[Federal Register Volume 70, Number 83 (Monday, May 2, 2005)]
[Notices]
[Pages 22750-22754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8626]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Safety Advisory 2005-03; Highway-Rail Grade Crossing Safety

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of safety advisory.

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SUMMARY: FRA is issuing a safety advisory to facilitate improved 
cooperation in the investigation of collisions at highway-rail grade 
crossings. The advisory describes the roles of the Federal and state 
governments and of the railroads in highway-rail grade crossing safety. 
FRA reminds railroads of their responsibility to: Properly report any 
accident involving grade crossing signal failure; properly maintain 
records relating to credible reports of grade crossing warning system 
malfunctions; properly preserve the data from all locomotive-mounted 
recording devices following highway-rail grade crossing collisions; and 
cooperate fully with local law enforcement authorities during their 
investigations of such accidents. FRA also offers assistance to local 
authorities in the investigation of highway-rail grade crossing 
collisions where information or expertise within FRA's control is 
required to complete the investigation.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Staff Director, Highway-Rail 
Crossing Safety, RRS-23, Mail Stop 25, 1120 Vermont Avenue, NW., 
Washington, DC 20590 (telephone: (202) 493-6285); Ronald Newman, Staff 
Director, Motive Power and Equipment Division, FRA Office of Safety 
Assurance and Compliance, RRS-14, Mail Stop 25, 1120 Vermont Avenue, 
NW., Washington, DC 20590 (telephone: (202) 493-6241), Tom McFarlin, 
Staff Director, Signal and Train Control (telephone: (202-493-6203), or 
Kathryn Shelton, Trial Attorney, FRA Office of Chief Counsel, Mail Stop 
10, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: (202) 
493-6063).

SUPPLEMENTARY INFORMATION: Public interest in the prevention of 
collisions at highway-rail grade crossings remains strong. In June of 
2004, the Secretary of Transportation released the Department's new 
Action Plan for Highway-Rail Crossing Safety and Trespass Prevention, 
which noted that fatalities at highway-rail grade crossings were cut by 
42% over the period 1994-2002, despite growing exposure in terms of 
motor vehicle and train miles. This progress has continued since 2002. 
Although 2004 saw an increase in fatalities over 2003, 2004 was the 
safest year on record in terms of the rate at which highway-rail grade 
crossing incidents occurred. FRA is confident that continued emphasis 
on education, engineering, and enforcement can drive further reductions 
in risk.
    This advisory describes basic responsibilities of public and 
private entities that have responsibilities related to highway-rail 
grade crossing safety, with a specific focus on engineering and 
railroad operations.\1\ In addition, this advisory provides information 
regarding the roles of FRA, railroads, and state and local officials in 
the investigation of grade crossing collisions, including suggestions 
for making the process work better. FRA notes that a basic 
responsibility of railroads and public authorities at all levels of 
government is to derive information from these often tragic events to 
help prevent future occurrences.
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    \1\ This notice does not establish new requirements or specify 
new responsibilities. Its purpose is to describe responsibilities 
rooted in statutes, regulations, and established practice upon which 
persons have come to rely and to suggest additional actions that 
public and private entities should consider based upon recent events 
of note.
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Role of the FRA

    FRA administers and enforces regulatory requirements and exercises 
statutory powers that bear on highway-rail grade crossing safety:
    1. FRA regulations entitled ``Railroad Accidents/Incidents: 
Reports, Classification, and Investigations'' (49 CFR Part 225) require 
each railroad to report in writing, within 30 days following the end of 
the month in which the event occurred, specified significant events, 
including any impact between railroad on-track equipment and an 
automobile, bus, truck, motorcycle, bicycle, farm vehicle or pedestrian 
at a highway-rail grade crossing (49 CFR 225.5, 225.19). Information is 
required to be provided on Form FRA 6180.57 for each such event, and 
separate forms must be filed to provide additional detail if an injury 
occurs or if damage to railroad property exceeds the current threshold 
(presently $6,700). The information is available in full detail on the 
agency's Web site (http://www.fra.dot.gov).
    2. Effective May 1, 2003, section 225.9 requires that FRA receive 
immediate telephonic notification of any fatality at a highway-rail 
grade crossing. This provision was intended to create a parallel 
structure with a longstanding requirement of the National 
Transportation Safety Board (NTSB) and to provide FRA with early 
information regarding fatal collisions for which FRA might elect to 
conduct an investigation. (FRA and the NTSB both employ the National 
Response Center to receive these types of notifications.)
    3. FRA is authorized to conduct an investigation of any accident or 
casualty associated with railroad operations. FRA judiciously exercises 
its discretion to investigate accidents, because its inspectors have 
such a broad array of other duties, including inspection and 
enforcement activities. Accordingly, FRA must confine its accident 
investigations to those events most likely to yield important 
information for use in achieving regulatory compliance, improving 
regulations, or fashioning other countermeasures. These are often cases 
where significant harm to multiple members of the public, railroad 
passengers, railroad personnel or property--or strong public interest 
in the circumstances (e.g., involvement of a school bus)--warrant use 
of agency resources.
    Historically, FRA has also investigated most accidents where 
questions have arisen regarding the proper functioning of active 
warning systems. FRA's Office of Safety has now adopted a formal 
accident assignment criterion under which each highway-rail grade 
crossing collision involving a credible allegation that the warning 
device failed to provide the required warning will be routinely 
investigated.
    Additional collisions will be assigned for investigation, as 
warranted, based upon supportable concerns regarding the railroad's 
discharge of its responsibilities for grade crossing safety. (FRA 
regional managers sometimes assign for less intensive investigation 
additional collisions, where available information and resources 
warrant.)
    4. FRA enforces regulations entitled ``Grade Crossing Signal System 
Safety'' (49 CFR Part 234) which require the

[[Page 22751]]

inspection, testing, and maintenance of active warning systems at 
highway-rail grade crossings according to specified standards. These 
regulations include safeguards to be observed, such as stopping or 
slowing train movements, when the railroad has notification that a 
warning system is malfunctioning. A railroad is also required to report 
telephonically, within 24 hours, any accident/incident involving an 
activation failure (49 CFR 234.7).
    5. FRA's ``Locomotive Safety Standards'' (49 CFR Part 229) require 
that each locomotive operated in excess of 30 miles per hour be 
equipped with an operative event recorder capable of capturing and 
preserving certain data elements for the last 48 hours of operation. 
Essentially all locomotives operated by major freight and passenger 
railroads are so equipped. Following an accident required to be 
reported to FRA, including an impact at a highway-rail grade crossing, 
data are required to be safeguarded and preserved for at least 30 days. 
Section 229.135(d)(1) reads as follows:

    If any locomotive equipped with an event recorder is involved in 
an accident that is required to be reported to FRA, the railroad 
using the locomotive shall, to the extent possible, and to the 
extent consistent with the safety of life and property, preserve the 
data recorded by the device for analysis by FRA. This preservation 
requirement permits the railroad to extract and analyze such data; 
provided the original or a first-order accurate copy of the data 
shall be retained in secure custody and shall not be utilized for 
analysis or any other purpose except by direction of FRA or the 
National Transportation Safety Board. This preservation requirement 
shall expire 30 days after the date of the accident unless FRA or 
the Board notifies the railroad in writing that the data are desired 
for analysis.

The requirements for preservation of data include all on-board 
locomotive data storage devices and are not limited to the event 
recorder required by section 229.135.

    6. Through the Locomotive Safety Standards, FRA has also required, 
effective December 31, 1997, that all locomotives operating greater 
than 20 miles per hour be equipped with operative auxiliary alerting 
lights (49 CFR 229.125(d)). When displayed with the locomotive 
headlight, these lights provide a distinctive triangular pattern that 
aids identification of an approaching locomotive and improves the 
ability of the user of the highway-rail grade crossing to determine 
when the train will arrive at the crossing.
    7. FRA has issued a final rule on the Reflectorization of Freight 
Rail Rolling Stock that is intended to improve the visibility 
(``conspicuity'') of locomotives and freight cars during nighttime and 
periods of restricted visibility, particularly at crossings where there 
is no active warning system (e.g., flashing lights) (70 FR 144; January 
3, 2005) . Almost one-fourth of collisions at highway-rail grade 
crossings involve motor vehicles hitting the sides of trains. The final 
rule requires application of retroreflective material over a ten-year 
period and renewal of the material every ten years. The national car 
and locomotive fleets consist of over 1.3 million units. The Government 
of Canada has indicated its intent to adopt compatible requirements.
    8. FRA has issued a final rule on Use of Locomotive Horns at 
Highway-Rail Crossings (49 CFR Part 222), which is scheduled for 
publication in the Federal Register on April 27, 2005 and will be 
effective on June 24, 2005. The final rule requires the horn to be 
sounded for 15 to 20 seconds prior to arrival of the train at each 
public crossing, subject to certain exceptions where risk is low or 
where action has been taken to compensate for the absence of warning 
provided by the locomotive horn.
    9. FRA also conducts outreach to law enforcement and judicial 
officials to encourage enforcement of state laws governing motorist 
behavior at highway-rail grade crossings. Further, FRA works with the 
Federal Motor Carrier Safety Administration and major motor carriers to 
encourage driver compliance.
    10. FRA and the Federal Highway Administration (FHWA) provide 
funding designated by the Congress to Operation Lifesaver, Inc. (OLI), 
which conducts programs of education and awareness through state 
chapters and sponsors public service announcements. Working with 
railroad police departments, FRA, and others, OLI also provides Grade 
Crossing Collision Investigation Courses at the Basic (4-hour), 
Intermediate (8-hour) and Advanced (16-hour) levels to help law 
enforcement officers more effectively investigate these events. This 
training was developed for the North American law enforcement community 
with the cooperation of the International Association of Chiefs of 
Police and the National Sheriffs Association. FRA and OLI also conduct 
outreach to the state and local judiciary, calling attention to the 
tragic consequences of grade crossing collisions and encouraging 
enforcement of state laws governing motorist behavior.
    For additional detail, see Role of Railroads, below.

Role of the NTSB

    The NTSB is the only agency established by federal law whose 
primary missions are to investigate transportation accidents and to 
make recommendations for improvement of transportation safety programs. 
NTSB's organic statute provides in pertinent part as follows:
    (a) General.--(1) The National Transportation Safety Board shall 
investigate or have investigated (in detail the Board prescribes) and 
establish the facts, circumstances, and cause or probable cause of--
* * * * *
    (B) a highway accident, including a railroad grade crossing 
accident, the Board selects in cooperation with a State;
    (C) a railroad accident in which there is a fatality or substantial 
property damage, or that involves a passenger train;
* * * * *
    (F) any other accident related to the transportation of individuals 
or property when the Board decides--
    (i) The accident is catastrophic;
    (ii) The accident involves problems of a recurring character; or
    (iii) The investigation of the accident would carry out this 
chapter.
* * * * *
49 U.S.C. 1131] (emphasis supplied)

    NTSB receives notification of fatal crossing impacts in the same 
manner as FRA. Event recorder data required to be maintained under FRA 
regulations is also required by FRA to be made available to the NTSB 
upon request (49 CFR 229.135).
    In practice, NTSB investigates a small number of highly significant 
grade crossing accidents each year. Based upon review of full and 
memorandum reports listed on the NTSB web site, it appears that in the 
seven-year period 1997-2003 the Board investigated 12 highway-rail 
grade crossing collisions, with the clear majority being assigned 
highway numbers (generally indicating principal focus on highway-side 
considerations). The most events assigned in one year was four (1997, 
2000), and the fewest was zero (2001, 2002).\2\ FRA and other 
designated parties work closely and cooperatively with NTSB when NTSB 
elects to investigate a highway-rail grade crossing accident.
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    \2\ It is possible that one or more reports from this period 
remain unpublished.
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    NTSB also prepares special studies that may address grade crossing 
safety, most recently Safety at Passive Grade Crossings; NTSB Report 
Number: SS--

[[Page 22752]]

98-02, -03; July 21, 1998. Board staff looked into the circumstances of 
a significant number of collisions at passive crossings in aid of this 
study.

Role of Railroads

    Railroads possess the right-of-way at highway-rail grade crossings 
for the same reasons that large ships possess the right-of-way on 
navigable waterways, i.e., large and heavy conveyances cannot stop 
quickly. As a result, a highway-rail grade crossing collision can 
rarely be avoided through actions of the locomotive engineer or 
conductor (e.g., stopping the train short of the crossing). However, 
railroads and their employees have a variety of responsibilities that 
they must discharge under Federal or state law that are critical to 
safety at highway-rail grade crossings. They also have a responsibility 
to preserve and report information following grade crossing accidents, 
so that local public authorities can determine responsibility of the 
parties to the event, and so that Federal and state regulatory agencies 
can derive information useful for improving grade crossing safety.
    The following discussion summarizes those responsibilities owed by 
railroads to the FRA, acting on behalf of the public, that relate to 
highway-rail grade crossing safety:
     Inspect, test, and maintain grade crossing warning systems 
in accordance with 49 CFR Part 234, and take other actions required by 
those regulations to avoid continuously operating signals, to provide 
for safety in the event of a signal malfunction or when it is necessary 
to remove a system from service (for testing or repair), to avoid 
interference in the normal functioning of these devices, and to restore 
malfunctioning signals to proper functioning without undue delay. See 
FRA Safety Advisory 2002-1 (67 FR 3258; January 23, 2002) and FRA 
Safety Advisory 2004-03 (69 FR 48904; August 11, 2004). (See further 
discussion below.)
     Report all activation failures in writing within 15 days 
(49 CFR 234.9).
     Maintain track structure in accordance with the Track 
Safety Standards (49 CFR Part 213). This includes maintaining 
adequately drained (non-fouled) ballast that otherwise could permit the 
existence of low ballast resistence adversely affecting the operation 
of grade crossing signals (49 CFR Sec.  213.103) and removing 
vegetation on railroad property that could interfere with preview of 
grade crossing warning signs and signals, whether active or passive (49 
CFR Sec.  213.37).
     Operate trains in accordance with applicable speed 
limitations imposed by Federal regulation (49 CFR Parts 213, 234 and 
236) and the railroad's operating rules, timetables, and special 
instructions (see 49 CFR Parts 217 and 240).
     Provide and maintain locomotive event recorders on all 
locomotives operating greater than 30 miles per hour, preserving data 
following any reportable event (49 CFR 229.135).
     Provide and maintain locomotive auxiliary alerting lights 
on any lead locomotive operating greater than 20 miles per hour (49 CFR 
229.125(d)).
    As noted above, the railroads will soon undertake additional duties 
related to sounding the locomotive horn (presently done under state law 
and the railroad operating rules) and reflectorization of freight rail 
rolling stock.

Special Emphasis: Railroad's Duties After an Accident

    FRA reminds railroads that event recorder data must be preserved 
following accidents at highway-rail grade crossings and notes that FRA 
will conduct periodic records audits to determine that this information 
is being retained and made available to FRA and NTSB as required.
    Following a highway-rail grade crossing accident/incident, the 
railroad has additional responsibilities that vary based on the 
circumstances:
     Event recorder data, including data from all locomotive-
mounted recording devices designed to record information concerning the 
functioning of a locomotive or train, must be preserved for 30 days or 
longer if so notified by FRA or NTSB (49 CFR 229.135(d)).
     If it is determined that the grade crossing warning system 
experienced an activation failure, the railroad must make a telephonic 
report to FRA through the National Response Center (49 CFR 234.7), and 
thereafter file an activation failure report in writing (49 CFR 
234.9(a)).
     In the case of a fatal highway-rail grade crossing 
accident/incident, the railroad must make a telephonic report 
immediately, again through the National Response Center (49 CFR 225.9).
     Railroads involved in the event must provide written 
reports of the accident/incident within 30 days after the month in 
which the event occurred (see, e.g., 49 CFR 225.11 and 225.19). FRA's 
Guide for Preparing Accident/Incident Reports, available for 
downloading on FRA's web site (http://safetydata.fra.dot.gov/officeofsafety), describes the applicable requirements.
    FRA reminds railroads that each of these duties must be faithfully 
discharged. Through routine inspections and special assessments, FRA 
will continue to verify compliance with these requirements.

State and Local Government Roles

    States and local governments play very critical roles in highway-
rail grade crossing safety. Highway users, railroads, and others are 
responsible for compliance with requirements imposed by state and local 
governments. Those requirements are not defined by FRA, except to the 
extent that FRA's exercise of jurisdiction over a subject matter has 
the effect of preempting state action (see 49 U.S.C. 20106). 
Notwithstanding various actions that FRA and other Federal authorities 
have taken to promote highway-rail grade crossing safety, state and 
local agencies of appropriate jurisdiction daily exercise their own 
responsibilities, which include:
     Selection of traffic control devices, including highway-
rail grade crossing warning systems, advance signage, pavement marking, 
etc., generally in conformity with the Manual for Uniform Traffic 
Control Devices (MUTCD), which is issued by the FHWA;\3\
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    \3\ In some States, railroads are responsible for ``marking'' 
each public crossing with a crossbuck placed on railroad property, 
to the extent other signage is not provided by the roadway 
authority. A small number of States specify signage that the 
railroad must install at private crossings.
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     Determination, in cooperation with the railroad, of the 
need for, and design of, interconnections between highway-rail grade 
crossing warning systems and other traffic control signals in the 
immediate vicinity, including appropriate timing;
     Investigation of all accidents on public roads to 
determine user compliance with motor vehicle and other state code 
requirements and to determine if a crime has occurred;
     Examination and licensing of motor vehicle operators, 
including holders of Commercial Drivers Licenses;
     Enforcement of state requirements, if any, regarding 
clearance of sight obstructions on railroad (or other) property at 
highway-rail grade crossings.
    Other Federal authorities assist States and localities in 
accomplishing this work, as do various private standards bodies. For 
instance, FHWA provides formula-based financial assistance that has 
been responsible for installation of the majority of highway-rail grade 
crossing active warning systems in the nation. FHWA also develops and 
maintains the MUTCD with the help of

[[Page 22753]]

a national advisory committee comprised of experts in the field, 
including state and local traffic engineers. In addition to providing 
overall strategic leadership through the Secretary's Action Plan, the 
U.S. Department of Transportation's modal administrations, including 
FRA, have contributed to the development of key technical material, 
most recently the report of the Secretary's Technical Working Group 
entitled Guidance on Traffic Control Devices at Highway-Rail Crossings 
(November 2003) which is available on line at http://www.fra.dot.gov/us/content/817.
    Despite the close working relationships forged over the years among 
public authorities responsible for highway-rail grade crossing safety, 
public misunderstandings persist. For instance, it has been alleged 
that FRA regulations interfere with toxicological testing of railroad 
crew members following crossing collisions. As a practical matter, that 
is not generally the case, because the preemptive effect of FRA's 
regulations do not extend to areas where state and local authorities 
have traditionally exercised authority with respect to breath or body 
fluid testing.
    It is true that FRA has excluded highway-rail grade crossing 
collisions from the events for which mandatory post-accident 
toxicological testing is required under its regulations. The reason for 
that exclusion is that crew member actions seldom contribute to these 
events--rather, they frequently become additional victims as they 
observe close-up events they are powerless to prevent. However, if at 
any time a railroad crew member is on duty, and that person is 
reasonably suspected of being under the influence of or impaired by 
alcohol or other drugs, then the railroad is required to conduct a 
breath or urine test, or both, as applicable. Further, any state or 
local law enforcement official with probable cause to believe that a 
violation of a state criminal law that imposes sanctions for reckless 
conduct that leads to actual loss of life, injury or damage to property 
has been committed is free to take any action that would be authorized 
against any other person, including requiring production of body fluids 
for analysis. Thus, while FRA has not delegated to state and local 
officials the conduct of Federal tests, neither does FRA preempt 
appropriate criminal investigative authority a state or local law 
enforcement agency enjoyed prior to issuance of the FRA regulations-
provided probable cause exists supporting that action. See 49 CFR 
219.13(b).
    To the extent train and engine crew fitness is an issue with 
respect to grade crossing safety, FRA's regulations governing random 
alcohol and drug testing provide an important safeguard by detecting 
and deterring misuse of these substances in the subject population. 
Among highway users, only commercial drivers are subject to random 
testing.

Opportunities for More Effective Cooperation

    FRA has expertise, shared only by the NTSB and state rail agencies 
that are members of FRA's State Safety Participation Program, that can 
be helpful in evaluating safety issues at highway-rail grade crossings, 
whether before or after an event occurs. FRA Highway-Rail Grade 
Crossing Managers and Assistant Managers in each FRA region are fully 
devoted to supporting safety programs that reduce risk at grade 
crossings. As noted above, these managers and other key FRA personnel, 
including law enforcement liaison officers (on loan from state or local 
law enforcement agencies), conduct outreach to law enforcement agencies 
and the judiciary and provide access to appropriate training.
    FRA can also offer assistance in resolving questions about safety 
raised following grade crossing collisions. FRA operating practices 
personnel are skilled in reviewing railroad operating rules and 
practices pertinent to grade crossing safety. FRA signal and train 
control inspectors are experts in the functioning of active warning 
systems (grade crossing signals) and can normally verify from testing, 
or review of recorded data, how the events related to railroad 
operations unfolded. FRA field personnel are also familiar with 
locomotive event recorder data and how to interpret it in relation to 
railroad operating rules, timetables, and special instructions.
    In the great majority of the approximately 3,000 grade crossing 
collisions each year, the event would have been avoided had the vehicle 
operator or pedestrian heeded state law, and that person had available 
all necessary means for doing so.\4\ However, in a small but 
nevertheless significant minority of events, other factors may have 
contributed, such as interference with the normal functioning of a 
warning system, failure of the warning system, or operation of the 
train in a manner not consistent with safety requirements (e.g., short 
warning due to overspeed operation, failure to properly sound train 
horn, etc). In those cases, it is important for highway and rail 
authorities to cooperate in completing their respective investigations. 
Exchange of factual information pertinent to the cause of a 
transportation accident is clearly within the letter and spirit of 
FRA's authorizing statutes (see, e.g., 49 U.S.C. 20902).
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    \4\ For instance, the NTSB's study of collisions at passive 
crossings found that driver error was the probable cause for 49 out 
of 60 accident cases. In 7 of the remaining 11 cases, the probable 
cause was determined to be related to roadway conditions that 
affected the driver's ability to detect the presence of a passive 
crossing or an oncoming train; roadway and track conditions (e.g., 
curvature) were cited as the probable cause in 3 of the 11 cases. 
Safety at Passive Crossings, NTSB Report Number: SS-98-02; July 28, 
1998 at vii, viii. Review of FRA accident/incident data suggests 
that motorist involvement is significantly higher at crossings 
equipped with automated warning devices. It should be emphasized, 
however, that ``driver error'' can be significantly mitigated 
through a variety of strategies generally clustered under the themes 
of engineering, education and enforcement.
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Special emphasis: Availability of FRA Support for State and Local 
Investigations

    Through this Safety Advisory, FRA invites state and local law 
enforcement agencies responsible for investigating highway-rail grade 
crossing collisions to contact FRA if it appears from initial 
investigation that rail-related factors may have played a role in the 
occurrence. FRA will consult with the State or local agency and 
determine if FRA should initiate investigative activity regarding 
matters within our purview. If FRA determines that a credible issue is 
presented that is within our authority and responsibility, factual 
information that is developed during the investigation will be made 
available to the state or local agency initiating the request. FRA will 
also provide technical consultation as appropriate to explain the 
significance of railroad-related information.
    Current office numbers for FRA regional offices are found at http://www.fra.dot.gov. You may determine the appropriate Regional office by 
searching the Federal Railroad Administration Web site [http://www.fra.dot.gov/us/content/373], selecting a State and clicking on the 
corresponding regional office for contact information. Outside of 
normal business hours, requests should be placed through the National 
Response Center (1-800-424-8802 or 1-800-424-0201 ) for communication 
to the FRA Duty Officer. FRA will distribute this Advisory through 
major national law enforcement associations and will make this Advisory 
available through outreach at the state and local level.


[[Page 22754]]


    Issued in Washington, DC, on April 25, 2005.
Daniel C. Smith,
Associate Administrator for Safety.
[FR Doc. 05-8626 Filed 4-29-05; 8:45 am]
BILLING CODE 4910-06-P