) to read as follows:
Sec. 234.1 Scope.
(a) * * *
(3) Requirements for particular identified States to develop State
highway-rail grade crossing action plans;
(4) Requirements that certain railroads establish systems for
receiving toll-free telephone calls reporting various unsafe conditions
at highway-rail grade crossings and pathway grade crossings, and for
taking certain actions in response to those calls; and
(5) Requirements for reporting to, and periodically updating
information contained in, the U.S. DOT National Highway-Rail Crossing
Inventory for public, private, and pathway crossings.
* * * * *
4. Subpart F is added to read as follows:
Subpart F--Highway-Rail Crossing Inventory Reporting
Sec.
234.401 Definitions.
234.403 Submission of data to the Crossing Inventory, generally.
234.405 Submission of initial data and periodic updates to the
Crossing Inventory.
234.407 Recordkeeping.
234.409 Electronic recordkeeping.
Sec. 234.401 Definitions.
As used in this subpart--
Class I has 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).
Crossing Inventory means the U.S. DOT National Highway-Rail
Crossing Inventory.
FRA Associate Administrator means the FRA Associate Administrator
for Railroad Safety/Chief Safety Officer.
Highway-rail crossing means the location where one or more railroad
tracks intersect with a public highway, road, street, or private
roadway, including associated sidewalks and pathways, either at-grade
or grade-separated.
Inventory Form means the U.S. DOT Crossing Inventory Form (Form FRA
F 6180.71.)
Inventory Guide means the FRA Guide for Preparing Highway-Rail
Crossing Inventory Forms in effect at the time of the submission of
data to the Crossing Inventory.
Inventory number means the number assigned to a highway-rail
crossing or pathway crossing in the Crossing Inventory.
Operating railroad means any railroad that operates one or more
trains through a highway-rail crossing or pathway crossing.
Pathway crossing means a pathway that:
(1) Is explicitly authorized by a public authority or a railroad;
(2) Is dedicated for the use of non-vehicular traffic, including
pedestrians, bicyclists, and others;
(3) Is not associated with a public highway, road, or street, or a
private roadway;
(4) Crosses one or more railroad tracks either at grade or grade-
separated.
Primary operating railroad means the operating railroad responsible
for submitting and/or updating data in the Crossing Inventory for a
highway-rail crossing or pathway crossing.
Private crossing means a highway-rail crossing that is not a public
crossing.
Public crossing means a highway-rail crossing where the roadway is
under the jurisdiction of and maintained by a public authority and open
to public travel. All roadway approaches must be under the jurisdiction
of the public roadway authority and no roadway approach may be on
private property.
Temporary crossing means a highway-rail crossing created to serve a
specific activity for a temporary time period not to exceed six months.
Sec. 234.403 Submission of data to the Crossing Inventory, generally.
(a) Public, private, and pathway crossing data shall be submitted
to the Crossing Inventory on the Inventory Form pursuant to the
requirements set forth in Sec. 234.405 of this part. Except as
provided in paragraph (c) of this section, the Inventory Form may be
submitted in hard copy or electronically.
(b) The Inventory Form shall be completed in accordance with the
Inventory Guide. A copy of this guide may be obtained from the Office
of Railroad Safety, RRS-23, Federal Railroad Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590. A copy of this guide can also
be viewed or downloaded from the FRA Web site at (FRA Web site address
to be inserted).
(c) Each Class I railroad shall submit the data required by
paragraph (a) of this section to the Crossing Inventory electronically.
Sec. 234.405 Submission of initial data and periodic updates to the
Crossing Inventory.
(a) Initial Submission for Previously Unreported Crossings. (1)
Duty of Primary Operating Railroad. Each primary operating railroad
shall submit a completed Inventory Form, or its electronic equivalent,
to the Crossing Inventory for each previously unreported public,
private, and pathway crossing (except a temporary crossing) through
which it operates, no later than (DATE 6 MONTHS AFTER EFFECTIVE DATE OF
FINAL RULE). The completed Inventory Form, or its electronic
equivalent, must reference the assigned Inventory Number for the
crossing and the Inventory Form, or its electronic equivalent, must be
completed and submitted in accordance with Sec. 234.403 of this part.
(2) Duty of Operating Railroads. Each operating railroad, other
than the primary operating railroad, which operates through a
previously unreported public, private, or pathway crossing (except a
temporary crossing) for which a completed Inventory Form, or its
electronic equivalent, has not been submitted to the Crossing Inventory
in accordance with paragraph (a)(1) of this section, shall notify the
FRA Associate Administrator in writing of this oversight. Written
notification provided by the operating railroad shall include, at a
minimum, the latitudinal and longitudinal coordinates for each
previously unreported public, private, or pathway crossing for which a
completed Inventory Form, or its electronic equivalent, has not been
timely submitted to the Crossing Inventory.
(3) Reporting by Other Entities on Behalf of the Primary Operating
Railroad. In order to satisfy the reporting requirements of paragraph
(a)(1) of this section, an entity other than the primary operating
railroad may submit a completed Inventory Form, or its electronic
equivalent, to the Crossing Inventory, provided both the reporting
entity and the primary operating
[[Page 64092]]
railroad provide written notice to the FRA Associate Administrator of
the entity assuming reporting responsibility. Any such notification
must include a positive identification of the locations that will be
covered.
(b) Initial Submissions for New Crossings. (1) Duty of Primary
Operating Railroad. Each primary operating railroad shall submit a
completed Inventory Form, or its electronic equivalent, to the Crossing
Inventory for each new public, private, or pathway crossing (except a
temporary crossing) through which it operates no later than six (6)
months after the crossing becomes operational. The completed Inventory
Form, or its electronic equivalent, must reference the assigned
Inventory Number for the crossing and the Inventory Form, or its
electronic equivalent, must be completed and submitted in accordance
with Sec. 234.403.
(2) Duty of Operating Railroads. An operating railroad, other than
the primary operating railroad, which operates through a new public,
private, or pathway crossing (except a temporary crossing) for which a
completed Inventory Form has not been submitted to the Crossing
Inventory within six (6) months after the crossing becomes operational
shall notify the FRA Associate Administrator, in writing, of this
oversight. Written notification provided by the operating railroad
shall include, at a minimum, the latitudinal and longitudinal
coordinates for each new and unreported public, private, or pathway
crossing through which it operates.
(3) Joint Reporting by Multiple Operating Railroads. Two or more
operating railroads may agree to assume joint responsibility for the
reporting requirement set forth in paragraph (b)(1) of this section by
providing written notification of this agreement in accordance with the
Inventory Guide.
(4) Reporting by Other Entities on Behalf of the Primary Operating
Railroad. In order to satisfy the reporting requirements of paragraph
(b)(1) of this section, an entity other than the primary operating
railroad may submit a completed Inventory Form, or its electronic
equivalent, to the Crossing Inventory, provided both the reporting
entity and the primary operating railroad provide written notification
to the FRA Associate Administrator of the entity assuming reporting
responsibility. Any such notification must include positive
identification of the locations that will be covered.
(c) Periodic Updates. (1) Duty of primary operating railroad. Each
primary operating railroad shall submit up-to-date and accurate
crossing data to the Crossing Inventory for each public, private, and
pathway crossing (other than a temporary crossing or a grade-separated
crossing) through which it operates, in accordance with the Inventory
Guide. Updated crossing data shall be submitted to the Crossing
Inventory at least every 3 years from the date of the most recent
railroad submission or (DATE 6 MONTHS AFTER EFFECTIVE DATE OF FINAL
RULE), whichever occurs later.
(2) Duty of Operating Railroads. An operating railroad, other than
the primary operating railroad, that operates through a public,
private, or pathway crossing (other than a temporary crossing or a
grade-separated crossing) for which up-to-date and accurate information
has not been timely submitted to the Crossing Inventory in accordance
with paragraph (c)(1) shall notify the FRA Associate Administrator, in
writing, of this oversight. Written notification provided by the
operating railroad in accordance with this paragraph shall include, at
a minimum, the Inventory Number for each public, private, or pathway
crossing(s) that has not been updated.
(3) Joint Updating by Multiple Operating Railroads. Two or more
operating railroads may assume joint responsibility for submission of
the periodic updates required by paragraph (c)(1) of this section by
providing written notification of this agreement in accordance with the
Inventory Guide.
(4) Submission of Periodic Updates by Other Entities on Behalf of
the Primary Operating Railroad. In order to satisfy the periodic
updating requirements of paragraph (c)(1) of this section, an entity
other than the primary operating railroad may submit up-to-date and
accurate crossing data to the Crossing Inventory, provided both the
reporting entity and the primary operating railroad provide written
notification to the FRA Associate Administrator of the entity assuming
the periodic updating responsibility. Any such notification shall
include positive identification of the locations that will be covered.
(d) Changes Requiring Submission of Updated Information to the
Crossing Inventory, Crossing sale. Any railroad that sells all or part
of a public, private, or pathway crossing shall submit an Inventory
Form, or its electronic equivalent, which reflects the crossing sale to
the Crossing Inventory. The updated Inventory Form, or its electronic
equivalent, shall be submitted to the Crossing Inventory, no later than
three (3) months after the date of sale, in accordance with Sec.
234.403 of this subpart.
(e) Changes Requiring Submission of Updated Information to the
Crossing Inventory, Changes in Crossing Characteristics. (1) Within
three (3) months of any crossing closure, change in crossing surface,
or change in warning device at any public, private, or pathway
crossing, the primary operating railroad shall submit an Inventory
Form, or its electronic equivalent, that reflects the change in
crossing characteristics to the Crossing Inventory, in accordance with
Sec. 234.403 of this subpart. A ``change in warning device'' means the
addition of a crossbuck, yield or stop sign, flashing lights, or gates
at a public, private, or pathway crossing.
(2) Submission of Updated Information to the Crossing Inventory by
Other Entities on Behalf of the Primary Operating Railroad. In order to
satisfy the reporting requirements of paragraph (e)(1) of this section,
an entity other than the primary operating railroad may submit an
Inventory Form, or its electronic equivalent, that reflects the
change(s) in crossing characteristics to the Crossing Inventory,
provided both the reporting entity and the primary operating railroad
provide written notification to the FRA Associate Administrator of the
entity assuming reporting responsibility. Any such notification shall
include positive identification of the location(s) that will be
covered.
Sec. 234.407 Recordkeeeping.
(a) Each railroad subject to this subpart shall keep records in
accordance with this section. Records may be kept either on paper or by
electronic means in a manner that conforms with Sec. 234.409.
(b) Each operating railroad, including the primary operating
railroad, responsible for submitting information to the Crossing
Inventory in accordance with this subpart shall, at a minimum, maintain
the following information for each required Inventory Form:
(1) A duplicate copy of each Inventory Form submitted in hard copy
to the Crossing Inventory; or
(2) A copy of the electronic confirmation received from FRA after
electronic submission of crossing data to the Crossing Inventory.
(c) Each railroad shall identify the locations where a copy of any
record required to be retained by this subpart is accessible for
inspection and photocopying by maintaining a list of such establishment
locations at the office where the railroad's reporting officer conducts
his or her official business.
(d) Each operating railroad shall retain for at least four (4)
years from the
[[Page 64093]]
date of submission to the Crossing Inventory all records referred to in
paragraphs (a) and (b) of this section. Records required to be kept
under this subpart shall be made available to FRA as provided by 49
U.S.C. 20107.
Sec. 234.409 Electronic recordkeeping.
(a) If a railroad subject to this subpart maintains records
required by this subpart in electronic format in lieu of paper, the
system for keeping the electronic records must meet all of the
following conditions:
(1) The railroad adequately limits and controls accessibility to
the records retained in its electronic database system and identifies
those individuals who have such access;
(2) The railroad has a terminal at the office where the railroad's
reporting officer conducts his or her official business and at each
location designated by the railroad as having a copy of any record
required to be retained by this subpart that is accessible for
inspection and photocopying;
(3) Each such terminal has a computer and either a facsimile
machine or a printer connected to a computer to retrieve and produce
information in a usable format for immediate review by FRA
representatives;
(4) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as a
true and accurate copy of the electronically kept record; and
(5) The railroad provides FRA representatives with immediate access
to the record(s) for inspection and copying during normal business
hours and provides a printout of such record(s) upon request.
(b) If a record required by this subpart is in the form of an
electronic record kept by an electronic recordkeeping system that does
not comply with paragraph (a) of this section, then the record must be
kept on paper in accordance with the recordkeeping requirements
contained in Sec. 234.407.
Issued in Washington, DC, on October 12, 2012.
Karen J. Hedlund,
Deputy Administrator.
[FR Doc. 2012-25623 Filed 10-17-12; 8:45 am]
BILLING CODE 4910-06-P