XINGHIS.docx

MEMORANDUM
TO:TONYA CLARK
RON LAW
FROM:DON HOWELL
DATE:FEBRUARY 14, 1996
SUBJECT:HISTORY OF THE RAILROAD GRADE CROSSING
PROTECTION ACCOUNT
This morning you asked for a brief history of the Railroad Crossing Account in response to an inquiry by Senator Tucker.  The following information is provided pursuant to your request.
In 1979, the Legislature enacted House Bill No. 250 amending portions of the Public Utilities Law.  1979 Idaho Sess. Laws, ch. 218.  In essence, House Bill No. 250 transferred the responsibility for grade crossing safety from the PUC to the Idaho Transportation Department (ITD).  More specifically, the Bill repealed Idaho Code § 61-516 that authorized the Public Utilities Commission to require railroads to implement safety measures at railroad grade crossings.  This section provided that the Commission “may order and direct the railroad company to erect gates at said crossing and place an employee in charge to open and close the same when engines or trains pass, or that a flagmen be stationed at such crossing, ... or that such crossing shall be provided with electrical signal and other suitable device [necessary to protect] human life and the public travel.”  Idaho Code § 61-516 (Repealed).
This Bill also created the Railroad Grade Crossing Protection Account and provided that the ITD is charged “with sole and exclusive administration” of the account.  Idaho Code §§ 62-304A and -304B.  Creation of the Grade Crossing Account allowed ITD to take advantage of federal crossing safety funds pursuant to the Highway Safety Act of 1986.  ITD could gain access to federal motor fuels tax funds by providing a “state match” for grade crossing safety devices.
At the time the Grade Crossing Protection Account was created in 1979, the Legislature directed that $100,000 be transferred to this account from Idaho motor fuels tax funds.  Idaho Code § 63-2432 (1979), recodified as § 63-2412.  In 1986, the Legislature reduced contributions to the Grade Protection Account to $50,000.  Idaho Code § 63-2412(1)(c); 1986 Sess. Laws, ch. 99, § 3.  It appears that the other $50,000 was directed to the highway needs assessment account.  In 1990, the Legislature increased the distribution to this account $150,000. 1986  Sess. Laws, ch. 395, § 1.  Again in 1994, the contribution to the account was increased to $250,000 which is the current contribution amount.  1994 Sess. Laws, ch. 315, § 3.  If you are interested in the dispersal amounts from the Account, you should contact ITD.
For those safety improvement projects not fully funded by federal monies, my understanding is that  ITD apportions the cost of the improvement between the railroad and the highway authority “in proportion with the respective benefits to be derived.”  Idaho Code § 62-304C.  This section further states that the railroad’s share of safety improvement costs is limited to a maximum of 10% unless the crossing is a new one proposed by the railroad.  If the railroad proposes a new crossing, the entire cost of construction is apportioned to the railroad.  There are additional statutes pertaining the apportionment of costs when grade crossings are eliminated or altered.  SeeIdaho Code §§ 62-301 to -305.
On the federal level, the Federal Railroad Administration (FRA) has in recent years examined various issues regarding the safety of highway-rail crossings. Since 1993, the FRA has examined whether rail grade crossing safety could be improved by closing “private” crossings.  Private crossings are at-grade crossing that provide private access (e.g., farmers, industrial users, recreationalists, or residential users) and not generally utilized by the public (public streets and highways).  There are approximately 3,000 grade crossings in Idaho with roughly a 50/50 ratio between public and private crossings.  To determine the status of FRA activities in this area, you may wish to consult with Ron Law or Lee Wilson at ITD.
If you have any additional comments or questions please let me know.

Donald L. Howell, II
Deputy Attorney General
bls/M-crossing.dh