2.6 State & Local Governments

● For the FRA to develop and issue guidance for railroads to use in developing FRArequired risk reduction programs, and for the Association of American Railroads to work with member railroads to develop guidance material and best practices for these programs (Dec. 2020)59 ● For the AAR, the ASLRRA, Amtrak, the Alaska Railroad and the American Public

Transportation Association to inform their members of the circumstances of the

August 2019 CSX collision between Columbus and Fostoria, Ohio, and review their training and managerial oversight programs as they relate to restricted speed operations in territories where PTC systems are operated in Restricted Mode to identify and implement appropriate training improvements and mitigating actions (Oct. 2020)60

2.6 State & Local Governments

Under the U.S. federalist system, generally speaking, federal laws and regulations supersede state and local ones, but states and localities may enact and enforce more stringent laws and regulations in some areas. One example of an area that is under exclusive federal jurisdiction, under the U.S. Constitution’s Commerce Clause, is rules affecting the level of service railroads provide or rail labor rules. In terms of grade crossings, state law or regulation tends to have more influence than federal when it comes to the length of time for which railroads are allowed to block public crossings with idling trains and the establishment of “quiet zones” where locomotive horns are not required to be sounded at grade crossings within set boundaries.61

Some state governments take a more active role in overseeing and promoting railroad safety than others. Most state regulation and enforcement pertaining to railroads is undertaken by the state Department of Transportation (DOT) or Transportation Commission, but some states have independent agencies or commissions that oversee railroads. Examples include the Public Utilities Commissions of California, Nevada, Colorado, Idaho, Rhode Island and Pennsylvania, the Montana Public Service Commission, the Oklahoma Corporation Commission, the New Jersey Board of Public Utility Commissioners, the Virginia Department of Rail and Public Transportation and Commonwealth Transportation Board, and the Washington Utilities and Transportation Commission.

Jurisdiction over highway-rail grade crossings resides primarily with the states, but some states exercise regulatory jurisdiction while others’ role is merely administrative. Most states (36, plus the District of Columbia) vest powers regarding crossings in the state DOT or the state Department of Highways, but nine states require local governments to initiate actions regarding grade crossings (though the state government may provide assistance), while in five states, the responsibility is shared between the state and local levels.62 Most states, along with private railroads, also engage in public

education campaigns regarding the hazards of crossings, which are coordinated nationally by the nonprofit Operation Lifesaver, Inc (see section 2.8).63

State and local law enforcement agencies are responsible for enforcing traffic laws at crossings and for being the first responders to grade crossing collisions. Ordinances and operational matters pertaining to crossings are local governments’ responsibility.64

States and localities, along with federal grants, are primarily responsible for funding improvements to grade crossings. Railroads sometimes contribute to the upfront costs, and they are responsible for installing and maintaining crossing protection signs and systems, as well as for construction and maintenance of the track structure and riding surface at crossings (only up to within a few inches of the outside edges of the cross ties of the track leading up to the crossing). State and federal governments oversee the railroads to ensure compliance with national standards. The highway agency that has jurisdiction at the crossing is the only entity that can legally control traffic. States and localities are also responsible for signage on the road(s) leading up to the crossing and for designing, building, and maintaining roadway approaches to the crossing, even when part of the approach lies within the railroad’s right of way.65

Some states assist the FRA in its mission of inspecting railroad properties for compliance with federal laws and regulations through the Rail State Safety Participation Program. Under the program, each participating state enters into a multi-year agreement with FRA for the exercise of specific authority. The FRA trains state inspectors and assists states with the costs associated with such training. 31 states and the District of Columbia currently participate in the program. The states’ role in inspection emphasizes planned, routine compliance inspections, but states may undertake additional investigative and surveillance activities consistent with overall program needs and individual state capabilities.66

One state with a particularly robust rail safety oversight regime is California, where the Railroad Operations and Safety Branch of the California Public Utilities Commission oversees a crude-oil-by-rail safety campaign, conducts a railroad bridge evaluation program, monitors railroads’ implementation of PTC, and partners with Operation Lifesaver to conduct public education campaigns around grade crossing safety and railroad trespassing prevention, in addition to employing inspectors who assist FRA inspectors.67

The American Association of State Highway and Transportation Officials (AASHTO) State government bodies with authority over transportation coordinate their activities, share knowledge and resources, set national technical standards, and educate the public