[Federal Register Volume 59, Number 189 (Friday, September 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24223]


[[Page Unknown]]

[Federal Register: September 30, 1994]


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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 212 and 234




Grade Crossing Signal System Safety; Final Rule
DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 212 and 234

[FRA Docket No. RSGC-5; Notice No. 7]
RIN 2130--AA70

 
Grade Crossing Signal System Safety

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

ACTION: Final rule.

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

SUMMARY: FRA is issuing a final rule requiring that railroads comply 
with specific maintenance, inspection, and testing requirements for 
active highway-rail grade crossing warning systems. FRA is also 
requiring 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. This action 
is taken in part, 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 devices at 
railroad highway grade crossings.''

EFFECTIVE DATE: These rules will become effective January 1, 1995.

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

SUPPLEMENTARY INFORMATION:

Background

    On January 20, 1994, FRA published a Notice of Proposed Rulemaking 
(NPRM) in which FRA proposed to require that railroads comply with 
specific maintenance, inspection, and testing requirements for active 
highway-rail grade crossing warning systems. FRA also 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, D.C. on March 1, 1994. The comment 
period in this rulemaking closed on March 21, 1994. The final rule 
issued today reflects many of the comments and the testimony presented 
by 25 parties.
    FRA had issued an earlier NPRM on June 29, 1992 (57 FR 28819), in 
which FRA proposed rules requiring specific and timely response in 
situations involving malfunctioning highway-rail grade crossing warning 
systems. A public hearing was held in Washington, D.C. on September 15, 
1992. This prior NPRM did not address maintenance, inspection and 
testing of such warning systems. Due to comments received and an 
intention to widen the scope of the rulemaking to include proposed 
standards for maintenance, inspection, and testing pursuant to the 
mandate of 49 U.S.C. 20134(b), (formerly Sec. 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. 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 prior NPRM, the labor/management group proposed specific regulatory 
language addressing both timely response and maintenance, inspection, 
and testing.
    The NPRM issued on January 20, 1994 reflected the consolidation 
into one rulemaking docket of the timely response rulemaking with 
proposed standards for maintenance, inspection, and testing of grade 
crossing warning systems. The NPRM generated a wide range of comments. 
Individual comments were received from: thirteen state regulatory 
agencies representing eleven states; five commuter rail authorities; 
three freight railroads; one union; and two industry associations. 
Additionally, a joint submission was received from the Brotherhood of 
Railroad Signalmen, the American Short Line Railroad Association and 
the Association of American Railroads (``labor/management group'').
    This final rule amends 49 CFR Part 234, ``Grade Crossing Signal 
Safety'', and to a lesser extent, 49 CFR Part 212, ``State Safety 
Participation Regulations.''
    This rule is a vital component of DOT's Rail-Highway Grade Crossing 
Action Plan which details six major Departmental initiatives addressing 
highway-rail grade crossing safety and trespass prevention. These 
initiatives include: enhanced enforcement of traffic laws at crossings; 
enhanced rail corridor crossing reviews and improvements; expanded 
public education and Operation Lifesaver activities; increased safety 
at private crossings; improved data and research efforts; and 
prevention of rail trespassing. These initiatives are comprised of 
fifty-five separate actions the Department proposes to take.
    Part 234 was issued in 1991 (56 FR 33728, July 23, 1991) primarily 
as a reporting rule by which FRA received data pertaining to 
malfunctions of highway-rail grade crossing warning systems. Part 234 
is being amended by restructuring the existing Part 234 into two new 
subparts, ``Subpart A--General'' and ``Subpart B--Reports'' and by 
adding two subparts, ``Subpart C--Response to Reports of Warning System 
Malfunction'' and ``Subpart D--Maintenance, Inspection, and Testing.''
    Additionally, 49 CFR Part 212 is being amended to provide for the 
participation of qualified state highway-rail grade crossing inspectors 
and apprentices within the State Participation Program.
    As we stated in the preamble to the early NPRM, we believe the 
risks to the travelling public and railroad employees from grade 
crossing accidents resulting from system failures can be reduced. The 
active grade crossing warning systems in place at the nation's highway-
rail grade crossings are designed to fail in a ``fail-safe'' mode. If a 
component or circuitry fails, the device fails in such a manner that 
the warning is activated, thus in theory preventing a highway user from 
entering onto the tracks in front of a train. This system has worked 
successfully for many years. FRA does not take issue with the basic 
design theory of ``fail-safe'' warning devices--they are true 
lifesaving devices. However, the fail-safe feature loses its 
effectiveness as time goes by without repair of the warning system and 
its return to fully functioning status.
    Failure of a device to activate when a train is approaching creates 
an obvious and acute risk. Indeed, an otherwise cautious highway user 
could be entrapped by the failure to warn. Although activation failures 
are rare events and railroads typically respond with appropriate 
dispatch, adding further impetus to appropriate diagnosis and response 
is warranted by the critical nature of the risk.
    Therefore, FRA is issuing these amendments to 49 CFR part 234 in 
which railroads are required to take certain steps when they are 
notified of either activation failures or false activations. These 
steps, designed to assure the safety of the travelling public and 
railroad employees, are not unknown to the railroad industry. They 
require the railroad to take the following three series of steps after 
learning of a malfunctioning warning system: (1) Notify trains and law 
enforcement 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 rules do not establish a specific time frame for repair of 
malfunctioning warning systems. Setting a specific repair time would 
necessitate establishing a schedule of various defects together with 
approved repair periods. Not only is a system of this type very 
cumbersome to establish and monitor, it would not take into 
consideration the operating environments of various railroads. Rather, 
safety is being maintained while the warning system is out of service 
by requiring an equivalent level of warning and protection. That safety 
level will be ensured by the flagging and speed restrictions contained 
in this rule.
    Safety at active grade crossings will be further ensured by the 
maintenance, inspection, and testing requirements contained in this 
rule.

Section-by-Section Analysis

49 CFR Part 212

    FRA proposed revisions to 49 CFR Part 212, ``State Safety 
Participation Program'' in order to provide for qualified state 
railroad safety inspectors to enforce the grade crossing safety rules 
issued today.

Section 212.231  Highway-rail Grade Crossing Inspector

    As proposed, this section amends 49 CFR Part 212, ``State Safety 
Participation Program'' to create a new category of ``Highway-rail 
grade crossing inspector'' within the State Participation Program. The 
proposal established minimum qualification standards enabling state 
inspectors to enforce grade crossing signal system safety regulations 
at 49 CFR Part 234. Additionally, this section as proposed provided 
that all state signal and train control inspectors qualified under 
Sec. 212.207 are also thereby fully qualified under new Sec. 212.231. 
California Department of Transportation, Division of Rail (CA DOT) 
commented that this proposed section was ``worrisome in its flagrant 
approval of substituting schooling or related technical specialization, 
or completion of an apprentice training program, in lieu of having four 
years of specific experience* * * .'' FRA appreciates CA DOT's 
concerns, however, FRA has not found the qualification requirements, 
which mirror the requirements for state inspectors in other 
disciplines, to be a problem. However, if any state regulatory agency 
deems it appropriate to impose more stringent requirements for its 
inspectors, it is entirely free to do so. General qualifications of 
state inspection personnel under the state participation program are 
governed by 49 C.F.R. part 212.201 which, in subsection (a) states that 
``this subpart [subpart C--State Inspection Personnel] prescribes the 
minimum qualification requirements for State railroad safety 
inspectors, compliance inspectors and inspector apprentices. A State 
agency may establish more stringent or additional requirements for its 
employees.'' Consequently, FRA has not modified this section as 
suggested by CA DOT.

Final Rule

    This section is being adopted as proposed, with the exception that 
language has been added to subsection (d) to clarify FRA's original 
intent that state signal and train control inspectors can also enforce 
Grade Crossing Signal System Safety Rules only if they have 
demonstrated the ability to understand and detect deviations from those 
rules. While FRA anticipates that state signal and train control 
inspectors will have the technical expertise needed to ensure 
compliance with these rules, they also need to be familiar with the 
regulatory requirements themselves.

Section 212.233  Apprentice Highway-rail Grade Crossing Inspector

    As proposed, this section establishes minimum qualification 
standards which applicants must meet prior to being enrolled in the 
inspector training program within the State Participation Program. FRA 
received no specific comments regarding this section.

Final Rule

    This section is adopted as proposed.

49 CFR Part 234

Section 234.1  Scope

    As proposed, this section expands the scope of Part 234. The final 
rule issued today adds two new subparts to Part 234, ``Response to 
Reports of Warning System Malfunction'' and ``Maintenance, Inspection, 
and Testing.'' This section is amended to include the subject areas 
covered by these new subparts.
    This section has been revised from that proposed to make clear that 
this part does not restrict a railroad from adopting and enforcing 
additional or more stringent requirements not inconsistent with this 
part. 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 minimum maintenance, inspection, and 
testing standards for such systems. The actions required by this part 
are the minimum actions which need to be taken by a railroad in a 
specific situation. Thus, it would be acceptable for a railroad to 
determine that it will stop at every malfunctioning warning system 
rather than cross at a reduced speed. Similarly, it is acceptable to 
test a crossing system component every three months, rather than every 
12 months as required by this rule. References in sections 234.105 and 
234.107 to a railroad ``taking, at a minimum, the following actions:'' 
have accordingly been revised to delete ``at a minimum'' inasmuch as 
the requirement has been placed more appropriately in section 234.1.
    The NPRM contained a provision stating that ``[w]hen any person 
performs any function required by this part, that person is required to 
perform that function in accordance with this part.'' After review, and 
in an effort to delete unnecessary and confusing language, FRA will 
delete the proposed language inasmuch as section 234.6 ``Penalties'', 
provides for appropriate penalties against any person who violates any 
requirement of this part.

Final Rule

    This section sets forth the scope of Part 234. Part 234 imposes 
minimum maintenance, inspection, and testing standards highway-rail 
grade crossing warning systems. This part also prescribes standards for 
the reporting of failures of such systems and prescribes minimum 
actions railroads must take when such warning systems malfunction. This 
part does not restrict a railroad from adopting and enforcing 
additional or more stringent requirements not inconsistent with this 
part.

Section 234.3  Application

    FRA did not propose any specific changes to this section. Rather, 
FRA posed a series of questions pertaining to the application of these 
rules. FRA questioned whether the rules should apply to scenic or 
tourist railroads--those both on and off the general railroad system of 
transportation. FRA stated that:

    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.

FRA further questioned whether these rules should ``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?''
    There was disagreement among commenters as to whether these rules 
should be applied to trackage not located on the general railroad 
system. The Minnesota Department of Transportation stated, ``We believe 
the rules should apply to all signals whether they are on public or 
private railroads, public or private roadways or whether the railroad 
is connected into the rail network or not. The driver of a vehicle is 
seldom aware of facility ownership. The credibility of crossing signals 
needs to be maintained regardless of where they are used.'' The New 
York State Department of Transportation (NYS DOT) agreed to the extent 
that the rules ``should apply to all crossings of public roadways 
regardless of the status of the railroad.'' However, the NYS DOT 
further stated that ``extension of the authority to include tourist and 
plant railroad crossings on private property would not be appropriate, 
since motorist expectations are different on private property and both 
train and vehicle speeds are generally low.'' This difference of 
opinion was also reflected in comments received from other parties.
    In analyzing this issue, FRA is confronted with a number of 
differing situations based on the different nature of vehicle roadways 
(public and private) and differing railroad operations: freight and 
passenger operation on the general system; freight operations within an 
industrial plant; tourist railroad on the general system; and tourist 
railroad not part of the general system (see discussion below).
    Commenters generally agree that all crossings over general system 
railroads should be governed by this rule. We agree. Thus, active 
warning systems on both private and public roadways crossing general 
system railroads are subject to this rule.
    There was no consensus as to whether these rules should apply to 
public or private crossings over ``plant'' railroads. While some 
commenters urged that all crossings under all circumstances should be 
governed by the rule, others, such as NYS DOT and West Virginia 
Department of Transportation held the opinion that crossings over plant 
railroads should not be subject to the rule. Unfortunately, FRA did not 
receive specific information or data supporting the views commenters 
supporting either position. If FRA were to include plant railroads 
within the application of this rule, it would be applying a regulatory 
regimen over entities which have historically not been regulated by the 
FRA. Although FRA has authority to regulate this field of entities, it 
has not chosen to do so for reasons of both lack of a demonstrated 
safety need and the need to apply limited FRA safety resources where 
they can be best utilized. As has been stated, plant railroad 
operations typically involve low speed operations with small numbers of 
rail cars permitting relatively short stopping distances. These 
operations typically also involve roadway crossings with relatively low 
speed vehicular traffic. These reasons, together with the historical 
basis for not asserting jurisdiction in these situations leads FRA to 
not assert jurisdiction over public and private crossings at such plant 
railroads. Of course, because FRA's regulatory authority permits it to 
amend the applicability sections of its regulations so as to expand or 
contract the populations of railroads covered by a particular set of 
regulations, if circumstances so warrant, FRA may assert such 
jurisdiction in the future.
    As noted in the NPRM, FRA recently received a petition from the 
Berkshire Scenic Railway Museum, Incorporated on behalf of tourist, 
excursion, and scenic railroads requesting the need for legislative and 
regulatory action for new regulations tailored specifically to the 
tourist rail industry. Pursuant to FRA's response to that petition, FRA 
has considered the suggestions made by those parties in drafting these 
final regulations. There is a very wide range of operations that could 
be considered tourist, excursion, or scenic railroads under the 
broadest reading of the term ``railroad.'' In an effort to clarify the 
proper extent of the exercise of FRA's jurisdiction, FRA recently 
settled on several principles that will be used as current FRA 
guidelines. FRA will exercise jurisdiction over all tourist, excursion, 
and scenic railroads, whether or not they operate over the general 
railroad system, except those that are (1) less than 24 inches in gage 
and/or (2) insular.
    To determine insularity, FRA looks at various criteria that measure 
the likelihood that a railroad's operations might affect a member of 
the public. FRA has concluded that a tourist, excursion, or scenic 
railroad is insular if its operations are limited to a separate enclave 
in such a way that there is no reasonable expectation that the safety 
of any member of the public (except a business guest, a licensee of the 
tourist operation or an affiliated entity, or a trespasser) would be 
affected by the operation. A railroad is not considered insular if one 
or more of the following exists on its line: (a) A public highway-rail 
crossing that is in use; (b) an at-grade rail crossing that is in use; 
(c) a bridge over a public road or waters used for commercial 
navigation; or (d) a common corridor with a railroad, i.e., its 
operations are within 30 feet of those of any railroad.
    Thus, the mere fact that the trackage of a railroad is not 
connected to the general system does not make the railroad insular 
under these criteria. While these criteria tend to sort out the insular 
theme parks and museums, a need to do case-by-case analysis in certain 
close situations still exists.
    Therefore, FRA has concluded that the requirements contained in 
this part should apply to each non-general system, non-insular 
passenger railroad that confines its operations to lines that are not 
part of the general system (i.e., it is a stand-alone with no freight 
traffic but has one or more features that preclude its being considered 
insular). FRA believes that application of these regulations to non-
insular passenger operations off the general system is warranted by the 
risk to passengers associated with accidents involving heavy motor 
vehicles and is consistent with FRA's ability to regulate and enforce 
safety standards in a cost effective manner.
    FRA recognizes that additional crossings equipped with automated 
warning systems may be found on plant railroads and private freight 
railroads. Maintenance, inspection, and testing of these automated 
systems is the responsibility of entities not otherwise regulated by 
FRA. As to plant and private freight railroads, these functions lie 
outside the scope of this final rule, and state and local authorities 
will retain their existing authority to administer and enforce 
appropriate requirements for the protection of the public. If data 
should be developed that indicates a need for uniform national 
regulation of this subject matter, FRA may revisit this issue at a 
future time.
    Based on the above, FRA is revising Sec. 234.3 to apply to all 
freight, passenger and scenic railroads which are part of the general 
system of transportation. Because the present definition of ``highway-
rail grade crossing'' contained in Sec. 234.5 includes both private and 
public crossings, no change is necessary to provide that this part 
applies to both private and public crossings over railroads which are 
subject to the rule. As a consequence, private and public crossings 
over general system railroads will be covered by this part. 
Additionally, this part will apply to all non-insular passenger 
railroads off the general system. FRA notes that a passenger railroad 
off the general system may be considered non-insular under FRA's listed 
factors, but have only private grade crossings on its line of railroad. 
Because of the non-insular status of the railroad, the private 
crossings will be subject to this rule. However, if based on an 
analysis of the listed factors which determine insularity, a tourist 
operation is considered to be insular, private crossings on its line 
would not be subject to this rule.

Final Rule.

    This section provides that this part applies to all railroads 
except a railroad that exclusively operates freight trains only on 
track which is not part of the general railroad system of 
transportation, 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, or a passenger railroad that 
operates trains only on track inside an installation that is insular.

Paragraph 234.4 Preemptive Effect

    FRA proposed adding this section to Part 234 to inform the public 
as to FRA's views regarding the preemptive effect of these rules. While 
the presence or absence of such a section does not in itself affect the 
preemptive effect of this part, it informs the public concerning the 
statutory provision which does govern the preemptive effect of these 
rules. Section 20106 of title 49 of the United States Code, (formerly 
Section 205 of the Safety Act (45 U.S.C. 434)) provides that all 
regulations prescribed by the Secretary relating to railroad safety 
preempt any State law, regulation, or order, covering the same subject 
matter, except a provision directed at an essentially local safety 
hazard that is not incompatible with a federal law, regulation, or 
order and that does not unreasonably burden interstate commerce.
    The California Public Utilities Commission commented that the 
``Federal regulations do not explain the relationship between the FRA 
rules and the various state rail-highway crossing regulatory agency 
rules. Federal rules which preempt state regulation should clearly 
define a state regulatory agency's role.'' FRA views the terms of 49 
U.S.C. 20106 as explaining such relationships. Any state regulatory 
agency rules covering the same subject matter as these regulations 
issued today are preempted. However, section 20106 provides that a 
State may adopt or continue in force an additional or more stringent 
law, rule, regulation, or order, relating to railroad safety when 
necessary to eliminate or reduce an essentially local safety hazard, 
and when not incompatible with any Federal law, rule, regulation, or 
order, and when not creating an unreasonable burden on interstate 
commerce.
    Section 20105 of title 49 of the United States Code, (formerly 
Section 206 of the Safety Act (45 U.S.C. 435)) provides a mechanism by 
which a state agency can participate in the subject areas covered by 
today's regulation. That section provides for state participation in 
carrying out investigative and surveillance activities in connection 
with federal railroad safety rules. See also FRA's state participation 
regulations at 49 C.F.R. Part 212.

Final Rule

    This section explains that under 49 U.S.C. 20106 (formerly 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.

 Section 234.5 Definitions

    The NPRM contained proposals to add three definitions to those 
terms already defined in the rule. Commenters generally supported the 
proposed definitions contained in the NPRM. However, some parties 
suggested changes to two proposed definitions, ``appropriately equipped 
flagger'' and ``credible report of system malfunction''. No opposition 
was expressed to the definition of ``warning system malfunction.''
    ``Appropriately equipped flagger.'' As proposed, the definition of 
``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.
    The West Virginia Department of Transportation recommended that 
flaggers' clothing, devices and training conform to the Manual on 
Uniform Traffic Control Devices (``MUTCD'') in all respects. As we 
stated in the NPRM, we encourage railroads to provide equipment and 
training in accordance with ``Standards and Guides for Traffic Controls 
for Street and Highway Construction, Maintenance, Utility and Incident 
Management Operations'' issued by the Federal Highway Administration as 
part VI of the MUTCD. However, given the industry-wide cost of 
equipping in full accordance with the MUTCD and training thousands of 
employees, FRA is leaving to individual railroads the decision as to 
the extent of training and equipping beyond the minimum requirements of 
this rule.
    The Long Island Rail Road (LIRR) commented that a uniformed police 
officer should be considered to meet the requirements of this section. 
We agree. As noted in the NPRM, FRA does not intend to impose flagging 
equipment requirements on police officers, including uniformed railroad 
police. Police officers are presumably trained and equipped for traffic 
control functions. There is therefore no need for requiring any 
additional training or equipment.
    The American Public Transit Association (APTA) suggested that FRA 
eliminate the requirement that flaggers carry specific signalling 
equipment. APTA stated that ``it is important for flaggers to have 
their hands free to stay in radio contact with the railroad, which may 
not be possible if the flagger has to carry items such as paddles. In 
the commuter railroad's experience, once a flagger is at a crossing, 
motorists will obey the flagger regardless of the flagger's signalling 
devices.'' We agree that a motorist will obey the flagger, however a 
motorist must first identify a person as a flagger, and then the 
motorist must be able to determine the instructions given by the 
flagger. FRA believes that the proposed requirements provide the 
motorist with the necessary visual clues. FRA believes that the 
proposed requirements are the minimum that provide safety for both the 
highway user and the flagger and thus are retained in the final rule. 
Maine DOT also recommended that ``reflective'' be used to describe 
materials to be worn by flaggers rather than ``retroreflective.'' 
Retroreflective is used in the latest version of the MUTCD. FRA will 
retain use of ``retroreflective'' to maintain consistency with the 
MUTCD. In addition to the minimum standards established by this 
definition, FRA encourages railroads 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 MUTCD.
    As stated in the NPRM, 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 uniformed law enforcement officers.

Final Rule

    The definition of ``appropriately equipped flagger'' is adopted as 
proposed.
    ``Credible report of system malfunction.'' As proposed, ``credible 
report of system malfunction'' means specific information regarding a 
malfunction at an identified highway-rail grade crossing, supplied by a 
railroad employee, law enforcement officer, highway traffic official, 
or an employee of a public agency acting in an official capacity.
    APTA and LIRR stated that given the high frequency of commuter rail 
operations, commuter railroads consider all reports of malfunction as 
credible and respond accordingly. The American Trucking Associations, 
Inc. (ATA) objected to the definition of ``credible report'' as too 
narrow. The ATA believes that reports from individual citizens should 
be given the same weight by the railroad as reports from railroad 
employees and the police. FRA believes that a reporting system in which 
citizens notify their local police or highway department of 
malfunctions will be more efficient. Providing this initial screening 
process will reduce frivolous or fraudulent notifications in which 
members of the public may attempt to harass a railroad or individual 
railroad employee. Additionally, as discussed below in the analysis of 
Sec. 234.101, certain situations requiring repair or adjustment of the 
warning system do not trigger a railroad response under Secs. 234.105 
and 234.107. Although those situations, such as dirty roundels, a burnt 
out bulb, a broken reflector, or a broken gate arm tip, although 
important, are not the type of situations in which the railroad should 
be expected to take the actions required under this rule, it is likely 
that such reports would be made to the railroad. Providing an initial 
screening process will better enable a railroad to quickly respond to 
those situations which safety factors clearly require the speedy 
response.
    FRA, of course, has no objection to railroads acting on reports 
from individuals and, indeed, as we stated in the preamble to the NPRM, 
``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 regulations.'' The rules issued 
today do 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.
    FRA is including within the definition of ``credible report'' 
information generated by an automatic reporting device. FRA has 
considered this inclusion in light of possible ``scope of notice'' 
problems. However, after consideration, FRA is of the opinion that even 
without this clarifying language, railroads would be required to 
respond to such reports under the rule as proposed. Section 234.101 
mandates rules requiring employees to report instances of malfunctions. 
The employee responsible for monitoring such automatic devices must 
report such malfunctions under section 234.101. Such reports are within 
the definition of ``credible report.'' By adding ``generated by an 
automatic reporting device'' to the definition, FRA will avoid any 
confusion in the industry as to what is expected when automatic 
reporting devices are used.
    In a comment related to credible reports, the ATA further 
recommended that railroads be required to post at the crossing the 
railroad's name, crossing identification number, and a telephone number 
for reporting malfunctions similar to the system now in place in Texas. 
The railroads have cooperated in establishing such systems in three 
States (Texas, Delaware and Connecticut), and FRA is finalizing a 
report reviewing the results of the Texas program.
    FRA agrees that establishment of a notification system is a 
desirable objective. The Department's Rail-Highway Grade Crossing 
Action Plan specifies that this issue will be further examined through 
a special safety inquiry.
    Public/private cooperation is needed to make this type of system 
workable. It is important that initial notification go to a public 
authority or an entity operating on behalf of the public. This 
procedure helps prevent the misuse of the notification system, while 
providing immediate notice to public authorities where steps should be 
taken to protect highway traffic pending the railroad response. Where 
citizens making reports do not note the inventory number or it is not 
posted due to vandalism, knowledge of the street or highway system may 
be necessary to identification of the railroad company and specific 
crossing.
    Railroad cooperation is important to sort out valid reports from 
those that derive from misunderstanding of how devices function (as 
where a switching movement is occupying the fouling circuit on an 
industrial siding) and to ensure prompt response to valid reports. 
Clear identification of responsibility for posting and maintaining 
signage is also essential.
    Although this rulemaking is not the appropriate vehicle for 
resolving this issue, FRA will continue its examination of this issue 
through the safety inquiry noted above, with the objective of promoting 
the earliest feasible notification of warning device malfunctions.

Final Rule

    The definition of ``credible report of system malfunction'' is 
adopted as proposed.
    ``Warning system malfunction'' As proposed ``warning system 
malfunction'' means an activation failure or a false activation of a 
highway-rail grade crossing warning system.
    No opposition was expressed to this definition.

Final Rule

    The definition of ``warning system malfunction'' is adopted as 
proposed.

Section 234.6(a)  Civil Penalties

    As proposed, this section amends the present ``civil penalty'' 
provision in effect for Part 234. The amendment brings this section 
into conformity with 49 U.S.C. 21301 (formerly 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 be illustrative and not 
exhaustive.
    There were no comments pertaining to this proposed section.

Final Rule

    This section is adopted as proposed.

Section 234.101  Employee Notification Rules

    As proposed, this 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. This 
provision is intended to ensure that all employees report instances of 
false activations and activation failures (see definition of warning 
system malfunctions) and that such reports are made to the appropriate 
person. This section does not require that a railroad issue rules to 
require notification of maintenance or operational problems which are 
not false activations or activation failures. Examples of such 
situations not covered by this section would be dirty roundels, one 
bulb burnt out, a broken reflector, or a gate arm tip broken. While 
employees should report such situations to the railroad, those 
situations do not require a railroad response under Subpart C of this 
part.
    The labor/management group recommended that this provision be 
modified in recognition that railroad employees frequently report 
signal malfunctions to dispatchers, operators, and other railroad 
personnel who would not be categorized as ``railroad officials.'' The 
labor/management group thus recommended that the provision be revised 
to include other persons designated by the railroad. We agree. 
Broadening those persons to whom notification of malfunctions can be 
made will eliminate potential confusion in implementing the 
regulations. This section is being revised accordingly.

Final Rule

    This section requires that each railroad issue rules requiring its 
employees to report to persons designated by that railroad, by the 
quickest means available, any warning system malfunction.

Section 234.103  Timely Response to Report of Malfunction

Sec. 234.103(a)

    Proposed 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 then takes action as required by Sec. 234.207.
    Various commenters stated that use of the term ``immediately'' is 
inappropriate. New Jersey Transit states that ``[t]he requirement to 
`immediately investigate' a reported warning system malfunction in (a) 
adds vagueness to an otherwise adequate rule.'' The labor/management 
group also recommended deletion of the ``immediate response'' 
requirement. They commented that ``the term `immediately' may be too 
restrictive and would impose a standard which simply could not be 
achieved under all circumstances.'' We agree with the commenters that 
use of ``immediate'' could present compliance problems when 
``immediate'' is interpreted in its dictionary meaning. Immediately is 
commonly defined as ``without lapse of time; without delay; instantly; 
at once.'' We agree with the labor/management group that a more 
appropriate standard is provided by requiring a ``prompt'' response, 
which, while not requiring a virtually impossible instantaneous 
response, will establish a standard that a railroad must respond 
quickly to a credible report of malfunction. The final rule is revised 
accordingly.

Final Rule

    Subsection 234.103(a) requires that upon receipt of a credible 
report of a warning system malfunction, a railroad having maintenance 
responsibility for the warning system shall promptly investigate a 
credible report of malfunction. Based upon the results of that 
investigation, and in accordance with Sec. 234.207, the railroad is 
required to adjust, repair, or replace any faulty component without 
undue delay.

Sec. 234.103(b)

    As proposed, Sec. 234.103(b) requires that, 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.
    There were no comments on subsection (b).

Final Rule

    Because acceptable alternative means of protecting the travelling 
public and railroad employees are described in Secs. 234.105 and 
234.107, this section is being revised to specifically reference those 
sections.

Sec. 234.103(c)

    As proposed, 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.
    This subsection makes clear that nothing in these regulations 
forces a railroad to continually repair a warning system that, under 
State law, may be retired. However, a railroad must still comply with 
this part during retirement proceedings. This subsection also requires 
that even if a warning system has been retired under State law, until 
that system is physically removed, the railroad must comply with this 
part. This requirement will ensure that if a highway user sees a 
warning system at a crossing, he or she can rely on it to be a properly 
functioning system.
    There were no comments on this subsection.

Final Rule

    Subsection 234.103(c) is adopted as proposed.

Section 234.105  Activation Failure

    Commenters raised a number of issues relating to this section. The 
labor/management group recommended that this section be modified by 
establishing a requirement for ``prompt,'' rather than ``immediate,'' 
action in response to a credible report of warning system malfunction. 
For the same reasons as stated in the discussion regarding 
Sec. 234.103, FRA is substituting ``promptly'' for ``immediately'' in 
the final rule. As in Sec. 234.103, FRA believes this will establish a 
standard that a railroad must initiate the required warning efforts 
quickly and without undue delay.
    The labor/management group suggested replacing the reference to 
``motorist'' with ``highway user'' inasmuch as highway traffic is not 
limited to motorists. FRA agrees, and has changed the rule accordingly.
    The labor/management group also recommended that the phrase ``at a 
minimum'' be eliminated from this section and Sec. 234.107. The group 
believed that the phrase is unnecessary and that it could be 
misinterpreted as implying that additional action could be necessary in 
response to a report of a malfunction. As stated in the discussion of 
Sec. 234.1, FRA intends that the rule issued today specifies the 
minimum actions a railroad must take in certain circumstances. Section 
234.1 has been revised to make clear that this part does not restrict a 
railroad from adopting and enforcing additional or more stringent 
requirements not inconsistent with this part. Thus, given the revision 
to Sec. 234.1, references in Sec. 234.105 and 234.107 to minimum 
actions to be taken by a railroad have been deleted as unnecessarily 
repetitive.
    The labor/management group also noted that manual operation of 
defective warning devices was not addressed in the NPRM and suggested 
that such operation should be considered to be an ``alternative means'' 
of giving warning, with the result that a train could proceed through 
the crossing at normal speed. FRA agrees that if a warning system is 
manually activated, a train can proceed through the crossing at normal 
speed.

Sec. 234.105(b)

    FRA received a number of comments pertaining to the proposed 
requirement of Sec. 234.105(b) that ``the highway traffic control 
authority having jurisdiction over the crossing'' be notified of the 
crossing system malfunction. The Southern Pacific Transportation 
Company and related railroads recommended deletion of this requirement 
because it ``would be very difficult for the railroads to determine who 
to call, and to maintain such a database.'' The railroad further stated 
that ``it is not likely that highway traffic authority will respond due 
to their own shortages of staff, and even if they do respond, they may 
be unable to properly staff the crossing * * * .'' West Virginia 
Department of Transportation (WVDOT) commented that notifying the 
highway traffic authority would only be appropriate during normal 
business hours. WVDOT suggested that it would be better to notify the 
appropriate law enforcement agency. We fully agree. FRA always intended 
that notification be given to the public agency charged with traffic 
enforcement on the road, whether that be the local police, sheriff's 
department or state police. FRA's use of the term ``highway traffic 
authority'' was misleading and FRA is therefore replacing that term 
with ``law enforcement agency.'' The LIRR, which presently uses its own 
railroad police extensively in situations of grade crossing warning 
malfunctions, notifies the local police only when its own uniformed 
police are unable to respond or due to high volume of traffic flow at 
the crossing. FRA considers notification of railroad police who are 
capable of responding and controlling vehicular traffic to be 
equivalent to notification of the appropriate ``law enforcement 
agency.'' The final rule is being modified accordingly.

Sec. 234.105(c)

    In response to a commenter's suggestion, this subsection is 
rearranged to be consistent with the arrangement of Sec. 234.107(c). 
Both subsections begin with the flagging requirements which permit 
train operations at normal speed. The subsections then address those 
situations which are progressively more restrictive on train 
operations. References in the following discussion are to the 
subsection numbers as proposed. The revised section number as it 
appears in the final rule follows in parentheses.
    As proposed, subsection 105(c) requires that upon receipt of a 
credible report of malfunction, a railroad must provide or arrange for 
alternative means of actively warning motorists of approaching trains, 
consistent with requirements detailed in paragraphs (1) through (4). 
FRA is deleting the phrase ``or arrange for'' in the first sentence of 
this subsection. A railroad may provide for alternative means of 
warning highway users by providing its own flaggers, or it may contract 
with another entity to provide that warning. FRA is deleting the above 
phrase to avoid the impression that merely arranging for such 
activities is an adequate response. A railroad's responsibilities under 
this provision are fulfilled only when the alternative means of warning 
highway users is actually provided.
    Paragraph 105(c)(1) (final rule--105(c)(3)) generated many 
comments. As proposed, it requires a train to stop before entering a 
crossing until an appropriately equipped flagger or law enforcement 
officer was stationed at the crossing. The proposal further requires 
that once the train was stopped, a crewmember must dismount to flag 
highway traffic to a stop. When safe to do so, the locomotive would 
proceed through the crossing, with the crewmember then reboarding.
    The LIRR noted that the proposed regulation does not cover the 
situation of trains being operated by one person. The LIRR stated ``it 
would not be in the best interest of our customers if the engine could 
not be moved until an appropriately equipped person arrived.'' The 
labor/management group also commented that in unusual situations there 
may be occasions where a train has only the engineer available to flag 
traffic: ``In those cases, we believe that under Sec. 234.105, the 
train would be permitted to proceed through the crossing after the 
train was stopped and it was determined that it was safe to do so.'' 
That interpretation is incorrect. FRA notes that nothing in the 
proposed language of Sec. 234.105(c)(1) permits a locomotive to proceed 
through the crossing without being flagged through that crossing by 
someone on the ground, nor does the labor/management group provide any 
basis for their contrary conclusion.
    In addressing the issue raised by these commenters, we are faced 
with balancing the railroads' and commuters' needs for timeliness with 
the safety needs of the motoring public. Requiring commuter trains to 
remain stopped until a flagger or law enforcement officer arrives will 
undoubtedly inconvenience the commuting public. Similarly, freight 
trains and intercity passenger trains will be inconvenienced, although 
on a smaller scale. We note however, that the requirement to flag a 
crossing during periods of malfunction, while not universal, is not 
new. Rule 138(c) of the Northeast Operating Rules Advisory Committee 
(NORAC) requires that if ``crossing protection devices are not 
functioning properly * * * trains must approach the crossing(s) 
prepared to stop and not proceed until protection against highway 
traffic is provided by on-ground personnel.'' The Northeast Illinois 
Regional Commuter Railroad Corporation (METRA), a commuter railroad 
carrying 240,000 commuters daily, requires that in situations of 
activation failure, ``trains must be advised to STOP and flag the 
crossing on both sides until the entire movement has cleared the 
crossing.''
    After consideration of the comments and implications for both 
safety and railroads' on-time performance, FRA is not revising the rule 
to provide an exception for trains operated by one person. Permitting a 
train to stop and then proceed through a crossing without a flagger and 
without properly functioning automatic gates and lights sends a 
confusing and potentially tragic message to a highway user. The highway 
user, seeing the train stop, may be encouraged to cross in front of the 
train thinking that he or she has the right of way.
    FRA believes the effect on railroads such as the LIRR will be 
minimal. As noted elsewhere in this discussion, FRA is revising section 
105(c) to permit trains to proceed at normal speed through crossings 
when one uniformed law enforcement officer is present, rather than one 
officer for each direction of highway traffic. Due to this change, 
railroad or local police will be better able to respond to crossing 
malfunctions, even in cases of multiple crossings malfunctioning. The 
presence of one flagger will avoid the necessity of trains coming to a 
stop, and the presence of a uniformed police officer will permit normal 
speed operations through the crossing.
    The labor/management group proposed adding a provision to this 
section which would provide that after a train is stopped at a 
crossing, if a member of the train crew determines that the warning 
devices are in fact operating properly, a crewmember will not be 
required to dismount to flag highway traffic. The group proposes that 
the locomotive may then proceed through the crossing and normal speed 
resumed after the locomotive has passed through the crossing. FRA takes 
no exception to this procedure, although an additional regulatory 
provision is not needed. If a train crew, after being notified of 
activation failure, finds instead that the warning system is indeed 
properly providing warning, the train may pass through the crossing 
without flagging because, in essence, the malfunction, if one then 
exists, is a false activation. It is difficult to determine whether the 
situation at the crossing was in fact a false activation, since the 
crew does not know if the system was incorrectly warning of oncoming 
trains when no trains were approaching, the reality is that the warning 
system is in fact providing warning to the highway user. Flagging in 
that situation is not needed since the malfunction is not one of 
activation failure, but instead is, at most, one of false activation.
    Section 105(c)(1) (final rule--105(c)(3)) is also being revised to 
permit a train to resume normal speed after the flagging crewmember 
reboards the locomotive. This change will correct an earlier drafting 
oversight and will bring this section into conformity with both the 
remainder of this section and Sec. 234.107.

Section 234.105(c)(2)  (Final Rule--234.105(c)(1))

    Paragraph 105(c)(2) (final rule--105(c)(1)) as proposed requires 
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.
    The LIRR objected to the requirement that there be a flagger or law 
enforcement officer flagging both directions of traffic before a train 
could proceed through the crossing at normal speed. LIRR presently uses 
uniformed railroad police to flag crossings during malfunctions. Under 
present LIRR policy, one uniformed police officer controls both 
directions of highway traffic at crossings with malfunctioning warning 
systems. Based on its experience and the effect it would have on its 
police operations, the LIRR strenuously objects to requiring a flagger 
for each direction of highway traffic. LIRR claims that it would result 
in unnecessary delays to LIRR's commuter trains, which operate at up to 
2-minute headways, each carrying up to 1300 passengers. The railroad 
also stated that requiring two police officers to flag a crossing would 
have a significant impact on LIRR police operations by effectively 
requiring two-officer patrols instead of the present patrols using one 
officer.
    FRA made no distinction in the NPRM between flaggers and law 
enforcement officers and their ability to safely control and direct 
vehicular traffic. Thus, under the NPRM, a train could proceed through 
a crossing with a malfunctioning warning system only if an 
appropriately equipped flagger or law enforcement officer provides 
warning for each direction of highway traffic. Based on the comments 
received, FRA has reconsidered and determined that due to a police 
officer's traffic control training, the officer's ability to call for 
assistance if needed, and the motoring public's higher level of 
responsiveness to a uniformed officer, the presence of one uniformed 
law enforcement officer at a crossing will enable trains to pass 
through the crossing at normal speed. This section is being revised 
accordingly.
    Maine DOT recommended that speeds be limited in all cases of 
activation failure. It recommended a 20 mile per hour limit in those 
cases where a flagger is present for each direction of highway traffic. 
Such a limit would, according to Maine DOT ``allow more stopping time 
for highway users, thereby simplifying the flaggers job and enhancing 
overall safety at the crossing.'' We continue to believe that the 
presence of a uniformed law enforcement officer or the appropriate 
number of flaggers can effectively warn highway traffic of oncoming 
trains. We are therefore not revising section 105(c)(2) (final rule--
105(c)(1)) regarding train speed.

Section 234.105(c)(3)  (Final Rule--234.105(c)(2))

    Paragraph 105(c)(3) as proposed, provides that trains may proceed 
with caution through the crossing at a speed not exceeding 10 miles per 
hour if an appropriately equipped flagger or law enforcement officer 
provides warning for highway traffic, but there is not at least one 
flagger of law enforcement officer providing warning for each direction 
of highway traffic. After the locomotive has passed through the 
crossing, normal speed may be resumed.
    This paragraph is being revised to omit references to law 
enforcement officers, inasmuch as paragraph 105(c)(1) of the final rule 
now provides that the presence of one law enforcement officer will 
permit normal speeds through the crossing.
    LIRR expressed concern regarding the maximum speed at which a train 
would be permitted to proceed through a crossing under this paragraph. 
The representative of the LIRR testified that LIRR's ``operating speed 
under restricted speed, * * * is a speed not exceeding 15 miles an 
hour, at which a train can be stopped within one half division of range 
short of the next signal, an obstruction, switch properly aligned, 
looking out for broken rail or crossing protection not functioning. We 
think that the restricted speed meets the criteria safely for moving 
trains over grade crossings.'' The LIRR emphasized the increased 
disruption to commuter traffic resulting from the 10 miles per hour 
limit compared to a limit of 15 miles per hour. APTA also opposed the 
10 miles per hour limit, as did the labor/management group and the 
Southern Pacific. Other views included those of New Jersey Transit 
which was in favor of requiring movement at ``restricted speed'' rather 
than 10 miles per hour.
    FRA rejected the use of ``restricted speed'' in the NPRM because it 
does not have the same meaning throughout the industry. ``Restricted 
speed'' has different meanings on different railroads, different speed 
limits ranging from 10 mph to 20 mph and its meaning can be changed 
unilaterally by a railroad. Reliance on the requirement that the train 
be able to ``stop within one-half the range of vision'' (a common 
element of the definition of ``restricted speed'') may be appropriate 
in a wholly railroad context in which the concern is to avoid other 
trains and equipment and personnel on the tracks in front of the 
locomotive. The requirement that a locomotive be able to stop within 
one-half the range of vision is virtually useless when an object can 
instantaneously move from off the right-of-way onto the tracks well 
within that range of vision limitation.
    FRA will retain a specific and clearly understood speed limit for 
these situations. FRA has reconsidered its proposal and is revising 
this subsection to provide a 15 miles per hour speed limit. We repeat 
that the requirements of these sections are only minimum requirements. 
Under certain conditions, such as severe weather, sharp curves, or high 
speed vehicular traffic, a railroad may wish to impose a slower speed 
during times of activation failure.

Final Rule

    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 highway 
users and railroad employees at the subject crossing by taking certain 
actions. Paragraph (a) provides that, prior to any 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 law 
enforcement authority having jurisdiction over the crossing, and 
paragraph (c) requires the railroad to provide or arrange for 
alternative means of actively warning highway users of approaching 
trains.
    Paragraph (c)(1)(i) provides that, if an appropriately equipped 
flagger provides warning for each direction of highway traffic, trains 
may proceed through the crossing at normal speed. Paragraph (c)(1)(ii) 
provides that, if at least one law enforcement officer (including a 
railroad police officer) provides warning to highway traffic at the 
crossing, trains may proceed through the crossing at normal speed.
    Paragraph (c)(2) provides that, if an appropriately equipped 
flagger provides warning for highway traffic, but there is not at least 
one flagger providing warning for each direction of highway traffic, 
trains may proceed with caution through the crossing at a speed not 
exceeding 15 miles per hour. Normal speed may be resumed after the 
locomotive has passed through the crossing.
    Paragraph (c)(3) 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 and the flagging crewmember may reboard the locomotive before 
the remainder of the train proceeds through the crossing. Normal speed 
may be resumed after the crewmember reboards the train.
    Paragraph (c)(4) has been redesignated Sec. 234.105(d). The body of 
this paragraph remains unchanged. This paragraph requires 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. 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

    Inasmuch as the proposed requirements of this section were in many 
ways similar to the requirements of Sec. 234.105, comments, our 
responses and reasons for them, are consistent with that section.

Final Rule

    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 promptly initiate efforts 
to warn highway users and railroad employees at the subject crossing by 
taking certain actions.
    Paragraph (a) provides that prior to any 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 law 
enforcement authority having jurisdiction over the crossing, and 
paragraph (c) requires the railroad to provide for alternative means of 
actively warning highway users of approaching trains. Paragraphs (c)(1) 
and (c)(2) provide for the alternative means of warning highway users. 
Subparagraph (c)(1) as proposed in the NPRM has been divided into two 
parts to distinguish between the requirement that there be an 
appropriately equipped flagger for each direction of highway traffic 
while flagging by one uniformed police officer is sufficient even 
though there is more than one direction of highway traffic. Paragraph 
(c)(1)(A) provides that, if an appropriately equipped flagger is 
stationed at the crossing providing warning for each direction of 
highway traffic, trains may proceed through the crossing at normal 
speed. Paragraph (c)(1)(B) provides that, if at least one uniformed law 
enforcement officer (including a uniformed railroad police officer) 
provides warning to highway traffic at the crossing, trains may proceed 
through the crossing at normal speed.
    Paragraph (c)(2) provides that, if there is not an appropriately 
equipped flagger providing warning for each direction of highway 
traffic, or if there is not at least one uniformed law enforcement 
officer providing warning, trains with the locomotive or cab car 
leading, may proceed with caution through the crossing at a speed not 
exceeding 15 miles per hour. Normal speed may be resumed after the 
locomotive has passed through the crossing. In the case of a shoving 
move, a crewmember shall be on the ground to flag the train through the 
crossing. This section has been expanded from that proposed in order to 
eliminate any possible confusion. Although we believe it was clear that 
this section as proposed only applied to trains with a locomotive or 
cab car at the leading end, the section has been revised to be more 
specific. Additionally, in the event of a shoving move, the rule has 
been expanded to require that a crewmember be on the ground to flag the 
train through the crossing. This requirement is similar to requirements 
in both NORAC and the General Code of Operating Rules pertaining to 
malfunctioning warning systems.
    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.
    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.

Section 234.109  Recordkeeping

    The labor/management group recommended that this section be revised 
to clarify that the recordkeeping provisions apply only to ``credible'' 
reports of warning system malfunctions. We agree and have modified the 
section accordingly.
    Both APTA and the LIRR claimed that the recordkeeping requirements 
of this section are redundant since under Sec. 234.9 railroads must 
file Form F 6180.83 which includes information pertaining to the time 
and date of the reported malfunction, actions taken and the time and 
date of the repair. FRA notes that in an attempt to minimize paperwork 
burdens on the railroads, proposed Sec. 234.109 did not require filing 
of reports. It requires only that a railroad maintain records 
pertaining to compliance--records which we believe most railroads would 
keep for their internal purposes in any event. All that is required by 
this section is that a railroad have the required information available 
for inspection. It is acceptable for that information to be contained 
in a data base a railroad maintains in order to comply with 
Sec. 234.9's reporting requirements.
    FRA notes that the requirements of Sec. 234.9(b), which required 
reports for each false activation, expired on April 1, 1994. Those 
reports, which comprised the vast majority of reports required under 
Sec. 234.9, will thus no longer be required.
    Section 234.9(b) requires that records referred to in Sec. 234.9(a) 
be retained for one year. Because various records required by 
Sec. 234.9(b) will in some cases be made on different days, the 
retention period is one year from the latest date of railroad activity 
in response to a credible report of malfunction. That date would 
typically be the date of repair of the warning system.
    The labor/management group suggested that it be made clear that 
keeping records by electronic means is acceptable. FRA agrees, and has 
revised paragraph (a) of this section accordingly.

Final Rule

    Paragraph (a) of this section requires each railroad to keep 
records pertaining to compliance with this subpart. Records may be kept 
on forms provided by the railroad or by electronic means. Each railroad 
is required to keep the following information for each credible 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 (from the latest date of railroad activity in response to a 
credible report of malfunction) all records referred to in paragraph 
(a) of this section. Records required to be kept shall be made 
available to FRA as provided by 49 U.S.C. 20107 (formerly section 208 
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 437)).

Subpart D--Maintenance, Inspection, and Testing Maintenance 
Standards

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.
    The labor/management group and New Jersey Transit commented that 
the phrase ``and other information'' should be eliminated from the 
rule. Labor/management group was concerned that ``other information'' 
has not been defined by FRA and could include such things as 
manufacturers' manuals for various types of warning system equipment. 
The parties note that 49 CFR 236.1, the equivalent requirement 
pertaining to signal and train control systems, does not contain such a 
requirement. While complete consistency between the two sets of 
regulations is not necessarily appropriate in every case, in this 
instance we agree that the phrase ``and other information'' is vague 
and unnecessary. It has been deleted from the final rule.

Final Rule

    The final rule requires that plans required for the proper 
maintenance and testing of highway-rail grade crossing warning systems 
be available for use at each warning system location. Plans shall be 
legible and correct to protect against errors in circuitry connections.

Section 234.203  Control Circuits

    The proposed rule requires that all control circuits that affect 
the safe operation of a highway-rail grade crossing warning system be 
designed on the closed circuit principle. This requirement was intended 
to ensure that failure of any part or component of the circuit will 
cause the warning system to activate (fail-safe principle). Interested 
parties commented that not all elements of control circuits for all 
warning systems can be designed on the closed circuit principle. The 
labor/management group also expressed concern that the proposed rule is 
a design standard and could conflict with the language in the MUTCD.
    The final rule is changed to reflect a performance standard versus 
a design standard.

Final Rule

    The final rule requires that all control circuits that affect the 
safe operation of a highway-rail grade crossing warning system shall 
operate on the fail-safe principle.

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. The labor/management group supports the 
proposed rule. There were no other specific comments on the proposal.
    In order to comply with this section, each carrier should have 
specifications available which set 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.

Final Rule

    The final rule is adopted as proposed. It requires that operating 
characteristics of electromagnetic, electronic, or electrical apparatus 
of each highway-rail crossing warning system shall be maintained in 
accordance with the limits within which the system is designed to 
operate.

Section 234.207  Adjustment, Repair, or Replacement of Component

    Paragraph (a) of the proposal 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 adjusted, repaired, or replaced without undue 
delay. Commenters expressed differing views on this provision. NJ 
Transit found the language consistent with FRA's signal and train 
control rules and stated that ``it seems adequately defined and 
workable.'' The labor/management group also supported the rule as 
proposed. The Southern Pacific recommended that the rule be clarified 
to make clear that it does not, in every case, require that repairs be 
made before the next train movement. Paragraph (b) of the proposal 
which requires appropriate action under Sec. 234.105 or Sec. 234.107, 
is written on the assumption that at least in some situations a train 
will arrive at the crossing before repairs are completed.
    The Illinois Commerce Commission (ICC) concurred with use of the 
term ``without undue delay'' when concerning the ``total time it takes 
to make such repairs.'' However, the ICC stated that the rule should 
more specifically address the amount of time it takes railroad signal 
personnel to begin on-site repairs after receipt of a credible false 
activation report. ICC recommended that the time limit for response be 
set at two hours. Similarly, Washington Public Utilities Commission 
viewed the phrase ``undue delay'' as too general or open ended.
    As was stated in the NPRM, ``[i]t 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 will 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.'' Because of the great variety of factors involved 
with malfunctioning warning systems, including the location of the 
crossing, frequency of train movements, type of corrective action 
needed, availability of personnel, and other competing emergency 
situations we are unwilling at this time to establish specific time 
limits for actions. FRA continues to believe that the requirements of 
this section, taken together with the alternative protective measures 
required under Secs. 234.105 and 234.107 will provide the needed 
measure of safety.

Final Rule

    Paragraph (a) of this section 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 adjusted, repaired, or replaced without undue 
delay. Paragraph (b) requires until repair of an essential component is 
completed, a railroad shall take appropriate action under Sec. 234.105 
or Sec. 234.107.

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 safety of highway traffic that 
depends on normal functioning of such system.
    FRA requested that interested parties discuss the safety effect on 
warning systems 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. FRA stated, ``[t]here 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 highway user 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.''
    The ATA suggested that the rule be revised to prohibit railroad 
equipment from being left standing or switched at a crossing in a 
manner that interferes with the normal functioning of the warning 
system. Maine DOT noted that warning system activations due to 
switching activity and standing equipment within crossing circuitry can 
be alleviated by installation of motion sensing devices. The labor/
management group concurred in the rule as proposed and noted that most 
railroads have established procedures to be followed when testing or 
other work is performed near grade crossings. The group also notes that 
it would be ``inappropriate'' to allow excessive or continuous 
operation of warning devices while such work is being performed. In 
response to FRA's question regarding the effect of switching operations 
and equipment standing near crossings, the group recognized that the 
issues presented are important but believe a ``separate examination of 
the engineering and operating issues involved'' to be more appropriate 
to determine if agency action is warranted. The group stated that ``as 
FRA is aware, railroads cannot operate without conducting switching 
operations in the approaches of highway-rail crossings. This is a 
normal part of railroad operations and there is no available technology 
which would completely eliminate the warning system activations which 
result from these operations.''
    FRA recognizes that normal switching operations will activate 
warning systems in many locations. We agree that there is no realistic 
means to prevent this from occurring at all locations. However, 
standing equipment which is not involved in switching activities can be 
prevented from activating warning systems. A warning system can be 
designed to accommodate trains, locomotives or other railroad equipment 
standing within the system's approach circuit. Motion detectors, time-
out circuits, and similar technology can accommodate a railroad's 
operational needs while retaining a credible, functioning warning 
system at a nearby crossing. If such technology is not in place, a 
railroad must take measures to prevent activation of the nearby warning 
system. Many railroads presently have operating rules prohibiting just 
such a result. Rule 103(D) of the General Code of Operating Rules 
provides that ``automatic crossing signals must not be actuated 
unnecessarily by open switch or permitting equipment to stand within 
the controlling circuit.'' Similarly, NORAC Rule 138(b) provides that 
to ``* * * avoid unnecessary operation of automatic highway crossing 
protection * * * [E]ngines or cars must not be allowed to stand longer 
than necessary.''
    FRA is therefore revising this section to provide that interference 
with normal functioning of the warning system includes trains, 
locomotives or other railroad equipment standing within the system's 
approach circuit where the warning system is not designed to 
accommodate those activities. Normal train movements or switching 
operations are not considered to be interference with the warning 
system operations. This revision is directed to situations such as when 
a car or other rail equipment is set out on an approach circuit thereby 
activating the warning system. If the warning system at that crossing 
is equipped with a time-out circuit, cut-out circuit, motion detector, 
or motion sensor, the system will deactivate, permitting traffic to 
proceed through the crossing. This provision affects operations at 
those crossings not so equipped. Standing railroad equipment not 
involved in active switching will not be allowed to keep a warning 
system activated.
    Maine DOT suggested that FRA consider requiring track gangs 
performing maintenance activities within crossing circuitry to 
disconnect the warning system when working. Many crossings are equipped 
with cut-out switches which enable a worker to disable the automatic 
warning system in such a situation. FRA supports the use of these 
devices provided they are utilized under appropriately rigorous 
controls established by the railroad. Other than use of such cut-out 
circuits designed to enable a worker to safely disable a warning 
system, FRA is strongly opposed to allowing railroad employees 
unfamiliar with warning system circuitry to actually adjust and modify 
operation of the warning system. Allowing unqualified employees to 
modify the circuitry would jeopardize the safety of both employees and 
the travelling public.

Final Rule

    The 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. Interference 
includes, but is not limited to:
    (1) Trains, locomotives or other railroad equipment standing within 
the system's approach circuit, other than normal switching operations, 
where the warning system is not designed to accommodate those 
activities; and
    (2) Not providing alternative methods of maintaining safety for the 
highway user 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.
    The intent of the rule is to ensure that railroads provide 
alternative methods of maintaining safety whenever the normal 
functioning of a warning system is interfered with. Those situations 
include testing or performing other work on the warning systems or on 
track and other railroad systems or structures which may affect the 
integrity of the warning system. As stated in the NPRM, ``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.''

Section 234.211  Locking of Warning System Apparatus

    This section as proposed provides that highway-rail grade crossing 
warning system apparatus shall be secured against unauthorized entry. 
The rule provides the carrier with discretion as to the specific manner 
in which the warning system housings are secured. The rule requires 
that all external housings of warning system apparatus be kept locked 
or sealed. This includes warning system houses, flashing light signals, 
gate mechanisms, and bell or stationary audible warning system 
housings.
    The labor/management group supports this section as proposed. There 
were no other specific comments.

Final Rule

    This section is adopted as proposed.

Section 234.213  Grounds

    This section as proposed requires that each circuit that 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. 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 any common return wires of grounded common 
return single break circuits.
    The labor/management group supports this section as proposed. There 
were no other specific comments.

Final Rule

    This section is adopted as proposed.

Section 234.215  Standby Power System

    The proposed rule requires that if alternating current power is 
used as the primary source of power, a standby battery must be 
provided. The proposal also requires that an indicator or alarm be used 
to indicate when the alternating current power is off. The proposal 
also requires that the battery 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.
    In drafting the proposed rule, FRA was addressing the most common 
type of crossing 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. If alternating current is restored before the 
batteries are discharged there is no interruption in operation. However 
if alternating current is not restored in time to recharge the 
batteries before they are fully discharged, warning system operations 
will be interrupted. FRA recognizes that systems other than the typical 
system addressed in the proposed 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.
    Various commenters, including the labor/management group, 
Consolidated Rail Corporation, LIRR, NJ Transit, and APTA, opposed all 
or part of the proposal. The Maine Department of Transportation and the 
New York State Department of Transportation supported the 48-hour 
battery capacity provision. Labor/management commented that it would be 
difficult and very expensive (approximately $180 million) to meet the 
proposed requirements for battery capacity. Commenters stated that the 
indicator light or alarm requirement would be difficult and expensive 
to implement and maintain because of the number of locations that would 
require installation (as many as 50,000) and the high probability of 
vandalism to such installations. After reviewing the comments, FRA has 
deleted the power-off indicator requirement.
    FRA recognizes that different crossings have different back-up 
power needs. A crossing tied into commercial power in a large 
metropolitan area does not necessarily need 48 hour back-up power. If 
power were to fail in that area, the failure would likely be for a 
relatively short period of time. This contrasts to crossings in rural 
areas where, if there is a power failure, discovery of the failure 
itself may take a relatively long time. FRA is therefore revising the 
rule in recognition of the variety of crossing situations. Availability 
of automatic notification of warning system problems is also a factor. 
For instance, by linking warning devices to a digital data network, 
information concerning primary power status and the unit's operational 
status can be almost instantaneously communicated to a railroad control 
center. FRA wishes to provide flexibility for railroads and their 
suppliers to develop and deploy cost effective technology that can 
provide advances in both safety and efficiency. Given those facts and 
the industry's testimony about the capabilities of the back-up power 
devices being employed, FRA has shifted to a straight-forward 
performance standard: FRA will require that a standby source of power 
be provided to ensure the highway-rail grade crossing warning system 
continues to function normally if there is an interruption in primary 
power. We will not require that a specific type of back-up power be 
available, nor will we establish a minimum period for standby capacity. 
Those decisions will be left up to the railroads or the authorities 
installing new systems. Also left to a railroad or the installing 
authority is installation of a conventional power-off indicator or 
indicators based on new or developing technologies. While installation 
of these devices is optional, railroads remain responsible for ensuring 
that warning systems remain operational.
    FRA continues to stress that it is vital for a warning system to be 
equipped with a standby source of power to continue providing warning 
to the highway user in cases of primary power loss. FRA will vigorously 
enforce this provision. If investigation or testing reveals that there 
is no standby power at a crossing sufficient to enable the system to 
continue functioning normally, FRA will take appropriate enforcement 
action. Similarly, if a power interruption results in use of the 
standby power source to such an extent that power is depleted and the 
warning system is not operating normally, FRA will take appropriate 
enforcement action under this section. If primary or standby power is 
not available for any reason, FRA expects a railroad to provide 
portable power or provide warning for highway users in accordance with 
Secs. 234.105 or 234.107.

Final Rule

    This section requires that a standby source of power be provided of 
sufficient capacity to operate the warning system during any period of 
primary power interruption.

Section 234.217  Flashing Light Units

    The proposed rule requires that each flashing light unit be 
positioned and aligned in accordance with installation plans. Several 
commenters, including the labor/management group, remarked that 
installation plans typically do not include detailed specifications for 
the alignment of light units. Labor/management group recommended that 
the rule be amended to require that light units be ``properly'' 
positioned and aligned. 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 crossing. Maintainers have been ensuring 
proper positioning of lights for many years without the benefit of 
alignment specifications. While a standard based on ``properly 
positioned and aligned'' is somewhat vague, FRA is adopting the 
recommended language rule by requiring that each flashing light unit be 
``properly'' positioned and aligned. Compliance and enforcement of this 
section will be based on the good judgment of both maintainers and 
inspectors. The requirement that the light be visible to a highway user 
approaching the crossing has been added to this section. This basic 
requirement is being added to this section in lieu of the focusing 
requirement contained in the NPRM's proposed Sec. 234.253.
    The proposed rule also requires that each flashing light unit be 
maintained to prevent dust and moisture from entering the interior of 
the unit. FRA has revised this section to require that reflectors, as 
well as roundels, be clean and in good condition. The Wisconsin Central 
Railroad commented that it is impossible to keep dust out of roundels 
because each light unit is vented. We agree; however, while it may be 
impossible to keep all dust out of roundels, excessive dust will not be 
a problem if the roundels and reflectors are cleaned periodically.
    Additionally, the proposed rule requires light units to flash 
alternately at a rate of 35 to 55 times per minute. The labor/
management group commented that the flashing rate is adequately 
addressed in the MUTCD. It further commented that proper maintenance of 
the equipment which controls the flash rate is covered appropriately 
under other sections, including 234.205. The Association of American 
Railroads Signal Manual, published in 1991 recommends a flash rate of 
45 to 65 times per minute for solid state flashers rather than the 35 
to 55 times per minute as required by the MUTCD. FRA does not perceive 
a safety advantage of one standard over the other. Therefore the rule 
will be revised to require that light units flash alternately at a rate 
of 35 to 65 times per minute.

Final Rule

    Paragraph (a) of this section requires that each flashing light 
unit shall be properly positioned and aligned and visible to a highway 
user approaching the crossing. Paragraph (b) requires that each 
flashing light unit be maintained to prevent dust and moisture from 
entering the interior of the unit. Roundels and reflectors shall be 
clean and in good condition. Paragraph (c) requires that all light 
units shall flash alternately. The number of flashes per minute for 
each light unit shall be 35 minimum and 65 maximum.

Section 234.219  Gate Arm Lights and Light Cable

    The proposed rule requires that each gate arm light be visible to 
approaching motorists. The rule also required that lights and light 
wires be secured to the gate arm. The labor/management group suggested 
that the proposed rule be modified to reflect a maintenance 
requirement. FRA concurs with this recommendation and is revising the 
rule to require that each gate arm light be maintained in such 
condition to be properly visible to approaching highway users.

Final Rule

    This section requires that each gate arm light be maintained in 
such condition to be properly visible to approaching highway users and 
that lights and light wire be secured to the gate arm.

Section 234.221   Lamp Voltage

    The 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. There is a 
consensus that it is impossible to maintain lamp voltage at the full 
rating of the lamp, at all warning system installations. The State of 
Oregon Public Utility Commission commented that the rule should require 
that voltage be maintained at 95 percent of the lamp's prescribed 
rating. FRA agrees that 95 percent, or even 90 percent of the lamp's 
rating is a desirable voltage and should be maintained when possible. 
However, it is not a realistic minimum standard, particularly at 
locations where there is great distance from the source of the lamp 
voltage to the farthest lamp (i.e., lights supported by cantilever on 
expansive highway) or at older installations where light cable upgrades 
would be required at substantial expense.
    All other commenters were supportive of the 85 percent minimum 
requirement. The section will ensure that the lamp voltage is 
sufficient to provide suitable illumination of the lamp.

Final Rule

    This section requires that each lamp shall be maintained at not 
less than 85 percent of the prescribed rating for the lamp.

Section 234.223  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 highway users. The proposed rule also requires 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 labor/management group commented that the rule should be 
modified to reflect a requirement for maintenance of gate arms in 
accordance with the design of the warning system. They believe that it 
would be inappropriate to establish universal criteria for gate arm 
operation because of the variation in warning system designs, 
particularly at locations utilizing four quadrant gates or other 
special applications. While FRA does not want to impede the development 
or use of special applications, we do believe it is important to 
establish minimum standards for gate arm operations. FRA has revised 
this section to make clear that, in four-quadrant gate installations, 
the three second and five second requirements apply only to entrance 
gates, (the gates closest to oncoming traffic).
    New Jersey Transit commented that there is no demonstrated need for 
the requirement that gates assume the horizontal position at least five 
seconds before the arrival of any train at the crossing. We disagree. 
It is important for the highway user to have more than a minimal 
warning of approaching trains. We do not believe that sufficient 
warning is provided by only requiring that gates reach the horizontal 
position before arrival of the train at the crossing. The five second 
requirement helps to ensure that the highway user who attempts to cross 
at the last opportunity will be able to clear the crossing or vacate a 
stalled vehicle. It will not have any impact on the design of grade 
crossing warning systems.

Final Rule

    This section requires that 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 highway users. 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. At those crossings 
equipped with four quadrant gates, the timing requirements of this 
section apply to entrance gates only.

Section 234.225  Activation of Warning System

    As proposed, this section requires that a warning system activate 
to provide no less than 20 seconds warning time before the crossing is 
occupied by rail traffic. The labor/management group recommended that 
this section refer to a maintenance, rather than a design requirement. 
Accordingly, they suggested that the rule be modified to require that 
the system be maintained to activate in accordance with the design of 
the warning system. FRA has determined that while drafting this section 
in terms of maintenance requirements may be appropriate, there remains 
a need to maintain a minimum activation standard for warning systems. 
We note that the 20 second period is consistent with the design 
requirement of the MUTCD. In light of the labor/management group 
comments FRA is revising this section to provide that the warning 
system be maintained to activate in accordance with the design of the 
warning system, but in no event shall it provide less than 20 seconds 
warning time.

Final Rule

    This section requires that a highway-rail grade crossing warning 
system be maintained to activate in accordance with the design of the 
warning system, but in no event shall it provide less than 20 seconds 
warning time.

Section 234.227  Train Detection Apparatus

    Subsection (a) of this section as proposed requires that train 
detection apparatus detect the presence of a train or car when any part 
of a train detection circuit is occupied. In addition, subsection (b) 
of the proposed rule requires that when a grade crossing equipped with 
a warning system is fouled by a train or car, the warning system would 
continue to operate until such train or car clears the roadway. 
Subsection (c) of the proposal requires that when there are no other 
movements within the limits of the warning circuit, the warning system 
shall discontinue operation after the train or car passes the point of 
fouling the crossing. Subsection (d) requires that if the presence of 
sand, rust, dirt, grease, or other foreign matter is known to prevent 
effective shunting, appropriate action under Sec. 234.105 must be taken 
to safeguard motor vehicle operation.
    Various parties suggested that different portions of the rule be 
modified. The labor/management group recommended that the rule be 
modified to reflect the requirement for maintenance of train detection 
apparatus rather than addressing ``design standards.'' FRA has 
considered this suggestion and revised the rule to provide that the 
train detection apparatus be maintained to detect the presence of rail 
equipment in any part of a train detection circuit, in accordance with 
the design of the warning system. This new subsection (a) replaces 
proposed subsections (a), (b), and (c). It will serve the same purpose 
as the sections replaced, but will do so in a clearer and more 
straightforward manner.
    There were no comments regarding proposed paragraph (d) which 
provides that 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 to safeguard vehicle 
operation. This section, renumbered as paragraph (b), remains 
unchanged.

Final Rule

    Subsection (a) requires that train detection apparatus be 
maintained to detect a train or railcar in any part of a train 
detection circuit, in accordance with the design of the warning system. 
Subsection (b) provides that 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 highway users.

Section 234.229  Shunting Sensitivity

    As proposed, this section 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 labor/management group commented that the 
proposed rule should be modified to reflect the testing requirements of 
warning systems based on certain technologies. The group noted that 
certain types of constant warning time systems may not detect the 
``presence'' of a shunt. The group believes it would be more 
appropriate to require that the detection systems be maintained to 
detect the ``application'' of a shunt. The group believes that warning 
systems currently in use are designed so that they will meet that 
criteria. Southern Pacific also commented that constant time warning 
devices should be taken into account in drafting this section.
    FRA agrees with the commenters and has modified the section 
accordingly. ``Application of a shunt'' is replacing ``presence of a 
shunt'' in the final rule. In the interest of clarity the text 
``including fouling sections of turnouts'' has been deleted and ``of 
any part'' of the circuit added to the final rule.
    FRA notes that the labor/management group stated that they believe 
warning systems currently in use ``could be tested for compliance 
without using multiple shunts to simulate train movements or performing 
other complex tests of questionable value.'' We agree that multiple 
shunts may not be necessary to test for compliance with this section, 
however, multiple shunts may indeed be needed to perform operational 
tests.

Final Rule

    This section requires that each highway-rail grade crossing train 
detection circuit shall detect the application of a shunt of 0.06 ohm 
resistance when the shunt is connected across the track rails of the 
circuit.

Section 234.231  Fouling Wires

    This section is meant to 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 continues to be effective.
    This section as proposed requires that each set of fouling wires 
located in a highway-rail grade crossing warning system train detection 
circuit consist of at least two discrete conductors, and requires that 
each conductor be of sufficient conductivity and maintained in such 
condition to ensure proper operation of the train detection apparatus 
when the circuit is shunted.
    The labor/management group recommended that the proposal be 
modified to accord with existing technology. The group stated that 
``certain train detection apparatus, particularly motion sensing 
equipment, is designed to prevent the system from assuming the most 
restrictive state under certain conditions, including some instances 
when the train detection circuit is shunted.'' We agree with the 
comments and, therefore, in lieu of requiring that the train detection 
apparatus be in its most restrictive state, have revised the section to 
require that each conductor be maintained in such condition to ensure 
proper operation of the train detection apparatus when the train 
detection circuit is shunted.

Final Rule

    This section requires that each set of fouling wires in a highway-
rail grade crossing train detection circuit shall consist of at least 
two discrete conductors. The section requires that each conductor be of 
sufficient conductivity and be maintained in such condition to ensure 
proper operation of the train detection apparatus when the train 
detection circuit is shunted.

Section 234.233  Rail Joints

    This provision provided that 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. The labor/management group, the only party to comment on 
this section, recommended that it be modified to reflect maintenance 
requirements. The group also recommended that this section be changed 
to reflect that it apply only to non-insulated rail joints. FRA concurs 
in the recommendations and has revised the section accordingly.

Final Rule

    This section requires that each non-insulated rail joint located 
within the limits of a highway-rail grade crossing train detection 
circuit be bonded by means other than joint bars and the bonds shall be 
maintained in such condition to ensure electrical conductivity.

Section 234.235  Insulated Rail Joints

    This provision provided that each insulated rail joint used to 
separate train detection circuits within the limits 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 any train detection circuit.
    The labor/management group, the only party commenting on this 
provision, recommended that the section be revised to reflect the 
requirement for maintenance of insulated rail joints. FRA agrees and 
the final rule is revised accordingly.

Final Rule

    This section requires that each insulated rail joint used to 
separate train detection circuits of a highway-rail grade crossing be 
maintained to prevent current from flowing between rails separated by 
the insulation in an amount sufficient to cause a failure of the train 
detection circuit.

Section 234.237  Switch Equipped With Circuit Controller

    This section as proposed 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 only party commenting on this section, the labor/management 
group, supported the proposal.

Final Rule

    This section is adopted as proposed.

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

    This section as proposed requires that each wire 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.
    The only party commenting on this section, the labor/management 
group, supported the proposal.

Final Rule

    This section is adopted as proposed.

Section 234.241  Protection of Insulated Wire; Splice in Underground 
Wire

    This section as proposed requires that insulated wire be protected 
from mechanical injury. The rule prohibits insulation from being 
punctured for test purposes. A splice in underground wire will be 
required to have insulation resistance at least equal to the wire 
spliced.
    The only party commenting on this section, the labor/management 
group, supported the proposal.

Final Rule

    This section is adopted as proposed.

Section 234.243 Wire on pole line and aerial cable

    This section as proposed requires that wire on a pole line be 
securely attached to an insulator that is properly fastened to a 
crossarm or bracket supported by a pole or other support. The rule 
requires that the wire not interfere with, or be interfered with by, 
other wires on the pole line. Aerial cable is required to be supported 
by messenger wire. Open-wire transmission line operating at 750 volts 
or more shall not be placed less than 4 feet above the nearest crossarm 
carrying active warning system circuits.
    The only party commenting on this section, the labor/management 
group, supported the proposal.

Final Rule

    This section is adopted as proposed.

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 proposal also stated that standards for 
such signs are found in Part VIII (``Traffic Control Systems for 
Railroad-Highway Grade Crossings'') of the MUTCD. After consideration, 
FRA is deleting from this section the informational reference to the 
MUTCD. It is sufficient that the information is available through this 
notice.
    The labor/management group supported the proposal. The ATA 
recommended that railroads be required to post information at the 
crossing to expedite malfunction reporting. As discussed above (see 
Sec. 234.5) FRA is in favor of the posting of such information, but 
requiring such posting is beyond the scope of this rulemaking.

Final Rule

    This section requires that each sign mounted on a highway-rail 
grade crossing signal post shall be maintained in good condition and be 
visible to the highway user.

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 will be required to be removed from 
service and not restored to service until its operating characteristics 
are in accordance with the limits within which such device or relay is 
designed to operate.
    The only party commenting on this section, the labor/management 
group, supported the proposal.

Final Rule

    FRA is revising the first sentence of this section to eliminate the 
redundant and possibly confusing terms ``apparatus'' and ``equipment'' 
and to clarify which tests are being referred to. This section 
therefore provides that the inspections and tests set forth in 
Secs. 234.249 through 234.271 shall be made to determine if the warning 
system and its component parts are maintained in a condition to perform 
their 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.

Section 234.249  Ground Tests

    As proposed, this section 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 rule requires 
that the test be made when an energy bus is placed in service, and at 
least once each month thereafter.
    The rule will assist in maintaining the integrity and safety of the 
warning system. As provided in Sec. 234.213, tests would not be 
required on 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.
    There was no opposition to the proposed rule. The labor/management 
group, the only party commenting, supported the rule as proposed.

Final Rule

    This section is adopted as proposed.

Section 234.251  Standby Power

    The proposed section, entitled ``Battery voltage.'' 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. There was no 
opposition to the proposed rule. However, FRA is amending this section 
to reflect changes to Sec. 234.215.

Final Rule

    This section requires that standby power be tested at least once 
each month.

Section 234.253  Flashing Light Units and Lamp Voltage

    The proposed rule requires that lamp voltage be tested when 
installed and at least once every twelve months, with battery-charging 
current removed and with battery charging current restored, to 
determine the 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 the rule should be modified to 
reflect current practices in the maintenance, inspection and testing of 
flashing light units. Since the plans kept at crossing locations 
typically do not address the alignment or focus of flashing light 
units, they believe it would be more appropriate to have the 
requirements based on the installation specifications, which would 
reflect the design of the system. They commented that the term 
``focus'' should be eliminated from the rule. Light units are focused 
initially in the manufacturing process, and the focus should be 
adjusted thereafter only in a shop environment. In accordance with the 
current practices, the group recommended that the requirements under 
subsection (c) include the words ``for proper visibility.'' This 
requirement will more appropriately address the intent of the rule with 
regard to the proper operation of the light units. We agree with the 
comments and have revised the rule accordingly.

Final Rule

    This section requires that each flashing light unit be inspected 
when installed and at least once every 12 months for proper alignment 
and frequency of flashes in accordance with installation 
specifications. Lamp voltage will be required to be tested when 
installed and at least once every 12 months thereafter. Each flashing 
light unit will be inspected for proper visibility, and for dirt and 
damage to roundels and reflectors at least once each month.

Section 234.255  Gate Arm and Gate Mechanism

    There was no opposition to the proposed rule. The final rule will 
remain as proposed.

Final Rule

    This section requires that each gate arm and gate mechanism be 
inspected, and gate arm movement be observed for proper operation, at 
least once each month. Hold-clear devices (devices that keep the gate 
arms in the vertical position when the warning system is not activated) 
shall be tested for proper operation at least once every 12 months.

Section 234.257  Warning System Operation

    The labor/management group supported the proposed rule. There was 
no opposition. The final rule will remain as proposed.

Final Rule

    Paragraph (a) of this section requires that a highway-rail grade 
crossing warning system be tested for proper operation when the warning 
system is placed in service and thereafter at least once each month and 
whenever it is modified or disarranged. For purposes of paragraphs (a) 
and (b), ``disarranged'' includes situations in which 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 will be 
dependent on the degree of modification or disarrangement.
    Paragraph (b) also requires that when a warning bell or other 
stationary audible warning device is used, it be checked for proper 
operation when installed. Thereafter it must be tested at least once 
each month and whenever modified or disarranged.

Section 234.259  Warning Time

    The proposed rule requires that a crossing warning system be tested 
for prescribed warning time at least once every three months. The 
labor/management group originally concurred in this section as 
proposed. The group later revised its comment. They state that it would 
be more appropriate to test warning time once each year, or when the 
warning system is modified in connection with changes in authorized 
train speeds. The LIRR commented that testing should only be required 
when a system is installed or disarranged. Labor/management and the 
Wisconsin Central Railroad request that testing of warning times using 
automatic recording devices should be an acceptable method of 
performing this test.
    FRA has reviewed its proposal in light of the comments received. 
After consideration, FRA has determined that extending the testing 
period from three months to one year is appropriate in conjunction with 
requiring that testing be performed whenever the warning system is 
modified because of a change in train speeds. FRA also notes that under 
the requirements of Sec. 234.257, ``Warning system operation'', warning 
time must be tested if the warning system is modified in such a manner 
that the warning time might be affected. FRA also agrees that 
electronic devices which accurately determine actual warning time may 
be substituted for other tests.
    The labor/management group expressed confusion regarding the type 
of testing permitted under this section. The group stated that 
``although the rule itself permits testing of the adequacy of warning 
time by calculation based on the fastest allowable train speed, the 
preamble creates confusion by its reference to testing with an actual 
train movement or `simulation of a train movement'.'' The group also 
stated that ``section 234.259, as written, permits calculation as a 
complying testing technique * * * .'' This conclusion is unfounded. The 
section-by-section analysis of the section stated that ``[testing] can 
be accomplished by observation of a train movement, if practical, or by 
calculation and simulation of a train movement. Calculation alone is 
not testing. It is merely a determination of design criteria. Only when 
the results of that calculation are combined with actions that 
determine that the mechanical, electrical or electronic system 
functions as intended, can an adequate test be done.

Final Rule

    This section requires that each crossing warning system shall be 
tested for the prescribed warning time at least once every 12 months, 
and when the warning system is modified because of a change in train 
speeds. Electronic devices that accurately determine warning time will 
be an acceptable means of meeting the requirements of this provision.

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 crossing warning system and the controller assembly of the 
highway traffic signal. The railroad will only be responsible for the 
maintenance and testing of its interconnections. The State of West 
Virginia noted that this section ``requires testing of the highway 
traffic signal preemption but doesn't include any notification 
requirement. If the preempt fails to work and the fault is on the 
highway side of the equipment, we need to be notified so that repairs 
can be initiated.'' Although it is beyond the scope of the present 
rulemaking to require notification of state highway departments when a 
signal maintainer discovers a malfunction of the highway traffic signal 
preemption equipment, FRA expects that such notifications would be 
routinely made. Nothing in this rulemaking is intended to preempt any 
local requirements that mandate notification to appropriate officials. 
However, we note that the railroad is not responsible for the 
controller assembly of the highway traffic signal and therefore the 
signal maintainer is not always aware of a malfunction of such 
equipment.

Final Rule

    The final rule will remain as proposed.

Section 234.263  Relays

    The labor/management group supported the proposed rule. There was 
no opposition. The final rule will remain as proposed.

Final Rule

    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)(1) 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 centrifugal type 
relays shall be tested at least once every 12 months.

Section 234.265  Timing Relays and Timing Devices

    The labor/management group supported the proposed rule. There was 
no opposition. The final rule will remain as proposed.

Final Rule

    This section requires that each timing relay and timing device 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, which shall be shown on the plans or 
marked on the timing relay or timing device.
    Timing relays and timing devices are essential components of time-
out circuits which are primarily used for train switching movements at 
warning system installations. A time-out circuit de-activates a 
crossing warning system after a predetermined amount of time after a 
train movement has occupied the detection circuit in approach to the 
grade crossing.

Section 234.267  Insulation Resistance Tests, Wires in Trunking and 
Cables

    The labor/management group supported the proposed rule. There was 
no opposition. The final rule will remain as proposed.

Final Rule

    Paragraph (a) of this section 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, subject to the 
requirements of paragraph (d), when insulation resistance of wire or 
cable is found to be less than 500,000 ohms, prompt action must 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.

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. Labor/management group commented that the rule should be 
clarified by changing all references of cut-out circuits to ``switch'' 
cut-out circuits. They asked for clarification concerning the type of 
cut-out circuits this provision applies to.
    For purposes of this section, a cut-out circuit is any circuit 
which overrides the operation of automatic warning systems. This 
includes both switch cut-out circuits and devices which enable 
personnel to manually override the operation of automatic warning 
systems.

Final Rule

    This section requires that each cut-out circuit shall be tested at 
least once every three months to determine that the circuit functions 
as intended. For purposes of this section, a cut-out circuit is any 
circuit which overrides the operation of automatic warning systems. 
This includes both switch cut-out circuits and devices which enable 
personnel to manually override the operation of automatic warning 
systems.

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 labor/management group supported the proposed rule. The only 
other commenter on this proposal, the Wisconsin Central Railroad, 
commented that the requirement for inspection every three months is 
nearly impossible to meet, given the large geographical territories 
some signal maintainers have. Wisconsin Central suggests that this 
inspection should be extended to every six months. Because of the 
effect that damage to bonds, track connections and insulated rail 
joints due to vandalism, track equipment and other conditions can have 
on the integrity of the warning system, it is imperative that those 
components be inspected more often than twice a year. FRA notes that 
the three month inspection schedule is generally consistent with 
present industry inspection standards.

Final Rule

    This section is adopted as proposed.

Section 234.273  Results of Tests

    This section as proposed 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. Records must 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 must be signed or electronically 
coded by the employee making the test and be filed in the office of a 
supervisory official having jurisdiction. Additionally, the proposal 
requires that records be made available to FRA as provided by 49 U.S.C. 
20107 (formerly section 208 of the Federal Railroad Safety Act of 1970 
(45 U.S.C. 437). Each record must be retained until the next record for 
that test is filed but in no case less than one year from the date of 
the test. 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.
    Only two parties specifically commented on this section. Labor/
management group and New Jersey Transit commented that test results 
should be permitted to be retained at the highway-rail grade crossing 
location or at the office of an official. FRA has determined that a 
more centralized location is needed for the retention of the results of 
tests. In some instances the control housings of warning systems are 
destroyed when there is an accident at a grade crossing. If the records 
of tests are also destroyed, an effective investigation of the accident 
would be precluded. Additionally, retaining test results at the office 
of an official permits more effective monitoring of rule compliance by 
the railroad and FRA. The final rule will not be changed as suggested. 
FRA is adding notice similar to that contained in Sec. 234.109 that 
records required to be kept shall be made available to FRA as provided 
by 49 U.S.C. 20107 (formerly section 208 of the Federal Railroad Safety 
Act of 1970 (45 U.S.C. 437).

Final Rule

    This section is adopted as proposed with additional language as 
stated above.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures

    This 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 the regulatory analysis accompanying the NPRM, FRA analyzed 
grade crossing malfunction data which had been submitted in accordance 
with the requirements of 49 CFR 234.9. The FRA's preliminary review and 
analysis of those data indicated that there is a correlation between 
false activations at a grade crossing and accidents occurring at the 
same crossing in the week following the false activation. Because the 
data had not yet been subjected to the careful testing and scrutiny FRA 
would have wished had it had more time perform further analyses, FRA 
invited comments on the data and methodology used in its analysis.
    The AAR responded to the request that commenters review FRA's 
preliminary analysis. The AAR concluded that the data did not support 
the FRA's preliminary conclusions. After a review of FRA's data and 
AAR's analysis of that data, FRA agrees with the AAR's conclusion.
    In its regulatory analysis FRA posited that the benefits of this 
rule would arise because the number of grade crossing signal 
malfunctions would decrease due to compliance with maintenance, 
inspection and testing requirements of Subpart D, grade crossings would 
be made safer during periods of warning system malfunction due to 
compliance with Subpart C. FRA further estimated that the costs of 
Secs. 234.105 and 234.107 would be reduced because the railroads would 
repair warning systems more rapidly under the provisions of 
Sec. 234.103.
    It appears that activation failures now cost about $4.4 million per 
year in accidents. In these accidents the highway user doesn't know a 
train is coming, enters the crossing and is struck by a train. This 
rule should reduce that cost to about $1.3 million per year.
    It is not as clear how many accidents are attributable to false 
activations. The FRA's best estimate, based on educated estimates of 
its staff, is that false activations cause about $10.9 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 $3.3 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 $80 million and the total benefit will be about $150 million. 
Benefits will be about 1.9 times costs.

Regulatory Flexibility Act

    FRA certifies that this 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.

Paperwork Reduction Act

    The 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 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.

Environmental Impact

    FRA has evaluated these 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.

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 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 general, this rule will preempt those 
requirements. In an effort to maintain state expertise and involvement 
in this critical safety area, FRA is including grade crossing warning 
system inspection functions within its State Participation Program. FRA 
has also provided 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 preempts local ``whistle ban'' ordinances to the extent 
they would otherwise prohibit the use of horns or whistles in such 
situations. This minimal intrusion into an area in which certain 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, S.W., Washington, D.C. 20590.

List of Subjects

49 CFR Part 212

    Intergovernmental relations, Investigations, Railroad safety.

49 CFR Part 234

    Railroad safety, Highway-rail grade crossings.

The Rule

    In consideration of the foregoing, FRA amends chapter IIb of Title 
49, Code of Federal Regulations as follows:

PART 212--[AMENDED]

    1. The authority citation for part 212 is revised due to 
recodification of title 49 of the United States Code to read as 
follows:

    Authority: 49 U.S.C. 20103, 20106, 20105, and 20113 (formerly 
Secs. 202, 205, 206, and 208, 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 from Sec. 212.231(c)(2) (i) 
and (ii);
    (4) Specialized knowledge of the requirements of the Grade Crossing 
Signal System Safety Rules (49 CFR Part 234), 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 and who has demonstrated the ability to understand and detect 
deviations from the Grade Crossing Signal System Safety Rules (49 CFR 
Part 234) 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) An apprentice highway-rail grade crossing inspector shall 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 basic knowledge of electricity;
    (2) The ability to use electrical test equipment in direct current 
and alternating current circuits; and
    (3) 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: 49 U.S.C. 20103, 20107, 20108, 20111, 20112, 20114, 
21301, 21302, 21304, and 21311 (formerly 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)); 49 U.S.C. 20901 and 20102 (formerly the 
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 imposes minimum maintenance, inspection, and testing 
standards highway-rail grade crossing warning systems. This part also 
prescribes standards for the reporting of failures of such systems and 
prescribes minimum actions railroads must take when such warning 
systems malfunction. This part does not restrict a railroad from 
adopting and enforcing additional or more stringent requirements not 
inconsistent with this part.
    5. Section 234.3 is revised to read as follows:


Sec. 234.3  Application.

    This part applies to all railroads except:
    (a) A railroad that exclusively operates freight trains only on 
track which is not part of the general railroad system of 
transportation;
    (b) Rapid transit operations within an urban area that are not 
connected to the general railroad system of transportation; and
    (c) A railroad that operates passenger trains only on track inside 
an installation that is insular; i.e., its operations are limited to a 
separate enclave in such a way that there is no reasonable expectation 
that the safety of the public--except a business guest, a licensee of 
the railroad or an affiliated entity, or a trespasser--would be 
affected by the operation. An operation will not be considered insular 
if one or more of the following exists on its line:
    (1) A public highway-rail crossing that is in use;
    (2) An at-grade rail crossing that is in use;
    (3) A bridge over a public road or waters used for commercial 
navigation; or
    (4) A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad.
    6. Section 234.4 is added to read as follows:


Sec. 234.4  Preemptive effect.

    Under 49 U.S.C. 20106 (formerly Sec. 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.
    7. Amend Sec. 234.5 by removing 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 signal 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.


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

    8. Redesignate the heading and text of Sec. 234.15, and the heading 
and text of Sec. 234.17, as the heading and text of a new paragraph (a) 
of 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.
* * * * *
    9. Designate Secs. 234.1 through 234.6 as ``Subpart A--General'' 
and designate Secs. 234.7 through 234.13 as ``Subpart B--Reports.''
    10. 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  Control circuits.
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  Security of warning system apparatus.
234.213  Grounds.
234.215  Standby power system.
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  Standby power.
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.
Appendix A to Part 234--Schedule of Civil Penalties
Appendix B to Part 234--Alternate Methods of Protection Under 49 CFR 
234.105(c) and 234.107(c).


Sec. 234.101  Employee notification rules.

    Each railroad shall issue rules requiring its employees to report 
to persons designated by that railroad, 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 promptly 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 Secs. 234.105 or 234.107 of 
this part.
    (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 promptly initiate efforts 
to warn highway users and railroad employees at the subject crossing by 
taking the following actions:
    (a) Prior to any 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 law enforcement agency having jurisdiction over the 
crossing, or railroad police capable of responding and controlling 
vehicular traffic; and
    (c) Provide for alternative means of actively warning highway users 
of approaching trains, consistent with the following requirements (see 
Appendix B for a summary chart of alternative means of warning):
    (1) (i) If an appropriately equipped flagger provides warning for 
each direction of highway traffic, trains may proceed through the 
crossing at normal speed.
    (ii) If at least one uniformed law enforcement officer (including a 
railroad police officer) provides warning to highway traffic at the 
crossing, trains may proceed through the crossing at normal speed.
    (2) If an appropriately equipped flagger provides warning for 
highway traffic, but there is not at least one flagger providing 
warning for each direction of highway traffic, trains may proceed with 
caution through the crossing at a speed not exceeding 15 miles per 
hour. Normal speed may be resumed after the locomotive has passed 
through the crossing.
    (3) If there is not an appropriately equipped flagger or uniformed 
law enforcement officer providing warning to highway traffic at the 
crossing, 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, and the flagging 
crewmember may reboard the locomotive before the remainder of the train 
proceeds through the crossing.
    (d) 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 promptly initiate efforts to warn highway users 
and railroad employees at the crossing by taking 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 law enforcement agency having jurisdiction over the 
crossing, or railroad police capable of responding and controlling 
vehicular traffic; and
    (c) Provide for alternative means of actively warning highway users 
of approaching trains, consistent with the following requirements (see 
Appendix B for a summary chart of alternative means of warning):
    (1) (i) If an appropriately equipped flagger is providing warning 
for each direction of highway traffic, trains may proceed through the 
crossing at normal speed.
    (ii) If at least one uniformed law enforcement officer (including a 
railroad police officer) provides warning to highway traffic at the 
crossing, trains may proceed through the crossing at normal speed.
    (2) If there is not an appropriately equipped flagger providing 
warning for each direction of highway traffic, or if there is not at 
least one uniformed law enforcement officer providing warning, trains 
with the locomotive or cab car leading, may proceed with caution 
through the crossing at a speed not exceeding 15 miles per hour. Normal 
speed may be resumed after the locomotive has passed through the 
crossing. In the case of a shoving move, a crewmember shall be on the 
ground to flag the train through the crossing.
    (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.''
    (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. Records may be kept on forms provided by the railroad or 
by electronic means. Each railroad shall keep the following information 
for each credible 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 (from the 
latest date of railroad activity in response to a credible report of 
malfunction) all records referred to in paragraph (a) of this section. 
Records required to be kept shall be made available to FRA as provided 
by 45 U.S.C. 20107 (formerly Sec. 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 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  Control circuits.

    All control circuits that affect the safe operation of a highway-
rail grade crossing warning system shall operate on the fail-safe 
principle.


Sec. 234.205  Operating characteristics of warning system apparatus.

    Operating characteristics of electromagnetic, electronic, or 
electrical apparatus of each highway-rail 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.

    (a) 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.
    (b) Interference includes, but is not limited to:
    (1) Trains, locomotives or other railroad equipment standing within 
the system's approach circuit, other than normal train movements or 
switching operations, where the warning system is not designed to 
accommodate those activities.
    (2) Not providing alternative methods of maintaining safety for the 
highway user 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.


Sec. 234.211  Security 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 power system.

    A standby source of power shall be provided with sufficient 
capacity to operate the warning system during any period of primary 
power interruption.


Sec. 234.217  Flashing light units.

    (a) Each flashing light unit shall be properly positioned and 
aligned and shall be visible to a highway user approaching the 
crossing.
    (b) Each flashing light unit shall be maintained to prevent dust 
and moisture from entering the interior of the unit. Roundels and 
reflectors 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 65 maximum.


Sec. 234.219  Gate arm lights and light cable.

    Each gate arm light shall be maintained in such condition to be 
properly 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 highway users. 
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. At those crossings equipped with four quadrant 
gates, the timing requirements of this section apply to entrance gates 
only.


Sec. 234.225  Activation of warning system.

    A highway-rail grade crossing warning system shall be maintained to 
activate in accordance with the design of the warning system, but in no 
event shall it provide less than 20 seconds warning time before the 
grade crossing is occupied by rail traffic.


Sec. 234.227  Train detection apparatus.

    (a) Train detection apparatus shall be maintained to detect a train 
or railcar in any part of a train detection circuit, in accordance with 
the design of the warning system.
    (b) 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 highway users.


Sec. 234.229  Shunting sensitivity.

    Each highway-rail grade crossing train detection circuit shall 
detect the application of a shunt of 0.06 ohm resistance when the shunt 
is connected across the track rails of any part of the circuit.


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 to ensure proper operation of the train 
detection apparatus when the train detection circuit is shunted.


Sec. 234.233  Rail joints.

    Each non-insulated rail joint located within the limits of a 
highway-rail grade crossing train detection circuit shall be bonded by 
means other than joint bars and the bonds shall be maintained in such 
condition 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 be maintained to 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 highway 
user.

Inspections and Tests


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

    The inspections and tests set forth in Secs. 234.249 through 
234.271 shall be made to determine if the warning system and its 
component parts are maintained in a condition to perform their 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  Standby power.

    Standby power shall be tested 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 proper alignment and frequency of 
flashes in accordance with installation specifications.
    (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 proper 
visibility, dirt and damage to roundels and reflectors 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 12 months. Electronic devices that 
accurately determine actual warning time may be used in performing such 
tests.


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 centrifugal 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. For 
purposes of this section, a cut-out circuit is any circuit which 
overrides the operation of automatic warning systems. This includes 
both switch cut-out circuits and devices which enable personnel to 
manually override the operation of automatic warning systems.


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. Records required to be kept 
shall be made available to FRA as provided by 45 U.S.C. 20107 (formerly 
section 208 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 
437)).
    (c) Each record shall be retained until the next record for that 
test is filed but in no case for less than one year from the date of 
the test.

Appendix A to Part 234--Schedule of Civil Penalties

    Note: A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $20,000 for any violation where circumstances 
warrant. See 49 CFR Part 209, Appendix A.

------------------------------------------------------------------------
                                                               Willful  
                    Section                      Violation    violation 
------------------------------------------------------------------------
                           Subpart B--Reports                           
                                                                        
------------------------------------------------------------------------
234.7Accidents involving grade crossing signal                          
 failure......................................       $5,000       $7,500
234.9Grade crossing signal system failure                               
 reports......................................        2,500        5,000
234.11Railroad rules..........................        2,500        5,000
234.13Grade Crossing signal system information        2,500        5,000
                                                                        
------------------------------------------------------------------------
       Subpart C--Response to Reports of Warning System Malfunction     
                                                                        
------------------------------------------------------------------------
234.101Employee notification rules............        2,500        5,000
234.103Timely response to report of                                     
 malfunction..................................        2,500        5,000
234.105Activation failure:                                              
  (a) failure to notify--                                               
    Train crews...............................        5,000        7,500
    Other railroads...........................        5,000        7,500
  (b) failure to notify law enforcement agency        2,500        5,000
  (c) failure to comply with--................                          
    Flagging requirements.....................        5,000        7,500
    Speed restrictions........................        5,000        7,500
  (d) failure to activate horn or whistle.....        5,000        7,500
234.107False activation:                                                
  (a) failure to notify--                                               
    Train crews...............................        5,000        7,500
    Other railroads...........................        5,000        7,500
  (b) failure to notify law enforcement agency        2,500        5,000
  (c) failure to comply with--                                          
    Flagging requirements.....................        5,000        7,500
    Speed restrictions........................        5,000        7,500
  (d) failure to activate horn or whistle.....        5,000        7,500
                                                                        
------------------------------------------------------------------------
             Subpart D--Maintenance, Inspection, and Testing            
                                                                        
------------------------------------------------------------------------
             Maintenance Standards                                      
234.201Location of plans......................        1,000        2,000
234.203Control circuits.......................        1,000        2,000
234.205Operating characteristics of warning                             
 system apparatus.............................        2,500        5,000
234.207Adjustment, repair, or replacement of                            
 component....................................        2,500        5,000
234.209Interference with normal functioning of                          
 system.......................................        5,000        7,500
234.211Locking of warning system apparatus....        1,000        2,000
234.213Grounds................................        1,000        2,000
234.215Standby power system...................        5,000        7,500
234.217Flashing light units...................        1,000        2,000
234.219Gate arm lights and light cable........        1,000        2,000
234.221Lamp voltage...........................        1,000        2,000
234.223Gate arm...............................        1,000        2,000
234.225Activation of warning system...........        5,000        7,500
234.227Train detection apparatus..............        2,500        5,000
234.229Shunting sensitivity...................        2,500        5,000
234.231Fouling wires..........................        1,000        2,000
234.233Rail joints............................        1,000        2,000
234.235Insulated rail joints..................        1,000        2,000
234.237Switch equipped with circuit controller        1,000        2,000
234.239Tagging of wires and interference of                             
 wires or tags with signal apparatus..........        1,000        2,000
234.241Protection of insulated wire; splice in                          
 underground wire.............................        1,000        2,000
234.243Wire on pole line and aerial cable.....        1,000        2,000
234.245Signs..................................        1,000        2,000
                                                                        
             Inspections and Tests                                      
                                                                        
234.247Purpose of inspections and tests;                                
 removal from service of relay or device                                
 failing to meet test requirements............        2,500        5,000
234.249Ground tests...........................        2,500        5,000
234.251Standby power..........................        5,000        7,500
234.253Flashing light units and lamp voltage..        1,000        2,000
234.255Gate arm and gate mechanism............        1,000        2,000
234.257Warning system operation...............        2,500        5,000
234.259Warning time...........................        1,000        2,000
234.261Highway traffic signal pre-emption.....        1,000        2,000
234.263Relays.................................        1,000        2,000
234.265Timing relays and timing devices.......        1,000        2,000
234.267Insulation resistance tests............        2,500        5,000
234.269Cut-out circuits.......................        1,000        2,000
234.271Insulated rail joints, bond wires, and                           
 track connections............................        2,500        5,000
234.273Results of tests.......................        1,000       2,000 
------------------------------------------------------------------------

Appendix B to Part 234--Alternate Methods of Protection Under 49 CFR 
Secs. 234.105(c) and 234.107(c)

                         This Is a Summary--See Body of Text for Complete Requirements                          
----------------------------------------------------------------------------------------------------------------
                       Flagger for each                        Flagger present, but not                         
                         direction of        Police officer     one for each direction    No flagger/no police  
                           traffic              present               of traffic                                
----------------------------------------------------------------------------------------------------------------
False activation...  Normal speed.......  Normal speed.......  Proceed with caution--    Proceed with caution-- 
                                                                maximum speed of 15 mph.  maximum speed of 15   
                                                                                          mph.                  
Activation failure.  Normal speed.......  Normal speed.......  Proceed with caution--    Stop: Crewmember flag  
                                                                maximum speed of 15 mph.  traffic and reboard.  
----------------------------------------------------------------------------------------------------------------

    Issued in Washington D.C. on September 27, 1994.
Jolene M. Molitoris,
Administrator.
[FR Doc. 94-24223 Filed 9-29-94; 8:45 am]
BILLING CODE 4910-06-P