Federal Register, Volume 65 Issue 9 (Thursday, January 13, 2000)

[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Proposed Rules]
[Pages 2230-2270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4]

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Part II

Department of Transportation

_______________________________________________________________________

Federal Railroad Administration

_______________________________________________________________________

49 CFR Parts 222 and 229

Use of Locomotive Horns at Highway-Rail Grade Crossings; Proposed Rule

Federal Register / Vol. 65, No. 9 / Thursday, January 13, 2000 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 222 and 229

[Docket No. FRA-1999-6439, Notice No. 1]
RIN 2130-AA71

Use of Locomotive Horns at Highway-Rail Grade Crossings

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA is proposing rules to require that a locomotive horn be
sounded while a train is approaching and entering a public highway-rail
crossing. The proposed rules also provide for an exception to the above
requirement in circumstances in which there is not a significant risk
of loss of life or serious personal injury, use of the locomotive horn
is impractical, or supplementary safety measures fully compensate for
the absence of the warning provided by the horn. This rule is required
by law.

DATES: Written Comments: Comments must be received by May 26, 2000.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
Public Hearings: FRA will hold public hearings to receive oral
comments from interested parties. The dates and specific location of
hearings will be announced in a subsequent Federal Register document
and on FRA's web site at http://fra.dot.gov. Cities in which hearings
will be held are listed in ADDRESSES section below.

ADDRESSES: Written Comments: Anyone wishing to file a comment should
identify the FRA docket and notice numbers (Docket No. FRA-1999-6439,
Notice No.1). Comments should be sent to the Docket Management System,
U.S. Department of Transportation, room PL-401, 400 Seventh Street,
S.W., Washington, D.C. 20590-0001. Written comments will be available
for public review during regular business hours at the above address
and through the Internet at http://dms.dot.gov.
Public Hearings: Public hearings will be held in the following
cities: Los Angeles, California; Washington, D.C.; Ft. Lauderdale,
Florida; Chicago, Illinois; South Bend, Indiana; Berea, Ohio;
Pendleton, Oregon; and Boston, Massachusetts. The specific location and
date of each hearing will be announced in a subsequent Federal Register
document and on FRA's web site at http://fra.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120
Vermont Avenue, N.W., Washington, D.C. 20590 (telephone: 202-493-6299);
or Mark Tessler, Office of Chief Counsel, FRA, 1120 Vermont Avenue,
N.W., Washington, D.C. 20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION:

Background

Approximately 4,000 times per year, a train and highway vehicle
collide at one of this country's 262,000 public and private highway-
rail grade crossings. Of those crossings, more than 158,000 are public
at-grade crossings--those crossings in which a public road crosses
railroad tracks at grade. During the years 1994 through 1998, there
were 21,242 grade crossing collisions in the United States. These
collisions one of the greatest cause of death associated with
railroading, resulting in more than 400 deaths each year. For example,
in the 1994-1998 period, 2,574 people died in these collisions. Another
8,308 people were injured. Approximately 50 percent of collisions at
highway-rail intersections occur at those intersections equipped with
active warning devices such as bells, flashing lights, or gates
(approximately 62,000 crossings).
Compared to a collision between two highway vehicles, a collision
with a train is eleven times more likely to result in a fatality, and
five and a half times more likely to result in a disabling injury. The
average freight locomotive weighs between 140 and 200 tons, compared to
the average car weight of one to two tons. Many freight trains weigh in
excess of ten thousand tons. Any highway vehicle, even a large truck,
would be crushed when struck by a moving train. The laws of physics
compound the likelihood that a motor vehicle will be crushed in a
collision with a moving train. The train's weight, when combined with
the likelihood that the train will not be able to stop to avoid a
collision, results in severe injury or death in virtually every
collision (it takes a one-hundred car train traveling 30 miles per hour
approximately half a mile to stop--at 50 miles an hour that train's
stopping distance increases to one and a third miles).
FRA is responsible for ensuring that America's railroads are safe
for both railroad employees and the public. FRA shares with the public
the responsibility to confront the compelling facts surrounding grade
crossing collisions.
In 1990, as part of FRA's crossing safety program, the agency
studied the impact of train whistle bans (i.e., state or local laws
prohibiting the use of train horns or whistles at crossings) on safety
in Florida. (In this document the terms ``whistle'' and ``horn'' are
used interchangeably to refer to the air powered locomotive audible
warning device required to be installed on locomotives by 49 CFR
229.129, and to steam whistles required to be installed on steam
locomotives by 49 CFR 230.121. These terms do not refer to a locomotive
bell, which has value as a warning to pedestrians but which is not
designed to provide a warning over long distances.) FRA had previously
recognized the locomotive horn's contribution to rail safety by
requiring that lead locomotives be equipped with an audible warning
device, 49 CFR 229.129, and exempting the use of whistles from federal
noise emission standards ``when operated for the purpose of safety.''
49 CFR 210.3(b)(3). The Florida study, which is discussed below (and
which has been filed in the docket), documented how failing to use
locomotive horns can significantly increase the number of collisions.

A. Who Is at Risk in a Grade Crossing Collision?

Many people have argued that highway drivers who disobey the law
and try to beat a train through a crossing should not be protected at
the expense of the peace and quiet of communities that parallel
railroad tracks. FRA strongly agrees that drivers who unlawfully enter
grade crossings should be fined by local police, but death or serious
injury is simply not a just penalty.
Overlooked in this emotional debate are the many innocent victims
of crossing collisions, including blameless automobile and railroad
passengers and railroad crews who, despite performing their duties
correctly, are usually unable to avoid the collisions. Nationally, from
1994 to 1998, eight railroad crewmembers died in collisions at highway-
rail crossings, and 570 crewmembers were injured. Two hundred railroad
passengers were also injured and two died. In Bourbonnais, Illinois,
earlier this year, eleven innocent passengers died in their sleeper car
following a collision with a truck at a highway-rail crossing. In
addition, since approximately one-half of all collisions occur at grade
crossings that are not fully equipped with warning devices, some of the
drivers involved in these collisions may have been unaware of the
approaching train.
Property owners living near railroad rights-of-way can also be at
risk. For example, on December 1, 1992, in Hiebert, Alabama, a freight
train collided with a lumber truck. Three

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locomotives and nine rail cars were derailed, releasing 10,000 gallons
of sulfuric acid into a nearby water supply. Residents living near the
derailment site had to be evacuated because of the chemical spill. Even
where the locomotive consist is not derailed in the initial collision
with the highway vehicle, application of the train's emergency brake
can result in derailment and harm to persons and property along the
right-of-way.
Law-abiding motorists can also be endangered in crossing
collisions. On March 17, 1993, an Amtrak train collided with a tanker
truck in Fort Lauderdale, Florida. Five people died when 8,500 gallons
of burning fuel from the tanker truck engulfed cars waiting behind the
crossing gates.
Highway passengers can also be innocent victims. On December 14,
1995, in Ponchatoula, Louisiana, five people were killed when their
truck was hit by an Amtrak train. Among the dead were three children
who were passengers in the truck.
In making a decision on the use of locomotive horns, all of the
competing interests must be reasonably considered. Those whose
interests will be affected by this rule include those who may be
disturbed by the sounding of locomotive horns and all of those who may
suffer in the event of a collision; pedestrians using the crossing; the
motor vehicle driver and passengers, those in adjacent vehicles, train
crews, and those living or working nearby.

B. FRA's Study of the Florida Train Whistle Ban

Effective July 1, 1984, Florida authorized local governments to ban
the nighttime use of whistles by intrastate trains approaching highway-
rail grade crossings equipped with flashing lights, bells, crossing
gates, and highway signs that warned motorists that train whistles
would not be sounded at night. Fla. Stat. Sec. 351.03(4)(a) (1984).
After enactment of this Florida law, many local jurisdictions passed
whistle ban ordinances.
In August 1990, FRA issued a study of the effect of the Florida
train whistle ban up to the end of 1989. The study compared the number
of collisions at crossings subject to bans with four control groups.
FRA was trying to determine the impact of the whistle bans and to
eliminate other possible causes for any increase or decrease in
collisions.
Using the first control group, FRA compared collision records for
time periods before and during the bans. FRA found there were almost
three times more collisions after the whistle bans were established, a
195 percent increase. If collisions continued to occur at the same rate
as before the bans began taking effect, it was estimated that 49 post-
ban collisions would have been expected. However, 115 post-ban
collisions occurred, leaving 66 crossing collisions statistically
unexplained. Nineteen people died and 59 people were injured in the 115
crossing collisions. Proportionally, 11 of the fatalities and 34 of the
injuries could be attributed to the 66 unexplained collisions.
In the second control group, FRA found that the daytime collision
rates remained virtually unchanged for the same highway-rail crossings
where the whistle bans were in effect during nighttime hours.
The third control group showed that nighttime collisions increased
only 23 percent along the same rail line at crossings with no whistle
ban.
Finally, FRA compared the 1984 through 1989 accident record of the
Florida East Coast Railway Company (FEC), which, because it was
considered an ``intrastate'' carrier under Florida law, was required to
comply with local whistle bans, with that of the parallel rail line of
interstate carrier, CSX Transportation Company (CSX), which was not
subject to the whistle ban law. By December 31, 1989, 511 of the FEC's
600 gate-equipped crossings were affected by whistle bans. Collision
data from the same period was available for 224 similarly equipped CSX
crossings in the six counties in which both railroads operate. As noted
above, FRA found that FEC's nighttime collision rate increased 195
percent after whistle bans were imposed. At similarly equipped CSX
crossings, the number of collisions increased 67 percent.
On July 26, 1991, FRA issued an emergency order to end whistle bans
in Florida. Notice of that emergency order (Emergency Order No. 15) was
published in the Federal Register at 56 FR 36190. FRA is authorized to
issue emergency orders where an unsafe condition or practice creates
``an emergency situation involving a hazard of death or injury.'' 49
U.S.C. 20104. FRA acted after updating its study with 1990 and initial
1991 collision records and finding that another twelve people had died
and thirteen were injured in nighttime collisions at whistle ban
crossings. During this time, a smaller study, conducted by the Public
Utility Commission of Oregon, corroborated FRA's findings and led to
the cessation of state efforts to initiate a whistle ban in Oregon.
FRA's emergency order required that trains operated by the FEC
sound their whistles when approaching public highway-rail grade
crossings. This order preempted state and local laws that permitted the
nighttime ban on the use of locomotive horns.
Twenty communities in Florida petitioned for a review of the
emergency order. During this review, FRA studied other potential causes
for the collision increase. FRA's closer look at the issue strengthened
the conclusion that whistle bans were the likely cause of the increase.
For example, FRA subtracted collisions that whistles probably would
not have prevented from the collision totals. Thirty-five collisions
where the motor vehicle was stopped or stalled on the crossing were
removed from the totals. Eighteen of these collisions occurred before
and 17 were recorded during the bans. When these figures were excluded,
the number of collisions in the pre-ban period changed from 39 to 21,
and the number of collisions in the post-ban period decreased from 115
to 98. Collisions which whistles could have prevented, therefore,
totaled 98 collisions as compared to 21 collisions in the pre-ban
period; this represents a 367 percent increase, compared to the 195
percent increase initially calculated.
Similarly, if collisions where the motor vehicle hit the side of
the train were also excluded (nine in the pre-ban period and 26 in the
post-ban period) as being unlikely to have been prevented by train
whistles, the pre-ban collision count became 12 versus 72 in the
whistle ban period. The increase in collisions caused by the lack of
whistles then became 500 percent.
FRA's data, however, showed that, before the ban, highway vehicles
on average, struck the sides of trains at the 37th train car behind the
locomotive. After the ban took effect, 26 vehicles struck trains, and
on average, struck the twelfth train car behind the locomotive. This
indicated that motor vehicles are more cautious at crossings if a
locomotive horn is sounding nearby. Before the whistle bans, highway
vehicles tended to hit the side of the train after the whistling
locomotive had long passed through the crossing. After the ban took
effect, highway traffic hit the train much closer to the now silent
locomotive--at the 12th car. The number of motor vehicles hitting the
sides of trains also increased nearly threefold after the ban was
established.
FRA also considered collisions involving double tracked grade
crossings where two trains might approach at the same time. Since a
driver's view of the second train might be blocked, hearing the second
train's whistle could be the only warning

[[Page 2232]]

available to an impatient driver. FRA's Florida study found the number
of second train collisions for the pre-ban period was zero, while four
were reported for the period the bans were in effect.
Several Florida communities asked whether train speed increased
collisions. FRA research has well established, as discussed below, that
train speed is not a factor in determining the likelihood of a traffic
collision at highway-rail crossings equipped with active warning
devices that include gates and flashing lights. Speed, however, is a
factor in determining the severity of a collision.
FRA also considered population growth in Florida, but found it was
not a factor. Day time collision rates were not increasing at the very
same crossings that had whistle bans at night. If population was a
factor, then the day time numbers should have increased dramatically as
well. FRA also reviewed the number of fatal highway collisions, and
registered drivers and motor vehicles and found no increases that
either paralleled or explained the rise in night time crossing
collisions.
In the first two years after July 1991, when FRA issued its
emergency order prohibiting whistle bans in Florida, collision rates
dropped dramatically to pre-ban levels. In the two years before the
emergency order, there were 51 nighttime collisions. In the two years
after, there were only 16. Daytime collisions dropped slightly from 34
collisions in the two years before the emergency order, to 31 in the
following two years.

C. FRA's Nationwide Study of Train Whistle Bans

FRA's Florida study raised the concern that whistle bans could be
increasing collisions in other locations. Given the wide difference
between grade crossing conditions from one community to another, FRA
did not assume that the Florida results would be true at every whistle
ban crossing. FRA began a nationwide effort to locate grade crossings
subject to whistle bans and study collision information for those
crossings. The Association of American Railroads (AAR) joined the FRA
in that effort.
The AAR surveyed the rail industry and found 2,122 public grade
crossings subject to whistle bans for some period of time between
January 1988 and June 30, 1994. This total did not include the 511
public crossings that were subject to whistle bans in Florida that FRA
had already studied. The study also did not include crossings on small,
short line railroads, which did not report to the AAR. The nationwide
survey found whistle bans in 27 states that affected 17 railroads. FRA
studied collisions occurring between January 1988, and June 30, 1994.
Two thousand and four of the crossings were subject to 24-hour
whistle bans. Another 118 grade crossings were subject to nighttime-
only bans. The states with the largest number of whistle ban crossings
were Illinois, Wisconsin, Kentucky, New York, and Minnesota. More than
half of the crossings were on three railroads: CSX, Consolidated Rail
Corporation (Conrail), and Soo Line. A report covering the nationwide
study was issued in April 1995. FRA found that whistle ban crossings
averaged 84 percent more collisions than similar crossings with no
bans. There were 948 collisions at whistle ban crossings during the
period studied. Sixty-two people died in those collisions and 308 were
injured. Collisions occurred on every railroad with crossings subject
to whistle bans, and in 25 of the 27 states where bans were in effect.
Since the 1995 study, FRA has continued to analyze relevant data.
Over the period of 1992-1996, there were 793 collisions at 2,366
crossings subject to whistle bans. These collisions resulted in the
fatalities and injuries displayed in Table 1, as well as more than $2
million in motor vehicle damages.

Table 1.--Collision Injuries and Fatalities by Type of Person Involved
------------------------------------------------------------------------
Type of person involved Injuries Fatalities
------------------------------------------------------------------------
Motorist........................................ 258 56
Pedestrian...................................... 17 41
Railroad employee............................... 56 0
------------------------------------------------------------------------

The types of collisions which took place at whistle ban crossings
are shown in Table 2. It is interesting to note that the mean train
speed (train speed is positively correlated with fatalities) varies by
type of collision. Please note that the number of fatalities shown for
category ``hit by second train'' are included in the other categories
(97 fatalities).

Table 2.--Type of Collision
----------------------------------------------------------------------------------------------------------------
Mean train
Type of collision Injuries Fatalities speed
----------------------------------------------------------------------------------------------------------------
Motor vehicle struck train...................................... 51 8 15.5
Train struck motor vehicle...................................... 224 89 25.4
Hit by second train............................................. 11 5 28.5
----------------------------------------------------------------------------------------------------------------

The driver was killed in the collision in 42 instances (5.3% of
collisions), the remaining 55 fatalities were either passengers or
pedestrians. The driver passed standing vehicles to go over the
crossing in 37 of the collisions (4.7%). The driver was more likely to
be killed when moving over the crossing at the time of the collision
(35 of the driver fatalities), rather than when the vehicle was stopped
or stalled at the crossing, and in most of the collisions (69.9%) at
whistle-ban crossings the driver was moving over the crossing.
Additionally, in almost every collision (97%), a warning device (either
active or passive) was located on the vehicle's side of the crossing.
This supports the theory that the warning given by the train horn could
deter the motorist from entering the crossing.
Collisions which took place when the motorist was moving over the
crossing were more likely to be fatal (72% of the fatalities). This
type of collision was also more likely to result in injury with 209 of
the 258 motorist injuries occurring under these circumstances. These
are the types of collisions the proposed rule is designed to prevent.
Motorists that fail to notice or heed the warning devices in place at a
crossing may be deterred by the sound of a train horn. The motorist is
also given information by the horn about the proximity, speed, and
direction of the train.
Collisions occurred on every railroad with crossings subject to
whistle bans, and in 25 of the 27 states where bans were in effect.
FRA's study indicated that the installation of automatic traffic
gates at crossings with whistle bans was more than twice the national
average. Forty percent of the whistle ban crossings had gates compared
to 17 percent nationally.

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FRA found 831 crossings where whistle sounding had at one time been
in effect, but where the practice had changed during the January 1988
through June 1994 study period. In 87 percent of the cases, bans were
no longer in effect. A ``before-and-after'' analysis comparing
collision rates showed an average of 38 percent fewer collisions when
whistles were sounded indicating that whistles had a .38 effectiveness
rate in reducing collisions. This finding paralleled the Florida
experience.
FRA also rated whistle ban grade crossings according to an
``Accident Prediction Formula.'' The formula predicts the statistical
likelihood of having a collision at a given highway-rail grade
crossing. The physical characteristics of each crossing were considered
in the formula, including the number of tracks and highway lanes, types
of warning devices, urban or rural location, and whether the roadway
was paved. Also considered were operational aspects, such as, the
number of highway vehicles, and the number, type, time of day, and
maximum speed of trains using the crossing. The formula was developed
using data from thousands of collisions spanning many years. FRA then
ranked the 167,000 public crossings in the national inventory at that
time in an identical manner. Both the whistle ban crossings and the
national inventory crossings were then placed into one of ten groups
ranging from low-risk to high-risk.
FRA compared the number of collisions occurring within each of the
ten groups of crossings, over a five year period from 1989 through
1993, and found that for nine out of the ten risk groups, the whistle
ban crossings had significantly higher collision rates than the
crossings with no whistle bans. On average, the risk of a collision was
found to be 84 percent greater at crossings where train horns were
silenced. Another way to interpret this difference would be to say that
locomotive horns had a .46 effectiveness rate in reducing the rate of
collisions.
FRA was concerned about the higher risk disclosed by the nationwide
study. From its vantage point, FRA was able to see the elevated risk
associated with whistle bans, which might not be apparent to local
communities. While crossing collisions are infrequent events at
individual crossings, the nationwide study, and the experience in
Florida, showed they were much less infrequent when train horns were
not sounded.
FRA conducted an outreach program in order to promptly share this
information with all communities where bans were in effect. In addition
to issuing press releases and sending informational letters to various
parties, FRA met with community officials and participated in town
meetings. Along with the study's findings, information about the
upcoming rule requiring the sounding of train horns was presented,
including provisions for supplementary safety measures that could be
implemented by communities to compensate for silenced train horns and
allow bans to remain in effect.
From the outreach effort, FRA gained a clearer understanding of
local concerns and issues. Many of those concerns were expressed in
person and others were submitted in writing to FRA's whistle ban
docket. Another result of the outreach effort was the identification of
664 additional crossings that were subject to whistle bans, but not
included in the nationwide study. About 95 percent of these were
located in the city and suburbs of Chicago, Illinois. Many carry a high
volume of commuter rail traffic.
Recently, FRA updated its analysis of the safety at whistle ban
crossings, expanding it to include data for all the Chicago area
crossings as well as for a few other newly identified locations.

BILLING CODE 4910-06-P

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[GRAPHIC] [TIFF OMITTED] TP13JA00.000

BILLING CODE 4910-06-C

FRA also refined its procedure by conducting separate analyses for
three different categories of warning devices in place at the crossings
(e.g., automatic gates with flashing lights, flashing lights or other
active devices without gates, and passive devices, such as
``crossbucks'' or other signs). In addition, FRA excluded from the
analysis certain collisions where the sounding of the train horn would
not have been a deterrent to the collisions. These included cases where
there was no driver in the vehicle and collisions where the vehicle
struck the side of the train beyond the fourth locomotive unit (or
railcar). FRA also excluded events where pedestrians were struck.
Pedestrians, compared to vehicle operators, have a greater opportunity
to see and recognize an approaching train because they can look both
ways from the edge of the crossing. They can also stop or reverse their
direction more quickly than a motorist if they have second thoughts
about crossing safely.
Data for the five-year time period from 1992 through 1996 was used
for the updated analysis in place of the older data of the 1995
Nationwide Study. For the updated analysis, the collision rate for
whistle ban crossings in each device category was compared to similar
crossings in the national inventory using the ten range risk level
method used in the original study.
The analysis showed that an average of 62 percent more collisions
occurred at whistle ban crossings equipped with automatic gates and
flashing lights than at similarly equipped crossings across the nation
without bans. FRA will use this value as the increased risk associated
with whistle bans instead of the 84 percent cited in the Nationwide
Study of Train Whistle Bans released in April 1995. FRA believes that
62 percent is appropriate because it represents the elevated risk
associated with crossings with automatic gates and flashing lights,
which are the only category of crossings that will be eligible for
``quiet zones'' (except for certain crossings where train speeds do not
exceed 15 miles per hour).
The updated analysis also indicated that whistle ban crossings
without gates, but equipped with flashing light signals and/or other
types of active warning devices, on average, experienced 119 percent
more collisions than similarly equipped crossings without whistle bans.
This finding made it clear that the train horn was highly effective in
deterring collisions at non-gated crossings equipped only with flashing
lights. The only exception to this finding was in the Chicago area
where collisions were 16 percent less frequent. This is a puzzling
anomaly. One possible explanation for this result is that more than 200
crossings (approximately one third of the crossings in Chicago) still
included in the DOT/AAR National Inventory have in all likelihood been
closed. They would continue to be included in the Inventory until
reported closed by state or railroad officials. (At this time
submission of grade crossing inventory data to FRA is voluntary on the
part of states and railroads.) FRA believes this could contribute to
the low collision count for Chicago area crossings without gates.
Collisions cannot occur at crossings that have been closed. The
retention of closed crossings in the inventory would, therefore, have
the effect of incorrectly reducing the calculated collision rate for
the Chicago area crossings.
In comparing the collision differences at crossings with gates and
those without gates, FRA found that about 55 percent of the collisions
at crossings with gates occurred when motorists deliberately drove
around lowered gates. These collisions occurred 128 percent more often
at crossings with

[[Page 2235]]

whistle bans than at other crossings. Another 18 percent of the
collisions occurred while motorists were stopped on the crossings,
probably waiting for vehicles ahead to move forward. There were smaller
percentages of collisions involving stalled and abandoned vehicles.
Suicides are not included in the collision counts. At crossings
equipped with flashing signal lights and/or other active warning
devices, but not gates, collisions occurred 119 percent more often at
crossings subject to bans. A distinction should be made between the two
circumstances. In the case of lowered gates, it is the motorist's
decision to circumvent a physical barrier to take a clearly unsafe and
unlawful action that can result in a collision. However, in the case of
crossings with flashing light signals and/or other active devices,
collisions may be more the result of a motorist's error in judgement
rather than a deliberate violation of the state's motor vehicle laws.
The ambiguity of flashing lights at crossings, which in other traffic
control situations indicate that the motorist may proceed after
stopping, when safe to do so, coupled with the difficulty of correctly
judging the rate of approach of a large object such as a locomotive,
may contribute to this phenomenon. FRA's collision data show that the
added warning provided by the train horn is most critical at crossings
without gates but which are equipped with other types of active warning
devices.
By separating crossings according to the different categories of
warning devices installed, FRA has been better able to identify the
level at which locomotive horns increase safety at gated crossings and
thus the level at which substitutes for the horn must be effective in
order to fully compensate for the lack of a horn at those crossings.
For crossings with passive signs as the only type of warning
device, the updated study indicated an average of 27 percent more
collisions for crossings subject to whistle bans. This is the smallest
difference identified between crossings with and without whistle bans.
These crossings account for about one fourth of the crossings with
whistle bans. Typically, they are the crossings with the lowest
aggregate risk of collision because the installation of active warning
devices usually follows a sequence where the highest risk crossings are
equipped first. Two determinants of crossing risk are the amount of
train traffic and highway traffic at a crossing. Often, crossings with
only passive warning devices are located on seldom used sidings and
industrial tracks and/or on highways with relatively low traffic
levels. FRA believes this may be the reason that the difference in the
numbers of collisions at whistle ban and non-ban crossings is so much
less than for the other crossing categories. For crossings with passive
warnings where trains do not exceed 15 miles per hour and where
railroad personnel use flags to warn motorists of the approach of a
train, whistle bans would entail a small risk of a collision resulting
in an injury. However, at crossings with passive warnings and with
higher train speeds, motorists would have no warning of the approach of
a train if the train horn were banned. At such crossings, in order to
ensure their safety, motorists must search for and recognize an
approaching train, and then visually judge whether it is moving, and if
so, estimate its arrival time at the crossing, all based only on visual
information which may be impaired by hills, structures, vegetation,
track curvature, road curvature as well as by sun angle, weather
conditions, or darkness. The driver's decision to stop must be made at
a point sufficiently in advance of reaching the crossing to accommodate
the vehicle's stopping distance. If other vehicles are following, a
sudden decision to stop could result in a rear-end collision with the
vehicle being pushed into the path of the train. While FRA's data
indicates that the smallest increase in collision frequency is
associated with whistle bans at passive crossings, logic suggests that
the banning of train horns at passive crossings could entail a much
more significant safety risk per unit of exposure (vehicle crossings
per train movement). Without the audible train horn warning, motorists
would have no indication of the imminent arrival of a train beyond what
they could determine visually. For motorists unfamiliar with whistle
bans who encounter passive crossings where horns are not sounded, there
would be an even greater risk.
The conclusions drawn from the 1995 Nationwide Study and its recent
update have helped determine the requirements of this rule. FRA
appreciates the assistance and cooperation of the many organizations
and individuals who contributed to this effort by reporting whistle ban
locations, compiling data, researching ordinances, and sharing their
concerns, ideas, and opinions.

D. Congressional Action

After reviewing FRA's Florida study, Congress addressed the issue.
On November 2, 1994, Congress passed the Swift Rail Development Act,
Public Law 103-440 (``Act'') which added section 20153 to title 49 of
the United States Code. The Act requires the use of locomotive horns at
grade crossings, but gives FRA the authority to make reasonable
exceptions. Section 20153 of title 49 of the United States Code states
as follows:
``Sec. 20153. Audible warning at highway-rail grade crossings.
``(a) DEFINITIONS.--As used in this section--
``(1) The term ``highway-rail grade crossing'' includes any street
or highway crossing over a line of railroad at grade;
``(2) The term ``locomotive horn'' refers to a train-borne audible
warning device meeting standards specified by the Secretary of
Transportation; and
``(3) The term ``supplementary safety measure'' refers to a safety
system or procedure, provided by the appropriate traffic control
authority or law enforcement authority responsible for safety at the
highway-rail grade crossing, that is determined by the Secretary to be
an effective substitute for the locomotive horn in the prevention of
highway-rail casualties. A traffic control arrangement that prevents
careless movement over the crossing (e.g., as where adequate median
barriers prevent movement around crossing gates extending over the full
width of the lanes in the particular direction of travel), and that
conforms to standards prescribed by the Secretary under this
subsection, shall be deemed to constitute a supplementary safety
measure. The following do not, individually or in combination,
constitute supplementary safety measures within the meaning of this
subsection: standard traffic control devices or arrangements such as
reflectorized crossbucks, stop signs, flashing lights, flashing lights
with gates that do not completely block travel over the line of
railroad, or traffic signals.
``(b) REQUIREMENT.--The Secretary of Transportation shall prescribe
regulations requiring that a locomotive horn shall be sounded while
each train is approaching and entering upon each public highway-rail
grade crossing.
``(c) EXCEPTION.--(1) In issuing such regulations, the Secretary
may except from the requirement to sound the locomotive horn any
categories of rail operations or categories of highway-rail grade
crossings (by train speed or other factors specified by regulation)--
``(A) That the Secretary determines not to present a significant
risk with respect to loss of life or serious personal injury;
``(B) For which use of the locomotive horn as a warning measure is
impractical; or
``(C) For which, in the judgment of the Secretary, supplementary
safety measures fully compensate for the

[[Page 2236]]

absence of the warning provided by the locomotive horn.
``(2) In order to provide for safety and the quiet of communities
affected by train operations, the Secretary may specify in such
regulations that any supplementary safety measures must be applied to
all highway-rail grade crossings within a specified distance along the
railroad in order to be excepted from the requirement of this section.
``(d) APPLICATION FOR WAIVER OR EXEMPTION.--Notwithstanding any
other provision of this subchapter, the Secretary may not entertain an
application for waiver or exemption of the regulations issued under
this section unless such application shall have been submitted jointly
by the railroad carrier owning, or controlling operations over, the
crossing and by the appropriate traffic control authority or law
enforcement authority. The Secretary shall not grant any such
application unless, in the judgment of the Secretary, the application
demonstrates that the safety of highway users will not be diminished.
``(e) DEVELOPMENT OF SUPPLEMENTARY SAFETY MEASURES.--(1) In order
to promote the quiet of communities affected by rail operations and the
development of innovative safety measures at highway-rail grade
crossings, the Secretary may, in connection with demonstration of
proposed new supplementary safety measures, order railroad carriers
operating over one or more crossings to cease temporarily the sounding
of locomotive horns at such crossings. Any such measures shall have
been subject to testing and evaluation and deemed necessary by the
Secretary prior to actual use in lieu of the locomotive horn.
``(2) The Secretary may include in regulations issued under this
subsection special procedures for approval of new supplementary safety
measures meeting the requirements of subsection (c)(1) of this section
following successful demonstration of those measures.
``(f) SPECIFIC RULES.--The Secretary may, by regulation, provide
that the following crossings over railroad lines shall be subject, in
whole or in part, to the regulations required under this section:
``(1) Private highway-rail grade crossings.
``(2) Pedestrian crossings.
``(3) Crossings utilized primarily by nonmotorized vehicles and
other special vehicles.
``(g) ISSUANCE.--The Secretary shall issue regulations required by
this section pertaining to categories of highway-rail grade crossings
that in the judgment of the Secretary pose the greatest safety hazard
to rail and highway users not later than 24 months following the date
of enactment of this section. The Secretary shall issue regulations
pertaining to any other categories of crossings not later than 48
months following the date of enactment of this section.
``(h) IMPACT OF REGULATIONS.--The Secretary shall include in
regulations prescribed under this section a concise statement of the
impact of such regulations with respect to the operation of section
20106 of this title (national uniformity of regulation).
``(i) REGULATIONS.--In issuing regulations under this section, the
Secretary--
``(1) Shall take into account the interest of communities that--
(A) Have in effect restrictions on the sounding of a locomotive
horn at highway-rail grade crossings; or
(B) Have not been subject to the routine (as defined by the
Secretary) sounding of a locomotive horn at highway-rail grade
crossings;
``(2) Shall work in partnership with affected communities to
provide technical assistance and shall provide a reasonable amount of
time for local communities to install supplementary safety measures,
taking into account local safety initiatives (such as public awareness
initiatives and highway-rail grade crossing traffic law enforcement
programs) subject to such terms and conditions as the Secretary deems
necessary, to protect public safety; and
``(3) May waive (in whole or in part) any requirement of this
section (other than a requirement of this subsection or subsection (j))
that the Secretary determines is not likely to contribute significantly
to public safety.
``(j) EFFECTIVE DATE OF REGULATIONS.--Any regulations under this
section shall not take effect before the 365th day following the date
of publication of the final rule.'' The last two subsections of section
20153 were added on October 9, 1996 when section 20153 was amended by
Public Law 104-264.

E. Rulemaking

When conducting a rulemaking, FRA must follow the Administrative
Procedure Act (5 U.S.C. 553 et seq.) (APA). The APA generally requires
that FRA allow all interested parties to review and comment on any
proposed rule. Thus, by this notice, FRA is providing the public an
opportunity to study the proposed rule and comment on it. Based on
comments and testimony provided in response to this notice, FRA will,
after the close of the comment period, determine what action to take.
There are two ways for you to share with FRA your opinions,
experience or information about locomotive horns. First, the FRA can
receive letters and other written remarks or reports. FRA places all of
these comments in one place, the rulemaking docket. Please include the
docket number on all comments submitted in response to this notice. The
docket number for this rulemaking is ``Docket Number FRA-1999-6439.''
All written comments are placed in the docket, including scientific and
technical reports on which FRA substantially relied when preparing the
proposed rule. For example, the docket for this rulemaking includes,
among many documents, copies of FRA's Florida and nationwide whistle
ban studies. The public is free to inspect the rulemaking docket during
regular business hours at the address listed above. Additionally, all
documents in the docket are now available online at http://dms.dot.gov.
The second way to make a comment on this rulemaking is to attend
one of the scheduled public hearings. The hearings will provide
interested parties an opportunity for an oral presentation. FRA will
have a court reporter record each public hearing and will place a copy
of the transcript of each hearing into the docket. FRA will review all
written comments and testimony provided in the public hearings.

F. Comments Received by FRA

Because of the great interest in this subject throughout various
areas of the country, FRA has been involved in an extensive outreach
program to inform those communities which presently have whistle bans
of one type or another in effect. FRA staff has attended a large number
of meetings with local officials and citizens. FRA has also held a
number of public meetings to discuss the issues and to receive
information from the public. FRA broke from tradition and established a
public docket before formal initiation of rulemaking proceedings in
order to enable citizens and local officials to comment on how FRA
might implement the Act and to provide insight to FRA. Establishment of
the docket also enabled members of the public to learn what other
interested parties thought about this subject. The vast majority of
commenters were in favor of quiet zones in their communities. A number
were in favor of the use of four-quadrant gates at affected crossings,
while one person favored the less expensive articulated gates rather
than four-quadrant gates. Some commenters indicated how they

[[Page 2237]]

think the Act should be amended. Of course, new legislative enactments
are beyond the scope of this rulemaking, and FRA must implement the law
as it now reads.
Some commenters expressed the belief that state and localities were
best suited to make the decisions regarding exemptions from the
requirement that trains sound horns at crossings. A representative of
the City of Portland, Maine wants the Act amended to empower the
appropriate transportation agency for each state to grant local
municipalities exemptions, since these officials ``are better able to
properly assess the merits of any local community request for such a
waiver.'' Examples of such exemptions that would be appropriate,
according to this official, would be cases where the crossings are
adequately protected, train speeds are no more than 30 miles per hour
and vehicle speed is 35 miles per hour or less. This commenter also
stated that all crossings which are flagged by the train crews or where
the train crew activates the crossing signal should be exempt from
locomotive horns. Similarly, the Maine Department of Transportation
believes that ``the State's regulatory process should be retained under
any rules proposed * * *.'' The state requests that an exception under
the Act be granted to those states which, either by an adjudicatory
process or by rulemaking, permit train whistling to be discontinued.
The Chairman of the Board of Selectmen of the town of Acton,
Massachusetts expressed strong opposition to the return of locomotive
horns, and urged that FRA issue regulations ``so that each state could
make its own determination as to the appropriate level of safety
devices needed at each grade crossing.'' Similarly, a Wisconsin state
representative requests that FRA ``empower states with the available
expertise, such as Wisconsin's Office of the Commissioner of Railroads,
to make their own rules. The states, better than the federal
government, know the local conditions and have contact with the
citizens who are represented directly in the State Legislature.'' This
same legislator closed his comment by stating that ``I hope this letter
reaches a human being who will read it and I hope it will go to a
deliberative body who truly cares about the true needs of our
citizens.'' FRA wishes to assure the writer, and the public generally,
that indeed we do care about the needs of our citizens. In addition to
the citizens who may be disturbed by locomotive horns, we are concerned
about the safety of the driver of a car at a grade crossing, the
driver's innocent passengers, members of train crews, as well as nearby
residents who may be injured by collisions at crossings. The intent of
this rule is to help provide for safe grade crossings without unduly
burdening nearby residents.
A number of commenters felt that costs associated with alternative
safety measures should be borne by parties other than the local or
state government. A Massachusetts state senator stated that FRA should
require the railroad to assume the costs associated with two crossings
in his town. An organization of bed and breakfast owners in Vicksburg,
Mississippi objected to what they described as ``intense noise'' from
local trains. The group urged that FRA ``adopt a liberal policy
permitting alternative grade crossing safety devices that would
eliminate the need for the train horns.'' The group added, ``Of course,
a financial assistance program to accomplish these alternatives is also
essential.'' The Town of Ashland, Massachusetts argues that the
railroad's cost of doing business should not be transferred to the town
and taxpayers. ``Responsibility for this [measures to minimize
disruption caused by these crossings] must be put squarely on the
operators of the railroad. * * *''
Two commenters have raised the issue as to whether rural and urban
areas should be treated in the same manner. One commenter stated that
``the Act no doubt should apply in full force to rural sections of
America, but such provisions are quite out of line with the logical
treatment of those areas of the land where the population is far
heavier.'' Another commenter urged FRA to establish maximum decibel
levels for locomotive horns which ``should be considerably lower in
urban areas than in sparsely populated rural areas.''
Various commenters have proposed that specific provisions be
contained in FRA's regulations. One commenter proposes that the
regulation be waived for any crossing within 300 yards of a residence.
Many commenters expressed the view that many communities with
present whistle bans have excellent safety records and therefore
sounding of locomotive horns will only disrupt residents' lives with no
real impact on safety. The city attorney for Bellevue, Iowa indicated
that the railroad tracks run down the center of a main street in the
city. He points out that slow train speed, locomotives equipped with
ditch lights, stop signs at crossings, and the sounding of the
locomotive bell all have contributed to only 5 collisions, one injury,
and no fatalities in almost 7 years of train traffic averaging 8 trains
a day. He claims that locomotive horns along the 15 crossings in town
will have a minimal affect on safety, but will have a maximum effect on
the quality of life of most of Bellevue's residents. Similarly, the
mayor of Batavia, Illinois indicated that because the city has a good
rail safety record, the ``whistle blowing standards that have been set
forth in this Act are not necessitated and would cause unnecessary
discomfort to our constituency.'' These commenters, along with others,
recommend that a community's safety record be a factor in determining
whether locomotive horns need to be sounded.
FRA has received many comments from Chicago area municipal groups
representing suburban areas in which, for the most part, locomotive
horns are not routinely sounded. The Chicago Area Transportation Study
conducted by the Council of Mayors states that it represents over 200
cities and villages with over 4 million residents outside of Chicago.
The study authors recommended that FRA's regulations include provisions
for: (1) Accident reduction programs tailored to the magnitude and type
of accident experience at individual crossings; (2) recognition of the
effectiveness of enhanced enforcement of existing rail safety laws and
public education programs; (3) use of less costly physical barriers
such as flexible median delineator tubes and articulated railroad
crossing gates; (4) use of strobe lights and more visible paint schemes
on locomotives and cab car fronts and reflective delineators on the
sides of railroad cars; and (5) exemptions from locomotive horns if a
community or subregion's accident experience is under a specified
threshold. These proposals were echoed by the West Central Municipal
Conference and the West Suburban Mass Transit District, both of
suburban Chicago.
Another association of suburban Chicago local governments, the
DuPage [County] Mayors and Managers Conference, emphasized the large
number of rail lines, large number of daily train movements and high
volume of pedestrian and motor vehicle movements over area grade
crossings. The Conference pointed out that the citizens have grown to
rely on locomotive horns in cases of impending danger, not for warning
of the routine approach of a train. The Conference indicates a downward
trend in grade crossing collisions over the past ten years, and
attributes a significant portion of that decline to stepped-up law
enforcement efforts by municipalities and more focused public

[[Page 2238]]

awareness programs. Rather than providing for engineering improvements
to decrease collisions at crossings, the Conference recommends that a
community or subregion be exempt from both locomotive horn soundings
and the requirement to install supplementary safety measures if the
area's collision experience is under a specified threshold. The
Conference states support for aggressive enforcement and education
programs as well as less costly physical barriers such as flexible
median delineator tube. The Conference is also in favor of a state-
level oversight mechanism, rather than federal oversight, ``given the
already close working relationship that must exist between state
highway and rail-related agencies.''
FRA particularly appreciates the efforts of Members of Congress who
have invited FRA to their districts and have provided citizens and
local officials with the opportunity to express their views on this
rulemaking process. These exchanges, and others conducted directly
through FRA's regional crossing managers, have been very valuable in
identifying the need for flexibility in preparing the proposed rule.
In the Chicago region, Rep. Henry Hyde of Illinois chaired a public
meeting attended by the FRA Administrator, with participation by other
Members of Congress and a number of public witnesses. Rep. William
Lipinski also convened a district meeting with the Administrator in
attendance that permitted a full airing of community concerns. These
Chicago-area forums called attention to the large number of commuter
and freight trains that would be required to sound horns along rail
lines where many of the engineering concepts embodied in E.O. 15 would
be difficult or impossible to implement, without substantial revision.
Representatives from DuPage County proposed the concept of aggregating
and abating risk by corridor rather than by crossing, a concept
embodied in this proposal. Concerns were raised by an association of
local governments regarding the identification of crossings currently
impacted by informal bans on train horns, and those concerns led to an
extensive data collection effort to complete the identification of
impacted communities and re-analyze the accident data in light of this
new information. Although most witnesses opposed any rulemaking in this
area, a DuPage County citizen group formed to promote highway-rail
crossing safety supported the use of train horns.
Senior FRA staff members also joined Rep. Tim Roemer and officials
from the State Department of Transportation in meetings with city
officials and citizens from South Bend and Mishawaka, Indiana, to
consider the implications of the forthcoming rulemaking on those
communities, where whistle bans are in place over most crossings.
Concern was expressed that residents along the railroad would have to
``pay the price'' for violation of warning systems by individual
motorists. Serious crashes had occurred along the Conrail line that
bisects these cities, and options were reviewed for making improvements
that might offset the train horn. Cost was identified as a critical
issue for the local governments.
The office of Senator Edward Kennedy convened a meeting involving
FRA senior staff early in the agency's outreach effort that was
attended by several elected officials, who expressed concern over the
prospective rulemaking. Senior FRA staff members attended separate
district meetings in Massachusetts convened by Rep. Martin Meehan and
Rep. John Tierney. These congressional districts are significantly
impacted by scheduled commuter service. Residents and officials called
attention to the generally good safety record at local crossings and
the incompatibility of train horns with the quiet of their communities.
Concern was also expressed regarding the public health effects of loud
train horns and the cost of supplementary safety measures.
Citizens and officials involved in several of these contacts
expressed concern that the proposed rule would impose ``unfunded
mandates'' on local communities. Without exception, the offices of
Members of Congress and Senators contacting FRA in this proceeding have
expressed that FRA seek flexible solutions and allow ample time for
communities with existing whistle bans to adjust to any new
requirements.
Additional issues raised in the course of these contacts, briefings
for congressional staff, and other communications are set forth
elsewhere in this preamble, including the section-by-section analysis.

In-Vehicle Warning Systems

FRA periodically receives suggestions from the public that
electronic devices should be installed on motor vehicles to warn of
approaching trains, thereby eliminating the need for locomotive horns.
Over the long term, systems may be deployed that permit broadcast
notifications to motorists warning of the passage of trains over
highway-rail crossings. If these systems are sufficiently reliable and
use is widespread, sounding of the train horn may be discontinued. This
type of warning may be achieved through integration of Intelligent
Transportation Systems (ITS) deployed for highway use, together with
elements of Positive Train Control (PTC) systems that will govern train
movements and provide accurate data concerning location, direction of
movement and velocity (or that may function on the train to notify
information systems through location-specific interfaces). Such systems
will not be widely deployed for some time, but a clearly delineated
``user service'' (Number 30) has been established within the
architecture of the Intelligent Transportation Systems program as a
venue for research and planning. FRA's PTC Working Group (a part of the
Railroad Safety Advisory Committee) has also identified this as a
possible auxiliary function for PTC.
In the interim, FRA expects progress toward in-vehicle warning for
priority vehicles such as school buses, emergency vehicles and the
like. Concepts for ``proximity warning'' have been evaluated with
Department of Transportation funding at the Transportation Technology
Center, and field operational tests were conducted in 1998. The State
of Illinois is demonstrating a priority vehicle system in the Chicago
metropolitan area. A commercial vendor is offering a radar system for
private motor vehicles that is designed to detect a train's approach,
assuming the lead locomotive to be equipped with a radar unit. FRA will
continue to work with the Federal Highway Administration and other
transportation bodies to identify promising strategies for priority
vehicle warning system.
Consideration has also been given to transmitting train proximity
warnings through new generations of car radios equipped to receive such
transmissions, sound audible warnings, and display text messages. This
Emergency Radio Data System (ERDS) is used in several European
countries and is proposed for demonstration in the U.S. as part of ITS
development. This approach would use consumer electronics as the in-
vehicle platform.
Successful in-vehicle systems will need to meet several criteria in
order to be candidates for wide-scale application to all passenger
motor vehicles: 1. Systems must be fail-safe; or they must be shown to
be so highly reliable that their utility as a warning system exceeds
the loss of safety associated with inappropriate reliance on the system
when in the failure mode. 2. Systems must be affordable for the vehicle
owner, as well as the railroad charged

[[Page 2239]]

with equipping locomotives. 3. False alarms must be infrequent, or the
system will lack credibility and may be subject to being defeated (if
false alarms produce annoyance).
Clearly, before train horns could be silenced, essentially all
trains and motor vehicles would need to be equipped with the in-vehicle
warning system. With respect to private motor vehicles, such a feature
is most likely to be implemented as part of a multi-function ITS
package. Although Intelligent Transportation Systems offer significant
promise for enhancing rail safety and perhaps entirely replacing the
function currently served by the train horn, this alternative is not
available as a realistic option on a community-by-community basis at
the present time.

G. Proposed Rule

FRA has reviewed information obtained through our ``outreach''
efforts, comments submitted to the public docket and other unsolicited
comments sent to the agency by concerned citizens, communities, and
legislators. FRA has considered that information and has attempted,
within the statutory framework established by Congress, to accommodate
many of the legitimate concerns expressed. We anticipate that many
constructive comments will result from public analysis of this proposal
and that the proposed rule may be changed as a result of the public
input. In drafting this proposed rule, FRA has attempted to reconcile
Congress' two, somewhat conflicting, directives. The first directive,
which is unambiguous, is that ``The Secretary of Transportation shall
prescribe regulations requiring that a locomotive horn shall be sounded
while each train is approaching and entering upon each public highway-
rail grade crossing.'' This directive does not allow any discretion as
to issuance of the regulation requiring the sounding of horns. The
Secretary, and by delegation, the Federal Railroad Administrator, must
require that horns are sounded at every public grade crossing. The
second directive, however, is entirely discretionary. The Secretary
``may'' exempt from the requirement to sound the locomotive horn
certain categories of rail operations or categories of crossings. While
exceptions may be crafted, they are not required. This proposed rule,
which does contain provisions for such exceptions, is essentially a
rule which reduces the impact of the Congressional locomotive horn
mandate. It provides communities with the ability to reduce the impact
of locomotive horns within their jurisdictions.
The basis of this proposed rule is the determination by Congress
that locomotive horns provide a measure of safety at highway-rail grade
crossings beyond that provided by the conventional stationary grade
crossing warning systems of crossing gates and flashing lights. Because
of the added safety benefits afforded by locomotive horns, they must be
sounded unless an effective substitute is provided. The proposed rule
is crafted to detail when and how locomotive horns must be sounded. For
the first time, FRA proposes limits to the sound level of locomotive
horns to provide some relief to the surrounding population while still
ensuring that the sound level is high enough to provide the required
warning to the motorist.
The rule requires that horns be sounded at every public highway-
rail crossing. FRA has provided an exception to this requirement for
crossings within a designated ``quiet zone.'' If all crossings within
that zone are equipped with approved supplementary safety measures in
addition to conventional gates and flashing lights, locomotive horns
will not need to be sounded (subject to the rule requirements). The
rule further provides that if a community wishes to establish a quiet
zone, but it can not, for some reason, fully comply with the rule's
requirements for supplementary safety measures at every crossing within
the zone, it may apply to the FRA with its proposed program of safety
measures. FRA will evaluate the community proposal to determine if the
safety measures will compensate for the lack of a locomotive horn.
Finally, the rule provides a very limited exception to the requirement
that supplementary or alternative safety measures must be in place if
locomotive horns are to be silenced.
As required in section ``j'' of the Act, any regulations issued
pursuant to the Act shall not take effect for one year following the
date of publication of the final rule. As a result, the regulation's
requirements to sound the locomotive horn (absent establishment of a
quiet zone) will not be effective until one year after publication of
the final rule. The one year period, in addition to the period between
publication of this proposed rule and the final rule, will enable
communities to assess options and plan for those actions deemed best
for that particular community. FRA anticipates that during the one year
between final rule publication and its effective date, communities will
wish to initiate the administrative process involved in establishing
quiet zones so that, if desired, they can have quiet zones in place on
the anniversary of the rule publication. Therefore, FRA anticipates
that for administrative purposes only, the final rule will have an
effective date 60 days after publication. The final rule, of course,
would not impose any requirement for the sounding of locomotive horns
before one year after final rule publication. FRA requests comments on
this proposal.

Section-By-Section Analysis

Section 229.129 Audible Warning Device

As noted earlier, FRA has a rule at, 49 CFR 229.129, which requires
that each lead locomotive be provided with an audible warning device.
That provision currently requires that the warning device produce a
minimum sound level of 96 dB(A) at 100 feet forward of the locomotive
in its direction of travel. Over the past few years FRA has received
many complaints regarding the loudness of various locomotive horns.
While the regulation appropriately required a minimum sound level in
order to assure the horn's effectiveness, it did not restrict the
maximum sound level of a locomotive horn. This section would correct
that situation and would establish a maximum sound level that an
audible warning device may produce. (Proposed language for this section
can be found at the end of this document following proposed regulatory
language for new Part 222.) This section would also revise the
directionality requirements of the regulation. It would establish a
maximum sound level to the side of the locomotive in order to reduce
the horn's effect on the surrounding community. FRA is faced with the
task of balancing the need for an effective warning to the motorist
while minimizing the horn's intrusion into the surrounding community.
There are a number of factors which influence the ability of a
motorist to hear a train horn. These include: The sound spectrum level
(intensity at each frequency) of the horn, distance from the horn,
ambient noise spectrum level in the motor vehicle, the acoustic
insertion loss of the vehicle (sound reflected and absorbed by the
vehicle which does not enter the vehicle interior), and the
characteristics of the grade crossing. The human ear is only sensitive
to sounds between 20 and 20,000 hertz (Hz), and is most sensitive in
the range between 500 and 5,000 Hz. Hearing sensitivity declines
sharply for higher and lower frequencies. As distance from a sound
source increases, the effective intensity of the sound

[[Page 2240]]

decreases by approximately 7.5 dB for every doubling of the distance.
For instance, if the calibrated intensity of the train horn at 100 feet
is 100 dB(A), then at 200 feet it is 92.5 dB(A). Ambient noise in the
vehicle can reduce the motorist's ability to hear the train horn
through masking. Masking would be strongest when the frequency of the
noise is at the same frequency of the train horn. In general, this
means that the spectrum level of the horn inside the vehicle must
exceed that of ambient noise for the horn to be heard. Determining the
required minimum level and the required maximum level for the train
horn requires a balance between effectiveness as a safety warning and
mitigation of undesirable community noise impacts. In the past, some
mitigation of noise impacts has occurred through exercise of discretion
by locomotive engineers who have sought to limit community impacts by
``going easy'' on the air horn control. A Federal mandate to use this
warning device will inevitably change accepted practice. Although
engineers have undoubtedly sought to exercise good judgment in this
regard, whether this exercise of discretion has been uniformly benign
is not known and not determinable using existing data.
Recent installation on some newer locomotives of electronic
controls for operation of horns may have resulted in the maximum
intended sound levels routinely under all circumstances. Again, whether
this automation of the horn function has improved safety cannot be
determined from available data. Although highway-rail crossing safety
has continued to improve during this period despite increased exposure,
many other variables (such as improved education and awareness
programs, strengthened law enforcement, equipping of locomotives with
alerting lights, installation of warning devices at high-risk
crossings, and crossing closures) are likely responsible for most of
this improvement.
Even the maximum sound level available from the horn has varied
widely among segments of the locomotive and cab car fleets. FRA is
aware that a major commuter authority sets the output of the horns on
at least a portion of its commuter equipment at the minimum allowed (96
dB(A) at 100 feet, ``plus or minus'' 4 dB(A) for actual field testing).
By contrast, many freight locomotives have horns that deliver as much
as 114 dB(A) at 100 feet in front of the locomotive. Locomotive horns
that proved highly effective in the warm climate through which the
Florida East Coast Railway operates (where many motorists may have
driven with open vehicle windows in mild nighttime hours) have
apparently been set at about 104 dB(A), but it may not be reasonable to
expect similar effectiveness at this level under other conditions. FRA
is particularly concerned that railroads not be required to reduce horn
levels across the board to accommodate local community sensitivities,
if that will result in reduced horn effectiveness at the majority of
crossings that are not located in tightly-developed noise-sensitive
areas.
The Volpe National Transportation Systems Center (Volpe Center) has
been studying train horn issues for FRA in support of this rulemaking.
Based upon field data collection and analysis the Volpe Center has
suggested that, for peak safety effectiveness, train horns should be
set at approximately 111-114 dB(A). This range takes into consideration
the need to provide adequate advance warning to as many motorists as
practical.
This would include a high percentage of motorists stopped, or
approaching at low speed, crossings with automated warning devices.
Behavioral science suggests that these motorists may have an
expectation that a train is nearing the crossing. Under these
circumstances, the train horn can be very effective because the
motorist is listening for an auditory cue. Even if the ``insertion
loss'' associated with closed vehicle windows and sound insulation is
in the range of 18 to 45 dB(A), and despite some degree of background
noise associated with the vehicle's engine and other interfering noise,
the train horn should add significant value in these cases. Preliminary
analysis by the Volpe Center appears to indicate that under most
circumstances of crossing configuration and train speed, a train horn
set in the range of 104-105 dB(A) at 100 feet in front of the
locomotive may provide a sufficient auditory cue to alert the motorist
who pauses at a crossing with active warning systems that the arrival
of the train is imminent.
The greater challenge is presented by passively signed crossings.
Although FRA does not propose to allow banning of train horn use at
passively signed crossings and crossings with only flashing lights, the
train horn will nevertheless remain an important warning system at
those crossings. Reducing the allowed sound level by setting a maximum
in this proceeding could thus lead to a net reduction in safety. At
passively signed crossings, overall risk to the public is generally
less because of fewer conflicting movements of trains and vehicles.
However, the risk to any given motorist seeking to use the crossing
during the period a train is approaching is much higher. Motorists
seeking to act wisely by yielding to the train are entitled to fair
warning of the train's approach. Even with all lights (headlight and
``ditch'' lights) functioning, a train is sometimes difficult to pick
out against the visual background. Further, due to such factors as
buildings, mature stands of trees, track curvature, and the angle of
motorists' approach, sight distances at many crossings do not permit a
long preview of the train's approach. A sufficiently loud auditory
warning will tell the motorist that a train is approaching and from
what direction (within about 10 degrees for a person of good hearing in
both ears under optimum circumstances). This will give the motorist
more opportunity to sight the oncoming train at the first opportunity,
evaluate its rate of approach, and make a safe decision.
The challenge at passively signed crossings is to provide warning
sufficiently early to affect motorist behavior. This is more difficult,
because the motorist approaching the crossing in most cases (except
where an enforced STOP sign is present) will not stop and may not slow
down except as required by unevenness of the road surface. The
motorist's decision point is thus farther away from the crossing and
(in the typical case) from the train horn. According to the Volpe
Center, a vehicle traveling at 30 miles per hour may have interior
noise level in the range of 21 to 63 dB(A) from its engine and typical
road noise. A loud sound system playing music or other programming will
add to this background noise. Depending upon the train horn harmonics,
the Volpe Center estimates that a horn sound level in the range of 111-
114 dB(A) may be sufficient to warn most motorists at passive crossings
for all conventional train speeds, despite the fact that the horn sound
as inserted into the vehicle must exceed the background noise by a
larger margin than at crossings with automated warning devices in order
to seize the motorists' attention. However, reducing the train horn
level from that range is expected to result in a rather rapid fall-off
of effectiveness at passively signed crossings. The result will be that
the horn will be effective only at lower combined closing speeds for
the vehicle and train approaching the crossing, leaving motorists
without effective warning under a larger number of real-life scenarios.
Community impacts are also highly sensitive to train horn levels--
but in the opposite direction. Volpe Center calculations suggest, for
instance, that just reducing train horn levels from 114

[[Page 2241]]

dB(A) to 111 dB(A) would almost double the number of train movements
permitted before a common 24-hour measure of acceptable community noise
levels (Ldn=65 dB(A)) is exceeded at any given distance from the
railroad right-of-way. This measure of acceptable community noise
levels was developed to evaluate noise from frequent transportation
movements (aircraft overflights, transit vehicle passes), in connection
with public investments in new transportation facilities and equipment.
FRA has grave reservations concerning whether such a standard could be
appropriately applied to evaluate the acceptability of short-duration
warning sounds necessary for safety in an existing transportation
system. Train horn noise has been excepted from Environmental
Protection Administration limits on railroad noise emissions because of
these kinds of differences. Nevertheless, FRA recognizes the importance
of imposing no greater noise impacts on local communities than may be
necessary for safety. Accordingly, as discussed below FRA will be
conducting an environmental assessment in parallel with this rulemaking
and utilizing the results of that effort in preparing a final rule.
FRA does not propose to conclude this rulemaking without setting a
maximum level for the train horn. Although FRA is skeptical, based on
noise readings taken in locomotive cabs, that train horns have been set
at levels exceeding approximately 114 dB(A)--a level that does not
appear excessive given the safety needs involved--FRA does recognize
that the mandate to use the horn implicates a responsibility to set a
maximum level. For purposes of this proposed rule, therefore, FRA is
proposing two specific options, with a third concept suggested for
comment. Under both options the minimum level would remain at 96 dB(A).
However, in order to avoid significant loss of warning effectiveness,
field tests would not include the current ``plus or minus'' allowance
for error. Tests in the field would be required to demonstrate a sound
level of at least 96 dB(A) at 100 feet in front of the locomotive and
to comply with a specified maximum level. To avoid non-representative
results caused by environmental extremes, testing would be required to
be conducted within a range of temperature of 36 and 95 degrees
Fahrenheit with relative humidity between 20 and 90 percent. Both
temperature and humidity affect the propagation of sound waves.
Options for maximum level. Under the first option, the maximum
permissible train horn sound level would not exceed 104 dB(A), which is
believed to be sufficient in most circumstances to provide adequate
warning at crossings using automated warning devices (where the
motorist makes a decision while at rest near the crossing, expecting
the train to arrive). Under the second option, the train horn could be
set at up to 111 dB(A), which is in the range where the horn is
believed to be effective under many circumstances at passively signed
crossings (where the motor vehicle is in motion at the decision point
and the motorist have been provided no contemporaneous reason to expect
to see a train). As soon as they are completed, FRA will place in the
docket Volpe Center studies providing information pertinent to this
analysis.
Variable level option. FRA notes that one possible approach to
addressing this issue is a variable horn level. Under this approach,
train horns would be required to be capable of sounding within a low
range (e.g., 96-104 dB(A)) approaching any crossing with active warning
devices and within a higher range (e.g., 104-111 dB(A)) at any crossing
not equipped with automated warning systems. FRA notes concern that
this could place an additional burden on the locomotive engineer and
that sounding the horn in this pattern would not be feasible where
crossings are closely spaced and are not uniformly treated with
automated warning devices. Accordingly, at a minimum simplified
procedures requiring the engineer to take the safe course would be
required in these circumstances. Commenters are asked to evaluate this
approach as a third option.
Directionality. Under current regulations, some locomotive horns
have been placed near the center of the locomotive in order to reduce
crew noise exposure. Although providing at least 96 dB(A) at 100 feet
in front of the locomotive, these arrangements have sometimes led to
higher sound levels at right angles to the locomotive than to the front
or rear. This has resulted from obstructions such as diesel exhaust
stacks and air conditioning units causing the horn noise to disperse.
FRA believes that this approach is not necessary for crew safety and is
inconsistent with the responsibility of the transportation company to
limit community noise impacts. Accordingly, the proposed rule would
require that the sound levels at 90 degrees and 100 feet from the
center of the locomotive not exceed the value 100 feet in front of the
locomotive. FRA also requests comment whether this community exposure
should be measured at 90 degrees from the horn placement location,
rather than the center of the locomotive.
Crew safety concerns. FRA does not expect locomotive crew exposure
to be a limiting factor in this rulemaking. In a 1996 Report to
Congress entitled Locomotive Crashworthiness and Cab Working
Conditions, FRA described the results of a survey of cab noise levels
and the literature dealing with occupational hearing loss. The report
found noise exposure for most locomotive assignments to fall within
acceptable levels and noted that cabs of new locomotives are
exceptionally quiet because they provide an environment that is
isolated from the locomotive structure and temperature controlled
(permitting windows to remain closed). However, the report identified
the need to improve FRA's noise exposure standard for locomotive cabs
and to adopt a hearing conservation approach to this area of
occupational safety and health. A working group of the Railroad Safety
Advisory Committee is currently pursuing these improvements, and
comments from within that working group have prompted the suggestion
noted above for a variable sound level for the horn. Depending upon the
circumstances under which the low sound level might be selected by the
locomotive engineer, having this option available could reduce the
overall noise dose to which crew members are subjected during any duty
tour. In any event, FRA expects that continued improvements in
locomotive design, use of personal hearing protection, and other
initiatives now under study should permit further reduction in
occupational noise exposure over the coming years.
Costs. FRA recognizes that varying the loudness of the locomotive
horn by adapting to a new maximum level, providing for a variable
level, or relocating a horn to avoid excessive levels to the ``field''
could result in costs to the railroads. FRA requests comment on the
extent of the costs involved and the optimum means of achieving any
necessary retrofit of locomotives, including the period that should be
allowed to accomplish this work.

Section 222.3 Application

The requirements contained in this part apply to all railroads,
both passenger and freight, which operate on the general railroad
system of transportation, i.e., the network of standard gage railroads
over which the interchange of goods and passengers throughout the
nation is possible. This part does not apply to exclusively freight
railroads that operate only on track which is not part of the general

[[Page 2242]]

system of transportation. This part also does not apply to rapid
transit operations within an urban area that are not connected to the
general railroad system of transportation.
In other recent rulemakings, FRA has discussed the basis for its
exercise of jurisdiction over ``scenic'' or ``tourist'' railroads. FRA
has declined to exercise jurisdiction over insular scenic or tourist
railroads i.e., passenger railroads operating inside an installation so
that the operations are limited to a separate enclave in such a way
that there is no reasonable expectation that the safety of the public--
except a business guest, licensee of the railroad or an affiliated
entity, or a trespasser--would be affected the operation. FRA has
determined that the presence of certain characteristics will prevent
the railroad from being considered insular and thus will result in
FRA's exercise of jurisdiction over that railroad. The presence of one
of the following characteristics will trigger the assertion of FRA
regulatory jurisdiction: (1) A public highway-rail crossing that is in
use; (2) an at-grade rail crossing that is in use; (3) a bridge over a
public road or waters used for commercial navigation; or (4) a common
corridor with a railroad, i.e., its operations are within 30 feet of
those of any railroad. Inasmuch as this proposed rule is directed at
locomotive horn use at public highway-rail grade crossings, the rule
will thus apply to every tourist or scenic railroad crossing a public
highway rail grade crossing, whether or not the railroad is part of the
general railroad system of transportation. The language of this
proposed section reflects that result.
FRA recognizes that additional public grade crossings may be found
on plant railroads and freight railroads which are not part of the
general railroad system of transportation. Operations on these
railroads are typically low speed with small numbers of rail cars
permitting relatively short stopping distances. Additionally, these
operations typically also involve roadway crossings with relatively low
speed vehicular traffic. These reasons, together with the historical
basis for not asserting jurisdiction in these cases, leads FRA to
propose not to exercise jurisdiction over public and private crossings
at such plant and private railroads. FRA does, of course, retain the
statutory right to assert jurisdiction in this area and will do so if
circumstances so warrant. As in all aspects of this proposed rule, FRA
invites comments on the jurisdictional determinations proposed in this
notice.
Section (f) of the Act explicitly gives discretion to the Secretary
on the question of whether to subject private highway-rail crossings,
pedestrian crossings, and crossings utilized primarily by nonmotorized
vehicles and other special vehicles to this regulation. At this time,
FRA is proposing to exercise its jurisdiction in a limited manner
regarding these crossings.
Although some private crossings experience heavy rail and motor
vehicle use, we do not have sufficient information as to present
practices, the number and type of such diverse crossings, and the
impacts of locomotive horns at such crossings. Thus, FRA will not at
this time require that the locomotive horn be sounded at private
highway-rail crossings. Whether horns must be sounded at such crossings
will remain subject to state law (if any) and agreements between the
railroad and the holder of crossing rights. FRA will, however, permit
the establishment of quiet zones on rail line segments which include
private crossings. To do otherwise would undermine a major purpose of
the Act.
While we believe that, absent compensating warning or protective
devices, sounding of locomotive horns provides a safer highway-rail
crossing, it may be sufficient that the locomotive bell, rather than
horn, be rung prior to entering a pedestrian or other non-highway
crossing. At such crossings, pedestrians, horse-drawn vehicles,
bicycles, and equestrians enter the crossing at a significantly slower
speed than motor vehicles, are not enclosed as in an automobile or
truck, and do not face the same distractions as those confronting
motorists. FRA therefore proposes to decline to exercise jurisdiction
over the use of locomotive horns at such crossings.

Section 222.5 Preemptive Effect

This section provides notice that pursuant to 49 U.S.C. 20106,
issuance of these regulations preempts any State law, rule, regulation,
or order covering the same subject matter, except a provision necessary
to eliminate or reduce an essentially local safety hazard, that is not
incompatible with Federal law or regulation and does not unreasonably
burden interstate commerce. Accordingly, all existing local ordinances
and state statutes relating to whistle bans or to the sounding of
locomotive horns at public highway-rail crossings will be preempted by
this regulation unless such ordinances or laws fall within the
exception contained within 49 U.S.C. Sec. 20106. This rule, however,
does not confer authority on localities to establish quiet zones if
state law does not otherwise permit such actions.

Section 222.7 Definitions

This proposed rule uses various terms which are not widely
understood or which, for purposes of this rulemaking, have very
specific definitions. This section defines the following terms:
``Barrier curb'' means a highway curb designed to discourage a
motor vehicle from leaving the roadway. FRA proposes to define such
curb as a curb more than six inches, measured from the surface of the
roadway. As with mountable curbs and channelization devices, additional
design requirements are left to the standard specifications used by the
governmental entity constructing the engineering improvements.
``Channelization device'' means one of a continuous series of
highly visible obstacles placed between opposing highway lanes designed
to alert or guide traffic around an obstacle or to direct traffic in a
particular direction. Channelization devices must be at least 2.5 feet
high and placed a maximum of seven feet apart.
``Effectiveness rate'' means the effectiveness of a supplementary
safety measure in reducing the probability of a collision at a highway-
rail grade crossing. (Effectiveness is indicated by a number between
zero and one which represents the reduction of the probability of a
collision as a result of the installation of a supplementary safety
measure when compared to the same crossing equipped with conventional
automated warning systems of flashing lights, gates and bells. Zero
effectiveness means that the supplementary safety measure provides no
reduction in the probability of a collision (there is no effectiveness)
while an effectiveness rating of one means that the supplementary
safety measure is totally effective in reducing collisions.
Measurements between zero and one reflect the percentage by which the
supplementary safety measure reduces the probability of a collision.
Thus, a supplementary safety measure with an effectiveness of .37
reduces the probability of a collision by 37 percent).
``Locomotive horn'' means a locomotive air horn, steam whistle, or
similar audible warning device mounted on a locomotive or control cab
car. The terms ``locomotive horn'', ``train whistle'', ``locomotive
whistle'', and ``train horn'' are used interchangeably in the railroad
industry. Specifications concerning audible warning devices on
locomotives other than steam locomotives are contained in 49 CFR
229.129.
`'Median'' means an ``island'' or the portion of a divided highway
separating

[[Page 2243]]

the travel ways for traffic in opposite directions. A median is bounded
by mountable or barrier curbs.
``Mountable curb'' means a highway curb designed to permit a motor
vehicle to leave a roadway when required. It is a curb not more than
six inches high measured from the roadway surface, with a well rounded
top edge. Additional design specifications are determined by the
standard traffic design specifications used by the governmental entity
constructing the mountable curb.
``Positive train control territory'' means, for purposes of this
part, a line of railroad on which railroad operations are governed by a
train control system which is capable of determining the position of
the train in relation to a highway-rail grade crossing and capable of
computing the time of arrival of the train at the crossing which
results in the automatic operation of the locomotive horn or the
automatic prompting of the locomotive engineer such that the horn is
sounded at a predetermined time prior to the locomotive's arrival at
the crossing.
`'Public highway-rail grade crossing'' means a location where a
public highway, road, or street, including associated sidewalks or
pathways, crosses one or more active railroad tracks at grade. Public
highway-rail grade crossing, also referred to in this part as
``highway-rail crossings'', ``public grade crossing'', and ``grade
crossing'', includes pedestrian walkways or other pathways when
associated or part of a larger public highway, road or street crossing.
``Quiet zone''means a segment of a rail line within which is
situated one or a number of consecutive highway-rail crossings at which
locomotive horns are not routinely sounded.
``Railroad'' means any form of nonhighway ground transportation
that runs on rails or electromagnetic guideways and any entity
providing such transportation, including (i) Commuter or other short-
haul railroad passenger service in a metropolitan or suburban area and
commuter railroad service that was operated by the Consolidated Rail
Corporation on January 1, 1979; and (ii) high speed ground
transportation systems that connect metropolitan areas, without regard
to whether those systems use new technologies not associated with
traditional railroads; but does not include rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation.
``Supplementary safety measure'' means a safety system or procedure
established in accordance with this part which is provided by the
appropriate traffic control authority or law enforcement authority and
that is determined by the Administrator to be an effective substitute
for the locomotive horn in the prevention of highway-rail casualties.
``Whistle board'' means a post or sign directed toward oncoming
trains and bearing the letter ``W'' or equivalent symbol, erected at a
distance from a grade crossing, which indicates to the locomotive
engineer that the locomotive horn should be sounded beginning at that
point.

Section 22.9 Penalties.

This provision provides civil penalties for violations of
requirements of this regulation. Any person or railroad who violates or
causes a violation is subject to a civil penalty of up to $11,000.
Penalties may be assessed against individuals only for willful
violations. Penalties of up to $22,000 can be assessed for violations
caused by gross negligence, or where a pattern of violations has
created a risk or was the cause of death or injury to any person.
Maximum penalties of $11,000 and $22,000 are required by the Federal
Civil Penalties Inflation Adjustment Act of 1990 (Pub.L. 101-410) (28
U.S.C. 2461 note), as amended by the Debt Collection Improvement Act of
1996 (Pub.L. 104-134, 110 Stat. 1321-373) which requires each agency to
regularly adjust certain civil monetary penalties in an effort to
maintain their remedial impact and promote compliance with the law.

Section 222.11 Petitions for Waivers

This section explains the process for requesting a waiver from a
provision of this regulation. FRA has historically entertained waiver
petitions from parties affected by an FRA regulation. In many
instances, a regulation, or specific section of a regulation, while
appropriate for the general regulated community, may be inappropriate
when applied to a specific entity. Circumstances may make application
of the regulation to the entity counter-productive; an extension of
time to comply with a regulatory provision may be needed; or
technological advancements may result in a portion of a regulation
being inappropriate in a certain situation. In such instances, FRA may
grant a waiver from its regulations. The rules governing FRA's waiver
process are found in 49 CFR part 211. In summary, after a petition for
a waiver is received by FRA, a notice of the waiver request is
published in the Federal Register, an opportunity for public comment is
provided, and an opportunity for a hearing is afforded the petitioning
or other interested party. FRA, after reviewing information from the
petitioning party and others, will grant or deny the petition. In
certain circumstances, conditions may be imposed on the grant of a
waiver if FRA concludes that the conditions are necessary to assure
safety or if they are in the public interest. Because this regulation's
affected constituency is broader than most of FRA's rail safety
regulations, the waiver process is proposed to be somewhat different.
Paragraphs (a) and (b) address the aspects which are different than
FRA's customary waiver process. However, as paragraph (c) makes clear,
once an application is made pursuant to either paragraph (a) or (b),
FRA's normal waiver process, as specified in 49 CFR part 211, applies.
Paragraph (a) of this section addresses jointly submitted waiver
petitions as specified by 49 U.S.C. 20153(d). Such a petition must be
submitted by both the railroad whose tracks cross the highway and by
the appropriate traffic control authority or law enforcement authority
which has jurisdiction over the roadway crossing the railroad tracks.
Although Sec. 20153(d) requires that a joint application be made before
a waiver of a provision of this regulation is granted, FRA, in
paragraph (b), addresses the situation that may occur if the two
parties can not reach agreement to file a joint petition. Section
20153(I)(3) gives the Secretary (and the Federal Railroad
Administrator) the authority to waive in whole or part any requirement
of Sec. 20153 (with certain limited exceptions) if it is determined not
to contribute significantly to public safety. FRA thus proposes to
accept individually filed waiver applications (under certain
conditions) as well as jointly filed applications. In an effort to
encourage the traffic control authority and the railroad to agree on
the substance of the waiver request, FRA proposes to require that the
filing party specify the steps it has taken in an attempt to reach
agreement with the other party. Additionally, the filing party must
also provide the other party with a copy of the petition filed with the
FRA.
It is clear that FRA prefers that petitions for waiver reflect the
agreement of both entities controlling the two transportation modes at
the crossing. If agreement is not possible, however, FRA will entertain
a petition for waiver, but only after the two parties have attempted to
reach an agreement on the petition.

[[Page 2244]]

Paragraph (c) provides that each petition for a waiver must be
filed in the manner required by 49 CFR part 211.
Paragraph (d) provides that the Administrator may grant the waiver
if the Administrator finds that it is in the public interest and that
safety of highway and railroad uses will not be diminished. The
Administrator may grant the waiver subject to any necessary conditions
required to maintain public safety.

Subpart B--Use of Locomotive Horns

Section 222.21 When To Use Locomotive Horns

Paragraph (a) of this section would require that, except as
provided elsewhere in this part, a locomotive horn on the lead
locomotive of a train, or the lead locomotive of a consist of
locomotives, or on an individual locomotive must be sounded when the
locomotive or lead car is approaching and passes through each public
highway-rail crossing. The locomotive 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. FRA is adopting the industry
standard as the required indicator of the approach of a locomotive to a
crossing. This paragraph also requires that the horn be blown at the
location required in paragraph (b) and that the horn warning be
repeated or prolonged until the locomotive or train occupies the
crossing.
The remaining paragraphs of this section address the specific
location at which the sounding of the locomotive horn should be
initiated. Establishment of this point is important both to provide
adequate warning to the motorist and also to not unnecessarily impose
the loud locomotive horn noise upon the surrounding community.
In drafting paragraph (b), FRA has attempted to address the fact
that various states have long established requirements governing the
location at which the horn must be sounded. Although those requirements
would be preempted by this rule, rather than require immediate
wholesale changes of whistle boards and timetable instructions, FRA is
not proposing to immediately change the practical effects of present
state requirements, if any. However, if a railroad changes the maximum
authorized track speed on a line of railroad approaching a grade
crossing, the location where the locomotive engineer is required to
sound the horn (as indicated by whistle board or other method) must
then be adjusted to reflect the change. The adjustment at that time
would be made irrespective of conflicting state law.
This paragraph further establishes (within the \1/4\ mile
limitation contained in paragraph (e)) the location at which the
locomotive horn should be sounded. If using whistle boards, the
railroad must place them at a distance from the crossing equal to the
distance traveled by a train in 20 seconds while operating at the
maximum speed allowed for any train operating on the track in that
direction of movement. Because a fixed location for sounding of a horn
results in differing periods of warning depending on the speed of the
train or locomotive, the location of a whistle board must therefore be
dependent on the fastest train operating over that track. If a railroad
decreases the maximum authorized speed of trains operating over a
crossing, the whistle board must be moved closer to the crossing in
order to provide 20 seconds of warning. Conversely, if the maximum
authorized speed is increased, then the whistle board must be placed
farther from the crossing to maintain the 20 second warning time.
Paragraph (b) further provides that if the railroad uses methods or
systems other than whistle boards to indicate when the horn should be
sounded (such as positive train control systems), that system should
ensure that the horn is sounded not less than 20, nor more than 24
seconds before the locomotive enters the grade crossing.
Paragraph (c) addresses the situation in which a state does not
have on the effective date of this rule, a specific requirement for
placement of whistle boards or specific distance requirements for the
sounding of a horn. In that case, a railroad must take the same actions
as are required when it adjusts maximum authorized speed in paragraph
(b) above; if using whistle boards, the railroad must (within the \1/4\
mile limitation contained in paragraph (e)) place them at a distance
from the crossing equal to the distance traveled by a train in 20
seconds while operating at the maximum speed allowed for any train
operating on the track in that direction of movement. If the railroad
uses methods or systems other than whistle boards to indicate when the
horn should be sounded (such as positive train control systems), that
system should ensure that the horn is sounded not less than 20 seconds,
nor more than 24 seconds before the locomotive enters the grade
crossing. These provisions, together with the definition of ``positive
train control'' are based on the long held assumption that sounding the
locomotive horn for 20 seconds before entering the grade crossing
provides the optimum length of warning. Recent research, however, tends
to indicate that 15 seconds of advance warning may be sufficient,
especially where active warning systems are in place at the crossing.
FRA requests comments on the proper length of time and under what
circumstances locomotive horns should be sounded.
Paragraph (d) provides that each railroad, irrespective of state
law to the contrary, must promptly adjust the location of each whistle
board to reflect changes in maximum authorized track speeds, except
where all trains operating over that crossing are equipped to be
responsive to a positive train control system. This paragraph mandates
that if a railroad decreases the maximum authorized speed of trains
operating over a crossing, the whistle board must be moved closer to
the crossing. Conversely, if the maximum authorized speed is increased,
then the whistle board must be placed farther from the crossing.
Railroads must ensure that whistle boards are placed at a distance from
each crossing equal to the distance traveled by a train in 20 seconds
while operating at the maximum speed allowed for any train operating in
that direction of movement.
Paragraph (e) establishes a maximum distance of \1/4\ mile before a
crossing, over which a train horn may be sounded, regardless of train
speed. Sound diminishes at a rate of approximately 7.5dB(A) for each
doubling of distance. Thus, a locomotive horn registering 100dB(A) at
100 feet in front of the locomotive will have diminished to roughly 75
dB(A) at \1/4\ mile (1,320 feet) in front of the locomotive. That
distance is likely near the outer margin of utility in terms of
alerting the motorist to oncoming trains at that particular crossing.

Section 222.23 Emergency and Other Uses of Locomotive Horns

Paragraph (a) of this section is meant to make clear that even at
grade crossings subject to quiet zone conditions, locomotive engineers
may sound the locomotive horn in emergency situations. Nothing in this
part is intended to prevent an engineer from sounding the locomotive
horn to provide a warning to vehicle operators, pedestrians,
trespassers or crews on other trains in an emergency situation if, in
the engineer's sole judgment, such action is appropriate in order to
prevent imminent injury, death or property damage. Establishment of a
quiet zone does not prevent an engineer from sounding the horn in such
situations, nor does it impose a legal duty to do so. Additionally,
paragraph (b) provides

[[Page 2245]]

that nothing in this part restricts the use of the horn to announce the
approach of the train to roadway workers in accordance with a program
adopted under 49 CFR part 214. This regulation is not meant to restrict
the use of the locomotive horn when active crossing warning devices
have malfunctioned and use of the horn is required by either 49 CFR
234.105 (activation failure), 234.106 (partial activation), or 234.107
(false activation).

Subpart C--Exceptions To Use of the Locomotive Horn

Section 222.31 Train Operations Which Do Not Require Sounding of Horns
at Individual Crossings

This section addresses the situation in which locomotive horns need
not be sounded even though the crossing is not part of a quiet zone.
Locomotive horns need not be sounded at individual highway-rail grade
crossings at which the maximum authorized operating speed (as
established by the railroad) for that segment of track is 15 miles per
hour or less and properly equipped flaggers (as defined by 49 CFR
234.5) provide warning to motorists. These limited types of rail
operations do not present a significant risk of loss of life or serious
personal injury and thus, under the Act, may be exempted from the
requirement to sound the locomotive horn. Locomotive horns will still
be required to be sounded if automatic warning systems have
malfunctioned and the crossing is being flagged pursuant to 49 CFR
234.105, 234.106, or 234.107. Horns will still be required in these
limited circumstances in order to offset the temporary loss of the
active warning which motorists have presumably come to rely on.
This section is an exception to the requirement that silencing of
locomotive horns must include all crossings within a designated quiet
zone. This section permits a railroad, on its own initiative, to
silence its horns at individual crossings under certain circumstances
in which the safety risk is low. The primary purpose of this section is
not the same as that of Sec. 222.35 (``Establishment of quiet zones'').
Rather than silencing horns for the benefit of the surrounding
community, this section will be used primarily at crossings located in
industrial areas where substantial switching occurs, and would avoid
unnecessary noise impacts on those railroad personnel working on the
ground in very close proximity to the locomotive horn. This section
recognizes that under the noted conditions, public and railroad safety
do not require the sounding of locomotive horns--a railroad is thus
free to eliminate them. Since the primary beneficiary of this section
is not nearby residences, the reasoning for the establishment of quiet
zones rather than individual quiet crossings would not be applicable
here. There is no additional burden placed on an engineer in this
situation since the flagger will generally be a member of the train
crew itself, and the engineer will not be placed in the position of
having to determine when horns must be silenced or sounded as would be
the case if horns could be silenced on an individual crossing basis.
Additionally, prevention of noise spill-over from a crossing would not
be a consideration in these situations.
FRA has considered whether railroad operations involving less
frequent service and slow speeds, such as railroad operations typically
associated with short lines and secondary lines, should also be
categorically excluded from the requirement to sound locomotive horns
based on the premise that they do not present a significant risk of
loss of life or serious personal injury. Another factor which could be
considered in addition to the above factors is the level of highway
traffic over the crossing. While FRA is not proposing at this time to
categorically exclude crossings based on these factors, FRA solicits
comments, and specific suggestions as to the desirability of
categorically excluding certain crossings based on a combination of the
above factors or other characteristics of crossings that significantly
affect risk. Inclusion of supporting data and analysis is encouraged.

Section 222.33 Establishment of Quiet Zones

Methods of Establishing a Quiet Zone
This section addresses the manner in which quiet zones are
established. A quiet zone is defined as a segment of rail line within
which is situated one or a number of consecutive highway-rail crossings
at which locomotive horns are not routinely sounded. The concept of
quiet zones is crucial to understanding the intent and thrust of this
proposed rule. While it would be possible to approve a ban on
locomotive whistles on a case-by-case, or a crossing-by-crossing basis,
the desired result of less disruption to the surrounding community by
locomotive horn noise would be minimal. Because a locomotive horn must
be sounded well in advance of a grade crossing, the noise spill-over
from a crossing not subject to a ban could still disrupt the community
near a crossing where horns are banned. As a result, the concept of a
quiet zone was developed, which would essentially fulfill the following
purposes: ensure that a whistle ban would have the greatest impact in
terms of noise reduction; ease the added burden on locomotive crews of
the necessity of determining on a crossing-by-crossing basis whether or
not to sound the horn; and enable grade crossing safety initiatives to
be focused on specific areas within the quiet zone.
FRA proposes two different methods of establishing quiet zones,
depending on local circumstances. In one method (provided for in
Sec. 222.33(a)), every public grade crossing within the proposed quiet
zone would have a supplementary safety measure applied to the crossing.
These measures, which are listed in Appendix A, have been determined by
FRA to be an effective substitute for the locomotive horn in the
prevention of highway-rail grade crossing casualties. In other words,
these measures each have an effectiveness rate which is at least
equivalent to that of a locomotive horn. Because each highway-rail
grade crossing would be upgraded from the standard flashing lights and
automatic gates to a crossing with a supplementary safety measure,
FRA's role would be minimal. The governmental entity establishing the
quiet zone would only need to designate the extent of the quiet zone,
install the supplementary safety measures, and comply with various
notice and information requirements of Sec. 222.35(a).
Another method (provided for in Sec. 222.33(b)) of establishing a
quiet zone permits a governmental entity greater flexibility in using
supplementary safety measures or other types of safety measures
(alternative safety measures) to deal with problem crossings. While
Appendix A lists those measures which FRA believes fully compensate for
the lack of a locomotive horn, Appendix B includes all Appendix A
measures and adds other safety measures whose success in compensating
for the locomotive horn is dependent on the level of time and effort
expended by the community. Such measures include public safety
education and increased law enforcement programs. Using a combination
of supplemental safety measures from Appendix A, alternative safety
measures listed in Appendix B, and tailoring supplemental safety
measures to unique circumstances at specific crossings, the
governmental entity is provided with a greater level of flexibility
than is available using only supplementary safety measures from
Appendix A. Another major difference in this approach from the earlier
method

[[Page 2246]]

is the manner in which risk is viewed. In this more flexible approach,
risk will be viewed in terms of the quiet zone as a whole, rather than
at each individual grade crossing. Thus, FRA would consider a quiet
zone under this approach that does not have a supplemental safety
measure at every crossing as long as implementation of the proposed
supplementary and alternative safety measures on the quiet zone as a
whole will cause a reduction in risk to compensate for the lack of a
locomotive horn. If the aggregate reduction in predicted collision risk
for the quiet zone as a whole is sufficient to compensate for the lack
of a horn, a quiet zone may be established.
Because of the greater flexibility and the greater variation in
possible risk reduction, FRA would take a much more active role in
reviewing the approach of the governmental entity. Paragraph (b) of
this section provides that a state or local government may apply to the
FRA Associate Administrator for Safety for acceptance of a quiet zone,
within which one or more safety measures identified in Appendix B
(alone or together with supplementary measures identified in Appendix
A), will be implemented. The application for acceptance must contain a
commitment to implement the proposed safety measures within the
proposed quiet zone. The applying entity must demonstrate through data
and analysis that implementation of the proposed measures will effect a
reduction in risk at public highway-rail crossings within the quiet
zone sufficient to equal the reduction in risk that would have been
achieved through the use the locomotive horn.
It is important to note that, as required in paragraph (d) of this
section, all public highway-rail crossings in a quiet zone, except for
those exceptions contained in Sec. 222.31 and Appendix C, must be
equipped with automatic gates and lights that conform to the standards
contained in the Manual on Uniform Traffic Control Devices.
Under paragraph (b)(2), the FRA Associate Administrator for Safety
may take one of three actions in response to a state or local
government application: (1) The quiet zone may be accepted as proposed;
(2) the Associate Administrator may accept the proposed quiet zone
under additional conditions designed to ensure that the safety measures
fully compensate for the absence of the warning provided by the
locomotive horn; or (3) the proposed quiet zone may be rejected if, in
the Associate Administrator's judgment, the proposed safety measures do
not fully compensate for the absence of the warning provided by the
locomotive horn.
Paragraph (c) addresses the categories of crossings which the
Administrator has determined do not present a significant risk with
respect to loss of life or serious personal injury if the locomotive
horn is not sounded. In the very limited situations listed, neither
supplementary safety measures, nor lights, gates and bell are required
at the crossing. Appendix C contains a list of those criteria which
must be met for a quiet zone to be established under this provision.
The criteria include: Maximum authorized train speed as established by
the railroad does not exceed 15 miles per hour; the train travels
between traffic lanes of a public street or on an essentially parallel
course within 30 feet of the street; unless the railroad is actually
situated on the surface of the public street, traffic on all crossing
streets is controlled by STOP signs or traffic lights which are
interconnected with automatic crossing warning devices; and the
locomotive bell is rung when approaching and traveling through the
crossing.
FRA'S Approach and Request for Comments. FRA has specified in
Appendix B the manner in which the community must show the reduction in
risk resulting from its proposed alternative safety measures. In
proposing the very specific procedures cited in Appendix B (and in its
introduction), FRA has been guided by the need to establish a
predictable environment within which affected communities can plan and
take action. FRA believes that such objective measures will help
communities in their decision-making process, as well as assist FRA in
determining which proposals will in fact provide for the safety of the
motoring and rail public. One alternative to FRA's proposal would allow
communities to perform their own effectiveness analyses based on
methodology of their own choosing with subsequent reporting of the
methodology and data results to FRA. That alternative would result in
FRA review of both the methodology and the data involved in each
submission from each locality wishing to establish a quiet zone. That
approach might provide greater flexibility to communities to design
countermeasures meeting their needs and circumstances. However, FRA is
concerned that this approach might overwhelm FRA's resources and delay
approvals beyond reasonable limits. This could backlog review of
proposed new quiet zone proposals emanating from communities impacted
by industry restructuring (such as the proposed acquisition of Conrail
by Norfolk Southern and CSX Transportation). Further, ascertaining
appropriate decisional criteria for evaluating community submissions
might present a major challenge. The proposed alternative measures laid
out in this notice already comprehend the broad range of safety
measures within the traditional crossing safety categories of
``engineering, education, and enforcement.'' Commenters are asked to
note specific examples of opportunities that might be presented by less
definite enumeration of alternative measures.
FRA encourages comments on the proposed regulatory approach, as
well as alternative suggestions as to the best way to assure that
alternative safety measures will in fact compensate for the lack of a
locomotive horn.
Who May Establish a Quiet Zone
Under this proposed rule, a local political jurisdiction, in
addition to a state, can establish a quiet zone. FRA does not intend
that the proposed rule confer authority on localities to establish
quiet zones if state law does not otherwise permit such actions. Local
political jurisdictions are creations of their respective states and
their powers are thus limited by their individual state law or
constitution.
Under the Act and the proposed regulations, establishment of quiet
zones requires specific action by a state or local governmental body.
Therefore, if the appropriate political entity determines that sounding
of locomotive horns at grade crossings is the proper course of action
for their community, no specific action needs to be taken to ensure
that locomotive horns are sounded at every public highway-rail grade
crossing. This is, of course, a legitimate public policy result.
However, if quiet zones are desired, there are a number of approaches
that could be considered in terms of application and implementation.
First, one approach could be that all designations and applications
under this section must come from a state agency. Under this approach,
FRA would deal with only one entity from each state. How the state
determines which quiet zones are designated and which should be the
subject of an application for acceptance would be up to each individual
state. The processes may be as varied as: the state agency acting only
as a conduit for designations and applications; the agency acting as a
filter to weed out ``inappropriate'' applications; or, the state agency
acting solely on its own to determine the extent of designations and
applications.
A second approach would limit authority for designations and

[[Page 2247]]

applications to the political subdivision with direct responsibility
over traffic safety at a crossing. This approach would present problems
inasmuch as a line of railroad typically crosses state highways, and
city, county, and village roads.
A third approach would require the political subdivision in which
the proposed quiet zone is located to be the applicant.
FRA at this time contemplates that both states and local
jurisdictions (if they have the legal authority to do so) will
establish quiet zones under both paragraphs (a) and (b) of this
section. FRA encourages comments on this regulatory approach.
Length of Quiet Zone
Paragraph (d) addresses the minimum length of a quiet zone. FRA
believes that if locomotive horns are to be prohibited along a segment
of track, the underlying purpose of the prohibition will not be served
unless the prohibition is effective on a corridor-like basis. Without a
quiet zone requirement, the sounding of horns may be prohibited at one
crossing, required at the next crossing two blocks away, and then
prohibited at the next crossing one-quarter mile along the line.
Because horns must be sounded in advance of a public highway-rail
crossing, the horn being sounded at the one crossing in the example
will effectively negate a large measure of the benefit of the
prohibition elsewhere along the corridor.
In addition to ensuring the benefits of the prohibition within the
zone, imposition of a horn prohibition on a zone basis will eliminate
excessive, and unnecessary workload demands on the engineer, permitting
greater attention to other locomotive operating requirements. Without a
zone prohibition, the engineer will be faced with the need to
constantly be aware of which crossings are subject to a prohibition and
which are not. Such a situation provides a greater chance of human
error than if the engineer need only concentrate on groups of
crossings. Paragraph (d) establishes the minimum length of a quiet zone
as 2,640 feet (one-half mile). The community which establishes a quiet
zone has the discretion to determine the length (subject to the one-
half mile minimum); however, certain factors should be taken into
consideration in establishing such a quiet zone. While locomotive horns
can not be routinely sounded at all crossings within the quiet zone, it
is entirely possible that sound from a locomotive horn for a crossing
just outside the quiet zone will begin in the quiet zone or will
intrude into the area of the quiet zone. It is up to the community to
devise the placement of a quiet zone to minimize that effect.

The following is an example of two different acceptable quiet
zones in terms of placement: Example No. 1: A single grade crossing
at milepost 4.5 is subject to a quiet zone. In this situation, the
quiet zone would extend at least one-quarter-mile in each direction
along the right-of-way. If there are public highway-rail grade
crossings at milepost 4.2 or 4.8, (both of which are outside of the
quiet zone), locomotive horns would need to be sounded for those
crossings, despite beginning within the quiet zone or despite
intruding into the quiet zone. In this example, a community could
extend the quiet zone to include either, or both additional
crossings. Those crossings must then either comply with the
requirements contained in Appendix A, or the quiet zone as a whole
must compensate for the lack of a horn through a combination of
measures from Appendix A and Appendix B.
Example No. 2: Four public highway-rail grade crossings at every
block for a distance of .4 mile. (Crossings at mileposts 4.5, 4.6,
4.7, 4.8 are subject to a quiet zone.) Additional crossings at
mileposts 4.3 and 4.4 do not have to be included in a quiet zone if
the quiet zone is extended in the other direction along the track--
to milepost 5.0. That would be acceptable even if there were no
crossings from milepost 4.8 to 5.0. The crossings within the quiet
zone in this example, like the crossings in Example No. 1, must then
either comply with the requirements contained in Appendix A, or the
quiet zone as a whole must compensate for the lack of a horn through
a combination of measures from Appendix A and Appendix B. It is
clear that under this approach, locomotive horn noise for crossings
at mileposts 4.3 and 4.4 will intrude or begin within the quiet
zone. However, the approach set out here provides a community with
the greatest flexibility in determining how to, and where to
establish quiet zones.

BILLING CODE 4910-06-P

[[Page 2248]]

[GRAPHIC] [TIFF OMITTED] TP13JA00.001

BILLING CODE 4910-06-C
Requirement for Active Warning Devices
Paragraph (e) provides that, except for slow speed train movements
over public highway-rail grade crossings as addressed in Sec. 222.31,
and quiet zones established in accordance with paragraph (c) of this
section, each crossing in a quiet zone must be equipped with automatic
gates and flashing lights that conform to the standards contained in
the Manual on Uniform Traffic Control Devices. This section makes it
clear that installation or upgrading of these devices is not regarded
as implementation of supplementary safety measures under this part, nor
will the risk reduction resulting from the installation or upgrading be
credited toward the compensating reduction in risk referenced in
paragraph (b). If the new warning system exceeds the standards of the
MUTCD and conforms to the requirements for supplementary safety
measures contained in Appendix A, that risk reduction attributable to
the supplementary safety measure in accordance with Appendix A may be
credited toward the risk reduction referenced in paragraph (b).
Requirement for Advance Warning Signs
Paragraph (f) ensures that motorists are notified wherever horns
are not required to be sounded. The paragraph requires that each
highway approach to each public highway-rail crossing at which
locomotive horns are not routinely sounded pursuant to this part shall
be equipped with an advance warning sign advising the motorist that
train horns are not sounded at the crossing. FRA will leave to
individual states the decision as to specific size and design of the
required signs, however, they must be in conformance with the MUTCD.
FRA is not at this time proposing that approaches to each private
highway-rail crossing be equipped with such advance warning signs. FRA
solicits comments as to whether such signs should be required, and if
so, who should be responsible for installation and maintenance. A
factor to consider is that by definition, the approaches to these
crossings are on private, rather than public property.

Section 222.35 Notifications, Affirmations, and Required Information

Paragraph (a) requires a state or local government designating a
quiet zone under Sec. 222.33(a) to provide written notice of the
designation to all railroads operating over public highway-rail grade
crossings within the quiet zone, the highway or traffic control
authority and law enforcement authority having control over vehicular
traffic at the crossings within the quiet zone, the state agency
responsible for highway and road safety, and the FRA Associate
Administrator for Safety. In order to ensure that all parties have
notice and sufficient time to prepare for the change at the crossings,
all notices required under this section must be provided by certified
mail, return receipt requested.
Paragraph (b) contains the notice requirements which apply to the

[[Page 2249]]

situation in which a state or local government has proposed a quiet
zone for acceptance by FRA under Sec. 222.33(b). Upon acceptance of a
quiet zone by FRA, the state or local government must provide written
notice by certified mail, return receipt requested, of the acceptance
to all railroads operating over the public highway-rail grade crossings
within the quiet zone, the highway or traffic control authority or law
enforcement authority having control over vehicular traffic at the
crossings within the quiet zone, and the state agency responsible for
highway and road safety.
Paragraph (c) ensures that certain needed information is provided
to FRA. This section requires that certain information be provided to
the FRA Associate Administrator for Safety.
Paragraph (1) requires an accurate and complete U.S. DOT-AAR
National Highway-Rail Grade Crossing Inventory Form (Inventory Form)
for each crossing dated within six months prior to the designation of
FRA acceptance of the quiet zone. The information from this form will
establish a base-line from which FRA can determine the measures taken
by the state or locality to compensate for the lack of a locomotive
horn.
Paragraph (2) requires submission of a current Inventory Form which
reflects the supplementary and alternative safety measures which have
been put in place upon establishment of the quiet zone.
Paragraph (3) requires the name and title of the state or local
official responsible for monitoring compliance with this regulation and
the manner in which the person can be contacted.

Section 222.37 Quiet Zone Implementation

Paragraph (a) provides that a quiet zone can not be implemented
until all requirements of Sec. 222.35 are complied with and at least 14
days have elapsed since the required parties have received the
notifications required by that section. The notification provision and
two-week delay will ensure that the various interested parties have
time to inform employees and others regarding the changes at the
crossings. Paragraph (b) provides that all railroads operating over
public highway-rail grade crossings within a quiet zone established in
accordance with this regulation shall cease routine use of the
locomotive horn as of the date established by the state or local
government, which of course can be later than the 14 day minimum
period. This paragraph prohibits the routine use of the locomotive horn
within the quiet zone. However, the rule is not meant to prohibit the
occasional use of the horn for railroad operating purposes such as for
crew and flagger communications when radios fail. The rule does not
prohibit use of the horn in emergency situations or as a method of
warning railroad workers of the approach of the train. (See
Sec. 222.23.)

Section 222.39 Quiet Zone Duration

Paragraph (a) governs the duration of quiet zones designated by
state or local governments under Sec. 222.33(a) i.e., zones in which
supplementary safety measures are in place at each crossing. A quiet
zone may remain in effect indefinitely if all the requirements of this
rule are complied with, and if, within six months before the expiration
of five years from the original designation made to FRA, the
designating entity (the state or local government) affirms in writing,
by certified mail, return receipt requested, to the same parties
receiving the original notification of implementation of the quiet
zones under Sec. 222.35(a), that the supplementary safety measures
implemented within the quiet zone continue to conform to the
requirements of Appendix A of the regulation. The designating entity
must thereafter affirm within six months before the fifth anniversary
of the prior affirmation that the supplementary safety measures
implemented within the quiet zone continue to conform to the
requirements of Appendix A of the regulation.
This paragraph, as well as paragraph (b), also requires that along
with its affirmation, the governmental entity must send to the FRA
Associate Administrator for Safety an accurate and complete U.S. DOT-
AAR National Highway-Rail Grade Crossing form (FRA F6180.71) (available
through the FRA Office of Safety Analysis, 202-493-6299) for each
public highway-rail grade crossing. This requirement will ensure that
the National Inventory is kept current regarding all crossings within
quiet zones.
Paragraph (b) governs the duration of quiet zones accepted by FRA
under Sec. 222.33(b), i.e., zones that, as a whole, comply with
Appendix B. This provision is similar to paragraph (a), with the
exception that the period between affirmations is 3, rather than 5
years and that the state or local government must affirm that the
supplementary and alternative safety measures in place continue to be
effective and continue to fully compensate for the absence of the
warning provided by the locomotive horn. FRA is proposing a shorter
period between affirmations because of the greater possibility that
changed circumstances will affect the effectiveness of the safety
measures put in place in the quiet zone. Because every public highway-
rail crossing subject to the five year affirmation period has in place
a supplementary safety measure providing sufficient compensation for
lack of a locomotive horn, as long as such measures remain in place,
FRA can be assured that safety is being maintained along the entire
quiet zone. However, because the safety measures instituted at
crossings subject to the three year affirmation period are dependent on
local circumstances and local effort, review on a more frequent basis
is appropriate. FRA solicits comment on this proposal.
Paragraph (d) provides that the FRA Associate Administrator for
Safety may, at any time, review the status of any quiet zone and
determine whether the safety measures in place fully compensate for the
absence of the warning provided by the locomotive horn under the
conditions then present at the public highway-rail grade crossings
within the quiet zone. This oversight will enable FRA to take action in
the event that conditions at the crossings have changed sufficiently so
that safety measures originally installed and implemented are
insufficient to compensate for the lack of a horn. Under this
provision, if the Associate Administrator makes a preliminary
determination that the safety measures in place do not fully compensate
for the absence of the locomotive horn, notice of the determination
will be published in the Federal Register and an opportunity for
comment and informal hearing will be provided. The Associate
Administrator may thereafter require that additional safety measures be
taken to ensure that there is full compensation for the absence of the
locomotive horn. This paragraph also provides for termination of the
quiet zone if conditions so warrant.

Section 222.41 Supplementary and Alternative Safety Measures

Paragraph (a) states that a list of approved supplementary safety
measures are listed in Appendix A to this regulation. These measures,
based on the best available data, have been determined by FRA to be an
effective substitute for the locomotive horn in the prevention of
highway-rail casualties.
Paragraph (b) states that additional, alternative safety measures
that may be included in a request for FRA acceptance of a quiet zone
under Sec. 222.33(b) are listed in Appendix B.
Paragraph (c) states that Appendix C contains a list of those
situations which the Administrator has determined do

[[Page 2250]]

not present a significant risk with respect to loss of life or serious
personal injury from establishment of a quiet zone. In the very limited
situations listed, supplementary safety measures are not required
because the requisite level of safety has already been achieved.
Paragraph (d) provides that the Administrator will add new listings
to Appendices A or B when the Administrator determines that such
measures or standards are effective substitutes for the locomotive horn
in the prevention of highway-rail grade crossing casualties. The
Administrator will add new listings to Appendix C when it is determined
that no negative safety consequences result from the establishment of a
quiet zone under the listed conditions.
Paragraph (e) is based on language contained in the Act, and makes
clear that the following traditional highway-rail grade crossing safety
measures do not individually, or in combination, constitute
supplementary safety measures: standard traffic control devices or
arrangements such as reflectorized crossbucks, stop signs, flashing
lights, or flashing lights with gates that do not completely block
travel over the line of railroad, or traffic signals.

Section 222.43 Development and Approval of New Supplementary Safety
Measures

This section discusses the manner in which new supplementary safety
measures may be demonstrated and approved for use. Paragraph (a)
provides that interested parties may demonstrate proposed new
supplementary safety measures to determine if they are an effective
substitute for the locomotive horn in the prevention of highway-rail
grade crossing casualties. Paragraph (b) provides that the
Administrator may order railroad carriers operating over a crossing or
crossings to temporarily cease the sounding of locomotive horns at such
crossings to demonstrate proposed new supplementary safety measures.
This paragraph reflects statutory language and requires that such
proposed new supplementary safety measures have been subject to prior
testing and evaluation before such an order is issued. The
Administrator's order to the railroads to temporarily cease sounding of
horns may contain any conditions or limitations deemed necessary in
order to provide the highest level of safety. These provisions provide
an opportunity for the testing and introduction of new grade crossing
safety technology which would provide a sufficient level of safety to
enable locomotive horns to be silenced. FRA has, in one case to date,
ordered a railroad to cease sounding horns for the purposes of testing.
In Spokane, Washington, the Burlington Northern Santa Fe Railway
(BNSF), Spokane County, Washington State Public Utilities Commission
and the FRA worked together to test the effectiveness of median
barriers as a substitute for the locomotive horn. See 62 FR 54681,
August 21, 1997. To accomplish this test, BNSF was ordered to cease
sounding of the horn after installation of engineering improvements at
the two subject crossings. This test is continuing.
Paragraph (c) provides that upon the successful completion of a
demonstration of proposed supplementary safety measures, interested
parties may apply for their approval. This section requires certain
information to be included in every application for approval.
Paragraphs (d) and (e) provide that if the FRA Associate
Administrator for Safety is satisfied that the proposed supplementary
safety measure fully compensates for the absence of the locomotive
horn, its use as a supplementary safety measure (with any conditions or
limitations deemed necessary) will be approved and it will be added to
Appendix A.
Paragraph (f) provides an opportunity to appeal a decision of the
FRA Associate Administrator for Safety. The party applying for approval
of a supplementary safety measure may appeal to the Administrator a
decision by the FRA Associate Administrator for Safety rejecting a
proposed supplementary safety measure or the conditions or limitations
imposed on use.

Section 222.45 Communities With Pre-existing Restrictions on Use of
Locomotive Horns

Section (i)(1) of section 20153 requires that in issuing these
regulations, FRA take into account the interests of communities that
``have in effect restrictions on the sounding of a locomotive horn at
highway-rail grade crossings, or have not been subject to the routine *
* * sounding of a locomotive horn at highway-rail grade crossings. This
section is meant to address that statutory requirement. FRA requests
public comment regarding the provisions of this section. Paragraph (a)
provides that communities which as of the date of issuance of this NPRM
have enacted ordinances restricting the sounding of locomotive horns,
or communities which as of the same date have not been subject to the
sounding of locomotive horns at public highway-rail crossings due to
formal or informal agreements with the railroad may continue those
restrictions for a period of up to three years from the date the final
rule is issued. This period will enable the community to plan for, and
implement additional safety measures at the affected crossings without
the sounding of horns in the intervening period. This three-year period
is dependent on compliance with paragraph (b).
Paragraph (b) states that if a community with pre-existing
restrictions on locomotive horns has not designated a quiet zone (under
Sec. 233.33(a)) or had a quiet zone accepted by FRA (under
Sec. 233.33(b)) within two years after the date of issuance of the
final rule, the community must, within two-years of issuance of the
final rule, initiate or increase highway-rail grade crossing safety
public awareness initiatives and grade crossing traffic law enforcement
programs in an effort to offset the lack of supplementary safety
measures at the affected crossings. If, however, the community does not
take actions to initiate or increase public awareness initiatives and
traffic law enforcement programs, locomotive horns must be sounded in
accordance with Sec. 222.21. Thus, the effect of paragraphs (a) and (b)
provides communities with pre-existing whistle bans a three-year grace
period to comply with Secs. 233.33(a) or (b). If those communities do
not initiate or increase public awareness initiatives and traffic law
enforcement programs by the end of the second year after issuance of
the final rule, then the three year grace period is reduced to two
years.
A number of communities wishing to implement quiet zones have
worked with FRA in developing programs of supplementary safety
measures. These programs reflect the early commitment of local
officials to both improve railroad safety and to minimize the
disruption caused by train horns. These communities were concerned that
if they invested funds in engineering improvements prior to issuance of
this rule, those improvements might not be among those approved in the
final rule, and thus they would be forced to spend more tax dollars
installing other safety improvements after the final rule was issued.
Given the absence of a regulation in force, the communities were free
to ban sounding of the locomotive horn without implementing any grade
crossing safety improvements at all. Neither these communities, nor
FRA, wanted a whistle ban without supplementary safety measures in
place. Therefore, FRA partnered with these

[[Page 2251]]

communities to develop workable, sound safety plans. As a result of
these efforts, communities were able to reduce noise intrusion while
FRA reaped the benefits of ``real world'' experience in the
implementation of supplementary safety measures.
The quiet zones established, or planned to be established, by the
following communities have been evaluated by FRA as being in compliance
with the requirements of proposed Sec. 222.33(b): crossings in
Burlington, Vermont suburbs on the Vermont Railway; crossings in
Louisville, Kentucky on CSX Transportation Company; single crossing at
McNabb Road on Southeast Florida Rail Corridor; single crossing in
Richardson, Texas; five crossing in Yakima, Washington, on the BNSF
Railway; single crossing in Spokane, Washington on BNSF Railway; eleven
crossings in Covina, California on MetroLink; and a single crossing in
Westfield, New Jersey on the Lehigh Valley Railroad.
Accordingly, FRA proposes to exempt those communities from the
initial acceptance requirements of that paragraph. Provisions of
Sec. 222.39(b) (Quiet Zone Duration) which contains periodic
reaffirmation and notification requirements would apply to those quiet
zones. FRA solicits comments regarding this, or any other suggested
regulatory approach to those communities which have pre-existing
restrictions on the use of locomotive horns.

Appendices A and B

Appendix A lists those supplementary safety measures which FRA has
determined effectively compensate for the lack of a locomotive horn.
Because each supplementary safety measure in this appendix fully
compensates for the lack of a locomotive horn, a quiet zone may be
established without specific FRA approval.
Appendix B lists those alternative safety measures which may
compensate for the lack of a locomotive horn depending on the extent of
implementation of the safety measure. Because of the many possible
variations, FRA acceptance of the proposed implementation plan is
required.

Community Guide

The introduction to Appendix A discusses the issues and actions
that state and local governments should be aware of in determining how
to proceed in implementing quiet zones. The guide is meant to assist in
the community's decision-making process in determining whether to
designate a quiet zone under Sec. 222.33(a) or to apply for acceptance
of a quiet zone under Sec. 222.33(b). The guide also contains details
regarding the methods to be used in performing analyses which must
accompany applications for acceptance of a quiet zone under
Sec. 222.33(b). If a crossing within a proposed quiet zone can not be
addressed with a supplementary safety measure from Appendix A, the
applicant community (or state) will need to show that once a quiet zone
is implemented under the alternative safety measures listed in Appendix
B, the number of accidents that can be expected on that quiet zone
corridor will not increase. As a basis for that series of calculations,
which are described in detail in the Introduction, FRA proposes to
require that communities use the DOT Highway-Rail Crossing Accident
Prediction Formula. The Accident Prediction Formula provides a means of
calculating the expected annual number of accidents and casualties at a
crossing on the basis of the crossing's characteristics and the
crossing's historical accident experience. FRA's Regional Managers for
Highway-Rail Crossing Safety who are located throughout the United
States will be available to assist the communities in performing that
analysis. Thus, all calculations involving a specific corridor proposed
for a quiet zone will be based on the accident history at those
crossings together with the characteristics of the crossing.

Appendix A

This Appendix lists those supplementary safety measures which FRA
has determined effectively compensate for the lack of a locomotive
horn. Included in the discussion of each supplementary safety measure
is an ``effectiveness'' figure for that measure. That figure indicates
the effectiveness of the supplementary safety measure in reducing the
probability of a collision at a highway-rail grade crossing.
The effectiveness (see definition of effectiveness rate in
Sec. 222.7) figures discussed for each supplementary safety measure are
based on available empirical data and experience with similar
approaches. The effectiveness figures used in Appendix A are subject to
adjustment as research and demonstration projects are completed and
data is gathered and refined. FRA proposes to use these estimates as
benchmark values to determine the effectiveness of an individual
supplementary safety measure and the combined effectiveness of all
supplementary safety measures along a proposed quiet zone. FRA seeks
comments, including any data or analysis, concerning the
appropriateness of the individual estimates. FRA also encourages public
comments on the appropriateness of this approach in general.
FRA's national study of train horn effectiveness indicated that
collision probabilities increase an average of 62 percent when horns
are silenced. As such, the supplementary safety measure should have an
effectiveness of at least .38 (reducing the probability of a collision
by at least 38 percent) in order to compensate for this 62 percent
increase. For example, if a select group of 1,000 crossings are
expected to have 100 collisions per year with train horns being
sounded, this same group of crossings would be expected to have 162
collisions per year once the train horn is banned if no other safety
measures are implemented and other factors remain unchanged.
Conversely, if these same crossings were experiencing 162 collisions
per year while the horn was banned, it would be expected that this
number would reduce to 100 once use of the horn is reinstituted. This
would equate to an effectiveness of 62/162, or .38.
FRA is aware this figure is an average, but it has the benefit of
reflecting the broadest range of exposure available to the agency. FRA
is willing to consider well founded arguments that train horn
effectiveness is heightened or reduced under specific circumstances.
However, any such argument would need to be grounded in sound data and
analysis. This could potentially create significant difficulty in
administration of the final rule, since historic collision patterns
over a small number of crossings are not, by themselves, meaningful
predictors of future exposure. FRA requests comment as to whether it is
practical to use any value other than a national average with respect
to train horn effectiveness.
There is one case for which FRA has sufficient data to estimate
train horn effectiveness on a particular corridor. That is the Florida
East Coast Railroad and the territory subject to Emergency Order 15. In
that case, FRA can point to exposure for over 500 crossings over a
period of eight years with experience both before and after the whistle
ban period indicating consistent results. For that territory, FRA
proposes to apply an effectiveness rate of 68% (.68) for the train
horn. It should be noted that the extraordinary impacts shown in
Florida have been segregated from the ``national'' data, and the
national average of effectiveness of .38 (38 percent reduction) for
train horns does not include the Florida experience. FRA requests
comment as to what extent the

[[Page 2252]]

Florida experience may be relevant to other areas.
Much of the data available today to evaluate the effectiveness of
supplementary safety measures reflects the reduction in violation
rates, not collision rates. (Collisions are rare, and determination of
a collision rate reduction for any one supplementary safety measure
requires long term data collection.) Only one study (in Los Angeles)
has contrasted collision rates with violation rates, and out of
necessity (until additional data is available), this finding is used in
these analyses. In the Los Angeles demonstration it was noted that a
carefully administered and well publicized program of photo enforcement
reduced violation rates by 92 percent, while collisions were reduced by
only 72 percent. This ratio, 72:92 or .78, is proposed to be used to
adjust violation rate reductions in order to estimate resultant
reductions in collision rates for law enforcement and education/
awareness options described in Appendix B. Violations that result in
collisions constitute a small subset of all violations. It is
reasonable to infer that education and legal sanctions may lack
effectiveness for several segments of the population, including those
who do not become aware of the countermeasures (e.g., because they are
not residents of the area, do not follow public affairs in the media,
or are difficult to reach because they are not fluent in English or
other principal languages in which information is disseminated) and
those who are particularly inclined to violation of traffic laws. As
such, for law enforcement and education/awareness options the rate of
violations must be reduced at least 49 percent (measure must have an
effectiveness value of at least .49) in order to realize the required
38 percent reduction in the risk of collision.
In contrast, engineering improvements such as those described in
Appendix A appear to work in synergy with existing warning systems to
condition and modify motorist behavior, reducing both the number of
violations and the number of very close calls (violations within a few
seconds of the train's arrival). Four-quadrant gates installed to date,
for instance, appear to have been completely successful in preventing
collisions. Although we would not expect this extraordinarily high
level of success to be sustained over a broader range of exposure,
excellent results would be expected. Accordingly, for engineering
improvements contained in Appendix A this notice adopts estimates of
success drawn from carefully monitored studies of individual crossings.
FRA is aware that the number and duration of observations in site-
specific studies is small. However, FRA is working with a variety of
parties to gather additional information that may be helpful in
achieving further refinement of effectiveness rates and greater
confidence that they predict future outcomes in circumstances not
identical to those specifically studied. FRA has sought partnerships
with communities to implement or preserve quiet zones through use of
supplementary safety measures. Unfortunately, many communities have
taken the view that they will wait to see how the rulemaking might
proceed before acting. Accordingly, FRA will proceed with the
information available and will continue to gather effectiveness data as
this rulemaking proceeds.

1. Temporary Closure of a Public Highway-Rail Grade Crossing

This supplementary safety measure has the advantage of obvious
safety and thus will more than compensate for the lack of a locomotive
horn during the periods of crossing closure. The required conditions
for closure are intended to ensure that vehicles are not able to enter
the crossing. In order to avoid driver confusion and uncertainty, the
crossing must be closed during the same hours every day and may only be
closed during one period each 24 hours. FRA believes that such
consistency will avoid unnecessary automobile to automobile collisions
in addition to avoiding collisions with trains. Activation and
deactivation of the system is the responsibility of the local traffic
control authority or the entity responsible for maintenance of the
street or highway crossing the railroad. Responsibility for activation
and deactivation of the system may be contracted to another party,
however the appropriate governmental entity shall remain fully
responsible for compliance with the requirements of this section. In
addition, the system must be tamper and vandal resistant to the same
extent as other traffic control devices.

Effectiveness: Because an effective closure system prevents vehicle
entrance onto the crossing, the probability of a collision with a train
at the crossing is zero during the period the crossing is closed.
Effectiveness would equal 1. However, traffic would need to be
redistributed among adjacent crossings or grade separations for the
purpose of estimating risk following imposition of a whistle ban,
unless the particular ``closure'' was accomplished by a grade
separation.

2. Four-Quadrant Gate System

A four-quadrant gate system involves the installation of gates at a
public highway-rail grade crossing to fully block highway traffic from
entering the crossing when the gates are lowered. This system includes
at least one gate for each direction of traffic on each approach. A
four quadrant gate system is meant to prevent a motorist from entering
the oncoming lane of traffic to avoid a fully lowered gate in the
motorist's lane of traffic. Because an additional gate would also be
fully lowered in the other lane of the road, the motorist would be
fully blocked from entering the crossing.
In defining ``supplementary safety measures'' Congress approved use
of four quadrant gates as supplementary safety measures. The definition
states in part: ``A traffic control arrangement that prevents careless
movement over the crossing (e.g., as where adequate median barriers
prevent movement around crossing gates extending over the full width of
the lanes in the particular direction of travel), and that conforms to
the standards prescribed by the Secretary * * * shall be deemed to
constitute a supplementary safety measure.'' The Association of
American Railroads (AAR) has shared with FRA its views on four-quadrant
gates. The AAR states, ``Since the operation of 4-quadrant gates has
not yet been fully tried and proven, a false perception has been
conveyed to [municipalities and state transportation agencies].
Continual advocacy of 4-quadrant gates * * * has put undue burdens on
the railroads and its supply industry. The railroads are committed to
grade crossing safety but are not exactly sure how 4-quadrant gates
shall operate or if they will provide any additional benefits. * * *''
The AAR requested that FRA ``abstain from advocating the application of
4-quadrant gates until the operational and liability issues have been
resolved.'' The AAR also submitted for FRA consideration a study
entitled ``Design of Gate Delay and Gate Interval Time for Four-
Quadrant Gate System at Railroad-Highway Grade Crossings'' by Dr. Fred
Coleman of the University of Illinois. Dr. Coleman studied safe
operating time parameters of four quadrant gates.
FRA has participated with the AAR, the Federal Highway
Administration, the Brotherhood of Railroad Signalmen and railroad
suppliers in discussions regarding four-quadrant gate systems. Those
discussions resulted in some broad areas of agreement which have been
incorporated into this proposed rule. Among areas of agreement are: (1)
The need to do a location-specific

[[Page 2253]]

engineering study of the exit gate delay time; (2) that failure of the
system would place the exit gates in the up position; and (3) highway
presence detectors would be installed and maintained at the election
of, and by, the local highway authorities. If detectors are provided,
exit gates would remain up during the period the crossing is determined
to be occupied by highway traffic.
Four-quadrant gate systems have been in existence for many years,
and FRA believes that they have been fully tried and proven. There have
been installations in several states: Wyoming; Tennessee; New Jersey;
North Carolina; and Ohio, as well as in Canada, which involve various
railroads, including the Burlington Northern Santa Fe, Norfolk
Southern, New Jersey Transit Rail Operations, and Calgary Transit.
Further, FRA understands that the Metropolitan Transportation Authority
of Los Angeles is implementing four-quadrant gates on one of its
transit lines. FRA welcomes a discussion of the efficacy of four-
quadrant gates, timing and other safety considerations and any proposed
alternatives to these gates.
FRA proposes that the following be required for all four-quadrant
gate systems: When a train is approaching the crossing, all highway
approach and exit lanes on both sides of the grade crossing must be
spanned by gates to deny to the highway user the option of
circumventing the conventional approach lane gates by switching into
the opposing (oncoming) traffic lane in order to enter the crossing and
cross the tracks. When the gates are fully lowered the gap between the
ends of the gates must be less than two feet if no median between lanes
is present. If there is a median or if channelization devices are
installed, the gap between the gate end and the median or
channelization device must be within one foot. If ``break-away''
channelization devices are used they must be frequently monitored and
broken elements replaced. FRA also proposes to require that constant
warning time devices activate the gates. This requirement will ensure
that the gates are activated at the same amount of time prior to the
arrival of a train irrespective of its speed. This will avoid long
unnecessary waits at crossings being approached by very slow moving
trains. FRA would also require that signs be posted alerting motorists
that the train horn does not sound.
FRA also strongly recommends that the following conditions be
applied when new four-quadrant gates are installed: Gate timing should
be established by qualified traffic engineers. Because each crossing
presents unique topographic and traffic conditions, such timing should
be established based on site specific determinations. Consideration
should be given to the need for a delay in the descent of the exit
gates following the descent of the entrance gates (equivalent to
conventional gates) to prevent a motorist from being ``locked in''
between the gates. Factors that should be considered include available
storage space between the gates that is outside the fouling limits of
the tracks (beyond the width of trains) and the possibility that
traffic flows may be interrupted as a result of nearby intersections.
Fail-safe mode of the gate system should include exit gates failing in
the raised, or up position. Further, a determination should be made as
to whether to provide vehicle presence detectors (VPDs) to open or keep
open the exit gates until all vehicles are clear of the crossing. Among
the factors to consider are the presence of the intersecting roadways
near the crossing, the priority that the traffic crossing the railroad
is given at such intersections, the types of traffic control devices at
those intersections, and the presence and timing of traffic signal
preemption.
FRA further recommends that highway approaches on one or both sides
of the highway-rail crossing be provided with medians or channelization
devices between the opposing lanes.

Effectiveness: FRA is confident that four-quadrant gates will provide a
safe alternative to the locomotive horn. No highway-rail crossing
collisions have been documented at any of the five four-quadrant gate
installations in the United States nor at a demonstration site in
Knoxville, Tennessee during 1985-1986. The oldest of the permanent
installations dates from 1952. Recognizing the limited number of
installations, however, FRA proposes very conservative estimates for
effectiveness of this countermeasure.

FRA estimates effectiveness as follows:
Four-quadrant gates only, no presence detection: .82.
Four-quadrant gates only, with presence detection: .77.
Four-quadrant gates with medians of at least 60 feet (with or without
presence detection): .92.

The estimate of .82 for free-standing four-quadrant gates (no
medians and no presence detection) is a highly conservative figure
involving a discount from documented experience. As noted above, four-
quadrant gates installed in the United States thus far have been highly
successful; and, in fact, these installations have been of this basic
configuration. More formal investigation attempted thus far includes a
recent four-quadrant gate installation in North Carolina, without
medians, which reduced violations 86 percent compared to previous
experience at the same crossing, which was previously equipped with
standard gates. This North Carolina test ran for a period of 5 months,
including base and test periods. However, it should be noted that the
North Carolina observations involved simultaneous use of the train horn
(both during the base period and the evaluation period). It is not
known whether there is a significant synergistic effect between the
train horn and the engineering improvements, but the short duration of
the study and possibility of such effects suggest the need for the
modest discount to the effectiveness rate.
Four-quadrant gate installations undertaken thus far in the United
States have generally not employed vehicle presence detection (VPD).
However, some future installations will incorporate this feature to
ensure coordination with other traffic signals and for other purposes.
For instance, tight geometry may not allow for any storage space within
the gates should queuing of traffic at a STOP sign on one side of the
crossing prevent prompt clearance by a motor vehicle. In such cases,
leaving the exit gates in the raised position may be elected.
Installing VPD will cause exit gates to remain up indefinitely as one
or more vehicles pass over the crossing. Although providing VPD avoids
the scenario of ``entrapment'' (long feared by some in the railroad
community as a liability risk), it also allows the possibility that
some motorists will follow violators through the crossing in a steady
stream, defeating the intended warning. Accordingly, where medians are
not provided to prevent this pattern, we assume a lower effectiveness
rate. FRA estimates that four-quadrant gates with presence detection,
but without median barriers, would have an effectiveness rate of
approximately .77.
By contrast, where four-quadrant gates are supplemented by lengthy
median barriers to discourage the violation minded driver, the use of
presence detection should make little or no difference in the safety
effectiveness of the arrangement. The North Carolina demonstration
showed that, when the four-quadrant gate installation was supplemented
by medians (channelization devices) of at least 50 feet on each highway
approach, the crossing experienced a 97 percent drop in violations.
Again applying a discount

[[Page 2254]]

to this illustration, FRA estimates an effectiveness rate of .92 for
four-quadrant gates with median barriers of reasonable length.
It is important to re-emphasize that use of data regarding
violations to estimate collision risk itself involves some hazard that
effectiveness will be over- or under-estimated. FRA believes that the
likelihood is that these estimates for four-quadrant gates are
conservative, not only because of the excellent effectiveness of in-
service four-quadrant installations, but also because of the North
Carolina findings. In the North Carolina observations, as the number of
violations decreased, the average number of seconds prior to arrival of
the train also significantly increased (predicting that collisions
might fall off at a faster rate than violations). The effectiveness of
four-quadrant gates may thus be higher than the range stated above,
both with and without medians and with presence detection.
It is also true that a variety of applications for these systems
may result in a variety of effectiveness rates. FRA solicits comments,
including any available data and analysis, regarding the effectiveness
estimates on four-quadrant gates, as well as other supplementary safety
measures described in this notice.

3. Gates With Medians or Channelization Devices

Keeping highway traffic on both highway approaches to a public
highway-rail grade crossing in the proper lane denies the highway user
the option of circumventing gates in the approach lanes by switching
into the opposing (oncoming) traffic lane in order to drive around a
lowered gate to cross the tracks.
FRA therefore proposes to require that gates with medians or
channelization devices be considered supplementary safety measures if
the following conditions are met. Opposing traffic lanes on both
highway approaches to the crossing must be separated by either: (1)
Medians bounded by barrier curbs, or (2) medians bounded by mountable
curbs if equipped with channelization devices. Such medians must extend
at least 100 feet from the gate, unless there is an intersection within
that distance. If so, the median or channelization device must extent
at least 60 feet from the gate. Intersections within 60 feet of the
gate must be closed or moved. The crossing warning system must be
equipped with constant warning time system. Additionally, the
horizontal gap between the lowered gate and the median or
channelization device must be one foot or less. As in other
installations, ``break-away'' channelization devices must be monitored
frequently, and broken elements replaced. Also, as at all crossings
within a quiet zone, signs must be posted alerting motorists to the
fact that the train horns are not sounded.
FRA estimates that mountable curbs with channelization devices have
an effectiveness of .75 and barrier curbs with or without
channelization devices have an effectiveness of .80. FRA has found that
a gate installation in North Carolina with channelization devices 60
feet long and longer reduced violations by 77 percent. The period of
data collection was 22 months. FRA requests that commenters address
whether the estimate of .75 should be further reduced to reflect the
novelty effect of the improvements at this crossing?
A gate installation in the State of Washington equipped with
barrier curbs (with channelization devices), 99 feet long on one
approach and 30 feet long on the other, experienced reductions in
violations of 97.5 and 95.6 percent respectively during a 4-month test
period while train horns continued to sound. Given the short period of
observation, the novelty effect of the installation would be expected
to result in somewhat superior performance to that which would be
expected over the long term, particularly on the approach with the 30-
foot median. Further, the particular application involved allowed for a
clearly channelized two-lane, tangent roadway on level ground with
median separation between two main tracks. In this setting,
expectations concerning motorist behavior were exceptionally clear. As
noted, the train horn continued to blow, reinforcing the engineering
improvements. Accordingly, these data are not taken as indicative of
the average or typical installation in a whistle ban environment.
It may be possible to describe combined effectiveness rates for
barrier medians and mountable medians of varying lengths. Comments are
requested on how this can best be accomplished.

4. One Way Street With Gates

This installation consists of one way streets with gates installed
so that all approaching highway lanes are completely blocked. FRA would
require that the gate arms on the approach side of the highway-rail
grade crossing extend across the road to within one foot of the far
edge of the pavement. If two gates are used, with one on each side of
the road, the gap between the ends of the gates when they are in the
down position should be no more than two feet if no median is present.
If the highway approach is equipped with a median, the lowered gates
should reach to within one foot of the median. In this and other
similar measurements, the measurement should be horizontal across the
road from the end of the lowered gate to the median or to a point over
the median edge. The gate and the median top do not have to be at the
same elevation. In situations in which only one gate is used, the edge
of the road opposite the gate mechanism must have a barrier curb
extending to and around the nearest intersection for at least 100 feet,
so that the motorist cannot veer onto the shoulder of the road and
drive around the gate tip.
FRA also proposes that the warning system be equipped with constant
warning time systems as well as equipped with signs alerting motorists
that the train horn does not sound.

Effectiveness: Lacking real world data from one way streets with gates,
we are applying the effectiveness rate of .82 to this type
supplementary safety measure which is the effectiveness rate for four-
quadrant gates without medians. However, a case can be made that this
arrangement should be as secure as four-quadrant gates with medians.
Comment is requested on this issue. To what extent does current
collision experience at existing gated one-way streets (with or without
train horns sounding) impact the appropriate effectiveness rate?

5. Photo Enforcement

An automated means of gathering valid photographic or video
evidence of violations of traffic laws relating to highway-rail grade
crossings can be an effective supplementary safety measure if there is
sufficient support and follow through by the law enforcement and
judicial community. FRA would require that state law authorize use of
photographic evidence both to bring charges against the vehicle owner
and sustain the burden of proof that a traffic law violation has
occurred. This would need to be accompanied by the commitment of the
law enforcement and judicial communities to vigorously enforce the
traffic laws in this area. Evidence of sufficient commitment would be
traffic law violation penalties (and collection) sufficiently large to
deter violations. Although we do not intend to mandate any specific
penalty, we suggest that a fine of at least $100 be assessed against
the violator. We note that some states have substantially higher
penalties, such as Illinois and Florida with $500 fines. Other possible
measures of sufficient deterrence could

[[Page 2255]]

include one or more points posted against a violator's driving license.
We specifically invite comment as to whether FRA should require
specific minimum penalties before acceptance as a supplementary safety
measure, and if so, what the minimum level of penalty should be.
The proposed rule would also require that the photo enforcement
system have a means to reliably detect violations (such as loop
detectors and video imaging technology) and photo or video equipment
deployed to capture images sufficient to convict violators under state
law. FRA does not propose to require that every public highway-rail
grade crossing be equipped with cameras for continual monitoring. FRA
believes the goal of deterrence may be accomplished by moving the
surveillance equipment among several crossing locations, as long as the
motorist perceives the strong possibility that a violation of the law
will lead to sanctions. Therefore, each location should appear
identical to the motorist, whether or not the camera or video equipment
is actually within the housing or equivalent equipment. We invite
comment as to whether FRA should specify a minimum ratio of operating
equipment to empty housings (such as 25 percent), or a minimum number
of monitoring hours per housing, and if so, what the minimum levels
should be.
FRA also proposes to require appropriate integration, testing and
maintenance of the system to provide evidence supporting enforcement.
Periodic data analysis would be performed to verify that violation
rates remain below a baseline level (level with train horns sounding).
Also required would be signs alerting motorists that train horns are
not sounded and that the crossings are monitored for compliance with
the law. Public awareness efforts are critical to the success of this
program. The public must be informed that the horns are not being
sounded and that violation of crossing laws will result in fines and
penalties.

Effectiveness: FRA's estimate of the effectiveness of photo enforcement
programs is discussed below.
As discussed earlier, the Los Angeles photo enforcement
demonstration project showed that a carefully administered and well
publicized program of photo enforcement reduced violation rates by 92
percent, while collisions were reduced only 72 percent. This ratio,
72:92 or .78, is proposed to be used to adjust reduced violation rates
to estimate projected reductions in collision rates (effectiveness) for
law enforcement and education/awareness options described in Appendix
B. As discussed above, it is reasonable to infer that education and
legal sanctions may lack effectiveness for several segments of the
population. These persons, while a small portion of the overall
population, may be over represented in the population of those involved
in violations and thus in collisions. As such, for law enforcement and
education/awareness options violations must be reduced at least 49
percent (the measure must reduce violations by at least 49 percent) in
order to realize a 38 percent reduction in the risk of collision.
Where train horns routinely sound prior to the evaluation.
Effectiveness would be determined by comparison of a violation/train
count ratio based on the number of violations divided by the number of
train movements in any calendar quarter to the violation/train count
ratio during a baseline monitoring period (minimum of four weeks if
conducted without public notice or media coverage, 16 weeks if
conducted with public notice or media coverage). The reduction in
violations should be at least 49 percent prior to implementation of the
quiet zone. Effectiveness would be considered unacceptable if,
following establishment of the quiet zone, violations are greater than
the original baseline level. The discussion below addresses actions
when effectiveness becomes unacceptable.
Where a whistle ban is to be continued within a quiet zone.
Effectiveness would be determined by comparison of a violation/train
count ratio based on the number of violations divided by the number of
train movements in any calendar quarter to the violation/train count
ratio during a baseline monitoring period (minimum of four weeks if
conducted without public notice or media coverage, 16 weeks if
conducted with public notice or media coverage). The violation rate
should be at least 49 percent lower than the baseline rate.
Effectiveness would be considered unacceptable if, at any time
following establishment of the quiet zone, the rate of violations is
greater than a value less than 49 percent below the baseline level. The
following discussion addresses actions when effectiveness becomes
unacceptable.
Unacceptable effectiveness after establishment of quiet zone.
Initial effectiveness of the photo enforcement program would be
determined by calculating violation rates for at least two consecutive
calendar quarters following establishment of the quiet zone. The
railroad would be notified to resume sounding of the train horn if
results are not acceptable. FRA and all parties required to be informed
in Sec. 222.35(b) would be informed of such notification. If, in a
subsequent calendar quarter the violation rate rises above the
acceptable level, the quiet zone may be continued temporarily provided
the state or municipality takes reasonable steps to increase the
effectiveness of the supplementary safety measure. If, in the second
calendar quarter following the quarter for which results were not
acceptable, the rate is still unacceptable, the quiet zone would be
terminated until requalified.

Appendix B--Alternative Safety Measures

A state or local government seeking acceptance of a quiet zone
under Sec. 222.33(b) of this part may include in its proposal
alternative safety measures listed in Appendix B. Credit may be
proposed for closing of public highway-rail grade crossings provided
the baseline risk at other crossings is appropriately adjusted by
increasing traffic counts at neighboring crossings as input data to the
prediction formula (except to the extent nearby grade separations are
expected to carry that traffic). FRA Regional Managers for Grade
Crossing Safety can assist in performing the required analysis.
As stated above, the introduction to Appendices A and B contains
details regarding the decision-making process in determining whether to
designate a quiet zone under Sec. 222.33(a) or to apply for an
acceptance of a quiet zone under Sec. 222.33(b). The introduction also
contains details regarding the methods to be used in performing
required analyses. FRA requests comments on both the proposed process
and the calculations required in that process.
The first five alternative safety measures listed are the same as
those listed in Appendix A. A community may of course include one or
more of these supplementary measures in its proposed program. However,
if there are unique circumstances pertaining to a specific crossing or
number of crossings, the specific requirements associated with a
particular safety measure may be adjusted or revised in the community's
proposal. As provided for in section 222.33(b), using Appendix B
alternative safety measures will enable a locality to tailor the use
and application of various supplementary safety measures to a specific
set of circumstances. Thus, a locality may institute alternative or
supplementary measures on a number of crossings within a quiet zone,
but due to specific circumstances a crossing or a number of crossings
may be omitted

[[Page 2256]]

from the list of crossings to receive those safety measures. FRA will
review the proposed plan, and will approve the proposal if the
community has established that the predicted accident rate applied to
the quiet zone as a whole (rather than on a crossing-by-crossing
basis), is reduced to a level which would be at least equivalent to
that occurring with the sounding of the locomotive horn.
The following alternative safety measures may be included in a
proposal for acceptance by FRA for creation of a quiet zone. Approved
supplementary safety measures which are listed in Appendix A may be
used for purposes of alternative safety measures. If one or more of the
requirements associated with that supplementary safety measure as
listed in Appendix A is revised or deleted, data or analysis supporting
the revision or deletion must be provided to FRA for review.
A discussion of the following alternative safety measures may be
found above in the discussion of Appendix A:

1. Temporary closure of the highway-rail crossing;
2. Four quadrant gate system;
3. Gates with medians or channelization devices;
4. One way street with gates; and
5. Photo enforcement.

6. Programmed Enforcement

An additional alternative safety measure which may be proposed for
use within a specific quiet zone proposal is programmed enforcement.
This safety measure involves community and law enforcement officials
committed to a systematic and measurable crossing monitoring and
traffic law enforcement program at the subject public highway-rail
grade crossings. This may be accomplished alone, or in conjunction with
the public education and awareness program. Programmed enforcement
entails a sustainable law enforcement effort combined with continued
crossing monitoring.

Effectiveness: In order to determine the program effectiveness, a valid
baseline violation rate must first be determined through automated or
systematic manual monitoring or sampling at the subject crossing or
crossings. FRA believes that the effectiveness rates would be similar
to those of the photo enforcement measures discussed in Appendix A,
above. Procedures similar to those outlined in Appendix A for photo
enforcement should be applied to assess the effectiveness of programmed
law enforcement efforts.
FRA would impose conditions upon acceptance of a programmed
enforcement safety measure. Included in those conditions would be
monitoring and sampling to determine that the enforcement effort
results in continuation of the reduction in violation rate. FRA would
reserve the right to terminate the quiet zone if, after a reasonable
period of time as established at the commencement of the program,
improvement is not shown.

7. Public Education and Awareness

This alternative safety measure, alone, or in conjunction with
Programmed Law Enforcement is a program of public education and
awareness directed at motor vehicle drivers, pedestrians and residents
near the railroad to emphasize the risks associated with highway-rail
crossings and applicable requirements of state and local traffic laws
at those crossings. This program would require establishment of a valid
baseline violation rate which has been determined through automated or
systematic manual monitoring or sampling at the subject crossing.

Effectiveness: Procedures similar to those outlined in Appendix A for
photo enforcement should be applied to assess effectiveness of public
education and awareness programs. Like Programmed Law Enforcement, a
public education and awareness program must be defined, established and
continued along with continued monitoring. FRA would impose conditions
upon acceptance of a public education and awareness safety measure.
Included in those conditions would be monitoring and sampling to
determine that the education effort results in continuation of the
reduction in violation rate. FRA would reserve the right to terminate
the quiet zone if, after a reasonable period of time as established at
the commencement of the program, improvement is not shown.
FRA recognizes the importance of public education and awareness
efforts to safety at highway-rail crossings. FRA and other modal
administrations and offices within the U.S. Department of
Transportation have promoted the ``Always EXpect a Train'' campaign,
Operation Lifesaver, Inc., and other public outreach efforts. However,
FRA is concerned that the desire of communities to implement quiet
zones could lead to redirection of scarce safety resources from safe
community initiatives and could seriously tax the capacity of crossing
safety programs provided by railroads and supported by the Federal
government, leading to a net reduction in crossing safety. Accordingly,
it is critical that programs proposed under this appendix represent
valid new increments of effort generated from the local level where
quiet zone benefits will accrue.
FRA is prepared to provide technical assistance to communities
seeking to implement quiet zones, including information regarding
public education and awareness resources. However FRA does not wish,
nor is it able, to step into the shoes of local authorities responsible
for public safety.
A second concern related to the public education and awareness
option is sustaining the required level of effort. Public safety
campaigns generally have temporary value when conducted over a short
period or during widely separated periods of emphasis. Campaigns such
as those promoting seat belt use or child safety seat use have long-
term and sustained impact only to the extent the message is delivered
repeatedly and with varied or innovative techniques. FRA is concerned
that government entities wishing to utilize the public education and
awareness option will need to find effective means of targeting the
relevant audience (concentrating the impact where it will have utility)
and ensuring that the message is reinforced over time. FRA seeks
comments regarding communities that have had notable success in
addressing particularly serious highway-rail crossing problems in their
areas. To what extent did those successes derive from methods that
might be transferred elsewhere? To what extent were prior very well
publicized collisions the immediate impetus for those campaigns? To
what extent is the public receptive to well-structured messages prior
to the occurrence of one or more serious and well-publicized events?

Other Alternatives for Consideration

Wayside horns. During FRA's outreach process several commenters
asked whether placement of a horn at the crossing and directed at
oncoming motorists might be entertained as a supplementary safety
measure. Such a device would typically be activated by the same track
circuits used to detect the train's approach for purposes of other
automated warning devices at the crossing. At FRA's direction, the
Volpe Center has conducted an initial evaluation of two wayside horn
installations at Gering, Nebraska. (The report of that evaluation will
be placed in the docket of this proceeding when finalized.) This
evaluation noted that use of the wayside horn in lieu of the train horn
reduced net community noise impacts. However, the report also contains
analysis that suggests questions (related to the loudness of the
subject wayside ``horn'') regarding the

[[Page 2257]]

effectiveness of that particular installation in alerting motorists.
Further, this evaluation did not contain adequate data or analysis to
permit a determination of whether a wayside horn could fully substitute
for a train-borne audible warnings. At least three questions must be
answered in this regard:
1. Does the particular system provide the same quality of warning,
determined by loudness at appropriate frequencies, within the motor
vehicle while it is approaching the motorist's decision point.
2. As currently conceived, a single stationary horn cannot give the
motorist a cue as to the direction of approach of the train or trains.
To what extent does this lack of directionality detract from the
effectiveness of the warning? Can wayside installation design be
altered to compensate?
3. To what extent will the stationary horn suffer from the lack of
credibility sometimes associated with automated warning devices, due to
the fact that it is activated by the same means? Over what period of
time may this problem arise, if at all?
FRA will continue to identify opportunities for developing data and
analysis that may be responsive to these questions. However, for the
present it is not possible to have confidence that the wayside horn can
fully compensate for the absence of the train horn at any individual
crossing.
Articulated gates. Concepts have been presented for articulated
gates that would descend from a single apparatus to block the approach
to the crossing in the normal direction of travel and continue down to
block the exit lanes from the crossing (on one or both sides). The
State of North Carolina, as part of an FRA-funded ``sealed corridor
initiative,'' will be evaluating articulated gates as a low-cost safety
measure in the context of the Next-Generation High Speed Ground
Transportation Program. Articulated gates appear to be particularly
attractive for two-lane roads where the highway-rail crossing is at a
sufficient distance from other intersections or obstructions that could
cause traffic to back up on the crossing. In principle, such gates
should have the same effectiveness as other four-quadrant gate
arrangements.
FRA reserves the right to expressly approve use of articulated
gates as four-quadrant gate arrangements in the final rule. FRA seeks
comment on the extent to which articulated gates present special issues
(such as maintainability, performance in high winds, etc.) that should
be addressed specifically in the final rule.
Different treatment during daylight and night-time hours. It has
been suggested that variable level horns could be used at higher range
during daylight hours with lower range used at night when vehicle
traffic is lower and train traffic is often higher. Also, it is has
been argued, lower level horns are more appropriate at night when the
ambient noise level is lower than during daylight hours.
It has also been suggested that perhaps in some circumstances it
might be appropriate to allow locomotive horns to be sounded during the
day while banning them only at night when people are typically
sleeping. This, it is argued, has the benefit of attacking the problem
when it is most serious (locomotive horns disturbing the sleep of
nearby residents) and when the risk is ostensibly lower (during periods
in which train traffic may be higher, and motor vehicle traffic is
generally less). While the NPRM addresses temporary closure of the
roadway as a means of accomplishing a night-time only ban, it has been
suggested that non-engineering safety measures such as increased law
enforcement during the ban hours and increased public education
addressing the night-time motorist population may also be appropriate.
FRA is concerned that locomotive horns being sounded during daylight
hours and remaining silent at other times could very well lead to fatal
confusion on the part of the motorist. We note that the Florida whistle
ban was a night-time only ban which resulted in substantially higher
collision and injury rates than if a ban had not been in effect.
FRA requests comments on the issues surrounding different treatment
during different periods of the day and night.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule has been evaluated in accordance with existing
policies and procedures and is considered ``significant'' under
Executive Order 12866. It is also considered to be significant under
DOT policies and procedures. See 44 FR 11034.
FRA has prepared a Regulatory Evaluation addressing the economic
impact of the proposed rule. This regulatory evaluation has been placed
in the public docket and is available for public inspection and
copying. Copies may also be obtained by submitting a written request to
the FRA Docket Clerk at Mail Stop 10, 1120 Vermont Avenue, N.W.,
Washington, D.C. 20950.
The problems considered by this rule are collisions and their
associated casualties and property damage involving vehicles on public
highways and the front ends of trains at whistle-ban grade crossings.
Although accident severity and the probability of a fatal accident is
most strongly related to train speed, every grade crossing where
locomotive horns are not sounded is a potential accident site. In 1996
there were 79 collisions at whistle-ban crossings which resulted in 2
fatalities, 39 injuries to non-railroad employees, and 2 injuries to
railroad employees.
The estimated safety benefits of this proposed rule are derived
from the prevention of collisions and the resulting fatalities and
injuries. Benefits also exist for railroads in terms of reduced train
delay, debris removal and repairs. The costs of this rulemaking will be
incurred predominantly by communities, however there are also costs to
railroads and to the federal government. The benefits in terms of lives
saved and injuries prevented will exceed the costs imposed on society
for this proposed rule. Even under the best case scenario (falling
accident rates over time) the safety benefits alone, excluding any
benefit to railroads, exceed the most costly realistic scenario for
community safety enhancements. FRA has a preliminary assessment of the
effects to homeowners or businesses adjacent to railroads tracks, where
an existing whistle-ban exists, should the community elect not to
pursue a qualifying quiet zone. The results of this study are
summarized in Section VII of this report, and conclude that there is
not a significant long-run impact on residential housing markets. For
purposes of this analysis FRA assumes that such communities will choose
to take actions that have the least cost (i.e. a cost that will not
exceed the costs of supplementary or alternative safety measures).
The estimated benefits of this proposed rule exceed the estimated
costs over a 20 year period at a 7% discount rate. Various benefit and
cost scenarios are established in the following sections. The costs are
summarized in Table 1, the benefits resulting from casualties prevented
are shown in Table 2. These findings are somewhat preliminary as FRA
does not have detailed data for the effectiveness or costs for some of
the Supplementary Safety Measures. FRA does not have adequate
information on what choices a given community will make regarding
either blowing the train whistle or installing or implementing
alternatives

[[Page 2258]]

to the train whistle. FRA seeks comment and additional information from
communities regarding choices they will make so that a more complete
estimate of the costs and benefits of this rule may be made prior to
the issuance of the final rule.

Table 1.--Estimated Costs \1\
------------------------------------------------------------------------

------------------------------------------------------------------------
Whistle Boards............................................ $20,250
Directionality Provision.................................. 10,982,000
Installation of Gates & Lights (878 crossings) \2\........ 67,109,706
Increased Maintenance Gates/Lights (878).................. 11,201,974
Signs..................................................... 375,500
Community Planning........................................ 134,000
Government Costs.......................................... 134,000
Medians (mountable at 878 crossings)...................... 11,060,183
Medians (mountable at all crossings)...................... 26,453,740
Police Enforcement........................................ 24,805,600
Photo Enforcement......................................... 124,955,453
\1\ This table cannot be summed for a total cost of the rule, much of
the cost depends on community choice. Numbers for Police and Photo
Enforcement are shown, however they are also contained in the benefits
section.
\2\ The number of passive crossings in the data set that are assumed to
require upgrades.

The estimated safety benefits of this proposed rule are derived
from the prevention of accidents and the resulting fatalities and
injuries. Benefits also exist for railroads in terms of reduced train
delay, debris removal and repairs. Two benefit scenarios were
estimated, one where the accident rate remains constant over time and
one where the accident rate declines by about 4% per year.

Table 2.--Estimated Benefits
------------------------------------------------------------------------
Effectiveness Effectiveness
Category = .38 \1\ = .75 \2\
------------------------------------------------------------------------
Collision Rate Constant................... $258,641,800 $510,477,200
Collision Rate Decline.................... 188,273,400 371,592,200
------------------------------------------------------------------------
\1\ Equivalent to effectiveness of train whistle at crossings with gates
and lights.
\2\ Equivalent to effectiveness of median barrier with frangible
delineators at crossings with gates and lights.

A scenario where median barriers are installed at each crossing,
signs are installed at each crossing and crossing upgrades to a minimum
of gates and lights for all passive crossings would be justified on the
basis of casualties prevented alone (At 2,100 crossings, total costs
for all required improvements, including changes in direction of horn
sound, and maintenance equal $116,395,343).
The following table identifies costs and benefits of alternative
implementation scenarios:

Table 3.--Costs and Benefits of Alternative Implementation Scenarios for Proposed Rule, Net Present Value 1999-
2019 \1\
----------------------------------------------------------------------------------------------------------------
Benefits
Costs monetized/ ---------------------------------------- Net monetized
Implementation scenario non-monetized Injury/fatality Monetized injury/ benefits
reduction fatality
----------------------------------------------------------------------------------------------------------------
Train whistles at crossing with $89,313,931 (68 Fatalities).... $258,641,800 $169,327,869
gates and lights, collision (342 Injuries).....
rate constant \2\. Indeterminate level
of noise costs
Train whistles at crossing with $89,313,931 (47 Fatalities).... 188,273,400 98,959,469
gates and lights, collision (235 Injuries).....
rate decline \3\. Indeterminate level
of noise costs
Median barrier with frangible $116,395,343 (135 Fatalities)... 510,477,200 394,081,857
delineators at crossings with (75 Injuries)......
lights and gates, collision
rate constant \4\.
Median barrier with frangible $116,395,343 (97 Fatalities).... 371,592,200 255,196,857
delineators at crossings with (463 Injuries).....
lights and gates, collision
rate decline \5\.
----------------------------------------------------------------------------------------------------------------
\1\ All figures assume 7% discount rate. The baseline to which these scenarios are compared is the continuation
of the whistle-bans in the communities that now have them. See table below for categories of costs and
benefits included in these monetized estimates.
\2\ Assumes a 38% reduction in fatalities and injuries and an accident rate that is constant over time.
Reduction in fatalities and injuries is the same 38%, the equivalent effectiveness of a train horn whether the
horn is sounded or not. Costs include installation and maintenance of gates and lights at 878 passive
crossings.
\3\ Assumes a 38% reduction in fatalities and injuries and an accident rate that declines by about 4% per year.
Reduction in fatalities and injuries is the same 38%, the equivalent effectiveness of a train horn whether the
horn is sounded or not. Costs include installation and maintenance of gates and lights at 878 passive
crossings.
\4\ Assumes a 75% reduction (effectiveness rate of median barrier) in fatalities and injuries and an accident
rate that is constant over time.
\5\ Assumes a 75% reduction (effectiveness rate of median barrier) in fatalities and injuries and an accident
rate that declines by about 4% per year.

Table 4.--Categories of Monetized and Non-Monetized Costs and Benefits Included in Above Analysis
----------------------------------------------------------------------------------------------------------------
Category Monetized Non-monetized
----------------------------------------------------------------------------------------------------------------
Costs................... Train whistles at crossings --Whistle boards (see Sec. --Indeterminate level of
with gates and lights. 222.21). noise costs.
--Directionality provision
(see Sec. 229.129)
--Upgrades to gates and
lights at passive
crossings

[[Page 2259]]

Supplementary safety --Upgrades to gates and None.
measures. lights at passive
crossings.
--Community costs
--Government costs
--Whistle boards
--Directionality
--Supplementary Safety
Measures and Alternative
Safety Measures (see Sec.
222.33)
Benefits................ Train whistles at crossings --Reduction in injuries and --Community noise reduction
with gates and lights. fatalities. through whistle boards and
the directionality
provision.
Supplementary safety --Reduction in injuries and --Reduced train delay,
measures. fatalities (greater debris removal and
reduction than train horn repairs.
is likely as all SSM's --Collisions/incidents
have higher effectiveness involving pedestrians and
rate than train horn). bicyclists.
--Incidents where car
struck train at behind the
first five cars.
--Community noise reduction
through quiet zones in
communities where state
law currently requires the
use of the train horn.
----------------------------------------------------------------------------------------------------------------

FRA recognizes that it is possible to imagine a situation under
which the disbenefits of the proposed rule might exceed the benefits as
applied to an individual community. FRA does not believe that this
condition would occur through excessive expenditures on supplementary
of alternative safety measures, since those measures can be scaled to
the safety need within the quiet zone (taken as a whole) and since most
such measures will yield benefits well in excess of the value of the
train horn if applied to all crossings.
However, should a community elect NOT to implement the proffered
alternatives, and should the negative societal impact of train horns be
valued in excess of the safety benefits of the horn, a net disbenefit
would, by definition, occur. This situation might arise where the
persons adversely affected by the train noise constituted a minority in
the community, and the community as a whole did not wish to invest in
the alternatives. Thus far, vocal minorities in affected communities
have succeeded in having the train horn silenced despite negative
safety impacts for motor vehicle users in the community at large. Thus,
it does not seem likely that they will be wholly without influence in
the future. However, given the competing demands on local elected
decision-makers, underinvestment in alternatives could occur. FRA
requests comment on any options that may exist, consistent with the
statutory mandate we are implementing, to address this concern. In this
regard, FRA notes the availability of the Federal funding, through the
Surface Transportation Program, which State departments of
transportation might elect to commit on behalf of the affected minority
should county or municipal institutions not be responsive.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of final rules to assess their impact on small
entities unless the Secretary certifies that a final rule will not have
a significant economic impact on a substantial number of small
entities. FRA is not able to certify that this proposed rule would not
have a significant economic impact on a substantial number of small
entities. FRA has performed an Initial Regulatory Flexibility
Assessment (IRFA) on small entities that potentially can be affected by
this proposed rule. The IRFA is summarized in this preamble as required
by the Regulatory Flexibility Act. Copies of the full IRFA are
available as an appendix to the Regulatory Impact Analysis, and is
available in the public docket of this proceeding. Written public
comments that will clarify what the impacts will be for the affected
small entities are requested. Comments must be identified as responses
to the IRFA, and must be filed by the deadlines for comments on the
NPRM provided above.
This is a proposed rule which essentially is a safety rule that
implements as well as minimizes the potential negative impacts of a
Congressional mandate to blow train whistles and horns. It provides
provisions for exceptions, and it provides communities with the ability
to reduce the impact of the locomotive horns within their
jurisdictions. However, this proposed rule will be responsible for an
amount of impact on small entities, no matter how the outcome for each
whistle ban is determined. This basically means that if a community
elects to simply follow the mandate, and become subject to whistle
blowing at crossings where a whistle ban had been prior, then there
will be a noise impact to any potential small business that exists
along that route. If a community elects to implement supplementary
safety measures that are necessary to establish a ``quiet zone,'' then
the governmental jurisdiction will be impacted by the cost of such
program or system.
Some communities believe that the sounding of train whistles at
every crossing is excessive and an infringement on community quality of
life, and therefore have enacted ``whistle bans'' that prevent the
trains from sounding their whistles entirely, or during particular
times (usually at night). FRA is concerned that with the increased risk
at grade crossings where train whistles are not sounded, or another
means of warning utilized, collisions and casualties may increase
significantly. In 1996 at least 52 percent of the 79 grade crossing
collisions that occurred at crossings with whistle bans in place,
occurred in a small community

[[Page 2260]]

where the governmental jurisdiction is considered to be a small entity.
FRA is concerned that there are potential small entities that might
be affected by this proposal. Hence, FRA encourages small businesses,
small railroads, and governmental jurisdictions that are considered to
be small entities to participate in the comment process if they feel
they will be adversely impacted by this proposed rule. The Agency
encourages such small entities to submit written comment to the docket
and/or participate in one of the public hearings.
FRA's Regulatory Impact Analysis notes that the costs of this
proposed rulemaking will predominately be on the governmental
jurisdictions of communities. Thus, FRA is concerned about potential
adverse economic impact on small entities which are ``small
governmental jurisdictions.'' As defined by the Small Business
Administration (SBA) this term means governments of cities, counties,
towns, townships, villages, school districts, or special districts with
a population of less than fifty thousand. Currently, FRA has knowledge
of Whistle Bans in 265 communities.
FRA has recently published an interim policy which establishes
``small entity'' as being railroads which meet the line haulage revenue
requirements of a Class III railroad. As defined by 49 CFR 1201.1-1,
Class III railroads are those railroads who have annual operating
revenues of $20 million per year or less. Hazardous material shippers
or contractors that meet this income level will also be considered as
small entities. FRA is proposing to use this definition of small entity
for this rulemaking. Since this is still considered to be an
alternative definition, FRA is using this definition in consultation
with the Office of Advocacy, SBA, and therefore requests public
comments to the docket for its use.
The IRFA concludes that only a few small railroads might be
minimally impacted by this proposed rule. In addition, some small
businesses that operate along or nearby rail lines that currently have
whistle bans in place that potentially may not after the implementation
of this proposed rule, could be moderately impacted. The most
significant impacts from this proposed rule will be on 265 governmental
jurisdictions whose communities currently have either formal or
informal whistle bans in place. FRA estimates that approximately 70
percent (i.e. 186 communities) of these governmental jurisdictions are
considered to be small entities. Alternative options for complying with
this proposed rule include allowing the train whistle to be blown. This
alternative has no direct costs associated with it for the governmental
jurisdiction. Other alternatives include ``gates with median barriers''
which are estimated to cost $11,070 for the median barrier. Four-
quadrant gate system is estimated to cost $244,000, and have an annual
maintenance of $2,500-$5,000. ``Photo enforcement is estimated to cost
$55,000-$75,000, and have an annual costs of $20,000-$30,000. A ``law
enforcement'' program is estimated to cost $3,000 annually, and it has
an expected annual benefit $10,600. An alternative that does not impact
the governmental jurisdiction with any costs is running trains at
speeds of 15 miles per hour or less with flagging being performed at
the crossing. Finally, FRA has not limited compliance to the lists
provided in Appendix A or Appendix B of the proposed rule. The NPRM
provides for supplementary safety measures that might be unique or
different. For such an alternative an analysis would have to accompany
the option that would demonstrate that the number of motorists that
violate the crossing is equivalent of less than that of blowing the
whistle. FRA intends to rely on the creativity of communities to
formulate solutions which will work for that community. FRA is aware
that there are a few Class III railroads that are subject to local
whistle bans. This number is estimated to be less than ten.
FRA does not know how many small businesses are located within a
distance of the affected highway-rail crossings where the noise from
the whistle blowing could be considered to be nuisance and bad for
business. Concerns have been advanced by owners and operators of
hotels, motels and some other establishments as a result of numerous
town meetings and other outreach sessions in which FRA has participated
during development of this proposed rule. If supplementary safety
measures are implemented to create a quiet zone then such small
entities should not be impacted. Hence FRA requests comments to the
docket from small businesses that feel they will be adversely impacted
by this proposed rule.
In the IRFA FRA discusses the ways in which each type of small
entity could be affected. However, since FRA does not know the manner
which each affected community will elect to proceed, it is not possible
to quantify or estimate the total or average cost for each type of
small entity. Comments and input from potentially affected small
entities will assist us in being able to determine the real impact of
this proposed rule.

Paperwork Reduction Act

The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual burden Total annual burden
CFR section Respondent universe responses response hours cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
222.11--Petitions for Waivers...... 270 communities....... 92 petitions.......... 1 hour............... 92 hours............. $2,208
222.33--Establishment of quiet (see Sec. 222.35).... (see Sec. 222.35).... (see Sec. 222.35)... (see Sec. 222.35)... (see Sec. 222.35)
zones.
--Community Designation........ 270 communities....... 97 applications....... 40 hours............. 3,880 hours.......... 116,400
--FRA acceptance............... 270 communities....... 1,600 signs........... 1 hour............... 1,600 hours.......... 38,400
--Requirement for advance
warning signs
222.35--Notice and information
requirements:
--Notifications................ 280 communities....... 383 notifications..... 20 minutes........... 128 hours............ 3,840
--U.S. DOT-AAR National Highway- 280 communities....... 800 forms............. 1 hour............... 821 hours............ 24,630
Rail Grade Crossing Inventory 85 letters............ 15 minutes...........
Form (FRA F 6180.71).
222.39--Quiet zone duration:
--222.39(a)--Notification...... N/A (requirement will not take effect until 5 years after the rule's publication).
--222.39(b)--Notification...... N/A (requirement will not take effect until 6 years after the rule's publication).

[[Page 2261]]

--222.39(c)--Notification...... N/A (requirement will not take effect until 6 years after the rule's publication).
222.43--Development and approval of
new supplementary safety measures:
--Applications................. 270 communities....... 54 applications....... 40 hours............. 2,160 hours.......... 64,800
--Appeal letter................ 54 communities........ 1 letter.............. 1 hour............... 1 hour............... 30
222.45--Communities with pre- 270 communities....... 73 documents.......... 8 hours.............. 584 hours............ 17,520
existing restrictions on use of
locomotive horns.
Appendix A:
--Temporary closure of a public 270 communities....... 60 signs.............. 1 hour............... 60 hours............. 1,440
highway-rail grade crossing. 20 signs daily
--Photo Enforcement............ 270 communities....... 10 reports............ 40 hours............. 400 hours............ 12,000
Appendix B:
--Alternative Safety Measures.. 270 communities....... 5 reports............. 40 hours............. 200 hours............ 6,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the function of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized.
FRA believes that soliciting public comment will promote its
efforts to reduce the administrative and paperwork burdens associated
with the collection of information mandated by Federal regulations. In
summary, FRA reasons that comments received will advance three
objectives: (i) reduce reporting burdens; (ii) ensure that it organizes
information collection requirements in a ``user friendly'' format to
improve the use of such information; and (iii) accurately assess the
resources expended to retrieve and produce information requested. See
44 U.S.C. 3501.
Comments must be received no later than March 13, 2000.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Attention: Desk Officer for the Federal
Railroad Administration, Office of Information and Regulatory Affairs,
Washington, DC 20503, and should also send a copy of their comments to
Robert Brogan, Federal Railroad Administration, RRS-211, Mail Stop 25,
400 7th Street, SW, Washington. DC 20590.
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA cannot impose a penalty on persons for violating information
collection requirements which do not display a current OMB control
number, if required. FRA intends to obtain current OMB control numbers
for any new information collection requirements resulting from this
rulemaking action prior to the effective date of a final rule. The OMB
control number, when assigned, will be announced by separate notice in
the Federal Register.
For information or a copy of the paperwork package submitted to OMB
please contact Robert Brogan at 202-632-3318.

Environmental Impact

FRA is evaluating these proposals in accordance with its procedures
for ensuring full consideration of the environmental impact of FRA
actions, as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and DOT Order 5610.1c.
The principal environmental effect and potentially significant
impact of these proposals is additional horn noise where there whistle
bans currently exist. FRA has studied the potential costs of noise from
locomotive horns by examining residential property values. Other
studies have also been conducted on the value of noise impacts captured
in residential prices, including studies by the FAA. FAA conducted
studies that concluded that residential property values were diminished
from exposure to substantial quantities of aircraft noise. FAA studied
significant changes in aircraft generated noise levels in consideration
of actions that would change the total noise emitted by each aircraft.
The DEIS discusses the substantial estimated costs associated with
given increments of noise over a 24-hour period in the FAA studies. FRA
may be faced with a significantly different question, because this
regulation has the potential to add incremental noise at certain
locations to the considerable noise, vibration and other impacts
generated by train locomotives and train movements. In studying
residential property values where the horn noise was added as an
increment to noise from train operations, FRA found that it did not
produce a significant lasting effect on residential prices. The DEIS
seeks to elicit comment as to the potential relevance of the FAA
studies to the current issue and the relative weight they should be
accorded given the findings of the train horn property value research.
These proposals also contain various provisions that have the
potential to reduce existing train horn noise exposure over time. The
provision limiting the distance over which horn sounding would occur
could reduce the total amount of horn noise generated. Because this
provision is proposed to be implemented slowly, the potential benefits
are indeterminate. The provision for a maximum horn sound level to the
front and to the side of locomotives has the potential to greatly
reduce horn noise generated depending upon the limits selected. Unlike
the sounding distance provision, this is proposed to occur a three-year
period

[[Page 2262]]

and the value of any potential benefit is indeterminate, however it is
expected to be significant (2 to 4 million people). Finally, these
proposals contain provisions that would make it possible for many
communities, currently exposed to train horn noise, to establish quiet
zones and thus relieve themselves of noise exposure. Any potential
benefit from these new quiet zones is indeterminate, as it is
impossible to estimate how many would be implemented and when; however,
FRA has noted the interest of many communities impacted by recent
mergers in abating the train horn impacts of recent changes in traffic
flows.
FRA has prepared a draft environmental impact statement (DEIS)
analyzing the environmental impacts associated with these proposals.
The DEIS is being issued concurrently with this NPRM. Copies of the
DEIS are being distributed to organizations and individuals who
participated in the environmental scoping process and those who filed
comments in the pre-rulemaking stage of this proceeding. The DEIS is
also available on FRA's Internet Site www.fra.dot.gov. or from the FRA
at the following address: David Valenstein, Office of Railroad
Development, FRA, 400 Seventh Street, SW. (Mail Stop 20), Washington,
DC 20590. The public comment period on the DEIS and this NPRM will run
concurrently. Interested parties may comment on the DEIS, the NPRM, or
both documents. Because FRA is soliciting comments on both the DEIS and
this NPRM, separate public dockets have been established for each.
Interested parties wishing to comment on the DEIS should include the
docket number for the environmental docket, ``Docket Number FRA-1999-
6440'' on the first page of their comments. Those persons wishing to
comment on this NPRM should include the docket number for this
rulemaking proceeding, ``Docket Number FRA-1999-6439'' on the first
page of their comments.

Federalism Implications

Executive Order 13132, entitled, ``Federalism,'' issued on August
4, 1999, requires that each agency ``in a separately identified portion
of the preamble to the regulation as it is to be issued in the Federal
Register, provides to the Director of the Office of Management and
Budget a federalism summary impact statement, which consists of a
description of the extent of the agency's prior consultation with State
and local officials, a summary of the nature of their concerns and the
agency's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of State and local
officials have been met; * * *.''
FRA will adhere to Executive Order 13132 when issuing a final rule
in this proceeding. FRA has already taken the opportunity to consult
extensively with state and local officials prior to issuance of this
NPRM, and we will, of course, take very seriously the concerns and
views expressed by State and local officials as the public comment
stage of this rulemaking proceeds. FRA staff will be providing
briefings to many State and local officials and organizations during
the comment period to encourage full public participation in this
rulemaking. As discussed earlier in this preamble, because of the great
interest in this subject throughout various areas of the country, FRA
has been involved in an extensive outreach program to inform
communities which presently have whistle bans of the effect of the Act
and the regulatory process. Since the passage of the Act, FRA
headquarters and regional staff has met with a large number of local
officials. FRA has also held a number of public meetings to discuss the
issues and to receive information from the public. In addition to local
citizens, both local and state officials attended and participated in
the public meetings. Additionally, FRA took the unusual step of
establishing a public docket before formal initiation of rulemaking
proceedings in order to enable citizens and local officials to comment
on how FRA might implement the Act and to provide insight to FRA. FRA
received comments from representatives of Portland, Maine; Maine
Department of Transportation; Acton, Massachusetts; Wisconsin's Office
of the Commissioner of Railroads; a Wisconsin state representative; a
Massachusetts state senator; the Town of Ashland, Massachusetts;
Bellevue, Iowa; and the mayor of Batavia, Illinois.
Since passage of the Act in 1994, FRA has consulted and briefed
representatives of the American Association of State Highway and
Transportation Officials (AASHTO), the National League of Cities,
National Association of Regulatory Utility Commissioners, National
Conference of State Legislatures, and others. Additionally we have
provided extensive written information to all United States Senators
and a large number of Representatives with the expectation that the
information would be shared with interested local officials and
consitituents.
FRA has been in close contact with, and has received many comments
from Chicago area municipal groups representing suburban areas in
which, for the most part, locomotive horns are not routinely sounded.
The Chicago area Council of Mayors, which represents over 200 cities
and villages with over 4 million residents outside of Chicago, provided
valuable information to FRA as did the West Central Municipal
Conference and the West Suburban Mass Transit District, both of
suburban Chicago.
Another association of suburban Chicago local governments, the
DuPage [County] Mayors and Managers Conference, provided comments and
information. Additionally, FRA officials have met with Members of
Congress, including Senator Kennedy, and Representatives Rick Boucher,
Henry Hyde, William Lipinsky, Martin Meehan, Tim Roemer and John
Tierney, who have invited FRA to their districts and have provided
citizens and local officials with the opportunity to express their
views on this rulemaking process. These exchanges, and others conducted
directly through FRA's regional crossing managers, have been very
valuable in identifying the need for flexibility in preparing the
proposed rule. For further discussion regarding the nature of state and
local concerns please see paragraph F. ``Comments received by FRA.''
above.
Under 49 U.S.C. 20106, issuance of this regulation preempts any
State law, rule, regulation, order, or standard covering the same
subject matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard, that is not incompatible with Federal
law or regulation and does not unreasonably burden interstate commerce.

Compliance With the Unfunded Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates Reform Act of 1995 (Public Law
104-4) each federal agency ``shall, unless otherwise prohibited by law,
assess the effects of Federal Regulatory actions on State, local, and
tribal governments, and the private sector (other than to the extent
that such regulations incorporate requirements specifically set forth
in law).'' Section 201. Section 202 of the Act further requires that
``before promulgating any general notice of proposed rulemaking that is
likely to result in promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $
100,000,000 or more (adjusted annually for inflation) in any 1 year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement * * *'' detailing the effect on

[[Page 2263]]

State, local and tribal governments and the private sector. The
proposed rules issued today will not result in the expenditure, in the
aggregate, of $100,000,000 or more in any one year, and thus
preparation of a statement is not required.

List of Subjects

49 CFR Part 222

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

49 CFR Part 229

Locomotives, Penalties, Railroad safety.

The Proposed Rule

In consideration of the foregoing, FRA proposes to amend chapter II
of title 49, Code of Federal Regulations as follows:
1. Part 222 is added to read as follows:

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

Subpart A--General

Sec.
222.1 Purpose and scope.
222.3 Application.
222.5 Preemptive effect.
222.7 Definitions.
222.9 Penalties.
222.11 Petitions for waivers.
222.13 Responsibility for compliance.

Subpart B--Use of Locomotive Horns

222.21 When to use locomotive horns.
222.23 Emergency and other uses of locomotive horns.

Subpart C--Exceptions to Use of the Locomotive Horn

222.31 Train operations which do not require sounding of locomotive
horns at individual public highway-rail grade crossings.
222.33 Establishment of quiet zones.
222.35 Notice and information requirements.
222.37 Quiet zone implementation.
222.39 Quiet zone duration.
222.41 Supplementary and alternative safety measures.
222.43 Development and approval of new supplementary safety
measures.
222.45 Communities with pre-existing restriction on use of
locomotive horns.

Appendix A to Part 222--Approved Supplemental Safety Measures

Appendix B to Part 222--Alternative Safety Measures

Appendix C to Part 222--Conditions Not Requiring Additional Safety
Measures

Authority: 49 U.S.C. 20103, 20107 and 20153; 28 U.S.C. 2461
note; and 49 CFR 1.49.

Subpart A--General

Sec. 222.1 Purpose and scope.

(a) The purpose of this part is to increase safety at public
highway-rail grade crossings by ensuring that locomotive horns are
sounded when trains approach and pass through public highway-rail grade
crossings.
(b) This part prescribes standards for sounding locomotive horns
when locomotives approach and pass through public highway-rail grade
crossings. This part further provides standards for exempting from the
requirement to sound the locomotive horn certain categories of rail
operations and categories of public highway-rail grade crossings.

Sec. 222.3 Application.

This part applies to every railroad with public highway-rail grade
crossings on its line of railroad, except:
(a) A railroad that exclusively operates freight trains exclusively
on track which is not part of the general railroad system of
transportation; and
(b) Rapid transit operations within an urban area that are not
connected to the general railroad system of transportation.

Sec. 222.5 Preemptive effect.

Under 49 U.S.C. 20106, issuance of this part preempts any State
law, rule, regulation, or order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety hazard;
is not incompatible with a law, regulation, or order of the United
States Government; and does not unreasonably burden interstate
commerce.

Sec. 222.7 Definitions.

As used in this part--
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
Barrier curb means a highway curb designed to discourage a motor
vehicle from leaving the roadway. Such curb is more than six inches but
not more than nine inches high with a rounded top edge and is used
where highway speeds do not exceed 40 miles per hour. The barrier curb
is highly visible and provided with sloped end treatments. Additional
design specifications are determined by the standard traffic design
specifications used by the governmental entity constructing the barrier
curb.
Channelization device means one of a continuous series of highly
visible obstacles placed between opposing highway lanes designed to
alert or guide traffic around an obstacle or to direct traffic in a
particular direction. Channelization devices must be at least 2.5 feet
high and placed at least every seven feet. End treatments, in the case
of rigid channelization devices, should be determined by reference to
the governmental entity's own standard traffic design specifications.
Effectiveness rate means the effectiveness of a supplementary
safety measure in reducing the probability of a collision at a public
highway-rail grade crossing. (Effectiveness is indicated by a number
between zero and one which represents the reduction of the probability
of a collision as a result of the installation of a supplementary
safety measure when compared to the same crossing equipped with
conventional automated warning systems of flashing lights, gates and
bells. Zero effectiveness means that the supplementary safety measure
provides no reduction in the probability of a collision (there is no
effectiveness) while an effectiveness rating of one means that the
supplementary safety measure is totally effective in reducing
collisions. Measurements between zero and one reflect the percentage by
which the supplementary safety measure reduces the probability of a
collision. Thus, a supplementary safety measure with an effectiveness
of .38 reduces the probability of a collision by 38 percent.) FRA has
determined that collision probabilities increase an average of 62
percent when locomotive horns are silenced. Thus, generally, a
supplementary safety measure should have an effectiveness of at least
.38 (reducing the probability of a collision by at least 38 percent) in
order to compensate for this 62 percent increase.
FRA means the Federal Railroad Administration.
Locomotive horn means a locomotive air horn, steam whistle, or
similar audible warning device mounted on a locomotive or control cab
car. The terms ``locomotive horn'', ``train whistle'', ``locomotive
whistle'', and ``train horn'' are used interchangeably in the railroad
industry.
Median means the portion of a divided highway separating the travel
ways for traffic in opposite directions. A median is bounded by
mountable or barrier curbs.
Mountable curb means a highway curb designed to permit a motor
vehicle to leave a roadway when required. It is a curb not more than
six inches high, with a well rounded top edge. Additional design
specifications are determined by the standard traffic design
specifications used by the

[[Page 2264]]

governmental entity constructing the mountable curb.
Positive train control territory means a line of railroad on which
railroad operations are governed by a train control system capable of
determining the position of the train in relation to a public highway-
rail grade crossing and capable of computing the time of arrival of the
train at the crossing, resulting in the automatic operation of the
locomotive horn (or automatic prompting of the locomotive engineer)
such that the horn is sounded at a predetermined time prior to the
locomotive's arrival at the crossing.
Public highway-rail grade crossing means a location where a public
highway, road, or street, including associated sidewalks or pathways
crosses one or more active railroad tracks at grade.
Quiet zone means a segment of a rail line within which is situated
one, or a number of consecutive public highway-rail crossings at which
locomotive horns may not be routinely sounded.
Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways and any entity providing
such transportation, including:
(1) Commuter or other short-haul railroad passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
Supplementary safety measure means a safety system or procedure
established in accordance with this part which is provided by the
appropriate traffic control authority or law enforcement authority and
that is determined by the Administrator to be an effective substitute
for the locomotive horn in the prevention of highway-rail casualties.
Appendix A to this part lists such measures.
Whistle board means a post or sign directed toward oncoming trains
and bearing the letter ``W'' or equivalent symbol, erected at a
distance from the next public highway-rail grade crossing which
indicates to the locomotive engineer that the locomotive horn should be
sounded beginning at that point.

Sec. 222.9 Penalties.

Any person who violates any requirement of this part or causes the
violation of any such requirement is subject to a civil penalty of
least $500 and not more than $11,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$22,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. Any person who knowingly and
willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311 (formerly codified
in 45 U.S.C. 438(e)).

Sec. 222.11 Petitions for waivers.

(a) Except for petitions filed pursuant to paragraph (b) of this
section, all petitions for a waiver of any provision of this part must
be submitted jointly by the railroad owning, or controlling operations
of the railroad tracks crossing the public highway-rail grade crossing
and by the appropriate traffic control authority or law enforcement
authority (public authority) having jurisdiction over the public
highway, street, road, pedestrian sidewalk or pathway crossing the
railroad tracks.
(b) If the railroad and the appropriate public authority can not
reach agreement to file a joint petition, either party may file a
petition for a waiver, however the filing party shall, in its petition,
specify the steps it has taken in an attempt to reach agreement with
the other party and shall provide the other party with a copy of the
petition filed with the FRA.
(c) Each petition for a waiver of this part must be filed in the
manner required by 49 CFR Part 211.
(d) If the Administrator finds that a waiver of compliance with a
provision of this part is in the public interest and that safety of
highway and railroad users will not be diminished if the petition is
granted, the Administrator may grant the waiver subject to any
conditions the Administrator deems necessary.

Sec. 222.13 Responsibility for compliance.

Although duties imposed by this part are generally stated in terms
of the duty of a railroad, any person, including a contractor for a
railroad, or a local or state governmental entity that performs any
function covered by this part, must perform that function in accordance
with this part.

Subpart B--Use of Locomotive Horns

Sec. 222.21 When to use locomotive horns.

(a) Except as provided in this part, the locomotive horn on the
lead locomotive of a train, lite locomotive consist, individual
locomotive or lead cab car shall be sounded when such locomotive or
lead car is approaching and passes through each public highway-rail
grade crossing. Sounding of the locomotive horn with two long, one
short, and one long blast shall be initiated at the location required
in paragraph (b) of this section and shall be repeated or prolonged
until the locomotive or train occupies the crossing.
(b) Although preempted by this part, state requirements in effect
on [the effective date of the final rule] which govern the location
where, or time in which, locomotive horns must be sounded in advance of
a public highway-rail grade crossing, shall be used as guidelines under
this rule until such time as the railroad changes the maximum
authorized speed for that portion of track at the grade crossing. At
that time the railroad shall, subject to the one-quarter mile
limitation contained in paragraph (e) of this section, either:
(1) Place whistle boards at a distance from the next crossing equal
to the distance traveled by a train in 20 seconds while operating at
the maximum speed allowed for any train operating on the track in that
direction of movement; or
(2) Ensure by other methods that the locomotive horn is sounded no
less than 20, nor more than 24 seconds before the locomotive enters the
crossing.
(c) If, as of [the effective date of the final rule], there are no
state requirements that locomotive horns be sounded at a specific
distance in advance of the public highway-rail grade crossing,
railroads shall, subject to the \1/4\ mile limitation contained in
paragraph (e) of this section, either:
(1) Place whistle boards at a distance from the next crossing equal
to the distance traveled by a train in 20 seconds while operating at
the maximum speed allowed for any train operating on the track in that
direction of movement; or
(2) Ensure by other methods that the locomotive horn is sounded no
less than 20, nor more than 24 seconds before the locomotive enters the
crossing.
(d) Each railroad shall, in the manner provided in paragraph (c) of
this section, promptly adjust the location of each whistle board to
reflect changes in maximum authorized track speeds, except where all
trains operating over that public highway-rail grade crossing

[[Page 2265]]

are equipped to be responsive to a positive train control system.
(e) In no event shall a locomotive horn sounded in accordance with
paragraph (a) of this section be sounded more than one-quarter mile
(1,320 feet or 403 meters) in advance of a public highway-rail grade
crossing.

Sec. 222.23 Emergency and other uses of locomotive horns.

(a)(1) Nothing in this part is intended to prevent an engineer from
sounding the locomotive horn to provide a warning to vehicle operators,
pedestrians, trespassers or crews on other trains in an emergency
situation if, in the engineer's sole judgment, such action is
appropriate in order to prevent imminent injury, death or property
damage.
(2) Establishment of a quiet zone does not preclude the sounding of
locomotive horns in emergency situations, nor does it impose a legal
duty to sound the locomotive horn in such situations.
(b) Nothing is this part restricts the use of the locomotive horn
to announce the approach of the train to roadway workers in accordance
with a program adopted under part 214 of this Chapter, or where active
warning devices have malfunctioned and use of the horn is required by
one of the following sections of this Chapter: Secs. 234.105; 234.106;
or 234.107.

Subpart C--Exceptions to Use of the Locomotive Horn

Sec. 222.31 Train operations which do not require sounding of horns at
individual public highway-rail grade crossings.

(a) Locomotive horns need not be sounded at individual public
highway-rail grade crossings if the maximum authorized operating speed
(as established by the railroad) for that segment of track is 15 miles
per hour or less and properly equipped flaggers (as defined in 49 CFR
234.5) provide warning of approaching trains to motorists.
(b) This paragraph does not apply where active warning devices have
malfunctioned and use of the horn is required by 49 CFR 234.105,
234.106, or 234.107.

Sec. 222.33 Establishment of quiet zones.

(a) Community designation. A state or local government may
designate a quiet zone by implementing one or more supplementary safety
measures identified in Appendix A of this part at each public highway-
rail grade crossing within the quiet zone and by providing the
information and notifications described under Sec. 222.35.
(b) FRA acceptance. (1) A state or local government may apply to
FRA's Associate Administrator for Safety for acceptance of a quiet
zone, within which one or more safety measures identified in Appendix A
or Appendix B of this part will be implemented. The state or local
government's application to FRA's Associate Administrator for Safety
must contain sufficient detail concerning the present engineering
improvements at the public highway-rail grade crossings proposed to be
included in the quiet zone, together with detailed information
pertaining to the proposed supplementary and alternative safety
measures to be implemented at each crossing. The application must
conform with the requirements contained in Appendix B of this part, and
must be based on the calculations discussed in the Introduction to
Appendices A and B of this part. The application must also contain a
commitment to implement the proposed safety measures within the
proposed quiet zone. The state or local government must demonstrate
through data and analysis that implementation of these measures will
effect a reduction in risk at public highway-rail grade crossings
within the quiet zone (viewing risk in the aggregate rather than on a
crossing-by-crossing basis) sufficient to fully compensate for the
absence of the warning provided by the locomotive horn. For purposes of
this paragraph, risk will be viewed in terms of the quiet zone as a
whole, rather than at each individual grade crossing. The aggregate
reduction in predicted collision risk for the quiet zone as a whole
must be shown to compensate for the lack of a locomotive horn.
(2) The FRA Associate Administrator for Safety may accept the
proposed quiet zone, may accept the proposed quiet zone under
additional conditions designed to ensure that the safety measures fully
compensate for the absence of the warning provided by the locomotive
horn, or may reject the proposed quiet zone if, in the Associate
Administrator's judgment, the proposed safety measures do not fully
compensate for the absence of the warning provided by the locomotive
horn.
(c) Quiet zone in which supplementary or alternative safety
measures are not necessary. A state or local government may create a
quiet zone under this paragraph if the crossings within the quiet zone
conform to the requirements contained in Appendix C of this part.
Appendix C of this part describes those categories of crossings which
the Administrator has determined do not present a significant risk with
respect to loss of life or serious personal injury if the locomotive
horn is not sounded.
(d) Minimum length. The minimum length of a quiet zone established
under this part shall be one-half mile (2,640 feet or 805 meters) along
the length of railroad right-of-way.
(e) Requirement for active grade crossing warning devices. Except
as provided in Sec. 222.31, and paragraph (c) of this section, each
public highway-rail grade crossing in a quiet zone established or
accepted under this section must be equipped with active grade crossing
warning devices comprising both flashing lights and gates which control
traffic over the crossing and that conform to the standards contained
in the Manual on Uniform Traffic Control Devices issued by the Federal
Highway Administration. Installation or upgrading of such devices is
not regarded as implementation of supplementary safety measures under
this part and is not credited toward the compensating reduction in risk
referenced in paragraph (b) of this section, except to the extent the
new warning systems exceed the standards of the MUTCD and conform to
requirements for supplementary safety measures contained in Appendix A
of this part.
(f) Requirement for advance warning signs. Each highway approach to
each public highway-rail grode crossing at which locomotive horns are
not routinely sounded pursuant to this part shall be equipped with an
advance warning sign advising the motorist that train horns are not
sounded at the crossing.

Sec. 222.35 Notice and information requirements.

(a) A state or local government designating a quiet zone under
Sec. 222.33(a) shall provide written notice, by certified mail, return
receipt requested, of such designation to: all railroads operating over
the public highway-rail grade crossings within the quiet zone; the
highway or traffic control authority or law enforcement authority
having control over vehicular traffic at the crossings within the quiet
zone; the state agency responsible for highway and road safety; and the
FRA Associate Administrator for Safety.
(b) Upon acceptance by the FRA Associate Administrator for Safety
of a quiet zone proposed by a state or local government under
Sec. 222.33(b), such state or local government shall provide written
notice, by certified mail, return receipt requested, of such acceptance
to: all railroads operating over the public highway-rail grade
crossings within the quiet zone; the highway or traffic

[[Page 2266]]

control authority or law enforcement authority having control over
vehicular traffic at the crossings within the quiet zone; and the state
agency responsible for highway and road safety.
(c) A state or local government creating a quiet zone under
Sec. 222.33(c), shall provide written notice, by certified mail, return
receipt requested, of such designation to: all railroads operating over
the public highway-rail grade crossings within the quiet zone; the
highway or traffic control authority or law enforcement authority
having control over vehicular traffic at the crossings within the quiet
zone; the state agency responsible for highway and road safety; and the
FRA Associate Administrator for Safety.
(d) The following information pertaining to every quiet zone must
be submitted to the FRA Associate Administrator for Safety:
(1) An accurate and complete U.S. DOT-AAR National Highway-Rail
Grade Crossing Inventory Form, FRA F6180.71, (Inventory Form)
(available through the FRA Office of Safety Analysis, Mail Stop 17,
1120 Vermont Avenue, NW., Washington, DC 20590) for each public
highway-rail grade crossing within the quiet zone dated within six
months prior to designation or FRA acceptance of the quiet zone;
(2) An accurate, complete and current Inventory Form reflecting
supplementary and alternative safety measures in place upon
establishment of the quiet zone; and
(3) The name and title of the state or local officer responsible
for monitoring compliance with the requirements of this part and the
manner in which that person can be contacted.

Sec. 222.37 Quiet zone implementation.

(a) A quiet zone established under this part shall not be
implemented until:
(1) All requirements of Sec. 222.35 are complied with; and
(2) At least 14 days have elapsed since receipt of all of the
notifications required by Sec. 222.35.
(b) All railroads operating over public highway-rail grade
crossings within a quiet zone established in accordance with this part
shall cease routine use of the locomotive horn at public highway-rail
crossings upon the date set by the state or local government which has
established such quiet zone.

Sec. 222.39 Quiet zone duration.

(a) Subject to paragraph (d) of this section, a quiet zone
designated by a state or local government under Sec. 222.33(a) may
remain in effect indefinitely, provided that all requirements of this
part continue to be met and that within six months before the
expiration of five years from the original designation made to FRA, or
within six months of the expiration of five years from the last
affirmation, the designating entity affirms in writing to the FRA
Associate Administrator for Safety that the supplementary safety
measures implemented within the quiet zone continue to conform with the
requirements of Appendix A of this part. Copies of such notification
must be provided to the parties identified in Sec. 222.35(a) by
certified mail, return receipt requested. In addition to its
affirmation, the designating entity must send to the FRA Associate
Administrator for Safety an accurate and complete U.S. DOT-AAR National
Highway-Rail Grade Crossing Inventory Form, FRA F6180.71, for each
public highway-rail grade crossing within the quiet zone.
(b) Subject to paragraph (d) of this section, a quiet zone accepted
by FRA under Sec. 221.33(b) shall remain in effect indefinitely,
provided that all requirements of this part continue to be met and that
within six months before the expiration of three years from the
original designation made to FRA, or within six months of the
expiration of three years from the last affirmation, the state or local
government affirms in writing (with notification by certified mail,
return receipt requested, of such affirmation provided to the parties
identified in Sec. 222.35(b)) that the supplementary safety measures
installed and implemented in the quiet zone continue to be effective
and continue to fully compensate for the absence of the warning
provided by the locomotive horn. In addition to its affirmation, the
governmental entity must send to the FRA Associate Administrator for
Safety an accurate and complete U.S. DOT-AAR National Highway-Rail
Grade Crossing Inventory Form, FRA F6180.71, for each public highway-
rail grade crossing within the quiet zone.
(c) Subject to paragraph (d) of this section, a quiet zone created
by a state or local government under Sec. 222.33(c) may remain in
effect indefinitely, provided that all requirements of this part
continue to be met and that within six months before the expiration of
five years from the original designation made to FRA, or within six
months of the expiration of five years from the last affirmation, the
state or local government affirms in writing to the FRA Associate
Administrator for Safety that the conditions contained in Appendix C of
this part continue to be met. Copies of such notification must be
provided to the parties identified in Sec. 222.35(a) by certified mail,
return receipt requested. In addition to its affirmation, the
designating entity must send to the FRA Associate Administrator for
Safety an accurate and complete U.S. DOT-AAR National Highway-Rail
Grade Crossing Inventory Form, FRA F6180.71, for each public highway-
rail grade crossing within the quiet zone.
(d) The FRA Associate Administrator for Safety may, at any time,
review the status of any quiet zone and determine whether, under the
conditions then present, supplementary and alternative safety measures
in place fully compensate for the absence of the warning provided by
the locomotive horn, or in the case of quiet zones created under
Sec. 222.33(c), whether there is a significant risk with respect to
loss of life or serious personal injury. If the FRA Associate
Administrator for Safety makes a preliminary determination that such
safety measures do not fully compensate for the absence of the
locomotive horn, or that there is a significant risk with respect to
loss of life or serious personal injury, he or she will publish notice
of the determination in the Federal Register and provide an opportunity
for comment and informal hearing. The FRA Associate Administrator for
Safety may require that additional safety measures be taken or that the
quiet zone be terminated.

Sec. 222.41 Supplementary and alternative safety measures.

(a) Approved supplementary safety measures determined to be at
least as effective as the locomotive horn when each public highway-rail
grade crossing is equipped, and standards for their implementation, are
listed in Appendix A of this part.
(b) Additional, alternative safety measures that may be included in
a request for FRA acceptance of a quiet zone under Sec. 222.33(b) are
listed in Appendix B of this part.
(c) Appendix C of this part describes those situations in which the
Administrator has determined do not present a significant risk with
respect to loss of life or serious personal injury from establishment
of a quiet zone. In the situations listed, supplementary safety
measures are not required.
(d) The Administrator will add new supplementary safety measures
and standards to Appendix A or B of this part when the Administrator
determines that such measures or standards are an effective substitute
for the locomotive horn in the prevention of collisions and casualties
at public highway-rail grade crossings. The Administrator will add new
listings to Appendix C of this part when the Administrator determines
that

[[Page 2267]]

no negative safety consequences result from establishment of a quiet
zone under the listed conditions.
(e) The following do not, individually or in combination,
constitute supplementary or alternative safety measures: standard
traffic control devices arrangements such as reflectorized crossbucks,
STOP signs, flashing lights, or flashing lights with gates that do not
completely block travel over the line of railroad, or traffic signals.

Sec. 222.43 Development and approval of new supplementary safety
measures.

(a) Interested parties may demonstrate proposed new supplementary
safety systems or procedures to determine if they are an effective
substitute for the locomotive horn in the prevention of collisions and
casualties at public highway-rail grade crossings.
(b) The Administrator may order railroad carriers operating over a
public highway-rail grade crossing or crossings to temporarily cease
the sounding of locomotive horns at such crossings to demonstrate
proposed new supplementary safety measures, provided that such proposed
new supplementary safety systems or procedures have been subject to
prior testing and evaluation. In issuing such order, the Administrator
may impose any conditions or limitations on such use of the proposed
new supplementary safety measures which he or she deems necessary in
order provide the highest level of safety.
(c) Upon successful completion of a demonstration of proposed new
supplementary safety measures, interested parties may apply to the FRA
Associate Administrator for Safety for approval of the new
supplementary safety measures. Applications for approval shall be in
writing and shall include the following:
(1) The name and address of the applicant;
(2) A description and design of the proposed new supplementary
safety measure;
(3) A description and results of the demonstration project in which
the proposed supplementary safety measures were tested;
(4) Estimated costs of the proposed new supplementary safety
measure; and
(5) Any other information deemed necessary.
(d) If the FRA Associate Administrator for Safety is satisfied that
the proposed supplementary safety measure fully compensates for the
absence of the warning provided by the locomotive horn, he or she will
approve its use as a supplementary safety measure to be used in the
same manner as the measures listed in Appendix A of this part. The
Associate Administrator may impose any conditions or limitations on use
of the supplementary safety measures which he or she deems necessary in
order to provide the highest level of safety.
(e) If the FRA Associate Administrator for Safety approves a new
supplementary safety measure he or she will notify the applicant and
shall add the measure to the list of approved supplementary safety
measures contained in Appendix A of this part.
(f) The party applying for approval of a supplementary safety
measure may appeal to the Administrator from a decision by the FRA
Associate Administrator for Safety rejecting a proposed supplementary
safety measure or the conditions or limitations imposed on use.

Sec. 222.45 Communities with pre-existing restrictions on use of
locomotive horns.

(a) Subject to paragraph (b) of this section, communities which, as
of October 9, 1996, have enacted ordinances restricting the sounding of
a locomotive horn, or communities which, as of October 9, 1996, have
not been subject to sounding of locomotive horns at highway-rail
crossings due to formal or informal agreements between the community
and the railroad or railroads may continue those restrictions for a
period of up to three years from [the date of publication of the final
rule] in order to provide time for the community to plan for, and
implement supplementary safety measures at the affected crossings.
(b) If a quiet zone has not been created pursuant to Sec. 222.33 by
[two years after date of publication of the final rule], a community
with a pre-existing restriction on locomotive horns as of October 9,
1996, must initiate or increase both grade crossing safety public
awareness initiatives and public highway-rail grade crossing traffic
law enforcement programs in an effort to offset the lack of
supplementary safety measures at affected crossings. The community must
document in writing the steps taken to comply with this provision. The
FRA Associate Administrator for Safety reserves the right to determine
whether the steps taken are sufficient to temporarily offset the lack
of supplementary safety measures. If such public awareness initiatives
and traffic law enforcement programs are not initiated or increased, or
if the FRA Associate Administrator for Safety determines that the steps
taken are not sufficient to temporarily offset the lack of
supplementary safety measures, locomotive horns must be sounded in
accordance with Sec. 222.21.
(c) Quiet zones which have been established by communities prior to
issuance of this NPRM and which have been determined by the FRA
Associate Administrator for Safety to be substantially in accord with
this part shall be deemed to comply with the requirements of Appendix B
of this part.

Appendix A to Part 222--Approved Supplementary Safety Measures
Community Guide

The following discussion is intended to help guide state and
local governments through the decision making process in determining
whether to designate a quiet zone under Sec. 222.33(a) or to apply
for acceptance of a quiet zone under Sec. 222.33(b). The suggested
steps and ``checklist'' items are not meant to supersede or amend
the regulatory requirements. They are included to provide a general
guide. However, use of FRA's DOT Highway-Rail Crossing Accident
Prediction Formula to determine the ``mitigation goal'' together
with the figures to be used in performing local calculations is
required. The suggested steps are as follows:
a. Define the subject corridor and the involved crossings.
Obtain the U.S. DOT/AAR Crossing Inventory Number of each crossing
within the proposed quiet zone. The corridor must be at least one-
half mile in length (805 meters) measured along the rail right-of-
way, and all highway-rail crossings within the entire length of the
quiet zone corridor must be included.
b. Ensure that current data, especially public or private
status, highway and rail traffic counts and at least five years of
collision history, is available. Current highway and rail traffic
counts must be submitted to the Federal Railroad Administration
(FRA) for inclusion in the U.S. DOT/AAR National Highway-Rail
Crossing Inventory. A record of collisions can be obtained from the
FRA (Office of Safety Analysis (RRS-22) Mail Stop 17, 1120 Vermont
Avenue, NW., Washington, DC 20590 or on the internet at http://
safetydata.fra.dot.gov/officeofsafety.
c. Determine the presence of minimum requirements. The minimum
traffic control requirement for each public highway-rail grade
crossing within a quiet zone is flashing lights, automatic gates,
and bell and a special advance warning sign (in accordance with
standards contained in the Manual on Uniform Traffic Control
Devices) on each highway approach which advises approaching highway
users that the train horn will not be sounded.
d. Account for private and pedestrian crossings. Private
highway-rail crossings do not need to be addressed by supplementary
or alternative safety measures to be included within a quiet zone.
Calculations of violation rates and collision rates should not
include such crossings. The minimum traffic control requirement for
each private highway-rail grade crossing and pedestrian at-grade
crossing within a quiet zone is a special warning sign on each
approach which

[[Page 2268]]

advises users of the crossing that the train horn will not be
sounded.
e. In order to establish a quiet zone that includes private
crossings, the jurisdiction establishing the quiet zone must notify
all land owners using the crossing that train horns will not be
routinely sounded at crossings within the quiet zone.
f. Determine which crossings can be addressed by the
engineering-based supplementary safety measures of this Appendix A.
If all crossings can be so addressed without changing any
requirements of the supplementary safety measures, the road
authorities and the railroad(s) should proceed to implement the
appropriate measures and make the applicable notifications.
g. If any of the crossings will be addressed with a non-
engineering-based supplementary safety measure from this Appendix A
(currently, only Photo Enforcement is included), a baseline
violation rate for each crossing to be so addressed must be
determined for subsequent assessment purposes:
1. In the case where train horns are routinely being sounded
within the proposed quiet zone: once baseline violation rates have
been determined, and before the quiet zone has been implemented,
Photo Enforcement should be initiated. In the calendar quarter
following initiation, a new violation rate should be determined and
compared to the baseline violation rate. If and when the new
violation rates at all crossings in the quiet zone at which Photo
Enforcement is to be used are at least 49 percent below the baseline
violation rates, and all the other crossings in the quiet zone have
been addressed with Appendix A options, the community and the
railroad may proceed with notifications and implementation of the
quiet zone. Violation rates must be monitored for the next two
calendar quarters and every other quarter thereafter. If the
violation rate is ever greater than the baseline violation rate, the
procedures for dealing with unacceptable effectiveness after
establishment of a quiet zone should be followed.
2. In the case where the routine use of train horns within the
proposed quiet zone is already prohibited: Once baseline violation
rates have been determined and all the other crossings in the quiet
zone have been addressed with other Appendix A options, the
community and the railroad may proceed with initiation of Photo
Enforcement and notification and implementation of the quiet zone.
Violation rates must be monitored for the next two calendar quarters
and every other quarter thereafter. If the violation rate is ever
greater than a value less than 49 percent below the baseline
violation rate, the procedures for dealing with unacceptable
effectiveness after establishment of a quiet zone should be
followed.
h. Where one or more crossings in the proposed quiet zone
corridor can not be addressed with a supplementary safety measure
from this Appendix A, the applicant must use the DOT Highway-Rail
Crossing Accident Prediction Formula to determine the total of
predicted accidents at all of the public crossings within the quiet
zone assuming that each crossing is equipped with lights, automatic
gates, and a bell. If a ban is not in effect, this total becomes the
``mitigation goal'' for the corridor, i.e., the predicted accident
total which the community's proposal must show will not be exceeded
once the quiet zone is implemented. The mitigation goal must be
multiplied by 1.62 (communities subject to FRA's Emergency Order No.
#15 (EO15) should multiply by 3.125) to establish the `expected
accident total without horns,' i.e., the expected accident total
once horns are banned if no supplementary safety measures are
applied. If a ban is in effect, this total is the expected accident
total without horns. The mitigation goal is realized by multiplying
this total by .62 (communities subject to EO15 should multiply by
.32).
i. The accident prediction for any crossing(s) to be closed
prior to implementation of the quiet zone should be subtracted from
the ``expected accident total without horns.'' The highway traffic
counts for crossings to be closed must be added to the traffic
counts of the crossings which will be used by the displaced vehicles
and the accident prediction for these impacted crossings must be
recalculated and multiplied by 1.62 (3.125 for communities subject
to EO15) to establish a new ``expected accident total without
horns.''
j. For each crossing to be addressed, the effectiveness of the
supplementary safety measure to be applied, as set forth above,
should be multiplied times that crossing's accident prediction and
the product should be subtracted from the ``expected accident total
without horns.'' For the non-engineering-based measures, an
effectiveness of .38 may be assumed until analysis of the specific
crossing and applied mitigation measure has been assessed.
k. Once it can be shown that the ``expected accident total
without horns'' will be reduced to or below the mitigation goal, the
quiet zone proposal may be submitted for approval to FRA's Associate
Administrator for Safety.

Approved Supplementary Safety Measures

1. Temporary Closure of a Public Highway-Rail Grade Crossing

Close the crossing to highway and pedestrian traffic during
whistle-ban periods.

Required

a. The closure system must completely block highway and
pedestrian traffic from entering the crossing.
b. The crossing must be closed during the same hours every day.
c. The crossing may only be closed during one period each 24-
hours.
d. Daily activation and deactivation of the system is the
responsibility of the traffic control authority or governmental
authority responsible for maintenance of the street or highway
crossing the railroad. The entity may provide for third party
activation and deactivation; however, the governmental entity shall
remain fully responsible for compliance with the requirements of
this part.
e. The system must be tamper and vandal resistant to the same
extent as other traffic control devices.

Recommended

Manual on Uniform Traffic Control Devices (MUTCD) standards
should be met for any barricades and signs used in the closure of
the facility. Signs for alternate highway traffic routes should be
erected in accordance with MUTCD and state and local standards and
should inform pedestrians and motorists that the streets are closed,
the period for which they are closed, and that alternate routes must
be used.

2. Four-Quadrant Gate System

Install gates at a crossing sufficient to fully block highway
traffic from entering the crossing when the gates are lowered,
including at least one gate for each direction of traffic on each
approach.

Required

a. When a train is approaching, all highway approach and exit
lanes on both sides of the highway-rail crossing must be spanned by
gates, thus denying to the highway user the option of circumventing
the conventional approach lane gates by switching into the opposing
(oncoming) traffic lane in order to enter the crossing and cross the
tracks.
b. Gates must be activated by use of constant warning time
devices.
c. The gap between the ends of the entrance and exit gates (on
the same side of the railroad tracks) when both are in the fully
lowered, or down, position must be less than two feet if no median
is present. If the highway approach is equipped with a median or a
channelization device between the approach and exit lanes, the
lowered gates must reach to within one foot of the median or
channelization device, measured horizontally across the road from
the end of the lowered gate to the median or channelization device
or to a point over the edge of the median or channelization device.
The gate and the median top or channelization device do not have to
be at the same elevation.
d. ``Break-away'' channelization devices must be frequently
monitored to replace broken elements.
e. Signs must be posted alerting motorists to the fact that the
train horn does not sound.

Recommendations for new installations only

f. Gate timing should be established by a qualified traffic
engineer based on site specific determinations. Such determination
should consider the need for and timing of a delay in the descent of
the exit gates (following descent of the conventional entrance
gates). Factors to be considered may include available storage space
between the gates that is outside the fouling limits of the track(s)
and the possibility that traffic flows may be interrupted as a
result of nearby intersections.
g. When operating in the failure (fail-safe) mode, exit gates
should remain in the raised, or up, position.
h. A determination should be made as to whether it is necessary
to provide vehicle presence detectors (VPDs) to open or keep open
the exit gates until all vehicles are clear of the crossing. VPD
should be installed on one or both sides of the crossing and/or in
the surface between the rails closest to the

[[Page 2269]]

field. Among the factors that should be considered are the presence
of intersecting roadways near the crossing, the priority that the
traffic crossing the railroad is given at such intersections, the
types of traffic control devices at those intersections, and the
presence and timing of traffic signal preemption.
i. Highway approaches on one or both sides of the highway-rail
crossing may be provided with medians or channelization devices
between the opposing lanes. Medians should be defined by a barrier
curb or mountable curb, or by reflectorized channelization devices,
or by both.
j. Remote monitoring of the status of these crossing systems is
preferable. This is especially important in those areas in which
qualified railroad signal department personnel are not readily
available.

3. Gates With Medians or Channelization Devices

Install medians or channelization devices on both highway
approaches to a public highway-rail grade crossing denying to the
highway user the option of circumventing the approach lane gates by
switching into the opposing (oncoming) traffic lane in order to
drive around lowered gates to cross the tracks.

Required

a. Opposing traffic lanes on both highway approaches to the
crossing must be separated by either: (1) Medians bounded by barrier
curbs, or (2) medians bounded by mountable curbs if equipped with
channelization devices.
b. Medians must extend at least 100 feet, or if there is an
intersection within 100 feet of the gate, the median must extent at
least 60 feet from the gate.
c. Intersections within 60 feet of the crossing must be closed
or moved.
d. Crossing warning system must be equipped with constant
warning time devices.
e. The gap between the lowered gate and the barrier curb or
channelization device must be one foot or less, measured
horizontally across the road from the end of the lowered gate to the
barrier curb or channelization device or to a point over the curb
edge or channelization device. The gate and the curb top or
channelization device do not have to be at the same elevation.
f. ``Break-away'' channelization devices must be frequently
monitored to replace broken elements.
g. Signs must be posted alerting motorists to the fact that the
train horn does not sound.

4. One Way Street With Gate(s)

Gate(s) must be installed such that all approaching highway
lanes to the public highway-rail grade crossing are completely
blocked.

Required

a. Gate arms on the approach side of the crossing should extend
across the road to within one foot of the far edge of the pavement.
If a gate is used on each side of the road, the gap between the ends
of the gates when both are in the lowered, or down, position should
be no more than two feet.
b. If only one gate is used, the edge of the road opposite the
gate mechanism must be configured with a barrier curb extending at
least 100 feet.
c. Crossing warning system must be equipped with constant
warning time devices.
d. Signs must be posted alerting motorists to the fact that the
train horn does not sound.

5. Photo Enforcement

The alternative entails automated means of gathering valid
photographic or video evidence of traffic law violations together
with follow-through by law enforcement and the judiciary.

Required

a. State law authorizing use of photographic or video evidence
both to bring charges and sustain the burden of proof that a
violation of traffic laws concerning public highway-rail grade
crossings has occurred, accompanied by commitment of administrative,
law enforcement and judicial officers to enforce the law.
b. Sanction includes sufficient minimum fine (e.g., $100 for a
first offense) to deter violations.
c. Means to reliably detect violations (e.g., loop detectors,
video imaging technology).
d. Photographic or video equipment deployed to capture images
sufficient to document the violation (including the face of the
driver, if required to charge or convict under state law).

Note to 5.d.: This does not require that each crossing be
continually monitored. The objective of this option is deterrence,
which may be accomplished by moving photo/video equipment among
several crossing locations, as long as the motorist perceives the
strong possibility that a violation will lead to sanctions. Each
location must appear identical to the motorist, whether or not
surveillance equipment is actually placed there at the particular
time. Surveillance equipment should be in place and operating at
each crossing at least 25 percent of each calendar quarter.

e. Appropriate integration, testing and maintenance of the
system to provide evidence supporting enforcement.
f. Semi-annual analysis verifying that the last quarter's
violation rates remain at or below the acceptable levels established
prior to initiation of photo enforcement.
g. Signs must be posted alerting motorists to the fact that the
train horn does not sound.
h. Public awareness efforts designed to reinforce photo
enforcement and alert motorists to the absence of train horns.

Appendix B to Part 222--Alternative Safety Measures

a. Please refer to the section entitled ``Community guide'' at
the beginning of Appendix A of this part for a discussion intended
to help guide state and local governments through the decision
making process in determining whether to designate a quiet zone
under Sec. 222.33(a) (implementing supplementary safety measures) or
to apply for acceptance of a quiet zone under Sec. 222.33(b)
(implementing alternative safety measures or a combination of
alternative and supplementary safety measures).
b. A state or local government seeking acceptance of a quiet
zone under Sec. 222.33(b) may include in its proposal alternative
safety measures listed in this appendix. Credit may be proposed for
closing of public highway-rail grade crossings provided the baseline
risk at other crossings is appropriately adjusted by increasing
traffic counts at neighboring crossings as input data to the
prediction formula (except to the extent that nearby grade
separations are expected to carry that traffic).
c. The following alternative safety measures may be proposed to
be employed in the same manner as stated in Appendix A of this part.
Unlike application of the supplementary safety measures in Appendix
A of this part, if there are unique circumstances pertaining to a
specific crossing or number of crossings, the specific requirements
associated with a particular supplementary safety measure may be
adjusted or revised. In addition, as provided for in Sec. 222.33(b),
using the alternative safety measures contained in this Appendix B
will enable a locality to tailor the use and application of various
supplementary safety measures to a specific set of circumstances.
Thus, a locality may institute alternative or supplementary measures
on a number of crossings within a quiet zone but due to specific
circumstances a crossing or a number of crossings may be omitted
from the list of crossings to receive those safety measures. FRA
will review the proposed plan, and will approve the proposal if it
finds that the predicted collision rate applied to the quiet zone as
a whole, is reduced to the required level.
d. The following alternative safety measures may be included in
a proposal for acceptance by FRA for creation of a quiet zone.
Approved supplementary safety measures which are listed in Appendix
A of this part may be used for purposes of alternative supplementary
safety measures. The requirements for the first five measures listed
below are found in Appendix A of this part. If one or more of the
requirements associated with that supplementary safety measure as
listed in Appendix A of this part is revised or deleted, data or
analysis supporting the revision or deletion must be provided to FRA
for review.

1. Temporary Closure of a Public Highway-Rail Grade Crossing

Close the crossing to highway and pedestrian traffic during
whistle-ban periods.

2. Four-Quadrant Gate System

Install sufficient gates at a public highway-rail grade crossing
to fully block highway traffic from entering the crossing when the
gates are lowered, including at least one gate per each direction of
traffic on each approach.

3. Gates With Medians or Channelization Devices

Install medians or channelization devices on both highway
approaches to a public highway-rail grade crossing which prevent
highway traffic from driving around lowered gates.

[[Page 2270]]

4. One-Way Street With Gate(s)

Gate(s) are installed such that all approaching highway lanes to
a public highway-rail grade crossing are completely blocked.

5. Photo Enforcement

Automated means of gathering valid photographic evidence of
traffic law violations at a public highway-rail grade crossing
together with follow-through by law enforcement and judicial
personnel.
The following alternatives may be proposed for inclusion in a
proposed program of alternative safety measures within specific
quiet zone proposals:

16. Programmed Enforcement

Community and law enforcement officials commit to a systematic
and measurable crossing monitoring and traffic law enforcement
program at the public highway-rail grade crossing, alone or in
combination with the Public Education and Awareness option.

Required

a. Subject to audit, a statistically valid baseline violation
rate must be established through automated or systematic manual
monitoring or sampling at the subject crossing(s). See Appendix A of
this part (Photo Enforcement) for treatment of effectiveness with or
without prior whistle ban.
b. A law enforcement effort must be defined, established and
continued along with continual or regular monitoring.
c. Following implementation of the quiet zone, results of
monitoring for not less than two full calendar quarters must show
that the violation rate has been reduced sufficiently to compensate
for the lack of train horns, (i.e., a reduction of at least 49
percent), and the railroad shall be notified (to resume sounding of
the train horn if results are not acceptable.
d. Subsequent semi-annual sampling must indicate that this
reduction is being sustained. If the reduction is not sustained, the
state or municipality may continue the quiet zone for a maximum of
one calendar quarter and shall increase the frequency of sampling to
verify improved effectiveness. If, in the second calendar quarter
following the quarter for which results were not acceptable, the
rate is not acceptable, the quiet zone shall be terminated until
requalified and accepted by FRA.
e. Signs alerting motorists to the fact that the train horn does
not sound.

7. Public Education and Awareness

Conduct, alone or in combination with programmed law
enforcement, a program of public education and awareness directed at
motor vehicle drivers, pedestrians and residents near the railroad
to emphasize the risks associated with public highway-rail grade
crossings and applicable requirements of state and local traffic
laws at those crossings.

Requirements

a. Subject to audit, a statistically valid baseline violation
rate must be established through automated or systematic manual
monitoring or sampling at the subject crossing(s). See Appendix A of
this part (Photo Enforcement) for treatment of effectiveness with or
without prior whistle ban.
b. A sustainable public education and awareness program must be
defined, established and continued concurrent with continued
monitoring. This program shall be provided and supported primarily
through local resources.
c. Following implementation of the quiet zone, results of
monitoring for not less than two full calendar quarters must show
that the violation rate has been reduced sufficiently to compensate
for the lack of train horns (i.e., a reduction of at least 49
percent with statistical confidence of .95). The railroad (with a
copy of such notification sent to FRA's Associate Administrator for
Safety) shall be notified to resume sounding of the train horn if
results are not acceptable.
d. Subsequent semi-annual sampling must indicate that this
reduction is being sustained. If the reduction is not sustained, the
state or municipality may continue the quiet zone for a maximum of
one calendar quarter and shall increase the frequency of sampling to
verify improved effectiveness. If, in the second calendar quarter
following the quarter for which results were not acceptable, the
rate is not acceptable, the quiet zone shall be terminated until
requalified and accepted by FRA.
e. Signs alerting motorists to the fact that the train horn does
not sound.

Appendix C to Part 222--Conditions Not Requiring Additional Safety
Measures

No negative safety consequences result from establishment of a
quiet zone under the following conditions:
1. Train speed does not exceed 15 miles per hour;
2. Train travels between traffic lanes of a public street or on
an essentially parallel course within 30 feet of the street;
3. Signs are posted at every grade crossing indicating that
locomotive horns do not sound;
4. Unless the railroad is actually situated on the surface of
the public street, traffic on all crossing streets is controlled by
STOP signs or traffic lights which are interconnected with automatic
crossing warning devices; and
5. The locomotive bell will ring when approaching and traveling
through the crossing.

PART 229--[AMENDED]

2. The authority citation for part 229 continues to read as
follows:

Authority: 49 U.S.C. 20103, 20107, 20701-20703, and 49 CFR 1.49.

3. Section 229.129 is revised to read as follows:

Sec. 229.129 Audible warning device.

(a) Each lead locomotive shall be provided with an audible warning
device that produces a minimum sound level of 96dB(A) and a maximum
sound level of [Option 1--104 dB(A); Option 2--111 dB(A)] at 100 feet
forward of the locomotive in its direction of travel. The sound level
of the device as measured 100 feet from the locomotive to the right and
left of the center of the locomotive shall not exceed the permissible
value measured at 100 feet forward of the locomotive. The device shall
be arranged so that it can be conveniently operated from the engineer's
normal position in the cab.
(b) Measurement of the sound level shall be made using a sound
level meter conforming, at a minimum, to the requirements of ANSI
S1.4-1971, Type 2, and set to an A-weighted slow response. While the
locomotive is on level tangent track, the microphone shall be
positioned 4 feet above the ground at the center line of the track,
and shall be oriented with respect to the sound source in accordance
with the manufacturer's recommendations. Measurements verifying
compliance shall be taken only while the ambient temperature is in
the range between 36 and 95 degrees Fahrenheit and the relative
humidity is in the range between 20 and 90 percent. The test site
shall be free of reflective structures (including buildings, natural
barriers, and other rolling stock) within a 200 foot radius of the
horn system.

Issued in Washington, D.C. on December 16, 1999.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 00-4 Filed 1-12-00; 8:45 am]
BILLING CODE 4910-06-P