[Federal Register Volume 67, Number 12 (Thursday, January 17, 2002)]
[Notices]
[Pages 2505-2507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1254]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2001-11109]


Temporary Cessation of Sounding of Locomotive Horn--Yakima, 
Washington

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

ACTION: Notice of Interim Final Order and Request for Comments.

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SUMMARY: FRA is issuing an Interim Final Order in which The Burlington 
Northern and Santa Fe Railway Company (BNSF) is ordered to temporarily 
cease the sounding of locomotive horns at specific crossings within the 
City of Yakima, Washington. As provided by statute, the Secretary of 
Transportation, and by delegation, the Federal Railroad Administrator, 
in order to promote the quiet of communities affected by rail 
operations and the development of innovative safety measures at 
highway-rail crossings, may, in connection with demonstration of 
proposed new supplementary safety measures, order a railroad to 
temporarily cease the sounding of locomotive horns at such crossings.

DATES: Written comments must be received by February 19, 2002. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay.

ADDRESSES: Written comments concerning these proceedings should 
identify the appropriate docket number (e.g. Docket No. FRA-2001-11109) 
and must be submitted to the Docket Clerk, DOT Docket Management System 
(DMS), Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. 
All written communications concerning these proceedings are available 
for examination during regular business hours (9am--5 pm) at DOT 
Central Docket Management Facility, Room PL-401 (Plaza Level), 400 
Seventh Street, SW., Washington, DC 20590. You may submit comments 
online through the DMS Web site at http://dmses.dot.gov/submit. All 
documents in the public docket are also available for inspection and 
downloading at the DMS Web site at http://dms.dot.gov. Internet users 
may also reach the Office of the Federal Register's home page at http://www.nara.gov.fedreg and the Government Printing Office's Web page at 
http://www.access.gpo.gov/nara.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Staff Director, Highway Rail 
Crossing and Trespasser Programs, Office of Safety, FRA, 1120 Vermont 
Avenue, NW., Washington, DC 20590 (telephone: 202-493-6285); or Mark 
Tessler, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., 
Washington, DC 20590 (telephone 202-493-6061 (e-mail address: 
[email protected]).

SUPPLEMENTARY INFORMATION:   

Background

    Section 20153 of Title 49 of the United States Code authorizes the 
Secretary of Transportation (and by delegation of the Secretary of 
Transportation, the Federal Railroad Administrator) to prescribe 
regulations requiring that locomotive horns be sounded while each train 
is approaching and entering upon each public highway-rail grade 
crossing. The statute also permits the Secretary to exempt from the 
requirement to sound the locomotive horn any category of rail 
operations or categories of highway-rail grade crossings for which 
supplementary safety measures fully compensate for the absence of the 
warning provided by the horn. Section 20153(e)(1) states that:

    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.

    FRA has been requested by representatives of the City of Yakima, 
Washington, to order the BNSF to temporarily cease the sounding of 
locomotive horns at five highway-rail grade crossings in the city in 
order to demonstrate new and innovative engineering solutions to 
prevent motorists from entering onto highway-rail grade crossings 
equipped with fully

[[Page 2506]]

functioning gated grade crossing warning devices. The crossings which 
are the subject of this Order are located at I Street (DOT Inventory 
No. 098492F), D Street (DOT Inventory No. 099162D), Lincoln Avenue (DOT 
Inventory No. 099163K), B Street (DOT Inventory No. 099164S), and 
Yakima Avenue (DOT Inventory No. 099165Y). FRA is prepared to order 
cessation of routine sounding of locomotive horns at the specified 
public highway grade crossings.
    In order to institute this demonstration project as soon as 
possible, FRA is issuing this order on an interim basis. Upon 
compliance with the provisions contained in the Interim Final Order 
published today, BNSF will be required to cease sounding of the 
locomotive horn at the crossings under the terms of the order. FRA will 
revise the order, rescind it, or issue a final order without change, 
depending on information contained in any comments received.
    FRA has evaluated the proposed actions in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA action, as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and the DOT Order 5610.1c (Procedures for Considering Environmental 
Impacts). It has been determined that the proposed actions will have a 
beneficial impact on the environment by the cessation of the sounding 
of locomotive horns.
    This action has been evaluated in accordance with existing 
regulatory policies and procedures and is considered to be non-
significant under DOT policies and procedures (44 FR 11304). This 
action will not have an impact on a substantial number of small 
entities.

Federalism Implications

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. Inasmuch as implementation 
of this order is, by its own terms, dependent on the request of the 
City of Yakima that such order be issued, and the purpose of the order 
is to enable effectuation of a quiet zone demonstration project 
proposed by the community and supported by the Washington Utilities and 
Transportation Commission, all appropriate prior consultation with 
state and local officials has taken place.

Public Participation

    Interested parties are invited to participate in this proceeding by 
submitting to the Docket Clerk at the address listed above written 
data, views, or comments. FRA does not anticipate scheduling a public 
hearing in connection with these proceedings since the facts do not 
appear to warrant a hearing. If any interested party desires an 
opportunity for oral comment, they should notify the Docket Clerk, in 
writing, before the end of the comment period and specify the basis for 
their request.

Interim Final Order

    Based on the above, FRA issues the following order:

U.S. Department of Transportation, Federal Railroad Administration, 
Interim Final Order To Temporarily Cease Sounding of Locomotive 
Horns

    I find that:
    1. The City of Yakima, Washington, (City) in conjunction with The 
Burlington Northern and Santa Fe Railway Company (BNSF), and in 
consultation with the Federal Railroad Administration (FRA), has 
instituted a demonstration of new and innovative engineering solutions 
to prevent motorists from entering the public highway-rail grade 
crossings at I Street (DOT Inventory No. 098492F), D Street (DOT 
Inventory No. 099162D), Lincoln Avenue (DOT Inventory No. 099163K), B 
Street (DOT Inventory No. 099164S), and Yakima Avenue (DOT Inventory 
No. 099165Y) (collectively ``crossings'').
    2. As part of the demonstration, and preliminary to the temporary 
cessation of the sounding of locomotive horns at the crossing, the City 
has tested median barriers to prevent motorists from entering public 
highway-rail grade crossings when warning gates and lights are 
activated. The tested median barrier consists of an 18-inch wide, one-
foot high, raised concrete barrier placed along the centerline of the 
roadway and consisting of various lengths. Reflective, flexible, three-
inch diameter tubular shaped cones are mounted on top of the barrier, 
spaced five feet apart. This study will provide information on the 
effectiveness of medians in relationship to both heavy commercial motor 
vehicles and heavy motor vehicle traffic and the maintenance issues 
that may arise from these types of traffic.
    3. The demonstration project has been designed with three distinct 
phases. ``Phase 1'' entails studying driver behavior at three of the 
crossings without medians for four months. ``Phase 2'' of the project, 
lasting four months, includes studying driver behavior at those 
crossings with medians installed but with locomotive horns routinely 
sounded. Driver behavior was compared with the results of the first 
phase in order to determine the effectiveness of the supplementary 
safety devices. ``Phase 3'' of the project includes studying driver 
behavior at the crossings with medians installed and routine sounding 
of locomotive horns prohibited. As an integral part of this 
demonstration data has been gathered during Phases 1 and 2 concerning 
base line safety risk and the impact on risk of installing these 
proposed new supplementary safety measures. Data concerning responses 
to the automated warning system by motor vehicle drivers was gathered 
by means of video monitoring of driver behavior. FRA will gather 
further data to determine the long-term effect on motorist behavior of 
the new engineering improvements at these crossings combined with 
cessation of routine use of locomotive horns.
    4. All engineering improvements comprising the demonstration have 
been tested and evaluated and are deemed necessary in lieu of the 
locomotive horn.
    5. City officials have expressed a strong interest in establishing 
quiet zones at these crossings, which are placed within a segment of 
railroad exceeding one-half mile in length, making establishment of a 
quiet zone clearly practicable.
    6. Issuance of this order will assist the FRA in gathering 
information and data useful to development of innovative supplementary 
safety devices.
    7. At the request of the City and the FRA, the BNSF has fully 
cooperated in the exploration of options for safety improvements at the 
crossings but considers that the company is not able to unilaterally 
cease use of the train horn at the crossings, absent issuance of this 
order.
    Accordingly, pursuant to 49 U.S.C. 20153(e)(1), and in order to 
promote the quiet of the City, and to promote the development of 
innovative safety measures at highway-rail crossings, I hereby order 
the BNSF, to cease the routine sounding of locomotive horns on 
approaches to and at the above crossings beginning on such date as the 
City may determine, subject to the following conditions:
    (a) Once every crossing configuration, including all signage, 
median design, and delineator design and spacing, is approved by 
necessary state and local governmental entities, and every crossing is 
so configured, the City, through an authorized officer, shall inform 
BNSF in writing that the routine

[[Page 2507]]

sounding of the locomotive horn shall cease pursuant to the terms of 
this order and shall serve such notice on the BNSF with a copy sent to 
the Associate Administrator for Safety, FRA, at least 14 days prior to 
the date on which cessation is planned;
    (b) All highway-rail grade crossing warning devices installed at 
the crossing shall operate properly and in accordance with the 
provisions of 49 CFR part 234. In the event of a warning system 
malfunction as defined in 49 CFR 234.5, an engineer operating a train 
through the crossing is not responsible for sounding the locomotive 
horn until he or she has been informed of the warning system 
malfunction; and
    (c) Advance warning signs, as approved by the Washington Utilities 
and Transportation Commissioner and in conformance with the Manual on 
Uniform Traffic Control Devices issued by the Federal Highway 
Administration, shall be posted and maintained by the City advising 
motorists that locomotive horns will not be sounded.
    Unless rescinded by the FRA Associate Administrator for Safety at 
an earlier date, this order is in effect until the effective date of a 
final rule issued pursuant to 49 U.S.C. 20153, provided that the 
Associate Administrator for Safety determines that data developed 
during the initial demonstration period confirms the effectiveness of 
the subject engineering improvements and periodic monitoring continues 
to confirm this effectiveness.
    Nothing in this order is intended to prohibit 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. This order does not require that such warnings be provided nor 
does it impose a legal duty to sound the locomotive horn in such 
situations.
    Nothing in this order excuses compliance with sections 214.339, 
234.105, 234.106, and 234.107 of title 49, Code of Federal Regulations, 
concerning use of the locomotive horn under circumstances therein 
described. Nothing in this order is intended to prohibit an engineer 
from sounding the locomotive horn or whistle to provide necessary 
communication with other trains and train crew members if other means 
of communication are unavailable.
    Any violation of this order shall subject the person committing the 
violation to a civil penalty of up to $22,000. 49 U.S.C. 21301. FRA, 
may through the Attorney General, also seek injunctive relief to 
enforce this order. 49 U.S.C. 20112.

    Issued in Washington, DC on January 10, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-1254 Filed 1-16-02; 8:45 am]
BILLING CODE 4910-06-P