Use of Locomotive Horns at Highway-Rail Grade Crossings

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 222 and 229

[Docket No. FRA-1999-6439, Notice No. 16]

RIN 2130-AA71

Use of Locomotive Horns at Highway-Rail Grade Crossings

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

On December 18, 2003, FRA published an interim final rule that required that the locomotive horn be sounded while trains approach and enter public highway-rail grade crossings. The interim final rule contained 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 locomotive horn. Communities that qualify for this exception may create “quiet zones” within which locomotive horns would not be routinely sounded. The final rule issued today amends certain provisions of the interim final rule to facilitate the development of quiet zones, while balancing the needs of railroads, States and local communities.

DATES:

The effective date is June 24, 2005. However, public authorities may begin to provide quiet zone-related documentation to FRA and other parties 30 days after April 27, 2005. This final rule supercedes the interim final rule, which was published on December 18, 2003. Therefore, the interim final rule will not take effect.

FURTHER INFORMATION CONTACT:

Ron Ries, Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: 202-493-6299); or Kathryn Shelton, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION:

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 under 49 CFR 1.49) to issue regulations that require the use of locomotive horns at public grade crossings, but gives the Secretary 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 comment period on May 26, 2000, approximately 3,000 comments had been filed with this agency regarding the NPRM and the 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.

Due to the substantial and wide-ranging public interest in the NPRM, FRA conducted a series of public hearings throughout the United States in which local citizens, local and State officials, Congressmen, and Senators provided testimony. Twelve hearings were held (Washington, DC; Fort Lauderdale, Florida; Pendleton, Oregon; San Bernadino, California; Chicago, Illinois (four hearings were held in the greater Chicago area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; and Madison, Wisconsin) at which more than 350 people testified.

On December 18, 2003, FRA published an Interim Final Rule in the

Federal Register

(68 FR 70586). Even though FRA could have proceeded directly to the final rule stage, FRA chose to issue an interim final rule in order to give the public an opportunity to comment on changes that had been made to the rule. FRA also held a public hearing in Washington, DC on February 4, 2004. By the close of the extended comment period, over 1,400 comments had been filed with the agency regarding the Interim Final Rule. As is FRA's practice, FRA held the public docket open for late-filed comments and considered them to the extent possible. In order to avoid imposing inconsistent regulatory standards for quiet zone creation and establishment, FRA extended the effective date of the Interim Final Rule on November 22, 2004 (69 FR 67858) and on March 18, 2005 (70 FR 13117) so that the Interim Final Rule would not take effect before the Final Rule was issued.

2. Statutory Mandate

On November 2, 1994, Congress passed Public Law 103-440 (“Act”) which added section 20153 to title 49 of the United States Code (“title 49”). Subsections (I) and (j) were added on October 9, 1996 when section 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 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 the 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 a 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 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.”

This final rule complies with the statutory mandate contained within section 20153 of title 49. The final rule retains the locomotive horn sounding requirement for trains that approach and enter public highway-rail grade crossings. (

See

rule § 222.21.) However, the rule contains exceptions for certain categories of rail operations and highway-rail grade crossings, in accordance with 49 U.S.C. 20153(c)(1). Section 222.33 of the rule provides that a railroad operating over a public highway-rail grade crossing may, at its discretion, choose not to sound the locomotive horn if the locomotive speed is 15 miles per hour or less and the train crew or appropriately equipped flaggers provide warning to motorists. FRA has determined that these limited types of rail operations do not present a significant risk of loss of life or serious personal injury. The rule also contains an exception for highway-rail grade crossing corridors that are equipped with SSMs at each public highway-rail grade crossing, in accordance with 49 U.S.C. 20143(c).

Highway-rail grade crossing corridors that have a Quiet Zone Risk Index at or below the Nationwide Significant Risk Threshold or the Risk Index With Horns have been deemed, by the Administrator, to constitute a category of highway-rail grade crossings that do not present a significant risk with respect to loss of life or serious personal injury or that fully compensate for the absence of the warning provided by the locomotive horn. Therefore, communities with grade crossing corridors that meet either of these standards may silence the locomotive horn within the crossing corridor, if all other applicable quiet zone requirements have been met. (

See

§ 222.39.)

Section 20153(i) of title 49 requires FRA to “take into account the interest of communities that have in effect restrictions on the sounding of a locomotive horn at highway-rail grade crossings”. FRA has complied with this requirement in several ways. The rule allows Pre-Rule Quiet Zone communities to continue to silence the locomotive horn, without any additional safety improvements, if the Quiet Zone Risk Index is at, or below,

two times

the Nationwide Significant Risk Threshold and there have not been any relevant collisions within the quiet zone during the five years preceding April 27, 2005. (

See

§ 222.41.) It should also be noted that Pre-Rule Quiet Zone communities can continue to silence the locomotive horn, without any additional safety improvements, if SSMs have been implemented at every public grade crossing within the quiet zone or if the Quiet Zone Risk Index is at, or below, the Nationwide Significant Risk Threshold.) Additionally, the rule allows Pre-Rule Quiet Zone communities to take additional time (up to eight years from the effective date of the interim final rule) within which to implement safety improvements that will bring them into compliance with the requirements of the rule. This “grace period” has been included in the rule in order to comply with 49 U.S.C. 20153(i)(2), which requires FRA to provide “a reasonable amount of time for [pre-existing whistle ban] communities to install SSMs”.

Section 20153(d) of title 49 states that “* * * 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.” Therefore, § 222.15, which governs the process for obtaining a waiver from the requirements of the rule, requires joint filing of waiver petitions by the railroad and public authority.

Section 222.55 addresses the manner in which new SSMs and ASMs are demonstrated and approved for use. Paragraph (c) of this section, which reflects the requirements contained within 49 U.S.C. 20153(e), specifically provides that the Associate Administrator may order railroad carriers operating over a crossing or crossings to temporarily cease sounding the locomotive horn at the crossing(s) to demonstrate proposed new SSMs and ASMs that have been subject to prior testing and evaluation.

Section 20153(f) of title 49 explicitly gives discretion to the Secretary as to whether private highway-rail grade crossings, pedestrian crossings, and crossings utilized primarily by nonmotorized and other special vehicles should be subject this regulation. FRA has decided to refrain from exercising

jurisdiction over crossings utilized primarily by nonmotorized and other special vehicles in this final rule. FRA has, however, exercised its jurisdiction, in a limited manner, over private grade and pedestrian crossings. Locomotive horn use at private grade and pedestrian crossings will be subject to the requirements of this rule, if the private grade or pedestrian crossing is located within a quiet zone. Sections 222.25 and 222.27 address the specific requirements that pertain to private grade and pedestrian crossings within quiet zones.

Section 222.7 contains a concise statement of the rule's impact with respect to 49 U.S.C. 20106 (national uniformity of regulation). This statement of the rule's effect on State and local law, which was required by 49 U.S.C. 20153(h), provides that the rule, when effective, will preempt most State and local laws that govern locomotive horn use at public highway-rail grade crossings. However, as stated in section 222.7(b), the rule will not preempt State and local laws governing locomotive horn use at Chicago Region highway-rail grade crossings where railroads were excused from sounding the locomotive horn by the Illinois Commerce Commission, and where railroads did not sound the horn, as of December 18, 2003. In addition, State and local laws that govern routine locomotive horn use at private grade and pedestrian crossings outside quiet zones will not be preempted.

Lastly, this rule complies with the statutory one-year delay requirement. Section 20153(j) of title 49 prohibits any regulations issued under its authority from becoming effective before the 365th day following the date of publication of the final rule. On December 18, 2003, FRA published the interim final rule on the use of locomotive horn at highway-rail grade crossings. Because the interim final rule had the same force and effect as a final rule, FRA delayed the effective date of the interim final rule for one year, in order to comply with 49 U.S.C. 20153(j) and to give public authorities sufficient time to prepare for quiet zone implementation before the rule's locomotive horn sounding requirements took effect. After reviewing approximately 1,400 comments on the interim final rule, FRA is now issuing a final rule that grants additional relief to States and local communities. The final rule will become effective on June 24, 2005 because the one-year statutory delay requirement was satisfied by delaying the effective date of the interim final rule.

3. Liability

FRA received a number of comments on the liability implications of the rule. The majority of these comments were concerned that the interim final rule would shift liability onto the public authority that creates a quiet zone. For example, Steve Stricker, Village Administrator for Burr Ridge, Illinois and Chairperson of the DuPage Mayors and Managers Conference, expressed concern at a February 2004 meeting about the potential municipal liability that may result from quiet zone creation. Mr. Stricker urged FRA to include a clear statement in the final rule that it will not change any federal or state laws or court decisions on municipal liability. Similar sentiments were expressed by John Kravcik, President of Western Springs, Illinois. The Village of Cornwall-on-Hudson, New York submitted comments expressing concern that by not addressing the liability of local communities that create quiet zones, the interim final rule shifted traditional railroad liability away from the party profiting from the use of the tracks and onto local governments. The City of Sacramento, California submitted comments suggesting that the rule be revised to state that quiet zone establishment cannot be used as the basis of a claim against a local government, provided the local government established the quiet zone in accordance with the provisions of the rule. Noting that the interim final rule exempts railroads from liability, the Village of Hinsdale, Illinois recommended that the final rule provide a similar exemption for public authorities or, in the alternative, state that the existing liability structure will not change. Along the same lines, Brian Krajewski, Mayor of Downers Grove, Illinois asserted that the rule needs to acknowledge in no uncertain terms that it is not intended to alter, in any way, the liabilities of any party covered by it. The City of Placentia, California submitted comments suggesting that the rule be revised to specify that it is intended to provide protection from liability for silencing the train horn to public authorities, as well as the railroad and train crew.

This final rule clearly covers the subject matter of locomotive horn sounding at public grade crossings, as well as locomotive horn sounding at private and pedestrian grade crossings that are located within a quiet zone. Therefore, with the exception of State and local laws governing locomotive horn sounding at the highway-rail grade crossings described in section 222.3(c), this final rule preempts all State and local laws that govern the sounding of locomotive horns at grade crossings located within duly established quiet zones. As stated in the interim final rule, FRA does not expect that future lawsuits will not arise over accidents within quiet zones, as such lawsuits may be due to factors other than the lack of an audible warning. However, this final rule is intended to remove failure to sound the horn, failure to require horn sounding, and prohibitions on sounding of the horn, at grade crossings located within duly established quiet zones, as potential causes of action. We expect that courts, following

Norfolk Southern

v.

Shanklin,

529 U.S. 344 (2000) and

CSX

v.

Easterwood,

507 U.S. 658 (1993), will conclude that this regulation substantially subsumes the subject matter of locomotive horn sounding at highway-rail grade crossings, as well as at private grade and pedestrian crossings that are located within a quiet zone. As a result, a federal standard of care defined by this rule will replace the standard of care that would otherwise apply at highway-rail grade crossings in each State, with the exception of those highway-rail grade crossings described in section 222.3(c). (Since the rule does not apply to the highway-rail grade crossings described in section 222.3(c), the standard of care required under State law will continue to apply at those crossings.) Local governments and railroads will benefit equally from the federal standard of care.

States also have the ability to assert sovereign immunity on behalf of local units of government within their borders, and many states have done so. It is not appropriate for the Federal government to unnecessarily disturb decisions States have made about whether local governments in their State should be immune from tort liability and FRA will not do so here.

FRA also received comments from local communities who expressed concern that railroads would require them to enter into indemnification agreements, as a prerequisite to the installation of additional safety measures at grade crossings that are located within a proposed quiet zone. The City of Arlington, Texas submitted comments stating that railroads may require municipalities to enter into indemnification agreements, if the rule is not revised to address municipal liability for quiet zone establishment. Therefore, the City of Arlington, Texas suggested that the rule be revised to prohibit railroads from requiring indemnification and hold harmless agreements as a condition of quiet zone creation. The DuPage Mayors and

Managers Conference also submitted comments recommending that the rule be revised to prohibit railroads from requiring a transfer of liability as a “quid pro quo” for safety improvement installation. The Village of Wilmette, Illinois submitted comments asserting that, with respect to SSMs, the rail carriers may require municipalities to agree to whatever terms they demand concerning liability. The West Central Municipal Conference and the Chicago Area Transportation Study submitted comments recommending that the final rule include language that prohibits railroads from requiring waivers of municipal immunity as part of any agreement, contract, or lease between railroads and municipalities.

On the other hand, FRA received comments from the railroad industry suggesting that the rule be revised to require public authorities to enter into indemnification agreements with railroads. The Fort Worth & Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho Northern & Pacific Railroad submitted comments recommending that the final rule require local communities to assume any increased liability that would result from quiet zone creation. The Fort Worth & Western Railroad submitted additional comments asserting that public authorities that establish a quiet zone should provide funding for any increase in railroad liability insurance premiums that may result from railroad operations within quiet zones. Caltrain submitted comments asserting that the sponsoring public authority should be required to indemnify railroads and hold them harmless from claims that arise within the quiet zone.

FRA has refrained from adding language to the final rule that would expressly prohibit the railroad industry from requiring public authorities to enter into indemnification and hold harmless agreements, as a condition of obtaining railroad consent to the installation of grade crossing safety improvements within proposed quiet zones. The provisions contained within, as well as the overall legality of, indemnification and hold harmless agreements between railroads and local communities are largely governed by State contract law and FRA has been given no general charge to adjust these interests.

In fact, FRA is not persuaded that railroads will, in most cases, enjoy significant power that could be used inappropriately in this context. State and local governments retain authority to determine appropriate traffic control devices and roadway improvements at highway-rail grade crossings. In a number of cases, State agencies will be able to order installation of automated warning systems, such as four-quadrant gates, even on county and local roadways. Use of channelization techniques may require little or no cooperation from the railroad and, in many cases, photo enforcement can likely be accomplished using existing interconnections between crossing warning systems and traffic signals.

Further, in this context, railroads often can provide a unique perspective related to crossing improvements. For particular applications, railroads may be able to point out important public and private benefits from employing basic traffic channelization in lieu of more technically complex and maintenance-hungry four-quadrant gate systems.

4. Partial Quiet Zones

Commenters requested clarification of the rule's effect on crossings at which horns are silenced for a portion of the day (typically during nighttime hours). The final rule thus addresses the continuation and establishment of such “partial quiet zones.”

Under the final rule, communities with Pre-Rule Partial Quiet Zones (see § 222.9 for the complete definition of “Pre-Rule Partial Quiet Zones”) must comply with Pre-Rule Quiet Zone standards, in order to continue existing restrictions on the use of the locomotive horn. However, Pre-Rule Partial Quiet Zones that do not qualify for automatic approval under § 222.41(a) will be given additional time within which to come into compliance, provided the public authority complies with the requirements set forth in §§ 222.41(b) and 222.43. Communities that wish to convert their pre-existing partial whistle bans into 24-hour quiet zones will, however, be required to comply with New Quiet Zone standards. (Please refer to the Section-by-Section Analysis of § 222.41 for further information about Pre-Rule Partial Quiet Zone requirements.)

Communities that had partial whistle bans in place as of December 18, 2003 (the interim final rule publication date), but after October 9, 1996, may qualify for Intermediate Partial Quiet Zone status. (Please refer to § 222.9 for a definition of Intermediate Partial Quiet Zones.) Intermediate Partial Quiet Zones may continue existing restrictions on the use of the locomotive horn for one year. However, Intermediate Partial Quiet Zones must comply with New Quiet Zone standards by the end of the one-year grace period, in order to prevent the resumption of routine locomotive horn sounding at public grade crossings within the former quiet zone. (Please refer to the Section-by-Section Analysis of § 222.42 for further information about Intermediate Partial Quiet Zone requirements.)

Communities that wish to create a New Partial Quiet Zone will be required to comply with New Quiet Zone standards. Unless a waiver is granted, all New Partial Quiet Zones must restrict locomotive horn sounding between the hours of 10 p.m. and 7 a.m. This requirement will ensure consistent application of locomotive horn restrictions within New Partial Quiet Zones, which should minimize confusion for the locomotive engineer.

5. Rule Changes

This brief overview of the changes that have been made in the Final Rule is provided for the reader's convenience. Because this section merely provides an overview, it should not be relied upon for a comprehensive discussion of all final rule changes. Indeed, this full document should be read together with the previous documents issued in the proceeding. Inasmuch as the Interim Final Rule and Notice of Proposed Rulemaking contained extensive discussion of both the background of the issues involved in this rulemaking and the rationale behind decisions relating to those issues, FRA emphasizes that this Final Rule should be read in conjunction with the Interim Final Rule and Notice of Proposed Rulemaking. Unless the positions and rationale expressed in those documents have explicitly changed in the subsequent rulemaking documents, the reader should understand that those positions and rationale remain those of FRA.

Summary of Changes to the Interim Final Rule

• The final rule clarifies FRA's position that it is not intended to preempt administrative procedures required under State law regarding grade crossing warning system modifications and installations. (

See

§ 222.7 for more information.)

• Surface-mounted tubular delineators have been removed from the list of approved Supplementary Safety Measures (SSMs). Tubular delineators may only be used as SSMs under the final rule if they have been affixed to raised longitudinal channelizers. (See appendix A for more information.)

• The final rule provides a one-year grace period to comply with New Quiet Zone standards for communities with pre-existing whistle bans that were in effect on December 18, 2003, but were adopted after October 9, 1996. These communities are considered

“Intermediate” Quiet Zones under the final rule. (

See

§ 222.42 for more information.)

• The final rule addresses quiet zones that prohibit sounding of horns during a portion of the day. These are referred to as Partial Quiet Zones.

• The final rule requires diagnostic team reviews of pedestrian crossings that are located within proposed New Quiet Zones and New Partial Quiet Zones. (

See

§ 222.27 for more information.)

• The final rule requires quiet zone communities to retain automatic bells at public highway-rail grade crossings that are subject to pedestrian traffic. (

See

§ 222.35(d) for more information.)

• The definition of “public authority” has been revised under the final rule to include only those public entities who are responsible for traffic control and law enforcement at public highway-rail grade crossings. (

See

§ 222.9 for more information.)

• The final rule extends “recognized State agency” status to State agencies who wish to participate in the quiet zone development process. (

See

§ 222.17 for more information.)

• The final rule contains a 60-day comment period on quiet zone applications. (

See

§ 222.39(b) for more information.)

• The final rule requires public authorities to provide notification of their intent to create a New Quiet Zone. During the 60-day period after the Notice of Intent is mailed, comments may be submitted to the public authority. (

See

§ 222.43(b) for more information.)

• The final rule provides quiet zone risk reduction credit for certain pre-existing SSMs. (

See

appendix A for more information.)

• The final rule provides quiet zone risk reduction credit for pre-existing modified SSMs. (

See

appendix B for more information.)

• The final rule contains a new category of ASMs that addresses engineering improvements other than modified SSMs. (

See

appendix B for more information.)

• The minimum sound level for wayside horns has been reduced to 92 dB(A). (

See

appendix E for more information.)

6. E.O. 15 Status

Emergency Order 15, issued in 1991, requires the Florida East Coast Railway Company to sound locomotive horns at all public grade crossings. The Emergency Order preempted State and local laws that permitted nighttime bans on the use of locomotive horns. Amendments to the Order did, however, permit establishment of quiet zones if supplementary safety measures were implemented at every crossing within a proposed quiet zone. The supplementary safety measures specified in the Order, although similar, are not the same as those contained in this final rule. FRA recognizes that the SSMs, and the conditions on their implementation contained in this rule, provide communities substantially greater flexibility in creating quiet zones than those in the Order.

Therefore, the provisions of this final rule will apply to all grade crossings within the State of Florida when E.O. 15 is rescinded. FRA conducted a public conference on April 15, 2005, and solicited comments on the appropriate excess risk estimate that should be applied when routine use of the locomotive horn is prohibited at highway-rail grade crossings that are currently subject to E.O. 15. FRA intends to amend the final rule to specifically address this issue, after considering comments and testimony provided at the public conference from interested parties.

7. Chicago Regional Issues

The six-county Chicago Region is host to the largest rail terminal in the United States, and it accounts for the biggest concentration of “whistle bans” and associated casualties in the nation. Chicago communities and industries have grown up with, and around this extensive rail network, while the entire Chicago metropolitan area has benefitted from an extensive commuter rail system established by the State and funded by the State, region, and Federal government. As stated in the interim final rule, the unique aspects of locomotive horn sounding at public grade crossings within the Chicago Region have contributed to the need for different treatment for those crossings that have been subject to pre-existing whistle bans.

Excess Risk Estimate for Gated Crossings Subject to Existing Whistle Bans in the Chicago Region

In the interim final rule, FRA explained at some length why the agency had decided to apply an excess risk estimate of 17.3% to Chicago Region gated crossings. We noted that Chicago Region no-whistle gated crossings have a statistical profile that is distinctly different from gated whistle ban crossings in the rest of the Nation. We explained that analysis conducted for FRA by a statistical firm, Westat, Inc., arrived at the 17.3% excess risk estimate for gated crossings in contrast to a national excess risk figure of 66.8%, but that the estimate for the Chicago Region was not statistically significant at conventional levels. We further noted qualitative reasons why the lower estimate appeared to make sense (

e.g.

, discretionary selection by railroads of crossings subject to no-whistle policies, high train counts supporting strong motorist expectations concerning the presence of a train, Metra's emphasis on locomotive conspicuity measures). Commenters on the interim final rule have continued to question FRA's position on this issue. Commenters outside the Chicago area seek the benefit of their own regional estimates (which are not achievable given the smaller number of relatively homogenous crossings available for analysis), and commenters from Chicago claim that the lower estimate is too high (and should be set at 0%, requiring no safety offset for loss of the train horn as an auditory warning to the motorist).

In response to the IFR, the Village of Arlington Heights, City of Chicago, Northwest Municipal Conference, Metropolitan Mayors Caucus, and the Chicago Area Transportation Study (“Chicago Region commenters”) submitted a study by TransInfo LLC and the University of Illinois at Chicago (“TransInfo-UIC study”), which concluded that “ * * * there is no reason to believe that in northeastern Illinois, banning the sounding of horns increases the chance of collisions at gated highway-rail crossings.” The TransInfo-UIC study noted that the 17.3% excess risk estimate was not statistically significant at conventional levels. Given this lack of significance, the TransInfo-UIC study asserted “ * * * one must then accept the hypothesis of no difference in the effects of a ban on horn soundings * * * ” Using the same data set as FRA's contractor, Westat, Inc., TransInfo LLC and the University of Illinois at Chicago developed alternative statistical models. Their seemingly preferred model produced a −26.4% effectiveness rate (compared to +17.3% from the Westat model) that was statistically significant at the conventional 5% level. TransInfo-UIC also raised questions about possible collinearity in the Westat model.

FRA provided the TransInfo/UIC study to its contractor, Westat, for analysis. While acknowledging that its estimate lacks statistical significance at conventional levels (a point made explicitly by Westat in reporting its 2003 findings), Westat indicated that this does not mean that one must accept the hypothesis of no difference in collision rates between horn and no-horn crossings. Westat noted that “[i]n a statistical study,

absence of evidence

against a hypothesis is not conclusive evidence for the hypothesis.

* * * The hypothesis may be true, or false, in the absence of evidence against it, we simply do not know.” After reviewing the TransInfo-UIC seemingly preferred model, Westat found that it has biased residuals and that it systematically underpredicts collisions for the Chicago area ban crossings.

In 2004, Westat developed a model that tested the sensitivity of the Westat 2003 model which was used to develop the interim final rule. This 2004 model supports earlier findings and the FRA conclusion that collision rates at gated crossings where train horns are not routinely sounded in the Chicago area are higher than at gated crossings in the rest of the nation (except Florida) where horns are routinely sounded.

Westat compared the TransInfo-UIC, Westat 2003, and Westat 2004 models and found that the two Westat models are superior for estimating the effect of train horns at gated crossings in Chicago. Both Westat models fit the data better and avoid the biased residuals found in the TransInfo-UIC model. Since there is some evidence of numerical instability in the Westat 2004 model, Westat prefers the Westat 2003 model. Westat also tested the Westat 2003 model for collinearity and found that (1) since approximately 76 percent of the effect of the no-horn parameter was independent of the other model parameters, there was no confirmation of collinearity, (2) although there was evidence of some possible collinearity among some of the parameters, there was no such evidence pertaining to the no-horn parameter, and (3) the test statistic for assessing an adverse effect of collinearity for the no-horn parameter was well below the threshold for collinearity, therefore collinearity did not pose a serious threat to estimated effectiveness of train horns. As a result, Westat concluded that its 2003 model provided the best representation of excess risk among the models applied. FRA analysts agreed that the TransInfo-UIC model did not perform suitably to explain crossing risk in the region. Westat further concluded that the sample size for the Chicago area is not large enough to derive consistent statistical results across different statistical models.

Detailed comments by Chicago jurisdictions further questioned the interim final rule's statistical basis. For example, the Metropolitan Mayors Caucus, acting in concert with the City of Chicago and the Chicago Area Transportation Study (CATS), stated that, “The FRA's data quality and model use is inappropriate for setting policy.” The Mayors Caucus filing (FRA-1999-6439-3770) called attention to direction provided in February 2002 by the Office of Management and Budget to develop and implement data quality standards. The commenters specifically questioned the quality of the National Highway-Rail Crossing Inventory, which is maintained by FRA on behalf of States, railroads and other users. The Inventory was used to generate risk estimates for use in the Westat and TransInfo-UIC studies.

1

1

This criticism was repeated in an October 5, 2004, letter from the CATS Council of Mayors Executive Committee to the Department of Transportation's Inspector General and in a January 26, 2005, letter from eleven Members of Congress from Illinois to the Director, Office of Management and Budget. These documents are filed in the public docket of this proceeding as Document nos. FRA-1999-6439-3918 and FRA-1999-6439-3922, respectively.

FRA recognizes that, in a voluntarily-populated database that provides information for over 149,000 public at-grade crossings, there are individual errors. For instance, in conducting additional review of Chicago Region crossings equipped with flashing lights only, FRA recently determined that several of them have been upgraded by the addition of gates. State authorities and railroads apparently had not reported the improvements to FRA's contractor. This is the typical type of problem encountered when a significant minority of records are simply out of date.

The commenters suggest that FRA “correct the data” before undertaking further analysis. FRA meets regularly with railroads and with State agencies responsible for highway-rail crossing safety. FRA strongly encourages submissions from these parties, which typically have more recent data available for their own purposes. The U.S. Department of Transportation has four times sent legislation to the Congress that would have made regular updating of the inventory mandatory on both the State agencies (which are generally recipients of substantial Federal-aid highway funds) and the railroads. The first such legislation was transmitted on July 26, 1999. The Congress has not taken final action on this legislation, although a virtually identical provision was included in S. 1402, the Federal Railroad Safety Improvement Act, which passed the Senate on November 25, 2003, but failed of final passage with the adjournment of the 108th Congress in December of 2004. Short of mandatory reporting, FRA has no practical means of re-creating the national inventory in a manner acceptable to Chicago Region commenters in this proceeding.

FRA is required by law to issue a final rule requiring use of the train horn. The agency is not required to provide exceptions to use of the train horn, except to the extent that it is useful to take into consideration the interests of communities with pre-existing bans. Nevertheless, FRA has aggressively sought from the beginning of this effort—including before enactment of any requirement to consider the interests of pre-rule ban communities—to craft suitable exceptions. Providing for quiet zones is a goal embraced by virtually all commenters in this proceeding, and in order to do it fairly and effectively, FRA must utilize the best data available.

FRA has proceeded with development of this rulemaking with the belief, founded on daily use of Inventory information for a variety of purposes, that while some of the data are older than would be desired, there are not patterns in the inventory that would create biased results as between train horn crossings and whistle ban crossings or in any regional analysis. In making their data quality argument, the Chicago Region commenters do not allege specific bias or suggest a reason why there could be such a bias. If FRA cannot rely upon the Inventory data for purposes of this rulemaking, then FRA would lack a rational basis for permitting any exceptions to the statutory command that train horns sound at highway-rail grade crossings. Nevertheless, FRA agrees that, when dealing with a comparative safety performance difference as small as the one at issue for gated crossings in the Chicago Region, and given the poor results for statistical significance and model fit for the various approaches, it is wise to explore whether there may be any differences in the characteristics of the Inventory data that might inadvertently introduce bias into the analysis.

FRA had noted during the 10-year pendency of this rulemaking that much of the data for the Chicago area and the balance of Illinois was badly out of date. FRA encouraged the State to update the information, and the State did make a major effort to update average annual daily traffic in 2003. Because of the study period (1997 through 2001) and the methodology used for retrieval of inventory information, however, most of this updated information was not utilized in the Westat or Transinfo-UIC analysis (

i.e.

, the updates occurred late in the study period or after its close). (The updated information has been used in generating corridor risk estimates and is accessed by the quiet zone web calculator.) FRA concurs that it is

prudent to inquire further into whether known data quality issues—which themselves cannot be effectively addressed by FRA without cooperation from other parties—have the potential to adversely affect the Chicago Region analysis.

Therefore, FRA will arrange for an independent peer review of its conclusion on this issue before issuing an amendment to this final rule which will address Chicago Region crossings. FRA will respond to the “peer review report” and place a copy of its response in the public docket.

Pending completion of this Chicago Region re-analysis, FRA is excepting existing Chicago Region no whistle crossings from the requirement to sound the train horn. It is FRA's intention to leave those crossings—and those crossings alone—subject to existing Illinois State Law pending further rulemaking. Existing no-whistle excusals will stand, and railroads will remain free to sound the horn where they elect to do so (as is the case today).

In doing so, FRA notes that the most active challenge made by the Chicago authorities has to do with the 17.3% excess risk estimate for gated crossings. FRA pointed out in the interim final rule that there are an insufficient number of non-gated crossings in the region to calculate a special excess risk rate for them. Nor, in the case of many of the non-gated crossings, would all of the same considerations presented by Chicago Region commenters apply (

e.g.

, most of the non-gated crossings are on tracks used by fewer trains, some are on lines exclusively used for freight service). Nevertheless, FRA is including those non-gated crossings in the temporary exclusion provided in this final rule. The following considerations support this approach:

1. Some of the subject crossings are within logical pre-rule quiet zones comprised principally of gated crossings. It is not reasonable to ask public authorities to move forward with improvement of individual crossings outside the context of planning for the corridor. Nor would it in every case be cost effective, in comparison with a corridor approach, to do so.

2. The total risk associated with these crossings is not high. There are fewer than 10 non-gated crossings that would fall in pre-rule quiet zones requiring some form of action to compensate for absence of the train horn (based on current risk indices and relevant accidents in the past 5 years). Several of these are on lines with moderate speeds or very modest annual average daily traffic and have individual risk indices below the NSRT. The Illinois Commerce Commission has been aggressive in adding gates at the higher-risk crossings over the past several years. There is no reason to believe that this will not continue.

3. FRA expects to conclude further data analysis regarding the Chicago Region gated crossings as soon as possible and to conclude any necessary final rule amendment as quickly thereafter as feasible, given the need for review and clearance of the amendment. Pre-rule quiet zones are expected to be brought in full conformity with this final rule within 5 to 8 years, depending upon actions taken by the State to support local communities. The further delay associated with temporarily excepting these non-gated crossings from the requirement to sound the train horn will not be significant.

FRA does not perceive any reason to conduct an entire new series of analyses for the balance of the Nation. Westat's results for the Nation were statistically significant with good model fit. Given that whistle bans outside of the Chicago Region involve inventory records from 24 States, FRA cannot conceive any condition under which the Inventory records for whistle ban crossings would be of materially different quality (currency and accuracy) than for train horn crossings.

FRA calls attention to the fact that two important sets of data have not been effectively challenged as to their quality: Data regarding highway-rail crossing incidents (which is filed under penalty of law); and the identity of Chicago Region crossings (which has been meticulously studied and agreed upon by the Illinois Commerce Commission and FRA).

FRA further notes that there is likely no transportation safety database that is free of imperfections. Use of imperfect data is greatly to be preferred over disregarding of data. But it is important not to rely excessively on data whose characteristics are poorly understood. Chicago Region commenters in this rulemaking have challenged FRA to take another look at the data, and FRA will do so.

Other Regional Claims

FRA also received comments from communities in Massachusetts and Maryland requesting differential treatment under the final rule, based on the characteristics of rail operations in the Northeast. Ledyard McFadden of Beverly Farms, Massachusetts accused FRA of discriminatory implementation of the rule, given the “specific exception” accorded to the Chicago Region based on extensive and expensive statistical analysis provided by that region. Noting that the Chicago Region was afforded “a much lower effectiveness rate than the rest of the nation,” the City of Cumberland, Maryland asserted that the discrepancy should be resolved using accurate data or the rest of the nation should also be accorded the lower excess risk estimate. Massachusetts Congressman John Tierney submitted comments asserting that a number of his constituents “perceive discriminatory implementation of the rule” based on the rule's specific exception for the greater Chicago area. Questioning why similar analysis was not performed in the Northeast, particularly along the commuter-only rail lines of Boston's North Shore, Congressman Tierney asserted that the rule should not be implemented until adequate regional analyses have been completed.

FRA is not able to provide for separate regional estimates of excess risk. Statistically, there are sound reasons for assigning a horn effectiveness rate to gated crossings in the Chicago area that is lower than that for gated crossings in the rest of the country. Westat estimated an effectiveness rate for gated crossings for the Chicago Region of 17.3% and an effectiveness rate for gated crossings in the rest of the nation (excluding Florida) of 66.8%. Associated with these point estimates are 95% confidence intervals.

2

Neither point estimate is contained in the 95% confidence interval of the other. Based on this, Westat noted “the ban effect in the Chicago area is different from the ban effect in the rest of the nation.” Had the point estimate for the Chicago Region been within the 95% confidence interval for the rest of the nation (excluding Florida), there would have been some reason to believe that the ban effect in the Chicago Region was not necessarily different from that in the rest of the nation (excluding Florida).

2

A 95% confidence interval for an estimate provides a range over which we are highly confident the true value exists. If we could sample the Chicago area and the rest of the nation many times and compute corresponding confidence intervals, the true value would be between the computed confidence intervals about 95% of the time.

Westat performed a statistical analysis at FRA's direction on no-whistle crossings in Wisconsin and the Chicago Region. These regions were selected for regional statistical analysis because (1) commenters argued that safety performance at whistle ban crossings is different than in the nation at large, (2) the statute provides a basis for addressing their concerns, and (3) they contained a sufficiently large number of no-whistle crossings that might support

comparison with national crossing data. Given the relatively low number of whistle ban crossings in Northeast Massachusetts and Maryland, FRA was not able to perform a regional statistical analysis of those crossings that would yield reliable conclusions.

It is unusual for FRA to tailor a rule to the characteristics of one or more regions of the country because of the statutory command that “[l]aws, regulations, and orders related to railroad safety * * * shall be nationally uniform to the extent practicable.” 49 U.S.C. 20106. In this case, FRA is authorized by statute to treat communities with pre-existing quiet zones differently. Congress directed FRA, in issuing this rule, to “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 * * * sounding of a locomotive horn at highway-rail grade crossings.” 49 U.S.C. 20153(i)(1). FRA must, however, have a rational basis for doing so. As discussed above and elsewhere in this Final Rule and the Interim Final Rule, the Chicago region presented enough data points for FRA to rationally distinguish safety behavior at no-whistle highway-rail grade crossings in the Chicago region from those in the rest of the country. The record does not contain sufficient data for Northeast Massachusetts or Cumberland, Maryland to enable FRA to make similar rational distinctions for them. Nor have whistle bans in Massachusetts or Maryland been subject to discretionary selection (

i.e.

, there is no reason to believe that relatively safer crossings were selected for inclusion in ban areas).

If a court should conclude that FRA lacks a rational basis for treating the Chicago region differently than the rest of the nation, the Chicago region would then be required to meet the national standard. Such a ruling would not extend the benefit of the 17.3% excess risk estimate to any other region.

FRA notes the possibility that the marginal effectiveness of the train horn might be smaller in a situation such as Northeast Massachusetts where the following conditions exist: Predominance of commuter rail service (scheduled service, shorter trains), moderate speed over crossings adjacent to stations, and absence of heavy freight service on the rail lines. However, the Massachusetts Bay Transportation Authority provides express, as well as local, service at a number of crossings proximate to station locations that present significant hazards. Although the small number of crossings and other data points makes it impractical to derive special estimates for this region, FRA remains open to dialogue regarding circumstances in individual communities in the context of waiver proceedings.

This statutory exception (49 U.S.C. 20153(i)(1)) to the requirement for national uniformity may be seen as consistent with the policy behind the national uniformity requirement because, while it yields varying requirements for communities in different circumstances, the requirements for railroads are nationally uniform. The policy is aimed at facilitating transportation over the general system of railroad transportation by assuring that railroads face the same requirements nationwide—put another way, the railroad system cannot function efficiently if the rules for operation change across local or state jurisdictions. Railroads are required nationwide to sound the train horn at every highway-rail grade crossing except those in quiet zones. The standards for railroad operations remain the same nationwide without regard to regional variations in the standards local governments must meet in order to establish quiet zones.

As noted in the interim final rule, FRA investigated a number of options in addressing Chicago area issues. (

See

section 14 of the preamble to the interim final rule, “Chicago Regional Issues,” 68 FR 70611.) FRA noted then, and reiterates here that the option of using national averages for the entire Nation, including Chicago, would have been employed by FRA if the Chicago Regional data were not available or their use inappropriate. FRA could have rationally decided that the limited significance of the Chicago Region statistical conclusions did not require reliance on those conclusions. This would have resulted in a fully functional and appropriate final rule consistent with the Act; a rule FRA would not have hesitated issuing. However acceptable this option was, it would have necessitated according little weight to a sizable body of testimony from the Chicago Region together with statistical analysis and qualitative knowledge of the Chicago Region's unique characteristics.

Excess Risk Estimate for New Quiet Zones

Other commenters from the Chicago Region assert that the 17.3% excess risk estimate attributed to gated crossings subject to whistle bans in the Chicago Region should be applied to all public grade crossings within the Chicago Region. Noting that gated crossings subject to whistle bans are often located on the same rail lines as other grade crossings not subject to existing whistle bans, the Town of Riverside, Illinois and the City of Elmhurst, Illinois asserted that it was illogical to suggest that motorists consciously exhibit riskier behavior at one gated crossing over another. The Village of Northbrook, Illinois asserted that differential treatment of public crossings implies that drivers need the audible cue at some crossings, but not at others, in order to achieve the same level of safety. However, drivers in northeastern Illinois regularly cross multiple crossings and are not cognizant of which crossings are subject to whistle bans and which are not. The Village of Buffalo Grove asserted that different standards should not apply to adjacent crossings along the same rail line, while George Pradel, Mayor of Naperville, Illinois asserted that there is no difference in motorist behavior at such crossings.

FRA is not persuaded by the suggestion that the lower estimate of excess risk associated with gated no-whistle crossings in Chicago is applicable to other crossings. As FRA explained in the interim final rule, one of the most important explanatory factors supporting a reduced estimate of excess risk for gated no-whistle crossings in Chicago is discretionary selection. Railroads have determined that they should sound the horn at a clear majority of crossings in the region where the Illinois Commerce Commission excused use of the horn because of the risk that the railroads perceive at those crossings. Factors that drive such decisions may include accident history, reports of “near hits” by train crews, poor crossing geometry, poor sight distances on one or more approach, absence of active law enforcement, and other factors. It is, of course, possible that the excess risk associated with silencing the train horn at other crossings in Chicago may be less than the national average due to a variety of factors. However, FRA has no principled basis for deriving such an estimate. FRA notes that Illinois authorities have not seen fit to impose mandatory train horn bans at these additional crossings, and FRA is unwilling to do so except on the basis required of all New Quiet Zones nationwide.

Chicago Region Proposed Alternate Crossing Safety Program

The Village of Arlington Heights, City of Chicago, Northwest Municipal Conference, Metropolitan Mayors Caucus, and the Chicago Area

Transportation Study (“Chicago Region commenters”) submitted comments asserting that their whistle ban crossings should qualify for the statutory exception from the rule's locomotive horn sounding requirements found at 49 U.S.C. 20153(c)(1)(C). This exception can be applied by FRA to those categories of highway-rail grade crossings that do not present a significant risk with respect to loss of life or serious personal injury. In support of their assertion, the Chicago Region commenters submitted a study by TransInfo LLC and the University of Illinois at Chicago (“UIC”), which concluded that “* * * based on FRA data, there is no reason to believe that in the Chicago Area banning the sounding of horns increases the chance of collisions at gated public highway-rail grade crossings.”

In the alternative, the Chicago Region commenters submitted a Proposed Alternative Crossing Safety Program to FRA for consideration. Under this proposed program, FRA would delegate its authority over quiet zone development and implementation to “an appropriate State agency with railroad safety oversight responsibilities.” While FRA would monitor the effectiveness of the regional quiet zone program, the State agency would establish acceptable safety thresholds, designate quiet zone status, and enforce railroad compliance within quiet zones. For example, the Chicago Region would establish a safety threshold for quiet crossings of no more than three “relevant” collisions over a five-year period. If this threshold was ever exceeded at a quiet crossing, the State agency could immediately impose routine horn sounding at the crossing.

As stated above, FRA provided the TransInfo/UIC study to its contractor, Westat, Inc., a nationally respected statistical research firm, for analysis. After reviewing the study, Westat concluded that the model used by TransInfo/UIC produced biased estimates. Westat also concluded that its original model, which estimated a 17.3% risk increase at whistle ban crossings in the Chicago Region, constituted the best estimate of excess risk available. Given this increase in risk, FRA has not, as of this date, applied the statutory exception to whistle ban crossings in the Chicago Region. However, FRA has excepted pre-rule no-whistle crossings in the Region from the requirement to sound the train horn pending further analysis.

In addition, FRA has not adopted the Proposed Alternative Crossing Safety Program. FRA cannot delegate its statutory authority to prescribe requirements for quiet zone development and implementation in the wholesale manner recommended by the Chicago Region commenters. FRA also finds the proposed safety threshold of no more than three “relevant” (as defined by the commenters) collisions over a five-year period to be inadequate, particularly in light of the fact that the Program would exclude collisions in which the driver intentionally drives around or under activated gates from the definition of “relevant collision.” Aggressive motorist behavior is part of the risk that this rule seeks to counter. It is simply not the case that a motorist who would drive around or under a gate cannot be deterred. Absent suicidal behavior (suicides are not included in FRA safety data), motorists can often be persuaded by a warning that is urgent and clearly associated with the imminent arrival of the train at the crossing. To the extent that State policy overlooks this fact, it fails to address the full range of risk addressed by this rulemaking.

Nonetheless, within the framework of a uniform national policy, State agencies can make substantial contributions to the successful implementation of quiet zones. In response to comments, FRA has added a new provision to the final rule that provides a greater role for State agencies in the quiet zone development process. This provision will allow State agencies to submit applications for “recognized State agency” status, under which the agency can choose to participate as a partner throughout the quiet zone development process. FRA envisions that “recognized State agencies” could serve as clearinghouses for proposed quiet zones, by coordinating the quiet zone development process, designating crossings that are eligible for Pre-Rule Quiet Zone and Intermediate Quiet Zone status, and/or participating in diagnostic team reviews of crossings. Therefore, FRA encourages State agencies who, like the Illinois Commerce Commission, would like to take a proactive role in the quiet zone development process to submit applications for “recognized State agency” status.

Section-by-Section Analysis

Section 222.1 What Is the Purpose of This Regulation?

This section was not revised in the final rule. Noting that the interim final rule already addressed private crossings, the AAR submitted comments recommending the revision of this section to state that the purpose of this rule is to provide for safety at highway-rail grade crossings and pedestrian crossings. However, the final rule addresses private and pedestrian crossings to the extent that they are located within quiet zones. Given the limited number of private and pedestrian crossings affected by the rule, FRA has not expanded the scope of this section.

Section 222.3 What Areas Does This Regulation Cover?

Paragraph (a) of this section has not been revised. A new paragraph (b) has been added to this section. In the course of drafting any rule, and especially when drafting a rule of this complexity and one involving a number of sometimes competing interests, FRA makes a number of difficult decisions. In doing so, FRA makes every attempt to construe and implement statutory requirements appropriately. Accordingly, paragraph (b) has been added to this section to expressly indicate the intent of FRA that the provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the intent of FRA that the remaining provisions shall continue in effect.

Due to the uncertainty associated with the excess risk estimate of silencing the locomotive horn at highway-rail grade crossings in the Chicago Region where horn sounding was excused by the Illinois Commerce Commission and where railroads have implemented no-whistle policies, paragraph (c) has been added to exclude those highway-rail grade crossings from the scope of the final rule pending completion of the Chicago Region data re-analysis discussed in “Chicago Regional Issues” (Supplementary Information, section 7).

Section 222.5 What Railroads Does This Regulation Apply To?

This section describes the railroads to which this regulation applies. The regulation applies to every railroad with a number of listed exceptions. The regulation does not apply to (1) railroads exclusively operating freight trains only on track which is not part of the general railroad system of transportation; (2) passenger railroads that operate only on track which is not part of the general railroad system of transportation and that operate at a maximum speed of 15 miles per hour over public grade crossings; and (3) rapid transit operations within an urban area that are not connected to the general railroad system of transportation.

Paragraph (a) of this section was not revised in the final rule. However,

paragraph (b) of this section was revised in response to comments received from the Association of Railway Museums. Noting that the interim final rule would require tourist and excursion railroads to limit their operating speeds to 15 miles per hour over all railroad trackage, the Association of Railway Museums recommended that the rule be revised to exclude passenger railroads that operate on track which is not part of the general railroad system of transportation and that operate at a maximum speed of 15 mph over public grade crossings. The Association of Railway Museums asserted that precedent for this recommendation could be found in 49 CFR 229.125, which requires operative auxiliary lights on each lead locomotive operating at a speed greater than 20 mph over public grade crossings. After considering these comments, FRA determined that passenger operations that operate on track which is not part of the general railroad system of transportation could be exempted from the rule's locomotive horn sounding requirements, provided these operations are limited to 15 mph over public highway-rail grade and pedestrian crossings. Therefore, FRA has revised paragraph (b) accordingly.

Paragraph (c) of this section has not been revised. The California Public Utilities Commission (“California PUC”) submitted comments asserting that the rule should be revised to exclude rapid transit operations that share highway-rail grade crossings with conventional operations but do not share trackage. In its comments, the California PUC noted that rapid transit operations exhibit different risk patterns and hazards than conventional rail operations. For instance, rapid transit operations feature shorter consist lengths, different overall visibility profiles, and greater braking abilities. If the rule is applied to rapid transit operations that share highway-rail grade crossings with conventional operations, rapid transit operations would be required to sound the horn more frequently at crossings and to use a much louder horn than is being currently used. FRA notes that § 229.129 continues to exclude all rapid transit operations from the audible warning sound level requirements. Therefore, rapid transit operations that share highway-rail grade crossings with conventional operations will not be required to use louder horns to provide an audible warning at public highway-rail grade crossings. However, rapid transit operations that share highway-rail grade crossings with conventional operations must file a waiver under § 222.15 to obtain relief from the application of Part 222. FRA may then grant relief, depending on the underlying circumstances of each case.

New Jersey Transit Corporation (“NJ Transit”) also submitted comments requesting clarification of the rule's applicability to light rail systems that operate on the general railroad system pursuant to an FRA-approved Temporal Separation Plan. NJ Transit urged FRA to exempt these light rail operations from the application of the rule based on the distinct nature of light rail equipment (

i.e.

, light rail vehicles weigh less than conventional rail equipment and have superior stopping capabilities).

FRA also received comments from individuals in Riverton, New Jersey who requested that the rule be revised to exempt light rail operations from the scope of the rule. Mark Schneider submitted comments requesting that the final rule be revised to exclude the light rail operation in the historic town of Riverton, New Jersey, which, he states, is one of five light rail operations in the nation that can “stop on a dime.” Catherine Wheelhouse, owner of the Thomas Margaret Fine Art Gallery, submitted comments asserting that light rail operations should be evaluated under a different set of criteria because these operations consist of slower moving vehicles that provide a very large area of visibility for the operator.

Given the unique characteristics of individual light rail operations and the fact that freight operations over shared crossings will generally sound the horn (creating motorist expectations that should be considered in planning for safety), FRA has not provided an exemption for all light rail operations in the final rule. However, FRA would be willing to consider any waivers filed under § 222.15, for relief from the requirements of this part, on a case-by-case basis. These requests can be considered within existing “shared use” dockets and after consultation with the Federal Transit Administration and State Safety Oversight agencies.

The Town of Manchester-by-the-Sea, Massachusetts also submitted comments recommending that the exemption set forth in paragraph (c) be expanded to cover commuter rail service. Noting that its commuter rail service consists of short passenger trains, generally not longer than seven or eight cars, the Town of Manchester-by-the-Sea asserted that motorists are not tempted to “beat” the train to the crossing and are willing to wait for it to travel through the crossing. The Town of Manchester-by-the-Sea also drew similarities between commuter rail service and rapid transit operations, as both types of rail service operate in densely populated areas. FRA has not, however, revised paragraph (c) to cover commuter rail service. Commuter rail service, unlike rapid transit operations, operates on the general railroad system of transportation, often over the same trackage over which freight railroads operate. In addition, the equipment used in commuter rail service carries substantial weight which, in turn, requires significant stopping distances. Even though the commuter rail service in Manchester-by-the-Sea may entirely consist of short passenger trains, the longer stopping distances associated with conventional commuter rail operations necessitate advance warning of their impending arrival at grade crossings, absent additional safety measures that mitigate existing risk.

Section 222.7 What Is This Regulation's Effect on State and Local Laws and Ordinances?

This section contains a statement of FRA's intent regarding the preemptive effect of this final rule. While the presence or absence of such a section does not conclusively establish the preemptive effect of a final rule, it provides information to the public about the statutory provisions that govern the preemptive effect of the rule and FRA's position on this issue.

Paragraph (a) has been revised in the final rule to provide clarification as to the preemptive effect of the rule on State laws governing the sounding of the locomotive horn at public highway-rail grade crossings. 49 U.S.C. 20106 states that all regulations prescribed by the Secretary relating to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. However, the highway-rail grade crossings described in § 222.3(c) are exempt from the scope of the final rule. Therefore, except as provided in paragraph (b) of this section, this final rule shall preempt any State statutory or common law, local ordinance or State or local regulatory agency rule governing locomotive horn use at public highway-rail grade crossings. As for the highway-rail grade crossings described in § 222.3(c), paragraph (b) states that the final rule will not have any preemptive effect on State laws, rules, regulations, or orders governing the sounding of the locomotive horn at those crossings. Note that this statement of non-preemptive effect applies only to those Chicago

Region highway-rail grade crossings described in § 222.3(c). Thus, it does not apply to every highway-rail grade crossing in the Chicago Region.

Paragraph (c) states that the final rule preempts any State statutory or common law, local ordinance or State or local regulatory agency rule governing locomotive horn use at private and pedestrian grade crossings that are located within a duly established quiet zone. This paragraph has been revised in the final rule to include a reference to the rule's preemptive effect over State and local laws governing locomotive horn use at pedestrian grade crossings within quiet zones.

Paragraph (d) states that the final rule will not preempt State law regarding use of SSMs and ASMs as traffic control measures. However, with the exception of SSMs and ASMs implemented at the highway-rail grade crossings described in § 222.3(c), the final rule will preempt State law governing the sounding of the locomotive horn at highway-rail grade crossings equipped with SSMs and/or ASMs. Since the highway-rail grade crossings described in § 222.3(c) are exempt from the scope of the final rule, the final rule will not preempt State law governing the sounding of the locomotive horn at those crossings.

Paragraph (e), which expresses FRA's intent to refrain from preempting State law concerning administrative procedures that must be followed regarding the installation or modification of engineering improvements at highway-rail grade crossings, has been added to the final rule in response to comments requesting clarification of the role of State agencies that have jurisdiction over highway-rail grade crossing safety. For example, while requesting clarification of the rule's effect on the role of State agencies, the Oregon Department of Transportation noted that signal and median installations within the state of Oregon must be approved by the Oregon Department of Transportation's Rail Division. Along the same vein, the Missouri Department of Transportation stated that whenever highway-rail grade crossings are modified, the Missouri Department of Transportation is required to review and approve plans and issue administrative orders. Noting that State law gives it exclusive jurisdiction over the terms of installation, operation, maintenance, use and protection of each crossing, the California Public Utilities Commission asserted that the interim final rule was sufficiently vague that some localities might assume that they could bypass state agencies, such as the California Public Utilities Commission, that are empowered with exclusive authority over grade crossing design and modification. The Township of Montclair, New Jersey also submitted comments requesting clarification of the State's role during the quiet zone development process. After reviewing these comments, FRA has revised the final rule by specifically stating, in paragraph (e), that the rule does not preempt State law concerning administrative procedures for the installation or modification of highway-rail grade crossing improvements.

Section 222.9 Definitions

The definitions of “Administrator”, “Alternative safety measures (ASMs)”, and “Associate Administrator” have not been revised in the final rule.

“Channelization device” means a traffic separation system made up of a raised longitudinal channelizer, with vertical panels or tubular delineators attached, that is placed between opposing highway lanes designed to alert or guide traffic around an obstacle or to direct traffic in a particular direction. “Tubular markers” and “vertical panels” as described in sections 6F.57 and 6F.58, respectively, of the Manual on Uniform Traffic Control Devices (“MUTCD”) issued by the Federal Highway Administration, are acceptable channelization devices for purposes of this part. Additional design specifications are determined by the standard traffic design specifications used by the governmental entity constructing the channelization device. However, FRA notes that it would be highly advisable to use raised longitudinal channelizers that are at least four inches high.

FRA revised the definition of channelization device in the final rule to reflect the fact that tubular markers and vertical panels must now be attached to raised curbing, in order to qualify as an SSM. Even though the interim final rule allowed the use of tubular markers and vertical panels that were directly affixed to the pavement as Supplementary Safety Measures, FRA received a number of negative comments about the effectiveness and high maintenance burden associated with the use of this type of roadway treatment. After considering these comments, FRA has removed surface-mounted channelization devices from the list of approved SSMs. Therefore, the rule has been revised by restricting the definition of channelization devices to include only those raised longitudinal channelizers that are equipped with vertical panels or tubular delineators.

“Chicago Region” means the following six counties in the State of Illinois: Cook, DuPage, Lake, Kane, McHenry and Will.

The definition of “Crossing Corridor Risk Index” was not revised in the final rule. The definition of “Diagnostic team” was also not revised in the final rule. The California PUC submitted comments recommending that the definition of “diagnostic team” be revised to state that State agencies with jurisdiction over grade crossings must be included in any diagnostic team. However, FRA did not revise the definition of “diagnostic team” to mandate the inclusion of State agencies with jurisdiction over grade crossings because no funding for diagnostic team activities has been provided.

“Effectiveness rate” means a number between zero and one which represents the reduction of the likelihood of a collision at a public highway-rail grade crossing as a result of the installation of an SSM or ASM when compared to the same crossing equipped with conventional active warning systems of flashing lights and gates. Zero effectiveness means that the SSM or ASM provides no reduction in the probability of a collision, while an effectiveness rating of one means that the SSM or ASM is totally effective in eliminating collision risk. Measurements between zero and one reflect the percentage by which the SSM or ASM reduces the probability of a collision. This definition has been revised in the final rule to correct a typographical error.

The definitions of “FRA” and “Grade Crossing Inventory Form” have not been revised in the final rule.

“Intermediate Partial Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail grade crossings at which State statutes or local ordinances restricted the routine sounding of locomotive horns for a specified period of time during the evening or nighttime hours, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads for a specified period of time during the evening and/or nighttime hours, and at which such statutes, ordinances or agreements were in place and enforced or observed as of December 18, 2003, but not as of October 9, 1996.

“Intermediate Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail grade crossings at which State statutes or local ordinances restricted the routine sounding of

locomotive horns, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads, and at which such statutes, ordinances or agreements were in place and enforced or observed as of December 18, 2003, but not as of October 9, 1996.

The definitions of “Locomotive”, “Locomotive horn”, “Median”, “MUTCD”, and “Nationwide Significant Risk Threshold” have not been revised in the final rule.

“New Partial Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which locomotive horns are not routinely sounded between the hours of 10 p.m. and 7 a.m., but are routinely sounded during the remaining portion of the day, and which does not qualify as a Pre-Rule Partial Quiet Zone. This definition contains a uniform period for the routine silencing of the locomotive horn, which was included in response to comments submitted by the Florida East Coast Railway asserting that different time periods for partial quiet zones would cause operational confusion and make compliance difficult.

“New Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail grade crossings at which routine sounding of locomotive horns is restricted pursuant to this part and which does not qualify as either a Pre-Rule Quiet Zone or Intermediate Quiet Zone.

“Non-traversable curb” means a highway curb designed to discourage a motor vehicle from leaving the roadway. Non-traversable curbs, which are used at locations where highway speeds do not exceed 40 miles per hour, are at least six inches high. Additional design specifications are determined by the standard traffic design specifications used by the governmental entity constructing the curb.

FRA revised this definition in the final rule to correct a typographical error and to remove the maximum height requirement contained within the interim final rule. The interim final rule defined non-traversable curbs as being

more

than six inches, but no more than nine inches high. As noted by SEH, Inc., this definition would exclude the standard six-inch curb frequently used by governmental entities. Therefore, FRA has revised the definition to include the standard six-inch curbs that are frequently used by governmental entities.

“Partial Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail grade crossings at which locomotive horns are not routinely sounded for a specified period of time during the evening and/or nighttime hours.

“Pedestrian crossing” means, for purposes of this part, a separate designated sidewalk or pathway where pedestrians, but not vehicles, cross railroad tracks. Sidewalk crossings contiguous with, or separate but adjacent to, public highway-rail grade crossings, are presumed to be part of the public highway-rail grade crossing and are

not

considered pedestrian crossings for purposes of this rule.

The definition for “Power-out indicator” has not been revised in the final rule.

“Pre-existing Modified Supplementary Safety Measure” (Pre-existing Modified SSM) means a safety system or procedure that is listed in appendix A to this Part, but is not fully compliant with the standards set forth therein, which was installed before December 18, 2003 by the appropriate traffic control or law enforcement authority responsible for safety at the highway-rail grade crossing. The calculation of risk reduction credit for pre-existing modified SSMs is addressed in appendix B of this part.

“Pre-existing Supplementary Safety Measure” (Pre-existing SSM) means a safety system or procedure established in accordance with this part before December 18, 2003 which was provided by the appropriate traffic control or law enforcement authority responsible for safety at the highway-rail grade crossing. These safety measures must fully comply with the SSM requirements set forth in appendix A. The calculation of risk reduction credit for qualifying pre-existing SSMs is addressed in appendix A of this part.

“Pre-Rule Partial Quiet Zone” means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which State statutes or local ordinances restricted horns for a specified period of time during the evening and/or nighttime hours, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads for a specified period of time during the evening and/or nighttime hours, and at which such statutes, ordinances or agreements were in place and enforced or observed as of October 9, 1996 and on December 18, 2003.

The definition of Pre-Rule Partial Quiet Zone specifically includes partial whistle bans enforced or observed as of the date of passage of Public Law 104-264, which amended 49 U.S.C. 20153 to require the Secretary to take into account the interest of communities that “have in effect” restrictions on the sounding of the locomotive horn at highway-rail grade crossings or have not been subject to the routine sounding of a locomotive horn at highway-rail grade crossings. FRA reads the statute as requiring FRA to be particularly solicitous of communities that had restrictions in effect at the time of the 1996 ordinance.

The definitions of “Pre-Rule Quiet Zone” and “Private highway-rail grade crossing” have not been revised in the final rule.

“Public authority” means the public entity responsible for traffic control or law enforcement at the public highway-rail grade or pedestrian crossing. The definition of this term has been revised to more accurately reflect the statutory definition provided in 49 U.S.C. 20153. In making this revision, FRA is responding to comments submitted by the American Association of Railroads (“AAR”) which asserted that, under the definition provided in the interim final rule, multiple entities could qualify for public authority status over a set of crossings. For example, a county police department could have jurisdiction over the same set of crossings that fall under the jurisdiction of a State highway agency. Under such a scenario, the county police department and the State highway agency would qualify for “public authority” status. By narrowing scope of the definition, FRA is attempting to minimize the number of circumstances in which there may be multiple entities that can qualify for public authority status over a single set of crossings. While the definition refers to the entity “responsible for traffic control or law enforcement” at the public crossing, FRA does not contemplate that the local police department will be the entity creating a quiet zone. Instead, the public entity having control over that law enforcement agency would be the more appropriate entity. Thus, if city police patrol the crossing, the city government, rather than the actual city police department, would be the appropriate entity.

“Public highway-rail grade crossing” means, for purposes of this part, a location where a public highway, road, or street, including associated sidewalks or pathways, crosses one or more railroad tracks at grade. If a public authority maintains the roadway on both sides of the crossing, the crossing

is considered a public crossing for purposes of this part.

The definition of public highway-rail grade crossing has been revised in the final rule. The Florida Department of Transportation submitted comments asserting that the definition of public highway-rail grade crossing in the interim final rule is inconsistent with the definition of public road provided in Title 23 of the United States Code. Noting that grade crossings owned and maintained on one side by a private entity are generally considered to be private crossings, the AAR also submitted comments expressing concern that the definition provided by the interim final rule would include a number of crossings that are currently considered private crossings. As a result, the interim final rule would require routine horn sounding at many crossings where horns are not currently sounded. After considering these comments, FRA revised the definition of public highway-rail grade crossing to reflect the generally-accepted industry standard of having a public roadway on both sides of the crossing.

The definition of “Quiet Zone” has not been revised in the final rule.

“Quiet Zone Risk Index” means a measure of risk to the motoring public which reflects the Crossing Corridor Risk Index for a quiet zone, after adjustment to account for increased risk due to lack of locomotive horn use at the crossings within the quiet zone (if horns are presently sounded at the crossings) and reduced risk due to implementation, if any, of SSMs and ASMs with the quiet zone.

The calculation of the Quiet Zone Risk Index, which is explained in appendix D of this part, does not differ for partial quiet zones. FRA calculates risk on a 24-hour basis for all quiet zones, even if restrictions on locomotive horn use have only been imposed during the nighttime hours.

The definition of “Railroad” has not been revised in the final rule.

“Recognized State agency” means, for purposes of this part, a State agency, responsible for highway-rail grade crossing safety or highway and road safety, that has applied for and been approved by FRA as a participant in the quiet zone development process.

“Relevant collision” means a collision at a highway-rail grade crossing between a train and a motor vehicle, excluding the following: A collision resulting from an activation failure of an active grade crossing warning system; a collision in which there is no driver in the motor vehicle; or a collision in which the highway vehicle struck the side of the train beyond the fourth locomotive unit or rail car. For purposes of Pre-Rule Partial Quiet Zones, a relevant collision shall not include collisions that occur during the time period within which the locomotive horn is routinely sounded.

A specific exception has been added to the definition of “relevant collision” for Pre-Rule Partial Quiet Zones. This exception has been added to the final rule to ensure that only those relevant collisions which occur during periods when the locomotive horn is silenced will be considered for purposes of § 222.41(b).

FRA received comments from Metra recommending that the definition of “relevant collision” be revised to exclude collisions that were deemed intentional on the part of the driver and collisions caused by driver impairment due to consumption of alcohol or controlled substances. The City of Cumberland, Maryland also submitted comments recommending that the definition of “relevant collision” be revised to exclude collisions in which the driver was under the influence of drugs or alcohol and collisions in which the driver committed suicide. However, FRA did not revise the definition of “relevant collision” to exclude these types of collisions because primary cause determinations for highway-rail grade crossing collisions are matters that are best left for resolution by the courts.

Lastly, the AAR submitted comments recommending that the definition of “relevant collision” be revised to include collisions at highway-rail grade crossings between a train and a pedestrian. While collisions between trains and pedestrians have been included in the overall calculation of grade crossing risk, FRA has not revised the definition of “relevant collisions” to include collisions between trains and pedestrians because pedestrian collisions are not relevant on the direct issue of motorist decision-making.

“Risk Index With Horns” means a measure of risk to the motoring public when locomotive horns are routinely sounded at every public highway-rail grade crossing within a quiet zone. In Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones, the Risk Index With Horns is determined by adjusting the Crossing Corridor Risk Index to account for the decreased risk that would result if locomotive horns were routinely sounded at each public highway-rail grade crossing.

The definitions of “Supplementary safety measure (SSM)”, “Waiver”, and “Wayside horn” have not been revised in the final rule.

Section 222.11 What Are the Penalties for Failure To Comply With This Regulation?

This section has been revised in the final rule to reflect the May 2004 inflation adjustment of FRA's maximum and minimum civil monetary penalties. Under the final rule issued on May 28, 2004 (69 FR 30591), FRA increased its minimum civil penalty from $500 to $550 and its maximum civil penalty where a grossly negligent violation or pattern of repeated violations has created an imminent hazard of death or injury or has actually caused death of injury from $22,000 to $27,000.

Section 222.13 Who Is Responsible for Compliance?

This section has not been revised in the final rule.

Section 222.15 How Does One Obtain a Waiver of a Provision of This Regulation?

The California PUC submitted comments recommending that the rule be revised to require that any petition for waiver must come before the State agency responsible for grade crossings. The California PUC asserted that, at the very least, the State agency responsible for crossing safety should be a party to the waiver proceeding and should be given an opportunity to address the petition. However, FRA notes that the waiver procedures set forth in 49 CFR part 211 require publication notice of the waiver petition in the

Federal Register

and the public, including State agencies, is encouraged to submit comments on the waiver petition before FRA issues a decision.

The National League of Cities submitted comments recommending that the scope of this section be expanded to include multi-jurisdictional quiet zones. By expanding this section to include multi-jurisdictional quiet zone disputes, FRA would make the final decision with respect to whether quiet zone status should be granted or denied in those instances in which an individual jurisdiction is in opposition to a proposed multi-jurisdictional quiet zone. However, FRA is unwilling to allow the waiver process to be used by one jurisdiction to impose its proposed quiet zone and all resultant responsibilities upon its neighbor. Therefore, the changes requested by the National League of Cities will not be made.

This section has been revised, however, to conform to the statutory requirements of §§ 20153(d) and 201553(I)(3). Accordingly, paragraph (b)

has been revised to require that in the event the railroad and public authority cannot reach agreement to file a joint petition, the filing party, in addition to specifying in its petition the steps it has taken in an attempt to reach agreement with the other party, must also explain why applying the requirement for a jointly filed submission under paragraph (a) would not be likely to contribute significantly to public safety. If the Associate Administrator determines that applying the requirement for a jointly filed submission to that particular petition would not be likely to significantly contribute to public safety, the Associate Administrator shall waive the requirement for a joint submission and accept the petition for consideration.

Paragraphs (c) and (d) of this section have not been revised in the final rule.

Section 222.17 How Can a State Agency Become a Recognized State Agency?

This section sets forth the procedure that shall be followed by a State agency responsible for highway-rail grade crossing safety and/or highway and road safety in order to become a recognized State agency. Even though the specific functions of a recognized State agency are subject to agreement between the State agency and FRA, FRA envisions that a recognized State agency could act as a quiet zone clearinghouse by providing guidance on appropriate SSM selection, ensuring that proposed grade crossing improvements comply with FRA regulations and State administrative rules, securing all necessary State administrative approvals, and ensuring that all required public authority notification packages comply with FRA regulations. FRA does not, however, plan to delegate any authority to approve quiet zone applications or to establish acceptable risk thresholds within quiet zones. Nor does FRA intend to allow recognized State agencies to prevent public authorities from creating quiet zones, if the proposed quiet zone qualifies under this rule and all applicable State laws and regulations.

FRA has added this section to the final rule in response to comments submitted by State agencies who suggested the need for a larger role in the quiet zone development process. Asserting that the State's role was virtually non-existent under the interim final rule, the Minnesota Department of Transportation submitted comments expressing concern that the interim final rule would allow communities to bypass the considerable expertise of State agencies charged with improving grade crossing safety. The North Carolina Department of Transportation recommended that State departments of transportation serve as clearinghouses for quiet zone requests, so that State agencies could be involved in safety evaluations for each proposed quiet zone.

Other State agencies submitted comments requesting a more expansive role during the quiet zone development process. The Ohio Public Utilities Commission and the California Public Utilities Commission submitted comments recommending that all proposed quiet zones be reviewed and approved by State grade crossing regulatory agencies. Similarly, the Ohio Rail Association submitted comments recommending that the final rule extend to States the power to determine what oversight and safety standards need to be applied when communities seek quiet zones. FRA also received a Proposed Alternative Crossing Program from the Chicago Region, under which FRA would delegate the authority to implement and manage quiet zone development to an appropriate State agency with railroad safety oversight responsibilities.

After considering these comments, FRA decided to create a process by which State agencies who are interested in having a greater role in quiet zone development can provide assistance to FRA throughout the quiet zone development process. As suggested by the North Carolina Department of Transportation, recognized State agencies could serve as clearinghouses for proposed quiet zones by coordinating quiet zone creation and verifying local compliance with all applicable FRA regulations and State laws and administrative rules. However, as stated above, FRA does not plan to delegate any authority to approve quiet zone applications or to establish acceptable quiet zone risk thresholds.

Paragraph (a) provides that a State agency responsible for highway-rail grade crossing safety and/or highway and road safety may become a recognized State agency by submitting an application to the Associate Administrator. This application must contain a detailed description of the State agency's proposed scope of involvement in the quiet zone development process, contact information for the person(s) who will be made available to discuss the State agency application with FRA, and a statement from State agency counsel affirming that the State agency is authorized to undertake the responsibilities proposed.

Paragraph (b) provides that FRA will approve the State agency application if the proposed scope of involvement will, in the Associate Administrator's judgment, facilitate safe and effective quiet zone development. However, the Associate Administrator reserves the right to impose additional conditions as may be necessary to ensure effective coordination between the State agency and FRA during the quiet zone development process.

Section 222.21 When Must a Locomotive Horn Be Used?

Paragraph (a) of this section establishes the duty to sound the locomotive horn when approaching a public highway-rail grade crossing. The locomotive horn shall be sounded when the lead locomotive or cab car is approaching a public highway-rail grade crossing. This paragraph also requires the sounding of the locomotive horn in a pattern of two long, one short, and one long blast, which shall be initiated at the location specified in paragraph (b) of this section. The locomotive horn sounding pattern shall be repeated or prolonged until the locomotive or train occupies the crossing. However, the horn sounding pattern may be varied as necessary where crossings are spaced closely together.

FRA revised this paragraph in response to comments received from the AAR which noted an inconsistency in the locomotive horn sounding requirements imposed by the first two sentences in the interim final rule. The first sentence of this paragraph originally required the sounding of the locomotive horn when the locomotive or lead car

approached and passed through

a public grade crossing. However, the second sentence in the interim final rule required that the sounding of the locomotive horn be repeated or prolonged until the locomotive or train

occupied

the public grade crossing. For the sake of consistency, FRA revised the first sentence of this paragraph to address the initiation of locomotive horn sounding, so that only the second sentence of this paragraph refers to the duration of the locomotive horn sounding requirement.

Paragraph (b) of this section addresses the time interval within which the locomotive horn shall sound in advance of the public highway-rail grade crossing. Under the interim final rule, this paragraph (b) required that the locomotive horn shall begin sounding at least 15 seconds, but no more than 20 seconds, before the locomotive enters a public highway rail grade crossing. The paragraph also stated that in no event

shall a locomotive horn be sounded more than one-quarter mile in advance of the crossing.

FRA received comments on this paragraph from the North Carolina Department of Transportation and the AAR. North Carolina noted that a train operating at a speed of 80 mph would only be able to sound its horn for 11 seconds prior to its arrival at a public grade crossing. On the other hand, the AAR noted that a train operating at a speed less than 45 mph would sound its horn for more than 20 seconds, if horn sounding was initiated one-quarter mile from the public crossing.

As a result of the comments received, FRA revised this paragraph. New paragraph (b)(1) provides that, subject to paragraph (b)(2), the locomotive horn shall begin sounding at least 15 seconds, but no more than 20 seconds, before the locomotive enters a public highway-rail grade crossing. Paragraph (b)(2) addresses locomotives traveling at speeds more than 45 mph. That paragraph states that locomotives traveling at speeds in excess of 45 mph shall not begin sounding the horn more than one-quarter mile in advance of a public grade crossing, even if the advance warning provided by the locomotive will be less than 15 seconds in duration. Research has shown that the effect of a locomotive horn sounded at a distance greater than

1/4

mile from a grade crossing is attenuated to the extent that it does not provide adequate warning to the motorist. There is thus no need to sound the horn beyond this point. Eliminating the extra distance over which the horn is sounded will reduce its noise impact on nearby residences and businesses without affecting safety at grade crossings.

The Brotherhood of Locomotive Engineers and Trainmen submitted comments reiterating the importance of retaining whistle posts in their current locations to help locomotive engineers gauge their distance from upcoming public crossings. Asserting that the location of upcoming grade crossings can often only be determined in reference to permanent whistle boards, the Metropolitan Transit Authority submitted comments asserting that it would be virtually impossible for locomotive engineers to comply with the rule, given the range of speeds over which trains are operated. Although FRA has not received many comments from locomotive engineers and their representatives asserting that there may be substantial difficulties in complying with the time-based horn sounding requirements contained within this rule, FRA encourages railroads to retain present whistle boards as an aid to their locomotive engineers.

Paragraph (c), which has been added to the final rule, reiterates the fact that the highway-rail grade crossings described in § 222.3(c) have been excluded from the scope of the final rule. Since the horn sounding requirements established by this section will not apply, locomotive horn sounding at these crossings will continue to be governed by State and local law.

Section 222.23 How Does This Regulation Affect Sounding of a Horn During an Emergency or Other Situations?

This section addresses the situations in which the locomotive horn may be sounded within a quiet zone. Paragraph (a)(1) is intended to make clear that a locomotive engineer may sound the locomotive horn in emergency situations. Notwithstanding any other provision of the rule, a locomotive engineer may sound the locomotive horn to provide a warning to vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the engineer's sole judgment, such action is appropriate in order to prevent imminent injury, death, or property damage. Thus, establishment of a quiet zone shall not prevent the locomotive engineer from using his or her discretion to sound the locomotive horn in emergency situations.

The AAR submitted comments on the interim final rule recommending that this paragraph be revised to specifically state that sounding of the locomotive horn to warn animals constitutes an emergency situation that would justify horn sounding within a quiet zone. FRA agrees that sounding the locomotive horn to warn animals that are trespassing on, or near the track, constitutes an emergency situation that justifies horn sounding within a quiet zone. Therefore, the rule has been revised accordingly.

Paragraph (a)(2) is intended to clarify that while the rule does not preclude the sounding of the locomotive horn in emergency situations, the rule also does not impose a legal duty to do so. FRA received a number of comments from communities throughout the country who were concerned that the limited scope of this provision does not shield public authorities from liability for silencing the routine use of the locomotive horn within quiet zones. For example, the Village of Hinsdale, Illinois asserted that the interim final rule exempts railroads from liability and recommended that the final rule be revised to provide the same coverage for public authorities. Along the same lines, the City of Placentia, California submitted comments suggesting that the final rule be revised to specify that it is intended to provide protection from liability for silencing the train horn to public authorities, as well as the railroad and train crew. The City of Placentia also recommended that this protection from liability extend to incidents involving both motor vehicles and pedestrians. The Village of Cornwall-on-Hudson, New York submitted comments asserting that by not addressing the liability of local communities that create quiet zones, the interim final rule shifts traditional railroad liability away from the party that is profiting from the use of the tracks and onto local governments. The City of Sacramento, California submitted comments recommending that the final rule be revised to state that the establishment of a quiet zone cannot be the basis of a claim against a local entity, provided the local entity established the quiet zone in accordance with the rule. Along the same lines, the Town of Riverside, Illinois submitted comments suggesting that the final rule contain a clear statement that it is not intended to create any new liability for municipalities. The City of West University Place, Texas submitted comments suggesting that the final rule be revised by including broad language that eliminates liability—either civil or criminal—for public and private organizations and individuals who participate in quiet zone establishment.

As stated in the interim final rule, FRA intends to protect from liability the locomotive engineer who, in accordance with this rule and railroad operating rules that were established in response to the creation of a quiet zone, does not sound the locomotive horn. As for the public authority that creates a quiet zone in accordance with this part, FRA expects that the courts will apply the standard of care set by this rule, inasmuch as any quiet zone established in accordance with this part will have been established in accordance with federal law and FRA's intention to preempt State law is expressly stated. This rule, in effect, establishes the standard of care for the creation of quiet zones and the sounding of train horns, providing reassurance both to railroads and communities that no plaintiff will prevail on the basis that an audible warning has been withheld. Further, this rulemaking does nothing to undermine the sovereign immunity of State and local governments, where they have asserted it.

Paragraph (b) of this section addresses situations involving warning system malfunctions, in which use of the locomotive horn within a quiet zone shall be allowed. These situations include instances in which active grade crossing warning devices have malfunctioned and use of the locomotive horn is required by §§ 234.105, 234.106, or 234.107 of title 49, Code of Federal Regulations. These situations also include instances in which a grade warning system is temporarily out of service for inspection, testing, or maintenance purposes. The final rule includes a third category of warning system malfunction, which consists of wayside horn malfunctions, the occurrence of which shall also exempt locomotive horn use within a quiet zone.

Paragraph (c) permits use of the locomotive horn, within a quiet zone, to announce the approach of a train to roadway workers in accordance with a program adopted under part 214 of this Chapter, or where otherwise required by railroad operating rule.

Section 222.25 How Does This Rule Affect Private Highway-Rail Grade Crossings?

This section clarifies the manner in which this rule affects private crossings. (Section 20153(f) of title 49 explicitly gives discretion to the Secretary on the question of whether private highway-rail grade crossings should be subject to the rule's locomotive horn sounding requirements.) FRA has determined that exercising its jurisdiction in a limited manner over these crossings is the appropriate course of action.

This section specifically states that this rule does not require the routine sounding of locomotive horns at private highway-rail grade crossings. Although FRA has jurisdiction over locomotive horn use at private crossings based on 49 U.S.C. 20103 and 20153, it is not exercising that jurisdiction at this time, except as to the use of horns at private crossings within quiet zones.

Paragraph (a) has not been revised in the final rule. However, paragraph (b) has been revised to require the public authority to provide an opportunity to the State agency responsible for grade crossing safety and all affected railroads to participate in diagnostic team reviews of private crossings located within New Quiet Zones and New Partial Quiet Zones. FRA is making this revision in response to comments requesting a greater role for State agencies and affected railroads in the quiet zone establishment process. For example, the Florida East Coast Railway expressed concern that the interim final rule would entitle a local community to establish a quiet zone without railroad input because the importance of receiving such input during the planning process cannot be overlooked. The Fort Worth & Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho Northern & Pacific Railroad submitted comments recommending that the interim final rule be revised to establish a proactive review process by railroads on the potential impacts of proposed quiet zones. The Southern California Regional Rail Authority commented that the final rule should require diagnostic team reviews of every grade crossing within a proposed quiet zone or diagnostic team reviews of every grade crossing that will be treated with an SSM that will need to be connected to the grade crossing warning system. (Please see the Section-by-Section discussion of § 222.17 for a summary of the comments requesting a greater role for State agencies.) After considering these comments, FRA revised the rule by providing greater opportunity for railroads to provide input during the quiet zone development process. The revision of paragraph (b) reflects this approach, as public authorities are now required to provide an opportunity for State agencies and railroads to participate in diagnostic team reviews of private crossings.

Paragraph (b)(1) retains the requirement contained within the interim final rule that private highway-rail grade crossings located within New Quiet Zones which allow access to the public, or access to active industrial or commercial sites, may be included in a quiet zone only if a diagnostic team evaluates the crossing to determine whether the institution of a quiet zone will significantly increase risk at the private crossing. The scope of this requirement has, however, been expanded in the final rule to include New Partial Quiet Zones.

Paragraph (b)(2) states that the public authority shall provide the State agency responsible for grade crossing safety and all affected railroads an opportunity to participate in the diagnostic team review of private crossings. This new requirement should ensure that the State agency and all affected railroads are given an opportunity to express their views and provide useful information for the public authority to consider. As stated in paragraph (a), the private crossing must then be equipped or treated in accordance with the recommendations of the diagnostic team.

This rule does not specify the financial responsibility of parties for safety improvements at private crossings. Responsibility will be determined under normal principles of property law and based upon whatever contracts and cooperative agreements that may have been entered into by the parties. It is, however, expected that the public authority seeking to establish a quiet zone would assume responsibility for funding any necessary improvements, the private crossing owner would agree to the installation of any necessary improvements, and the railroad would assume practical responsibility for maintenance of any automated warning systems at the crossing.

Paragraph (c) of this section establishes requirements for the installation of signage at private crossings located within quiet zones. Paragraph (c)(1) states that every private crossing within a New Quiet Zone or New Partial Quiet Zone shall, at a minimum, be equipped with crossbucks and “STOP” signs, which are compliant with MUTCD standards unless otherwise prescribed by State law, together with advance warning signs that comply with § 222.35(c). However, even if State law prescribes use of a private crossing sign that is not MUTCD-compliant, the private crossing sign must indicate to the motorist that a stop is required. Paragraph (c)(2) provides a period of three years from the effective date of the final rule for the installation of such signs at private crossings located within Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones.

Paragraph (c) has been revised in response to comments submitted by the Association of American Railroads. Under the interim final rule, crossbucks and “STOP” signs that were installed at private crossings within quiet zones were required to conform to the MUTCD. However, the Association of American Railroads noted in its comments that some railroads use stop signs and crossbucks that have been incorporated into a “private railroad crossing” sign, which does not comply with all aspects of the MUTCD. Furthermore, the Association of American Railroads asserted that the State of California mandates use of a specific private railroad crossing sign. Therefore, the interim final rule would require railroads to replace signs that have been widely used for years. In an attempt to reduce the regulatory burdens associated with this rule, FRA has revised this paragraph to allow railroads and public authorities to continue to use crossbucks and “STOP” signs that are not fully compliant with MUTCD standards, if prescribed by State law.

Section 222.27 How Does This Rule Affect Pedestrian Crossings?

This section has been added to the final rule in order to address pedestrian crossings located within quiet zones. (Section 20153(f) of title 49 explicitly gives discretion to the Secretary on the question of whether pedestrian crossings should be subject to the rule's locomotive horn sounding requirements.) FRA has determined that exercising its jurisdiction in a limited manner of these crossings is the appropriate course of action. Although FRA has jurisdiction over locomotive horn use at pedestrian crossings based on 49 U.S.C. 20103 and 20153, it is not exercising that jurisdiction at this time except as to the use of horns at pedestrian crossings within quiet zones.

The AAR submitted comments warning that the failure of the interim final rule to address pedestrian crossings and pedestrian accidents was a major gap in the regulatory scheme. Noting that, in the absence of the warning provided by the locomotive horn, the only warning a pedestrian may have of an approaching train is the sound of the train itself and visual observation, the AAR recommended that the final rule require public authorities that want to create New Quiet Zones that encompass pedestrian crossings to demonstrate that they have addressed the effect that the quiet zone would have on pedestrian traffic.

It is imperative that the establishment of a quiet zone shall not result in a significant increase in risk at pedestrian crossings located within the quiet zone. Therefore, FRA is addressing pedestrian crossings in a manner similar to the approach recommended by the AAR. Paragraph (a) of this section provides that pedestrian crossings may be included in a quiet zone. Paragraph (b) of this section requires public authorities to address pedestrian safety issues when establishing New Quiet Zones and New Partial Quiet Zones that contain pedestrian crossings. Public authorities that want to establish a New Quiet Zone or New Partial Quiet Zone that contains pedestrian crossings will be required to conduct diagnostic team reviews of the pedestrian crossings and treat them in accordance with the diagnostic team recommendations. Paragraph (c) states that the public authority is required to provide an opportunity for the State agency responsible for grade crossing safety and all affected railroads to participate in diagnostic team reviews of pedestrian crossings. This will ensure that the State agency and all affected railroads are given an opportunity to express their views and provide useful information for the public authority to consider.

Paragraph (d), which has been added to the final rule, requires the installation of signs at pedestrian crossings located within quiet zones that advise pedestrians that train horns are not sounded at the crossing. Noting that the interim final rule failed to require specific warnings for pedestrians within quiet zones, the Southern California Regional Rail Authority and Caltrain submitted comments recommending that the rule be revised to require the posting of warning signs at locations within quiet zones where pedestrians can access the railroad right-of-way. After considering these comments, in combination with the comments of the AAR which have been described above, FRA added paragraph (d) to the final rule to provide an additional warning to pedestrians at pedestrian crossings located within quiet zones.

Paragraph (d)(1) requires that each pedestrian crossing within a New Quiet Zone shall be equipped with a sign that advises the pedestrian that train horns are not sounded at the crossing. FRA recommends use of the W10-9 “NO TRAIN HORN” sign within New Quiet Zones. However, any sign used shall conform to the standards contained in the MUTCD.

Paragraph (d)(2) requires that each pedestrian crossing within a New Partial Quiet Zone shall be equipped with a sign that advises the pedestrian that train horns are not sounded at the crossing between the hours of 10 p.m. and 7 a.m. FRA recommends use of the W10-9 “NO TRAIN HORN” sign, in combination with a yellow S4-1 “10 p.m. to 7 a.m.” sign within New Partial Quiet Zones. However, any sign(s) used shall conform to the standards contained in the MUTCD.

Paragraph (d)(3) requires that each pedestrian crossing within a Pre-Rule Quiet Zone shall be equipped by June 24, 2008 with a sign that advises the pedestrian that train horns are not sounded at the crossing. FRA recommends use of the W10-9 “NO TRAIN HORN” sign within Pre-Rule Quiet Zones. However, any sign used shall conform to the standards contained in the MUTCD.

Paragraph (d)(4) requires that each pedestrian crossing within a Pre-Rule Partial Quiet Zone shall be equipped by June 24, 2008 with a sign that advises the pedestrian that train horns are not sounded at the crossing for a specified period of time. FRA recommends use of the W10-9 “NO TRAIN HORN” sign, in combination with a yellow S4-1 sign that sets forth the hours during which train horns will be not sounded, within Pre-Rule Partial Quiet Zones. However, any sign(s) used shall conform to the standards contained in the MUTCD.

Paragraphs (d)(3) and (4) provide a three-year grace period for the installation of signs at pedestrian crossings in Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. This three-year grace period tracks the three-year grace period provided to Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones under § 222.41.

Section 222.33 Can Locomotive Horns Be Silenced at an Individual Public Highway-Rail Grade Crossing That Is Not Within a Quiet Zone?

This section has not been revised in the final rule. FRA received comments on this section from the DuPage Mayors and Managers Conference and the Chicago Area Transportation Study recommending that the rule be revised to exclude from the rule's locomotive horn sounding requirements those situations in which the train stops immediately before or after a highway-rail grade crossing. After considering these comments, FRA did not revise the final rule because of the potential confusion that could be created for motorists. Motorists who may have come to expect the sounding of the locomotive horn may not stop before entering a crossing that is occupied by a train that is preparing to depart. Likewise, motorists who are unaware that an approaching train intends to stop immediately after the grade crossing may actually accelerate upon viewing an approaching train, in order to “beat” the train over the crossing. Both of these scenarios present a potentially unacceptable increase in risk.

FRA also received comments from Metra recommending that this section be revised to exempt train operations at speeds of 30 mph or less. Metra also recommended that the “flagger” requirement be removed under such a scenario. This section was included in the rule in order to exempt switching operations from the rule's locomotive horn sounding requirements. However, FRA is unwilling to expand the scope of this exemption to include low-speed passenger operations, given the increase in risk associated with passenger operations over public highway-rail grade crossings.

Section 222.35 What are the Minimum Requirements for Quiet Zones?

This section details the minimum requirements for quiet zones established in conformity with this part. It addresses the minimum length of a quiet zone, minimum level of active

warning to be provided, and minimum type of signage required.

Paragraph (a), which governs the minimum required length of quiet zones, has been revised in the final rule. The scope of paragraph (a)(1)(i) has been expanded to include New Partial Quiet Zones. FRA received comments on paragraph (a) of this section from the California PUC which re-asserted its position that the minimum length of quiet zones should not be codified. In the alternative, the California PUC recommended that the rule be revised to allow quiet zone length to be determined by the applicant and railroad and approved by the appropriate State agency. However, as stated in the interim final rule, FRA believes that establishment of a minimum length of one-half mile for most New Quiet Zones and New Partial Quiet Zones is appropriate. With the exception of New Quiet Zones or New Partial Quiet Zones that are added to existing quiet zones, the one-half mile minimum length requirement will ensure that the sounding of the locomotive horn at a public grade crossing located outside the quiet zone will not effectively negate the prohibition on routine locomotive horn sounding within the quiet zone. In addition, the one-half mile minimum requirement for New Quiet Zones and New Partial Quiet Zones should minimize workload demands on the locomotive engineer, who will be required to become familiar with all quiet zone locations along his/her designated routes.

In response to comments received from the Chicago Department of Transportation and the Chicago Area Transportation Study, an exception to the minimum-length requirement has been carved out for New Quiet Zones and New Partial Quiet Zones that are being added to existing quiet zones. In their comments, the Chicago Department of Transportation and the Chicago Area Transportation Study requested that the final rule waive the half-mile minimum length requirement for New Quiet Zones that are located between existing quiet zones or that will be added to the end of an existing quiet zone. After considering the fact that New Quiet Zone grade crossings would be required to comply with all New Quiet Zone standards, with the sole exception of the one-half mile minimum length requirement, FRA decided to add paragraph (a)(1)(ii) to the final rule. Paragraph (a)(1)(ii) states that the one-half mile minimum length requirement set forth under § 222.35(a)(1)(i) shall be waived for New Quiet Zones and New Partial Quiet Zones that are added onto existing quiet zones, provided there is no public highway-rail grade crossing at which locomotive horns are routinely sounded within one-half mile of the New Quiet Zone or New Partial Quiet Zone.

New Quiet Zones and New Partial Quiet Zones in the Chicago Region may not, however, include any highway-rail grade crossing described in § 222.3(c), for purposes of meeting the one-half mile minimum length requirement. Given the uncertainty associated with the appropriate excess risk estimate that should be derived from silencing the locomotive horn at those highway-rail grade crossings, FRA is unable to determine a practicable means of including them in the risk calculations for proposed New Quiet Zones and New Partial Quiet Zones. Therefore, pending completion of the Chicago Region data re-analysis discussed in “Chicago Regional Issues” (

Supplementary Information

, section 7), public authorities who are unable to meet the minimum one-half mile minimum length requirement without including any of the highway-rail grade crossings described in § 222.3(c) in their proposed New Quiet Zones or New Partial Quiet Zones may apply for a waiver, in accordance with § 222.15. FRA will consider any waiver petition submitted on a case-by-case basis.

Paragraph (a)(2) specifically addresses the minimum length requirement for Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. Even though the length of a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone may continue unchanged, FRA has revised the interim final rule to clarify that the addition of any

public

crossing to a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone will transform the quiet zone into a New Quiet Zone or New Partial Quiet Zone subject to all requirements applicable to New Quiet Zones and New Partial Quiet Zones. In addition, the deletion of any

public

crossing from a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone, with the exception of a grade separation or crossing closure, must result in a quiet zone of at least one-half mile in length in order to retain Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone status.

FRA received comments on paragraph (a)(2) from the DuPage Mayors and Managers Conference and the Chicago Area Transportation Study requesting that the interim final rule be revised to specifically authorize communities to combine adjacent Pre-Rule Quiet Zones. As FRA had always intended to give communities the ability to combine adjacent Pre-Rule Quiet Zones into a single, contiguous Pre-Rule Quiet Zone, FRA has clarified the rule accordingly.

Paragraph (a)(3) has not, however, been revised in the final rule.

Paragraph (b), which addresses the need for active warning devices at crossings within quiet zones, has been revised to address partial quiet zones. Paragraph (b)(1) has not been revised in the final rule. However, paragraph (b)(2) has been added to the final rule to address active warning devices in New Partial Quiet Zones. This new paragraph states that, with the exception of public highway-rail grade crossings that are temporarily closed in accordance with appendix A of this part, each public highway-rail grade crossing in a New Partial Quiet Zone must be equipped, no later than the quiet zone implementation date, with flashing lights and gates that control motorist traffic over the crossing and that conform to the MUTCD. An exception to this requirement has been provided for public highway-rail grade crossings that are closed between the hours of 10 p.m. and 7 a.m., in accordance with appendix A of this part, when routine sounding of the locomotive horn will be prohibited. Paragraph (b)(3) provides that grade crossing safety warning devices that existed at public highway-rail grade crossings located within Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones as of December 18, 2003 must be retained. These warning devices may be upgraded, which can result in additional risk reduction credit when calculating the Quiet Zone Risk Index, but they may not be downgraded from that which was in existence as of December 18, 2003. Any upgrade involving the installation or renewal of an automatic warning device system shall include power-out indicators and constant warning time devices, unless existing conditions at the crossing would prevent the proper operation of the constant warning time devices.

Paragraph (c) specifically addresses the installation of advance warning signs at grade crossings within a quiet zone. Paragraphs (c)(1) and (2) require that each highway approach to every public and private highway-rail grade crossing within New Quiet Zones and New Partial Quiet Zones shall be equipped with an advance warning sign that advises the motorist that train horns are not sounded at the crossing. Such signs shall conform to the standards contained in the MUTCD. Paragraph (c)(2), which was added to the final rule, requires that each highway approach to public and private highway-rail grade crossings within New Partial Quiet Zones shall be equipped with an advance warning sign that advises the

motorist that train horns are not sounded at the crossing between the hours of 10 p.m. and 7 a.m.

Paragraphs (c)(3) and (4) provide a three-year grace period for the installation of advance warning signs at public and private crossings in Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. This three-year grace period tracks the three-year grace period provided to Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones under § 222.41.

Paragraph (d) has been added to the final rule, in response to comments requesting that the rule be revised to address pedestrian safety issues within quiet zones. The Florida Department of Transportation submitted comments asserting that pedestrian safety at crossings is a significant safety factor that should be addressed in the final rule. The New York Department of Transportation recommended that the final rule address pedestrian traffic over highway-rail grade crossings by requiring the installation of bells at all grade crossings where pedestrian traffic is prevalent and by requiring public authorities to consider pedestrian traffic issues when establishing quiet zones. On the other hand, Caltrain and the Southern California Regional Rail Authority recommended that advance warning signs be installed at locations within quiet zones where pedestrians can legally access the railroad right-of-way. After considering these comments, FRA decided on an approach that incorporates all of their suggestions. Given the fact that the majority of gated crossings are already equipped with at least one automatic bell, paragraph (d)(1) of this section requires that each public highway-rail grade crossing in a New Quiet Zone or New Partial Quiet Zone that is subjected to pedestrian traffic and equipped with at least one or more automatic bells shall retain those bells in working condition. Similarly, paragraph (d)(2) requires that each public highway-rail grade crossing in a Pre-Rule Quiet Zone or Pre-Rule Quiet Zone that is subjected to pedestrian traffic and equipped with at least one or more automatic bells shall retain those bells in working condition.

Public highway-rail grade crossings that are located within a quiet zone, but are not equipped with an automatic bell, shall be equipped with advance warning signs that comply with the MUTCD, in accordance with § 222.35(c). However, FRA assumes that prudent communities will exercise the option to install an automatic bell, particularly at those public grade crossings where the locomotive horn has been silenced. Due to the scope of the Environmental Impact Statement that has accompanied this rulemaking, FRA has refrained from requiring the installation of automatic bells at public highway-rail grade crossings that are located within quiet zones and subject to pedestrian traffic. However, FRA strongly encourages communities to take a prudent approach to quiet zone continuation and establishment.

Paragraph (e) retains the interim final rule requirement that all private crossings within the quiet zone must be treated in accordance with this section and § 222.25.

Paragraph (f), which has been added to the final rule, provides that all pedestrian grade crossings within a quiet zone must be treated in accordance with § 222.27.

Paragraph (g) retains the interim final rule requirement that all public crossings within the quiet zone must be in compliance with the requirements of the MUTCD.

Section 222.37 Who May Establish a Quiet Zone?

This section has not been revised in the final rule. However, it should be noted that the highway-rail grade crossings described in § 222.3(c) have been excluded from the scope of the final rule. Thus, any New Quiet Zones or New Partial Quiet Zones established under this part cannot contain any highway-rail grade crossing described in § 222.3(c).

The Chicago Area Transportation Study submitted comments requesting that the rule be revised to provide an acknowledgment that a public authority (such as a state or county) could grant a blanket delegation of authority to municipalities to pursue and create quiet zones. In its comments, the Chicago Area Transportation Study stated that the State of Illinois has indicated that it would prefer to issue a blanket delegation rather than giving individual, written delegations for each potential quiet zone under its jurisdiction. However, a revision of the rule is not necessary, given the language in paragraph (a) this section, which states that if a proposed quiet zone includes public grade crossings under the authority and control of more than one public authority, both public authorities must agree to the establishment of a quiet zone and may, by delegation provided to one of the authorities, take such actions as are required by this part. The rule already allows the State of Illinois to delegate its authority over public grade crossings within proposed quiet zones to local communities for purposes of quiet zone creation/continuation.

The Village of Hinsdale, Illinois submitted comments recommending that the rule be revised to limit the definition of “public authority” to State or regional authorities. In its comments, the Village of Hinsdale stated that local governments have the most constraints and the least experience in dealing with highway-rail grade crossings. In addition, local authorities within the State of Illinois cannot order grade crossing modifications. However, after considering these comments, FRA did not revise the definition of “public authority” to exclude local communities. As stated in the interim final rule, a review of section 21053 of title 49 of the United States Code indicates a clear Congressional preference that quiet zone decision-makers be the “traffic control authority or law enforcement authority responsible for safety at the highway-rail grade crossing.” The statute also requires that FRA take into account the interest of “communities” and that FRA “work in partnership with affected communities to provide technical assistance and * * * a reasonable amount of time for local communities to install SSMs.” Given this statutory directive, FRA is unwilling to exclude local communities from the definition of “public authority.”

FRA also received comments from Dr. Robert Johnson, a resident of Houston, Texas, who recommended that the rule be revised to empower citizens to designate quiet zones. However, FRA is unwilling to expand the definition of “public authority” to include individuals. This final rule requires public authorities to take certain steps during the quiet zone development process for which State and local governments are uniquely suited, given the need to coordinate State and local efforts to improve high-risk crossings. If FRA were to empower individuals to create quiet zones in their neighborhoods, it would become exceedingly difficult to keep track of the quiet zone development process and to ensure that the proper notifications of quiet zone continuation/establishment have been made.

Section 222.38 Can a Quiet Zone Be Created in the Chicago Region?

This section has been added to the final rule to provide clarification as to the effect of the final rule in the Chicago Region. As stated in § 222.3(c) of this part, the final rule will not apply to any highway-rail grade crossing in the Chicago Region where the railroad was excused from sounding the locomotive horn by the Illinois Commerce Commission, and where the railroad did

not sound the horn, as of December 18, 2003 (the publication date of the Interim Final Rule). Therefore, the horn sounding requirements set forth in § 222.21 will not apply to these crossings. On the other hand, pending the Chicago Region data re-analysis discussed in “Chicago Regional Issues” (

Supplementary Information

, section 7), public authorities who would otherwise have been authorized to include these crossings in a new duly created quiet zone may no longer do so.

Public authorities may establish New Quiet Zones and/or New Partial Quiet Zones in the Chicago Region. However, any New Quiet Zone or New Partial Quiet Zone established in the Chicago Region cannot include any highway-rail grade crossing described in § 222.3(c) of this part.

Section 222.39 How Is a Quiet Zone Established?

This section addresses the manner in which a quiet zone may be established. In the NPRM, FRA proposed two different methods of establishing quiet zones. In one method, every public grade crossing within the proposed quiet zone would have an SSM applied to the crossing and the governmental entity establishing the quiet zone would be required to designate the perimeters of the quiet zone, install the SSMs, and comply with various notice and information requirements set forth in the rule. The second proposed method (which was ultimately adopted) would provide a governmental entity greater flexibility in using SSMs and ASMs to address problem crossings. The second method allows FRA to consider quiet zones that do not have SSMs at every crossing, as long as implementation of the proposed SSMs and ASMs in the quiet zone as a whole would cause a reduction in risk to compensate for the absence of routine sounding of the locomotive horn.

FRA received a number of comments that were critical of the corridor approach to risk reduction, including comments from the Ohio Rail Development Commission, the Ohio Railroad Association, the Metropolitan Transit Authority, and the AAR. FRA also received comments from Ohio Congressman Dennis Kucinich, the New York Department of Transportation, the Missouri Department of Transportation, and the Florida Department of Transportation recommending that the rule be revised to establish a maximum risk threshold for individual grade crossings.

FRA is, however, committed to providing a flexible approach to quiet zone establishment. Even though the final rule does not require public authorities to install SSMs at the highest-risk crossings with quiet zones, FRA expects that many public authorities will install SSMs at those crossings, regardless of any obvious safety-motivated reasons for doing so. By installing an SSM at the highest-risk crossing within a proposed quiet zone corridor, the public authority will gain a higher overall risk reduction than that which would result from the installation of a similar SSM at a low-risk crossing.

It should also be noted that FRA retains the right to review the status of any quiet zone under § 222.51(c). If risk dramatically increases within a quiet zone, FRA may require the installation of additional safety improvements or terminate the quiet zone after providing an opportunity for comment. Should immediate action be required, FRA also reserves the right to exercise its emergency authority under 49 U.S.C. 20104 and 49 CFR Part 211, by issuing an order to immediately resume routine locomotive horn sounding at specific grade crossings.

Paragraph (a) of this section addresses situations in which the public authority may designate a quiet zone without the need for formal application to, or approval by, FRA. Paragraphs (a)(1) and (a)(2) have not been revised in the final rule. However, paragraph (a)(3), which provides that a quiet zone can be established by implementing SSMs that are sufficient to reduce the Quiet Zone Risk Index to a level at, or below, the Risk Index With Horns, has been revised in the final rule to substitute the defined term “Risk Index With Horns” for language that had been used in the interim final rule to provide an explanation of this standard.

FRA has revised the rule to give railroads and State agencies the opportunity to play a greater role during the quiet zone development process. Therefore, paragraph (b)(1) of this section, which provides a list of required documentation for public authority applications for quiet zone approval, now requires that the application include a statement describing the public authority's efforts to work with all affected railroads and the State agency responsible for grade crossing safety, as well as a list of any objections that may have been raised to the proposed quiet zone by the railroad(s) and State agency.

Paragraph (b)(1)(i) requires public authorities to submit an accurate, complete, and current Grade Crossing Inventory Form for each public and private grade crossing. FRA would like to clarify that FRA is not requiring that Grade Crossing Inventory Forms be submitted to, and processed by, FRA's designated contractor before submission. Given the fact that it can take up to three months to process a Grade Crossing Inventory Form, FRA will accept copies of Grade Crossing Inventory Forms that have been submitted for processing, provided all entries on the Grade Crossing Inventory Form have been completed.

Paragraph (b)(2) specifically addresses quiet zone application requirements for newly established public and private highway-rail grade crossings. This paragraph has been added to the final rule in response to comments received from the Chicago Area Transportation Study and the Chicago Department of Transportation, which noted that there are locations in the Chicago Region where extensions of rail lines are expected to result in new grade crossings. The Chicago Area Transportation Study and the Chicago Department of Transportation requested that FRA waive the half-mile minimum length requirement imposed by § 222.35(a)(1) for these crossings. After considering these comments, as well as the implications of creating a quiet zone with newly established grade crossings, FRA has added a paragraph to the final rule that sets forth additional data requirements for each newly established grade crossing that will be included in the proposed quiet zone. Thus, paragraph (b)(2) of this section requires public authorities to submit five-year projected vehicle and rail traffic counts for newly established public and private grade crossings, in addition to the documentation required by paragraph (b)(1) of this section, as part of the public authority's application package.

FRA has, however, decided not to waive the half-mile minimum length requirement, imposed by § 222.35(a)(1), regarding newly established grade crossings. In FRA's experience, rail line extensions often exceed one-half mile in length. Therefore, this half-mile minimum length requirement should not present a substantial obstacle to the creation of quiet zones that contain newly established grade crossings. Should a public authority wish to create a quiet zone that is less than one-half mile in length, the public authority may file a petition for a waiver in accordance with § 222.15.

Paragraph (b)(3) has been added to the final rule in response to comments requesting a greater role for State agencies in the quiet zone development process. As discussed earlier in the analysis of § 222.17, the Ohio Public Utilities Commission and the California Public Utilities Commission recommended that the interim final rule

be revised to require State agency review and approval of all proposed quiet zones. The North Carolina Department of Transportation recommended that the interim final rule be revised to allow State departments of transportation to serve as clearinghouses for quiet zone requests or, in the alternative, to require public authorities to seek formal state and railroad input on quiet zone proposals. The City of Saint Paul, Minnesota also submitted comments recommending that the interim final rule be revised to assign technical resource/review responsibility to the State rail authority to ensure accuracy and uniformity of quiet zone applications.

FRA also received a number of comments from the railroad industry requesting that the final rule be revised to allow railroads to provide input during the quiet zone development process. The Fort Worth & Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho Northern & Pacific Railroad submitted comments suggesting that the rule be revised to establish a proactive review process for railroad input on the potential impact of proposed quiet zones. The Florida East Coast Railway submitted comments recommending that the rule be revised to require railroad and state government involvement during the quiet zone development process. Asserting that the interim final rule fails to provide for any meaningful input by State authorities or railroads during the quiet zone development process, the Metropolitan Transit Authority also submitted comments recommending that the rule be revised to allow for participation by the State and railroads during the quiet zone evaluation and decision-making process, in order to facilitate consideration of relevant information. The Association of American Railroads submitted comments expressing its strong objection to failure of the interim final rule to provide railroads that own or operate over grade crossings within a proposed quiet zone the opportunity to provide input.

After considering these comments, FRA has revised the rule by providing an opportunity for State agencies and railroads to review and provide input on the public authority application for FRA approval, in accordance with the procedures set forth in paragraph (b)(3). Under the terms of this paragraph, copies of the public authority application shall be provided, by certified mail, return receipt requested, to: All railroads operating over the public highway-rail grade crossings within the quiet zone; the highway or traffic control or law enforcement authority having jurisdiction over vehicular traffic at grade crossings within the quiet zone; the landowner having control over any private crossings within the quiet zone; the State agency responsible for highway and road safety; the State agency responsible for grade crossing safety; and the Associate Administrator. Any party that receives a copy of the public authority application may then submit comments on the public authority application to the Associate Administrator during the 60-day period after the date on which the application was mailed. However, this 60-day comment period can be waived if the public authority application includes written statements from each affected railroad, the highway or traffic control authority or law enforcement authority having control over vehicular traffic at the crossings within the quiet zone, the State agency responsible for grade crossing safety, and the State agency responsible for highway and road safety stating that the railroad, vehicular traffic authority and State agencies have waived their rights to provide comments on the public authority application.

Paragraph (b)(4) addresses the Associate Administrator's decisions on quiet zone applications. After reviewing any comments submitted during the 60-day comment period established by paragraph (b)(3) of this section, the Associate Administrator will approve the quiet zone if the public authority has complied with the requirements established by this paragraph (b) and has satisfactorily demonstrated that the proposed SSMs and ASMs will result in a Quiet Zone Risk Index that is at, or below, the Risk Index With Horns or the Nationwide Significant Risk Threshold. However, the Associate Administrator may include conditions in the decision of approval that are necessary, in the Associate Administrator's judgment, to ensure that the proposed safety improvements are effective. If the Associate Administrator does not approve the quiet zone application, the reasoning behind the Associate Administrator's decision will be provided to the public authority. Copies of the Associate Administrator's decision shall be provided to all parties listed in paragraph (b)(3)(i) of this section.

This paragraph (b)(4) has been revised in the final rule to give railroads an opportunity to petition the Associate Administrator to reconsider his/her decision to approve a quiet zone application. Under the interim final rule, only the public authority could request reconsideration of the Associate Administrator's decisions on quiet zone applications. Under this final rule, the public authority and the railroad may petition the Associate Administrator to reconsider his/her decision to approve or deny a quiet zone application, on the basis that the Associate Administrator improperly exercised his/her judgment in finding that the proposed SSMs and ASMs would, or would not, result in a Quiet Zone Risk Index that is at or below the Risk Index With Horns or the Nationwide Significant Risk Threshold. Petitions for reconsideration may be filed with the Associate Administrator in accordance with §§ 222.57(b) and (d).

Paragraph (c) of this section has not been revised in the final rule.

Section 222.41 How Does This Rule Affect Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones?

This section addresses the effect of this rule on Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. A Pre-Rule Quiet Zone is a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which State statutes or local ordinances restricted the routine sounding of locomotive horns, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads, and at which such statutes, ordinances or agreements were in place and enforced or observed as of October 9, 1996 and on December 18, 2003. A Pre-Rule Partial Quiet Zone means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which State statutes or local ordinances restricted the routine sounding of locomotive horns for a specified period of time during the evening and/or nighttime hours, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads for a specified period of time during the evening and/or nighttime hours, and at which such statutes, ordinances or agreements were in place and enforced or observed as of October 9, 1996 and on December 18, 2003.

FRA received a number of comments seeking clarification of the rule's treatment of pre-existing partial whistle bans. Noting that it had adopted a partial whistle ban in 1993 that prohibits the routine sounding of the locomotive horn between the hours of 10 p.m. and 7 a.m., the City of Plymouth, Minnesota requested that FRA treat pre-existing partial whistle bans “just like other Pre-Rule bans.” The City of Highland Park, Illinois also submitted comments asserting that

partial whistle ban communities should be granted Pre-Rule Quiet Zone status. On the other hand, the City of Sacramento, California, which has a partial ban on the routine sounding of locomotive horns between the hours of 6 p.m. and 7 a.m., requested that FRA establish a lower target risk index for partial Pre-Rule Quiet Zones. Noting that two communities in DuPage County have pre-existing partial whistle bans, the Chicago Area Transportation Study recommended that the same standards and procedures already in place be applied to part-time Quiet Zones. Additionally, the Chicago Area Transportation Study recommended that FRA allow existing partial whistle bans to remain in effect until they could meet the standards for 24-hour Quiet Zones.

On the other hand, the AAR urged FRA to prohibit the continuation of pre-existing partial whistle bans that are based on temporary crossing closures. AAR argued that, at the very least, these grade crossings should not be allowed to qualify for quiet zone status by comparison to the Nationwide Significant Risk Threshold because the Nationwide Significant Risk Threshold does not accurately reflect the average risk level for the time period within which temporary crossing closures are in effect. AAR asserted that an average risk level for partial whistle bans would necessarily be lower than the Nationwide Significant Risk Threshold.

After considering these comments, FRA decided to adopt an approach similar to that which was recommended by the City of Plymouth, Massachusetts and the Chicago Area Transportation Study, whereby Pre-Rule Partial Quiet Zones will be treated in a manner similar to 24-hour Pre-Rule Quiet Zones. Therefore, communities with Pre-Rule Partial Quiet Zones that do not qualify for automatic approval will be given additional time within which to meet the standards set for 24-hour Pre-Rule Quiet Zones, provided the public authority complies with the requirements set forth in § 222.41(b).

FRA has not established a lower risk threshold for Pre-Rule Partial Quiet Zones. FRA remains confident that Pre-Rule Quiet Zones that have Quiet Zone Risk Indices that are at, or below, either the Nationwide Significant

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