[Congressional Record Volume 146, Number 53 (Wednesday, May 3, 2000)]
[House]
[Pages H2505-H2510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  FEDERAL RAILROAD ADMINISTRATION PROPOSED RULE ON USE OF LOCOMOTIVE 
                                 HORNS

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 1999, the gentleman from Illinois (Mr. Lipinski) is 
recognized for 60 minutes.
  Mr. LIPINSKI. Mr. Speaker, first of all, I want to congratulate the 
previous speaker in his special order. I thought he did a magnificent 
job in numerous areas. I am proud to have had the opportunity of 
sitting here and listening to him, and I certainly plan on supporting 
many of the pieces of legislation that he spoke about.
  Now, Mr. Speaker, I rise tonight to highlight a serious problem that 
all of America will soon experience. As early as next January, 
thousands of cities, towns, villages and hamlets will be deafened by 
the wail of a train whistle.
  That is right. If the Federal Railroad Administration's proposed rule 
on the sounding of locomotive horns at every highway rail crossing goes 
into effect, the ear-splitting sounds of train whistles will wake 
people at night and generally disrupt people's lives.
  Unfortunately, few Members of Congress know about the problem that 
confronts us. As mandated by the Swift Rail Act of 1994, the FRA came 
up with rules on train horns; and in January, the FRA came out with 
their proposed rule.
  While I understand that the rule is intended to save people's lives, 
the way in which the rule was written will severely impact millions of 
people in a very negative way.
  At this point, I would like to suspend my remarks and yield to one of 
my colleagues, the gentlewoman from Illinois (Ms. Schakowsky), and then 
I will resume my comments in regards to this matter.
  Ms. SCHAKOWSKY. Mr. Speaker, I want to thank the gentleman from 
Illinois (Mr. Lipinski) for the opportunity today to speak on this very 
important subject and raise my concerns about the Federal Railroad 
Administration's proposed rule on the use of locomotive horns.
  All of us, the Federal Railroad Administration and the gentleman from 
Illinois (Mr. Lipinski) and I, are very concerned about safety at 
railroad crossings. No one wants to see any more accidents involving 
trains and school buses full of children. However, the rule as written 
will cause undue harm in Northeastern Illinois and may even undermine 
safety.
  I had the opportunity to raise these concerns when the Federal 
Railroad Administration came to the Chicago land area to conduct four 
hearings, and I would like to reiterate some of the concerns that I 
raised and to point out that I think that there are other far less 
disruptive means to improve safety here.
  We have a long history of dealing with rail crossing safety issues. 
Over the past 12 years, injuries and fatalities

[[Page H2506]]

in Northeast Illinois have declined by over 60 percent. At the same 
time, the train traffic has increased by nearly 50 percent.
  As a result of cooperation between advocates and transportation 
officials, safety at rail crossings has dramatically increased. While 
more must be done, we are clearly headed in the right direction.
  The FRA's proposed rule would require mandatory whistleblowing at all 
grade-crossings unless significant upgrades are made. I believe there 
are several reasons why the FRA's proposed rule is not the appropriate 
approach for Northeast Illinois.
  First, there is the question of safety. Because of technological and 
cost impediments to the specific upgrades, the FRA's proposed rule 
would require mandatory whistleblowing in many areas.
  While it is clear that this would have a profound negative impact on 
quality of life in our area, there also remains serious questions as to 
whether whistleblowing actually reduces collisions.
  Many experts have pointed to what is called the ``Chicago anomaly'' 
where the data shows that there are actually fewer collisions at gated 
crossings where whistles are banned than where whistles are blown.
  The Chicago anomaly strongly suggests that at least there are 
alternatives that can better increase safety. Mandatory whistleblowing 
may actually undermine our efforts.
  Illinois is focusing its efforts and resources on addressing the most 
dangerous rail crossings based on safety records. The FRA approach 
would require expensive and time-consuming technological enhancement at 
all at-grade rail crossings even if safety records demonstrate no 
problems at those crossings. This would divert resources from making 
safety improvements at extremely dangerous crossings.
  I think we ought to take a very hard look at such a dramatic switch 
in strategies, particularly since the rules for upgrades may be 
unaffordable and unworkable.
  While all are committed to rail safety, there are wide discrepancies 
in the cost estimates of complying with the proposed rule. These 
concerns are legitimate.
  The FRA estimates that the cost of implementing this program 
nationwide would be $116 million. But the Chicago Area Transportation 
Study estimates that the true cost will be more than that in Illinois 
alone, a total in our State of $170 million to $234 million.
  We need to increase spending on rail safety. I want to commend my 
colleague the gentleman from Illinois (Mr. Lipinski) for his leadership 
on rail safety and his commitment to finding additional Federal 
resources to achieve that goal.
  I am proud to be a cosponsor of his legislation, H.R. 2060, the 
Railway Safety and Funding Equity Act of 1999, which would double 
Federal spending for State grade crossing programs. We will work hard 
to get the necessary funding, but we need to make sure that the 
resources are there.
  Even if we succeed in providing the needed resources, there are 
serious technological barriers to compliance with the FRA proposal. The 
first is time. The proposed rule gives communities now operating with 
whistle bans 2 to 3 years to adopt supplemental or alternative safety 
measures in order to avoid mandatory whistleblowing.
  We have nearly 1,000 at-grade rail crossings in Illinois that have 
whistle bans and would have to be physically ungraded within that very 
short time period in order to avoid lifting the bans. The Chicago Area 
Transportation Study, again, estimates that it would actually take 
about 10 years to accomplish this massive job.
  Unfortunately, the proposed rule does not provide adequate time to 
begin with, let alone allow flexibility for logistical delays.
  There is also a real suspicion that the required upgrades required in 
the proposed rule are impossible. For example, barriers along the side 
of roads that lead up to gated rail crossings would prevent cars from 
driving around the gates to cross the tracks, but they would also 
prevent snow blowing, a significant problem in an area like Chicago.
  Another example is the requirement of photo enforcement, which just 
happens to be illegal under Illinois State law.
  Quad gating is also illegal in the State because of the concern that 
otherwise law-abiding motorists may get trapped on the tracks by 
closing gates if we close all access to and from the tracks with quad 
gates.
  Last, but by no means least, I want to discuss what happens if we do 
not adopt alternatives to mandatory whistleblowing because of safety, 
technological, or cost issues.
  As I mentioned, 2.5 million people live within one quarter mile of 
rail crossings in Chicago, 75,000 in my own district. Children attend 
school near rail crossings. They would be subjected to repeated train 
whistleblowing at levels between 84 and 144 decibels at all hours of 
the day and night. Eighty-four decibels is well above the Illinois 
Department of Transportation's trigger for noise abatement procedures, 
and 144 decibels is above the pain threshold. Their lives would 
literally be disrupted.
  Given the ``Chicago anomaly'' and given the strong argument that 
Illinois can pursue alternative means to accomplish the same or even 
higher safety goals and given the fact that millions of people would be 
harmed, I believe that we have to find alternatives to the current rule 
as it is proposed.
  I think we need to revisit the rule, think of better solutions. And 
my sense from the Federal Railroad Administration is that there was 
some willingness to consider these alternatives.
  Such action, in conjunction with the passage of H.R. 2060, is what is 
needed to truly provide for improved safety and quality of life in my 
district throughout the State and throughout the Nation.
  Again, I thank the gentleman from Illinois (Mr. Lipinski) for his 
help on this important initiative.

                              {time}  1945

  Mr. LIPINSKI. Mr. Speaker, I thank the gentlewoman from Illinois (Ms. 
Schakowsky) for her superb statement. I have been working on this issue 
for a long time but there are several items that she made mention of in 
her statement that I was not aware of in regards to the four quadrant 
gates in Illinois and a couple of other things she made mention of. So 
I appreciate her contribution very much.


                             General Leave

  Mr. LIPINSKI. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks on the subject of this special order.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Illinois?
  There was no objection.
  Mr. LIPINSKI. Mr. Speaker, the gentlewoman from Illinois (Ms. 
Schakowsky) made mention of the hearings that took place.
  Let me interrupt myself for a moment once again. I see I have been 
joined here by my colleague, the gentleman from Illinois (Mr. Rush), 
and I would now like to yield to him.
  Mr. RUSH. Mr. Speaker, I certainly want to applaud commend and thank 
the gentleman from Illinois (Mr. Lipinski) for this special order. It 
is a very, very important special order and it is very timely.
  Mr. Speaker, requiring trains to blow horns at railroad crossings is 
not a bad idea, in theory. This small action may prevent accidents and 
it may prevent deaths at railroad crossings, but in practice the train 
whistle rule does not apply to my State of Illinois where railroad 
crossing accidents have decreased by 52 percent since 1989.
  Once enacted, the Railroad Administration rule requiring trains to 
sound their horns at all rail crossings will greatly reduce the quality 
of life for Illinois residents. We in Illinois have already succeeded 
in drastically reducing railroad crossing fatalities. In my district 
alone, nearly 200,000 residents will be affected by the whistle blowing 
rule and more than 66,000 of those residents, my residents, will be 
severely impacted. Of the approximately 2,000 crossings identified by 
the FRA, 899 are located in Illinois, putting my home State at a severe 
disadvantage when FRA finally enforces the whistle rule. Installing 
alternative safety measures that meet FRA requirements could cost 
Illinois an estimated $590 million, which will require right-away 
acquisitions and other infrastructure improvements in order to put 
these, quote,

[[Page H2507]]

quiet zones, end quote, measures into place.
  In short, Mr. Speaker, to comply with the FRA rule, which is not 
needed in Illinois, our constituents must pay either with the loss of 
peace and quiet, sleep and rest, or with the loss of their tax dollars. 
Certainly we in Illinois want to save lives and we have saved lives. 
There is no question about this, but we must address this issue 
regionally. Illinois should be left to handle railroad crossing safety 
on its own.
  The numbers clearly show what we are doing is working. Why fix it? It 
is not broke.
  Mr. LIPINSKI. Mr. Speaker, I thank the gentleman from Illinois (Mr. 
Rush) for his comments. I appreciate his contribution to our special 
order. He certainly was right on target. I hope that we will be joined 
later by a few more Members from Illinois and from other parts of the 
country but in light of the fact that I am the only other speaker I 
will start again.

  As I mentioned, and the gentleman from Illinois (Mr. Rush) mentioned 
and the gentlewoman from Illinois (Ms. Schakowsky), there were four 
hearings held in Chicago and to show how much this affects the City of 
Chicago and the Chicago-land area, there were 12 hearings held 
nationwide. Four of the 12 hearings were held within the Chicago-land 
area. The hearings were attended by the Federal Railroad administrator, 
Administrator Jolene Molitoris, and we certainly appreciate that but 
that once again shows how significant she thinks the Chicago-land area 
will be affected by this notice of proposed rulemaking.
  The four hearings in Chicago were extremely well attended. Over 200 
people testified in opposition to this rule as it is constituted at the 
present time. I do want to say that the Federal Railroad 
Administration, underneath the leadership of the administrator, has 
been very understanding, has been very cooperative, because they 
recognize the huge impact this rule has on the City of Chicago, the 
County of Cook, the surrounding counties and the State of Illinois.
  I would like to mention this law, when it was passed back in 1992, it 
was a law that was not debated in the House. It was not passed in the 
House. It was not debated in the Senate. It was not passed in the 
Senate. It was placed in a conference report on another bill. It became 
known as the Swift Rail Act, but this was not a bill that went through 
the normal process that we have here on Capitol Hill. It was put in, as 
I say, in conference. It was under the jurisdiction of the Committee on 
Commerce at the time. Now it is under the jurisdiction of the Committee 
on Transportation and Infrastructure.
  Now, as I say, this was passed back in 1992. In 1995, I did get an 
amendment put on an FRA bill that granted communities one year to 
implement this in the event this rule came down. Fortunately, the 
Federal Railroad Administration did extend that to 2 or 3 years, that 
would be 2 to 3 years from January of 2000 when this notice of proposed 
rulemaking was announced.
  Now, Chicago, as I mentioned earlier, is very unique. It is unique 
because it is the center of the railroad industry in North America, has 
been probably since the time the first railroad train pulled in to 
Chicago. That is good and it is bad. It is very good because it creates 
a lot of jobs, it creates a lot of economic development in the City of 
Chicago. It is bad because it causes us to have an enormous number of 
grade crossings within the Chicago-land area.
  Illinois has 899 whistle bans as allowed under the Illinois Commerce 
Commission, which is almost half of all the whistle bans in the United 
States of America. In fact, it comes down to being 46 percent of all 
the grade crossings in this country that will be affected by this rule 
are within the State of Illinois. Of those 899 grade crossings, 780 of 
those are located within the six counties that make up the Chicago-land 
area; 355 of those are within the City of Chicago itself. The new 
proposed rule will give these communities only, as I mentioned earlier, 
2 to 3 years to come up with supplemental safety measures.
  Now I believe that it is absolutely necessary that the Federal 
Railroad Administration grant us a minimum of 10 years to implement 
what they want this rule to implement. As the rule is presently 
constituted, we need at least 10 years to implement this rule because 
it is going to cost an enormous amount of money in the State of 
Illinois. On top of that, it is highly questionable whether or not the 
equipment can be manufactured quickly enough and it can be installed by 
railroad crews that have to install it in a 2 to 3 year period of time. 
All the estimates that I have received say it is going to take 
financially and equipment-wise and installation-wise at least 10 years 
to do it, underneath the present rule.
  Now 64 percent of all Illinois population live within one mile of 
public highway crossings, 64 percent. Forty-six percent of all 
residents of Illinois will be severely negatively impacted by this 
rule. That comes directly from the Federal Railroad Administration.
  Yet in Illinois, collisions at public grade crossings have declined 
by 52 percent since 1989. In northeastern Illinois, injuries have 
declined by 70 percent. In northeastern Illinois, fatalities have 
declined by 65 percent. So obviously Illinois is doing a great deal 
right when it comes to railroad safety.
  The FRA states that 177,000 people in Illinois would be impacted by 
the rule, of which 74,000 would be severely impacted. The Chicago area 
transportation study estimates that 1,644,000 people in Illinois would 
be impacted, of which over 1 million people would be severely impacted 
by this rule.
  The FRA estimates the cost at $116 million for whistle-ban 
communities, based on assumptions that every community will install the 
lowest cost alternatives to whistles. The Chicago area transportation 
study estimates the cost of a reality-based alternative to be between 
$440 million and $590 million for whistle-ban communities. That is an 
awful lot of money. Illinois will spend $95 million in the year 2000 
making improvements at roughly 200 crossings. If the proposed rule goes 
into effect, the State of Illinois will be forced to spend money at an 
already safe crossing instead of at bad crossings in down-state 
Illinois which account for only 1.5 percent of daily traffic but 33 
percent of the accidents and 40 percent of the fatalities in Illinois.
  The FRA's analysis indicates that whistle-ban crossings, without 
gates, are the biggest danger to the public and are the primary targets 
for this proposed rule. Since 77 percent of the crossings in northeast 
Illinois have gates and all of the whistle bans in northeast Illinois 
have gates, why should northeastern Illinois be a target of this one-
size-fits-all rule?
  The FRA study admits to an anomaly in the Chicago area, as the 
gentlewoman from Illinois (Ms. Schakowsky) mentioned, where collisions 
were 16 percent less frequent. The FRA claims it was caused by an 
outdated inventory of crossings, but using a complete inventory of 
crossings and FRA methodology CAT still found, that is the Chicago area 
transportation study, they still found that the collisions are 4.5 
percent less frequent at whistle-ban crossings.
  Now we have made, I think, significant progress with the Federal 
Railroad Administration in modifying the rule they were originally 
going to propose a number of years ago. We cannot negotiate with the 
Federal Railroad Administration until the first part of next month 
because up until the close of the comment period they are prohibited by 
law from negotiating.

                              {time}  2000

  Administrator Molitoris, I believe, is open to further compromise. I 
think that this is going to be absolutely necessary, because there are 
a number of people here in the House who do not believe that this law 
is needed at all, particularly not in the State of Illinois, where the 
State of Illinois is doing such a significant job. If we do not get 
significant compromise out of the Federal Railroad Administration, I 
believe that there will be a move afoot to repeal this law entirely.
  As I mentioned earlier, I believe it is imperative that we get at 
least 10 years to implement this rule, with further modifications, not 
where we have to put up four gates, but where two gates will definitely 
be acceptable to the Federal railroad administration.
  Right now approximately $150 million is spent each year in this 
country by the Federal Government on upgrading railroad crossings. With 
this rule going into effect, there is going to be a much greater need 
for funds from the

[[Page H2508]]

Federal Government, as well as funds from state governments and from 
local municipalities.
  I have a bill at the present time that I have introduced that would 
bring in approximately $160 million more each year to the Federal 
Government for upgrading grade crossings. That bill takes the 4.3 cents 
that railroads now pay on their diesel fuel tax that goes to deficit 
reduction. Based upon all of the statements that I hear out here in 
Washington throughout the country, we no longer have a deficit in this 
country, we have a significant surplus in this country, so I do not 
believe that we should be taking the 4.3 cents that the railroads pay 
for deficit reduction any longer and putting it into the general 
revenue of this country.
  I believe that we should take that 4.3 cents and put it into a trust 
fund to upgrade rail crossings in this country. As I say, it would 
increase the total amount available to over $300 million. We would 
certainly have to add a portion from the state and a portion from the 
local municipalities, something like 75 percent from the Federal 
Government, 15 percent from the state, or 20 percent from the state and 
5 percent from the local municipalities. This money thereby would be 
helping out railroads, it would be helping out citizens, it would be 
helping out safety in this country.
  I would also like to say that this rule, I understand, originally was 
passed into law because the railroads were interested in reducing their 
liability as much as possible. I can understand that, I can appreciate 
that, but, because of that, I think it would be wise for the railroads 
to join in supporting my bill that would utilize their 4.3 cents now 
routed for deficit reduction, which apparently we no longer need it 
for, to upgrade rail crossings. I would also say part of my bill would 
say that when we pass the next highway transportation bill in this 
Congress, which will be in 3 or 4 years, that the 4.3 cents would 
revert back to the railroads and they would no longer have to be paying 
it.
  Mr. Speaker, in conclusion, I want to thank all the Members that have 
spoken here this evening. I want to thank the individuals who have 
submitted statements for the record, particularly the Speaker of the 
House. This is an enormous problem for the country, but it is a 
gigantic problem for the State of Illinois, and particularly for 
Northeastern Illinois. The money is not available, the time is not 
available, the resources are not available to do what the Federal 
Railroad Administration wants us to do underneath the existing rule.
  On top of that, Northeastern Illinois probably has done more and the 
State of Illinois has probably done more than any state in the union to 
upgrade railroad safety. We simply must have this rule amended so that 
many of the very worthwhile things that have been done by the State of 
Illinois and Northeastern Illinois will suffice as far as the Federal 
railroad administration is concerned to bring us up to a superb safety 
standard.
  Certainly we do not want to see anyone lose their life at a grade 
crossing, but I think that we in Illinois have done an outstanding job 
in resolving this problem, and if we can get some further help from the 
Federal Government in regard to funding, I think that we will even do a 
better job.
  Mr. HASTERT. Mr. Speaker, I thank the gentleman from Illinois (Mr. 
Lipinski) for arranging a special order today on the preservation of 
rail safety in the State of Illinois. I would also like to thank the 
gentleman for his continued work on rail safety throughout the nation, 
and his efforts over the last several years in making sure that any 
proposed rule on the use of locomotive horns does not adversely affect 
rail safety in Illinois.
  Mr. Speaker, I rise today to speak on behalf of rail safety in the 
State of Illinois and the potentially adverse impacts of the recent 
Federal Railroad Administration's (FRA) Proposed Rulemaking on the Use 
of Locomotive Horns at Highway-Rail Grade Crossings.
  As the Representative of the 14th District of Illinois, which covers 
portions of five counties and contains approximately 18% of all highway 
public-at-grade crossings in the state, I have intently followed this 
issue since I was first elected to Congress, and have witnessed 
firsthand Illinois' history with mandatory whistles. In fact, when the 
Illinois Legislature passed a mandatory whistle law in 1988, it met 
with such intense public backlash that it resulted in a court order to 
stop the whistles.
  On January 12, 2000, the FRA published their Proposed Rule which will 
require all freight and passenger trains to sound the train's air horn 
when approaching and entering a public at-grade highway-rail crossing. 
According to the proposed rule, each train horn must be sounded with a 
series of two long, one short, and one long horn blasts to signify the 
locomotive's approach to a crossing. The timing is a combination of 
state laws with minimum federal requirements.
  There is currently no federal law requiring horn sounding, however 
many states, including Illinois, currently require trains to sound 
their horns at all public at-grade crossings unless specifically 
exempted by the Illinois Commerce Commission (ICC). The grade crossings 
in Northeast Illinois that currently do not have air horns routinely 
sounded may have them sounded every time a train approaches a grade 
crossing if the new regulations are put into place. This occurs up to 
140 times a day at the region's busiest grade crossings, and, at 66 of 
the crossings in Northeast Illinois, 101 or more trains per day pass 
through. Within my district, Auroa (50, Elgin (25) and West Chicago 
(22) rank #2, #11, and #14 respectively in the number of grade 
crossings per city in the state. In fact, should this rule go into 
effect as drafted, 80 of 148 crossings in DuPage County alone would 
have to change operating practices. Thus, the direct impact on 
Illinois, and the unique nature of the state with respect to this issue 
is clear.

  In Illinois, rail safety is the responsibility of the ICC, which may 
exempt crossings from routine horn sounding if they have automatic 
flashing lights, bells and gates and have experienced less than three 
accidents in the past five years. The state of Illinois currently has 
899 whistle ban rail crossings.
  Mr. Speaker, the history of increased rail safety in Illinois is a 
proud one. Illinois has a proven program of substantially improving 
rail crossing safety at an annual average cost of approximately $40 
million. In 1998 alone, the state of Illinois spent over $60 million on 
grade crossing improvements. In fact, between the ICC and Illinois 
Department of Transportation (IDOT), Illinois has invested hundreds of 
millions of dollars over the years to install modern safety devices at 
grade crossings throughout the state. Illinois is also well along in a 
program to install innovative remote monitoring devices at every active 
grade crossing (Illinois is the only state where this is happening).
  I am pleased to report that these investments in safety have paid 
off. In Illinois, collisions at public grade crossings have declined by 
52% since 1989. In Northeast Illinois, injuries have declined by 77% 
and fatalities have declined from 26 in 1988 to 9 in 1997, a 65% 
decrease. The large rate of decline is more impressive when you 
consider that between 1980 and 1999, train traffic and average vehicle 
miles traveled by motor vehicles, have both increased by approximately 
45%. My primary concern with the FRA's proposed rule is that it would 
preempt the responsibility of the ICC, which has a demonstrated history 
of improving grade crossing safety. In fact, I am concerned that the 
proposed rule could have the unintended consequence of decreasing rail 
safety in the State of Illinois.
  As you are well aware, Mr. Speaker, the State of Illinois is the hub 
of rail activity in North America. Nowhere is the issue of rail safety 
more important. Citizens of Illinois appreciate the need for, and 
support efforts to, increase rail safety. The question addressed by 
this proposed rule, therefore, is not whether we should try to decrease 
the number of rail collisions, we can all agree on that, but how this 
can be best accomplished.
  People in Northeast Illinois are constantly reminded of the need for 
rail safety. In the last several years, Illinois has suffered several 
high profile accidents, most notably in Bradley-Bourbannais and Fox 
River Grove. Both of these tragic accidents resulted in significant 
loss of life, and the people of Illinois are committed to making these 
tragedies a thing of the past. It should be noted for the record, 
however, that none of these accidents can be attributed to the lack of 
a horn being sounded.
  As I stated earlier, we can all agree that increasing rail safety is 
a laudable goal and that even one death on the nation's rail system is 
one death too many. Let me assure you that the ICC, IDOT and the people 
of Illinois work towards this goal every single day. I believe the data 
show that their efforts have paid off--rail crossings in Illinois are 
safer today than they were yesterday and will be safer tomorrow than 
they are today.

  Unfortunately, the proposed rule offered by the FRA threatens the 
progress we have already made in Illinois. While offering little, if 
any, benefit in safety, this rule becomes an extraordinary unfunded 
mandate on local communities and the State, who will have to divert a 
large portion of their resources to upgrade already safe crossings in 
order to maintain their quiet zones; otherwise they will face the 
specter of incessant horn blasts at all hours of the day and night.

[[Page H2509]]

  Thus, I believe this rule is fatally flawed in that it preempts 
already proven and effective State control. It is a ``one size fits all 
solution'' that does not fit Illinois. I believe that, at a minimum, 
this rule should not be finalized without recognizing Illinois is 
unique with respect to its rail crossing environment and that a more-
tailored approach, which does not undermine state control, is 
developed.
  In summary, I believe that after hearing all of the evidence 
delivered to the FRA at the public hearings held in the Chicagoland 
Area last week, they are essentially left with only two reasonable 
options: (1) The FRA can conclude that their study, upon which the 
proposed rule relies, is fatally flawed and, given the extraordinary 
costs and quality of life issues at stake, determine that additional 
studies need to be undertaken before publication of the final rule; or 
(2) The FRA can recognize that Illinois is unique with respect to its 
rail crossing environment and safety record, and alter the final rule 
in such a way as to preserve Illinois' authority over rail crossing 
safety.
  Again, I thank the gentleman for the opportunity to address this 
issue. And I look forward to working with the FRA in the future to 
bring a solution to the state of Illinois that continues the strong 
safety record that has been demonstrated over the last 10 years and 
does not devote resources away from these efforts.
  Mr. PETRI. Mr. Speaker, I wish to voice my concerns, and those of my 
constituents, about the current situation in many of our communities--
as a result of the long-pending Federal Railroad Administration 
requirements for improved grade-crossing safety equipment as a 
condition of escaping 24-hour-a-day locomotive horn noise. When the law 
requiring these regulations was enacted in 1994, railroad jurisdiction 
resided in the Commerce Committee. According to the terms of the 
statute, FRA was to adopt regulations making universal sounding of 
horns the ``default'' rule--that is, the requirement in the absence of 
FRA-specified equipment. FRA was to issue the regulations specifying 
the horn requirements and the equipment requirements in two phases--one 
by November 1996, and the other by November 1998. In fact, FRA did not 
even propose regulations until January 2000. Meanwhile, many 
railroads--in an understandable attempt to minimize liability for 
grade-crossing accidents, have adopted policies of universal horn-
blowing at grade crossings. This leaves cites and towns in a ``Catch-
22'' situation'': The horns are blowing, but the FRA has given no 
guidance on what it takes to avoid the noise.
  I submit for the Record at this point a newspaper editorial about 
what this means in practical terms to the affected communities.

         [From the Oshkosh Northwestern, Thurs. Apr. 13, 2000]

            Editorial.--Rail Crossing Rules One More Mandate

       The Federal Railroad Administration is again showing how 
     bureaucrats can twist sensible Congressional intentions into 
     expensive new regulations that are shoved down the throats of 
     local communities.
       Oshkosh will be forced to spend $320,000 on median barriers 
     at railroad crossings if the federal bureaucrats have their 
     way. This is another example of federal funding that is not 
     as freely flowing as the rules that are spawned.
       If the city does not comply with the proposed rules, trains 
     will blast their whistles almost continuously as they make 
     their way through the city's 16 railroad crossings.
       Fortunately, there still is time for the public to speak 
     out against this mandate madness.
       The Swift Rail Development Act was passed by Congress in 
     1994 and requires train whistles be sounded upon approaching 
     every public grade crossing, unless there is no risk to 
     persons, it is not practical or if safety measures have been 
     taken to fully compensate for the absence of an audible 
     warning.
       Like many communities throughout the nation, Oshkosh has a 
     ban on locomotives sounding their whistles within the city 
     limits unless an emergency situation develops.
       The ban recognizes that constant locomotive whistles would 
     be a major irritation as trains rumble through 25 to 30 times 
     a day (and night) through the city's most densely populated 
     areas.
       FRA officials drafted proposed regulations to comply with 
     the law--regulations that still are under review and subject 
     to a public comment period.
       Our problem with the proposed regulations is they take 
     railroad crossing safety measures to unnecessary extremes 
     based on data that does not apply to Oshkosh.
       Requiring trains to blow whistles at crossings without 
     gates is not an unreasonable regulation. It stands to reason 
     that the additional warning of a horn blast could help 
     prevent accidents.
       However, the FRA rules take the intention of the law to an 
     unreasonable extreme because they say gates at crossings are 
     not good enough to warrant honoring local whistle bans.
       The rules allow the Transportation Secretary to determine 
     what are acceptable safety measures at crossings. The 
     secretary has determined that median barriers are 
     essential because they prevent vehicles from getting 
     around crossing gates lowered as trains pass through.
       That's a barrier too far for two reasons.
       First, the federal government wants to protect the public 
     but has not provided any additional funding for the 
     improvements apart from existing highway grants. Second, the 
     FRA is relying on statistics in a misleading fashion. The 
     agency concludes there is an average of 62 percent more 
     collisions at gated crossings with whistle bans in place.
       However convincing that figure may appear, it leaves out 
     two important facts: of the crashes at intersections with 
     gates in non-whistle communities, 55 percent of the 
     collisions occurred because motorists deliberately drove 
     around the lowered gates. Another 18 percent happened because 
     motorists were stopped on the crossings.
       So nearly three-quarters of the accidents happened because 
     drivers chose to break the law or ignore basic safety 
     precautions.
       Concrete barriers and other extravagant measures are not 
     going to protect people from themselves if they have a death 
     wish.
       Nor has Oshkosh seen increased carnage at its crossings. In 
     fact, the addition of gates in 1998 has turned the city from 
     one of the deadliest to one of the safest in the state.
       Our accident totals are at zero and counting with a whistle 
     ban in place. And Oshkosh meets all of the other criteria set 
     by the agency to continue the whistle ban, including long-
     term law enforcement initiatives at crossings and targeted 
     public education programs.
       Rep. Tom Petri, R-Fond du Lac, should exercise his 
     considerable rank on the House Transportation Committee to 
     encourage the FRA to reconsider its barrier requirements 
     before allowing for a quiet zone.
       In addition, the public can send comments on the proposal 
     to Docket Clerk, DOT Central Docket Management Facility, 400 
     Seventh Street, S.W., Plaza-401, Washington, DC 20590-0001. 
     Comments will be accepted through May 26 and should include 
     the reference ``Docket Number FRA-1999-6439.''
       Let's hope it's not too late to get the FRA to change its 
     mind.

  Certainly, FRA's complete failure to adhere to the schedule in the 
statute has been a major contributing factor in this unfortunate 
situation. At the same time, it appears that there may be some 
overreaching by some railroads in adopting across-the-board horn-
blowing requirements. I want to resolve this situation as rapidly as 
possible. To that end, I have sent to the FRA a letter requesting a 
formal legal opinion on the exact degree of federal pre-emption of 
state and local noise regulations, in the current situation--that is, 
where there are as yet no final and effective FRA regulations in place. 
No matter what policy decisions are to be made here, it is in the 
interest of all parties to know what the current legal situation really 
is.
  At this point, I submit for the Record a copy of the April 28 letter 
sent by Mr. Lipinski of Illinois and myself to FRA Administrator Jolene 
Molitoris, requesting a formal legal opinion on the degree of legal 
pre-emption that obtains while the FRA rulemaking is still pending.

                                    Congress of the United States,


                                     House of Representatives,

                                   Washington, DC, April 28, 2000.
     Hon. Jolene Molitoris,
     Administrator, Federal Railroad Administration, Washington, 
         DC.
       Dear Administrator Molitoris: We are writing to request an 
     official legal opinion from the Federal Railroad 
     Administration on an important issue of rail safety 
     regulation--the pre-emptive reach of the ``whistle-ban'' 
     provision in current rail safety law, 49 U.S.C. 20153.
       As you know, this provision was enacted as part of the 1994 
     FRA rail safety reauthorization. Section 20153 in general 
     requires FRA to adopt rules requiring the sounding of horns 
     or whistles at all grade crossings, except where safety 
     measures specified in final FRA regulations have been applied 
     to the individual crossing in question. Although final 
     regulations were to be issued in two phases (one by November 
     2, 1996, and the other by November 2, 1998), FRA has thus far 
     only issued proposed regulations, which were not promulgated 
     until January 13, 2000. Section 20153 further provides that 
     final regulations, when issued, may not take effect for 1 
     year after issuance.
       Section 20153 does not in itself appear to address 
     explicitly the pre-emptive effect of the statute in the 
     current situation, where final regulations have not yet been 
     issued or taken effect. However, the language in subsection 
     (b) strongly implies that federal pre-emption of existing 
     requirements occurs only when FRA has actually issued rules 
     requiring the sounding of horns or whistles: ``The Secretary 
     of Transportation shall prescribe regulations, requiring that 
     a locomotive horn or whistle shall be sounded while each 
     train is approaching and entering upon each public highway-
     rail grade crossing'' (emphasis added). Since no such 
     regulations have been issued, it would seem that Section 
     20153 alone does not yet have any current pre-emptive effect.
       The issue is further complicated, however, by the general 
     pre-emption provision of the FRA rail safety statutes, 49 
     U.S.C. 20106, which antedates the whistle-ban provision by a 
     number of years. Section 20106 provides in pertinent part 
     that ``[a] State may adopt or continue in force a law, 
     regulation, or order

[[Page H2510]]

     related to railroad safety until the Secretary of 
     Transportation prescribes a regulation or issues an order 
     covering the subject matter of the State requirement.'' Since 
     this limitation on federal regulatory pre-emption is limited 
     by its terms to ``state'' rail safety requirements, it could 
     be argued that it implicitly precludes rail safety 
     requirements (including whistle-ban ordinances) adopted by 
     local governmental authorities below the state level.
       We understand that some railroads have taken one or two 
     legal positions on this subject: either (1) the very 
     enactment of Section 20153 immediately displaced all state 
     and local authority to adopt and enforce grade-crossing 
     whistle bans; or (2) that Section 20106 independently 
     precludes locally enacted whistle bans, and allows only 
     state-promulgated requirements in this area, prior to 
     adoption and effectiveness of final FRA regulations.
       This is an issue of immediate and pressing concern to our 
     states. As FRA acknowledged in its proposed regulations [65 
     Fed. Reg. 2230, 2234 (Jan. 13, 2000)], well over half of all 
     whistle-banned grade crossing in the United States are 
     located in Wisconsin and Illinois. It is our understanding 
     that many, if not most, of the bans now being ignored by some 
     railroads were promulgated by local rather than state 
     governmental units.
       We are therefore requesting the formal legal opinion of the 
     ERA on the following questions:
       (1) Does Section 20153, Title 49, United States Code, pre-
     empt adoption and enforcement of state-issued or locally 
     issued whistle bans prior to promulgation and legal 
     effectiveness of final regulations issued by FRA under that 
     section?
       (2) Does Section 20106, Title 49, United States Code, pre-
     empt the adoption or enforcement of whistle bans issued by 
     local governments prior to promulgation and legal 
     effectiveness of final regulations issued by FRA under 
     Section 20153 of that title?
       Thank you for your prompt assistance on this important 
     matter of rail safety policy.
           Sincerely,
     William O. Lipinski,
       Ranking Member, Aviation Subcommittee.
     Thomas E. Petri,
       Chairman, Ground Transportation Subcommittee.

  Second, I have also prepared legislation which would spell out the 
ground rules governing local, state, and federal jurisdiction in this 
area, while the FRA rulemaking is still pending, and no fully effective 
regulations are in place. As with the request for the legal opinion, 
this legislation may prove to be an important option in clarifying the 
authority of state and local governments in the field of railroad noise 
abatement at grade crossings.
  Finally, I want to commend the gentleman from Illinois, Mr. Lipinski, 
for arranging this evening's discussion of this important 
transportation safety issue. I look forward to working with him as we 
address this problem.
  Mr. PORTER. Mr. Speaker, I rise today as one of the many Members of 
Congress opposed to the Federal Railroad Administration's proposed rule 
for trains to sound their horns at public crossings. Let me first state 
that I do not oppose efforts by the FRA or any other part of the 
Department of Transportation to improve safety. Each year there are 
over 35,000 transportation related deaths in America. We must reduce 
this terrible statistic. In fact, safer travel is the basis for my 
opposition to this proposed regulation.
  In my opinion, the approach taken by the FRA to prevent train 
crossing accidents is extreme. I believe that the spending mandated by 
this regulation would be wasteful and ultimately not improve safety. 
These scarce dollars and resources can be used more effectively, saving 
more lives, if spent in other areas. Implementing this rule would draw 
funds away from other important safety measures for drivers, 
pedestrians, and other travelers on Americas roads in Illinois and 
elsewhere.
  The main parts of the proposed rule are now well known: trains must 
blow their horns at all public grade crossings unless a new level of 
safety measures is installed. While there is flexibility in the types 
of safety measures and the time in which they must be installed, this 
sweeping regulation is flawed for several reasons.
  First, the FRA data used to conclude that blowing horns at crossings 
reduces accidents fails to count a significant number of crossings and 
fails to properly classify and incorporate the nature of the accident. 
In fact, data has been compiled which indicates that in certain regions 
of the country, my district being one of them, there is a decrease in 
the number of accidents in places where train horns are prohibited from 
sounding. Further, the data does not account for the vast differences 
in vehicular traffic at the rail crossings where information was 
gathered.
  Second, the majority of the data used by the FRA to formulate this 
proposal came from a multiyear study of areas in Florida that had 
implemented and then repealed bans on train horns at crossings. In my 
opinion, the specific data from the Florida crossings is neither 
applicable nor appropriate to determine the need for horn bans in the 
majority of the other states. In Cook County, Illinois there are more 
gate crossings than in the majority of states in the country.
  Third, a recent Illinois study of detailed data compiled between 1988 
and 1998 highlights several important facts that should be considered 
by the FRA. For example, train accidents involving vehicles remains a 
rare occurrence resulting in less than one percent of highway 
fatalities. Further, the study found that of train related vehicular 
accidents, over forty percent occurred because the driver circumvented 
the existing safety measures. Of the remaining accidents, a significant 
percentage occurred when a vehicle impacted against the side of a 
train, rather than the train striking a vehicle. From these facts, we 
can conclude that in many cases the safety measures currently in place 
are adequate for those citizens who chose to use them, and expenditures 
to further improve these safety measures would be better spent.
  Mr. Speaker, little consensus exists on whether the data and analysis 
used by the FRA to support their position is correct, and whether the 
proposed rule is good public policy from any standpoint. Before forcing 
states and communities to pay for massive investments in rail crossing 
safety measures, this issue must be resolved. I ask the Federal 
Railroad Administration to consider the tens of thousands of citizens 
in Illinois and millions across the country that would be greatly 
impacted both financially and physically by this onerous proposal and 
to change the rule. At a minimum, the individual states should have 
much more flexibility to decide where they need to spend funds for 
transportation safety.

                          ____________________