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Mills v. Norfolk Southern R. Co.12/3/1999
tion promulgated the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), which was not separately set forth in the Code of Federal Regulations but which was available through the Superintendent of Documents, U. S. Government Printing Office. 49 C. F. R. Part 7, App. D 23 C. F. R. § 655.601 (a) (1990). The authority to promulgate such rules and regulations had been granted the Secretary under the Federal Railroad Safety Act of 1970. P.L. 91-458, 84 Stat. 971, 45 USCS §§ 431-441. The Secretary of Transportation adopted MUTCD in 1983. See MUTCD §§ 8C-4; 8C-5; 8C-6. See also Hatfield v. Burlington Northern R. Co., 757 F. Supp. 1198, 1203 (D. Kan. 1991), revd. on other grounds, 958 F2d 320 (Cir. 10, 1992). In 1990 MUTCD was incorporated by reference into the Code of Federal Regulations. See 23 C. F. R. § 655.601 (a) (1990).
The 49 C. F. R. § 234.225 was adopted after nearly six years of hearings and study, beginning in 1988 under Congressional mandate, with the same uniform performance criteria for all grade crossing warning systems as MUTCD. P.L. 100-342, 102 Stat. 624, 45 USCS §§ 431 et seq.; 53 FR 47554 (1988); 54 FR 49 (1989); 54 FR 4319 (1989); 55 FR 38707 (1990); 56 FR 33722 (1991); 56 FR 61169 (1991); 57 FR 28819 (1992); 57 FR 56991 (1992); MUTCD §§ 8C-4; 8C-5; 8C-6. On July 23, 1991, the Federal Railroad Administration adopted the Grade Crossing Signal System Information, 49 C. F. R. § 234.225, but subsequently gave several extensions of the effective date until 1994. See 56 FR 33722; 56 FR 61169; 57 FR 56991.
While 49 C. F. R. § 234.225 was not in force in 1988 at the time of the collision in that form, its' core contained substantially the same performance criteria in rules and regulations that existed, governing Norfolk Southern, at such time but that did not appearing in the Code of Federal Regulations; therefore, what was said regarding 49 C. F. R. § 234.225 applied also to MUTCD, that was the applicable rules and regulations, governing Norfolk Southern at the time of the occurrence.
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