[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Rules and Regulations]
[Pages 16414-16423]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-06083]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2009-0041, Notice No. 3]

49 CFR Part 234

RIN 2130-AC38


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

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

ACTION: Final rule; response to petition for reconsideration.

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SUMMARY: This document responds to a petition for reconsideration of 
FRA's final rule published on June 12, 2012, mandating that certain 
railroads establish and maintain systems that allow members of the 
public to call the railroads, using a toll-free telephone number, and 
report an emergency or other unsafe condition at highway-rail and 
pathway grade crossings. This document amends and clarifies the final 
rule.

DATES: This final rule is effective May 14, 2013.

FOR FURTHER INFORMATION CONTACT: Beth Crawford, Transportation 
Specialist, Grade Crossing Safety and Trespass Prevention, Office of 
Safety Analysis, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, 
Washington, DC 20590 (telephone: 202-493-6288), beth.crawford@dot.gov; 
or Sara Mahmoud-Davis, Trial Attorney, Office of Chief Counsel, FRA, 
1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 
(telephone: 202-366-1118), sara.mahmoud-davis@dot.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    This rule implements Section 205 (Sec. 205) of the Rail Safety 
Improvement Act of 2008 (RSIA), Public Law 110-432, Division A, which 
was signed into law on October 16, 2008. Sec. 205 of the RSIA mandates 
that the Secretary of Transportation require certain railroad carriers 
(railroads) to take a series of specified actions related to setting up 
and using systems by which the public is able to notify the railroad by 
toll-free telephone number of safety problems at its highway-rail and 
pathway grade crossings. Such systems are commonly known as Emergency 
Notification Systems (ENS) or ENS programs. On March 4, 2011, FRA 
issued a notice of proposed rulemaking (NPRM) (76 FR 11992) that would 
require railroads to implement an ENS, through which they receive 
reports of unsafe conditions at crossings. See 76 FR 11992. A public 
hearing on the proposal was held on September 29,

[[Page 16415]]

2011. 76 FR 55622(Sept. 8, 2011). On June 12, 2012, following 
consideration of written comments received in response to the NPRM, FRA 
published a final rule in this rulemaking (Final Rule). See 77 FR 
35164.
    On August 9, 2012, FRA received a petition for reconsideration of 
the Final Rule from the Association of American Railroads (AAR) (AAR 
Petition or Petition). On September 25, 2012, FRA received comments on 
the AAR Petition from the Brotherhood of Railroad Signalmen (BRS). The 
specific issues raised by the AAR Petition, the comments on the 
Petition from BRS, and FRA's responses to the Petition and comments, 
are discussed in detail below in the ``Section-by-Section Analysis'' 
portion of the preamble. The Section-by-Section Analysis also contains 
a detailed discussion of each provision of the Final Rule that FRA has 
amended or clarified. The amendments contained in this document 
generally clarify or reduce requirements currently contained in the 
Final Rule or allow for greater flexibility in complying with the Final 
Rule, and are within the scope of the issues and options discussed, 
considered, or raised in the NPRM.
    Separately, on September 24, 2012, FRA received a public submission 
of comments from the co-owner of the company 1-800 RR Emergency on 
behalf of that company. The comments were unrelated to the AAR Petition 
and raised a new issue. The commenter 1-800 RR Emergency had ample time 
to raise its concerns between the time that the NPRM was published on 
March 4, 2011, and the publication of the Final Rule on June 12, 2012. 
The comment period for the NPRM remained open until May 3, 2011. 
Furthermore, FRA held a public hearing on September 29, 2011, to 
receive oral comments in response to the NPRM. Additionally, following 
the publication of the Final Rule, petitions for reconsideration of the 
Final Rule were accepted until August 13, 2012. FRA is unable to 
comment on the issue raised by 1-800 RR Emergency at this late date 
because doing so would deny the public the opportunity to comment on 
the issue. If the company would like FRA to address the issue, it is 
welcome to file a petition for rulemaking on this subject in accordance 
with the provisions of 49 CFR part 211. See 49 CFR 211.7 and 211.9.

II. Section-by-Section Analysis

Amendments to 49 CFR Part 234

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

Section 234.305 Remedial Actions in Response to Reports of Unsafe 
Conditions at Highway-Rail and Pathway Grade Crossings

AAR Petition: ``FRA Should Clarify the Effective Date for Compliance 
With Requirements to Respond to Reports of Unsafe Conditions''
    Section 234.305 addresses the actions that a railroad must take in 
response to an ENS-generated report of an unsafe condition at a 
highway-rail or pathway grade crossing. In the Petition, AAR points out 
that the Final Rule does not explicitly state an effective date for 
this section with respect to railroads that, as of August 13, 2012, 
were using an ENS telephone service or a third-party ENS telephone 
service that did not conform to the requirements in Sec.  234.303 or 
Sec.  234.307, respectively. Compliance with the requirements in Sec.  
234.305 is dependent upon a railroad's establishment of a compliant ENS 
telephone service, pursuant to Sec.  234.303 or Sec.  234.307. 
Accordingly, FRA is amending the Final Rule to state expressly in Sec.  
234.317(b), ``Compliance Dates,'' that a railroad with a non-conforming 
ENS telephone service as of August 13, 2012, must implement an ENS that 
conforms to this subpart no later than March 1, 2014, subject to the 
exceptions in paragraphs (c), (d), and (e) of Sec.  234.317. 
Additionally, FRA is amending paragraph (e) of Sec.  234.317 to extend 
the deadline from September 1, 2013, to March 1, 2014, for railroads to 
bring their recordkeeping into compliance. Since proper recordkeeping 
also depends upon a railroad implementing a conforming ENS telephone 
service, FRA believes that the deadline for compliance with Sec.  
234.313 and Sec.  234.315 should also be March 1, 2014. BRS did not 
respond to the AAR Petition on this issue.
AAR Petition: ``FRA Should Clarify the Responsibility To Respond to 
Obstructions on Non-Railroad Property''
    Paragraph (f) of Sec.  234.305 is the general rule on response to a 
report of an obstruction to the view of a pedestrian or a vehicle 
operator for a reasonable distance in either direction of a train's 
approach to the highway-rail or pathway grade crossing (i.e., visual 
obstruction). Paragraph (g) of Sec.  234.305 is the general rule on 
response to a report of other unsafe conditions at a highway-rail or 
pathway grade crossing not covered by other subsections of Sec.  
234.305. Paragraphs (f) and (g) of Sec.  234.305, respectively, require 
the maintaining railroad either to remove an obstruction of view or to 
correct an unsafe condition at a highway-rail or pathway grade 
crossing, if it is lawful and feasible to do so.
    In the Petition, AAR requests confirmation that it correctly 
interprets the clause ``if it is lawful and feasible to do so'' in 
paragraphs (f) and (g) of Sec.  234.305 to mean that ``[t]hese mandates 
do not cover obstructions and unsafe conditions on non-railroad 
property.'' AAR explains that ``[r]ailroads * * * cannot control what 
takes place on property belonging to others.'' FRA confirms that the 
mandates in paragraphs (f) and (g) of Sec.  234.305, respectively, only 
require a railroad to take action to remedy an obstruction of view or 
other unsafe condition on the railroad's property, to the extent that 
the railroad is operating within the confines of the law and such 
action is feasible. However, in circumstances where the property at 
issue does not belong to the railroad, the railroad may still be in a 
position to discuss the situation with the property owner, and work 
jointly to reach a legal agreement with the owner to remedy the 
condition if possible. FRA encourages such cooperation between the 
railroad and property owner, but it would most likely depend upon the 
railroad's willingness to take the initiative to attempt to resolve the 
situation, as well as the willingness of the property owner to work 
with the railroad. BRS did not respond to the AAR Petition on this 
issue.

Section 234.306 Multiple Dispatching or Maintaining Railroads With 
Respect to the Same Highway-Rail or Pathway Grade Crossing; Appointment 
of Responsible Railroad

AAR Petition: ``FRA Should Clarify the Compliance Deadline for Signs at 
Crossings Where Multiple Railroads Operate''
    Section 234.306 addresses the situation of multiple railroads that 
dispatch trains through the same crossing, as well as the possibility 
that multiple railroads have maintenance responsibilities for the same 
crossing. In this section in the Final Rule, FRA recognizes that there 
are some situations where there are multiple tracks at a grade crossing 
where each railroad dispatches trains over its own track. Under these 
circumstances, FRA believes it would create confusion if

[[Page 16416]]

each railroad posts a sign with its own emergency telephone number. 
Having more than one emergency number posted at such crossings would 
not only be more confusing for the users of the crossing and an 
unnecessary cost for the multiple railroads, but also a less effective 
method of responding to reports of unsafe conditions.
    As AAR points out in its Petition, at a single crossing, there may 
currently be one ENS sign displaying the emergency telephone number for 
one railroad and another ENS sign displaying the emergency telephone 
number for a different railroad. AAR requests that for crossings where 
multiple railroads dispatch trains through the same crossing and/or 
maintain the same crossing, and there are currently multiple signs at 
these crossings, that railroads be granted a deadline of September 1, 
2017, to bring these crossings into compliance with this subpart. AAR 
states that since this is ``[a]n issue of taking down signs due to 
multiple signs being present at crossings, the lowest priority should 
be placed on bringing these crossings into compliance.'' FRA disagrees 
with AAR's assessment that bringing these crossings into compliance 
should be a low priority compared to other highway-rail and pathway 
grade crossings covered by this subpart.
    There are approximately 212,000 public and private at-grade 
highway-rail and pathway grade crossings in the United States. FRA 
estimates that there are approximately 2,500 highway-rail and pathway 
grade crossings (i.e., approximately one percent of the total number of 
highway-rail and pathway grade crossings) where more than one railroad 
dispatches trains through the crossing. As stated previously in the 
preamble to the Final Rule, FRA believes that having more than one 
emergency number posted at such crossings is confusing for the users of 
the crossing. Furthermore, the existence of multiple signs with 
different emergency numbers at the same crossing could result in 
miscommunication or a delay in communication of an unsafe condition to 
the responsible railroad, thereby stalling remedial action efforts and 
potentially placing users of the crossing at greater risk. BRS 
expressed concern, similar to that of FRA, that granting an extension 
for these crossings to come into compliance would result in 
``[c]onfusion for the traveling public as to which railroad to contact 
in case of an emergency.'' Approximately one percent of all public and 
private highway-rail and pathway grade crossings are at issue here, and 
even fewer of these crossings currently have multiple ENS signs posted 
at them. FRA believes that the railroads that dispatch trains through 
these crossings and maintain these crossings have ample time to comply 
with the March 1, 2014, deadline in amended paragraph (b) of Sec.  
234.317 for railroads with nonconforming ENS telephone service.

Section 234.311 ENS Sign Placement and Maintenance

AAR Petition: ``FRA Should Delete the Requirement To Place a Sign at 
Private Industrial Facilities''
    Section 234.311(a)(1) requires a sign of the type specified by 
Sec.  234.309 to be placed and maintained on each approach to a 
highway-rail and pathway grade crossing with certain exceptions. The 
maintaining railroad for the crossing would be responsible for the 
proper placement and maintenance of the sign. The dispatching railroad 
for the crossing would be responsible for providing the telephone 
number that should be displayed on the sign to the maintaining 
railroad, if the two are not the same railroad.
    Paragraph (a)(2)(ii) of Sec.  234.311 permits an exception, 
requiring a railroad to only place and maintain one sign at each 
vehicular entrance to a railroad yard, a port or dock facility, or a 
private industrial facility that does not meet the definition of a 
``plant railroad'' in Sec.  234.5, rather than placing and maintaining 
signs at each approach to a crossing within the yard, port or dock 
facility, or private industrial facility. In the Petition, AAR contends 
that with respect to private industrial facilities this requirement is 
``impractical'' because these entrances are not on railroad property, 
and thus the railroad lacks the authority to carry out such a 
requirement. Additionally, AAR points out that typically a railroad 
does not have dispatching responsibility for a crossing inside a 
private industrial facility, so this subpart would not even apply under 
such circumstances.
    In considering the AAR Petition, FRA has decided to amend the 
requirement in paragraph (a)(2)(ii) of Sec.  234.311 to require a 
railroad only to place and maintain one sign at each vehicular entrance 
to a railroad yard, or a port or dock facility, eliminating the 
requirement as it pertains to private industrial facilities. BRS 
commented that it is concerned for the safety of vehicular and 
pedestrian traffic inside of these private industrial facilities. FRA 
shares similar concerns, but as stated previously in the preamble to 
the Final Rule, trains typically operate in these facilities at very 
low speed, and thus the hazards of a collision are reduced. 
Additionally, FRA agrees with AAR that the railroad does not own the 
property at the entrances to private industrial facilities, nor does a 
railroad own the track inside of these facilities. Consequently, it is 
not practical to require a railroad to place and maintain ENS signs in 
these locations on rights-of-way that it does not own. Furthermore, 
such a requirement is outside of the scope of Sec. 205 of the RSIA, 
which mandates that FRA require each railroad to ``ensure the placement 
at each grade crossing on rights-of-way that it owns of appropriately 
located signs.''
AAR Petition: ``FRA Should Address Missing and Damaged Signs''
    In the Final Rule, this subpart does not address the issue of 
missing and damaged ENS signs at highway-rail and pathway grade 
crossings. In the Petition, AAR contends that a railroad should not be 
held responsible for ENS signs that are missing or damaged when the 
railroad is unaware of the problem or had insufficient time to remedy 
the situation. Consequently, AAR requests that FRA amend the Final Rule 
to add a provision that grants a railroad 30 days from first learning 
of the problem with an ENS sign to repair or replace the sign. FRA 
understands AAR's concern that the repair or replacement of an ENS sign 
takes some time, particularly because an ENS sign is specific to each 
crossing, by identifying the U.S. DOT National Crossing Inventory 
number for that crossing. BRS in its comments also agrees with AAR that 
it takes time to replace a damaged or missing ENS sign, but notes that 
a railroad should be inspecting its ENS signs on a regular basis.
    Pursuant to FRA regulations, a railroad is required to routinely 
inspect its grade crossing signal systems, as well as its tracks, and 
it is during such inspections that it most likely would learn of a 
problem with an ENS sign at a crossing. FRA did not intend in the Final 
Rule to implement a strict liability standard for missing and damaged 
ENS signs. Accordingly, FRA has decided to amend the Final Rule to add 
paragraph (c), ``Repair or replacement of ENS sign,'' to Sec.  234.311. 
This new paragraph states that ``If an ENS sign required by this 
subpart is discovered by the responsible railroad to be missing, 
damaged, or in any other way unusable to vehicular or pedestrian 
traffic, the responsible railroad shall repair or replace the sign no 
later than 30 calendar days from the time of detection.'' Additionally, 
as BRS notes in its response to the AAR Petition, 49

[[Page 16417]]

CFR 234.245 (a provision of 49 CFR part 234, subpart D, Maintenance, 
Inspection, and Testing) already has a separate requirement that signs 
mounted on a highway-rail grade crossing signal post be maintained in 
``good condition and be visible to a highway user.''

Section 234.317 Compliance Dates

AAR Petition: ``The Grandfathering Clause is too Narrow''
    Section 234.317 provides the date by which each of various groups 
of railroads must comply with this subpart. As explained above in the 
discussion of Sec.  234.305, in response to the AAR Petition, FRA has 
decided to amend paragraph (b) of Sec.  234.317. The revised paragraph 
(b) grants a railroad with a nonconforming ENS telephone service until 
March 1, 2014, to comply with this subpart, subject to the exceptions 
in paragraphs (c), (d), and (e) of Sec.  234.317.
    In the Petition, AAR states that the dimensional requirements in 
paragraph (c)(1)(i) of Sec.  234.317 exclude approximately 33,000 ENS 
signs already in place at highway-rail and pathway grade crossings 
through which Canadian Pacific (CP), CSX Transportation (CSXT), and 
Union Pacific Railroad (UP) dispatch trains. Specifically, for these 
signs currently in use by CP, CSXT, and UP, the lettering on the signs 
that explains the purpose of the sign (e.g., ``Report emergency or 
problem to ------'') is smaller than the minimum \3/4\-inch height 
mandated by paragraph (c)(1)(i). AAR requests that FRA amend paragraph 
(c)(1)(i) of Sec.  234.317 so that these signs may continue to be used 
for the remainder of their useful life. Furthermore, AAR explains in 
the Petition that replacement of these ENS signs by CP, CSXT, and UP is 
estimated to cost a total of approximately $3.7 million. BRS contends 
that this is an inflated cost estimate because the crossings where 
these signs are located are likely visited on a routine basis for 
testing purposes, which would reduce the labor costs associated with 
replacing the signs. BRS also expresses concern that smaller lettering 
on the ENS sign might compromise the safety of vehicular traffic, by 
requiring the operator or passenger to exit the vehicle to read the 
sign.
    All three railroads--CP, CSXT, and UP--supplemented the AAR 
Petition by submitting to FRA the actual grade crossing signs at issue. 
Additionally, in a letter sent to FRA dated August 29, 2012, CSXT 
explained that beginning in 2010 it installed approximately 10,000 ENS 
signs at its grade crossings that meet all the dimensional requirements 
of paragraph (c)(1)(i) except for the lettering requirement for the 
words that explain the purpose of the sign. In a letter sent to FRA 
dated September 7, 2012, CP explained that its decal sign is applied to 
an aluminum sheet before being installed on the cross buck posts at 
passive at-grade crossings, and at active at-grade crossings the decal 
is applied directly to the signal mast. CP also indicated that the sign 
at issue here is currently in use on territories trading as CP that are 
or were once part of the Soo Line Railroad Company and Milwaukee Road 
Railroad in the States of Illinois, Minnesota, North Dakota, South 
Dakota, and Wisconsin. However, CP does not use this sign on its 
Dakota, Minnesota & Eastern Railroad Corporation or the Delaware & 
Hudson Railway Co., Inc. territories.
    In the Petition, AAR suggests that FRA eliminate the minimum height 
requirement for the lettering on the sign that explains the purpose of 
the sign, or alternatively suggests that FRA permit a \3/8\-inch 
minimum letter height for these words. In preparation of the Final 
Rule, FRA conducted extensive research on the size and lettering 
requirements for highway signs, consulting the Manual on Uniform 
Traffic Control Devices (MUTCD) and independently surveying ENS signs 
that are currently in place at crossings throughout the country. After 
careful consideration of the AAR Petition and the supplemental 
information and signs provided to FRA by CP, CSXT, and UP, FRA has 
decided to amend paragraph (c)(1)(i) to allow for a minimum height of 
\3/8\ inch for the lettering that explains the purpose of the ENS sign. 
FRA does not believe that this change will adversely impact the safety 
of a vehicular operator or passenger. FRA also has made a parallel 
modification to paragraph (c)(1)(ii) to distinguish the various letter-
height requirements for the information displayed on the ENS sign.

III. Regulatory Impact

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

    Prior to issuing the Final Rule, FRA prepared and placed in the 
docket a regulatory evaluation addressing the economic impact of the 
Final Rule. The rule was evaluated in accordance with existing policies 
and procedures and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. See 
44 FR 11034; February 26, 1979. The present final rule and response to 
the AAR Petition is likewise considered to be non-significant under 
both Executive Orders 12866 and 13563 and DOT policies and procedures. 
This regulatory action generally clarifies, reduces, or makes technical 
amendments to the requirements contained in the Final Rule and allows 
for greater flexibility in complying with the Final Rule as amended.
    These amendments and clarifications respond to the AAR Petition and 
will provide greater flexibility in the implementation of the Final 
Rule as amended. In particular, FRA has amended the Final Rule to 
eliminate the requirement in Sec.  234.311(a)(2)(ii) to post ENS signs 
at each vehicular entrance to a private industrial facility, which will 
reduce some costs. FRA also has amended the Final Rule by adding 
paragraph (c) to Sec.  234.311, to permit a railroad to replace or 
repair an ENS sign within 30 calendar days from the time that the 
railroad discovers that the sign is missing or damaged. This was in 
response to the AAR Petition and comments from BRS. Generally, 
railroads currently replace or repair signs within this timeframe; 
therefore, this will not increase the burden on the railroads that 
currently have compliant signs. However, for railroads required to 
install new signs due to this final rule, the estimated replacement 
cost is $76,553 \1\ annually or $1,071,735 over the 15-year period with 
a present value (7%) of approximately $625,689. Additionally, FRA has 
amended Sec.  234.317(c)(1)(i) in the Final Rule to allow for a minimum 
height of \3/8\ inch for the lettering that explains the purpose of the 
ENS sign, permitting an estimated 33,000 signs currently in place to be 
used for the remainder of their useful life. This change reduced the 
costs by approximately $918,035 \2\ with a present value (7%) of 
approximately $712,849. In the Final Rule cost estimates, FRA had 
inadvertently assumed that these 33,000 signs would have been allowed 
under the requirements in the Final Rule, even though, the signs 
actually would not have been allowed for their useful life under the 
Final Rule requirements. With the new lettering size requirements in 
the amendments to the Final Rule, these signs are now permitted to be 
used for their useful life. Thus the estimated costs in the Final 
Rule's regulatory evaluation reflected the requirements as

[[Page 16418]]

modified in these amendments. In summary, FRA has concluded that these 
amendments will reduce the costs, but will have a minimal net effect on 
FRA's original estimate of the benefits associated with the Final Rule. 
For the 15-year period analyzed, the estimated quantified cost that 
will be imposed on railroads by the Final Rule as amended by this 
action totals $16.6 million, with a present value (PV, 7 percent) of 
$10.7 million. FRA estimates that $57.8 million in cost savings will 
accrue through casualty prevention and damage avoidance over the 15-
year period, justifying the cost. The discounted value of this is $31.7 
million (PV, 7 percent).
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    \1\ Calculation: 3,000 signs per year * [($15 per sign) + (.25 
installation labor hours per sign * $42.07 per hour)] = $76,553.
    \2\ Calculation: 33,000 signs * [($15 per sign) + (.25 
installation labor hours per sign * $42.07 per hour) + (5% of signs 
needing posts * $25 per post) + (5% of signs needing posts * .5 
installation labor hours per post * $42.07 per hour)] = $918,035.
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B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA developed this action and the original Final Rule in 
accordance with Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') and DOT's procedures and policies to 
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
FRA certifies that this action would not have a significant economic 
impact on a substantial number of small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section 
601(3) defines the term ``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 entity'' a 
not-for-profit enterprise that is independently owned and operated, and 
not dominant in its field of operations.
    The U.S. Small Business Administration (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.'' See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA, and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy, which formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad. See 68 FR 24891 (May 9, 2003), codified at Appendix C to 
49 CFR part 209. Currently, the revenue requirements are $20 million or 
less in annual operating revenue, adjusted annually for inflation. The 
$20 million limit (adjusted annually for inflation) is based on the 
STB's threshold for a Class III railroad, which is adjusted by applying 
the railroad revenue deflator adjustment. For further information on 
the calculation of the specific dollar limit, see 49 CFR part 1201. FRA 
is using the STB's threshold in its definition of ``small entities'' 
for this rule.
    The amendments contained in this action may have a minimal, if any, 
impact on small entities. FRA expects that any impact these amendments 
do have on small entities would be positive because they generally 
clarify or reduce the requirements contained in the Final Rule or allow 
for greater flexibility in complying with the Final Rule as amended. 
Accordingly, FRA has concluded that there are no substantial economic 
impacts on small entities resulting from this action.

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, the agency consults with 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.
    As stated in the preamble to this final rule, FRA has analyzed this 
final rule in accordance with the principles and criteria contained in 
Executive Order 13132. Accordingly, FRA has determined that this final 
rule has no federalism implications, other than the possible preemption 
of State laws under Federal railroad safety statutes, specifically 49 
U.S.C. 20106. See 76 FR 18083. This final rule and response to the AAR 
Petition generally clarifies or reduces the requirements contained in 
the rule or allows for greater flexibility in complying with the rule.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards 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. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

E. Paperwork Reduction Act

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

[[Page 16419]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
234.303(b): Receipt by             594 railroads......  63,891 reports.....  1 minute...........           1,065
 Dispatching RR of Report of
 Unsafe Condition at Highway-Rail
 Grade Crossing
234.303(d): Receipt by             594 railroads......  1,860 reports/1,860  1 minute + 1 minute              62
 Dispatching RR of Report of                             records.
 Unsafe Condition at Pathway
 Grade Crossing
234.305(a)(2): Immediate Contact   594 railroads......  465 contacts.......  1 minute...........               8
 by Dispatching RR Not Having
 Maintenance Responsibility of
 All Trains Authorized to Operate
 through That Crossing in
 Response to Credible Report of
 Warning System Malfunction at
 Highway-Rail Grade Crossing
    (a)(2) Contact of Crossing     594 railroads......  465 contacts + 465   1 minute + 1 minute              16
     Maintenance RR by                                   records.
     Dispatching RR Not Having
     Maintenance Responsibility
     in Response to Credible
     Report of Warning System
     Malfunction at Highway-Rail
     Grade Crossing.
    (b)(1) In Response to Public   594 railroads......  925 contacts + 925   1 minute + 1 minute              30
     Report of Warning System                            records.
     Malfunction at Highway-Rail
     Grade Crossing Immediate
     Contact by Dispatching RR
     Having Maintenance Duty for
     Crossing of All Trains
     Authorized to Operate
     Through That Crossing.
    Dispatching RR Having          594 railroads......  925 contacts.......  1 minute...........              15
     Maintenance Duty for
     Crossing Contact of
     Appropriate Law Enforcement
     Authority with Necessary
     Information regarding
     Reported Malfunction.
234.305(b)(2) In Response to       594 railroads......  920 contacts.......  1 minute...........              15
 Public Report of Warning System
 Malfunction at Highway-Rail
 Grade Crossing Immediate Contact
 by Dispatching RR Not Having
 Maintenance Duty for that
 Crossing of All Trains
 Authorized to Operate Through
 That Crossing.
    Dispatching RR Contact of Law  594 railroads......  920 contacts.......  1 minute...........              15
     Enforcement Authority to
     Direct Traffic/Maintain
     Safety.
    Dispatching RR Contact of      594 railroads......  920 contacts + 920   1 minute + 1 minute              30
     Maintaining RR re: Reported                         records.
     Malfunction and Maintaining
     RR Record of Unsafe
     Condition.

[[Page 16420]]

 
234.305(c)(1): In Response to      594 railroads......  2 contacts + 2       1 minute + 1 minute          .06666
 Report of Warning System Failure                        records.
 at Pathway Grade Crossing
 Dispatching RR Having
 Maintenance Duty Contact of All
 Trains Authorized to Operate
 Thru It & Record of Unsafe
 Condition
    In Response to Report of       594 railroads......  2 contacts.........  1 minute...........          .03333
     Warning System Failure at
     Pathway Grade Crossing
     Dispatching RR Having
     Maintenance Duty Contact of
     Law Enforcement Agencies to
     Direct Traffic & Maintain
     Safety.
234.305(d)(1) Upon Receiving       594 railroads......  7,440 contact +      1 minute + 1 minute             248
 Report of Disabled Vehicle or                           7,440 rcds.
 Other Obstruction Dispatching RR
 Having Maintenance Duty Contact
 of All Trains Authorized to
 Operate Through Highway-Rail or
 Pathway Grade Crossing & Record
 of Unsafe Condition.
    Dispatching RR Having          594 railroads......  7,440 contacts.....  1 minute...........             124
     Maintenance Duty Contact of
     Law Enforcement Authority
     Upon Receiving Report of
     Disabled Vehicle or Other
     Obstruction.
    (d)(2) Dispatching RR Not      594 railroads......  2,556 contacts.....  1 minute...........              43
     Having Maintenance Duty
     Contact of All Trains
     Authorized to Operate
     through Highway-Rail or
     Pathway Grade Crossing After
     Report of Disabled Vehicle
     or Other Unsafe Condition.
    Dispatching RR Not Having      594 railroads......  2,556 contacts.....  1 minute...........              43
     Maintenance Responsibility
     Contact of Law Enforcement
     Authority regarding Disabled
     Vehicle/Unsafe Condition.
    Dispatching RR Contact of      594 railroads......  2,556 contacts +     1 minute + 1 minute              86
     Maintaining RR regarding                            2,556 records.
     Unsafe Condition at Crossing
     & Record of Unsafe Condition.
234.305(h): Provision of Contact   594 railroads......  10 info. contacts..  1 minute...........           .1667
 Information by Maintaining RR to
 Dispatching RR in Order to Be
 Contacted regarding Reports of
 Unsafe Conditions at Highway-
 Rail and Pathway Grade Crossings

[[Page 16421]]

 
234.306(a): Appointment of One     594 railroads......  50 appointments &    60 minutes.........              50
 Dispatching RR as Primary                               records.
 Dispatching RR Where Multiple
 RRs Dispatch Trains through Same
 Highway-Rail or Pathway Grade
 Crossing to Provide Info. for
 ENS Sign
    (b): Appointment of One        594 railroads......  50 appointments &    60 minutes.........              50
     Maintaining RR As Primary                           records.
     Maintaining RR Where
     Multiple RRs Maintain Same
     Highway-Rail or Pathway
     Grade Crossing for Placement
     and Maintenance of ENS Sign.
234.307(b): 3rd Party Telephone    594 railroads......  50 reports + 50      1 minute + 1 minute               2
 Service Report of Unsafe                                records.
 Conditions at Highway-Rail or
 Pathway Grade Crossings to
 Maintaining Railroad and
 Maintaining RR Record of Unsafe
 Condition
    (c)--3rd Party Telephone       594 railroads......  50 reports.........  1 minute...........               1
     Service Report to
     Dispatching RR of Unsafe
     Condition.
    (d)(1)--Provision of Contact   594 railroads......  17 contact calls...  15 minutes.........               4
     Information to 3rd Party
     Telephone Service by
     Dispatching RR or
     Maintaining RR Using That
     Service to Receive Reports
     of Unsafe Conditions at
     Highway-Rail or Pathway
     Grade Crossings.
    (d)(2):--Written Notice to     594 railroads......  17 letters.........  60 minutes.........              17
     FRA by Railroad of Intent to
     Use 3rd Party Svc..
    (d)(3)--Railroad Written       594 railroads......  5 letters..........  60 minutes.........               5
     Notification to FRA of Any
     Changes in Use or
     Discontinuance of 3rd Party
     Service.
234.309(a): ENS Signs--General
    Provision of ENS Telephone     594 railroads......  81,948 signs.......  30 minutes.........          40,974
     Number to Maintaining RR by
     Dispatching RR If Two RRs
     Are Not the Same.
    (b) ENS Signs Located at       594 railroads......  10 contacts........  30 minutes.........               5
     Highway-Rail or Pathway
     Grade Crossings as required
     by Sec.   234.311 with
     Necessary Information to
     Receive Reports Required
     under Sec.   234.303.
234.311(c): Repair or replacement  594 railroads......  4,000 signs........  15 minutes.........           1,000
 of ENS Signs after discovery by
 responsible railroad of a
 missing, damaged, or otherwise
 unusable/illegible sign to
 vehicular/pedestrian traffic
 (New)
234.313: Recordkeeping

[[Page 16422]]

 
    Records of Reported Unsafe     594 railroads......  186,000 records....  4 minutes..........          12,400
     Conditions Pursuant to Sec.
      234.303.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at 202-493-6132 or via email at the 
following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to OMB at the following address: oira_submissions@omb.eop.gov
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA is not permitted 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 this final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Environmental Assessment

    FRA has evaluated the present final 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 final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
(See 64 FR 28547, May 26, 1999.) Section 4(c)(20) reads as follows: 
``Actions categorically excluded. Certain classes of FRA actions have 
been determined to be categorically excluded from the requirements of 
these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * * Promulgation 
of railroad safety rules and policy statements that do not result in 
significantly increased emissions or air or water pollutants or noise 
or increased traffic congestion in any mode of transportation.''
    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 final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

G. 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 million or more (adjusted 
annually for inflation) [$140,800,000 or more in 2010] in any one year, 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule and response to the 
AAR Petition will not result in the expenditure, in the aggregate, of 
more than $140,800,000 or more in any one year, and thus preparation of 
such a statement is not required.

H. 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) is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
FRA has evaluated this final rule and response to the AAR Petition in 
accordance with Executive Order 13211. FRA has determined that this 
final rule will not have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulatory action is not a ``significant energy action'' within 
the meaning of Executive Order 13211.

I. Privacy Act Statement

    Interested parties should be aware that anyone is able to search 
the electronic form of all comments received into any agency docket by 
the name of the individual submitting the comment (or signing the 
comment, 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 (Volume 65, Number 70; 
Pages 19477-78), or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 234

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

[[Page 16423]]

The Final Rule

    In consideration of the foregoing, FRA amends part 234 of chapter 
II, subtitle B of title 49, Code of Federal Regulations, as follows:

PART 234--GRADE CROSSING SAFETY, INCLUDING SIGNAL SYSTEMS, STATE 
ACTION PLANS, AND EMERGENCY NOTIFICATION SYSTEMS

0
1. The authority citation for part 234 is revised to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20152, 21301, 21304, 21311, 
22501 note; Pub. L. 110-432, Div. A, Secs. 202, 205; 28 U.S.C. 2461, 
note; and 49 CFR 1.89.

0
2. Section 234.311 is amended by revising paragraph (a)(2)(ii) and 
adding paragraph (c), to read as follows:


Sec.  234.311  ENS sign placement and maintenance.

    (a) * * *
    (2) * * *
    (ii) At a railroad yard, or a port or dock facility that does not 
meet the definition of ``plant railroad'' in Sec.  234.5, the 
responsible railroad shall place and maintain a minimum of one sign at 
each vehicular entrance to the yard, or the port or dock facility in 
accordance with Sec.  234.309, in lieu of placing signs at each 
crossing within the yard, or the port or dock facility. Each sign must 
be placed so that it is clearly visible to a driver of a motor vehicle 
located at the vehicular entrance to the yard, or the port or dock 
facility.
* * * * *
    (c) Repair or replacement of ENS sign. If an ENS sign required by 
this subpart is discovered by the responsible railroad to be missing, 
damaged, or in any other way unusable to vehicular or pedestrian 
traffic, the responsible railroad shall repair or replace the sign no 
later than 30 calendar days from the time of detection.

0
3. Section 234.317 is amended by revising paragraphs (b), (c)(1)(i) and 
(ii), and (e) to read as follows:


Sec.  234.317  Compliance dates.

* * * * *
    (b) Railroads with nonconforming ENS telephone service. If a 
railroad subject to this subpart already has its own ENS telephone 
service or is using a third-party ENS telephone service, and that 
telephone service does not conform to the requirements in Sec.  234.303 
or Sec.  234.307, respectively, on August 13, 2012, the railroad shall 
comply with this subpart no later than March 1, 2014, pursuant to the 
exceptions in paragraphs (c), (d), and (e) of Sec.  234.317.
    (c) * * *
    (1) * * *
    (i) If the railroad's sign size is greater than or equal to 60 
square inches and the height of the lettering on the sign is greater 
than or equal to \3/4\ inch for the information required in Sec.  
234.309(b)(1) and (b)(3), and greater than or equal to \3/8\ inch for 
the information required in Sec.  234.309(b)(2) on August 13, 2012, the 
railroad may maintain the sign for its useful life.
    (ii) If the railroad's sign size is greater than or equal to 60 
square inches but the height of the lettering is either less than \3/4\ 
inch for the information required in Sec.  234.309(b)(1) and (b)(3), or 
less than \3/8\ inch for the information required in Sec.  
234.309(b)(2) on August 13, 2012, the railroad's sign must conform to 
Sec.  234.309 no later than September 1, 2017.
* * * * *
    (e) Railroads with nonconforming ENS recordkeeping. If a railroad 
subject to this subpart already conducts recordkeeping as part of its 
ENS, and that recordkeeping does not conform to Sec.  234.313 or Sec.  
234.315, the railroad's recordkeeping shall conform to Sec.  234.313 or 
Sec.  234.315 no later than March 1, 2014.

    Issued in Washington, DC, on March 11, 2013.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2013-06083 Filed 3-14-13; 8:45 am]
BILLING CODE 4910-06-P