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Daily Rules, Proposed Rules, and Notices of the Federal Government

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).
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 theFederal Registerto 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 theFederal Register.

ADDRESSES: *Fax:202-493-2251;

*Mail:U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590;

*Hand Delivery: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 tohttp://www.regulations.gov,including any personal information provided. Please see the Privacy Act heading in theSUPPLEMENTARY INFORMATIONsection 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 tohttp://www.regulations.govat 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.See49 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-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, includingthe 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 234.1Scope

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 234.401Definitions

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,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 § 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 234.403Submission 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 § 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 theFederal Registerproviding 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 assignone 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 § 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 theFederal Registerproviding the logistics of such a meeting once the details are finalized.

Section 234.405Submission 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 § 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 DraftInventory 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 § 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 theSecretary 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 § 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.

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 § 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 § 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, conventionalgates, 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 234.407Recordkeeping

Proposed § 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 § 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 234.409Electronic Recordkeeping

Proposed § 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 t