| (a) Purpose. This section implements Transportation
Code, §471.005, which provides that a person may not dismantle
an active warning device at a grade crossing on an active rail line,
if any part of the cost of the active warning device was originally
paid from public funds, unless the person:
(1) obtains a permit from the governmental entity that
maintains the roadway at the intersection with the rail line; and
(2) pays to that governmental entity an amount equal
to the present salvage value of the active warning device, as determined
by the governmental entity.
(b) Exception. This section does not apply to a railroad
company that is classified as a Class I or Class II railroad by the
Surface Transportation Board.
(c) Active rail line. For the purposes of this section,
"active rail line" refers to any railroad tracks that are:
(1) classified by the United States Department of Transportation
to carry freight or passenger trains; and
(2) currently being used and maintained by a railroad
company.
(d) Request for determination. A person desiring to
dismantle an active warning device at a grade crossing may submit
to the district office of the district in which the warning device
is located a request for the department to determine:
(1) which governmental entity is responsible for maintaining
the roadway at which the warning device is located; and
(2) whether any part of the cost of the warning device
was originally paid from public funds.
(e) Permit application. An applicant for a permit to
dismantle an active warning device located at the intersection of
a rail line with a roadway maintained by the department must submit
an application, on a form prescribed by the department, to the district
office of the district in which the device is located. The application
must be accompanied by a statement that justifies the request. If
the applicant is a corporation, the application must be accompanied
by a resolution from the board of directors certifying the justification.
(f) Conditional approval. The district engineer of
the district in which the active warning device is located will approve
the application, conditioned on payment of salvage value of the equipment,
if, based on information provided in the permit application and the
accompanying justification and after considering the factors set out
by subsection (g) of this section, the district engineer determines
that removal of the active warning device would not adversely affect
public safety.
(g) Factors. In determining if removal of the active
warning device would adversely affect public safety, the district
engineer will consider:
(1) the current and projected average daily vehicle
traffic using the grade crossing;
(2) the nature or type of vehicle traffic using the
grade crossing;
(3) the total number and speed of trains conducted
through the grade crossing daily;
(4) the nature or type of train operations conducted
through the grade crossing;
(5) the sight distance in each quadrant on the roadway
approaches to the grade crossing; and
(6) the history of crashes at the grade crossing, including
crashes in which trains were involved and in which trains were not
involved.
(h) Salvage value. After conditional approval of an
application under subsection (f) of this section, the department will
determine and inform the applicant of the salvage value of the active
warning device. The salvage value is the total monetary value that
is expected to be derived from the device proposed to be dismantled
plus any material that is necessary for the device's operation. The
salvage value includes:
(1) the depreciated value of:
(A) reusable electrical equipment, such as signal controllers,
relays, rectifiers, and batteries;
(B) equipment, such as signal heads, lenses, signal
hoods and backgrounds, light bulbs, crossbuck signs, gate arm mechanisms,
gate arms, lights, and counterweights; and
(C) track circuit equipment, such as termination shunts,
capacitors, chokes, tuned joint couplers, and insulated joints; and
(2) the scrap value of items described by paragraph
(1) of this subsection and other components, such as signal masts
or cantilevers, gate mechanisms, counterweights, signal cabins, and
signal cases if there is no reasonable prospect of the sale of those
items.
(i) Permit issuance. The department will issue a permit
for removal of the active warning device after the department receives
an amount equal to the salvage value of the device.
(j) Appeals.
(1) An applicant for a permit under this section may
appeal to the director of the department's rail division:
(A) the denial of a permit under this section; or
(B) the amount of the salvage value of the device determined
under subsection (h) of this section.
(2) An applicant may appeal an adverse decision of
the director of the department's rail division under paragraph (1)
of this subsection by filing a petition for an administrative hearing
under 43 TAC §§1.21, et seq. (relating to Procedures in
Contested Case).
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