National Highway-Rail Crossing Inventory Reporting Requirements

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2011-0007, Notice No. 4]

RIN 2130-AC26

National Highway-Rail Crossing Inventory Reporting Requirements

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule requires railroads that operate one or more trains through highway-rail or pathway crossings to submit information to the U.S. DOT National Highway-Rail Crossing Inventory about the crossings through which they operate. These amendments, mandated by section 204 of the Rail Safety Improvement Act of 2008, require railroads to submit information about previously unreported and new highway-rail and pathway crossings to the U.S. DOT National Highway-Rail Crossing Inventory and to periodically update existing crossing data.

DATES:

This final rule is effective March 9, 2015. Petitions for reconsideration must be received on or before February 25, 2015. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before April 13, 2015.

ADDRESSES:

Petitions for reconsideration and any comments to petitions for reconsideration must be identified by docket number FRA-2011-0007 and may be submitted by any of the following methods:

•

Online:

Federal eRulemaking Portal,

http://www.regulations.gov.

Follow the online instructions for submitting comments.

•

Fax:

202-493-2251.

•

Mail:

Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590.

•

Hand Delivery:

Room W12-140 on the Ground level of the West Building, U.S. Department of Transportation, Docket Management Facility, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Instructions:

All submissions must include the agency name, docket name and docket number or Regulatory Identifier Number (RIN) for this rulemaking (2130-AC26). Note that all comments received will be posted without change to

http://www.regulations.gov

, including any personal information provided. Please see the Privacy Act heading in the

SUPPLEMENTARY INFORMATION

section of this document for Privacy Act information related to any submitted comments or materials.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

at any time or visit the Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ronald Ries, Staff Director, Highway-Rail Crossing and Trespasser Prevention Programs Division, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6299),

ronald.ries@dot.gov

; or Kathryn Shelton Gresham, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 13, Washington, DC 20590 (telephone: 202-493-6063),

kathryn.gresham@dot.gov

.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

II. Statutory Background

III. The U.S. DOT National Highway-Rail Crossing Inventory Program

A. History

B. Overview of the Reporting Process

C. Use of Crossing Inventory Data in Private Litigation

IV. Section-by-Section Analysis

V. Regulatory Impact and Notices

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

B. Regulatory Flexibility Act and Executive Order 13272

C. Federalism

D. Paperwork Reduction Act

E. Environmental Impact

F. Unfunded Mandates Reform Act of 1995

G. Energy Impact

H. Trade Impact

I. Privacy Act

I. Executive Summary

On October 18, 2012, consistent with the statutory mandate of Section 204(a) of the Rail Safety Improvement Act of 2008 (RSIA) (codified at 49 U.S.C. 20160), FRA published a notice of proposed rulemaking (NPRM) proposing to require railroads to submit certain information to the existing U.S. DOT National Highway-Rail Crossing Inventory (Crossing Inventory). 77 FR 64077. After careful consideration of comments received in response to the NPRM and testimony received at a February 19, 2013 public hearing on FRA's proposal, FRA is amending 49 CFR part 234 to require railroads that operate one or more trains through highway-rail or pathway crossings (

i.e.,

“operating railroads”) to submit certain information to the Crossing Inventory about the highway-rail and pathway crossings through which they operate. This rule furthers FRA's efforts to improve existing data on the characteristics of the Nation's highway-rail and pathway crossings and implements the statutory mandate. Consistent with the statute, this rule requires operating railroads to submit initial reports to the Crossing Inventory, including current information about warning devices and signs, for previously unreported and new highway-rail and pathway crossings. This rule also requires operating railroads to periodically update data in the Crossing Inventory, including the prompt reporting of a crossing sale, crossing closure, or changes in certain crossing characteristics.

In the NPRM, FRA estimated the costs of the proposed rule to be $2.1 million over a 20-year period. Using a 7-percent discount rate, the cost estimate would have been $1.5 million. The final rule's estimated cost is $2.8 million, discounted to $2.0 million (7%). The base cost estimates increased in the final rule due to adjustment of the Congressional Budget Office (CBO) real wage forecasts for each year of the analysis. FRA also updated wage inputs using the Surface Transportation Board's newest wage rates for 2012, which impacted the overall cost estimate. FRA also assumed that the implementation year will be 2014 and adjusted all wages accordingly. While the final rule will not take effect until 2015, FRA does not believe this will materially impact the findings of its analysis. FRA conducted a break-even analysis of the rule and believes that potential benefits from the rule will equal or exceed total costs.

FRA analyzed 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 final rule prior to publication of this rulemaking. FRA estimates that as many as 50 percent of all highway-rail crossings have up-to-date information in the current Crossing Inventory. For more details on the costs, see the Regulatory Evaluation contained

in the public docket. The burdens of the rule relate to the collection of recent information and to the periodic update of the Crossing Inventory. The table below presents the estimated costs associated with the rule.

20-Year Cost for Final Rule

Initial Update of Inventory

$1,178,701

Periodic Update of Inventory

819,473

Total

1,998,174

Future costs are discounted to present value using a 7-percent discount rate.

In the Regulatory Evaluation, FRA has explained what the likely benefits are for the final rule and provided a break-even analysis. The main benefit of the rule is improved Crossing Inventory data. This more precise information will better enable FRA, railroads, and any other entity, to accurately analyze pertinent data, detect trends, and if needed, initiate crossing-related safety initiatives. In this analysis, FRA determined that if there were a decrease of 0.015 percent in crossing accidents over the twenty-year period, the costs of the rule will break-even with the benefits. In the last decade there were over 26,000 collisions at grade crossings. This break-even analysis indicates that preventing at least three incidents over the next twenty years would justify the rule. FRA anticipates that this rulemaking will increase the precision, completeness, and utility of railroad records and will improve the Crossing Inventory and safety. This will allow FRA to identify certain highway-rail crossings and pathway crossings that are not currently recorded in the existing voluntary crossing inventory and analyze the data to identify safety trends and issues. FRA believes that these benefits will offset costs associated with the rulemaking by simplifying the reporting process and decreasing crossing accidents. FRA also believes the value of the anticipated benefits justifies the cost of implementing the final rule.

II. Statutory Background

This final rule implements section 204(a) of RSIA, Public Law 110-432, Division A (Oct. 16, 2008) (codified at 49 U.S.C. 20160 and titled “National crossing inventory”). Consistent with Section 20160, this rule is intended to improve existing data on highway-rail and pathway crossings in the Crossing Inventory. Section 20160 requires the Secretary to establish reporting requirements for railroad carriers for highway-rail and pathway crossings. As stated above, the Secretary delegated this responsibility to the FRA Administrator. 49 CFR 1.89(b).

Section 20160 mandates that the Secretary issue regulations requiring railroad carriers to report certain information, including current information about warning devices and signage, for new and previously unreported highway-rail and pathway crossings to the Crossing Inventory. Section 20160 also requires the Secretary to issue regulations that require railroad carriers to periodically update existing information in the Crossing Inventory about highway-rail and pathway crossings through which they operate. Under Section 20160, whenever a railroad carrier sells all, or a portion of, a highway-rail or pathway crossing it must submit updates. However, in the interim, Section 20160 provides that the Secretary may enforce the Crossing Inventory policy, procedures, and instructions in effect at the time of Section 20160's enactment (October 16, 2008). The policy, procedures, and instructions in effect at the time of Section 20160's enactment are the guidance we issued in August 2007 titled, “U.S. DOT National Highway-Rail Crossing Inventory Policy, Procedures and Instructions for States and Railroads.”

III. The U.S. DOT National Highway-Rail Crossing Inventory Program

A. History

As detailed in the preamble to the NPRM, in August 1972, DOT submitted a Report to Congress titled “Railroad-Highway Safety Part II: Recommendations for Resolving the Problem” (Report). DOT intended for the Report to provide recommendations to Congress for actions that would lead to a significant reduction in accidents, fatalities, personal injuries, and property damage at highway-rail crossings. In the Report, DOT recommended the establishment of an information system consisting of a national database of all highway-rail crossings in the Nation.

Following the submission to and acceptance of the Report by Congress, FHWA, FRA, AAR, certain States and railroads cooperatively developed the Crossing Inventory. Based on an instruction manual that was issued in the early 1970s, railroads and States surveyed each highway-rail crossing —public and private, grade-separated and at-grade—and recorded the data on an inventory form railroads submitted to FRA. This instruction manual evolved into the “Highway-Rail Crossing Inventory Instructions and Procedures Manual,” dated December 1996. A revised policy and set of instructions, “U.S. DOT National Highway-Rail Crossing Inventory Policy, Procedures and Instructions for States and Railroads,” were subsequently issued in August 2007.

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 railroads, States, and others use to obtain information about the physical and operating characteristics of individual crossings. The Crossing Inventory is intended to provide a uniform inventory database which public and private agencies responsible for highway-rail crossing safety, as well as the railroad industry and academia, can merge with highway-rail crossing collision files and use to analyze information for planning and implementation of crossing improvement programs.

The Crossing Inventory receives information from individual railroads and States to form a composite record for each crossing. This composite record has many purposes because 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.

B. Overview of the Reporting Process

As previously explained, the Crossing Inventory is a national database that contains data on highway-rail crossings, which States and railroads have voluntarily submitted. Because the crossing data has been submitted to the Crossing Inventory voluntarily, FRA estimates the Crossing Inventory contains up-to-date information for approximately 50 percent of the highway-rail crossings reported.

To improve the accuracy of existing data in the Crossing Inventory and implement the statutory mandate contained in Section 20160, this final rule requires primary operating railroads (

i.e.,

generally, the railroads that either own or maintain the track through the highway-rail or pathway crossing, or operate the most trains through the crossing) to assign Inventory Numbers to previously unreported and new highway-rail and pathway crossings and, in most cases, to provide the assigned Inventory Number to the other railroads that operate through the crossing. In addition, the rule will require primary operating

railroads to submit completed Inventory Forms (or the electronic equivalent) for previously unreported and new highway-rail and pathway crossings to the Crossing Inventory.

FRA recognizes that as related to new and previously unreported highway-rail and pathway crossings, this rule requires primary operating railroads to submit some crossing data State agencies have traditionally maintained. Therefore, FRA strongly encourages primary operating railroads to work with the appropriate State agencies to obtain this information. However, in the event the primary operating railroad requests crossing data from a State agency that the State has traditionally maintained (

e.g.,

highway system class, highway speed limit, estimated percent of truck traffic, and the average number of school buses per day), but does not timely receive the requested data, the primary operating railroad may notify FRA of the State's lack of response. In such a case, FRA will not hold the primary operating railroad responsible for failing to submit the requested data to the Crossing Inventory. (See the Section-by-Section Analysis of §§ 234.405(d) and 234.407(d) for more information.)

This final rule also requires primary operating railroads to submit periodic updates to the Crossing Inventory every three years. To minimize the burden of submitting periodic updates, the final rule only requires the primary operating railroad to submit updated crossing data for specific data fields on the Inventory Form. Railroads have traditionally completed these data fields, identified in Appendix B to the Inventory Guide, which consist of information that railroads can identify and supply on their own (

e.g.,

the total number of daily train movements and the speed of the trains at the crossing).

This final rule also will require primary operating railroads to submit updates to the Crossing Inventory to report the closure of a highway-rail or pathway crossing within three months of the closure. In addition, the rule will require primary operating railroads to report changes in crossing surface or changes in warning devices at public highway-rail grade crossings within three months of the change. Also, any railroad that sells all, or part, of a highway-rail or pathway crossing must report the crossing sale to the Crossing Inventory within three months of the sale.

As further explained below, this final rule implements the statutory mandate in Section 20160 to issue regulations requiring railroads to submit crossing data to the Crossing Inventory. Although this final rule does not require States to report crossing data to or update data in the Crossing Inventory, DOT, and FRA in particular, will continue to evaluate whether additional regulations are needed to address State reporting to the Crossing Inventory to maintain the accuracy of crossing records contained in the Crossing Inventory. DOT may issue regulations in the future that would address State reporting of public highway-rail and pathway crossing data to the Crossing Inventory. However, as stated above, FRA strongly encourages railroads to work with appropriate State agencies to obtain crossing data the State maintains. Similarly, FRA encourages State agencies responsible for maintaining crossing data to promptly release State-maintained data to railroads, upon request, and to submit timely updates to existing crossing records in the Crossing Inventory. As reflected by the detailed and thoughtful comments our State partners submitted during the course of this rulemaking, State agencies generally share FRA's interest in ensuring that Crossing Inventory records are up-to-date and accurate to the extent permitted by existing resources.

C. Use of Crossing Inventory Data in Private Litigation

FRA received comments on the proposed rule from Orion's Angels, a non-profit organization located in Chattanooga, Tennessee, which recommended that this final rule should allow all crossing data to be discoverable in private litigation so courts can determine whether there has been compliance with railroad safety regulations. However, this recommendation falls outside the scope of FRA's statutory authority. The current prohibition against the use of crossing data in private litigation can be found in 23 U.S.C. 409. RSIA did not amend this statute. Therefore, in the absence of specific statutory authority to revise the current Federal prohibition against the use of crossing data in private litigation, FRA cannot adopt this recommendation in this final rule.

IV. Section-by-Section Analysis

In response to the NPRM, FRA received comments from several State agencies, AAR, the Brotherhood of Railroad Signalmen (BRS), and other individual stakeholders. Although commenters generally expressed support for FRA's goal of improving the accuracy and completeness of Crossing Inventory data, commenters did make several recommendations about the practicalities of implementing the proposed reporting scheme. Accordingly, in developing this final rule, FRA carefully considered each of the comments received, as well as the testimony presented at the February 19, 2013 public hearing on the NPRM. Within the constraints imposed by the specific statutory mandate, FRA has, as appropriate, modified its original proposals in response to the comments received and those modifications are discussed in detail in the relevant section-by-section analyses below.

Section 234.1 Scope

To reflect the proposed expansion of part 234 to include a new subpart F titled, Highway-Rail and Pathway Crossing Inventory Reporting, in the NPRM, FRA proposed to revise paragraph (a) of this section to include a reference to new proposed subpart F. FRA received no substantive comments in response to this specific proposal. Accordingly, with the slight modifications to the proposed language discussed below, FRA is adopting its proposed revisions to this section substantially as proposed.

We are changing references to “public, private, and pathway crossings” in § 234.1 and throughout subpart F to “highway-rail and pathway crossings,” to accurately reflect the proper classification of crossings in the Crossing Inventory. Pathway crossings are not included in the definition of the term “highway-rail crossing.” Thus, pathway crossings (like highway-rail crossings) can be classified as either “public” or “private”, depending on the nature of the pathway.

Subpart F—Highway-Rail and Pathway Crossing Inventory Reporting

Section 234.401 Definitions

This section contains definitions of terms used in this subpart, listed alphabetically. We provide additional explanation for some of these definitions below.

FRA received comments from the Illinois Commerce Commission (ICC) recommending that the definitions of all terms used in the Inventory Guide should be included in the Definitions section of the final rule. However, this section is intended to define terms that are used in the text of the final rule. Therefore, while FRA has reviewed the definitions provided in the Inventory Guide to ensure consistency with the definitions provided in this section, we have not added the definitions of terms used exclusively in the Inventory Guide to this section.

Class I

In the NPRM, FRA proposed to define the term “Class I”, the same as Surface

Transportation Board (STB) regulations. (

See

49 CFR part 1201, General Instructions 1-1, Classification of carriers). As explained in the NPRM, this definition would include any revision to the definition the STB makes after the publication of this subpart, including any modifications in the class threshold based on revenue deflator adjustments. FRA received one comment in response to this proposed definition. Denver Regional Transportation District (Denver RTD), a transit agency that provides passenger rail service, asserted that it seems inappropriate to classify rail transit agencies as Class I, II, or III railroads since rail transit agencies are essentially subsidized public transportation operations. In response to Denver RTD's comment, FRA notes that it does not consider urban rapid transit operators as Class I rail carriers for purposes of this subpart. While the electronic submission requirement set forth in § 234.403(c) applies to Class I railroads, urban rapid transit operators may submit hard copy Inventory Forms to the Crossing Inventory or submit their crossing data electronically.

Closed Crossing

Although not proposed in the NPRM, we added a definition of the term “closed crossing” in this final rule. As discussed below in the Section-by-Section Analysis of § 234.409(a), we added an exception to the requirement to submit periodic updates to the Crossing Inventory for closed crossings. To clarify the crossings to which this exception applies, we defined the term “closed crossing” as a location where a previous crossing no longer exists because either the railroad tracks have been physically removed, or each pathway or roadway approach to the crossing has been physically removed, leaving behind no intersection of railroad tracks with either a pathway or roadway. A grade-separated highway-rail or pathway crossing that has been physically removed is also considered a closed crossing.

Highway-Rail Crossing

In the NPRM, FRA proposed to define “highway-rail crossing” as “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.” In response to this proposed definition, in its comments, Denver RTD asked whether a pathway crossing is essentially a type of highway-rail crossing. A pathway crossing is not a type of highway-rail crossing. As reflected in the current version of FHWA's Manual on Uniform Traffic Control Devices (MUTCD), pathways are public ways that are physically separated from the roadway by an open space or barrier. Therefore, in order to draw a clear distinction between highway-rail and pathway crossings in this final rule, FRA has revised the proposed definition of “highway-rail crossing” by removing the reference to pathways. For purposes of this subpart, the term “highway-rail crossing” is defined as “the location where one or more railroad tracks intersect with a public highway, road, street, or private roadway, either at grade or grade-separated, including associated sidewalks.” This revised definition of “highway-rail crossing” is consistent with generally accepted use of this term.

As explained in the NPRM, for purposes of the Crossing Inventory, railroad tracks that lie within the same pair of crossing warning devices are considered a single highway-rail or pathway 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 two crossings with two separate Inventory Numbers for purposes of the Crossing Inventory. 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

In the NPRM, FRA proposed to define the term “operating railroad” as any railroad that operates one or more trains through a highway-rail crossing or pathway crossing. FRA received three comments about this proposed definition. First, noting that the Inventory Form contemplates the submission of information related to “transit operations,” AAR asserted that it would be inconsistent with FRA's existing statement of agency policy on its safety jurisdiction to require submission of information related to transit operations to the Crossing Inventory. See 49 CFR part 209, appendix A (Appendix A). Despite this assertion, AAR suggested that if FRA were to require rail transit operations to be reported on the Crossing Inventory Form, transit operators, as opposed to general system railroads, should be required to submit the relevant information about those operations. The California Public Utilities Commission (CPUC) and Denver RTD, submitted comments seeking clearer guidance as to the applicability of the reporting and updating requirements contained in this subpart to transit agencies. In its comments, Denver RTD noted that rapid transit operations within an urban area that are not connected to the general railroad system of transportation are generally not considered to be “railroads” subject to FRA regulation. The CPUC submitted comments questioning whether transit agencies may submit crossing data for crossings which are not subject to train movements by railroads that are part of the general railroad system of transportation.

In response to these comments, FRA first notes that AAR's assertion that FRA's policy on jurisdiction over passenger operations “categorically excludes rapid transit operations from [the agency's safety] jurisdiction” is incorrect. Instead, FRA's policy statement (published at 49 CFR part 209, appendix A and titled “FRA's Policy on Jurisdiction Over Passenger Operations”), specifically notes that the agency's statutory authority extends to all railroads except “rapid transit operations in an urban area that are not connected to the general system of transportation.” 49 U.S.C. 20102.

As explained in more detail in Appendix A, the “general railroad system of transportation” is generally defined as the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Further, as explained in Appendix A, FRA can exercise its jurisdiction over a rapid transit operation if it is connected to the general railroad system and the agency does so depending upon the nature of the connection(s). For example, as noted in Appendix A, a connection that involves operation of transit equipment as part of, or over the lines of, the general system will trigger FRA's exercise of jurisdiction. Similarly, as also noted in Appendix A, another connection to the general system sufficient to warrant FRA's exercise of jurisdiction is a railroad crossing at grade where the rapid transit operation and other railroad cross each other's tracks. Further, Appendix A notes that FRA will also exercise jurisdiction to a limited extent over a rapid transit operation that, while not operated on the same tracks as a conventional railroad, is connected to the general system by virtue of operating in a shared right-of-way involving joint control of trains and in situations where transit

operations share highway-rail grade crossings with conventional railroads.

Thus, consistent with Appendix A and after careful consideration of the comments received, in this final rule FRA is revising the definition of “operating railroad” to include urban rapid transit operators that operate “one or more trains through a highway-rail or pathway crossing on, or connected to, the general railroad system of transportation.”

In other words, the term “operating railroad” as defined in this final rule includes urban rapid transit operators that operate trains through highway-rail and pathway crossings which are located on the same track used by railroads that are part of the general railroad system of transportation. Examples of these types of operations include (1) urban rapid transit operations that, even though conducted on the same track used by a general system railroad, are temporally separate from those general system operations, and (2) urban rapid transit operations that constitute simultaneous joint use with train movements by general system railroads. Please see FRA's policy statement (published at 49 CFR part 211, appendix A and titled “Statement of Agency Policy Concerning Waivers Related to Shared Use of Trackage or Rights-of-Way by Light Rail and Conventional Operations”) for a definition of the term, “simultaneous joint use.”

The term “operating railroad” also includes urban rapid transit operators that operate trains through highway-rail and pathway crossings located within a common corridor or right-of-way with railroads that are part of the general railroad system of transportation. For example, an urban rapid transit operator that operates trains on separate tracks through highway-rail and pathway crossings, which are located within a common corridor or right-of-way with railroads that are part of the general railroad system of transportation and are served by the same set of crossing warning devices, is considered an operating railroad.

However, this final rule does not require urban rapid transit operators that operate through highway-rail and pathway crossings which are not on, or connected to, the general system of railroad transportation to submit crossing data to the Crossing Inventory for those crossings. Nevertheless, we encourage urban rapid transit operators to voluntarily submit (and update) crossing data to the Crossing Inventory for highway-rail and pathway crossings that are not on, or connected to, the general system of railroad transportation, in order to improve the accuracy of crossing data reflected in the Crossing Inventory.

It should be noted that urban rapid transit operators are distinguished from commuter railroads that serve an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area. FRA considers commuter railroads, whose primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, to be part of the general railroad system of transportation and are therefore required to comply with the requirements of this subpart.

In its comments, Denver RTD also requested guidance on whether FRA would consider an entity that has a long-term contract with a public transit agency to operate and maintain that agency's rail network the operating railroad, independent of the transit agency. CPUC submitted similar comments requesting guidance on whether a railroad that contracts out its train operations, such as commuter railroads, should identify itself as the primary operating railroad. The CPUC recommended that, in this instance, the commuter railroad should be identified as the primary operating railroad on the Inventory Form, as opposed to the short-term contracted railroad operator. FRA agrees. In situations where a railroad or public transit agency contracts with a third-party to conduct train operations or maintain the track that runs through the highway-rail or pathway crossing at issue, FRA will consider the railroad or public transit agency (not the third-party contractor) to be the operating railroad for purposes of this subpart to ensure long-term continuity in reporting to the Crossing Inventory.

Pathway Crossing

Denver RTD submitted comments seeking clarification as to whether FRA considers pedestrian station crossings to be pathway crossings and whether pathway crossings are considered to be a type of highway-rail crossing.

As discussed above, a pathway crossing is separate and distinct from a highway-rail crossing. While highway-rail crossings may include associated sidewalks, pathway crossings are physically separated from a nearby roadway by an open space or barrier. As explained in the preamble to the NPRM, consistent with Section 20160, for purposes of the Crossing Inventory, a pathway crossing must have all of the following characteristics: (1) Explicit authorization by a public authority or an operating railroad; (2) dedicated use by non-vehicular traffic, including pedestrians, bicyclists, and others; (3) no association with a public highway, road, or street, or a private roadway; and (4) cross one or more railroad tracks either at grade or grade-separated. Since pedestrian station crossings generally have all of these characteristics, we consider them pathway crossings. However, as also noted in the NPRM, we do not consider an area where pedestrians trespass, even routinely, a pathway crossing.

Denver RTD also submitted comments recommending that we revise the definition of “pathway crossing” to require explicit authorization by both the relevant public authority and the railroad that owns or operates over the crossing rather than one or the other. In this final rule, FRA is not adopting this recommendation because it would be inconsistent with the specific criteria for a pathway crossing paragraph (d)(1) of Section 20160 establishes.

Primary Operating Railroad

In the NPRM, FRA proposed to define the term “primary operating railroad” as “the operating railroad responsible for submitting and/or updating data in the Crossing Inventory for a highway-rail crossing or pathway crossing.” Denver RTD objected to this proposed definition and asserted that the proposed criterion for determining what entity is a primary operating railroad over a particular grade crossing was confusing and conflicting, especially with respect to rail transit operators. Therefore, in this final rule, FRA is revising the definition of “primary operating railroad” to include specific criteria that will determine primary operating railroad status. Under this definition, an operating railroad will qualify for primary operating railroad status if the operating railroad either owns or maintains the track through the highway-rail or pathway crossing, unless the crossing is located within a private company, port or dock area. If there is more than one operating railroad that qualifies for primary operating railroad status on the basis of this criterion, then the operating railroad that operates the most trains over the crossing is the primary operating railroad. If there is only one operating railroad that operates one or more trains through a highway-rail or pathway crossing, that operating railroad is the primary operating railroad.

A different method is used to determine primary operating railroad status for crossings located within a private company, port, or dock area. In recognition of the existing practice of

general system railroads to assign Inventory Numbers to these crossings, the definition of “primary operating railroad” provides that each railroad that owns track leading to the private company, port, or dock area is considered a primary operating railroad for the crossings within the private company, port, or dock area—even if the operating railroad does not own or maintain track through the crossings.

Private Crossing

In the NPRM, FRA proposed to define the term “private crossing” as “a highway-rail crossing that is not a public crossing.” In the interest of clarity, in this final rule FRA is revising this proposed definition to include a specific reference to pathway crossings in addition to highway-rail crossings. As explained in the NPRM, the term “private crossing” includes intersections of railroad tracks and roadways that are not open to public travel or maintained by a public authority. This explanation in the NPRM, however, failed to recognize that just as railroad tracks may cross roadways that are not open to the public or maintained by a public authority, railroad tracks also may cross private pathways that are not open to the public or maintained by a public authority. Typical types of private crossings include farm crossings, industrial plant crossings, and residential access crossings.

Public Crossing

In the NPRM, FRA proposed to define the term “public crossing” as follows: “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 received several comments in response to this proposed definition. In response to those comments, which are discussed below, FRA is revising the definition of the term “public crossing” in this final rule to include a specific reference to pathway crossings (in addition to highway-rail crossings) and to replace references to “roadway approaches” in the proposed definition with the more generic term “approaches” because pathway crossings generally do not have roadway approaches. FRA also revised the definition to specify that all approaches to a public crossing must be under the jurisdiction of the public authority and no approach may be on private property, “unless State law or regulation provides otherwise.” Further, FRA notes that for purposes of this definition, “open to public travel” means that the road or pathway section is available (except during scheduled periods, extreme weather, or emergency conditions) and open to the general public for use without restrictive gates, prohibitive signs, or regulation.

As noted in the NPRM, FRA recognizes this definition of “public crossing” 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 222.9 related to the use of locomotive horns and quiet zones. However, as also noted in the NPRM, these criteria are intended to make the definition of the term “public crossing” in this final rule more consistent with the definition of the term “public grade crossing” contained in 23 CFR 924.3, which is widely used by States for Highway Safety Improvement Program planning and funding purposes.

FRA received comments on the definition of “public crossing” from the ICC, which asserted the definition in the proposed rule failed to address situations in which a public authority, such as a forest preserve, owns and maintains the roadway or pathway approaches on both sides of the crossing. In addition, the Louisiana Department of Transportation and Development (LaDOTD) submitted comments recommending that pathway crossings should be classified as public or private, based upon the entity that maintains the approaches to the crossing.

As explained above, if the highway-rail or pathway crossing is open to public travel and each approach to the crossing is under the jurisdiction of and maintained by a public authority, we will generally consider the highway-rail or pathway crossing to be a public crossing for purposes of this subpart. Therefore, a highway-rail or pathway crossing is considered a public crossing for purposes of this subpart, if each approach to the crossing is under the jurisdiction of and maintained by a governmental entity and the crossing is open to the general public for use without restrictive gates, prohibitive signs, or regulation. If only one approach is under the jurisdiction of and maintained by a governmental entity, the crossing will be considered a private crossing unless otherwise provided by State law.

Denver RTD also submitted comments requesting guidance on how to determine the proper classification of a highway-rail or pathway crossing. In its comments, Denver RTD noted that, in many instances, the railroad owns the land on which the highway-rail or pathway crossing is located. While FRA acknowledges that highway-rail and pathway crossings are generally located on privately-owned railroad rights-of-way, the public/private nature of a highway-rail or pathway crossing has traditionally been determined by ownership of the approaches that lead up to the railroad's right-of-way. FRA intends its definition of the term “public crossing” in this final rule to be consistent with this practice.

As noted in the NPRM, 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 and pathway crossings in the State for purposes of the Crossing Inventory. To clarify this point in the final rule and in response to comments received from LaDOTD and Tavla Solutions noting that some States have classified high-way rail grade crossings as public crossings despite the fact that there is only one roadway approach to the crossing on public property, in this final rule, we revised the definition of “public crossing” to include an exception to the requirement that all approaches to the crossing must be on public property “unless State law or regulation provides otherwise.”

Temporary Crossing

In the NPRM, FRA proposed to define “temporary crossing” to mean “a highway-rail crossing created to serve a specific activity for a temporary time period not to exceed six months.” We revised this definition in the final rule to include a specific reference to pathway crossings, which we inadvertently omitted from the definition proposed in the NPRM.

As explained in the NPRM, given the short-term nature of temporary crossings, Inventory Numbers have not historically been assigned to such crossings. FRA intends to maintain this practice and therefore, the reporting and updating requirements contained in this final rule do not apply to any crossing that meets the definition of “temporary crossing.”

AAR's comments recommend that the definition of “temporary crossing” be revised to include crossings that are in existence for a period “not to exceed 12 months.” In support of this recommendation, the AAR asserted that

railroads are often faced with circumstances, such as construction, that necessitate use of a crossing on a temporary basis, but for periods exceeding six months. In its comments, Denver RTD concurred with AAR's recommendation.

Although FRA recognizes the potential for certain non-permanent circumstances, including construction activities, to take longer than six-months, FRA does not believe that it is appropriate for purposes of this rule to define a “temporary crossing” as a crossing that exists more than six months. Moreover, FRA notes that the Crossing Inventory procedure in place for at least 18 years uses a six-month period for classifying highway-rail and pathway crossings as temporary crossings. Consistent with this existing practice, FRA is not revising the proposed definition to increase the temporary time from six months to 12 months. Therefore, if a highway-rail or pathway crossing is reasonably expected to be in use for more than six months, or if it becomes apparent that the highway-rail or pathway crossing will need to remain in use for longer than a six-month period, the primary operating railroad must assign an Inventory Number to the crossing and report the crossing to the Crossing Inventory. When the crossing is no longer needed, the primary operating railroad is required to close the crossing and, under § 234.411(b), provide notification of the crossing closure to the Crossing Inventory.

Section 234.403 Submission of Data to the Crossing Inventory, Generally

As proposed in the NPRM, paragraph (a) of this section requires use of the Inventory Form, or its electronic equivalent, to submit highway-rail and pathway crossing data to the Crossing Inventory. Although we are adopting this paragraph substantially as proposed, in the final rule FRA modified the language slightly to include specific references to both highway-rail and pathway crossings to reflect the two basic categories of grade crossings for which data will be collected. As also proposed in the NPRM, paragraph (a) generally allows submission of the Inventory Form in both hard copy format or electronically.

Consistent with the proposal in the NPRM, paragraph (b) requires completion of the Inventory Form in accordance with the Inventory Guide. In this final rule, FRA is adopting paragraph (b) substantially as proposed, but adding a reference to the “electronic equivalent” of the Inventory Form to make it clear the rule allows for submission of the Inventory Form electronically. As noted in the NPRM and explained in the Inventory Guide, with the exception of highway-rail and pathway crossings that are located in a railroad yard, a passenger station, or an area belonging to a private company, port, or dock, one Inventory Form (or its electronic equivalent) must be submitted to the Crossing Inventory for each highway-rail or pathway crossing. Where there is more than one crossing in a railroad yard, a passenger station, or an area belonging to a private company, port, or dock area, the primary operating railroad may choose to either submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory for each individual crossing or to submit an Inventory Form (or its electronic equivalent) for all (or a group) of the crossings within the railroad yard, passenger station, or area belonging to a private company, port, or dock.

In the NPRM, FRA requested comments on whether it should retain its current practice of allowing railroads to assign a single Inventory Number to a group of crossings in a railroad yard, passenger station, or an area belonging to a private company, port, or a dock area should be retained. FRA received comments on this issue from a private citizen, the AAR, the CPUC, the ICC, Denver RTD, and BRS.

AAR recommended that FRA retain 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. While noting there are a number of private restricted access facilities that have railroad crossings, the AAR asserted that railroads are often granted limited access into these facilities due to security concerns. Therefore, the AAR argued that there continues to be a need for a flexible approach allowing the assignment of a single Inventory Number to multiple crossings located within such facilities. In addition, the AAR noted that assigning a single Inventory Number to a group of crossings in a railroad yard or area belonging to a private company, a port, or a dock would be consistent with FRA requirements to place and maintain only one Emergency Notification System sign at each vehicular entrance to a railroad yard or port or dock facility.

FRA also received comments from the CPUC, ICC, and the BRS asserting that the practice of assigning a single Inventory Number to a group of crossings should cease. The BRS expressed concern that the practice of assigning a single Inventory Number to multiple crossings could hinder accurate reporting of crossing malfunctions, stalled vehicles at crossing locations, and grade crossing accidents. While noting that large ports may have hundreds of crossings, the CPUC asserted that assigning a single DOT Inventory number to an entire port area would make it nearly impossible to identify the location of accidents and safety issues at a particular crossing within the facility. The CPUC recommended that each crossing should be assigned an individual DOT identification number because each crossing may have independent characteristics and accident history. In the alternative, the CPUC recommended that FRA should consider limiting the assignment of a single Inventory Number to multiple crossings located within a very small area, which is privately owned and subject to strictly limited access. The ICC recommended that each unique pathway crossing within a passenger station should be assigned an individual DOT identification number.

After careful consideration of these comments and because the commenters did not provide any specific safety data to support their concerns, FRA has decided to retain the current practice of allowing railroads to assign one Inventory Number to multiple crossings that are located within an area belonging to a private company, a port or a dock area. FRA notes that crossing malfunctions and other crossing incidents are often reported directly to the facility or to an authorized facility representative who has knowledge of, or is otherwise familiar with, the location of crossings on the property. Section 204(a) of the RSIA directs the Secretary of Transportation to issue regulations that require railroads to submit crossing data to the Crossing Inventory. Consistent with that authority, while it might otherwise be reasonable and appropriate to require private property owners to obtain an individual Inventory Number for each highway-rail and pathway crossing on their property, we have determined that the responsibility for obtaining an Inventory Number for crossings located on private property or in a port or dock area should continue to be placed on the railroads who operate through the crossings. Therefore, FRA is retaining the current practice of assigning a single Inventory Number to a group of crossings located on private property, or in a dock or port area, which does not appear to have a negative impact on emergency response to crossing malfunctions or other types of crossing incidents.

As for crossings within passenger stations, Denver RTD recommended that

the Inventory Guide be revised to specifically state that one Inventory Number can be assigned to multiple crossings within a passenger station. As noted above, in these types of locations crossing malfunctions and other crossing incidents are typically reported directly to the facility or to an authorized representative of the facility who has knowledge of, or is otherwise familiar with, the location of the crossings on the property. In addition, the current practice of assigning a single Inventory Number to a group of crossings located in a railroad yard or passenger station does not appear to have a negative impact on emergency response to crossing malfunctions or other types of crossing incidents. Therefore, FRA also has decided to retain the current practice of allowing railroads to assign one Inventory Number to multiple crossings that are located in a railroad yard or passenger station.

Paragraph (c) of this section requires Class I railroads to submit all crossing data to the Crossing Inventory electronically. The net effect of this provision is that Class II and Class III railroads, as well as urban rapid transit operators and State agencies, may submit their crossing data to the Crossing Inventory on a hard-copy Inventory Form or its electronic equivalent, while Class I railroads must submit the data electronically.

In the proposed rule, FRA requested comments on whether it should require additional railroads to submit crossing data electronically to the Crossing Inventory. FRA received comments from the BRS recommending that all parties who are required to submit data to the Crossing Inventory should be required to submit their data electronically. By applying this requirement to all parties, the BRS asserted that FRA would be better able to track crossing data and there would be no issues with the legibility of the data entered on the hard copy Inventory Form. FRA also received comments from the ICC recommending that the scope of the electronic submission requirement should be expanded to require all primary operating railroads and States with more than 5,000 crossings to submit their crossing data electronically to the Crossing Inventory. Denver RTD submitted comments recommending that all crossing data be electronically submitted to the Crossing Inventory, whether submitted by a State agency or an operating railroad. On the other hand, the North Carolina Department of Transportation (NCDOT) submitted comments asserting it would be impractical and cost burdensome to require all railroads to submit crossing data electronically to the Crossing Inventory because some Class III railroads do not have electronic databases for their crossing records.

FRA encourages Class II and Class III railroads, as well as urban rapid transit operators and State agencies, to submit their data electronically to the Crossing Inventory. However, in order to minimize the burdens associated with the reporting and updating of this subpart, the final rule does not require Class II or Class III railroads or urban rapid transit operators to submit crossing data electronically to the Crossing Inventory (unless they are a parent corporation submitting crossing data to the Crossing Inventory on behalf of a subsidiary railroad under paragraph (e) of this section). As for voluntary reporting by State agencies, State agencies may elect to either submit crossing data electronically to the Crossing Inventory or through submission of hard-copy Inventory Forms.

Currently, some States and railroads use a PC-based software product (GX 32) to update the existing Grade Crossing Inventory System (GCIS) that contains the Crossing Inventory database. However, GX 32 will be replaced with a new secure Web-based application on the final rule effective date. This new Web-based application will allow railroads and States to either upload their crossing data to the Crossing Inventory as an electronic file or to complete an online version of the Inventory Form. The new Web-based application will also have the capability to support bulk crossing data submissions. Railroads and States that previously used the GX 32 software product to update the Crossing Inventory will need to adjust their existing electronic data systems to ensure their systems work with the new Web-based application. Please refer to the Electronic Submission Instructions that have been placed in the public docket for more information. FRA also intends to conduct outreach and training on the new Web-based application. More information about these upcoming FRA outreach and training sessions will be provided on FRA's Web site.

Paragraph (d) of this section specifically addresses reporting by State agencies on behalf of operating railroads. In the proposed rule, FRA noted that it intended to allow State agencies with jurisdiction over highway-rail and pathway crossings to submit crossing data to the Crossing Inventory on behalf of primary operating railroads. These provisions were proposed in §§ 234.405(a)(3), 234.405(b)(4), and 234.405(c)(4). However, as proposed, the rule might have allowed a wide range of third parties to submit crossing data to the Crossing Inventory on behalf of the primary operating railroad, which would have inadvertently expanded the intended scope of this provision. Therefore, in this final rule, FRA has redrafted these provisions and included them in paragraph (d) of this section, to specifically address the submission of data to the Crossing Inventory by a State agency on behalf of an operating railroad.

Paragraph (d) is intended to minimize any potential burden the requirements of this subpart may impose on Class III railroads and to accommodate existing arrangements between shortline railroads and State agencies, where State agencies have agreed to submit crossing data to the Crossing Inventory on the railroads' behalf. To take advantage of this provision, the State agency and the operating railroad are required to provide written notice to the FRA Associate Administrator that the State agency has agreed to report and update crossing data in the Crossing Inventory on behalf of the operating railroad for all of the operating railroad's highway-rail and pathway crossings within the state. Unlike FRA's proposal in the NPRM, the operating railroad and State agency are not required to provide positive identification of each individual crossing for which the State agency has agreed to submit and update crossing data in the Crossing Inventory.

NCDOT submitted comments seeking clarification as to the types of sanctions and/or consequences FRA might use to enforce the reporting and updating requirements contained in this subpart against State agencies that have agreed to report and update crossing data in the Crossing Inventory for operating railroads, yet fail to do so. FRA expects State agencies that agree to report and update crossing data on behalf of operating railroads will share FRA's interest in ensuring that Crossing Inventory records for highway-rail and pathway crossings within the State are kept up-to-date and accurate to the extent possible. FRA anticipates there will be few instances in which State agencies fail to timely report and/or update crossing data in the Crossing Inventory, per their agreement with the operating railroad. Nevertheless, FRA does reserve the right to take enforcement action (

e.g.,

in the form of civil penalties or otherwise) against the operating railroad, when appropriate, if a State does not timely comply with the

reporting and updating requirements contained in this subpart on behalf of the operating railroad.

The ICC also submitted comments recommending that the primary operating railroad be allowed to assign responsibility for updating crossing data to a contractor, but not be allowed to assign responsibility for updating crossing data to the appropriate State agency. FRA is not adopting this recommendation with respect to State agency reporting. Operating railroads (including the primary operating railroad) may choose to enter into separate contractual arrangements with third-party contractors for the submission of crossing data to the Crossing Inventory on their behalf without regulatory authority. However, the operating railroad will remain fully responsible to FRA for any errors or omissions in crossing data the third-party contractor submits on its behalf.

We added a new paragraph (e) to this section of the final rule to provide an option for reporting and updating of crossing data to the Crossing Inventory by the parent corporation of certain integrated railroad systems. Specifically, paragraph (e) provides that a parent corporation, and one or more subsidiary railroads, may provide written notification to the FRA Associate Administrator that the parent corporation will assume the reporting and updating responsibilities of its subsidiary railroad for purposes of complying with this subpart. Any written notification provided under paragraph (e) of this section must contain a list of all subsidiary railroads for which the parent corporation will assume reporting and updating responsibility and an explanation of how the parent corporation and the subsidiary railroads operate as a single, seamless, integrated United States railroad system. In addition, any written notification provided under paragraph (e) of this section must include a statement signed by the chief executive officer of the parent corporation, that the parent corporation consents to guarantee any monetary penalty assessments or other liabilities owed to the United States government the named subsidiaries incur for violating the reporting and updating requirements of this subpart. The parent corporation also must agree to provide immediate written notification to the FRA Associate Administrator of any change in the list of subsidiary railroads for which the parent corporation has assumed reporting and updating responsibility. Finally, the parent corporation must agree to submit crossing data for all of the subsidiary railroad's highway-rail and pathway crossings to the Crossing Inventory electronically.

Section 234.405 Submission of Initial Data to the Crossing Inventory for Previously Unreported Crossings

As proposed, this section would have included requirements that primary operating railroads submit data to the Crossing Inventory for previously unreported crossings (proposed paragraph (a)) and new crossings (

i.e.,

crossings not in existence as of effective date of final rule) (proposed paragraph (b)), as well as periodic update requirements (proposed paragraph (c)), and update requirements related to crossing sales, closures and changes in crossing characteristics (proposed paragraph (d)). In this final rule, FRA is revising this section by moving the provisions that address the reporting of new crossings and the periodic updating of existing crossing data, and the provisions that address the reporting of crossing sales, crossing closures, and changes in crossing characteristics, to separate sections. The reporting of new highway-rail and pathway crossings is now under § 234.407, while the periodic updating of existing crossing data is under § 234.409. In addition, the reporting of a crossing sale, crossing closure, or change in crossing characteristics is now under § 234.411.

As proposed in the NPRM, this section made primary operating railroads responsible for submitting completed Inventory Forms or their electronic equivalents, to the Crossing Inventory for previously unreported crossings through which the railroads operate. FRA received a number of comments relating to FRA's proposal to make railroads responsible for submitting completed Inventory Forms, as opposed to limiting railroads' duty to report to only railroad-maintained crossing data. In its comments, AAR recommended that the final rule require railroads to report only railroad-maintained crossing data (

e.g.,

the total number of daily train movements and the speed of the train at the crossing) to the Crossing Inventory and should leave State agencies responsible for reporting State-maintained crossing data (such as highway system class, highway speed limit, estimated percent of truck traffic, and the average number of school buses per day). NCDOT submitted similar comments. In its comments, the Virginia Department of Transportation (VDOT) recommended that State agencies be responsible for updating crossing data because railroads do not have staff in every state. The Florida Department of Transportation (FDOT) recommended that primary operating railroads be required to coordinate with State agencies to obtain State-maintained crossing data before they submit this data to the Crossing Inventory for previously unreported highway-rail and pathway crossings. The ICC submitted comments recommending that State agencies be permitted to submit crossing data to the Crossing Inventory for previously unreported crossings, if the primary operating railroad fails to do so in a timely fashion.

After careful consideration of all comments submitted on this issue, FRA has retained the requirement that primary operating railroads must submit completed Inventory Forms (or the electronic equivalent) to the Crossing Inventory for previously unreported highway-rail and pathway crossings in the final rule. This final rule implements the statutory mandate in Section 20160 to issue regulations requiring railroads to submit crossing data to the Crossing Inventory for previously unreported crossings. While DOT may issue regulations in the future that would address State reporting of public highway-rail and pathway crossings to the Crossing Inventory, this final rule does not require State agencies to report or update the Crossing Inventory. However, FRA strongly encourages primary operating railroads to work with State agencies to obtain crossing data the State maintains.

In response to commenters expressed concerns, and in recognition of the fact that even a primary operating railroad may not have access to all the data necessary to complete an Inventory Form, FRA added a new paragraph (d) to this section. This paragraph establishes a procedure for primary operating railroads to provide official notification to FRA if the primary operating railroad is unable to timely submit a complete Inventory Form (or its electronic equivalent) to the Crossing Inventory because it requested State-maintained crossing data from the State agency that has not yet been received.

This section implements the statutory mandate contained in paragraph (a)(1) of Section 20160, which requires railroad carriers to report current information to the Secretary about warning devices and signs at each previously unreported crossing through which they operate. With respect to the reporting to the Crossing Inventory of previously unreported highway-rail and pathway crossings (which, for purposes of this subpart, are highway-rail and pathway crossings (both at-grade and grade-separated) that were not reported to the Crossing Inventory as of the effective date of this final rule), we

revised paragraph (a) of this section. Paragraph (a) has been revised to include a provision, in paragraph (a)(1)(i), requiring the primary operating railroad to assign an Inventory Number to each previously unreported highway-rail and pathway crossing through which it operates, unless the crossing is located in a railroad yard, passenger station, or within a private company, port, or dock area. If the previously unreported crossings are located in a railroad yard, passenger station, or within a private company, port, or dock area, paragraph (a)(1)(ii) requires the primary operating railroad(s) to assign one or more Inventory Numbers to the previously unreported crossings. In these instances, each railroad that owns track leading to the private company, port, or dock area is considered the primary operating railroad for the crossings within the facility (see definition of “primary operating railroad” in § 234.401). Thus, if more than one railroad owns track leading into a private company, port, or dock area, it is possible that a single crossing could have more than one unique Inventory Number assigned to it. If a primary operating railroad does not already have an Inventory Number it can assign to the previously unreported highway-rail or pathway crossing, then the railroad must obtain an Inventory Number. Instructions for obtaining an Inventory Number are found in the Inventory Guide.

As proposed in the NPRM, paragraph (a)(1)(iii) specifically provides that the requirements to assign Inventory Numbers to crossings and to submit Inventory Forms to the Crossing Inventory do not apply to any crossing meeting the definition of a “temporary crossing.”

We also revised paragraph (a)(2) in the final rule to require the primary operating railroad to provide the assigned Inventory Number to each operating railroad that operates through the previously unreported highway-rail or pathway crossing within ten months of the final rule's effective date. FRA added this requirement because each operating railroad will need to know the Inventory Number assigned to the previously unreported crossing. (For example, the operating railroad will need to be able to verify whether the primary operating railroad has timely reported the previously unreported crossing to the Crossing Inventory.) However, this requirement does not apply to the Inventory Numbers assigned to highway-rail and pathway crossings that are located within a private company, port, or dock area. As stated above, if more than one railroad owns track that leads into a private company, port, or dock area, each railroad that owns track leading to the private company, port, or dock area must assign its own Inventory Number to the highway-rail and pathway crossings that are located within the facility.

As proposed in the NPRM, primary operating railroads would have had six months after the effective date of a final rule to report any previously unreported highway-rail and/or pathway crossings to the Crossing Inventory. NCDOT submitted comments recommending that the reporting requirements contained in the final rule should allow for a 12-month transition period to accommodate changes to database code and validation rules, while FDOT submitted comments recommending that the final rule should allow for a six- to 12-month transition period. On the other hand, the ICC submitted comments recommending that the final rule should allow for a 24-month period after the final rule's effective date before the electronic submission of crossing data to the Crossing Inventory is required, in order to provide sufficient time within which to modify existing crossing database systems or to develop new systems to retain crossing data.

After consideration of these comments, we revised paragraph (a)(3) of this section to extend the proposed six month initial reporting period to allow primary operating railroads to submit completed Inventory Forms (or their electronic equivalent) to the Crossing Inventory for the previously unreported highway-rail and pathway crossings through which they operate within 12 months of the final rule effective date. This will provide additional time for railroads, as well as State agencies, to modify existing systems or to develop new systems. FRA believes 12 months is ample time for railroads to modify their existing systems of reporting or to develop new systems. This 12-month reporting period is applicable, regardless of whether the crossing data is submitted electronically or by hard-copy. FRA recognizes that some Class II and Class III railroads may elect to retain their crossing data on an electronic database, yet submit their crossing data to the Crossing Inventory on hard-copy Inventory Forms. FRA has no objection to this non-Class I railroad practice.

FRA added paragraph (b) of this section to the final rule to address the situation when multiple operating railroads operate trains on separate tracks through the same highway-rail or pathway crossing. As discussed in the Section-by-Section Analysis of the definition of the term “highway-rail crossing,” railroad tracks that lie within the same pair of crossing warning devices are considered a single highway-rail or pathway crossing for purposes of the Crossing Inventory.

AAR's comments expressed agreement with FRA's proposal that when two or more railroads operate on the same track and through the same highway-rail or pathway crossing, the primary operating railroad should provide crossing data to the Crossing Inventory. However, when multiple railroads operate on separate tracks through the same crossing, AAR recommended that each operating railroad should submit separate reports to the Crossing Inventory for crossing data that is unique to its tracks. Denver RTD also submitted comments questioning whether any one railroad should be designated the primary operating railroad in the case of a shared crossing where each operating railroad owns, operates, and maintains its portion of the crossing.

On the other hand, FRA received comments from the ICC recommending that only two entities—the primary operating railroad and the State—be authorized to edit or update crossing data in the Crossing Inventory. In situations involving multiple operating railroads, the ICC recommended that FRA require other operating railroads to provide crossing data to the primary operating railroad for submission to the Crossing Inventory. The Minnesota Department of Transportation submitted similar comments recommending that the railroad responsible for the maintenance of the track at the crossing be the reporting railroad with the obligation to collect the required data, if any, from the other railroads that operate on its line. FDOT also submitted comments recommending that the primary operating railroad should not submit train count data to the Crossing Inventory until after it obtains a total count from all other railroads that operate through the crossing.

As reflected in paragraph (a) of this section, the primary operating railroad is required to submit an accurate and complete Inventory Form, or its electronic equivalent, to the Crossing Inventory for previously unreported highway-rail and pathway crossings. However, in situations involving multiple railroads that operate on separate tracks through the same crossing, it may not be practicable for the primary operating railroad to submit train count and train speed data to the Crossing Inventory on behalf of all of the operating railroads that operate trains through the crossing. The primary

operating railroad may not have sufficient information related to train movements for tracks over which it does not operate or dispatch trains. Therefore, paragraph (b) of this section requires multiple operating railroads that operate on separate tracks through the same highway-rail or pathway crossing to assume responsibility for reporting certain crossing data directly to the Crossing Inventory consistent with the Inventory Guide. This crossing data includes railroad-specific train count and train speed data, as well as railroad-specific location data such as the milepost location, railroad subdivision, and railroad division data. However, the primary operating railroad is still required to submit an accurate and complete Inventory Form, or its electronic equivalent, to the Crossing Inventory for the crossing, which includes train count and train speed data that is specifically related to the primary operating railroad's train operations.

We intend for paragraph (c) of this section to address the situation when the primary operating railroad has not submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for a previously unreported highway-rail or pathway crossing, under paragraph (a) of this section. Unless the primary operating railroad has provided a written certification statement to the FRA Associate Administrator under paragraph (d) of this section that it requested certain crossing data from the appropriate State agency which the State agency has not yet provided, other operating railroads that operate through the previously unreported crossing will need to monitor the Crossing Inventory to confirm that the primary operating railroad has timely submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for the crossing. If an operating railroad discovers that the primary operating railroad has not submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for a previously unreported highway-rail or pathway crossing (which is not a temporary crossing) by March 7, 2016, the operating railroad must provide written notification of this oversight to the FRA Associate Administrator. Otherwise, each operating railroad (including the primary operating railroad) that operates through the unreported highway-rail or pathway crossing may be subject to civil penalties for failure to timely report the crossing to the Crossing Inventory.

FRA received a number of comments that were critical of the requirement contained in paragraph (c) of this section that each operating railroad must notify the FRA Associate Administrator when the primary operating railroad has not submitted a completed Inventory Form, or its electronic equivalent, to the Crossing Inventory. The AAR and the ICC submitted comments asserting that this requirement is burdensome. The AAR further asserted that FRA could implement the statutory mandate in Section 20160, without imposing reporting requirements on secondary railroads, by giving entities other than the primary operating railroad the ability to submit crossing data to the Crossing Inventory. For example, the AAR noted that the proposed rule already contained provisions that would allow reporting by other entities on behalf of the primary operating railroad, which appear to be consistent with other assignment provisions that appear in the rail safety regulations.

Section 20160 contains specific language requiring that each railroad carrier ensure crossing data for previously unreported crossings has been reported to the Crossing Inventory by another railroad carrier that operates through the crossing. As discussed earlier, paragraph (a) of this section requires the primary operating railroad to submit an accurate and complete Inventory Form, or its electronic equivalent, for previously unreported highway-rail and pathway crossings. However, if the primary operating railroad fails to submit a completed Inventory Form in a timely manner, paragraph (c) of this section implements Section 20160's mandate to require each operating railroad to provide written notification to the FRA Associate Administrator that a previously unreported highway-rail or pathway crossing has not been timely reported to the Crossing Inventory. Therefore, we did not change this requirement in the final rule.

The AAR also submitted comments asserting that requiring operating railroads to notify the FRA Associate Administrator when the primary operating railroad has not timely submitted crossing data to the Crossing Inventory would require operating railroads to differentiate between crossings through which they operate trains and crossings through which they simply have trackage rights (but do not operate trains), in order to determine whether they must follow up on a primary railroad's reporting responsibility. FRA acknowledges that the final rule will require railroads to differentiate between crossings through which they operate trains and crossings for which they simply have trackage rights to determine the extent of their reporting and updating responsibilities under this final rule. If a railroad or urban rapid transit operator simply has trackage rights (but does not operate trains) over a highway-rail or pathway crossing that is on, or connected to, the general railroad system of transportation, the railroad or rail transit operator will not be considered an “operating railroad” with respect to that crossing. Therefore, the railroad or rail transit operator will not be required by this subpart to submit or update crossing data to the Crossing Inventory for the highway-rail or pathway crossing for which it simply has trackage rights but does not operate trains.

FRA added paragraph (d) of this section to the final rule to allow the primary operating railroad to provide written notification that it has requested, but not received, certain crossing data, from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data. We added this paragraph to the final rule in response to comments noting that under the proposed rule, the primary operating railroad and all other operating railroads could be held responsible for the timely submission of crossing data, which may only be obtainable from the State agency that maintains highway-rail and pathway crossing data. As noted earlier, the AAR submitted comments asserting that railroads should only be required to report railroad-maintained crossing data to the Crossing Inventory, thus leaving the responsibility for reporting State-maintained crossing data to State agencies. Denver RTD also submitted comments recommending that railroads only be responsible for failing to submit or update crossing information in the Crossing Inventory if the State timely provided the information requested and the railroad nevertheless failed to timely update the Crossing Inventory. The ICC submitted comments recommending that the final rule contain a mechanism for any party to inform the FRA Associate Administrator of the failure of the State agency (or the primary operating railroad) to submit data in a timely manner.

Paragraph (d) will allow the primary operating railroad to submit a written statement to the FRA Associate Administrator, by certified mail, return receipt requested, certifying it requested certain crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data at least 60 days earlier, which the State has not yet provided. If the primary operating railroad provides

this written statement to the FRA Associated Administrator, FRA will not hold the primary operating railroad responsible for failing to submit an accurate and complete Inventory Form (or its electronic equivalent) to the Crossing Inventory. In addition, the rule will not require other operating railroads that operate through the crossing to notify the FRA Associate Administrator that a completed Inventory Form (or its electronic equivalent) has not been submitted for the previously unreported crossing.

To take advantage of this provision, the primary operating railroad must limit the crossing data requested to one or more of the data fields that contain State-maintained crossing data, which the States are being asked to voluntarily update in the Crossing Inventory. We have identified these data fields in Appendix B in the Inventory Guide. The primary operating railroad must mail a written statement to the FRA Associate Administrator by certified mail, return receipt requested, which includes a list of each data field for which the primary operating railroad requested crossing information from the appropriate State agency and the date the crossing data was requested. The primary operating railroad also must mail copies of the written certification statement to each operating railroad that operates through the highway-rail or pathway crossing and to the State agency responsible for maintaining highway-rail and pathway crossing data. In addition, the primary operating railroad must submit the requested crossing data to the Crossing Inventory within 60 days of receipt from the appropriate State agency.

Section 234.407 Submission of Initial Data to the Crossing Inventory for New Crossings

Proposed § 234.407 set forth the recordkeeping requirements for this subpart that would apply to each railroad subject to this subpart. In this final rule, we moved these recordkeeping requirements to §§ 234.413 and 234.407 now addresses the reporting of new highway-rail and pathway crossings to the Crossing Inventory. This section implements paragraph (a)(1) of Section 20160, which requires railroad carriers to report current information to the Secretary about warning devices and signs at each new crossing through which they operate. Specifically, paragraph (a)(1)(i) of this section requires the primary operating railroad to assign an Inventory Number to each new highway-rail and pathway crossings through which it operates. Consistent with the reporting requirements in § 234.405 regarding previously unreported crossings, this requirement does not apply to new highway-rail and pathway crossings located in a railroad yard, passenger station, or within a private company, port, or dock area or to temporary crossings.

If new crossings are located in a railroad yard, passenger station, or within a private company, port or dock area, paragraph (a)(1)(ii) requires the primary operating railroad(s) to assign one or more Inventory Numbers to the crossings. The primary operating railroad(s) may assign an Inventory Number to a specific highway-rail or pathway crossing or to a group of highway-rail and pathway crossings located in a railroad yard, passenger station, or within a private company, port, or dock area.

For new highway-rail and pathway crossings located within a private company, port, or dock area, we will consider each railroad that owns track leading to the private company, port, or dock area the primary operating railroad for the crossings within the facility (see definition of “primary operating railroad” in § 234.401). Thus, if more than one railroad owns track leading into a private company, port or dock area, it is possible that a single crossing could have more than one unique Inventory Number assigned to it. If a primary operating railroad does not already have an Inventory Number that it can assign to the new highway-rail or pathway crossing, the railroad must obtain an Inventory Number. Instructions for obtaining an Inventory Number can be found in the Inventory Guide.

Paragraph (a)(1)(iii) of this section provides that the requirement to assign Inventory Numbers to crossings and report those crossings to the Crossing Inventory does not apply to any crossing meeting the definition of a “temporary” crossing. However, the primary operating railroad must report a highway-rail or pathway crossing that was deemed to be a “temporary” crossing to the Crossing Inventory as a new crossing if it becomes apparent the highway-rail or pathway crossing will remain in place for more than six months.

We also revised paragraph (a)(2) in the final rule to require the primary operating railroad to provide the assigned Inventory Number to each operating railroad that operates through the new highway-rail or pathway crossing no later than four months after the date the crossing becomes operational or ten months after the effective date of this rule, whichever occurs later. FRA added this requirement to the final rule because each operating railroad will need to know the Inventory Number assigned to the new highway-rail or pathway crossing. (For example, the operating railroad will need to verify whether the primary operating railroad timely reported the new crossing to the Crossing Inventory.) However, this requirement does not apply to the Inventory Numbers assigned to highway-rail and pathway crossings located within a private company, port, or dock area. As stated above, if more than one railroad owns track that leads into a private company, port, or area, each railroad that owns track leading to the private company, port, or dock area must assign its own Inventory Numbers to the highway-rail and pathway crossings that are located within the facility.

As proposed in the NPRM, primary operating railroads would have had six months after the effective date of the final rule to report any new highway-rail and/or pathway crossings to the Crossing Inventory. In this final rule, FRA is providing additional flexibility in the timeframe for reporting of new crossings to the Crossing Inventory. Specifically, paragraph (a)(3) of this section requires primary operating railroads to submit accurate and complete Inventory Forms (or their electronic equivalent) to the Crossing Inventory for new highway-rail and pathway crossings through which they operate no later than six months after the crossing becomes operational or within twelve months of the final rule's effective date, whichever occurs later.

FRA received comments from the ICC and the Brotherhood of Railroad Signalmen recommending that the timeframe for reporting new crossings to the Crossing Inventory should be changed to 90 days from the date on which a new crossing is established. In its comments, the ICC explained that this recommended change would standardize the time period for reporting new crossings and changes in crossing characteristics. However, we retained the requirement to report new crossings within six months of the date on which the crossing becomes operational in this final rule consistent with the mandate of Section 20160. We also extended the deadline for submitting crossing data for new highway-rail and pathway crossings to the Crossing Inventory in the final rule to provide additional time for railroads and State agencies to modify existing reporting systems or to develop new systems. This initial extended reporting period applies to the submission of all new crossing data to the Crossing

Inventory, regardless of whether the crossing data is submitted electronically or by hard-copy.

FRA also received comments from the Iowa Department of Transportation recommending not adding new crossings to the Crossing Inventory unless railroads and State agencies have submitted crossing data. However, this final rule implements the statutory mandate in Section 20160 to issue regulations requiring railroads to report current information about new crossings through which they operate. While DOT may issue regulations in the future that address State reporting of public highway-rail and pathway crossing data to the Crossing Inventory, this final rule does not require State agencies to submit crossing data to the Crossing Inventory for new crossings. Therefore, paragraph (a)(3) requires primary operating railroads to submit accurate and complete Inventory Forms (or their electronic equivalent) to the Crossing Inventory for new crossings through which they operate. However, FRA strongly encourages primary operating railroads to work with State agencies to obtain crossing data the State maintains.

Consistent with the addition of paragraph (b) to § 234.405 as applied to previously unreported crossings (discussed above), FRA added a new paragraph (b) to this section in the final rule to address the situation in which multiple operating railroads operate trains on separate tracks through the same highway-rail or pathway crossing. Paragraph (b) requires multiple operating railroads that operate on separate tracks through the same highway-rail or pathway crossing to assume responsibility for reporting certain crossing data directly to the Crossing Inventory consistent with the Inventory Guide. This crossing data includes railroad-specific train count and train speed data, as well as railroad-specific location data such as the milepost location, railroad subdivision, and railroad division data. However, the primary operating railroad is still required to submit an accurate and complete Inventory Form, or its electronic equivalent, to the Crossing Inventory for the crossing, which includes train count and train speed data that is specifically related to the primary operating railroad's train operations.

Consistent with paragraph (c) of § 234.405 as applied to previously unreported crossings, paragraph (c) of this section establishes a requirement that each operating railroad must provide written notification to the FRA Associate Administrator, if the primary operating railroad has not submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for a new highway-rail or pathway crossing. Again, this provision is intended to implement paragraph (a)(2) of Section 20160, which states that each railroad carrier must ensure another railroad carrier that operates through the crossing submits crossing data for new highway-rail and pathway crossings to the Crossing Inventory.

Unless the primary operating railroad has provided a written statement to the FRA Associate Administrator, in accordance with paragraph (d) of this section, certifying that it requested State-maintained crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data which the State agency has not yet provided, other operating railroads that operate through the new crossing will need to monitor the Crossing Inventory to confirm that the primary operating railroad has timely submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for the crossing. If an operating railroad discovers that the primary operating railroad has not submitted a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for a new highway-rail or pathway crossing (which is not a temporary crossing) within six months of the date on which the crossing became operational or March 7, 2016, whichever occurs later, the operating railroad must provide written notification of this oversight to the FRA Associate Administrator. This written notification must include, at a minimum, the latitudinal and longitudinal coordinates of the new highway-rail or pathway crossing. If the operating railroad fails to provide written notification of this oversight to the FRA Associate Administrator, FRA may assess civil penalties against each operating railroad (including the primary operating railroad) that operates through a new crossing, which was not timely reported to the Crossing Inventory.

The AAR submitted comments expressing concern that the written notification requirement in paragraph (c) of this section would create confusion. In its comments, the AAR further asserted that a secondary railroad would have no way of knowing when a primary operating railroad opens a crossing because the primary operating railroad is not required to share this information. However, the installation of new highway-rail and pathway crossings necessarily involves coordination between the primary operating railroad and all other operating railroads that operate trains through the crossing. At the very least, train crews for each operating railroad must be notified of changes in railroad operations that are necessary to accommodate construction work, such as slow orders. When the highway-rail or pathway crossing is complete, train crews will also need to be notified of required actions they must take upon approach to the crossing, such as sounding the locomotive horn to provide an audible warning for highway users. Therefore, it is reasonable to expect that each operating railroad will receive notification from the crossing owner whenever a new highway-rail or pathway crossing becomes operational. Upon receiving notification that a new highway-rail or pathway crossing has become operational, each operating railroad will need to monitor the Crossing Inventory to ensure that the new crossing is timely reported by the primary operating railroad.

Consistent with the addition of paragraph (d) to § 234.405 regarding the reporting of previously unreported crossings to the Crossing Inventory, FRA added a new paragraph (d) to this section allowing primary operating railroads to provide written notification that they have requested, and have not received, certain crossing data from the appropriate State agency responsible for maintaining highway-rail and pathway crossing data. If written notification is provided under this provision, we will not hold the primary operating railroad responsible for failing to submit the crossing data it has requested from the appropriate State agency and not received. In addition, we will not require the other operating railroads that operate through the crossing to notify FRA that a completed Inventory Form (or its electronic equivalent) has not been submitted for the new crossing. However, the primary operating railroad must submit the requested crossing data to the Crossing Inventory within 60 days of receipt from the appropriate State agency.

Section 234.409 Submission of Periodic Updates to the Crossing Inventory

As proposed, provisions related to the periodic updating of information submitted to the Crossing Inventory were contained in paragraph (c) of proposed § 234.405. FRA moved these provisions to § 234.409 in this final rule and revised them to reflect consideration of comments received. We also made minor revisions to this section to include specific references to highway-rail and pathway crossings to reflect the two basic categories of

crossings for which data will be collected in the Crossing Inventory. This section is intended to implement paragraph (b)(1) of Section 20160, which requires railroad carriers to periodically report current information, including information about warning devices and signage as specified by the Secretary, to the Crossing Inventory concerning crossings through which they operate.

As proposed in § 234.405(c)(1), § 234.409(a) of this final rule requires each primary operating railroad to periodically update existing crossing data in the Crossing Inventory for each highway-rail and pathway crossing through which it operates consistent with the Inventory Guide. However, we do not require submission of these periodic updates for closed or grade-separated highway-rail and pathway crossings. FRA has determined that changes in crossing characteristics do not appear to have a significant impact on existing risk levels at closed or grade-separated crossings. Once the highway-rail or pathway crossing has been closed or grade-separated, there will not be any changes at the crossing (other than re-opening the crossing) that have a significant impact on crossing safety.

Paragraph (a) requires each primary operating railroad to submit up-to-date and accurate crossing data on a periodic basis to the Crossing Inventory for each highway-rail and pathway crossing (except grade-separated or closed crossings) through which it operates consistent with the Inventory Guide. The primary operating railroad must submit updated crossing data at least every three years from the date of the most recent submission of data by the primary operating railroad (or on behalf of the primary operating railroad) for the crossing or March 7, 2016, whichever occurs later. For hard-copy submissions to the Crossing Inventory, this three-year period is measured from the date on which the most recent submission of data for the crossing was mailed to the Crossing Inventory by the primary operating railroad (or on behalf of the primary operating railroad). However, FRA recommends that the primary operating railroad submit an update to the Crossing Inventory as soon as practicable, if there is any significant change in train count or train speed data, as opposed to waiting for the next required three-year periodic update to report the change.

FRA extended the deadline for submitting initial periodic updates for existing highway-rail and pathway crossings to the Crossing Inventory in this final rule to three years from the last submittal or 12 months after the final rule effective date, whichever is later (the NPRM provided for updates within three years from the last submittal or six months after effective date of final rule) to provide additional time for primary operating railroads to implement necessary changes to their crossing databases to ensure compatibility with FRA's new Web-based application for the Grade Crossing Inventory System (GCIS) system. We made this revision in response to comments requesting additional time within which to comply with the final rule. FDOT submitted comments recommending that the final rule should allow for at least a six-month period for State agencies and railroads to address issues that will result from subjecting existing records to new validation rules. On the other hand, the AAR submitted comments recommending that the final rule effective date should be at least three years from the date on which the final rule is published to accommodate modifications that railroads and State agencies will need to make to crossing databases they maintain to comply with the reporting and updating requirements of this rule.

FRA notes that primary operating railroads will have at least 14 months from the publication date of this final rule to prepare for the submission of their initial required periodic updates to the Crossing Inventory. Moreover, the deadline for submitting required periodic updates is directly related to the date on which the primary operating railroad last submitted data for the crossing to the Crossing Inventory. Therefore, railroads that have recently submitted updates to their crossing data in the Crossing Inventory will have close to three years to prepare for the submission of their initial required periodic updates.

FRA received comments from LaDOTD recommending that the final rule require submission of periodic updates on a five-year cycle, as opposed to every three years. However, LaDOTD did not submit any evidence to support the longer reporting period. On the other hand, the CPUC submitted comments recommending that we should encourage railroads to provide updates to train counts and train speed when they make significant operational changes. In making this recommendation, the CPUC noted that errors in the average count or maximum speed of trains can result in significant inaccuracies, especially when used in conjunction with the DOT Accident Prediction Formula.

In the absence of evidence that a three-year cycle for the submission of periodic updates to the Crossing Inventory will pose an undue burden on primary operating railroads, FRA retained the requirement to submit periodic updates at least every three years. Section 20160 directs the Secretary to establish requirements for the periodic updating of the Crossing Inventory on either an annual basis or as otherwise specified by the Secretary. The three-year cycle for submitting periodic updates to the Crossing Inventory, which paragraph (a) of this section established, is intended to balance the updating burden imposed on primary operating railroads with the benefits derived from having up-to-date and accurate crossing data in the Crossing Inventory, such as improved grade crossing safety analyses.

FRA also received comments from NCDOT recommending that the final rule be revised to require submission of periodic updates to the Crossing Inventory for grade-separated crossings at least every six years (or possibly every 12 years) to coincide with the three-year periodic updates that must be submitted for highway-rail and pathway grade crossings. Because FRA has found that changes in crossing characteristics do not appear to have a significant impact on existing risk levels at grade-separated crossings, we did not adopt this recommendation.

FRA received a number of comments recommending who FRA should consider the appropriate party required to submit periodic updates of crossing data to the Crossing Inventory. The BRS submitted comments expressing strong support for requiring the primary operating railroad to submit updated crossing data to the Crossing Inventory, especially because FRA has noted its lack of oversight authority with regard to the reporting of crossing data by State agencies. FDOT submitted comments recommending that railroads be required to coordinate with State agencies to obtain State-maintained crossing information for data fields that States are being asked to update on a voluntary basis, as reflected in Appendix B to the Inventory Guide. NCDOT submitted comments recommending that FRA ask State agencies to voluntarily submit crossing data to the Crossing Inventory for data fields on the Inventory Form historically completed by State agencies within three to six months after the primary operating railroad submits crossing data to the Crossing Inventory. Tavla Solutions submitted comments recommending that the GCIS system be designed to facilitate electronic communication with State agencies, especially with respect to data fields on the Inventory Form that have

traditionally completed by State agencies.

The ICC submitted comments recommending that FRA require railroads to continue to provide crossing data updates to the appropriate State agencies for incorporation into the Crossing Inventory. In the alternative, the ICC noted that a mechanism could be developed to provide notice to the appropriate State agency that the primary operating railroad has submitted an update to the Crossing Inventory. While noting that a similar mechanism could be developed to notify the primary operating railroad whenever State agencies submit updated crossing data to the Crossing Inventory, the ICC asserted that this process would be preferable to that outlined in the proposed rule because the appropriate State agency will know whenever a new crossing is added to the Crossing Inventory.

FRA also received comments from the CPUC recommending sending notifications to the appropriate State agency with jurisdiction over grade crossing safety and the operating railroad(s) responsible for submitting crossing data to the Crossing Inventory whenever updated data is posted to the Crossing Inventory. In the alternative, the CPUC recommended that the GCIS system should allow Crossing Inventory users to generate reports that show all changes made during a specified time period, such as the last month, quarter, or year.

After consideration of these comments, FRA has decided to retain the process in the proposed rule wherein the primary operating railroad (and, as further discussed below, other operating railroads) submit updated crossing data directly to the Crossing Inventory. In response to comments the BRS submitted, although FRA previously stated it did not have authority to require States to report, upon further consideration FRA believes that Section 20160 does give the Secretary authority to require States to report and update highway-rail and pathway crossing information in the Crossing Inventory. Therefore, DOT may issue regulations in the future that address State reporting to the Crossing Inventory, which are based upon this existing statutory mandate. However, in the interim, FRA encourages primary operating railroads to send copies of their crossing data to the appropriate State agency responsible for grade crossing safety when they submit crossing data to the Crossing Inventory. As reflected in Appendix B to the Inventory Guide, data fields on the Inventory Form that State agencies have historically completed have generally been assigned to State agencies for updating on a voluntary basis. Therefore, State agencies are encouraged to submit updates to these data fields at least every three years.

We have not designed the current version of the GCIS system to provide email notification or to facilitate electronic communication between State agencies and the primary operating railroad whenever crossing data related to a highway-rail or pathway crossing is submitted to the Crossing Inventory. However, we have configured the GCIS system to allow Crossing Inventory users to download crossing data for multiple crossings or individual crossings. This functionality will allow State agencies and operating railroads to verify that new or previously unreported crossings have been reported to the Crossing Inventory and that required updates have been submitted by the primary operating railroad. In addition, the GCIS system has been designed to allow Crossing Inventory users to generate reports showing all changes that have been made in the Crossing Inventory during a specified time period.

The CPUC submitted comments recommending that there be a process for resolving conflicts that may arise due to State agencies and railroads providing conflicting data for the same data field. To address this potential concern, a private citizen submitted comments proposing that the Crossing Inventory be designed to reflect two entries for data fields for which conflicting data was submitted—one entry for data the primary operating railroad submits and the other entry for data the State submits. The commenter believes that by adopting this approach, the Crossing Inventory could flag conflicting data and record the date on which the data was submitted to the Crossing Inventory, but not allow the crossing data to be overridden by another entity.

The AAR submitted comments recommending that FRA address the possibility that one entity could incorrectly modify or nullify a data field assigned to another entity for updating purposes. FRA also received comments from a private citizen, the Iowa Department of Transportation, the Minnesota Department of Transportation, and NCDOT recommending that railroads be prohibited from overwriting existing highway data and State agencies be prohibited from overwriting existing railroad data in the Crossing Inventory. In addition, LaDOTD recommended that there be a process in place for resolving discrepancies between States and railroads.

In response to these comments, we revised Appendix B to the Inventory Guide to identify which data fields on the Inventory Form must be updated by the primary operating railroad for purposes of the three-year periodic update and which data fields State agencies are being asked to update on a voluntary basis. As a result, there should be fewer potential conflicts between the State agency and the primary operating railroad regarding the appropriate data for a specific data field since the entity responsible for updating the data field is ultimately responsible for ensuring the accuracy of the data submitted for that field. While the historical records associated with each highway-rail and pathway crossing will reflect changes in data that are submitted to the Crossing Inventory by the State agency and the primary operating railroad (and, in some cases, each operating railroad), the GCIS system has not been designed to reflect separate entries for an individual data field on the Inventory Form. Nor has the GCIS system been designed to prohibit entities that are authorized to submit crossing data to the Crossing Inventory from submitting revised data for existing crossing records. However, in the event that disputes arise over the accuracy of crossing data submitted to the Crossing Inventory, FRA will provide assistance upon request.

Consistent with FRA's addition of paragraph (b) to §§ 234.405 and 234.407, we added paragraph (b) to this section to address submission of periodic updates by multiple operating railroads that operate trains on separate tracks through the same highway-rail or pathway crossing. For highway-rail and pathway crossings where multiple operating railroads operate trains on separate tracks through the crossing, paragraph (b) requires each operating railroad to periodically submit up-to-date and accurate crossing data for certain specified data fields on the Inventory Form to the Crossing Inventory consistent with the Inventory Guide. These data fields include railroad-specific train count and train speed data fields, as well as the milepost location, railroad subdivision, and railroad division data fields. Each operating railroad must submit these periodic updates at least every three years from the date of the most recent submission of data for the crossing by that operating railroad, or by March 7, 2016, whichever occurs later. For hard-copy submissions to Crossing Inventory, this three-year period will be measured from mailing date of the most recent

submission of data by the operating railroad (or on behalf of the operating railroad). However, if there is a significant change in train count or train speed data, FRA recommends that the operating railroad submit an update to the Crossing Inventory, as opposed to waiting for the next required three-year periodic update.

Consistent with paragraph (c) of §§ 234.405 and 234.407, paragraph (c) of this section establishes a requirement that each operating railroad must provide written notification to the FRA Associate Administrator if the primary operating railroad fails to timely submit up-to-date crossing data to the Crossing Inventory for a highway-rail or pathway crossing (other than a grade-separated crossing) through which it operates. This provision is intended to implement paragraph (b)(1)(B) of Section 20160, which states that each railroad carrier must ensure updated crossing information is periodically submitted to the Crossing Inventory by another railroad carrier that operates through the crossing.

If the primary operating railroad fails to submit up-to-date crossing data to the Crossing Inventory for a highway-rail grade crossing or pathway grade crossing within three years from the date of its last submission of crossing data to the Crossing Inventory for that crossing or March 7, 2016, whichever occurs later, each operating railroad that operates through the crossing must provide written notification of this oversight to the FRA Associate Administrator. This written notification must include, at a minimum, the Inventory Number for each highway-rail and pathway crossing through which it operates that was not timely updated by the primary operating railroad.

Section 234.411 Changes Requiring Submission of Updated Information to the Crossing Inventory

Paragraph (d) of proposed § 234.405 addressed changes requiring submission of updated information to the Crossing Inventory. In this final rule, FRA moved those provisions to § 234.411. Specifically, proposed § 234.405(d) is now § 234.411(a) and proposed § 234.405(e) is now paragraphs (b) and (c) of this section.

Paragraph (a) contains updating requirements for the sale of a highway-rail or pathway crossing. This provision implements paragraph (b)(2) of Section 20160, which requires each railroad carrier that sells a crossing or any part of a crossing to report to the Secretary current information concerning the change in ownership of the crossing within three months of the date of sale, or as otherwise specified in regulations.

Paragraph (a) requires any railroad that sells all, or part, of a highway-rail or pathway crossing to submit updated ownership data to the Crossing Inventory within three months of the date of sale or March 7, 2016, whichever occurs later, in accordance with § 234.403. In this final rule, FRA has provided additional flexibility in the reporting of crossing sales by extending the reporting deadline to the latter of three months after the date of sale or 12 months after the final rule effective date. This will provide additional time for operating railroads to implement necessary changes to their crossing databases prior to the submission of updated crossing ownership data to the Crossing Inventory.

FRA received comments from Denver RTD recommending that the final rule confirm that the “date of sale” referenced in paragraph (a) of this section refers to the date title passes, not the date a purchase and sale agreement has been executed. In response to this comment, FRA confirms that the “date of sale” in paragraph (a) of this section means the date title is transferred.

A railroad that sells all, or part, of a highway-rail or pathway crossing should consult the Inventory Guide for guidance on reporting the crossing sale to the Crossing Inventory. In addition, FRA strongly recommends that the primary operating railroad submit updated crossing data for all of the data fields Appendix B to the Inventory Guide assigns to railroads within six months of the date on which the crossing was sold.

The rule requires the primary operating railroad to submit a periodic update to the Crossing Inventory for the recently acquired highway-rail or pathway crossing to the Crossing Inventory under § 234.409 within three years of the date on which the last periodic update for the crossing was submitted to the Crossing Inventory. The report of crossing sale by the previous owner does not constitute a periodic update and therefore cannot be used for purposes of determining the date on which the next periodic update required by § 234.409 will become due for the recently acquired highway-rail or pathway crossing.

Paragraph (b) of this section contains the reporting requirements applicable to the closure of a crossing (these requirements were included in proposed § 234.405(e) of the NPRM). When a highway-rail or pathway crossing is closed, the primary operating railroad is required to submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory that reflects the closure of the crossing within three months of the date on which the crossing is closed or March 7, 2016, whichever occurs later. We extended this deadline from the NPRM proposed three month deadline to allow reporting up to 12 months after the final rule's effective date. This will provide additional time for primary operating railroads to implement necessary changes to their crossings databases prior to the submission of updated crossing data to the Crossing Inventory. The primary operating railroad should consult the Inventory Guide for guidance on reporting the closure of a highway-rail or pathway crossing to the Crossing Inventory.

Paragraph (c) in the final rule requires the primary operating railroad to submit an Inventory Form (or its electronic equivalent) to the Crossing Inventory which reflects updated crossing information consistent with the Inventory Guide and § 234.403, when there is a change in crossing surface or a change in warning device at a public highway-rail grade crossing within three months of the date the change was implemented. This is a change from the NPRM proposed requirement which would have required the reporting of a change in crossing surface or change in warning device at any public or private highway-rail or pathway crossing to the Crossing Inventory. The scope of this proposed requirement has been limited in the final rule because railroads are not required to submit data on crossing surface or crossing warning devices for private highway-rail grade crossings, pathway crossings, or grade-separated crossings. However, FRA strongly encourages railroads to voluntarily report data on train-activated warning devices, crossing signs, and crossing surface at private highway-rail grade crossings and pathway crossings to the Crossing Inventory. The National Transportation Safety Board (NTSB) recently issued Safety Recommendation R-14-48 that FRA should require equivalent levels of reporting for both public and private highway-rail grade crossings. FRA also received comments in support of requiring railroads to complete the entire Inventory Form for private highway-rail grade and pathway crossings. Therefore, FRA may issue regulations in the future that would require railroads to provide additional data on private highway-rail and pathway crossings to the Crossing Inventory.

Paragraph (c)(2) defines a “change in warning device” as “the addition or removal of a crossbuck, yield or stop sign, flashing lights, or gates at a public

highway-rail grade crossing.” Consistent with the NPRM, a “change in warning device” means a change in the type of warning device installed at the crossing as opposed to a modification of an existing crossing device or replacement of a damaged or missing warning device. For example, the addition of cantilevered lights to a crossing that is already equipped with post-mounted flashing lights would be considered a “change in warning device” for the purpose of this provision. The installation of two-quadrant, three-quadrant, or four-quadrant gate systems where none were previously installed, or where existing warning systems are upgraded, would also be considered a “change in warning device” for the purpose of this provision. However, a change from incandescent to LED flashing lights would not be considered a “change in warning device” for the purpose of this provision.

Prior to the submission of updated information concerning a change in crossing surface or change in warning device, the primary operating railroad should consult the Inventory Guide for guidance. FRA revised the Inventory Guide to clarify that, when there has been a change in crossing surface (such as replacing an asphalt crossing surface with a concrete crossing surface) or a change in warning device at a public highway-rail grade crossing, the primary operating railroad must update all data fields in Parts II and III of the Inventory Form. However, as stated in paragraph (c)(2), primary operating railroads are not required to report changes in warning devices to the Crossing Inventory that will be in place for a period not to exceed six months.

In the preamble to the proposed rule, FRA solicited comments on the proposed requirement to report changes in crossing surface and changes in warning devices to the Crossing Inventory. The AAR submitted comments in support of the proposed requirement to report changes in crossing surface and changes in warning devices, as well as crossing closures, to the Crossing Inventory within three months of the date on which either the change is made or the crossing is closed. The CPUC submitted comments recommending that the proposed requirement to report changes in crossing surface and changes in warning devices be revised to require the primary operating railroad to report these changes to the appropriate State agency within 30 days. The CPUC then recommended that the State agency should be given 60 days within which to report the change to the Crossing Inventory. FRA also received comments from the ICC recommending that the reporting of changes to crossing characteristics be expanded to include changes to any data field element that feeds into the national risk assessment tool (PCAPS) utilized by FRA.

On the other hand, FRA received comments from NCDOT recommending that the final rule be revised to provide a six-month timeframe for the reporting of crossing closures, changes in crossing surface, and changes in warning device at highway-rail and pathway crossings. In making this recommendation, NCDOT asserted that the proposed three-month timeframe will not provide sufficient time to generate the required reports for the Crossing Inventory and may result in an undue financial burden, especially for State agencies that agree to submit crossing data to the Crossing Inventory on behalf of operating railroads. In addition, Denver RTD submitted comments recommending that the final rule be revised so that FRA will not hold the primary operating railroad responsible for failing to timely report changes in crossing characteristics if the appropriate State agency fails to notify the primary operating railroad of a change that has been made to the crossing.

After considering these comments, FRA decided to retain the requirement that the primary operating railroad must report changes in crossing surface and changes in warning devices directly to the Crossing Inventory within three months. We retained the three-month period for reporting changes in crossing surface and changes in warning devices by the primary operating railroad in the final rule to be consistent with the requirement in paragraph (a) of this section to report the sale of all, or part, of a highway-rail or pathway crossing to the Crossing Inventory within three months. FRA notes that changes in crossing surface and changes in warning devices are generally planned well in advance and require coordination between the crossing owner and the State agency during the planning process. Therefore, we recommend that State agencies which agree to submit crossing data on behalf of operating railroads include an additional step in their planning processes for the reporting of changes in crossing surface and changes in warning devices to the Crossing Inventory to ensure the timely reporting of these changes.

With regard to the concern expressed by Denver RTD related to FRA enforcement activity in situations in which a State or local government has installed or removed a yield or stop sign at a public highway-rail grade crossing without notifying the primary operating railroad, FRA has prosecutorial discretion to forgo enforcement if the primary operating railroad fails to submit updated crossing data to the Crossing Inventory within three months of the installation or removal of a yield or stop sign because the State or local entity installed or removed the sign without notifying the primary operating railroad. However, the primary operating railroad must submit up-to-date and accurate crossing data to the Crossing Inventory for each data field Appendix B to the Inventory Guide assigns to railroads for updating within three months of the date on which the primary operating railroad becomes aware that the State or local government has installed (or removed) a yield or stop sign at the crossing.

Section 234.413 Recordkeeping

Denver RTD submitted comments on the provisions contained within this section in the proposed rule recommending that FRA defer to State laws governing the public's right of inspection of public records, with respect to the accessibility, format, and timeframes for retaining railroad records of compliance with the requirements of this subpart. However, the recordkeeping requirements contained in this section reflect the exercise of FRA's longstanding statutory authority to require railroads to produce, and make available for FRA inspection, relevant records of compliance with Federal safety regulations. Therefore, because we intend this section to require operating railroads to make their records of compliance reasonably available to FRA inspectors for inspection and enforcement purposes, we did not revise this section in the final rule.

Section 234.415 Electronic Recordkeeping

We did not revise this section in the final rule. FRA received comments on the electronic recordkeeping provision in the proposed rule from Denver RTD recommending that electronic records be retained solely in non-native format so crossing data submitted to FRA cannot be changed. FRA agrees that electronic records of crossing data submitted to the Crossing Inventory must be retained in a manner that will not allow subsequent changes to be made to the original electronic record. However, FRA believes that paragraph (a) of this section, requiring the railroad to adequately limit and control accessibility to electronic records of crossing data they have submitted to the Crossing Inventory adequately addresses

this concern. In addition, FRA notes that the GCIS system will maintain independent records of crossing data that was submitted electronically to the Crossing Inventory, which FRA can use for verification purposes if necessary.

Denver RTD also submitted comments asserting that the requirements contained in paragraph (a) of this section may discourage electronic recordkeeping by requiring access, safety, and other control provisions that are not required for paper recordkeeping and do not appear to be consistent with current technology. For example, Denver RTD stated it did not understand the purpose of the dedicated terminal paragraph (a)(2) of this section requires. In addition, Denver RTD suggested that FRA consider email capability as relevant as fax and printer connections for purposes of paragraph (a)(3) of this section. FRA acknowledges that the electronic recordkeeping requirements in this section are not identical to the recordkeeping requirements in § 234.413, which generally apply to the retention of hard-copy records. However, the electronic recordkeeping requirements in this section are consistent with requirements in other FRA regulations that also permit electronic recordkeeping, such as § 234.315 of this part.

With respect to Denver RTD's specific comment asking about the purpose of the dedicated terminal required by paragraph (a)(2) of this section, we retained the requirement in the proposed rule that requires railroads to make a computer available at the office where the railroad reporting officer conducts his/her official business and at each location the railroad designates as having a copy of any required crossing records to ensure FRA inspectors are granted access the electronic records stored at these locations. FRA agrees that it would be helpful if the computer made available to FRA inspectors also has email capability so the operating railroad could also email any requested documents to FRA inspectors upon request. However, to reduce the burden on operating railroads that may wish to retain electronic records under this section, we did not revise the final rule to include an additional regulatory provision requiring an operating railroad to provide a computer with email capability. The operating railroad can provide its electronic records to FRA inspectors by email without the need for an additional regulatory provision/requirement.

Appendix A to Part 234—Schedule of Civil Penalties

FRA revised this appendix by adding recommended civil penalties for specific violations of the reporting and updating requirements contained in subpart F of this part. For example, we added recommended civil penalties for failure of a Class I railroad to submit crossing data to the Crossing Inventory electronically, as well as failure by the primary operating railroad to timely submit accurate and complete Inventory Forms (or their electronic equivalent) to the Crossing Inventory for new and previously unreported crossings.

Denver RTD responded to FRA's invitation to submit recommendations on appropriate civil penalty amounts it should issue for non-compliance with the requirements of this subpart. In its comments, Denver RTD stated the civil penalties established for non-compliance with the reporting and updating requirements contained in this subpart should not be excessive since they will be applied equally to Class I railroads and publicly operated transit agencies. Thus, Denver RTD recommended that failure to timely submit Inventory Forms (or their electronic equivalent) to the Crossing Inventory be treated as recordkeeping violations with associated civil penalties in the range of $1,000-$2,000.

While FRA agrees that we should not establish excessive civil penalty amounts for violations of the reporting and updating requirements in this subpart, we believe it is reasonable to establish standard civil penalties for violations of this subpart which are consistent with civil penalties FRA established for failure to comply with the reporting requirements in 49 CFR parts 225 and 234. Therefore, primary operating railroads and other operating railroads that fail to timely submit Inventory Forms (or their electronic equivalent) to the Crossing Inventory may be subject to a $2,500 standard civil penalty per crossing per day. However, after FRA issues a civil penalty, FRA may adjust or compromise the initial penalty claim(s) based on a wide variety of mitigating factors, which include the severity of the safety or health risk presented, the entity's compliance history, the entity's ability to pay the assessed civil penalty, and evidence that the entity acted in good faith.

FRA Guide for Preparing U.S. DOT Crossing Inventory Forms

The ICC submitted comments recommending that the Inventory Form should be submitted to an independent third party that specializes in data and asset management inventory systems so that current best practices may be incorporated. Then, once the desired data elements have been identified, defined, and responsibility assigned, several alternative versions of a new and improved inventory form which is consistent with modern asset management information systems could be created for approval. In the alternative, the ICC recommended that FRA delete all data fields on the Inventory Form it proposed as “optional,” unless it can make a business case justifying the time and expense to retain the data field.

FRA appreciates the recommendation to recreate the Inventory Form by evaluating each proposed data field for its continued usefulness and incorporating current best practices. However, FRA has decided to instead make revisions to the Inventory Form consistent with other comments the general public and all affected parties who have reviewed and evaluated it submitted. FRA notes that the Inventory Form was extensively vetted with State agencies and railroads prior to the issuance of the NPRM in this rulemaking.

We retained most of the optional data fields on the Inventory Form. Railroads and States are not required to submit data for these data fields. Therefore, railroads and States are free to determine whether the safety benefits associated with the collection and evaluation of additional crossing information railroads and States voluntarily provide is justified by the time and expense associated with the collection and retention of this data.

Instructions for Completing the U.S. DOT Crossing Inventory Form

In the proposed rule, FRA requested comments on whether we should retain the proposed Instructions in the Header of the Inventory Form. While the majority of commenters generally supported retaining Instructions in the Header of the Inventory Form, several commenters stated the proposed Instructions in the Header of the Inventory Form conflicted with the instructions in the Inventory Guide for submission of the Inventory Form.

FRA agrees the proposed Instructions at the top of the Inventory Form were inconsistent with the guidance the Inventory Guide provided on the submission of Crossing Inventory Forms. Therefore, we revised the Instructions at the top of the Inventory Form to be consistent with the guidance in the Inventory Guide.

The CPUC submitted comments recommending that FRA also revise the

Instructions at the top of the Inventory Form to direct Crossing Inventory users to complete the Submission Information section at the end of the form. However, NCDOT recommended that FRA remove the Submission Information section from the Inventory Form and require Crossing Inventory users to submit hard-copy Inventory Forms with a cover letter that provides the identity and contact information for the Crossing Inventory user.

While FRA agrees that revising the Instructions at the top of the Inventory Form would be beneficial, we decline to require Crossing Inventory users to submit cover letters with their hard-copy Inventory Forms in this final rule. We believe it is more burdensome to require Crossing Inventory users to prepare and submit a cover letter than to require Crossing Inventory users to complete four data fields at the bottom of the hard-copy Inventory Form. Therefore, we revised the Instructions to direct Crossing Inventory users to complete the Submission Information section at the end of the Inventory Form when submitting crossing data by hard copy. However, Crossing Inventory users will not be required to complete the Submission Information section when they submit crossing data electronically to the Crossing Inventory. The GCIS system has been designed to retain a record of the identity of the Crossing Inventory user, along with the date on which data is electronically submitted to the Crossing Inventory.

AAR also submitted comments recommending that FRA explain which data fields on the Inventory Form railroads must complete and which data fields State agencies must complete. In response to this recommendation, the Introduction to the Inventory Guide explains which Parts of the Inventory Form need to be completed for the initial reporting of crossing data for new and previously unreported highway-rail and pathway crossings. Appendix B to the Inventory Guide also contains a Responsibility Table which shows the data fields that primary operating railroads must update, as well as the data fields that State agencies are assigned for voluntary updating in the Crossing Inventory.

Header Information

Revision Date

We retained the Revision Date data field (Item A in the Header of the Inventory Form) as proposed. Since the date the Inventory Form is submitted to the Crossing Inventory will often differ from the date changes took effect at the crossing, NCDOT and the ICC submitted comments recommending that we revise the Revision Date data field to show the date the changes in the Inventory Form took effect. However, the Revision Date data field is intended to show the date the Crossing Inventory was updated to reflect changes at the crossing. By requesting that reporting entities provide the date on which the Crossing Inventory Form was mailed or electronically submitted, the Crossing Inventory should contain a reasonably accurate record of the dates on which the Crossing Inventory was updated. This will assist operating railroads in determining when future periodic updates will become due.

NCDOT also recommended that the Crossing Inventory should reflect separate submission dates for crossing data railroads supply and crossing data State agencies supply. As explained above, we designed the GCIS system to record the date crossing updates are electronically submitted to the Crossing Inventory, as well as the identity of the reporting entity who submitted the update. With respect to hard copy submissions, the Crossing Inventory will reflect the date contained provided in the Revision Date data field for each update.

Reporting Agency

FRA retained the Reporting Agency data field (Item B in the Header of the Inventory Form) as proposed.

The CPUC submitted comments recommending that we eliminate the “Other” box from the “Reporting Agency” data field on the Inventory Form. Instead of allowing local agencies to submit crossing data directly to FRA, the CPUC stated that the local agency should be instructed to provide updated crossing data to the State agency and/or the railroad for submission to the DOT Crossing Inventory.

FRA regulations in 49 CFR part 222 (49 CFR 222.49(a)), allow local governments that meet the definition of a “public authority” to file Inventory Forms with FRA if the State agency and railroad fail to timely do so. Therefore, we retained the “Other” box in the Reporting Agency data field to reflect FRA entry of updated crossing data for quiet zone-related purposes. The “Other” box is only intended for FRA use. Accordingly, to avoid improper use of the “Other” box, the GCIS system will not permit non-FRA users to check the “Other” box when submitting crossing data electronically.

The CPUC expressed strong support for retaining the “Transit” box in the “Reporting Agency” data field due to the large number of crossings in California that also have urban rapid transit tracks and/or urban rapid transit operations through the same crossing. However, the CPUC and Denver RTD encouraged FRA to include a discussion in the Inventory Guide on whether (and how) transit agencies are required to submit data for crossings subject to urban rail transit operations. NCDOT also requested clarification on the application of the proposed crossing reporting requirements to transit agencies.

We retained the “Transit” box in the “Reporting Agency” data field. However, we added a discussion in the Inventory Guide on urban rapid transit operators who are subject to the reporting and updating requirements in the Crossing Inventory final rule. (The Section-by-Section Analysis of the definition of “operating railroad” in § 234.401 also contains a detailed discussion on the application of the reporting and updating requirements of this subpart to urban rapid transit operators.) Urban rapid transit operators who submit crossing data to the Crossing Inventory (whether voluntarily or otherwise) should therefore check the “Transit” box in the “Reporting Agency” data field.

Reason for Update

In the proposed rule, FRA requested comments on whether the rule should give railroads and States the option to select more than one reason for submitting data to the Crossing Inventory. FRA received comments from four State transportation agencies and the AAR expressing support for allowing railroads and States to select more than one reason for submitting crossing data to the DOT Crossing Inventory. The AAR reasoned that allowing States and railroads to select more than one reason for submitting crossing data to the DOT Crossing Inventory would allow them to capture more than one change in a single submittal.

However, FRA also received comments from the ICC and FDOT recommending that FRA limit railroad and State users to selection of one reason for update. After considering the comments submitted, FRA decided to continue to require railroad and State users to select only one reason for update per submission. This will ensure historical records in the Crossing Inventory continue to reflect the primary reason for each data submission.

FRA also received comments from LaDOTD and Tavla Solutions recommending that the Inventory Guide should indicate which entities have authority to submit the various types of

updates in the “Reason for Update” data field. In response to this recommendation, we revised the Inventory Guide to state that only operating railroads should check the “New Crossing”, “No Train Traffic”, “Re-Open”, and “Change in Primary Operating RR” boxes. However, all reporting entities may check the “Change in Data”, “Date Change Only”, “Closed”, and “Admin. Correction” boxes.

New Crossing:

The CPUC submitted comments recommending that the Inventory Guide description of the “New Crossing” box in the “Reason for Update” data field reference “open” crossings as opposed to “active” crossings. The CPUC noted that the term “active crossing” is often used to refer to crossings equipped with automatic warning devices such as flashing light signals and gates. Thus, use of this term could limit the intended scope of the “New Crossing” box in the “Reason for Update” data field. FRA agrees and adopted this recommendation.

Closed:

LaDOTD and Tavla Solutions submitted comments stating that the removal of track, or otherwise disconnecting crossings from the main line, should cause all crossings on that segment of rail line to be classified as closed crossings. NCDOT submitted comments stating removal of the crossing surface or other situations that make it impossible to use the crossing (such as fencing) should qualify as closing the crossing. For purposes of the “Reason for Update” data field, the “Closed Crossing” box should be checked when the railroad tracks have been physically removed or each pathway or roadway approach to the crossing have been physically removed. However, the “Closed Crossing” box only should be checked in situations involving the permanent closure of a highway-rail or pathway crossing. The use of fencing to deter or otherwise prevent access to the crossing does not constitute closure of a crossing for purposes of the Crossing Inventory.

No Train Traffic:

The CPUC submitted comments recommending that the “Abandoned” box be eliminated from the “Reason for Update” data field. In support of this recommendation, the CPUC stated that abandonment of the segment of track on which a crossing is located under the authority of the Surface Transportation Board, merely means the railroad is no longer required to provide railroad service on that track segment. It does not necessarily indicate that the crossing is no longer used or maintained.

However, FRA also received comments in support of retaining the “Abandoned” box in the “Reason for Update” data field. NCDOT submitted comments recommending that the “Abandoned” box be retained to capture data on highway-rail and pathway crossings that are located on abandoned track yet are still used by hi-rail and other authorized vehicles that access the railroad right-of-way.

FRA also received comments recommending that the “Out-of-Service/Inactive” box be removed from the “Reason for Update” data field. The AAR stated that FRA should remove the “Out-of-Service/Inactive” box because there are no fixed definitions of “out-of-service” or “inactive.” The CPUC stated that the data collected would be unlikely to accurately reflect the physical or operational status of the crossing since rail lines are often placed back into service with little or no notification to authorities.

After considering the comments received, we removed the Abandoned and Out-of-Service/Inactive boxes from the “Reason for Update” data field on the final Inventory Form. However, FRA intends to continue to collect data regarding the operational status of crossings, as it may be useful to filter out crossings that are not subject to train traffic when conducting statistical analyses. Therefore, we added a new box titled, “No Train Traffic” to the “Reason for Update” data field on the Inventory Form to continue FRA's efforts to identify crossings that no longer have train traffic.

We strongly encourage railroads to update the Crossing Inventory to reflect changes to “No Train Traffic” status as soon as possible. However, it is important to note the “No Train Traffic” box/category is separate and distinct from the “Closed” box/category. The “Closed” box/category applies to crossings where the roadway approaches or railroad tracks have been physically removed, leaving behind no intersection of railroad tracks with either a pathway or roadway. Also, as discussed in more detail in the Section-by-Section Analysis of § 234.411(b), the primary operating railroad must report the closure of a highway-rail or pathway crossing to the Crossing Inventory within three months.

Re-Open:

The ICC submitted comments recommending that the “Re-Open” box be removed from the “Reason for Update” data field because the re-opening of crossings can be reported by checking the “Change in Data” box. However, FRA has decided to retain the “Re-Open” box in the “Reason for Update” data field to continue FRA's efforts to capture accurate data on the status of formerly closed crossings or crossings that are placed back into active service.

The ICC also recommended that the final rule only allow State agencies to submit updates to the Crossing Inventory that reflect the re-opening of a formerly closed public crossing or a public crossing that was previously not subject to train traffic. However, as the Inventory Guide states, the primary operating railroad is responsible for providing updates to the Crossing Inventory showing the re-opening of a highway-rail or pathway crossing and that railroad should have ready access to up-to-date train traffic data for the crossing. While the primary operating railroad must report this change in operating status in the periodic update § 234.409(a) requires, we also strongly encourage the primary operating railroad to update the Crossing Inventory as soon as possible after a highway-rail or pathway crossing is placed back in service.

Date Change Only:

While expressing concern that FRA should consider renaming the “Date Change Only” box in the “Reason for Update” data field, LaDOTD and Tavla Solutions stated the Inventory Guide fails to provide sufficient guidance for when this box should be checked. While we retained the title of this box as proposed, we changed the Inventory Guide to state the “Date Change Only” box should be checked to indicate the crossing data has not changed since the last update to the Crossing Inventory.

Change in Primary Operating RR:

The CPUC submitted comments recommending that the “Operating RR Transfer” box in the “Reason for Update” data field be removed because the new primary operating railroad can check the “Change in Data” box and provide updated information. While we removed the “Operating RR Transfer” box from the Inventory Form in the final rule, we added a new box titled, “Change in Primary Operating RR”. We added the “Change in Primary Operating RR” box to the Inventory Form to facilitate official notification of a change in primary operating railroad status that may result from the sale of a highway-rail or pathway crossing. The “Change in Primary Operating RR” box should also be checked as part of the periodic updating process, if there has been a change in the primary operating railroad since the last railroad submission to the Crossing Inventory.

Admin. Correction:

FRA has decided to retain the “Admin. Correction” box in the “Reason for Update” data field despite comments from the ICC and

CPUC recommending that the “Admin. Correction” box either be eliminated or combined with the “Change in Data” box. The “Admin. Correction” and “Change in Data” boxes have separate and distinct purposes. The “Admin. Correction” box should be checked when a railroad or State user intends to correct crossing data that was previously submitted in error. However, a railroad or State user should check the “Change in Data” box when it intends to submit crossing data associated with an actual change in crossing characteristics that is not reflected by any other box in the “Reason for Update” data field.

LaDOTD and Tavla Solutions also submitted comments recommending that FRA allow railroads to check the “Admin Correction” box when reporting previously unreported crossings. However, previously unreported crossings are “new” to the Crossing Inventory. Therefore, the “New Crossing” box must be checked when reporting previously unreported crossings to the Crossing Inventory.

Quiet Zone Update:

The ICC submitted comments recommending that the “Quiet Zone Update” box be removed from the “Reason for Update” data field because the “Change in Data” box could be checked when submitting quiet zone updates. However, FRA retained the “Quiet Zone Update” box to reflect FRA entry of Crossing Inventory data that has been submitted for quiet zone-related purposes. The “Quiet Zone Update” box is only intended for FRA use. Accordingly, the GCIS system will not allow users to check the “Quiet Zone Update” box when crossing data is submitted or updated electronically.

Part I, Location and Classification Information

The ICC submitted comments recommending that the maximum character limits reflected in various boxes on the Inventory Form be increased. In response to these comments, FRA designed the GCIS database to contain generally accepted database standards for maximum character limitations. In addition, we revised the Inventory Form by removing most of the maximum character limits that were specified for individual data fields.

City/Municipality

The ICC submitted comments recommending that the Inventory Guide advise Crossing Inventory users that they should provide the name of the city or municipality that is located closest to the crossing on the railroad line segment in the “City/Municipality” data field for crossings that are not located within a city or municipality. We agree and have revised the Inventory Guide to instruct Crossing Inventory users to enter the name of the city or municipality along the rail line that is closest to the crossing if the crossing is not located within the boundaries of a city or municipality.

Street/Road Name & Block Number

A private citizen submitted comments recommending that Crossing Inventory users be allowed to provide a specific address for the “Street/Road Name & Block Number” data field, especially for private crossings, as opposed to a block number. The commenter stated that because first responders are generally dispatched to an address, the private citizen believes retention of specific addresses in the Crossing Inventory could improve response time to problems at grade crossing locations until dispatchers have access to the latitude and longitude coordinates that will be submitted in the next required periodic update. While we designed the GCIS system designed to accept a specific street address in this data field, we did not revise the Inventory Guide to advise Crossing Inventory users to provide a specific street address in this data field because highway-rail and pathway crossings do not have specific street addresses.

The ICC submitted comments recommending that the Street/Road Name data field be revised to include a subfield for the street name alias, such as the common name used locally or the name used by 911 system operators. Although we did not adopt this recommendation, State agencies may use the State Use data fields to record street name aliases associated with individual highway-rail crossings.

NCDOT submitted comments recommending that the Block Number subfield in the Street/Road Name data field be classified as optional. We agree and revised the Inventory Form based on this recommendation.

Highway Type & No.

NCDOT and the CPUC submitted comments recommending that FRA revise the Inventory Guide to include a reference to highways and roadways that are classified as “SR” in the list of highway types. FRA agrees that this revision would be beneficial and revised the Inventory Guide accordingly. In addition, since States generally determine highway type by using established criteria, we revised the Inventory Guide discussion of this data field to defer to methods States use to designate highway type.

Do other railroads operate a separate track at crossing?

The CPUC submitted comments recommending that the Inventory Guide address submission of crossing data by operating railroads other than the primary operating railroad. Therefore, we have revised the final rule to specifically address this issue. Unless the “Yes” box has been checked in the “Do Other Railroads Operate a Separate Track at Crossing” data field, the primary operating railroad is the only operating railroad that is required to submit initial and updated crossing data for highway-rail and pathway crossings to the Crossing Inventory.

If the “Yes” box is checked in the “Do Other Railroads Operate a Separate Track at Crossing” data field and the primary operating railroad has submitted one or more railroad codes to identify the operating railroads that operate over separate tracks at the crossing, each operating railroad that operates through the highway-rail or pathway crossing must submit certain crossing data directly to the Crossing Inventory and then submit updates to that data every three years. (However, the primary operating railroad is still required to submit an accurate and complete Inventory Form, or its electronic equivalent, to the Crossing Inventory for the crossing, which includes train count and train speed data that is specifically related to the primary operating railroad's train operations.) Please refer to the Inventory Guide for an explanation of the individual data fields that each operating railroad must complete.

RR Milepost

The CPUC submitted comments recommending that the Inventory Guide advise Crossing Inventory users to measure the milepost location from the center of the highway-rail crossing. We did not adopt this recommendation. As long as the operating railroad adopts a consistent method for designating milepost locations, the milepost location the operating railroad submits should be sufficient.

The CPUC also recommended that FRA eliminate the “prefix” and “suffix” data subfields because this information appears to be intended for railroad use. In the alternative, the CPUC recommended that the “prefix” and “suffix” data subfields be put in a separate data field and not combined with milepost information. We decline to adopt this recommendation and retained the RR Milepost data field as

proposed. The prefix or suffix an operating railroad uses is relevant and useful information that can be used to distinguish between milepost locations on different territories or lines.

The ICC submitted comments recommending that the Inventory Form only capture milepost data to the hundredths of a mile, as opposed to the thousandths of a mile on the Inventory Form. Although we retained the RR Milepost data field as proposed, we modified the Inventory Guide to state that milepost data provided to the hundredths of a mile will be accepted.

Line Segment

The ICC submitted comments recommending that the Line Segment data field be a required data field rather than an optional data field. In addition, the ICC recommended that FRA add a Line Segment data field for State use. Although we retained the Line Segment data field as an optional data field, we revised the Inventory Guide to advise railroads to provide line segment information, if applicable. Railroads and States are also encouraged to use the Railroad Use and State Use data fields on the Inventory Form to record additional line segment data for individual highway-rail and pathway crossings.

Crossing Type

In the proposed rule, FRA requested comments on the proposed revision to the Inventory Form that would remove pedestrian crossings from the list of crossing types, yet allow railroads to select “Pathway, Ped.” or “Station, Ped.” as the crossing purpose. FRA received comments in support of these revisions from a number of State agencies, such as the CPUC, the Delaware Department of Transportation (DelDOT), and the Nevada Department of Transportation (NDOT). However, FRA also received comments from Denver RTD and the AAR expressing concern that the Inventory Guide failed to provide sufficient guidance on the appropriate classification of crossings previously classified as pedestrian crossings.

In its comments, the AAR stated the Inventory Guide fails to explain how crossings currently designated as “pedestrian” should be classified, for purposes of determining crossing type. Denver RTD requested guidance on whether FRA intended to collect data on the public/private status of pathway crossings. In response to these comments, we revised the Inventory Guide to provide definitions of public and private pathway crossings and public pedestrian station crossings to provide assistance to railroads and State agencies on the proper classification of crossings that were formerly classified as “pedestrian crossings” for the Crossing Inventory.

FRA also received comments on the appropriate entity (State agency or railroad) it should hold responsible for submitting updates to the “Crossing Type” data field. LaDOTD recommended that FRA hold State agencies responsible for submitting crossing data for this data field because railroads are unable to determine crossing type for crossings are located on the State/county/municipal system. Similarly, the AAR submitted comments recommending that State agencies have the exclusive authority to determine whether a highway-rail or pathway crossing should be classified as a public or private crossing. However, the ICC submitted comments recommending that State agencies have exclusive responsibility for submitting crossing type and crossing purpose updates for public crossings and the primary operating railroad have the exclusive responsibility to submit crossing type updates for private crossings.

As stated in the preamble to the proposed rule, FRA will defer to the determination of the relevant State agency for the public/private classification of highway-rail (and pathway) crossings. Accordingly, we are asking State agencies to submit voluntary updates to the Crossing Type data field in Part I of the Inventory Form, as stated in Appendix B to the Inventory Guide. In addition, as the Inventory Guide states, when Crossing Type is changed from Private to Public for a highway-rail grade crossing, we are asking the State agency to complete the remainder of the Inventory Form (or its electronic equivalent) for the affected crossing. The remainder of the Inven

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