[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Notices]
[Pages 42713-42716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6501]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2005-23281, Notice No. 1]


Safety of Private Highway-Rail Grade Crossings; Notice of Safety 
Inquiry

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

ACTION: Notice of safety inquiry.

-----------------------------------------------------------------------

SUMMARY: FRA announces its intent to conduct a series of open meetings 
throughout the United States, in cooperation with appropriate State 
agencies, to consider issues related to the safety of private highway-
rail grade crossings. At each open meeting, FRA intends to solicit oral 
statements from private crossing owners, railroads and other interested 
parties on issues related to the safety of private highway-rail grade 
crossings, which will include, but not be limited to, current practices 
concerning responsibility for safety at private grade crossings, the 
adequacy of warning devices at private crossings, and the relative 
merits of a more uniform approach to improving safety at private 
crossings. FRA has also opened a public docket on these issues, so that 
interested parties may submit written comments for public review and 
consideration.

DATES: The initial public meeting will be held in Fort Snelling, 
Minnesota on August 30, 2006 at the Bishop Henry Whipple Federal 
Building. Persons wishing to participate are requested to provide their 
names, organizational affiliation and contact information to Michelle 
Silva, Docket Clerk, FRA, 1120 Vermont Avenue, NW., Washington, DC 
20590 (telephone 202-493-6030) by July 31, 2006. Persons needing sign 
language interpretation or other reasonable accommodation for 
disability are also encouraged to contact Michelle Silva, FRA Docket 
Clerk, at (202) 493-6030 by July 31, 2006. Additional public meetings 
will be announced over the next three months.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120 
Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6299); 
Miriam Kloeppel, Office of Safety, FRA, 1120 Vermont Avenue, NW., 
Washington, DC 20590 (telephone 202-493-6299); or Kathryn Shelton, 
Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 
20590 (telephone 202-493-6038).

SUPPLEMENTARY INFORMATION: There are currently over 94,000 private 
highway-

[[Page 42714]]

rail grade crossings (private crossings) in the United States. Each 
year, about 400 accidents and between 30-40 fatalities occur at these 
crossings. In most years, the number of deaths occurring at private 
crossings exceeded the number of on-duty deaths among railroad 
employees in all rail operations. While accidents and injuries at 
public highway-rail grade crossings have declined by between one-third 
and one-half in the past decade, accidents at private crossings have 
declined by only 10 percent, and the number of injuries in private 
crossing accidents has actually increased by 1 percent. Figures 1 and 2 
show the accident, fatality, and injury trends occurring at private and 
public grade crossings, respectively.
[GRAPHIC] [TIFF OMITTED] TN27JY06.000


[[Page 42715]]


[GRAPHIC] [TIFF OMITTED] TN27JY06.001

    Private highway-rail grade crossing safety has therefore been a 
matter of concern to the U.S. Department of Transportation and the 
National Transportation Safety Board (NTSB). FRA hosted an open meeting 
to initiate industry-wide discussions concerning private highway-rail 
grade crossing safety on July 15, 1993. In its 1994 Rail-Highway 
Crossing Safety Action Plan, the United States Department of 
Transportation proposed to ``develop and provide national, minimum 
safety standards for private crossings, and to eliminate the potential 
impediment to high speed rail operations posed by private crossings.'' 
In its 1997 study on Safety at Passive Grade Crossings, the National 
Transportation Safety Board (NTSB) highlighted the need for some system 
to improve safety at private highway-railroad grade crossings, 
recommending that the DOT, in conjunction with the States, should 
determine governmental oversight responsibility for safety at private 
highway-rail grade crossings. In 1999, the NTSB weighed in again on the 
issue of safety at private crossings in its report on a private grade 
crossing accident in Portage, Indiana. In this case, the NTSB 
recommended that the U.S. Department of Transportation ``eliminate any 
differences between private and public highway-rail grade crossings 
with regard to providing funding for, or requiring the implementation 
of, safety improvements.'' In 2004, the Department of Transportation 
published an updated Highway-Rail Crossing Safety and Trespass 
Prevention Action Plan (http://www.fra.dot.gov/downloads/safety/action_plan_2004.pdf) (Secretary's Action Plan). In this plan the FRA 
has committed to lead an effort to define responsibility for safety at 
private highway-rail grade crossings. This effort is intended to 
include a determination of minimum criteria for signage, and also to 
identify safety needs.
    Private crossings present a safety challenge precisely because 
their non-public character can influence their design and maintenance. 
The 94,000 private crossings that remain on the national rail system 
serve the needs of a very large and disparate population of 
individuals, small businesses and large corporations that are holders 
of the right or privilege to traverse the railroad. Their circumstances 
differ in many ways:
    1. Degree of need for private crossings and their use. The policy 
of the U.S. Department of Transportation seeks elimination of 
unnecessary and particularly hazardous highway-rail grade crossings, 
whether public or private. Secretary's Action Plan at 41. Some private 
crossings are essential for access to the holder's property and failure 
to provide access would render the property much less valuable. Other 
private crossings are situated along roads that could easily provide 
access via other public or private crossings. Some private crossings 
are heavily used, while others are used only seasonally (e.g., certain 
agricultural crossings used only for movement of agricultural equipment 
such as tractors and combines). Some crossings are used only for 
routine personal use or occasional use by business guests (e.g., 
personal residences). Other private crossings are used extensively for 
private business purposes, and motor vehicle operators are typically 
employees, contractors, and suppliers (e.g., access to industries, rock 
quarries, etc.) In still other cases, private crossings may be used 
very heavily by the public to enter commercial facilities.
    2. Engineering. Some private crossings providing access to 
commercial properties have well-maintained surfaces and excellent 
signage comparable to that contemplated by the Manual for Uniform 
Traffic Control Devices. According to the National Highway-Rail 
Crossing Inventory, active warning devices are provided at 1,078 
private crossings. More typically, many private crossings are marked 
only by crossbuck signs without advance warning signs, or not at all; 
and surface may be irregular. Sight distances at private crossings 
without active warning devices vary widely. Neither the Federal 
Government nor the States, with extremely few exceptions, provide 
financial assistance for engineering improvements at private crossings. 
In

[[Page 42716]]

these few instances, funding for private crossings may be provided for 
specific corridor projects, most commonly the high speed rail 
corridors.
    3. Legal status. Private crossing rights vary from ownership of the 
fee simple (outright ownership of the underlying property), to 
documented easements, to prescriptive easements (where recognized), to 
documented licenses under contract, to verbal licenses subject to 
revocation without notice. The entities enjoying rights under these 
arrangements may be referred to as ``holders'' of the right to cross. 
Increasingly over the past 15 years, railroads have sought to establish 
maximum control over these intermodal intersections by requiring 
crossing holders to purchase insurance or provide other protection in 
the event a holder, railroad or a third party experiences a loss due to 
a collision. Contracts or other legal instruments may further define 
responsibilities (e.g., for maintenance of the crossing surface or 
providing notifications under stated conditions).
    4. Extent of regulation. In general, private crossings are not 
subject to regulation at the State or Federal level. FRA's requirements 
for inspection, test and maintenance of active warning devices (49 CFR 
part 234) apply to the railroad where active warning has been 
installed; but there is no Federal mandate for providing such 
warning.\1\ A handful of States require that railroads place crossbucks 
or special signage (in some cases a stop sign and a crossbuck on the 
same post) at private crossings. The subject of private crossings is 
otherwise largely unregulated. Accordingly, such recognized 
responsibilities as exist with respect to the safety of private 
crossings are generally the product of contracts and common law. (For a 
general description of responsibilities related to crossing safety, see 
Safety Advisory 2005-03; Highway-Rail Grade Crossing Safety (70 FR 
22750; May 2, 2005)).
---------------------------------------------------------------------------

    \1\ Other FRA regulations applicable to the railroad are 
intended to address safety at private crossings, as well as public 
crossings, particularly requirements for alerting lights (49 CFR 
219.125) and reflectorization of rail rolling stock (49 CFR part 
224) to make trains more conspicuous.
---------------------------------------------------------------------------

Request for Comments

    While FRA solicits discussion and comments on all areas of safety 
at private highway-rail grade crossings, we particularly encourage 
comments on the following topics:
     At-grade highway-rail crossings present inherent risks to 
users, including the railroad and its employees, and to other persons 
in the vicinity should a train derail into an occupied area or release 
hazardous materials. When passenger trains are involved, the risks are 
heightened. From the standpoint of public policy, how do we determine 
whether creation or continuation of a private crossing is justified?
     Is the current assignment of responsibility for safety at 
private crossings effective? To what extent do risk management 
practices associated with insurance arrangements result in 
``regulation'' of safety at private crossings?
     How should improvement and/or maintenance costs associated 
with private crossing be allocated?
     Is there a need for alternative dispute resolution 
mechanisms to handle disputes that may arise between private crossing 
owners and the railroads?
     Should the State or Federal government assume greater 
responsibility for safety at private crossings?
     Should there be Nationwide standards for warning devices 
at private crossings, or for intersection design of new private grade 
crossings?
     How do we determine when a private crossing has a `public 
purpose' and is subject to public use?
     Should some crossings be categorized as `commercial 
crossings', rather than as `private crossings'?
     Are there innovative traffic control treatments that could 
improve safety at private crossings on major rail corridors, including 
those on which passenger service is provided?
     Should the Department of Transportation request enactment 
of legislation to address private crossings? If so, what should it 
include?

    Issued in Washington, DC, on July 20, 2006.
Joseph H. Boardman,
Administrator.
[FR Doc. 06-6501 Filed 7-26-06; 8:45 am]
BILLING CODE 4910-06-P