Systems for Telephonic Notification of Unsafe Conditions at Highway-Rail and Pathway Grade Crossings, 11992-12012 [2011-4759]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Proposed Rules]
[Pages 11992-12012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4759]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

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

49 CFR Part 234

RIN 2130-AC12


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

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

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

[[Page 11993]]

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

FOR FURTHER INFORMATION CONTACT: Beth Crawford, Transportation 
Specialist, Grade Crossing Safety and Trespass Prevention, Office of 
Safety Analysis, FRA, 1200 New Jersey Avenue, SE., Mail Stop 25, 
Washington, DC 20590 (telephone: 202-493-6288), beth.crawford@dot.gov; 
or Matthew Navarrete, Trial Attorney, Office of Chief Counsel, FRA, 
1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 
(telephone: 202-493-0738), matthew.navarrete@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Statutory Background

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

[[Page 11994]]

II. History of Accidents Relevant to This Rulemaking

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

III. History of Emergency Notification Systems

A. In General

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

B. Various ENS Programs in the United States

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

[[Page 11995]]

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

C. FRA's 2006 Report to Congress

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

IV. Section-by-Section Analysis

Section 234.1 Scope

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

Section 234.3 Application and Responsibility for Compliance

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

Section 234.5 Definitions

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

[[Page 11996]]

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

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

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

Section 234.301 Definitions

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

[[Page 11997]]

cross one or more railroad tracks, where--

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

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

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

    \1\ For example, warning system malfunctions do not occur at 
grade-separated crossings because grade-separated crossings do not 
have warning systems.
---------------------------------------------------------------------------

Section 234.303 Telephonic Notification of Unsafe Conditions at 
Highway-Rail or Pathway Grade Crossings

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

[[Page 11998]]

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

[[Page 11999]]

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

Section 234.305 Remedial Actions

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

[[Page 12000]]

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

[[Page 12001]]

railroad that receives the report does not have maintenance 
responsibility over the device, upon receipt of the report, the 
railroad must timely inform the railroad with maintenance 
responsibility for correcting the unsafe condition. The railroad with 
maintenance responsibility must then timely investigate the report and 
if it finds that the unsafe condition exists, it must timely correct it 
if it is lawful and feasible to do so. FRA seeks comment on what types 
of other unsafe conditions are not feasible to correct.
    Proposed Sec.  234.305(g)(2) states that if the dispatching 
railroad receives a report relating to any other unsafe condition at 
the highway-rail or pathway grade crossing that is not covered by 
proposed Se