Systems for Telephonic Notification of Unsafe Conditions at Highway-Rail and Pathway Grade Crossings, 30364-30367 [2015-12775]
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Federal Register / Vol. 80, No. 102 / Thursday, May 28, 2015 / Rules and Regulations
(3) The Coast Guard will provide
notice of the regulated areas by
Broadcast Notice to Mariners and onscene designated representatives.
(e) Effective period. This rule is
effective on April 21, 2015 through May
31, 2015. This rule will be enforced
when STS operations commence until
TUG THOMAS and BARGE OCEANUS
depart the Savannah River.
Dated: May 14, 2015.
A.M. Beach,
Commander, U.S. Coast Guard, Captain of
the Port Savannah.
[FR Doc. 2015–12637 Filed 5–27–15; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA–2009–0041–N–4]
49 CFR Part 234
RIN 2130–AC50
Systems for Telephonic Notification of
Unsafe Conditions at Highway-Rail and
Pathway Grade Crossings
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
The purpose of this document
is to update the current schedule of civil
penalties for violations of FRA’s grade
crossing safety regulations by adding
recommended civil penalty amounts for
violations of specific requirements
contained in a recently added subpart.
That subpart prescribes requirements
that certain railroads establish
emergency notification systems (ENS)
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.
SUMMARY:
DATES:
Effective May 28, 2015.
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 Sara
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FOR FURTHER INFORMATION CONTACT:
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Mahmoud-Davis, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey
Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone: 202–366–1118),
sara.mahmoud-davis@dot.gov.
SUPPLEMENTARY INFORMATION: FRA is
revising the penalty schedule at
appendix A to 49 CFR part 234 to add
recommended civil penalty amounts for
violations of specific requirements
contained in subpart E, Emergency
Notification Systems [ENS] for
Telephonic Reporting of Unsafe
Conditions at Highway-Rail and
Pathway Grade Crossings. (See FRA’s
final rule published on June 12, 2012,
77 FR 35164; March 15, 2013, 78 FR
16414.) The recommended civil
penalties are for violations related to the
various requirements of an ENS, which
includes the: (1) Sign(s) placed at the
grade crossing that display the
information necessary for the public to
report an unsafe condition to the
appropriate railroad; (2) method the
railroad uses to receive and process a
telephone call reporting the unsafe
condition; (3) remedial action the
appropriate railroad or railroads take to
address the report of the unsafe
conditions; and (4) recordkeeping
conducted by the railroad(s).
Under authority delegated from the
Secretary of Transportation, FRA adds
these recommended penalty amounts to
the penalty schedule consistent with the
requirements of 49 U.S.C. 21301(a)(2),
which provides, in pertinent part, that:
[t]he Secretary of Transportation shall
include in, or make applicable to, each
regulation prescribed . . . under chapter 201
of this title a civil penalty for a violation.
* * * The amount of the penalty shall be at
least $500 but not more than $25,000.
However, when a grossly negligent violation
or a pattern of repeated violations has caused
an imminent hazard of death or injury to
individuals, or has caused death or injury,
the amount may be not more than $100,000.
See delegation from the Secretary to the
Administrator of FRA at 49 CFR 1.89(a).
Under the separate authority of the
Federal Civil Penalties Inflation
Adjustment Act of 1990 as amended,
FRA has periodically adjusted for
inflation the amounts of the minimum,
ordinary maximum, and aggravated
maximum civil penalties for a violation
of this part. Public Law 101–410, 104
Stat. 890, 28 U.S.C. 2461, note, as
amended by Section 31001(s)(1) of the
Debt Collection Improvement Act of
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1996, Public Law 104–134, 110 Stat.
1321–373, April 26, 1996. Currently, the
minimum penalty is $650, the ordinary
maximum civil penalty is $25,000; and
the aggravated maximum civil penalty is
$105,000. See, e.g., 73 FR 76704, Dec.
30, 2008; 77 FR 24422, Apr. 24, 2012.
As provided for in footnote 1 to
appendix A, the Administrator
specifically reserves the authority to
assess the maximum penalty of
$105,000 for any specific violation if the
circumstances of the particular violation
warrant.
After FRA issues a civil penalty
against an entity, FRA may adjust or
compromise the amount of the civil
penalty based on a wide variety of
mitigating factors, which include: (1)
The nature, circumstances, extent, and
gravity of the violation; (2) with respect
to the entity, the degree of culpability,
any history of violations, the ability to
pay, and any effect on the ability to
continue to do business; and (3) other
matters that justice requires. 49 U.S.C.
21301(a)(3).
FRA’s revision of appendix A is a
general statement of policy under 5
U.S.C. 553(b)(3)(A). Consequently,
notice and an opportunity for comment
are not required, and this amendment is
made effective upon publication.
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad
safety, Reporting and recordkeeping
requirements, State and local
governments.
In consideration of the foregoing, FRA
amends 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
continues 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 1.89.
2. Amend appendix A to part 234 by:
a. Adding, after the end of the entry
for subpart D, an entry for subpart E;
■ b. Revising footnote 1; and
■ c. Adding footnotes 2, 3, 4, 5, 6, and
7, to read as follows:
■
■
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Federal Register / Vol. 80, No. 102 / Thursday, May 28, 2015 / Rules and Regulations
30365
APPENDIX A TO PART 234—SCHEDULE OF CIVIL PENALTIES 1
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Section
Violation
*
*
*
*
*
*
*
Subpart E—Emergency Notification Systems for Telephonic Reporting of Unsafe Conditions at Highway-Rail and Pathway Grade Crossings
234.303 Emergency notification systems (ENS) for telephonic reporting of unsafe conditions at highway-rail
and pathway grade crossings:
(a) Dispatching railroad fails to establish and maintain a toll-free telephone service by which the railroad
can directly and promptly receive telephone calls (calls) from the public of reports of unsafe conditions
at crossings ...................................................................................................................................................
(a)(1) Dispatching railroad fails to have either a live person answer calls directly and promptly, or use an
automated answering system or third-party telephone service for receiving calls from the public of reports of unsafe conditions at crossings ........................................................................................................
(a)(2) Dispatching railroad improperly uses an automated answering system ................................................
(b)(1)–(2) Excepted dispatching railroad improperly uses answering machine to receive calls of unsafe
conditions at crossings ..................................................................................................................................
(b)(2) Excepted dispatching railroad fails to use proper method to receive calls of unsafe conditions at
crossings during either operational or non-operational hours ......................................................................
(e) Dispatching railroad improperly uses local telephone number to receive calls of unsafe conditions at
crossings .......................................................................................................................................................
234.305 Remedial actions in response to reports of unsafe conditions at highway-rail and pathway grade
crossings:
Response to credible report of warning system malfunction at a highway-rail grade crossing.
(a)(1) Maintaining railroad fails under subpart C to follow subpart C of this part 2 .........................................
(a)(2)(i) Dispatching railroad fails to promptly contact all trains authorized to operate through the crossing
and inform them of the reported malfunction ...............................................................................................
(ii) Dispatching railroad fails to promptly contact the maintaining railroad and inform it of the reported malfunction ..........................................................................................................................................................
Response to public report of warning system malfunction at a highway-rail grade crossing.
(b)(1)(i) Railroad with both maintaining and dispatching responsibilities fails to promptly contact all trains
authorized to operate through the crossing and inform them of the reported malfunction ..........................
(ii) Railroad with both maintaining and dispatching responsibilities fails to promptly contact the appropriate
law enforcement agency and inform it of the reported malfunction .............................................................
(iii) Railroad with both maintaining and dispatching responsibilities fails to promptly investigate the report,
determine the nature of the malfunction, and take the appropriate remedial action ...................................
(b)(2)(i) Railroad with only dispatching responsibility fails to promptly contact all trains authorized to operate through the crossing and inform them of the reported malfunction .......................................................
(ii) Railroad with only dispatching responsibility fails to promptly contact the appropriate law enforcement
agency and inform it of the reported malfunction .........................................................................................
(iii) Railroad with only dispatching responsibility fails to promptly contact the maintaining railroad and inform it of the reported malfunction ................................................................................................................
(iv) Maintaining railroad fails to promptly investigate the report, determine the nature of the malfunction,
and take the appropriate remedial action .....................................................................................................
Response to report of warning system failure at a pathway grade crossing.
(c)(1)(i) Railroad with both maintaining and dispatching responsibilities fails to promptly contact all trains
authorized to operate through the crossing and inform them of the reported failure ..................................
(ii) Railroad with both maintaining and dispatching responsibilities fails to promptly contact the appropriate
law enforcement agency and inform it of the reported failure ......................................................................
(iii) Railroad with both maintaining and dispatching responsibilities fails to promptly investigate the report,
determine the nature of the failure, and without undue delay repair the active warning system if necessary ............................................................................................................................................................
(c)(2)(i) Railroad with only dispatching responsibility fails to promptly contact all trains authorized to operate
through the crossing and inform them of the reported failure .............................................................................
(ii) Railroad with only dispatching responsibility fails to promptly contact the appropriate law enforcement
agency and inform it of the reported failure .................................................................................................
(iii) Railroad with only dispatching responsibility fails to promptly contact the maintaining railroad and inform it of the reported failure ........................................................................................................................
(iv) Maintaining railroad fails to promptly investigate the report, determine the nature of the failure, and
without undue delay repair the active warning system if necessary ............................................................
Response to report of a disabled vehicle or other obstruction blocking a railroad track at a highway-rail or
pathway grade crossing.
(d)(1)(i) Railroad with both maintaining and dispatching responsibilities fails to promptly contact all trains
authorized to operate through the crossing and inform them of the reported obstruction ...........................
(ii) Railroad with both maintaining and dispatching responsibilities fails to promptly contact the appropriate
law enforcement agency and inform it of the reported obstruction ..............................................................
(iii) Railroad with both maintaining and dispatching responsibilities fails to promptly investigate the report,
determine the nature of the obstruction, and without undue delay take the necessary action to have the
obstruction removed ......................................................................................................................................
(d)(2)(i) Railroad with only dispatching responsibility fails to promptly contact all trains authorized to operate through the crossing and inform them of the reported obstruction ........................................................
(ii) Railroad with only dispatching responsibility fails to promptly contact the appropriate law enforcement
agency and inform it of the reported obstruction ..........................................................................................
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28MYR1
Willful
violation
15,000
25,000
10,000
10,000
15,000
15,000
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
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5,000
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5,000
7,500
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7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
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7,500
5,000
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5,000
7,500
5,000
7,500
30366
Federal Register / Vol. 80, No. 102 / Thursday, May 28, 2015 / Rules and Regulations
APPENDIX A TO PART 234—SCHEDULE OF CIVIL PENALTIES 1—Continued
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Section
Violation
(iii) Railroad with only dispatching responsibility fails to promptly contact the maintaining railroad and inform it of the reported obstruction ................................................................................................................
(iv) Maintaining railroad fails to promptly investigate the report, determine the nature of the obstruction,
and without undue delay take the necessary action to have the obstruction removed ...............................
Special rule on contacting a train that is not required to have communication equipment.
(e) Having received a report pursuant to § 234.303(c)(1), (c)(2), (d)(1), or (d)(2), railroad fails to promptly
contact the occupied controlling locomotive of the train by the quickest means available consistent with
§ 220.13(a) of this chapter ............................................................................................................................
Response to report of an obstruction of view at a highway-rail or pathway grade crossing.
(f)(1) Railroad with both maintaining and dispatching responsibilities fails to timely investigate the report
and remove the obstruction if it is lawful and feasible to do so ...................................................................
(f)(2)(i) Railroad with only dispatching responsibility fails to promptly contact the maintaining railroad .........
(ii) Maintaining railroad fails to timely investigate the report and remove the obstruction if it is lawful and
feasible to do so ............................................................................................................................................
Response to report of other unsafe condition at a highway-rail or pathway grade crossing.
(g)(1) Railroad with both maintaining and dispatching responsibilities fails to timely investigate the report,
and timely correct the unsafe condition if it is lawful and feasible to do so .................................................
(g)(2) Railroad with only dispatching responsibility fails to promptly contact the maintaining railroad ...........
(g)(3) Maintaining railroad fails to timely investigate the report, and timely correct the unsafe condition if it
is lawful and feasible to do so ......................................................................................................................
Maintaining railroad’s responsibilities for receiving reports of unsafe conditions at highway-rail and pathway
grade crossings.
(h)(1)(i) Maintaining railroad fails to provide sufficient contact information to dispatching railroad, by which
the dispatching railroad may timely contact the maintaining railroad upon receipt of a report ...................
(ii) Maintaining railroad fails either to have a live person answer calls directly and promptly, or to use an
automated answering system for receiving calls from the dispatching railroad of a report of an unsafe
condition ........................................................................................................................................................
(iii) Dispatching railroad improperly uses an automated answering system ....................................................
(h)(2)(i)–(ii) Excepted maintaining railroad fails to use proper method to receive calls of unsafe conditions
at crossings during operational or non-operational hours ............................................................................
234.306 Multiple dispatching or maintaining railroads with respect to the same highway-rail or pathway
grade crossing; appointment of responsible railroad:
(a)(1) Each of the dispatching railroads for the crossing fails to appoint a primary dispatching railroad for
the crossing ...................................................................................................................................................
(a)(1)(i)–(iv) The primary dispatching railroad for the crossing fails to carry out one of the prescribed duties .................................................................................................................................................................
(a)(2) Another pertinent dispatching railroad for the crossing fails to carry out remedial action as required
by § 234.305 ..................................................................................................................................................
(b)(1) Each of the maintaining railroads for the crossing fails to appoint one maintaining railroad responsible for the placement and maintenance of the ENS sign(s) ......................................................................
(b)(2) The assigned maintaining railroad in § 234.306(b)(1) fails to display on the ENS sign(s) the emergency telephone number of the dispatching railroad or primary dispatching railroad for the crossing .......
(c)(1) The dispatching railroad or primary dispatching railroad fails to promptly contact and inform the appropriate maintaining railroad(s) for the crossing of the reported problem ..................................................
(c)(2) The maintaining railroad fails to carry out remedial action as required by § 234.305 ...........................
234.307 Use of third-party telephone service by dispatching and maintaining railroads 3:
(a)(1) Dispatching railroad improperly uses third-party telephone service ......................................................
(a)(2) Dispatching railroad fails to ensure third-party telephone service compliance with § 234.307 .............
(b)(1) Maintaining railroad improperly uses third-party telephone service .......................................................
(b)(2) Maintaining railroad fails to ensure third-party telephone service compliance with § 234.307 ..............
(d)(1) Railroad fails to provide sufficient contact information to third-party telephone service ........................
(d)(2)(i) Railroad fails to inform FRA in writing before the implementation of a third-party telephone service
(ii) Railroad fails to provide FRA with contact information for the third-party telephone service ....................
(iii) Railroad fails to provide FRA with information identifying the crossings about which the third-party telephone service will receive reports ................................................................................................................
(d)(3) Railroad fails to inform FRA in writing within 30 days following any changes in the use of, or the discontinuance of, third-party telephone service ...............................................................................................
(d)(4) 4 Dispatching or maintaining railroad fails to take appropriate action required by § 234.305.
(e) 5 Railroad fails to ensure third-party telephone service compliance with § 234.313 or § 234.315, as applicable.
234.309 ENS signs in general:
(a) Dispatching railroad fails to provide ENS telephone number to the maintaining railroad a minimum of
180 days prior to the required implementation date of the ENS ..................................................................
(b)(1)–(3) 6 Responsible railroad fails to display minimum required information on ENS sign ........................
(c)(1)–(4) 7 Responsible railroad fails to display ENS sign that meets size and other physical requirements
234.311 ENS sign placement and maintenance:
(a)(1)–(2) Responsible railroad fails to place and maintain required number of sign(s) at the crossing or
entrance(s) to facility .....................................................................................................................................
(b)(1)–(2) Responsible railroad fails to properly locate and maintain the sign(s) at the crossing ...................
234.313 Recordkeeping:
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28MYR1
Willful
violation
5,000
7,500
5,000
7,500
5,000
7,500
5,000
5,000
7,500
7,500
5,000
7,500
5,000
5,000
7,500
7,500
5,000
7,500
5,000
7,500
10,000
10,000
15,000
15,000
5,000
7,500
10,000
15,000
5,000
7,500
5,000
7,500
5,000
7,500
5,000
7,500
5,000
10,000
7,500
15,000
10,000
10,000
10,000
10,000
2,500
2,500
2,500
15,000
15,000
15,000
15,000
5,000
5,000
5,000
2,500
5,000
2,500
5,000
2,500
5,000
5,000
5,000
7,500
7,500
5,000
5,000
7,500
7,500
Federal Register / Vol. 80, No. 102 / Thursday, May 28, 2015 / Rules and Regulations
30367
APPENDIX A TO PART 234—SCHEDULE OF CIVIL PENALTIES 1—Continued
Section
Violation
(a)(1)–(9) Railroad fails to maintain in its records the minimum information required for each ENS report
received .........................................................................................................................................................
(c)(1)–(2) Responsible railroad(s) fail(s) to record in writing an appointment of a railroad, pursuant to
§ 234.306, or properly retain a copy of the document ..................................................................................
(d)(1) Railroad fails to properly retain records .................................................................................................
(d)(2) Railroad fails to provide FRA access to records ....................................................................................
234.315 Electronic recordkeeping:
(a)–(b) Railroad fails to comply with electronic recordkeeping requirements ..................................................
Willful
violation
2,500
5,000
2,500
2,500
2,500
5,000
5,000
5,000
2,500
5,000
1A
penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to
$105,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. To facilitate the assessment of penalty amounts, the
specific types of violations of a given section are sometimes designated by the paragraph of the section (e.g., ‘‘(a)’’) and a code not corresponding to the legal citation for the violation (e.g., ‘‘(1)’’), so that the complete citation in the penalty schedule is e.g., ‘‘(a)(1).’’ FRA reserves
the right to revise the citation of the violation in the Summary of Alleged Violations issued by FRA in the event of litigation.
2 Either this section or the parallel section of subpart C of this part may be cited, but not both.
3 FRA does not plan to assess civil penalties against a third-party telephone service, under § 234.307(c) or (e). However, FRA plans to assess
violations against the dispatching and maintaining railroads for failing to ensure that the third-party telephone service complies with the requirements of §§ 234.307, 234.313, or 234.315, if applicable. See § 234.307(a), (b), (e).
4 For a violation of § 234.307(d)(4), a penalty should be assessed for the specific type of violation according to the penalty schedule for a violation of § 234.305.
5 For a violation of § 234.307(e) pertaining to recordkeeping, a penalty should be assessed for the specific type of violation in the penalty
schedule for a violation of §§ 234.313 or 234.315, as applicable.
6 FRA reserves the right to cite a violation for each item of required information omitted from a sign.
7 FRA reserves the right to cite a violation for each physical characteristic that is nonconforming.
Issued in Washington, DC, on May 21,
2015.
Sarah Feinberg,
Acting Administrator.
addition, this rule includes additional
gear marking requirements for those
waters allowing single traps as well as
two new high use areas for humpback
whales (Megaptera novaeangliae) and
North Atlantic right whales (Eubalaena
glacialis).
[FR Doc. 2015–12775 Filed 5–27–15; 8:45 am]
BILLING CODE 4910–06–P
50 CFR Part 229
This rule is effective May 28,
2015, except for the amendment to
§ 229.32(b)(3), which is effective July 1,
2015, and the amendment to
§ 229.32(b)(1)(i) and (ii), which is
effective September 1, 2015.
[Docket No. 150122067–5453–02]
ADDRESSES:
DATES:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–BE83
Taking of Marine Mammals Incidental
to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction
Plan Regulations
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule to
amend the regulations implementing the
Atlantic Large Whale Take Reduction
Plan. This action will change the
minimum number of traps per trawl to
allow fishing with a single trap in
certain Massachusetts and Rhode Island
state waters; and modifies the
requirement to use one endline on
trawls within certain areas in
Massachusetts state waters. Also, this
rule creates a 1⁄4 mile buffer in waters
surrounding certain islands in Maine to
allow fishing with a single trap. In
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SUMMARY:
VerDate Sep<11>2014
15:08 May 27, 2015
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Copies of the supporting
documents for this action, as well as the
Atlantic Large Whale Take Reduction
Team meeting summaries and
supporting documents, may be obtained
from the Plan Web site (https://
www.greateratlantic.fisheries.noaa.gov/
protected/whaletrp/). Written
comments regarding the burden hour
estimates or other aspects of the
collection of information requirements
contained in this final rule can be
submitted to Kimberly Damon-Randall,
NMFS, Greater Atlantic Regional
Fisheries Office, 55 Great Republic Dr,
Gloucester, MA 10930 or Office of
Information and Regulatory Affairs by
email at OIRA_submissions@
omb.eop.gov.
Kate
Swails, NMFS Greater Atlantic Regional
Fisheries Office, 978–282–8481,
Kate.Swails@noaa.gov; or, Kristy Long,
NMFS Office of Protected Resources,
206–526–4792, Kristy.Long@noaa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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Background
NMFS published an amendment to
the Atlantic Large Whale Take
Reduction Plan (Plan) on June 27, 2014
(79 FR 36586) to address large whale
entanglement risks associated with
vertical line (or buoy lines) from
commercial trap/pot fisheries. This
amendment included gear
modifications, gear setting
requirements, a seasonal closure
(Massachusetts Restricted Area) and
gear marking for both the trap/pot and
the gillnet fisheries.
In consultation with the Atlantic
Large Whale Take Reduction Team
(Team), NMFS developed protocols for
considering modifications or
exemptions to the regulations
implementing the Plan. Following these
protocols, on August 18, 2014, the
Massachusetts Division of Marine
Fisheries (DMF) submitted a proposal to
modify the Massachusetts Bay
Restricted Area and to exempt several
areas from the gear setting requirements
to address safety and economic
concerns raised by their industry
members.
The DMF proposal adequately
addressed the Team’s established
protocols and criteria for considering
modifications or exemptions to the
Plan’s regulations, which enabled
NMFS to consult with the Team on the
DMF proposal. We decided to address
the modifications to the Massachusetts
Restricted Area and the exemption of
the minimum number of traps per trawl
requirements separately, beginning with
the Massachusetts Restricted Area. After
discussions with the Team, NMFS
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]]>Agencies
[Federal Register Volume 80, Number 102 (Thursday, May 28, 2015)]
[Rules and Regulations]
[Pages 30364-30367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12775]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2009-0041-N-4]
49 CFR Part 234
RIN 2130-AC50
Systems for Telephonic Notification of Unsafe Conditions at
Highway-Rail and Pathway Grade Crossings
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this document is to update the current schedule
of civil penalties for violations of FRA's grade crossing safety
regulations by adding recommended civil penalty amounts for violations
of specific requirements contained in a recently added subpart. That
subpart prescribes requirements that certain railroads establish
emergency notification systems (ENS) 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.
DATES: Effective May 28, 2015.
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 Sara Mahmoud-Davis, Trial Attorney, Office of Chief Counsel, FRA,
1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590
(telephone: 202-366-1118), sara.mahmoud-davis@dot.gov.
SUPPLEMENTARY INFORMATION: FRA is revising the penalty schedule at
appendix A to 49 CFR part 234 to add recommended civil penalty amounts
for violations of specific requirements contained in subpart E,
Emergency Notification Systems [ENS] for Telephonic Reporting of Unsafe
Conditions at Highway-Rail and Pathway Grade Crossings. (See FRA's
final rule published on June 12, 2012, 77 FR 35164; March 15, 2013, 78
FR 16414.) The recommended civil penalties are for violations related
to the various requirements of an ENS, which includes the: (1) Sign(s)
placed at the grade crossing that display the information necessary for
the public to report an unsafe condition to the appropriate railroad;
(2) method the railroad uses to receive and process a telephone call
reporting the unsafe condition; (3) remedial action the appropriate
railroad or railroads take to address the report of the unsafe
conditions; and (4) recordkeeping conducted by the railroad(s).
Under authority delegated from the Secretary of Transportation, FRA
adds these recommended penalty amounts to the penalty schedule
consistent with the requirements of 49 U.S.C. 21301(a)(2), which
provides, in pertinent part, that:
[t]he Secretary of Transportation shall include in, or make
applicable to, each regulation prescribed . . . under chapter 201 of
this title a civil penalty for a violation. * * * The amount of the
penalty shall be at least $500 but not more than $25,000. However,
when a grossly negligent violation or a pattern of repeated
violations has caused an imminent hazard of death or injury to
individuals, or has caused death or injury, the amount may be not
more than $100,000.
See delegation from the Secretary to the Administrator of FRA at 49 CFR
1.89(a).
Under the separate authority of the Federal Civil Penalties
Inflation Adjustment Act of 1990 as amended, FRA has periodically
adjusted for inflation the amounts of the minimum, ordinary maximum,
and aggravated maximum civil penalties for a violation of this part.
Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by
Section 31001(s)(1) of the Debt Collection Improvement Act of 1996,
Public Law 104-134, 110 Stat. 1321-373, April 26, 1996. Currently, the
minimum penalty is $650, the ordinary maximum civil penalty is $25,000;
and the aggravated maximum civil penalty is $105,000. See, e.g., 73 FR
76704, Dec. 30, 2008; 77 FR 24422, Apr. 24, 2012. As provided for in
footnote 1 to appendix A, the Administrator specifically reserves the
authority to assess the maximum penalty of $105,000 for any specific
violation if the circumstances of the particular violation warrant.
After FRA issues a civil penalty against an entity, FRA may adjust
or compromise the amount of the civil penalty based on a wide variety
of mitigating factors, which include: (1) The nature, circumstances,
extent, and gravity of the violation; (2) with respect to the entity,
the degree of culpability, any history of violations, the ability to
pay, and any effect on the ability to continue to do business; and (3)
other matters that justice requires. 49 U.S.C. 21301(a)(3).
FRA's revision of appendix A is a general statement of policy under
5 U.S.C. 553(b)(3)(A). Consequently, notice and an opportunity for
comment are not required, and this amendment is made effective upon
publication.
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements, State and local governments.
In consideration of the foregoing, FRA amends part 234 of chapter
II, subtitle B of title 49, Code of Federal Regulations as follows:
PART 234--GRADE CROSSING SAFETY
0
1. The authority citation for part 234 continues 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 1.89.
0
2. Amend appendix A to part 234 by:
0
a. Adding, after the end of the entry for subpart D, an entry for
subpart E;
0
b. Revising footnote 1; and
0
c. Adding footnotes 2, 3, 4, 5, 6, and 7, to read as follows:
[[Page 30365]]
Appendix A to Part 234--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
* * * * * * *
Subpart E--Emergency Notification
Systems for Telephonic Reporting of
Unsafe Conditions at Highway-Rail and
Pathway Grade Crossings
234.303 Emergency notification systems
(ENS) for telephonic reporting of
unsafe conditions at highway-rail and
pathway grade crossings:
(a) Dispatching railroad fails to 15,000 25,000
establish and maintain a toll-free
telephone service by which the
railroad can directly and promptly
receive telephone calls (calls)
from the public of reports of
unsafe conditions at crossings.....
(a)(1) Dispatching railroad fails to 10,000 15,000
have either a live person answer
calls directly and promptly, or use
an automated answering system or
third-party telephone service for
receiving calls from the public of
reports of unsafe conditions at
crossings..........................
(a)(2) Dispatching railroad 10,000 15,000
improperly uses an automated
answering system...................
(b)(1)-(2) Excepted dispatching 5,000 7,500
railroad improperly uses answering
machine to receive calls of unsafe
conditions at crossings............
(b)(2) Excepted dispatching railroad 5,000 7,500
fails to use proper method to
receive calls of unsafe conditions
at crossings during either
operational or non-operational
hours..............................
(e) Dispatching railroad improperly 5,000 7,500
uses local telephone number to
receive calls of unsafe conditions
at crossings.......................
234.305 Remedial actions in response to
reports of unsafe conditions at highway-
rail and pathway grade crossings:
Response to credible report of warning
system malfunction at a highway-rail
grade crossing.
(a)(1) Maintaining railroad fails 5,000 7,500
under subpart C to follow subpart C
of this part \2\...................
(a)(2)(i) Dispatching railroad fails 5,000 7,500
to promptly contact all trains
authorized to operate through the
crossing and inform them of the
reported malfunction...............
(ii) Dispatching railroad fails to 5,000 7,500
promptly contact the maintaining
railroad and inform it of the
reported malfunction...............
Response to public report of warning
system malfunction at a highway-rail
grade crossing.
(b)(1)(i) Railroad with both 5,000 7,500
maintaining and dispatching
responsibilities fails to promptly
contact all trains authorized to
operate through the crossing and
inform them of the reported
malfunction........................
(ii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly contact the
appropriate law enforcement agency
and inform it of the reported
malfunction........................
(iii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly investigate the
report, determine the nature of the
malfunction, and take the
appropriate remedial action........
(b)(2)(i) Railroad with only 5,000 7,500
dispatching responsibility fails to
promptly contact all trains
authorized to operate through the
crossing and inform them of the
reported malfunction...............
(ii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the appropriate law
enforcement agency and inform it of
the reported malfunction...........
(iii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the maintaining railroad
and inform it of the reported
malfunction........................
(iv) Maintaining railroad fails to 5,000 7,500
promptly investigate the report,
determine the nature of the
malfunction, and take the
appropriate remedial action........
Response to report of warning system
failure at a pathway grade crossing.
(c)(1)(i) Railroad with both 5,000 7,500
maintaining and dispatching
responsibilities fails to promptly
contact all trains authorized to
operate through the crossing and
inform them of the reported failure
(ii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly contact the
appropriate law enforcement agency
and inform it of the reported
failure............................
(iii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly investigate the
report, determine the nature of the
failure, and without undue delay
repair the active warning system if
necessary..........................
(c)(2)(i) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact all trains authorized to
operate through the crossing and inform
them of the reported failure...........
(ii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the appropriate law
enforcement agency and inform it of
the reported failure...............
(iii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the maintaining railroad
and inform it of the reported
failure............................
(iv) Maintaining railroad fails to 5,000 7,500
promptly investigate the report,
determine the nature of the
failure, and without undue delay
repair the active warning system if
necessary..........................
Response to report of a disabled vehicle
or other obstruction blocking a
railroad track at a highway-rail or
pathway grade crossing.
(d)(1)(i) Railroad with both 5,000 7,500
maintaining and dispatching
responsibilities fails to promptly
contact all trains authorized to
operate through the crossing and
inform them of the reported
obstruction........................
(ii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly contact the
appropriate law enforcement agency
and inform it of the reported
obstruction........................
(iii) Railroad with both maintaining 5,000 7,500
and dispatching responsibilities
fails to promptly investigate the
report, determine the nature of the
obstruction, and without undue
delay take the necessary action to
have the obstruction removed.......
(d)(2)(i) Railroad with only 5,000 7,500
dispatching responsibility fails to
promptly contact all trains
authorized to operate through the
crossing and inform them of the
reported obstruction...............
(ii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the appropriate law
enforcement agency and inform it of
the reported obstruction...........
[[Page 30366]]
(iii) Railroad with only dispatching 5,000 7,500
responsibility fails to promptly
contact the maintaining railroad
and inform it of the reported
obstruction........................
(iv) Maintaining railroad fails to 5,000 7,500
promptly investigate the report,
determine the nature of the
obstruction, and without undue
delay take the necessary action to
have the obstruction removed.......
Special rule on contacting a train that
is not required to have communication
equipment.
(e) Having received a report 5,000 7,500
pursuant to Sec. 234.303(c)(1),
(c)(2), (d)(1), or (d)(2), railroad
fails to promptly contact the
occupied controlling locomotive of
the train by the quickest means
available consistent with Sec.
220.13(a) of this chapter..........
Response to report of an obstruction of
view at a highway-rail or pathway grade
crossing.
(f)(1) Railroad with both 5,000 7,500
maintaining and dispatching
responsibilities fails to timely
investigate the report and remove
the obstruction if it is lawful and
feasible to do so..................
(f)(2)(i) Railroad with only 5,000 7,500
dispatching responsibility fails to
promptly contact the maintaining
railroad...........................
(ii) Maintaining railroad fails to 5,000 7,500
timely investigate the report and
remove the obstruction if it is
lawful and feasible to do so.......
Response to report of other unsafe
condition at a highway-rail or pathway
grade crossing.
(g)(1) Railroad with both 5,000 7,500
maintaining and dispatching
responsibilities fails to timely
investigate the report, and timely
correct the unsafe condition if it
is lawful and feasible to do so....
(g)(2) Railroad with only 5,000 7,500
dispatching responsibility fails to
promptly contact the maintaining
railroad...........................
(g)(3) Maintaining railroad fails to 5,000 7,500
timely investigate the report, and
timely correct the unsafe condition
if it is lawful and feasible to do
so.................................
Maintaining railroad's responsibilities
for receiving reports of unsafe
conditions at highway-rail and pathway
grade crossings.
(h)(1)(i) Maintaining railroad fails 5,000 7,500
to provide sufficient contact
information to dispatching
railroad, by which the dispatching
railroad may timely contact the
maintaining railroad upon receipt
of a report........................
(ii) Maintaining railroad fails 10,000 15,000
either to have a live person answer
calls directly and promptly, or to
use an automated answering system
for receiving calls from the
dispatching railroad of a report of
an unsafe condition................
(iii) Dispatching railroad 10,000 15,000
improperly uses an automated
answering system...................
(h)(2)(i)-(ii) Excepted maintaining 5,000 7,500
railroad fails to use proper method
to receive calls of unsafe
conditions at crossings during
operational or non-operational
hours..............................
234.306 Multiple dispatching or
maintaining railroads with respect to
the same highway-rail or pathway grade
crossing; appointment of responsible
railroad:
(a)(1) Each of the dispatching 10,000 15,000
railroads for the crossing fails to
appoint a primary dispatching
railroad for the crossing..........
(a)(1)(i)-(iv) The primary 5,000 7,500
dispatching railroad for the
crossing fails to carry out one of
the prescribed duties..............
(a)(2) Another pertinent dispatching 5,000 7,500
railroad for the crossing fails to
carry out remedial action as
required by Sec. 234.305.........
(b)(1) Each of the maintaining 5,000 7,500
railroads for the crossing fails to
appoint one maintaining railroad
responsible for the placement and
maintenance of the ENS sign(s).....
(b)(2) The assigned maintaining 5,000 7,500
railroad in Sec. 234.306(b)(1)
fails to display on the ENS sign(s)
the emergency telephone number of
the dispatching railroad or primary
dispatching railroad for the
crossing...........................
(c)(1) The dispatching railroad or 5,000 7,500
primary dispatching railroad fails
to promptly contact and inform the
appropriate maintaining railroad(s)
for the crossing of the reported
problem............................
(c)(2) The maintaining railroad 10,000 15,000
fails to carry out remedial action
as required by Sec. 234.305......
234.307 Use of third-party telephone
service by dispatching and maintaining
railroads \3\:
(a)(1) Dispatching railroad 10,000 15,000
improperly uses third-party
telephone service..................
(a)(2) Dispatching railroad fails to 10,000 15,000
ensure third-party telephone
service compliance with Sec.
234.307............................
(b)(1) Maintaining railroad 10,000 15,000
improperly uses third-party
telephone service..................
(b)(2) Maintaining railroad fails to 10,000 15,000
ensure third-party telephone
service compliance with Sec.
234.307............................
(d)(1) Railroad fails to provide 2,500 5,000
sufficient contact information to
third-party telephone service......
(d)(2)(i) Railroad fails to inform 2,500 5,000
FRA in writing before the
implementation of a third-party
telephone service..................
(ii) Railroad fails to provide FRA 2,500 5,000
with contact information for the
third-party telephone service......
(iii) Railroad fails to provide FRA 2,500 5,000
with information identifying the
crossings about which the third-
party telephone service will
receive reports....................
(d)(3) Railroad fails to inform FRA 2,500 5,000
in writing within 30 days following
any changes in the use of, or the
discontinuance of, third-party
telephone service..................
(d)(4) \4\ Dispatching or
maintaining railroad fails to take
appropriate action required by Sec.
234.305.
(e) \5\ Railroad fails to ensure
third-party telephone service
compliance with Sec. 234.313 or
Sec. 234.315, as applicable.
234.309 ENS signs in general:
(a) Dispatching railroad fails to 2,500 5,000
provide ENS telephone number to the
maintaining railroad a minimum of
180 days prior to the required
implementation date of the ENS.....
(b)(1)-(3) \6\ Responsible railroad 5,000 7,500
fails to display minimum required
information on ENS sign............
(c)(1)-(4) \7\ Responsible railroad 5,000 7,500
fails to display ENS sign that
meets size and other physical
requirements.......................
234.311 ENS sign placement and
maintenance:
(a)(1)-(2) Responsible railroad 5,000 7,500
fails to place and maintain
required number of sign(s) at the
crossing or entrance(s) to facility
(b)(1)-(2) Responsible railroad 5,000 7,500
fails to properly locate and
maintain the sign(s) at the
crossing...........................
234.313 Recordkeeping:
[[Page 30367]]
(a)(1)-(9) Railroad fails to 2,500 5,000
maintain in its records the minimum
information required for each ENS
report received....................
(c)(1)-(2) Responsible railroad(s) 2,500 5,000
fail(s) to record in writing an
appointment of a railroad, pursuant
to Sec. 234.306, or properly
retain a copy of the document......
(d)(1) Railroad fails to properly 2,500 5,000
retain records.....................
(d)(2) Railroad fails to provide FRA 2,500 5,000
access to records..................
234.315 Electronic recordkeeping:
(a)-(b) Railroad fails to comply 2,500 5,000
with electronic recordkeeping
requirements.......................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $105,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. To facilitate the assessment of penalty
amounts, the specific types of violations of a given section are
sometimes designated by the paragraph of the section (e.g., ``(a)'')
and a code not corresponding to the legal citation for the violation
(e.g., ``(1)''), so that the complete citation in the penalty schedule
is e.g., ``(a)(1).'' FRA reserves the right to revise the citation of
the violation in the Summary of Alleged Violations issued by FRA in
the event of litigation.
\2\ Either this section or the parallel section of subpart C of this
part may be cited, but not both.
\3\ FRA does not plan to assess civil penalties against a third-party
telephone service, under Sec. 234.307(c) or (e). However, FRA plans
to assess violations against the dispatching and maintaining railroads
for failing to ensure that the third-party telephone service complies
with the requirements of Sec. Sec. 234.307, 234.313, or 234.315, if
applicable. See Sec. 234.307(a), (b), (e).
\4\ For a violation of Sec. 234.307(d)(4), a penalty should be
assessed for the specific type of violation according to the penalty
schedule for a violation of Sec. 234.305.
\5\ For a violation of Sec. 234.307(e) pertaining to recordkeeping, a
penalty should be assessed for the specific type of violation in the
penalty schedule for a violation of Sec. Sec. 234.313 or 234.315,
as applicable.
\6\ FRA reserves the right to cite a violation for each item of required
information omitted from a sign.
\7\ FRA reserves the right to cite a violation for each physical
characteristic that is nonconforming.
Issued in Washington, DC, on May 21, 2015.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-12775 Filed 5-27-15; 8:45 am]
BILLING CODE 4910-06-P
