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. 17]

RIN 2130-AB73

Use of Locomotive Horns at Highway-Rail Grade Crossings

AGENCY:

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

ACTION:

Final rule; response to petitions for reconsideration.

SUMMARY:

This document responds to petitions for reconsideration of FRA's April 27, 2005 final rule that required that the locomotive horn be sounded while trains approach and enter public highway-rail grade crossings. This document amends and clarifies the final rule, in response to petitions for reconsideration and associated letters in support that have been submitted by interested parties, including the railroad industry, rail unions, and a manufacturer of traffic channelization devices.

DATES:

The effective date is September 18, 2006.

FOR 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.

On April 27, 2005, FRA published a Final Rule in the

Federal Register

(70 FR 21844). After the final rule was published, FRA received petitions for reconsideration and associated letters in support from the Association of American Railroads, Mr. James Adams of Placentia, California, GE Transportation-Rail, United Transportation Union, Brotherhood of Locomotive Engineers and Trainmen, BNSF Railway Company and Qwick Kurb, Inc. In addition, the Association of American Railroads submitted a petition for Emergency Order, which was subsequently denied.

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 highway-rail grade crossings, but gives FRA the authority to make reasonable exceptions.

FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings (Final Rule) complied with the statutory mandate contained within section 20153 of title 49. As required by section 20153(b) of title 49, the final rule requires locomotive horn sounding by trains that approach and enter public highway-rail grade crossings. (See rule § 222.21.) However, as allowed by 49 U.S.C. 20153(c), the final rule contains exceptions for certain categories of rail operations and highway-rail grade crossings.

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.

Locomotive horn sounding is also not required within highway-rail grade crossing corridors that are equipped with supplementary safety measures (SSMs) at each public highway-rail grade crossing. In addition, locomotive horn sounding is not required within 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. These highway-rail grade crossing corridors have been deemed, by the Administrator, to constitute categories 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 highway-rail 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. Until December 24, 2005, the final rule

allowed communities to establish Pre-Rule Quiet Zones, if the Quiet Zone Risk Index was at, or below, two times the Nationwide Significant Risk Threshold and there were no relevant collisions within the quiet zone since April 27, 2000. (See § 222.41.) It should also be noted that the final rule allows communities to establish Pre-Rule Quiet Zones, 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 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 of title 49 prohibits FRA from entertaining single-party petitions for waiver from the regulatory requirements issued under the authority of 49 U.S.C. 20153, unless FRA determines that this prohibition against single-party waiver petitions “* * * is not likely to contribute significantly to public safety.” Therefore, § 222.15 of the final rule, which governs the process for obtaining a waiver from the requirements of 49 CFR Part 222, requires joint filing of waiver petitions by the railroad and public authority, unless the Associate Administrator makes the determination that joint submission of an individual waiver petition would not be likely to significantly contribute to public safety.

Section 222.55 of the final rule 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 and pedestrian grade crossings. Under the final rule amendments issued today, the sounding of locomotive audible warning devices at private and pedestrian crossings will be governed by this rule, if State law requires the sounding of locomotive audible warning devices at these crossings. (§§ 222.25 and 222.27) However, routine locomotive horn sounding is prohibited at private and pedestrian grade crossings located within quiet zones, even if other locomotive audible warning devices must be sounded at these crossings per State and local law.

Section 222.7 of the rule 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 State and local laws that govern locomotive horn use at public highway-rail grade crossings. Under the final rule amendments issued today, State and local laws that require the sounding of locomotive audible warning devices at public, private and pedestrian grade crossings will be preempted to the limited extent described in §§ 222.21(e), 222.25 and 222.27 of the rule. However, as stated in § 222.7(b), this rule does not preempt State and local laws governing the sounding of locomotive audible warning devices 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.

Lastly, the final rule also complied 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 an Interim Final Rule on the Use of Locomotive Horns at Highway-rail Grade Crossings, which had the same force and effect as a final rule. After reviewing approximately 1,400 comments on the interim final rule, FRA issued a final rule that granted additional relief to States and local communities and became effective on June 24, 2005. The final rule has therefore complied with 49 U.S.C. 20153(j) because more than the required 365 days elapsed between issuance of the interim final rule on December 18, 2003 and the effective date of the rule on June 24, 2005.

3. Emergency Order 15

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 Emergency Order did, however, permit the 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 Emergency Order are similar, but are not identical, to the supplementary safety measures contained in FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings (70 FR 21844).

FRA has not yet rescinded Emergency Order 15. Therefore, FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings does not apply to public highway-rail grade crossings within the State of Florida that are currently subject to Emergency Order 15. On April 15, 2005, a public conference was held in Florida, at which FRA solicited comments on the appropriate excess risk estimate that should be applied to public highway-rail grade crossings that are currently subject to Emergency Order 15. While FRA intends to specifically address this issue in the near future, comments that have been received on this issue are still under consideration at this time.

4. Rule Changes

This brief overview of the major amendments that have been made to 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 amendments. Indeed, this full document should be read together with the previous documents issued in the proceeding. Inasmuch as the Final Rule, 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 these amendments should be read in conjunction with the Final Rule, 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 Final Rule

• These amendments extend the compliance date of the time-based locomotive horn sounding requirements until December 15, 2006. (

See

§ 222.21(b) for more information.)

• A “good faith” exception has been incorporated into the time-based locomotive horn sounding requirements for locomotive engineers who are unable to precisely estimate their time of arrival at upcoming grade crossings. (

See

§ 222.21(b)(2) for more information.)

• An exception has been added to the 15-second minimum locomotive horn sounding requirement for locomotives and trains that re-initiate movement after having stopped in close proximity to a public highway-rail grade crossing. (

See

§ 222.21(d) for more information.)

• These amendments expand the scope of the time-based locomotive horn sounding requirements to cover the sounding of any locomotive audible warning device (

i.e.

, locomotive bells) at public highway-rail grade crossings. (

See

§ 222.21(e) for more information.)

• If State law requires the sounding of locomotive audible warning devices at private and/or pedestrian crossings, these amendments will require railroads to sound the locomotive audible warning device in a time-based manner. (

See

§§ 222.25 and 222.27 for more information.)

• An exception has been added to the locomotive horn sounding requirements for locomotives equipped with defective horns that are being moved for repair. (

See

§ 222.21(b)(2) for more information.)

• The notification requirements for Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones have been streamlined by expanding the scope of the Notice of Intent requirement and removing the Notice of Detailed Plan requirement. (

See

§ 222.43 for more information.)

• These amendments extend the compliance date for the sound level testing of new locomotives until September 18, 2006. (

See

§ 229.129(b) for more information.)

• These amendments provide clarification that locomotives used in rapid transit operations on the general railroad system are exempt from the locomotive horn sound level and testing requirements contained in 49 CFR 229.129. (

See

§ 229.129 for more information.)

Section-by-Section Analysis

Section 222.1 What is the purpose of this regulation?

This section has not been revised.

Section 222.3 What areas does this regulation cover?

This section has not been revised.

Section 222.5 What railroads does this regulation apply to?

This section has not been revised.

Section 222.7 What is this regulation's effect on State and local laws and ordinances?

In its petition for reconsideration, the Association of American Railroads (AAR) noted that the Final Rule does not specifically address the preemptive effect of the Final Rule on State and local laws that effectively prohibit and/or restrict the sounding of locomotive horns for testing purposes. Asserting that the Final Rule should preempt such State and local laws, the AAR requested confirmation of FRA's position on this issue.

FRA does not intend to preempt State and local noise ordinances that may have the effect of restricting the time period during which the locomotive horn may be sounded at locations other than grade crossings. FRA was directed to issue regulations that govern the sounding of locomotive horns at public highway-rail grade crossings, provided the interests of communities with pre-existing restrictions on locomotive horn sounding were taken into consideration. Given the nature of this statutory directive, FRA is reluctant to disturb longstanding State and local noise ordinances that may restrict locomotive horn sounding at locations other than grade crossing locations without additional information on the adverse impact of these ordinances on the ability of locomotive manufacturers and railroads to conduct locomotive horn testing in accordance with § 229.129 of this part.

Paragraph (b) of this section has been revised to reflect FRA's intent to refrain from preempting any State law, rule, regulation, or order governing the sounding of locomotive audible warning devices, including the locomotive horn, at any highway-rail grade crossing described in § 222.3(c) of this part. Without this revision, FRA might have inadvertently preempted State law by requiring the sounding of the locomotive bell, at the highway-rail grade crossings described in § 222.3(c) of this part, in accordance with this part.

Paragraphs (c), (d), and (e) of this section have not been revised.

Section 222.9 Definitions

FRA is making a minor revision to the definition of “

channelization device

” in the Final Rule. FRA revised this definition in the Final Rule to prohibit the use of surface-mounted tubular markers and vertical panels within quiet zones as SSMs, where the surface-mounted tubular markers or vertical panels are not used in conjunction with a raised longitudinal channelizer. FRA did not, however, intend to prohibit the use of surface-mounted tubular markers or vertical panels, in conjunction with a raised longitudinal channelizer. FRA recognizes that the use of surface-mounted tubular markers and vertical panels, in conjunction with a raised longitudinal channelizer, can effectively reduce quiet zone risk.

FRA is also correcting an inadvertent error in the preamble discussion of the definition of “

channelization device

” in the Final Rule. In that discussion, FRA stated that “it would be highly advisable to use raised longitudinal channelizers that are at least four inches high.” (See 70 FR 21854.) However, in its petition for reconsideration, Qwick Kurb, Inc. (“Qwick Kurb”) noted that FRA partially relied upon the results of state-sponsored tests on the efficacy of Qwick Kurb installations, which consist of three and one-half inch high longitudinal channelizers with vertical elliptical markers attached, when determining that Qwick Kurb installations had an effectiveness rating of at least .75. Qwick Kurb also noted that Qwick Kurb installations were successfully tested by the Federal Highway Administration (FHWA) under FHWA's NCHRP 350 criteria as a crashworthy traffic control device.

FRA notes that the regulatory text itself does not require use of raised longitudinal channelizers that are at least four inches high. Indeed, FRA never intended to discourage the use of raised longitudinal channelizers that are at least three and one-half inches high. Even though Qwick Kurb subsequently withdrew its objection to the preamble discussion of the definition of “

channelization device

” in the Final Rule, FRA recognizes that there may be some communities that have already purchased and installed raised longitudinal channelizers that are three and one-half inches in height. Therefore, FRA is clarifying that raised longitudinal channelizers of at least three and one-half inches in height, when affixed with vertical panels or tubular delineators, constitute acceptable channelization devices for

purposes of this part. Lastly, FRA is removing all references to specific MUTCD sections from the definition of “

channelization device

”, in recognition of the somewhat transitory nature of MUTCD section citations.

A definition of “

locomotive audible warning device

” has been added to the Final Rule, in recognition of the expanded scope of the Final Rule with respect to the sounding of locomotive audible warning devices , as opposed to just locomotive horns, at public, private and pedestrian grade crossings.

The definition of “

locomotive horn

” has been revised by adding a specific reference to locomotive horns used in rapid transit operations.

The definition of “

MUTCD

” has been revised to correct an inadvertent typographical error.

The definition of “

New Partial Quiet Zone

” has been revised to correct an inadvertent typographical error.

The definition of “

pedestrian grade crossing

” has been revised in order to clarify that the requirements for pedestrian crossings contained within this part only apply to pedestrian grade crossings. Nonetheless, despite the limited scope of these requirements, the terms “

pedestrian crossing

” and “

pedestrian grade crossing

” have been used interchangeably for purposes of this part.

The definition of “

private highway-rail grade crossing

” has been revised to correct an inadvertent typographical error.

Even though the definition of “

Pre-Rule Quiet Zone

” has not been revised, FRA is providing further clarification on the definition of this term. While reviewing Notices of Quiet Zone Continuation that have been submitted by public authorities seeking to continue locomotive horn restrictions in Pre-Rule Quiet Zones, it has come to FRA's attention that disagreements have arisen between public authorities and railroads on whether local ordinances that seem to prohibit locomotive horn sounding at certain highway-rail grade crossings have, in fact, been “

enforced or observed

”. In these situations, the public authority and railroad must determine whether locomotive horns were routinely sounded at the grade crossings in question on October 9, 1996 and December 18, 2003, despite locomotive horn sounding restrictions that were ostensibly imposed by State or local law. Railroad timetables that reflect locomotive horn sounding practices on October 9, 1996 and December 18, 2003 will provide dispositive proof on this issue.

Even though the definition of “

quiet zone

” has not been revised, FRA is providing further clarification on the definition of this term. A quiet zone may only contain consecutive public highway-rail grade crossings located on a segment of a rail line. Therefore, a public authority may find it necessary to establish more than one quiet zone within the boundaries of a local community. For example, if there are two railroad tracks running through a local community that are not adjacent to each other and which do not share grade crossing warning system devices, a community that wishes to silence the locomotive horn at grade crossings along both tracks must create separate quiet zones for each railroad track or right-of-way. Also, if there is both a main line track and an industrial spur track within town limits, a community that wishes to silence the locomotive horn at grade crossings located on both tracks must create separate quiet zones for the main line track and the industrial spur track, unless the main line track and the industrial spur track share grade crossing warning system devices.

Section 222.11 What are the penalties for failure to comply with this regulation?

This section has not been revised.

Section 222.13 Who is responsible for compliance?

This section has not been revised.

Section 222.15 How does one obtain a waiver of a provision of this regulation?

This section has not been revised.

Section 222.17 How can a State agency become a recognized State agency?

This section has not been revised.

Section 222.21 When must a locomotive horn be used?

This section has been revised in order to address the movement of locomotives with inoperative horns, extend the compliance date of paragraph (b) of this section by 120 days, provide a good-faith exception for locomotive engineers who sound the locomotive horn for more than 20 seconds when approaching public crossings, address the sounding of locomotive audible warning devices at public highway-rail grade crossings when required by State and local law and provide a limited exception to the minimum audible warning requirement for trains and locomotives that have stopped in close proximity to a public highway-rail grade crossing.

Paragraph (a) of this section requires locomotive engineers to initiate locomotive horn sounding, in accordance with paragraph (b) of this section, and to continue sounding the locomotive horn until the lead locomotive blocks access to the crossing from all roadway approaches. FRA received a petition for reconsideration on this issue from James Adams, a resident of Placentia, California, who suggested that FRA require the locomotive engineer to sound only those locomotive horns which point in the direction of locomotive travel, in order to reduce unnecessary horn noise impacts from the sounding of locomotive horns that are pointed against the direction of travel. Most locomotive horns, particularly in freight service, are designed to provide warning in both directions of travel; and the engineer has no ability to select warning only in the forward direction. FRA will, however, continue research into more selective and effective means of providing audible warnings and may make further proposals in subsequent proceedings.

Minor typographical revisions have been made in paragraph (a) of this section. Paragraph (b) of this section has been revised to provide an exception to the locomotive horn sounding requirements for locomotive engineers who discover that the locomotive horn on the lead locomotive has failed enroute. Should this situation occur, the locomotive must be moved for repair in accordance with § 229.9 of this chapter. In addition, any movement of the locomotive with the inoperative horn over highway-rail grade crossings must be made in accordance with all applicable railroad operating rules.

Paragraph (b) of this section has also been revised in response to petitions for reconsideration that were submitted by the AAR and the BNSF Railway Company (BNSF), as well as letters that were submitted by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU), which were submitted in support of certain provisions contained within the AAR's petition for reconsideration.

In the AAR's petition for reconsideration, the AAR asserted that the current compliance date for the locomotive horn sounding requirements set forth in this paragraph would require a rapid transition from State law. The AAR asserted that such a transition would not be in the public interest, as locomotive engineers would be required to comply with time-based audible warning requirements without the benefit of training and/or properly placed whistle posts. Therefore, the AAR requested that FRA postpone the

compliance date of these requirements for one year.

FRA notes that railroads have been aware of the time-based audible warning requirements of this section for some time, as FRA's Interim Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings, which was published on December 18, 2003, contained a 15-20 second audible warning requirement. While FRA is aware of the fact that the AAR objected to the 15-20 second audible warning requirement in its comments on the Interim Final Rule, the 15-20 second audible warning requirement contained within the Final Rule should not have been a complete surprise to the railroad industry. Nonetheless, in the interest of railroad safety, FRA has added paragraph (b)(1) to this section, which delays the compliance date of the time-based audible warning requirement by 120 days from the date of publication of this Notice in order to give railroads additional time within which to adjust whistle posts and/or issue appropriate instructions to train crews. In the interim, railroads must either comply with the locomotive horn sounding requirements that were in effect immediately prior to June 24, 2005 (i.e., State law or, in the absence of State law, railroad operating rules) or this section.

The AAR, BNSF, BLET, and UTU also indicated significant concerns that situations may arise in which engineers are unable to precisely estimate the point at which sounding of the horn should be initiated in order to meet the 15-20 second criterion of the final rule. The AAR, BLET and UTU suggest that a good faith exception be employed where circumstances make it difficult to estimate the time of arrival, citing concerns about liability. This could include cases where whistle boards are placed irregularly (confounding an engineer's attempt to begin a “countdown” at a fixed point), where weather conditions make identification of landmarks difficult, where the train is accelerating or braking on approach to the crossing, and under other circumstances.

In sum, AAR's petition appeared to focus on short and long audible warnings, while the BLET and the UTU expressed concern with respect to exceeding the 20-second audible warning requirement. On the other hand, BNSF expressed concern with the time-based nature of the locomotive horn sounding requirement and requested that the locomotive horn continue to be sounded from a fixed point of reference, such as a whistle post.

FRA appreciates these concerns. FRA is also cognizant that previously existing State law requirements, and requirements of railroad operating rules have required distance-based use of the horn for many years, with attendant liability for non-compliance where collisions occur. However, FRA believes that adjustment to a time-based approach can, and should be readily accomplished, since locomotive engineers are required to be familiar with their territory and are accustomed to meeting these kinds of challenges. The time-based approach will allow the railroads to provide effective warning without incurring the animus of local communities associated with sounding the horn for a full quarter-mile when trains are operated a low speed. The time-based approach incorporates the strategy used by the locomotive engineer who “took mercy” on the community by exercising discretion, when operating a slow-moving train, to delay the onset of horn sounding at grade crossings.

FRA believes that it is important that sufficient warning be provided to the motorist who needs time to recognize the audible signal, understand its message, initiate a reaction, and take appropriate action when approaching the crossing. Other standards for other active warning at highway-rail crossings call for at least 20 seconds of advance warning (

see

49 CFR 234.225), and it is typical for basic signal arrangements to provide 30 seconds' warning or more. At crossings equipped with active warning devices, the locomotive horn generally provides a last-minute, additional warning to the motorist of the impending arrival of a train. Thus, it appears quite necessary and appropriate to retain the minimum 15-second warning requirement, given the need for uniformity and the wide range of conditions on the roadway approach to highway-rail crossings (including road speeds as high as 55 miles per hour).

Nevertheless, FRA agrees that employees should err on the side of safety when there is any uncertainty. In a case where situational awareness is partially compromised, an employee should not hesitate to begin a horn sounding sequence because of fear that excessive warning might be provided. Accordingly, former paragraph (b)(1), which has been renumbered as paragraph (b)(2) of this section, has been amended to state explicitly that exceeding the maximum warning time up to a limit of 25 seconds will not constitute a violation of this section if the action is taken in good faith. This is intended to affirm the action of an employee who errs on the side of safety in a particular instance, and not to condone the actions of an engineer who willfully disregards the 20-second limitation for normal operations. FRA will also utilize enforcement discretion for cases in excess of 25 seconds where unusual circumstances provide a justification.

Former paragraph (b)(2), which has been renumbered as paragraph (b)(3) of this section, has also been revised in order to correct a typographical error. Trains, locomotive consists (two or more locomotives traveling together without any train cars attached), and individual locomotives traveling at speeds in excess of 60 mph are prohibited from providing an advance warning more than one-quarter mile in advance of public grade crossings, even if this means that high-speed trains, locomotive consists, and individual locomotives cannot provide an advance warning of at least 15 seconds in duration.

Paragraph (c) of this section has not been revised.

Paragraph (d) has been added to this section to address locomotive horn sounding when a train, locomotive consist, or individual locomotive has stopped in close proximity to a public highway-rail grade crossing. Trains and locomotives may stop in close proximity to public grade crossings during switching and/or commuter rail operations, especially when passenger stations are located in close proximity to public highway-rail grade crossings. In light of the low train speed associated with initiating train or locomotive movement from a complete stop, as well as FRA's intent to minimize local noise impacts where feasible, paragraph (d) will allow the locomotive engineer to sound the locomotive horn for less than 15 seconds before entering a public highway-rail grade crossing, when initiating movement from a complete stop in the close proximity of a public highway-rail grade crossing. Even though passenger stations located adjacent to public highway-rail grade crossings were the impetus for this revision, FRA notes that this limited exception may apply in other situations where trains have stopped in close proximity to public highway-rail grade crossings.

FRA is refraining from providing an exact distance that would constitute “close proximity” as the length of time that it will take for a train to reach the crossing will vary greatly depending on the type and weight of the train. If a train is stopped at a location such that it will take less than fifteen seconds for it to occupy the crossing, it is deemed to be in close proximity.

Paragraph (e) has also been added to this section, in response to a petition for reconsideration submitted by the AAR, in which the AAR requested that 49 CFR Part 222 be revised to preempt State laws that govern the sounding of all locomotive audible warning devices at public highway-rail grade crossings. Without such preemption, the AAR asserted that railroads would be required to initiate locomotive bell sounding at a location specified by State law, which may be inconsistent with the time-based locomotive horn sounding requirement set forth in this section.

FRA is not exercising complete preemption of State laws on the sounding of locomotive audible warning devices at public highway-rail grade crossings. Complete preemption of State laws on this issue could inadvertently remove the valuable warning currently provided by locomotive audible warning devices other than the locomotive horn because the Final Rule does not require the sounding of locomotive audible warning devices, other than the locomotive horn, at public highway-rail grade crossings.

FRA has, however, added this section to ensure that a consistent locomotive audible warning will be provided at public highway-rail grade crossings. Therefore, if State law requires the sounding of a locomotive audible warning device other than the locomotive horn at public highway-rail grade crossings, that locomotive audible warning device must be sounded in accordance with paragraphs (b) and (d) of this section. By exercising preemption in this limited manner, FRA hopes to alleviate any potential confusion on the part of the locomotive engineer who might otherwise have been forced to comply with distance-based locomotive bell sounding requirements, as well as time-based locomotive horn sounding requirements, at the same public highway-rail grade crossing.

Section 222.23 How does this regulation affect sounding of a horn during an emergency or other situations?

Paragraph (a) of this section has not been revised.

Paragraph (b) of this section has been revised to correct an inadvertent omission from the list of situations in which locomotive horn use at quiet zone crossings would be permissible. In the Final Rule, FRA stated that locomotive horn use would be permitted at a quiet zone crossing equipped with a wayside horn, in the event of a wayside horn malfunction. Similarly, the Final Rule states that locomotive horn use would be permitted at a quiet zone crossing when active grade crossing warning devices installed at the grade crossing are malfunctioning or out of service. As indicated by this list of potential scenarios, FRA has always intended to permit railroads to sound the locomotive horn at a quiet zone crossing whenever engineering improvements installed at the grade crossing become non-compliant. Therefore, FRA has added paragraph (b)(4) to this section to clarify that railroads are not required to comply with the general prohibition against routine locomotive horn sounding at a quiet zone crossing, when an SSM, modified SSM or engineering SSM installed at the quiet zone crossing fails to comply with the requirements set forth in appendix A of this part or the conditions contained within the Associate Administrator's decision to approve the quiet zone in accordance with section 222.39(b) of this part. The railroad should, however, attempt to contact the person responsible for monitoring quiet zone compliance with this part (as designated in the Notice of Quiet Zone Establishment), in order to inform the public authority of the non-compliant condition of the quiet zone crossing.

Paragraph (c) of this section has not been revised.

Section 222.25 How does this rule affect private highway-rail grade crossings?

This section has been revised in response to the AAR petition for reconsideration. In its petition for reconsideration, the AAR expressed support for FRA's decision to refrain from requiring locomotive horn sounding at every private highway-rail grade crossing. However, noting that some States require the sounding of a locomotive horn or the ringing of the locomotive bell at private highway-rail grade crossings, the AAR requested that FRA amend 49 CFR Part 222 by adding an explicit statement of FRA's intent to preempt State law, to the extent that State law requires the sounding of a locomotive audible warning device for a period of time or in a pattern different from the locomotive horn sounding requirements set forth in § 222.21 of this part. After considering this request, as well as the potential for confusion that may result from requiring the locomotive engineer to provide a different audible warning at public highway-rail grade crossings than at private highway-rail grade crossings, FRA revised this section. Thus, if State law requires the sounding of locomotive audible warning devices at private highway-rail grade crossings, the locomotive audible warning device must be sounded in accordance with the locomotive horn sounding requirements set forth in § 222.21 of this part as of December 15, 2006. However, in recognition of the fact that some locomotive audible warning devices (such as the locomotive bell) cannot be sounded in accordance with the locomotive horn sounding pattern required by § 222.21(a) of this part (

i.e.

, two long blasts, one short blast, and one long blast), locomotive audible warning devices other than the locomotive horn need only be sounded in accordance with the time-based locomotive horn sounding requirements set forth in §§ 222.21(b) and (d) of this part.

Paragraph (a) of this section has also been revised, in response to the AAR's petition for reconsideration. In its petition for reconsideration, the AAR asserted that the permissive language in this provision could mislead public authorities into thinking that they are not required to address private highway-rail grade crossings when establishing their quiet zones. After considering this assertion, FRA noted that public authorities located in States that do not require locomotive horn sounding at private highway-rail grade crossings might erroneously assume that it will not be necessary to include and/or improve private highway-rail grade crossings located within the boundaries of their quiet zone. Therefore, FRA revised this paragraph in order to clarify that all private highway-rail grade crossings located within the boundaries of a quiet zone must be treated in accordance with this part.

Paragraph (b)(1) of this section has been revised to clarify that all private highway-rail grade crossings that are located in New Quiet Zones or New Partial Quiet Zones must be evaluated by a diagnostic team and then equipped or treated in accordance with the diagnostic team recommendations, if the private highway-rail grade crossings allow access to the public or provide access to active industrial or commercial sites. Paragraph (b)(2) of this section has not been revised.

Paragraph (c) of this section has also been revised to clarify that crossbucks and “STOP” signs must be installed at each approach to private highway-rail grade crossings that are located within quiet zones.

Section 222.27 How does this rule affect pedestrian grade crossings?

This section has been revised in response to the AAR petition for reconsideration. In its petition for reconsideration, the AAR expressed

support for FRA's decision to refrain from requiring locomotive horn sounding at pedestrian grade crossings. However, after asserting that some States may require the sounding of a locomotive audible warning device at pedestrian grade crossings, the AAR requested that FRA amend 49 CFR Part 222 by adding an explicit statement of FRA's intent to preempt State law, to the extent that State law requires the sounding of a locomotive audible warning device for a period of time or in a pattern different from the locomotive horn sounding requirements set forth in § 222.21 of this part. After considering this request, as well as the potential for confusion that may result from requiring the locomotive engineer to provide a different audible warning at public highway-rail grade crossings than at pedestrian grade crossings, FRA revised this section. Therefore, if State law requires the sounding of a locomotive audible warning device at pedestrian grade crossings, the locomotive audible warning device must be sounded in accordance with the locomotive horn sounding requirements set forth in § 222.21 of this part as of December 15, 2006. However, in recognition of the fact that some locomotive audible warning devices (such as the locomotive bell) cannot be sounded in accordance with the locomotive horn sounding pattern required by § 222.21(a) of this part (

i.e.

, two long blasts, one short blast, and one long blast), locomotive audible warning devices other than the locomotive horn need only be sounded in accordance with the time-based locomotive horn sounding requirements set forth in §§ 222.21(b) and (d) of this part.

Paragraph (a) of this section has also been revised, in response to the AAR's petition for reconsideration. In its petition for reconsideration, the AAR expressed concern that the permissive language contained in paragraph (a) of this section could mislead public authorities into thinking that they are not required to address pedestrian crossings when establishing their quiet zones. After considering this assertion, FRA noted that public authorities located in States that do not require locomotive horn sounding at pedestrian grade crossings might erroneously assume that it will not be necessary to include and/or improve pedestrian grade crossings located within the boundaries of their quiet zone. Therefore, FRA revised this paragraph in order to clarify that all pedestrian grade crossings located within the boundaries of a quiet zone must be treated in accordance with this part.

Paragraph (b) of this section has been revised to clarify that all pedestrian grade crossings that are located in New Quiet Zones or New Partial Quiet Zones must be evaluated by a diagnostic team and then equipped or treated in accordance with the diagnostic team recommendations, if the pedestrian grade crossings allow access to the public or provide access to active industrial or commercial sites.

A minor typographical edit has been made to paragraph (c) of this section.

Paragraph (d) of this section has also been revised in response to the AAR petition for reconsideration. In its petition for reconsideration, the AAR asserted that paragraph (d) of this section requires the installation of signs at pedestrian crossings that could potentially be misleading. In light of the fact that partial quiet zones may be established in States that do not require locomotive horn sounding at pedestrian grade crossings, the AAR expressed concern that pedestrians encountering time-specific warning signs when the partial quiet zone is not in effect might assume that the locomotive horn will be sounded by approaching trains. After considering this issue, FRA agreed that the Final Rule's warning sign requirement could be misleading to pedestrians. Therefore, in order to minimize confusion, paragraphs (d)(2) and (d)(4) of this section have been revised to give public authorities the flexibility to install warning signs which advise pedestrians that train horns will not be sounded, but do not list the hours within which the partial quiet zone will be in effect. Thus, if State law does not require locomotive horn sounding at pedestrian grade crossings, signs that indicate that horns are not sounded would be appropriate. However, if State law requires locomotive horn sounding during non-quiet zone hours, then signs indicating that horns are not sounded between stated hours of the partial quiet zone would be appropriate. Paragraph (d) of this section has also been revised to clarify that advance warning signs must be installed on each approach to pedestrian grade crossings located within quiet zones.

Section 222.33 Can locomotive horns be silenced at an individual public highway-rail grade crossing which is not within a quiet zone?

This section has not been revised.

Section 222.35 What are the minimum requirements for quiet zones?

Minor typographical revisions have been made throughout this section.

Paragraph (a)(1)(iii) has been added to this section to address the configuration of multiple New Quiet Zones and New Partial Quiet Zones along the same rail line within a single political jurisdiction. Even though FRA has refrained from establishing a minimum distance between neighboring quiet zones, there must be at least one public highway-rail grade crossing between New Quiet Zones and New Partial Quiet Zones located on the same rail line within a single political jurisdiction unless a New Quiet Zone or New Partial Quiet Zone is being added onto an existing quiet zone. While it is perfectly acceptable for a community to create two quiet zones (each at least one-half mile long) with a segment between them at which horns will sound, multiple New Quiet Zones and New Partial Quiet Zones cannot be established on the same rail line within the boundaries of a single political jurisdiction unless they are separated by at least one public highway-rail grade crossing.

By establishing a single New Quiet Zone or New Partial Quiet Zone to incorporate all public highway-rail grade crossings at which routine locomotive horn sounding will be restricted or prohibited, the administrative burden associated with quiet zone establishment will be lessened. In addition, FRA perceives no safety-related rationale for dividing a multiple-crossing New Quiet Zone or New Partial Quiet Zone along a single rail line into fragmented quiet zones. Therefore, unless a New Quiet Zone or New Partial Quiet Zone is being added onto an existing quiet zone, New Quiet Zones and New Partial Quiet Zones created along the same rail line within a single political jurisdiction must be separated by at least one public highway-rail grade crossing.

Paragraph (a)(2)(ii) of this section has been revised to correct an inadvertent restriction on the number of Pre-Rule Quiet Zones that can be combined. Under the revised language in paragraph (a)(2)(ii) of this section, public authorities can combine more than two adjacent Pre-Rule Quiet Zones or Pre-Rule Partial Quiet Zones.

Paragraph (a)(3) of this section, which states that grade crossings on a segment of rail line that travels through more than one political jurisdiction may be included within a single quiet zone, has been revised. This paragraph has been revised in order to clarify that pedestrian crossings, located on the same segment of rail line as public highway-rail grade crossings, may also be included in multi-jurisdictional quiet zones.

Paragraph (b) of this section has not been revised.

Paragraph (c) of this section has been revised in response to the AAR's petition for reconsideration. In its petition for reconsideration, the AAR asserted that paragraph (c) of this section requires the installation of signs at private highway-rail grade crossings that could potentially be misleading. In light of the fact that partial quiet zones may be established in States that do not require locomotive horn sounding at private highway-rail grade crossings, the AAR expressed concern that motorists encountering time-specific warning signs when the partial quiet zone is not in effect might assume that the locomotive horn will be sounded by approaching trains. After considering this issue, FRA agreed that the Final Rule's warning sign requirement could be misleading to motorists. Therefore, in order to minimize confusion, paragraphs (c)(2) and (c)(4) of this section have been revised to give public authorities the flexibility to install warning signs which advise motorists that train horns will not be sounded, but do not list the hours within which the partial quiet zone will be in effect. Thus, if State law does not require locomotive horn sounding at private highway-rail grade crossings, signs that indicate that horns are not sounded would be appropriate. However, if State law requires locomotive horn sounding during non-quiet zone hours, then signs indicating that horns are not sounded between stated hours of the partial quiet zone would be appropriate. These warning signs must be installed on each approach to public and private highway-rail grade crossings.

Paragraph (c)(5) has been added to this section to clarify that FRA does not intend to require public authorities to install advance warning signs at highway-rail grade crossings that are equipped with wayside horns that conform to the requirements set forth in § 222.59 and Appendix E of this part, but are located within a quiet zone.

Paragraph (d) of this section has not been revised. Minor typographical edits have, however, been made in paragraphs (e), (f), and (g) of this section.

Section 222.37 Who may establish a quiet zone?

Paragraph (a) of this section addresses the situation that may occur if a proposed quiet zone includes public highway-rail grade crossings that are under the authority and control of more than one public authority. This scenario could occur if the proposed quiet zone contains county roads and State highways that intersect the railroad tracks at adjacent crossings. This scenario could also occur if the railroad tracks or the roadway run along the border between two neighboring communities.

When faced with this scenario, paragraph (a) of this section states that both public authorities must agree to establishment of the quiet zone and must jointly, or by delegation, take such actions as are required to comply with this part. Therefore, if two neighboring communities are interested in quiet zone creation, the communities might want to consider working together to create a multi-jurisdictional quiet zone. If the neighboring communities are not, however, interested in creating a single, multi-jurisdictional quiet zone, any shared highway-rail grade crossing (

i.e.

, a highway-rail grade crossing that contains a roadway that runs along the border of the neighboring communities) can only be attributed to one quiet zone. Otherwise, the risk reduction credit associated with any safety improvements at the shared highway-rail grade crossing would be “double-counted”, if claimed by adjacent quiet zones.

A minor typographical revision has been made to paragraph (a) of this section. However, paragraphs (b) and (c) of this section have not been revised.

Section 222.38 Can a quiet zone be created in the Chicago Region?

This section has not been revised.

Section 222.39 How is a quiet zone established?

Paragraph (a) of this section has not been revised.

Minor typographical revisions have been made to paragraph (b) of this section. In addition, paragraph (b) of this section has been revised in response to the AAR's petition for reconsideration. In its petition, the AAR asserted that it may be unclear, in certain circumstances, as to what constitutes a pedestrian crossing. Therefore, the AAR recommended that the Final Rule be revised to require public authorities to indicate, in their quiet zone applications and notification packages, where pedestrian crossings are located. The AAR reasoned that this revision would eliminate any confusion as to where crossing signs must be located, in accordance with § 222.27.

Even though public authorities are required to identify pedestrian crossings in their quiet zone notification packages, in accordance with the requirements set forth in § 222.43, FRA notes that it had inadvertently failed to require public authorities to identify or provide information on pedestrian grade crossings in their quiet zone applications. Therefore, paragraph (b) of this section has been revised to require public authorities to submit Grade Crossing Inventory Forms for each pedestrian grade crossing located within a proposed quiet zone, as well as information concerning present safety measures and proposed improvements at these crossings. FRA also inadvertently failed to require public authorities to provide information on current and proposed safety improvements at private highway-rail grade crossings. Therefore, paragraph (b) of this section has been revised to require public authorities to submit information on present safety measures and proposed improvements at private highway-rail grade crossings located within the proposed quiet zone. With respect to public highway-rail grade crossings, paragraph (b) of this section has been revised to require public authorities to provide detailed information about all safety improvements, as opposed to just SSMs and ASMs, that have been proposed for implementation. In making these revisions, FRA hopes to obtain better information as to the overall level of safety within the proposed quiet zone.

Paragraph (b)(iv) of this section has been revised by inserting an explicit reference to the Notice of Intent requirement contained within § 222.43 of this part. (An inadvertent omission of the State agency responsible for highway and road safety has also been corrected.) The public authority is required to provide a Notice of Intent, in accordance with § 222.43 of this part, at least 60 days prior to the submission of its quiet zone application. All objections received from any railroad operating within the proposed quiet zone, the State agency responsible for grade crossing safety, and the State agency responsible for highway and road safety in response to the Notice of Intent must then be addressed by the public authority in the quiet zone application, in accordance with paragraph (b)(iv) of this section.

Paragraph (b)(2) of this section addresses the inclusion of newly established public and private highway-rail grade crossings in quiet zones. Any proposed quiet zone that contains a newly established public highway-rail grade crossing must be established through public authority application, unless one or more SSMs will be implemented at every public highway-rail grade crossing within the proposed quiet zone in accordance with paragraph (a)(1) of this section. Quiet zones with newly established public highway-rail grade crossings cannot be established through comparison to

either the Nationwide Significant Risk Threshold or the Risk Index With Horns because the Quiet Zone Risk Index cannot be computed without historical vehicle and rail traffic counts for each public highway-rail grade crossing within the quiet zone.

A minor typographical revision has been made in paragraph (b)(3) of this section. However, paragraph (b)(4) of this section has not been revised. Paragraph (c) of this section has also not been revised.

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

Minor typographical revisions have been made in paragraphs (a) and (b) of this section.

Paragraph (c) of this section has been revised in order to clarify the process that must be followed in order to continue existing locomotive horn sounding restrictions within a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone that will not be established by automatic approval. Paragraph (c)(1) has been added to this section to clarify that the public authority must provide a Notice of Quiet Zone Continuation, in accordance with § 222.43 of this part, in order to retain existing locomotive horn sounding restrictions until June 24, 2008. Paragraph (c)(2) of this section explains the process that must be followed, in order to continue existing locomotive horn sounding restrictions until June 24, 2010. Paragraph (c)(3) of this section explains the process that can be followed, in order to continue existing locomotive horn sounding restrictions until June 24, 2013, by providing a comprehensive State-wide implementation plan and funding commitment for the establishment of Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones.

Paragraph (c)(2) of this section has been revised to clarify the process for continuing existing locomotive horn sounding restrictions beyond June 24, 2008 without interruption. As stated in paragraph (c)(2)(i)(A) of this section, the public authority must mail a Notice of Intent, in accordance with § 222.43 of this part, by February 24, 2008. The mailing of the Notice of Intent, which will provide a brief explanation of the public authority's plans for implementing improvements within the quiet zone, will trigger a 60-day comment period, within which affected railroads, the State agency responsible for grade crossing safety, and the State agency responsible for highway and road safety can provide comments on the proposed improvements. This Notice of Intent replaces the Notice of Detailed Plan, which was previously required by the Final Rule.

After the Notice of Intent has been mailed and the subsequent 60-day comment period has run, paragraph (c)(2)(i)(B) requires the public authority to file a detailed plan with the FRA Associate Administrator by June 24, 2008. The detailed plan must include a detailed explanation of each safety improvement that will be implemented at public, private, and pedestrian crossings within the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone, in order to comply with §§ 222.25, 222.27, 222.35 and 222.39 of this part. (The public authority may also choose to explain additional safety improvements that will be implemented within the quiet zone, but are not being relied upon to achieve compliance with this part.) The detailed plan must also include a timetable for the implementation of these safety improvements.

If the public authority plans to implement ASMs within the quiet zone, paragraph (c)(2)(ii) of this section (formerly paragraph (c)(4) of the Final Rule) advises the public authority to apply for FRA approval of the quiet zone by December 24, 2007, in order to ensure that FRA will have ample time within which to review the quiet zone application.

Providing a Notice of Intent and filing a detailed plan in accordance with paragraph (c)(2) of this section will, however, only postpone routine locomotive horn sounding at public highway-rail grade crossings until June 24, 2010, unless the public authority establishes a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone in accordance with paragraph (c)(4) of this section. Paragraph (c)(2)(ii) in the Final Rule, which specifically addressed the establishment of Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones during the three-year period following June 24, 2005, has been removed. However, Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that have Quiet Zone Risk Indices that fall to a level at or below the Nationwide Significant Risk Threshold during this three-year period are now governed by paragraph (c)(4) of this section, which sets forth the procedure for establishing Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that will not be established by automatic approval.

Paragraph (c)(3) of this section explains the process that must be followed by an appropriate State agency, in order to continue existing locomotive horn sounding restrictions within Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones for an additional three years (until June 24, 2013) through the filing of a comprehensive State-wide implementation plan and funding commitment. As stated in this paragraph, existing locomotive horn sounding restrictions may remain in place until June 24, 2013, if: a) a comprehensive State-wide implementation plan and funding commitment is filed by the appropriate State agency with the Associate Administrator by June 24, 2008; and b) safety improvements are initiated within at least one Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone in the State by June 24, 2009. The comprehensive State-wide implementation plan must include an explanation of the process that will be used to assist Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones to come into compliance with §§ 222.25, 222.27, 222.35 and 222.39 of this part, as well as a timetable for the implementation of necessary safety improvements. As of June 24, 2013, locomotive horn sounding will resume unless each public authority establishes a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zones, in accordance with paragraph (c)(4) of this section.

Paragraph (c)(4) of this section explains the process that must be followed in order to establish a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone. As stated in paragraph (c)(4) of this section, a public authority can establish a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone if: (a) The Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone complies with the Pre-Rule Quiet Zone requirements set forth in §§ 222.25, 222.27, and 222.35 of this part; (b) the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone complies with the quiet zone standards set forth in § 222.39 of this part; and (c) the public authority complies with all applicable notification and filing requirements contained within this paragraph (c) and § 222.43 of this part.

The notification and filing requirements contained within this paragraph (c) and § 222.43 of this part may include: a) mailing the Notice of Intent, in accordance with § 222.43 of this part, if new SSMs or ASMs will be implemented within the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone; b) filing a detailed plan with the Associate Administrator by June 24, 2008, in accordance with paragraph (c)(2) of this section, if the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone will be established after that date; and c) providing a Notice of Quiet Zone Establishment, in accordance with § 222.43 of this part.

Paragraph (d) of this section has been revised in order to clarify the process that must be followed in order to convert a Pre-Rule Partial Quiet Zone into a 24-hour New Quiet Zone. While the final rule simply stated that the public authority must provide “notification of the establishment of a New 24-hour Quiet Zone”, paragraph (d) of this section has been revised to clarify that the public authority is actually required to comply with all applicable notification and filing requirements contained within paragraph (c) of this section and § 222.43 of this part. These notification and filing requirements may include: (a) Mailing the Notice of Intent, in accordance with § 222.43 of this part; b) filing a detailed plan with the Associate Administrator by June 24, 2008, in accordance with paragraph (c)(2) of this section, if the Pre-Rule Partial Quiet Zone will be converted after that date; and c) providing a Notice of Quiet Zone Establishment, in accordance with § 222.43 of this part.

Section 222.42 How does this rule affect Intermediate Quiet Zones and Intermediate Partial Quiet Zones?

This section has been revised in order to clarify the process that must be followed in order to continue existing locomotive horn sounding restrictions in Intermediate Quiet Zones and Intermediate Partial Quiet Zones until June 24, 2006. This section has also been revised in order to clarify the process that must be followed in order to convert an Intermediate Quiet Zone or Intermediate Partial Quiet Zone into a New Quiet Zone or New Partial Quiet Zone on or before June 24, 2006, in order to prevent the resumption of locomotive horn sounding on that date.

As stated in paragraph (a)(1) of this section, a public authority may continue existing locomotive horn restrictions until June 24, 2006 by providing a Notice of Quiet Zone Continuation in accordance with § 222.43 of this part. An Intermediate Quiet Zone or Intermediate Partial Quiet Zone must, however, be converted into a New Quiet Zone or a New Partial Quiet Zone by June 24, 2006, in order to prevent the resumption of locomotive horn sounding on that date.

Paragraph (a)(2) of this section explains the process for converting an Intermediate Quiet Zone into a New Quiet Zone, or an Intermediate Partial Quiet Zone into a New Partial Quiet Zone, by June 24, 2006. Paragraph (b) of this section explains the process for converting an Intermediate Partial Quiet Zone into a 24-hour New Quiet Zone by June 24, 2006.

While most of the requirements for converting an Intermediate Quiet Zone or Intermediate Partial Quiet Zone remain unchanged, paragraph (a)(2) of this section explains that the public authority is required to: (a) Provide a Notice of Intent, in accordance with § 222.43 of this part; (b) bring the Intermediate Quiet Zone or Intermediate Partial Quiet Zone into compliance with the standards set forth in § 222.39 of this part; (c) bring the Intermediate Quiet Zone or Intermediate Partial Quiet Zone into compliance with the New Quiet Zone requirements set forth in §§ 222.25, 222.27, and 222.35 of this part; and d) provide a Notice of Quiet Zone Establishment, in accordance with § 222.43 of this part, by June 3, 2006. It should be noted that the Notice of Intent should be mailed prior to April 3, 2006, in order to allow at least 60 days for the submission of comments and/or “no-comment” statements from each railroad operating over public highway-rail grade crossings within the quiet zone, the State agency responsible for grade crossing safety, and the State agency responsible for highway and road safety before the mailing of the Notice of Quiet Zone Establishment. (Please refer to § 222.43(b) for more information.) Even though these notification requirements were contained within § 222.43 of this part and were included in the Paperwork Reduction Act analysis that FRA performed on the Final Rule, FRA inadvertently omitted explicit reference to these requirements in this section of the Final Rule.

Paragraph (b) of this section has been revised in order to clarify the process that must be followed in order to convert an Intermediate Partial Quiet Zone into a 24-hour New Quiet Zone. (Please note that the requirements for converting an Intermediate Partial Quiet Zone into either a 24-hour New Quiet Zone or a New Partial Quiet Zone are identical.) While the Final Rule simply stated that the public authority is required to provide “notification of New Quiet Zone establishment”, paragraph (b) of this section has been revised to clarify that the public authority is actually required to provide two different types of quiet zone notification—the Notice of Intent and the Notice of Quiet Zone Establishment. In order to facilitate conversion of the Intermediate Partial Quiet Zone before the end of the one-year grace period for existing locomotive horn sounding restrictions, paragraph (b) of this section has also been revised to include a deadline for the submission of the Notice of Quiet Zone Establishment, which mirrors the submission deadline contained within paragraph (a)(2) of this section.

Section 222.43 What notices and other information are required to create or continue a quiet zone?

Minor typographical revisions have been made throughout this section.

This section has also been revised by expanding the scope of the Notice of Intent requirement to include Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that will need to implement SSMs or ASMs in order to qualify for quiet zone establishment under § 222.41 (c) or (d) of this part. The requirement to provide Notice of Detailed Plan, which was virtually identical to the Notice of Intent, has therefore been removed. Thus, Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that were previously required to provide a Notice of Detailed Plan are now required to provide a Notice of Intent on or before February 24, 2008.

As stated in paragraph (a)(1) of this section, a Notice of Intent must be provided by public authorities who wish to create a New Quiet Zone or New Partial Quiet Zone by public authority designation or application, in accordance with § 222.39(a) or (b) of this part. This includes public authorities who wish to convert Intermediate Quiet Zones and Intermediate Partial Quiet Zones into a New Quiet Zone or New Partial Quiet Zone. In addition, public authorities seeking to implement new SSMs or ASMs within Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones are required to provide a Notice of Intent.

The Notice of Intent should be mailed early in the quiet zone development process, as the submission of the Notice of Intent triggers a 60-day comment period and provides State agencies and railroads with an opportunity to provide input on the quiet zone to the public authority. Therefore, paragraph (b)(1) was added to this section to reiterate that a sixty-day period must elapse between the mailing of the Notice of Intent and the mailing of the Notice of Quiet Zone Establishment, unless the public authority has obtained written comments and/or “no-comment” statements from each railroad operating over public highway-rail grade crossings within the quiet zone, the State agency responsible for grade crossing safety, and the State agency responsible for highway and road safety, in accordance with paragraph (b)(3)(ii) of this section. This provision is very similar to language contained within paragraph (d)(1)(ii) of this section, which

addresses the timing of Notices of Quiet Zone Establishment.

With respect to Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that will not be established by June 24, 2008, paragraph (b)(1)(ii) of this section reminds public authorities that the Notice of Intent, which provides a brief explanation of proposed quiet zone improvements, must be provided by February 24, 2008, in order to continue existing locomotive horn sounding restrictions beyond June 24, 2008 without interruption.

As for the Notice of Quiet Zone Continuation, it should be noted that submission of the Notice of Quiet Zone Continuation was only necessary if the public authority wanted to continue pre-existing locomotive horn sounding restrictions after June 24, 2005. If a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone was established under the authority of this part before the Final Rule took effect on June 24, 2005, the public authority was not required to provide prior Notice of Quiet Zone Continuation.

All Notices of Intent, Notices of Quiet Zone Continuation, and Notices of Quiet Zone Establishment that complied with § 222.43 of the Final Rule and were mailed on or before August 17, 2006, shall be deemed compliant with any revised notification requirements now contained in this section.

Section 222.45 When Is a Railroad Required to Cease Routine Sounding of Locomotive Horns at Crossings?

This section has been revised to clarify the required railroad response to a valid Notice of Quiet Zone Continuation or Establishment. Even though railroads have been required to refrain from, or cease, routine sounding of the locomotive horn at all public, private, and pedestrian crossings identified in a valid Notice of Quiet Zone Continuation or Establishment on the date specified in the Notice, reference to the Notice of Quiet Zone Continuation was inadvertently omitted from this section in the Final Rule. Pedestrian grade crossings were also inadvertently omitted from the description of grade crossings at which railroads are required to cease routine use of the locomotive horn.

Section 222.47 What periodic updates are required?

Minor typographical revisions have been made in this section.

Section 222.49 Who may file Grade Crossing Inventory Forms?

This section has not been revised.

Section 222.51 Under what conditions will quiet zone status be terminated?

This section has not been revised.

Section 222.53 What are the requirements for supplementary and alternative safety measures?

This section has not been revised.

Section 222.55 How are new supplementary or alternative safety measures approved?

This section has not been revised.

Section 222.57 Can parties seek review of the Associate Administrator's actions?

This section has not been revised.

Section 222.59 When May a Wayside Horn Be Used?

It has come to FRA's attention that there may be some confusion in the railroad industry as to whether the notification requirements contained within this section apply to existing wayside horn installations. As a result, we wish to clarify that railroads and/or public authorities who are responsible for wayside horns that became operational before June 24, 2005 and that meet the requirements set forth in this part are not required to submit notification of operational status, in accordance with paragraphs (b) and (c) of this section. Thus, all railroads operating over highway-rail grade crossings equipped with wayside horns that became operational before June 24, 2005 were required to cease routine sounding of the locomotive horn at those crossings on that date, even if notification of operational status was not provided in accordance with this section.

Appendix A to Part 222—Approved Supplementary Safety Measures

Sections (A)(1), (A)(3), (A)(4), and (A)(5) of this Appendix have not been revised. However, FRA has added a brief discussion of the effectiveness rate assigned to four-quadrant gate systems equipped with vehicle presence detection to Section (A)(2) of this Appendix.

As stated in the Note to section (A)(2) of the Appendix, the lower effectiveness rate assigned to four-quadrant gate systems equipped with presence detection does not mean that four-quadrant systems with presence detection are inherently less safe. The lower effectiveness rate merely reflects the fact that motorists who are intent on circumventing the grade crossing warning system can take advantage of presence detection by driving under the delayed exit gates to enter the grade crossing. However, the public authority must weigh this risk against site-specific risks, such as nearby highway intersections that may cause traffic to back up on the grade crossing, when determining which type of four-quadrant gate system should be installed at a specific highway-rail grade crossing. FRA therefore recommends the use of site-specific studies to determine the best application for each installation.

Sections (B) and (C) of this Appendix have not been revised.

Appendix B to Part 222—Alternative Safety Measures

Minor revisions have been made to section I.A. of this appendix, which contains a brief discussion of the requirements and effectiveness rates for modified SSMs. Specifically, section I.A.2 of this appendix has been revised in order to clarify that the public authority is required to provide estimates of the effectiveness of its modified SSMs, which can be based upon adjustments to the effectiveness levels provided in appendix A or actual field data derived from the crossing sites. These effectiveness rate estimates must be included in the quiet zone application, as set forth in § 222.39(b) of this part.

Sections (I)(B) and (I)(C) of this Appendix have not been revised. Sections II and III of this Appendix have also not been revised.

Appendix C to Part 222—Guide to Establishing Quiet Zones

This appendix has been revised to incorporate changes that have made been to the rule text.

Appendix D to Part 222—Determining Risk Levels

This appendix has not been revised.

Appendix E to Part 222—Requirements for Wayside Horns

This appendix has not been revised.

Appendix F to Part 222—Diagnostic Team Considerations

This appendix has not been revised.

Appendix G to Part 222—Schedule of Civil Penalties

This appendix has been revised to reflect the exception for fast-moving trains (trains operating at speeds in excess of 60 mph) from the 15-second minimum horn sounding requirement contained in § 222.21(b) of this part. As stated in § 222.21(b)(3) of this part, FRA will not issue civil penalties against railroads whose fast-moving trains fail to sound the locomotive horn at least 15

seconds prior to their arrival at public highway-rail grade crossings, if locomotive horn sounding was initiated one-quarter mile from the public highway-rail grade crossing.

This appendix has also been revised to reflect revisions that have been made to the audible warning requirement set forth in § 222.21(b) of this part. When dealing with situations in which the locomotive engineer provided an audible warning in excess of 20 seconds before public grade crossings, FRA will try to determine whether the locomotive engineer made a good faith attempt to comply with the 15-20 second audible warning requirement. However, if an audible warning in excess of 25 seconds was provided before a public highway-rail grade crossing and FRA determines that the locomotive engineer failed to make a good faith attempt to comply with the 15-20 second audible warning requirement set forth in § 222.21(b) of this part, FRA may issue an appropriate civil penalty.

Section 222.21(b)(3) of this part prohibits the initiation of locomotive horn sounding from a location more than one-quarter mile before a public highway-rail grade crossing. However, under the civil penalty schedule contained within Appendix G to the Final Rule, a $5,000 civil penalty could only have been assessed if locomotive horn sounding was routinely initiated from a location more than one-quarter mile before a public highway-rail grade crossing. FRA did not intend to restrict its enforcement activity to habitual violations of the locomotive horn sounding requirements contained within this part. Therefore, FRA is amending this appendix in order to clarify that civil penalties may be assessed against railroads for individual instances in which locomotive horn sounding was initiated from a location more than one-quarter mile before a public highway-rail grade crossing. However, the recommended standard civil penalty has been reduced from $5,000 to $1,000 and the recommended willful civil penalty has also been reduced from $7,500 to $2,000.

This appendix has also been revised to clarify that routine sounding of the locomotive horn at any grade crossing (i.e., public, private or pedestrian grade crossing) located within a quiet zone is prohibited.

Section 229.5 Definitions

The three definitions that are being added this section were included in the Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings. These definitions were, however, inadvertently removed upon issuance of the Final Rule on Locomotive Event Recorders (70 FR 37920).

Also, the definition of the term “defective” has been revised to reflect FRA's intent to limit application of this specific definition to § 229.129 of this part.

Section 229.129 Locomotive Horn

The title of this section has been changed to reflect the fact that the requirements contained within this section only pertain to one type of locomotive audible warning device—the locomotive horn. Therefore, all references to “audible warning devices” within this section have been replaced with the term “locomotive horn'.

This section has also been revised in response to petitions for reconsideration that were submitted by GE Transportation Rail and the AAR. In its petition for reconsideration, GE Transportation Rail requested a 120-day extension of the compliance deadline set forth in paragraph (b)(1) of this section for the sound level testing of new locomotives. GE Transportation Rail asserted that, given the relatively short period of time since the issuance of FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings, it would be unable to complete sound level testing on its first batch of new locomotives prior to June 24, 2005 (the compliance deadline for sound level testing of new locomotives). As a result, GE Transportation Rail asserted that it would be forced to test every new locomotive, which would negatively impact its ability to meet delivery commitments made to its customers.

After considering the assertions made by GE Transportation Rail with respect to the practical limitations associated with testing new locomotive sound levels, in accordance with the test parameters set forth in § 229.129, FRA revised paragraph (b) to extend the compliance date of the new locomotive sound level testing requirements to September 18, 2006. In light of the delay incidental to the publication of these amendments, this revision will actually extend the compliance date of the testing requirements contained in this section by more than 120 days. Therefore, any locomotives built on or after September 18, 2006 must comply with the minimum and maximum locomotive horn sound level requirements set forth in paragraph (a) of this section. However, locomotives built before September 18, 2006 must be tested and brought into compliance with the minimum and maximum locomotive horn sound level requirements set forth in paragraph (a) of this section by June 24, 2010.

Paragraph (b)(3) of this section has been revised to clarify FRA's original intent to require the sound level testing of remanufactured locomotives, in accordance with this section. Even though the Final Rule required sound level testing of “each locomotive when rebuilt, as determined pursuant to 49 CFR 232.5”, FRA has received comments noting that this provision is somewhat ambiguous and difficult to interpret. Since FRA had actually intended to apply the sound level testing requirements contained within this section to those locomotives that have been rebuilt or refurbished from a previously used or refurbished underframe (“deck”) and contain fewer than 25 percent of previously used components (weighted by the dollar value of the components), paragraph (b)(3) of this section has been revised to refer only to those locomotives that meet the definition of “remanufactured locomotive”, as set forth in § 229.5 of this part. (Please refer to FRA's Final Rule on Locomotive Crashworthiness, which was published in the

Federal Register

on June 28, 2006 (71 FR 36888), for further discussion of the term “remanufactured locomotive”.)

The AAR also submitted a petition for reconsideration that addressed a number of provisions contained within § 229.129 of this part. First, the AAR asserted that § 229.129 of this part was ambiguous as to what additional testing, if any, must be conducted when locomotive horns are replaced. If additional testing would be necessary, the AAR proposed that railroads be allowed to use the sampling scheme set forth in paragraph (b)(1) of this section to qualify replacement horns, with no additional testing necessary. However, if a replacement horn was not model qualified through acceptance sampling, the AAR proposed that railroads be required to test the replacement horn at the time of the next periodic inspection or by June 24, 2010, whichever is later.

FRA has not, however, revised this section to allow acceptance sampling of replacement horns. Given the level of variation that exists in the different types of locomotive/locomotive horn configurations, FRA is concerned that acceptance sampling would not ensure that the replacement horn, when installed on the locomotive, would generate an audible warning commensurate with the sound level parameters established by paragraph (a) of this section. FRA believes that locomotive horns should not be tested in isolation—the sound level must be tested after the horn has been installed

on the locomotive. FRA notes that there are a variety of factors that can influence locomotive horn sound levels, such as the placement, mounting, air pressure and actual condition of the locomotive horn. However, should railroads develop data from field testing to demonstrate that some form of acceptance sampling would be appropriate, FRA would be willing to reconsider its position on this issue.

Paragraph (b)(4) has been added to this section to require sound level testing of locomotives equipped with replacement horns, in accordance with paragraph (c) of this section. As stated in paragraph (b)(4) of this section, locomotives equipped with replacement horns must be tested unless: (a) The locomotive has already been individually tested or tested through acceptance sampling, in accordance with paragraphs (b)(1), (b)(2), or (b)(3) of this section; (b) the replacement horn is the same locomotive horn model as the locomotive horn that was replaced; and (c) the replacement horn was mounted in the same manner and location as the locomotive horn that was replaced. This sound level testing must be performed before the next two annual tests required by § 229.27 of this part are completed.

In its petition for reconsideration, the AAR also requested that railroads be allowed to use acceptance sampling to qualify the sound level output of existing locomotives. In support of this request, the AAR asserted that there is a great deal of standardization with respect to locomotive horn and locomotive models. However, FRA has not revised this section to allow acceptance sampling of the sound level output of existing locomotives, as the considerations that militate against acceptance sampling of replacement locomotive horns apply equally, if not more so, to the acceptance sampling of existing locomotives. FRA notes that there are many factors that can influence the sound level output of existing locomotives, including the actual condition of the locomotive horn, as well as the placement, mounting and air pressure of the locomotive horn. FRA may, however, reconsider this issue, should railroads develop data from field testing that demonstrates that some form of acceptance sampling would be appropriate.

Paragraph (c)(1) of this section has not been revised.

By e-mail dated September 20, 2005, the AAR submitted a request for modification of the locomotive horn testing requirements in paragraph (c)(2) of this section. In its e-mail, the AAR requested permission to use electronic calibrators, in addition to approved acoustic calibrators, to conduct compliance testing in accordance with this section. If such a change were made, the AAR asserted that railroads could use an acoustic calibrator during the initial setup of an “environmental noise monitoring system” and then store the results in an electronic calibrator which could, conceivably, have an accuracy of ± 0.1 dB.

FRA has not, however, revised paragraph (c)(2) of this section. Acoustical calibration has been incorporated into the recommended practice for monitoring aircraft noise in the vicinity of airports, unlike electronic calibration, which is mainly used to identify sound level measurement system failure.

See

SAE Aerospace Recommended Practice (ARP) 4721—Monitoring Aircraft Noise and Operations in the Vicinity of Airports and ISO/DIS 20906—Unattended Monitoring of Aircraft Sound in the Vicinity of Airports. Thus, while FRA will permit the use of environmental noise monitoring systems to conduct compliance testing under this section, FRA cannot permit electronic calibration of sound level measurement systems.

Apart from the correction of a typographical error in paragraph (c)(5), paragraphs (c)(3) through (c)(8) of this section have not been revised.

In its e-mail dated September 20, 2005, the AAR also requested that FRA relax the requirement in paragraph (c)(9) of this section that calibration be done before and after each compliance test. However, FRA would like to clarify that calibration is not required before and after each compliance test. Acoustical calibration must be performed, at a minimum, before and after each session of compliance tests within an 8-hour period, unless a physical change in the environment (such as a drop or rise in temperature, atmospheric pressure or wind) or damage to the instrument may cause changes in microphone response. Therefore, paragraph (c)(9) of this section has not been revised.

In its petition for reconsideration, the AAR asserted that the requirement to record air flow measurements when testing locomotive sound levels would not only be extremely burdensome, but would fail to provide any useful information. Noting that § 229.129 does not contain any regulatory requirement pertinent to air flow, the AAR stated that no regulatory purpose would be served by recording air flow measurements. In addition, the AAR asserted that railroads would need to employ extra personnel and/or utilize specialized equipment during locomotive sound level testing, for the sole purpose of reading the air flow meter.

After considering these assertions, FRA revised paragraph (c)(10) of this section by removing the requirement to retain written records of air flow measurements taken during locomotive sound level testing. FRA was persuaded that this requirement would impose an unnecessary burden on railroads and locomotive manufacturers.

Lastly, the AAR objected to the written signature requirement contained within paragraph (c)(10) of this section. Noting that the Interim Final Rule did not provide any rationale for requiring the signature of the person who performs the locomotive horn sound level test, the AAR expressed concern that railroads would be unable to use a fully automated test procedure under consideration which would record and send sound level test results to a database without any human intervention. Nonetheless, if signatures will be required, the AAR asserted that FRA will have to allow railroads to use electronic signatures, in accordance with the Government Paperwork Elimination Act.

While FRA recognizes the paperwork burdens associated with an additional recordkeeping requirement, FRA notes that the written signature of the person who performs the locomotive sound level test will provide accountability, should questions arise as to the quality of the test that was performed. However, FRA acknowledges that an electronic recordkeeping system could be designed to provide an equivalent level of accountability, while reducing associated paperwork burdens. Therefore, even though FRA has not revised paragraph (c)(10) of this section to remove the written signature requirements, FRA looks forward to the implementation of electronic recordkeeping in the near future, at which time FRA intends to review all of the recordkeeping requirements contained within 49 CFR Part 229.

Paragraph (d) of this section has not been revised. However, in light of the confusion generated by the preamble discussion of this section in the Final Rule, FRA would like to clarify the intent of this section.

Contrary to the discussion of this section in the preamble to the Final Rule, rapid transit operations that share track with general system railroads are not subject to this section. (This category of rapid transit operations includes “light rail” vehicles that are operated on general system track pursuant to an FRA-approved Temporal Separation Plan.) Thus, rapid transit

operations that share track with general system railroads need not file waiver petitions to obtain relief from the locomotive horn volume and testing requirements contained in this section.

It should, however, be noted that rapid transit operations that share track with general system railroads remain subject to the locomotive horn sounding requirements contained in 49 CFR Part 222, absent relief granted in the form of an FRA waiver. Thus, rapid transit operations that share track with general system railroads are required to sound the locomotive horn when approaching and entering public highway-rail grade crossings located outside quiet zones. However, these rapid transit operations need not comply with the minimum and maximum locomotive horn sound level requirements contained in this section, nor do they need to conduct locomotive horn testing in accordance with this section.

Rapid transit operations that operate within a common corridor with general system railroads and traverse shared public highway-rail grade crossings are also exempt from the requirements contained in this section. However, these rapid transit operations remain subject to the locomotive horn sounding requirements contained in 49 CFR Part 222, absent relief granted in the form of an FRA waiver.

Therefore, rapid transit operations that operate within a common corridor with general system railroads are required to sound the locomotive horn when approaching and entering public highway-rail grade crossings that are shared with general system railroads and located outside quiet zones. However, these rapid transit operations need not comply with the minimum and maximum locomotive horn sound level requirements contained in this section, nor do they need to conduct locomotive horn testing in accordance with this section.

Appendix B to Part 229—Schedule of Civil Penalties

This appendix has been revised to reflect changes that have been made to section 229.129 of this part, which clarify that the sound level and testing requirements contained within section 229.129 of this part only pertain to one type of locomotive audible warning device—the locomotive horn. In addition to other minor clarifying revisions, this appendix has also been revised by assigning a civil penalty recommendation to the failure of a railroad or locomotive manufacturer to complete and/or retain a proper locomotive horn sound level test record in accordance with section 229.129(c)(10) of this part.

5. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This revised Final Rule has been evaluated in accordance with existing policies and procedures and is considered to be significant under both Executive Order 12866 and DOT policies and procedures. FRA has prepared and placed in the docket a regulatory evaluation of the rule. Following is a summary of the findings.

FRA identified 1,598 existing whistle ban or no-horn crossings that would qualify for inclusion in Pre-Rule Quiet Zones. FRA also identified 372 potential New Quiet Zone crossings and 71 potential Intermediate Quiet Zone crossings. Using information available about the crossing characteristics and the number of persons that would be or currently are severely affected by the sounding of train horns, FRA estimated the costs and benefits of the actions that communities would take in response to this revised Final Rule. FRA believes that many communities will take advantage of the many options available to establish quiet zones. FRA also estimated the costs associated with the revised horn sound level testing requirements.

After the release of the Final Rule, FRA received petitions for reconsideration on various issues of concern to the railroads, railroad suppliers, and other affected entities. After careful consideration, FRA is revising the Final Rule to address some of the issues raised in the petitions for reconsideration. FRA is also taking the opportunity to clean up the rule by correcting a few inadvertent errors and omissions which are necessary for the rule to function as intended. These revisions to the Final Rule will result in approximately $184,873 in additional costs. These additional costs are reflected in the cost table below. For a complete discussion of the costs of the revisions, please see the

Economic and Regulatory Flexibility Analyses of the Revisions to the Final Rule.

The table below presents estimated twenty-year monetary costs associated with complying with the requirements contained in the Final Rule revisions using a 7 percent discount rate.

Total Twenty-Year Costs (PV, 7%)

1

Extension of Compliance Date for Sound Level Testing of New Locomotives

$34,203

Notice and Comment Requirements

$150,670

Total Twenty-Year Costs associated with implementation of the Final Rule revisions are estimated to total

*$184,873

1

Present Value (PV) provides a way of converting future benefits and costs into equivalent dollars today so that benefit and cost streams that involve different time paths may be compared. The formula used to calculate these flows is: 1/(1+I)

t

where “I” is the discount rate, and “t” is the year. Per guidance from the Office of Management and Budget, a discount rate of .07 is used in this analysis.

*(PV, 20 Years, 7%).

FRA extended the compliance deadline for the sound level testing of new locomotives at the request of a major locomotive manufacturer, who was not prepared to meet the original compliance deadline without major disruption. This extension of the compliance deadline has, however, resulted in $34,203 in additional costs. FRA believes that this small additional cost is justified by the benefit (not quantified) of avoiding either substantial non-compliance or disruptions to the manufacturing process.

The remaining additional costs are associated with the notice and comment provisions of the Final Rule. These provisions have been revised, in order to streamline the quiet zone notification process and facilitate communication between interested parties prior to the expenditure of significant funds for projects such as crossing safety improvements. Even though we do not have the information necessary to estimate the amount of “waste” which may be avoided through early disclosure of planned crossing safety improvements, FRA believes that this small increase in total cost will prevent additional cost outlays associated with potential problems arising from projects requiring a substantial investment for needed safety improvements.

The direct safety benefit of this revised Final Rule is the reduction in casualties that result from collisions between trains and highway users at

public at-grade highway-rail crossings. Implementation of this rule will ensure that (1) locomotive horns are sounded to warn highway users of approaching trains; or (2) rail corridors where train horns do not sound will have a level of risk that is no higher than the average risk level at gated crossings nationwide where locomotive horns are sounded regularly; or (3) the effectiveness of horns is compensated for in rail corridors where train horns do not sound.

Some of the unquantified benefits of this revised Final Rule include reductions in freight and passenger train delays, both of which can be very significant when grade crossing collisions occur, and collision investigation efforts. Although these benefits are not quantified in this analysis, their monetary value is significant.

Maximum horn sound level requirements will limit community disruption by not allowing horns to be sounded any louder than necessary to provide motorists with adequate warning of a train's approach. The benefit in noise reduction due to this change in maximum horn loudness is not readily quantifiable.

Another unquantified benefit of this rule is elimination of some locomotive horn noise disruption to some railroad employees and those who may reside near industrial areas served by railroads. Locomotive horns do not have to be sounded at individual highway-rail grade crossings at which the maximum authorized operating speed for that segment of track is 15 miles per hour or less and properly equipped flaggers (as defined in by 49 CFR 234.5, but who for purposes of this rule can also be crew members) provide warning to motorists. This rule will allow engineers, who were probably already exercising some level of discretion as to the duration and sound level of locomotive horn sounding, to stop sounding the horn under these circumstances at no additional cost. In addition, under the Final Rule revisions, locomotive horns need not be sounded for a minimum of 15 seconds by trains that re-initiate movement from locations, such as passenger stations, that are in close proximity to public highway-rail grade crossings, provided certain specified conditions are met.

The Final Rule revisions will also facilitate railroad compliance with required time-based locomotive horn sounding. By extending the compliance deadline for time-based locomotive horn sounding, FRA will ensure that locomotive engineers have sufficient time to adapt to time-based locomotive horn sounding. In addition, by expanding the scope of these time-based audible warning requirements to cover audible warnings provided at public, private and pedestrian crossings, locomotive engineers will no longer be required to comply with potentially inconsistent State and Federal requirements governing locomotive-based audible warnings at grade crossings. Improved railroad compliance is not, however, readily quantifiable.

This analysis does not quantify the benefit of eliminating community disruption caused by the sounding of train horns, nor does it quantify costs from increased noise at crossings where horns will sound where they were previously silent. FRA is, however, confident that the benefits in terms of lives saved and injuries prevented will exceed the costs imposed on society by this rule.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601

et seq.

) requires a review of final rules to assess their impact on small entities unless the Secretary certifies that a final rule will not have a significant economic impact on a substantial number of small entities. Data available to FRA indicates that this rule may have minimal economic impact on a substantial number of small entities (railroads) and possibly a significant economic impact on a few small entities (government jurisdictions and small businesses). However, there is no indication that this rule will have a significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) did not submit comments to the docket for this rulemaking in response to the Initial Regulatory Flexibility Assessment that accompanied the NPRM or the Regulatory Flexibility Assessment that accompanied the Interim Final Rule. FRA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

FRA has performed a Final Regulatory Flexibility Assessment (FRFA) on small entities that potentially can be affected by this revised Final Rule. The FRFA is summarized in this preamble as required by the Regulatory Flexibility Act. The full FRFA is included in the Regulatory Evaluation, which is available in the public docket of this proceeding.

This is essentially a safety rule that implements as well as minimizes the potential negative impacts of a Congressional mandate to blow train whistles and horns at all public crossings. Some communities believe that the sounding of train whistles at every crossing is excessive and an infringement on community quality of life, and therefore have enacted “whistle bans” that prevent the trains from sounding their whistles entirely, or during particular times (usually at night). Some communities would like to establish “quiet zones” where train horns would not be routinely sounded and have been awaiting issuance of this rule to do so. FRA is concerned that with the increased risk at grade crossings where train whistles are not sounded, or another means of warning utilized, collisions and casualties may increase significantly. The rule contains low risk based provisions for communities to establish quiet zones. Some crossing corridors may already be at risk levels that are permissible under this rule and would not need to reduce risk levels any further to establish quiet zones. Otherwise, communities establishing Pre-Rule Quiet Zones may implement sufficient safety measures along whistle-ban corridors to reduce risk to permissible levels. In addition to having permissible risk levels, all crossings in New Quiet Zones will have to be equipped with gates and flashing lights. If a community elects to simply follow the mandate, horn sounding will resume and there will be a noise impact on small businesses that exist along crossings where horns are not currently routinely sounded. If a community elects to implement sufficient safety measures to comply with the requirements for establishing a quiet zone, then the governmental jurisdiction will be impacted by the cost of such program or system. To the extent that potential quiet zone crossing corridors already have average risk levels permissible under this rule, and, in the case of New Quiet Zones, every crossing is equipped with gates and flashing lights, communities will only incur administrative costs associated with establishing and maintaining quiet zones.

The costs of implementing this revised Final Rule will predominately be on the governmental jurisdictions of communities some of which are “small governmental jurisdictions.” As defined by the SBA this term means governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than fifty thousand. The most significant impacts from this rule will be on about 260 governmental jurisdictions whose communities currently have either formal or informal whistle bans in place. FRA estimates

that approximately 70 percent (i.e. 193 communities) of these governmental jurisdictions are considered to be small entities.

FRA has recently published a final policy which establishes “small entity” as being railroads which meet the line haulage revenue requirements of a Class III railroad. As defined by 49 CFR 1201.1-1, Class III railroads are those railroads who have annual operating revenues of $20 million per year or less. Hazardous material shippers or contractors that meet this income level will also be considered as small entities. FRA is using this definition of small entity for this rulemaking. FRA believes that approximately 640 small railroads would be minimally impacted by train horn sound level testing requirements contained in this rule. In addition, some small businesses that operate along or nearby rail lines that currently have whistle bans in place that potentially may not after the implementation of this rule, could be moderately impacted. Alternative options for complying with this rule include allowing the train whistle to be blown. This alternative has no direct costs associated with it for the governmental jurisdiction. Other alternatives include “gates with median barriers” which are estimated to cost between $13,000 and $15,000 for simple installations; upgrade two-quadrant gate systems to four-quadrant gate systems at an estimated cost of $100,000-$300,000 plus annual maintenance costs of $2,500-$3,000; and “Photo enforcement” which is estimated to cost $28,000-$65,500 per crossing, and have annual maintenance costs of $6,600-$24,000 per crossing. Finally, FRA has not limited compliance to the lists provided in appendix A or appendix B of the rule. The rule provides for supplementary safety measures that might be unique or different. For such an alternative, an analysis would have to accompany the option that would demonstrate that the number of motorists that violate the crossing is equivalent or less than that of blowing the whistle. FRA intends to rely on the creativity of communities to formulate solutions which will work for that community.

FRA does not know how many small businesses are located within a distance of the affected highway-rail crossings where the noise from the whistle blowing could be considered to be a nuisance and bad for business. Concerns have been advanced by owners and operators of hotels, motels and some other establishments as a result of numerous town meetings and other outreach sessions in which FRA has participated during development of this rule. If supplementary safety measures are implemented to create a quiet zone then such small entities should not be impacted. FRA held 12 public hearings nationwide following issuance of the NPRM and requested comments to the docket from small businesses that feel they will be adversely impacted by the requirements contained in the NPRM. FRA received no comments in response.

C. Paperwork Reduction Act

The information collection requirements in these amendments to the final rule, which respond to petitions for reconsideration, have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and have been assigned OMB control no. 2130-0560. The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows:

BILLING CODE 4910-06-P

ER17AU06.000

ER17AU06.001

ER17AU06.002

BILLING CODE 4910-06-C

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Robert Brogan at 202-493-6292.

OMB is required to make a decision concerning the collection of information requirements contained in these amendments to the final rule between 30 and 60 days after publication of this document in the

Federal Register

.

FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA has obtained OMB control number 2130-0560 for the new information collection requirements resulting from the amendments to this rulemaking.

D. Environmental Impact

A Record of Decision has been prepared and is available in the public docket.

E. Federalism Implications

Executive Order 13132, entitled, “Federalism,” issued on August 4, 1999, requires that each agency “in a separately identified portion of the preamble to the regulation as it is to be issued in the

Federal Register

, provides to the Director of the Office of Management and Budget a Federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. * * *”

FRA has complied with E.O. 13132 in issuing this rule. FRA consulted extensively with State and local officials prior to issuance of the NPRM, and we have taken very seriously the concerns and views expressed by State and local officials as expressed in written comments and testimony at the various public hearings throughout the country. FRA staff provided briefings to many State and local officials and organizations during the comment period to encourage full public participation in this rulemaking. As discussed earlier in this preamble, because of the great interest in this subject throughout various areas of the country, FRA was involved in an extensive outreach program to inform communities which presently have whistle bans of the effect of the Act and the regulatory process. Since the passage of the Act, FRA headquarters and regional staff have met with a large number of local officials. FRA also held a number of public meetings to discuss the issues and to receive information from the public. In addition to local citizens, both local and State officials attended and participated in the public

meetings. Additionally, FRA took the unusual step of establishing a public docket before formal initiation of rulemaking proceedings in order to enable citizens and local officials to comment on how FRA might implement the Act and to provide insight to FRA. FRA received comments from representatives of Portland, Maine; Maine Department of Transportation; Acton, Massachusetts; Wisconsin's Office of the Commissioner of Railroads; a Wisconsin State representative; a Massachusetts State senator; the Town of Ashland, Massachusetts; Bellevue, Iowa; and the mayor of Batavia, Illinois.

Since passage of the Act in 1994, FRA has consulted and briefed representatives of the American Association of State Highway and Transportation Officials (AASHTO), the National League of Cities, National Association of Regulatory Utility Commissioners, National Conference of State Legislatures, and others. Additionally we have provided extensive written information to all United States Senators and a large number of Representatives with the expectation that the information would be shared with interested local officials and constituents.

Prior to issuance of the NPRM, FRA had been in close contact with, and has received many comments from Chicago area municipal groups representing suburban areas in which, for the most part, locomotive horns are not routinely sounded. The Chicago area Council of Mayors, which represents over 200 cities and villages with over four million residents outside of Chicago, provided valuable information to FRA as did the West Central Municipal Conference and the West Suburban Mass Transit District, both of suburban Chicago.

Another association of suburban Chicago local governments, the DuPage [County] Mayors and Managers Conference, provided comments and information. Additionally, FRA officials met with many Members of Congress, who have invited FRA to their districts and have provided citizens and local officials with the opportunity to express their views on this rulemaking process. These exchanges, and others conducted directly through FRA's regional crossing managers, have been very valuable in identifying the need for flexibility in preparing the revised Final Rule.

Under 49 U.S.C. 20106, issuance of this regulation preempts any State law, rule, regulation, order, or standard covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard, that is not incompatible with Federal law or regulation and does not unreasonably burden interstate commerce. For further discussion of the effect of this rule on State and local laws and ordinances, see § 222.7 and its accompanying discussion.

As noted, this rulemaking is required by 49 U.S.C. 20153. The statute both requires that the Department issue this rule and sets out clear guidance as to the structure of such rule. The statute clearly and unambiguously requires the Department to issue rules requiring locomotive horns to be sounded at every public grade crossing. The Department has no discretion as to this aspect of the rule. The statute also makes clear that the Federal government must have a leading role in establishing the framework for providing exceptions to the requirement that horns sound at every public crossing. While some States and communities expressed opposition to Federal involvement in this area which historically has been subject to State regulation, the majority of State and local community commenters recognized and accepted the statutorily required Federal involvement. Of concern to many of these commenters, however, was the issue as to whether States or local communities should have primary responsibility for creation of quiet zones. As further discussed in the section-by-section analysis regarding “Who may establish a quiet zone?”, States generally felt that they should have a primary role in establishing quiet zones and in administering a quiet zone. Comments from local governments tended to support the contrary view that local political subdivisions should establish quiet zones. A review of 49 U.S.C. 20153 indicates a clear Congressional preference that decision-makers be local authorities. This revised Final Rule provides non-Federal parties extensive involvement in decision-making pertaining to the creation of quiet zones. Through issuance of the Final Rule, FRA increased the role of States in creation of quiet zones and provided more opportunities for non-Federal parties, including States to have input in decisions made regarding creation and termination of quiet zones. However, given the nature of the competing interests of State and local governments in this area, FRA could not fully meet the concerns of both groups. For the reasons detailed in the section-by-section analyses of the Interim Final Rule, the Final Rule, and these Final Rule amendments, FRA asserts that the concerns of local communities have been substantially met.

F. Compliance With the Unfunded Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Unfunded Mandates Reform Act section 201, 2 U.S.C. 1531 (1995). Section 202 of the Unfunded Mandates Reform Act further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation)[currently $120,700,000] in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement * * *” detailing the effect on State, local and tribal governments and the private sector. The rule issued today will not result in the expenditure, in the aggregate, of $120,700,000 or more in any one year, and thus preparation of a statement is not required.

G. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the

Federal Register

) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this revised Final Rule in accordance with Executive Order 13211 and has determined that this revised Final Rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a

“significant energy action” within the meaning of Executive Order 13211.

6. Privacy Act Statement

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment), if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (volume 65, Number 70; Pages 19477-78) or you may visit

http://dms.dot.gov.

List of Subjects

49 CFR Part 222

Administrative practice and procedure, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 229

Locomotives, Penalties, Railroad safety.

In consideration of the foregoing, FRA is amending chapter II, subtitle B of title 49, Code of Federal Regulations as follows:

1. Part 222 is revised to read as follows:

PART 222—USE OF LOCOMOTIVE HORNS AT PUBLIC HIGHWAY-RAIL GRADE CROSSINGS

Subpart A—General

Sec.

222.1

What is the purpose of this regulation?

222.3

What areas does this regulation cover?

222.5

What railroads does this regulation apply to?

222.7

What is this regulation's effect on State and local laws and ordinances?

222.9

Definitions.

222.11

What are the penalties for failure to comply with this regulation?

222.13

Who is responsible for compliance?

222.15

How does one obtain a waiver of a provision of this regulation?

222.17

How can a State agency become a recognized State agency?

Subpart B—Use of Locomotive Horns

222.21

When must a locomotive horn be used?

222.23

How does this regulation affect sounding of a horn during an emergency or other situations?

222.25

How does this rule affect private highway-rail grade crossings?

222.27

How does this rule affect pedestrian grade crossings?

Subpart C—Exceptions to the Use of the Locomotive Horn

222.31

[Reserved]

Silenced Horns at Individual Crossings

222.33

Can locomotive horns be silenced at an individual public highway-rail grade crossing which is not within a quiet zone?

Silenced Horns at Groups of Crossings—Quiet Zones

222.35

What are minimum requirements for quiet zones?

§ 222.37

Who may establish a quiet zone?

§ 222.38

Can a quiet zone be created in the Chicago Region?

§ 222.39

How is a quiet zone established?

§ 222.41

How does this rule affect Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones?

§ 222.42

How does this rule affect Intermediate Quiet Zones and Intermediate Partial Quiet Zones?

§ 222.43

What notices and other information are required to create or continue a quiet zone?

§ 222.45

When is a railroad required to cease routine sounding of locomotive horns at crossings?

§ 222.47

What periodic updates are required?

§ 222.49

Who may file Grade Crossing Inventory Forms?

§ 222.51

Under what conditions will quiet zone status be terminated?

§ 222.53

What are the requirements for supplementary and alternative safety measures?

§ 222.55

How are new supplementary or alternative safety measures approved?

§ 222.57

Can parties seek review of the Associate Administrator's actions?

§ 222.59

When may a wayside horn be used?

Appendix A to Part 222—Approved Supplementary Safety Measures

Appendix B to Part 222—Alternative Safety Measures

Appendix C to Part 222—Guide to Establishing Quiet Zones

Appendix D to Part 222—Determining Risk Levels

Appendix E to Part 222—Requirements for Wayside Horns

Appendix F to Part 222—Diagnostic Team Considerations

Appendix G to Part 222—Schedule of Civil Penalties

Authority:

28 U.S.C. 2461, note; 49 U.S.C. 20103, 20107, 20153, 21301, 21304; 49 CFR 1.49.

Subpart A—General

§ 222.1

What is the purpose of this regulation?

The purpose of this part is to provide for safety at public highway-rail grade crossings by requiring locomotive horn use at public highway-rail grade crossings except in quiet zones established and maintained in accordance with this part.

§ 222.3

What areas does this regulation cover?

(a) This part prescribes standards for sounding locomotive horns when locomotives approach and pass through public highway-rail grade crossings. This part also provides standards for the creation and maintenance of quiet zones within which locomotive horns need not be sounded.

(b) 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.

(c) This part does not apply to any Chicago Region highway-rail grade crossing 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.

§ 222.5

What railroads does this regulation apply to?

This part applies to all railroads except:

(a) A railroad that exclusively operates freight trains only on track which is not part of the general railroad system of transportation;

(b) 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 highway-rail grade crossings; and

(c) Rapid transit operations within an urban area that are not connected to the general railroad system of transportation. See 49 CFR part 209, appendix A for the definitive statement of the meaning of the preceding sentence.

§ 222.7

What is this regulation's effect on State and local laws and ordinances?

(a) Except as provided in paragraph (b) of this section, issuance of this part preempts any State law, rule, regulation, or order governing the sounding of the locomotive horn at public highway-rail grade crossings, in accordance with 49 U.S.C. 20106.

(b) This part does not preempt any State law, rule, regulation, or order governing the sounding of locomotive audible warning devices at any highway-rail grade crossing described in § 222.3(c) of this part.

(c) Except as provided in §§ 222.25 and 222.27, this part does not preempt any State law, rule, regulation, or order governing the sounding of locomotive horns at private highway-rail grade crossings or pedestrian crossings.

(d) Inclusion of SSMs and ASMs in this part or approved subsequent to issuance of this part does not constitute federal preemption of State law regarding whether those measures may be used for traffic control. Individual

states may continue to determine whether specific SSMs or ASMs are appropriate traffic control measures for that State, consistent with Federal Highway Administration regulations and the MUTCD. However, except for the SSMs and ASMs implemented at highway-rail grade crossings described in § 222.3(c) of this part, inclusion of SSMs and ASMs in this part does constitute federal preemption of State law concerning the sounding of the locomotive horn in relation to the use of those measures.

(e) Issuance of this part does not constitute federal preemption of administrative procedures required under State law regarding the modification or installation of engineering improvements at highway-rail grade crossings.

§ 222.9

Definitions.

As used in this part—

Administrator

means the Administrator of the Federal Railroad Administration or the Administrator's delegate.

Alternative safety measures (ASM)

means a safety system or procedure, other than an SSM, established in accordance with this part which is provided by the appropriate traffic control authority or law enforcement authority and which, after individual review and analysis by the Associate Administrator, is determined to be an effective substitute for the locomotive horn in the prevention of highway-rail casualties at specific highway-rail grade crossings. Appendix B to this part lists such measures.

Associate Administrator

means the Associate Administrator for Safety of the Federal Railroad Administration or the Associate Administrator's delegate.

Channelization device

means a traffic separation system made up of a raised longitudinal channelizer, with vertical panels or tubular delineators, 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 the MUTCD, 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.

Chicago Region

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

Crossing Corridor Risk Index

means a number reflecting a measure of risk to the motoring public at public grade crossings along a rail corridor, calculated in accordance with the procedures in appendix D of this part, representing the average risk at each public crossing within the corridor. This risk level is determined by averaging among all public crossings within the corridor, the product of the number of predicted collisions per year and the predicted likelihood and severity of casualties resulting from those collisions at each public crossing within the corridor.

Diagnostic team

as used in this part, means a group of knowledgeable representatives of parties of interest in a highway-rail grade crossing, organized by the public authority responsible for that crossing, who, using crossing safety management principles, evaluate conditions at a grade crossing to make determinations or recommendations for the public authority concerning safety needs at that crossing.

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.

FRA

means the Federal Railroad Administration.

Grade Crossing Inventory Form

means the U.S. DOT National Highway-Rail Grade Crossing Inventory Form, FRA Form F6180.71. This form is available through the FRA's Office of Safety, or on FRA's Web site at

http://www.fra.dot.gov.

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.

Locomotive

means a piece of on-track equipment other than hi-rail, specialized maintenance, or other similar equipment—

(1) With one or more propelling motors designed for moving other equipment;

(2) With one or more propelling motors designed to carry freight or passenger traffic or both; or

(3) Without propelling motors but with one or more control stands.

Locomotive audible warning device

means a horn, whistle, siren, or bell affixed to a locomotive that is capable of producing an audible signal.

Locomotive horn

means a locomotive air horn, steam whistle, or similar audible warning device (see 49 CFR 229.129) mounted on a locomotive or control cab car. The terms “locomotive horn”, “train whistle”, “locomotive whistle”, and “train horn” are used interchangeably in the railroad industry. For purposes of this part, locomotive horns used in rapid transit operations must be suitable for street usage and/or designed in accordance with State law requirements.

Median

means the portion of a divided highway separating the travel ways for traffic in opposite directions.

MUTCD

means the Manual on Uniform Traffic Control Devices published by the Federal Highway Administration.

Nationwide Significant Risk Threshold

means a number reflecting a measure of risk, calculated on a nationwide basis, which reflects the average level of risk to the motoring public at public highway-rail grade crossings equipped with flashing lights and gates and at which locomotive horns are sounded. For purposes of this rule, a risk level above the Nationwide Significant Risk Threshold represents a significant risk with respect to loss of life or serious personal injury. The Nationwide Significant Risk Threshold is calculated in accordance with the procedures in appendix D of this part.

Unless otherwise indicated, references in this part to the Nationwide Significant Risk Threshold reflect its level as last published by FRA in the

Federal Register

.

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 or an Intermediate Partial Quiet Zone.

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 are used at locations where highway speeds do not exceed 40 miles per hour and 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.

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 grade crossing

means, for purposes of this part, a separate designed 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 grade crossings.

Power-out indicator

means a device which is capable of indicating to trains approaching a grade crossing equipped with an active warning system whether commercial electric power is activating the warning system at that crossing. This term includes remote health monitoring of grade crossing warning systems if such monitoring system is equipped to indicate power status.

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 of this part. The calculation of risk reduction credit for qualifying pre-existing SSMs is addressed in appendix 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.

Pre-Rule 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, 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.

Private highway-rail grade crossing

means, for purposes of this part, a highway-rail grade crossing which is not a public highway-rail grade crossing.

Public authority

means the public entity responsible for traffic control or law enforcement at the public highway-rail grade or pedestrian crossing.

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.

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.

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.

Railroad

means any form of non-highway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including:

(1) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and

(2) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.

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. With respect to 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.

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.

Supplementary safety measure

(SSM) means a safety system or procedure established in accordance with this part which is provided by the appropriate traffic control authority or law enforcement authority responsible for safety at the highway-rail grade crossing, that is determined by the Associate Administrator to be an effective substitute for the locomotive horn in the prevention of highway-rail casualties. Appendix A of this part lists such SSMs.

Waiver

means a temporary or permanent modification of some or all of the requirements of this part as they apply to a specific party under a specific set of facts. Waiver does not refer to the process of establishing quiet zones or approval of quiet zones in accordance with the provisions of this part.

Wayside horn

means a stationary horn located at a highway rail grade crossing, designed to provide, upon the approach of a locomotive or train, audible warning to oncoming motorists of the approach of a train.

§ 222.11

What are the penalties for failure to comply with this regulation?

Any person who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of least $550 and not more than $11,000 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $27,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Any person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. Appendix G of this part contains a schedule of civil penalty amounts used in connection with this part.

§ 222.13

Who is responsible for compliance?

Any person, including but not limited to a railroad, contractor for a railroad, or a local or State governmental entity that performs any function covered by this part, must perform that function in accordance with this part.

§ 222.15

How does one obtain a waiver of a provision of this regulation?

(a) Except as provided in paragraph (b) of this section, two parties must jointly file a petition (request) for a waiver. They are the railroad owning or controlling operations over the railroad tracks crossing the public highway-rail grade crossing and the public authority which has jurisdiction over the roadway crossing the railroad tracks.

(b) If the railroad and the public authority cannot reach agreement to file a joint petition, either party may file a request for a waiver; however, the filing party must specify in its petition the steps it has taken in an attempt to reach agreement with the other party, and explain why applying the requirement that a joint submission be made in that instance 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 joint submission and accept the petition for consideration. The filing party must also provide the other party with a copy of the petition filed with FRA.

(c) Each petition for waiver must be filed in accordance with 49 CFR part 211.

(d) If the Administrator finds that a waiver of compliance with a provision of this part is in the public interest and consistent with the safety of highway and railroad users, the Administrator may grant the waiver subject to any conditions the Administrator deems necessary.

§ 222.17

How can a State agency become a recognized State agency?

(a) Any 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 that contains:

(1) A detailed description of the proposed scope of involvement in the quiet zone development process;

(2) The name, address, and telephone number of the person(s) who may be contacted to discuss the State agency application; and

(3) A statement from State agency counsel which affirms that the State agency is authorized to undertake the responsibilities proposed in its application.

(b) The Associate Administrator will approve the application if, in the Associate Administrator's judgment, the proposed scope of State agency involvement will facilitate safe and effective quiet zone development. The Associate Administrator may include in any decision of approval such conditions as he/she deems necessary and appropriate.

Subpart B—Use of Locomotive Horns

§ 222.21

When must a locomotive horn be used?

(a) Except as provided in this part, the locomotive horn on the lead locomotive of a train, lite locomotive consist, individual locomotive or lead cab car shall be sounded when such locomotive or lead cab car is approaching a public highway-rail grade crossing. Sounding of the locomotive horn with two long blasts, one short blast and one long blast shall be initiated at a location so as to be in accordance with paragraph (b) of this section and shall be repeated or prolonged until the locomotive occupies the crossing. This pattern may be varied as necessary where crossings are spaced closely together.

(b)(1) Railroads to which this part applies shall comply with all the requirements contained in this paragraph (b) beginning on December 15, 2006. On and after June 24, 2005, but prior to December 15, 2006, a railroad shall, at its option, comply with this section or shall sound the locomotive horn in the manner required by State law, or in the absence of State law, in the manner required by railroad operating rules in effect immediately prior to June 24, 2005.

(2) Except as provided in paragraphs (b)(3) and (d) of this section, or when the locomotive horn is defective and the locomotive is being moved for repair consistent with section 229.9 of this chapter, the locomotive horn shall begin to be sounded at least 15 seconds, but no more than 20 seconds, before the locomotive enters the crossing. It shall not constitute a violation of this section if, acting in good faith, a locomotive engineer begins sounding the locomotive horn not more than 25 seconds before the locomotive enters the crossing, if the locomotive engineer is unable to precisely estimate the time of arrival of the train at the crossing for whatever reason.

(3) Trains, locomotive consists and individual locomotives traveling at

speeds in excess of 60 mph shall not begin sounding the horn more than one-quarter mile (1,320 feet) in advance of the nearest public highway-rail grade crossing, even if the advance warning provided by the locomotive horn will be less than 15 seconds in duration.

(c) As stated in § 222.3(c) of this part, this section does not apply to any Chicago Region highway-rail grade crossing at which 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.

(d) Trains, locomotive consists and individual locomotives that have stopped in close proximity to a public highway-rail grade crossing may approach the crossing and sound the locomotive horn for less than 15 seconds before the locomotive enters the highway-rail grade crossing, if the locomotive engineer is able to determine that the public highway-rail grade crossing is not obstructed and either:

(1) The public highway-rail grade crossing is equipped with automatic flashing lights and gates and the gates are fully lowered; or

(2) There are no conflicting highway movements approaching the public highway-rail grade crossing.

(e) Where State law requires the sounding of a locomotive audible warning device other than the locomotive horn at public highway-rail grade crossings, that locomotive audible warning device shall be sounded in accordance with paragraphs (b) and (d) of this section.

§ 222.23

How does this regulation affect sounding of a horn during an emergency or other situations?

(a)(1) Notwithstanding any other provision of this part, a locomotive engineer may sound the locomotive horn to provide a warning to animals, vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the locomotive engineer's sole judgment, such action is appropriate in order to prevent imminent injury, death, or property damage.

(2) Notwithstanding any other provision of this part, including provisions addressing the establishment of a quiet zone, limits on the length of time in which a horn may be sounded, or installation of wayside horns within quiet zones, this part does not preclude the sounding of locomotive horns in emergency situations, nor does it impose a legal duty to sound the locomotive horn in such situations.

(b) Nothing in this part restricts the use of the locomotive horn in the following situations:

(1) When a wayside horn is malfunctioning;

(2) When active grade crossing warning devices have malfunctioned and use of the horn is required by one of the following sections of this chapter: §§ 234.105, 234.106, or 234.107;

(3) When grade crossing warning systems are temporarily out of service during inspection, maintenance, or testing of the system; or

(4) When SSMs, modified SSMs or engineering SSMs no longer comply with the requirements set forth in appendix A of this part or the conditions contained within the Associate Administrator's decision to approve the quiet zone in accordance with section 222.39(b) of this part.

(c) Nothing in this part restricts the use of the locomotive horn for purposes other than highway-rail crossing safety (e.g., to announce the approach of a train to roadway workers in accordance with a program adopted under part 214 of this chapter, or where required for other purposes under railroad operating rules).

§ 222.25

How does this rule affect private highway-rail grade crossings?

This rule does not require the routine sounding of locomotive horns at private highway-rail grade crossings. However, where State law requires the sounding of a locomotive horn at private highway-rail grade crossings, the locomotive horn shall be sounded in accordance with § 222.21 of this part. Where State law requires the sounding of a locomotive audible warning device other than the locomotive horn at private highway-rail grade crossings, that locomotive audible warning device shall be sounded in accordance with §§ 222.21(b) and (d) of this part.

(a) Private highway-rail grade crossings located within the boundaries of a quiet zone must be included in the quiet zone.

(b)(1) Private highway-rail grade crossings that are located in New Quiet Zones or New Partial Quiet Zones and allow access to the public, or which provide access to active industrial or commercial sites, must be evaluated by a diagnostic team and equipped or treated in accordance with the recommendations of such diagnostic team.

(2) 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 highway-rail grade crossings.

(c)(1) At a minimum, each approach to every private highway-rail grade crossing within a New Quiet Zone or New Partial Quiet Zone shall be marked by a crossbuck and a “STOP” sign, which are compliant with MUTCD standards unless otherwise prescribed by State law, and shall be equipped with advance warning signs in compliance with § 222.35(c) of this part.

(2) At a minimum, each approach to every private highway-rail grade crossing within a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone shall, by June 24, 2008, be marked by a crossbuck and a “STOP” sign, which are compliant with MUTCD standards unless otherwise prescribed by State law, and shall be equipped with advance warning signs in compliance with § 222.35(c) of this part.

§ 222.27

How does this rule affect pedestrian grade crossings?

This rule does not require the routine sounding of locomotive horns at pedestrian grade crossings. However, where State law requires the sounding of a locomotive horn at pedestrian grade crossings, the locomotive horn shall be sounded in accordance with § 222.21 of this part. Where State law requires the sounding of a locomotive audible warning device other than the locomotive horn at pedestrian grade crossings, that locomotive audible warning device shall be sounded in accordance with §§ 222.21(b) and (d) of this part.

(a) Pedestrian grade crossings located within the boundaries of a quiet zone must be included in the quiet zone.

(b) Pedestrian grade crossings that are located in New Quiet Zones or New Partial Quiet Zones must be evaluated by a diagnostic team and equipped or treated in accordance with the recommendations of such diagnostic team.

(c) The public authority shall provide the State agency responsible for grade crossing safety and all affected railroads an opportunity to participate in diagnostic team reviews of pedestrian grade crossings.

(d)

Advance warning signs.

(1) Each approach to every pedestrian grade 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. Such sign shall conform to the standards contained in the MUTCD.

(2) Each approach to every pedestrian grade 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 or that train horns are not

sounded at the crossing between the hours of 10 p.m. and 7 a.m., whichever is applicable. Such sign shall conform to the standards contained in the MUTCD.

(3) Each approach to every pedestrian grade 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. Such sign shall conform to the standards contained in the MUTCD.

(4) Each approach to every pedestrian grade 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 or that train horns are not sounded at the crossing for a specified period of time, whichever is applicable. Such sign shall conform to the standards contained in the MUTCD.

Subpart C—Exceptions to the Use of the Locomotive Horn

§ 222.31

[Reserved]

Silenced Horns at Individual Crossings

§ 222.33

Can locomotive horns be silenced at an individual public highway-rail grade crossing which is not within a quiet zone?

(a) A railroad operating over an individual public highway-rail crossing may, at its discretion, cease the sounding of the locomotive horn if the locomotive speed is 15 miles per hour o

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