For the purposes of this subpart, the following definitions apply:
Active warning devices means those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists positive warning of the approach or presence of a train.
Company shall mean any railroad or utility company including any wholly owned or controlled subsidiary thereof.
Construction shall mean the actual physical construction to improve or eliminate a railroad-highway grade crossing or accomplish other railroad involved work.
A diagnostic team means a group of knowledgeable representatives of the parties of interest in a railroad-highway crossing or a group of crossings.
Main line railroad track means a track of a principal line of a railroad, including extensions through yards, upon which trains are operated by timetable or train order or both, or the use of which is governed by block signals or by centralized traffic control.
Passive warning devices means those types of traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect upon the approach or presence of a train.
Preliminary engineering shall mean the work necessary to produce construction plans, specifications, and estimates to the degree of completeness required for undertaking construction thereunder, including locating, surveying, designing, and related work.
Railroad shall mean all rail carriers, publicly-owned, private, and common carriers, including line haul freight and passenger railroads, switching and terminal railroads and passenger carrying railroads such as rapid transit, commuter and street railroads.
Utility shall mean the lines and facilities for producing, transmitting or distributing communications, power, electricity, light, heat, gas, oil, water, steam, sewer and similar commodities.
[40 FR 16059, Apr. 9, 1975, as amended at 62 FR 45328, Aug. 27, 1997]
Notes of Decisions
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993).
· cites it 5× “Such circuitry does not meet the definition of warning devices provided in 23 CFR §§ 646.204 (i) and (j) (1992). [11] Petitioner nevertheless contends that the Cook Street crossing was part of a single project to improve the five Cartersville crossings, and that the regulations…”
Henning v. Union Pac. R.R., 530 F.3d 1206 (10th Cir. 2008).
· cites it 2× “" "`Active Warning Devices' means those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists…”
Duncan v. Kansas City S. Ry. Co., 773 So. 2d 670 (La. 2000).
· cites it 2× “An inventory number does not meet the definition of warning devices provided in 23 C.F.R. §§ 646.204 . [3] Thus, in the absence of proof that warning devices were actually installed or replaced at the East Iowa Road crossing, we cannot say the state law negligence claims are…”
Akin v. Missouri Pac. R.R., 1998 OK 102 (Okla. 1998).
· cites it 2× “Because the only equipment installed was circuitry, which was not a passive or active warning device as defined in 23 CFR § 646.204 (i)-(j), the Court held the claim was not pre-empted.”
Missouri Pac. R.R. v. Lemon, 861 S.W.2d 501 (Tex. App. 1993).
· cites it 2× “(j) Active warning devices means those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists…”
Earwood v. Norfolk S. Ry. Co., 845 F. Supp. 880 (N.D. Ga. 1993).
· cites it 2× “” 23 C.F.R. § 646.204 (e). “Construction shall mean the actual physical construction to improve or eliminate a railroad-highway grade crossing or accomplish other railroad involved work.”
Anderson v. Wisconsin Cent. Transp. Co., 327 F. Supp. 2d 969 (E.D. Wis. 2004).
“As stated in Easterwood, as soon as federal funds are used to install devices that meet the definition of a warning device in 23 C.F.R. § 646.204 , any state law claim that the type of warning device installed is inadequate is preempted.”
Pearson v. Columbus & Greenville Ry., 737 So. 2d 390 (Miss. Ct. App. 1998).
· cites it 3× “If a functioning "active warning device" had been at this crossing, one "activated by the approach or presence of a train," 23 C.F.R. § 646.204 (i), then the visibility of the train is not factually, but also not legally an issue for a negligence claim.”
Nye v. Bnsf Ry. Co., 2018 OK 51 (Okla. 2018).
“" According to 23 CFR § 646.204 (I), "passive warning devices" are defined as "those types of traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect…”
Joseph J. Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773 (7th Cir. 2000).
“The Secretary of Transportation has addressed crossing safety through a series of regulations and, for projects using federal funds, mandates that crossings involving multiple tracks, high speed trains operating in areas of limited visibility, or having heavy vehicle or train…”
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