06-6501. 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 [phone]) 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 [phone] 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 [phone]); Miriam Kloeppel, Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone [phone]); or Kathryn Shelton, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone [phone]).

SUPPLEMENTARY INFORMATION:

There are currently over 94,000 private highway-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.

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 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)).

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.

Footnotes

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.