[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.
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