[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]



[[Page 2229]]



Part II





Department of Transportation





_______________________________________________________________________



Federal Railroad Administration



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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  

[[Page 2230]]



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.

-----------------------------------------------------------------------

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

[[Page 2231]]

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