National Highway-Rail Crossing Inventory Reporting Requirements, 37521-37534 [2016-13516]

Download as PDF 37521 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations inadvertently mistyped the final ratio of poly(oxyethylene) ratio as 16–30 moles instead of 16–60 moles. The preamble for FR Doc. 2016–04599 published in the Federal Register issue of Wednesday, March 2, 2016 (81 FR 10776) (FRL–9942–48) is corrected as follows: 1. On page 10776, second column, under the heading Summary, paragraph one, line 9 and line 23, correct 16–30 to read 16–60. 2. On page 10777, first column, paragraph 6, line 17 is corrected to read: 16–60 moles. 3. On page 10778, second column, paragraph two, line 7 is corrected to read: 16–60 moles. III. Why is this correction issued as a final rule? Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment, because it does not affect or change the Agency’s original regulatory decision nor does it adversely affect human or environmental health. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B). IV. Do any of the statutory and executive order reviews apply to this action? No. For a detailed discussion concerning the statutory and executive order review, refer to Unit X of the March 2, 2016 final rule. V. Congressional Review Act Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: June 1, 2016. Susan Lewis, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR Chapter 1 is corrected as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: ■ Authority: 21 U.S.C. 321(q), 346a and 371. 2. In § 180.960, revise the following entry in the table to read as follows: ■ § 180.960 Polymers; exemptions from the requirement of a tolerance. * * * * * Polymer CAS No. * * * * * * Alpha-[2,4,6-Tris[1-(phenyl)ethyl]phenyl]-Omega-hydroxy poly(oxyethylene) poly(oxypropylene) copolymer, the poly(oxypropylene) content averages 2–8 moles, the poly(oxyethylene) content averages 16–60 moles. Minimum number-average molecular weight (in amu) of 1,500 ....................................................................................................................................... * * * * * * * * * * DEPARTMENT OF TRANSPORTATION [FR Doc. 2016–13816 Filed 6–9–16; 8:45 am] Federal Railroad Administration BILLING CODE 6560–50–P 49 CFR Part 234 DEPARTMENT OF HOMELAND SECURITY [Docket No. FRA–2011–0007, Notice No. 6] RIN 2130–AC55 Federal Emergency Management Agency National Highway-Rail Crossing Inventory Reporting Requirements 44 CFR Part 64 Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule; response to petition for reconsideration. AGENCY: [Docket ID FEMA–2016–0002; Internal Agency Docket No. FEMA–8435] Suspension of Community Eligibility Correction asabaliauskas on DSK3SPTVN1PROD with RULES § 64.6 In rule document 2016–12123, appearing on pages 32660–32664, in the issue of Tuesday, May 24, 2016, make the following correction: On page 32661, in the first column of the table, the entry ‘‘Region III’’ should read ‘‘Region I’’. [FR Doc. C1–2016–12123 Filed 6–8–16; 8:45 am] BILLING CODE 1505–01–D VerDate Sep<11>2014 16:32 Jun 09, 2016 This document responds to a petition for reconsideration of FRA’s January 6, 2015, final rule addressing U.S. DOT National Highway-Rail Crossing Inventory (Crossing Inventory or Inventory) Reporting Requirements. This document amends and clarifies the final rule in response to the petition for reconsideration and makes certain additional amendments to the rule to address practical implementation SUMMARY: [Corrected] Jkt 238001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 * * 70880–56–7 * problems that arose after publication of the final rule. DATES: The amendments in this final rule are effective June 10, 2016. FOR FURTHER INFORMATION CONTACT: Ronald Ries, Staff Director, HighwayRail Crossing and Trespasser Prevention Programs Division, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone: 202–493–6299), ronald.ries@dot.gov; or Kathryn Shelton Gresham, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 13, Washington, DC 20590 (telephone: 202–493–6063), kathryn.gresham@ dot.gov. SUPPLEMENTARY INFORMATION: I. Background On October 18, 2012, FRA published a notice of proposed rulemaking (NPRM) as a first step towards the agency’s promulgation of Crossing Inventory regulations per the Congressional mandate contained in Section 204(a) of the Rail Safety Improvement Act of 2008 (RSIA) E:\FR\FM\10JNR1.SGM 10JNR1 asabaliauskas on DSK3SPTVN1PROD with RULES 37522 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations (codified at 49 U.S.C. 20160). See 77 FR 64077. After careful consideration of comments received in response to the NPRM and testimony received at a February 19, 2013, public hearing, FRA published a final rule on January 6, 2015, requiring railroads that operate one or more trains through highway-rail or pathway crossings to submit initial reports to the Crossing Inventory, including current information about warning devices and signs for previously unreported and new highway-rail and pathway crossings through which they operate. The final rule also requires railroads to periodically update the data in the Crossing Inventory, including the prompt reporting of a crossing sale, crossing closure, or changes in certain crossing characteristics. See 80 FR 746. The Association of American Railroads (AAR) filed a petition for reconsideration (Petition) of the final rule. In its Petition, AAR asks FRA: (1) For additional time to comply with the final rule; (2) to reconsider the rule’s requirement that railroads, in certain instances, submit data to the Crossing Inventory that State agencies have historically submitted voluntarily. Specifically, AAR asks FRA to amend 49 CFR 234.405 and 234.407 to address that issue and issues associated with the assignment of inventory numbers to certain crossings located in private companies’, ports’, and docks’ areas; (3) to amend those same sections, and § 234.409, to remove the requirement that railroads operating trains through highway-rail or pathway crossings, that are not the ‘‘primary operating railroad’’ for those crossings, ensure information the relevant primary operating railroad provides to the Crossing Inventory is submitted and updated; and (4) to revise the Inventory Guide 1 to disallow states from reporting crossing closures to the Crossing Inventory. The specific issues AAR raised, and FRA’s responses to those issues, are discussed in detail in the ‘‘Section-bySection Analysis’’ below. The Sectionby-Section Analysis also contains a discussion of each provision of the final rule which FRA is amending or clarifying in response to practical implementation issues it has discovered since it promulgated the final rule. These amendments also allow greater flexibility in complying with the rule. These amendments are within the scope of the issues and options discussed, considered, or raised in the NPRM. 1 Federal Railroad Administration, Office of Railroad Safety, ‘‘Guide for Preparing U.S. DOT Crossing Inventory Forms’’ (initially published January 6, 2015). VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 II. Section-by-Section Analysis A. Amendments to 49 CFR Part 234 Section 234.401 Definitions FRA is adding definitions of ‘‘general railroad system of transportation’’ and ‘‘general system railroad’’ to this section because these terms are used in the revised definition of ‘‘primary operating railroad’’, which is discussed below. For purposes of this subpart, FRA is defining a general railroad system of transportation 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. Consistent with the definition of ‘‘general railroad system of transportation’’, FRA is defining general system railroad as a railroad that operates on track, which is part of the general railroad system of transportation. Thus, a general system railroad is not a plant railroad, as defined in § 234.5 of this part. As applied to highway-rail and pathway crossings located within private companies’, ports’, or docks’ areas, the final rule defines ‘‘primary operating railroad’’ as ‘‘each railroad that owns track leading to the private company, port, or dock area.’’ After FRA issued the final rule, at least one regulated entity expressed concern about a private company where a railroad owns track leading into the private company, but does not actually operate on track within the company. Because the railroad does not operate over any crossings within the company’s area, the railroad stated it does not have ready access to the information the rule requires it to report to the Crossing Inventory for crossings within the private company. FRA did not intend to require railroads merely owning track leading to a private company, port, or dock area, where the only railroad that operates through crossings within the area is a plant railroad, as defined in § 234.5, to report to the Crossing Inventory information on the crossings within the private area. Accordingly, FRA is revising the definition of ‘‘primary operating railroad’’ to clarify that mere ownership of track leading to a private company, port, or dock area does not make a railroad a primary operating railroad for crossings within that area, if no general system railroad operates over that track and through at least one crossing within the private area. If a general system railroad operates over track leading to a private area and through at least one highway-rail or pathway crossing within the private PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 area, the railroad that owns the track leading to the area and over which the general system railroad operates, is responsible for reporting to the Crossing Inventory information on all the crossings within the private area. The railroad owning the track leading to the private area should be able to obtain access to the information required to be submitted to the Crossing Inventory (e.g., number and speed of train movements through the crossings within the area) through the railroad operating over the track it owns. For example, if one general system railroad (Railroad A) owns a track leading to a private company, port, or dock area and operates over that track and through at least one crossing within the private area, that Railroad (Railroad A) is the primary operating railroad for all crossings within the private area. Similarly, if Railroad A owns track leading to a private company, port, or dock area, but does not operate over that track or any crossings within the private area but instead allows another general system railroad (Railroad B) to operate over its track leading to the private area and Railroad B also operates through at least one crossing within the private area, Railroad A (the railroad that owns the track leading to the private area) is considered the primary operating railroad for all of the crossings within the private area—even though it does not actually operate over the track. On the other hand, if two general system railroads (e.g., Railroad C and Railroad D) own separate tracks leading to a private company, port, or dock area, and Railroad C operates over its own track leading to the private area and through at least one crossing within that area (and Railroad D does not operate over its track leading to the private area or through any crossings within the area), Railroad C (the general system railroad that owns and operates over its track leading to the private area and through at least one crossing within that area) is considered the primary operating railroad for all of the crossings within that area. Likewise, if Railroads C and D each own track leading to a private company, port, or dock area, and Railroad E (another general system railroad) operates over one of their tracks leading to the private area and through at least one crossing within the area, the owner of the track leading to the area over which Railroad E operates is the primary operating railroad for all crossings within the private area. If both Railroads C and D own track leading to a private company, port, or dock area, and they each operate over their owned track into the area and through at least E:\FR\FM\10JNR1.SGM 10JNR1 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations one crossing within the area, they both will be considered primary operating railroads for all crossings within the private area. Finally, if in any scenario a general system railroad (or more than one railroad) owns track leading to a private company, port, or dock area, but neither that railroad nor any other general system railroad operates over that track and through at least one crossing within the area, then the crossings in the private area do not need to be reported to the Crossing Inventory. For example, if a general system railroad owns track leading up to the entrance of a private area and operates over that track (or allows another general system railroad to operate over that track), but does not operate over any crossing within the area, that railroad is not considered a primary operating railroad for purposes of the crossings within the private area. asabaliauskas on DSK3SPTVN1PROD with RULES Section 234.403 Submission of Data to the Crossing Inventory, Generally Section 234.403 of the final rule contains the general requirements for submission of information to the Crossing Inventory. Paragraph (e) of that section of the final rule allows a parent corporation to submit crossing data to the Crossing Inventory on behalf of one or more of its subsidiaries, if the parent corporation and subsidiary railroad(s): (1) Provide written notice (signed by the chief executive officer of the parent corporation) to FRA that the parent corporation is assuming the reporting and updating responsibility; and (2) operate as a ‘‘single, seamless, integrated’’ railroad system. Since publication of the final rule, numerous railroads that voluntarily submitted crossing data in the past on behalf of their subsidiaries notified FRA they would like to continue to do so. However, because they do not operate as a ‘‘single, seamless, integrated’’ railroad system they cannot report on behalf of their subsidiaries under the final rule. Railroads also questioned the need for the chief executive officer, as opposed to any railroad official, to sign the written notice the parent corporation submits. After considering these concerns, which could inadvertently prevent parent corporations from reporting crossing data on behalf of their subsidiaries, FRA is amending § 234.403(e) by removing the requirement that parent corporations and their subsidiary railroads operate as a ‘‘single, seamless, integrated’’ railroad system. As a result, all railroad parent corporations can now report on behalf of their subsidiaries under paragraph (e). VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 This final rule also simplifies the notification process a parent corporation must follow if it wants to submit Crossing Inventory data on behalf of one or more of its subsidiary railroads. At least one regulated entity raised concerns about current paragraph (e)(1) of this section of the final rule that requires the chief executive officer of the parent corporation to sign the required notice to FRA that the parent corporation is assuming reporting and updating responsibility for its subsidiaries. In response to those concerns, FRA is amending paragraph (e)(1) to allow any appropriate management official with authority to bind the company to sign the notice. This notice must include a statement that the parent corporation is agreeing to (1) submit and update crossing data for the named subsidiaries and the parent corporation, and (2) be subject to enforcement action for noncompliance with the final rule. FRA is also amending paragraph (e)(1) to require only the parent corporation, instead of the parent corporation and the named subsidiary, to submit the required written notice to FRA. Section 234.405 Submission of Initial Data to the Crossing Inventory for Previously Unreported Crossings Assignment of Inventory Numbers to Previously Unreported Crossings Located in a Private Company, Port, or Dock Area Current paragraph (a)(1)(ii) of § 234.405 requires each primary operating railroad that operates through at least one previously unreported crossing within a private company, port, or dock area to assign one or more Inventory Numbers to those crossings. AAR asserts that (1) this requirement is contrary to current practice that allows a single Inventory Number to be assigned to all crossings in these areas, and (2) this new requirement could create reporting confusion if an accident were to occur at a crossing within a private company, port, or dock area. AAR requests that FRA amend this requirement to allow multiple primary operating railroads to share an assigned Inventory Number for one or more previously unreported highway-rail and pathway crossings located within a private company, port, or dock area. After careful consideration, FRA is not adopting AAR’s request to modify the language of § 234.405(a)(1)(ii) for two reasons. First, for purposes of enforcement of this rule’s reporting requirements, if the railroads share a single Inventory Number, FRA will not know which railroad is responsible for PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 37523 misreporting or failure to report. Second, if a reportable accident/ incident occurs at a previously unreported highway-rail or pathway crossing located within a private company, port, or dock area, it benefits both FRA and the railroads involved for the railroad responsible for reporting the accident/incident under 49 CFR part 225 to have its own unique Inventory Number it can use in the accident/ incident report it files with FRA.2 FRA disagrees with AAR’s argument that assigning multiple Inventory Numbers to the same highway-rail or pathway crossing could create reporting confusion. It is possible that a railroad that operates over its own track into a private company, port, or dock area may not know if another railroad with its own track leading into the area assigned an Inventory Number to the crossings within the area. By requiring each railroad to assign its own Inventory Number to the crossings within a private company, port, or dock area, a railroad involved in a crossing collision inside the area will not have to rely on another railroad to provide the Inventory Number so it can report the accident as required under part 225. FRA also disagrees with AAR’s assertion that requiring each primary operating railroad to assign one or more Inventory Numbers to crossings located within a private company, port, or dock area could result in multiple railroads having multiple signs at each vehicular entrance that provide multiple Inventory Numbers and emergency notification information for the same crossings. However, FRA regulations do not require railroads to post emergency notification signs (ENS signs) at crossings located within a private company. As for port and dock areas, subpart E of 49 CFR part 234 (subpart E) requires railroads to post at least one ENS sign only at each vehicular entrance if any highway-rail and/or pathway crossings are located within that area (and provided the port or dock area does not meet the definition of ‘‘plant railroad’’ in § 234.5.) See 49 CFR 234.311(a)(2)(ii). Subpart E does not require railroads to post signs at each crossing within such an area. The track owner or lessee that maintains the highway-rail or pathway grade crossing (the ‘‘maintaining railroad’’ under 49 CFR 234.301) is responsible for the placement and maintenance of ENS 2 FRA is aware that some primary operating railroads already share a single Inventory Number for highway-rail and pathway crossings located within a private company, port, or dock area that have already been reported to the Crossing Inventory. See discussion of § 234.409 below for how to submit periodic updates in such situations. E:\FR\FM\10JNR1.SGM 10JNR1 37524 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES signs at each vehicular entrance. See 49 CFR 234.311(a)(2)(ii). Under subpart E, if the primary dispatching railroad under 49 CFR 234.306 and the maintaining railroad are not the same entity, the primary dispatching railroad must provide the emergency telephone number to display on the ENS sign to the maintaining railroad. See 49 CFR 234.309(a). If there is more than one primary operating railroad that operates through highway-rail or pathway crossings in a port or dock area, subpart E does not require multiple signs at each vehicular entrance with multiple Inventory Numbers and emergency notification information for the crossings. Instead, under subpart E, the maintaining railroad (not the primary operating railroad under this final rule) is responsible for posting ENS signs that display the emergency telephone number and the Inventory Number assigned to the crossings in the port or dock area by the primary dispatching railroad. Submission of Completed Inventory Forms for Previously Unreported Highway-Rail and Pathway Crossings Paragraph (a)(3) of § 234.405 of the final rule requires primary operating railroads to submit to the Crossing Inventory ‘‘accurate and complete [U.S. DOT Crossing] Inventory Forms, or their electronic equivalent,’’ for previously unreported highway-rail and pathway crossings through which the railroads operate. AAR requests that FRA amend this provision (and the corresponding provision in § 234.407(a)(3) addressing new highway-rail and pathway crossings) by removing the requirement that primary operating railroads submit ‘‘completed’’ U.S. DOT Crossing Inventory Forms (Inventory Forms) for such crossings. AAR also objects to the voluntary process in paragraph 234.405(d) (and the corresponding provision in § 234.407(d) (addressing new highwayrail and pathway crossings). Section 234.405(d) provides that if a railroad requests data necessary to complete an Inventory Form from a State agency, but does not timely receive that information from the State agency, the railroad may notify FRA in writing of the State’s nonresponsiveness. AAR asserts that railroads should not be held responsible for supplying state-controlled information not maintained by the railroads. AAR urges FRA to revise this requirement to limit primary operating railroads’ reporting responsibilities to crossing data within their control. FRA acknowledges that State agencies generally maintain the crossing data in VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 Parts III, IV, and V of the Inventory Form. However, the RSIA, as amended by sec. 11316(g) of the Fixing America’s Surface Transportation Act (FAST Act), specifically requires railroads to report ‘‘[n]ot later than 1 year after the date of enactment of the RSIA or 6 months after a new crossing becomes operational, whichever occurs later . . . current information, including information about warning devices and signage, as specified by the Secretary, concerning each previously unreported crossing through which it operates with respect to the trackage over which it operates.’’ 49 U.S.C. 20160. Crossing data about warning devices and signage is primarily in Part III of the Inventory Form, under the heading ‘‘Highway or Pathway Traffic Control Device Information.’’ Thus, in addition to the crossing data in Parts I and II of the Inventory Form, which railroads have historically collected and maintained in the Crossing Inventory, the RSIA specifically requires railroad carriers to submit additional crossing data ‘‘about warning devices and signage’’ for previously unreported and new crossings. The RSIA also contains language granting the Secretary of Transportation (and by delegation, FRA) the authority to exercise discretion in determining the scope of the crossing data railroads must submit to the Crossing Inventory. In the final rule, FRA determined that submission of complete Inventory Forms for previously unreported and new public highway-rail grade crossings is needed to increase the accuracy and utility of the Crossing Inventory. FRA continues to maintain that position. Railroads generally work closely with the State agency responsible for grade crossing safety before any new public highway-rail grade crossings become operational. Therefore, any burden associated with obtaining Statemaintained crossing data for new public highway-rail grade crossings should be minimal. Nevertheless, to clarify this requirement, FRA is revising § 234.405(a)(3) (and the corresponding provision in § 234.407(a)(3) on new highway-rail and pathway crossings) to require primary operating railroads to submit ‘‘accurate Inventory Forms, or their electronic equivalent,’’ (as opposed to ‘‘accurate and complete’’ Inventory Forms) to the Crossing Inventory for previously unreported highway-rail and pathway crossings through which they operate. Primary operating railroads must fill out these accurate Inventory Forms as the Inventory Guide requires. In other words, primary operating railroads are only required to complete PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 the entire Inventory Form for new and previously unreported public highwayrail grade crossings. The Inventory Guide only requires primary operating railroads to complete Parts I and II of the Inventory Form for new and previously unreported pathway grade crossings and new and previously unreported private highway-rail grade crossings. State-Maintained Crossing Data Since the final rule requires primary operating railroads to complete Inventory Forms (or their electronic equivalent) for new and previously unreported public highway-rail grade crossings, those railroads may need to obtain crossing data from the State agency responsible for maintaining highway-rail and pathway crossing data to complete the Inventory Form (or its electronic equivalent). Current § 234.405(d) of the final rule explains how a primary operating railroad that requests State-maintained crossing data from the appropriate State agency responsible for maintaining the data, but does not timely receive the requested data, may notify FRA in writing that the railroad requested the required data, but did not receive the data. Under the final rule, if a railroad properly submits such notification, FRA would not hold the primary operating railroad responsible for failing to complete and submit accurate Inventory Forms (or their electronic equivalent) for previously unreported public highway-rail grade crossings. In its Petition, AAR asserts that ‘‘FRA has taken a relatively straightforward process, whereby primary operating railroads could provide the data which they possess and state agencies could provide the remaining highway traffic and other non-railroad data, and has made it burdensome and complex.’’ Noting that a primary operating railroad may operate in dozens of states, AAR further asserts that contacting each relevant State agency, tracking the responses of those agencies, and creating a certification process would be an unmerited burden on the industry. As noted previously, FRA continues to maintain its position that submission of complete Inventory Forms for previously unreported and new public highway-rail grade crossings is needed to increase the accuracy and utility of the Crossing Inventory. To achieve this goal, FRA is requiring primary operating railroads to provide the crossing data they possess and to request any additional required crossing data from the State agency responsible for maintaining that data. FRA anticipates that State agencies will generally E:\FR\FM\10JNR1.SGM 10JNR1 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES respond promptly to railroad requests for State-maintained crossing data. However, primary operating railroads may submit copies of their written requests for State-maintained crossing data to FRA and to each operating railroad that operates through the crossing. This is not mandatory, but, if FRA audits the Crossing Inventory, FRA would know the primary operating railroad made an effort to obtain State data for one or more previously unreported public highway-rail grade crossings. After considering AAR’s request, FRA is simplifying the written notification process in § 234.405(d). Instead of providing written notice to FRA certifying that State-maintained crossing data was requested at least 60 days earlier and has not yet been received, a primary operating railroad can send a copy of its written request for Statemaintained crossing data to FRA and to each operating railroad that operates through the crossing. As long as the primary operating railroad submits the State-maintained crossing data within 60 days of receipt, FRA will consider the written request for State-maintained crossing data to be an affirmative defense to potential liability for failure to timely submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory for a previously unreported public highway-rail grade crossing. Deadline for the Submission of Crossing Data for Previously Unreported Highway-Rail and Pathway Crossings Paragraphs (a)(3) and (b) of § 234.405 of the final rule provide a deadline of March 7, 2016, for operating railroads and primary operating railroads to submit the required Inventory Forms, or their electronic equivalent, for previously unreported highway-rail and pathway crossings. AAR requests that FRA extend the deadline to three years from the final rule’s effective date (i.e., until March 9, 2018). AAR asserts this additional time will allow railroads to hire and train additional staff to physically locate and inspect tens of thousands of previously unreported private crossings. AAR also asserts that railroads need this additional time to add newly acquired information to the Crossing Inventory and to modify their IT systems to meet the new requirements. After careful consideration, FRA is not adopting AAR’s request to extend the reporting deadline for new and previously unreported highway-rail and pathway crossings to three years from the final rule’s effective date. However, FRA acknowledges that railroads may need additional time to incorporate the VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 changes that FRA is making in this amendment to the final rule as a result of AAR’s Petition. Therefore, FRA is revising § 234.405(a)(3) to extend the deadline for primary operating railroads to submit crossing data to the Crossing Inventory for previously unreported highway-rail and pathway crossings to August 9, 2016. Consistent with this extension of time, FRA is also extending the deadline for operating railroads that operate on separate tracks to submit crossing data to the Crossing Inventory to August 9, 2016. FRA is not adjusting any other deadlines in § 234.405(a) and (b). Duty of Operating Railroads To Ensure New and Previously Unreported Highway-Rail and Pathway Crossings Are Reported to the Crossing Inventory Paragraph (c) of § 234.405 requires operating railroads (railroads other than the primary operating railroad that operate through a crossing) to notify FRA if a primary operating railroad has not submitted a completed Inventory Form, or its electronic equivalent, to the Crossing Inventory consistent with the rule for a new or previously unreported crossing the railroad operates through. AAR requests that FRA amend this requirement (along with the corresponding requirement in § 234.407(c) related to new crossings) so operating railroads will not be liable for a primary operating railroad’s failure to submit the required crossing data. AAR asserts this provision imposes a significant burden on operating railroads and constitutes an inappropriate shift of regulatory compliance policing responsibility to a private business. AAR asserts that the final rule requires operating railroads to include and validate data for other railroads’ crossings in their databases on an ongoing basis to ensure the primary operating railroad properly submitted required crossing data to the Crossing Inventory. AAR further asserts it is unrealistic to require railroads to audit the crossing data of other railroads, in addition to their own crossing data, all within 14 months. After careful consideration of AAR’s request, with respect to the initial reporting of new and previously unreported highway-rail and pathway crossings, FRA cannot legally adopt AAR’s request. Paragraph (c) of § 234.405 (and paragraph (c) of § 234.407 related to new crossings) implements the RSIA mandate that each railroad carrier ensure current information about each previously unreported highway-rail or pathway crossing is reported to the Crossing Inventory. See 49 U.S.C. 20160(a). PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 37525 Congress left FRA no discretion to ignore this mandate. Clearly, Congress thought operating railroads that operate over new and unreported highway-rail and pathway crossings are in the best position to identify crossings that have not been reported to the Crossing Inventory. Section 234.407 Submission of Initial Data to the Crossing Inventory for new Crossings Paragraph (b) of this section of the final rule requires operating railroads that operate on separate tracks through a new highway-rail or pathway crossing to submit crossing data to the Crossing Inventory by March 7, 2016, but erroneously fails to provide a future deadline for highway-rail and pathway crossings that become operational after the final rule’s effective date. This document corrects this technical error by amending § 234.407(b) to require operating railroads that operate on separate tracks through a new highwayrail or pathway crossing to submit crossing data no later than six months after the crossing becomes operational or August 9, 2016, whichever occurs later. FRA is also making a technical amendment to correct a typographical error in the second sentence of paragraph (d)(1)(i) of this section in this final rule. The original version of this sentence in the final rule contained an erroneous reference to § 234.405(a)(3). Assignment of Inventory Numbers to New Crossings Located in a Private Company, Port, or Dock Area Paragraph (a)(1)(ii) of § 234.407 of the final rule requires each primary operating railroad to assign one or more Inventory Numbers to new highway-rail and pathway crossings within a private company, port, or dock area and through which the railroad operates. See discussion of § 234.405 above. AAR requests that FRA amend this requirement to allow multiple primary operating railroads to assign a shared Inventory Number to new highway-rail and pathway crossings that are located within a private company, port, or dock area. AAR asserts that as drafted, § 234.407(a)(1)(ii) is contrary to current practice. AAR also asserts that this new requirement could create reporting confusion if an accident were to occur at a crossing within a private company, port, or dock area. After careful consideration, FRA is not adopting AAR’s request to modify § 234.407(a)(1)(ii) for the reasons explained in the Section-by-Section analysis of § 234.405(a)(1)(ii) above. E:\FR\FM\10JNR1.SGM 10JNR1 37526 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations Submission of Completed Inventory Forms for New Highway-Rail and Pathway Crossings Paragraph (a)(3) of § 234.407 requires primary operating railroads to submit to the Crossing Inventory ‘‘accurate and complete [U.S. DOT Crossing] Inventory Forms, or their electronic equivalent,’’ for new highway-rail and pathway crossings through which railroads operate. As discussed in the Section-bySection Analysis of § 234.405 above, under the heading ‘‘Submission of Completed Inventory Forms for Previously Unreported Highway-Rail Grade Crossings’’, AAR requests that FRA amend § 234.407(a)(3) to remove the requirement that primary operating railroads submit ‘‘completed’’ Inventory Forms for new highway-rail and pathway crossings. AAR also objects to the voluntary process in paragraph (d) of this section which provides that if a railroad requests data necessary to complete an Inventory Form from a State agency and that agency does not timely respond, the railroad may notify FRA in writing of the State’s nonresponsiveness. After careful consideration, FRA is revising § 234.407(a)(3) consistent with the revisions to § 234.405(a)(3), to clarify that primary operating railroads must submit ‘‘accurate Inventory Forms, or their electronic equivalent,’’ (as opposed to ‘‘accurate and complete’’ Inventory Forms) to the Crossing Inventory for new highway-rail and pathway crossings through which they operate. The primary operating railroad must fill out these accurate Inventory Forms consistent with the Inventory Guide, which requires completion of the entire Inventory Form only for new public highway-rail grade crossings. asabaliauskas on DSK3SPTVN1PROD with RULES Deadline for the Submission of Crossing Data for New Highway-Rail and Pathway Crossings The final rule provides that ‘‘[e]ach primary operating railroad shall submit accurate and complete Inventory Forms, or their electronic equivalent, to the Crossing Inventory for new highway-rail and pathway crossings through which it operates, no later than six (6) months after the crossing becomes operational or March 7, 2016, whichever occurs later.’’ 49 CFR 234.407(a)(3). The final rule also provides that ‘‘[f]or each new highway-rail and pathway crossing where operating railroads operate trains on separate tracks through the crossing, each operating railroad (other than the primary operating railroad) shall submit accurate crossing data specified in the Inventory Guide to the Crossing VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 Inventory no later than March 7, 2016.’’ 49 CFR 234.407(b). AAR requests that FRA amend § 234.407(a)(3) to establish a deadline three years from the final rule effective date for operating railroads and primary operating railroads to submit crossing data for new highway-rail and pathway crossings to the Crossing Inventory. AAR asserts that railroads need this additional time to add newly acquired information to the Inventory and to modify their IT systems to meet the new requirements. For the reasons explained in the Section-by-Section analysis of § 234.405(a)(3) above, FRA is not adopting the AAR’s request to extend the reporting deadline for new highwayrail and pathway crossings to March 9, 2018 (three years from the final rule effective date). However, with respect to new crossings (highway-rail and pathway crossings that become operational on or after June 10, 2016), primary operating railroads will have six (6) months from the date on which the highway-rail or pathway crossing becomes operational to report the new crossing to the Crossing Inventory, consistent with § 234.403 and the Inventory Guide. Similarly, operating railroads that operate on separate tracks through a new highway-rail or pathway crossing will have six (6) months from the date on which the highway-rail or pathway crossing becomes operational to submit crossing data to the Crossing Inventory, consistent with § 234.403 and the Inventory Guide. Duty of Operating Railroads To Ensure New Highway-Rail and Pathway Crossings Are Reported to the Crossing Inventory Paragraph (c) of § 234.407 requires operating railroads (railroads other than the primary operating railroad that operate through a crossing) to notify FRA if a completed Inventory Form, or its electronic equivalent, has not been submitted to the Crossing Inventory consistent with the final rule for a new crossing that the railroad operates through. Consistent with its request to amend § 234.405(c) regarding previously unreported crossings, AAR requests that FRA amend § 234.407(c), so operating railroads will not be held liable for the primary operating railroad’s failure to timely report a new highway-rail or pathway crossing to the Crossing Inventory. For the reasons discussed in the Section-by-Section analysis of § 234.405(c), FRA is not adopting AAR’s request to amend § 234.407(c). State-Maintained Crossing Data As explained in the Section-bySection analysis of § 234.405(d), PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 primary operating railroads are required to complete Inventory Forms (or their electronic equivalent) for new public highway-rail grade crossings. Therefore, primary operating railroads may need to obtain crossing data from the State agency responsible for maintaining highway-rail and pathway crossing data to complete the Inventory Form (or its electronic equivalent). Like paragraph (d) of § 234.405, current paragraph (d) of § 234.407 of the final rule explains how a primary operating railroad may submit written notification to the FRA Associate Administrator that they requested certain crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data, which the State has not yet provided. As long as the primary operating railroad submits the Statemaintained crossing data within 60 days of receipt, FRA will consider a properly filed written notification to be an affirmative defense to potential violations for failure to timely submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory for a new public highway-rail grade crossing. FRA is revising the written notification process in § 234.407(d). FRA is no longer asking primary operating railroads to provide their written notifications by certified mail, return receipt requested. Instead, a primary operating railroad can send copies of its request for Statemaintained crossing data to the FRA Associate Administrator and to each operating railroad that operates through the new public highway-rail grade crossing. As long as the primary operating railroad: (1) Sends copies of its written request for State-maintained crossing data to the FRA Associate Administrator and to each operating railroad that operates through the new public highway-rail grade crossing no later than six (6) months after the crossing becomes operational; and (2) submits the State-maintained crossing data within 60 days of receipt, FRA will consider the written request for Statemaintained crossing data to be an affirmative defense to potential liability for failure to timely submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory for a new public highway-rail grade crossing. Section 234.409 Submission of Periodic Updates to the Crossing Inventory. AAR’s Petition states that some primary operating railroads share a single Inventory Number for highwayrail and pathway crossings located within a private company, port, or dock E:\FR\FM\10JNR1.SGM 10JNR1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations area that have already been reported to the Crossing Inventory. (As explained in the definition of ‘‘primary operating railroad’’ in § 234.401 above, each railroad that owns track leading to a private company, port, or dock area is considered a primary operating railroad for the crossings within that area, if a general system railroad operates over the track owned by that railroad and through at least one crossing within that private area.) Paragraph (a) of § 234.409 requires each primary operating railroad to submit periodic updates to the Crossing Inventory. To comply with this requirement, primary operating railroads that currently share Inventory Numbers for highway-rail and pathway crossings located within a private company, port, or dock area must exercise one of two options. First, each primary operating railroad that operates through the crossing(s) may choose to assign a new unique Inventory Number (or set of Inventory Numbers) to the crossing(s) located within a private company, port, or dock area through which it operates. Each primary operating railroad (except the primary operating railroad that assigned the original Inventory Number to the crossing(s)) would then use its new Inventory Number(s) to submit crossing data to the Crossing Inventory as a new crossing record. After the new crossing record is established, each primary operating railroad can submit periodic updates to the Crossing Inventory for the highway-rail and pathway crossing(s) located within a private company, port, or dock area using the Inventory Number(s) it assigned to the crossing(s). Second, FRA will accommodate primary operating railroads that wish to continue sharing a single Inventory Number which has already been used to report highway-rail and pathway crossings located within a private company, port, or dock area to the Crossing Inventory. As explained in Frequently Asked Question (FAQ) number 37 in Appendix E to the Inventory Guide, the primary operating railroad of record in the Crossing Inventory can submit an up-to-date and accurate periodic update to the Crossing Inventory for all of the railroad-assigned data fields in Appendix B to the Inventory Guide (‘‘Responsibility Table for Periodic Updates to the Crossing Inventory’’). As part of this update, the primary operating railroad of record must check the ‘‘Yes’’ box in Part I, item 7 (‘‘Do Other Railroads Operate a Separate Track at Crossing’’) of the Inventory Form (or its electronic equivalent) and provide railroad codes VerDate Sep<11>2014 18:25 Jun 09, 2016 Jkt 238001 for all of the other primary operating railroads. The other primary operating railroads that share the Inventory Number can satisfy the periodic updating requirement in § 234.409 by using the shared Inventory Number to submit upto-date and accurate crossing data for the data fields specified in Appendix C to the Inventory Guide (‘‘Reporting Crossings that have Multiple Operating Railroads’’). This method for submitting periodic updates is identical to the method operating railroads that operate on separate tracks through a crossing use, under paragraph (b) of § 234.409. This second option is only available for new or previously unreported highway-rail and pathway crossings located within a private company, port, or dock area that have already been reported to the Crossing Inventory and assigned one or more Inventory Numbers that are shared by multiple primary operating railroads. Submission of Periodic Updates The final rule requires primary operating railroads to submit, consistent with the Inventory Guide, ‘‘up-to-date and accurate crossing data’’ to the Crossing Inventory for each highwayrail and pathway crossing through which it operates. Paragraph (a) of § 234.409 of the final rule requires primary operating railroads to submit updated data at least every three (3) years from the date of the primary operating railroad’s most recent submission of data (or most recent submission on behalf of the primary operating railroad) for the crossing or by March 7, 2016. Paragraph (b) requires operating railroads that operate trains on separate tracks through a crossing to similarly update the data required by the Inventory Guide. As it did for §§ 234.405 and 234.407, AAR requests that FRA amend the compliance deadlines in paragraphs (a) and (b) of § 234.409 for three years from the final rule’s effective date. This would allow railroads to submit updated crossing data for highway-rail and pathway grade crossings at least every three (3) years from the date of the most recent submission of data by that railroad for the crossing or by March 7, 2018, whichever occurs later. Consistent with FRA’s responses to AAR’s requests to amend the compliance deadlines in §§ 234.405 and 234.407 discussed above, FRA is not adopting AAR’s request to extend the compliance deadlines for railroads in paragraphs (a) and (b) of § 234.409 by three years. As with the compliance deadlines in §§ 234.405 and 234.407, however, FRA acknowledges that PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 37527 railroads may need additional time to incorporate the changes that are being made in these amendments to the final rule being made as a result of AAR’s Petition. Therefore, FRA is revising § 234.409(a) and (b) to extend the deadline for primary operating railroads and operating railroads to submit updated crossing data to the Crossing Inventory for highway-rail and pathway crossings over which they operate to every three (3) years from the date of the most recent submission of data by the railroad (or on behalf of the railroad) for the crossing or August 9, 2016, whichever occurs later. Duty of Operating Railroads To Ensure Up-to-Date Crossing Data Is Reported to the Crossing Inventory Paragraph (c) of § 234.409 requires operating railroads (other than primary operating railroads), that operate through a highway-rail or pathway crossing for which up-to-date information has not been timely submitted to the Crossing Inventory to notify FRA of this oversight. Written notification the operating railroad provides must include, at a minimum, the Inventory Number for each highwayrail or pathway crossing that has not been updated. AAR requests that FRA amend § 234.409(c), so that operating railroads will not be held liable for the primary operating railroad’s failure to timely submit updated crossing data to the Crossing Inventory. AAR asserts that this provision imposes a significant burden on operating railroads, which will need to include and validate data for other railroads’ crossings in their databases on an ongoing basis to ensure that the primary operating railroad has properly submitted required crossing data to the Crossing Inventory. AAR further asserts that this language constitutes an inappropriate shift of regulatory compliance policing responsibility to a private business and that it is unrealistic to require railroads to audit the crossing data of other railroads, in addition to their own crossing data, within 14 months. After considering AAR’s request, FRA is removing § 234.409(c). The RSIA requires each railroad carrier to ensure that periodic updates are submitted to the Crossing Inventory for each highway-rail and pathway crossing through which it operates. See 49 U.S.C. 20160(b). However, unlike previously unreported and new crossings that have not yet been reported to the Crossing Inventory, FRA can use the Grade Crossing Inventory System (GCIS) to generate reports that identify out-of-date highway-rail and pathway crossing data. E:\FR\FM\10JNR1.SGM 10JNR1 37528 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES FRA can use these reports to verify that primary operating railroads (and any operating railroads that operate on separate tracks through the crossing) are timely submitting periodic updates to the Crossing Inventory, as required by § 234.409(a) and (b). Therefore, FRA is revising the final rule to remove the requirement that operating railroads monitor the Crossing Inventory and provide the agency written notification if a primary operating railroad fails to timely submit updates to the highwayrail and pathway crossing data for which it is responsible. Section 234.411 Changes Requiring Submission of Updated Information to the Crossing Inventory Consistent with the extended deadline by which railroads are required to report new and previously unreported highway-rail and pathway crossings to the Crossing Inventory, this final rule revises § 234.411 to clarify the primary operating railroad is required to report the following events to the Crossing Inventory within three (3) months, if they occur on or after June 10, 2016: (1) The sale of all or part of a crossing; (2) the closure of a highwayrail or pathway crossings; or (3) a change in crossing surface or warning device at a public highway-rail grade crossing. Current paragraph (a) of § 234.411 requires any railroad that sells all or part of a highway-rail or pathway crossing to report the crossing sale to the Crossing Inventory within three (3) months of the date of sale or March 7, 2016, whichever occurs later. However, with respect to railroads, GCIS is primarily designed to accept crossing data from the primary operating railroad, unless other operating railroads operate on separate tracks through the crossing (or the primary operating railroad delegates reporting and updating responsibility to another entity). (As stated in the Inventory Guide, GCIS will accept partial data submissions from other operating railroads once the primary operating railroad submits an Inventory Form, or its electronic equivalent, which indicates that one or more operating railroads operate on separate tracks through the crossing.) Therefore, FRA is also amending § 234.411(a)(1) to require a selling railroad that is not the primary operating railroad to notify the primary operating railroad of the sale of all or part of a highway-rail or pathway crossing within three (3) months of the date of sale. Under new § 234.411(a)(2)(i), if the primary operating railroad sells all or part of a highway-rail or pathway VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 crossing for which it has reporting and updating responsibility under this subpart, it would be required to submit an Inventory Form, or its electronic equivalent, which reflects the crossing sale to the Crossing Inventory consistent with § 234.403 and the Inventory Guide within three (3) months of the date of sale. However, under new § 234.411(a)(2)(ii), if a primary operating railroad is notified of the sale of all or part of a highway-rail or pathway crossing under paragraph (a)(1) of this section, then it would be required to submit an Inventory Form, or its electronic equivalent, which reflects the crossing sale to the Crossing Inventory consistent with § 234.403 and the Inventory Guide within three (3) months of the date of notification. will defer to the determination of the relevant State agency for the public/private classification of highway-rail (and pathway) crossings. Accordingly, we are asking State agencies to submit voluntary updates to the Crossing Type data field in Part I of the Inventory Form, as stated in Appendix B to the Inventory Guide. Section 234.413 Who Can Report Closed Crossing Status in the Crossing Inventory FAQ number 22 in Appendix E to the Inventory Guide states that ‘‘[t]he primary operating railroad must report the closure of a highway-rail or pathway crossing to the Crossing Inventory, but the State may also report the closure of a public crossing.’’ AAR requests that FRA amend this FAQ to state that only railroads can report the closure of a crossing to the Crossing Inventory. AAR asserts that allowing dual reporting is problematic because a State may close crossings in the Crossing Inventory on the basis of inaccurate information and without informing the operating railroad, which causes railroads to incur additional research and effort to address and resolve the discrepancy. FRA declines to adopt AAR’s recommendation to modify FAQ number 22 in Appendix E to the Inventory Guide. While the primary operating railroad is the only entity that can report the closure of a private highway-rail or pathway crossing to the Inventory, both railroads and States collect and maintain data related to public highway-rail and pathway crossings. Both entities have an interest in ensuring that the Crossing Inventory reflects up-to-date and accurate data related to crossing status. By allowing States to report the closure of public highway-rail and pathway crossings to the Crossing Inventory, States can provide needed updates to crossing status in the event that the primary operating railroad ceases to operate. Recordkeeping This document makes a technical amendment to the heading of this section to correct a typographical error. Appendix A to Part 234—Schedule of Civil Penalties This document revises the civil penalty schedule in appendix A to this part to reflect changes that were made to individual sections in these final rule amendments. FRA is revising the civil penalty schedule to reflect violations may be assessed under §§ 234.405(a) and 234.407(a) if the primary operating railroad fails to timely submit an accurate Inventory Form (or electronic equivalent) to the Crossing Inventory for a new or previously unreported crossing. (Previously, the civil penalty schedule indicated that violations may be assessed under these sections if the primary operating railroad fails to timely submit an accurate and complete Inventory Form or the electronic equivalent to the Crossing Inventory for a new or previously unreported crossing. However, as discussed above, primary operating railroads are only required to submit complete Inventory Forms or their electronic equivalent for public highway-rail grade crossings.) FRA is also revising the civil penalty schedule to remove the recommended civil penalty associated with § 234.409(c) because this provision has been removed. B. Amendments to Inventory Guide Instructions for Completing the U.S. DOT Crossing Inventory Form FRA is clarifying a statement made in the final rule preamble discussion of the ‘‘Crossing Type’’ data field in Part I of the Inventory Form. Specifically, in the preamble to the final rule, FRA stated that it PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 80 FR at 767. FRA intended to ask State agencies to submit voluntary updates to the ‘‘Crossing Type’’ data field only for public highway-rail and pathway crossings. Appendix B to the Inventory Guide states that primary operating railroads are required to submit updates to the ‘‘Crossing Type’’ data field for private highway-rail and pathway crossings. Appendix E to the Inventory Guide, Frequently Asked Questions (FAQs) Reporting Crossing Sales That Result in a New Primary Operating Railroad FRA is revising FAQ number 24 in Appendix E to the Inventory Guide to incorporate an FRA recommendation when railroads report crossing sales that result in a new primary operating E:\FR\FM\10JNR1.SGM 10JNR1 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations railroad. As stated in revised FAQ number 24, if the sale of a highway-rail or pathway crossing results in a new primary operating railroad, FRA strongly recommends that the new primary operating railroad submit updated crossing data to the Crossing Inventory for all of the railroad-assigned data fields on the Inventory Form (or its electronic equivalent) within six (6) months of the date of sale. III. Regulatory Impact and Notices A. Executive Order 12866 and 13563 and DOT Regulatory Policies and Procedures FRA analyzed the potential costs and benefits of the amendments to the final rule adopted in this document. FRA estimates that the amendments will not materially impact the findings of the previously published regulatory evaluation. The extension of time for compliance with changes that are being made in these final rule amendments will grant some relief to railroads. However, the twenty-year analysis is still valid. FRA evaluated both the final rule and these amendments under existing policies and procedures and determined both to be non-significant under both Executive Order 12866 and 13563 and DOT policies and procedures. See 44 FR 11034, Feb. 26, 1979. FRA previously placed in the docket a regulatory evaluation addressing the economic impact of the final rule. The primary purpose of the Crossing Inventory is to provide a uniform inventory database that can be merged with highway-rail crossing collision files and used to analyze information for planning and implementation of crossing improvement programs by public and private agencies responsible for highway-rail crossing safety, as well as the railroad industry and academia. FRA has determined these amendments to the final rule do not change FRA’s position that the anticipated benefits justify the costs. B. Regulatory Flexibility Act and Executive Order 13272 To ensure the impact of this rulemaking on small entities is properly considered, FRA developed these final rule amendments consistent with Executive Order 13272 (‘‘Proper Consideration of Small Entities in Agency Rulemaking’’) and DOT’s procedures and policies to promote compliance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.). The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. FRA certified that this final rule will not have a significant economic impact on a substantial number of small entities. Although a substantial number of small railroads will be affected by the final rule, none of these entities will be significantly impacted. The amendments to this final rule will grant some relief to small entities by granting them additional time to comply with changes that are being made in these the final rule amendments. However, the amendments to the final rule will not change the overall impact on small entities. Therefore, FRA is confident that its previous certification for the final rule is still valid. C. Federalism Executive Order 13132, ‘‘Federalism’’ (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA analyzed this amended final rule in accordance with the principles and criteria contained in Executive Order 13132. Based on this analysis, FRA concluded that this rule will not have a substantial effect on the States or their political subdivisions; it will not impose any compliance costs; and it will not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply and FRA determined that preparation of a federalism summary impact statement for this amended final rule is not required. This amended final rule could have preemptive effect by operation of law under a provision of the former Federal Railroad Safety Act of 1970 (repealed and recodified at 49 U.S.C. 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the ‘‘essentially local safety or security hazard’’ exception to sec. 20106. D. Paperwork Reduction Act The information collection requirements in this amended final rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain new information collection requirements and the estimated time to fulfill each requirement are as follows: asabaliauskas on DSK3SPTVN1PROD with RULES CFR Section Respondent universe Total annual responses Average time per response 234.403(a–c)—Submission of Data to the U.S. DOT Highway-Rail Crossing Inventory: Completion of Inventory Form. —Mass Update Lists of Designated Data Submitted by Railroads/States. —Excel Lists of Submitted Data ............... 51 States/entities & 618 railroads. 4,212 forms ............ 30 minutes .............. 2,106 hours 51 States/entities & 618 railroads. 51 States/entities & 618 railroads. 257 lists .................. 30 minutes .............. 129 hours 1,234 lists ............... 30 minutes .............. 617 hours VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 37529 E:\FR\FM\10JNR1.SGM 10JNR1 Total annual burden hours 37530 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations Respondent universe Total annual responses Average time per response —Changes/Corrections to Crossing Inventory Data Submitted via GX 32 Computer Program. —Written Requests by States/Railroads for FRA Crossing Inventory Guide. (d)—Reporting Crossing Inventory Data by State Agencies on Behalf of Railroads: Written Notices to FRA. —(e)(1)—Consolidated Reporting by Parent Corporation on Behalf of Its Subsidiary Railroads: Written Notice to FRA. —(e)(2)—Immediate Notification to FRA by Parent Corporation of Any Changes in the List of Subsidiary Railroads for Which It Reports. 51 States/entities & 618 railroads. 35,845 records ....... 6 minutes ................ 3,585 hours 51 States/entities & 618 railroads. 51 States/entities & 618 railroads. 10 requests ............ 15 minutes .............. 3 hours 20 notices ............... 30 minutes .............. 10 hours 51 States/entities & 618 railroads. 250 notices ............. 30 minutes .............. 125 hours 51 States/entities & 618 railroads. 75 notices ............... 30 minutes .............. 38 hours 234.405(a)(1)—Initial Submission of Previously Unreported Highway-Rail and Pathway Crossings through which They Operate by Primary Operating Railroads: Providing Assigned Crossing Inventory Number to Each Railroad that Operates One or More Trains Through Crossing + Assignee Inventory Numbers for Highway-Rail and Pathway Crossing Located in Rail Yard, Passenger Station, within Private Company, Port, or Dock Area. (a)(2)(i)—Completed Inventory Forms for Each Previously Unreported Crossing. (c)—Duty of All Operating Railroads: Notification to FRA of Previously Unreported Crossing through Which It Operates. (d)—State-maintained Crossing Data: Written Copy of Request for Such Data to FRA (Revised Requirement). —Copies of Written Request for Statemaintained Data to Each Operating Railroad Transiting Crossing (Revised Requirement). 51 States/entities & 618 railroads. 5,300 assigned numbers + 10,600 provided assigned numbers. 5 minutes + ............ 5 minutes ................ 1,325 hours 51 States/entities & 618 railroads. 51 States/entities & 618 railroads. 5,300 forms ............ 30 minutes .............. 2,650 hours 450 notices/Notifications. 30 minutes .............. 225 hours 51 States/entities & 618 railroads. 35 copies of written request. 2 minutes ................ 1 hour 51 States/entities & 618 railroads. 105 copies of written request. 2 minutes ................ 4 hours 234.407(a)—Submission of Initial Data to the Crossing Inventory for New Crossings: Providing Assigned Inventory Numbers for New Highway-Rail and Pathway Crossings through which They Operate by Primary Operating Railroads to Each Railroad that Operates One or More Trains Through the Crossing. (a)(2)(i)—Completed Inventory Forms for Each New Highway-Rail and Pathway Crossing. 51 States/entities & 618 railroads. 100 assigned numbers + 100 provided assigned numbers. 5 minutes + 5 minutes. 16 hours 51 States/entities & 618 railroads. 100 forms ............... 90 minutes .............. 150 hours 234.409(a)—Submission of Periodic Updates to the Crossing Inventory. (c) Duty of All Operating Railroads: Written Notification to FRA of that Up-todate and Accurate Information has Not Been Timely Submitted to the Crossing Inventory. asabaliauskas on DSK3SPTVN1PROD with RULES CFR Section 51 States/entities & 618 railroads. 51 States/entities & 618 railroads. 80,775 crossing inventory updates. 950 written notices 2.5025 minutes ....... 3,369 hours 20 minutes .............. 317 hours 234.411(a)—Crossing Sale: Submission of Crossing Inventory Form by Any Operating Railroad that Sells All or Part of Highway-Rail and Pathway Crossing. (b)—Crossing Closure: Submission of Crossing Inventory Form by Primary Operating Railroad that Closes Highway-Rail and Pathway Crossing. 51 States/entities & 618 railroads. 650 reports/updated crossing inventory form. 2 hours ................... 1,300 hours 51 States/entities & 618 railroads. 85 crossing inventory forms (closures). 5 minutes ................ 7 hours VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\10JNR1.SGM 10JNR1 Total annual burden hours Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations CFR Section Respondent universe Total annual responses Average time per response (c)—Primary Operating RR Submission of Inventory form for Any Surface/Warning Device Changes at Crossing. 51 States/entities & 618 railroads. 650 forms ............... 30 minutes .............. 325 hours 234.413(a&b)(1)—Recordkeeping: Duplicate Copy of Each Inventory Form Submitted in Hard Copy. (a&b)(2)—Railroad Copy of FRA Confirmation after Electronic Submission of Crossing Data to the Crossing Inventory. (c)—Railroad List of Establishment Locations Where Any Required Records are Kept. 51 States/entities & 618 railroads. 5,901 duplicate copies. 1 minute ................. 98 hours 51 States/entities & 618 railroads. 80,775 copies ......... 1 minute ................. 1,346 hours 51 States/entities & 618 railroads. 618 lists .................. 5 minutes ................ 52 hours Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to OMB at the following address: oira_submissions@ omb.eop.gov. OMB is required to make a decision concerning the collection of information requirements contained in this amended final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action on the effective date of this amended final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register. E. Environmental Impact asabaliauskas on DSK3SPTVN1PROD with RULES 37531 FRA has evaluated this rule under its ‘‘Procedures for Considering Environmental Impacts’’ (FRA’s Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this amended final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review under VerDate Sep<11>2014 18:25 Jun 09, 2016 Jkt 238001 section 4(c)(20) of FRA’s Procedures. See 64 FR 28547, May 26, 1999. Under section 4(c) and (e) of FRA’s Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this amended final rule is not a major Federal action significantly affecting the quality of the human environment. F. Unfunded Mandates Reform Act of 1995 Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency ‘‘shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).’’ Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This amended final rule will not result in the expenditure, in the aggregate, of $155,000,000 or more (as adjusted annually for inflation) in any one year, and thus preparation of such a statement is not required. PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 Total annual burden hours G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 66 FR 28355, May 22, 2001. Under the Executive Order, a ‘‘significant energy action’’ is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA evaluated this amended final rule consistent with Executive Order 13211. FRA determined that this amended final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA determined that this regulatory action is not a ‘‘significant energy action’’ within the meaning of Executive Order 13211. H. Trade Impact The Trade Agreements Act of 1979 (TAA) (Pub. L. 96–39, 19 U.S.C. 2501 et seq.) prohibits Federal agencies from engaging in any standards setting or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. FRA assessed the potential effect of this amended final rule on foreign commerce and believes that its requirements are consistent with E:\FR\FM\10JNR1.SGM 10JNR1 37532 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations the TAA. The requirements imposed are safety standards which, as noted, are not considered unnecessary obstacles to trade. I. Privacy Act Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See http:// www.regulations.gov/#!privacyNotice for the privacy notice of regulations.gov or interested parties may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL– 14 FDMS), which can be reviewed at www.dot.gov/privacy. List of Subjects in 49 CFR Part 234 Highway safety, Penalties, Railroad safety, Reporting and recordkeeping requirements, State and local governments. For the reasons discussed in the preamble, FRA amends part 234 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows: PART 234—[AMENDED] 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. Section 234.401 is amended by adding definitions of ‘‘General railroad system of transportation’’ and ‘‘General system railroad’’ in alphabetical order and revising the definition of ‘‘Primary operating railroad’’ to read as follows: ■ § 234.401 Definitions. asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * General railroad system of transportation means 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. General system railroad means a railroad that operates on track which is part of the general railroad system of transportation. * * * * * VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 Primary operating railroad means the operating railroad that either owns or maintains the track through the highway-rail or pathway crossing, unless the crossing is located within a private company, port, or dock area. If more than one operating railroad either owns or maintains the track through the highway-rail or pathway crossing, or if no operating railroad owns or maintains the track through the highway-rail or pathway crossing, then the operating railroad that operates the highest number of trains through the crossing is the primary operating railroad. In the event that there is only one operating railroad that operates one or more trains through a highway-rail or pathway crossing, that operating railroad is the primary operating railroad. For highway-rail and pathway crossings that are located within a private company, port, or dock area (‘‘private area’’), each railroad that owns track leading to the private company, port, or dock area will be considered a primary operating railroad for all crossings within the private area if a general system railroad operates over the railroad’s track leading to the private area and through at least one crossing within that area. * * * * * ■ 3. Revise § 234.403(e) to read as follows: § 234.403 Submission of data to the Crossing Inventory, generally. * * * * * (e) Reporting by the parent corporation on behalf of subsidiary railroads. (1) To satisfy the reporting requirements of this section, a parent corporation may submit crossing data to the Crossing Inventory on behalf of one or more of its subsidiary railroads. The parent corporation shall provide written notice to the FRA Associate Administrator that it has assumed reporting and updating responsibility for all of the subsidiary railroad’s highway-rail and pathway crossings. The written notification shall include the following: (i) A list of all subsidiary railroads for which the parent corporation will submit and update highway-rail and pathway crossing data; (ii) A statement signed by an official of the parent corporation affirming that the parent corporation agrees to submit and update all of the highway-rail and pathway crossing data for the named subsidiary railroad(s); and (iii) A statement that the parent corporation agrees to be subject to enforcement action for noncompliance with the reporting or updating requirements of this subpart. PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 (2) The parent corporation shall provide immediate written notification to the FRA Associate Administrator of any change in the list of subsidiary operating railroads for which it has assumed reporting and updating responsibility. (3) The parent corporation shall submit the data required by paragraph (a) of this section to the Crossing Inventory electronically. ■ 4. In § 234.405, revise paragraphs (a)(1) and (3), (b), and (d) to read as follows: § 234.405 Submission of initial data to the Crossing Inventory for previously unreported crossings. (a) Duty of primary operating railroad. (1)(i) With the exception of highway-rail and pathway crossings located in a railroad yard, passenger station, or within a private company, port, or dock area, each primary operating railroad shall assign an Inventory Number to each previously unreported highwayrail and pathway crossing through which it operates. (ii) A primary operating railroad shall assign one or more Inventory Numbers to previously unreported highway-rail and pathway crossings through which it operates, which are located in a railroad yard, passenger station, or within a private company, port, or dock area. * * * * * (3) Each primary operating railroad shall submit accurate Inventory Forms, or their electronic equivalent, to the Crossing Inventory for the previously unreported highway-rail and pathway crossings through which it operates, no later than August 9, 2016. The Inventory Form, or its electronic equivalent, shall reference the assigned Inventory Number for the crossing(s) and shall be completed and submitted consistent with § 234.403 and the Inventory Guide. (b) Duty of operating railroad when operating railroads operate on separate tracks. For each previously unreported highway-rail and pathway crossing where operating railroads operate trains on separate tracks through the crossing, each operating railroad (other than the primary operating railroad) shall submit accurate crossing data specified in the Inventory Guide to the Crossing Inventory no later than August 9, 2016. The Inventory Form, or its electronic equivalent, which contains this crossing data shall reference the Inventory Number assigned to the crossing by the primary operating railroad and shall be completed and submitted in accordance with § 234.403. * * * * * (d) State-maintained crossing data. If a primary operating railroad requests E:\FR\FM\10JNR1.SGM 10JNR1 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations State-maintained crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data, the primary operating railroad may send a copy of its written request for State-maintained crossing data to the FRA Associate Administrator and to each operating railroad that operates through the crossing. FRA will consider the written request to be an affirmative defense to potential liability for failure to timely submit an accurate Inventory Form, or its electronic equivalent, as required by paragraph (a)(3) of this section if the primary operating railroad: (1) Provides a copy of its written request for State-maintained crossing data to the FRA Associate Administrator and to each operating railroad that operates through the crossing; and (2) Submits the requested Statemaintained crossing data to the Crossing Inventory within 60 days of receipt. ■ 5. In § 234.407, revise paragraphs (a)(3), (b) and (d) to read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES § 234.407 Submission of initial data to the Crossing Inventory for new crossings. (a) * * * (3) Each primary operating railroad shall submit accurate Inventory Forms, or their electronic equivalent, to the Crossing Inventory for new highway-rail and pathway crossings through which it operates, no later than six (6) months after the crossing becomes operational. The Inventory Form, or its electronic equivalent, shall reference the assigned Inventory Number for the crossing(s) and shall be completed and submitted in accordance with § 234.403. (b) Duty of Operating Railroad when operating railroads operate on separate tracks. For each new highway-rail and pathway crossing where operating railroads operate trains on separate tracks through the crossing, each operating railroad shall submit accurate crossing data specified in the Inventory Guide to the Crossing Inventory no later than six (6) months after the crossing becomes operational. The Inventory Form, or its electronic equivalent, which contains this crossing data shall reference the Inventory Number assigned to the crossing by the primary operating railroad and shall be completed and submitted consistent with § 234.403 and the Inventory Guide. * * * * * (d) State-maintained crossing data. If a primary operating railroad requests State-maintained crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data, the primary operating railroad may send a copy of its written request for State-maintained crossing VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 data to the FRA Associate Administrator and to each operating railroad that operates through the crossing. FRA will consider the written request to be an affirmative defense to potential liability for failure to timely submit an accurate Inventory Form, or its electronic equivalent, as required by paragraph (a)(3) of this section if the primary operating railroad: (1) Provides a copy of its written request for State-maintained crossing data to the FRA Associate Administrator and to each operating railroad that operates through the crossing no later than six (6) months after the crossing becomes operational; and (2) Submits the requested Statemaintained crossing data to the Crossing Inventory within 60 days of receipt. ■ 6. Revise § 234.409 to read as follows: § 234.409 Submission of periodic updates to the Crossing Inventory. (a) Duty of primary operating railroad. Each primary operating railroad shall submit up-to-date and accurate crossing data to the Crossing Inventory for each highway-rail and pathway crossing (except for a grade-separated or closed highway-rail or pathway crossing) through which it operates, consistent with the Inventory Guide. Updated crossing data shall be submitted to the Crossing Inventory at least every three (3) years from the date of the most recent submission of data by the primary operating railroad (or on behalf of the primary operating railroad) for the crossing or August 9, 2016, whichever occurs later. For hard-copy submissions to Crossing Inventory, this three-year period shall be measured from mailing date of the most recent submission of data by the primary operating railroad (or on behalf of the primary operating railroad). (b) Duty of operating railroad when operating railroads operate on separate tracks. For each highway-rail and pathway crossing where operating railroads operate trains on separate tracks through the crossing, each operating railroad shall submit up-todate and accurate crossing data for certain specified data fields on the Inventory Form, or its electronic equivalent, to the Crossing Inventory at least every three (3) years from the date of the most recent submission of data by that operating railroad (or on behalf of that operating railroad) for the crossing or August 9, 2016, whichever occurs later. For hard-copy submissions to Crossing Inventory, this three-year period shall be measured from mailing date of the most recent submission of data by the operating railroad (or on behalf of the operating railroad). The PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 37533 Inventory Form, or its electronic equivalent, shall be completed and submitted consistent with § 234.403 and the Inventory Guide. ■ 7. Revise § 234.411 to read as follows: § 234.411 Changes requiring submission of updated information to the Crossing Inventory. (a) Crossing sale. (1) If a railroad that is not a primary operating railroad sells all or part of a highway-rail or pathway crossing on or after June 10, 2016, it shall report the crossing sale to the primary operating railroad within three (3) months of the date of sale. (2) If the primary operating railroad: (i) Sells all or part of a highway-rail or pathway crossing on or after June 10, 2016 for which it has reporting and updating responsibility under this subpart; or (ii) Is notified of the sale of all or part of a highway-rail or pathway crossing on or after June 10, 2016 under paragraph (a)(1) of this section, then the primary operating railroad shall submit an Inventory Form, or its electronic equivalent, which reflects the crossing sale to the Crossing Inventory consistent with § 234.403 and the Inventory Guide within three (3) months of the date of sale or three months of notification, respectively. (b) Crossing closure. The primary operating railroad shall report the closure of any highway-rail or pathway crossing that occurs on or after June 10, 2016 to the Crossing Inventory within three (3) months of the date on which the crossing is closed. The primary operating railroad shall submit an Inventory Form, or its electronic equivalent, that reflects closure of the crossing to the Crossing Inventory consistent with § 234.403 and the Inventory Guide. (c) Changes in crossing characteristics. (1) The primary operating railroad shall report any change in crossing surface or change in warning device at a public highway-rail grade crossing that occurs on or after June 10, 2016 to the Crossing Inventory within three (3) months of the date of the change. The primary operating railroad shall submit an Inventory Form, or its electronic equivalent, that reflects up-to-date and accurate crossing data for the crossing (including the change in crossing surface or change in warning device) to the Crossing Inventory consistent with § 234.403 and the Inventory Guide. (2) For purposes of this subpart, a ‘‘change in warning device’’ means the addition or removal of a crossbuck, yield or stop sign, flashing lights, or gates at a public highway-rail grade E:\FR\FM\10JNR1.SGM 10JNR1 37534 Federal Register / Vol. 81, No. 112 / Friday, June 10, 2016 / Rules and Regulations crossing. The installation of a crossbuck, yield or stop sign, flashing lights, or gates that will be in place for less than six months does not constitute a ‘‘change in warning device’’ for purposes of this subpart. 8. The heading of § 234.413 is revised to read as follows: ■ § 234.413 * * Recordkeeping. * * * 9. In Appendix A to Part 234, place the entry for subpart F in alphabetical order, and revise the entries under subpart F to read as follows: ■ APPENDIX A TO PART 234—SCHEDULE OF CIVIL PENALTIES 1 Section * * Violation * * * * Willful violation * Subpart F—Highway-Rail and Pathway Crossing Inventory Reporting § 234.403 Submission of data to the Crossing Inventory: (b) Failure to complete Inventory Form (or electronic equivalent) in accordance with the Inventory Guide ... (c) Class I railroad failure to submit crossing data to the Crossing Inventory electronically ........................... § 234.405 Submission of initial data to the Crossing Inventory for previously unreported crossings (a) Primary operating railroad failure to timely submit an accurate Inventory Form (or electronic equivalent) to the Crossing Inventory for previously unreported crossing ...................................................................... (b) Operating railroad failure to timely submit accurate partial crossing data to the Crossing Inventory for previously unreported crossing ..................................................................................................................... (c) Operating railroad failure to provide written notification to FRA that the primary operating railroad failed to timely report previously unreported crossing ............................................................................................ § 234.407 Submission of initial data to the Crossing Inventory for new crossings: (a) Primary operating railroad failure to timely submit an accurate Inventory Form (or electronic equivalent) to the Crossing Inventory for new crossing .................................................................................................. (b) Operating railroad failure to timely submit accurate partial crossing data to the Crossing Inventory for new crossing ................................................................................................................................................. (c) Operating railroad failure to provide written notification to FRA that the primary operating railroad failed to timely report new crossing ........................................................................................................................ § 234.409 Submission of periodic updates to the Crossing Inventory: (a) Primary operating railroad failure to timely submit up-to-date and accurate crossing data to the Crossing Inventory for highway-rail or pathway crossing ...................................................................................... (b) Operating railroad failure to timely submit up-to-date and accurate partial crossing data to the Crossing Inventory for highway-rail or pathway crossing ............................................................................................ § 234.411 Changes requiring submission of updated information to the Crossing Inventory: (a) Failure to timely report crossing sale to the Crossing Inventory ................................................................ (b) Primary operating railroad failure to timely report crossing closure to the Crossing Inventory ................. (c) Primary operating railroad failure to timely submit up-to-date and accurate crossing data to the Crossing Inventory after change in crossing characteristics ................................................................................. § 234.413 Recordkeeping ...................................................................................................................................... § 234.415 Electronic Recordkeeping ....................................................................................................................... $1,000 1,000 $2,000 2,000 2,500 5,000 2,500 5,000 1,000 2,000 2,500 5,000 2,500 5,000 1,000 2,000 2,500 5,000 2,500 5,000 2,500 2,500 5,000 5,000 2,500 1,000 1,000 5,000 2,000 2,000 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. Issued in Washington, DC, on May 20, 2016, under the authority set forth in 49 CFR 1.89(b). Sarah E. Feinberg, Administrator. [FR Doc. 2016–13516 Filed 6–9–16; 8:45 am] DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150629562–6447–02] BILLING CODE 4910–06–P RIN 0648–BF25 asabaliauskas on DSK3SPTVN1PROD with RULES Fisheries of the Exclusive Economic Zone Off Alaska; Bycatch Management in the Bering Sea Pollock Fishery National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS issues this final rule to implement Amendment 110 to the SUMMARY: VerDate Sep<11>2014 16:32 Jun 09, 2016 Jkt 238001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP). Amendment 110 and this final rule improve the management of Chinook and chum salmon bycatch in the Bering Sea pollock fishery by creating a comprehensive salmon bycatch avoidance program. This action is necessary to minimize Chinook and chum salmon bycatch in the Bering Sea pollock fishery to the extent practicable while maintaining the potential for the full harvest of the pollock total allowable catch (TAC) within specified prohibited species catch (PSC) limits. Amendment 110 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery E:\FR\FM\10JNR1.SGM 10JNR1

Agencies

[Federal Register Volume 81, Number 112 (Friday, June 10, 2016)]
[Rules and Regulations]
[Pages 37521-37534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13516]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2011-0007, Notice No. 6]
RIN 2130-AC55


National Highway-Rail Crossing Inventory Reporting Requirements

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

ACTION: Final rule; response to petition for reconsideration.

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SUMMARY: This document responds to a petition for reconsideration of 
FRA's January 6, 2015, final rule addressing U.S. DOT National Highway-
Rail Crossing Inventory (Crossing Inventory or Inventory) Reporting 
Requirements. This document amends and clarifies the final rule in 
response to the petition for reconsideration and makes certain 
additional amendments to the rule to address practical implementation 
problems that arose after publication of the final rule.

DATES: The amendments in this final rule are effective June 10, 2016.

FOR FURTHER INFORMATION CONTACT: Ronald Ries, Staff Director, Highway-
Rail Crossing and Trespasser Prevention Programs Division, Office of 
Railroad Safety, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, 
Washington, DC 20590 (telephone: 202-493-6299), ronald.ries@dot.gov; or 
Kathryn Shelton Gresham, Office of Chief Counsel, FRA, 1200 New Jersey 
Avenue SE., Mail Stop 13, Washington, DC 20590 (telephone: 202-493-
6063), kathryn.gresham@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 18, 2012, FRA published a notice of proposed rulemaking 
(NPRM) as a first step towards the agency's promulgation of Crossing 
Inventory regulations per the Congressional mandate contained in 
Section 204(a) of the Rail Safety Improvement Act of 2008 (RSIA)

[[Page 37522]]

(codified at 49 U.S.C. 20160). See 77 FR 64077. After careful 
consideration of comments received in response to the NPRM and 
testimony received at a February 19, 2013, public hearing, FRA 
published a final rule on January 6, 2015, requiring railroads that 
operate one or more trains through highway-rail or pathway crossings to 
submit initial reports to the Crossing Inventory, including current 
information about warning devices and signs for previously unreported 
and new highway-rail and pathway crossings through which they operate. 
The final rule also requires railroads to periodically update the data 
in the Crossing Inventory, including the prompt reporting of a crossing 
sale, crossing closure, or changes in certain crossing characteristics. 
See 80 FR 746.
    The Association of American Railroads (AAR) filed a petition for 
reconsideration (Petition) of the final rule. In its Petition, AAR asks 
FRA: (1) For additional time to comply with the final rule; (2) to 
reconsider the rule's requirement that railroads, in certain instances, 
submit data to the Crossing Inventory that State agencies have 
historically submitted voluntarily. Specifically, AAR asks FRA to amend 
49 CFR 234.405 and 234.407 to address that issue and issues associated 
with the assignment of inventory numbers to certain crossings located 
in private companies', ports', and docks' areas; (3) to amend those 
same sections, and Sec.  234.409, to remove the requirement that 
railroads operating trains through highway-rail or pathway crossings, 
that are not the ``primary operating railroad'' for those crossings, 
ensure information the relevant primary operating railroad provides to 
the Crossing Inventory is submitted and updated; and (4) to revise the 
Inventory Guide \1\ to disallow states from reporting crossing closures 
to the Crossing Inventory.
---------------------------------------------------------------------------

    \1\ Federal Railroad Administration, Office of Railroad Safety, 
``Guide for Preparing U.S. DOT Crossing Inventory Forms'' (initially 
published January 6, 2015).
---------------------------------------------------------------------------

    The specific issues AAR raised, and FRA's responses to those 
issues, are discussed in detail in the ``Section-by-Section Analysis'' 
below. The Section-by-Section Analysis also contains a discussion of 
each provision of the final rule which FRA is amending or clarifying in 
response to practical implementation issues it has discovered since it 
promulgated the final rule. These amendments also allow greater 
flexibility in complying with the rule. These amendments are within the 
scope of the issues and options discussed, considered, or raised in the 
NPRM.

II. Section-by-Section Analysis

A. Amendments to 49 CFR Part 234

Section 234.401 Definitions
    FRA is adding definitions of ``general railroad system of 
transportation'' and ``general system railroad'' to this section 
because these terms are used in the revised definition of ``primary 
operating railroad'', which is discussed below. For purposes of this 
subpart, FRA is defining a general railroad system of transportation 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. Consistent with the definition 
of ``general railroad system of transportation'', FRA is defining 
general system railroad as a railroad that operates on track, which is 
part of the general railroad system of transportation. Thus, a general 
system railroad is not a plant railroad, as defined in Sec.  234.5 of 
this part.
    As applied to highway-rail and pathway crossings located within 
private companies', ports', or docks' areas, the final rule defines 
``primary operating railroad'' as ``each railroad that owns track 
leading to the private company, port, or dock area.'' After FRA issued 
the final rule, at least one regulated entity expressed concern about a 
private company where a railroad owns track leading into the private 
company, but does not actually operate on track within the company. 
Because the railroad does not operate over any crossings within the 
company's area, the railroad stated it does not have ready access to 
the information the rule requires it to report to the Crossing 
Inventory for crossings within the private company.
    FRA did not intend to require railroads merely owning track leading 
to a private company, port, or dock area, where the only railroad that 
operates through crossings within the area is a plant railroad, as 
defined in Sec.  234.5, to report to the Crossing Inventory information 
on the crossings within the private area. Accordingly, FRA is revising 
the definition of ``primary operating railroad'' to clarify that mere 
ownership of track leading to a private company, port, or dock area 
does not make a railroad a primary operating railroad for crossings 
within that area, if no general system railroad operates over that 
track and through at least one crossing within the private area.
    If a general system railroad operates over track leading to a 
private area and through at least one highway-rail or pathway crossing 
within the private area, the railroad that owns the track leading to 
the area and over which the general system railroad operates, is 
responsible for reporting to the Crossing Inventory information on all 
the crossings within the private area. The railroad owning the track 
leading to the private area should be able to obtain access to the 
information required to be submitted to the Crossing Inventory (e.g., 
number and speed of train movements through the crossings within the 
area) through the railroad operating over the track it owns.
    For example, if one general system railroad (Railroad A) owns a 
track leading to a private company, port, or dock area and operates 
over that track and through at least one crossing within the private 
area, that Railroad (Railroad A) is the primary operating railroad for 
all crossings within the private area. Similarly, if Railroad A owns 
track leading to a private company, port, or dock area, but does not 
operate over that track or any crossings within the private area but 
instead allows another general system railroad (Railroad B) to operate 
over its track leading to the private area and Railroad B also operates 
through at least one crossing within the private area, Railroad A (the 
railroad that owns the track leading to the private area) is considered 
the primary operating railroad for all of the crossings within the 
private area--even though it does not actually operate over the track.
    On the other hand, if two general system railroads (e.g., Railroad 
C and Railroad D) own separate tracks leading to a private company, 
port, or dock area, and Railroad C operates over its own track leading 
to the private area and through at least one crossing within that area 
(and Railroad D does not operate over its track leading to the private 
area or through any crossings within the area), Railroad C (the general 
system railroad that owns and operates over its track leading to the 
private area and through at least one crossing within that area) is 
considered the primary operating railroad for all of the crossings 
within that area.
    Likewise, if Railroads C and D each own track leading to a private 
company, port, or dock area, and Railroad E (another general system 
railroad) operates over one of their tracks leading to the private area 
and through at least one crossing within the area, the owner of the 
track leading to the area over which Railroad E operates is the primary 
operating railroad for all crossings within the private area. If both 
Railroads C and D own track leading to a private company, port, or dock 
area, and they each operate over their owned track into the area and 
through at least

[[Page 37523]]

one crossing within the area, they both will be considered primary 
operating railroads for all crossings within the private area.
    Finally, if in any scenario a general system railroad (or more than 
one railroad) owns track leading to a private company, port, or dock 
area, but neither that railroad nor any other general system railroad 
operates over that track and through at least one crossing within the 
area, then the crossings in the private area do not need to be reported 
to the Crossing Inventory. For example, if a general system railroad 
owns track leading up to the entrance of a private area and operates 
over that track (or allows another general system railroad to operate 
over that track), but does not operate over any crossing within the 
area, that railroad is not considered a primary operating railroad for 
purposes of the crossings within the private area.
Section 234.403 Submission of Data to the Crossing Inventory, Generally
    Section 234.403 of the final rule contains the general requirements 
for submission of information to the Crossing Inventory. Paragraph (e) 
of that section of the final rule allows a parent corporation to submit 
crossing data to the Crossing Inventory on behalf of one or more of its 
subsidiaries, if the parent corporation and subsidiary railroad(s): (1) 
Provide written notice (signed by the chief executive officer of the 
parent corporation) to FRA that the parent corporation is assuming the 
reporting and updating responsibility; and (2) operate as a ``single, 
seamless, integrated'' railroad system. Since publication of the final 
rule, numerous railroads that voluntarily submitted crossing data in 
the past on behalf of their subsidiaries notified FRA they would like 
to continue to do so. However, because they do not operate as a 
``single, seamless, integrated'' railroad system they cannot report on 
behalf of their subsidiaries under the final rule. Railroads also 
questioned the need for the chief executive officer, as opposed to any 
railroad official, to sign the written notice the parent corporation 
submits. After considering these concerns, which could inadvertently 
prevent parent corporations from reporting crossing data on behalf of 
their subsidiaries, FRA is amending Sec.  234.403(e) by removing the 
requirement that parent corporations and their subsidiary railroads 
operate as a ``single, seamless, integrated'' railroad system. As a 
result, all railroad parent corporations can now report on behalf of 
their subsidiaries under paragraph (e).
    This final rule also simplifies the notification process a parent 
corporation must follow if it wants to submit Crossing Inventory data 
on behalf of one or more of its subsidiary railroads. At least one 
regulated entity raised concerns about current paragraph (e)(1) of this 
section of the final rule that requires the chief executive officer of 
the parent corporation to sign the required notice to FRA that the 
parent corporation is assuming reporting and updating responsibility 
for its subsidiaries. In response to those concerns, FRA is amending 
paragraph (e)(1) to allow any appropriate management official with 
authority to bind the company to sign the notice. This notice must 
include a statement that the parent corporation is agreeing to (1) 
submit and update crossing data for the named subsidiaries and the 
parent corporation, and (2) be subject to enforcement action for 
noncompliance with the final rule. FRA is also amending paragraph 
(e)(1) to require only the parent corporation, instead of the parent 
corporation and the named subsidiary, to submit the required written 
notice to FRA.
Section 234.405 Submission of Initial Data to the Crossing Inventory 
for Previously Unreported Crossings

Assignment of Inventory Numbers to Previously Unreported Crossings 
Located in a Private Company, Port, or Dock Area

    Current paragraph (a)(1)(ii) of Sec.  234.405 requires each primary 
operating railroad that operates through at least one previously 
unreported crossing within a private company, port, or dock area to 
assign one or more Inventory Numbers to those crossings. AAR asserts 
that (1) this requirement is contrary to current practice that allows a 
single Inventory Number to be assigned to all crossings in these areas, 
and (2) this new requirement could create reporting confusion if an 
accident were to occur at a crossing within a private company, port, or 
dock area. AAR requests that FRA amend this requirement to allow 
multiple primary operating railroads to share an assigned Inventory 
Number for one or more previously unreported highway-rail and pathway 
crossings located within a private company, port, or dock area.
    After careful consideration, FRA is not adopting AAR's request to 
modify the language of Sec.  234.405(a)(1)(ii) for two reasons. First, 
for purposes of enforcement of this rule's reporting requirements, if 
the railroads share a single Inventory Number, FRA will not know which 
railroad is responsible for misreporting or failure to report. Second, 
if a reportable accident/incident occurs at a previously unreported 
highway-rail or pathway crossing located within a private company, 
port, or dock area, it benefits both FRA and the railroads involved for 
the railroad responsible for reporting the accident/incident under 49 
CFR part 225 to have its own unique Inventory Number it can use in the 
accident/incident report it files with FRA.\2\
---------------------------------------------------------------------------

    \2\ FRA is aware that some primary operating railroads already 
share a single Inventory Number for highway-rail and pathway 
crossings located within a private company, port, or dock area that 
have already been reported to the Crossing Inventory. See discussion 
of Sec.  234.409 below for how to submit periodic updates in such 
situations.
---------------------------------------------------------------------------

    FRA disagrees with AAR's argument that assigning multiple Inventory 
Numbers to the same highway-rail or pathway crossing could create 
reporting confusion. It is possible that a railroad that operates over 
its own track into a private company, port, or dock area may not know 
if another railroad with its own track leading into the area assigned 
an Inventory Number to the crossings within the area. By requiring each 
railroad to assign its own Inventory Number to the crossings within a 
private company, port, or dock area, a railroad involved in a crossing 
collision inside the area will not have to rely on another railroad to 
provide the Inventory Number so it can report the accident as required 
under part 225.
    FRA also disagrees with AAR's assertion that requiring each primary 
operating railroad to assign one or more Inventory Numbers to crossings 
located within a private company, port, or dock area could result in 
multiple railroads having multiple signs at each vehicular entrance 
that provide multiple Inventory Numbers and emergency notification 
information for the same crossings. However, FRA regulations do not 
require railroads to post emergency notification signs (ENS signs) at 
crossings located within a private company. As for port and dock areas, 
subpart E of 49 CFR part 234 (subpart E) requires railroads to post at 
least one ENS sign only at each vehicular entrance if any highway-rail 
and/or pathway crossings are located within that area (and provided the 
port or dock area does not meet the definition of ``plant railroad'' in 
Sec.  234.5.) See 49 CFR 234.311(a)(2)(ii). Subpart E does not require 
railroads to post signs at each crossing within such an area. The track 
owner or lessee that maintains the highway-rail or pathway grade 
crossing (the ``maintaining railroad'' under 49 CFR 234.301) is 
responsible for the placement and maintenance of ENS

[[Page 37524]]

signs at each vehicular entrance. See 49 CFR 234.311(a)(2)(ii). Under 
subpart E, if the primary dispatching railroad under 49 CFR 234.306 and 
the maintaining railroad are not the same entity, the primary 
dispatching railroad must provide the emergency telephone number to 
display on the ENS sign to the maintaining railroad. See 49 CFR 
234.309(a).
    If there is more than one primary operating railroad that operates 
through highway-rail or pathway crossings in a port or dock area, 
subpart E does not require multiple signs at each vehicular entrance 
with multiple Inventory Numbers and emergency notification information 
for the crossings. Instead, under subpart E, the maintaining railroad 
(not the primary operating railroad under this final rule) is 
responsible for posting ENS signs that display the emergency telephone 
number and the Inventory Number assigned to the crossings in the port 
or dock area by the primary dispatching railroad.

Submission of Completed Inventory Forms for Previously Unreported 
Highway-Rail and Pathway Crossings

    Paragraph (a)(3) of Sec.  234.405 of the final rule requires 
primary operating railroads to submit to the Crossing Inventory 
``accurate and complete [U.S. DOT Crossing] Inventory Forms, or their 
electronic equivalent,'' for previously unreported highway-rail and 
pathway crossings through which the railroads operate. AAR requests 
that FRA amend this provision (and the corresponding provision in Sec.  
234.407(a)(3) addressing new highway-rail and pathway crossings) by 
removing the requirement that primary operating railroads submit 
``completed'' U.S. DOT Crossing Inventory Forms (Inventory Forms) for 
such crossings.
    AAR also objects to the voluntary process in paragraph 234.405(d) 
(and the corresponding provision in Sec.  234.407(d) (addressing new 
highway-rail and pathway crossings). Section 234.405(d) provides that 
if a railroad requests data necessary to complete an Inventory Form 
from a State agency, but does not timely receive that information from 
the State agency, the railroad may notify FRA in writing of the State's 
non-responsiveness. AAR asserts that railroads should not be held 
responsible for supplying state-controlled information not maintained 
by the railroads. AAR urges FRA to revise this requirement to limit 
primary operating railroads' reporting responsibilities to crossing 
data within their control.
    FRA acknowledges that State agencies generally maintain the 
crossing data in Parts III, IV, and V of the Inventory Form. However, 
the RSIA, as amended by sec. 11316(g) of the Fixing America's Surface 
Transportation Act (FAST Act), specifically requires railroads to 
report ``[n]ot later than 1 year after the date of enactment of the 
RSIA or 6 months after a new crossing becomes operational, whichever 
occurs later . . . current information, including information about 
warning devices and signage, as specified by the Secretary, concerning 
each previously unreported crossing through which it operates with 
respect to the trackage over which it operates.'' 49 U.S.C. 20160. 
Crossing data about warning devices and signage is primarily in Part 
III of the Inventory Form, under the heading ``Highway or Pathway 
Traffic Control Device Information.'' Thus, in addition to the crossing 
data in Parts I and II of the Inventory Form, which railroads have 
historically collected and maintained in the Crossing Inventory, the 
RSIA specifically requires railroad carriers to submit additional 
crossing data ``about warning devices and signage'' for previously 
unreported and new crossings.
    The RSIA also contains language granting the Secretary of 
Transportation (and by delegation, FRA) the authority to exercise 
discretion in determining the scope of the crossing data railroads must 
submit to the Crossing Inventory. In the final rule, FRA determined 
that submission of complete Inventory Forms for previously unreported 
and new public highway-rail grade crossings is needed to increase the 
accuracy and utility of the Crossing Inventory. FRA continues to 
maintain that position. Railroads generally work closely with the State 
agency responsible for grade crossing safety before any new public 
highway-rail grade crossings become operational. Therefore, any burden 
associated with obtaining State-maintained crossing data for new public 
highway-rail grade crossings should be minimal.
    Nevertheless, to clarify this requirement, FRA is revising Sec.  
234.405(a)(3) (and the corresponding provision in Sec.  234.407(a)(3) 
on new highway-rail and pathway crossings) to require primary operating 
railroads to submit ``accurate Inventory Forms, or their electronic 
equivalent,'' (as opposed to ``accurate and complete'' Inventory Forms) 
to the Crossing Inventory for previously unreported highway-rail and 
pathway crossings through which they operate. Primary operating 
railroads must fill out these accurate Inventory Forms as the Inventory 
Guide requires. In other words, primary operating railroads are only 
required to complete the entire Inventory Form for new and previously 
unreported public highway-rail grade crossings. The Inventory Guide 
only requires primary operating railroads to complete Parts I and II of 
the Inventory Form for new and previously unreported pathway grade 
crossings and new and previously unreported private highway-rail grade 
crossings.

State-Maintained Crossing Data

    Since the final rule requires primary operating railroads to 
complete Inventory Forms (or their electronic equivalent) for new and 
previously unreported public highway-rail grade crossings, those 
railroads may need to obtain crossing data from the State agency 
responsible for maintaining highway-rail and pathway crossing data to 
complete the Inventory Form (or its electronic equivalent). Current 
Sec.  234.405(d) of the final rule explains how a primary operating 
railroad that requests State-maintained crossing data from the 
appropriate State agency responsible for maintaining the data, but does 
not timely receive the requested data, may notify FRA in writing that 
the railroad requested the required data, but did not receive the data. 
Under the final rule, if a railroad properly submits such notification, 
FRA would not hold the primary operating railroad responsible for 
failing to complete and submit accurate Inventory Forms (or their 
electronic equivalent) for previously unreported public highway-rail 
grade crossings.
    In its Petition, AAR asserts that ``FRA has taken a relatively 
straightforward process, whereby primary operating railroads could 
provide the data which they possess and state agencies could provide 
the remaining highway traffic and other non-railroad data, and has made 
it burdensome and complex.'' Noting that a primary operating railroad 
may operate in dozens of states, AAR further asserts that contacting 
each relevant State agency, tracking the responses of those agencies, 
and creating a certification process would be an unmerited burden on 
the industry.
    As noted previously, FRA continues to maintain its position that 
submission of complete Inventory Forms for previously unreported and 
new public highway-rail grade crossings is needed to increase the 
accuracy and utility of the Crossing Inventory. To achieve this goal, 
FRA is requiring primary operating railroads to provide the crossing 
data they possess and to request any additional required crossing data 
from the State agency responsible for maintaining that data. FRA 
anticipates that State agencies will generally

[[Page 37525]]

respond promptly to railroad requests for State-maintained crossing 
data. However, primary operating railroads may submit copies of their 
written requests for State-maintained crossing data to FRA and to each 
operating railroad that operates through the crossing. This is not 
mandatory, but, if FRA audits the Crossing Inventory, FRA would know 
the primary operating railroad made an effort to obtain State data for 
one or more previously unreported public highway-rail grade crossings.
    After considering AAR's request, FRA is simplifying the written 
notification process in Sec.  234.405(d). Instead of providing written 
notice to FRA certifying that State-maintained crossing data was 
requested at least 60 days earlier and has not yet been received, a 
primary operating railroad can send a copy of its written request for 
State-maintained crossing data to FRA and to each operating railroad 
that operates through the crossing. As long as the primary operating 
railroad submits the State-maintained crossing data within 60 days of 
receipt, FRA will consider the written request for State-maintained 
crossing data to be an affirmative defense to potential liability for 
failure to timely submit an Inventory Form (or its electronic 
equivalent) to the Crossing Inventory for a previously unreported 
public highway-rail grade crossing.

Deadline for the Submission of Crossing Data for Previously Unreported 
Highway-Rail and Pathway Crossings

    Paragraphs (a)(3) and (b) of Sec.  234.405 of the final rule 
provide a deadline of March 7, 2016, for operating railroads and 
primary operating railroads to submit the required Inventory Forms, or 
their electronic equivalent, for previously unreported highway-rail and 
pathway crossings. AAR requests that FRA extend the deadline to three 
years from the final rule's effective date (i.e., until March 9, 2018). 
AAR asserts this additional time will allow railroads to hire and train 
additional staff to physically locate and inspect tens of thousands of 
previously unreported private crossings. AAR also asserts that 
railroads need this additional time to add newly acquired information 
to the Crossing Inventory and to modify their IT systems to meet the 
new requirements.
    After careful consideration, FRA is not adopting AAR's request to 
extend the reporting deadline for new and previously unreported 
highway-rail and pathway crossings to three years from the final rule's 
effective date. However, FRA acknowledges that railroads may need 
additional time to incorporate the changes that FRA is making in this 
amendment to the final rule as a result of AAR's Petition. Therefore, 
FRA is revising Sec.  234.405(a)(3) to extend the deadline for primary 
operating railroads to submit crossing data to the Crossing Inventory 
for previously unreported highway-rail and pathway crossings to August 
9, 2016. Consistent with this extension of time, FRA is also extending 
the deadline for operating railroads that operate on separate tracks to 
submit crossing data to the Crossing Inventory to August 9, 2016. FRA 
is not adjusting any other deadlines in Sec.  234.405(a) and (b).

Duty of Operating Railroads To Ensure New and Previously Unreported 
Highway-Rail and Pathway Crossings Are Reported to the Crossing 
Inventory

    Paragraph (c) of Sec.  234.405 requires operating railroads 
(railroads other than the primary operating railroad that operate 
through a crossing) to notify FRA if a primary operating railroad has 
not submitted a completed Inventory Form, or its electronic equivalent, 
to the Crossing Inventory consistent with the rule for a new or 
previously unreported crossing the railroad operates through. AAR 
requests that FRA amend this requirement (along with the corresponding 
requirement in Sec.  234.407(c) related to new crossings) so operating 
railroads will not be liable for a primary operating railroad's failure 
to submit the required crossing data. AAR asserts this provision 
imposes a significant burden on operating railroads and constitutes an 
inappropriate shift of regulatory compliance policing responsibility to 
a private business. AAR asserts that the final rule requires operating 
railroads to include and validate data for other railroads' crossings 
in their databases on an ongoing basis to ensure the primary operating 
railroad properly submitted required crossing data to the Crossing 
Inventory. AAR further asserts it is unrealistic to require railroads 
to audit the crossing data of other railroads, in addition to their own 
crossing data, all within 14 months.
    After careful consideration of AAR's request, with respect to the 
initial reporting of new and previously unreported highway-rail and 
pathway crossings, FRA cannot legally adopt AAR's request. Paragraph 
(c) of Sec.  234.405 (and paragraph (c) of Sec.  234.407 related to new 
crossings) implements the RSIA mandate that each railroad carrier 
ensure current information about each previously unreported highway-
rail or pathway crossing is reported to the Crossing Inventory. See 49 
U.S.C. 20160(a). Congress left FRA no discretion to ignore this 
mandate. Clearly, Congress thought operating railroads that operate 
over new and unreported highway-rail and pathway crossings are in the 
best position to identify crossings that have not been reported to the 
Crossing Inventory.
Section 234.407 Submission of Initial Data to the Crossing Inventory 
for new Crossings
    Paragraph (b) of this section of the final rule requires operating 
railroads that operate on separate tracks through a new highway-rail or 
pathway crossing to submit crossing data to the Crossing Inventory by 
March 7, 2016, but erroneously fails to provide a future deadline for 
highway-rail and pathway crossings that become operational after the 
final rule's effective date. This document corrects this technical 
error by amending Sec.  234.407(b) to require operating railroads that 
operate on separate tracks through a new highway-rail or pathway 
crossing to submit crossing data no later than six months after the 
crossing becomes operational or August 9, 2016, whichever occurs later.
    FRA is also making a technical amendment to correct a typographical 
error in the second sentence of paragraph (d)(1)(i) of this section in 
this final rule. The original version of this sentence in the final 
rule contained an erroneous reference to Sec.  234.405(a)(3).

Assignment of Inventory Numbers to New Crossings Located in a Private 
Company, Port, or Dock Area

    Paragraph (a)(1)(ii) of Sec.  234.407 of the final rule requires 
each primary operating railroad to assign one or more Inventory Numbers 
to new highway-rail and pathway crossings within a private company, 
port, or dock area and through which the railroad operates. See 
discussion of Sec.  234.405 above. AAR requests that FRA amend this 
requirement to allow multiple primary operating railroads to assign a 
shared Inventory Number to new highway-rail and pathway crossings that 
are located within a private company, port, or dock area. AAR asserts 
that as drafted, Sec.  234.407(a)(1)(ii) is contrary to current 
practice. AAR also asserts that this new requirement could create 
reporting confusion if an accident were to occur at a crossing within a 
private company, port, or dock area. After careful consideration, FRA 
is not adopting AAR's request to modify Sec.  234.407(a)(1)(ii) for the 
reasons explained in the Section-by-Section analysis of Sec.  
234.405(a)(1)(ii) above.

[[Page 37526]]

Submission of Completed Inventory Forms for New Highway-Rail and 
Pathway Crossings

    Paragraph (a)(3) of Sec.  234.407 requires primary operating 
railroads to submit to the Crossing Inventory ``accurate and complete 
[U.S. DOT Crossing] Inventory Forms, or their electronic equivalent,'' 
for new highway-rail and pathway crossings through which railroads 
operate. As discussed in the Section-by-Section Analysis of Sec.  
234.405 above, under the heading ``Submission of Completed Inventory 
Forms for Previously Unreported Highway-Rail Grade Crossings'', AAR 
requests that FRA amend Sec.  234.407(a)(3) to remove the requirement 
that primary operating railroads submit ``completed'' Inventory Forms 
for new highway-rail and pathway crossings. AAR also objects to the 
voluntary process in paragraph (d) of this section which provides that 
if a railroad requests data necessary to complete an Inventory Form 
from a State agency and that agency does not timely respond, the 
railroad may notify FRA in writing of the State's non-responsiveness.
    After careful consideration, FRA is revising Sec.  234.407(a)(3) 
consistent with the revisions to Sec.  234.405(a)(3), to clarify that 
primary operating railroads must submit ``accurate Inventory Forms, or 
their electronic equivalent,'' (as opposed to ``accurate and complete'' 
Inventory Forms) to the Crossing Inventory for new highway-rail and 
pathway crossings through which they operate. The primary operating 
railroad must fill out these accurate Inventory Forms consistent with 
the Inventory Guide, which requires completion of the entire Inventory 
Form only for new public highway-rail grade crossings.

Deadline for the Submission of Crossing Data for New Highway-Rail and 
Pathway Crossings

    The final rule provides that ``[e]ach primary operating railroad 
shall submit accurate and complete Inventory Forms, or their electronic 
equivalent, to the Crossing Inventory for new highway-rail and pathway 
crossings through which it operates, no later than six (6) months after 
the crossing becomes operational or March 7, 2016, whichever occurs 
later.'' 49 CFR 234.407(a)(3). The final rule also provides that 
``[f]or each new highway-rail and pathway crossing where operating 
railroads operate trains on separate tracks through the crossing, each 
operating railroad (other than the primary operating railroad) shall 
submit accurate crossing data specified in the Inventory Guide to the 
Crossing Inventory no later than March 7, 2016.'' 49 CFR 234.407(b).
    AAR requests that FRA amend Sec.  234.407(a)(3) to establish a 
deadline three years from the final rule effective date for operating 
railroads and primary operating railroads to submit crossing data for 
new highway-rail and pathway crossings to the Crossing Inventory. AAR 
asserts that railroads need this additional time to add newly acquired 
information to the Inventory and to modify their IT systems to meet the 
new requirements. For the reasons explained in the Section-by-Section 
analysis of Sec.  234.405(a)(3) above, FRA is not adopting the AAR's 
request to extend the reporting deadline for new highway-rail and 
pathway crossings to March 9, 2018 (three years from the final rule 
effective date). However, with respect to new crossings (highway-rail 
and pathway crossings that become operational on or after June 10, 
2016), primary operating railroads will have six (6) months from the 
date on which the highway-rail or pathway crossing becomes operational 
to report the new crossing to the Crossing Inventory, consistent with 
Sec.  234.403 and the Inventory Guide. Similarly, operating railroads 
that operate on separate tracks through a new highway-rail or pathway 
crossing will have six (6) months from the date on which the highway-
rail or pathway crossing becomes operational to submit crossing data to 
the Crossing Inventory, consistent with Sec.  234.403 and the Inventory 
Guide.

Duty of Operating Railroads To Ensure New Highway-Rail and Pathway 
Crossings Are Reported to the Crossing Inventory

    Paragraph (c) of Sec.  234.407 requires operating railroads 
(railroads other than the primary operating railroad that operate 
through a crossing) to notify FRA if a completed Inventory Form, or its 
electronic equivalent, has not been submitted to the Crossing Inventory 
consistent with the final rule for a new crossing that the railroad 
operates through. Consistent with its request to amend Sec.  234.405(c) 
regarding previously unreported crossings, AAR requests that FRA amend 
Sec.  234.407(c), so operating railroads will not be held liable for 
the primary operating railroad's failure to timely report a new 
highway-rail or pathway crossing to the Crossing Inventory. For the 
reasons discussed in the Section-by-Section analysis of Sec.  
234.405(c), FRA is not adopting AAR's request to amend Sec.  
234.407(c).

State-Maintained Crossing Data

    As explained in the Section-by-Section analysis of Sec.  
234.405(d), primary operating railroads are required to complete 
Inventory Forms (or their electronic equivalent) for new public 
highway-rail grade crossings. Therefore, primary operating railroads 
may need to obtain crossing data from the State agency responsible for 
maintaining highway-rail and pathway crossing data to complete the 
Inventory Form (or its electronic equivalent). Like paragraph (d) of 
Sec.  234.405, current paragraph (d) of Sec.  234.407 of the final rule 
explains how a primary operating railroad may submit written 
notification to the FRA Associate Administrator that they requested 
certain crossing data from the appropriate State agency responsible for 
maintaining highway-rail and pathway crossing data, which the State has 
not yet provided. As long as the primary operating railroad submits the 
State-maintained crossing data within 60 days of receipt, FRA will 
consider a properly filed written notification to be an affirmative 
defense to potential violations for failure to timely submit an 
Inventory Form (or its electronic equivalent) to the Crossing Inventory 
for a new public highway-rail grade crossing.
    FRA is revising the written notification process in Sec.  
234.407(d). FRA is no longer asking primary operating railroads to 
provide their written notifications by certified mail, return receipt 
requested. Instead, a primary operating railroad can send copies of its 
request for State-maintained crossing data to the FRA Associate 
Administrator and to each operating railroad that operates through the 
new public highway-rail grade crossing. As long as the primary 
operating railroad: (1) Sends copies of its written request for State-
maintained crossing data to the FRA Associate Administrator and to each 
operating railroad that operates through the new public highway-rail 
grade crossing no later than six (6) months after the crossing becomes 
operational; and (2) submits the State-maintained crossing data within 
60 days of receipt, FRA will consider the written request for State-
maintained crossing data to be an affirmative defense to potential 
liability for failure to timely submit an Inventory Form (or its 
electronic equivalent) to the Crossing Inventory for a new public 
highway-rail grade crossing.
Section 234.409 Submission of Periodic Updates to the Crossing 
Inventory.
    AAR's Petition states that some primary operating railroads share a 
single Inventory Number for highway-rail and pathway crossings located 
within a private company, port, or dock

[[Page 37527]]

area that have already been reported to the Crossing Inventory. (As 
explained in the definition of ``primary operating railroad'' in Sec.  
234.401 above, each railroad that owns track leading to a private 
company, port, or dock area is considered a primary operating railroad 
for the crossings within that area, if a general system railroad 
operates over the track owned by that railroad and through at least one 
crossing within that private area.)
    Paragraph (a) of Sec.  234.409 requires each primary operating 
railroad to submit periodic updates to the Crossing Inventory. To 
comply with this requirement, primary operating railroads that 
currently share Inventory Numbers for highway-rail and pathway 
crossings located within a private company, port, or dock area must 
exercise one of two options.
    First, each primary operating railroad that operates through the 
crossing(s) may choose to assign a new unique Inventory Number (or set 
of Inventory Numbers) to the crossing(s) located within a private 
company, port, or dock area through which it operates. Each primary 
operating railroad (except the primary operating railroad that assigned 
the original Inventory Number to the crossing(s)) would then use its 
new Inventory Number(s) to submit crossing data to the Crossing 
Inventory as a new crossing record. After the new crossing record is 
established, each primary operating railroad can submit periodic 
updates to the Crossing Inventory for the highway-rail and pathway 
crossing(s) located within a private company, port, or dock area using 
the Inventory Number(s) it assigned to the crossing(s).
    Second, FRA will accommodate primary operating railroads that wish 
to continue sharing a single Inventory Number which has already been 
used to report highway-rail and pathway crossings located within a 
private company, port, or dock area to the Crossing Inventory. As 
explained in Frequently Asked Question (FAQ) number 37 in Appendix E to 
the Inventory Guide, the primary operating railroad of record in the 
Crossing Inventory can submit an up-to-date and accurate periodic 
update to the Crossing Inventory for all of the railroad-assigned data 
fields in Appendix B to the Inventory Guide (``Responsibility Table for 
Periodic Updates to the Crossing Inventory''). As part of this update, 
the primary operating railroad of record must check the ``Yes'' box in 
Part I, item 7 (``Do Other Railroads Operate a Separate Track at 
Crossing'') of the Inventory Form (or its electronic equivalent) and 
provide railroad codes for all of the other primary operating 
railroads.
    The other primary operating railroads that share the Inventory 
Number can satisfy the periodic updating requirement in Sec.  234.409 
by using the shared Inventory Number to submit up-to-date and accurate 
crossing data for the data fields specified in Appendix C to the 
Inventory Guide (``Reporting Crossings that have Multiple Operating 
Railroads''). This method for submitting periodic updates is identical 
to the method operating railroads that operate on separate tracks 
through a crossing use, under paragraph (b) of Sec.  234.409.
    This second option is only available for new or previously 
unreported highway-rail and pathway crossings located within a private 
company, port, or dock area that have already been reported to the 
Crossing Inventory and assigned one or more Inventory Numbers that are 
shared by multiple primary operating railroads.

Submission of Periodic Updates

    The final rule requires primary operating railroads to submit, 
consistent with the Inventory Guide, ``up-to-date and accurate crossing 
data'' to the Crossing Inventory for each highway-rail and pathway 
crossing through which it operates. Paragraph (a) of Sec.  234.409 of 
the final rule requires primary operating railroads to submit updated 
data at least every three (3) years from the date of the primary 
operating railroad's most recent submission of data (or most recent 
submission on behalf of the primary operating railroad) for the 
crossing or by March 7, 2016. Paragraph (b) requires operating 
railroads that operate trains on separate tracks through a crossing to 
similarly update the data required by the Inventory Guide.
    As it did for Sec. Sec.  234.405 and 234.407, AAR requests that FRA 
amend the compliance deadlines in paragraphs (a) and (b) of Sec.  
234.409 for three years from the final rule's effective date. This 
would allow railroads to submit updated crossing data for highway-rail 
and pathway grade crossings at least every three (3) years from the 
date of the most recent submission of data by that railroad for the 
crossing or by March 7, 2018, whichever occurs later.
    Consistent with FRA's responses to AAR's requests to amend the 
compliance deadlines in Sec. Sec.  234.405 and 234.407 discussed above, 
FRA is not adopting AAR's request to extend the compliance deadlines 
for railroads in paragraphs (a) and (b) of Sec.  234.409 by three 
years. As with the compliance deadlines in Sec. Sec.  234.405 and 
234.407, however, FRA acknowledges that railroads may need additional 
time to incorporate the changes that are being made in these amendments 
to the final rule being made as a result of AAR's Petition. Therefore, 
FRA is revising Sec.  234.409(a) and (b) to extend the deadline for 
primary operating railroads and operating railroads to submit updated 
crossing data to the Crossing Inventory for highway-rail and pathway 
crossings over which they operate to every three (3) years from the 
date of the most recent submission of data by the railroad (or on 
behalf of the railroad) for the crossing or August 9, 2016, whichever 
occurs later.

Duty of Operating Railroads To Ensure Up-to-Date Crossing Data Is 
Reported to the Crossing Inventory

    Paragraph (c) of Sec.  234.409 requires operating railroads (other 
than primary operating railroads), that operate through a highway-rail 
or pathway crossing for which up-to-date information has not been 
timely submitted to the Crossing Inventory to notify FRA of this 
oversight. Written notification the operating railroad provides must 
include, at a minimum, the Inventory Number for each highway-rail or 
pathway crossing that has not been updated.
    AAR requests that FRA amend Sec.  234.409(c), so that operating 
railroads will not be held liable for the primary operating railroad's 
failure to timely submit updated crossing data to the Crossing 
Inventory. AAR asserts that this provision imposes a significant burden 
on operating railroads, which will need to include and validate data 
for other railroads' crossings in their databases on an ongoing basis 
to ensure that the primary operating railroad has properly submitted 
required crossing data to the Crossing Inventory. AAR further asserts 
that this language constitutes an inappropriate shift of regulatory 
compliance policing responsibility to a private business and that it is 
unrealistic to require railroads to audit the crossing data of other 
railroads, in addition to their own crossing data, within 14 months.
    After considering AAR's request, FRA is removing Sec.  234.409(c). 
The RSIA requires each railroad carrier to ensure that periodic updates 
are submitted to the Crossing Inventory for each highway-rail and 
pathway crossing through which it operates. See 49 U.S.C. 20160(b). 
However, unlike previously unreported and new crossings that have not 
yet been reported to the Crossing Inventory, FRA can use the Grade 
Crossing Inventory System (GCIS) to generate reports that identify out-
of-date highway-rail and pathway crossing data.

[[Page 37528]]

FRA can use these reports to verify that primary operating railroads 
(and any operating railroads that operate on separate tracks through 
the crossing) are timely submitting periodic updates to the Crossing 
Inventory, as required by Sec.  234.409(a) and (b). Therefore, FRA is 
revising the final rule to remove the requirement that operating 
railroads monitor the Crossing Inventory and provide the agency written 
notification if a primary operating railroad fails to timely submit 
updates to the highway-rail and pathway crossing data for which it is 
responsible.
Section 234.411 Changes Requiring Submission of Updated Information to 
the Crossing Inventory
    Consistent with the extended deadline by which railroads are 
required to report new and previously unreported highway-rail and 
pathway crossings to the Crossing Inventory, this final rule revises 
Sec.  234.411 to clarify the primary operating railroad is required to 
report the following events to the Crossing Inventory within three (3) 
months, if they occur on or after June 10, 2016: (1) The sale of all or 
part of a crossing; (2) the closure of a highway-rail or pathway 
crossings; or (3) a change in crossing surface or warning device at a 
public highway-rail grade crossing.
    Current paragraph (a) of Sec.  234.411 requires any railroad that 
sells all or part of a highway-rail or pathway crossing to report the 
crossing sale to the Crossing Inventory within three (3) months of the 
date of sale or March 7, 2016, whichever occurs later. However, with 
respect to railroads, GCIS is primarily designed to accept crossing 
data from the primary operating railroad, unless other operating 
railroads operate on separate tracks through the crossing (or the 
primary operating railroad delegates reporting and updating 
responsibility to another entity). (As stated in the Inventory Guide, 
GCIS will accept partial data submissions from other operating 
railroads once the primary operating railroad submits an Inventory 
Form, or its electronic equivalent, which indicates that one or more 
operating railroads operate on separate tracks through the crossing.) 
Therefore, FRA is also amending Sec.  234.411(a)(1) to require a 
selling railroad that is not the primary operating railroad to notify 
the primary operating railroad of the sale of all or part of a highway-
rail or pathway crossing within three (3) months of the date of sale.
    Under new Sec.  234.411(a)(2)(i), if the primary operating railroad 
sells all or part of a highway-rail or pathway crossing for which it 
has reporting and updating responsibility under this subpart, it would 
be required to submit an Inventory Form, or its electronic equivalent, 
which reflects the crossing sale to the Crossing Inventory consistent 
with Sec.  234.403 and the Inventory Guide within three (3) months of 
the date of sale. However, under new Sec.  234.411(a)(2)(ii), if a 
primary operating railroad is notified of the sale of all or part of a 
highway-rail or pathway crossing under paragraph (a)(1) of this 
section, then it would be required to submit an Inventory Form, or its 
electronic equivalent, which reflects the crossing sale to the Crossing 
Inventory consistent with Sec.  234.403 and the Inventory Guide within 
three (3) months of the date of notification.
Section 234.413 Recordkeeping
    This document makes a technical amendment to the heading of this 
section to correct a typographical error.
Appendix A to Part 234--Schedule of Civil Penalties
    This document revises the civil penalty schedule in appendix A to 
this part to reflect changes that were made to individual sections in 
these final rule amendments. FRA is revising the civil penalty schedule 
to reflect violations may be assessed under Sec. Sec.  234.405(a) and 
234.407(a) if the primary operating railroad fails to timely submit an 
accurate Inventory Form (or electronic equivalent) to the Crossing 
Inventory for a new or previously unreported crossing. (Previously, the 
civil penalty schedule indicated that violations may be assessed under 
these sections if the primary operating railroad fails to timely submit 
an accurate and complete Inventory Form or the electronic equivalent to 
the Crossing Inventory for a new or previously unreported crossing. 
However, as discussed above, primary operating railroads are only 
required to submit complete Inventory Forms or their electronic 
equivalent for public highway-rail grade crossings.) FRA is also 
revising the civil penalty schedule to remove the recommended civil 
penalty associated with Sec.  234.409(c) because this provision has 
been removed.

B. Amendments to Inventory Guide

Instructions for Completing the U.S. DOT Crossing Inventory Form
    FRA is clarifying a statement made in the final rule preamble 
discussion of the ``Crossing Type'' data field in Part I of the 
Inventory Form. Specifically, in the preamble to the final rule, FRA 
stated that it

will defer to the determination of the relevant State agency for the 
public/private classification of highway-rail (and pathway) 
crossings. Accordingly, we are asking State agencies to submit 
voluntary updates to the Crossing Type data field in Part I of the 
Inventory Form, as stated in Appendix B to the Inventory Guide.

80 FR at 767. FRA intended to ask State agencies to submit voluntary 
updates to the ``Crossing Type'' data field only for public highway-
rail and pathway crossings. Appendix B to the Inventory Guide states 
that primary operating railroads are required to submit updates to the 
``Crossing Type'' data field for private highway-rail and pathway 
crossings.
Appendix E to the Inventory Guide, Frequently Asked Questions (FAQs)

Who Can Report Closed Crossing Status in the Crossing Inventory

    FAQ number 22 in Appendix E to the Inventory Guide states that 
``[t]he primary operating railroad must report the closure of a 
highway-rail or pathway crossing to the Crossing Inventory, but the 
State may also report the closure of a public crossing.'' AAR requests 
that FRA amend this FAQ to state that only railroads can report the 
closure of a crossing to the Crossing Inventory. AAR asserts that 
allowing dual reporting is problematic because a State may close 
crossings in the Crossing Inventory on the basis of inaccurate 
information and without informing the operating railroad, which causes 
railroads to incur additional research and effort to address and 
resolve the discrepancy.
    FRA declines to adopt AAR's recommendation to modify FAQ number 22 
in Appendix E to the Inventory Guide. While the primary operating 
railroad is the only entity that can report the closure of a private 
highway-rail or pathway crossing to the Inventory, both railroads and 
States collect and maintain data related to public highway-rail and 
pathway crossings. Both entities have an interest in ensuring that the 
Crossing Inventory reflects up-to-date and accurate data related to 
crossing status. By allowing States to report the closure of public 
highway-rail and pathway crossings to the Crossing Inventory, States 
can provide needed updates to crossing status in the event that the 
primary operating railroad ceases to operate.

Reporting Crossing Sales That Result in a New Primary Operating 
Railroad

    FRA is revising FAQ number 24 in Appendix E to the Inventory Guide 
to incorporate an FRA recommendation when railroads report crossing 
sales that result in a new primary operating

[[Page 37529]]

railroad. As stated in revised FAQ number 24, if the sale of a highway-
rail or pathway crossing results in a new primary operating railroad, 
FRA strongly recommends that the new primary operating railroad submit 
updated crossing data to the Crossing Inventory for all of the 
railroad-assigned data fields on the Inventory Form (or its electronic 
equivalent) within six (6) months of the date of sale.

III. Regulatory Impact and Notices

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

    FRA analyzed the potential costs and benefits of the amendments to 
the final rule adopted in this document. FRA estimates that the 
amendments will not materially impact the findings of the previously 
published regulatory evaluation. The extension of time for compliance 
with changes that are being made in these final rule amendments will 
grant some relief to railroads. However, the twenty-year analysis is 
still valid.
    FRA evaluated both the final rule and these amendments under 
existing policies and procedures and determined both to be non-
significant under both Executive Order 12866 and 13563 and DOT policies 
and procedures. See 44 FR 11034, Feb. 26, 1979. FRA previously placed 
in the docket a regulatory evaluation addressing the economic impact of 
the final rule. The primary purpose of the Crossing Inventory is to 
provide a uniform inventory database that can be merged with highway-
rail crossing collision files and used to analyze information for 
planning and implementation of crossing improvement programs by public 
and private agencies responsible for highway-rail crossing safety, as 
well as the railroad industry and academia.
    FRA has determined these amendments to the final rule do not change 
FRA's position that the anticipated benefits justify the costs.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure the impact of this rulemaking on small entities is 
properly considered, FRA developed these final rule amendments 
consistent with Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') and DOT's procedures and policies to 
promote compliance with the Regulatory Flexibility Act of 1980 (5 
U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. FRA certified 
that this final rule will not have a significant economic impact on a 
substantial number of small entities. Although a substantial number of 
small railroads will be affected by the final rule, none of these 
entities will be significantly impacted. The amendments to this final 
rule will grant some relief to small entities by granting them 
additional time to comply with changes that are being made in these the 
final rule amendments. However, the amendments to the final rule will 
not change the overall impact on small entities. Therefore, FRA is 
confident that its previous certification for the final rule is still 
valid.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    FRA analyzed this amended final rule in accordance with the 
principles and criteria contained in Executive Order 13132. Based on 
this analysis, FRA concluded that this rule will not have a substantial 
effect on the States or their political subdivisions; it will not 
impose any compliance costs; and it will not affect the relationships 
between the Federal government and the States or their political 
subdivisions, or the distribution of power and responsibilities among 
the various levels of government. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply and FRA 
determined that preparation of a federalism summary impact statement 
for this amended final rule is not required. This amended final rule 
could have preemptive effect by operation of law under a provision of 
the former Federal Railroad Safety Act of 1970 (repealed and recodified 
at 49 U.S.C. 20106). Section 20106 provides that States may not adopt 
or continue in effect any law, regulation, or order related to railroad 
safety or security that covers the subject matter of a regulation 
prescribed or order issued by the Secretary (with respect to railroad 
safety matters) or the Secretary of Homeland Security (with respect to 
railroad security matters), except when the State law, regulation, or 
order qualifies under the ``essentially local safety or security 
hazard'' exception to sec. 20106.

D. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                         Total annual      Average time per      Total annual
          CFR Section            Respondent universe       responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
234.403(a-c)--Submission of      51 States/entities   4,212 forms.......  30 minutes........  2,106 hours
 Data to the U.S. DOT Highway-    & 618 railroads.
 Rail Crossing Inventory:
 Completion of Inventory Form.
--Mass Update Lists of           51 States/entities   257 lists.........  30 minutes........  129 hours
 Designated Data Submitted by     & 618 railroads.
 Railroads/States.
--Excel Lists of Submitted Data  51 States/entities   1,234 lists.......  30 minutes........  617 hours
                                  & 618 railroads.

[[Page 37530]]

 
--Changes/Corrections to         51 States/entities   35,845 records....  6 minutes.........  3,585 hours
 Crossing Inventory Data          & 618 railroads.
 Submitted via GX 32 Computer
 Program.
--Written Requests by States/    51 States/entities   10 requests.......  15 minutes........  3 hours
 Railroads for FRA Crossing       & 618 railroads.
 Inventory Guide.
(d)--Reporting Crossing          51 States/entities   20 notices........  30 minutes........  10 hours
 Inventory Data by State          & 618 railroads.
 Agencies on Behalf of
 Railroads: Written Notices to
 FRA.
--(e)(1)--Consolidated           51 States/entities   250 notices.......  30 minutes........  125 hours
 Reporting by Parent              & 618 railroads.
 Corporation on Behalf of Its
 Subsidiary Railroads: Written
 Notice to FRA.
--(e)(2)--Immediate              51 States/entities   75 notices........  30 minutes........  38 hours
 Notification to FRA by Parent    & 618 railroads.
 Corporation of Any Changes in
 the List of Subsidiary
 Railroads for Which It Reports.
----------------------------------------------------------------------------------------------------------------
234.405(a)(1)--Initial           51 States/entities   5,300 assigned      5 minutes +.......  1,325 hours
 Submission of Previously         & 618 railroads.     numbers + 10,600   5 minutes.........
 Unreported Highway-Rail and                           provided assigned
 Pathway Crossings through                             numbers.
 which They Operate by Primary
 Operating Railroads: Providing
 Assigned Crossing Inventory
 Number to Each Railroad that
 Operates One or More Trains
 Through Crossing + Assignee
 Inventory Numbers for Highway-
 Rail and Pathway Crossing
 Located in Rail Yard,
 Passenger Station, within
 Private Company, Port, or Dock
 Area.
(a)(2)(i)--Completed Inventory   51 States/entities   5,300 forms.......  30 minutes........  2,650 hours
 Forms for Each Previously        & 618 railroads.
 Unreported Crossing.
(c)--Duty of All Operating       51 States/entities   450 notices/        30 minutes........  225 hours
 Railroads: Notification to FRA   & 618 railroads.     Notifications.
 of Previously Unreported
 Crossing through Which It
 Operates.
(d)--State-maintained Crossing   51 States/entities   35 copies of        2 minutes.........  1 hour
 Data: Written Copy of Request    & 618 railroads.     written request.
 for Such Data to FRA (Revised
 Requirement).
--Copies of Written Request for  51 States/entities   105 copies of       2 minutes.........  4 hours
 State-maintained Data to Each    & 618 railroads.     written request.
 Operating Railroad Transiting
 Crossing (Revised Requirement).
----------------------------------------------------------------------------------------------------------------
234.407(a)--Submission of        51 States/entities   100 assigned        5 minutes + 5       16 hours
 Initial Data to the Crossing     & 618 railroads.     numbers + 100       minutes.
 Inventory for New Crossings:                          provided assigned
 Providing Assigned Inventory                          numbers.
 Numbers for New Highway-Rail
 and Pathway Crossings through
 which They Operate by Primary
 Operating Railroads to Each
 Railroad that Operates One or
 More Trains Through the
 Crossing.
(a)(2)(i)--Completed Inventory   51 States/entities   100 forms.........  90 minutes........  150 hours
 Forms for Each New Highway-      & 618 railroads.
 Rail and Pathway Crossing.
----------------------------------------------------------------------------------------------------------------
234.409(a)--Submission of        51 States/entities   80,775 crossing     2.5025 minutes....  3,369 hours
 Periodic Updates to the          & 618 railroads.     inventory updates.
 Crossing Inventory.
(c) Duty of All Operating        51 States/entities   950 written         20 minutes........  317 hours
 Railroads: Written               & 618 railroads.     notices.
 Notification to FRA of that Up-
 to-date and Accurate
 Information has Not Been
 Timely Submitted to the
 Crossing Inventory.
----------------------------------------------------------------------------------------------------------------
234.411(a)--Crossing Sale:       51 States/entities   650 reports/        2 hours...........  1,300 hours
 Submission of Crossing           & 618 railroads.     updated crossing
 Inventory Form by Any                                 inventory form.
 Operating Railroad that Sells
 All or Part of Highway-Rail
 and Pathway Crossing.
(b)--Crossing Closure:           51 States/entities   85 crossing         5 minutes.........  7 hours
 Submission of Crossing           & 618 railroads.     inventory forms
 Inventory Form by Primary                             (closures).
 Operating Railroad that Closes
 Highway-Rail and Pathway
 Crossing.

[[Page 37531]]

 
(c)--Primary Operating RR        51 States/entities   650 forms.........  30 minutes........  325 hours
 Submission of Inventory form     & 618 railroads.
 for Any Surface/Warning Device
 Changes at Crossing.
----------------------------------------------------------------------------------------------------------------
234.413(a&b)(1)--Recordkeeping:  51 States/entities   5,901 duplicate     1 minute..........  98 hours
 Duplicate Copy of Each           & 618 railroads.     copies.
 Inventory Form Submitted in
 Hard Copy.
(a&b)(2)--Railroad Copy of FRA   51 States/entities   80,775 copies.....  1 minute..........  1,346 hours
 Confirmation after Electronic    & 618 railroads.
 Submission of Crossing Data to
 the Crossing Inventory.
(c)--Railroad List of            51 States/entities   618 lists.........  5 minutes.........  52 hours
 Establishment Locations Where    & 618 railroads.
 Any Required Records are Kept.
----------------------------------------------------------------------------------------------------------------

    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to OMB at the following address: 
oira_submissions@omb.eop.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this amended final rule between 
30 and 60 days after publication of this document in the Federal 
Register. Therefore, a comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action on the effective date of this amended final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

E. Environmental Impact

    FRA has evaluated this rule under its ``Procedures for Considering 
Environmental Impacts'' (FRA's Procedures) (64 FR 28545, May 26, 1999) 
as required by the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), other environmental statutes, Executive Orders, and related 
regulatory requirements. FRA has determined that this amended final 
rule is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review under 
section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999.
    Under section 4(c) and (e) of FRA's Procedures, the agency has 
further concluded that no extraordinary circumstances exist with 
respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this amended 
final rule is not a major Federal action significantly affecting the 
quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. 
L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise 
prohibited by law, assess the effects of Federal regulatory actions on 
State, local, and tribal governments, and the private sector (other 
than to the extent that such regulations incorporate requirements 
specifically set forth in law).'' Section 202 of the Act (2 U.S.C. 
1532) further requires that before promulgating any general notice of 
proposed rulemaking that is likely to result in the promulgation of any 
rule that includes any Federal mandate that may result in expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year, and before promulgating any final rule for 
which a general notice of proposed rulemaking was published, the agency 
shall prepare a written statement detailing the effect on State, local, 
and tribal governments and the private sector. This amended final rule 
will not result in the expenditure, in the aggregate, of $155,000,000 
or more (as adjusted annually for inflation) in any one year, and thus 
preparation of such a statement is not required.

G. Energy Impact

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

H. Trade Impact

    The Trade Agreements Act of 1979 (TAA) (Pub. L. 96-39, 19 U.S.C. 
2501 et seq.) prohibits Federal agencies from engaging in any standards 
setting or related activities that create unnecessary obstacles to the 
foreign commerce of the United States. Legitimate domestic objectives, 
such as safety, are not considered unnecessary obstacles. The statute 
also requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. FRA assessed 
the potential effect of this amended final rule on foreign commerce and 
believes that its requirements are consistent with

[[Page 37532]]

the TAA. The requirements imposed are safety standards which, as noted, 
are not considered unnecessary obstacles to trade.

I. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the comment (or signing the document, 
if submitted on behalf of an association, business, labor union, etc.). 
See http://www.regulations.gov/#!privacyNotice for the privacy notice 
of regulations.gov or interested parties may review DOT's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477). Under 5 U.S.C. 553(c), DOT solicits comments from 
the public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

List of Subjects in 49 CFR Part 234

    Highway safety, Penalties, Railroad safety, Reporting and 
recordkeeping requirements, State and local governments.

    For the reasons discussed in the preamble, FRA amends part 234 of 
chapter II, subtitle B of title 49, Code of Federal Regulations as 
follows:

PART 234--[AMENDED]

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. Section 234.401 is amended by adding definitions of ``General 
railroad system of transportation'' and ``General system railroad'' in 
alphabetical order and revising the definition of ``Primary operating 
railroad'' to read as follows:


Sec.  234.401  Definitions.

* * * * *
    General railroad system of transportation means 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.
    General system railroad means a railroad that operates on track 
which is part of the general railroad system of transportation.
* * * * *
    Primary operating railroad means the operating railroad that either 
owns or maintains the track through the highway-rail or pathway 
crossing, unless the crossing is located within a private company, 
port, or dock area. If more than one operating railroad either owns or 
maintains the track through the highway-rail or pathway crossing, or if 
no operating railroad owns or maintains the track through the highway-
rail or pathway crossing, then the operating railroad that operates the 
highest number of trains through the crossing is the primary operating 
railroad. In the event that there is only one operating railroad that 
operates one or more trains through a highway-rail or pathway crossing, 
that operating railroad is the primary operating railroad. For highway-
rail and pathway crossings that are located within a private company, 
port, or dock area (``private area''), each railroad that owns track 
leading to the private company, port, or dock area will be considered a 
primary operating railroad for all crossings within the private area if 
a general system railroad operates over the railroad's track leading to 
the private area and through at least one crossing within that area.
* * * * *

0
3. Revise Sec.  234.403(e) to read as follows:


Sec.  234.403  Submission of data to the Crossing Inventory, generally.

* * * * *
    (e) Reporting by the parent corporation on behalf of subsidiary 
railroads. (1) To satisfy the reporting requirements of this section, a 
parent corporation may submit crossing data to the Crossing Inventory 
on behalf of one or more of its subsidiary railroads. The parent 
corporation shall provide written notice to the FRA Associate 
Administrator that it has assumed reporting and updating responsibility 
for all of the subsidiary railroad's highway-rail and pathway 
crossings. The written notification shall include the following:
    (i) A list of all subsidiary railroads for which the parent 
corporation will submit and update highway-rail and pathway crossing 
data;
    (ii) A statement signed by an official of the parent corporation 
affirming that the parent corporation agrees to submit and update all 
of the highway-rail and pathway crossing data for the named subsidiary 
railroad(s); and
    (iii) A statement that the parent corporation agrees to be subject 
to enforcement action for noncompliance with the reporting or updating 
requirements of this subpart.
    (2) The parent corporation shall provide immediate written 
notification to the FRA Associate Administrator of any change in the 
list of subsidiary operating railroads for which it has assumed 
reporting and updating responsibility.
    (3) The parent corporation shall submit the data required by 
paragraph (a) of this section to the Crossing Inventory electronically.

0
4. In Sec.  234.405, revise paragraphs (a)(1) and (3), (b), and (d) to 
read as follows:


Sec.  234.405  Submission of initial data to the Crossing Inventory for 
previously unreported crossings.

    (a) Duty of primary operating railroad. (1)(i) With the exception 
of highway-rail and pathway crossings located in a railroad yard, 
passenger station, or within a private company, port, or dock area, 
each primary operating railroad shall assign an Inventory Number to 
each previously unreported highway-rail and pathway crossing through 
which it operates.
    (ii) A primary operating railroad shall assign one or more 
Inventory Numbers to previously unreported highway-rail and pathway 
crossings through which it operates, which are located in a railroad 
yard, passenger station, or within a private company, port, or dock 
area.
* * * * *
    (3) Each primary operating railroad shall submit accurate Inventory 
Forms, or their electronic equivalent, to the Crossing Inventory for 
the previously unreported highway-rail and pathway crossings through 
which it operates, no later than August 9, 2016. The Inventory Form, or 
its electronic equivalent, shall reference the assigned Inventory 
Number for the crossing(s) and shall be completed and submitted 
consistent with Sec.  234.403 and the Inventory Guide.
    (b) Duty of operating railroad when operating railroads operate on 
separate tracks. For each previously unreported highway-rail and 
pathway crossing where operating railroads operate trains on separate 
tracks through the crossing, each operating railroad (other than the 
primary operating railroad) shall submit accurate crossing data 
specified in the Inventory Guide to the Crossing Inventory no later 
than August 9, 2016. The Inventory Form, or its electronic equivalent, 
which contains this crossing data shall reference the Inventory Number 
assigned to the crossing by the primary operating railroad and shall be 
completed and submitted in accordance with Sec.  234.403.
* * * * *
    (d) State-maintained crossing data. If a primary operating railroad 
requests

[[Page 37533]]

State-maintained crossing data from the appropriate State agency 
responsible for maintaining highway-rail and pathway crossing data, the 
primary operating railroad may send a copy of its written request for 
State-maintained crossing data to the FRA Associate Administrator and 
to each operating railroad that operates through the crossing. FRA will 
consider the written request to be an affirmative defense to potential 
liability for failure to timely submit an accurate Inventory Form, or 
its electronic equivalent, as required by paragraph (a)(3) of this 
section if the primary operating railroad:
    (1) Provides a copy of its written request for State-maintained 
crossing data to the FRA Associate Administrator and to each operating 
railroad that operates through the crossing; and
    (2) Submits the requested State-maintained crossing data to the 
Crossing Inventory within 60 days of receipt.

0
5. In Sec.  234.407, revise paragraphs (a)(3), (b) and (d) to read as 
follows:


Sec.  234.407  Submission of initial data to the Crossing Inventory for 
new crossings.

    (a) * * *
    (3) Each primary operating railroad shall submit accurate Inventory 
Forms, or their electronic equivalent, to the Crossing Inventory for 
new highway-rail and pathway crossings through which it operates, no 
later than six (6) months after the crossing becomes operational. The 
Inventory Form, or its electronic equivalent, shall reference the 
assigned Inventory Number for the crossing(s) and shall be completed 
and submitted in accordance with Sec.  234.403.
    (b) Duty of Operating Railroad when operating railroads operate on 
separate tracks. For each new highway-rail and pathway crossing where 
operating railroads operate trains on separate tracks through the 
crossing, each operating railroad shall submit accurate crossing data 
specified in the Inventory Guide to the Crossing Inventory no later 
than six (6) months after the crossing becomes operational. The 
Inventory Form, or its electronic equivalent, which contains this 
crossing data shall reference the Inventory Number assigned to the 
crossing by the primary operating railroad and shall be completed and 
submitted consistent with Sec.  234.403 and the Inventory Guide.
* * * * *
    (d) State-maintained crossing data. If a primary operating railroad 
requests State-maintained crossing data from the appropriate State 
agency responsible for maintaining highway-rail and pathway crossing 
data, the primary operating railroad may send a copy of its written 
request for State-maintained crossing data to the FRA Associate 
Administrator and to each operating railroad that operates through the 
crossing. FRA will consider the written request to be an affirmative 
defense to potential liability for failure to timely submit an accurate 
Inventory Form, or its electronic equivalent, as required by paragraph 
(a)(3) of this section if the primary operating railroad:
    (1) Provides a copy of its written request for State-maintained 
crossing data to the FRA Associate Administrator and to each operating 
railroad that operates through the crossing no later than six (6) 
months after the crossing becomes operational; and
    (2) Submits the requested State-maintained crossing data to the 
Crossing Inventory within 60 days of receipt.

0
6. Revise Sec.  234.409 to read as follows:


Sec.  234.409  Submission of periodic updates to the Crossing 
Inventory.

    (a) Duty of primary operating railroad. Each primary operating 
railroad shall submit up-to-date and accurate crossing data to the 
Crossing Inventory for each highway-rail and pathway crossing (except 
for a grade-separated or closed highway-rail or pathway crossing) 
through which it operates, consistent with the Inventory Guide. Updated 
crossing data shall be submitted to the Crossing Inventory at least 
every three (3) years from the date of the most recent submission of 
data by the primary operating railroad (or on behalf of the primary 
operating railroad) for the crossing or August 9, 2016, whichever 
occurs later. For hard-copy submissions to Crossing Inventory, this 
three-year period shall be measured from mailing date of the most 
recent submission of data by the primary operating railroad (or on 
behalf of the primary operating railroad).
    (b) Duty of operating railroad when operating railroads operate on 
separate tracks. For each highway-rail and pathway crossing where 
operating railroads operate trains on separate tracks through the 
crossing, each operating railroad shall submit up-to-date and accurate 
crossing data for certain specified data fields on the Inventory Form, 
or its electronic equivalent, to the Crossing Inventory at least every 
three (3) years from the date of the most recent submission of data by 
that operating railroad (or on behalf of that operating railroad) for 
the crossing or August 9, 2016, whichever occurs later. For hard-copy 
submissions to Crossing Inventory, this three-year period shall be 
measured from mailing date of the most recent submission of data by the 
operating railroad (or on behalf of the operating railroad). The 
Inventory Form, or its electronic equivalent, shall be completed and 
submitted consistent with Sec.  234.403 and the Inventory Guide.

0
7. Revise Sec.  234.411 to read as follows:


Sec.  234.411  Changes requiring submission of updated information to 
the Crossing Inventory.

    (a) Crossing sale. (1) If a railroad that is not a primary 
operating railroad sells all or part of a highway-rail or pathway 
crossing on or after June 10, 2016, it shall report the crossing sale 
to the primary operating railroad within three (3) months of the date 
of sale.
    (2) If the primary operating railroad:
    (i) Sells all or part of a highway-rail or pathway crossing on or 
after June 10, 2016 for which it has reporting and updating 
responsibility under this subpart; or
    (ii) Is notified of the sale of all or part of a highway-rail or 
pathway crossing on or after June 10, 2016 under paragraph (a)(1) of 
this section, then the primary operating railroad shall submit an 
Inventory Form, or its electronic equivalent, which reflects the 
crossing sale to the Crossing Inventory consistent with Sec.  234.403 
and the Inventory Guide within three (3) months of the date of sale or 
three months of notification, respectively.
    (b) Crossing closure. The primary operating railroad shall report 
the closure of any highway-rail or pathway crossing that occurs on or 
after June 10, 2016 to the Crossing Inventory within three (3) months 
of the date on which the crossing is closed. The primary operating 
railroad shall submit an Inventory Form, or its electronic equivalent, 
that reflects closure of the crossing to the Crossing Inventory 
consistent with Sec.  234.403 and the Inventory Guide.
    (c) Changes in crossing characteristics. (1) The primary operating 
railroad shall report any change in crossing surface or change in 
warning device at a public highway-rail grade crossing that occurs on 
or after June 10, 2016 to the Crossing Inventory within three (3) 
months of the date of the change. The primary operating railroad shall 
submit an Inventory Form, or its electronic equivalent, that reflects 
up-to-date and accurate crossing data for the crossing (including the 
change in crossing surface or change in warning device) to the Crossing 
Inventory consistent with Sec.  234.403 and the Inventory Guide.
    (2) For purposes of this subpart, a ``change in warning device'' 
means the addition or removal of a crossbuck, yield or stop sign, 
flashing lights, or gates at a public highway-rail grade

[[Page 37534]]

crossing. The installation of a crossbuck, yield or stop sign, flashing 
lights, or gates that will be in place for less than six months does 
not constitute a ``change in warning device'' for purposes of this 
subpart.

0
8. The heading of Sec.  234.413 is revised to read as follows:


Sec.  234.413  Recordkeeping.

* * * * *

0
9. In Appendix A to Part 234, place the entry for subpart F in 
alphabetical order, and revise the entries under subpart F to read as 
follows:

         Appendix A to Part 234--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
    Subpart F--Highway-Rail and Pathway Crossing Inventory Reporting
------------------------------------------------------------------------
Sec.   234.403 Submission of data to the
 Crossing Inventory:
    (b) Failure to complete Inventory             $1,000          $2,000
     Form (or electronic equivalent) in
     accordance with the Inventory Guide
    (c) Class I railroad failure to                1,000           2,000
     submit crossing data to the
     Crossing Inventory electronically..
Sec.   234.405 Submission of initial
 data to the Crossing Inventory for
 previously unreported crossings
    (a) Primary operating railroad                 2,500           5,000
     failure to timely submit an
     accurate Inventory Form (or
     electronic equivalent) to the
     Crossing Inventory for previously
     unreported crossing................
    (b) Operating railroad failure to              2,500           5,000
     timely submit accurate partial
     crossing data to the Crossing
     Inventory for previously unreported
     crossing...........................
    (c) Operating railroad failure to              1,000           2,000
     provide written notification to FRA
     that the primary operating railroad
     failed to timely report previously
     unreported crossing................
Sec.   234.407 Submission of initial
 data to the Crossing Inventory for new
 crossings:
    (a) Primary operating railroad                 2,500           5,000
     failure to timely submit an
     accurate Inventory Form (or
     electronic equivalent) to the
     Crossing Inventory for new crossing
    (b) Operating railroad failure to              2,500           5,000
     timely submit accurate partial
     crossing data to the Crossing
     Inventory for new crossing.........
    (c) Operating railroad failure to              1,000           2,000
     provide written notification to FRA
     that the primary operating railroad
     failed to timely report new
     crossing...........................
Sec.   234.409 Submission of periodic
 updates to the Crossing Inventory:
    (a) Primary operating railroad                 2,500           5,000
     failure to timely submit up-to-date
     and accurate crossing data to the
     Crossing Inventory for highway-rail
     or pathway crossing................
    (b) Operating railroad failure to              2,500           5,000
     timely submit up-to-date and
     accurate partial crossing data to
     the Crossing Inventory for highway-
     rail or pathway crossing...........
Sec.   234.411 Changes requiring
 submission of updated information to
 the Crossing Inventory:
    (a) Failure to timely report                   2,500           5,000
     crossing sale to the Crossing
     Inventory..........................
    (b) Primary operating railroad                 2,500           5,000
     failure to timely report crossing
     closure to the Crossing Inventory..
    (c) Primary operating railroad                 2,500           5,000
     failure to timely submit up-to-date
     and accurate crossing data to the
     Crossing Inventory after change in
     crossing characteristics...........
Sec.   234.413 Recordkeeping............           1,000           2,000
Sec.   234.415 Electronic Recordkeeping.           1,000           2,000
------------------------------------------------------------------------
\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.


    Issued in Washington, DC, on May 20, 2016, under the authority 
set forth in 49 CFR 1.89(b).
Sarah E. Feinberg,
Administrator.
[FR Doc. 2016-13516 Filed 6-9-16; 8:45 am]
 BILLING CODE 4910-06-P