[Federal Register Volume 77, Number 202 (Thursday, October 18, 2012)]
[Proposed Rules]
[Pages 64077-64093]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25623]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2011-0007, Notice No. 1]
RIN 2130-AC26


National Highway-Rail Crossing Inventory Reporting Requirements

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to require railroads to submit information to 
the U.S. DOT National Highway-Rail Crossing Inventory about highway-
rail crossings and pathway crossings over which they operate. These 
amendments, which are required by the Rail Safety Improvement Act of 
2008 (RSIA), would require railroads to submit information about 
previously unreported and new public and private highway-rail crossings 
and pathway crossings to the U.S. DOT National Highway-Rail Crossing 
Inventory and to periodically update the Inventory.

DATES: Written comments must be received by December 17, 2012. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay. FRA anticipates being 
able to resolve this rulemaking without a public hearing. However, if 
FRA receives a specific request for a public hearing prior to November 
19, 2012, a hearing will be scheduled and FRA will publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.
    FRA intends to hold a technical symposium during this comment 
period, in order to facilitate discussion on the technical implications 
associated with the electronic submission of data to the Crossing 
Inventory. The date and location of the technical symposium will be 
announced through issuance of a separate notice in the Federal 
Register.

ADDRESSES: Interested parties may submit comments identified by docket 
number FRA-2011-0007 by any of the following methods:
     Fax: 202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590;

[[Page 64078]]

     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Online: Comments may be filed through the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identifier Number (RIN) for this 
rulemaking (2130-AC26). Note that all comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading in the 
SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background
III. History of the U.S. DOT National Highway-Rail Crossing 
Inventory Program
IV. Proposed Revisions to Inventory Guide and Inventory Form
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is proposing amendments to 49 CFR Part 234 which would require 
railroads to submit information to the U.S. DOT National Highway-Rail 
Crossing Inventory (Crossing Inventory) about both public and private 
highway-rail crossings and pathway crossings over which they operate. 
These proposed amendments are intended to further FRA's efforts to 
improve existing data on the characteristics of the Nation's public, 
private, and pathway crossings and are intended to implement section 
204(a) of the RSIA. Consistent with the statute, FRA is proposing to 
require that railroads submit initial reports to the Crossing 
Inventory, including current information about warning devices and 
signage, for each previously unreported and new public and private 
highway-rail crossing and pathway crossing, and that railroads 
periodically update that information, including the submission of 
updated ownership information after the sale of a crossing.
    FRA has estimated the costs of this rule, evaluated over a 20-year 
period and using a discount rate of 7 percent. For the 20-year period 
analyzed, the estimated quantified cost that would be imposed on 
industry totals $2.1 million with a present value (PV, 7 percent) of 
$1.5 million. FRA considered the industry costs associated with 
requiring railroads to establish and maintain an inventory for all 
public and private highway-rail crossings and pathway crossings. Many 
railroads have already implemented components of the proposed rule. FRA 
estimates that as many as 50 percent of all highway-rail crossings are 
currently updated in the Crossing Inventory. The requirements that are 
expected to impose the largest burdens relate to the collection of 
recent information and to the periodic update of the inventory.
    The table below presents the estimated costs associated with the 
proposed rulemaking.

                     20-Year Cost for Proposed Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Initial Update of Inventory................................     $874,280
Periodic Update of Inventory...............................      646,856
                                                            ------------
  Total....................................................    1,521,136
------------------------------------------------------------------------
Future costs are discounted to present value using a 7 percent discount
  rate.

    FRA anticipates that this rulemaking will increase the accuracy, 
precision, completeness, and utility of railroad records and will 
improve the Crossing Inventory. This would allow FRA to identify 
highway-rail crossings and pathway crossings not currently recorded in 
the existing voluntary crossing inventory. FRA believes that such 
clarification in the inventory would help offset costs associated with 
the rulemaking by simplifying the reporting process. FRA conducted a 
break-even analysis of the rule and believes that potential benefits 
from the proposal would likely equal or exceed total costs.

II. Statutory Background

    The proposed rule is intended specifically to implement Section 
204(a) of RSIA, Public Law 110-432, Division A, which was enacted 
October 16, 2008, and generally to increase safety at highway-rail 
crossings and pathway crossings. See 49 U.S.C. 20160. (National 
crossing inventory). Section 20160 of title 49 of the United States 
Code (Section 20160) requires the Secretary of Transportation 
(Secretary) to establish reporting requirements for railroad carriers 
related to public and private highway-rail grade crossings and pathway 
crossings. Specifically, Section 20160 mandates that the Secretary 
issue regulations requiring railroad carriers to report certain 
information, including current information about warning devices and 
signage, related to new and previously unreported public, private, and 
pathway crossings to the Crossing Inventory. In addition, Section 20160 
mandates that the Secretary issue regulations requiring railroad 
carriers to periodically update certain information submitted to the 
Secretary about public, private, and pathway crossings through which 
they operate or public, private, and pathway crossings that are located 
on trackage over which they operate. In accordance with Section 20160, 
additional updates would also be required, pursuant to such 
regulations, whenever a railroad carrier sells all, or a portion of, a 
public, private, or pathway crossing. However, until these implementing 
regulations are issued, Section 20160 provides that the Secretary may 
enforce the Crossing Inventory policy, procedures, and instructions 
that were in effect on October 16, 2008. The Secretary delegated the 
responsibility for carrying out the mandates of Section 20160 to the 
FRA Administrator. 49 CFR 1.49(oo).

III. History of the Crossing Inventory Program

    In August 1972, the U.S. Department of Transportation (DOT) 
submitted a Report to Congress entitled, ``Railroad-

[[Page 64079]]

Highway Safety Part II: Recommendations for Resolving the Problem.'' 
The primary goal of this report was to provide recommendations for 
actions that would lead to a significant reduction in accidents, 
fatalities, personal injuries, and property damage at highway-rail 
crossings. In this Report to Congress, DOT recommended the 
establishment of an information system consisting of a national 
database of all highway-rail crossings in the Nation. Although various 
local, State, and Federal agencies had collected and maintained 
information about highway-rail crossings, most information systems or 
databases were fragmented and incomplete because all information was 
submitted on a voluntary basis. However, site-specific information was 
needed to provide for a systematic approach for the planning and 
evaluation of highway-rail crossing safety improvement programs at both 
the State and Federal level.
    Therefore, DOT recommended that the FRA: (1) Issue requirements for 
the railroads to assign and display identification numbers at all 
highway-rail crossings based on a uniform national standard to be 
prescribed by DOT, (2) arrange with the railroads to provide site-
specific inventory data for all crossings on their respective lines, 
and (3) update the inventory periodically by following the procedures 
and standards established jointly by FRA and the Federal Highway 
Administration (FHWA) in conjunction with railroad and State 
representatives.
    In accordance with these recommendations, the Crossing Inventory 
was developed in the early 1970s through the cooperative efforts of 
FHWA, FRA, the Association of American Railroads, individual States, 
and individual railroads. Each highway-rail crossing was surveyed--
public and private, grade-separated and at-grade--and data was recorded 
on an inventory form. The resulting inventory contained data on the 
location of the crossing, the amount and type of highway and train 
traffic, traffic control devices, and other physical elements of the 
crossing.
    As a result of these efforts, the Crossing Inventory has become a 
national database of highway-rail crossings, both at-grade and grade-
separated, that is used by railroads, States, and others to obtain 
information about the physical and operating characteristics of 
individual crossings. The Crossing Inventory is intended to provide a 
uniform inventory database which can be merged with highway-rail 
crossing collision files and used to analyze information for planning 
and implementation of crossing improvement programs by public and 
private agencies responsible for highway-rail crossing safety, as well 
as the railroad industry and academia. However, in order for the 
Crossing Inventory to serve as an effective database, States and 
railroads need to exchange information with each other and promptly 
update the crossing data records as changes occur. Therefore, FRA has 
historically acted as a clearinghouse for the exchange of crossing data 
between these entities.
    The Crossing Inventory receives information from individual 
railroads and States to form a composite record for each crossing. This 
composite record has many purposes, as it can be used to predict the 
likelihood of an accident at a specific crossing. Armed with this 
information, States, law enforcement organizations, the Federal 
Government, and others can focus their efforts on crossings that have a 
high risk of collisions and implement measures, such as improved 
warning systems, enhanced enforcement, and community awareness.
    As with any information system from which decisions are made, the 
incorporation of accurate and timely data into the Crossing Inventory 
is key. If the data is suspect, then verification is usually required 
before resources may be committed. Verification requires additional 
resources and may delay the implementation of improvements that could 
reduce the probability of a collision. Therefore, an instructions and 
procedures manual (commonly referred to as the ``Inventory Guide'') was 
issued and then revised over the years, as changes were made to the 
inventory form, in order to establish procedures for submitting data to 
the Crossing Inventory.

IV. Proposed Revisions to Inventory Guide and Inventory Form

    As part of this rulemaking, FRA proposes to make certain revisions 
to the existing Inventory Guide and to the existing Form FRA F 6180.71, 
which is used to report data to the Crossing Inventory (and is commonly 
referred to as the ``Inventory Form''). The Inventory Guide and the 
Inventory Form have been placed in the docket for public review. For 
example, FRA proposes to require railroads to complete the entire 
Inventory Form for previously unreported and new public crossings, in 
order to satisfy the legislative intent of Section 20160 to improve the 
Crossing Inventory by obtaining critical data for public crossings. 
Most of the remaining changes proposed have, however, resulted from 
ongoing discussions with Crossing Inventory subject matter experts 
representing a wide array of crossing safety stakeholders over several 
years. Nonetheless, FRA seeks comments on the draft revised Inventory 
Form (Draft Inventory Form) and draft revised Inventory Guide (Draft 
Guide), both of which have been placed in the docket, from all 
interested parties.
    FRA proposes to pare down the Inventory Guide to focus primarily on 
providing instructions for completing the Inventory Form. With respect 
to the Draft Guide, FRA specifically seeks comment on the following 
items:
     With respect to the Instructions provided in the Header of 
the Draft Inventory Form, FRA seeks comment on whether the proposed 
Instructions are helpful and should be retained. It should be noted, 
however, that FRA intends to remove the incorrect mailing address that 
is provided in the proposed Instructions.
     With respect to item C in the Header of the Draft 
Inventory Form, Reason for Update, FRA seeks comment on whether 
railroads and States should be given the option to select more than one 
reason for submitting data to the Crossing Inventory. With respect to 
this item, FRA also seeks comment on whether a separate category should 
be retained for crossings that are located on an abandoned segment of 
track since the abandoned status of the underlying track segment may 
not necessarily determine whether the crossing is still in use.
     With respect to item D in the Header of the Draft 
Inventory Form, DOT Crossing Inventory Number, FRA seeks comment on 
whether the current practice of allowing railroads to assign a single 
Inventory Number to a group of crossings in a railroad yard or an area 
belonging to a private company, a port, or a dock area should be 
retained.
     With respect to items 17 and 18 in Part I of the Draft 
Inventory Form, box 17 (Crossing Type) has been revised by removing the 
category for pedestrian crossings, in order to draw a clear distinction 
between public and private crossings. However, box 18 (Crossing 
Purpose) has been added to the Draft Inventory Form, so that railroads 
and States can identify highway-rail crossings, pedestrian crossings 
located within railway stations and other pedestrian/pathway crossings. 
FRA seeks comment on the proposed change to box 17, and the addition of 
box 18, on the Draft Inventory Form.
     With respect to item 4 in Part II of the Draft Inventory 
Form, Type and Number of Tracks, FRA seeks comment on the definitions 
provided for the various types of track listed, including

[[Page 64080]]

the definition for ``spur/lead'' track. Are spur/lead tracks generally 
used for storage purposes?
     With respect to item 5 in Part II of the Draft Inventory 
Form, Train Detection, FRA seeks comment on whether it would be 
advisable to collect data on the number of tracks that are equipped 
with the various types of train detection.
     With respect to item 2D in Part III of the Draft Inventory 
Form, Advance Warning Signs, FRA seeks comment on whether the Inventory 
Form should reflect the actual number of signs posted at the crossing, 
as opposed to the number of posts or masts bearing advance warning 
signs.
     With respect to the various types of train-activated 
warning devices listed in item 3 in Part III of the Draft Inventory 
Form, FRA seeks comment on whether railroads should be required to 
submit interim updates to the Crossing Inventory after implementation 
of one or more of each type of warning device.
     With respect to item 3A in Part III of the Draft Inventory 
Form, Gate Arms, FRA seeks comment from all interested parties on 
whether States should be assigned the responsibility for updating this 
data field.
     With respect to item 3D in Part III of the Draft Inventory 
Form, Post-Mounted Flashing Light Assemblies, FRA seeks comment on 
whether the Inventory Form should be revised to reflect the presence of 
side lights that might also have been installed on the post-mounted 
flashing light assemblies for the benefit of highway users on an 
approaching parallel roadway.
     With respect to item 3F in Part III of the Draft Inventory 
Form, Original Installation Date of Current Active Warning Devices, FRA 
seeks comment from all interested parties on whether the Crossing 
Inventory should collect data on the installation date of active 
warning devices that will be installed after the effective date of any 
regulation that may be issued through this rulemaking effort.
     With respect to item 2 in Part V of the Draft Inventory 
Form, Functional Classification of Road at Crossing, FRA seeks comment 
on whether the ``Local Access'' functional classification code should 
be changed to ``Local'', in order to be consistent with the official 
functional classification codes that are contained in the FHWA's 
Highway Performance Monitoring System (HPMS) Manual.
     With respect to item 10 in Part V of the Draft Inventory 
Form, Regularly used by Hazmat Vehicles, FRA seeks comment on how to 
define ``regular use'' of crossings by vehicles transporting hazardous 
materials in commerce.
     With respect to item 11 in Part V of the Draft Inventory 
Form, Regular Emergency Services Route, FRA seeks comment on how the 
term ``regular emergency services route'' should be defined.

A copy of the Draft Guide and a Draft Inventory Form have been placed 
in the docket for this rulemaking and FRA seeks comment on their 
content. With respect to the Draft Guide, FRA specifically seeks 
comment on the proposed Crossing Inventory Responsibility Table in 
Appendix B, which assigns responsibility for updating specific data 
fields on the Draft Inventory Form to either the State or Railroad.

V. Section-by-Section Analysis

Section 234.1 Scope

    FRA proposes to expand part 234 to include a new subpart F, 
entitled: Highway-Rail Crossing Inventory Reporting. For this reason, 
FRA proposes to revise paragraph (a) of this section by including a 
reference to the proposed Crossing Inventory reporting and updating 
requirements for railroads.

Subpart F--Highway-Rail Crossing Inventory Reporting

Section 234.401 Definitions

    This section contains proposed definitions of terms used in this 
subpart, listed alphabetically. Additional explanation for some of the 
proposed definitions is provided below.
    ``Class I'' would have the meaning assigned by regulations of the 
Surface Transportation Board (STB), which may be found at 49 CFR part 
1201, General Instructions 1-1, Classification of carriers. To ensure 
that the definition of ``Class I'' as used in this proposed subpart 
incorporates any changes that the STB may make after the publication of 
this subpart, this definition would include any revision to the 
regulations as applied by the STB, which would include modifications in 
the class threshold based on revenue deflator adjustments.
    Consistent with Section 20160's definition of ``crossing'', 
``highway-rail crossing'' would be defined to mean the location where 
one or more railroad tracks intersect with a public highway, road, 
street, or private roadway, including associated sidewalks and 
pathways, either at-grade or grade-separated. For purposes of the 
Crossing Inventory, railroad tracks that lie within the same pair of 
crossing warning devices will be considered a single highway-rail 
crossing. For example, an intersection of a roadway with three tracks 
(e.g., two mainline and one spur) where the mainline tracks are 
equipped with flashing lights and the spur track is equipped with 
crossbucks would be considered, for purposes of the Crossing Inventory, 
two crossings with two separate crossing inventory numbers. One 
highway-rail crossing would consist of the mainline tracks that lie 
between the flashing lights, while the other highway-rail crossing 
would consist of the spur track which is equipped with crossbucks.
    ``Operating railroad'' would be defined to mean any railroad that 
operates one or more trains through a highway-rail crossing or pathway 
crossing. Thus, for purposes of this subpart, a railroad would be 
considered an operating railroad even if the railroad does not own the 
highway-rail crossing or pathway crossing through which it travels, or 
the railroad is not responsible for maintaining the warning devices at 
the highway-rail or pathway crossing. As this definition implies, there 
may be multiple operating railroads for a single highway-rail crossing 
or pathway crossing.
    Consistent with Section 20160, a ``pathway crossing'' would be 
defined to mean a pathway that has all of the following 
characteristics: (1) Is explicitly authorized by a public authority or 
an operating railroad; (2) is dedicated for the use of non-vehicular 
traffic, including pedestrians, bicyclists, and others; (3) is not 
associated with a public highway, road, or street, or a private 
roadway; and (4) that crosses one or more railroad tracks either at 
grade or grade-separated. However, an area where pedestrians trespass, 
even routinely, is not considered to be a pathway crossing.
    Pathways that are contiguous with, or separate but adjacent to, 
highway-rail crossings are presumed to be part of the highway-rail 
crossing and are not considered separate crossings. However, pathways 
that are located at least 25 feet from the location where a highway, 
road, or street intersects with one or more railroad tracks are 
generally considered to be separate pathway crossings. Accordingly, 
separate Inventory Numbers should be assigned to such crossings. (The 
proposed rule defines ``Inventory Number'' as ``the number assigned to 
a highway-rail crossing or pathway crossing in the Crossing 
Inventory'').
    ``Primary operating railroad'' would be defined to mean the 
operating railroad responsible for submitting data to, and/or updating 
data in, the Crossing Inventory for a particular highway-rail crossing 
or pathway crossing. Generally,

[[Page 64081]]

the primary operating railroad would be the operating railroad that 
owns the highway-rail crossing (or pathway crossing) or maintains the 
warning devices at the highway-rail crossing (or pathway crossing). In 
the event that there is more than one operating railroad that owns the 
highway-rail crossing (or pathway crossing) or maintains the warning 
devices at the highway-rail crossing (or pathway crossing), the largest 
operating railroad with the most rail traffic over the crossing at 
issue should accept the primary operating railroad designation. Absent 
an agreement between or among operating railroads delineating each 
railroad's respective reporting and/or updating responsibilities 
pursuant to the requirements set forth in proposed Sec.  234.405, FRA 
proposes to hold each operating railroad liable for the reporting and 
updating requirements set forth in this subpart.
    ``Private crossing'' would be defined to mean a highway-rail 
crossing that is not a public crossing. Therefore, private crossings 
would include intersections of roadways and railroads that are not open 
to public travel or not maintained by a public authority. Typical types 
of private crossings include farm crossings, industrial plant 
crossings, and residential access crossings.
    ``Public crossing'' would be defined to mean a highway-rail 
crossing where the roadway is under the jurisdiction of and maintained 
by a public authority and open to public travel. All roadway approaches 
must be under the jurisdiction of the public roadway authority and no 
roadway approach may be on private property. FRA acknowledges that this 
proposed definition contains different criteria for determining the 
public nature of a highway-rail crossing than the existing definition 
of ``public highway-rail grade crossing'', contained in 49 CFR part 222 
related to the use of locomotive horns and quiet zones. However, this 
proposed definition is consistent with the definition of the term 
``public grade crossing'' in 23 CFR 924.3, which is widely used by 
States for Highway Safety Improvement Program planning and funding 
purposes. Based on the generally accepted usage of this definition by 
States, FRA believes it is logical to use this definition for Crossing 
Inventory reporting purposes as well.
    With respect to crossings in States where a State agency (such as a 
State Department of Transportation, State Highway Department, Public 
Utility Commission, or State Commerce Commission) has been empowered to 
make determinations as to whether individual crossings are public or 
private, the determinations of that State agency will govern the 
public/private classification of highway-rail crossings in the State 
for purposes of the Crossing Inventory.
    ``Temporary crossing'' would be defined to mean a highway-rail 
crossing created to serve a specific activity for a temporary time 
period not to exceed six months. For example, highway-rail crossings 
that provide access to construction sites would fall into this 
category. Given their temporary nature, Inventory Numbers are not 
assigned to temporary crossings and FRA is not proposing to require 
railroads to report such crossings to the Crossing Inventory.

Section 234.403 Submission of Data to the Crossing Inventory, Generally

    Proposed paragraph (a) of this section would require use of the 
Inventory Form to submit data to the Crossing Inventory, in accordance 
with the requirements of proposed Sec.  234.405. Prior to the effective 
date of this subpart, FRA will continue to accept hard copy submissions 
of the current Inventory Form from all railroads and States. However, 
as of the effective date of any final rule issued as a result of this 
rulemaking effort, FRA proposes to allow only Class II and Class III 
railroads, as well as States, to either use the Draft Inventory Form (a 
draft form has been placed in the docket for review and comment) or to 
submit data electronically to the Crossing Inventory. Proposed 
instructions for submitting hard copies of the Inventory Form can be 
found in the Draft Guide, while proposed instructions for submitting 
data electronically to the Crossing Inventory can be found in the draft 
Electronic Submission Instructions. The Draft Guide and the draft 
Electronic Submission Instructions have been placed in the public 
docket for this rulemaking. FRA seeks comment on the content of both of 
these documents.
    As explained in the Draft Guide, FRA intends to discontinue use of 
the GX32 software program for submitting electronic data to the 
Crossing Inventory. FRA proposes to replace the GX32 software program 
with a secure web-based application. FRA also proposes to allow 
railroads and states to use multiple submission formats (.xml, .mdb, 
.xls, and .xlsx), in addition to the web-based application. (Please 
refer to the draft Electronic Submission Instructions that have been 
placed in the public docket for more information.) Since FRA proposes 
to require that Class I railroads submit crossing data to the Crossing 
Inventory electronically, Class I railroads would need to make the 
necessary adjustments to their existing electronic data systems in 
order to facilitate compatibility with the proposed electronic file 
formats and data specifications contained in the draft Electronic 
Submission Instructions. Therefore, FRA intends to hold a technical 
symposium during this NPRM's comment period for all interested parties, 
particularly those involved in the technical aspects of the actual 
electronic submission of data to the Crossing Inventory, to discuss the 
technical implications of using only these formats (.xml, .mdb, .xls, 
and .xlsx). FRA will publish a separate notice in the Federal Register 
providing the logistics of such a meeting once the details are 
finalized. The proposed changes include changes to the content of the 
form (new field and expanded codes) and to the specified type of file 
allowed for submission.
    Proposed paragraph (b) of this section would require completion of 
the Inventory Form, in accordance with the instructions contained 
within the Draft Guide. As explained in the Draft Guide, one Inventory 
Form should be submitted to the Crossing Inventory for each public, 
private or pathway crossing. The Draft Guide contains exceptions to 
this general rule related to crossings located in railroad yards or 
areas belonging to private companies, ports, or dock areas and 
crossings located within railroad stations. Where there is more than 
one crossing in a railroad yard or a private railroad yard belonging to 
a private company, a port, or a dock area, the primary operating 
railroad may choose to submit one Inventory Form that would assign one 
Inventory Number to all (or a group) of the crossings within the 
private property limits. Alternatively, the primary operating railroad 
may submit one Inventory Form that would assign one Inventory Number to 
each individual crossing located within private property limits. (See 
Draft Guide discussion of item D in the Header of the Draft Inventory 
Form, DOT Crossing Inventory Number.) FRA believes this approach is 
consistent with current generally accepted practice in the industry, 
but seeks comment on whether this exception should be retained, as the 
decision to assign one Inventory Number to a group of crossings instead 
of a single crossing cannot be revised once the Inventory Number has 
been assigned.
    The Draft Guide contains a similar exception for multiple pathway 
crossings that are contained within a railroad station. Therefore, the 
primary operating railroad may choose to submit one Inventory Form that 
would assign

[[Page 64082]]

one Inventory Number to all (or a group) of the pathway crossings at a 
railway station. Alternately, the primary operating railroad may submit 
one Inventory Form that would assign one Inventory Number to each 
individual pathway crossing located within a railroad station. FRA also 
seeks comment on this proposed exception.
    Paragraph (c) proposes to require Class I railroads to submit all 
crossing data to the Crossing Inventory electronically. Since most 
Class I railroads already submit crossing data to the Crossing 
Inventory electronically, FRA does not believe that this proposed 
requirement would be unduly burdensome. In accordance with paragraph 
(a) of this section, Class II and Class III railroads, as well as 
States, may choose to submit their crossing data to the Crossing 
Inventory electronically or submit hard copies of the Inventory Form. 
An explanation of the proposed file formats and data specifications can 
be found in the draft Electronic Submission Instructions, a copy of 
which has been placed in the docket for review and comment by all 
interested parties. FRA seeks comment as to whether additional 
railroads should be required to submit crossing data to the Crossing 
Inventory electronically.
    As noted above, FRA intends to discontinue use of the GX32 software 
product, which currently allows States and railroads to submit revised 
data to the Crossing Inventory electronically through use of a computer 
disk or the Internet. FRA intends to discontinue use of the GX32 
software and replace it with a secure web-based application that 
provides similar functionality, yet facilitates instantaneous updates 
to crossing data. Therefore, any pending changes using GX32 software 
would need to be submitted prior to implementation of the web-based 
system. FRA also intends to transition the official Crossing Inventory 
database to the new web-based application. Therefore, railroads that 
are currently using the GX32 software product to submit crossing data 
electronically to the Crossing Inventory or who are submitting data 
electronically via other means would be required to make adjustments to 
their existing electronic data systems to ensure such systems will work 
with the revised Crossing Inventory database. Accordingly, FRA seeks 
comment as to the feasibility of Class I railroads being able to make 
the necessary adjustments to their existing electronic data systems (or 
to develop new electronic data systems) that would allow for compliance 
with the draft Electronic Submission Instructions, as well as 
compliance with the timeframes proposed in Sec.  234.405 for reporting 
previously unreported and new highway-rail crossings and pathway 
crossings.
    As noted above, FRA intends to hold a technical symposium during 
this NPRM's comment period for all interested parties, particularly 
those involved in the actual electronic submission of data to the 
Crossing Inventory, to discuss the technical implications of using only 
certain specified submission formats (.xml, .mdb, .xls, and .xlsx). FRA 
will publish a separate notice in the Federal Register providing the 
logistics of such a meeting once the details are finalized.

Section 234.405 Submission of Initial Data and Periodic Updates to the 
Crossing Inventory

    Proposed paragraph (a) of this section would require the submission 
of data to the Crossing Inventory for previously unreported crossings. 
Specifically, proposed paragraph (a)(1) is intended to implement 
paragraph (a)(1) of Section 20160, which requires railroad carriers to 
report to the Secretary ``current information, including information 
about warning devices and signage * * * concerning each previously 
unreported crossing through which it operates or with respect to the 
trackage over which it operates.'' Proposed paragraph (a)(1) would 
require that each primary operating railroad submit a completed 
Inventory Form (or its electronic equivalent) to the Crossing 
Inventory, in accordance with proposed Sec.  234.403, for each 
previously unreported public, private, and pathway crossing through 
which it operates no later than six months after the effective date of 
any final rule implementing this requirement. This requirement would 
apply to previously unreported at-grade and grade-separated crossings, 
but would not apply to temporary crossings. For purposes of proposed 
paragraph (a) of this section, ``previously unreported'' crossings 
would be public, private, and pathway crossings that have not been 
reported to the Crossing Inventory as of the effective date of any 
final rule implementing this requirement.
    Proposed paragraph (a)(1) would further require that the completed 
Inventory Form (or its electronic equivalent) reference the assigned 
Inventory Number for the crossing. If the primary operating railroad 
does not already have an Inventory Number that can be assigned to a 
previously unreported crossing, an Inventory Number will need to be 
obtained for the crossing. Instructions for obtaining an Inventory 
Number can be found in the Draft Guide. Once an Inventory Number has 
been placed on an Inventory Form (or its electronic equivalent) and 
submitted to the Crossing Inventory, the Inventory Number will be 
permanently assigned to the crossing.
    Historically, since submission of crossing information to the 
Crossing Inventory was voluntary, the primary operating railroad would 
submit a partially completed copy of the Inventory Form to the 
applicable State authority, so that the State authority could provide 
the remaining data and submit the completed Inventory Form to the 
Crossing Inventory for processing. Given existing constraints on the 
scope of FRA's statutory authority, this NPRM does not propose to 
require States to submit crossing information to the Crossing 
Inventory. While FRA would encourage State agencies to participate 
fully in the submission of updated information to the Crossing 
Inventory, FRA has refrained from proposing regulatory language that 
would require railroads to submit copies of their Inventory Forms to 
the applicable State authorities for completion. However, this proposed 
rule would require railroads to complete data fields on the Inventory 
Form that have historically been completed by State authorities for 
each previously unreported public highway-rail at-grade crossing in 
order to satisfy the legislative intent of Section 20160 to improve the 
Crossing Inventory by obtaining critical data for public crossings. FRA 
expects that railroads will seek input from State authorities with 
respect to certain data fields. FRA seeks comment on this proposal.
    Therefore, as stated in proposed paragraph (a) of this section, as 
well as the Draft Guide, railroads would be required to obtain 
Inventory Numbers from FRA and to assign a specific Inventory Number to 
each previously unreported public, private, or pathway crossing (unless 
the proposed exception for multiple crossings located in railroad 
yards, within railway stations, or areas belonging to private 
companies, ports, or dock areas would be applicable). Railroads would 
then be required to provide information for all of the data fields on 
the Inventory Form for each previously unreported public highway-rail 
at-grade crossing and to submit the completed Inventory Form (or its 
electronic equivalent) to the Crossing Inventory no later than six 
months after the effective date of any final rule that may be issued as 
a result of this rulemaking. In accordance with generally accepted 
practice, however, railroads would only be required to provide 
information for the data fields in the Header and Part I of the Draft

[[Page 64083]]

Inventory Form for previously unreported private highway-rail 
crossings, pathway crossings, and grade-separated crossings. FRA has 
not historically collected data associated with Parts II-V of the 
Inventory Form for these crossings.
    Proposed paragraph (a)(2) of this section would require operating 
railroads, other than the primary operating railroad, to confirm that a 
completed Inventory Form (or its electronic equivalent) was timely 
submitted to the Crossing Inventory in accordance with proposed 
paragraph (a)(1) of this section. If the operating railroad discovers 
that one or more previously unreported public, private or pathway 
crossings (except a temporary crossing) over which it operates was not 
timely reported to the Crossing Inventory, proposed paragraph (a)(2) of 
this section would require that the operating railroad provide written 
notification of the unreported crossing to the FRA Associate 
Administrator for Railroad Safety/Chief Safety Officer (Associate 
Administrator). This provision is being proposed in order to implement 
49 U.S.C. 20160(a)(2), which requires railroad carriers to ``ensure 
that the [current information, including information about warning 
devices and signage, concerning each previously unreported crossing] 
has been reported to the Secretary by another railroad carrier that 
operates through the crossing.''
    At a minimum, the proposed written notification requirement 
contained in paragraph (a)(2) of this section would require operating 
railroads to provide the latitudinal and longitudinal coordinates for 
each previously unreported public, private, or pathway crossing for 
which a completed Inventory Form (or its electronic equivalent) was not 
timely submitted to the Crossing Inventory. While State agencies have 
historically submitted latitudinal and longitudinal coordinates to the 
Crossing Inventory, railroads provide this data to FRA for rail-
equipment train accident reporting purposes. Therefore, FRA believes 
that this proposed requirement will not be unduly burdensome. FRA seeks 
comment on this proposal.
    FRA proposes to hold each operating railroad liable, including the 
primary operating railroad, for each unreported public, private, and 
pathway crossing for which written notification was not timely provided 
to the FRA Associate Administrator, in accordance with proposed 
paragraph (a)(2) of this section. However, in order to facilitate 
compliance with this proposed requirement, FRA proposes to establish an 
automated FRA email notification system that would notify participating 
States and railroads whenever public, private, or pathway crossings are 
added to the Crossing Inventory. FRA seeks comment from all interested 
parties on whether this proposed notification system would be useful.
    Proposed paragraph (a)(3) of this section would allow an entity 
other than the primary operating railroad to submit a completed 
Inventory Form (or its electronic equivalent) to the Crossing Inventory 
for one or more previously unreported public, private, or pathway 
crossings, in order to satisfy the proposed reporting requirements 
contained in paragraph (a)(1) of this section. This proposed provision 
is intended for use by State agencies with jurisdiction over the 
previously unreported crossings that may wish to submit crossing data 
to the Crossing Inventory on behalf of the primary operating railroad.
    In the event that an entity other than the primary operating 
railroad would like to submit crossing data to the Crossing Inventory 
on behalf of the primary operating railroad, proposed paragraph (a)(3) 
of this section would require that the reporting entity and the primary 
operating railroad provide written notification to the Associate 
Administrator of the entity assuming reporting responsibility. Proposed 
paragraph (a)(3) of this section would further require that any such 
notification must contain positive identification of the locations that 
will be covered.
    Proposed paragraph (a)(3) of this section is not, however, intended 
to allow the primary operating railroad to completely transfer its 
responsibility for timely compliance with the proposed reporting 
requirements of paragraph (a)(1) of this section to the reporting 
entity. Therefore, FRA reserves the right to hold the primary operating 
railroad, as well as the reporting entity liable, as appropriate, for 
failure to timely comply with the reporting requirements of paragraph 
(a)(1) of this section. Other operating railroads could potentially 
also be held liable for the failure to comply with the reporting 
requirements of paragraph (a)(1) of this section, if they fail to 
provide written notification of the unreported crossing in accordance 
with paragraph (a)(2) of this section.
    Proposed paragraph (b) of this section would require the submission 
of data to the Crossing Inventory for new public and private highway-
rail crossings and pathway crossings, including new grade-separated 
crossings. For purposes of this paragraph, ``new'' crossings would be 
public, private, and pathway crossings that were not in existence prior 
to the effective date of any final rule implementing this proposal. 
Proposed paragraph (b) of this section would not, however, apply to 
temporary crossings.
    Proposed paragraph (b)(1) of this section would require that each 
primary operating railroad submit a completed Inventory Form (or its 
electronic equivalent) to the Crossing Inventory for each new public, 
private, or pathway crossing (except a temporary crossing) through 
which it operates no later than six months after the crossing becomes 
operational. If the primary operating railroad does not already have an 
Inventory Number that can be assigned to the new crossing, an Inventory 
Number will need to be obtained for the crossing. Instructions for 
obtaining Inventory Numbers can be found in the Draft Guide. Once an 
Inventory Number has been assigned to the crossing, proposed paragraph 
(b)(1) of this section would require that the primary operating 
railroad submit a completed Inventory Form (or its electronic 
equivalent) to the Crossing Inventory, in accordance with Sec.  
234.403, which references the assigned Inventory Number.
    Paragraph (b)(1) of this section has been proposed to implement 49 
U.S.C. 20160(a)(1), which states that ``[n]ot later than * * * 6 months 
after a new crossing becomes operational, * * * each railroad carrier 
shall--(1) report to the Secretary of Transportation current 
information, including information about warning devices and signage, 
as specified by the Secretary, concerning each previously unreported 
crossing through which it operates or with respect to the trackage over 
which it operates.''
    Proposed paragraph (b)(2) of this section would require operating 
railroads, other than the primary operating railroad, which operate 
through a new crossing for which a completed Inventory Form (or its 
electronic equivalent) has not been submitted to the Crossing Inventory 
within six months after the crossing becomes operational, to provide 
written notification of this oversight to the FRA Associate 
Administrator. This provision has been proposed in order to implement 
49 U.S.C. 20160(a)(2), which states that, ``[n]ot later than * * * 6 
months after a new crossing becomes operational, * * * each railroad 
carrier shall--(2) ensure that the [current information, including 
information about warning devices and signage, concerning each 
previously unreported crossing] has been reported to the

[[Page 64084]]

Secretary by another railroad carrier that operates through the 
crossing,''
    At a minimum, the proposed written notification requirement 
contained in paragraph (b)(2) of this section would require railroads 
to provide the latitudinal and longitudinal coordinates for each new 
public, private, or pathway crossing that was not timely reported to 
the Crossing Inventory in accordance with paragraph (b)(1) of this 
section. While State agencies have historically submitted latitudinal 
and longitudinal coordinates to the Crossing Inventory, railroads 
provide this data to FRA for rail-equipment train accident reporting 
purposes. Therefore, FRA believes that this proposed requirement would 
not be unduly burdensome. FRA seeks comment on this proposal.
    FRA proposes to hold each operating railroad, including the primary 
operating railroad, liable for each new public, private, and pathway 
crossing (including grade-separated crossings, but excluding temporary 
crossings) that was not timely reported to the Crossing Inventory, in 
accordance with paragraph (b)(1) of this section, unless the operating 
railroad provides written notification to the Associate Administrator 
of the unreported crossing. In order to facilitate compliance with this 
proposed requirement, FRA proposes to establish an automated FRA email 
notification system that would notify participating States and 
railroads whenever public, private, or pathway crossings are added to 
the Crossing Inventory. FRA seeks comment on this proposal.
    Proposed paragraph (b)(3) of this section would allow multiple 
operating railroads to assume joint responsibility for submitting data 
to the Crossing Inventory for new public, private, or pathway 
crossings, in accordance with the Draft Guide. As stated in the Draft 
Guide, two or more railroads that have agreed to file their own 
separate inventory information for the same public, private, or pathway 
crossing would need to check the box labeled ``Multiple Forms Filed'' 
in Item no. 7 of Part I of the Draft Inventory Form, in order to notify 
FRA of their agreement.
    Proposed paragraph (b)(4) of this section would allow an entity 
other than the primary operating railroad to submit a completed 
Inventory Form (or its electronic equivalent) to the Crossing 
Inventory, in order to satisfy the proposed reporting requirements 
contained in paragraph (b)(1) of this section. This proposed provision 
is intended for use by State agencies with jurisdiction over the new 
public, private, or pathway crossings that may wish to submit crossing 
data to the Crossing Inventory on behalf of the primary operating 
railroad.
    In the event that an entity other than the primary operating 
railroad would like to submit crossing data to the Crossing Inventory 
on behalf of the primary operating railroad, proposed paragraph (b)(4) 
would require that the reporting entity and the primary operating 
railroad provide written notification to the Associate Administrator of 
the entity assuming reporting responsibility. Proposed paragraph (b)(4) 
of this section would further require that any such notification 
include positive identification of the locations that will be covered.
    Proposed paragraph (b)(4) of this section is not, however, intended 
to allow the primary operating railroad to completely transfer its 
responsibility for timely compliance with the proposed reporting 
requirements of paragraph (b)(1) of this section to the reporting 
entity. Therefore, FRA reserves the right to hold the primary operating 
railroad and the reporting entity, as appropriate, liable for failure 
to timely comply with the reporting requirements of paragraph (b)(1) of 
this section. Other operating railroads might also be held liable if 
they fail to provide written notification of an unreported crossing in 
accordance with paragraph (b)(2) of this section.
    Proposed paragraph (c) of this section would require that the 
primary operating railroad periodically submit up-to-date and accurate 
data to the Crossing Inventory for each public, private, and pathway 
crossing through which it operates, in accordance with the Draft Guide. 
Submission of these periodic updates would not, however, be required 
for temporary crossings, since FRA is not proposing to require the 
reporting of temporary crossings to the Crossing Inventory, or to 
require periodic updating for grade-separated crossings since changes 
in crossing characteristics do not appear to have a significant impact 
on existing risk levels at grade-separated crossings.
    Proposed paragraph (c)(1) of this section sets forth a proposed 
timeframe within which the primary operating railroad would be required 
to submit updated crossing data for each public, private, and pathway 
crossing to the Crossing Inventory. This provision has been proposed in 
order to implement 49 U.S.C. 20160(b)(1)(A), which mandates that 
railroads periodically ``report to the Secretary current information, 
including information about warning devices and signage, as specified 
by the Secretary, concerning each crossing through which it operates or 
with respect to the trackage over which it operates.''
    Proposed paragraph (c)(1) would require that the primary operating 
railroad submit up-to-date and accurate crossing data for each public, 
private, and pathway crossing (other than a temporary crossing or a 
grade-separated crossing) through which it operates at least every 
three years from the date of the most recent railroad submission (or 
submission on behalf of a railroad) to the Crossing Inventory or within 
six months of the effective date of any final rule implementing this 
requirement, whichever occurs later.
    Appendix B to the Draft Guide contains a proposed Crossing 
Inventory Responsibility Table that assigns responsibility for updating 
data fields on the proposed Inventory Form to the operating railroad 
and/or the applicable State agency. In accordance with paragraphs 
(a)(1) and (b)(1) of proposed Sec.  234.405, railroads would be 
required to complete all of the data fields on the Inventory Form when 
initially reporting previously unreported and new public highway-rail 
at-grade crossings. However, a primary operating railroad would only be 
required to submit up-to-date and accurate information for the data 
fields on the Inventory Form that are assigned to the operating 
railroads by the Crossing Inventory Responsibility Table in Appendix B 
to the Draft Guide. (All remaining data fields on the Inventory Form 
would be updated by State authorities on a voluntary basis.) Similarly, 
even though the primary operating railroad would be required to submit 
up-to-date and accurate information for all of the data fields in the 
Header and Part I of the Draft Inventory Form for previously unreported 
private crossings, previously unreported pathway crossings, new private 
crossings, and new pathway crossings, the primary operating railroad 
would only be required to submit up-to-date and accurate information 
for the data fields in the Header and Part I of the Draft Inventory 
Form that are assigned to the operating railroad by the Crossing 
Inventory Responsibility Table in Appendix B to the Draft Guide. FRA 
seeks comment on the proposed assignment of responsibility for updating 
data fields on the Inventory Form.
    If each applicable railroad-assigned data field in the Crossing 
Inventory is accurate and up-to-date when the periodic update becomes 
due, the primary operating railroad should simply update the 
information contained in the data fields in the Header portion of the 
Draft Inventory Form (or its electronic equivalent) for the affected 
crossing, in accordance with the Draft Guide.

[[Page 64085]]

    Proposed paragraph (c)(2) of this section would require operating 
railroads, other than the primary operating railroad, that operate 
through any at-grade public, private, or pathway crossing (other than a 
temporary crossing or a grade-separated crossing) for which up-to-date 
and accurate information has not been submitted to the Crossing 
Inventory in accordance with paragraph (c)(1) of this section to 
provide written notification of this oversight to the Associate 
Administrator. This provision proposes to implement 49 U.S.C. 
20160(b)(1)(B), which mandates that railroads periodically ``ensure 
that [current information, including information about warning devices 
and signage] has been reported to the Secretary by another railroad 
carrier that operates through the crossing.''
    As was the case with proposed paragraph (c)(1) of this section, FRA 
proposes to exercise the discretion granted to the Secretary to 
determine the intervals by which periodic updates must be submitted to 
the Crossing Inventory. Accordingly, the proposed written notification 
requirement contained in paragraph (c)(1) of this section would not 
take effect unless up-to-date and accurate information was not 
submitted to the Crossing Inventory for a public, private, or pathway 
crossing (other than a temporary crossing or a grade-separated 
crossing) at least three years from the date of the most recent 
railroad submission or within six months after the effective date of 
any final rule implementing this requirement, whichever occurs later.
    At a minimum, the written notification that would be required by 
proposed paragraph (c)(2) of this section must include the Inventory 
Number for each public, private, or pathway crossing that has not been 
updated. FRA proposes to hold each operating railroad, including the 
primary operating railroad, liable for each Crossing Inventory record, 
for public, private, or pathway crossings (other than a temporary 
crossing or a grade-separated crossing) over which the railroad 
operates, that has not been updated in accordance with paragraph (c)(1) 
of this section, unless written notification of the outdated record is 
provided to the Associate Administrator by the operating railroad in 
accordance with proposed paragraph (c)(2) of this section. However, in 
order to facilitate compliance with this proposed requirement, FRA 
proposes to establish an automated FRA email notification system that 
would notify participating States and railroads whenever changes have 
been made to the Crossing Inventory data associated with certain 
specified public, private, or pathway crossings. FRA seeks comment on 
whether this proposed notification system would be useful.
    Proposed paragraph (c)(3) of this section would allow two or more 
operating railroads to assume joint responsibility for submitting 
periodic updates to the Crossing Inventory in accordance with the Draft 
Guide. As stated in the Draft Guide, two or more operating railroads 
that have agreed to file their own separate inventory information for 
the same public, private, or pathway crossing would need to check the 
box labeled ``Multiple Forms Filed'' in Item no. 7 of Part I of the 
Draft Inventory Form, in order to notify FRA of their agreement.
    Proposed paragraph (c)(4) of this section would allow an entity 
other than the primary operating railroad to submit up-to-date and 
accurate crossing data to the Crossing Inventory, in order to satisfy 
the proposed periodic updating requirements contained in paragraph 
(c)(1) of this section. In the event that an entity other than the 
primary operating railroad assumes responsibility for submitting the 
required updates for a particular crossing, proposed paragraph (c)(4) 
would require that the reporting entity and the primary operating 
railroad provide written notification to the FRA Associate 
Administrator of the entity assuming the periodic updating 
responsibility. This paragraph would further require that any such 
notification must contain positive identification of the locations that 
will be covered.
    Proposed paragraph (c)(4) of this section is not, however, intended 
to allow the primary operating railroad to completely transfer its 
responsibility for timely compliance with the proposed periodic 
updating requirements in paragraph (c)(1) of this section. Therefore, 
FRA reserves the right to hold the primary operating railroad and the 
reporting entity, as appropriate, liable for failure to timely comply 
with the periodic updating requirements of paragraph (c)(1) of this 
section Other operating railroads might also be held liable if they 
fail to provide written notification of outdated Inventory records for 
public, private, or pathway crossings over which they operate, in 
accordance with paragraph (c)(2) of this section.
    Paragraph (d) of this section contains proposed updating 
requirements related to the sale of a public, private, or pathway 
crossing. With respect to the sale of all or part of any public, 
private, or pathway crossing, proposed paragraph (d) of this section 
would require the selling railroad to submit an Inventory Form (or its 
electronic equivalent) that reflects the crossing sale to the Crossing 
Inventory. This proposed provision is intended to implement 49 U.S.C. 
20160(b)(2), which requires that railroads that sell a crossing report 
to the Secretary, within three months of such sale, current 
information, concerning the change in ownership of the crossing or part 
of the crossing.
    Accordingly, proposed paragraph (d) of this section would require 
the submission of updated crossing data to the Crossing Inventory, no 
later than three months after the date of sale, in accordance with 
proposed Sec.  234.403 and the Draft Guide. Pursuant to the Draft 
Guide, the selling railroad would simply be required to update the 
Crossing Inventory by revising either the Primary Operating Railroad 
data field (item one in Part I of the Draft Inventory Form) or the 
Operating Railroad data field (item 8 in Part I of the Draft Inventory 
Form) to reflect the change in ownership. The selling railroad should 
not, however, attempt to close the crossing record in the Crossing 
Inventory, since the crossing will remain in use and its assigned 
Inventory Number will remain the same.
    With respect to certain specified changes in crossing 
characteristics, involving crossing closure, change in crossing 
surface, or change in warning device at a public, private, or pathway 
crossing, proposed paragraph (e)(1) of this section would require that 
the primary operating railroad submit an Inventory Form (or its 
electronic equivalent), which reflects updated information in all 
applicable data fields, to the Crossing Inventory, in accordance with 
the Draft Guide and Sec.  234.403 of this part, within three months 
after the implementation date of the change. For purposes of this 
provision, a ``change in warning device'' means a change in the type of 
warning device installed at the crossing, as opposed to the 
modification of an existing crossing warning device. Therefore, 
upgrades from crossbuck signs to crossbuck and STOP signs would be 
considered a ``change in warning device'' that would trigger the update 
requirements contained in this section. Another example of a ``change 
in warning device'' that would trigger the proposed updating 
requirements would be the addition of cantilevered lights to a crossing 
that is already equipped with post-mounted flashing lights. Other 
changes in warning devices that would trigger the proposed updating 
requirement would include the installation of a crossbuck, yield, or 
stop sign, flashing lights, conventional

[[Page 64086]]

gates, and 4-quadrant gates at a grade crossing. FRA seeks comment on 
whether the 3-month period for reporting these changes in crossing 
characteristics should be shortened. Also, FRA seeks comment on whether 
this list of changes to crossing characteristics, which would trigger a 
requirement to submit updated data to the Crossing Inventory, 
adequately reflects the spectrum of significant changes to crossing 
characteristics that should be reported to the Crossing Inventory 
shortly after implementation, or whether this list of changes to 
crossing characteristics should be expanded to include significant 
changes to train counts and train speed as well, or other relevant 
factors.
    Proposed paragraph (e)(2) of this section would allow an entity 
other than the primary operating railroad to submit updated crossing 
data to the Crossing Inventory, in order to satisfy the proposed 
reporting requirements contained in paragraph (e)(1) of this section. 
In the event that an entity other than the primary operating railroad 
assumes responsibility for submitting the required updates for a 
particular crossing to the Crossing Inventory, proposed paragraph 
(e)(2) of this section would require that the reporting entity and the 
primary operating railroad provide written notification to the 
Associate Administrator of the entity assuming the reporting 
responsibility. Proposed paragraph (e)(2) of this section would further 
require that any such notification contain positive identification of 
the location(s) that will be covered.
    Proposed paragraph (e)(2) is not, however, intended to allow the 
primary operating railroad to completely transfer its responsibility 
for timely compliance with updating requirements of paragraph (e)(2) of 
this section. Therefore, FRA reserves the right to hold the primary 
operating railroad and the reporting entity liable for failure to 
timely submit updated crossing data to the Crossing Inventory in 
accordance with the proposed updating requirements of paragraph (e)(1) 
of this section.

Section 234.407 Recordkeeping

    Proposed Sec.  234.407 sets forth the recordkeeping requirements 
for this subpart that would apply to each railroad subject to this 
subpart. Proposed paragraph (a) of this section would require each 
railroad to keep certain records pertaining to its compliance with this 
subpart. Records may be kept on paper or electronically in a manner 
that conforms with proposed Sec.  234.409.
    Proposed paragraph (b) of this section would require operating 
railroads, including the primary operating railroad, to keep either a 
duplicate copy of each Inventory Form that was submitted in hard copy 
to the Crossing Inventory, or a copy of the electronic confirmation 
received from FRA after new or updated crossing data has been 
electronically submitted to the Crossing Inventory.
    Proposed paragraph (c) of this section would require that the 
railroad maintain a list of locations where a copy of any record 
required to be retained by this subpart is accessible for inspection 
and photocopying. Proposed paragraph (c) would further require that 
this list of locations be kept at the office where the railroad's 
reporting officer conducts his or her official business.
    Proposed paragraph (d) of this section would require that each 
operating railroad retain for at least four years (from the date of 
submission to the Crossing Inventory) either a duplicate copy of the 
Inventory Form that was submitted in hard copy by the railroad to the 
Crossing Inventory or a copy of the email confirmation received from 
FRA after new or updated crossing data has been electronically 
submitted to the Crossing Inventory. Records required to be kept must 
be made available to FRA as provided by statute (49 U.S.C. 20107).

Section 234.409 Electronic Recordkeeping

    Proposed Sec.  234.409 contains requirements that would apply to 
the electronic retention of records required by this subpart.
    If a railroad chooses to conduct electronic recordkeeping of 
records required by this subpart, proposed paragraph (a)(1) of this 
section would require that the railroad adopt adequate security 
measures to limit employee access to its electronic data processing 
system and prescribe which employees will be allowed to create, modify, 
or delete data from the database.
    Proposed paragraph (a)(2) of this section would require the 
railroad to have a terminal at the office where the railroad reporting 
officer conducts his or her official business and at each location 
designated by the railroad as having a copy of any record required to 
be retained by this subpart that is accessible for inspection and 
photocopying. In addition, proposed paragraph (a)(3) of this section 
would require the railroad to have a computer and a facsimile or 
printer connected to the computer to retrieve and produce records for 
immediate review.
    Proposed paragraph (a)(4) of this section would require the 
railroad to designate someone who will be authorized to authenticate 
hard copies produced from the electronic format.
    Proposed paragraph (a)(5) would require the railroad to make 
electronic documents available for FRA inspection during ``normal 
business hours'' which FRA interprets as the time, any day of the week, 
when railroads conduct their regular business transactions. 
Nevertheless, FRA would reserve the right to review and examine the 
documents prepared in accordance with this subpart at any reasonable 
time if situations warrant. In addition, in the event that an 
electronic record kept by the railroad pursuant to this subpart does 
not comply with the proposed requirements contained in paragraph (a) of 
this section, proposed paragraph (b) of this section would require that 
the record be kept on paper in accordance with the recordkeeping 
requirements contained in Sec.  234.407. In short, each railroad 
electing to retain its records electronically would be required to 
ensure the integrity of the information and prevent possible tampering 
of data, thus ensuring the overall integrity of the inventory.

Appendix A to Part 234--Schedule of Civil Penalties

    Appendix A to part 234 contains a schedule of civil penalties for 
use in connection with this part. FRA intends to revise the schedule of 
civil penalties when issuing the final rule to reflect revisions made 
to part 234. Because such penalty schedules are statements of agency 
policy, notice and comment are not required prior to their issuance. 
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to 
submit suggestions to FRA describing the types of actions or omissions 
for each proposed regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalties may be appropriate, based upon the relative severity of 
each type of violation.

VI. Regulatory Impact and Notices

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

    This proposed rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Order 12866 and 13563 and DOT policies and procedures. See 44 
FR 11034; February 26, 1979. FRA has prepared and placed in the docket 
a Regulatory Evaluation addressing the economic impact of this proposed 
rule.

[[Page 64087]]

As part of the regulatory evaluation, FRA has assessed quantitative 
estimates of the cost streams expected to result from the 
implementation of this proposed rule. For the 20-year period analyzed, 
the estimated quantified cost that would be imposed on industry totals 
$2.1 million with a present value (PV, 7 percent) of $1.5 million. FRA 
conducted a break-even analysis of the rule and believes that potential 
benefits from the proposal would likely equal or exceed total costs.
    FRA considered the industry costs associated with requiring 
railroads to establish and maintain an inventory for all public and 
private highway-rail crossings and pathway crossings. Many railroads 
have already implemented components of the proposed rule. FRA estimates 
that as many as 50 percent of all highway-rail crossings currently have 
up-to-date information in the National Inventory. For more details on 
the costing, please see the Regulatory Evaluation found in the docket. 
The requirements that are expected to impose the largest burdens relate 
to the collection of recent information and to the periodic update of 
the inventory. The table below presents the estimated costs associated 
with the proposed rulemaking.

                     20-Year Cost for Proposed Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Initial Update of Inventory..................................   $874,280
Periodic Update of Inventory.................................    646,856
                                                              ----------
  Total......................................................  1,521,136
------------------------------------------------------------------------
Future costs are discounted to present value using a 7 percent discount
  rate.

    As part of the Regulatory Evaluation, FRA has explained what the 
likely benefits for this proposed rule would be, and provided a break-
even analysis. The main benefit derived from the rule would be improved 
crossing inventory data. This more precise information would better 
enable FRA, railroads, and any other entity to accurately analyze 
pertinent data, detect trends, and if needed, initiate crossing-related 
safety initiatives. In this break-even analysis, FRA determined that if 
there were a decrease of 0.015 percent of crossing accidents over the 
twenty-year period the costs associated with the rule would break-even. 
In the last decade there were over 26,000 collisions at grade crossing, 
this break-even analysis expects that over a twenty-year period there 
would be at least 3 fewer incidents due to the proposed rule. FRA 
anticipates that this rulemaking will increase the precision, 
completeness, and utility of railroad records and will improve FRA's 
national crossing inventory. This would allow FRA to identify certain 
highway-rail crossings and pathway crossings that are not currently 
recorded in the existing voluntary crossing inventory. FRA believes 
that such clarification would help offset costs associated with the 
rulemaking by simplifying the reporting process. FRA believes the value 
of the anticipated benefits would justify the cost of implementing the 
proposed rule.

B. Initial Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. FRA has not determined whether this proposed 
rule would have a significant impact on a substantial number of small 
entities. Therefore, FRA is publishing this IRFA to aid the public in 
commenting on the potential small business impacts of the proposed 
requirements in this NPRM. FRA invites all interested parties to submit 
data and information regarding the potential economic impact on small 
entities that would result from the adoption of this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination.
    The proposed rule would apply to all railroads which own or 
maintain public and private highway-rail crossings (both at-grade and 
grade-separated) as well as pathway crossings. Based on information 
currently available, FRA estimates that Class III railroads own 28 
percent of the total highway-rail crossings. However a number of the 
Class III railroads are owned by larger holding companies. FRA often 
treats these holding companies as Class I or Class II railroads as they 
have more resources than a Class III railroad. Excluding the 113 
railroads that are owned by a holding company, the small entities own 
17 percent of the total highway-rail crossings. FRA analysis estimates 
that the cost of the proposed rule would be $2.1 million with a present 
value (PV, 7 percent) of $1.5 million.
    As calculated below, there are 569 Class III railroads that would 
be considered small for the purposes of this analysis. As explained 
above, FRA believes that 113 of these railroads should be excluded 
because they are part of large holding companies that do not meet the 
criteria established by the U.S. Small Business Administration (SBA) in 
determining small entities. Therefore there are 456 railroads that 
comprise around 17 percent of the total highway-rail crossings. All of 
these railroads would have to make some labor investment to meet the 
proposed requirements. As these railroads have less mileage, an 
indicator of fewer crossings, in their system than Class I and Class II 
railroads, FRA expects them to meet the proposed requirements at a 
lower overall cost. Thus, although numerous small entities in this 
sector would likely be impacted, the economic impact on them would 
likely not be significant. This IRFA is not intended to be a stand-
alone document. In order to get a better understanding of the total 
costs for the railroad industry, which forms the basis for the 
estimates in this IRFA, or more cost detail on any specific 
requirement, please see the Regulatory Evaluation that FRA has placed 
in the docket for this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IFRA must 
contain:
    (1) A description of the reasons why the action by the agency is 
being considered.
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    (3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    (4) A description of the projected reporting, record keeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
1. Reasons for Considering Agency Action
    The goal of the U.S. DOT Highway-Rail Crossing Inventory is to 
provide information to all stakeholders in the rail industry (e.g., 
Federal Government, State Governments, Local Governments, all 
railroads, public) for the improvement of safety at highway-rail 
crossings. The improved and more accurate information will help to add 
to a general pool of information regarding accidents at crossings, 
which might be able to help prevent future accidents.
    RSIA required that all railroads submit an inventory of all 
existing crossings to the FRA. Although the FRA currently has a 
national inventory, it has

[[Page 64088]]

not been consistently updated. FRA believes that around 99 percent of 
the crossings that exist are currently in the database, but much of the 
information on each crossing needs to be updated, and numerous 
nonexistent crossings need to be removed from the database.
    The FRA reviewed RSIA in order to determine the best, most cost 
efficient and beneficial way to issue the proposed rule. FRA 
anticipates that the proposed requirements will be accepted by the 
industry as being as unobtrusive as possible. A team in the FRA carried 
out a careful review of the mandates in RSIA to incorporate these 
requirements into these proposed Federal regulations.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of this rulemaking is to require railroads to submit 
information for public and private highway-rail crossings and pathway 
crossings. The proposed rule also sets forth regulations mandating the 
periodic update of the national crossing inventory. Any crossings that 
have been sold should also be updated in the inventory.
    Section 204 of RSIA has a requirement for a National Crossing 
Inventory. Congress gave the Secretary of Transportation the authority 
to prescribe the regulations to implement Section 204. The task of 
creating the necessary regulation was delegated to the Administrator of 
the Federal Railroad Administration. This proposed regulation will be 
codified in Title 49 of the Code of Federal Regulations, Part 234.
3. A Description of, and Where Feasible, an Estimate of Small Entities 
to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this action. This proposed rule would affect all 
railroads that own or maintain public or private highway-rail crossings 
or pathway crossings.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation. The SBA stipulates in its size 
standards that the largest a railroad business firm that is ``for 
profit'' may be and still be classified as a ``small entity'' is 1,500 
employees for ``Line Haul Operating Railroads'' and 500 employees for 
``Switching and Terminal Establishments.'' Additionally, 5 U.S.C. 
601(5) defines as ``small entities'' governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
populations less than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
statement of agency policy that formally establishes ``small entities'' 
or ``small businesses'' as being railroads, contractors, and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues; and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at Appendix C to 49 CFR, part 
209. The $20 million-limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition for this rulemaking. Any comments received pertinent to its 
use will be addressed in the final rule.
Railroads
    There are a total of 756 regulated railroads. FRA is excluding 150 
railroads from the rulemaking because they do not own any crossings. 
There are 7 Class I railroads and 12 Class II railroads, all which are 
not considered to be small. There are a total of 29 commuter/passenger 
railroads, including Amtrak, with 19 that would be affected by this 
rule. However, all the affected commuter railroads are part of larger 
public transportation agencies that receive Federal funds and serve 
major jurisdictions with populations greater than 50,000.
    The level of costs incurred by each railroad should generally vary 
in proportion to the number of crossings they maintain. For instance, 
railroads with fewer crossings should have lower overall costs 
associated with implementing the proposed standards. There are 710 
Class III railroads, and of those railroads, only 569 are affected by 
the rule. However, 113 of these railroads are owned by large holding 
companies, and are therefore not considered to be small entities for 
the purposes of this analysis. Hence there are 456 railroads which 
would be considered to be small entities impacted by this proposed 
rule. The impact on these small railroads is discussed in the following 
section.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
Regulatory Evaluation, which has been placed in the docket for this 
rulemaking.
    For the purpose of this analysis, FRA broke Class III railroads 
into two categories. We considered any Class III railroad that had more 
than 40 crossings to be a Large Class III railroad and any Class III 
railroad with 40 or less crossings to be a Small Class III railroad. 
Crossing specialists in FRA's Office of Safety anticipate that the 
majority of the Large Class III railroads use FRA's web based program, 
to submit their inventories to the FRA. FRA assumes that the Large 
Class III railroads would continue to use a web-based program to input 
their crossing inventories into the national database. FRA believes 
that the Small Class III railroads would manually send their inventory 
forms, by either mail or email, to the FRA. FRA also estimates that 50 
percent of all railroads in the industry are already in compliance with 
the proposed rule.
    There are 240 Large Class III railroads that would be considered 
small entities. FRA estimates that each Large Class III railroads would 
initially task one person for approximately one week to review and 
update their inventory. Subsequently, FRA estimates that it would take 
one person two days to update a Large Class III railroads inventory 
every year. The initial cost associated with Large Class III railroads 
would be around $900 per railroad. The cost to periodically update 
their inventory is estimated to be about $350 per railroad. FRA 
believes that although the Large Class III railroads would be burdened 
by the proposed regulation, none of these small entities would be 
significantly impacted.
    There are 216 Small Class III railroads that would be considered 
small entities. FRA estimates that each Small Class III railroad would 
initially need one person to work 8 hours to review and update each 
inventory. Subsequently, the periodic inventory update cost would be 
the same, requiring one person to work 8 hours each year. The initial 
cost

[[Page 64089]]

associated with Small Class III railroads would be $173 per railroad. 
The cost to periodically update their inventory is $173 per railroad. 
Again, FRA believes that although all of the Small Class III railroads 
would be affected by the proposed regulation, none of these small 
entities would be significantly impacted.
    In conclusion, FRA believes that both the Large Class III railroads 
and the Small Class III railroads, thus a substantial number of small 
entities (small railroads) would be impacted by the proposed 
regulation. However, FRA has found that these entities that are 
directly burdened by the regulation would not have an economic 
significant impact. FRA believes that the costs associated with the 
proposed rule are reasonable and would not cause any significant 
financial impact on their operations.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is not aware of any relevant Federal rules that may duplicate, 
overlap or conflict with the proposed rule.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a determination.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This proposed rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

D. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                                Total annual       Average time    Total annual
        CFR Section/subject          Respondent universe         responses         per response    burden hours
----------------------------------------------------------------------------------------------------------------
234.403--Submission of Information  50 states & 607        6,942 forms..........              30           3,471
 to the U.S. DOT Highway-Rail        railroads.            257 lists............              30             129
 Crossing Inventory (Formerly       50 states & 607
 Voluntary).                         railroads.
                                    50 states & 607        1,111 lists..........              30             556
                                     railroads.
                                    50 states & 607        38,982 records.......               6           3,898
                                     railroads.
234.405--Submission of initial      607 railroads........  450 written                        30             225
 data and periodic updates to the   50 states & 607         notifications.                    30              88
 U.S. DOT Highway-Rail Crossing      railroads.            175 written                        30              33
 Inventory (New Requirement).       607 railroads........   notifications.
                                                           65 written
                                                            notifications.
                                    607 railroads........  12 written                         30               6
                                                            notifications.
                                    50 states & 607        10 written                         30               5
                                     railroads.             notifications.
                                    607 railroads........  950 written                        20             317
                                                            notifications.
                                    607 railroads........  650 written                        20             217
                                                            notifications.
                                    50 states & 607        525 written                        20             175
                                     railroads.             notifications.
234.407 Recordkeeping (New          607 railroads........  5,674 copies.........               1              95
 Requirement).                      607 railroads........  2,837 copies.........               1              47
                                    607 railroads........  607 forms............               5              51
----------------------------------------------------------------------------------------------------------------


[[Page 64090]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

E. Environmental Impact

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

F. Unfunded Mandates Reform Act of 1995

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

G. Energy Impact

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

H. Trade Impact

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

I. Privacy Act

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

List of Subjects in 49 CFR Part 234

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

[[Page 64091]]

The Proposed Rule

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

PART 234--GRADE CROSSING SAFETY

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

    Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304, 
21311, 22501 note; Pub. L. 110-432, Div. A., Sec. 202, 28 U.S.C. 
2461, note; and 49 CFR 1.49.

    2. The heading for part 234 is revised to read as set forth above.
    3. Section 234.1 is amended by revising paragraphs (a)(3) and (4) 
and by adding paragraph (a)(5) to read as follows:


Sec.  234.1  Scope.

    (a) * * *
    (3) Requirements for particular identified States to develop State 
highway-rail grade crossing action plans;
    (4) Requirements that certain railroads establish systems for 
receiving toll-free telephone calls reporting various unsafe conditions 
at highway-rail grade crossings and pathway grade crossings, and for 
taking certain actions in response to those calls; and
    (5) Requirements for reporting to, and periodically updating 
information contained in, the U.S. DOT National Highway-Rail Crossing 
Inventory for public, private, and pathway crossings.
* * * * *
    4. Subpart F is added to read as follows:

Subpart F--Highway-Rail Crossing Inventory Reporting

Sec.
234.401 Definitions.
234.403 Submission of data to the Crossing Inventory, generally.
234.405 Submission of initial data and periodic updates to the 
Crossing Inventory.
234.407 Recordkeeping.
234.409 Electronic recordkeeping.


Sec.  234.401  Definitions.

    As used in this subpart--
    Class I has the meaning assigned by regulations of the Surface 
Transportation Board (49 CFR part 1201; General Instructions 1-1), as 
those regulations may be revised and applied by order of the Board 
(including modifications in class threshold based on revenue deflator 
adjustments).
    Crossing Inventory means the U.S. DOT National Highway-Rail 
Crossing Inventory.
    FRA Associate Administrator means the FRA Associate Administrator 
for Railroad Safety/Chief Safety Officer.
    Highway-rail crossing means the location where one or more railroad 
tracks intersect with a public highway, road, street, or private 
roadway, including associated sidewalks and pathways, either at-grade 
or grade-separated.
    Inventory Form means the U.S. DOT Crossing Inventory Form (Form FRA 
F 6180.71.)
    Inventory Guide means the FRA Guide for Preparing Highway-Rail 
Crossing Inventory Forms in effect at the time of the submission of 
data to the Crossing Inventory.
    Inventory number means the number assigned to a highway-rail 
crossing or pathway crossing in the Crossing Inventory.
    Operating railroad means any railroad that operates one or more 
trains through a highway-rail crossing or pathway crossing.
    Pathway crossing means a pathway that:
    (1) Is explicitly authorized by a public authority or a railroad;
    (2) Is dedicated for the use of non-vehicular traffic, including 
pedestrians, bicyclists, and others;
    (3) Is not associated with a public highway, road, or street, or a 
private roadway;
    (4) Crosses one or more railroad tracks either at grade or grade-
separated.
    Primary operating railroad means the operating railroad responsible 
for submitting and/or updating data in the Crossing Inventory for a 
highway-rail crossing or pathway crossing.
    Private crossing means a highway-rail crossing that is not a public 
crossing.
    Public crossing means a highway-rail crossing where the roadway is 
under the jurisdiction of and maintained by a public authority and open 
to public travel. All roadway approaches must be under the jurisdiction 
of the public roadway authority and no roadway approach may be on 
private property.
    Temporary crossing means a highway-rail crossing created to serve a 
specific activity for a temporary time period not to exceed six months.


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

    (a) Public, private, and pathway crossing data shall be submitted 
to the Crossing Inventory on the Inventory Form pursuant to the 
requirements set forth in Sec.  234.405 of this part. Except as 
provided in paragraph (c) of this section, the Inventory Form may be 
submitted in hard copy or electronically.
    (b) The Inventory Form shall be completed in accordance with the 
Inventory Guide. A copy of this guide may be obtained from the Office 
of Railroad Safety, RRS-23, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., Washington, DC 20590. A copy of this guide can also 
be viewed or downloaded from the FRA Web site at (FRA Web site address 
to be inserted).
    (c) Each Class I railroad shall submit the data required by 
paragraph (a) of this section to the Crossing Inventory electronically.


Sec.  234.405  Submission of initial data and periodic updates to the 
Crossing Inventory.

    (a) Initial Submission for Previously Unreported Crossings. (1) 
Duty of Primary Operating Railroad. Each primary operating railroad 
shall submit a completed Inventory Form, or its electronic equivalent, 
to the Crossing Inventory for each previously unreported public, 
private, and pathway crossing (except a temporary crossing) through 
which it operates, no later than (DATE 6 MONTHS AFTER EFFECTIVE DATE OF 
FINAL RULE). The completed Inventory Form, or its electronic 
equivalent, must reference the assigned Inventory Number for the 
crossing and the Inventory Form, or its electronic equivalent, must be 
completed and submitted in accordance with Sec.  234.403 of this part.
    (2) Duty of Operating Railroads. Each operating railroad, other 
than the primary operating railroad, which operates through a 
previously unreported public, private, or pathway crossing (except a 
temporary crossing) for which a completed Inventory Form, or its 
electronic equivalent, has not been submitted to the Crossing Inventory 
in accordance with paragraph (a)(1) of this section, shall notify the 
FRA Associate Administrator in writing of this oversight. Written 
notification provided by the operating railroad shall include, at a 
minimum, the latitudinal and longitudinal coordinates for each 
previously unreported public, private, or pathway crossing for which a 
completed Inventory Form, or its electronic equivalent, has not been 
timely submitted to the Crossing Inventory.
    (3) Reporting by Other Entities on Behalf of the Primary Operating 
Railroad. In order to satisfy the reporting requirements of paragraph 
(a)(1) of this section, an entity other than the primary operating 
railroad may submit a completed Inventory Form, or its electronic 
equivalent, to the Crossing Inventory, provided both the reporting 
entity and the primary operating

[[Page 64092]]

railroad provide written notice to the FRA Associate Administrator of 
the entity assuming reporting responsibility. Any such notification 
must include a positive identification of the locations that will be 
covered.
    (b) Initial Submissions for New Crossings. (1) Duty of Primary 
Operating Railroad. Each primary operating railroad shall submit a 
completed Inventory Form, or its electronic equivalent, to the Crossing 
Inventory for each new public, private, or pathway crossing (except a 
temporary crossing) through which it operates no later than six (6) 
months after the crossing becomes operational. The completed Inventory 
Form, or its electronic equivalent, must reference the assigned 
Inventory Number for the crossing and the Inventory Form, or its 
electronic equivalent, must be completed and submitted in accordance 
with Sec.  234.403.
    (2) Duty of Operating Railroads. An operating railroad, other than 
the primary operating railroad, which operates through a new public, 
private, or pathway crossing (except a temporary crossing) for which a 
completed Inventory Form has not been submitted to the Crossing 
Inventory within six (6) months after the crossing becomes operational 
shall notify the FRA Associate Administrator, in writing, of this 
oversight. Written notification provided by the operating railroad 
shall include, at a minimum, the latitudinal and longitudinal 
coordinates for each new and unreported public, private, or pathway 
crossing through which it operates.
    (3) Joint Reporting by Multiple Operating Railroads. Two or more 
operating railroads may agree to assume joint responsibility for the 
reporting requirement set forth in paragraph (b)(1) of this section by 
providing written notification of this agreement in accordance with the 
Inventory Guide.
    (4) Reporting by Other Entities on Behalf of the Primary Operating 
Railroad. In order to satisfy the reporting requirements of paragraph 
(b)(1) of this section, an entity other than the primary operating 
railroad may submit a completed Inventory Form, or its electronic 
equivalent, to the Crossing Inventory, provided both the reporting 
entity and the primary operating railroad provide written notification 
to the FRA Associate Administrator of the entity assuming reporting 
responsibility. Any such notification must include positive 
identification of the locations that will be covered.
    (c) Periodic Updates. (1) Duty of primary operating railroad. Each 
primary operating railroad shall submit up-to-date and accurate 
crossing data to the Crossing Inventory for each public, private, and 
pathway crossing (other than a temporary crossing or a grade-separated 
crossing) through which it operates, in accordance with the Inventory 
Guide. Updated crossing data shall be submitted to the Crossing 
Inventory at least every 3 years from the date of the most recent 
railroad submission or (DATE 6 MONTHS AFTER EFFECTIVE DATE OF FINAL 
RULE), whichever occurs later.
    (2) Duty of Operating Railroads. An operating railroad, other than 
the primary operating railroad, that operates through a public, 
private, or pathway crossing (other than a temporary crossing or a 
grade-separated crossing) for which up-to-date and accurate information 
has not been timely submitted to the Crossing Inventory in accordance 
with paragraph (c)(1) shall notify the FRA Associate Administrator, in 
writing, of this oversight. Written notification provided by the 
operating railroad in accordance with this paragraph shall include, at 
a minimum, the Inventory Number for each public, private, or pathway 
crossing(s) that has not been updated.
    (3) Joint Updating by Multiple Operating Railroads. Two or more 
operating railroads may assume joint responsibility for submission of 
the periodic updates required by paragraph (c)(1) of this section by 
providing written notification of this agreement in accordance with the 
Inventory Guide.
    (4) Submission of Periodic Updates by Other Entities on Behalf of 
the Primary Operating Railroad. In order to satisfy the periodic 
updating requirements of paragraph (c)(1) of this section, an entity 
other than the primary operating railroad may submit up-to-date and 
accurate crossing data to the Crossing Inventory, provided both the 
reporting entity and the primary operating railroad provide written 
notification to the FRA Associate Administrator of the entity assuming 
the periodic updating responsibility. Any such notification shall 
include positive identification of the locations that will be covered.
    (d) Changes Requiring Submission of Updated Information to the 
Crossing Inventory, Crossing sale. Any railroad that sells all or part 
of a public, private, or pathway crossing shall submit an Inventory 
Form, or its electronic equivalent, which reflects the crossing sale to 
the Crossing Inventory. The updated Inventory Form, or its electronic 
equivalent, shall be submitted to the Crossing Inventory, no later than 
three (3) months after the date of sale, in accordance with Sec.  
234.403 of this subpart.
    (e) Changes Requiring Submission of Updated Information to the 
Crossing Inventory, Changes in Crossing Characteristics. (1) Within 
three (3) months of any crossing closure, change in crossing surface, 
or change in warning device at any public, private, or pathway 
crossing, the primary operating railroad shall submit an Inventory 
Form, or its electronic equivalent, that reflects the change in 
crossing characteristics to the Crossing Inventory, in accordance with 
Sec.  234.403 of this subpart. A ``change in warning device'' means the 
addition of a crossbuck, yield or stop sign, flashing lights, or gates 
at a public, private, or pathway crossing.
    (2) Submission of Updated Information to the Crossing Inventory by 
Other Entities on Behalf of the Primary Operating Railroad. In order to 
satisfy the reporting requirements of paragraph (e)(1) of this section, 
an entity other than the primary operating railroad may submit an 
Inventory Form, or its electronic equivalent, that reflects the 
change(s) in crossing characteristics to the Crossing Inventory, 
provided both the reporting entity and the primary operating railroad 
provide written notification to the FRA Associate Administrator of the 
entity assuming reporting responsibility. Any such notification shall 
include positive identification of the location(s) that will be 
covered.


Sec.  234.407  Recordkeeeping.

    (a) Each railroad subject to this subpart shall keep records in 
accordance with this section. Records may be kept either on paper or by 
electronic means in a manner that conforms with Sec.  234.409.
    (b) Each operating railroad, including the primary operating 
railroad, responsible for submitting information to the Crossing 
Inventory in accordance with this subpart shall, at a minimum, maintain 
the following information for each required Inventory Form:
    (1) A duplicate copy of each Inventory Form submitted in hard copy 
to the Crossing Inventory; or
    (2) A copy of the electronic confirmation received from FRA after 
electronic submission of crossing data to the Crossing Inventory.
    (c) Each railroad shall identify the locations where a copy of any 
record required to be retained by this subpart is accessible for 
inspection and photocopying by maintaining a list of such establishment 
locations at the office where the railroad's reporting officer conducts 
his or her official business.
    (d) Each operating railroad shall retain for at least four (4) 
years from the

[[Page 64093]]

date of submission to the Crossing Inventory all records referred to in 
paragraphs (a) and (b) of this section. Records required to be kept 
under this subpart shall be made available to FRA as provided by 49 
U.S.C. 20107.


Sec.  234.409  Electronic recordkeeping.

    (a) If a railroad subject to this subpart maintains records 
required by this subpart in electronic format in lieu of paper, the 
system for keeping the electronic records must meet all of the 
following conditions:
    (1) The railroad adequately limits and controls accessibility to 
the records retained in its electronic database system and identifies 
those individuals who have such access;
    (2) The railroad has a terminal at the office where the railroad's 
reporting officer conducts his or her official business and at each 
location designated by the railroad as having a copy of any record 
required to be retained by this subpart that is accessible for 
inspection and photocopying;
    (3) Each such terminal has a computer and either a facsimile 
machine or a printer connected to a computer to retrieve and produce 
information in a usable format for immediate review by FRA 
representatives;
    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as a 
true and accurate copy of the electronically kept record; and
    (5) The railroad provides FRA representatives with immediate access 
to the record(s) for inspection and copying during normal business 
hours and provides a printout of such record(s) upon request.
    (b) If a record required by this subpart is in the form of an 
electronic record kept by an electronic recordkeeping system that does 
not comply with paragraph (a) of this section, then the record must be 
kept on paper in accordance with the recordkeeping requirements 
contained in Sec.  234.407.

    Issued in Washington, DC, on October 12, 2012.
Karen J. Hedlund,
Deputy Administrator.
[FR Doc. 2012-25623 Filed 10-17-12; 8:45 am]
BILLING CODE 4910-06-P