# Use of Locomotive Horns at Highway-Rail Grade Crossings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A03-30606 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 18, 2003 - **Citation:** 68 FR 70586 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 222 and 229 [Docket No. FRA-1999-6439, Notice No. 8] RIN 2130-AA71 Use of Locomotive Horns at Highway-Rail Grade Crossings AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Interim final rule. SUMMARY: FRA is issuing rules to require that a locomotive horn be sounded while a train is approaching and entering a public highway-rail crossing. The 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 safety measures fully compensate for the absence of the warning provided by the horn. This rule is required by law. DATES: The effective date is December 18, 2004. Written Comments: Comments must be received by February 17, 2004. Comments received after that date will be considered to the extent possible without incurring additional expense or delay. Public Hearing: FRA intends to hold a public hearing in Washington, DC to allow interested parties the opportunity for oral comment on issues addressed in the interim final rule. The date and specific location of the hearing will be set forth in a forthcoming notice that will be published in the Federal Register and posted on FRA's Web site ( http://www.fra.dot.gov ). ADDRESSES: You may submit comments identified by DOT DMS Docket Number FRA-1999-6439 by any of the following methods: • Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1-202-493-2251. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, S.W., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. Instructions: All submissions must include the agency name and docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://dms.dot.gov, including any personal information provided. Please see the Privacy Act heading under Regulatory Notices. Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120 Vermont Avenue, NW.,Washington, DC 20590 (telephone: 202-493-6299); or Kathryn Shelton or Mark Tessler, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: 202-493-6038). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information 1. Background 2. Who is at Risk in a Grade Crossing Collision 3. FRA'S Study of Florida's Whistle Ban 4. FRA'S Nationwide Study of Whistle Bans 5. Statutory Mandate 6. Issuance of Interim Final Rule 7. Effective Date of This Rule 8. Rule Summary 9. Overview of the Interim Final Rule; Principles, Strategies and Major Outcomes A. Usefulness of the Train Horn B. Incompatibility of Horn Noise with Community Needs C. Crafting Exceptions to the Use of the Train Horn D. Alternatives Considered E. Implementing the Interim Final Rule F. Existing Bans and New Quiet Zones G. Requirements for the Train Horn and its Use H. Post-NPRM Ban Impact Studies 10. Funding 11. Liability 12. Wayside Horn 13. Horn Sound Level and Directionality 14. Chicago Regional Issues A. Introduction B. Legislative and Administrative Actions in Illinois C. Actual Practice Sounding Train Horns in the Chicago Region D. Current Chicago Region Whistle Ban Status E. Community Reaction to the Proposed Rule F. Methodology/inventory Data G. “Chicago Anomaly” A. Safety Trend Lines I. Accident-free and Low Risk Jurisdictions J. Impracticality K. Costs L. Time for Implementation 15. E.O. 15 Status 16. Section-by-Section Analysis 17. Regulatory Impact A. Executive Order 12866 and Dot Regulatory Policies and Procedures B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Environmental Impact E. Federalism Implications F. Compliance with the Unfunded Mandates Reform Act of 1995 G. Energy Impact 18. Privacy Act Statement 19. List of Subjects 1. Background On January 13, 2000, FRA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (65 FR 2230) addressing the use of locomotive horns at public highway-rail grade crossings. This rulemaking was mandated by Public Law 103-440, which added section 20153 to title 49 of the United States Code. The statute requires the Secretary of Transportation (whose authority in this area has been delegated to the Federal Railroad Administrator (49 CFR 1.49), to issue regulations to require the use of locomotive horns at public grade crossings, but gives the agency the authority to make reasonable exceptions. In accordance with the Administrative Procedure Act (5 U.S.C. 553), FRA solicited written comments from the public. By the close of the public comment period on May 26, 2000, almost 3,000 comments had been filed with the agency regarding this rule and its associated Draft Environmental Impact Statement. As is FRA's practice, FRA held the public docket open for late filed comments and considered them to the extent possible. Because the NPRM was the subject of substantial and wide-ranging public interest, FRA took unprecedented steps to ensure that the views of the affected public would be heard and considered in development of this interim final rule. FRA conducted a series of public hearings throughout the United States in which local citizens, local and State officials, and members of the U.S. House of Representatives and Senate testified. Twelve hearings were held (Washington, DC; Fort Lauderdale, Florida; Pendleton, Oregon; San Bernadino, California; Chicago, Illinois (four hearings in the greater Chicago area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; and Madison, Wisconsin) at which more than 350 people testified. The extent of public comment and testimony throughout the country is evidence of the wide-ranging public interest in this rulemaking. Because the vast majority of people reading this document will not have the benefit of having the NPRM at hand, a portion of the “Background” section which appeared in the proposed rule is being repeated here (with updated data, where appropriate) in order to provide the necessary perspective in which to view Congress' mandate and the resulting rule. Approximately 4,000 times per year, a train and a highway vehicle collide at one of this country's 251,000 public and private highway-rail grade crossings. Of those crossings, more than 153,000 are public at-grade crossings—those crossings in which a public road crosses railroad tracks at grade. During the years 1997 through 2001, there were 17,601 grade crossing collisions in the United States. These collisions are one of the greatest causes of death associated with railroading, resulting in more than 400 deaths each year. For example, in the 1997-2001 period, 2,140 people died in these collisions. Another 6,615 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 forty times more likely to result in a fatality. 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 the potential for 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. 2. Who Is at Risk in a Grade Crossing Collision? Many people, including a number of commenters to the NPRM, have expressed the view 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 agrees that drivers who unlawfully enter grade crossings should be punished in accordance with appropriate traffic laws. However, strong public policy reasons argue in favor of reasonable measures to protect all who are put at risk at grade crossings, even drivers who disregard warning devices. Overlooked in this debate are the many innocent victims of crossing collisions, including 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. A number of locomotive engineers have commented that they or their colleagues have had to deal with the trauma associated with helplessly watching people being killed beneath their trains. Two hundred railroad passengers were also injured and two died. In Bourbonnais, Illinois, in 1999, eleven 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 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 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. 3. 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. section 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 were 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 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. Daytime collision rates were not increasing at the very same crossings that had whistle bans at night. If population was a factor, then the daytime 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 nighttime 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. 4. 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. 1 The study also did not include crossings on small, short line railroads, and certain regional 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. 1 The FEC crossings comprised virtually all of the whistle ban crossings in Florida. For simplicity, FRA elected to remove all Florida crossings from the national study. Since it became apparent from this initial national review that the FEC experience represented the high end of ban impacts, and since those impacts had been mitigated by E.O. 15 with respect to the later study period, FRA continued to remove both Florida ban crossings and Florida train horn crossings from all subsequent studies. Florida public crossings represent 2.6 percent of public crossings, so this omission should not materially affect the national analysis. 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 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 and the resulting casualties are shown in Table 2 (casualty figures in this table exclude casualties to railroad employees). It is interesting to note that the mean train speed (train speed is positively correlated with fatalities) varies by type of collision. Of the injuries and fatalities shown in Table 2, 11 injuries and 5 deaths occurred when the vehicle was hit by a second train. Table 2.—Type of Collision Type of collision Injuries Fatalities Mean train speed Motor vehicle struck train 51 8 15.5 Train struck motor vehicle 224 89 25.4 The driver was killed in the collision in 42 instances (5.3 percent 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 percent). 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 percent) at whistle-ban crossings the driver was moving over the crossing. Additionally, in almost every collision (97 percent), 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 percent 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. 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. 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 resuming use of the 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 Supplemental Safety Measures (SSMs) 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 train horn docket. Another result of the outreach effort was the identification by communities and State and local governmental agencies of 664 additional crossings that were purportedly 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. Prior to issuing the NPRM, FRA updated its analysis of safety at whistle ban crossings, expanding it to include data for all the Chicago Region crossings as well as for a few other newly identified locations. 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 only, such as “crossbucks” or other signs). By separating crossings according to the different categories of warning devices installed, FRA was better able to identify the level at which locomotive horns increase safety at crossings with different types of warning devices 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. 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, closer than the motorist sitting at least a car hood length or more back from the edge. 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 were 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. For purposes of the NPRM, FRA used 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 determined that 62 percent was appropriate because it represents the elevated risk associated with crossings with automatic gates and flashing lights, which is the only category of crossings that will be eligible under this rule for new “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 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 Region where collisions appeared from available data to be 16 percent less frequent. This will be discussed in greater detail below. 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 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 judgment 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 suggested 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 was 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 roadways 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, and 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 indicated that the smallest increase in collision frequency is associated with whistle bans at passive crossings, logic suggested 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. 5. Statutory Mandate After reviewing FRA's Florida study, Congress addressed the issue. On November 2, 1994, Congress passed Public Law 103-440 (“Act”) which added § 20153 to title 49 of the United States Code. (Subsections (I) and (j) were added on October 9, 1996 when § 20153 was amended by Public Law 104-264.) The Act requires the use of locomotive horns at public grade crossings, but gives FRA the authority to make reasonable exceptions. Section 20153 of title 49 of the United States Code states as follows: “Section 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” (SSM) 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 an SSM. The following do not, individually or in combination, constitute SSMs 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, SSMs fully compensate for the 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 SSMs 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 SSMs, 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 SSMs 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 SSMs, 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.” 6. Issuance of Interim Final Rule FRA is issuing today's rule as an interim final rule, rather than as a final rule. An interim final rule has the same force and effect as a final rule, but differs from a final rule in one principal way—when an interim final rule is issued, comments are solicited and the agency reserves the right to make changes to the rule in response to the comments received. Because the rule issued today is a logical outgrowth of the NPRM, FRA could have issued it as a final rule. Both the NPRM and interim final rule issued today permit exceptions to the use of the locomotive horn, address the need to mitigate the risk associated with lack of the locomotive horn, provide for implementation of SSMs and ASMs, and address mitigation of risk on a corridor-wide, rather than individual grade crossing basis. Like one major provision of the NPRM, the interim final rule bases the determination of a corridor's risk mitigation goal on FRA's Accident Prediction Formula (APF). However, the interim final rule adds a level of further sophistication to the formula by considering collision severity and permitting quiet zones in part based on a corridor's relationship to a national crossing risk index derived from this severity-weighted APF. A large number of commenters complained that FRA did not sufficiently take into consideration safety history at the crossing. While the APF does take into consideration such past record, the interim final rule builds on the NPRM and resulting comments by placing more weight on the safety record at crossings within a corridor and permitting exceptions based on that safety record. The result—that some quiet zones may be established without the need to implement SSMs or ASMs if the corridor does not pose a significant risk based on a national standard—flows logically from the NPRM's use of the APF and the commenters' clear request to make the entire rule more risk based. Even though this rule could be issued as a final rule, FRA has determined that the public should have an opportunity to comment on the rule as changed. Because the language in some sections has been revised, FRA, and the final rule, will benefit from the input of the public; FRA has found in the past that public comments often contain suggestions that can improve a regulatory document. Therefore, comments are being solicited on all aspects of this rule [see “Public Participation” section]. FRA will review the comments and reserves the right to make revisions when issuing a final rule. 7. Effective Date of This Rule Because this interim final rule has all the legal attributes of a final rule, the effective date of this rule will be December 18, 2004. Congress specifically provided for this one year delay; subsection (j) of § 20153, which was added to the basic rulemaking mandate in 1996, provides that any regulations issued under that section shall not take effect before the 365th day following the date of publication of the final rule. Issuing this interim final rule rather than a final rule will not penalize those communities which have waited a number of years for issuance of a rule permitting the creation of quiet zones. They will still be able to establish quiet zones on the same schedule as if a final rule were issued today. Alternatively, issuance of this rule in the form of an interim final rule will not have a significant negative effect on those communities with present whistle bans. FRA has specifically included in the rule sufficient time for those communities to conform to any changes that may be made to the interim final rule in order to enable them to retain their whistle-free crossings. However, we don't believe Congress intended that FRA delay administrative actions such as working with public authorities and reviewing applications for quiet zones in order to permit communities to institute quiet zones at the earliest possible date after the one year required delay has elapsed. Accordingly, FRA will accept quiet zone applications from public authorities during the one year delay period. While this interval should enable public authorities to begin planning, they should also be aware that the final rule may contain changes based on comments to this interim final rule. Because of this uncertainty, FRA will make every effort to issue a final rule expeditiously after the close of the comment period. 8. Rule Summary The following very brief summary of this interim final rule is provided for the reader's convenience. Because this is merely a summary, it should not be relied on for definitive information regarding compliance with this rule. • This rule applies to all railroads that operate on the general railroad system of transportation. The rule does not apply to freight railroads and tourist and scenic railroads which are not on the general railroad system. It does not apply to rapid transit systems in urban areas that are not connected to the general railroad system of transportation. Rapid transit operations sharing tracks with general system railroads at crossings, or sharing crossings with general system railroads are connected to the general system at the crossings and are thus subject to part 222; however, rapid transit operations are not subject to the horn volume requirements of part 229. • Locomotive horns must be sounded while approaching and entering upon each public highway-rail grade crossing. The horn sound level must be a minimum of 96 dB(A) and no louder than 110 dB(A) measured 100 feet in front of the locomotive and 15 feet above the rail. All locomotives must sound the horn in the standard sequence of two longs, one short, and one long starting at least 15 seconds, but no more than 20 seconds before reaching the grade crossing, however, in no case may the horn be sounded more than 1/4 mile before the crossing. • A railroad may, with certain exceptions, decide to not sound the locomotive horn at a crossing if the locomotive speed is 15 miles per hour or less and train crew members or equipped flaggers flag the crossing to provide warning of the approaching train to motorists. • A quiet zone is at least 1/2 mile in length, although Pre-Rule Quiet Zones may continue unchanged. Except for certain exceptions listed in the rule, each public crossing within a New Quiet Zone must at a minimum be equipped with flashing lights, gates, and signs warning of the absence of locomotive horns. Each public crossing within a Pre-Rule Quiet Zones may retain, but must not downgrade the warning systems in place. • This rule does not cover horn use at private crossings outside of quiet zones. Their use will continue to be governed by State and local laws and private agreements. However, if a private crossing is within a quiet zone, horn use is restricted at that crossing. • The rule provides for two types of quiet zones—Pre-Rule Quiet Zones (consecutive crossings where horns were silenced by State or local law or by formal or informal agreement, and which were in existence as of October 9, 1996 and on December 18, 2003, and New Quiet Zones (quiet zones established under the terms of this rule and which do not qualify as Pre-Rule Quiet Zones). • A quiet zone may be established using SSMs, or in certain cases, ASMs, in two ways: (a) By designation by a public authority (which is the public entity responsible for safety and maintenance of the roadway crossing the railroad tracks at a public highway-rail grade crossing); or (b) by application to FRA. • A quiet zone may be designated if (a) supplementary safety measures are applied to every public grade crossing within the quiet zone; (b) the Quiet Zone Risk Index is at, or below, the Nationwide Significant Risk Threshold; or (c) supplementary safety measurers are instituted which reduce the Quiet Zone Risk Index to a level at, or below, the Nationwide Significant Risk Threshold, or to the risk level which would exist if locomotive horns sounded at all crossings within the quiet zone. The public authority has discretion as to how the Quiet Zone Risk Index is reduced, and may choose the type of SSM to be applied and the crossings at which they are to be applied in complying with either (a), (b), or (c). • If a public authority, for whatever reason, cannot comply with the requirements of quiet zone designation, it may apply to FRA for approval to establish a quiet zone using a combination of SSMs, or ASMs (which includes modified SSMs). As in quiet zone designation, the public authority has discretion as to which SSMs or ASMS to apply and where they are to be applied. However, in this case, the public authority's proposal is reviewed by FRA. If FRA determines that the safety improvements will compensate for the absence of the locomotive horn or that the safety improvements will reduce risk to a level at, or below the Nationwide Significant Risk Threshold, a quiet zone may be established. • A Pre-Rule Quiet Zone will be considered approved and may remain in effect if the quiet zone could qualify for quiet zone designation if it were a New Quiet Zone based on having a Quiet Zone Risk Index at, or below, the Nationwide Significant Risk Threshold or if there haven't been any relevant collisions at the public crossings within the quiet zone for the past 5 years and the Quiet Zone Risk Index was less than twice the Nationwide Significant Risk Threshold. • If a Pre-Rule Quiet Zone cannot comply with the requirements for a quiet zone designation as discussed above, the existing horn restrictions may continue on an interim basis. The restrictions may continue for five years if within, three years after publication of this rule, the public authority files with FRA a detailed plan for maintaining the Pre-Rule Quiet Zone (or establishing a New Quiet Zone). Horn restrictions may continue for an additional three years beyond the five-year period if the appropriate State agency provides FRA with a comprehensive statewide implementation plan and physical improvements are made within the quiet zone, or in a quiet zone elsewhere within the State, within three years and four years after publication respectively. • FRA will annually review every quiet zone established by comparing the Quiet Zone Risk Index to the Nationwide Significant Risk Threshold. If the Quiet Zone Risk Index as last calculated by FRA is at, or above, twice the Nationwide Significant Risk Threshold, or if the Quiet Zone Risk Index is above the Nationwide Significant Risk Threshold, but is lower than twice the Nationwide Significant Risk Threshold and a relevant collision occurred at a crossing within the quiet zone within the preceding five calendar years, the quiet zone will terminate six months after the date of receipt of notification from FRA of the Nationwide Significant Risk Threshold level, unless the public authority files plans to implement SSMs or ASMs within six months and implements such SSMs or ASMs within three years. • Wayside horns may be installed within a quiet zone if the public authority determines that it is appropriate to do so. Wayside horns may also be used outside of quiet zones in lieu of locomotive horns at crossings equipped with automatic flashing lights and gates. (Wayside horns have not yet been classified by FHWA as traffic control devices. If FHWA does classify them as traffic control devices, the wayside horn must also be approved in the Manual on Uniform Traffic Control Devices (MUTCD) or FHWA must approve experimentations pursuant to section 1A.10 of the MUTCD.) 9. Overview of the Interim Final Rule: Principles, Strategies, and Major Outcomes A. Usefulness of the Train Horn This rulemaking was mandated by law, but its impetus derives from a clearly defined safety need. A majority of the States and all railroads have mandated use of the train horn to provide an audible warning at highway-rail crossings. FRA research and analysis, both prior to institution of this rulemaking and during its pendency, has confirmed the beneficial safety impact of the train horn. The National Transportation Safety Board (NTSB) has also supported the need for this warning to motorists. FRA understands the point made by commenters that the horn cannot be relied on to prevent every accident, and the data confirm that. Nevertheless, the horn is one cue that is often available to the motorist at the decision point; and it should not be withheld absent serious thought about the consequences. There are some circumstances ( e.g. , restricted view) in which the train horn may be the best, and most convincing, warning to the motorist. Each year a good portion of the accidents at crossings occur when motorists are not convinced by even flashing warning lights and downed gates, and they drive around the gates and are struck by the train they neither saw nor heard. The train horn, which announces that there is, in fact, a train coming now (not switching cars down the track somewhere out of danger) may often be the most effective warning. FRA understands the sense of frustration among law-abiding citizens who feel that they should not be burdened by train horn noise (or the cost of alternatives) because other citizens violate traffic laws at highway-rail crossings equipped with flashing lights and gates. FRA is a strong proponent of law enforcement at highway-rail crossings. However, the statute clearly contemplates that motorists will be given the additional, often final warning that the train horn provides (or that other safety measures will be instituted), even where warning systems employing flashing lights and gates are present. Further, as a matter of policy, FRA believes that it is appropriate to protect even the unwise from the consequences of their misdeeds where those consequences are especially severe—and where society as a whole may bear the burden of those consequences. As noted elsewhere in this preamble, victims of collisions at highway-rail crossings are not limited to reckless or intoxicated drivers. Indeed, in many cases victims are innocent passengers who have had no control whatsoever over the driver's behavior. Even though collisions at highway-rail crossings are far more severe in their consequences than the average highway accident, most victims survive. Many incur substantial medical bills and require extended rehabilitation. Costs are borne by the general public through health and disability insurance arrangements, and through higher costs of goods and services provided by employers who must extend sick leave and other benefits. In this regard, many costs associated with casualties that occur in whistle ban jurisdictions are in effect hidden taxes on persons outside those communities over which these costs are spread. From an economic standpoint, the community enjoys its quiet and, unless measures have been taken to compensate for the silencing of the horn, someone else pays for most of it. Finally, there can be victims on the trains and in the general community, as well. Collisions between trucks and heavy trains can cause the injury or even death of train crew members. Some collisions at crossings cause trains to derail (the risk is significant when a heavy truck is involved), and cars containing hazardous materials are found in a high percentage of trains. Release of hazardous materials in a community can result in evacuations, property damage and even injury or death. When the collision involves a passenger train, the potential exists for harm to passengers, as well as crew members. Commenters were correct in noting that such events are rare, but the potential for catastrophic event is real; and an important role for safety regulation is to anticipate and mitigate these sorts of risks. In summary, we all have a stake in preventing collisions at highway-rail crossings; and there is no practical way to transfer all costs to the driver who fails to obey the law, even if that were a desirable thing. In general, these principles appear to be accepted outside of whistle ban jurisdictions. Train horns continue to sound today at over 98 percent of public highway-rail crossings, and over 9 million Americans living and working along rail lines are incidentally exposed to the “noise” from this source. Most communities and residents appear to tolerate these interruptions reasonably well. B. Incompatibility of Horn Noise With Community Needs However, two general trends appear to have converged in a manner that is antithetical to community acceptance of train horn noise under certain conditions. First, as a Nation we are becoming more sensitive to disruptive sources of noise in our environment. This reflects success in building quieter communities and in engineering noise out of daily life (through zoning, building codes, better design of motor vehicles, etc.). Second, as a result of the consolidation of the national rail system since the 1970s, rail traffic has been concentrated on fewer lines, resulting in more train movements through those communities where main lines continue to be operated. Particularly when the train horn is sounded, the number of train movements is clearly a significant factor in the “noise load” imparted to the community. For various reasons, there has been a growth in the number of ordinances and arrangements under which train horns are silenced (“whistle bans”). Further, in many communities where State law currently does not permit whistle bans, relief from the noise associated with train horns is being actively sought by residents and their elected representatives. Fear of losing existing bans, and the desire to silence train horns in some areas without existing bans, have combined to create significant public interest in this proceeding. The situation of existing whistle ban communities is particularly vexing, because public and private planning decisions have been made with the assumption that horns will be banned. Commenters in the Chicago Region 2 also called attention to the conflict between sound urban planning, which promotes construction of high density housing near a commuter railroad stations, and very frequent use of the train horn on the extremely active rail lines in that region. 2 The Chicago area, or Chicago Region, is comprised of 6 counties: Cook, DuPage, Lake, Kane, McHenry, and Will. Unfortunately, there is no known strategy for providing audible warning to motorists without also spreading unwanted noise into communities. (The wayside horn can reduce the amount of unwanted noise, but not eliminate it entirely.) Future research may permit refinement of the multi-frequency pattern of contemporary train horns, but FRA has no present information that suggests a means of providing a clearly identifiable and urgent signal in a motor vehicle using a sound that is pleasing to nearby residents. C. Crafting Exceptions to Use of the Train Horn The statute provides direction for adjusting the competing interests of safety and community quiet. Although the statute says unequivocally, “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,” most of the language of the statute has the effect of explaining how exceptions might be crafted. The statute continues: (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, SSMs fully compensate for the absence of the warning provided by the locomotive horn. The last of these exceptions—substitution of supplementary (or alternative) safety measures—was at the heart of the NPRM and remains the best means of reconciling safety and community quiet. As explained below, this interim final rule seeks to make the list of other safety measures as flexible and cost effective as possible. The second exception, which refers to a determination of impracticability, is a criterion of limited application. It is impractical to provide effective warning by sounding the horn if it is necessary to back a mile-long train over a crossing (so the crossing needs to be flagged), and it is impractical to provide a warning of suitable duration prior to the train's arrival in the case of a 110 mph passenger train (so active warning devices and a “sealed corridor” strategy are strongly recommended, whether or not the horn is used). But in most other scenarios, the train horn will serve its purpose if sounded. Some commenters invited FRA to consider the cost of SSMs as a test of impracticability, but that is really a policy or political objection, not one going to the practicability of sounding the train horn and thereby alerting the motorist. FRA believes that the suggested reading of “impractical” is not appropriate and would result in an enormous increase in safety risk by permitting train horns to be banned routinely without the need to take compensating measures. The first exception, absence of “significant risk with respect to loss of life or serious personal injury,” was relied upon in the NPRM only with respect to very limited circumstances (but comments were solicited regarding other options). As a result of testimony and written comments received from the public, including elected and appointed representatives of State and local governments, FRA has reviewed in some detail whether this criterion should be given greater effect in the final rule. The statute clearly does not require the exclusion of all risk, and FRA agrees that it is best to interpret and implement this exception, if possible, in a manner that is not in conflict with the general approach taken by the Congress and the Department of Transportation (DOT) with respect to other safety laws and regulations addressing public safety. In general, DOT and other Executive Branch departments and agencies must consider costs and benefits before issuing regulations. This is true even where statutes have mandated that rules on particular topics be issued, because in most cases the Congress has left the means of implementation to the agencies. The present rulemaking involves a much more specific mandate than typically embodied in safety legislation. Nevertheless, FRA did consider costs and benefits in crafting the proposed rule (and found that, overall, investments in safety systems used as a substitute for the horn would be recovered). However, in the NPRM, FRA did not focus sharply on the costs and benefits for those communities where the underlying risk of a casualty-producing collision is comparatively low. Some commenters in areas with existing bans responded with the criticism to the effect that, while some other community might recover its costs, for the particular community the existing risk at crossings is very low and no expenditure is warranted. In this interim final rule FRA has sought to afford greater recognition to situations where the risk of serious injury is low. In so doing, FRA has been conscious of the need to ensure public funds are expended on improvements that have significant value in holding down casualty risk. FRA has also been conscious of the fact that there may be, at least in the short term, an “opportunity cost” associated with the decision to spend scarce tax dollars on SSMs in order to maintain community quiet, rather than other uses. (In acknowledging this point, FRA notes that this is not a zero sum exercise because the avoidance of accident consequences is an economic benefit to the community.) FRA recognizes that there is no way to achieve what would be perceived as perfect justice for communities in this proceeding, any more than it is possible to eliminate all risk to persons. However, FRA has concluded that the risk assessment method selected for this proceeding should— • Permit exceptions to use of the train horn based on absence of significant risk, in most cases avoiding expenditures that would not be recovered through accident and casualty reduction; • Require use of the train horn where risk is clearly significant, unless SSMs and ASMs are implemented to abate the excess risk associated with silencing the train horn; and • Respond to changes in rail operations and communities as data becomes available to update the relevant computations. The particular means chosen by FRA to identify significant risk is the creation of a risk index by which prospective quiet zones can be rated in relation to one another and in relation to selected criteria. The method (which is more fully explained below) is applicable to quiet zones created both where there are existing bans and elsewhere. In considering how to approach this problem, FRA elected to start with the current Accident Prediction Formula (APF), which uses data elements available from the national inventory of highway-rail crossings and the FRA Railroad Accident-Incident Reporting System. The APF was developed by the Volpe National Transportation Systems Center for FRA and the Federal Highway Administration, and it is maintained in current form to support initial identification of crossings that are candidates for safety improvements using Federal funds. Many States use this formula or similar formulas to rank crossings for this purpose. The strength of the formula is in its ability to combine empirically-derived insights about risk, based on common characteristics of crossings and the accident history of the individual crossings under study. As such, it is reasonably successful in predicting where accidents will occur. As with any model of this type designed to study relatively rare events, the model is more successful in predicting results for a group of crossings with at least some similar characteristics ( e.g. , several crossings in a proposed quiet zone) than for a single crossing. Risk is defined as the product of probability (frequency) and severity (consequences), so the APF prediction of the likely number of accidents by itself is not enough. However, the suite of APF tools includes calculations that permit estimations of the likelihood that a predicted accident will result in injury or death to one or more persons. FRA has taken advantage of these tools to estimate the likely frequency of relevant (casualty-producing) collisions. To determine the likely number of injuries and fatalities in predicted accidents, FRA has employed the averages from historical accidents. In order to combine the consequences of non-fatal and fatal injury, FRA has used relational values derived from cost-benefit practice (in which the avoidance of a fatality is assigned a societal value based on established government guidelines, and both less serious and more serious non-fatal casualties are then assigned a value proportional to the value of avoiding a fatality). The result is a risk index value for each crossing. From the inception of this rulemaking (indeed, beginning with the issuance of Emergency Order 15 in 1991), FRA has sought to address the issue of quiet zones (contiguous rail corridors of reasonable length having one or more crossings) rather than individual crossings. FRA has noted that a crossing-by-crossing approach would not serve community interests, given the distance over which the horn must be sounded and given the proximity of crossings in most communities. Corridor planning permits risk reduction to be taken at the lowest possible cost, and it encourages consolidation of crossings through closure of redundant or very hazardous crossings. Further, locomotive engineers have increasingly demanding jobs and should not be distracted by the task of picking out individual crossings along their route where the horn must or must not be used. There were no comments in this proceeding that effectively questioned this rationale, and there was substantial support for it. As a result, FRA has adhered to the corridor approach in this interim final rule, so use of the risk index is specified to be at the corridor (quiet zone) level. The basic logic of the method is as follows: • Estimate the probability of injuries or fatalities at each crossing using the APF formulas; • Aggregate the risk from all crossings in the proposed quiet zone; and • Divide the risk by the number of crossings, • Yielding a risk estimate for the proposed quiet zone. This approach must be adjusted if the proposed quiet zone was not subject to an historical whistle ban, since the effect of silencing the train horn would be to drive up risk. As more fully explained below, with limited exceptions the adjustments necessarily rely on national averages of train horn effectiveness. This risk index approach permits an objective comparison of the situations in various communities, taking into account the actual accident experience to date. FRA is aware that there are limitations to the method. For instance, (i) the APF does not take into consideration every possible factor relevant to risk, (ii) data driving the predictions are largely from the great majority of crossings where the horn is used, (iii) a significant component of risk inherent in the formula outputs is not as relevant to evaluation of train horn risk ( i.e. , pedestrian casualties), and (iv) adjustments to the index based on excess risk associated with silencing the horn will understate risk in some cases and overstate risk in other cases. However, FRA is not aware of a more useful methodology for evaluating comparative risks at grade crossings, and none of the limitations appears to substantially vitiate its value for this purpose. In examining options for this interim final rule, FRA applied this methodology to known whistle ban crossings, grouping them by railroad and political jurisdiction pairs, with some segmentation to recognize that more than one rail line was present or that operational characteristics of the railroad changed markedly ( e.g. , at a junction). As reported in more detail below, the results show that there are material differences in corridor risk among the existing “whistle ban jurisdictions” (on an average per-crossing basis). FRA then performed the same calculation for all train horn crossings in the nation that are equipped with flashing lights and gates and derived an average for those crossings, which is referred to in this rule as the Nationwide Significant Risk Threshold. This measure provides a statistical tipping point by which crossings nationwide can be compared to determine the significance of the risk present. FRA's rationale for selecting this threshold as a basis of comparison was that if certain proposed quiet zones pose less risk (even when adjusted for the absence of the train horn) than the average corridor where the train horn is sounded, then the risk of not sounding the train horn in those locations might reasonably be characterized as insignificant. During the public comment cycle, FRA also heard repeatedly from existing whistle ban communities where, it was reported, there had been no accidents for many years (or none likely attributable to the absence of an audible warning). FRA recognized that, since highway-rail crossing accidents are rare events, the absence of accidents within a period of a few years might say little about underlying risk. At the same time, FRA was aware that some communities have made a real effort to stress law enforcement and public awareness; and it seemed desirable to provide some additional flexibility to communities that have not experienced a recent accident of the kind relevant to the circumstances addressed in this rulemaking. So FRA posited that it should be reasonable to subject accident-free existing whistle ban jurisdictions to a test that might be a multiple of the Nationwide Significant Risk Threshold (NSRT). A multiple of two was selected for analysis. In order to determine the implications of this methodology, including the two proposed thresholds, FRA applied the risk index method to existing whistle ban jurisdictions (WBJs) retrospectively. Employing accident data for 1990 through 1994 and grade crossing inventory information as of January 1, 1995, FRA categorized these WBJs by Crossing Corridor Risk Indices (CCRI) relative to the two thresholds: (1) CCRI less than NSRT, (2) CCRI greater than the NSRT with relevant collisions between 1990 and 1994, (3) CCRI between the product of one and two times the NSRT and no relevant collisions between 1990 and 1994, (4) CCRI greater than the product of two times the NSRT and no relevant collisions between 1990 and 1994. FRA posited that jurisdictions above the relevant thresholds ( i.e. , those above the Nationwide Significant Risk Threshold with relevant collisions in the preceding five years, or with no relevant collisions but above twice the Nationwide Significant Risk Threshold) would be required to make investments to abate risk, while those below would not. To simulate the safety impacts of this approach, FRA analyzed the effect based on an artificial rule issuance date of January 1, 1995, with an effective date of January 1, 1996. FRA then analyzed actual collision history for the crossings in each category for the period 1996 through 2000. The results (reported in detail below and on the FRA Web site) were then compared with the Nationwide Significant Risk Threshold and a value equal to two times the Nationwide Significant Risk Threshold (2xNSRT) (determined as of January 1, 1996) to evaluate the distribution of potential quiet zones derived from existing bans. FRA posited that jurisdictions above the relevant thresholds ( i.e. , those above the Nationwide Significant Risk Threshold with relevant collisions in the preceding five years, or with no relevant collisions but above twice the Nationwide Significant Risk Threshold) would be required to make investments in SSMs or ASMs in order to abate excess risk, while those below the thresholds would not. The analysis effectively validated the risk assessment method, demonstrating that for the subject period it would have focused public resources on whistle ban corridors where the investments would have been well spent (with resulting reductions in injuries and fatalities). It showed that in the five-year period that would have followed implementation of the rule, as of January 1, 1996, 69 percent of the casualties resulting from the relevant collisions that occurred at whistle ban crossings would have occurred in quiet zones that initially would have had to make safety improvements to retain the whistle bans ( see table below). Those safety improvements would have substantially mitigated the casualties at those crossings. By the end of the five-year period, the communities where 24 collisions resulting in 16 casualties occurred would have had to implement safety measures to reduce their corridor crossing risk indexes to permissible levels in order to retain their whistle bans. By the end of this five-year period, only 32 percent of the relevant collisions and 21 percent of the casualties would have occurred in communities that would not have had to implement safety measures. Injuries resulting from collisions involving trains traveling at speeds of 25 mph or less are on average moderate compared to the critical nature of injuries that tend to result when train speeds are higher. By the end of the five-year period, only seven percent of the more severe casualties would have occurred in communities that would not have had to implement safety measures. The following table presents the distribution of crossings, collisions, and resulting casualties. The first data column presents the number of crossings that would have fallen into each quiet zone category on January 1, 1995. The second data column presents the number of relevant collisions (those that FRA believes could have been prevented by sounding the train horn) that occurred in the five-year period that would have followed implementation of the rule. The next two columns present the resulting casualties (fatalities and injuries combined). As is more fully developed below, the CCRI refers to the Crossing Corridor Risk Index (the average risk for crossings in a potential quiet zone) and the NSRT refers to the Nationwide Significant Risk Threshold (which is the average risk at gated train horn crossings). January 1995 Crossings in WBJs January 1, 1996 through December 31, 2000 Relevant collisions Casualties Casualties excluding injuries where max train speed < 25 mph CCRI > NSRT with relevant collisions 865 (36%) 208 (59%) 109 (64%) 94 (78%) CCRI > 2 * NSRT (no collisions 2000-2005) 72 (3%) 10 (3%) 8 (5%) 8 (7%) CCRI Between NSRT & 2 * NSRT (no collisions 2000-2005) 236 (10%) 24 (7%) 16 (9%) 10 (8%) CCRI < NSRT 1,242 (51%) 113 (32%) 36 (21%) 9 (7%) Total 2,415 (100%) 355 (100%) 169 (100%) 121 (100%) Therefore, FRA concluded that use of a methodology that compares the known risk in a current or prospective quiet zone to the average risk level at crossings across the nation where train horns are sounded (the Nationwide Significant Risk Threshold) provides a very rational basis for determining where silencing the train horn presents a significant risk. Moreover, FRA concluded that considering an existing whistle ban's actual accident history in that methodology (by making greater allowances for accident-free jurisdictions) provides an even better approximation of risk than does simple reliance on comparing the quiet zone's projected risk level with the Nationwide Significant Risk Threshold. Subsequent to completion of this validation effort, FRA determined that a number of the crossings previously identified as being in “no whistle” status in the Chicago Region should, in fact, be removed from that list based on elections (largely by freight railroads) to sound the horn. FRA has not repeated this analysis with the smaller data set because (1) its purpose was to determine the usefulness of the method to sort corridors with greater risk from those with lesser risk and (2) whether train horns are sounded at the crossings in question is not critical to the analysis (particularly since the counter measures involved are equally useful at both categories of crossings). D. Alternatives Considered FRA considered several other alternatives in determining how to craft exceptions to train horn use. In reviewing the comments on the NPRM and Draft Environmental Impact Statement, FRA identified five additional alternatives for determining where train horns must sound. All of these alternatives involve the same basic environmental effects and benefits of this interim final rule: wherever the train horn sounds, the noise impacts and safety benefits will be the same; wherever the train horn is silenced, the benefits in terms of noise reduction will be the same and the same safety risks will be presented unless compensated by the addition of gates and lights, SSMs, or ASMs. Upon examination, FRA concluded that these alternatives are not reasonable options given the agency's purpose and need for the action and dismissed them from further consideration. These alternatives are described below. No Exceptions This alternative would implement the non-discretionary command of the statute by requiring trains horns to be sounded at all public highway-rail grade crossings. This would be what the statute would require if FRA were unable to devise a workable means of providing for quiet zones that satisfies the statute. FRA would set a maximum sound level for locomotive horns. Changes from the NPRM provisions related to the actual sounding of the horn and maximum sound levels could be accommodated within this option. Advantages: This option has the advantage of simplicity. It would result in a high level of safety at highway-rail crossings, and the costs of administration would be negligible. Disadvantages: This approach is not responsive to the statutory command to consider the interests of communities with existing train horn bans because FRA can devise a regulatory regime permitting communities to reduce noise by substituting other safety measures for the sounding of train horns and this option fails to address the issue. Aside from the statutory command, providing a means for communities to quiet train horns has been urged on FRA by the great majority of commenters and their elected representatives (including many who supported the proposed rule as a good means of achieving community quiet and safety). It is simply untenable to say that the final rule should provide no alternative to a high noise load for communities on rail lines with high train counts. Taking this course would also create unnecessary conflict between commuter rail service and the communities served, potentially compromising this important element of a balanced transportation system in many major metropolitan areas. Had this alternative not been eliminated on statutory grounds, the environmental effects of this alternative would not require separate analysis. Analysis of the effects of the “no action” alternative shows the effect of sounding train horns at highway-rail grade crossings across the Nation and the effects of permitting the continuation of existing train horn bans. This alternative would differ only in the elimination of the existing train horn bans, resulting in the known effects of sounding the train horn in those locations as well, including the known safety benefits flowing from sounding the train horn. Make the NPRM Final The Notice of Proposed Rulemaking required trains horns to be sounded at all public grade crossings; set a maximum sound level for locomotive horns; and provided an opportunity for any community to establish a quiet zone where all public grade crossings are equipped with gates and lights and data and analysis show that implementation will reduce risk in the quiet zone to sufficiently compensate for the absence of the horn sounding: by implementing one or more Supplementary Safety Measures (SSM) at each crossing (does not require FRA approval); or by implementing a combination of SSMs or Alternative Safety Measures (ASM) at some or all crossings within a proposed quiet zone with FRA approval. Communities with present whistle bans would have up to three years in which to implement SSMs and ASMs. Crossings with track speeds of 15 mph or less at which people bearing flags warn motorists of the passage of a train would not need SSMs. Advantages: Pursuing this option would serve the interest of safety and community quiet. It would be less complex than the option selected. Disadvantages: FRA found this option to be unacceptable because it insufficiently tailored the rule's burdens according to risk and would be unresponsive to hundreds of commenters who strongly urged improvements in the rule before its adoption. Many of those commenters live in or represent communities where the train horn is not now sounded, so being unresponsive to them would arguably be unresponsive to the statutory direction to take into account the interest of those communities. FRA agrees with those commenters that the proposed rule offered insufficient time for implementation and would have made the situation particularly difficult for public authorities and railroads in regions where impacts would be most substantial. FRA agrees with the tenor of many comments that the proposed rule would have required compensation for loss of the train horn even where risk is very low (or would be projected to be low even after the horn was silenced). The result of maintaining that requirement would have been poor cost-benefit tradeoffs for many communities. Staying with the literal text of the NPRM would also have missed opportunities for refinement of SSMs/ASMs and would not have captured noise reductions associated with the shift from distance- to time-based horn use. The environmental effects of the NPRM were analyzed thoroughly in the DEIS and taken into account by the FRA in framing the proposed action represented by the interim final rule, which is a logical outgrowth of the NPRM. Grandfather All Whistle Bans Existing as of 10/9/96 This alternative would allow communities that had whistle bans in effect on October 9, 1996 to retain those bans as long as the level of risk does not increase. Risk would be calculated using the APF for the entire whistle ban corridor. FRA would essentially be accepting the level of risk the community itself has determined to be acceptable—and would hold the community to that same level of risk. If a whistle ban community exceeded its risk threshold, it would have three years to implement changes ( e.g. install SSMs) sufficient to reduce risk to below its risk threshold. Changes related to use of train horns, including the maximum sound level, could be accommodated within this option. Advantages: This approach would have avoided conflict with current whistle ban communities and, in theory, might have capped the negative safety impacts of bans. As under the proposed rule, New Quiet Zones would be instituted without any loss of safety. Disadvantages: This option was rejected for the following reasons, any one of which is independently sufficient: It is unresponsive to the purpose of the statute to the extent excess risk associated with existing bans would be allowed to continue unabated; it does not directly take into account predicted accident severity, and therefore does not truly consider risk (frequency times severity); the Administrator could not have made the statutorily required determination that these exceptions would not “present a significant risk with respect to loss of life or serious personal injury;” it would not provide a uniform level of safety across the Nation; it did not afford New Quiet Zones the same exceptions allowed for Pre-Rule Quiet Zones, thus undermining uniformity of application and requiring local authorities to expend funds on improvements for which the safety pay-back could not be reasonably assured at the system level; it would permit communities with bans to transfer costs to the society at large through insurance, public health and welfare programs, and court judgments; and administration of the approach is not technically feasible. FRA noted that factors other than silencing the train horn would typically be responsible for the growth in calculated risk in the subject communities ( e.g. , increase in motor vehicle traffic as a result of residential or commercial development in an adjoining jurisdiction; growth in rail traffic). It did not seem sensible to permit excess risk to continue, provided nothing changes in a community, while requiring new increments of risk in other communities to be addressed without regard to whether the current level of risk is excessive ( i.e. , FRA realized that this option did not address the right question). The environmental effects of this option were not analyzed further because this was not a reasonable option to pursue. Grandfather All Whistle Bans Existing as of 10/9/96—Combine Collision-Free Exemption With Severity-Weighted Single Threshold This very complex option was a precursor to the path taken in the interim final rule. It took a much different approach to Pre-Rule and New Quiet Zones. It would allow communities with whistle bans in effect on October 9, 1996 to retain those for the first 5 years following publication of the interim final rule. Thereafter such communities could retain bans as long as: there have been no collisions within the past 5 calendar years or risk has not increased above a pre-established threshold calculated using the APF for the past 5 years; and at least flashing lights and gates have been provided at all such crossings. The option included a severity element in the risk computation for the threshold. A corridor risk index and national threshold would be used, as in the interim final rule. The option provided further flexibility for retaining whistle bans during the transition period as follows: A State Department of Transportation (or other authorized state-level body) could request extended implementation beyond the 5-year period on the basis that the State is assisting local jurisdictions in implementing quiet zones and requires additional time due to funding and/or administrative constraints. The following would apply: Each project must be the subject of a filing with FRA ( i.e. , the rule otherwise applies as revised); actual implementation of initial projects will begin not later than year four; consistent with efficient completion of required work and corridor-related safety considerations, improvements will be implemented at the most hazardous crossings first (where risk reduction opportunities are greatest) and then proceed to less hazardous crossings; no less than 25 percent of identified excess risk must be abated by the end of year five, 50 percent by the end of year six, 75 percent by the end of year seven, and 100 percent by the end of year eight; and this relief will expire eight years following publication of the interim final rule (seven years from the effective date). If a community exceeded the severity threshold in any annual review thereafter, actions would be taken as necessary to fall back below the threshold within a three-year period or the train horn would be required to sound; or actions sufficient to compensate for the loss of the train horn would have to be taken. Communities establishing New Quiet Zones would be required to follow the standards set forth in the NPRM (and would not be able to take advantage of low baseline risk, even after adjustment for loss of the train horn). Advantages: This option would take into consideration the interests of communities with existing bans in a manner similar to interim final rule, except flashing lights and gates would be required where not present. It would set a requirement of flashing lights and gates for all crossings where the train horn is silenced, enhancing safety. It would also avoid any negative flow of safety benefits related to toleration of new unabated risk in New Quiet Zones. Disadvantages: FRA rejected this option principally because it did not afford New Quiet Zones the same exceptions allowed for Pre-Rule Quiet Zones, thus undermining uniformity of application and requiring local authorities to expend funds on improvements for which the safety pay-back could not be reasonably assured at the system level. Further, FRA noted that the costs of flashing lights and gates in existing ban areas would be substantial, in some cases potentially resulting in loss of quiet zone status (with resulting disruption of settled expectations) due to financial inability of communities. Again, in many cases costs might not be fully recovered through safety benefits. FRA also discarded the rigid implementation schedule for Pre-Rule Quiet Zones on the ground it could not be effectively policed in an environment where local authorities would find it necessary to move to a large extent on their own schedules (albeit in some cases with State assistance). FRA also concluded that excepting Pre-Rule Quiet Zones from the requirement to make safety improvements solely on the basis of no accident history (with necessarily limited exposure) could not be supported as based on sound safety analysis (and opted, instead, for a limited exception based on both accident history and underlying estimated risk). This option was rejected as unreasonable and its environmental effects would be very similar to the proposed action. Require Horns or SSMs at Highest Risk Crossings Within Each State This alternative would have required that train horns be sounded at all grade crossings except those where (1) maximum train speed is 15 mph or less and flaggers are provided or (2) a whistle ban permitted under the rule is in effect. Existing whistle bans could continue provided high risk crossings are addressed within three years. New whistle bans could be created only if crossings within them were equipped with gates and lights. No whistle ban could include a grade crossing categorized as high risk, except crossings within existing whistle bans that are remedied within three years. High risk crossings are those with an APF greater than or equal to .05 ( i.e. , a five percent chance of an accident occurring at that crossing in the next 12 months). Where train horns are now sounded, the crossing's APF would be increased by 44 percent to account for the absence of the train horn. Within one year of the rule's issuance, any community with an existing whistle ban would have to certify that it has reviewed FRA data on effectiveness of horns, whistle ban effects, and relative merits of SSMs and consulted with affected railroads and state officials about possible safety improvements. Any community imposing a new whistle ban must first provide the same certification. Communities with existing whistle bans may continue to include crossings lacking gates and lights unless and until the crossing has an APF of .05 or more. Once a whistle ban is in effect, any crossing that reaches an APF of .05 must be remedied within two years. Advantages: This option was viewed as attractive because it would have mandated safety improvements at very high risk crossings within a relatively short time and provided categorical relief for crossings deemed relatively low risk. It defined risk uniformly for all crossings and all jurisdictions. It is relatively simple. It defined significant risk very clearly: equal to or greater than one predicted collision every 20 years. It captured a high percentage of predicted casualties, i.e. , it would have addressed a high proportion of the risk presented by whistle bans. Disadvantages: This option was rejected because: it does not directly take into account predicted accident severity, and therefore does not truly consider risk (frequency times severity); it does not permit sufficient flexibility to reduce risk within a quiet zone by dealing with crossings other than ones with the highest APF values and, therefore, does not adequately take into account the interest of communities with existing whistle bans; and it is not in harmony with the corridor improvement concept underlying the proposed rule. The statute addresses all crossings, not merely the most hazardous. The option focuses more on absolute risk rather than compensation for loss of the train horn (the focus of the law). A crossing-by-crossing approach to horn use would abandon the corridor approach to crossing safety improvements advocated by the U.S. DOT for many years (including eliminating the incentive for consolidation of redundant crossings), and it could result in very uneven results in terms of community quiet, depending on local implementation. The option could result in a patchwork of ban areas, adding to burden on locomotive engineers to pick out, crossing by crossing, where the horn must be sounded. This option could be more costly per unit of risk reduced because the community is required to take risk reduction at specified crossings rather than where means and need best correspond ( e.g. , foreclosing the option of putting in medians at two moderate-risk crossings for a total cost of $40,000 rather than installing four-quadrant gates at one higher risk crossing for an incremental cost of $75,000-$150,000, even though the resulting risk reduction is the same). This alternative was not considered reasonable. If the environmental effects of this option were to be considered, the noise impact of sounding a train horn at a crossing would be the same as it would be for the preferred option and the safety benefits of sounding the train horn or fully compensating for the absence of the train horn would be the same as for the preferred option. After considering all of these alternatives, FRA settled on the risk-based methodology adopted in this interim final rule. FRA believes this methodology best embodies Congress' intent, i.e. , to permit exceptions to the use of the train horn only where doing so demonstrably does not present a significant risk, or where the significant risk has been compensated for by other means. E. Implementing the Interim Final Rule FRA is aware that this interim final rule has the disadvantage of some degree of complexity. Designing corridor improvements that meet community needs and the criteria set forth in this rule will be hard work. In this case, FRA has sought to provide some relief from the burdens perceived in the NPRM by marrying a conceptually simple notion (the probability that a vehicle occupant will be injured or killed) with a risk assessment method that is fully accessible only to those with some statistical skills who work hard to understand it. Maintaining a current inventory of affected crossings will also require significant attention to detail. In taking this course, however, FRA has also recognized its obligation to prepare user-friendly tools for use by local planners. These tools are now available for beta testing on FRA's Web site, and FRA has also provided the results of the preliminary calculations for communities with existing bans based on existing inventory data (as well as the assumption that the community will elect to include all crossings in a New Quiet Zone). In FRA's experience, State and local government personnel such as city managers and county engineers are extremely capable professionals who are very unlikely to be daunted by the preparations required under this rule. Further, FRA crossing safety managers in each of FRA's eight regions will be available to work with communities and “walk them through” the necessary analysis, as well as participate in diagnostic teams established by State and local governments to evaluate options for safety improvements where they are required. No community will have to “go it alone,” because FRA will provide technical assistance. Finally, FRA has provided a substantial extension of time for communities with existing whistle bans to convert their corridors into quiet zones without intervening disruption caused by the train horn. In response to the statute's direction to “take into account the interest of communities” with existing bans, the proposed rule would have allowed a maximum of three years from issuance for implementation, with the third year available to communities that had implemented some form of education or enforcement program. This interim final rule, by contrast, allows five years from its publication (four years from the effective date of the requirement to use the train horn) for implementation by individual communities. Communities had complained that the requirements of State and local budget cycles required more time for planning and securing funding. Further, it was noted that engineering improvements may require substantial lead time and that railroads may have limited staffing in relation to a compressed schedule for installing new warning systems in a number of communities on their lines. FRA agrees that an extended schedule is warranted. Further, FRA has recognized that some States (notably Illinois and Wisconsin) have large numbers of whistle bans and that some exist in communities of concern with respect to environmental justice. In situations such as this, it may be imperative for some Federal funds to be allocated by sources for which engineering improvements are eligible ( e.g. , the Surface Transportation Program and the National Highway System program). These allocations would be made by the State departments of transportation based on plans developed through the metropolitan planning organizations, a process that can require several years. Because of competition for uses of these funds, a State may not be able to allocate Federal funds for these purposes in a single fiscal period. Similar considerations would presumably apply to distribution of any funds made available from State sources. Accordingly, in order to create an incentive for State participation in meeting these needs (through allocation of Federal or State funds), FRA has allowed a full eight years for communities with existing whistle bans to complete quiet zone improvements if (i) the State steps forward with a plan to provide assistance, and (ii) actual improvements in at least one community within the State are effected before the end of the fourth year. FRA is acutely aware that this extended implementation cycle could be subject to abuse. Accordingly, FRA has included in the rule procedures to ensure that good faith progress is made toward completion of improvements that communities promise to undertake. Where that does not occur, FRA will notify the railroad to sound the train horn as the rule requires. F. Existing Bans and New Quiet Zones FRA has endeavored to fashion a final rule that establishes as much parity as possible between communities with existing whistle bans and those that wish to establish them in the future, while recognizing legitimate differences. The rule puts both types of communities on the same footing, as follows: • The rule starts from the premise that after a certain time the train horn will sound unless an appropriate exception is satisfied, regardless of prior practice. • Both the “haves” and the “have nots” may establish quiet zones by implementing SSMs and ASMs sufficient to compensate for loss of the train horn; and both may take their risk reduction at the corridor level, normally without making improvements at every crossing. • The rule allows establishment of quiet zones even without SSMs and ASMs if— (I) In the case of an existing whistle ban corridor, risk is shown to be at, or below the Nationwide Significant Risk Threshold or be below twice that level and the corridor has had no relevant collisions during the preceding five years; or (ii) In the case of a New Quiet Zone, risk (after adjustment to account for silencing the train horn) is shown to be at or below the Nationwide Significant Risk Threshold. • If a community avoids expenditures related to creation of a quiet zone because it falls below the Nationwide Significant Risk Threshold and risk increases to above the threshold, the community is required to compensate for that increase in risk within a period of three years, or the railroad will be required to sound the train horn. • All communities are subject to the same filing and inventory maintenance requirements. Some differences in approach to existing whistle ban jurisdictions and New Quiet Zones have been necessary, as well. We have already said that existing whistle ban jurisdictions are different, as a practical matter, because public and private planners ( e.g. , zoning officials, citizens purchasing residences, businesses locating shops) have made choices in reliance on the belief that the train horns will not sound. The statute enjoins us to take their interests into consideration, and the grace periods provided under the rule (five and eight years) maintain community quiet well ahead of community actions that would otherwise warrant that result. The fact that existing whistle ban jurisdictions have known accident records under circumstances where the horn is not sounded also permits some additional latitude. FRA has noted significant variation in the outcomes where whistle bans have been enacted or observed. Although some of this variation is the result of limited exposure to rare events, some of it likely reflects the existence of circumstances that are different in the communities (nighttime vs. 24-hour bans, strong or weak law enforcement, generally good sight lines or poor ones, etc.). Over time, the presence or absence of such factors will be revealed in the accident rate. An important feature of the interim final rule creates an exception for existing whistle ban communities with no recent horn-relevant accidents but with risk levels that are above the Nationwide Significant Risk Threshold but below a value equal to two times that threshold. This exception remains until the community experiences a horn-relevant accident, after which it is judged by the same standards as other communities (with a 3-year grace period if it elects to adopt SSMs or ASMs). The issue of whether flashing lights and gates should be required as a baseline condition for a quiet zone has similar characteristics. In the NPRM, FRA specified that all crossings in any quiet zone should have flashing lights and gates based on the following practical considerations: • At passively signed crossings, the motorist is expected to “yield” to oncoming trains. But the only warning of a train's approach is provided by the train itself, including the headlight and auxiliary alerting lights, and the train horn (if used). • Because of obstacles in the “sight triangle,” track curvature, angle of intersection, or adverse weather, there are some circumstances where only the horn may be effective in aiding the motorist's decision. • It is unfair to place a burden on the motorist to yield without providing the best available information to inform the decision. • Crossings equipped with flashing lights but no gates are similarly situated, except that the motorist is expected to stop but under most State laws may proceed if “safe” to do so. In many cases motorists are left with ambiguous information regarding the appropriate response. Accordingly, FRA continues to be convinced that, with respect to quiet zones where the train horn is silenced for the first time, flashing lights and gates should be provided at all public crossings. Motorists using such crossings will for the first time be deprived of auditory warnings, which would place them at significant peril if no additional warnings are provided. However, FRA recognizes that a significant number of whistle ban crossings exist today, particularly in the State of Wisconsin, where only passive signage or only flashing lights are provided. There is now risk data specific to those situations. Further, the statute asks us to give “special consideration to the needs” of communities where these crossings are located, and public and private planners have made decisions in reliance on the status quo. Finally, FRA will have achieved the principal safety objective of this rulemaking if significant risk to persons associated with the absence of the train horn has been abated. Accordingly, FRA has determined that it is appropriate to allow conversion of existing whistle ban corridors into Pre-Rule Quiet Zones without requiring that flashing lights and gates be provided at all crossings. FRA has further provided that, where the proposed Pre-Rule Quiet Zone exceeds the relevant risk threshold (making it necessary to compensate for absence of the train horn), the community may credit the risk reduction associated with installation of flashing lights and gates toward the required effort. In many cases this will not result in all crossings being so equipped, but it will encourage use of the most important single safety improvement available in the highway-rail crossing toolbox. G. Requirements for the Train Horn and Its Use On the effective date of that portion of this rule which mandates use of the train horn, State laws concerning use of the train horn at highway-rail crossings will be preempted. This rule will also require the modification of railroad operating rules that are in conflict with it. FRA already has in place a rule that sets a minimum horn loudness of 96 dB(A) at 100 feet in front of the train. The method for conducting that test, a possible maximum level for the horn, and the manner in which the horn is sounded have been issues in this rulemaking. In approaching this complex of issues FRA has tried to balance several considerations, specifically— • The need to make it possible for motorists to be warned within their vehicles, with windows closed, at a point on their approach to the crossing where the information is useful; and • The need to limit dispersal of horn noise into the community (other than at the crossing and its approaches) to the extent feasible. Although FRA can foresee the possibility of further refinements in these decisions over the next few years as information becomes available, the comments received in this rulemaking, coupled with further research conducted in response to those comments, have provided a good foundation for resolving these issues. The first group of issues has to do with the horn itself. FRA had hoped to describe engineering characteristics of the horn that would mitigate the dispersal of noise into the community (in railroad parlance, “to the field”). This issue has been presented primarily due to the relocation of horns to the center of the locomotive roof, a choice made by railroads to reduce crew occupational noise exposure. At FRA's technical conference on acoustical issues, the major railroads arranged a presentation by a recognized expert who described a “shadow effect” produced by the locomotive profile that results in misleadingly low sound level readings at the location specified in FRA's current test procedure. The point of calling attention to this was to emphasize that in terms of actual dispersal of noise the noise levels to the field do not, in fact, exceed those to the front (as might be suggested by readings taken just 100 feet directly in front of the locomotive at only four feet above the track). The overall lesson FRA was asked to take from the presentation is that while center-mounted horns are not louder to the field than to the front, neither can they be made highly directional. A secondary lesson from this presentation and a subsequent field study is that, by testing the horn at roof height (which under the noise models actually is more proportional to the noise received at the crossing), it may be possible to “turn down” some roof mounted horns. As a result, FRA adopts a new test procedure in this interim final rule that retains the 100 foot distance but places the sound level meter receptor at roof height ( i.e. , out of the locomotive's “shadow”). Another objective of this rulemaking has been to set a maximum sound level for the horn. The NPRM proposed consideration of two values—104 dB(A) (which was seen as more appropriate for actively signed crossings) and 111 dB(A) (which was viewed as more appropriate for passively signed crossings). Although FRA's general rationale was reasonably well received by some commenters, many others appeared convinced that train horns are too loud and should be significantly reduced in volume. FRA has continued to evaluate the issues identified in research referred to in the NPRM, including refined analysis using signal detection theory, and is persuaded that a maximum value of 110 dB(A) should be sufficient to alert motorists in most situations, including a small margin of error associated with test instrumentation and setup. Accordingly, the interim final rule requires that railroads progressively test their locomotives and reduce the air pressure (or alter the aperture) on all horns to produce a maximum volume of no more than 110 dB(A) as measured 100 feet in front of the locomotive at roof height. FRA expects that most freight railroads and Amtrak, whose locomotives operate over a variety of highway-rail crossings across the Nation, will set their horns near the maximum allowed to provide effective warning at passively signed crossings. FRA expects that commuter authorities which operate primarily over crossings with flashing lights and gates may set horns in the lower portion of the allowed range. This overall process, by enforcing a maximum below the known sound level of some center-mounted horns, may modestly reduce noise in some communities. It should be noted that FRA did not find it possible to do as the NTSB suggested in its comments to the docket, which was to “select a sound level that will maximize safety at all highway-rail grade crossings.” To reach every driver with the horn (including each driver with a stereo turned up to maximum volume under all conditions of traffic conditions, pavement surface, weather, etc.) would require a volume so great that the effects on communities and crew members would be clearly unacceptable. However, in selecting the maximum level FRA has taken into consideration the NTSB's findings from its study of passive crossings. Further, FRA has completed additional work on sound detectability that suggests more favorable results at actively signed crossings where the driver has a heightened awareness of the possible presence of a train and where a very high signal-to-noise value should not be required. Dissemination of NTSB and FRA studies should put railroads in a favorable posture to determine horn loudness appropriate to their operating conditions, achieving the lion's share of the potential risk reduction. 3 Further, our heightened understanding of the limitations of the train horn should help clarify the need to implement of active warning systems where they are not already provided as funding becomes available. 3 The NTSB's Passive Crossing Study has been construed by some as an attack on the safety value of the train horn because it cited examples of situations at passively signed crossings in which the horn's signal-to-noise ratio likely did not meet a pre-established criterion. Neither the NTSB's report nor its comments in this docket question whether the horn is effective in preventing some accidents. Rather, the NTSB has ventured the conclusion that certain accidents have occurred at passively signed crossings where the horn did not provide a sufficient warning given the background noise and other factors. FRA's position in this rulemaking is consistent with this conclusion. The final issue concerns the manner in which the horn is sounded. The actual pattern of “two long, a short and a long” is well established, and FRA finds no reason to alter it. It is necessary to sustain the warning provided by the horn through a period of 15 to 20 seconds prior to arrival of the train at the crossing in order to reach motorists situated at various points on the roadway under varying angles of intersection and differing vehicle and train speeds. It is not possible to just give a “toot,” as suggested by some, and still provide the unmistakable and persuasive warning needed to deter risky motorist behavior. FRA did note in the NPRM, howev [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-30606. Public record. Not legal advice.