During the development or maintenance of some highway projects, it shall be necessary to coordinate with and secure approval from railroad companies to resolve conflicts between highway construction features or maintenance activities and railroad property and/or facilities. This Section sets forth railroad eligibility for reimbursement by the Department for costs incurred in resolving such conflicts where construction of a highway project necessitates the use of railroad property or affects railroad facilities. There shall be a written agreement between the State and the railroad company, and such agreements shall meet the requirements of the Federal Aid Policy Guide, Part 646.

1. A. Preliminary negotiation: Preliminary negotiation should be initiated by the Department with the railroad at the location stage, if possible. Upon approval of the location, the railroad shall be provided with information showing a tie to the railroad center line, railroad mile post or bridge. A proposed highway typical Section shall be supplied, along with a request that the railroad's horizontal and vertical clearances, maintenance road, drainage and other requirements be forwarded to the Department as soon as possible. This information shall then be forwarded to the appropriate Engineering/Design Division Unit, preferably before design of the highway project begins. As soon as preliminary plans showing the railroad requirements are available, they shall be sent to the railroad, along with a letter requesting a field meeting with railroad officials. The negotiations and understandings reached at such meeting shall be documented and reviewed prior to beginning negotiations for a State/Railroad Agreement.
2. B. Right-of-way: Acquisition of right-of-way, other than railroad operating right-of-way, required for highway construction shall be handled as any other acquisition by the Department's Right-of-Way Bureau. When railroad operating right-of-way is required for highway construction purposes, including, but not limited to soil exploration, a right of entry shall be secured by the Department prior to entering railroad property. Such right of entry may be in letter or agreement form and shall be fully executed by the State and railroad. Where soil exploration within railroad property is necessary, it is preferable that Department crews perform such exploration, because of strict insurance and agreement provisions. Because the State is self-insured, it is less cumbersome and time consuming to have State forces perform exploration activities within railroad property.
3. C. Negotiations for agreements/authorizations: Negotiations for a final agreement can be started after the following plans are available for review by the railroad company: (1) the layout structure over or under the tracks if a grade separation is involved, showing a tie to the railroad centerline, minimum clearances, both horizontal and vertical, and provisions for extra tracks, and off track maintenance equipment, if such provisions are required; (2) right-of-way plans showing the crossing area or easements required from the railroad company, together with a description thereof; and (3) highway plans showing grade, drainage and other features that may affect the railroad. The plans shall be developed to a stage where changes by the Department will not require re-engineering by the railroad. If authorization has been received from the FHWA for preliminary engineering, the plans that are applicable shall be sent to the railroad company in quadruplicate, with an explanation of any items that may be obscure to the railroad company. The transmittal letter to the railroad shall include information regarding the letting date for the project, a request for review of the plans transmitted, and comments or approval, and a request for the railroad to prepare their force account estimate. This submittal is the authorization from the Department to the railroad to proceed with their engineering and design.
4. D. Processing agreements: Four (4) copies of the Agreement (two original signatures and 2 stamped originals) shall be submitted for processing, accompanied by a letter to the FHWA requesting an authorization to proceed with construction (include method of construction, i.e., force account, contract, etc.) if provisions for railroad work are part of the Agreement. When the authorization from FHWA is received, the Department shall authorize the railroad to proceed with the railroad work required, in accordance with the approved agreement, plans, and estimate.

5. E. Railroad liability for cost of project:

   (1) federal aid projects: The classification of projects and the requisite railroad share the cost on federal aid projects shall conform to the Federal Aid Policy Guide, Part 646.

   (2) state funded projects: The NMSHTD has determined that railway liability with respect to specific project types shall be as follows:

   (a) grade crossing elimination: When a project eliminates an existing rail/highway at-grade-crossing, either by grade separation or relocation of the highway or the railway, whether or not railway active warning devices are in place, the project shall be deemed a benefit to the railroad. The assigned railroad liability shall be five percent (5%) of the cost of the project, which costs shall be based on the cost for preliminary engineering, right-of-way and construction costs, including utilities and railroad force account. Where the project does not result in closing an existing at-grade-crossing, railroad participation shall not be required. Railroad participation is limited to the grade separation structure and approaches required to transition to a theoretical highway profile, which would have been constructed if there were no railroad present, for the number of lanes on the existing highway and in accordance with the current design standards of the Department. Responsibility for maintenance of a newly constructed grade separation shall be as follows:

   (i) Where a separation facility overpasses a railroad, maintenance responsibility for the entire structure and approaches shall be assumed by the Department.

   (ii) Where a grade separation structure underpasses a railroad, maintenance of the approaches and of the entire structure below, including the deck plate, hand rails and parapets, shall be the responsibility of the Department. Maintenance of the water proofing, ballast, ties, rails and any portion of the supporting structure above the top of the ballast deck plate between parapets shall be the responsibility of the railroad company owning the tracks.

   (iii) The cost of repairing damage to a structure, occasioned by collision, equipment failure or derailment of railroad equipment shall be borne by the railroad.

   (b) grade crossing protection: This type includes all projects for protection of highways and railways by automatic signal devices. Authorizations for installation of automatic signal devices are described in the Federal Aid Highway Policy Guide, Part 646; the U.S. Department of Transportation on Railroad-Highway Grade Crossing Handbook, or as otherwise determined by the Department. Flashing light signals shall be installed at all highway projects crossing a railroad, when the highway traffic count exceeds 100 A.D.T. and there are more than two (2) trains per day at the crossing. When the highway facility consists of more than two (2) lanes, cantilever type signals shall be installed. Automatic flashing light signals with short-arm gates shall be installed if one or more of the following conditions prevail:

   (i) Multiple mainline railroad tracks.

   (ii) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.

   (iii) High speed train operation combined with limited sight distance at either single or multiple track crossing.

   (iv) A combination of high speeds and moderately high volumes of highway and railroad traffic.

   (v) A high volume of vehicular traffic crossing the tracks; a high number of train movements; a substantial numbers of school buses or trucks carrying hazardous materials; unusually restricted sight distance; continuing accident occurrences; or any combination of these conditions.

   (iv) A diagnostic team recommends them. Motion sensors and predictors shall be installed at locations where they may expedite highway traffic.

   (c) The New Mexico State Highway Department has determined that at-grade crossing protection falls into four (4) general classifications and conditions, as follows:

   (i) Where a highway or railway project requires installation of automatic signal

   devices at a location which is presently only protected by advance warning signs and standard cross-bucks, the project is deemed to be of no benefit to the railroad company involved. The railroad rehabilitation work which will be required at such crossings, consisting of raising or lowering of track, pavement materials between tracks, including any widened roadway Section, shall be deemed to be of no benefit to the railroad and railroad participation in that portion of the project shall not be required.

   (ii) Where an existing highway crosses a railroad at-grade and there are presently automatic signal devices in place, and if on account of highway widening, the signals must be relocated and the crossing improved but no new signals required, the project shall be considered to be of no benefit to the railroad and railroad participation shall not be required.

   (iii) Where an existing highway crosses a railroad at-grade and there are presently automatic signal devices in place, and due to highway widening the signals must be replaced with cantilever type signals or signals with gates, the project shall be considered to be of no benefit to the railroad; the railroad rehabilitation work required at such crossings; consisting of raising or lowering of track, pavement materials

   between tracks, including any widened roadway Section, shall be considered of no benefit to the railroad and railroad participation in that part of the project shall not be required.

   (iv) Where an existing highway crosses a railroad at-grade and there are presently

   automatic signal devices in place, and if on account of highway widening and improvement of the crossing the signal system must be modernized to include cantilever type or signals with gates, and the existing signals are to be relocated to the roadway median, the project shall be considered to be of no benefit to the railroad and railroad participation shall not be required. The railroad rehabilitation work which will be required at such crossing, consisting of raising or lowering of track pavement materials between tracks, including any widened roadway Section, shall be considered to be of no benefit to the railroad, and railroad participation in that part of the project shall not be required. Maintenance of automatic signal devices at the crossing surface and two (2) feet beyond each outside rail including space between multiple tracks under any of the above described conditions, shall become the responsibility of the railroad company involved.

   (d) reconstruction of existing railroad/highway grade separation: A project to reconstruct an existing overpass or underpass shall include the entire structure and railroad and the highway approaches thereto. Since there is no railway liability for such projects, there shall be no benefit to the railroad and railroad participation shall not be required. Responsibility for maintenance shall be the same as described under I.A. [Subparagraph 3 of Paragraph 3 of Subsection E of 17.4.2.28 NMAC] and I.B. [Subparagraph (b) of Paragraph (3) of Subsection E of 17.4.2.28 NMAC], above.

   (e) existing railroad crossed by new highway: Where a new highway is constructed which is not a relocation of an existing highway and it intersects an existing railroad, the construction of a separation structure or the installation of a signal device at such crossing will not be considered a benefit to the railroad and railroad participation shall not be required. Responsibility for maintenance shall be the same as described under I.A. [Subparagraph (a) of Paragraph (3) of Subsection E of 17.4.2.28 NMAC], I.B. [Subparagraph (b) of Paragraph (3) of Subsection E of 17.4.2.28 NMAC], and II.D (fourth classification) [Subparagraph (b) of Paragraph (2) of Subsection E of 17.4.2.28 NMAC], aforementioned.

   (f) Existing highway crossed by a new railroad: Where a new railroad crosses an existing

   highway, the required separation or signal devices and any pavement work at the crossing shall not be considered to be of benefit to the road user and 100% railroad participation shall be required. The determination as to separation or type of protection shall be according to the policy existing on the classification and traffic volume of the highway crossed and the relative traffic hazard. In the event exceptional situations arise and expansion of these regulations are necessary to cover the situation, the provisions of Federal Aid Policy Guide, Part 646, the U.S. Department of Transportation Grade Crossing Handbook, and other relevant data and/or conditions shall be considered; however, the decision of the Department shall be final.

6. F. Railroad Section 130 safety funds: On highway projects where railroad facilities are being impacted by highway construction, Section 130 funds shall not be used as a funding source unless the specific location of the rail/high facilities has been identified and included in an approved safety program by the State and FHWA. Exceptions may be projects where federal regulations that allow transfer of such funds have been considered and appropriate steps taken by the State and FHWA to allow their use. In all cases where railroad facilities are involved, early coordination between the Preliminary Engineering Bureau and the Railroads & Utilities Section shall be pursued so as to identify potential options for addressing conflicts and circumventing project delays.

   [3/10/71, 11/15/96; Recompiled 12/31/01]

   History of 17.4.2 NMAC: [RESERVED]