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Grade Crossing Signal System Safety

American Government Special Collections Reference Desk

American Government Topics:  Federal Highway Administration

Grade Crossing Signal System Safety

Jolene M. Molitoris (Federal Register)
January 20, 1994


[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-1257]


[[Page Unknown]]

[Federal Register: January 20, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 212 and 234

[FRA Docket No. RSGC-5; Notice No. 6]
[RIN 2130-AA70]

 

Grade Crossing Signal System Safety

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

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: FRA proposes specific maintenance, inspection, and testing 
requirements for active highway-rail grade crossing warning systems. 
FRA also proposes to require that railroads take specific and timely 
actions to protect the traveling public and railroad employees from the 
hazards posed by malfunctioning highway-rail grade crossing warning 
systems. This action is taken in response to a statutory requirement 
that FRA issue rules, regulations, orders, and standards to ensure the 
safe maintenance, inspection, and testing of signal systems and systems 
at railroad highway grade crossings.

DATES: (1) Written comments must be received no later than March 21, 
1994. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay.
    (2) A public hearing will be held at 9:30 a.m. on March 1, 1994. 
Any person who desires to make an oral statement at the hearing is 
requested to notify the Docket Clerk at least five working days prior 
to the hearing, by telephone or by mail, and to submit three copies of 
the oral statement that he or she intends to make at the hearing.

ADDRESSES: (1) Written comments should be submitted to the Docket 
Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, SW., 
Washington, DC 20590. Persons desiring to be notified that their 
written comments have been received by FRA should submit a stamped, 
self-addressed postcard with their comments. The Docket Clerk will 
indicate on the postcard the date on which the comments were received 
and will return the card to the addressee. Written comments will be 
available for examination, both before and after the closing date for 
comments, during regular business hours in room 8201 of the Nassif 
Building at the above address.
    (2) A public hearing will be held in room 2230 of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC. Persons desiring to 
make oral statements at the hearing should notify the Docket Clerk by 
telephone (202-366-0628) or by writing to the Docket Clerk at the 
address above.

FOR FURTHER INFORMATION CONTACT: William Goodman, Chief, Signal and 
Train Control Division, Office of Safety, FRA, 400 Seventh Street, SW., 
Washington, DC 20590 (telephone 202-366-2231), or Mark Tessler, Trial 
Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, SW., 
Washington, DC 20590 (telephone 202-366-0628).

SUPPLEMENTARY INFORMATION:

Background

    On June 29, 1992, FRA published a Notice of Proposed Rulemaking 
(NPRM) (57 FR 28819) in which FRA proposed to require that railroads 
take specific and timely actions to protect the travelling public and 
railroad employees from the hazards posed by malfunctioning highway-
rail grade crossing warning systems. A public hearing was held in 
Washington, DC on September 15, 1992. Due to comments received and an 
intention to widen the scope of this rulemaking to include proposed 
standards for maintenance, inspection, and testing pursuant to the 
mandate of section 202(q) of the Federal Railroad Safety Act of 1970 
(45 U.S.C. 431(q)) (Safety Act) as amended by section 2 of the Rail 
Safety Enforcement and Review Act (Pub. L. 102-365), an open meeting 
was held on December 11, 1992. That meeting consisted of very frank and 
open discussions of both FRA's timely response proposal and the issue 
of maintenance, inspection, and testing regulations. In response to a 
participant's request, the comment period was extended to February 15, 
1993. Among the comments received was a joint submission from the 
Brotherhood of Railroad Signalmen, the Association of American 
Railroads, and The American Short Line Railroad Association. In 
addition to commenting on the June NPRM, the labor/management group 
proposed specific regulatory language addressing both timely response 
and maintenance, inspection, and testing.
    The NPRM issued today reflects the consolidation into one 
rulemaking docket of the timely response rulemaking (see 57 FR 28819) 
with proposed standards for maintenance, inspection, and testing of 
grade crossing warning systems.
    Rather than issuing a final rule on timely response, FRA is today 
requesting comments on a revised proposed rule. FRA does however, 
reserve the right to issue a final rule consistent in whole or in part, 
either with the text contained in this NPRM, with the text of the prior 
NPRM on timely response, or in response to comments received in 
response to the various issues raised in these documents. In the 
following section-by-section analysis, FRA will discuss the range of 
comments received in response to our earlier ``timely response'' NPRM. 
It is perhaps an understatement to say the June 1992 NPRM did not 
receive universal acclaim among the railroad community. It was 
generally thought to be too burdensome, and its requirements, 
especially those regarding responses to false activations, were seen as 
unnecessary and overly complicated. The earlier proposed ``timely 
response'' rules would have required a railroad to take the following 
three steps after learning of a malfunctioning grade crossing warning 
system: (1) Notify trains and highway traffic authorities of the 
malfunction; (2) take appropriate actions to warn and control highway 
traffic pending inspection and repair of the system; and (3) repair the 
system. The NPRM issued today is consistent with the earlier proposal. 
FRA has, however, in response to helpful comments, revised certain 
requirements to better fit within the present railroad operating 
environment. Individual comments, and our response to them, will be 
discussed in the section-by-section analysis below. FRA is also issuing 
proposed maintenance, inspection and testing standards for all active 
grade crossing warning systems. As added by the Rail Safety Improvement 
Act of 1988, Sec. 202(q) of the Safety Act provided that ``[t]he 
Secretary shall, within one year after the date of the enactment of the 
Rail Safety Improvement Act of 1988, issue such rules, regulations, 
orders, and standards as may be necessary to ensure the safe 
maintenance, inspection, and testing of signal systems and devices at 
railroad highway grade crossings.'' On September 3, 1992, the Rail 
Safety Enforcement and Review Act was enacted. Section 2 of that act 
deleted from subsection (q) the phrase ``such rules, regulations, 
orders, and standards as may be necessary'' and replaced it with 
``rules, regulations, orders, and standards.'' Congress clearly 
intended to remove any doubt about whether maintenance, inspection, and 
testing standards must be issued. FRA is therefore proceeding with 
today's proposed maintenance, inspection and testing rules.
    In an effort to gather sufficient data to determine the scope and 
content of possible Federal maintenance, inspection and testing 
standards, FRA published the present 49 CFR part 234, ``Grade Crossing 
Signal System Safety,'' on September 23, 1991 (56 FR 33722). Those 
reporting rules were meant to provide the accurate factual information 
we felt was necessary to fashion an appropriate regulatory scheme for 
maintenance, inspection, and testing. While FRA was planning on a 
longer period during which to gather and analyze data generated by our 
new reporting rule, information received to date has been helpful in 
fashioning the proposed rules. FRA will, of course, study all 
additional data as it is received and will take whatever future 
regulatory action is necessary based on that additional information.
    The proposed maintenance, inspection, and testing standards have 
been heavily influenced by the present FRA signal rules at 49 CFR part 
236, ``Rules, Standards, and Instructions Governing the Installation, 
Inspection, Maintenance, and Repair of Signal and Train Control 
Systems, Devices, and Appliances'' (also known among railroad signalmen 
as the ``Rules, Standards, and Instructions'' or simply as the 
``RS&I''). These rules, which had their genesis with the Interstate 
Commerce Commission, are well known and understood among the railroad 
community and have contributed to extremely safe railroad signal 
systems nationwide. Generally, the same railroad employees or contract 
employees who maintain and inspect a railroad's signal system will also 
be maintaining the railroad's grade crossing signal system. The same 
signal principles and much of the equipment used on train control 
signal systems will apply to grade crossing systems. It is therefore 
appropriate that much of the technical requirements which have served 
the industry well in the past would be adopted to some extent in the 
proposed rules.
    Another major influence on the proposed rule was the previously 
mentioned joint submission from the Brotherhood of Railroad Signalmen, 
the Association of American Railroads, and The American Short Line 
Railroad Association (``labor/management''). This submission, from 
organizations who have historically taken diverse positions in the area 
of grade crossing safety, has provided very helpful suggestions in the 
drafting of this proposal. The drafters of the labor/management 
submission appear to have also relied to a great extent on part 236 for 
guidance.

Section-by-Section Analysis

    This section-by-section analysis of the proposed rules is intended 
to explain the rationale for each proposed rule. The analysis includes 
the requirements of each proposed rule, the purpose each proposed rule 
would serve in enhancing the effective operation of a highway-rail 
grade crossing warning system, the current industry practice, comments 
and recommendations contained in the industry submission, and other 
pertinent comments. The comments and recommendations contained in the 
industry submission are important factors in determining effective 
rules because, representing both labor and management, they reflect 
differing perspectives and collective grade crossing experience.
    The analysis also reflects pertinent comments made at an open 
meeting with interested parties, held on December 11, 1992, to discuss 
current industry practices regarding maintenance, inspection, and 
testing of highway-rail grade crossing warning systems.

49 CFR Part 212

Section 212.231  Highway-Rail Grade Crossing Inspector

    This amendment to 49 CFR Part 212 ``State Safety Participation 
Program'' creates a new category of state inspector within the State 
Participation Program. This program, which provides for state 
participation in investigative and surveillance activities under 
federal railroad safety laws and regulations, would now include a 
separate inspector category of ``Highway-rail grade crossing 
inspector.'' New Sec. 212.231 would establish minimum qualification 
standards enabling state inspectors to enforce grade crossing signal 
system safety regulations at part 234. Additionally, this section 
provides that all state signal and train control inspectors qualified 
under Sec. 212.207 are also thereby fully qualified under new 
Sec. 212.231.

Section 212.233  Apprentice Highway-Rail Grade Crossing Inspector

    New Sec. 212.233 would establish minimum qualification standards 
which applicants must meet prior to being enrolled in the inspector 
training program.

49 CFR Part 234

Section 234.1  Scope

    This section is revised to expand the scope of part 234 to include 
the areas covered by this NPRM. In addition to prescribing standards 
for the reporting of failures of highway-rail grade crossing warning 
systems, this part also prescribes minimum actions railroads must take 
when such warning systems malfunction and imposes maintenance, 
inspection, and testing standards for such systems. This section also 
clarifies that when any person performs any function required by this 
part, that person is required to perform that function in accordance 
with this part.

Section 234.3  Application

    This section of the regulations is not being revised. However, a 
discussion of this section and its relationship to a petition for 
rulemaking is appropriate.
    Section 234.3(a) provides that except as provided in paragraph (b) 
of the section, part 234 applies to railroads that operate on standard 
gage track that is part of the general railroad system of 
transportation. Paragraph (b) provides that part 234 does not apply to 
rail rapid transit operations conducted over track that is used 
exclusively for that purpose and that is not part of the general 
railroad system of transportation.
    In 1992, the President of Berkshire Scenic Railway Museum, Inc. 
(Berkshire Scenic), filed a petition for rulemaking requesting that FRA 
propose a discrete set of regulations applicable to scenic railroads. 
The Administrator has granted the request to the extent that the 
petition raised issues related to ongoing regulatory projects. FRA has 
therefore reviewed the present rulemaking in light of Berkshire 
Scenic's petition.
    FRA does not believe that scenic railroads which are part of the 
general railroad system of transportation should be treated differently 
than other railroads under the proposed rules issued today. The primary 
beneficiary of these rules will be the motoring public. A motorist 
should have the same assurance of safety whether crossing the tracks of 
a Class I railroad, a small short line, or those of a small scenic 
railroad. FRA invites public comment on this issue.
    As stated above, part 234 applies to railroads that operate on 
standard gage track that is part of the general railroad system of 
transportation. Thus, the proposed rule would apply to all highway-rail 
grade crossings on trackage that is part of the general railroad system 
of transportation. FRA invites comment as to whether this section 
should be revised to include within the application of the rule, 
crossings on trackage not part of the general railroad system of 
transportation. We specifically solicit input on whether maintenance, 
inspection, and testing of grade crossing warning systems at crossings 
on plant or tourist railroads off the general railroad system should 
remain unregulated by the Federal government. Should timely response 
rules, or maintenance, inspection and testing rules, or both, be 
applied to crossings on trackage not located on the general railroad 
system? Should the answer depend on whether the crossing is a public or 
private crossing? Should a motorist on a public highway have a 
reasonable expectation that all active warning systems on that highway 
will be maintained, inspected, and tested under the same standards? 
Should a motorist entering a private crossing equipped with an active 
warning system (923 such crossings nationwide) have the same 
expectation?

Section 234.5  Definitions

    Appropriately equipped flagger means a person other than a train 
crewmember who is equipped with an orange vest, shirt, or jacket for 
daytime flagging. For nighttime flagging, similar outside garments 
shall be retroreflective. The retroreflective material shall be either 
orange, white (including silver-colored coatings or elements that 
retroreflect white light), yellow, fluorescent red-orange, or 
fluorescent yellow-orange and shall be designed to be visible at a 
minimum distance of 1,000 feet. The design configuration of the 
retroreflective material shall provide recognition of the wearer as a 
person and shall be visible through the full range of body motions. 
Acceptable hand signalling devices for daytime flagging include STOP/
SLOW paddles and red flags. For nighttime flagging, a flashlight, 
lantern, or other lighted signal shall be used. In addition to these 
minimum standards, railroads are encouraged to provide flagging 
equipment and training in accordance with ``Traffic Controls for Street 
and Highway Construction, Maintenance, Utility and Emergency 
Operations'' issued by the Federal Highway Administration as part VI of 
the Manual on Uniform Traffic Control Devices (MUTCD).
    Persons needing to be appropriately equipped are railroad employees 
other than a train crewmember, or others acting on behalf of the 
railroad, who flag highway traffic at grade crossings with 
malfunctioning warning systems. The requirement that persons be 
appropriately equipped does not apply to train crewmembers who dismount 
from a locomotive to flag the train through a crossing in an emergency 
situation, or to law enforcement officers.
    Credible report of system malfunction means specific information 
regarding a malfunction at an identified highway-rail grade crossing, 
supplied by an identified railroad employee, law enforcement officer, 
highway traffic official, or an employee of a public agency acting in 
an official capacity. The proposed definition would ensure that 
legitimate malfunction reports are received and acted upon by 
railroads.
    FRA's original proposed definition of a credible report included 
``an individual who has provided his or her name together with a 
telephone number or other means of contact, and who does not have a 
history of making false or misleading reports to the railroad 
pertaining to system malfunctions.'' There was concern by various 
parties that it would be very burdensome to require that railroads 
immediately take the required responsive action upon a call from a 
member of the public. We agree. Instead, we expect that railroads will, 
as they have traditionally done, investigate reports of malfunctions 
received from the public. After determining the accuracy of the report 
a railroad would then take appropriate action in accordance with the 
today's regulations. Today's proposal would not prohibit a railroad 
from adopting internal rules that would trigger specific responses to 
an individual's complaint, but would only mandate the required 
responses to reports from ``official'' sources.
    Warning system malfunction means an activation failure or a false 
activation of a highway-rail grade crossing warning system.

Section 234.6(a)  Civil Penalties

    This section is being amended to conform with Sec. 209(a) of the 
Safety Act as amended by section 9 of the Rail Safety Enforcement and 
Review Act. That section amended the definition of ``person.'' The 
clarified definition of ``person'' includes, but is not limited to, 
such entities as manufacturers and lessors of railroad equipment and 
independent contractors. Congress' purpose in amending the definition 
of ``person'' was to clarify the Secretary's existing power over 
entities whose activities related to rail safety by explicitly defining 
that authority. See 1992 U.S. Code Cong. and Adm. News, p. 879. 
Congress made it clear that the included list of ``persons'' subject to 
the Secretary's authority was intended to by illustrative and not 
exhaustive.

Section 234.101  Employee Notification Rules

    The proposed section requires that each railroad issue rules 
requiring employees to report to a designated railroad official, by the 
quickest means available, any warning system malfunction. Some 
railroads may determine that the dispatcher is the appropriate official 
to be contacted, while other railroads may decide that a different 
official is best placed to receive and take action on reports of 
malfunctions. The proposed section is consistent with the joint 
submission.

Section 234.103  Timely Response To Report of Malfunction

    Subsection (a) requires that upon receipt of a credible report of a 
warning system malfunction, the railroad shall immediately investigate 
the report and determine the nature of the malfunction. The railroad 
shall then take action as required by Sec. 234.207. This subsection 
would require the railroad to immediately investigate a credible report 
of malfunction. Based upon the results of that investigation, and in 
accordance with Sec. 234.207, the railroad would be required to adjust, 
repair, or replace any faulty component without undue delay. Further 
discussion of the requirement for repair without undue delay can be 
found in the section-by-section analysis of Sec. 234.207.
    Subsection (b) requires that, until repair or correction of the 
warning is completed, the railroad shall provide alternative means of 
warning highway traffic and railroad employees in accordance with this 
subpart. Acceptable alternative means of protecting the travelling 
public and railroad employees are described in Secs. 234.105 and 
234.107, as appropriate.
    Subsection (c) provides that nothing in this subpart requires 
repair or correction of a warning system, if, acting in accordance with 
applicable State law, the railroad proceeds to discontinue or dismantle 
the warning system, provided such warning system not be left in place 
unless the railroad complies with this subpart.
    The proposed section is consistent with the labor/management's 
recommendation.

Section 234.105  Activation Failure

    This section requires that upon receiving a credible report of an 
activation failure, a railroad having maintenance responsibility for 
the warning system shall immediately initiate efforts to warn motorists 
and railroad employees at the subject crossing by taking, at a minimum, 
certain actions. Paragraph (a) provides that prior to a train's arrival 
at the crossing, the railroad must notify the train crew of the report 
of activation failure and notify any other railroads operating over the 
crossing. Paragraph (b) requires that the railroad notify the highway 
traffic control authority having jurisdiction over the crossing, and 
paragraph (c) requires the railroad to provide or arrange for 
alternative means of actively warning motorists of approaching trains. 
Paragraph (c)(1) provides that until an appropriately equipped flagger 
or law enforcement officer is stationed at the crossing to warn highway 
traffic of approaching trains, each train must stop before entering the 
crossing to permit a crewmember to dismount to flag highway traffic to 
a stop. The locomotive may then proceed through the crossing to permit 
the flagging crewmember to reboard the locomotive before the remainder 
of the train proceeds through the crossing.
    Paragraph (c)(2) provides that if an appropriately equipped flagger 
or law enforcement officer provides warning for each direction of 
highway traffic, trains may proceed through the crossing at normal 
speed.
    Paragraphs (c)(1) and (c)(2) are the same as those proposed in 
FRA's original proposal. FRA recognizes that paragraph (c)(2) may 
present flagging problems in some situations. At those crossings which 
involve both higher speed trains and highways with higher speed limits, 
flaggers might need more warning time and greater warning distance 
(depending on track curvature and sight distances) in order to 
adequately warn approaching motorists of an approaching train. A 
flagger may need to provide warning further down a highway to provide 
sufficient stopping distance for a motorist. The flagger might also 
need to set out a series of fusees or flags to provide proper warning. 
It may be necessary to restrict train speeds in these situations in 
order to facilitate this preparation. FRA solicits comments on this 
issue.
    Paragraph (c)(3) provides that if an appropriately equipped flagger 
or law enforcement officer provides warning for highway traffic, but 
there is not at least one flagger or law enforcement officer providing 
warning for each direction of highway traffic, trains may proceed with 
caution through the crossing at a speed not exceeding 10 miles per 
hour. Normal speed may be resumed after the locomotive has passed 
through the crossing.
    Paragraph (c)(3) is different in certain respects from FRA's 
original proposal. The original proposal would have required a train to 
stop before entering a crossing if the crossing were not protected by 
at least one appropriately equipped flagger for each direction of 
highway traffic. In addition, if the crossing were flagged by a train 
crewmember, the train would be required to stop again for the 
crewmember to reboard the locomotive. Today's proposal would still 
require the stopping of a train if no flagger is present to warn 
highway traffic. However, if there is a flagger present, but there is 
not at least one flagger for each direction of highway traffic, the 
train would be required to pass through the crossing at a speed not 
exceeding 10 miles per hour.
    In their comments and recommendations, labor/management argue that 
the presence of a flagger, combined with the reduction in train speed 
and the use of the locomotive's horn, would provide sufficient warning 
to the travelling public. The commenters state that the decision on 
whether to stop the train a second time for a train crewmember to 
reboard should be left to the discretion of the railroad, based on the 
particular circumstances involved. Requiring a second stop also 
increases the time during which the crossing is blocked by a train, 
thereby increasing the possibility of side collisions. We agree with 
the comments and have revised the proposed rule accordingly. To further 
limit the potential of side collisions at night with one flagger 
warning motorists, the provision has been revised to provide that 
railroads are only required to approach the crossing with caution at a 
speed not exceeding 10 miles per hour. When the locomotive of a train 
has passed through the crossing, normal speed may be resumed. This 
would reduce, by however small a margin, the time during which side 
collisions are possible.
    While FRA is not at this time proposing that railroad employees be 
required to comply with flagging procedures contained in the Manual on 
Uniform Traffic Control Devices (MUTCD) issued by the Federal Highway 
Administration, they are encouraged to comply as fully as possible with 
those or similar procedures.
    Paragraph (c)(4) remains unchanged. This paragraph would require 
that a locomotive's audible warning device be activated in accordance 
with railroad rules. This provision addresses those instances in which 
a ``whistle ban'' may be in effect in a local jurisdiction. FRA is 
presently reviewing the entire ``whistle ban'' issue and, while there 
may be disagreement as to the effect on safety of whistle bans, there 
can be little doubt that a ban on sounding a train whistle or horn 
should be lifted when a grade crossing warning system is 
malfunctioning. In addressing whistle bans in this limited situation, 
FRA does not wish to give the impression it approves of or encourages 
whistle bans in other situations. FRA is opposed to local restrictions 
on the use of train whistles. See FRA Emergency Order No. 15, 56 FR 
36190, July 31, 1991.

Section 234.107  False Activation

    This section requires a railroad to take the same initial actions 
as it would take in cases of activation failure. Upon receiving a 
credible report of a false activation, a railroad having maintenance 
responsibility for the warning system shall immediately initiate 
efforts to warn motorists and railroad employees at the subject 
crossing by taking, at a minimum, certain actions.
    Paragraph (a) provides that prior to a train's arrival at the 
crossing, the railroad must notify the train crew of the report of 
activation failure and notify any other railroads operating over the 
crossing. Paragraph (b) requires that the railroad notify the highway 
traffic control authority having jurisdiction over the crossing, and 
paragraph (c) requires the railroad to provide or arrange for 
alternative means of actively warning motorists of approaching trains. 
Paragraphs (c)(1) and (c)(2) provide for the alternative means of 
warning motorists. Paragraph (c)(1) provides that if an appropriately 
equipped flagger or law enforcement officer is stationed at the 
crossing providing warning for each direction of highway traffic, 
trains may proceed through the crossing at normal speed. Paragraph 
(c)(2) provides that if there is not an appropriately equipped flagger 
or law enforcement officer stationed at the crossing providing warning 
for each direction of highway traffic, trains may proceed with caution 
through the crossing at a speed not exceeding 10 miles per hour. Normal 
speed may be resumed after the locomotive has passed through the 
crossing. Paragraph (c)(3) of this section provides the railroad an 
option of temporarily taking the warning system out of service until 
repairs are completed. However, the warning system may only be taken 
out of service if the railroad complies with the protection 
requirements for activation failures. From a highway traffic control 
and warning system credibility perspective, it would be preferable for 
a railroad with few trains traversing the crossing to take a falsely 
activated warning system out of service. The railroad would then comply 
with the activation failure provisions of Sec. 234.105 rather than 
Sec. 234.107. We recognize that the proposed rule contains a 
disincentive for a railroad to do this since under Sec. 234.107 the 
railroad can operate through the crossing at 10 mph rather than 
stopping at the crossing as would be required under Sec. 234.105. FRA 
requests suggestions on ways to counter this disincentive while 
simultaneously insuring both safe highway traffic and safe, efficient 
rail operations. FRA recognizes that if gates are activated for an 
extended period of time, some highway users may attempt to go around 
the gates at the risk of a collision with an oncoming train. Highway 
users who obey the warning signal will be diverted to another route, 
resulting in inefficiencies for those travelers. The proposed rule both 
requires repair of the device ``without undue delay'' and prohibits a 
train from proceeding through an unflagged crossing at a speed in 
excess of 10 mph. Today, there are no limitations placed on the 
railroads in such situations. Thus, the proposal, while not ideal in 
terms of the impacts on the highway user, should improve the situation 
at crossings with malfunctioning warning devices. FRA recognizes that 
this proposal impacts highway users and therefore requests that 
commenters address possible alternatives to mitigate the negative 
effects on the highway user of permitting gates or flashing lights to 
remain activated for an extended period of time.
    Although not a regulatory proposal, FRA recognizes that a railroad 
may, of course, request the authority having jurisdiction over the 
roadway to close the roadway and detour highway traffic to another 
nearby crossing. Paragraph (d) provides that a locomotive's audible 
warning device shall be activated in accordance with railroad rules 
regarding the approach to a grade crossing, regardless of any State 
laws or ordinances to the contrary.
    FRA's original proposal stated that within two hours of receipt of 
a credible report of false activation, the railroad would have to 
provide or arrange for alternative means of protection at the crossing. 
During the period in which there were no alternative means of highway 
traffic control in place, trains would have been required to enter the 
crossing at a speed of not more than 10 miles per hour. FRA noted in 
the original NPRM that ``we are specifically requesting comments on the 
proposed time period to find out any circumstances under which this 
requirement may be difficult to fulfill.'' 57 FR 28822. The vast 
majority of submissions and testimony addressing the two hour response 
time of this rule have expressed the opinion that this proposal would 
be too burdensome on the industry, with no measurable increase in 
safety provided at the grade crossings.
    Labor/management's comments recommend that FRA eliminate the ``two-
hour'' provision from the original proposed rule. They recommend, in 
the absence of flagging, that the restriction on train speeds remain in 
effect pending repair of the warning system or appropriate alternative 
action. They state that the combined effect of the warning system being 
activated, the train proceeding at no more than restricted speed, and 
the use of the locomotive's audible warning device will provide 
sufficient warning for highway users. After re-examining the original 
proposed rule, FRA has eliminated the two-hour provision. In our view, 
highway users will be adequately warned of approaching trains that are 
proceeding at a speed no greater than 10 miles per hour. Additionally, 
the period during which the warning system may remain malfunctioning is 
limited by proposed Sec. 234.207 which requires that malfunctioning 
components of a warning system be repaired, replaced or adjusted 
without undue delay. Compliance with that section will ensure that 
temporary warnings provided under Sec. 234.107 will be held to a 
minimum period of time.

Section 234.109  Recordkeeping

    Paragraph (a) of this section requires each railroad to keep 
records pertaining to compliance with this subpart. Each railroad would 
be required to keep the following information for each report of 
warning system malfunction: Location of crossing (by highway name and 
DOT/AAR Crossing Inventory Number); time and date of receipt by 
railroad of report of malfunction; actions taken by railroad prior to 
repair and reactivation of repaired system; and time and date of 
repair.
    Paragraph (b) requires that each railroad retain for at least one 
year all records referred to in paragraph (a) of this section. Records 
required to be kept shall be made available to FRA as provided by 
Sec. 208 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 437).

Section 234.201  Location of Plans

    The proposed rule requires that plans and other information 
required for the proper maintenance and testing of highway-rail grade 
crossing warning systems, be available for use at each warning system 
location. Plans would be required to be legible and correct to protect 
against errors in circuitry connections. The current industry practice 
is for plans to be kept at each grade crossing location and used for 
the installation and maintenance of warning systems. The proposed rule 
is consistent with labor/management's recommendation.

Section 234.203  Design of Control Circuits on Closed Circuit Principle

    The proposed rule requires that all control circuits that affect 
the safe operation of a highway-rail grade crossing warning system 
shall be designed on the closed circuit principle. This design 
requirement ensures that failure of any part or component of the 
circuit will cause the warning system to activate (fail-safe 
principle). The MUTCD requires the fail-safe principle be adopted in 
the design of warning systems. The proposed rule corresponds with 
current industry practice.

Section 234.205  Operating Characteristics of Warning System Apparatus

    The proposed rule requires that operating characteristics of 
electromagnetic, electronic, or electrical apparatus of each crossing 
warning system be maintained in accordance with the limits within which 
it is designed to operate. In order to comply with this section, each 
carrier should have available specifications setting forth the pick-up 
values, release values, working values, and condemning limits of these 
values for all electromagnetic, electronic, or electrical devices used 
in highway-rail grade crossing warning systems. The proposed rule 
corresponds with current industry practice. The proposed rule is 
consistent with labor/management's recommendation.

Section 234.207  Adjustment, Repair, or Replacement of Component

    The proposed rule is similar to the requirement in the present FRA 
signal rules at 49 CFR part 236. The proposed rule requires that when 
any essential component of a highway-rail grade crossing warning system 
fails to perform its intended function, the cause shall be determined 
and the faulty component shall be repaired or replaced ``without undue 
delay.'' The proposed rule also requires that a railroad take 
appropriate action under Sec. 234.105 or Sec. 234.107, as appropriate.
    It is of paramount importance that remedial action begin as soon as 
possible after a credible report of a malfunction is received by a 
railroad. In general, adjustment, repair, or replacement without undue 
delay would require that remedial action be taken in as timely a manner 
as possible. Successful, practical application of these general 
principles may be the objective of this regulatory proceeding that is 
most crucial to the safety of the motoring public; and the safety of 
employees and rail operations is also implicated.
    The term ``undue delay'' has a long and reasonably well understood 
history within the railroad signalling community, as applied to signal 
and train control systems. In discussing this term when issuing the 
NPRM to the present part 236, FRA referred to ``[t]he interpretation of 
the phrase ``undue delay'' by the ICC. ``At page 723 of 329 I.C.C., the 
ICC said: `We find that the record does not support a rule which would 
require that repairs be made before the next movement in all 
situations. Such a rule would be unduly restrictive since adequate 
temporary safety measures can be taken until necessary repairs are 
made. We further find that the phrase `without undue delay' is a 
reasonable provision considering the infinite variety of factual 
situations in which Rule 11 [predecessor rule to Sec. 236.11] is 
applicable.'' 48 FR 11882, March 21, 1983. However, the same 
understanding that applies to the concept of ``undue delay'' with 
respect to railroad signal systems is not applicable in many cases of 
automated warning device malfunction. The differences are of a 
practical nature, including the fact that the device in question is a 
highway traffic control device.
    Where railroad signal systems are at issue, train movements in any 
given time period may be infrequent. Thus, although prompt diagnosis of 
the situation is normally required, completion of repairs can sometimes 
be completed over a matter of hours with no degradation of safety. 
Grade crossing warning devices present challenges that are similar in 
some respects, but different in others.

Activation Failure

    Where the device fails to operate in the presence of a train 
(whether partially or totally), immediate action by the railroad is 
crucial to protecting train and vehicular traffic. However, even though 
flagging trains through the crossing is a temporary expedient that 
greatly reduces risks to the motorist, this approach is not 
satisfactory as a continuing measure at most crossings where automated 
warning devices are installed. Temporary measures required under 
Sec. 234.105 involve additional hazards to train crews from mounting 
and dismounting locomotives in areas where employees are not normally 
on the ground. Whether flagging is provided by the train crew or other 
employees, additional risk is posed to those persons by motorists who 
may be insufficiently attentive as they approach a crossing normally 
equipped with functioning automated devices. In addition, where 
flagging is conducted by the train crew an increased risk of side-
collision accidents exists because the crewmember providing flagging 
service must, as a practical matter, reboard the locomotive before the 
remainder of the train clears the crossing. (Approximately 34% of 
nighttime crossing accidents involve motor vehicles striking the side 
of the train.) In this instance, a rapid response to the malfunction is 
indicated, both for the safety of the motorist and the employees 
involved. An exception to the need for rapid repair of the device would 
be a case in which no train movement is planned for the interval of 
several hours between the initial report and the time the maintainer 
responds and completes the repairs.
    In cases of activation failures, then, the frequency of train 
movements powerfully influences any evaluation of what might be 
considered an ``undue delay.''

False Activation

    In the case of a false activation, the railroad may elect to 
provide warning by slowing the train (and sounding the whistle) under 
proposed Sec. 234.107 until necessary repairs were made. In this case, 
motorists approaching the crossing with devices still functioning, but 
with no train in sight, are exposed to slightly greater risk of a 
traffic mishap due to the need to stop. Motorists will often be tempted 
to attempt to negotiate around gate arms rather than executing a ``U'' 
turn and using another crossing.
    More significantly, if the malfunction continues for an extended 
time period, or if malfunctions are frequent, it is possible that 
motorists may be conditioned to disbelieve the indication provided by 
the warning device, leading to a later accident at the same crossing, 
or a different crossing equipped with automated warning devices. That 
is, the credibility of the warning system may be compromised. Again, a 
rapid response by the signal maintainer is required. In this case, the 
first stage of the response may be to deactivate the warning system, 
ensuring that the procedures for an activation failure are 
followed.1 If, on the other hand, the response is to provide 
flagging services, that would be required under the text of the 
proposed rule only during those times when a train is present. During 
those periods, some risk would be presented to the persons providing 
that service, since the motorist will expect to look for the indication 
of the automated device, rather than presence of a flagger. At other 
times, the credibility issue will arise; and early action to deactivate 
the warning system will be indicated, with full repair before the next 
train movement insofar as possible.
---------------------------------------------------------------------------

    \1\This is not self-evident, but is posited for discussion. 
Should the response to a false activation be flexible, taking into 
account the frequency of both highway and rail traffic over the 
crossing? What is the break point (if any) at which deactivation of 
the warning device should be preferred?
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    In comments responding to the notice of proposed rulemaking for 
timely response to malfunctions, the Association of American Railroads 
submitted data analysis indicating that the occurrence of false 
activations does not lead to loss of credibility of warning devices.
    AAR's comments and testimony at the September 15, 1992 public 
hearing indicated that there was no relationship between false 
activations and subsequent accidents at the grade crossings at which 
the malfunction occurred. Analyzing accidents occurring during a six-
month period, the AAR concluded that only 15 accidents occurred in the 
week following the malfunction, and only two in the 24 hours following 
the malfunction. There was none in the period between report of the 
malfunction and its repair.
    When the FRA attempted to duplicate AAR's results using FRA's grade 
crossing accident/incident database, we found different results. FRA's 
data showed that fewer accidents occurred in the same time period as 
analyzed by the AAR. Also, fewer accidents occurred at all grade 
crossings which had experienced prior malfunctions. Despite the lower 
number of accidents, FRA's analysis of the same six-month period 
indicates a greater number of accidents both in the week following the 
malfunction (34) and in the twenty-four hour period following the 
malfunction (11). It is statistically unlikely that the higher accident 
rate following malfunctions is due to random causes.
    In other words, FRA has found a significant concentration of 
accidents in the time period shortly after malfunctions, which leads to 
the opposite conclusion from that which would be drawn using AAR's 
figures. It appears that the differences between AAR's and FRA's 
figures are due solely to differences in the raw data used for analysis 
rather than methodological differences.
    Recognizing the value of the AAR methodology, FRA has attempted to 
replicate and extend the analysis utilizing the more extensive data 
sets now available as a result of malfunction reports under 49 CFR 
234.9. FRA analyzed accident patterns associated with false activations 
over the 15-month period for which data is now available. The data 
shows that there were 94 accidents in the week following a false 
activation, and 16 in the twenty-four hour period following a false 
activation. FRA's analysis for this period indicates (as it does for 
the earlier six-month period) that there is overrepresentation of 
accidents in the week after a false activation malfunction. FRA's data 
also shows that one to two percent of fatalities at crossings are 
associated with those additional accidents. A more detailed discussion 
of this research is contained in the Economic Impact Assessment and 
Regulatory Flexibility Analysis on file in Docket RSGC-5.
    In light of these data, FRA is concerned that the inter-
relationships between this section and sections 234.105 and 234.107 
have not yet been fully developed, despite the efforts of the industry 
parties and FRA to resolve this issue in a practical manner that avoids 
unnecessary expenditures. FRA does not believe that the answer to the 
issue lies in repeated incantation of a comfortable phrase, such as 
``without undue delay.'' FRA urgently requests commenters to examine 
once again the structure of this proposal and the realities of the 
highway-rail issues presented herein for the purpose of developing the 
most effective, reasonable, objective, and enforceable approach to this 
difficult problem. FRA reserves the right to issue a final rule 
consistent either with the text contained in this NPRM or with the text 
of the prior NPRM on timely response.
    There is no current industry standard that corresponds with this 
rule. However, the industry has previously testified that it currently 
has provisions to repair defective warning device components in a 
timely manner. The proposed rule is consistent with labor/management's 
recommendation.

Section 234.209  Interference With Normal Functioning of System

    The proposed rule requires that the normal functioning of any 
system shall not be interfered with in testing or otherwise without 
first taking measures to provide for the safety of highway traffic. The 
intent of the proposed rule is to ensure that railroads provide 
alternative methods of maintaining safety while testing or performing 
work on the warning systems or on track and other railroad systems or 
structures which may affect the integrity of the warning system. Most 
railroads have established procedures regarding precautions to be taken 
when performing such work.
    In some circumstances, nearby track work could activate a crossing 
warning system. FRA does not believe that ``taking measures to provide 
for the safety of highway traffic'' in this context includes chaining a 
gate in the ``up'' position while allowing warning lights to continue 
flashing. Even when the track is temporarily out of service the mixed 
message sent to the motorist diminishes the warning system's 
credibililty, and must therefore be avoided. FRA solicits suggestions 
as to how to accommodate both the railroad's and the motorist's needs 
in such situations.
    FRA also requests interested parties to discuss the safety effect 
on the warning system caused by railroad equipment standing or being 
switched within the system's approach circuit where the warning system 
is not designed to accommodate those activities. There have been 
instances of such cars and locomotives activating the warning system 
for an extended length of time when there is no danger in crossing the 
tracks, raising the issue of credibility at that crossing. If there are 
multiple tracks at the crossing, a warning system activated for a 
period of time due to standing equipment may effectively entice a 
motorist to cross the tracks, when in fact a train may be approaching 
on the other track. This situation may be exacerbated by reduced 
visibility of the approaching train due to the standing equipment. FRA 
solicits comments on this matter. Should this situation be considered 
interference with the normal functioning of a warning system? FRA 
solicits comments on this problem and, if appropriate, possible 
regulatory and non-regulatory solutions.

Section 234.211  Locking of Warning System Apparatus

    The proposed rule permits the carrier to have managerial discretion 
in the specific manner that warning system housings are secured. The 
proposed rule requires that all external housings of warning system 
apparatus be kept locked, sealed, or secured. This includes warning 
system houses, flashing light signals, gate mechanisms, and bell or 
stationary audible warning system housings. The purpose of the proposed 
rule is to prevent vital components of the warning system from being 
vandalized or tampered with, possibly causing a malfunction of the 
warning system. The proposed rule corresponds with current industry 
practice. The proposed rule is consistent with labor/management's 
recommendation.

 Section 234.213  Grounds

    The proposed rule requires that each circuit which affects the 
proper functioning of a highway-rail grade crossing warning system be 
kept free of any ground or combination of grounds which will permit a 
flow of current equal to or in excess of 75 percent of the release 
value of any relay or electromagnetic device in the circuit. The only 
exceptions would be circuits that include any track rail, alternating 
current power distribution circuits that are grounded in the interest 
of safety, and any common return wires of grounded common return single 
break circuits. The basis of the proposed rule is the same as is 
required in 49 CFR part 236.2. The proposed rule corresponds with 
current industry practice. The proposed rule is consistent with labor/
management's recommendation.

Section234.215  Standby Battery and Indicator or Alarm

    In drafting this proposed section, FRA is addressing the most 
common type of installation in the nation--a battery-operated system in 
which the batteries are constantly being recharged by alternating 
current from a commercial or private source. In these systems, if the 
supply of alternating current is interrupted, the batteries continue to 
operate the system until they are discharged. The theory is that in 
most situations alternating power will be restored before the batteries 
run down.
    The proposed rule requires a standby battery source of power to 
ensure the highway-rail grade crossing warning system continues to 
function as intended if there is an interruption in primary alternating 
current power. Another portion of the rule requires that an indicator 
or alarm be used to indicate when the alternating current power is off. 
The purpose is to alert the carrier about the loss of primary power so 
remedial action can be taken before the standby battery source of power 
is exhausted. Additionally, the proposed rule requires that battery 
capacity be designed and maintained to provide a sufficient amount of 
time for the operation of a highway-rail grade crossing warning system 
when primary battery charging current is removed.
    An analysis of a random sample of 1,943 grade crossing signal 
failure reports showed that 12.2 percent (243) involved the loss of 
alternating current power as the primary cause for a malfunction of the 
system.
    The railroad industry and suppliers currently use standby battery 
power as a standard for warning system installations that are dependent 
on alternating current for their primary source of power. The 
Association of American Railroads' ``Signal Manual of Recommended 
Practice'' advises that standby battery power be used. Without a 
standby source of power, a warning system is ineffective when 
alternating current power is lost.
    This topic was discussed at the December 11, 1992 open meeting, and 
the consensus was that there is a need for warning systems to be 
capable of operating with standby power for a sufficient period of 
time. The proposed rule would not require batteries to be discharged to 
determine their capacity, because it would be impractical to do so. 
Warning system installations would be required to be designed to 
provide the proper amount of battery capacity. Proper battery voltage 
and specific gravity of the battery would be required to be maintained.
    Labor/management's recommendation does not specifically state the 
requirements for a standby battery source of power. However, their 
recommendation does assume standby batteries are used, because they 
recommend testing battery voltage at warning system installations.
    FRA recognizes that systems other than the typical system addressed 
in this section are in operation or may be in the development stage. We 
do not want these rules to hinder development of possible alternative 
equipment and systems. The proposed rule essentially provides a 
performance standard that back-up systems should respond automatically 
to loss of power and provide at least 48 hours of normal warning system 
operation. We invite comment on both this approach and the appropriate 
performance standard to be adopted.

Section 234.217  Flashing Light Units

    The proposed rule requires that each flashing light unit be 
positioned and aligned in accordance with installation plans. This is 
obviously important because of motorists' reliance on the flashing 
light units to warn of approaching trains. It is not practical to 
require a specific distance for the alignment of each flashing light 
unit because of varying conditions (i.e., road curvature, fixed 
obstructions, intersections, etc.) at each highway-rail grade crossing.
    The proposed rule also requires that each flashing light unit be 
maintained to prevent dust and moisture from entering the interior of 
the unit. Additionally, light units would be required to flash 
alternately at a rate of 35 to 55 times per minute. This is consistent 
with the requirements of the MUTCD. The proposed rule corresponds with 
current industry practice. The proposed rule is consistent with labor/
management's submission.
    FRA invites specific comment on those maintenance standards that 
also relate to design specifications derived from compliance with the 
MUTCD. For example, Sec. 234.217(c) would require that the number of 
flashes per minute for each light unit be 35 minimum and 55 maximum. 
This is consistent with Paragraph 8C-7 of the MUTCD, although that 
paragraph provides greater detail than is contained in Sec. 234.217(c). 
FRA invites comments regarding the consequences and advisability of (1) 
incorporating by reference MUTCD requirements into these regulations, 
(2) adopting the present MUTCD requirements, (3) adopting the present 
MUTCD requirements with changes where necessary, or (4) requiring that 
railroads maintain grade crossing warning systems to the specifications 
established at installation (or later, if conditions change) and set 
forth on the installation plans. For example, rather than requiring 35 
to 55 flashes per minute, the rule could require that light units flash 
as designed. Similarly, rather than requiring specific time periods in 
which a gate arm should move, as is presently proposed in Sec. 234.223, 
the rule might read as follows: ``Each gate arm shall extend across 
each lane of approaching highway traffic and shall be maintained in a 
condition sufficient to be clearly viewed by approaching motorists. 
Each gate arm shall start its downward motion and shall reach its 
horizontal position in accordance with time periods designed for that 
specific installation.'' In addition to other areas of concern 
regarding use or non-use of MUTCD standards, FRA requests that 
commenters address the situation in which MUTCD standards might change. 
If the MUTCD design standards were to be changed, should FRA's 
maintenance standards also automatically be changed? If the MUTCD 
standards are different than FRA's standards, will that result in a 
warning system being designed to one set of standards, and after 
installation being maintained to a different set of standards?

Section 234.219  Gate Arm Lights and Light Cable

    The proposed rule requires that each gate arm light be visible to 
approaching highway users and that lights and light wire be secured to 
the gate arm. The proposed rule assists in alerting motorists, 
particularly at night, that the gate arm is in the horizontal position. 
It is important that the lights and light wire are secured to the gate 
arm to help prevent the lights and light wire from being damaged. The 
MUTCD requires three red lights on the gate arm. Labor/management's 
recommendation does not specify a standard for gate arm lights or light 
cable; however, the proposed rule corresponds with current industry 
practice.

Section 234.221  Lamp Voltage

    The proposed rule requires that lamp voltage be maintained at no 
less than 85 percent of its prescribed rating. The National 
Transportation Safety Board has recommended that FRA establish a 
standard for minimum lamp voltage at highway-rail grade crossing 
warning systems. In the December 11, 1992 open meeting, there was a 
consensus that it is impossible to maintain lamp voltage at the full 
rating of the lamp, at all warning system installations. The proposed 
rule will ensure that the lamp voltage is sufficient to provide 
suitable illumination of the lamp, while increasing the endurance and 
dependability of the lamp. The proposed rule corresponds with current 
industry practice. The proposed rule is consistent with labor/
management's recommendation.

Section 224.223  Gate Arm

    The proposed rule requires that each gate arm, when in the downward 
position, extend across each lane of approaching highway traffic and be 
maintained in a condition sufficient to be clearly viewed by 
approaching motorists. The rule would also require that each gate arm 
start its downward motion not less than three seconds after flashing 
lights begin to operate and assume the horizontal position in a minimum 
of five seconds before the arrival of any train at the crossing. The 
proposal would assist in assuring that motorists are warned about 
trains approaching the crossing. Labor/management recommends that the 
gates assume the horizontal position before the arrival of any train at 
the crossing.
    FRA also requests comments regarding MUTCD design standards. See 
further discussion in section by section analysis of Sec. 234.217.

Section 234.225  Activation of Warning System

    The proposed rule requires a minimum of 20 seconds warning time 
prior to the grade crossing being occupied by rail traffic. This is 
consistent with the requirements of the MUTCD and current industry 
practices. Labor/management provides no specific recommendation 
concerning a standard for warning time, however, it does recommend that 
warning systems be designed to comply with provisions of the MUTCD. In 
the December 11, 1992 open meeting, there was agreement among all 
parties that a 20-second minimum warning time is desirable.
    FRA also requests comments regarding MUTCD design standards. See 
further discussion in section-by-section analysis of Sec. 234.217.

Section 234.227  Train Detection Apparatus

    The proposed rule requires the detection of a train or car when any 
part of a train detection circuit is occupied. The train detection 
circuit would be required to extend through the entire approach 
sections of the grade crossing to prevent any ``dead sections.'' The 
proposed rule requires that when a highway/rail grade crossing equipped 
with a warning system is fouled by a train or car, the warning system 
shall continue to operate until such train or car clears the roadway. 
The warning system would be required to discontinue operation after the 
train or car passes the point of fouling the crossing, if there are no 
other movements within the limits of the warning circuit. Where the 
presence of sand, rust, dirt, grease, or other foreign matter is known 
to prevent effective shunting, appropriate action under Sec. 234.105, 
``Activation failure,'' must be taken.
    The proposed rule corresponds with current industry practice. 
Warning system installations are designed to work in this manner. The 
proposed rule is consistent with labor/management's recommendation.

Section 234.229  Shunting Sensitivity

    The proposed rule requires that each train detection circuit that 
controls a highway-rail grade crossing warning system will detect the 
presence of a shunt of 0.06 ohm resistance when the shunt is connected 
across the track rails of the circuit, including fouling sections of 
turnouts. The standard of using a shunt of 0.06 ohm resistance has been 
effective in signal systems (49 CFR 236.56), since its implementation 
in 1950.
    There was discussion about this issue at the December 11, 1992 open 
meeting. Some commenters stated it would be difficult to ensure that 
certain types of constant warning time systems would react with a shunt 
of 0.06 ohm resistance applied in the train detection circuit. However, 
the commenters were not able to provide an alternative standard. The 
majority of warning systems can be tested for shunting sensitivity with 
the 0.06 ohm shunt. It is possible for the remaining warning systems, 
equipped with constant time warning systems, to be tested with more 
than one 0.06 ohm shunt applied in different areas of the train 
detection circuit, simulating the movement of a train. There is no 
current standard industry practice corresponding to the proposed rule. 
Labor/management did not address this area.

Section 234.231  Fouling Wires

    The proposed rule requires that each set of fouling wires located 
in a highway-rail grade crossing warning system train detection circuit 
consist of at least two discret conductors, and requires that each 
conductor be of sufficient conductivity and maintained in such a 
condition that the train detection apparatus will be in its most 
restrictive state when the circuit is shunted. This rule would help 
assure the detection of a train operating through turnouts located 
within the limits of train detection circuits. If one wire or rail plug 
were broken, a dangerous condition would be prevented if the other wire 
or rail plug continued to be effective. Labor/management made no 
recommendations pertaining to the proposed rule. The proposed rule 
corresponds with current industry practice.

Section 234.233  Rail Joints

    The proposed rule requires that each rail joint located within the 
limits of a highway-rail grade crossing train detection circuit be 
bonded to ensure electrical conductivity by a means other than joint 
bars. It is important that all rail joints are bonded to ensure 
continuity of the train detection circuit. This aids in preventing 
false activations of a warning system. Labor/management's submission 
did not address this issue. The proposed rule corresponds with current 
industry practice.

Section 234.235  Insulated Rail Joints

    The proposed rule requires that each insulated rail joint used to 
separate train detection circuits within the limits of a highway-rail 
grade crossing be maintained in a condition to prevent current from 
flowing between rails separated by the insulation in an amount 
sufficient to cause a failure of any train detection circuit. This 
proposal would apply primarily to conventional train-detection 
apparatus, where a failure of the insulated rail joint could result in 
either a false activation or a failure to activate. The proposed rule 
corresponds with current industry practice and is consistent with 
labor/management's recommendation.

Section 234.237  Switch Equipped With Circuit Controller

    The proposed rule requires that when a switch equipped with a 
switch circuit controller connected to the point is interconnected with 
highway-rail grade crossing warning system circuitry, such switch shall 
be maintained so that the warning system can be cut out only when the 
point is within one-half inch of the full reverse position. The purpose 
of the proposed rule is to prevent inadequate warning time for a 
motorist.
    Some railroads use switch circuit controllers to cut out (or 
override) the activation of a warning system when a switch is located 
within the train-detection limits of the warning system. The primary 
purpose of this arrangement is to avoid the unnecessary operation of 
the warning system when trains are making switching movements within 
the train detection circuit, but not occupying the grade crossing. This 
is a safe practice as long as the circuit controller is properly 
adjusted to cut out the warning system with the switch in the reverse 
position. This ensures the warning system cannot be cut out with the 
switch in the normal position and train movements operating at normal 
speed through the train detection circuit.
    The proposed rule corresponds with current industry practice. 
Labor/management's submission did not address this requirement. 
However, it did recommend that where cut-out circuits are used, tests 
be made to determine they function properly.

Section 234.239  Tagging of Wires and Interference of Wires or Tags 
With Signal Apparatus

    The proposed rule requires that each wire be tagged or otherwise so 
marked that it can be identified at each terminal. All tag or wire 
identification should correspond with the circuit plan. Tags and other 
marks of identification would be required to be made of insulating 
material and so arranged that tags and wires do not interfere with 
moving parts of apparatus. The requirements of the proposed rule are 
the same as those in 49 CFR 236.76. The proposed rule is consistent 
with both current industry practice and labor/management's 
recommendation.

Section 234.241  Protection of Insulated Wire; Splice in Underground 
Wire

    The proposed rule requires that insulated wire be protected from 
mechanical injury. The insulation would be prohibited from being 
punctured for test purposes, and a splice in underground wire would be 
required to have insulation resistance at least equal to the wire 
spliced. The requirements of the proposed rule are the same as those in 
49 CFR 236.74. The requirements would ensure the integrity of 
conductors carrying vital warning system circuitry. The proposed rule 
corresponds with current industry practice. The proposed rule is 
consistent with labor/management's recommendation.

Section 234.243  Wire on Pole Line and Aerial Cable

    The proposed rule requires that wire on a pole line be securely 
tied in on an insulator and properly fastened to a crossarm or bracket 
supported by a pole or other support. The rule would require that the 
wire not interfere with, or be interfered with, by other wires on the 
pole line. Aerial cable would be required to be supported by messenger 
wire. Open-wire transmission line operating at 750 volts or more would 
not be placed less than 4 feet above the nearest crossarm carrying 
active warning system circuits. The requirements of the proposed rule 
are the same as those in 49 CFR 236.71. The portion of the proposed 
rule addressing wire on pole line would apply only to warning system 
installations that utilize pole line as part of the warning system 
circuitry. The proposed rule corresponds with current industry 
practice. The proposed rule is consistent with labor/management's 
recommendation.

Section 234.245  Signs

    The proposed rule requires that each sign mounted on a highway-rail 
grade crossing signal post be maintained in good condition and visible 
to the motorist. Signs mounted on the mast could include crossbucks, 
``number of tracks,'' etc. The proposed rule is consistent with current 
industry practice and labor/management's recommendation.

Inspections and Tests

Section 234.247  Purpose of Inspections and Tests; Removal From Service 
of Relay or Device Failing To Meet Test Requirements

    The proposed rule requires that certain FRA-required tests be made 
to determine whether apparatus and equipment are maintained in a 
condition to perform their intended function. An electronic device, 
relay, or other electromagnetic device that fails to meet the 
requirements of specified tests would be required to be removed from 
service and not restored to service until its operating characteristics 
were in accordance with the limits within which such device or relay is 
designed to operate.
    The purpose of the inspections and tests is to determine whether 
operating characteristics of electronic devices, relays, or other 
electromagnetic devices are within specified values and if highway-rail 
grade crossing warning system apparatus and equipment is being 
maintained in a condition to assure the safety of motorists and train 
operations. The proposed rule is consistent with labor/management's 
recommendation.

Section 234.249  Ground Tests

    The proposed rule requires a test for grounds on each energy bus 
furnishing power to circuits that affect the safety of highway-rail 
grade crossing warning system operation. The proposal requires that the 
test be made when an energy bus is placed in service, and at least once 
each month thereafter. This requirement would assist in maintaining the 
integrity and safety of the warning system. The proposed rule is 
consistent with labor/management's recommendation.

Section 234.251  Battery Voltage

    The proposed rule requires that battery voltage be checked at the 
battery, with battery-charging current removed, at least once each 
month to determine battery capability for instances of battery-charging 
current loss. The proposed rule is consistent with both current 
industry practice and labor/management's proposal.

Section 234.253  Flashing Light Units and Lamp Voltage

    The proposed rule requires that each flashing light unit be tested 
when installed and at least once every twelve months, with battery-
charging current removed and with battery charging current restored, to 
determine that lamp voltage. Each flashing light unit would be required 
to be inspected at installation and once every twelve months for 
alignment, focus, and frequency of flashes in accordance with 
installation specifications. The exterior of each flashing light unit 
would be required to be inspected for dust and damage to roundels to 
ensure visibility of the light unit, at least once each month. Labor/
management recommended that at least once each month the visibility of 
warning lights be checked with battery charging current removed, and 
with battery charging current restored, and and observations be made to 
determine that all lights are burning with normal brilliancy. The 
proposal is generally consistent with that of labor/management; 
however, FRA welcomes any comments on alternative methods of testing 
and ensuring normal brilliancy of lights.

Section 234.255  Gate Arm and Gate Mechanism

    The proposed rule requires that each gate arm and gate mechanism be 
inspected, and gate arm movement be observed for proper operation, at 
least once each month. Tests of hold-clear devices would be required at 
least once every 12 months. The hold-clear device is what keeps the 
gate arms in the vertical position when the warning system is not 
activated. The proposed rule is consistent with labor/management's 
recommendation.

Section 234.257  Warning System Operation

    The proposed rule requires that a highway/rail grade crossing 
warning system be tested for proper operation when the warning system 
is placed in service and thereafter when modified or disarranged, and 
at least once each month. The term ``disarranged'' would be defined as: 
``When a relay, circuit board, or other electronic device is replaced 
with another; two or more conductors in a cable are severed; a cable or 
conductor in a train detection system is replaced with another; or 
wires are removed at the same time from more than one terminal of a 
relay, electronic device, terminal board, or other vital component of a 
train detection system.'' The extent of testing the warning system for 
proper operation would be dependent on the degree of modification or 
disarrangement.
    Currently, the majority of the industry tests the operation of 
warning systems on a monthly interval. Industry instructions vary 
regarding the testing of a warning system subsequent to modification or 
disarrangement of the system. The labor/management submission 
recommends that operation of warning systems be checked at least once 
each month. The recommendation does not address the testing of a 
warning system subsequent to a modification or disarrangement of such 
system.
    The proposed rule also requires that when a warning bell or other 
stationary audible warning device is used, it be checked for proper 
operation when installed and at least once each month thereafter. The 
proposed rule is consistent with labor/management's recommendation.

Section 234.259  Warning Time

    The proposed rule requires that a highway/rail grade crossing 
warning system be tested for prescribed warning time at least once 
every three months. This can be accomplished by observation of a train 
movement, if practical, or by calculation and simulation of a train 
movement. The proposed rule corresponds with current industry practice. 
The proposed rule is consistent with labor/management's recommendation.

Section 234.261  Highway Traffic Signal Pre-emption

    The proposed rule requires that highway traffic signal pre-emption 
interconnections, for which a railroad has maintenance responsibility, 
be tested at least once each month. The pre-emption of a highway 
traffic signal requires an electrical circuit between the control relay 
of the highway/rail grade crossing warning system and the controller 
assembly of the highway traffic signal. The railroad would only be 
responsible for the maintenance and testing of its interconnections. 
The proposed rule is consistent with both current industry practice and 
labor/management's recommendation.

Section 234.263  Relays

    Paragraph (a) of this section requires that (except for certain 
relays listed in paragraph (b)) each relay that affects the proper 
functioning of a crossing warning system shall be tested at least once 
every four years.
    Paragraph (b)(2) requires that alternating current vane type 
relays, direct current polar type relays, and relays with soft iron 
magnetic structure shall be tested at least once every two years. 
Paragraph (b)(2) requires that alternating current centrifigal type 
relays shall be tested at least once every 12 months.
    The requirements in the proposed rule are similar to those in 49 
CFR 236.106 due to utilization of the same type relays. The proposed 
rule is consistent with current industry practice and labor/
management's recommendation.

Section 234.265  Timing Relays and Timing Devices

    The proposed rule requires that each timing relay and timing device 
be tested at least once every twelve months. The timing would be 
required to be maintained at not less than 90 percent nor more than 110 
percent of the predetermined time interval, which shall be shown on the 
plans or marked on the timing relay or timing device.
    Time-out circuits are primarily used for train switching movements 
at warning system installations. The time-out circuits enable an 
activation of a highway/rail grade crossing warning system to be 
overridden for a predetermined amount of time, after a train movement 
has occupied the detection circuit in approach to the grade crossing. 
The proposed rule is consistent with current industry practice and 
labor/management's recommendation.

Section 234.267  Insulation Resistance Tests, Wires in Trunking and 
Cables

    Paragraph (a) requires that insulation resistance tests be made 
when wires or cables are installed and at least once every ten years 
thereafter.
    Paragraph (b) requires that insulation resistance tests be made 
between all conductors and ground, between conductors in each multiple 
conductor cable, and between conductors in trunking. Such tests must be 
performed when wires, cables, and insulation are dry.
    Paragraph (c) provides that when insulation resistance of wire or 
cable is found to be less than 500,000 ohms, prompt action would be 
required to be taken to repair or replace the defective wire or cable. 
Until such defective wire or cable is replaced, insulation resistance 
tests must be made annually. Paragraph (d) provides that a circuit with 
a conductor having an insulation resistance of less than 200,000 ohms 
shall not be used.
    The requirements in the proposed rule are the same as those in 49 
CFR 236.108, because of the utilization of the same type wires and 
cable. The proposed rule is consistent with current industry practice 
and labor/management's recommendation.

Section 234.269  Cut-Out Circuits

    The proposed rule requires that each cut-out circuit be tested at 
least once every three months to determine that the circuit functions 
as intended. The proposed rule would ensure that cut-out circuits 
operate correctly and that they do not permit an activation failure of 
the warning system. The proposed rule is consistent with labor/
management's recommendation.

Section 234.271  Insulated Rail Joints, Bond Wires, and Track 
Connections

    The proposed rule requires that each insulated rail joint, bond 
wire, and track connection located within the limits of a highway-rail 
grade crossing train detection circuit be inspected at least once every 
three months. Insulated rail joints are used to prevent current from 
flowing between rails. Bondwires and track connections ensure 
continuity of a train detection circuit. The proposed rule is 
consistent with current industry practice and labor/management's 
recommendation.

Section 234.273  Results of Tests

    This section requires that results of tests made in compliance with 
this part be recorded on preprinted or computerized forms provided by 
the railroad, or by electronic means, approved by the Associate 
Administrator for Safety. Such records would be required to show the 
name of the railroad having maintenance responsibility for the warning 
system, AAR/DOT inventory number, place and date, equipment tested, 
results of tests, repairs, replacements, adjustments made, and 
condition in which the apparatus was left. Each record would be 
required to be signed or electronically coded by the employee making 
the test and be filed in the office of a supervisory official having 
jurisdiction. Each record would be required to be retained until the 
next record for that test is filed but in no case less than one year. 
If a railroad elects to use an electronic means for recording and 
signing results of tests, such means must be approved by FRA prior to 
use.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and is considered to be significant under DOT 
policies and procedures (44 FR 11034, February 26, 1979) because it 
initiates a new regulatory program. This regulatory document was 
subject to review under E.O. 12866. FRA has prepared and placed in the 
rulemaking docket a regulatory evaluation addressing the economic 
impact of this rule. A copy of the regulatory evaluation may be 
inspected and copied in room 8201, 400 Seventh Street, SW., Washington, 
DC, 20590.
    In its regulatory analysis FRA posited that the benefits of this 
rule would arise for several reasons. First, grade crossing signal 
malfunctions would become rarer after application of subpart D 
(``Maintenance, Inspection, and Testing''). Second, grade crossings 
would be made safe during the period of their signals' malfunctioning 
under provisions of subpart C (``Response to Reports of Warning System 
Malfunction''), specifically Secs. 234.105 and 234.107. Third, the 
costs of Secs. 234.105 and 234.107 would be reduced because the 
railroads would fix the signals more rapidly under Sec. 234.103 of 
subpart C. Some of the other sections in the rule are needed to 
implement Secs. 234.103, 234.105, and 234.107.
    It appears that malfunctions in the form of activation failures now 
cost about $4.25 million per year in accidents. In these accidents the 
highway user does not know a train is coming, enters the crossing, and 
is struck by a train. This rule should reduce that annual cost to about 
$400,000.
    It also appears that malfunctions in the form of false activations 
cause about $17.6 million a year in accident costs. In these accidents 
the highway user thinks the signal is ``crying wolf,'' ignores a valid 
warning, and is struck by a train. This rule should reduce the annual 
cost to about $3.5 million. This rule will prevent malfunctions, reduce 
their duration, and make crossings safer during a malfunction. The 
total cost of this rule, discounted over twenty years, will be about 
$140 million, and the total benefit will be about $230 million. 
Benefits will be about 1.6 times costs.

Regulatory Flexibility Act

    FRA certifies that this proposed rule will not have a significant 
impact on a substantial number of small entities. There are no 
substantial economic impacts for small units of government, businesses, 
or other organizations. FRA specifically requests comments on the 
impact of this rule on small entities.

Paperwork Reduction Act

    The proposed rule contains information collection requirements. FRA 
is submitting these information collection requirements to the Office 
of Management and Budget for approval under the Paperwork Reduction Act 
of 1980 (44 U.S.C. 3501 et seq.). The proposed section that contains 
information collection requirements is Sec. 234.273. The estimated time 
to fulfill the requirement of that section is five minutes for each 
record. FRA solicits comments on the accuracy of the FRA estimate; the 
practical utility of the information; and the alternative methods that 
might be less burdensome to obtain this information. Persons desiring 
to comment on this topic should submit their views in writing to FRA 
(Ms. Gloria Swanson, RRS-21, Federal Railroad Administration, 400 
Seventh Street, SW., Washington, DC 20590) and to the Office of 
Management and Budget (Desk Officer, Regulatory Policy Branch (OMB No. 
2130-AA45), Office and Management and Budget, New Executive Office 
Building, 726 Jackson Place, NW., Washington, DC 20530. Copies of any 
such comments should also be submitted to the Docket Clerk, Office of 
Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 20590.

Environmental Impact

    FRA has evaluated these proposed regulations in accordance with its 
procedure for ensuring full consideration of the potential 
environmental impacts of FRA actions, as required by the National 
Environmental Policy Act and related directives. This notice meets the 
criteria that establish this as a non-major action for environmental 
purposes.

Federalism Implications

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, ``Federalism,'' and it has 
been determined that the proposed rule has sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. FRA 
recognizes that currently a small number of states have statutes 
mandating to some extent maintenance, inspection and testing procedures 
for railroads operating within those states. In an effort to maintain 
state expertise and involvement in this critical safety area, FRA has 
proposed to include grade crossing warning system inspection functions 
within its State Participation Program. FRA has also proposed in 
Secs. 234.105 and 234.107 that in instances of grade crossing warning 
system malfunctions, ``a locomotive's audible warning device shall be 
activated in accordance with railroad rules.'' This provision would 
preempt local ``whistle ban'' ordinances. This minimal intrusion into 
an area in which a handful of State and local governments have become 
involved is necessary to protect the travelling public and train crews 
from possible injury or death at grade crossings with malfunctioning 
warning systems. A copy of the Federalism Assessment has been placed in 
the public docket located in room 8201, 400 Seventh Street, SW., 
Washington, DC 20590.

List of Subjects

49 CFR Part 212

    Intergovernmental relations, Investigations, Railroad safety.

49 CFR Part 234

    Railroad safety, Highway-rail grade crossings.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend chapter II 
of title 49, Code of Federal Regulations as follows:

PART 212--[AMENDED]

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: Secs. 202, 205, 206, and 207, of the Federal Railroad 
Safety Act of 1970, as amended (45 U.S.C. 431, 434, 435, and 436); 
and 49 CFR 1.49.

    2. Section 212.231, ``Inapplicable qualification requirements,'' is 
redesignated Sec. 212.235, and new Secs. 212.231 and 212.233 are added 
to read as follows:


Sec. 212.231  Highway-rail grade crossing inspector.

    (a) The highway-rail grade crossing inspector is required, at a 
minimum, to be able to conduct independent inspections of all types of 
highway-rail grade crossing warning systems for the purpose of 
determining compliance with Grade Crossing Signal System Safety Rules 
(49 CFR part 234), to make reports of those inspections, and to 
recommend institution of enforcement actions when appropriate to 
promote compliance.
    (b) The highway-rail grade crossing inspector is required, at a 
minimum, to have at least four years of recent experience in highway-
rail grade crossing construction or maintenance. A bachelor's degree in 
engineering or a related technical specialization may be substituted 
for two of the four years of this experience requirement. Successful 
completion of an apprentice training program under Sec. 212.233 may be 
substituted for the four years of this experience requirement.
    (c) The highway-rail grade crossing inspector shall demonstrate the 
following specific qualifications:
    (1) A comprehensive knowledge of highway-rail grade crossing 
nomenclature, inspection techniques, maintenance requirements, and 
methods;
    (2) The ability to understand and detect deviations from: (i) grade 
crossing signal system maintenance, inspection and testing standards 
accepted in the industry; and
    (ii) the Grade Crossing Signal System Safety Rules (49 CFR part 
234);
    (3) Knowledge of operating practices and highway-rail grade 
crossing systems sufficient to understand the safety significance of 
deviations and combinations of deviations;
    (4) Specialized knowledge of the requirements of the Grade Crossing 
Signal System Safety Rules, including the remedial action required to 
bring highway-rail grade crossing signal systems into compliance with 
those Rules;
    (5) Specialized knowledge of highway-rail grade crossing standards 
contained in the Manual on Uniform Traffic Control Devices; and
    (6) Knowledge of railroad signal systems sufficient to ensure that 
highway-rail grade crossing warning systems and inspections of those 
systems do not adversely affect the safety of railroad signal systems.
    (d) A State signal and train control inspector qualified under this 
part is deemed to meet all requirements of this section and is 
qualified to conduct independent inspections of all types of highway-
rail grade crossing warning systems for the purpose of determining 
compliance with Grade Crossing Signal System Safety Rules (49 CFR part 
234), to make reports of those inspections, and to recommend 
institution of enforcement actions when appropriate to promote 
compliance.


Sec. 212.233   Apprentice highway-rail grade crossing inspector.

    (a) The apprentice highway-rail grade crossing inspector must be 
enrolled in a program of training prescribed by the Associate 
Administrator for Safety leading to qualification as a highway-rail 
grade crossing inspector. The apprentice inspector may not participate 
in investigative and surveillance activities, except as an assistant to 
a qualified State or FRA inspector while accompanying that qualified 
inspector.
    (b) Prior to being enrolled in the program the apprentice inspector 
shall demonstrate:
    (1) Working knowledge of basic electricity and the ability to use 
electrical test equipment in direct current and alternating current 
circuits; and
    (2) A basic knowledge of highway-rail grade crossing inspection and 
maintenance methods and procedures.

PART 234--[AMENDED]

    3. The authority citation for part 234 is revised to read as 
follows:

    Authority: Secs. 202, 208, and 209 of the Federal Railroad 
Safety Act of 1970, as amended (45 U.S.C. 431, 437, and 438, as 
amended); Accident Reports Act (45 U.S.C. 38 and 42); and 49 CFR 
1.49 (f), (g), and (m).

    4. Section 234.1 is revised to read as follows:


Sec. 234.1  Scope.

    This part prescribes standards for the reporting of failures of 
highway-rail grade crossing warning systems. This part also prescribes 
actions railroads must take when such warning systems malfunction and 
imposes minimum maintenance, inspection, and testing standards for such 
systems. When any person performs any function required by this part, 
that person is required to perform that function in accordance with 
this part.
    5. Section 234.4 is added to read as follows:


Sec. 234.4  Preemptive effect.

    Under section 205 of the Federal Railroad Safety Act of 1970 (45 
U.S.C. 434), issuance of these regulations preempts any State law, 
rule, regulation, order, or standard covering the same subject matter, 
except a provision directed at an essentially local safety hazard that 
is consistent with this part and that does not impose an undue burden 
on interstate commerce.
    6. Amend Sec. 234.5 by deleting paragraph designations, listing 
definitions in alphabetical order, and adding the following definitions 
to read as follows:


Sec. 234.5  Definitions.

* * * * *
    Appropriately equipped flagger means a person other than a train 
crewmember who is equipped with an orange vest, shirt, or jacket for 
daytime flagging. For nighttime flagging, similar outside garments 
shall be retroreflective. The retroreflective material shall be either 
orange, white (including silver-colored coatings or elements that 
retroreflect white light), yellow, fluorescent red-orange, or 
fluorescent yellow-orange and shall be designed to be visible at a 
minimum distance of 1,000 feet. The design configuration of the 
retroreflective material shall provide recognition of the wearer as a 
human being and shall be visible through the full range of body 
motions. Acceptable hand signalling devices for daytime flagging 
include ``STOP/SLOW'' paddles and red flags. For nighttime flagging, a 
flashlight, lantern, or other lighted signal shall be used.
    Credible report of system malfunction means specific information 
regarding a malfunction at an identified highway-rail crossing, 
supplied by a railroad employee, law enforcement officer, highway 
traffic official, or other employee of a public agency acting in an 
official capacity.
* * * * *
    Warning system malfunction means an activation failure or a false 
activation of a highway-rail grade crossing warning system.


Sec. 234.6  [Redesignated from Secs. 234.15 and 234.17]

    7. Redesignate the heading and text of Sec. 234.15, and the heading 
and text of Sec. 234.17, as the heading and text of paragraph (a) of a 
new Sec. 234.6 and the heading and text of paragraph (b) of Sec. 234.6, 
respectively; add a new section heading for newly designated 
Sec. 234.6; and revise the newly designated paragraph (a) of Sec. 234.6 
to read as follows:


Sec. 234.6  Penalties.

    (a) Civil penalty. Any person (including but not limited to a 
railroad; any manager, supervisor, official, or other employee or agent 
of a railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor) who violates 
any requirement of this part or causes the violation of any such 
requirement is subject to a civil penalty of at least $500, but not 
more than $10,000 per violation, except that: penalties may be assessed 
against individuals only for willful violations, and where a grossly 
negligent violation or a pattern of repeated violations has created an 
imminent hazard of death of injury to persons, or has caused death or 
injury, a penalty not to exceed $20,000 per violation may be assessed. 
Each day a violation continues shall constitute a separate offense. 
Appendix A to this part contains a schedule of civil penalty amounts 
used in connection with this rule.
* * * * *
    8. Designate Secs. 234.1 through 234.6 as ``Subpart A--General'' 
and designate Secs. 234.7 through 234.13 as ``Subpart B--Reports.''
    9. Add new ``Subpart C--Response to Reports of Warning System 
Malfunction,'' and new ``Subpart D--Maintenance, Inspection, and 
Testing,'' to read as follows:

Subpart C--Response to Reports of Warning System Malfunction

Sec.
234.101  Employee notification rules.
234.103  Timely response to report of malfunction.
234.105  Activation failure.
234.107  False activation.
234.109  Recordkeeping.

Subpart D--Maintenance, Inspection, and Testing

Maintenance Standards

234.201  Location of plans.
234.203  Design of control circuits on closed circuit principle.
234.205  Operating characteristics of warning system apparatus.
234.207  Adjustment, repair, or replacement of component.
234.209  Interference with normal functioning of system.
234.211  Locking of warning system apparatus.
234.213  Grounds.
234.215  Standby battery and indicator or alarm.
234.217  Flashing light units.
234.219  Gate arm lights and light cable.
234.221  Lamp voltage.
234.223  Gate arm.
234.225  Activation of warning system.
234.227  Train detection apparatus.
234.229  Shunting sensitivity.
234.231  Fouling wires.
234.233  Rail joints.
234.235  Insulated rail joints.
234.237  Switch equipped with circuit controller.
234.239   Tagging of wires and interference of wires or tags with 
signal apparatus.
234.241  Protection of insulated wire; splice in underground wire.
234.243  Wire on pole line and aerial cable.
234.245  Signs.

Inspections and Tests

234.247  Purpose of inspections and tests; removal from service of 
relay or device failing to meet test requirements.
234.249  Ground tests.
234.251  Battery voltage.
234.253  Flashing light units and lamp voltage.
234.255  Gate arm and gate mechanism.
234.257  Warning system operation.
234.259  Warning time.
234.261  Highway traffic signal pre-emption.
234.263  Relays.
234.265  Timing relays and timing devices.
234.267  Insulation resistance tests.
234.269  Cut-out circuits.
234.271  Insulated rail joints, bond wires, and track connections.
234.273  Results of tests.


Sec. 234.101  Employee notification rules.

    Each railroad shall issue rules requiring its employees to report 
to a designated railroad official, by the quickest means available, any 
warning system malfunction.


Sec. 234.103  Timely response to report of malfunction.

    (a) Upon receipt of a credible report of a warning system 
malfunction, a railroad having maintenance responsibility for the 
warning system shall immediately investigate the report and determine 
the nature of the malfunction. The railroad shall take appropriate 
action as required by Sec. 234.207.
    (b) Until repair or correction of the warning system is completed, 
the railroad shall provide alternative means of warning highway traffic 
and railroad employees in accordance with this subpart.
    (c) Nothing in this subpart requires repair of a warning system, 
if, acting in accordance with applicable State law, the railroad 
proceeds to discontinue or dismantle the warning system. However, until 
repair, correction, discontinuance, or dismantling of the warning 
system is completed, the railroad shall comply with this subpart to 
ensure the safety of the travelling public and railroad employees.


Sec. 234.105  Activation Failure.

    Upon receipt of a credible report of warning system malfunction 
involving an activation failure, a railroad having maintenance 
responsibility for the warning system shall immediately initiate 
efforts to warn motorists and railroad employees at the subject 
crossing by taking, at a minimum, the following actions:
    (a) Prior to a train's arrival at the crossing, notify the train 
crew of the report of activation failure and notify any other railroads 
operating over the crossing;
    (b) Notify the highway traffic control authority having 
jurisdiction over the crossing; and
    (c) Provide or arrange for alternative means of actively warning 
motorists of approaching trains, consistent with the following 
requirements:
    (1) Until an appropriately equipped flagger or law enforcement 
officer is stationed at the crossing to warn highway traffic of 
approaching trains, each train must stop before entering the crossing 
and permit a crewmember to dismount to flag highway traffic to a stop. 
The locomotive may then proceed through the crossing, permitting the 
flagging crewmember to reboard the locomotive before the remainder of 
the train proceeds through the crossing.
    (2) If an appropriately equipped flagger or law enforcement officer 
provides warning for each direction of highway traffic, trains may 
proceed through the crossing at normal speed.
    (3) If an appropriately equipped flagger or law enforcement officer 
provides warning for highway traffic, but there is not at least one 
flagger or law enforcement officer providing warning for each direction 
of highway traffic, trains may proceed with caution through the 
crossing at a speed not exceeding 10 miles per hour. Normal speed may 
be resumed after the locomotive has passed through the crossing.
    (4) A locomotive's audible warning device shall be activated in 
accordance with railroad rules regarding the approach to a grade 
crossing.


Sec. 234.107  False activation.

    Upon receipt of a credible report of a false activation, a railroad 
having maintenance responsibility for the highway-rail grade crossing 
warning system shall immediately initiate efforts to warn highway users 
and railroad employees at the crossing by taking, at a minimum, the 
following actions:
    (a) Prior to a train's arrival at the crossing, notify the train 
crew of the report of false activation and notify any other railroads 
operating over the crossing;
    (b) Notify the highway traffic control authority having 
jurisdiction over the crossing; and
    (c) Provide or arrange for alternative means of actively warning 
motorists of approaching trains, consistent with the following 
requirements:
    (1) If an appropriately equipped flagger or law enforcement officer 
is providing warning for each direction of highway traffic, trains may 
proceed through the crossing at normal speed;
    (2) If there is not an appropriately equipped flagger or law 
enforcement officer providing warning for each direction of highway 
traffic, trains may proceed with caution through the crossing at a 
speed not exceeding 10 miles per hour. Normal speed may be resumed 
after the locomotive has passed through the crossing; or
    (3) In lieu of complying with paragraphs (c)(1) or (2) of this 
section, a railroad may temporarily take the warning system out of 
service if the railroad complies with all requirements of Sec. 234.105, 
``Activation failure''; and
    (d) A locomotive's audible warning device shall be activated in 
accordance with railroad rules regarding the approach to a grade 
crossing.


Sec. 234.109  Recordkeeping.

    (a) Each railroad shall keep records pertaining to compliance with 
this subpart. Each railroad shall keep the following information for 
each report of warning system malfunction:
    (1) Location of crossing (by highway name and DOT/AAR Crossing 
Inventory Number);
    (2) Time and date of receipt by railroad of report of malfunction;
    (3) Actions taken by railroad prior to repair and reactivation of 
repaired system; and
    (4) Time and date of repair.
    (b) Each railroad shall retain for at least one year all records 
referred to in paragraph (a) of this section. Records required to be 
kept shall be made available to FRA as provided by section 208 of the 
Federal Railroad Safety Act of 1970 (45 U.S.C. 437).

Subpart D--Maintenance, Inspection, and Testing

Maintenance Standards


Sec. 234.201  Location of plans.

    Plans and other information required for proper maintenance and 
testing shall be kept at each highway-rail grade crossing warning 
system location. Plans shall be legible and correct.


Sec. 234.203  Design of control circuits on closed circuit principle.

    All control circuits that affect the safe operation of a highway-
rail grade crossing warning system shall be designed on the closed 
circuit principle.


Sec. 234.205  Operating characteristics of warning system apparatus.

    Operating characteristics of electromagnetic, electronic, or 
electrical apparatus of each crossing warning system shall be 
maintained in accordance with the limits within which the system is 
designed to operate.


Sec. 234.207  Adjustment, repair, or replacement of component.

    (a) When any essential component of a highway-rail grade crossing 
warning system fails to perform its intended function, the cause shall 
be determined and the faulty component adjusted, repaired, or replaced 
without undue delay.
    (b) Until repair of an essential component is completed, a railroad 
shall take appropriate action under Sec. 234.105, ``Activation 
failure,'' or Sec. 234.107, ``False activation,'' of this part.


Sec. 234.209  Interference with normal functioning of system.

    The normal functioning of any system shall not be interfered with 
in testing or otherwise without first taking measures to provide for 
safety of highway traffic that depends on normal functioning of such 
system.


Sec. 234.211  Locking of warning system apparatus.

    Highway-rail grade crossing warning system apparatus shall be 
secured against unauthorized entry.


Sec. 234.213  Grounds.

    Each circuit that affects the proper functioning of a highway-rail 
grade crossing warning system shall be kept free of any ground or 
combination of grounds that will permit a current flow of 75 percent or 
more of the release value of any relay or electromagnetic device in the 
circuit. This requirement does not apply to: circuits that include 
track rail; alternating current power distribution circuits that are 
grounded in the interest of safety; and common return wires of grounded 
common return single break circuits.


Sec. 234.215  Standby battery and indicator or alarm.

    (a) If alternating current power is used as the primary source of 
power, a standby battery source of power shall be provided. Each 
battery shall be maintained in accordance with specifications of the 
manufacturer. An indicator, visible from the cab of the locomotive of a 
passing train, or an alarm, transmitted to a designated location, shall 
be used to indicate that alternating current power is off.
    (b) Battery capacity shall be designed and maintained to provide at 
least 48 hours of normal operations of the crossing warning device when 
primary battery-charging current is removed.


Sec. 234.217  Flashing light units.

    (a) Each flashing light unit shall be positioned and aligned in 
accordance with installation plans.
    (b) Each flashing light unit shall be maintained to prevent dust 
and moisture from entering the interior of the unit. Roundels shall be 
clean and in good condition.
    (c) All light units shall flash alternately. The number of flashes 
per minute for each light unit shall be 35 minimum and 55 maximum.


Sec. 234.219  Gate arm lights and light cable.

    Each gate arm light shall be visible to approaching highway users. 
Lights and light wire shall be secured to the gate arm.


Sec. 234.221  Lamp voltage.

    The voltage at each lamp shall be maintained at not less than 85 
percent of the prescribed rating for the lamp.


Sec. 234.223  Gate arm.

    Each gate arm, when in the downward position, shall extend across 
each lane of approaching highway traffic and shall be maintained in a 
condition sufficient to be clearly viewed by approaching motorists. 
Each gate arm shall start its downward motion not less than three 
seconds after flashing lights begin to operate and shall assume the 
horizontal position at least five seconds before the arrival of any 
train at the crossing.


Sec. 234.225  Activation of warning system.

    A highway-rail grade crossing warning system shall activate to 
provide a minimum of 20 seconds warning time before the grade crossing 
is occupied by rail traffic.


Sec. 234.227  Train detection apparatus.

    (a) Train detection apparatus shall detect the presence of a train 
or railcar when any part of a train detection circuit is occupied. The 
train detection circuit shall extend through the entire approach 
sections of the grade crossing and include the fouling section of a 
turnout.
    (b) When an active highway-rail grade crossing is occupied by a 
train or railcar, the warning system shall continue to operate until 
such train or railcar clears the roadway.
    (c) If there are no other movements within the limits of the 
warning circuit, the warning system shall discontinue operation after 
the train or railcar passes the point of fouling the crossing.
    (d) If the presence of sand, rust, dirt, grease, or other foreign 
matter is known to prevent effective shunting, a railroad shall take 
appropriate action under Sec. 234.105, ``Activation failure,'' to 
safeguard motor vehicle operation.


Sec. 234.229  Shunting sensitivity.

    Each highway-rail grade crossing train detection circuit shall 
detect the presence of a shunt of 0.06 ohm resistance when the shunt is 
connected across the track rails of the circuit, including fouling 
sections of turnouts.


Sec. 234.231  Fouling wires.

    Each set of fouling wires in a highway-rail grade crossing train 
detection circuit shall consist of at least two discrete conductors. 
Each conductor shall be of sufficient conductivity and shall be 
maintained in such condition that the train detection apparatus will be 
in its most restrictive state when the train detection circuit is 
shunted.


Sec. 234.233  Rail joints.

    Each rail joint located within the limits of a highway-rail grade 
crossing train detection circuit shall be bonded by means other than 
joint bars to ensure electrical conductivity.


Sec. 234.235  Insulated rail joints.

    Each insulated rail joint used to separate train detection circuits 
of a highway-rail grade crossing shall prevent current from flowing 
between rails separated by the insulation in an amount sufficient to 
cause a failure of the train detection circuit.


Sec. 234.237  Switch equipped with circuit controller.

    A switch, when equipped with a switch circuit controller connected 
to the point and interconnected with warning system circuitry, shall be 
maintained so that the warning system can only be cut out when the 
switch point is within one-half inch of full reverse position.


Sec. 234.239  Tagging of wires and interference of wires or tags with 
signal apparatus.

    Each wire shall be tagged or otherwise so marked that it can be 
identified at each terminal. Tags and other marks of identification 
shall be made of insulating material and so arranged that tags and 
wires do not interfere with moving parts of the apparatus.


Sec. 234.241  Protection of insulated wire; splice in underground wire.

    Insulated wire shall be protected from mechanical injury. The 
insulation shall not be punctured for test purposes. A splice in 
underground wire shall have insulation resistance at least equal to 
that of the wire spliced.


Sec. 234.243  Wire on pole line and aerial cable.

    Wire on a pole line shall be securely attached to an insulator that 
is properly fastened to a crossarm or bracket supported by a pole or 
other support. Wire shall not interfere with, or be interfered with by, 
other wires on the pole line. Aerial cable shall be supported by 
messenger wire. An open-wire transmission line operating at voltage of 
750 volts or more shall be placed not less than 4 feet above the 
nearest crossarm carrying active warning system circuits.


Sec. 234.245  Signs.

    Each sign mounted on a highway-rail grade crossing signal post 
shall be maintained in good condition and be visible to the motorist. 
Standards for such signs are found in Part VIII (``Traffic Control 
Systems for Railroad-Highway Grade Crossings'') of the MUTCD.

Inspections and Tests


Sec. 234.247  Purpose of inspections and tests; removal from service of 
relay or device failing to meet test requirements.

    The following inspections and tests shall be made to determine if 
the apparatus and equipment is maintained in a condition to perform its 
intended function. Any electronic device, relay, or other 
electromagnetic device that fails to meet the requirements of tests 
required by this part shall be removed from service and shall not be 
restored to service until its operating characteristics are in 
accordance with the limits within which such device or relay is 
designed to operate.


Sec. 234.249  Ground tests.

    A test for grounds on each energy bus furnishing power to circuits 
that affect the safety of warning system operation shall be made when 
such energy bus is placed in service and at least once each month 
thereafter.


Sec. 234.251  Battery voltage.

    Battery voltage shall be checked at the battery, with battery-
charging current removed, at least once each month.


Sec. 234.253  Flashing light units and lamp voltage.

    (a) Each flashing light unit shall be inspected when installed and 
at least once every twelve months for alignment, focus, and frequency 
of flashes in accordance with installation specifications shown on the 
plans.
    (b) Lamp voltage shall be tested when installed and at least once 
every 12 months thereafter.
    (c) Each flashing light unit shall be inspected for dirt and damage 
to roundels at least once each month.


Sec. 234.255  Gate arm and gate mechanism.

    (a) Each gate arm and gate mechanism shall be inspected at least 
once each month.
    (b) Gate arm movement shall be observed for proper operation at 
least once each month.
    (c) Hold-clear devices shall be tested for proper operation at 
least once every 12 months.


Sec. 234.257  Warning system operation.

    (a) Each highway-rail crossing warning system shall be tested to 
determine that it functions as intended when it is placed in service. 
Thereafter, it shall be tested at least once each month and whenever 
modified or disarranged.
    (b) Warning bells or other stationary audible warning devices shall 
be tested when installed to determine that they function as intended. 
Thereafter, they shall be tested at least once each month and whenever 
modified or disarranged.


Sec. 234.259  Warning time.

    Each crossing warning system shall be tested for the prescribed 
warning time at least once every three months.


Sec. 234.261  Highway traffic signal pre-emption.

    Highway traffic signal pre-emption interconnections, for which a 
railroad has maintenance responsibility, shall be tested at least once 
each month.


Sec. 234.263  Relays.

    (a) Except as stated in paragraph (b) of this section, each relay 
that affects the proper functioning of a crossing warning system shall 
be tested at least once every four years.
    (b)(1) Alternating current vane type relays, direct current polar 
type relays, and relays with soft iron magnetic structure shall be 
tested at least once every two years.
    (2) Alternating current centrifigal type relays shall be tested at 
least once every 12 months.


Sec. 234.265  Timing relays and timing devices.

    Each timing relay and timing device shall be tested at least once 
every twelve months. The timing shall be maintained at not less than 90 
percent nor more than 110 percent of the predetermined time interval. 
The predetermined time interval shall be shown on the plans or marked 
on the timing relay or timing device.


Sec. 234.267  Insulation resistance tests.

    (a) Insulation resistance tests shall be made when wires or cables 
are installed and at least once every ten years thereafter.
    (b) Insulation resistance tests shall be made between all 
conductors and ground, between conductors in each multiple conductor 
cable, and between conductors in trunking. Insulation resistance tests 
shall be performed when wires, cables, and insulation are dry.
    (c) Subject to paragraph (d) of this section, when insulation 
resistance of wire or cable is found to be less than 500,000 ohms, 
prompt action shall be taken to repair or replace the defective wire or 
cable. Until such defective wire or cable is replaced, insulation 
resistance tests shall be made annually.
    (d) A circuit with a conductor having an insulation resistance of 
less than 200,000 ohms shall not be used.


Sec. 234.269  Cut-out circuits.

    Each cut-out circuit shall be tested at least once every three 
months to determine that the circuit functions as intended.


Sec. 234.271  Insulated rail joints, bond wires, and track connections.

    Insulated rail joints, bond wires, and track connections shall be 
inspected at least once every three months.


Sec. 234.273  Results of tests.

    (a) Results of tests made in compliance with this part shall be 
recorded on forms provided by the railroad, or by electronic means, 
subject to approval by the Associate Administrator for Safety. Each 
record shall show the name of the railroad, AAR/DOT inventory number, 
place and date, equipment tested, results of tests, repairs, 
replacements, adjustments made, and condition in which the apparatus 
was left.
    (b) Each record shall be signed or electronically coded by the 
employee making the test and shall be filed in the office of a 
supervisory official having jurisdiction.
    (c) Each record shall be retained until the next record for that 
test is filed but in no case for less than one year.
    (d) If a railroad elects to use an electronic means for recording 
and signing results of tests, such means must be approved by the 
Associate Administrator for Safety prior to use.

    Issued in Washington D.C. on January 11, 1994.
Jolene M. Molitoris,
Administrator.
[FR Doc. 94-1257 Filed 1-19-94; 8:45 am]
BILLING CODE 4910-06-P

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