Use of Locomotive Horns at Highway-Rail Grade Crossings

SUMMARY: FRA is proposing rules to require that a locomotive horn be

sounded while a train is approaching and entering a public highway-rail

crossing. The proposed rules also provide for an exception to the above

requirement in circumstances in which there is not a significant risk

of loss of life or serious personal injury, use of the locomotive horn

is impractical, or supplementary safety measures fully compensate for

the absence of the warning provided by the horn. This rule is required

by law.

DATES: Written Comments: Comments must be received by May 26, 2000.

Comments received after that date will be considered to the extent

possible without incurring additional expense or delay.

Public Hearings: FRA will hold public hearings to receive oral

comments from interested parties. The dates and specific location of

hearings will be announced in a subsequent Federal Register document

and on FRA's web site at http://fra.dot.gov. Cities in which hearings

will be held are listed in ADDRESSES section below.

ADDRESSES: Written Comments: Anyone wishing to file a comment should

identify the FRA docket and notice numbers (Docket No. FRA-1999-6439,

Notice No.1). Comments should be sent to the Docket Management System,

U.S. Department of Transportation, room PL-401, 400 Seventh Street,

S.W., Washington, D.C. 20590-0001. Written comments will be available

for public review during regular business hours at the above address

and through the Internet at http://dms.dot.gov.

Public Hearings: Public hearings will be held in the following

cities: Los Angeles, California; Washington, D.C.; Ft. Lauderdale,

Florida; Chicago, Illinois; South Bend, Indiana; Berea, Ohio;

Pendleton, Oregon; and Boston, Massachusetts. The specific location and

date of each hearing will be announced in a subsequent Federal Register

document and on FRA's web site at http://fra.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120

Vermont Avenue, N.W., Washington, D.C. 20590 (telephone: 202-493-6299);

or Mark Tessler, Office of Chief Counsel, FRA, 1120 Vermont Avenue,

N.W., Washington, D.C. 20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION:

Background

Approximately 4,000 times per year, a train and highway vehicle

collide at one of this country's 262,000 public and private highway-

rail grade crossings. Of those crossings, more than 158,000 are public

at-grade crossings--those crossings in which a public road crosses

railroad tracks at grade. During the years 1994 through 1998, there

were 21,242 grade crossing collisions in the United States. These

collisions one of the greatest cause of death associated with

railroading, resulting in more than 400 deaths each year. For example,

in the 1994-1998 period, 2,574 people died in these collisions. Another

8,308 people were injured. Approximately 50 percent of collisions at

highway-rail intersections occur at those intersections equipped with

active warning devices such as bells, flashing lights, or gates

(approximately 62,000 crossings).

Compared to a collision between two highway vehicles, a collision

with a train is eleven times more likely to result in a fatality, and

five and a half times more likely to result in a disabling injury. The

average freight locomotive weighs between 140 and 200 tons, compared to

the average car weight of one to two tons. Many freight trains weigh in

excess of ten thousand tons. Any highway vehicle, even a large truck,

would be crushed when struck by a moving train. The laws of physics

compound the likelihood that a motor vehicle will be crushed in a

collision with a moving train. The train's weight, when combined with

the likelihood that the train will not be able to stop to avoid a

collision, results in severe injury or death in virtually every

collision (it takes a one-hundred car train traveling 30 miles per hour

approximately half a mile to stop--at 50 miles an hour that train's

stopping distance increases to one and a third miles).

FRA is responsible for ensuring that America's railroads are safe

for both railroad employees and the public. FRA shares with the public

the responsibility to confront the compelling facts surrounding grade

crossing collisions.

In 1990, as part of FRA's crossing safety program, the agency

studied the impact of train whistle bans (i.e., state or local laws

prohibiting the use of train horns or whistles at crossings) on safety

in Florida. (In this document the terms ``whistle'' and ``horn'' are

used interchangeably to refer to the air powered locomotive audible

warning device required to be installed on locomotives by 49 CFR

229.129, and to steam whistles required to be installed on steam

locomotives by 49 CFR 230.121. These terms do not refer to a locomotive

bell, which has value as a warning to pedestrians but which is not

designed to provide a warning over long distances.) FRA had previously

recognized the locomotive horn's contribution to rail safety by

requiring that lead locomotives be equipped with an audible warning

device, 49 CFR 229.129, and exempting the use of whistles from federal

noise emission standards ``when operated for the purpose of safety.''

49 CFR 210.3(b)(3). The Florida study, which is discussed below (and

which has been filed in the docket), documented how failing to use

locomotive horns can significantly increase the number of collisions.

A. Who Is at Risk in a Grade Crossing Collision?

Many people have argued that highway drivers who disobey the law

and try to beat a train through a crossing should not be protected at

the expense of the peace and quiet of communities that parallel

railroad tracks. FRA strongly agrees that drivers who unlawfully enter

grade crossings should be fined by local police, but death or serious

injury is simply not a just penalty.

Overlooked in this emotional debate are the many innocent victims

of crossing collisions, including blameless automobile and railroad

passengers and railroad crews who, despite performing their duties

correctly, are usually unable to avoid the collisions. Nationally, from

1994 to 1998, eight railroad crewmembers died in collisions at highway-

rail crossings, and 570 crewmembers were injured. Two hundred railroad

passengers were also injured and two died. In Bourbonnais, Illinois,

earlier this year, eleven innocent passengers died in their sleeper car

following a collision with a truck at a highway-rail crossing. In

addition, since approximately one-half of all collisions occur at grade

crossings that are not fully equipped with warning devices, some of the

drivers involved in these collisions may have been unaware of the

approaching train.

Property owners living near railroad rights-of-way can also be at

risk. For example, on December 1, 1992, in Hiebert, Alabama, a freight

train collided with a lumber truck. Three

[[Page 2231]]

locomotives and nine rail cars were derailed, releasing 10,000 gallons

of sulfuric acid into a nearby water supply. Residents living near the

derailment site had to be evacuated because of the chemical spill. Even

where the locomotive consist is not derailed in the initial collision

with the highway vehicle, application of the train's emergency brake

can result in derailment and harm to persons and property along the

right-of-way.

Law-abiding motorists can also be endangered in crossing

collisions. On March 17, 1993, an Amtrak train collided with a tanker

truck in Fort Lauderdale, Florida. Five people died when 8,500 gallons

of burning fuel from the tanker truck engulfed cars waiting behind the

crossing gates.

Highway passengers can also be innocent victims. On December 14,

1995, in Ponchatoula, Louisiana, five people were killed when their

truck was hit by an Amtrak train. Among the dead were three children

who were passengers in the truck.

In making a decision on the use of locomotive horns, all of the

competing interests must be reasonably considered. Those whose

interests will be affected by this rule include those who may be

disturbed by the sounding of locomotive horns and all of those who may

suffer in the event of a collision; pedestrians using the crossing; the

motor vehicle driver and passengers, those in adjacent vehicles, train

crews, and those living or working nearby.

B. FRA's Study of the Florida Train Whistle Ban

Effective July 1, 1984, Florida authorized local governments to ban

the nighttime use of whistles by intrastate trains approaching highway-

rail grade crossings equipped with flashing lights, bells, crossing

gates, and highway signs that warned motorists that train whistles

would not be sounded at night. Fla. Stat. Sec. 351.03(4)(a) (1984).

After enactment of this Florida law, many local jurisdictions passed

whistle ban ordinances.

In August 1990, FRA issued a study of the effect of the Florida

train whistle ban up to the end of 1989. The study compared the number

of collisions at crossings subject to bans with four control groups.

FRA was trying to determine the impact of the whistle bans and to

eliminate other possible causes for any increase or decrease in

collisions.

Using the first control group, FRA compared collision records for

time periods before and during the bans. FRA found there were almost

three times more collisions after the whistle bans were established, a

195 percent increase. If collisions continued to occur at the same rate

as before the bans began taking effect, it was estimated that 49 post-

ban collisions would have been expected. However, 115 post-ban

collisions occurred, leaving 66 crossing collisions statistically

unexplained. Nineteen people died and 59 people were injured in the 115

crossing collisions. Proportionally, 11 of the fatalities and 34 of the

injuries could be attributed to the 66 unexplained collisions.

In the second control group, FRA found that the daytime collision

rates remained virtually unchanged for the same highway-rail crossings

where the whistle bans were in effect during nighttime hours.

The third control group showed that nighttime collisions increased

only 23 percent along the same rail line at crossings with no whistle

ban.

Finally, FRA compared the 1984 through 1989 accident record of the

Florida East Coast Railway Company (FEC), which, because it was

considered an ``intrastate'' carrier under Florida law, was required to

comply with local whistle bans, with that of the parallel rail line of

interstate carrier, CSX Transportation Company (CSX), which was not

subject to the whistle ban law. By December 31, 1989, 511 of the FEC's

600 gate-equipped crossings were affected by whistle bans. Collision

data from the same period was available for 224 similarly equipped CSX

crossings in the six counties in which both railroads operate. As noted

above, FRA found that FEC's nighttime collision rate increased 195

percent after whistle bans were imposed. At similarly equipped CSX

crossings, the number of collisions increased 67 percent.

On July 26, 1991, FRA issued an emergency order to end whistle bans

in Florida. Notice of that emergency order (Emergency Order No. 15) was

published in the Federal Register at 56 FR 36190. FRA is authorized to

issue emergency orders where an unsafe condition or practice creates

``an emergency situation involving a hazard of death or injury.'' 49

U.S.C. 20104. FRA acted after updating its study with 1990 and initial

1991 collision records and finding that another twelve people had died

and thirteen were injured in nighttime collisions at whistle ban

crossings. During this time, a smaller study, conducted by the Public

Utility Commission of Oregon, corroborated FRA's findings and led to

the cessation of state efforts to initiate a whistle ban in Oregon.

FRA's emergency order required that trains operated by the FEC

sound their whistles when approaching public highway-rail grade

crossings. This order preempted state and local laws that permitted the

nighttime ban on the use of locomotive horns.

Twenty communities in Florida petitioned for a review of the

emergency order. During this review, FRA studied other potential causes

for the collision increase. FRA's closer look at the issue strengthened

the conclusion that whistle bans were the likely cause of the increase.

For example, FRA subtracted collisions that whistles probably would

not have prevented from the collision totals. Thirty-five collisions

where the motor vehicle was stopped or stalled on the crossing were

removed from the totals. Eighteen of these collisions occurred before

and 17 were recorded during the bans. When these figures were excluded,

the number of collisions in the pre-ban period changed from 39 to 21,

and the number of collisions in the post-ban period decreased from 115

to 98. Collisions which whistles could have prevented, therefore,

totaled 98 collisions as compared to 21 collisions in the pre-ban

period; this represents a 367 percent increase, compared to the 195

percent increase initially calculated.

Similarly, if collisions where the motor vehicle hit the side of

the train were also excluded (nine in the pre-ban period and 26 in the

post-ban period) as being unlikely to have been prevented by train

whistles, the pre-ban collision count became 12 versus 72 in the

whistle ban period. The increase in collisions caused by the lack of

whistles then became 500 percent.

FRA's data, however, showed that, before the ban, highway vehicles

on average, struck the sides of trains at the 37th train car behind the

locomotive. After the ban took effect, 26 vehicles struck trains, and

on average, struck the twelfth train car behind the locomotive. This

indicated that motor vehicles are more cautious at crossings if a

locomotive horn is sounding nearby. Before the whistle bans, highway

vehicles tended to hit the side of the train after the whistling

locomotive had long passed through the crossing. After the ban took

effect, highway traffic hit the train much closer to the now silent

locomotive--at the 12th car. The number of motor vehicles hitting the

sides of trains also increased nearly threefold after the ban was

established.

FRA also considered collisions involving double tracked grade

crossings where two trains might approach at the same time. Since a

driver's view of the second train might be blocked, hearing the second

train's whistle could be the only warning

[[Page 2232]]

available to an impatient driver. FRA's Florida study found the number

of second train collisions for the pre-ban period was zero, while four

were reported for the period the bans were in effect.

Several Florida communities asked whether train speed increased

collisions. FRA research has well established, as discussed below, that

train speed is not a factor in determining the likelihood of a traffic

collision at highway-rail crossings equipped with active warning

devices that include gates and flashing lights. Speed, however, is a

factor in determining the severity of a collision.

FRA also considered population growth in Florida, but found it was

not a factor. Day time collision rates were not increasing at the very

same crossings that had whistle bans at night. If population was a

factor, then the day time numbers should have increased dramatically as

well. FRA also reviewed the number of fatal highway collisions, and

registered drivers and motor vehicles and found no increases that

either paralleled or explained the rise in night time crossing

collisions.

In the first two years after July 1991, when FRA issued its

emergency order prohibiting whistle bans in Florida, collision rates

dropped dramatically to pre-ban levels. In the two years before the

emergency order, there were 51 nighttime collisions. In the two years

after, there were only 16. Daytime collisions dropped slightly from 34

collisions in the two years before the emergency order, to 31 in the

following two years.

C. FRA's Nationwide Study of Train Whistle Bans

FRA's Florida study raised the concern that whistle bans could be

increasing collisions in other locations. Given the wide difference

between grade crossing conditions from one community to another, FRA

did not assume that the Florida results would be true at every whistle

ban crossing. FRA began a nationwide effort to locate grade crossings

subject to whistle bans and study collision information for those

crossings. The Association of American Railroads (AAR) joined the FRA

in that effort.

The AAR surveyed the rail industry and found 2,122 public grade

crossings subject to whistle bans for some period of time between

January 1988 and June 30, 1994. This total did not include the 511

public crossings that were subject to whistle bans in Florida that FRA

had already studied. The study also did not include crossings on small,

short line railroads, which did not report to the AAR. The nationwide

survey found whistle bans in 27 states that affected 17 railroads. FRA

studied collisions occurring between January 1988, and June 30, 1994.

Two thousand and four of the crossings were subject to 24-hour

whistle bans. Another 118 grade crossings were subject to nighttime-

only bans. The states with the largest number of whistle ban crossings

were Illinois, Wisconsin, Kentucky, New York, and Minnesota. More than

half of the crossings were on three railroads: CSX, Consolidated Rail

Corporation (Conrail), and Soo Line. A report covering the nationwide

study was issued in April 1995. FRA found that whistle ban crossings

averaged 84 percent more collisions than similar crossings with no

bans. There were 948 collisions at whistle ban crossings during the

period studied. Sixty-two people died in those collisions and 308 were

injured. Collisions occurred on every railroad with crossings subject

to whistle bans, and in 25 of the 27 states where bans were in effect.

Since the 1995 study, FRA has continued to analyze relevant data.

Over the period of 1992-1996, there were 793 collisions at 2,366

crossings subject to whistle bans. These collisions resulted in the

fatalities and injuries displayed in Table 1, as well as more than $2

million in motor vehicle damages.

Table 1.--Collision Injuries and Fatalities by Type of Person Involved

------------------------------------------------------------------------

Type of person involved Injuries Fatalities

------------------------------------------------------------------------

Motorist........................................ 258 56

Pedestrian...................................... 17 41

Railroad employee............................... 56 0

------------------------------------------------------------------------

The types of collisions which took place at whistle ban crossings

are shown in Table 2. It is interesting to note that the mean train

speed (train speed is positively correlated with fatalities) varies by

type of collision. Please note that the number of fatalities shown for

category ``hit by second train'' are included in the other categories

(97 fatalities).

Table 2.--Type of Collision

----------------------------------------------------------------------------------------------------------------

Mean train

Type of collision Injuries Fatalities speed

----------------------------------------------------------------------------------------------------------------

Motor vehicle struck train...................................... 51 8 15.5

Train struck motor vehicle...................................... 224 89 25.4

Hit by second train............................................. 11 5 28.5

----------------------------------------------------------------------------------------------------------------

The driver was killed in the collision in 42 instances (5.3% of

collisions), the remaining 55 fatalities were either passengers or

pedestrians. The driver passed standing vehicles to go over the

crossing in 37 of the collisions (4.7%). The driver was more likely to

be killed when moving over the crossing at the time of the collision

(35 of the driver fatalities), rather than when the vehicle was stopped

or stalled at the crossing, and in most of the collisions (69.9%) at

whistle-ban crossings the driver was moving over the crossing.

Additionally, in almost every collision (97%), a warning device (either

active or passive) was located on the vehicle's side of the crossing.

This supports the theory that the warning given by the train horn could

deter the motorist from entering the crossing.

Collisions which took place when the motorist was moving over the

crossing were more likely to be fatal (72% of the fatalities). This

type of collision was also more likely to result in injury with 209 of

the 258 motorist injuries occurring under these circumstances. These

are the types of collisions the proposed rule is designed to prevent.

Motorists that fail to notice or heed the warning devices in place at a

crossing may be deterred by the sound of a train horn. The motorist is

also given information by the horn about the proximity, speed, and

direction of the train.

Collisions occurred on every railroad with crossings subject to

whistle bans, and in 25 of the 27 states where bans were in effect.

FRA's study indicated that the installation of automatic traffic

gates at crossings with whistle bans was more than twice the national

average. Forty percent of the whistle ban crossings had gates compared

to 17 percent nationally.

[[Page 2233]]

FRA found 831 crossings where whistle sounding had at one time been

in effect, but where the practice had changed during the January 1988

through June 1994 study period. In 87 percent of the cases, bans were

no longer in effect. A ``before-and-after'' analysis comparing

collision rates showed an average of 38 percent fewer collisions when

whistles were sounded indicating that whistles had a .38 effectiveness

rate in reducing collisions. This finding paralleled the Florida

experience.

FRA also rated whistle ban grade crossings according to an

``Accident Prediction Formula.'' The formula predicts the statistical

likelihood of having a collision at a given highway-rail grade

crossing. The physical characteristics of each crossing were considered

in the formula, including the number of tracks and highway lanes, types

of warning devices, urban or rural location, and whether the roadway

was paved. Also considered were operational aspects, such as, the

number of highway vehicles, and the number, type, time of day, and

maximum speed of trains using the crossing. The formula was developed

using data from thousands of collisions spanning many years. FRA then

ranked the 167,000 public crossings in the national inventory at that

time in an identical manner. Both the whistle ban crossings and the

national inventory crossings were then placed into one of ten groups

ranging from low-risk to high-risk.

FRA compared the number of collisions occurring within each of the

ten groups of crossings, over a five year period from 1989 through

1993, and found that for nine out of the ten risk groups, the whistle

ban crossings had significantly higher collision rates than the

crossings with no whistle bans. On average, the risk of a collision was

found to be 84 percent greater at crossings where train horns were

silenced. Another way to interpret this difference would be to say that

locomotive horns had a .46 effectiveness rate in reducing the rate of

collisions.

FRA was concerned about the higher risk disclosed by the nationwide

study. From its vantage point, FRA was able to see the elevated risk

associated with whistle bans, which might not be apparent to local

communities. While crossing collisions are infrequent events at

individual crossings, the nationwide study, and the experience in

Florida, showed they were much less infrequent when train horns were

not sounded.

FRA conducted an outreach program in order to promptly share this

information with all communities where bans were in effect. In addition

to issuing press releases and sending informational letters to various

parties, FRA met with community officials and participated in town

meetings. Along with the study's findings, information about the

upcoming rule requiring the sounding of train horns was presented,

including provisions for supplementary safety measures that could be

implemented by communities to compensate for silenced train horns and

allow bans to remain in effect.

From the outreach effort, FRA gained a clearer understanding of

local concerns and issues. Many of those concerns were expressed in

person and others were submitted in writing to FRA's whistle ban

docket. Another result of the outreach effort was the identification of

664 additional crossings that were subject to whistle bans, but not

included in the nationwide study. About 95 percent of these were

located in the city and suburbs of Chicago, Illinois. Many carry a high

volume of commuter rail traffic.

Recently, FRA updated its analysis of the safety at whistle ban

crossings, expanding it to include data for all the Chicago area

crossings as well as for a few other newly identified locations.

BILLING CODE 4910-06-P

[[Page 2234]]

[GRAPHIC] [TIFF OMITTED] TP13JA00.000

BILLING CODE 4910-06-C

FRA also refined its procedure by conducting separate analyses for

three different categories of warning devices in place at the crossings

(e.g., automatic gates with flashing lights, flashing lights or other

active devices without gates, and passive devices, such as

``crossbucks'' or other signs). In addition, FRA excluded from the

analysis certain collisions where the sounding of the train horn would

not have been a deterrent to the collisions. These included cases where

there was no driver in the vehicle and collisions where the vehicle

struck the side of the train beyond the fourth locomotive unit (or

railcar). FRA also excluded events where pedestrians were struck.

Pedestrians, compared to vehicle operators, have a greater opportunity

to see and recognize an approaching train because they can look both

ways from the edge of the crossing. They can also stop or reverse their

direction more quickly than a motorist if they have second thoughts

about crossing safely.

Data for the five-year time period from 1992 through 1996 was used

for the updated analysis in place of the older data of the 1995

Nationwide Study. For the updated analysis, the collision rate for

whistle ban crossings in each device category was compared to similar

crossings in the national inventory using the ten range risk level

method used in the original study.

The analysis showed that an average of 62 percent more collisions

occurred at whistle ban crossings equipped with automatic gates and

flashing lights than at similarly equipped crossings across the nation

without bans. FRA will use this value as the increased risk associated

with whistle bans instead of the 84 percent cited in the Nationwide

Study of Train Whistle Bans released in April 1995. FRA believes that

62 percent is appropriate because it represents the elevated risk

associated with crossings with automatic gates and flashing lights,

which are the only category of crossings that will be eligible for

``quiet zones'' (except for certain crossings where train speeds do not

exceed 15 miles per hour).

The updated analysis also indicated that whistle ban crossings

without gates, but equipped with flashing light signals and/or other

types of active warning devices, on average, experienced 119 percent

more collisions than similarly equipped crossings without whistle bans.

This finding made it clear that the train horn was highly effective in

deterring collisions at non-gated crossings equipped only with flashing

lights. The only exception to this finding was in the Chicago area

where collisions were 16 percent less frequent. This is a puzzling

anomaly. One possible explanation for this result is that more than 200

crossings (approximately one third of the crossings in Chicago) still

included in the DOT/AAR National Inventory have in all likelihood been

closed. They would continue to be included in the Inventory until

reported closed by state or railroad officials. (At this time

submission of grade crossing inventory data to FRA is voluntary on the

part of states and railroads.) FRA believes this could contribute to

the low collision count for Chicago area crossings without gates.

Collisions cannot occur at crossings that have been closed. The

retention of closed crossings in the inventory would, therefore, have

the effect of incorrectly reducing the calculated collision rate for

the Chicago area crossings.

In comparing the collision differences at crossings with gates and

those without gates, FRA found that about 55 percent of the collisions

at crossings with gates occurred when motorists deliberately drove

around lowered gates. These collisions occurred 128 percent more often

at crossings with

[[Page 2235]]

whistle bans than at other crossings. Another 18 percent of the

collisions occurred while motorists were stopped on the crossings,

probably waiting for vehicles ahead to move forward. There were smaller

percentages of collisions involving stalled and abandoned vehicles.

Suicides are not included in the collision counts. At crossings

equipped with flashing signal lights and/or other active warning

devices, but not gates, collisions occurred 119 percent more often at

crossings subject to bans. A distinction should be made between the two

circumstances. In the case of lowered gates, it is the motorist's

decision to circumvent a physical barrier to take a clearly unsafe and

unlawful action that can result in a collision. However, in the case of

crossings with flashing light signals and/or other active devices,

collisions may be more the result of a motorist's error in judgement

rather than a deliberate violation of the state's motor vehicle laws.

The ambiguity of flashing lights at crossings, which in other traffic

control situations indicate that the motorist may proceed after

stopping, when safe to do so, coupled with the difficulty of correctly

judging the rate of approach of a large object such as a locomotive,

may contribute to this phenomenon. FRA's collision data show that the

added warning provided by the train horn is most critical at crossings

without gates but which are equipped with other types of active warning

devices.

By separating crossings according to the different categories of

warning devices installed, FRA has been better able to identify the

level at which locomotive horns increase safety at gated crossings and

thus the level at which substitutes for the horn must be effective in

order to fully compensate for the lack of a horn at those crossings.

For crossings with passive signs as the only type of warning

device, the updated study indicated an average of 27 percent more

collisions for crossings subject to whistle bans. This is the smallest

difference identified between crossings with and without whistle bans.

These crossings account for about one fourth of the crossings with

whistle bans. Typically, they are the crossings with the lowest

aggregate risk of collision because the installation of active warning

devices usually follows a sequence where the highest risk crossings are

equipped first. Two determinants of crossing risk are the amount of

train traffic and highway traffic at a crossing. Often, crossings with

only passive warning devices are located on seldom used sidings and

industrial tracks and/or on highways with relatively low traffic

levels. FRA believes this may be the reason that the difference in the

numbers of collisions at whistle ban and non-ban crossings is so much

less than for the other crossing categories. For crossings with passive

warnings where trains do not exceed 15 miles per hour and where

railroad personnel use flags to warn motorists of the approach of a

train, whistle bans would entail a small risk of a collision resulting

in an injury. However, at crossings with passive warnings and with

higher train speeds, motorists would have no warning of the approach of

a train if the train horn were banned. At such crossings, in order to

ensure their safety, motorists must search for and recognize an

approaching train, and then visually judge whether it is moving, and if

so, estimate its arrival time at the crossing, all based only on visual

information which may be impaired by hills, structures, vegetation,

track curvature, road curvature as well as by sun angle, weather

conditions, or darkness. The driver's decision to stop must be made at

a point sufficiently in advance of reaching the crossing to accommodate

the vehicle's stopping distance. If other vehicles are following, a

sudden decision to stop could result in a rear-end collision with the

vehicle being pushed into the path of the train. While FRA's data

indicates that the smallest increase in collision frequency is

associated with whistle bans at passive crossings, logic suggests that

the banning of train horns at passive crossings could entail a much

more significant safety risk per unit of exposure (vehicle crossings

per train movement). Without the audible train horn warning, motorists

would have no indication of the imminent arrival of a train beyond what

they could determine visually. For motorists unfamiliar with whistle

bans who encounter passive crossings where horns are not sounded, there

would be an even greater risk.

The conclusions drawn from the 1995 Nationwide Study and its recent

update have helped determine the requirements of this rule. FRA

appreciates the assistance and cooperation of the many organizations

and individuals who contributed to this effort by reporting whistle ban

locations, compiling data, researching ordinances, and sharing their

concerns, ideas, and opinions.

D. Congressional Action

After reviewing FRA's Florida study, Congress addressed the issue.

On November 2, 1994, Congress passed the Swift Rail Development Act,

Public Law 103-440 (``Act'') which added section 20153 to title 49 of

the United States Code. The Act requires the use of locomotive horns at

grade crossings, but gives FRA the authority to make reasonable

exceptions. Section 20153 of title 49 of the United States Code states

as follows:

``Sec. 20153. Audible warning at highway-rail grade crossings.

``(a) DEFINITIONS.--As used in this section--

``(1) The term ``highway-rail grade crossing'' includes any street

or highway crossing over a line of railroad at grade;

``(2) The term ``locomotive horn'' refers to a train-borne audible

warning device meeting standards specified by the Secretary of

Transportation; and

``(3) The term ``supplementary safety measure'' refers to a safety

system or procedure, provided by the appropriate traffic control

authority or law enforcement authority responsible for safety at the

highway-rail grade crossing, that is determined by the Secretary to be

an effective substitute for the locomotive horn in the prevention of

highway-rail casualties. A traffic control arrangement that prevents

careless movement over the crossing (e.g., as where adequate median

barriers prevent movement around crossing gates extending over the full

width of the lanes in the particular direction of travel), and that

conforms to standards prescribed by the Secretary under this

subsection, shall be deemed to constitute a supplementary safety

measure. The following do not, individually or in combination,

constitute supplementary safety measures within the meaning of this

subsection: standard traffic control devices or arrangements such as

reflectorized crossbucks, stop signs, flashing lights, flashing lights

with gates that do not completely block travel over the line of

railroad, or traffic signals.

``(b) REQUIREMENT.--The Secretary of Transportation shall prescribe

regulations requiring that a locomotive horn shall be sounded while

each train is approaching and entering upon each public highway-rail

grade crossing.

``(c) EXCEPTION.--(1) In issuing such regulations, the Secretary

may except from the requirement to sound the locomotive horn any

categories of rail operations or categories of highway-rail grade

crossings (by train speed or other factors specified by regulation)--

``(A) That the Secretary determines not to present a significant

risk with respect to loss of life or serious personal injury;

``(B) For which use of the locomotive horn as a warning measure is

impractical; or

``(C) For which, in the judgment of the Secretary, supplementary

safety measures fully compensate for the

[[Page 2236]]

absence of the warning provided by the locomotive horn.

``(2) In order to provide for safety and the quiet of communities

affected by train operations, the Secretary may specify in such

regulations that any supplementary safety measures must be applied to

all highway-rail grade crossings within a specified distance along the

railroad in order to be excepted from the requirement of this section.

``(d) APPLICATION FOR WAIVER OR EXEMPTION.--Notwithstanding any

other provision of this subchapter, the Secretary may not entertain an

application for waiver or exemption of the regulations issued under

this section unless such application shall have been submitted jointly

by the railroad carrier owning, or controlling operations over, the

crossing and by the appropriate traffic control authority or law

enforcement authority. The Secretary shall not grant any such

application unless, in the judgment of the Secretary, the application

demonstrates that the safety of highway users will not be diminished.

``(e) DEVELOPMENT OF SUPPLEMENTARY SAFETY MEASURES.--(1) In order

to promote the quiet of communities affected by rail operations and the

development of innovative safety measures at highway-rail grade

crossings, the Secretary may, in connection with demonstration of

proposed new supplementary safety measures, order railroad carriers

operating over one or more crossings to cease temporarily the sounding

of locomotive horns at such crossings. Any such measures shall have

been subject to testing and evaluation and deemed necessary by the

Secretary prior to actual use in lieu of the locomotive horn.

``(2) The Secretary may include in regulations issued under this

subsection special procedures for approval of new supplementary safety

measures meeting the requirements of subsection (c)(1) of this section

following successful demonstration of those measures.

``(f) SPECIFIC RULES.--The Secretary may, by regulation, provide

that the following crossings over railroad lines shall be subject, in

whole or in part, to the regulations required under this section:

``(1) Private highway-rail grade crossings.

``(2) Pedestrian crossings.

``(3) Crossings utilized primarily by nonmotorized vehicles and

other special vehicles.

``(g) ISSUANCE.--The Secretary shall issue regulations required by

this section pertaining to categories of highway-rail grade crossings

that in the judgment of the Secretary pose the greatest safety hazard

to rail and highway users not later than 24 months following the date

of enactment of this section. The Secretary shall issue regulations

pertaining to any other categories of crossings not later than 48

months following the date of enactment of this section.

``(h) IMPACT OF REGULATIONS.--The Secretary shall include in

regulations prescribed under this section a concise statement of the

impact of such regulations with respect to the operation of section

20106 of this title (national uniformity of regulation).

``(i) REGULATIONS.--In issuing regulations under this section, the

Secretary--

``(1) Shall take into account the interest of communities that--

(A) Have in effect restrictions on the sounding of a locomotive

horn at highway-rail grade crossings; or

(B) Have not been subject to the routine (as defined by the

Secretary) sounding of a locomotive horn at highway-rail grade

crossings;

``(2) Shall work in partnership with affected communities to

provide technical assistance and shall provide a reasonable amount of

time for local communities to install supplementary safety measures,

taking into account local safety initiatives (such as public awareness

initiatives and highway-rail grade crossing traffic law enforcement

programs) subject to such terms and conditions as the Secretary deems

necessary, to protect public safety; and

``(3) May waive (in whole or in part) any requirement of this

section (other than a requirement of this subsection or subsection (j))

that the Secretary determines is not likely to contribute significantly

to public safety.

``(j) EFFECTIVE DATE OF REGULATIONS.--Any regulations under this

section shall not take effect before the 365th day following the date

of publication of the final rule.'' The last two subsections of section

20153 were added on October 9, 1996 when section 20153 was amended by

Public Law 104-264.

E. Rulemaking

When conducting a rulemaking, FRA must follow the Administrative

Procedure Act (5 U.S.C. 553 et seq.) (APA). The APA generally requires

that FRA allow all interested parties to review and comment on any

proposed rule. Thus, by this notice, FRA is providing the public an

opportunity to study the proposed rule and comment on it. Based on

comments and testimony provided in response to this notice, FRA will,

after the close of the comment period, determine what action to take.

There are two ways for you to share with FRA your opinions,

experience or information about locomotive horns. First, the FRA can

receive letters and other written remarks or reports. FRA places all of

these comments in one place, the rulemaking docket. Please include the

docket number on all comments submitted in response to this notice. The

docket number for this rulemaking is ``Docket Number FRA-1999-6439.''

All written comments are placed in the docket, including scientific and

technical reports on which FRA substantially relied when preparing the

proposed rule. For example, the docket for this rulemaking includes,

among many documents, copies of FRA's Florida and nationwide whistle

ban studies. The public is free to inspect the rulemaking docket during

regular business hours at the address listed above. Additionally, all

documents in the docket are now available online at http://dms.dot.gov.

The second way to make a comment on this rulemaking is to attend

one of the scheduled public hearings. The hearings will provide

interested parties an opportunity for an oral presentation. FRA will

have a court reporter record each public hearing and will place a copy

of the transcript of each hearing into the docket. FRA will review all

written comments and testimony provided in the public hearings.

F. Comments Received by FRA

Because of the great interest in this subject throughout various

areas of the country, FRA has been involved in an extensive outreach

program to inform those communities which presently have whistle bans

of one type or another in effect. FRA staff has attended a large number

of meetings with local officials and citizens. FRA has also held a

number of public meetings to discuss the issues and to receive

information from the public. FRA broke from tradition and established a

public docket before formal initiation of rulemaking proceedings in

order to enable citizens and local officials to comment on how FRA

might implement the Act and to provide insight to FRA. Establishment of

the docket also enabled members of the public to learn what other

interested parties thought about this subject. The vast majority of

commenters were in favor of quiet zones in their communities. A number

were in favor of the use of four-quadrant gates at affected crossings,

while one person favored the less expensive articulated gates rather

than four-quadrant gates. Some commenters indicated how they

[[Page 2237]]

think the Act should be amended. Of course, new legislative enactments

are beyond the scope of this rulemaking, and FRA must implement the law

as it now reads.

Some commenters expressed the belief that state and localities were

best suited to make the decisions regarding exemptions from the

requirement that trains sound horns at crossings. A representative of

the City of Portland, Maine wants the Act amended to empower the

appropriate transportation agency for each state to grant local

municipalities exemptions, since these officials ``are better able to

properly assess the merits of any local community request for such a

waiver.'' Examples of such exemptions that would be appropriate,

according to this official, would be cases where the crossings are

adequately protected, train speeds are no more than 30 miles per hour

and vehicle speed is 35 miles per hour or less. This commenter also

stated that all crossings which are flagged by the train crews or where

the train crew activates the crossing signal should be exempt from

locomotive horns. Similarly, the Maine Department of Transportation

believes that ``the State's regulatory process should be retained under

any rules proposed * * *.'' The state requests that an exception under

the Act be granted to those states which, either by an adjudicatory

process or by rulemaking, permit train whistling to be discontinued.

The Chairman of the Board of Selectmen of the town of Acton,

Massachusetts expressed strong opposition to the return of locomotive

horns, and urged that FRA issue regulations ``so that each state could

make its own determination as to the appropriate level of safety

devices needed at each grade crossing.'' Similarly, a Wisconsin state

representative requests that FRA ``empower states with the available

expertise, such as Wisconsin's Office of the Commissioner of Railroads,

to make their own rules. The states, better than the federal

government, know the local conditions and have contact with the

citizens who are represented directly in the State Legislature.'' This

same legislator closed his comment by stating that ``I hope this letter

reaches a human being who will read it and I hope it will go to a

deliberative body who truly cares about the true needs of our

citizens.'' FRA wishes to assure the writer, and the public generally,

that indeed we do care about the needs of our citizens. In addition to

the citizens who may be disturbed by locomotive horns, we are concerned

about the safety of the driver of a car at a grade crossing, the

driver's innocent passengers, members of train crews, as well as nearby

residents who may be injured by collisions at crossings. The intent of

this rule is to help provide for safe grade crossings without unduly

burdening nearby residents.

A number of commenters felt that costs associated with alternative

safety measures should be borne by parties other than the local or

state government. A Massachusetts state senator stated that FRA should

require the railroad to assume the costs associated with two crossings

in his town. An organization of bed and breakfast owners in Vicksburg,

Mississippi objected to what they described as ``intense noise'' from

local trains. The group urged that FRA ``adopt a liberal policy

permitting alternative grade crossing safety devices that would

eliminate the need for the train horns.'' The group added, ``Of course,

a financial assistance program to accomplish these alternatives is also

essential.'' The Town of Ashland, Massachusetts argues that the

railroad's cost of doing business should not be transferred to the town

and taxpayers. ``Responsibility for this [measures to minimize

disruption caused by these crossings] must be put squarely on the

operators of the railroad. * * *''

Two commenters have raised the issue as to whether rural and urban

areas should be treated in the same manner. One commenter stated that

``the Act no doubt should apply in full force to rural sections of

America, but such provisions are quite out of line with the logical

treatment of those areas of the land where the population is far

heavier.'' Another commenter urged FRA to establish maximum decibel

levels for locomotive horns which ``should be considerably lower in

urban areas than in sparsely populated rural areas.''

Various commenters have proposed that specific provisions be

contained in FRA's regulations. One commenter proposes that the

regulation be waived for any crossing within 300 yards of a residence.

Many commenters expressed the view that many communities with

present whistle bans have excellent safety records and therefore

sounding of locomotive horns will only disrupt residents' lives with no

real impact on safety. The city attorney for Bellevue, Iowa indicated

that the railroad tracks run down the center of a main street in the

city. He points out that slow train speed, locomotives equipped with

ditch lights, stop signs at crossings, and the sounding of the

locomotive bell all have contributed to only 5 collisions, one injury,

and no fatalities in almost 7 years of train traffic averaging 8 trains

a day. He claims that locomotive horns along the 15 crossings in town

will have a minimal affect on safety, but will have a maximum effect on

the quality of life of most of Bellevue's residents. Similarly, the

mayor of Batavia, Illinois indicated that because the city has a good

rail safety record, the ``whistle blowing standards that have been set

forth in this Act are not necessitated and would cause unnecessary

discomfort to our constituency.'' These commenters, along with others,

recommend that a community's safety record be a factor in determining

whether locomotive horns need to be sounded.

FRA has received many comments from Chicago area municipal groups

representing suburban areas in which, for the most part, locomotive

horns are not routinely sounded. The Chicago Area Transportation Study

conducted by the Council of Mayors states that it represents over 200

cities and villages with over 4 million residents outside of Chicago.

The study authors recommended that FRA's regulations include provisions

for: (1) Accident reduction programs tailored to the magnitude and type

of accident experience at individual crossings; (2) recognition of the

effectiveness of enhanced enforcement of existing rail safety laws and

public education programs; (3) use of less costly physical barriers

such as flexible median delineator tubes and articulated railroad

crossing gates; (4) use of strobe lights and more visible paint schemes

on locomotives and cab car fronts and reflective delineators on the

sides of railroad cars; and (5) exemptions from locomotive horns if a

community or subregion's accident experience is under a specified

threshold. These proposals were echoed by the West Central Municipal

Conference and the West Suburban Mass Transit District, both of

suburban Chicago.

Another association of suburban Chicago local governments, the

DuPage [County] Mayors and Managers Conference, emphasized the large

number of rail lines, large number of daily train movements and high

volume of pedestrian and motor vehicle movements over area grade

crossings. The Conference pointed out that the citizens have grown to

rely on locomotive horns in cases of impending danger, not for warning

of the routine approach of a train. The Conference indicates a downward

trend in grade crossing collisions over the past ten years, and

attributes a significant portion of that decline to stepped-up law

enforcement efforts by municipalities and more focused public

[[Page 2238]]

awareness programs. Rather than providing for engineering improvements

to decrease collisions at crossings, the Conference recommends that a

community or subregion be exempt from both locomotive horn soundings

and the requirement to install supplementary safety measures if the

area's collision experience is under a specified threshold. The

Conference states support for aggressive enforcement and education

programs as well as less costly physical barriers such as flexible

median delineator tube. The Conference is also in favor of a state-

level oversight mechanism, rather than federal oversight, ``given the

already close working relationship that must exist between state

highway and rail-related agencies.''

FRA particularly appreciates the efforts of Members of Congress who

have invited FRA to their districts and have provided citizens and

local officials with the opportunity to express their views on this

rulemaking process. These exchanges, and others conducted directly

through FRA's regional crossing managers, have been very valuable in

identifying the need for flexibility in preparing the proposed rule.

In the Chicago region, Rep. Henry Hyde of Illinois chaired a public

meeting attended by the FRA Administrator, with participation by other

Members of Congress and a number of public witnesses. Rep. William

Lipinski also convened a district meeting with the Administrator in

attendance that permitted a full airing of community concerns. These

Chicago-area forums called attention to the large number of commuter

and freight trains that would be required to sound horns along rail

lines where many of the engineering concepts embodied in E.O. 15 would

be difficult or impossible to implement, without substantial revision.

Representatives from DuPage County proposed the concept of aggregating

and abating risk by corridor rather than by crossing, a concept

embodied in this proposal. Concerns were raised by an association of

local governments regarding the identification of crossings currently

impacted by informal bans on train horns, and those concerns led to an

extensive data collection effort to complete the identification of

impacted communities and re-analyze the accident data in light of this

new information. Although most witnesses opposed any rulemaking in this

area, a DuPage County citizen group formed to promote highway-rail

crossing safety supported the use of train horns.

Senior FRA staff members also joined Rep. Tim Roemer and officials

from the State Department of Transportation in meetings with city

officials and citizens from South Bend and Mishawaka, Indiana, to

consider the implications of the forthcoming rulemaking on those

communities, where whistle bans are in place over most crossings.

Concern was expressed that residents along the railroad would have to

``pay the price'' for violation of warning systems by individual

motorists. Serious crashes had occurred along the Conrail line that

bisects these cities, and options were reviewed for making improvements

that might offset the train horn. Cost was identified as a critical

issue for the local governments.

The office of Senator Edward Kennedy convened a meeting involving

FRA senior staff early in the agency's outreach effort that was

attended by several elected officials, who expressed concern over the

prospective rulemaking. Senior FRA staff members attended separate

district meetings in Massachusetts convened by Rep. Martin Meehan and

Rep. John Tierney. These congressional districts are significantly

impacted by scheduled commuter service. Residents and officials called

attention to the generally good safety record at local crossings and

the incompatibility of train horns with the quiet of their communities.

Concern was also expressed regarding the public health effects of loud

train horns and the cost of supplementary safety measures.

Citizens and officials involved in several of these contacts

expressed concern that the proposed rule would impose ``unfunded

mandates'' on local communities. Without exception, the offices of

Members of Congress and Senators contacting FRA in this proceeding have

expressed that FRA seek flexible solutions and allow ample time for

communities with existing whistle bans to adjust to any new

requirements.

Additional issues raised in the course of these contacts, briefings

for congressional staff, and other communications are set forth

elsewhere in this preamble, including the section-by-section analysis.

In-Vehicle Warning Systems

FRA periodically receives suggestions from the public that

electronic devices should be installed on motor vehicles to warn of

approaching trains, thereby eliminating the need for locomotive horns.

Over the long term, systems may be deployed that permit broadcast

notifications to motorists warning of the passage of trains over

highway-rail crossings. If these systems are sufficiently reliable and

use is widespread, sounding of the train horn may be discontinued. This

type of warning may be achieved through integration of Intelligent

Transportation Systems (ITS) deployed for highway use, together with

elements of Positive Train Control (PTC) systems that will govern train

movements and provide accurate data concerning location, direction of

movement and velocity (or that may function on the train to notify

information systems through location-specific interfaces). Such systems

will not be widely deployed for some time, but a clearly delineated

``user service'' (Number 30) has been established within the

architecture of the Intelligent Transportation Systems program as a

venue for research and planning. FRA's PTC Working Group (a part of the

Railroad Safety Advisory Committee) has also identified this as a

possible auxiliary function for PTC.

In the interim, FRA expects progress toward in-vehicle warning for

priority vehicles such as school buses, emergency vehicles and the

like. Concepts for ``proximity warning'' have been evaluated with

Department of Transportation funding at the Transportation Technology

Center, and field operational tests were conducted in 1998. The State

of Illinois is demonstrating a priority vehicle system in the Chicago

metropolitan area. A commercial vendor is offering a radar system for

private motor vehicles that is designed to detect a train's approach,

assuming the lead locomotive to be equipped with a radar unit. FRA will

continue to work with the Federal Highway Administration and other

transportation bodies to identify promising strategies for priority

vehicle warning system.

Consideration has also been given to transmitting train proximity

warnings through new generations of car radios equipped to receive such

transmissions, sound audible warnings, and display text messages. This

Emergency Radio Data System (ERDS) is used in several European

countries and is proposed for demonstration in the U.S. as part of ITS

development. This approach would use consumer electronics as the in-

vehicle platform.

Successful in-vehicle systems will need to meet several criteria in

order to be candidates for wide-scale application to all passenger

motor vehicles: 1. Systems must be fail-safe; or they must be shown to

be so highly reliable that their utility as a warning system exceeds

the loss of safety associated with inappropriate reliance on the system

when in the failure mode. 2. Systems must be affordable for the vehicle

owner, as well as the railroad charged

[[Page 2239]]

with equipping locomotives. 3. False alarms must be infrequent, or the

system will lack credibility and may be subject to being defeated (if

false alarms produce annoyance).

Clearly, before train horns could be silenced, essentially all

trains and motor vehicles would need to be equipped with the in-vehicle

warning system. With respect to private motor vehicles, such a feature

is most likely to be implemented as part of a multi-function ITS

package. Although Intelligent Transportation Systems offer significant

promise for enhancing rail safety and perhaps entirely replacing the

function currently served by the train horn, this alternative is not

available as a realistic option on a community-by-community basis at

the present time.

G. Proposed Rule

FRA has reviewed information obtained through our ``outreach''

efforts, comments submitted to the public docket and other unsolicited

comments sent to the agency by concerned citizens, communities, and

legislators. FRA has considered that information and has attempted,

within the statutory framework established by Congress, to accommodate

many of the legitimate concerns expressed. We anticipate that many

constructive comments will result from public analysis of this proposal

and that the proposed rule may be changed as a result of the public

input. In drafting this proposed rule, FRA has attempted to reconcile

Congress' two, somewhat conflicting, directives. The first directive,

which is unambiguous, is that ``The Secretary of Transportation shall

prescribe regulations requiring that a locomotive horn shall be sounded

while each train is approaching and entering upon each public highway-

rail grade crossing.'' This directive does not allow any discretion as

to issuance of the regulation requiring the sounding of horns. The

Secretary, and by delegation, the Federal Railroad Administrator, must

require that horns are sounded at every public grade crossing. The

second directive, however, is entirely discretionary. The Secretary

``may'' exempt from the requirement to sound the locomotive horn

certain categories of rail operations or categories of crossings. While

exceptions may be crafted, they are not required. This proposed rule,

which does contain provisions for such exceptions, is essentially a

rule which reduces the impact of the Congressional locomotive horn

mandate. It provides communities with the ability to reduce the impact

of locomotive horns within their jurisdictions.

The basis of this proposed rule is the determination by Congress

that locomotive horns provide a measure of safety at highway-rail grade

crossings beyond that provided by the conventional stationary grade

crossing warning systems of crossing gates and flashing lights. Because

of the added safety benefits afforded by locomotive horns, they must be

sounded unless an effective substitute is provided. The proposed rule

is crafted to detail when and how locomotive horns must be sounded. For

the first time, FRA proposes limits to the sound level of locomotive

horns to provide some relief to the surrounding population while still

ensuring that the sound level is high enough to provide the required

warning to the motorist.

The rule requires that horns be sounded at every public highway-

rail crossing. FRA has provided an exception to this requirement for

crossings within a designated ``quiet zone.'' If all crossings within

that zone are equipped with approved supplementary safety measures in

addition to conventional gates and flashing lights, locomotive horns

will not need to be sounded (subject to the rule requirements). The

rule further provides that if a community wishes to establish a quiet

zone, but it can not, for some reason, fully comply with the rule's

requirements for supplementary safety measures at every crossing within

the zone, it may apply to the FRA with its proposed program of safety

measures. FRA will evaluate the community proposal to determine if the

safety measures will compensate for the lack of a locomotive horn.

Finally, the rule provides a very limited exception to the requirement

that supplementary or alternative safety measures must be in place if

locomotive horns are to be silenced.

As required in section ``j'' of the Act, any regulations issued

pursuant to the Act shall not take effect for one year following the

date of publication of the final rule. As a result, the regulation's

requirements to sound the locomotive horn (absent establishment of a

quiet zone) will not be effective until one year after publication of

the final rule. The one year period, in addition to the period between

publication of this proposed rule and the final rule, will enable

communities to assess options and plan for those actions deemed best

for that particular community. FRA anticipates that during the one year

between final rule publication and its effective date, communities will

wish to initiate the administrative process involved in establishing

quiet zones so that, if desired, they can have quiet zones in place on

the anniversary of the rule publication. Therefore, FRA anticipates

that for administrative purposes only, the final rule will have an

effective date 60 days after publication. The final rule, of course,

would not impose any requirement for the sounding of locomotive horns

before one year after final rule publication. FRA requests comments on

this proposal.

Section-By-Section Analysis

Section 229.129 Audible Warning Device

As noted earlier, FRA has a rule at, 49 CFR 229.129, which requires

that each lead locomotive be provided with an audible warning device.

That provision currently requires that the warning device produce a

minimum sound level of 96 dB(A) at 100 feet forward of the locomotive

in its direction of travel. Over the past few years FRA has received

many complaints regarding the loudness of various locomotive horns.

While the regulation appropriately required a minimum sound level in

order to assure the horn's effectiveness, it did not restrict the

maximum sound level of a locomotive horn. This section would correct

that situation and would establish a maximum sound level that an

audible warning device may produce. (Proposed language for this section

can be found at the end of this document following proposed regulatory

language for new Part 222.) This section would also revise the

directionality requirements of the regulation. It would establish a

maximum sound level to the side of the locomotive in order to reduce

the horn's effect on the surrounding community. FRA is faced with the

task of balancing the need for an effective warning to the motorist

while minimizing the horn's intrusion into the surrounding community.

There are a number of factors which influence the ability of a

motorist to hear a train horn. These include: The sound spectrum level

(intensity at each frequency) of the horn, distance from the horn,

ambient noise spectrum level in the motor vehicle, the acoustic

insertion loss of the vehicle (sound reflected and absorbed by the

vehicle which does not enter the vehicle interior), and the

characteristics of the grade crossing. The human ear is only sensitive

to sounds between 20 and 20,000 hertz (Hz), and is most sensitive in

the range between 500 and 5,000 Hz. Hearing sensitivity declines

sharply for higher and lower frequencies. As distance from a sound

source increases, the effective intensity of the sound

[[Page 2240]]

decreases by approximately 7.5 dB for every doubling of the distance.

For instance, if the calibrated intensity of the train horn at 100 feet

is 100 dB(A), then at 200 feet it is 92.5 dB(A). Ambient noise in the

vehicle can reduce the motorist's ability to hear the train horn

through masking. Masking would be strongest when the frequency of the

noise is at the same frequency of the train horn. In general, this

means that the spectrum level of the horn inside the vehicle must

exceed that of ambient noise for the horn to be heard. Determining the

required minimum level and the required maximum level for the train

horn requires a balance between effectiveness as a safety warning and

mitigation of undesirable community noise impacts. In the past, some

mitigation of noise impacts has occurred through exercise of discretion

by locomotive engineers who have sought to limit community impacts by

``going easy'' on the air horn control. A Federal mandate to use this

warning device will inevitably change accepted practice. Although

engineers have undoubtedly sought to exercise good judgment in this

regard, whether this exercise of discretion has been uniformly benign

is not known and not determinable using existing data.

Recent installation on some newer locomotives of electronic

controls for operation of horns may have resulted in the maximum

intended sound levels routinely under all circumstances. Again, whether

this automation of the horn function has improved safety cannot be

determined from available data. Although highway-rail crossing safety

has continued to improve during this period despite increased exposure,

many other variables (such as improved education and awareness

programs, strengthened law enforcement, equipping of locomotives with

alerting lights, installation of warning devices at high-risk

crossings, and crossing closures) are likely responsible for most of

this improvement.

Even the maximum sound level available from the horn has varied

widely among segments of the locomotive and cab car fleets. FRA is

aware that a major commuter authority sets the output of the horns on

at least a portion of its commuter equipment at the minimum allowed (96

dB(A) at 100 feet, ``plus or minus'' 4 dB(A) for actual field testing).

By contrast, many freight locomotives have horns that deliver as much

as 114 dB(A) at 100 feet in front of the locomotive. Locomotive horns

that proved highly effective in the warm climate through which the

Florida East Coast Railway operates (where many motorists may have

driven with open vehicle windows in mild nighttime hours) have

apparently been set at about 104 dB(A), but it may not be reasonable to

expect similar effectiveness at this level under other conditions. FRA

is particularly concerned that railroads not be required to reduce horn

levels across the board to accommodate local community sensitivities,

if that will result in reduced horn effectiveness at the majority of

crossings that are not located in tightly-developed noise-sensitive

areas.

The Volpe National Transportation Systems Center (Volpe Center) has

been studying train horn issues for FRA in support of this rulemaking.

Based upon field data collection and analysis the Volpe Center has

suggested that, for peak safety effectiveness, train horns should be

set at approximately 111-114 dB(A). This range takes into consideration

the need to provide adequate advance warning to as many motorists as

practical.

This would include a high percentage of motorists stopped, or

approaching at low speed, crossings with automated warning devices.

Behavioral science suggests that these motorists may have an

expectation that a train is nearing the crossing. Under these

circumstances, the train horn can be very effective because the

motorist is listening for an auditory cue. Even if the ``insertion

loss'' associated with closed vehicle windows and sound insulation is

in the range of 18 to 45 dB(A), and despite some degree of background

noise associated with the vehicle's engine and other interfering noise,

the train horn should add significant value in these cases. Preliminary

analysis by the Volpe Center appears to indicate that under most

circumstances of crossing configuration and train speed, a train horn

set in the range of 104-105 dB(A) at 100 feet in front of the

locomotive may provide a sufficient auditory cue to alert the motorist

who pauses at a crossing with active warning systems that the arrival

of the train is imminent.

The greater challenge is presented by passively signed crossings.

Although FRA does not propose to allow banning of train horn use at

passively signed crossings and crossings with only flashing lights, the

train horn will nevertheless remain an important warning system at

those crossings. Reducing the allowed sound level by setting a maximum

in this proceeding could thus lead to a net reduction in safety. At

passively signed crossings, overall risk to the public is generally

less because of fewer conflicting movements of trains and vehicles.

However, the risk to any given motorist seeking to use the crossing

during the period a train is approaching is much higher. Motorists

seeking to act wisely by yielding to the train are entitled to fair

warning of the train's approach. Even with all lights (headlight and

``ditch'' lights) functioning, a train is sometimes difficult to pick

out against the visual background. Further, due to such factors as

buildings, mature stands of trees, track curvature, and the angle of

motorists' approach, sight distances at many crossings do not permit a

long preview of the train's approach. A sufficiently loud auditory

warning will tell the motorist that a train is approaching and from

what direction (within about 10 degrees for a person of good hearing in

both ears under optimum circumstances). This will give the motorist

more opportunity to sight the oncoming train at the first opportunity,

evaluate its rate of approach, and make a safe decision.

The challenge at passively signed crossings is to provide warning

sufficiently early to affect motorist behavior. This is more difficult,

because the motorist approaching the crossing in most cases (except

where an enforced STOP sign is present) will not stop and may not slow

down except as required by unevenness of the road surface. The

motorist's decision point is thus farther away from the crossing and

(in the typical case) from the train horn. According to the Volpe

Center, a vehicle traveling at 30 miles per hour may have interior

noise level in the range of 21 to 63 dB(A) from its engine and typical

road noise. A loud sound system playing music or other programming will

add to this background noise. Depending upon the train horn harmonics,

the Volpe Center estimates that a horn sound level in the range of 111-

114 dB(A) may be sufficient to warn most motorists at passive crossings

for all conventional train speeds, despite the fact that the horn sound

as inserted into the vehicle must exceed the background noise by a

larger margin than at crossings with automated warning devices in order

to seize the motorists' attention. However, reducing the train horn

level from that range is expected to result in a rather rapid fall-off

of effectiveness at passively signed crossings. The result will be that

the horn will be effective only at lower combined closing speeds for

the vehicle and train approaching the crossing, leaving motorists

without effective warning under a larger number of real-life scenarios.

Community impacts are also highly sensitive to train horn levels--

but in the opposite direction. Volpe Center calculations suggest, for

instance, that just reducing train horn levels from 114

[[Page 2241]]

dB(A) to 111 dB(A) would almost double the number of train movements

permitted before a common 24-hour measure of acceptable community noise

levels (Ldn=65 dB(A)) is exceeded at any given distance from the

railroad right-of-way. This measure of acceptable community noise

levels was developed to evaluate noise from frequent transportation

movements (aircraft overflights, transit vehicle passes), in connection

with public investments in new transportation facilities and equipment.

FRA has grave reservations concerning whether such a standard could be

appropriately applied to evaluate the acceptability of short-duration

warning sounds necessary for safety in an existing transportation

system. Train horn noise has been excepted from Environmental

Protection Administration limits on railroad noise emissions because of

these kinds of differences. Nevertheless, FRA recognizes the importance

of imposing no greater noise impacts on local communities than may be

necessary for safety. Accordingly, as discussed below FRA will be

conducting an environmental assessment in parallel with this rulemaking

and utilizing the results of that effort in preparing a final rule.

FRA does not propose to conclude this rulemaking without setting a

maximum level for the train horn. Although FRA is skeptical, based on

noise readings taken in locomotive cabs, that train horns have been set

at levels exceeding approximately 114 dB(A)--a level that does not

appear excessive given the safety needs involved--FRA does recognize

that the mandate to use the horn implicates a responsibility to set a

maximum level. For purposes of this proposed rule, therefore, FRA is

proposing two specific options, with a third concept suggested for

comment. Under both options the minimum level would remain at 96 dB(A).

However, in order to avoid significant loss of warning effectiveness,

field tests would not include the current ``plus or minus'' allowance

for error. Tests in the field would be required to demonstrate a sound

level of at least 96 dB(A) at 100 feet in front of the locomotive and

to comply with a specified maximum level. To avoid non-representative

results caused by environmental extremes, testing would be required to

be conducted within a range of temperature of 36 and 95 degrees

Fahrenheit with relative humidity between 20 and 90 percent. Both

temperature and humidity affect the propagation of sound waves.

Options for maximum level. Under the first option, the maximum

permissible train horn sound level would not exceed 104 dB(A), which is

believed to be sufficient in most circumstances to provide adequate

warning at crossings using automated warning devices (where the

motorist makes a decision while at rest near the crossing, expecting

the train to arrive). Under the second option, the train horn could be

set at up to 111 dB(A), which is in the range where the horn is

believed to be effective under many circumstances at passively signed

crossings (where the motor vehicle is in motion at the decision point

and the motorist have been provided no contemporaneous reason to expect

to see a train). As soon as they are completed, FRA will place in the

docket Volpe Center studies providing information pertinent to this

analysis.

Variable level option. FRA notes that one possible approach to

addressing this issue is a variable horn level. Under this approach,

train horns would be required to be capable of sounding within a low

range (e.g., 96-104 dB(A)) approaching any crossing with active warning

devices and within a higher range (e.g., 104-111 dB(A)) at any crossing

not equipped with automated warning systems. FRA notes concern that

this could place an additional burden on the locomotive engineer and

that sounding the horn in this pattern would not be feasible where

crossings are closely spaced and are not uniformly treated with

automated warning devices. Accordingly, at a minimum simplified

procedures requiring the engineer to take the safe course would be

required in these circumstances. Commenters are asked to evaluate this

approach as a third option.

Directionality. Under current regulations, some locomotive horns

have been placed near the center of the locomotive in order to reduce

crew noise exposure. Although providing at least 96 dB(A) at 100 feet

in front of the locomotive, these arrangements have sometimes led to

higher sound levels at right angles to the locomotive than to the front

or rear. This has resulted from obstructions such as diesel exhaust

stacks and air conditioning units causing the horn noise to disperse.

FRA believes that this approach is not necessary for crew safety and is

inconsistent with the responsibility of the transportation company to

limit community noise impacts. Accordingly, the proposed rule would

require that the sound levels at 90 degrees and 100 feet from the

center of the locomotive not exceed the value 100 feet in front of the

locomotive. FRA also requests comment whether this community exposure

should be measured at 90 degrees from the horn placement location,

rather than the center of the locomotive.

Crew safety concerns. FRA does not expect locomotive crew exposure

to be a limiting factor in this rulemaking. In a 1996 Report to

Congress entitled Locomotive Crashworthiness and Cab Working

Conditions, FRA described the results of a survey of cab noise levels

and the literature dealing with occupational hearing loss. The report

found noise exposure for most locomotive assignments to fall within

acceptable levels and noted that cabs of new locomotives are

exceptionally quiet because they provide an environment that is

isolated from the locomotive structure and temperature controlled

(permitting windows to remain closed). However, the report identified

the need to improve FRA's noise exposure standard for locomotive cabs

and to adopt a hearing conservation approach to this area of

occupational safety and health. A working group of the Railroad Safety

Advisory Committee is currently pursuing these improvements, and

comments from within that working group have prompted the suggestion

noted above for a variable sound level for the horn. Depending upon the

circumstances under which the low sound level might be selected by the

locomotive engineer, having this option available could reduce the

overall noise dose to which crew members are subjected during any duty

tour. In any event, FRA expects that continued improvements in

locomotive design, use of personal hearing protection, and other

initiatives now under study should permit further reduction in

occupational noise exposure over the coming years.

Costs. FRA recognizes that varying the loudness of the locomotive

horn by adapting to a new maximum level, providing for a variable

level, or relocating a horn to avoid excessive levels to the ``field''

could result in costs to the railroads. FRA requests comment on the

extent of the costs involved and the optimum means of achieving any

necessary retrofit of locomotives, including the period that should be

allowed to accomplish this work.

Section 222.3 Application

The requirements contained in this part apply to all railroads,

both passenger and freight, which operate on the general railroad

system of transportation, i.e., the network of standard gage railroads

over which the interchange of goods and passengers throughout the

nation is possible. This part does not apply to exclusively freight

railroads that operate only on track which is not part of the general

[[Page 2242]]

system of transportation. This part also does not apply to rapid

transit operations within an urban area that are not connected to the

general railroad system of transportation.

In other recent rulemakings, FRA has discussed the basis for its

exercise of jurisdiction over ``scenic'' or ``tourist'' railroads. FRA

has declined to exercise jurisdiction over insular scenic or tourist

railroads i.e., passenger railroads operating inside an installation so

that the operations are limited to a separate enclave in such a way

that there is no reasonable expectation that the safety of the public--

except a business guest, licensee of the railroad or an affiliated

entity, or a trespasser--would be affected the operation. FRA has

determined that the presence of certain characteristics will prevent

the railroad from being considered insular and thus will result in

FRA's exercise of jurisdiction over that railroad. The presence of one

of the following characteristics will trigger the assertion of FRA

regulatory jurisdiction: (1) A public highway-rail crossing that is in

use; (2) an at-grade rail crossing that is in use; (3) a bridge over a

public road or waters used for commercial navigation; or (4) a common

corridor with a railroad, i.e., its operations are within 30 feet of

those of any railroad. Inasmuch as this proposed rule is directed at

locomotive horn use at public highway-rail grade crossings, the rule

will thus apply to every tourist or scenic railroad crossing a public

highway rail grade crossing, whether or not the railroad is part of the

general railroad system of transportation. The language of this

proposed section reflects that result.

FRA recognizes that additional public grade crossings may be found

on plant railroads and freight railroads which are not part of the

general railroad system of transportation. Operations on these

railroads are typically low speed with small numbers of rail cars

permitting relatively short stopping distances. Additionally, these

operations typically also involve roadway crossings with relatively low

speed vehicular traffic. These reasons, together with the historical

basis for not asserting jurisdiction in these cases, leads FRA to

propose not to exercise jurisdiction over public and private crossings

at such plant and private railroads. FRA does, of course, retain the

statutory right to assert jurisdiction in this area and will do so if

circumstances so warrant. As in all aspects of this proposed rule, FRA

invites comments on the jurisdictional determinations proposed in this

notice.

Section (f) of the Act explicitly gives discretion to the Secretary

on the question of whether to subject private highway-rail crossings,

pedestrian crossings, and crossings utilized primarily by nonmotorized

vehicles and other special vehicles to this regulation. At this time,

FRA is proposing to exercise its jurisdiction in a limited manner

regarding these crossings.

Although some private crossings experience heavy rail and motor

vehicle use, we do not have sufficient information as to present

practices, the number and type of such diverse crossings, and the

impacts of locomotive horns at such crossings. Thus, FRA will not at

this time require that the locomotive horn be sounded at private

highway-rail crossings. Whether horns must be sounded at such crossings

will remain subject to state law (if any) and agreements between the

railroad and the holder of crossing rights. FRA will, however, permit

the establishment of quiet zones on rail line segments which include

private crossings. To do otherwise would undermine a major purpose of

the Act.

While we believe that, absent compensating warning or protective

devices, sounding of locomotive horns provides a safer highway-rail

crossing, it may be sufficient that the locomotive bell, rather than

horn, be rung prior to entering a pedestrian or other non-highway

crossing. At such crossings, pedestrians, horse-drawn vehicles,

bicycles, and equestrians enter the crossing at a significantly slower

speed than motor vehicles, are not enclosed as in an automobile or

truck, and do not face the same distractions as those confronting

motorists. FRA therefore proposes to decline to exercise jurisdiction

over the use of locomotive horns at such crossings.

Section 222.5 Preemptive Effect

This section provides notice that pursuant to 49 U.S.C. 20106,

issuance of these regulations preempts any State law, rule, regulation,

or order covering the same subject matter, except a provision necessary

to eliminate or reduce an essentially local safety hazard, that is not

incompatible with Federal law or regulation and does not unreasonably

burden interstate commerce. Accordingly, all existing local ordinances

and state statutes relating to whistle bans or to the sounding of

locomotive horns at public highway-rail crossings will be preempted by

this regulation unless such ordinances or laws fall within the

exception contained within 49 U.S.C. Sec. 20106. This rule, however,

does not confer authority on localities to establish quiet zones if

state law does not otherwise permit such actions.

Section 222.7 Definitions

This proposed rule uses various terms which are not widely

understood or which, for purposes of this rulemaking, have very

specific definitions. This section defines the following terms:

``Barrier curb'' means a highway curb designed to discourage a

motor vehicle from leaving the roadway. FRA proposes to define such

curb as a curb more than six inches, measured from the surface of the

roadway. As with mountable curbs and channelization devices, additional

design requirements are left to the standard specifications used by the

governmental entity constructing the engineering improvements.

``Channelization device'' means one of a continuous series of

highly visible obstacles placed between opposing highway lanes designed

to alert or guide traffic around an obstacle or to direct traffic in a

particular direction. Channelization devices must be at least 2.5 feet

high and placed a maximum of seven feet apart.

``Effectiveness rate'' means the effectiveness of a supplementary

safety measure in reducing the probability of a collision at a highway-

rail grade crossing. (Effectiveness is indicated by a number between

zero and one which represents the reduction of the probability of a

collision as a result of the installation of a supplementary safety

measure when compared to the same crossing equipped with conventional

automated warning systems of flashing lights, gates and bells. Zero

effectiveness means that the supplementary safety measure provides no

reduction in the probability of a collision (there is no effectiveness)

while an effectiveness rating of one means that the supplementary

safety measure is totally effective in reducing collisions.

Measurements between zero and one reflect the percentage by which the

supplementary safety measure reduces the probability of a collision.

Thus, a supplementary safety measure with an effectiveness of .37

reduces the probability of a collision by 37 percent).

``Locomotive horn'' means a locomotive air horn, steam whistle, or

similar audible warning device mounted on a locomotive or control cab

car. The terms ``locomotive horn'', ``train whistle'', ``locomotive

whistle'', and ``train horn'' are used interchangeably in the railroad

industry. Specifications concerning audible warning devices on

locomotives other than steam locomotives are contained in 49 CFR

229.129.

`'Median'' means an ``island'' or the portion of a divided highway

separating

[[Page 2243]]

the travel ways for traffic in opposite directions. A median is bounded

by mountable or barrier curbs.

``Mountable curb'' means a highway curb designed to permit a motor

vehicle to leave a roadway when required. It is a curb not more than

six inches high measured from the roadway surface, with a well rounded

top edge. Additional design specifications are determined by the

standard traffic design specifications used by the governmental entity

constructing the mountable curb.

``Positive train control territory'' means, for purposes of this

part, a line of railroad on which railroad operations are governed by a

train control system which is capable of determining the position of

the train in relation to a highway-rail grade crossing and capable of

computing the time of arrival of the train at the crossing which

results in the automatic operation of the locomotive horn or the

automatic prompting of the locomotive engineer such that the horn is

sounded at a predetermined time prior to the locomotive's arrival at

the crossing.

`'Public highway-rail grade crossing'' means a location where a

public highway, road, or street, including associated sidewalks or

pathways, crosses one or more active railroad tracks at grade. Public

highway-rail grade crossing, also referred to in this part as

``highway-rail crossings'', ``public grade crossing'', and ``grade

crossing'', includes pedestrian walkways or other pathways when

associated or part of a larger public highway, road or street crossing.

``Quiet zone''means a segment of a rail line within which is

situated one or a number of consecutive highway-rail crossings at which

locomotive horns are not routinely sounded.

``Railroad'' means any form of nonhighway ground transportation

that runs on rails or electromagnetic guideways and any entity

providing such transportation, including (i) Commuter or other short-

haul railroad passenger service in a metropolitan or suburban area and

commuter railroad service that was operated by the Consolidated Rail

Corporation on January 1, 1979; and (ii) high speed ground

transportation systems that connect metropolitan areas, without regard

to whether those systems use new technologies not associated with

traditional railroads; but does not include rapid transit operations in

an urban area that are not connected to the general railroad system of

transportation.

``Supplementary safety measure'' means a safety system or procedure

established in accordance with this part which is provided by the

appropriate traffic control authority or law enforcement authority and

that is determined by the Administrator to be an effective substitute

for the locomotive horn in the prevention of highway-rail casualties.

``Whistle board'' means a post or sign directed toward oncoming

trains and bearing the letter ``W'' or equivalent symbol, erected at a

distance from a grade crossing, which indicates to the locomotive

engineer that the locomotive horn should be sounded beginning at that

point.

Section 22.9 Penalties.

This provision provides civil penalties for violations of

requirements of this regulation. Any person or railroad who violates or

causes a violation is subject to a civil penalty of up to $11,000.

Penalties may be assessed against individuals only for willful

violations. Penalties of up to $22,000 can be assessed for violations

caused by gross negligence, or where a pattern of violations has

created a risk or was the cause of death or injury to any person.

Maximum penalties of $11,000 and $22,000 are required by the Federal

Civil Penalties Inflation Adjustment Act of 1990 (Pub.L. 101-410) (28

U.S.C. 2461 note), as amended by the Debt Collection Improvement Act of

1996 (Pub.L. 104-134, 110 Stat. 1321-373) which requires each agency to

regularly adjust certain civil monetary penalties in an effort to

maintain their remedial impact and promote compliance with the law.

Section 222.11 Petitions for Waivers

This section explains the process for requesting a waiver from a

provision of this regulation. FRA has historically entertained waiver

petitions from parties affected by an FRA regulation. In many

instances, a regulation, or specific section of a regulation, while

appropriate for the general regulated community, may be inappropriate

when applied to a specific entity. Circumstances may make application

of the regulation to the entity counter-productive; an extension of

time to comply with a regulatory provision may be needed; or

technological advancements may result in a portion of a regulation

being inappropriate in a certain situation. In such instances, FRA may

grant a waiver from its regulations. The rules governing FRA's waiver

process are found in 49 CFR part 211. In summary, after a petition for

a waiver is received by FRA, a notice of the waiver request is

published in the Federal Register, an opportunity for public comment is

provided, and an opportunity for a hearing is afforded the petitioning

or other interested party. FRA, after reviewing information from the

petitioning party and others, will grant or deny the petition. In

certain circumstances, conditions may be imposed on the grant of a

waiver if FRA concludes that the conditions are necessary to assure

safety or if they are in the public interest. Because this regulation's

affected constituency is broader than most of FRA's rail safety

regulations, the waiver process is proposed to be somewhat different.

Paragraphs (a) and (b) address the aspects which are different than

FRA's customary waiver process. However, as paragraph (c) makes clear,

once an application is made pursuant to either paragraph (a) or (b),

FRA's normal waiver process, as specified in 49 CFR part 211, applies.

Paragraph (a) of this section addresses jointly submitted waiver

petitions as specified by 49 U.S.C. 20153(d). Such a petition must be

submitted by both the railroad whose tracks cross the highway and by

the appropriate traffic control authority or law enforcement authority

which has jurisdiction over the roadway crossing the railroad tracks.

Although Sec. 20153(d) requires that a joint application be made before

a waiver of a provision of this regulation is granted, FRA, in

paragraph (b), addresses the situation that may occur if the two

parties can not reach agreement to file a joint petition. Section

20153(I)(3) gives the Secretary (and the Federal Railroad

Administrator) the authority to waive in whole or part any requirement

of Sec. 20153 (with certain limited exceptions) if it is determined not

to contribute significantly to public safety. FRA thus proposes to

accept individually filed waiver applications (under certain

conditions) as well as jointly filed applications. In an effort to

encourage the traffic control authority and the railroad to agree on

the substance of the waiver request, FRA proposes to require that the

filing party specify the steps it has taken in an attempt to reach

agreement with the other party. Additionally, the filing party must

also provide the other party with a copy of the petition filed with the

FRA.

It is clear that FRA prefers that petitions for waiver reflect the

agreement of both entities controlling the two transportation modes at

the crossing. If agreement is not possible, however, FRA will entertain

a petition for waiver, but only after the two parties have attempted to

reach an agreement on the petition.

[[Page 2244]]

Paragraph (c) provides that each petition for a waiver must be

filed in the manner required by 49 CFR part 211.

Paragraph (d) provides that the Administrator may grant the waiver

if the Administrator finds that it is in the public interest and that

safety of highway and railroad uses will not be diminished. The

Administrator may grant the waiver subject to any necessary conditions

required to maintain public safety.

Subpart B--Use of Locomotive Horns

Section 222.21 When To Use Locomotive Horns

Paragraph (a) of this section would require that, except as

provided elsewhere in this part, a locomotive horn on the lead

locomotive of a train, or the lead locomotive of a consist of

locomotives, or on an individual locomotive must be sounded when the

locomotive or lead car is approaching and passes through each public

highway-rail crossing. The locomotive horn must be sounded with a

series of two long, one short, and one long horn blasts to signify the

locomotive's approach to a crossing. FRA is adopting the industry

standard as the required indicator of the approach of a locomotive to a

crossing. This paragraph also requires that the horn be blown at the

location required in paragraph (b) and that the horn warning be

repeated or prolonged until the locomotive or train occupies the

crossing.

The remaining paragraphs of this section address the specific

location at which the sounding of the locomotive horn should be

initiated. Establishment of this point is important both to provide

adequate warning to the motorist and also to not unnecessarily impose

the loud locomotive horn noise upon the surrounding community.

In drafting paragraph (b), FRA has attempted to address the fact

that various states have long established requirements governing the

location at which the horn must be sounded. Although those requirements

would be preempted by this rule, rather than require immediate

wholesale changes of whistle boards and timetable instructions, FRA is

not proposing to immediately change the practical effects of present

state requirements, if any. However, if a railroad changes the maximum

authorized track speed on a line of railroad approaching a grade

crossing, the location where the locomotive engineer is required to

sound the horn (as indicated by whistle board or other method) must

then be adjusted to reflect the change. The adjustment at that time

would be made irrespective of conflicting state law.

This paragraph further establishes (within the \1/4\ mile

limitation contained in paragraph (e)) the location at which the

locomotive horn should be sounded. If using whistle boards, the

railroad must place them at a distance from the crossing equal to the

distance traveled by a train in 20 seconds while operating at the

maximum speed allowed for any train operating on the track in that

direction of movement. Because a fixed location for sounding of a horn

results in differing periods of warning depending on the speed of the

train or locomotive, the location of a whistle board must therefore be

dependent on the fastest train operating over that track. If a railroad

decreases the maximum authorized speed of trains operating over a

crossing, the whistle board must be moved closer to the crossing in

order to provide 20 seconds of warning. Conversely, if the maximum

authorized speed is increased, then the whistle board must be placed

farther from the crossing to maintain the 20 second warning time.

Paragraph (b) further provides that if the railroad uses methods or

systems other than whistle boards to indicate when the horn should be

sounded (such as positive train control systems), that system should

ensure that the horn is sounded not less than 20, nor more than 24

seconds before the locomotive enters the grade crossing.

Paragraph (c) addresses the situation in which a state does not

have on the effective date of this rule, a specific requirement for

placement of whistle boards or specific distance requirements for the

sounding of a horn. In that case, a railroad must take the same actions

as are required when it adjusts maximum authorized speed in paragraph

(b) above; if using whistle boards, the railroad must (within the \1/4\

mile limitation contained in paragraph (e)) place them at a distance

from the crossing equal to the distance traveled by a train in 20

seconds while operating at the maximum speed allowed for any train

operating on the track in that direction of movement. If the railroad

uses methods or systems other than whistle boards to indicate when the

horn should be sounded (such as positive train control systems), that

system should ensure that the horn is sounded not less than 20 seconds,

nor more than 24 seconds before the locomotive enters the grade

crossing. These provisions, together with the definition of ``positive

train control'' are based on the long held assumption that sounding the

locomotive horn for 20 seconds before entering the grade crossing

provides the optimum length of warning. Recent research, however, tends

to indicate that 15 seconds of advance warning may be sufficient,

especially where active warning systems are in place at the crossing.

FRA requests comments on the proper length of time and under what

circumstances locomotive horns should be sounded.

Paragraph (d) provides that each railroad, irrespective of state

law to the contrary, must promptly adjust the location of each whistle

board to reflect changes in maximum authorized track speeds, except

where all trains operating over that crossing are equipped to be

responsive to a positive train control system. This paragraph mandates

that if a railroad decreases the maximum authorized speed of trains

operating over a crossing, the whistle board must be moved closer to

the crossing. Conversely, if the maximum authorized speed is increased,

then the whistle board must be placed farther from the crossing.

Railroads must ensure that whistle boards are placed at a distance from

each crossing equal to the distance traveled by a train in 20 seconds

while operating at the maximum speed allowed for any train operating in

that direction of movement.

Paragraph (e) establishes a maximum distance of \1/4\ mile before a

crossing, over which a train horn may be sounded, regardless of train

speed. Sound diminishes at a rate of approximately 7.5dB(A) for each

doubling of distance. Thus, a locomotive horn registering 100dB(A) at

100 feet in front of the locomotive will have diminished to roughly 75

dB(A) at \1/4\ mile (1,320 feet) in front of the locomotive. That

distance is likely near the outer margin of utility in terms of

alerting the motorist to oncoming trains at that particular crossing.

Section 222.23 Emergency and Other Uses of Locomotive Horns

Paragraph (a) of this section is meant to make clear that even at

grade crossings subject to quiet zone conditions, locomotive engineers

may sound the locomotive horn in emergency situations. Nothing in this

part is intended to prevent an engineer from sounding the locomotive

horn to provide a warning to vehicle operators, pedestrians,

trespassers or crews on other trains in an emergency situation if, in

the engineer's sole judgment, such action is appropriate in order to

prevent imminent injury, death or property damage. Establishment of a

quiet zone does not prevent an engineer from sounding the horn in such

situations, nor does it impose a legal duty to do so. Additionally,

paragraph (b) provides

[[Page 2245]]

that nothing in this part restricts the use of the horn to announce the

approach of the train to roadway workers in accordance with a program

adopted under 49 CFR part 214. This regulation is not meant to restrict

the use of the locomotive horn when active crossing warning devices

have malfunctioned and use of the horn is required by either 49 CFR

234.105 (activation failure), 234.106 (partial activation), or 234.107

(false activation).

Subpart C--Exceptions To Use of the Locomotive Horn

Section 222.31 Train Operations Which Do Not Require Sounding of Horns

at Individual Crossings

This section addresses the situation in which locomotive horns need

not be sounded even though the crossing is not part of a quiet zone.

Locomotive horns need not be sounded at individual highway-rail grade

crossings at which the maximum authorized operating speed (as

established by the railroad) for that segment of track is 15 miles per

hour or less and properly equipped flaggers (as defined by 49 CFR

234.5) provide warning to motorists. These limited types of rail

operations do not present a significant risk of loss of life or serious

personal injury and thus, under the Act, may be exempted from the

requirement to sound the locomotive horn. Locomotive horns will still

be required to be sounded if automatic warning systems have

malfunctioned and the crossing is being flagged pursuant to 49 CFR

234.105, 234.106, or 234.107. Horns will still be required in these

limited circumstances in order to offset the temporary loss of the

active warning which motorists have presumably come to rely on.

This section is an exception to the requirement that silencing of

locomotive horns must include all crossings within a designated quiet

zone. This section permits a railroad, on its own initiative, to

silence its horns at individual crossings under certain circumstances

in which the safety risk is low. The primary purpose of this section is

not the same as that of Sec. 222.35 (``Establishment of quiet zones'').

Rather than silencing horns for the benefit of the surrounding

community, this section will be used primarily at crossings located in

industrial areas where substantial switching occurs, and would avoid

unnecessary noise impacts on those railroad personnel working on the

ground in very close proximity to the locomotive horn. This section

recognizes that under the noted conditions, public and railroad safety

do not require the sounding of locomotive horns--a railroad is thus

free to eliminate them. Since the primary beneficiary of this section

is not nearby residences, the reasoning for the establishment of quiet

zones rather than individual quiet crossings would not be applicable

here. There is no additional burden placed on an engineer in this

situation since the flagger will generally be a member of the train

crew itself, and the engineer will not be placed in the position of

having to determine when horns must be silenced or sounded as would be

the case if horns could be silenced on an individual crossing basis.

Additionally, prevention of noise spill-over from a crossing would not

be a consideration in these situations.

FRA has considered whether railroad operations involving less

frequent service and slow speeds, such as railroad operations typically

associated with short lines and secondary lines, should also be

categorically excluded from the requirement to sound locomotive horns

based on the premise that they do not present a significant risk of

loss of life or serious personal injury. Another factor which could be

considered in addition to the above factors is the level of highway

traffic over the crossing. While FRA is not proposing at this time to

categorically exclude crossings based on these factors, FRA solicits

comments, and specific suggestions as to the desirability of

categorically excluding certain crossings based on a combination of the

above factors or other characteristics of crossings that significantly

affect risk. Inclusion of supporting data and analysis is encouraged.

Section 222.33 Establishment of Quiet Zones

Methods of Establishing a Quiet Zone

This section addresses the manner in which quiet zones are

established. A quiet zone is defined as a segment of rail line within

which is situated one or a number of consecutive highway-rail crossings

at which locomotive horns are not routinely sounded. The concept of

quiet zones is crucial to understanding the intent and thrust of this

proposed rule. While it would be possible to approve a ban on

locomotive whistles on a case-by-case, or a crossing-by-crossing basis,

the desired result of less disruption to the surrounding community by

locomotive horn noise would be minimal. Because a locomotive horn must

be sounded well in advance of a grade crossing, the noise spill-over

from a crossing not subject to a ban could still disrupt the community

near a crossing where horns are banned. As a result, the concept of a

quiet zone was developed, which would essentially fulfill the following

purposes: ensure that a whistle ban would have the greatest impact in

terms of noise reduction; ease the added burden on locomotive crews of

the necessity of determining on a crossing-by-crossing basis whether or

not to sound the horn; and enable grade crossing safety initiatives to

be focused on specific areas within the quiet zone.

FRA proposes two different methods of establishing quiet zones,

depending on local circumstances. In one method (provided for in

Sec. 222.33(a)), every public grade crossing within the proposed quiet

zone would have a supplementary safety measure applied to the crossing.

These measures, which are listed in Appendix A, have been determined by

FRA to be an effective substitute for the locomotive horn in the

prevention of highway-rail grade crossing casualties. In other words,

these measures each have an effectiveness rate which is at least

equivalent to that of a locomotive horn. Because each highway-rail

grade crossing would be upgraded from the standard flashing lights and

automatic gates to a crossing with a supplementary safety measure,

FRA's role would be minimal. The governmental entity establishing the

quiet zone would only need to designate the extent of the quiet zone,

install the supplementary safety measures, and comply with various

notice and information requirements of Sec. 222.35(a).

Another method (provided for in Sec. 222.33(b)) of establishing a

quiet zone permits a governmental entity greater flexibility in using

supplementary safety measures or other types of safety measures

(alternative safety measures) to deal with problem crossings. While

Appendix A lists those measures which FRA believes fully compensate for

the lack of a locomotive horn, Appendix B includes all Appendix A

measures and adds other safety measures whose success in compensating

for the locomotive horn is dependent on the level of time and effort

expended by the community. Such measures include public safety

education and increased law enforcement programs. Using a combination

of supplemental safety measures from Appendix A, alternative safety

measures listed in Appendix B, and tailoring supplemental safety

measures to unique circumstances at specific crossings, the

governmental entity is provided with a greater level of flexibility

than is available using only supplementary safety measures from

Appendix A. Another major difference in this approach from the earlier

method

[[Page 2246]]

is the manner in which risk is viewed. In this more flexible approach,

risk will be viewed in terms of the quiet zone as a whole, rather than

at each individual grade crossing. Thus, FRA would consider a quiet

zone under this approach that does not have a supplemental safety

measure at every crossing as long as implementation of the proposed

supplementary and alternative safety measures on the quiet zone as a

whole will cause a reduction in risk to compensate for the lack of a

locomotive horn. If the aggregate reduction in predicted collision risk

for the quiet zone as a whole is sufficient to compensate for the lack

of a horn, a quiet zone may be established.

Because of the greater flexibility and the greater variation in

possible risk reduction, FRA would take a much more active role in

reviewing the approach of the governmental entity. Paragraph (b) of

this section provides that a state or local government may apply to the

FRA Associate Administrator for Safety for acceptance of a quiet zone,

within which one or more safety measures identified in Appendix B

(alone or together with supplementary measures identified in Appendix

A), will be implemented. The application for acceptance must contain a

commitment to implement the proposed safety measures within the

proposed quiet zone. The applying entity must demonstrate through data

and analysis that implementation of the proposed measures will effect a

reduction in risk at public highway-rail crossings within the quiet

zone sufficient to equal the reduction in risk that would have been

achieved through the use the locomotive horn.

It is important to note that, as required in paragraph (d) of this

section, all public highway-rail crossings in a quiet zone, except for

those exceptions contained in Sec. 222.31 and Appendix C, must be

equipped with automatic gates and lights that conform to the standards

contained in the Manual on Uniform Traffic Control Devices.

Under paragraph (b)(2), the FRA Associate Administrator for Safety

may take one of three actions in response to a state or local

government application: (1) The quiet zone may be accepted as proposed;

(2) the Associate Administrator may accept the proposed quiet zone

under additional conditions designed to ensure that the safety measures

fully compensate for the absence of the warning provided by the

locomotive horn; or (3) the proposed quiet zone may be rejected if, in

the Associate Administrator's judgment, the proposed safety measures do

not fully compensate for the absence of the warning provided by the

locomotive horn.

Paragraph (c) addresses the categories of crossings which the

Administrator has determined do not present a significant risk with

respect to loss of life or serious personal injury if the locomotive

horn is not sounded. In the very limited situations listed, neither

supplementary safety measures, nor lights, gates and bell are required

at the crossing. Appendix C contains a list of those criteria which

must be met for a quiet zone to be established under this provision.

The criteria include: Maximum authorized train speed as established by

the railroad does not exceed 15 miles per hour; the train travels

between traffic lanes of a public street or on an essentially parallel

course within 30 feet of the street; unless the railroad is actually

situated on the surface of the public street, traffic on all crossing

streets is controlled by STOP signs or traffic lights which are

interconnected with automatic crossing warning devices; and the

locomotive bell is rung when approaching and traveling through the

crossing.

FRA'S Approach and Request for Comments. FRA has specified in

Appendix B the manner in which the community must show the reduction in

risk resulting from its proposed alternative safety measures. In

proposing the very specific procedures cited in Appendix B (and in its

introduction), FRA has been guided by the need to establish a

predictable environment within which affected communities can plan and

take action. FRA believes that such objective measures will help

communities in their decision-making process, as well as assist FRA in

determining which proposals will in fact provide for the safety of the

motoring and rail public. One alternative to FRA's proposal would allow

communities to perform their own effectiveness analyses based on

methodology of their own choosing with subsequent reporting of the

methodology and data results to FRA. That alternative would result in

FRA review of both the methodology and the data involved in each

submission from each locality wishing to establish a quiet zone. That

approach might provide greater flexibility to communities to design

countermeasures meeting their needs and circumstances. However, FRA is

concerned that this approach might overwhelm FRA's resources and delay

approvals beyond reasonable limits. This could backlog review of

proposed new quiet zone proposals emanating from communities impacted

by industry restructuring (such as the proposed acquisition of Conrail

by Norfolk Southern and CSX Transportation). Further, ascertaining

appropriate decisional criteria for evaluating community submissions

might present a major challenge. The proposed alternative measures laid

out in this notice already comprehend the broad range of safety

measures within the traditional crossing safety categories of

``engineering, education, and enforcement.'' Commenters are asked to

note specific examples of opportunities that might be presented by less

definite enumeration of alternative measures.

FRA encourages comments on the proposed regulatory approach, as

well as alternative suggestions as to the best way to assure that

alternative safety measures will in fact compensate for the lack of a

locomotive horn.

Who May Establish a Quiet Zone

Under this proposed rule, a local political jurisdiction, in

addition to a state, can establish a quiet zone. FRA does not intend

that the proposed rule confer authority on localities to establish

quiet zones if state law does not otherwise permit such actions. Local

political jurisdictions are creations of their respective states and

their powers are thus limited by their individual state law or

constitution.

Under the Act and the proposed regulations, establishment of quiet

zones requires specific action by a state or local governmental body.

Therefore, if the appropriate political entity determines that sounding

of locomotive horns at grade crossings is the proper course of action

for their community, no specific action needs to be taken to ensure

that locomotive horns are sounded at every public highway-rail grade

crossing. This is, of course, a legitimate public policy result.

However, if quiet zones are desired, there are a number of approaches

that could be considered in terms of application and implementation.

First, one approach could be that all designations and applications

under this section must come from a state agency. Under this approach,

FRA would deal with only one entity from each state. How the state

determines which quiet zones are designated and which should be the

subject of an application for acceptance would be up to each individual

state. The processes may be as varied as: the state agency acting only

as a conduit for designations and applications; the agency acting as a

filter to weed out ``inappropriate'' applications; or, the state agency

acting solely on its own to determine the extent of designations and

applications.

A second approach would limit authority for designations and

[[Page 2247]]

applications to the political subdivision with direct responsibility

over traffic safety at a crossing. This approach would present problems

inasmuch as a line of railroad typically crosses state highways, and

city, county, and village roads.

A third approach would require the political subdivision in which

the proposed quiet zone is located to be the applicant.

FRA at this time contemplates that both states and local

jurisdictions (if they have the legal authority to do so) will

establish quiet zones under both paragraphs (a) and (b) of this

section. FRA encourages comments on this regulatory approach.

Length of Quiet Zone

Paragraph (d) addresses the minimum length of a quiet zone. FRA

believes that if locomotive horns are to be prohibited along a segment

of track, the underlying purpose of the prohibition will not be served

unless the prohibition is effective on a corridor-like basis. Without a

quiet zone requirement, the sounding of horns may be prohibited at one

crossing, required at the next crossing two blocks away, and then

prohibited at the next crossing one-quarter mile along the line.

Because horns must be sounded in advance of a public highway-rail

crossing, the horn being sounded at the one crossing in the example

will effectively negate a large measure of the benefit of the

prohibition elsewhere along the corridor.

In addition to ensuring the benefits of the prohibition within the

zone, imposition of a horn prohibition on a zone basis will eliminate

excessive, and unnecessary workload demands on the engineer, permitting

greater attention to other locomotive operating requirements. Without a

zone prohibition, the engineer will be faced with the need to

constantly be aware of which crossings are subject to a prohibition and

which are not. Such a situation provides a greater chance of human

error than if the engineer need only concentrate on groups of

crossings. Paragraph (d) establishes the minimum length of a quiet zone

as 2,640 feet (one-half mile). The community which establishes a quiet

zone has the discretion to determine the length (subject to the one-

half mile minimum); however, certain factors should be taken into

consideration in establishing such a quiet zone. While locomotive horns

can not be routinely sounded at all crossings within the quiet zone, it

is entirely possible that sound from a locomotive horn for a crossing

just outside the quiet zone will begin in the quiet zone or will

intrude into the area of the quiet zone. It is up to the community to

devise the placement of a quiet zone to minimize that effect.

The following is an example of two different acceptable quiet

zones in terms of placement: Example No. 1: A single grade crossing

at milepost 4.5 is subject to a quiet zone. In this situation, the

quiet zone would extend at least one-quarter-mile in each direction

along the right-of-way. If there are public highway-rail grade

crossings at milepost 4.2 or 4.8, (both of which are outside of the

quiet zone), locomotive horns would need to be sounded for those

crossings, despite beginning within the quiet zone or despite

intruding into the quiet zone. In this example, a community could

extend the quiet zone to include either, or both additional

crossings. Those crossings must then either comply with the

requirements contained in Appendix A, or the quiet zone as a whole

must compensate for the lack of a horn through a combination of

measures from Appendix A and Appendix B.

Example No. 2: Four public highway-rail grade crossings at every

block for a distance of .4 mile. (Crossings at mileposts 4.5, 4.6,

4.7, 4.8 are subject to a quiet zone.) Additional crossings at

mileposts 4.3 and 4.4 do not have to be included in a quiet zone if

the quiet zone is extended in the other direction along the track--

to milepost 5.0. That would be acceptable even if there were no

crossings from milepost 4.8 to 5.0. The crossings within the quiet

zone in this example, like the crossings in Example No. 1, must then

either comply with the requirements contained in Appendix A, or the

quiet zone as a whole must compensate for the lack of a horn through

a combination of measures from Appendix A and Appendix B. It is

clear that under this approach, locomotive horn noise for crossings

at mileposts 4.3 and 4.4 will intrude or begin within the quiet

zone. However, the approach set out here provides a community with

the greatest flexibility in determining how to, and where to

establish quiet zones.

BILLING CODE 4910-06-P

[[Page 2248]]

[GRAPHIC] [TIFF OMITTED] TP13JA00.001

BILLING CODE 4910-06-C

Requirement for Active Warning Devices

Paragraph (e) provides that, except for slow speed train movements

over public highway-rail grade crossings as addressed in Sec. 222.31,

and quiet zones established in accordance with paragraph (c) of this

section, each crossing in a quiet zone must be equipped with automatic

gates and flashing lights that conform to the standards contained in

the Manual on Uniform Traffic Control Devices. This section makes it

clear that installation or upgrading of these devices is not regarded

as implementation of supplementary safety measures under this part, nor

will the risk reduction resulting from the installation or upgrading be

credited toward the compensating reduction in risk referenced in

paragraph (b). If the new warning system exceeds the standards of the

MUTCD and conforms to the requirements for supplementary safety

measures contained in Appendix A, that risk reduction attributable to

the supplementary safety measure in accordance with Appendix A may be

credited toward the risk reduction referenced in paragraph (b).

Requirement for Advance Warning Signs

Paragraph (f) ensures that motorists are notified wherever horns

are not required to be sounded. The paragraph requires that each

highway approach to each public highway-rail crossing at which

locomotive horns are not routinely sounded pursuant to this part shall

be equipped with an advance warning sign advising the motorist that

train horns are not sounded at the crossing. FRA will leave to

individual states the decision as to specific size and design of the

required signs, however, they must be in conformance with the MUTCD.

FRA is not at this time proposing that approaches to each private

highway-rail crossing be equipped with such advance warning signs. FRA

solicits comments as to whether such signs should be required, and if

so, who should be responsible for installation and maintenance. A

factor to consider is that by definition, the approaches to these

crossings are on private, rather than public property.

Section 222.35 Notifications, Affirmations, and Required Information

Paragraph (a) requires a state or local government designating a

quiet zone under Sec. 222.33(a) to provide written notice of the

designation to all railroads operating over public highway-rail grade

crossings within the quiet zone, the highway or traffic control

authority and law enforcement authority having control over vehicular

traffic at the crossings within the quiet zone, the state agency

responsible for highway and road safety, and the FRA Associate

Administrator for Safety. In order to ensure that all parties have

notice and sufficient time to prepare for the change at the crossings,

all notices required under this section must be provided by certified

mail, return receipt requested.

Paragraph (b) contains the notice requirements which apply to the

[[Page 2249]]

situation in which a state or local government has proposed a quiet

zone for acceptance by FRA under Sec. 222.33(b). Upon acceptance of a

quiet zone by FRA, the state or local government must provide written

notice by certified mail, return receipt requested, of the acceptance

to all railroads operating over the public highway-rail grade crossings

within the quiet zone, the highway or traffic control authority or law

enforcement authority having control over vehicular traffic at the

crossings within the quiet zone, and the state agency responsible for

highway and road safety.

Paragraph (c) ensures that certain needed information is provided

to FRA. This section requires that certain information be provided to

the FRA Associate Administrator for Safety.

Paragraph (1) requires an accurate and complete U.S. DOT-AAR

National Highway-Rail Grade Crossing Inventory Form (Inventory Form)

for each crossing dated within six months prior to the designation of

FRA acceptance of the quiet zone. The information from this form will

establish a base-line from which FRA can determine the measures taken

by the state or locality to compensate for the lack of a locomotive

horn.

Paragraph (2) requires submission of a current Inventory Form which

reflects the supplementary and alternative safety measures which have

been put in place upon establishment of the quiet zone.

Paragraph (3) requires the name and title of the state or local

official responsible for monitoring compliance with this regulation and

the manner in which the person can be contacted.

Section 222.37 Quiet Zone Implementation

Paragraph (a) provides that a quiet zone can not be implemented

until all requirements of Sec. 222.35 are complied with and at least 14

days have elapsed since the required parties have received the

notifications required by that section. The notification provision and

two-week delay will ensure that the various interested parties have

time to inform employees and others regarding the changes at the

crossings. Paragraph (b) provides that all railroads operating over

public highway-rail grade crossings within a quiet zone established in

accordance with this regulation shall cease routine use of the

locomotive horn as of the date established by the state or local

government, which of course can be later than the 14 day minimum

period. This paragraph prohibits the routine use of the locomotive horn

within the quiet zone. However, the rule is not meant to prohibit the

occasional use of the horn for railroad operating purposes such as for

crew and flagger communications when radios fail. The rule does not

prohibit use of the horn in emergency situations or as a method of

warning railroad workers of the approach of the train. (See

Sec. 222.23.)

Section 222.39 Quiet Zone Duration

Paragraph (a) governs the duration of quiet zones designated by

state or local governments under Sec. 222.33(a) i.e., zones in which

supplementary safety measures are in place at each crossing. A quiet

zone may remain in effect indefinitely if all the requirements of this

rule are complied with, and if, within six months before the expiration

of five years from the original designation made to FRA, the

designating entity (the state or local government) affirms in writing,

by certified mail, return receipt requested, to the same parties

receiving the original notification of implementation of the quiet

zones under Sec. 222.35(a), that the supplementary safety measures

implemented within the quiet zone continue to conform to the

requirements of Appendix A of the regulation. The designating entity

must thereafter affirm within six months before the fifth anniversary

of the prior affirmation that the supplementary safety measures

implemented within the quiet zone continue to conform to the

requirements of Appendix A of the regulation.

This paragraph, as well as paragraph (b), also requires that along

with its affirmation, the governmental entity must send to the FRA

Associate Administrator for Safety an accurate and complete U.S. DOT-

AAR National Highway-Rail Grade Crossing form (FRA F6180.71) (available

through the FRA Office of Safety Analysis, 202-493-6299) for each

public highway-rail grade crossing. This requirement will ensure that

the National Inventory is kept current regarding all crossings within

quiet zones.

Paragraph (b) governs the duration of quiet zones accepted by FRA

under Sec. 222.33(b), i.e., zones that, as a whole, comply with

Appendix B. This provision is similar to paragraph (a), with the

exception that the period between affirmations is 3, rather than 5

years and that the state or local government must affirm that the

supplementary and alternative safety measures in place continue to be

effective and continue to fully compensate for the absence of the

warning provided by the locomotive horn. FRA is proposing a shorter

period between affirmations because of the greater possibility that

changed circumstances will affect the effectiveness of the safety

measures put in place in the quiet zone. Because every public highway-

rail crossing subject to the five year affirmation period has in place

a supplementary safety measure providing sufficient compensation for

lack of a locomotive horn, as long as such measures remain in place,

FRA can be assured that safety is being maintained along the entire

quiet zone. However, because the safety measures instituted at

crossings subject to the three year affirmation period are dependent on

local circumstances and local effort, review on a more frequent basis

is appropriate. FRA solicits comment on this proposal.

Paragraph (d) provides that the FRA Associate Administrator for

Safety may, at any time, review the status of any quiet zone and

determine whether the safety measures in place fully compensate for the

absence of the warning provided by the locomotive horn under the

conditions then present at the public highway-rail grade crossings

within the quiet zone. This oversight will enable FRA to take action in

the event that conditions at the crossings have changed sufficiently so

that safety measures originally installed and implemented are

insufficient to compensate for the lack of a horn. Under this

provision, if the Associate Administrator makes a preliminary

determination that the safety measures in place do not fully compensate

for the absence of the locomotive horn, notice of the determination

will be published in the Federal Register and an opportunity for

comment and informal hearing will be provided. The Associate

Administrator may thereafter require that additional safety measures be

taken to ensure that there is full compensation for the absence of the

locomotive horn. This paragraph also provides for termination of the

quiet zone if conditions so warrant.

Section 222.41 Supplementary and Alternative Safety Measures

Paragraph (a) states that a list of approved supplementary safety

measures are listed in Appendix A to this regulation. These measures,

based on the best available data, have been determined by FRA to be an

effective substitute for the locomotive horn in the prevention of

highway-rail casualties.

Paragraph (b) states that additional, alternative safety measures

that may be included in a request for FRA acceptance of a quiet zone

under Sec. 222.33(b) are listed in Appendix B.

Paragraph (c) states that Appendix C contains a list of those

situations which the Administrator has determined do

[[Page 2250]]

not present a significant risk with respect to loss of life or serious

personal injury from establishment of a quiet zone. In the very limited

situations listed, supplementary safety measures are not required

because the requisite level of safety has already been achieved.

Paragraph (d) provides that the Administrator will add new listings

to Appendices A or B when the Administrator determines that such

measures or standards are effective substitutes for the locomotive horn

in the prevention of highway-rail grade crossing casualties. The

Administrator will add new listings to Appendix C when it is determined

that no negative safety consequences result from the establishment of a

quiet zone under the listed conditions.

Paragraph (e) is based on language contained in the Act, and makes

clear that the following traditional highway-rail grade crossing safety

measures do not individually, or in combination, constitute

supplementary safety measures: standard traffic control devices or

arrangements such as reflectorized crossbucks, stop signs, flashing

lights, or flashing lights with gates that do not completely block

travel over the line of railroad, or traffic signals.

Section 222.43 Development and Approval of New Supplementary Safety

Measures

This section discusses the manner in which new supplementary safety

measures may be demonstrated and approved for use. Paragraph (a)

provides that interested parties may demonstrate proposed new

supplementary safety measures to determine if they are an effective

substitute for the locomotive horn in the prevention of highway-rail

grade crossing casualties. Paragraph (b) provides that the

Administrator may order railroad carriers operating over a crossing or

crossings to temporarily cease the sounding of locomotive horns at such

crossings to demonstrate proposed new supplementary safety measures.

This paragraph reflects statutory language and requires that such

proposed new supplementary safety measures have been subject to prior

testing and evaluation before such an order is issued. The

Administrator's order to the railroads to temporarily cease sounding of

horns may contain any conditions or limitations deemed necessary in

order to provide the highest level of safety. These provisions provide

an opportunity for the testing and introduction of new grade crossing

safety technology which would provide a sufficient level of safety to

enable locomotive horns to be silenced. FRA has, in one case to date,

ordered a railroad to cease sounding horns for the purposes of testing.

In Spokane, Washington, the Burlington Northern Santa Fe Railway

(BNSF), Spokane County, Washington State Public Utilities Commission

and the FRA worked together to test the effectiveness of median

barriers as a substitute for the locomotive horn. See 62 FR 54681,

August 21, 1997. To accomplish this test, BNSF was ordered to cease

sounding of the horn after installation of engineering improvements at

the two subject crossings. This test is continuing.

Paragraph (c) provides that upon the successful completion of a

demonstration of proposed supplementary safety measures, interested

parties may apply for their approval. This section requires certain

information to be included in every application for approval.

Paragraphs (d) and (e) provide that if the FRA Associate

Administrator for Safety is satisfied that the proposed supplementary

safety measure fully compensates for the absence of the locomotive

horn, its use as a supplementary safety measure (with any conditions or

limitations deemed necessary) will be approved and it will be added to

Appendix A.

Paragraph (f) provides an opportunity to appeal a decision of the

FRA Associate Administrator for Safety. The party applying for approval

of a supplementary safety measure may appeal to the Administrator a

decision by the FRA Associate Administrator for Safety rejecting a

proposed supplementary safety measure or the conditions or limitations

imposed on use.

Section 222.45 Communities With Pre-existing Restrictions on Use of

Locomotive Horns

Section (i)(1) of section 20153 requires that in issuing these

regulations, FRA take into account the interests of communities that

``have in effect restrictions on the sounding of a locomotive horn at

highway-rail grade crossings, or have not been subject to the routine *

* * sounding of a locomotive horn at highway-rail grade crossings. This

section is meant to address that statutory requirement. FRA requests

public comment regarding the provisions of this section. Paragraph (a)

provides that communities which as of the date of issuance of this NPRM

have enacted ordinances restricting the sounding of locomotive horns,

or communities which as of the same date have not been subject to the

sounding of locomotive horns at public highway-rail crossings due to

formal or informal agreements with the railroad may continue those

restrictions for a period of up to three years from the date the final

rule is issued. This period will enable the community to plan for, and

implement additional safety measures at the affected crossings without

the sounding of horns in the intervening period. This three-year period

is dependent on compliance with paragraph (b).

Paragraph (b) states that if a community with pre-existing

restrictions on locomotive horns has not designated a quiet zone (under

Sec. 233.33(a)) or had a quiet zone accepted by FRA (under

Sec. 233.33(b)) within two years after the date of issuance of the

final rule, the community must, within two-years of issuance of the

final rule, initiate or increase highway-rail grade crossing safety

public awareness initiatives and grade crossing traffic law enforcement

programs in an effort to offset the lack of supplementary safety

measures at the affected crossings. If, however, the community does not

take actions to initiate or increase public awareness initiatives and

traffic law enforcement programs, locomotive horns must be sounded in

accordance with Sec. 222.21. Thus, the effect of paragraphs (a) and (b)

provides communities with pre-existing whistle bans a three-year grace

period to comply with Secs. 233.33(a) or (b). If those communities do

not initiate or increase public awareness initiatives and traffic law

enforcement programs by the end of the second year after issuance of

the final rule, then the three year grace period is reduced to two

years.

A number of communities wishing to implement quiet zones have

worked with FRA in developing programs of supplementary safety

measures. These programs reflect the early commitment of local

officials to both improve railroad safety and to minimize the

disruption caused by train horns. These communities were concerned that

if they invested funds in engineering improvements prior to issuance of

this rule, those improvements might not be among those approved in the

final rule, and thus they would be forced to spend more tax dollars

installing other safety improvements after the final rule was issued.

Given the absence of a regulation in force, the communities were free

to ban sounding of the locomotive horn without implementing any grade

crossing safety improvements at all. Neither these communities, nor

FRA, wanted a whistle ban without supplementary safety measures in

place. Therefore, FRA partnered with these

[[Page 2251]]

communities to develop workable, sound safety plans. As a result of

these efforts, communities were able to reduce noise intrusion while

FRA reaped the benefits of ``real world'' experience in the

implementation of supplementary safety measures.

The quiet zones established, or planned to be established, by the

following communities have been evaluated by FRA as being in compliance

with the requirements of proposed Sec. 222.33(b): crossings in

Burlington, Vermont suburbs on the Vermont Railway; crossings in

Louisville, Kentucky on CSX Transportation Company; single crossing at

McNabb Road on Southeast Florida Rail Corridor; single crossing in

Richardson, Texas; five crossing in Yakima, Washington, on the BNSF

Railway; single crossing in Spokane, Washington on BNSF Railway; eleven

crossings in Covina, California on MetroLink; and a single crossing in

Westfield, New Jersey on the Lehigh Valley Railroad.

Accordingly, FRA proposes to exempt those communities from the

initial acceptance requirements of that paragraph. Provisions of

Sec. 222.39(b) (Quiet Zone Duration) which contains periodic

reaffirmation and notification requirements would apply to those quiet

zones. FRA solicits comments regarding this, or any other suggested

regulatory approach to those communities which have pre-existing

restrictions on the use of locomotive horns.

Appendices A and B

Appendix A lists those supplementary safety measures which FRA has

determined effectively compensate for the lack of a locomotive horn.

Because each supplementary safety measure in this appendix fully

compensates for the lack of a locomotive horn, a quiet zone may be

established without specific FRA approval.

Appendix B lists those alternative safety measures which may

compensate for the lack of a locomotive horn depending on the extent of

implementation of the safety measure. Because of the many possible

variations, FRA acceptance of the proposed implementation plan is

required.

Community Guide

The introduction to Appendix A discusses the issues and actions

that state and local governments should be aware of in determining how

to proceed in implementing quiet zones. The guide is meant to assist in

the community's decision-making process in determining whether to

designate a quiet zone under Sec. 222.33(a) or to apply for acceptance

of a quiet zone under Sec. 222.33(b). The guide also contains details

regarding the methods to be used in performing analyses which must

accompany applications for acceptance of a quiet zone under

Sec. 222.33(b). If a crossing within a proposed quiet zone can not be

addressed with a supplementary safety measure from Appendix A, the

applicant community (or state) will need to show that once a quiet zone

is implemented under the alternative safety measures listed in Appendix

B, the number of accidents that can be expected on that quiet zone

corridor will not increase. As a basis for that series of calculations,

which are described in detail in the Introduction, FRA proposes to

require that communities use the DOT Highway-Rail Crossing Accident

Prediction Formula. The Accident Prediction Formula provides a means of

calculating the expected annual number of accidents and casualties at a

crossing on the basis of the crossing's characteristics and the

crossing's historical accident experience. FRA's Regional Managers for

Highway-Rail Crossing Safety who are located throughout the United

States will be available to assist the communities in performing that

analysis. Thus, all calculations involving a specific corridor proposed

for a quiet zone will be based on the accident history at those

crossings together with the characteristics of the crossing.

Appendix A

This Appendix lists those supplementary safety measures which FRA

has determined effectively compensate for the lack of a locomotive

horn. Included in the discussion of each supplementary safety measure

is an ``effectiveness'' figure for that measure. That figure indicates

the effectiveness of the supplementary safety measure in reducing the

probability of a collision at a highway-rail grade crossing.

The effectiveness (see definition of effectiveness rate in

Sec. 222.7) figures discussed for each supplementary safety measure are

based on available empirical data and experience with similar

approaches. The effectiveness figures used in Appendix A are subject to

adjustment as research and demonstration projects are completed and

data is gathered and refined. FRA proposes to use these estimates as

benchmark values to determine the effectiveness of an individual

supplementary safety measure and the combined effectiveness of all

supplementary safety measures along a proposed quiet zone. FRA seeks

comments, including any data or analysis, concerning the

appropriateness of the individual estimates. FRA also encourages public

comments on the appropriateness of this approach in general.

FRA's national study of train horn effectiveness indicated that

collision probabilities increase an average of 62 percent when horns

are silenced. As such, the supplementary safety measure should have an

effectiveness of at least .38 (reducing the probability of a collision

by at least 38 percent) in order to compensate for this 62 percent

increase. For example, if a select group of 1,000 crossings are

expected to have 100 collisions per year with train horns being

sounded, this same group of crossings would be expected to have 162

collisions per year once the train horn is banned if no other safety

measures are implemented and other factors remain unchanged.

Conversely, if these same crossings were experiencing 162 collisions

per year while the horn was banned, it would be expected that this

number would reduce to 100 once use of the horn is reinstituted. This

would equate to an effectiveness of 62/162, or .38.

FRA is aware this figure is an average, but it has the benefit of

reflecting the broadest range of exposure available to the agency. FRA

is willing to consider well founded arguments that train horn

effectiveness is heightened or reduced under specific circumstances.

However, any such argument would need to be grounded in sound data and

analysis. This could potentially create significant difficulty in

administration of the final rule, since historic collision patterns

over a small number of crossings are not, by themselves, meaningful

predictors of future exposure. FRA requests comment as to whether it is

practical to use any value other than a national average with respect

to train horn effectiveness.

There is one case for which FRA has sufficient data to estimate

train horn effectiveness on a particular corridor. That is the Florida

East Coast Railroad and the territory subject to Emergency Order 15. In

that case, FRA can point to exposure for over 500 crossings over a

period of eight years with experience both before and after the whistle

ban period indicating consistent results. For that territory, FRA

proposes to apply an effectiveness rate of 68% (.68) for the train

horn. It should be noted that the extraordinary impacts shown in

Florida have been segregated from the ``national'' data, and the

national average of effectiveness of .38 (38 percent reduction) for

train horns does not include the Florida experience. FRA requests

comment as to what extent the

[[Page 2252]]

Florida experience may be relevant to other areas.

Much of the data available today to evaluate the effectiveness of

supplementary safety measures reflects the reduction in violation

rates, not collision rates. (Collisions are rare, and determination of

a collision rate reduction for any one supplementary safety measure

requires long term data collection.) Only one study (in Los Angeles)

has contrasted collision rates with violation rates, and out of

necessity (until additional data is available), this finding is used in

these analyses. In the Los Angeles demonstration it was noted that a

carefully administered and well publicized program of photo enforcement

reduced violation rates by 92 percent, while collisions were reduced by

only 72 percent. This ratio, 72:92 or .78, is proposed to be used to

adjust violation rate reductions in order to estimate resultant

reductions in collision rates for law enforcement and education/

awareness options described in Appendix B. Violations that result in

collisions constitute a small subset of all violations. It is

reasonable to infer that education and legal sanctions may lack

effectiveness for several segments of the population, including those

who do not become aware of the countermeasures (e.g., because they are

not residents of the area, do not follow public affairs in the media,

or are difficult to reach because they are not fluent in English or

other principal languages in which information is disseminated) and

those who are particularly inclined to violation of traffic laws. As

such, for law enforcement and education/awareness options the rate of

violations must be reduced at least 49 percent (measure must have an

effectiveness value of at least .49) in order to realize the required

38 percent reduction in the risk of collision.

In contrast, engineering improvements such as those described in

Appendix A appear to work in synergy with existing warning systems to

condition and modify motorist behavior, reducing both the number of

violations and the number of very close calls (violations within a few

seconds of the train's arrival). Four-quadrant gates installed to date,

for instance, appear to have been completely successful in preventing

collisions. Although we would not expect this extraordinarily high

level of success to be sustained over a broader range of exposure,

excellent results would be expected. Accordingly, for engineering

improvements contained in Appendix A this notice adopts estimates of

success drawn from carefully monitored studies of individual crossings.

FRA is aware that the number and duration of observations in site-

specific studies is small. However, FRA is working with a variety of

parties to gather additional information that may be helpful in

achieving further refinement of effectiveness rates and greater

confidence that they predict future outcomes in circumstances not

identical to those specifically studied. FRA has sought partnerships

with communities to implement or preserve quiet zones through use of

supplementary safety measures. Unfortunately, many communities have

taken the view that they will wait to see how the rulemaking might

proceed before acting. Accordingly, FRA will proceed with the

information available and will continue to gather effectiveness data as

this rulemaking proceeds.

1. Temporary Closure of a Public Highway-Rail Grade Crossing

This supplementary safety measure has the advantage of obvious

safety and thus will more than compensate for the lack of a locomotive

horn during the periods of crossing closure. The required conditions

for closure are intended to ensure that vehicles are not able to enter

the crossing. In order to avoid driver confusion and uncertainty, the

crossing must be closed during the same hours every day and may only be

closed during one period each 24 hours. FRA believes that such

consistency will avoid unnecessary automobile to automobile collisions

in addition to avoiding collisions with trains. Activation and

deactivation of the system is the responsibility of the local traffic

control authority or the entity responsible for maintenance of the

street or highway crossing the railroad. Responsibility for activation

and deactivation of the system may be contracted to another party,

however the appropriate governmental entity shall remain fully

responsible for compliance with the requirements of this section. In

addition, the system must be tamper and vandal resistant to the same

extent as other traffic control devices.

Effectiveness: Because an effective closure system prevents vehicle

entrance onto the crossing, the probability of a collision with a train

at the crossing is zero during the period the crossing is closed.

Effectiveness would equal 1. However, traffic would need to be

redistributed among adjacent crossings or grade separations for the

purpose of estimating risk following imposition of a whistle ban,

unless the particular ``closure'' was accomplished by a grade

separation.

2. Four-Quadrant Gate System

A four-quadrant gate system involves the installation of gates at a

public highway-rail grade crossing to fully block highway traffic from

entering the crossing when the gates are lowered. This system includes

at least one gate for each direction of traffic on each approach. A

four quadrant gate system is meant to prevent a motorist from entering

the oncoming lane of traffic to avoid a fully lowered gate in the

motorist's lane of traffic. Because an additional gate would also be

fully lowered in the other lane of the road, the motorist would be

fully blocked from entering the crossing.

In defining ``supplementary safety measures'' Congress approved use

of four quadrant gates as supplementary safety measures. The definition

states in part: ``A traffic control arrangement that prevents careless

movement over the crossing (e.g., as where adequate median barriers

prevent movement around crossing gates extending over the full width of

the lanes in the particular direction of travel), and that conforms to

the standards prescribed by the Secretary * * * shall be deemed to

constitute a supplementary safety measure.'' The Association of

American Railroads (AAR) has shared with FRA its views on four-quadrant

gates. The AAR states, ``Since the operation of 4-quadrant gates has

not yet been fully tried and proven, a false perception has been

conveyed to [municipalities and state transportation agencies].

Continual advocacy of 4-quadrant gates * * * has put undue burdens on

the railroads and its supply industry. The railroads are committed to

grade crossing safety but are not exactly sure how 4-quadrant gates

shall operate or if they will provide any additional benefits. * * *''

The AAR requested that FRA ``abstain from advocating the application of

4-quadrant gates until the operational and liability issues have been

resolved.'' The AAR also submitted for FRA consideration a study

entitled ``Design of Gate Delay and Gate Interval Time for Four-

Quadrant Gate System at Railroad-Highway Grade Crossings'' by Dr. Fred

Coleman of the University of Illinois. Dr. Coleman studied safe

operating time parameters of four quadrant gates.

FRA has participated with the AAR, the Federal Highway

Administration, the Brotherhood of Railroad Signalmen and railroad

suppliers in discussions regarding four-quadrant gate systems. Those

discussions resulted in some broad areas of agreement which have been

incorporated into this proposed rule. Among areas of agreement are: (1)

The need to do a location-specific

[[Page 2253]]

engineering study of the exit gate delay time; (2) that failure of the

system would place the exit gates in the up position; and (3) highway

presence detectors would be installed and maintained at the election

of, and by, the local highway authorities. If detectors are provided,

exit gates would remain up during the period the crossing is determined

to be occupied by highway traffic.

Four-quadrant gate systems have been in existence for many years,

and FRA believes that they have been fully tried and proven. There have

been installations in several states: Wyoming; Tennessee; New Jersey;

North Carolina; and Ohio, as well as in Canada, which involve various

railroads, including the Burlington Northern Santa Fe, Norfolk

Southern, New Jersey Transit Rail Operations, and Calgary Transit.

Further, FRA understands that the Metropolitan Transportation Authority

of Los Angeles is implementing four-quadrant gates on one of its

transit lines. FRA welcomes a discussion of the efficacy of four-

quadrant gates, timing and other safety considerations and any proposed

alternatives to these gates.

FRA proposes that the following be required for all four-quadrant

gate systems: When a train is approaching the crossing, all highway

approach and exit lanes on both sides of the grade crossing must be

spanned by gates to deny to the highway user the option of

circumventing the conventional approach lane gates by switching into

the opposing (oncoming) traffic lane in order to enter the crossing and

cross the tracks. When the gates are fully lowered the gap between the

ends of the gates must be less than two feet if no median between lanes

is present. If there is a median or if channelization devices are

installed, the gap between the gate end and the median or

channelization device must be within one foot. If ``break-away''

channelization devices are used they must be frequently monitored and

broken elements replaced. FRA also proposes to require that constant

warning time devices activate the gates. This requirement will ensure

that the gates are activated at the same amount of time prior to the

arrival of a train irrespective of its speed. This will avoid long

unnecessary waits at crossings being approached by very slow moving

trains. FRA would also require that signs be posted alerting motorists

that the train horn does not sound.

FRA also strongly recommends that the following conditions be

applied when new four-quadrant gates are installed: Gate timing should

be established by qualified traffic engineers. Because each crossing

presents unique topographic and traffic conditions, such timing should

be established base

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