[Federal Register Volume 68, Number 243 (Thursday, December 18, 2003)]
[Rules and Regulations]
[Pages 70586-70687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30606]



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 222 and 229



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

  Federal Register / Vol. 68, No. 243 / Thursday, December 18, 2003 / 
Rules and Regulations  

[[Page 70586]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 222 and 229

[Docket No. FRA-1999-6439, Notice No. 8]
RIN 2130-AA71


Use of Locomotive Horns at Highway-Rail Grade Crossings

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

ACTION: Interim final rule.

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SUMMARY: FRA is issuing rules to require that a locomotive horn be 
sounded while a train is approaching and entering a public highway-rail 
crossing. The 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 safety measures fully compensate for the absence of 
the warning provided by the horn. This rule is required by law.

DATES: The effective date is December 18, 2004.
    Written Comments: Comments must be received by February 17, 2004. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.
    Public Hearing: FRA intends to hold a public hearing in Washington, 
DC to allow interested parties the opportunity for oral comment on 
issues addressed in the interim final rule. The date and specific 
location of the hearing will be set forth in a forthcoming notice that 
will be published in the Federal Register and posted on FRA's Web site 
(http://www.fra.dot.gov).

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FRA-1999-6439 by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, S.W., Washington, DC between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays.
    [sbull] Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket name and docket number or Regulatory Identification Number (RIN) 
for this rulemaking. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://dms.dot.gov, including any personal information provided. 
Please see the Privacy Act heading under Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

1. Background
2. Who is at Risk in a Grade Crossing Collision
3. FRA'S Study of Florida's Whistle Ban
4. FRA'S Nationwide Study of Whistle Bans
5. Statutory Mandate
6. Issuance of Interim Final Rule
7. Effective Date of This Rule
8. Rule Summary
9. Overview of the Interim Final Rule; Principles, Strategies and 
Major Outcomes
    A. Usefulness of the Train Horn
    B. Incompatibility of Horn Noise with Community Needs
    C. Crafting Exceptions to the Use of the Train Horn
    D. Alternatives Considered
    E. Implementing the Interim Final Rule
    F. Existing Bans and New Quiet Zones
    G. Requirements for the Train Horn and its Use
    H. Post-NPRM Ban Impact Studies
10. Funding
11. Liability
12. Wayside Horn
13. Horn Sound Level and Directionality
14. Chicago Regional Issues
    A. Introduction
    B. Legislative and Administrative Actions in Illinois
    C. Actual Practice Sounding Train Horns in the Chicago Region
    D. Current Chicago Region Whistle Ban Status
    E. Community Reaction to the Proposed Rule
    F. Methodology/inventory Data
    G. ``Chicago Anomaly''
    A. Safety Trend Lines
    I. Accident-free and Low Risk Jurisdictions
    J. Impracticality
    K. Costs
    L. Time for Implementation
15. E.O. 15 Status
16. Section-by-Section Analysis
17. Regulatory Impact
    A. Executive Order 12866 and Dot Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Compliance with the Unfunded Mandates Reform Act of 1995
    G. Energy Impact
18. Privacy Act Statement
19. List of Subjects

1. Background

    On January 13, 2000, FRA published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register (65 FR 2230) addressing the use of 
locomotive horns at public highway-rail grade crossings. This 
rulemaking was mandated by Public Law 103-440, which added section 
20153 to title 49 of the United States Code. The statute requires the 
Secretary of Transportation (whose authority in this area has been 
delegated to the Federal Railroad Administrator (49 CFR 1.49), to issue 
regulations to require the use of locomotive horns at public grade 
crossings, but gives the agency the authority to make reasonable 
exceptions.
    In accordance with the Administrative Procedure Act (5 U.S.C. 553), 
FRA solicited written comments from the public. By the close of the 
public comment period on May 26, 2000, almost 3,000 comments had been 
filed with the agency regarding this rule and its associated Draft 
Environmental Impact Statement. As is FRA's practice, FRA held the 
public docket open for late filed comments and considered them to the 
extent possible.
    Because the NPRM was the subject of substantial and wide-ranging 
public interest, FRA took unprecedented steps to ensure that the views 
of the affected public would be heard and considered in development of 
this interim final rule. FRA conducted a series of public hearings 
throughout the United States in which local citizens, local and State 
officials, and members of the U.S. House of Representatives and Senate 
testified. Twelve hearings were held (Washington, DC; Fort Lauderdale, 
Florida; Pendleton, Oregon; San Bernadino, California; Chicago, 
Illinois (four hearings in the greater Chicago

[[Page 70587]]

area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; and 
Madison, Wisconsin) at which more than 350 people testified. The extent 
of public comment and testimony throughout the country is evidence of 
the wide-ranging public interest in this rulemaking.
    Because the vast majority of people reading this document will not 
have the benefit of having the NPRM at hand, a portion of the 
``Background'' section which appeared in the proposed rule is being 
repeated here (with updated data, where appropriate) in order to 
provide the necessary perspective in which to view Congress' mandate 
and the resulting rule.
    Approximately 4,000 times per year, a train and a highway vehicle 
collide at one of this country's 251,000 public and private highway-
rail grade crossings. Of those crossings, more than 153,000 are public 
at-grade crossings--those crossings in which a public road crosses 
railroad tracks at grade. During the years 1997 through 2001, there 
were 17,601 grade crossing collisions in the United States. These 
collisions are one of the greatest causes of death associated with 
railroading, resulting in more than 400 deaths each year. For example, 
in the 1997-2001 period, 2,140 people died in these collisions. Another 
6,615 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 forty times more likely to result in a fatality. 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 the potential for 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.

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

    Many people, including a number of commenters to the NPRM, have 
expressed the view 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 agrees that drivers who unlawfully enter grade crossings should be 
punished in accordance with appropriate traffic laws. However, strong 
public policy reasons argue in favor of reasonable measures to protect 
all who are put at risk at grade crossings, even drivers who disregard 
warning devices.
    Overlooked in this debate are the many innocent victims of crossing 
collisions, including 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. A number of locomotive engineers have 
commented that they or their colleagues have had to deal with the 
trauma associated with helplessly watching people being killed beneath 
their trains. Two hundred railroad passengers were also injured and two 
died. In Bourbonnais, Illinois, in 1999, eleven 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 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 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.

3. 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. section 351.03(4)(a) (1984). 
After enactment of this Florida law, many local jurisdictions passed 
whistle ban ordinances.

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    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 were 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 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. Daytime collision rates were not increasing at the very 
same crossings that had whistle bans at night. If population was a 
factor, then the daytime 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 nighttime 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.

4. 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

[[Page 70589]]

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.\1\ The study also did not include crossings on 
small, short line railroads, and certain regional 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.
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    \1\ The FEC crossings comprised virtually all of the whistle ban 
crossings in Florida. For simplicity, FRA elected to remove all 
Florida crossings from the national study. Since it became apparent 
from this initial national review that the FEC experience 
represented the high end of ban impacts, and since those impacts had 
been mitigated by E.O. 15 with respect to the later study period, 
FRA continued to remove both Florida ban crossings and Florida train 
horn crossings from all subsequent studies. Florida public crossings 
represent 2.6 percent of public crossings, so this omission should 
not materially affect the national analysis.
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    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 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 
and the resulting casualties are shown in Table 2 (casualty figures in 
this table exclude casualties to railroad employees). It is interesting 
to note that the mean train speed (train speed is positively correlated 
with fatalities) varies by type of collision. Of the injuries and 
fatalities shown in Table 2, 11 injuries and 5 deaths occurred when the 
vehicle was hit by a second train.

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

    The driver was killed in the collision in 42 instances (5.3 percent 
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 percent). 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 percent) at whistle-ban crossings the driver was moving over the 
crossing. Additionally, in almost every collision (97 percent), 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 percent 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.
    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.
    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 resuming use of the 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

[[Page 70590]]

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 Supplemental Safety Measures (SSMs) 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 train horn docket. 
Another result of the outreach effort was the identification by 
communities and State and local governmental agencies of 664 additional 
crossings that were purportedly 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.
    Prior to issuing the NPRM, FRA updated its analysis of safety at 
whistle ban crossings, expanding it to include data for all the Chicago 
Region crossings as well as for a few other newly identified locations.
    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 only, such as 
``crossbucks'' or other signs). By separating crossings according to 
the different categories of warning devices installed, FRA was better 
able to identify the level at which locomotive horns increase safety at 
crossings with different types of warning devices 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. 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, closer 
than the motorist sitting at least a car hood length or more back from 
the edge. 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 were 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. For purposes of the NPRM, FRA used 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 determined that 62 percent was appropriate because it 
represents the elevated risk associated with crossings with automatic 
gates and flashing lights, which is the only category of crossings that 
will be eligible under this rule for new ``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 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 Region 
where collisions appeared from available data to be 16 percent less 
frequent. This will be discussed in greater detail below.
    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 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 
judgment 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 
suggested 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 was 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 roadways with relatively low traffic 
levels. FRA

[[Page 70591]]

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, and 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 
indicated that the smallest increase in collision frequency is 
associated with whistle bans at passive crossings, logic suggested 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.

5. Statutory Mandate

    After reviewing FRA's Florida study, Congress addressed the issue. 
On November 2, 1994, Congress passed Public Law 103-440 (``Act'') which 
added Sec.  20153 to title 49 of the United States Code. (Subsections 
(I) and (j) were added on October 9, 1996 when Sec.  20153 was amended 
by Public Law 104-264.) The Act requires the use of locomotive horns at 
public grade crossings, but gives FRA the authority to make reasonable 
exceptions. Section 20153 of title 49 of the United States Code states 
as follows:
    ``Section 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'' (SSM) 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 an SSM. The following do not, 
individually or in combination, constitute SSMs 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, SSMs fully 
compensate for the 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 SSMs 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 SSMs, 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 SSMs 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.

[[Page 70592]]

    ``(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 SSMs, 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.''

6. Issuance of Interim Final Rule

    FRA is issuing today's rule as an interim final rule, rather than 
as a final rule. An interim final rule has the same force and effect as 
a final rule, but differs from a final rule in one principal way--when 
an interim final rule is issued, comments are solicited and the agency 
reserves the right to make changes to the rule in response to the 
comments received. Because the rule issued today is a logical outgrowth 
of the NPRM, FRA could have issued it as a final rule. Both the NPRM 
and interim final rule issued today permit exceptions to the use of the 
locomotive horn, address the need to mitigate the risk associated with 
lack of the locomotive horn, provide for implementation of SSMs and 
ASMs, and address mitigation of risk on a corridor-wide, rather than 
individual grade crossing basis. Like one major provision of the NPRM, 
the interim final rule bases the determination of a corridor's risk 
mitigation goal on FRA's Accident Prediction Formula (APF). However, 
the interim final rule adds a level of further sophistication to the 
formula by considering collision severity and permitting quiet zones in 
part based on a corridor's relationship to a national crossing risk 
index derived from this severity-weighted APF. A large number of 
commenters complained that FRA did not sufficiently take into 
consideration safety history at the crossing. While the APF does take 
into consideration such past record, the interim final rule builds on 
the NPRM and resulting comments by placing more weight on the safety 
record at crossings within a corridor and permitting exceptions based 
on that safety record. The result--that some quiet zones may be 
established without the need to implement SSMs or ASMs if the corridor 
does not pose a significant risk based on a national standard--flows 
logically from the NPRM's use of the APF and the commenters' clear 
request to make the entire rule more risk based.
    Even though this rule could be issued as a final rule, FRA has 
determined that the public should have an opportunity to comment on the 
rule as changed. Because the language in some sections has been 
revised, FRA, and the final rule, will benefit from the input of the 
public; FRA has found in the past that public comments often contain 
suggestions that can improve a regulatory document. Therefore, comments 
are being solicited on all aspects of this rule [see ``Public 
Participation'' section]. FRA will review the comments and reserves the 
right to make revisions when issuing a final rule.

7. Effective Date of This Rule

    Because this interim final rule has all the legal attributes of a 
final rule, the effective date of this rule will be December 18, 2004. 
Congress specifically provided for this one year delay; subsection (j) 
of Sec.  20153, which was added to the basic rulemaking mandate in 
1996, provides that any regulations issued under that section shall not 
take effect before the 365th day following the date of publication of 
the final rule. Issuing this interim final rule rather than a final 
rule will not penalize those communities which have waited a number of 
years for issuance of a rule permitting the creation of quiet zones. 
They will still be able to establish quiet zones on the same schedule 
as if a final rule were issued today. Alternatively, issuance of this 
rule in the form of an interim final rule will not have a significant 
negative effect on those communities with present whistle bans. FRA has 
specifically included in the rule sufficient time for those communities 
to conform to any changes that may be made to the interim final rule in 
order to enable them to retain their whistle-free crossings.
    However, we don't believe Congress intended that FRA delay 
administrative actions such as working with public authorities and 
reviewing applications for quiet zones in order to permit communities 
to institute quiet zones at the earliest possible date after the one 
year required delay has elapsed. Accordingly, FRA will accept quiet 
zone applications from public authorities during the one year delay 
period. While this interval should enable public authorities to begin 
planning, they should also be aware that the final rule may contain 
changes based on comments to this interim final rule. Because of this 
uncertainty, FRA will make every effort to issue a final rule 
expeditiously after the close of the comment period.

8. Rule Summary

    The following very brief summary of this interim final rule is 
provided for the reader's convenience. Because this is merely a 
summary, it should not be relied on for definitive information 
regarding compliance with this rule.
    [sbull] This rule applies to all railroads that operate on the 
general railroad system of transportation. The rule does not apply to 
freight railroads and tourist and scenic railroads which are not on the 
general railroad system. It does not apply to rapid transit systems in 
urban areas that are not connected to the general railroad system of 
transportation. Rapid transit operations sharing tracks with general 
system railroads at crossings, or sharing crossings with general system 
railroads are connected to the general system at the crossings and are 
thus subject to part 222; however, rapid transit operations are not 
subject to the horn volume requirements of part 229.
    [sbull] Locomotive horns must be sounded while approaching and 
entering upon each public highway-rail grade crossing. The horn sound 
level must be a minimum of 96 dB(A) and no louder than 110 dB(A) 
measured 100 feet in front of the locomotive and 15 feet above the 
rail. All locomotives must sound the horn in the standard sequence of 
two longs, one short, and one long starting at least 15 seconds, but no 
more than 20 seconds before reaching the grade crossing, however, in no 
case may the horn be sounded more than \1/4\ mile before the crossing.
    [sbull] A railroad may, with certain exceptions, decide to not 
sound the

[[Page 70593]]

locomotive horn at a crossing if the locomotive speed is 15 miles per 
hour or less and train crew members or equipped flaggers flag the 
crossing to provide warning of the approaching train to motorists.
    [sbull] A quiet zone is at least \1/2\ mile in length, although 
Pre-Rule Quiet Zones may continue unchanged. Except for certain 
exceptions listed in the rule, each public crossing within a New Quiet 
Zone must at a minimum be equipped with flashing lights, gates, and 
signs warning of the absence of locomotive horns. Each public crossing 
within a Pre-Rule Quiet Zones may retain, but must not downgrade the 
warning systems in place.
    [sbull] This rule does not cover horn use at private crossings 
outside of quiet zones. Their use will continue to be governed by State 
and local laws and private agreements. However, if a private crossing 
is within a quiet zone, horn use is restricted at that crossing.
    [sbull] The rule provides for two types of quiet zones--Pre-Rule 
Quiet Zones (consecutive crossings where horns were silenced by State 
or local law or by formal or informal agreement, and which were in 
existence as of October 9, 1996 and on December 18, 2003, and New Quiet 
Zones (quiet zones established under the terms of this rule and which 
do not qualify as Pre-Rule Quiet Zones).
    [sbull] A quiet zone may be established using SSMs, or in certain 
cases, ASMs, in two ways: (a) By designation by a public authority 
(which is the public entity responsible for safety and maintenance of 
the roadway crossing the railroad tracks at a public highway-rail grade 
crossing); or (b) by application to FRA.
    [sbull] A quiet zone may be designated if (a) supplementary safety 
measures are applied to every public grade crossing within the quiet 
zone; (b) the Quiet Zone Risk Index is at, or below, the Nationwide 
Significant Risk Threshold; or (c) supplementary safety measurers are 
instituted which reduce the Quiet Zone Risk Index to a level at, or 
below, the Nationwide Significant Risk Threshold, or to the risk level 
which would exist if locomotive horns sounded at all crossings within 
the quiet zone. The public authority has discretion as to how the Quiet 
Zone Risk Index is reduced, and may choose the type of SSM to be 
applied and the crossings at which they are to be applied in complying 
with either (a), (b), or (c).
    [sbull] If a public authority, for whatever reason, cannot comply 
with the requirements of quiet zone designation, it may apply to FRA 
for approval to establish a quiet zone using a combination of SSMs, or 
ASMs (which includes modified SSMs). As in quiet zone designation, the 
public authority has discretion as to which SSMs or ASMS to apply and 
where they are to be applied. However, in this case, the public 
authority's proposal is reviewed by FRA. If FRA determines that the 
safety improvements will compensate for the absence of the locomotive 
horn or that the safety improvements will reduce risk to a level at, or 
below the Nationwide Significant Risk Threshold, a quiet zone may be 
established.
    [sbull] A Pre-Rule Quiet Zone will be considered approved and may 
remain in effect if the quiet zone could qualify for quiet zone 
designation if it were a New Quiet Zone based on having a Quiet Zone 
Risk Index at, or below, the Nationwide Significant Risk Threshold or 
if there haven't been any relevant collisions at the public crossings 
within the quiet zone for the past 5 years and the Quiet Zone Risk 
Index was less than twice the Nationwide Significant Risk Threshold.
    [sbull] If a Pre-Rule Quiet Zone cannot comply with the 
requirements for a quiet zone designation as discussed above, the 
existing horn restrictions may continue on an interim basis. The 
restrictions may continue for five years if within, three years after 
publication of this rule, the public authority files with FRA a 
detailed plan for maintaining the Pre-Rule Quiet Zone (or establishing 
a New Quiet Zone). Horn restrictions may continue for an additional 
three years beyond the five-year period if the appropriate State agency 
provides FRA with a comprehensive statewide implementation plan and 
physical improvements are made within the quiet zone, or in a quiet 
zone elsewhere within the State, within three years and four years 
after publication respectively.
    [sbull] FRA will annually review every quiet zone established by 
comparing the Quiet Zone Risk Index to the Nationwide Significant Risk 
Threshold. If the Quiet Zone Risk Index as last calculated by FRA is 
at, or above, twice the Nationwide Significant Risk Threshold, or if 
the Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold, but is lower than twice the Nationwide Significant Risk 
Threshold and a relevant collision occurred at a crossing within the 
quiet zone within the preceding five calendar years, the quiet zone 
will terminate six months after the date of receipt of notification 
from FRA of the Nationwide Significant Risk Threshold level, unless the 
public authority files plans to implement SSMs or ASMs within six 
months and implements such SSMs or ASMs within three years.
    [sbull] Wayside horns may be installed within a quiet zone if the 
public authority determines that it is appropriate to do so. Wayside 
horns may also be used outside of quiet zones in lieu of locomotive 
horns at crossings equipped with automatic flashing lights and gates. 
(Wayside horns have not yet been classified by FHWA as traffic control 
devices. If FHWA does classify them as traffic control devices, the 
wayside horn must also be approved in the Manual on Uniform Traffic 
Control Devices (MUTCD) or FHWA must approve experimentations pursuant 
to section 1A.10 of the MUTCD.)

9. Overview of the Interim Final Rule: Principles, Strategies, and 
Major Outcomes

A. Usefulness of the Train Horn

    This rulemaking was mandated by law, but its impetus derives from a 
clearly defined safety need. A majority of the States and all railroads 
have mandated use of the train horn to provide an audible warning at 
highway-rail crossings. FRA research and analysis, both prior to 
institution of this rulemaking and during its pendency, has confirmed 
the beneficial safety impact of the train horn. The National 
Transportation Safety Board (NTSB) has also supported the need for this 
warning to motorists.
    FRA understands the point made by commenters that the horn cannot 
be relied on to prevent every accident, and the data confirm that. 
Nevertheless, the horn is one cue that is often available to the 
motorist at the decision point; and it should not be withheld absent 
serious thought about the consequences. There are some circumstances 
(e.g., restricted view) in which the train horn may be the best, and 
most convincing, warning to the motorist. Each year a good portion of 
the accidents at crossings occur when motorists are not convinced by 
even flashing warning lights and downed gates, and they drive around 
the gates and are struck by the train they neither saw nor heard. The 
train horn, which announces that there is, in fact, a train coming now 
(not switching cars down the track somewhere out of danger) may often 
be the most effective warning.
    FRA understands the sense of frustration among law-abiding citizens 
who feel that they should not be burdened by train horn noise (or the 
cost of alternatives) because other citizens violate traffic laws at 
highway-rail crossings equipped with flashing lights and gates. FRA is 
a strong proponent of law enforcement at

[[Page 70594]]

highway-rail crossings. However, the statute clearly contemplates that 
motorists will be given the additional, often final warning that the 
train horn provides (or that other safety measures will be instituted), 
even where warning systems employing flashing lights and gates are 
present. Further, as a matter of policy, FRA believes that it is 
appropriate to protect even the unwise from the consequences of their 
misdeeds where those consequences are especially severe--and where 
society as a whole may bear the burden of those consequences.
    As noted elsewhere in this preamble, victims of collisions at 
highway-rail crossings are not limited to reckless or intoxicated 
drivers. Indeed, in many cases victims are innocent passengers who have 
had no control whatsoever over the driver's behavior.
    Even though collisions at highway-rail crossings are far more 
severe in their consequences than the average highway accident, most 
victims survive. Many incur substantial medical bills and require 
extended rehabilitation. Costs are borne by the general public through 
health and disability insurance arrangements, and through higher costs 
of goods and services provided by employers who must extend sick leave 
and other benefits. In this regard, many costs associated with 
casualties that occur in whistle ban jurisdictions are in effect hidden 
taxes on persons outside those communities over which these costs are 
spread. From an economic standpoint, the community enjoys its quiet 
and, unless measures have been taken to compensate for the silencing of 
the horn, someone else pays for most of it.
    Finally, there can be victims on the trains and in the general 
community, as well. Collisions between trucks and heavy trains can 
cause the injury or even death of train crew members. Some collisions 
at crossings cause trains to derail (the risk is significant when a 
heavy truck is involved), and cars containing hazardous materials are 
found in a high percentage of trains. Release of hazardous materials in 
a community can result in evacuations, property damage and even injury 
or death. When the collision involves a passenger train, the potential 
exists for harm to passengers, as well as crew members. Commenters were 
correct in noting that such events are rare, but the potential for 
catastrophic event is real; and an important role for safety regulation 
is to anticipate and mitigate these sorts of risks.
    In summary, we all have a stake in preventing collisions at 
highway-rail crossings; and there is no practical way to transfer all 
costs to the driver who fails to obey the law, even if that were a 
desirable thing.
    In general, these principles appear to be accepted outside of 
whistle ban jurisdictions. Train horns continue to sound today at over 
98 percent of public highway-rail crossings, and over 9 million 
Americans living and working along rail lines are incidentally exposed 
to the ``noise'' from this source. Most communities and residents 
appear to tolerate these interruptions reasonably well.

B. Incompatibility of Horn Noise With Community Needs

    However, two general trends appear to have converged in a manner 
that is antithetical to community acceptance of train horn noise under 
certain conditions. First, as a Nation we are becoming more sensitive 
to disruptive sources of noise in our environment. This reflects 
success in building quieter communities and in engineering noise out of 
daily life (through zoning, building codes, better design of motor 
vehicles, etc.). Second, as a result of the consolidation of the 
national rail system since the 1970s, rail traffic has been 
concentrated on fewer lines, resulting in more train movements through 
those communities where main lines continue to be operated. 
Particularly when the train horn is sounded, the number of train 
movements is clearly a significant factor in the ``noise load'' 
imparted to the community.
    For various reasons, there has been a growth in the number of 
ordinances and arrangements under which train horns are silenced 
(``whistle bans''). Further, in many communities where State law 
currently does not permit whistle bans, relief from the noise 
associated with train horns is being actively sought by residents and 
their elected representatives. Fear of losing existing bans, and the 
desire to silence train horns in some areas without existing bans, have 
combined to create significant public interest in this proceeding.
    The situation of existing whistle ban communities is particularly 
vexing, because public and private planning decisions have been made 
with the assumption that horns will be banned. Commenters in the 
Chicago Region \2\ also called attention to the conflict between sound 
urban planning, which promotes construction of high density housing 
near a commuter railroad stations, and very frequent use of the train 
horn on the extremely active rail lines in that region.
---------------------------------------------------------------------------

    \2\ The Chicago area, or Chicago Region, is comprised of 6 
counties: Cook, DuPage, Lake, Kane, McHenry, and Will.
---------------------------------------------------------------------------

    Unfortunately, there is no known strategy for providing audible 
warning to motorists without also spreading unwanted noise into 
communities. (The wayside horn can reduce the amount of unwanted noise, 
but not eliminate it entirely.) Future research may permit refinement 
of the multi-frequency pattern of contemporary train horns, but FRA has 
no present information that suggests a means of providing a clearly 
identifiable and urgent signal in a motor vehicle using a sound that is 
pleasing to nearby residents.

C. Crafting Exceptions to Use of the Train Horn

    The statute provides direction for adjusting the competing 
interests of safety and community quiet. Although the statute says 
unequivocally, ``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,'' most of the language of the statute has the effect of 
explaining how exceptions might be crafted. The statute continues:
    (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, SSMs fully 
compensate for the absence of the warning provided by the locomotive 
horn.
    The last of these exceptions--substitution of supplementary (or 
alternative) safety measures--was at the heart of the NPRM and remains 
the best means of reconciling safety and community quiet. As explained 
below, this interim final rule seeks to make the list of other safety 
measures as flexible and cost effective as possible.
    The second exception, which refers to a determination of 
impracticability, is a criterion of limited application. It is 
impractical to provide effective warning by sounding the horn if it is 
necessary to back a mile-long train over a crossing (so the crossing 
needs to be flagged), and it is impractical to provide a warning of 
suitable duration prior to the train's arrival in the case of a 110 mph 
passenger train (so active warning

[[Page 70595]]

devices and a ``sealed corridor'' strategy are strongly recommended, 
whether or not the horn is used). But in most other scenarios, the 
train horn will serve its purpose if sounded. Some commenters invited 
FRA to consider the cost of SSMs as a test of impracticability, but 
that is really a policy or political objection, not one going to the 
practicability of sounding the train horn and thereby alerting the 
motorist. FRA believes that the suggested reading of ``impractical'' is 
not appropriate and would result in an enormous increase in safety risk 
by permitting train horns to be banned routinely without the need to 
take compensating measures.
    The first exception, absence of ``significant risk with respect to 
loss of life or serious personal injury,'' was relied upon in the NPRM 
only with respect to very limited circumstances (but comments were 
solicited regarding other options). As a result of testimony and 
written comments received from the public, including elected and 
appointed representatives of State and local governments, FRA has 
reviewed in some detail whether this criterion should be given greater 
effect in the final rule. The statute clearly does not require the 
exclusion of all risk, and FRA agrees that it is best to interpret and 
implement this exception, if possible, in a manner that is not in 
conflict with the general approach taken by the Congress and the 
Department of Transportation (DOT) with respect to other safety laws 
and regulations addressing public safety.
    In general, DOT and other Executive Branch departments and agencies 
must consider costs and benefits before issuing regulations. This is 
true even where statutes have mandated that rules on particular topics 
be issued, because in most cases the Congress has left the means of 
implementation to the agencies. The present rulemaking involves a much 
more specific mandate than typically embodied in safety legislation. 
Nevertheless, FRA did consider costs and benefits in crafting the 
proposed rule (and found that, overall, investments in safety systems 
used as a substitute for the horn would be recovered). However, in the 
NPRM, FRA did not focus sharply on the costs and benefits for those 
communities where the underlying risk of a casualty-producing collision 
is comparatively low. Some commenters in areas with existing bans 
responded with the criticism to the effect that, while some other 
community might recover its costs, for the particular community the 
existing risk at crossings is very low and no expenditure is warranted.
    In this interim final rule FRA has sought to afford greater 
recognition to situations where the risk of serious injury is low. In 
so doing, FRA has been conscious of the need to ensure public funds are 
expended on improvements that have significant value in holding down 
casualty risk. FRA has also been conscious of the fact that there may 
be, at least in the short term, an ``opportunity cost'' associated with 
the decision to spend scarce tax dollars on SSMs in order to maintain 
community quiet, rather than other uses. (In acknowledging this point, 
FRA notes that this is not a zero sum exercise because the avoidance of 
accident consequences is an economic benefit to the community.)
    FRA recognizes that there is no way to achieve what would be 
perceived as perfect justice for communities in this proceeding, any 
more than it is possible to eliminate all risk to persons. However, FRA 
has concluded that the risk assessment method selected for this 
proceeding should--
    [sbull] Permit exceptions to use of the train horn based on absence 
of significant risk, in most cases avoiding expenditures that would not 
be recovered through accident and casualty reduction;
    [sbull] Require use of the train horn where risk is clearly 
significant, unless SSMs and ASMs are implemented to abate the excess 
risk associated with silencing the train horn; and
    [sbull] Respond to changes in rail operations and communities as 
data becomes available to update the relevant computations.
    The particular means chosen by FRA to identify significant risk is 
the creation of a risk index by which prospective quiet zones can be 
rated in relation to one another and in relation to selected criteria. 
The method (which is more fully explained below) is applicable to quiet 
zones created both where there are existing bans and elsewhere. In 
considering how to approach this problem, FRA elected to start with the 
current Accident Prediction Formula (APF), which uses data elements 
available from the national inventory of highway-rail crossings and the 
FRA Railroad Accident-Incident Reporting System. The APF was developed 
by the Volpe National Transportation Systems Center for FRA and the 
Federal Highway Administration, and it is maintained in current form to 
support initial identification of crossings that are candidates for 
safety improvements using Federal funds. Many States use this formula 
or similar formulas to rank crossings for this purpose.
    The strength of the formula is in its ability to combine 
empirically-derived insights about risk, based on common 
characteristics of crossings and the accident history of the individual 
crossings under study. As such, it is reasonably successful in 
predicting where accidents will occur. As with any model of this type 
designed to study relatively rare events, the model is more successful 
in predicting results for a group of crossings with at least some 
similar characteristics (e.g., several crossings in a proposed quiet 
zone) than for a single crossing.
    Risk is defined as the product of probability (frequency) and 
severity (consequences), so the APF prediction of the likely number of 
accidents by itself is not enough. However, the suite of APF tools 
includes calculations that permit estimations of the likelihood that a 
predicted accident will result in injury or death to one or more 
persons. FRA has taken advantage of these tools to estimate the likely 
frequency of relevant (casualty-producing) collisions. To determine the 
likely number of injuries and fatalities in predicted accidents, FRA 
has employed the averages from historical accidents. In order to 
combine the consequences of non-fatal and fatal injury, FRA has used 
relational values derived from cost-benefit practice (in which the 
avoidance of a fatality is assigned a societal value based on 
established government guidelines, and both less serious and more 
serious non-fatal casualties are then assigned a value proportional to 
the value of avoiding a fatality). The result is a risk index value for 
each crossing.
    From the inception of this rulemaking (indeed, beginning with the 
issuance of Emergency Order 15 in 1991), FRA has sought to address the 
issue of quiet zones (contiguous rail corridors of reasonable length 
having one or more crossings) rather than individual crossings. FRA has 
noted that a crossing-by-crossing approach would not serve community 
interests, given the distance over which the horn must be sounded and 
given the proximity of crossings in most communities. Corridor planning 
permits risk reduction to be taken at the lowest possible cost, and it 
encourages consolidation of crossings through closure of redundant or 
very hazardous crossings. Further, locomotive engineers have 
increasingly demanding jobs and should not be distracted by the task of 
picking out individual crossings along their route where the horn must 
or must not be used. There were no comments in this proceeding that 
effectively questioned this rationale, and there was substantial 
support for it.

[[Page 70596]]

    As a result, FRA has adhered to the corridor approach in this 
interim final rule, so use of the risk index is specified to be at the 
corridor (quiet zone) level. The basic logic of the method is as 
follows:
    [sbull] Estimate the probability of injuries or fatalities at each 
crossing using the APF formulas;
    [sbull] Aggregate the risk from all crossings in the proposed quiet 
zone; and
    [sbull] Divide the risk by the number of crossings,
    [sbull] Yielding a risk estimate for the proposed quiet zone.
    This approach must be adjusted if the proposed quiet zone was not 
subject to an historical whistle ban, since the effect of silencing the 
train horn would be to drive up risk. As more fully explained below, 
with limited exceptions the adjustments necessarily rely on national 
averages of train horn effectiveness.
    This risk index approach permits an objective comparison of the 
situations in various communities, taking into account the actual 
accident experience to date. FRA is aware that there are limitations to 
the method. For instance, (i) the APF does not take into consideration 
every possible factor relevant to risk, (ii) data driving the 
predictions are largely from the great majority of crossings where the 
horn is used, (iii) a significant component of risk inherent in the 
formula outputs is not as relevant to evaluation of train horn risk 
(i.e., pedestrian casualties), and (iv) adjustments to the index based 
on excess risk associated with silencing the horn will understate risk 
in some cases and overstate risk in other cases. However, FRA is not 
aware of a more useful methodology for evaluating comparative risks at 
grade crossings, and none of the limitations appears to substantially 
vitiate its value for this purpose.
    In examining options for this interim final rule, FRA applied this 
methodology to known whistle ban crossings, grouping them by railroad 
and political jurisdiction pairs, with some segmentation to recognize 
that more than one rail line was present or that operational 
characteristics of the railroad changed markedly (e.g., at a junction). 
As reported in more detail below, the results show that there are 
material differences in corridor risk among the existing ``whistle ban 
jurisdictions'' (on an average per-crossing basis).
    FRA then performed the same calculation for all train horn 
crossings in the nation that are equipped with flashing lights and 
gates and derived an average for those crossings, which is referred to 
in this rule as the Nationwide Significant Risk Threshold. This measure 
provides a statistical tipping point by which crossings nationwide can 
be compared to determine the significance of the risk present. FRA's 
rationale for selecting this threshold as a basis of comparison was 
that if certain proposed quiet zones pose less risk (even when adjusted 
for the absence of the train horn) than the average corridor where the 
train horn is sounded, then the risk of not sounding the train horn in 
those locations might reasonably be characterized as insignificant.
    During the public comment cycle, FRA also heard repeatedly from 
existing whistle ban communities where, it was reported, there had been 
no accidents for many years (or none likely attributable to the absence 
of an audible warning). FRA recognized that, since highway-rail 
crossing accidents are rare events, the absence of accidents within a 
period of a few years might say little about underlying risk. At the 
same time, FRA was aware that some communities have made a real effort 
to stress law enforcement and public awareness; and it seemed desirable 
to provide some additional flexibility to communities that have not 
experienced a recent accident of the kind relevant to the circumstances 
addressed in this rulemaking. So FRA posited that it should be 
reasonable to subject accident-free existing whistle ban jurisdictions 
to a test that might be a multiple of the Nationwide Significant Risk 
Threshold (NSRT). A multiple of two was selected for analysis.
    In order to determine the implications of this methodology, 
including the two proposed thresholds, FRA applied the risk index 
method to existing whistle ban jurisdictions (WBJs) retrospectively. 
Employing accident data for 1990 through 1994 and grade crossing 
inventory information as of January 1, 1995, FRA categorized these WBJs 
by Crossing Corridor Risk Indices (CCRI) relative to the two 
thresholds: (1) CCRI less than NSRT, (2) CCRI greater than the NSRT 
with relevant collisions between 1990 and 1994, (3) CCRI between the 
product of one and two times the NSRT and no relevant collisions 
between 1990 and 1994, (4) CCRI greater than the product of two times 
the NSRT and no relevant collisions between 1990 and 1994. FRA posited 
that jurisdictions above the relevant thresholds (i.e., those above the 
Nationwide Significant Risk Threshold with relevant collisions in the 
preceding five years, or with no relevant collisions but above twice 
the Nationwide Significant Risk Threshold) would be required to make 
investments to abate risk, while those below would not. To simulate the 
safety impacts of this approach, FRA analyzed the effect based on an 
artificial rule issuance date of January 1, 1995, with an effective 
date of January 1, 1996. FRA then analyzed actual collision history for 
the crossings in each category for the period 1996 through 2000.
    The results (reported in detail below and on the FRA Web site) were 
then compared with the Nationwide Significant Risk Threshold and a 
value equal to two times the Nationwide Significant Risk Threshold 
(2xNSRT) (determined as of January 1, 1996) to evaluate the 
distribution of potential quiet zones derived from existing bans. FRA 
posited that jurisdictions above the relevant thresholds (i.e., those 
above the Nationwide Significant Risk Threshold with relevant 
collisions in the preceding five years, or with no relevant collisions 
but above twice the Nationwide Significant Risk Threshold) would be 
required to make investments in SSMs or ASMs in order to abate excess 
risk, while those below the thresholds would not.
    The analysis effectively validated the risk assessment method, 
demonstrating that for the subject period it would have focused public 
resources on whistle ban corridors where the investments would have 
been well spent (with resulting reductions in injuries and fatalities). 
It showed that in the five-year period that would have followed 
implementation of the rule, as of January 1, 1996, 69 percent of the 
casualties resulting from the relevant collisions that occurred at 
whistle ban crossings would have occurred in quiet zones that initially 
would have had to make safety improvements to retain the whistle bans 
(see table below). Those safety improvements would have substantially 
mitigated the casualties at those crossings.
    By the end of the five-year period, the communities where 24 
collisions resulting in 16 casualties occurred would have had to 
implement safety measures to reduce their corridor crossing risk 
indexes to permissible levels in order to retain their whistle bans. By 
the end of this five-year period, only 32 percent of the relevant 
collisions and 21 percent of the casualties would have occurred in 
communities that would not have had to implement safety measures.
    Injuries resulting from collisions involving trains traveling at 
speeds of 25 mph or less are on average moderate compared to the 
critical nature of injuries that tend to result when train speeds are 
higher. By the end of the

[[Page 70597]]

five-year period, only seven percent of the more severe casualties 
would have occurred in communities that would not have had to implement 
safety measures.
    The following table presents the distribution of crossings, 
collisions, and resulting casualties. The first data column presents 
the number of crossings that would have fallen into each quiet zone 
category on January 1, 1995. The second data column presents the number 
of relevant collisions (those that FRA believes could have been 
prevented by sounding the train horn) that occurred in the five-year 
period that would have followed implementation of the rule. The next 
two columns present the resulting casualties (fatalities and injuries 
combined).
    As is more fully developed below, the CCRI refers to the Crossing 
Corridor Risk Index (the average risk for crossings in a potential 
quiet zone) and the NSRT refers to the Nationwide Significant Risk 
Threshold (which is the average risk at gated train horn crossings).

----------------------------------------------------------------------------------------------------------------
                                                   January 1995      January 1, 1996 through December 31, 2000
                                                 ---------------------------------------------------------------
                                                                                                    Casualties
                                                                                                     excluding
                                                   Crossings in      Relevant       Casualties    injuries where
                                                       WBJs         collisions                       max train
                                                                                                  speed < 25 mph
----------------------------------------------------------------------------------------------------------------
CCRI  NSRT with relevant collisions..             865             208             109              94
                                                           (36%)           (59%)           (64%)           (78%)
CCRI  2 * NSRT (no collisions 2000-                72              10               8               8
 2005)..........................................            (3%)            (3%)            (5%)            (7%)
CCRI Between NSRT & 2 * NSRT (no collisions 2000-            236              24              16              10
 2005)..........................................           (10%)            (7%)            (9%)            (8%)
CCRI < NSRT.....................................           1,242             113              36               9
                                                           (51%)           (32%)           (21%)            (7%)
                                                 ----------------=================
 
----------------------------------------------------------------------------------------------------------------

    Therefore, FRA concluded that use of a methodology that compares 
the known risk in a current or prospective quiet zone to the average 
risk level at crossings across the nation where train horns are sounded 
(the Nationwide Significant Risk Threshold) provides a very rational 
basis for determining where silencing the train horn presents a 
significant risk. Moreover, FRA concluded that considering an existing 
whistle ban's actual accident history in that methodology (by making 
greater allowances for accident-free jurisdictions) provides an even 
better approximation of risk than does simple reliance on comparing the 
quiet zone's projected risk level with the Nationwide Significant Risk 
Threshold.
    Subsequent to completion of this validation effort, FRA determined 
that a number of the crossings previously identified as being in ``no 
whistle'' status in the Chicago Region should, in fact, be removed from 
that list based on elections (largely by freight railroads) to sound 
the horn. FRA has not repeated this analysis with the smaller data set 
because (1) its purpose was to determine the usefulness of the method 
to sort corridors with greater risk from those with lesser risk and (2) 
whether train horns are sounded at the crossings in question is not 
critical to the analysis (particularly since the counter measures 
involved are equally useful at both categories of crossings).

D. Alternatives Considered

    FRA considered several other alternatives in determining how to 
craft exceptions to train horn use. In reviewing the comments on the 
NPRM and Draft Environmental Impact Statement, FRA identified five 
additional alternatives for determining where train horns must sound. 
All of these alternatives involve the same basic environmental effects 
and benefits of this interim final rule: wherever the train horn 
sounds, the noise impacts and safety benefits will be the same; 
wherever the train horn is silenced, the benefits in terms of noise 
reduction will be the same and the same safety risks will be presented 
unless compensated by the addition of gates and lights, SSMs, or ASMs. 
Upon examination, FRA concluded that these alternatives are not 
reasonable options given the agency's purpose and need for the action 
and dismissed them from further consideration. These alternatives are 
described below.
No Exceptions
    This alternative would implement the non-discretionary command of 
the statute by requiring trains horns to be sounded at all public 
highway-rail grade crossings. This would be what the statute would 
require if FRA were unable to devise a workable means of providing for 
quiet zones that satisfies the statute. FRA would set a maximum sound 
level for locomotive horns. Changes from the NPRM provisions related to 
the actual sounding of the horn and maximum sound levels could be 
accommodated within this option.
    Advantages: This option has the advantage of simplicity. It would 
result in a high level of safety at highway-rail crossings, and the 
costs of administration would be negligible.
    Disadvantages: This approach is not responsive to the statutory 
command to consider the interests of communities with existing train 
horn bans because FRA can devise a regulatory regime permitting 
communities to reduce noise by substituting other safety measures for 
the sounding of train horns and this option fails to address the issue. 
Aside from the statutory command, providing a means for communities to 
quiet train horns has been urged on FRA by the great majority of 
commenters and their elected representatives (including many who 
supported the proposed rule as a good means of achieving community 
quiet and safety). It is simply untenable to say that the final rule 
should provide no alternative to a high noise load for communities on 
rail lines with high train counts. Taking this course would also create 
unnecessary conflict between commuter rail service and the communities 
served, potentially compromising this important element of a balanced 
transportation system in many major metropolitan areas.
    Had this alternative not been eliminated on statutory grounds, the 
environmental effects of this alternative

[[Page 70598]]

would not require separate analysis. Analysis of the effects of the 
``no action'' alternative shows the effect of sounding train horns at 
highway-rail grade crossings across the Nation and the effects of 
permitting the continuation of existing train horn bans. This 
alternative would differ only in the elimination of the existing train 
horn bans, resulting in the known effects of sounding the train horn in 
those locations as well, including the known safety benefits flowing 
from sounding the train horn.
Make the NPRM Final
    The Notice of Proposed Rulemaking required trains horns to be 
sounded at all public grade crossings; set a maximum sound level for 
locomotive horns; and provided an opportunity for any community to 
establish a quiet zone where all public grade crossings are equipped 
with gates and lights and data and analysis show that implementation 
will reduce risk in the quiet zone to sufficiently compensate for the 
absence of the horn sounding: by implementing one or more Supplementary 
Safety Measures (SSM) at each crossing (does not require FRA approval); 
or by implementing a combination of SSMs or Alternative Safety Measures 
(ASM) at some or all crossings within a proposed quiet zone with FRA 
approval. Communities with present whistle bans would have up to three 
years in which to implement SSMs and ASMs. Crossings with track speeds 
of 15 mph or less at which people bearing flags warn motorists of the 
passage of a train would not need SSMs.
    Advantages: Pursuing this option would serve the interest of safety 
and community quiet. It would be less complex than the option selected.
    Disadvantages: FRA found this option to be unacceptable because it 
insufficiently tailored the rule's burdens according to risk and would 
be unresponsive to hundreds of commenters who strongly urged 
improvements in the rule before its adoption. Many of those commenters 
live in or represent communities where the train horn is not now 
sounded, so being unresponsive to them would arguably be unresponsive 
to the statutory direction to take into account the interest of those 
communities. FRA agrees with those commenters that the proposed rule 
offered insufficient time for implementation and would have made the 
situation particularly difficult for public authorities and railroads 
in regions where impacts would be most substantial. FRA agrees with the 
tenor of many comments that the proposed rule would have required 
compensation for loss of the train horn even where risk is very low (or 
would be projected to be low even after the horn was silenced). The 
result of maintaining that requirement would have been poor cost-
benefit tradeoffs for many communities. Staying with the literal text 
of the NPRM would also have missed opportunities for refinement of 
SSMs/ASMs and would not have captured noise reductions associated with 
the shift from distance- to time-based horn use.
    The environmental effects of the NPRM were analyzed thoroughly in 
the DEIS and taken into account by the FRA in framing the proposed 
action represented by the interim final rule, which is a logical 
outgrowth of the NPRM.
Grandfather All Whistle Bans Existing as of 10/9/96
    This alternative would allow communities that had whistle bans in 
effect on October 9, 1996 to retain those bans as long as the level of 
risk does not increase. Risk would be calculated using the APF for the 
entire whistle ban corridor. FRA would essentially be accepting the 
level of risk the community itself has determined to be acceptable--and 
would hold the community to that same level of risk. If a whistle ban 
community exceeded its risk threshold, it would have three years to 
implement changes (e.g. install SSMs) sufficient to reduce risk to 
below its risk threshold. Changes related to use of train horns, 
including the maximum sound level, could be accommodated within this 
option.
    Advantages: This approach would have avoided conflict with current 
whistle ban communities and, in theory, might have capped the negative 
safety impacts of bans. As under the proposed rule, New Quiet Zones 
would be instituted without any loss of safety.
    Disadvantages: This option was rejected for the following reasons, 
any one of which is independently sufficient: It is unresponsive to the 
purpose of the statute to the extent excess risk associated with 
existing bans would be allowed to continue unabated; it does not 
directly take into account predicted accident severity, and therefore 
does not truly consider risk (frequency times severity); the 
Administrator could not have made the statutorily required 
determination that these exceptions would not ``present a significant 
risk with respect to loss of life or serious personal injury;'' it 
would not provide a uniform level of safety across the Nation; it did 
not afford New Quiet Zones the same exceptions allowed for Pre-Rule 
Quiet Zones, thus undermining uniformity of application and requiring 
local authorities to expend funds on improvements for which the safety 
pay-back could not be reasonably assured at the system level; it would 
permit communities with bans to transfer costs to the society at large 
through insurance, public health and welfare programs, and court 
judgments; and administration of the approach is not technically 
feasible. FRA noted that factors other than silencing the train horn 
would typically be responsible for the growth in calculated risk in the 
subject communities (e.g., increase in motor vehicle traffic as a 
result of residential or commercial development in an adjoining 
jurisdiction; growth in rail traffic). It did not seem sensible to 
permit excess risk to continue, provided nothing changes in a 
community, while requiring new increments of risk in other communities 
to be addressed without regard to whether the current level of risk is 
excessive (i.e., FRA realized that this option did not address the 
right question).
    The environmental effects of this option were not analyzed further 
because this was not a reasonable option to pursue.
Grandfather All Whistle Bans Existing as of 10/9/96--Combine Collision-
Free Exemption With Severity-Weighted Single Threshold
    This very complex option was a precursor to the path taken in the 
interim final rule. It took a much different approach to Pre-Rule and 
New Quiet Zones. It would allow communities with whistle bans in effect 
on October 9, 1996 to retain those for the first 5 years following 
publication of the interim final rule. Thereafter such communities 
could retain bans as long as: there have been no collisions within the 
past 5 calendar years or risk has not increased above a pre-established 
threshold calculated using the APF for the past 5 years; and at least 
flashing lights and gates have been provided at all such crossings. The 
option included a severity element in the risk computation for the 
threshold. A corridor risk index and national threshold would be used, 
as in the interim final rule. The option provided further flexibility 
for retaining whistle bans during the transition period as follows: A 
State Department of Transportation (or other authorized state-level 
body) could request extended implementation beyond the 5-year period on 
the basis that the State is assisting local jurisdictions in 
implementing quiet zones and requires additional time due to funding 
and/or administrative constraints. The following would apply: Each 
project

[[Page 70599]]

must be the subject of a filing with FRA (i.e., the rule otherwise 
applies as revised); actual implementation of initial projects will 
begin not later than year four; consistent with efficient completion of 
required work and corridor-related safety considerations, improvements 
will be implemented at the most hazardous crossings first (where risk 
reduction opportunities are greatest) and then proceed to less 
hazardous crossings; no less than 25 percent of identified excess risk 
must be abated by the end of year five, 50 percent by the end of year 
six, 75 percent by the end of year seven, and 100 percent by the end of 
year eight; and this relief will expire eight years following 
publication of the interim final rule (seven years from the effective 
date). If a community exceeded the severity threshold in any annual 
review thereafter, actions would be taken as necessary to fall back 
below the threshold within a three-year period or the train horn would 
be required to sound; or actions sufficient to compensate for the loss 
of the train horn would have to be taken. Communities establishing New 
Quiet Zones would be required to follow the standards set forth in the 
NPRM (and would not be able to take advantage of low baseline risk, 
even after adjustment for loss of the train horn).
    Advantages: This option would take into consideration the interests 
of communities with existing bans in a manner similar to interim final 
rule, except flashing lights and gates would be required where not 
present. It would set a requirement of flashing lights and gates for 
all crossings where the train horn is silenced, enhancing safety. It 
would also avoid any negative flow of safety benefits related to 
toleration of new unabated risk in New Quiet Zones.
    Disadvantages: FRA rejected this option principally because it did 
not afford New Quiet Zones the same exceptions allowed for Pre-Rule 
Quiet Zones, thus undermining uniformity of application and requiring 
local authorities to expend funds on improvements for which the safety 
pay-back could not be reasonably assured at the system level. Further, 
FRA noted that the costs of flashing lights and gates in existing ban 
areas would be substantial, in some cases potentially resulting in loss 
of quiet zone status (with resulting disruption of settled 
expectations) due to financial inability of communities. Again, in many 
cases costs might not be fully recovered through safety benefits. FRA 
also discarded the rigid implementation schedule for Pre-Rule Quiet 
Zones on the ground it could not be effectively policed in an 
environment where local authorities would find it necessary to move to 
a large extent on their own schedules (albeit in some cases with State 
assistance). FRA also concluded that excepting Pre-Rule Quiet Zones 
from the requirement to make safety improvements solely on the basis of 
no accident history (with necessarily limited exposure) could not be 
supported as based on sound safety analysis (and opted, instead, for a 
limited exception based on both accident history and underlying 
estimated risk).
    This option was rejected as unreasonable and its environmental 
effects would be very similar to the proposed action.
Require Horns or SSMs at Highest Risk Crossings Within Each State
    This alternative would have required that train horns be sounded at 
all grade crossings except those where (1) maximum train speed is 15 
mph or less and flaggers are provided or (2) a whistle ban permitted 
under the rule is in effect. Existing whistle bans could continue 
provided high risk crossings are addressed within three years. New 
whistle bans could be created only if crossings within them were 
equipped with gates and lights. No whistle ban could include a grade 
crossing categorized as high risk, except crossings within existing 
whistle bans that are remedied within three years. High risk crossings 
are those with an APF greater than or equal to .05 (i.e., a five 
percent chance of an accident occurring at that crossing in the next 12 
months). Where train horns are now sounded, the crossing's APF would be 
increased by 44 percent to account for the absence of the train horn. 
Within one year of the rule's issuance, any community with an existing 
whistle ban would have to certify that it has reviewed FRA data on 
effectiveness of horns, whistle ban effects, and relative merits of 
SSMs and consulted with affected railroads and state officials about 
possible safety improvements. Any community imposing a new whistle ban 
must first provide the same certification. Communities with existing 
whistle bans may continue to include crossings lacking gates and lights 
unless and until the crossing has an APF of .05 or more. Once a whistle 
ban is in effect, any crossing that reaches an APF of .05 must be 
remedied within two years.
    Advantages: This option was viewed as attractive because it would 
have mandated safety improvements at very high risk crossings within a 
relatively short time and provided categorical relief for crossings 
deemed relatively low risk. It defined risk uniformly for all crossings 
and all jurisdictions. It is relatively simple. It defined significant 
risk very clearly: equal to or greater than one predicted collision 
every 20 years. It captured a high percentage of predicted casualties, 
i.e., it would have addressed a high proportion of the risk presented 
by whistle bans.
    Disadvantages: This option was rejected because: it does not 
directly take into account predicted accident severity, and therefore 
does not truly consider risk (frequency times severity); it does not 
permit sufficient flexibility to reduce risk within a quiet zone by 
dealing with crossings other than ones with the highest APF values and, 
therefore, does not adequately take into account the interest of 
communities with existing whistle bans; and it is not in harmony with 
the corridor improvement concept underlying the proposed rule. The 
statute addresses all crossings, not merely the most hazardous. The 
option focuses more on absolute risk rather than compensation for loss 
of the train horn (the focus of the law). A crossing-by-crossing 
approach to horn use would abandon the corridor approach to crossing 
safety improvements advocated by the U.S. DOT for many years (including 
eliminating the incentive for consolidation of redundant crossings), 
and it could result in very uneven results in terms of community quiet, 
depending on local implementation. The option could result in a 
patchwork of ban areas, adding to burden on locomotive engineers to 
pick out, crossing by crossing, where the horn must be sounded. This 
option could be more costly per unit of risk reduced because the 
community is required to take risk reduction at specified crossings 
rather than where means and need best correspond (e.g., foreclosing the 
option of putting in medians at two moderate-risk crossings for a total 
cost of $40,000 rather than installing four-quadrant gates at one 
higher risk crossing for an incremental cost of $75,000-$150,000, even 
though the resulting risk reduction is the same).
    This alternative was not considered reasonable. If the 
environmental effects of this option were to be considered, the noise 
impact of sounding a train horn at a crossing would be the same as it 
would be for the preferred option and the safety benefits of sounding 
the train horn or fully compensating for the absence of the train horn 
would be the same as for the preferred option.
    After considering all of these alternatives, FRA settled on the 
risk-based methodology adopted in this interim final rule. FRA believes 
this

[[Page 70600]]

methodology best embodies Congress' intent, i.e., to permit exceptions 
to the use of the train horn only where doing so demonstrably does not 
present a significant risk, or where the significant risk has been 
compensated for by other means.

E. Implementing the Interim Final Rule

    FRA is aware that this interim final rule has the disadvantage of 
some degree of complexity. Designing corridor improvements that meet 
community needs and the criteria set forth in this rule will be hard 
work. In this case, FRA has sought to provide some relief from the 
burdens perceived in the NPRM by marrying a conceptually simple notion 
(the probability that a vehicle occupant will be injured or killed) 
with a risk assessment method that is fully accessible only to those 
with some statistical skills who work hard to understand it. 
Maintaining a current inventory of affected crossings will also require 
significant attention to detail.
    In taking this course, however, FRA has also recognized its 
obligation to prepare user-friendly tools for use by local planners. 
These tools are now available for beta testing on FRA's Web site, and 
FRA has also provided the results of the preliminary calculations for 
communities with existing bans based on existing inventory data (as 
well as the assumption that the community will elect to include all 
crossings in a New Quiet Zone).
    In FRA's experience, State and local government personnel such as 
city managers and county engineers are extremely capable professionals 
who are very unlikely to be daunted by the preparations required under 
this rule. Further, FRA crossing safety managers in each of FRA's eight 
regions will be available to work with communities and ``walk them 
through'' the necessary analysis, as well as participate in diagnostic 
teams established by State and local governments to evaluate options 
for safety improvements where they are required. No community will have 
to ``go it alone,'' because FRA will provide technical assistance.
    Finally, FRA has provided a substantial extension of time for 
communities with existing whistle bans to convert their corridors into 
quiet zones without intervening disruption caused by the train horn. In 
response to the statute's direction to ``take into account the interest 
of communities'' with existing bans, the proposed rule would have 
allowed a maximum of three years from issuance for implementation, with 
the third year available to communities that had implemented some form 
of education or enforcement program. This interim final rule, by 
contrast, allows five years from its publication (four years from the 
effective date of the requirement to use the train horn) for 
implementation by individual communities. Communities had complained 
that the requirements of State and local budget cycles required more 
time for planning and securing funding. Further, it was noted that 
engineering improvements may require substantial lead time and that 
railroads may have limited staffing in relation to a compressed 
schedule for installing new warning systems in a number of communities 
on their lines. FRA agrees that an extended schedule is warranted.
    Further, FRA has recognized that some States (notably Illinois and 
Wisconsin) have large numbers of whistle bans and that some exist in 
communities of concern with respect to environmental justice. In 
situations such as this, it may be imperative for some Federal funds to 
be allocated by sources for which engineering improvements are eligible 
(e.g., the Surface Transportation Program and the National Highway 
System program). These allocations would be made by the State 
departments of transportation based on plans developed through the 
metropolitan planning organizations, a process that can require several 
years. Because of competition for uses of these funds, a State may not 
be able to allocate Federal funds for these purposes in a single fiscal 
period. Similar considerations would presumably apply to distribution 
of any funds made available from State sources. Accordingly, in order 
to create an incentive for State participation in meeting these needs 
(through allocation of Federal or State funds), FRA has allowed a full 
eight years for communities with existing whistle bans to complete 
quiet zone improvements if (i) the State steps forward with a plan to 
provide assistance, and (ii) actual improvements in at least one 
community within the State are effected before the end of the fourth 
year.
    FRA is acutely aware that this extended implementation cycle could 
be subject to abuse. Accordingly, FRA has included in the rule 
procedures to ensure that good faith progress is made toward completion 
of improvements that communities promise to undertake. Where that does 
not occur, FRA will notify the railroad to sound the train horn as the 
rule requires.

F. Existing Bans and New Quiet Zones

    FRA has endeavored to fashion a final rule that establishes as much 
parity as possible between communities with existing whistle bans and 
those that wish to establish them in the future, while recognizing 
legitimate differences. The rule puts both types of communities on the 
same footing, as follows:
    [sbull] The rule starts from the premise that after a certain time 
the train horn will sound unless an appropriate exception is satisfied, 
regardless of prior practice.
    [sbull] Both the ``haves'' and the ``have nots'' may establish 
quiet zones by implementing SSMs and ASMs sufficient to compensate for 
loss of the train horn; and both may take their risk reduction at the 
corridor level, normally without making improvements at every crossing.
    [sbull] The rule allows establishment of quiet zones even without 
SSMs and ASMs if--
    (I) In the case of an existing whistle ban corridor, risk is shown 
to be at, or below the Nationwide Significant Risk Threshold or be 
below twice that level and the corridor has had no relevant collisions 
during the preceding five years; or
    (ii) In the case of a New Quiet Zone, risk (after adjustment to 
account for silencing the train horn) is shown to be at or below the 
Nationwide Significant Risk Threshold.
    [sbull] If a community avoids expenditures related to creation of a 
quiet zone because it falls below the Nationwide Significant Risk 
Threshold and risk increases to above the threshold, the community is 
required to compensate for that increase in risk within a period of 
three years, or the railroad will be required to sound the train horn.
    [sbull] All communities are subject to the same filing and 
inventory maintenance requirements.
    Some differences in approach to existing whistle ban jurisdictions 
and New Quiet Zones have been necessary, as well. We have already said 
that existing whistle ban jurisdictions are different, as a practical 
matter, because public and private planners (e.g., zoning officials, 
citizens purchasing residences, businesses locating shops) have made 
choices in reliance on the belief that the train horns will not sound. 
The statute enjoins us to take their interests into consideration, and 
the grace periods provided under the rule (five and eight years) 
maintain community quiet well ahead of community actions that would 
otherwise warrant that result.
    The fact that existing whistle ban jurisdictions have known 
accident records under circumstances where the horn is not sounded also 
permits some additional latitude. FRA has noted significant variation 
in the outcomes where whistle bans have been enacted

[[Page 70601]]

or observed. Although some of this variation is the result of limited 
exposure to rare events, some of it likely reflects the existence of 
circumstances that are different in the communities (nighttime vs. 24-
hour bans, strong or weak law enforcement, generally good sight lines 
or poor ones, etc.). Over time, the presence or absence of such factors 
will be revealed in the accident rate. An important feature of the 
interim final rule creates an exception for existing whistle ban 
communities with no recent horn-relevant accidents but with risk levels 
that are above the Nationwide Significant Risk Threshold but below a 
value equal to two times that threshold. This exception remains until 
the community experiences a horn-relevant accident, after which it is 
judged by the same standards as other communities (with a 3-year grace 
period if it elects to adopt SSMs or ASMs).
    The issue of whether flashing lights and gates should be required 
as a baseline condition for a quiet zone has similar characteristics. 
In the NPRM, FRA specified that all crossings in any quiet zone should 
have flashing lights and gates based on the following practical 
considerations:
    [sbull] At passively signed crossings, the motorist is expected to 
``yield'' to oncoming trains. But the only warning of a train's 
approach is provided by the train itself, including the headlight and 
auxiliary alerting lights, and the train horn (if used).
    [sbull] Because of obstacles in the ``sight triangle,'' track 
curvature, angle of intersection, or adverse weather, there are some 
circumstances where only the horn may be effective in aiding the 
motorist's decision.
    [sbull] It is unfair to place a burden on the motorist to yield 
without providing the best available information to inform the 
decision.
    [sbull] Crossings equipped with flashing lights but no gates are 
similarly situated, except that the motorist is expected to stop but 
under most State laws may proceed if ``safe'' to do so. In many cases 
motorists are left with ambiguous information regarding the appropriate 
response.
    Accordingly, FRA continues to be convinced that, with respect to 
quiet zones where the train horn is silenced for the first time, 
flashing lights and gates should be provided at all public crossings. 
Motorists using such crossings will for the first time be deprived of 
auditory warnings, which would place them at significant peril if no 
additional warnings are provided.
    However, FRA recognizes that a significant number of whistle ban 
crossings exist today, particularly in the State of Wisconsin, where 
only passive signage or only flashing lights are provided. There is now 
risk data specific to those situations. Further, the statute asks us to 
give ``special consideration to the needs'' of communities where these 
crossings are located, and public and private planners have made 
decisions in reliance on the status quo. Finally, FRA will have 
achieved the principal safety objective of this rulemaking if 
significant risk to persons associated with the absence of the train 
horn has been abated.
    Accordingly, FRA has determined that it is appropriate to allow 
conversion of existing whistle ban corridors into Pre-Rule Quiet Zones 
without requiring that flashing lights and gates be provided at all 
crossings. FRA has further provided that, where the proposed Pre-Rule 
Quiet Zone exceeds the relevant risk threshold (making it necessary to 
compensate for absence of the train horn), the community may credit the 
risk reduction associated with installation of flashing lights and 
gates toward the required effort. In many cases this will not result in 
all crossings being so equipped, but it will encourage use of the most 
important single safety improvement available in the highway-rail 
crossing toolbox.

G. Requirements for the Train Horn and Its Use

    On the effective date of that portion of this rule which mandates 
use of the train horn, State laws concerning use of the train horn at 
highway-rail crossings will be preempted. This rule will also require 
the modification of railroad operating rules that are in conflict with 
it. FRA already has in place a rule that sets a minimum horn loudness 
of 96 dB(A) at 100 feet in front of the train. The method for 
conducting that test, a possible maximum level for the horn, and the 
manner in which the horn is sounded have been issues in this 
rulemaking. In approaching this complex of issues FRA has tried to 
balance several considerations, specifically--
    [sbull] The need to make it possible for motorists to be warned 
within their vehicles, with windows closed, at a point on their 
approach to the crossing where the information is useful; and
    [sbull] The need to limit dispersal of horn noise into the 
community (other than at the crossing and its approaches) to the extent 
feasible.
    Although FRA can foresee the possibility of further refinements in 
these decisions over the next few years as information becomes 
available, the comments received in this rulemaking, coupled with 
further research conducted in response to those comments, have provided 
a good foundation for resolving these issues.
    The first group of issues has to do with the horn itself. FRA had 
hoped to describe engineering characteristics of the horn that would 
mitigate the dispersal of noise into the community (in railroad 
parlance, ``to the field''). This issue has been presented primarily 
due to the relocation of horns to the center of the locomotive roof, a 
choice made by railroads to reduce crew occupational noise exposure. At 
FRA's technical conference on acoustical issues, the major railroads 
arranged a presentation by a recognized expert who described a ``shadow 
effect'' produced by the locomotive profile that results in 
misleadingly low sound level readings at the location specified in 
FRA's current test procedure. The point of calling attention to this 
was to emphasize that in terms of actual dispersal of noise the noise 
levels to the field do not, in fact, exceed those to the front (as 
might be suggested by readings taken just 100 feet directly in front of 
the locomotive at only four feet above the track). The overall lesson 
FRA was asked to take from the presentation is that while center-
mounted horns are not louder to the field than to the front, neither 
can they be made highly directional.
    A secondary lesson from this presentation and a subsequent field 
study is that, by testing the horn at roof height (which under the 
noise models actually is more proportional to the noise received at the 
crossing), it may be possible to ``turn down'' some roof mounted horns. 
As a result, FRA adopts a new test procedure in this interim final rule 
that retains the 100 foot distance but places the sound level meter 
receptor at roof height (i.e., out of the locomotive's ``shadow'').
    Another objective of this rulemaking has been to set a maximum 
sound level for the horn. The NPRM proposed consideration of two 
values--104 dB(A) (which was seen as more appropriate for actively 
signed crossings) and 111 dB(A) (which was viewed as more appropriate 
for passively signed crossings). Although FRA's general rationale was 
reasonably well received by some commenters, many others appeared 
convinced that train horns are too loud and should be significantly 
reduced in volume. FRA has continued to evaluate the issues identified 
in research referred to in the NPRM, including refined analysis using 
signal detection theory, and is persuaded that a maximum value of 110 
dB(A) should be sufficient to alert motorists in most situations,

[[Page 70602]]

including a small margin of error associated with test instrumentation 
and setup. Accordingly, the interim final rule requires that railroads 
progressively test their locomotives and reduce the air pressure (or 
alter the aperture) on all horns to produce a maximum volume of no more 
than 110 dB(A) as measured 100 feet in front of the locomotive at roof 
height. FRA expects that most freight railroads and Amtrak, whose 
locomotives operate over a variety of highway-rail crossings across the 
Nation, will set their horns near the maximum allowed to provide 
effective warning at passively signed crossings. FRA expects that 
commuter authorities which operate primarily over crossings with 
flashing lights and gates may set horns in the lower portion of the 
allowed range. This overall process, by enforcing a maximum below the 
known sound level of some center-mounted horns, may modestly reduce 
noise in some communities.
    It should be noted that FRA did not find it possible to do as the 
NTSB suggested in its comments to the docket, which was to ``select a 
sound level that will maximize safety at all highway-rail grade 
crossings.'' To reach every driver with the horn (including each driver 
with a stereo turned up to maximum volume under all conditions of 
traffic conditions, pavement surface, weather, etc.) would require a 
volume so great that the effects on communities and crew members would 
be clearly unacceptable. However, in selecting the maximum level FRA 
has taken into consideration the NTSB's findings from its study of 
passive crossings. Further, FRA has completed additional work on sound 
detectability that suggests more favorable results at actively signed 
crossings where the driver has a heightened awareness of the possible 
presence of a train and where a very high signal-to-noise value should 
not be required. Dissemination of NTSB and FRA studies should put 
railroads in a favorable posture to determine horn loudness appropriate 
to their operating conditions, achieving the lion's share of the 
potential risk reduction.\3\ Further, our heightened understanding of 
the limitations of the train horn should help clarify the need to 
implement of active warning systems where they are not already provided 
as funding becomes available.
---------------------------------------------------------------------------

    \3\ The NTSB's Passive Crossing Study has been construed by some 
as an attack on the safety value of the train horn because it cited 
examples of situations at passively signed crossings in which the 
horn's signal-to-noise ratio likely did not meet a pre-established 
criterion. Neither the NTSB's report nor its comments in this docket 
question whether the horn is effective in preventing some accidents. 
Rather, the NTSB has ventured the conclusion that certain accidents 
have occurred at passively signed crossings where the horn did not 
provide a sufficient warning given the background noise and other 
factors. FRA's position in this rulemaking is consistent with this 
conclusion.
---------------------------------------------------------------------------

    The final issue concerns the manner in which the horn is sounded. 
The actual pattern of ``two long, a short and a long'' is well 
established, and FRA finds no reason to alter it. It is necessary to 
sustain the warning provided by the horn through a period of 15 to 20 
seconds prior to arrival of the train at the crossing in order to reach 
motorists situated at various points on the roadway under varying 
angles of intersection and differing vehicle and train speeds. It is 
not possible to just give a ``toot,'' as suggested by some, and still 
provide the unmistakable and persuasive warning needed to deter risky 
motorist behavior.
    FRA did note in the NPRM, however, that the traditional practice of 
requiring that the horn be sounded approximately one-quarter mile 
before the crossing is excessive when train speeds are well under about 
45 miles per hour. Accordingly, FRA proposed that it might be possible 
to use a time-rather than distance-based criterion. Representatives of 
the Brotherhood of Locomotive Engineers (BLE) seized upon this 
suggestion in their testimony, affirming that this could be 
accomplished. Accordingly, the interim final rule requires that the 
horn must begin to be sounded between 15 and 20 seconds prior to the 
arrival of the train on the crossing and while the lead locomotive is 
moving over the crossing, but for a distance no greater than one-
quarter mile (1,320 feet). This time-based approach should reduce 
unwanted noise without compromising the usefulness of the warning 
provided. Sounding the horn over a distance greater than one-quarter 
mile would add no value, since the loss of volume associated with the 
distance involved would almost certainly prevent any effective warning. 
FRA expects that railroads will leave existing whistle boards in place 
to assist engineers in estimating where to begin sounding the horn, 
given the speed of the train approaching the particular crossing.

H. Post-NPRM Ban Impact Studies

    Following publication of the NPRM, various commenters indicated 
they had more accurate data and information regarding which crossings 
are subject to whistle bans. The Wisconsin Rail Commissioner, the Maine 
DOT, and the City of Chicago DOT provided a sufficient amount of new 
data with respect to affected crossings to warrant a revision to the 
FRA ``Updated Analysis of Train Whistle Bans'' (January 2000). Chicago 
area commenters (Hafeez and Laffey) also performed an independent study 
of the effects of whistle bans in the Chicago Region and concluded that 
whistle bans do not affect accident frequency in the Chicago Region. 
Commenters from Wisconsin indicated that there were a significant 
number of whistle ban crossings in Wisconsin that did not have active 
warning devices but had good safety records.
    FRA therefore contracted with Westat, Inc., a nationally respected 
statistical research firm. The purpose of the Westat Inc., contract was 
to: (1) Revise the 2000 FRA analysis of whistle bans to reflect the 
more accurate data received post publication of the NPRM, (2) obtain 
independent, expert review regarding FRA's methodology, and if 
necessary, recommendations as to ways to improve it; and (3) evaluate 
the points raised by representatives from the Chicago Region and the 
State of Wisconsin by performing regional studies of the effects of 
whistle bans in the two areas.
Westat--2002
    In the initial effort, Westat, Inc., utilized the same study period 
as FRA's update (1992-1996) (Zador, Paul L., April 1, 2002). The 
methodology employed was a refinement on FRA's stratified method 
comparing accident histories of crossings with similar predicted risk. 
Westat concluded that on a nationwide basis (excluding Florida), 
adverse whistle ban effects were statistically significant at levels 
well below the conventional significance level of 5 percent, regardless 
of warning device class. All three classifications of warning devices 
experienced a higher accident rate in whistle ban areas as follows 
(National data excluding Florida only and excluding Florida and the 
Chicago Region):

------------------------------------------------------------------------
                                                   Percent difference
                                               -------------------------
             Warning device class                  (with      (excluding
                                                  Chicago)     Chicago)
------------------------------------------------------------------------
Passive.......................................         52.6         64.2
Flashing Lights...............................         43.2         69.1
Gates.........................................         44.4         57.6
------------------------------------------------------------------------

    FRA had asked Westat to attempt regional analysis where the 
crossings appeared to be sufficiently numerous to permit at least some 
comparisons (i.e., Wisconsin and the Chicago Region). Data for 
Wisconsin generally indicated an increase in accident risk for each 
type of warning device with bans in place, whether the Wisconsin 
whistle ban crossings were compared with other similar Wisconsin 
crossings or with

[[Page 70603]]

similar crossings nationally. Westat found, that in Wisconsin, due to 
the relatively small sample sizes, estimates for ban effects were not 
statistically significant at the conventional 5 percent level, with one 
exception. The accident rate for passively marked whistle ban crossings 
in Wisconsin was 84 percent higher than for passively marked crossings 
nationwide (excluding Florida and the Chicago Region) where train horns 
were sounded. This result was statistically significant. However, model 
fit was determined to be poor.
    In reviewing the data for the Chicago Region, Westat found several 
unexpected results. Comparisons of Chicago train horn and ``whistle 
ban'' \4\ crossings within Chicago indicated higher accident rates at 
crossings where the train horn was used, but the data did not fit the 
model well (with the upper confidence limits for two of warning types 
well into the positive range).
---------------------------------------------------------------------------

    \4\ As noted below, this is really a misnomer. There are no 
train horn bans in the Chicago Region, only exemptions that 
railroads may utilize if they wish.
---------------------------------------------------------------------------

    When Chicago Region ``whistle ban'' crossings were compared with 
similar crossings in the Nation where train horns sound, results for 
passive and flashing lights categories again showed lower accident 
rates at ban crossings; however, estimates for the effects of no-
whistle policies were not statistically significant at the conventional 
5 percent level. The accident rate for gated whistle ban crossings in 
the Chicago Region was 34 percent higher than for gated crossings 
nationwide (excluding Florida and the Chicago Region) where train horns 
are sounded, and this result was statistically significant.
    With respect to the gated crossing estimate for Chicago, Westat 
stated that the weight of this evidence was weakened by the fact that 
the model did not fit the data well. Specifically, in the Shapiro-Wilks 
test for normality of deviance residuals, the normal hypothesis was 
rejected for gates based on comparisons with the Continental U.S., 
Florida and Chicago Region Excluded.
Westat--2003 (Final Study)
    FRA found the results of the 2002 Westat study appeared to 
reinforce inferences FRA was deriving from other information related to 
the Chicago picture that may explain the Chicago data. In particular, 
FRA had noted that significant ``discretionary selection'' had occurred 
in the Chicago Region with respect to the crossings at which ``no 
whistle'' policies would be implemented. That is, horns were being 
silenced primarily at crossings that were inherently safer than others. 
Further, FRA noted that a growing body of information supported the 
conclusion that several hundred crossings initially believed to be 
impacted by a no-whistle policy either had never been in that status or 
had not been for several years. (How this occurred is more fully 
discussed under ``Chicago Region'' below.) Accordingly, FRA 
commissioned Westat to do further work, resulting in the final study on 
the impact of train horn bans (Zador, Paul H., June 2003). The design 
for this study differed in three important respects from the earlier 
work:
    1. The set of Chicago Region ``no whistle'' crossings was corrected 
to a much lower number based upon docket filings from the Illinois 
Commerce Commission, the AAR and Metra.
    2. The study period was brought forward to address the most recent 
complete accident data contemporaneous with known crossing status 
(1997-2001).
    3. Rather than simply employing the previous FRA method with 
refinements, Westat was asked to apply whatever statistical techniques 
it thought appropriate to derive the most valid results.
    FRA received the Westat final report in May of 2003. In an attempt 
to determine the most meaningful explanation of the data, Westat 
applied four distinct statistical methods, with certain variations 
within the methods:
    [sbull] The first method divided the crossings into two groups: one 
group with whistle bans and the other without. FRA's basic Accident 
Prediction Formula (APF) was applied to each crossing and then each 
group was sorted by the results of the APF. Then each group was 
stratified into ten categories with each stratum having the same 
accident count for the 1997-2001 study period. Finally, using both 
Poisson and Poisson-Normal regressions, the two groups were compared 
and the effect of the whistle ban was estimated.
    [sbull] The second method is the same as the first except six 
strata were used instead of ten.
    [sbull] The third method did not divide the data into two groups 
and stratify them. Instead, a Poisson regression analysis was applied 
to the entire data set. The regression included all the variables used 
by the APF plus others including a \1/10\ flag for whistle bans. The 
regression coefficient for the whistle ban was used to estimate the 
effect.
    [sbull] For the fourth method, a Poisson regression analysis was 
applied to the entire data set in a manner similar to the third method 
except the \1/10\ flag for whistle bans was not included. This 
regression yielded a revised version of the APF. Then, the crossings 
were divided into two groups (with and without whistle bans), and each 
group was divided into ten strata using the revised version of the APF. 
Finally, using Poisson-Normal regressions, the two groups were compared 
and the effect of the whistle ban was estimated.
    On a nation-wide basis, the third method produced the most precise 
estimates for the effect of the whistle ban, so FRA has selected this 
method as the basis for its evaluation.
    Once again, all three classifications of warning devices 
experienced a higher accident rate in whistle ban areas as follows 
(National data excluding Florida only and excluding Florida and the 
Chicago Region):

------------------------------------------------------------------------
                                                   Percent difference
                                               -------------------------
             Warning device class                  (with      (excluding
                                                  Chicago)     Chicago)
------------------------------------------------------------------------
Passive.......................................         71.6         74.9
Flashing Lights...............................         21.7         30.9
Gates.........................................         43.4         66.8
------------------------------------------------------------------------

    The results for the Nation without Chicago provided the most 
reliable data. The results for passive and gated crossings were 
statistically significant well below the conventional 5 percent level. 
The model offered less confidence for crossings with flashing lights 
(Prob  [t] = 0.08), but the estimate is consistent with the 
results of FRA studies for the earlier period and represents the best 
information available regarding the effect of bans on the accident 
rate. Accordingly, FRA has employed the results for the Nation 
excluding Chicago as the national estimates of effectiveness for 
crafting this interim final rule.
    The 2003 Westat report also attempted to derive results for the 
State of Wisconsin. Results differed substantially between intra-State 
and Wisconsin-to-national comparisons, even though all values showed a 
positive effect from the train horn and two of the three warning device 
categories had significant results in each of the analyses. FRA sees no 
basis for deviating from the national averages for the warning device 
categories without a better qualitative understanding of any underlying 
differences in risk profiles.
    The Chicago Region results are briefly summarized here and then 
discussed in full context and at greater length below. The no-whistle 
crossing set provided to Westat included only 21 crossings with 
flashing lights and 21 passively signed crossings. As Westat noted, 
that is too few crossings from which to derive

[[Page 70604]]

statistically meaningful results, and none were determined. FRA will 
apply the national estimates of ban-induced accident increases for 
passive crossings and flashers-only crossings to the Chicago Region.
    Westat's calculations for the Chicago Region once again showed a 
negative effect from use of the train horn at gated crossings when only 
Chicago Region crossings were included in the analysis, but results 
were not statistically significant. For reasons more fully developed 
below, this result was expected, since railroads in the Chicago Region 
have been free to select which exemptions to observe and which to 
ignore.
    However, Chicago gated no-whistle crossings experienced 17.3 
percent more accidents when compared with the national gated crossings 
where the train horn sounded. This result was not statistically 
significant at the conventional 5 percent level, but it is more likely 
than not that the value is positive (P  [t] = 0.312). 
Comparing this result with the national data, Westat noted that ``the 
ban effect in the Chicago Region is significantly different from the 
ban effect in the rest of the nation.'' Taking note of this finding and 
other information discussed below, FRA will apply a 17.3 percent 
estimate of ban-induced excess risk to gated crossings in Chicago 
Region Pre-Rule Quiet Zones. FRA will apply the national average for 
gated crossings (Chicago excluded) to New Quiet Zones in the Chicago 
Region. The rationale for this decision is more fully developed below.

                                      Ban Effects/Train Horn Effectiveness
                                                 [Summary Table]
----------------------------------------------------------------------------------------------------------------
                                                                Reduction required from
                                        Effect of ban (includ.  ban risk to retain Pre-
           Warning type \1\             no-whistle policy) on       Rule QZ (percent             Comment
                                          accident frequency     reduction and factor)
                                        (percent increase) \2\            \3\
----------------------------------------------------------------------------------------------------------------
                            Nation (Except Florida East Coast Ry./and Chicago Region)
----------------------------------------------------------------------------------------------------------------
Passive..............................                     74.9                 43 (.43)
Flashers only........................                     30.9                 27 (.27)
Flashers with gates..................                     66.8                 40 (.40)
--------------------------------------
                                                 Chicago Region
----------------------------------------------------------------------------------------------------------------
Passive..............................                     74.9                 43 (.43)  From national avg.
Flashers only........................                     30.9                 27 (.27)  From national avg.
Flashers with gates..................                     17.3                 15 (.15)  Regional estimate.
--------------------------------------
                                      Florida East Coast Railway (FEC) \4\
----------------------------------------------------------------------------------------------------------------
Flashers with gates..................         To be determined           Not applicable  Regional estimate
                                                                                          subject to review.
----------------------------------------------------------------------------------------------------------------
Table Notes:
\1\ These are the primary warning device types. FRA is aware that a variety of arrangements are in place at
  individual crossings and will provide guidance for association of the various arrangements with these
  benchmark values.
\2\ This is the amount by which accident frequency has been estimated to increase when the horn is silenced.
\3\ This is the reduction in collision frequency that must be achieved in order to restore crossings impacted by
  a ban to the level they would experience if the horn sounded. To simplify, if 10 accidents of equal severity
  were expected in a ban area with gated crossings, a reduction of .40 would be required--to a level of 6
  accidents--in order to retain the Pre-Rule Quiet Zone (unless a smaller reduction in accidents would place the
  Quiet Zone Risk Index below the NSRT). As a matter of technical practice, the factor is applied to the
  crossing's risk index.
\4\ Crossings on the FEC are currently subject to Emergency Order No. 15. FRA had found an alarmingly large
  increase in the accident rate when nighttime bans were imposed at crossings with flashing lights and gates.

10. Funding

    A number of commenters expressed concern that the NPRM was silent 
as to potential funding sources for implementation of the proposed 
rule. Generally, commenters indicated that without additional funding 
being made available, quiet zone implementation would be beyond the 
financial reach of many communities. Several commenters suggested that 
the Federal government should provide the funding necessary to 
implement quiet zones, while other commenters suggested that the 
operating railroads should provide the funding or that the costs should 
be shared among some or all interested parties (including Federal, 
State, and local governments, as well as railroads, shippers, and other 
users of the rail system).
    Several individuals and local governments, citing local budget 
constraint concerns, suggested that if the Federal government is going 
to require additional safety measures at highway-rail crossings, then 
the Federal government should provide the funds for such measures. One 
individual representing a group of Massachusetts families suggested 
that the costs of safety at highway-rail crossings should not be the 
sole burden of communities abutting the railroad, because the general 
public uses highway-rail crossings. This individual suggested that the 
NPRM effectively proposes a tax on innocent citizens to protect those 
who willfully violate traffic laws by illegally proceeding around grade 
crossing safety devices in attempts to ``beat the train.'' A few 
individuals suggested that the costs of implementing quiet zones should 
be shared among the Federal government, railroads and local 
communities. One of these commenters further recommended that because 
the rail system is a national resource, the resulting noise impacts are 
a national issue. Accordingly, this commenter suggested that 
communities disproportionately affected by railroad noise should not 
have to provide a disproportionate amount of funding to solve the 
problem of railroad noise. This commenter recommended the development 
of a formula to effectively normalize the amount of funding communities 
would be required to contribute to the implementation of quiet zones 
within their jurisdictions, based on norms present throughout the 
United States.
    Other individuals commented that because the impact necessitating 
the

[[Page 70605]]

proposed rule has resulted from railroad operations and the railroads 
are the parties that profit from rail operations, any mitigation 
measures should be the responsibility of the railroads themselves. In 
addition, one local Sacramento, California business suggested that 
implementation of quiet zones would result in lower insurance and 
litigation costs for railroads, and thus, railroads should share in the 
costs of implementation.
    Although most local governments indicated that due to existing 
budget constraints, implementation of quiet zones would be very 
difficult without the allocation of additional Federal funds, some 
local governments did provide ideas for alternative sources of funding. 
For example, the City of Moorhead, Minnesota has set up a special 
downtown taxing district to fund the safety measures necessary to 
implement a quiet zone. The City of Miami Springs, Florida, proposed 
imposing a user fee, similar to that of airlines, for both passenger 
and freight rail traffic. Other local governments proposed imposing 
local property taxes on railroad right-of-ways to help fund safety 
improvements in order to implement quiet zones (a measure that would be 
prohibited by 49 U.S.C. 11501 which bans discriminatory taxation of 
railroads).
    Two Colorado municipalities, the City of Brighton and the City of 
Fort Collins, requested confirmation that quiet zone crossing safety 
measures qualify for Federal Highway Administration (``FHWA'') funding. 
Another Colorado municipality, the City of Winter Park, requested that 
either new Federal funding for implementation of quiet zones be made 
available or the current Federal crossing safety program be expanded to 
include crossing improvements necessary to implement quiet zones.
    Although every commenting State also expressed concern regarding 
potential funding sources, citing a general lack of availability of 
State funds, some States specifically recommended against allocating 
Federal safety funds to finance the implementation of quiet zones under 
the proposed rule. Specifically, both the North Carolina Department of 
Transportation (``DOT'') and the Ohio Public Utilities Commission 
(``OPUC'') indicated that the proposed rule is directed at quality of 
life issues, not highway-rail grade crossing safety. Accordingly, each 
agency strongly recommended against the use of Federal safety funds to 
finance safety measures necessary to implement quiet zones. In its 
comments, OPUC specifically expressed the belief that funding for 
projects in connection with the establishment of quiet zones should not 
come at the expense of the State's ongoing grade crossing safety 
programs. OPUC stated that ``[g]rade crossing safety must not be 
compromised at some crossings in exchange for relative peace and quiet 
at a handful'' of other crossings. Thus, OPUC argued that funds already 
committed to traditional grade crossing safety programs should not be 
used to fund quiet zone projects. Likewise, the Illinois Commerce 
Commission stated that the proposed rule would distort the State's 
multi-year grade crossing safety enhancement planning process and force 
the State to redirect needed funding from important safety projects to 
what the agency described as ``Federally mandated noise suppression 
projects.''
    In addition, explaining that the cost of SSMs will be prohibitive 
to many State DOTs and many communities, the North Dakota DOT suggested 
that the proposed rule would increase demand for already limited 
Federal safety funds if such funds are made available to finance the 
installation of safety measures under the proposed rule. Accordingly, 
the North Dakota DOT specifically recommended against the use of 
Federal safety funds to implement quiet zones. The New York DOT, on the 
other hand, requested that additional Federal safety funds be made 
available to implement projects under the proposed rule.
    Railroad industry participants expressed the view that railroads 
should not be responsible for the costs of installing, maintaining, or 
repairing, the additional safety measures required to implement quiet 
zones under the proposed rule. These commenters suggested that funds be 
made available through the relevant highway authorities or the FHWA. 
One commenter, the American Public Transportation Association, 
specifically requested that FRA address this issue in a joint 
rulemaking with FHWA.
    Despite the wishes of the commenters, Federal funds have neither 
been authorized nor appropriated specifically for implementing this 
rule. Indeed, 49 U.S.C. 20153(A)(3) specifically provides that SSMs are 
``provided by the appropriate traffic control authority responsible for 
safety at the highway-rail grade crossing * * *.'' While there are no 
dedicated funds set aside for the costs incurred in developing and 
implementing a quiet zone under this rule, there are several categories 
of transportation funding available that may be used by States and 
localities for this purpose. FRA wishes to emphasize that at the outset 
that it is unlikely that most improvements undertaken under this rule 
would withstand the priority ranking requirements for safety projects 
under Federal-aid highway programs, since the improvements may be 
approximately neutral with respect to safety (as compensation is made 
for the additional risk associated with silencing the train horn). 
However, those funds constitute only 10 percent of one of the two major 
programs. Further transfer between the two programs may be possible. 
Further detail on Federal-aid programs follows:
    The Transportation Equity Act for the 21st Century (TEA-21) was 
enacted June 9, 1998 as Public Law 105-178. TEA-21 authorizes the 
Federal surface transportation programs for highways, highway safety, 
and transit for the 6-year period 1998-2003. TEA-21 is the current 
legislation that funds both the Surface Transportation Program and the 
National Highway System Program. The Surface Transportation Program 
consists of a 10 percent safety set-aside and the balance of the 
program, which is intended for general transportation improvements off 
the National Highway System.
    The requirements for the Highway-Rail Grade Crossings and Hazard 
Elimination Programs are defined in sections 130 and 152, respectively, 
of Title 23, United States Code. Projects funded with ``Section 130'' 
funds (23 U.S.C. 130) are intended to reduce the number and severity of 
train collisions with vehicles and pedestrians at highway-rail grade 
crossings. Typical projects include active warning devices (e.g. 
flashing lights and gates), signing and pavement markings, 
illumination, crossing surface improvements, grade separations, sight 
distance improvements, geometric improvements to roadway approaches, 
and the closing and/or consolidation of crossings. All public grade 
crossing safety improvements are eligible for funding under this 
program, but obligation of funds is subject to strict requirements for 
ranking the priority of projects on a State-wide basis. Although use of 
section 130 funds for projects under this rule will be warranted only 
where those improvements exceed the minimum targets for risk reduction 
set by this rule and where the projects are legitimately ranked as top 
priorities within the State, it is important to remember that the bulk 
of the approximately $4.1 billion expended under the section 130 
program since 1974 has been used to improve crossing safety on city and 
county roads across the Nation, including in whistle ban jurisdictions. 
Indeed, the automatic warning systems required by several States as a 
predicate

[[Page 70606]]

for whistle bans---and which are required in this rule for New Quiet 
Zones--were in most cases installed with primarily Federal funds. Thus 
prior Federal funding has already assisted local governments to some 
extent in preserving Pre-Rule Quiet Zones and creating New Quiet Zones.
    ``Section 152 funds'' (23 U.S.C. 152 (Hazard Elimination Program) 
are intended to implement safety improvement projects to reduce the 
number and severity of crashes at hazardous highway locations, 
sections, and elements on any public road. Typical projects include 
intersection improvements (channelization, traffic signals, and sight 
distance); pavement and shoulder widening; guardrail and barrier 
improvements; installation of crash cushions; modification of roadway 
alignment; signing, pavement marking, and delineation; breakaway 
utility poles and sign supports; pavement grooving and skid resistant 
overlays; shoulder rumble strips; and minor structure replacements or 
modifications. It is important to note that grade crossing improvements 
can be funded under section 152 if they are identified in a State's 
hazardous location survey.
    The difference between the sum of the funding levels for sections 
130 and 152 and the overall 10 percent safety set-aside in STP is in a 
category called ``Optional Safety Funds'' and is eligible for use in 
either section 130 or section 152. In FY 2000, there was a total of 
$368 million available in Optional Safety Funds, but only $21 million 
(or 6 percent) was used on section 130 grade crossing safety 
enhancement. Clearly this is an area where States can be encouraged to 
change the mix of safety projects advanced using this funding to 
accommodate more grade crossing safety improvements.
    It should be noted that 90 percent of the STP funds are available 
for general use. Local Metropolitan Planning Organizations, working 
with the State departments of transportation, help determine how those 
funds should be allocated. As FRA was advised by commenters in this 
proceeding, community transportation needs differ. Without question, 
engineering improvements under this rule would constitute eligible 
projects deserving of consideration for use of this 90 percent share.
    Under section 1103(c) of TEA 21, an amount of $5,250,000 per year 
was set aside from STP funds, and this funding is to be used for 
projects on designated high speed passenger rail corridors. Should a 
quiet zone be desired on a portion of such a designated high speed 
corridor, such funds could be used as a part of the overall high speed 
corridor improvement project. Given the relatively small amount of 
funding available under section 1103(c), it is perhaps unlikely that 
any quiet zone improvements would rise to the top of the list on any 
such corridor. However, note that there is a strong compatibility 
between the kind of safety improvements desired for high-speed rail 
corridors (``sealed corridor'' treatments) and the supplementary safety 
measures identified in this rule.
    Transfers of funds from other categories into the STP are 
permitted, and any such transfers are not subject to STP set-asides or 
suballocations.
    [sbull] Up to 50 percent of National Highway System (NHS) 
apportionments may be transferred to the STP; indeed, up to 100 percent 
of NHS funds may be transferred to STP if approved by the Secretary of 
Transportation, and if sufficient notice and opportunity for public 
comment is given.
    [sbull] Up to 50 percent of Interstate Maintenance apportionments 
may be transferred to STP.
    [sbull] Up to 50 percent of Bridge Replacement funds may be 
transferred to STP.
    [sbull] Funds apportioned to the Congestion Mitigation and Air 
Quality (CMAQ) Program may also be transferred to STP, subject to the 
following conditions. Up to 50 percent of the amount by which the CMAQ 
apportionment for the fiscal year exceeds the amount that would have 
been apportioned to CMAQ for that fiscal year if the program had been 
funded at $1.35 billion annually may be transferred to STP. Transferred 
CMAQ funds may only be used in air quality non-attainment and 
maintenance areas.
    Finally, please note that, with respect to roadways on the National 
Highway System, improvements would be eligible for funding out of the 
NHS.
    The subject matter of this regulatory proceeding is the use of the 
train horn at highway-rail crossings, not the development of 
appropriations requests. Accordingly, FRA neither endorses nor argues 
against earmarked Federal funding for this purpose. FRA does note that, 
in general, State and local governments have argued against categorical 
transportation programs and in favor of broad block grants over which 
recipients could exercise full control. As reflected above, to a large 
extent that has become Federal policy. Whether any deviation from that 
policy is warranted by the fiscal impacts claimed to be associated with 
this rule is a matter for review in other forums. Accordingly, FRA's 
principal response to those arguing for Federal funding has been to 
ensure, to the extent practicable, that any expenses attributed to 
establishing Quiet Zones are no greater than necessary to maintain 
safety.
    As this interim final rule was being drafted, the Congress and the 
Administration were preparing to address the reauthorization of surface 
transportation programs (extending or replacing TEA-21). That process 
was being complicated by reduced revenues, confirming FRA's conviction 
that this interim final rule should allow additional time for 
implementation of the rule. Although it is possible that the program 
structure outlined above may be reorganized significantly in new 
legislation, FRA does not expect any resulting reduction in the 
flexibility afforded to the States (working with local Metropolitan 
Planning Organizations) to affect the utilization of Federal 
transportation funds.

11. Liability

    Several commenters noted that the NPRM was silent as to the issue 
of liability when an accident occurs at a highway-rail grade crossing 
within a quiet zone established in accordance with the rule. The New 
Jersey Department of Transportation (``DOT'') explained that 
consideration should be given to how liability issues presented by the 
rulemaking will affect public safety. Several commenters suggested that 
legislation was necessary to prohibit lawsuits by anyone injured while 
circumventing highway-rail grade crossing safety devices within quiet 
zones. The Massachusetts town of Manchester-by-the-Sea commented that 
the NPRM appeared to be a paternalistic effort directed towards those 
who willfully violate traffic laws and illegally proceed around grade 
crossing safety devices. This commenter also expressed concern that 
railroads may be reluctant to agree to implementation of quiet zones 
under the rule for fear that it would increase their risk of liability 
if an accident did occur at a crossing within a quiet zone where the 
railroads did not routinely sound their locomotive horns. Manchester-
by-the-Sea suggested that when there is willful conduct by a motorist 
or pedestrian that jeopardizes his life or those of others, e.g., 
proceeding through activated gate crossing devices, railroads and local 
communities should not be subject to liability if an accident occurs. 
Accordingly, the Town recommended that FRA work with Congress to codify 
limits to the liability of railroads and communities when those who 
willfully violate traffic or trespassing laws are injured at rail 
crossings within a quiet zone. Similarly, a Wisconsin State

[[Page 70607]]

legislative representative suggested that local communities should not 
be liable for accidents occurring at grade crossings within quiet zones 
established under the rule.
    The North Carolina DOT suggested that communities pursuing quiet 
zones in their jurisdictions should enter into agreements with the 
relevant State and operating railroads agreeing to hold harmless the 
State and railroads for any accidents or injuries that occur as a 
direct result of these quiet zones. This same commenter emphasized that 
the communities implementing quiet zones should assume all of the risk 
associated with the quiet zones.
    Commenters from the railroad industry strongly advocated that 
municipalities seeking the establishment of quiet zones under the rule 
should assume liability for all accidents that occur at crossings 
within the quiet zones. Citing the historical sounding of locomotive 
horns as a safety feature of railroads for the past century, the 
Florida East Coast Railway argued that if a community insists that it 
cease the sounding of the locomotive horns when traveling through its 
jurisdiction, then that community should be willing to accept the 
liability associated with the decision. The American Public 
Transportation Association projected that passage of a rule permitting 
quiet zones as proposed in the NPRM would probably lead to increased 
insurance premiums for railroads.
    Another concern raised by several railroad industry participants, 
as well as an individual locomotive engineer, was the fact that State 
law often imposes liability on individual members of train crews and 
their employers when a train does not sound its horn at a highway-rail 
crossing and an accident occurs. These commenters contended that 
nothing in the NPRM would remove liability from individual train crew 
members or their employers for failure to sound the locomotive horn in 
the event of an accident in a quiet zone established pursuant to the 
rule. A representative of the Wisconsin Central System suggested that 
the rule should clearly state that failure to sound the locomotive horn 
in a FRA approved quiet zone could not serve as a basis for imposing 
civil liability on either the train crew or the employing railroad.
    FRA appreciates the legitimate concern of the commenters regarding 
liability issues surrounding creation of quiet zones under this rule. 
We note that the proposed rule would have had the effect of relieving 
individual train crew members and their employers from liability for 
failure to sound the locomotive horn. The proposed rule clearly 
provides that establishment of a quiet zone created no legal duty to 
sound the horn in emergency situations. Because the rule clearly 
covered the subject matter of such a duty, it would have prevented 
State laws imposing such a duty. FRA does not expect that lawsuits will 
never arise over collisions which may occur at crossings within quiet 
zones, nor should FRA attempt to prohibit such suits since the cause of 
such collision may in fact be due to factors other than the lack of an 
audible warning. However, this rule is intended to remove failure to 
sound the horn as a cause of action in such lawsuits involving 
crossings within a quiet zone. We expect that the courts will determine 
liability issues based on the facts of each case and after reviewing 
the nature of this rule and its Federal requirements.
    We expect that courts, following Norfolk Southern v. Shanklin, 529 
U.S. 344 (2000) and CSX v. Easterwood, 507 U.S. 658 (1993), will 
conclude that this regulation substantially subsumes the subject matter 
of whether trains must sound warning devices at highway-rail grade 
crossings and, therefore, preempts state law on that subject.
    FRA perceives no reason why establishment of quiet zones under this 
rule should result in higher insurance premium costs for railroads. In 
fact, a quiet zone under this rule should be evaluated as much less of 
an underwriting risk than a current whistle ban.

12. Wayside Horn

    During FRA's initial outreach process prior to issuing the NPRM, 
several commenters asked whether placement of a wayside horn (a horn at 
the crossing and directed at oncoming motorists) might be entertained 
as a supplementary safety measure. FRA also received comments in the 
docket and at the public hearings on this subject. It is apparent that 
there is interest in using such a device as an alternative means of 
providing an audible warning to the motorist of an approaching train.
    A wayside horn system would typically consist of horns mounted on 
poles that are placed at the crossing. A horn would be directed towards 
each direction of oncoming vehicular traffic. The system would be 
activated by the same track circuits used to detect the train's 
approach for purposes of other automated warning devices at the 
crossing (flashing lights and gates) and would produce a sound similar 
to the horn signal given by an approaching train.
    At FRA's direction, the Volpe National Transportation Systems 
Center conducted an initial evaluation of two wayside horn 
installations at Gering, Nebraska in 1995 (Field Evaluation of a 
Wayside Horn at a Highway-Railroad Grade Crossing, Final Report, June 
1998). This evaluation noted that use of the wayside horn in lieu of 
the train horn reduced net community noise impacts. The evaluation also 
showed a 52 percent reduction in the number of incidents in which 
motorists continued to drive over the crossing after the warning 
device's gate arms had started to descend as compared to the baseline 
data collected with the train horn sounding. There was no significant 
difference between train horns and wayside horns for motorists that 
drove around lowered gates. While the report indicated improved driver 
behavior with the wayside horn, the report also contains analysis that 
suggests questions regarding the effectiveness of that particular 
installation in alerting motorists that should be answered before 
implementing wayside horns as a substitute for train-borne horns. 
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 warning and additional evaluations at other 
sites should be performed. The NPRM suggested three questions related 
to the effectiveness of the wayside horn:
    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?
    Since the installation of the original wayside horn system in 
Gering, NE, several other communities have installed wayside horns. 
These sites include: Ames, Iowa, Parsons, Kansas, Wichita, Kansas and 
Richardson, Texas. Additionally, other communities have had temporary 
test installations of the wayside horns.
    This topic generated a number of comments from various parties. 
Additionally, the departments of

[[Page 70608]]

transportation from Iowa, Nevada, Missouri and Florida all supported 
the inclusion of wayside horns as substitutes for train horns. The 
Brotherhood of Railway Signalmen (BRS) cited design flaws as an 
impediment to the effectiveness of wayside horns. The BRS also stated 
that if wayside horns were permitted by FRA, it would be imperative 
that the track circuits be used to detect the train's approach. The BLE 
stated that it felt that additional testing should be required before 
acceptance of the wayside horn.
    Generally, commenters voiced strong support for the inclusion of 
wayside horns as a supplementary safety measure under the rule. States 
and local governments in particular, with the exception of the 
California Public Utilities Commission (CPUC), were in favor of 
including wayside horns as a supplementary safety measure. In support 
of their positions, these commenters cited the Volpe Center study and 
an Iowa Department of Transportation study, both of which have shown 
reductions in gate violation frequency with use of wayside horns. The 
cities of Gering, Ames, and Wichita all supported inclusion of wayside 
horns as a substitute for locomotive horns. They expressed the view 
that there was great community support for wayside horns and felt that 
safety was improved. Ames, Iowa wrote ``* * * it [wayside horn] has 
tremendously improved the quality of life and safety for our 
residents.'' It is noted that Ames has installed wayside horn systems 
at three additional crossings. The city administrator for Gering, 
Nebraska also wrote that he had never received so many unsolicited 
``thank you'' calls and letters from citizens as he had over the 
installation of wayside horns. These same commenters, along with at 
least one representative of the railroad industry, also indicated that 
they believed that wayside horns provide a more cost-effective 
alternative to train horns, than some of the other supplementary safety 
measures included in the NPRM. The Florida Department of Transportation 
(``DOT'') suggested that wayside horns be used in instances where it is 
impossible or impractical to install the supplemental safety measures 
articulated in the NPRM. The Florida DOT, however, did not elaborate on 
the rationale for limiting the use of wayside horns to situations where 
the installation of the identified supplemental safety measures is 
impractical or impossible.
    The AAR suggested that there is more certainty regarding the 
effectiveness of the wayside horn than there is for the non-engineering 
measures included in the NPRM as alternative safety measures. In 
support of its assertion, the AAR submitted a copy of its report 
entitled Wayside Horn Sound Radiation and Motorist Audibility 
Evaluation that found that the latest model of wayside horn was louder 
than previous versions and concluded that wayside horns are a viable 
alternative to locomotive horns for audible warnings at highway-rail 
grade crossings. However, recognizing FRA's misgivings about the 
wayside horn noted in the NPRM, the AAR suggested that if FRA could not 
definitively determine the effectiveness of the wayside horn prior to 
issuance of the final rule, FRA should permit use of the horns as 
supplementary safety measures at grade crossings subject to two 
conditions: (1) Concurrence of the railroads operating at the 
crossings, and (2) demonstration of the efficacy of the horns at each 
crossing at which they would be installed.
    The CPUC, however, asserted that there is currently insufficient 
evidence that the wayside horn can provide protection comparable to 
locomotive horns and opposed the use of wayside horns as a 
supplementary safety measure until further data on the effectiveness of 
the horns is collected. Other commenters voicing opposition to the use 
of wayside horns for the same reason included the BLE and the BRS.
    In response to FRA's first specific question posed in the NPRM--
whether wayside horns provide the same quality of warning within the 
motor vehicle as a locomotive horn while a train is approaching the 
motorist's decision point--a few commenters suggested that the wayside 
horn gives equal or greater audible warning. For example, the City of 
Wichita, Kansas, suggested that a wayside horn provides a uniform 
quality of warning within a motor vehicle because while wind, 
neighboring buildings, houses, fences and trees all affect the quality 
of warning of the locomotive horn on a motorist at a crossing, only 
wind would have an effect on the quality and uniformity of the warning 
of a wayside horn. Other commenters suggested that wayside horns 
provide consistent decibel levels directed exactly where motorists are 
driving (i.e., at the crossings, not down the tracks). The City of 
Roseville, California, cited a local wayside horn test that showed 
consistently higher audible warnings directed at the crossing, while 
reducing the noise impact to the surrounding communities.
    In response to FRA's second question--whether the lack of 
directionality from a wayside horn detracts from the effectiveness of 
the warning--commenters supporting the use of wayside horns generally 
agreed that the apparent lack of directionality does not detract from 
the effectiveness of these audible warnings. Wichita pointed out that 
as motorists approach rail crossings they often hear train horns from 
nearby crossings on different rail lines so it is not clear from which 
direction the train is coming anyway. The Kansas DOT suggested that the 
issue of direction is moot since wayside horns are used in combination 
with other automated warning devices (i.e., gates, flashing lights) and 
that when crossing gates are down, motorists are supposed to stop and 
wait for the train to pass, regardless of the direction in which the 
train is traveling. The Missouri Department of Economic Development 
suggested that wayside horns would encourage motorists' compliance 
because drivers cannot tell how far away from the crossing the train is 
by the sound of the wayside horn.
    Only one commenter responded directly to FRA's third question--
whether the wayside horn would suffer from the lack of credibility 
sometimes associated with automated warning devices due to false 
activations of the signal system. Wichita suggested that the annoyance 
associated with a wayside horn sounding in connection with an active 
warning system's false activation may cause earlier public reporting, 
and thus quicker railroad response to the problem location.
    Several additional studies have been conducted on the wayside horn 
since the initial study in Gering, NE. Ames, Iowa. One study 
(Evaluation of an Automated Horn Warning System at Three Highway-
Railroad Grade Crossings in Ames, Iowa, by Gent, Logan and Evans, 2003) 
documented the reduced noise impact to the community, public acceptance 
of the horn system through surveys of residents and motorist, and 
locomotive engineer opinions that the system was safe or safer than the 
locomotive horn (obtained through surveys). No data on actual driver 
behavior at the crossings were collected in this study. This study did 
not analytically address any of the three questions posed by the Volpe 
study.
    The Wayside Horn Sound Radiation and Approaching Motorists 
Audibility Evaluation (Mike Fann and Associates, May 2000) examined the 
sound levels and frequencies emitted by the wayside horn. This research 
collected data that showed that system that was tested provided a sound 
level of 98 dB at 100 feet from the wayside horn. The sound level that 
was produced met FRA's regulation for a locomotive horn that

[[Page 70609]]

requires a minimum sound level of 96 dB at 100 feet from the front of 
the locomotive. The study also measured the frequency content of the 
wayside horn and using signal detection theory indicated that 99 
percent of drivers with only a partial anticipation of a train event 
should hear the warning. No data were collected on actual driver 
behavior. This study provides information towards answering the first 
question suggested by the Volpe study. The sound level measured for the 
wayside horn meets FRA sound level requirement. Signal detection theory 
and measurement of the frequencies contained in the wayside horn 
indicate that the driver should be able to hear the wayside horn. 
Neither the Ames nor Fann study addresses questions two and three 
concerning directionality and credibility of the warning.
    Texas Transportation Institute of Texas A&M University, was engaged 
by a manufacturer of a wayside horn system to revisit one of the 
crossings in Gering, NE to assess the level of driver compliance with 
the warning system after approximately six years of operation. Video 
data of driver behavior at the crossing was collected for 16 days. 
Driver compliance with the warning devices was then analyzed in the 
same manner as the 1995 Volpe study. The study, entitled A Safety 
Evaluation of the RCL Automated Horn System (Roop, May 2000), showed 
that after six years of operation of the wayside horn that driver 
compliance with the automatic warning devices at the crossing (flashing 
lights with gates) was slightly better than the baseline driver 
behavior observed when the locomotive train horn was used. It should be 
noted that there was a noticeable decrease in driver compliance with 
the use of the wayside horn from 1995 to 2000. However, driver behavior 
in 2000 with the wayside horn was still slightly better than the 1995 
driver behavior with train horns. This research goes towards answering 
question number three.
    After review of the accumulated experience with the use of wayside 
horns, FRA has determined that the use of wayside horns at crossings 
equipped with automatic flashing lights and gates as a replacement for 
train horns has merit under certain well-defined conditions. It has 
been clearly shown that wayside horns significantly reduce the noise 
footprint that a community would experience when compared to the 
routine sounding of train horns. At locations where wayside horns have 
been installed, community acceptance has been great and city officials 
cite that there has been no decrease in safety at the crossings. TTI's 
study that revisited the original Gering, NE study after six years of 
wayside horn use indicates that the wayside horn at that location is 
still as effective as the locomotive horns used during the baseline 
period.
    The Northwestern University Center for Public Safety evaluated the 
effectiveness of the wayside horn at three crossings in Mundelein, 
Illinois. The study, entitled, Evaluation of the Automated Wayside Horn 
System in Mundelein, IL (Raub, Lucke, January 2003), utilized video 
monitoring of driver behavior, sound level measurements and survey 
instruments to: (1) Assess the impact of wayside horns on the behavior 
of drivers; (2) measure loudness of train horns and the wayside horns 
in neighborhoods; (3) obtain the opinions of locomotive engineers on 
perceived changes in driver behavior; and (4) obtain the opinions of 
residents on the differences between locomotive horns and wayside 
horns. The Village of Mundelein, located 35 miles north of Chicago, has 
40 to 50 trains per day passing through. A baseline of driver behavior 
was collected for three months during which there were 10,382 gate 
activations. There were 367 incidents of drivers disregarding the 
active warning devices (flashing lights and gates) during this period. 
Locomotive horn use was then discontinued, and the use of the wayside 
horns was instituted. Data was not collected until four months had 
passed to allow for the novelty effect of the wayside horns to pass. 
Video data was then collected for three months during which there were 
only 97 incidents observed during the 8,683 gate activations. The study 
results indicated a 70 percent decrease in the number of times drivers 
disregarded the warning devices. Additionally, noise levels in 
residential and business areas located near the tracks decreased by 80 
percent. As in the Ames, Iowa study, there was acceptance of the system 
by both the public and locomotive engineers. Ten out of the 12 
locomotive engineers surveyed felt that the wayside horn was as safe, 
or safer, than the use of the locomotive horn. This study contributes 
towards answering question 2 by providing additional data on the 
effectiveness of wayside horns in reducing incidents of driver 
disregard of the warning devices. While the study does not 
quantitatively study question 2, it can be inferred from the data that 
the lack of directionality does not contribute to an increase in 
incidents of driver disregard of the warning devices.
    The interim final rule issued today provides that wayside horns may 
be used in lieu of locomotive horns at crossings equipped with 
automatic flashing lights and gates. See Sec.  222.59. Although clearly 
a wayside horn produces sound, because of its lower noise impact on the 
surrounding community, it may be installed within a quiet zone if the 
public authority determines that it is appropriate to do so. If used 
within a quiet zone, the risk at a crossing equipped with wayside horns 
will not be included in calculating the Quiet Zone Risk Index or 
Crossing Corridor Risk Index. It also should be noted that wayside 
horns have not yet been classified by FHWA as traffic control devices. 
If FHWA does classify them as traffic control devices, the wayside horn 
must also be approved in the Manual on Uniform Traffic Control Devices 
(MUTCD) or FHWA must approve experimentations pursuant to section 1A.10 
of the MUTCD.

13. Horn Sound Level and Directionality

    Train horns are clearly a major source of unwanted noise in 
communities through which active railroad lines pass. FRA included in 
the NPRM provisions designed to limit the dispersal of horn noise into 
the community where the sound does not serve its warning purpose. These 
provisions were a maximum limit on horn sound output and a limit to 
sound emanating to the side of the locomotive. FRA has a long history 
of working with the railroad industry to improve locomotive cab working 
conditions and has been sensitive in this rulemaking to balance the 
need to reduce noise exposure to operating crews with community noise 
concerns. With the release of the NPRM and accompanying Draft 
Environmental Impact Statement, FRA gave needed consideration to the 
mitigation of locomotive horn noise on communities.
    The NPRM proposed limiting the horn sound emanating to the side of 
the locomotive to no more than the sound measured to the front, and FRA 
had anticipated that this might cause railroads to modify their horns 
to reduce some of the unwanted noise. Many commenters supported these 
provisions and strongly favored reducing maximum horn sound output 
levels from the high levels in general use. The NPRM discussed a 
maximum sound level from horns of 104dB(A) for crossings with active 
warning devices and 111dB(A) for passively signed crossings. 
Communities generally commented in favor of using the lower sound level 
in all cases. On the other hand, the NTSB commented that there is a 
need for high sound levels to

[[Page 70610]]

overcome vehicle noise and to provide adequate warning at passive 
crossings where significant responsibility and discretion is left to 
the driver. The BLE preferred a variable horn that would allow the 
engineer to decide when the high horn level was needed.
    Because this issue presented complex questions that were not likely 
to be emphasized in testimony on the extensive NPRM, and because FRA 
sought to put detailed questions to the railroad industry regarding the 
horn, FRA held a Technical Conference on Locomotive Horns during the 
comment period. The conference was attended by railroads, the AAR, 
locomotive builders General Electric and General Motors, and other 
industry representatives. In the conference, AAR made FRA aware that 
the testing procedures set forth in 49 CFR 229.129 were causing a 
misperception regarding center mounted horns. Because the existing 
Sec.  229.129 requires measurement of horns 100 feet in front of the 
locomotive and 4 feet above the rail, it was claimed that an acoustical 
shadow is cast on the measurement device by the locomotive body when 
center mounted horns are sounded. This acoustical shadow dissipates 
quickly as one moves further away or to the side of the locomotive. It 
was suggested that the testing procedures were giving the impression 
that center mounted horns were louder to the side than to the front. 
Conference participants complained that the proposal limiting the horn 
sound emanating to the side of the locomotive would force them to 
relocate horns onto the cab from the center of the locomotive, and 
would increase crew noise exposure. The use of shrouds or shields had 
been tried by railroads in attendance, and they did not consider them 
practical. The technical conference also helped FRA understand the 
railroads' strong commitment to remain using compressed air warning 
device systems and the many difficulties involved in equipping and 
maintaining horn systems.
    After reviewing the results of the technical conference and 
comments on the horn provisions, FRA decided to conduct further tests 
to quantify the effects of horn placement and the influence of 
variations in available air horn models. A series of stationary tests 
were performed by the Volpe National Transportation Systems Center 
(VNTSC) at the Transportation Test Center in Pueblo, Colorado from 
April 10 to 12, 2001. The results of these tests showed that the shadow 
effect is very pronounced at the measurement location specified in 
existing Sec.  229.129. When the traditional cab roof horn location was 
compared in these tests with the center of the locomotive body horn 
location which is current practice, the difference in location produced 
no meaningful change in community noise exposure nor in the warning 
signal projected beyond the immediate shadow of the locomotive body. 
Horns located on the locomotive nose produced less objectionable 
community noise but also resulted in weaker warning signals and 
resulted in higher noise levels in the engineer's cab. FRA learned that 
Transport Canada recently sponsored moving tests of locomotive horns, 
which showed meaningful differences in the effectiveness of the warning 
signal provided by horns mounted on the cab roof versus those mounted 
on the center of the locomotive body. The research indicated that horns 
mounted at the front of the locomotive on the cab roof produced a more 
effective warning signal. Because the results of the stationary tests 
and the technical conference did not justify the provision for a 
maximum sound limit to the side of the locomotive, it has been 
eliminated from this interim final rule. However, because the Canadian 
research indicates that horn location may be a factor in the 
effectiveness of the warning signal, further research is needed before 
any regulatory changes are made.
    FRA has determined that by changing the measurement procedures in 
Sec.  229.129, the effect of the shadow can be removed from horn 
measurement. FRA believes that this simple change, with the additional 
requirement of remaining below a maximum sound level, will have the 
effect of normalizing the sound output of all horns. The interim final 
rule requires that horns be measured at the familiar location, 100 feet 
in front of the locomotive, however the sound level meter receptor is 
to be mounted at 15 feet above the rail (i.e. out of the locomotive's 
``shadow'').
    FRA also continued to review and refine the signal detection theory 
application previously developed by the FRA Office of Research and 
Development and reported by the Volpe Center (Railroad Horn Systems 
Research, USDOT FRA/VNTSC, January 1999) using newly gathered horn 
measurement data. While lower sound levels would reduce community noise 
impact, an understanding of the relationship between horn sound level 
and its detection by motorists is needed to preserve the safety 
function of the horn. The detectability model was applied to the most 
critical safety condition at passive crossings where no other audible 
or visual warning device is present and where vehicles typically are 
approaching the crossing at speed. In this case the model suggests that 
a high likelihood of detection will occur when the horn is producing 
108dB(A) at the measurement location, 100 feet in front of the 
locomotive and at 15 feet in height. FRA added a margin to this level 
to account for variability in the sound level meters and other factors 
and set the maximum level at 110dB(A). Although FRA employed the best 
available tools and knowledge to arrive at this level, additional 
research may, over time, suggest a different maximum level.
    This interim final rule requires railroads to comply with the 
maximum horn level of 110dB(A) using the new measurement procedures to 
certify their locomotives. Compliance with the provision is required 
for new locomotives upon the effective date of this rule which is one 
year after the date of publication of this rule. Additionally, each 
existing locomotive shall be tested within five years of this 
publication date and when rebuilt as determined pursuant to 49 CFR 
232.5. FRA also anticipates that whenever repairs or modifications are 
performed to locomotives that affect the performance of the horn 
system, the railroad will re-certify the locomotive horn to comply with 
Sec.  229.129.
    With the establishment of the maximum sound level for locomotive 
horns, FRA has also eliminated a plus and minus tolerance in making 
compliance measurements of horns. FRA anticipates that railroads will 
set their horns to be somewhat louder than the minimum and quieter than 
the maximum to account for the minor inaccuracies of the Type II sound 
level meters currently available. While FRA currently uses Type II 
sound level meters to test for compliance with part 229.129, FRA may 
use Type I sound level meters in the future.
    Considerable effort has been expended to establish and quantify 
both the significant risk reduction from regular use of locomotive 
horns and also the level of sound that needs to be delivered to be 
detectable. FRA continues to study these issues and may revise these 
requirements as new information becomes available.
    FRA also gave serious consideration to the option of requiring a 
two-level horn selectable by the locomotive engineer. This approach 
might allow a lower sound level for actively signed crossings. 
Historically, horns had been fitted with modulating valves that did 
provide some latitude for adjustment of the sound level, and 
communities exposed to today's automatic sequencing horns have 
expressed

[[Page 70611]]

concern at the results. However, there are a variety of practical 
considerations that FRA would need to consider that have not been fully 
developed in this proceeding before any mandatory standard could be 
issued (e.g., the difficulties created by passively- and actively-
signed crossings in close proximity to one another). FRA will continue 
a dialogue with railroads and communities on this issue. The rule does 
not foreclose this approach where it fits local conditions, and FRA 
will encourage railroads using locomotives that are dedicated to 
particular line segments to explore this option.

Steam Locomotives

    FRA has elected not to address horn sound levels on steam 
locomotives in the rulemaking. Steam locomotives constitute a small 
fraction of the locomotive fleet and are mainly concentrated on tourist 
and scenic railroad operations with infrequent service in a largely 
rural area. Given the strained financial circumstances of many museum 
and tourist operations, and the limited noise impact the small number 
of steam locomotives have on local communities, FRA has not, at this 
time, elected to apply the maximum sound level limits to steam 
locomotives. It should be noted, however, that a railroad operating a 
steam locomotive within a quiet zone must silence its steam whistle in 
accordance with this rule.

14. Chicago Regional Issues

A. Introduction

    The six-county Chicago Region is host to the largest rail terminal 
area in the Nation, and it accounts for the biggest concentration of 
``whistle bans'' and associated casualties. Chicago communities and 
Chicago industries have grown up with and around the extensive rail 
complex, and the metropolitan area has benefitted greatly from an 
extensive commuter rail system established by the State and funded by 
the State and region with Federal assistance. Chicago's Union Station 
is also a major hub for Amtrak intercity service. The most voluminous 
and many of the most spirited comments we received came from Chicago 
Region organizations and residents who wished to maintain existing 
whistle bans. The train horn issue has a unique history in the region 
that has contributed to the need for different treatment with respect 
to the impact of no-whistle policies at gated crossings. For these 
reasons, we provide considerable detail on train horn issues in the 
Chicago Region.
    This section of the preamble describes the regulation of horn use 
at the State level in Illinois, explores its implications for horn use 
and safety at the Chicago regional level, reports the comments from 
Chicago Region and State officials in this proceeding, discusses the 
difficulties in obtaining reliable and consistent data on where Chicago 
Region whistle bans were actually in effect at a given time and how FRA 
has attempted to resolve those difficulties and data anomalies, and 
explains the actions FRA has taken in the interim final rule to respond 
to Chicago-area concerns.

B. Legislative and Administrative Actions in Illinois

    The recent history of train horn use in the Region has been 
reported to FRA as follows. Historically, the State of Illinois 
tolerated local ordinances banning whistles, and it appears railroads 
had observed them to a substantial extent. On July 29, 1988, Illinois 
Public Act 85-1144 (625 ILCS 5/18c-7402) became effective, requiring 
that the horn be sounded by registered rail carriers at all public 
highway-rail crossings.\5\ Railroads complied, resulting in a 
substantial public outcry and court action.
---------------------------------------------------------------------------

    \5\ A copy of the Illinois code provision, and copies of major 
Commission orders, have been placed in the docket of this 
proceeding. This material was provided by the Commission at FRA 
request.
---------------------------------------------------------------------------

    The Illinois Commerce Commission (ICC) responded by excusing 
(exempting) all registered carriers from sounding horns at all highway-
rail crossings which (i) were provided with automatic flashing light 
signals, or flashing light signals and gates, and (ii) had experienced 
less than three accidents involving a train and a vehicle within the 
prior 5 years.\6\ In general, to qualify for being exempted, it appears 
that the crossing was required to have had the same type of warning 
system in place over the past 3 years. ICC Docket Nos. T88-0050 (orders 
of August 31, 1988; September 8, 1988; and October 12, 1988) and T88-
0053 (orders of August 31, 1988; October 12, 1988; and January 25, 
1989).
---------------------------------------------------------------------------

    \6\ Three accidents at a single crossing within 5 years in a 
very large multiple of the typical accident experience among public 
crossings. Most individual crossings will not experience a single 
accident over a 10-year or greater period.
---------------------------------------------------------------------------

    Notably, the Northeast Illinois Regional Commuter Railroad 
Corporation (Metra) was not a named party in the ICC proceedings. Metra 
is not regulated as a registered carrier due to its status as a public 
benefit corporation of the State of Illinois (and accordingly is also 
not required to sound the horn at crossings under State law).
    By contrast, Metra service operated by freight railroads as 
contractors to Metra, and Metra service provided over lines controlled 
by freight operators, has been subject to the State law and the 
jurisdiction of the Commission. Under Docket No. T88-0050 the ICC 
addressed crossings on the lines of Metra's freight partners. The 
Commission initially found all crossings meeting the basic requirements 
(active warning and fewer than 3 accidents in 5 years) to be 
``reasonably and adequately protected'' with the exception of two 
crossings.
    The Commission further found 16 crossings ``adequately protected'' 
despite the occurrence of (in one case) up to 5 accidents in the 
previous 5 years, stating that ``at least part of that finding is based 
on a commitment by or on behalf of the named governmental units to 
increase enforcement of State laws as they apply to motorists obeying 
automatic flashing light signals and gates. * * * '' The Commission 
went on to require reports referencing enforcement and awareness 
programs at the 16 crossings, stating in effect that it expected to see 
an increase in safety enforcement activity (Interim Order of August 31, 
1988 at 3). Notations attached to the copy of this order provided by 
the Commission indicated that, in addition to the said 16 crossings, 29 
crossings were initially identified for exemption under this order. In 
a subsequent interim order of September 8, 1988, the Chicago and 
Northwestern was excused from sounding the horn at the Nagle Avenue 
crossing, again based on a commitment for law enforcement and 
education.
    The final order in this docket provided by the Commission was dated 
October 12, 1988. In this order the Commission revised its express 
decisional criteria as to at least the Nagle Avenue crossing, stating 
that certain of the accidents at that crossing ``were the result of 
persons deliberately ignoring the flashing lights and driving their 
automobiles around the gates.'' \7\ The commission also provided relief 
for two named crossings where warning systems had been recently 
upgraded (notwithstanding the previous accident history). The net 
effect of these actions appeared to have left the majority of the 
roughly 565 crossings on the Metra system subject to the requirement 
that

[[Page 70612]]

the train horn sound (or left them unaddressed from the point of view 
of State law due to Metra's unique self-governing status). However, 
that may not have been the case, as FRA has not had the opportunity to 
review the entire file of the proceeding; and inquiries to the 
Commission to clarify this point were complicated by the passage of 
time and turnover of rail leadership. As noted below, if that was the 
case it was swiftly altered by proceedings in another docket.
---------------------------------------------------------------------------

    \7\ This constitutes the leading cause of collisions sought to 
be prevented by this rulemaking, although the horn also has value to 
the motorist who has misunderstood the message sought to be conveyed 
by the traffic control device, has stalled on the crossing and needs 
to vacate the vehicle, or who is faced with an activation failure.
---------------------------------------------------------------------------

    Highway-rail crossings off the Metra system were subject to ICC 
Docket No. T-88-0053. The ICC initially entered an emergency order 
excusing the sounding of the horn under the basic criteria previously 
described (August 31, 1988). A total of 113 crossings with automated 
warning devices were identified for continued sounding of the horn 
based upon the occurrence of 3 or more accidents between June 1, 1983, 
and June 1, 1988. On October 12, 1988, the Commission entered an 
interim order carrying forth this pattern, but adding exemptions for 
crossings that had experienced recent safety improvements. It appears 
that the list of not excused crossings was reduced to 50, with another 
9 crossings set for exemption upon completion of planned improvements.
    The final order in ICC Docket No. T88-0053 was entered on January 
25, 1989. It incorporated 2 crossings on a Soo Line Metra route 
(previously omitted from T88-0050) which were identified as not 
excused. The Commission order stated that Appendix 1 listed all 
crossings where sounding the horn was not excused under both dockets 
(T88-0050 and T88-0053). Appendix 1 \8\ was a list of 53 crossings said 
to be ``not excused,'' 9 of which were to be excused upon completion of 
improvements and one of which is separately marked as not excused under 
docket T88-0050. Of the 53 crossings not excused, 23 were in the 
Chicago Region. Accordingly, by early 1989 the great majority of 
crossings in the Region were excused, but 23 with the highest number of 
recent accidents remained not excused.
---------------------------------------------------------------------------

    \8\ The attachment FRA received from the Commission did not bear 
the docket caption, but the Manager of the Railroad Safety Section 
of the Commission confirmed that FRA had received the correct item 
and that the caption had been obscured during copying.
---------------------------------------------------------------------------

    After its initial actions in the 1988-1989 period, the Commission 
evidently adjusted the terms of the exemptions over time, but the basic 
practice remained in place. In 1994, the Commission conducted a review 
of the train horn issue under Docket No. T91-0082. The Commission's 
order of February 24, 1994, summarized its actions to that point as 
follows:

    After hearings and by orders in those dockets the Commission 
excused registered rail carriers from whistling at crossings under 
the terms and conditions as set forth hereinabove; at additional 
crossings where a review of the type of accident at a specific 
crossing indicated that whistling would not have prevented the 
accident and at other crossings where governmental authorities 
agreed to increase their enforcement activities of existing statutes 
governing rail crossings, increase safety programs/presentations to 
the public regarding same, and report to the Commission at six month 
intervals those enforcement/presentation activities for a period of 
two (2) years.

The Commission went on to indicate that the present order was intended 
to take into account the accident history since the initial orders, as 
well as changes in crossing status. In reporting the findings of 
hearings and letters in this docket, the Commission noted that a number 
of Chicago-area railroads, including Norfolk Southern, Illinois 
Central, CSX and Chicago Northwestern (for crossings outside its 
suburban commuter territory) indicated that they would sound horns at 
all crossings even if excused. Order at 3. Though most of the 
communities participating in the proceeding sought exemptions for 
crossings within their borders, the City of Chicago stated it had no 
objection to use of the horn.
    The Commission consolidated the previous dockets under the new 
number, rescinded previous orders and entered findings that made 
adjustments based on experience, including excusing use of the whistle 
at additional crossings that were ``reasonably and sufficiently 
protected.'' In one instance sounding the horn was excused at a 
crossing were ``a driver ignored operating gates and was hit and 
citations for violating the gates were issued to that driver. * * *'' 
Id. at 5. But the Commission indicated that carriers would be required 
to sound the horn at new highway-rail crossings that had not been in 
service for 5 years, even though equipped with automatic warning 
systems.
    The Commission was explicit in stating that the statute ``does not 
give the Commission any authority to prohibit the sounding of such 
whistle warnings. * * *'' Id. at 5. The order notes that, in fact, if 
communities wanted carriers to sound the horn they could request that 
they do so despite exemptions; but there is no suggestion that local 
jurisdictions could require railroads to honor exemptions by running 
silent. Attachment 1 to this July 1994 order listed 53 crossings at 
which carriers were not excused under the new order (39 older crossings 
and 14 new crossings). There is little overlap between the crossings in 
this list and those specified as not excused in the commission order in 
the previous docket.
    The Commission subsequently entered an amendatory order in Docket 
No. T91-0082 (dated July 20, 1994) making various adjustments to the 
prior order. The major effect was to cut back the list of new crossings 
with insufficient exposure to 4 from 14 (so that carriers were excused 
at another 10 crossings).
    The Commission actions of 1994, which were based on accident data 
through June 1, 1991, apparently had the effect of excusing most of the 
Metra system crossings operated or dispatched by contract carriers, 
with the exception of 5 Soo Line crossings. However, 14 additional 
Chicago Region crossings without commuter trains were not excused.
    In its 1994 orders, the Commission was silent with respect to the 
wisdom of continuing to excuse crossings with fewer than 3 accidents in 
a specified 5-year window in the past. The movement in the pattern of 
exemptions from 1988 to 1994 was significant. If the Commission 
considered the possibility that (i) sounding the train horns may have 
reduced the risk of collision in the period 1989-1991 for crossings 
that had previously experienced 3 or more collisions within the 
overlapping previous period and (ii) excusing compliance with the train 
horn at those crossings might drive the risk back up, the record 
available to FRA is silent with respect to such consideration.

C. Actual Practice Sounding Train Horns in the Chicago Region

    It is clear that, particularly prior to 1994, ICC orders excusing 
the use of the locomotive horn contained significant exceptions, and 
certain exceptions (applicable to largely different crossings) 
apparently continue to date. While the ongoing rationale for Commission 
decisions is apparently not consonant with the principles later applied 
in Federal legislation leading to this rulemaking, Commission orders 
without question have tended to withhold relief from use of the horn 
for a significant number of crossings that are very high risk. In some 
cases, communities may have been stimulated to engage in enforcement or 
education efforts in order to support exemptions.
    It is also apparent that freight railroads have taken disparate 
points of view with respect to exemptions, with

[[Page 70613]]

some electing to blow the horn at all crossings and others taking a 
more selective approach.
    Much of the highway-rail crossing safety exposure in the Chicago 
Region is found on the Metro commuter rail network, which includes the 
following:
    [sbull] Lines over which Metra has operated service directly and 
subject to its own rules throughout the period 1988 to date (the Rock 
Island District, South Shore Line, Southwest Service, and the Electric 
District);
    [sbull] Lines on which Metra operates in effect as a tenant, with 
the freight railroad imposing operating rules and providing dispatching 
(Milwaukee District West and North lines (Soo Line) and the Heritage 
Corridor (CN));
    [sbull] New service established using Metra crews over Wisconsin 
Central in 1996 (North Central Service); and
    [sbull] Freight lines over which the freight railroads provide 
Metra service as contract operators (UP North Line, UP Northwest Line, 
Wisconsin Central North Central Service, and BNSF Aurora line service).

Most of these lines carry significant freight volumes, as well as 
significant numbers of daily commuter trains.
    Throughout the period Metra has enjoyed discretion with respect to 
whether to sound the locomotive horn at crossings where it provides 
service directly, and Metra's host railroads and contract freight 
operators have also enjoyed significant latitude as a result of the ICC 
exemption policy. Metra testimony and filings in this docket indicate 
that 69 percent of the 565 public grade crossings on the Metra route 
system were no-horn crossings as of spring 2000. It follows that Metra 
trains sounded horns at about 175 crossings and did not sound the horn 
at about 390 crossings during that time period, but the picture may 
have been somewhat different during earlier periods. FRA concludes that 
Metra and its contractor operators have exercised discretion in whether 
to sound horns, even where exemptions from the State mandate existed, 
based upon safety concerns and community quiet concerns. Given FRA's 
knowledge of safety programs, FRA believes that Metra has likely tended 
to emphasize safety where risk is known to be relatively high based on 
factors such as crossing characteristics (angle of intersection, 
complexity of the roadway geometry including nearby roadway 
intersections, history of accidents, crew reports of near hits, and 
other factors). According to the ICC, Metra has also utilized some 
time-of-day partial bans to address infrequent train movements during 
early morning hours. While freight railroads in the Chicago Region have 
apparently run silent as commuter operators over crossings where horn 
sounding was excused, they have been much more likely to use the horn 
when operating freight trains for their own accounts.

D. Current Chicago Region Whistle Ban Status

    Quite obviously, the fact that the ICC excused use of the horn does 
not mean that trains are running silent over the crossing. The current 
total number of crossings in no-whistle status in the Chicago Region is 
apparently significantly smaller than the original 846 identified by 
the AAR and others in the early 1990's. As of August 3, 2000, the ICC 
was estimating only 23 no-whistle freight-only crossings, all on the 
Indiana Harbor Belt, and 320 crossings used by passenger and freight 
trains (Metra system), for a total of 343 no-whistle crossings. Of this 
number, 13 were affected by bans only during part of the day (e.g., 
nighttime or off-peak), and the remainder were 24-hour bans.
    Information provided by the AAR on October 24, 2000 indicated a 
total of 28 no-whistle freight-only crossings in the Chicago Region and 
227 no-whistle crossings on the Metra route system for a total of 255. 
The AAR noted that ``none of these railroads operates at public 
crossings in Chicago without sounding the whistle unless the crossings 
are equipped with gates or trains operate at speeds under 10 m.p.h.'' 
At approximately the same time Metra informed FRA that 130 crossings on 
their property were no-whistle crossings. Between the year 2000 and 
2002 some of these crossings were reported in the inventory as being 
closed or no longer public. When combined and checked against year 2002 
inventory records some 304 Chicago Region crossings were considered no-
whistle based upon AAR and Metra sources.
    In November of 2002, the ICC provided an updated listing of 
crossings in the State of Illinois indicating current whistle status 
(based on actual practice). It showed 278 no-whistle crossings in the 
Chicago Region and, of those, 226 corresponded with the 304 provided by 
AAR and Metra. FRA also learned of 29 additional quiet crossings in 
some other suburban Chicago communities for a total of 385.
    To the extent that the ICC and AAR may not have queried all 
railroads, particularly smaller short line and regional railroads, a 
few crossings may have been omitted from these counts. The AAR and ICC 
filings are also notable in omitting lines directly operated by Metra, 
which is an AAR member. However, it is clear from the AAR's filing, as 
well as representations made by railroads to the Commission in 1994 and 
recent lists provided by the Commission, that the horn has been sounded 
at the vast preponderance of freight-only crossings in the Chicago 
Region since at least the 1994 time period.
    The following table summarizes the available data for the mid-2000 
period, including both partial and 24-hour bans for the Chicago Region:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           FRA Updated     No-whistle      No-whistle                       No-whistle
                                                              Total        Nationwide     crossings per   crossings per    No-whistle    crossings as of
                                                          Crossings in     Study (Jan.   8/23/2000 CATS  10/24/2000 AAR   crossings per     2002 (FRA
                                                          Region (2002)       2002)         estimates        letter      ICC 11/19/2002  reconciliation)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commuter...............................................  ..............  ..............             320             227  ..............              347
Other..................................................  ..............  ..............              23              28  ..............               38
    Total..............................................          1,671*           846**             343             255             278             385
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Current total from FRA inventory with adjustments for known closures.
** Based on early AAR survey and crossings identified during outreach largely prior to the NPRM.

    FRA's reconciliation in effect adds no-whistle crossings on Metra's 
home lines to the AAR estimates and the information from the ICC. AAR 
had included the no-whistle crossings on Union Pacific, BNSF, and 
Wisconsin Central property, but not on Metra owned and operated routes. 
Again, it is possible that these counts omit a few no-whistle 
crossings, possibly those on railroads not surveyed by the parties.

[[Page 70614]]

E. Community Reaction to the Proposed Rule

    Testimony from public officials representing the Chicago Region was 
reasonably consistent in content. The major Chicago Region groups 
argued that the collision rate at grade crossings in the Chicago Region 
is lower than the nation--even with whistle bans. They argued that 
FRA's Inventory data were outdated, that the rule is too costly, and 
that it would take much longer to implement than FRA had proposed to 
allow. Chicago commenters also postulated that the Chicago area will be 
the most impacted by the rule. The general conclusion suggested by most 
of the commenters was that the Chicago Region (or Illinois as a whole) 
should be excluded from the final rule and left to implement its own 
programs, which are said to be better suited to local conditions. This 
testimony was supported by State-level officials.
    FRA is familiar with the efforts of the Illinois Commerce 
Commission, the Illinois Department of Transportation, Metra, freight 
railroads, and many counties and cities to improve safety at highway-
rail crossings in Illinois, and specifically in the Chicago Region. 
These efforts are presently well led and well coordinated, and the 
State contributes significant resources. Nevertheless, in the year 
prior to the testimony on the proposed rule, Illinois led the Nation in 
fatalities at highway-rail crossings. The State regularly places second 
or third in that category, even though collisions and casualties 
declined over the decade of the 1990s (as they did in the Nation).
    This record is driven to a significant extent by the very heavy 
exposure in the Chicago Region, where every weekday over a thousand 
trains compete with millions of motor vehicles at almost 2,000 highway-
rail crossings. Collisions on major Chicago-area lines are more likely 
to result in serious injuries or fatalities because of relatively high 
train speeds associated with commuter service. FRA calls attention to 
this issue not to be critical in any way, but rather to note the 
importance of sustained effort by all responsible parties to meet this 
continuing safety challenge.
    FRA thoroughly reviewed all studies, testimony and comments 
submitted by Chicago-area commenters, including the Speaker of the 
House of Representatives, other Members of Congress, the Chicago Area 
Transportation Study (CATS), Northwest Municipal Council (NWMC), Dupage 
Mayors and Managers, and the City of Chicago, Department of 
Transportation, among others. FRA also took official notice of 
testimony before the Subcommittee on Ground Transportation of the 
Committee on Transportation and Infrastructure, U.S. House of 
Representatives, on July 18, 2000 (``Implementation of the Federal 
Railroad Administration Grade-Crossing Whistle Ban Law,'' No. 106-101), 
which focused heavily on the Chicago Region.
    FRA endeavored to fairly evaluate the claim of special 
circumstances, as well as to take the specific points into account in 
relation to the National issue posed in this proceeding. What follows 
is a discussion of FRA's findings, comparing FRA's data and 
methodologies with those in submissions by Chicago-area groups. We also 
discuss further the statistical analysis reported above with respect to 
its significance for the final rule. We conclude that many comments 
from the Chicago Region have valid application when tempered by other 
available information, and we call attention to aspects of this rule 
that reduce the impact of the rule at no-whistle gated crossings in the 
region. As described above, FRA also developed a risk-based method for 
excepting many communities from the train horn requirement. Moreover, 
this interim final rule provides significantly more time for 
implementation than did the NPRM.

F. Methodology/Inventory Data

    As noted above, Chicago Region commenters generally viewed the 
grade crossing safety record in the region as good. Many commenters 
suggested that the train horn could not be an effective warning device 
in the Chicago setting because of the number of train movements 
(motorists would become inured to the warning). Thus, it was felt that 
there was no difference in safety performance between crossings where 
the horn is sounded and those where it is not sounded. (By contrast, 
the ICC implicitly recognized the usefulness of the train horn but 
argued more widespread use of the train horn would not be accepted by 
the public and was not necessary given existing administrative 
standards.) FRA has responded to the comments by thoroughly reviewing 
the underlying data as well as conclusions derived from the data in the 
NPRM.
    To understand the controversy over Chicago data it is necessary to 
recall several points regarding the Chicago Region at the outset. 
First, virtually all of the crossings identified during public contacts 
as of concern to Chicago residents with respect to termination of 
existing horn exemptions are equipped with flashing lights and gates 
(``gated crossings''). Second, as discussed above, the ICC required use 
of the train horn at some of most hazardous crossings during at least 
portions of the FRA study period; and, even when the Commission excused 
use of the train horn, Metra and freight railroads often elected to use 
the horn notwithstanding public opposition, if any.
    It is also necessary to understand some basic information regarding 
the data that FRA has available to work with. Accident/incident data 
used in this rulemaking are reported to FRA by the railroads under 
regulations having the force and effect of Federal law (49 CFR Part 
225). The data are available on FRA's public Web site at the individual 
crossing level, so local officials have the opportunity to call any 
problems to the agency's attention. In general, FRA has every reason to 
believe that these data are accurate, with the exception that a 
recently-added field to identify the presence of a whistle ban appears 
to be eliciting information of questionable quality (and FRA has not 
relied on that field in this proceeding).
    The characteristics of crossings (number of tracks, trains, motor 
vehicle traffic, etc.) are determined by reference to the Department of 
Transportation's national Inventory of highway-rail crossings, which is 
maintained by FRA on behalf of all users. This is a voluntary data 
collection effort, and the degree of cooperation in maintaining its 
currency varies from year to year and among contributors. Substantially 
all highway-rail crossings have been assigned Inventory numbers. Both 
the State departments of transportation (for public crossings) and the 
railroads (for public and private crossings) are requested to 
contribute updates to the Inventory whenever circumstances change. 
Since State departments of transportation receive Federal-aid highway 
funds for crossing safety and other highway improvements, and since 
under the ``section 130'' program States are required to maintain a 
ranking of crossings by degree of hazard in order to plan allocation of 
funds reserved for crossing safety purposes, it is reasonable to ask 
the States to share data needed to analyze crossing risk at the 
National level. It is also reasonable to ask railroads to provide these 
data, since they have an interest in avoiding collisions at crossings, 
as well as liability associated with such collisions. FRA has actively 
promoted participation in maintaining the Inventory for the benefit of 
all users.\9\
---------------------------------------------------------------------------

    \9\ In 1999, and again in 2002, the Department of Transportation 
transmitted to the Congress draft legislation that would make 
submission of current data to the Inventory mandatory for both 
States and railroads.

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

[[Page 70615]]

    Some States, and some railroads, are more aggressive than others in 
providing updated data for the Inventory. When FRA examined the 
Inventory in the summer of the year 2000, FRA found that the average 
age of the most recent Inventory updates for the State of Illinois was 
nine years. Except as noted below, FRA's attempts to elicit more recent 
information from State authorities during the pendency of this 
proceeding have been largely unsuccessful.
    Until recently, the Inventory did not contain a field for the 
presence of a whistle ban, and FRA has not found notations in the 
current inventory to be sufficiently complete or reliable. The issue of 
which crossings have been subject to bans or exemptions during 
particular periods of time has been resolved through two means. First, 
in preparing the National Study relied upon in the NPRM, FRA relied to 
a significant extent upon a survey conducted by the AAR (survey 
information received in 1992) and on information received during 
outreach in anticipation of this rulemaking.
    Second, FRA has asked commenters in this proceeding to provide the 
best information that they have available, including a direct request 
to AAR to update its earlier survey of crossings (response received in 
October of 2000).
    Third, FRA has directly approached public authorities in the 
Chicago Region asking for information. Finally, in the case of some 
crossings for which the status was clearly questionable (both as to 
whistle ban status and other data elements), FRA has reviewed railroad 
documents and conducted site visits.
    Given the discrepancies pointed out in the NPRM, FRA has sought to 
obtain updated Inventory and ban information from the City of Chicago, 
but that had not occurred more than two years after the requests were 
made and as this interim final rule was being completed. (Attempting to 
resolve this data problem has caused significant delay in this 
rulemaking, as FRA has endeavored to use the best available and most 
credible information in preparing this interim final rule. However, 
given the policy choices FRA has made in this interim final rule, a 
comprehensive resolution of the data problem has not proven necessary.)
    Commenters on the NPRM questioned FRA's data, which FRA had 
characterized as finding a significant effect from silencing the train 
horn at gated crossings in the Chicago Region. Some of this criticism 
was direct (challenging the relevant FRA data on gated crossings), and 
other criticism was indirect (challenging data on passively signed and 
flashers-only crossings that FRA had published to complete the public 
record but had noted might be unreliable).
    Most Chicago-area commenters were convinced that the whistle ban 
grade crossing collision rate in Chicago is lower than the rate 
throughout the rest of the nation, and many contended that the train 
horn is wholly ineffective. In short, they doubted the conclusion 
stated in FRA's Updated Analysis of Train Whistle Bans (January 2000) 
that, on average, gated whistle ban crossings in the Chicago Region 
experienced 58 percent more collisions than gated crossings with 
similar predicted risk of a collision at which train horns sounded. Two 
studies by associations of local governments, discussed below, seemed 
to indicate different results.
    As noted above in the discussion of the Westat reports, FRA 
initially responded to the comments and analysis by contracting with 
that statistical firm to regenerate the national study, using the best 
available information for the study period 1992-1996, to maintain 
comparability with the earlier work and to avoid what might be 
temporary effects from the extensive publicity associated with this 
rulemaking. FRA provided the best available information regarding the 
status of crossings in Chicago during the study period, along with 
other necessary data. Westat reviewed the prior FRA method (which it 
found useful and appropriate), made some improvements in the method, 
and computed national results which are reported above. With respect to 
gated crossings in the Chicago Region, Westat found as follows:

For grade crossings with gates, the estimated effect of a whistle 
ban depended on the comparison group in the Chicago area. * * * 
Using the Continental U.S., Florida and Chicago area excluded, as 
the comparison group, grade crossings with gates without a ban had a 
significantly lower accident rate than grade crossings with a ban, 
whereas using the Chicago area grade crossings with no ban for 
comparison, there was no statistically significant effect associated 
with a ban.

Zador, Paul L. at 6 (April 1, 2002).

    Stated differently, during the study period Chicago Region gated 
whistle ban crossings experienced an average of 34 percent more 
accidents than similar crossings in the Nation where the train horn was 
sounded. The results were statistically significant but as noted above 
a further statistical test indicated poor model fit.
    Accordingly, as FRA endeavored to bring together the various 
sources of information and analysis in preparation of this interim 
final rule, FRA made further inquiry into the distribution of ``no 
whistle crossings'' with the conclusions recited above. FRA then 
provided the corrected set to Westat for further analysis. Recognizing 
that the current no-whistle status could not be assumed to be valid for 
the earlier period, during which substantial ICC and railroad decision 
making had no doubt resulted in major changes in status, FRA also 
provided a more recent accident data set (1997-2001).
    As noted above, the result was that, for gated crossings (by far 
the largest component of the Chicago Region issue), it was determined 
that no-whistle policies resulted in an increase of 17.3 percent in 
accidents. This value was not supported by a very high level of 
statistical confidence. Accordingly, FRA was left with three options:
    1. Elect to determine that the Chicago analysis was inconclusive, 
that the statute requires FRA to find that the train horn has been 
fully compensated for, and that the logical alternative was to employ 
national averages (with or without inclusion of the Chicago data).
    2. Take note of the negative impact results yielded by the 
comparison of Chicago train horn and Chicago no-whistle crossings, and 
determine the impact of no-whistle policies in the Chicago Region to be 
zero, at least for pre-rule no-whistle crossings; or
    3. Note the Westat finding that the Chicago crossings are in fact 
different in their characteristics and accept the most recent Westat 
estimate (17.3 percent) of the effect of whistle bans on accident rates 
at gated Chicago Region crossings, either for all quiet zones, or for 
Pre-Rule Quiet Zones only.
    The first option of using national averages for the entire Nation, 
including Chicago, would have been employed by FRA if the Chicago 
Regional data were not available or their use inappropriate. FRA could 
have rationally decided that the limited significance of the Chicago 
Region statistical conclusions did not require reliance on those 
conclusions. This would have resulted in a fully functional and 
appropriate interim final rule consistent with the Act; a rule FRA 
would not have hesitated issuing. However acceptable this option was, 
it would have necessitated according little weight to a sizable body of 
testimony from the Chicago Region together with statistical analysis 
and qualitative knowledge of the Chicago Region's unique 
characteristics (discussed further below).
    The second option would require FRA to ignore the reality of 
discretionary selection and the strong evidence based on other national 
data (memorialized in the statute giving rise to this rulemaking

[[Page 70616]]

as well as the laws of most States, including Illinois), that the train 
horn can make a positive contribution at the margin. FRA believes this 
option would not have been a rational choice.
    FRA has chosen the third option, and has further determined that 
the lower estimate of ban impacts should be applied only to crossings 
in Pre-Rule Quiet Zones. The need to determine the impact of no-whistle 
policies on accident rates derives from the statutory definition of 
supplementary safety measures. The statute permits certain crossings to 
be excepted from the requirement to sound the train horn, including 
crossings ``for which, in the judgment of the Secretary, supplementary 
safety measures fully compensate for the absence of the warning 
provided by the locomotive horn [emphasis supplied].'' As delegate of 
the Secretary, FRA makes this judgment in light of the following 
considerations:
    [sbull] Utilizing an estimate of approximately 17 percent, despite 
the limited statistical significance of the estimate, takes advantage 
of the best and most current analysis available and fully recognizes 
the conclusion of the Westat report that the ``ban effect for gated 
crossings was significantly different in the Chicago area. * * *''
    [sbull] Not only was the input data set of no-whistle crossings for 
the final Westat study much improved from the prior work, but the time 
period of the study included the period when several Chicago-area 
jurisdictions were making special efforts to address crossing risk, 
particularly where no-whistle policies were in place. Reliance on the 
lower estimate has the practical effect of rewarding effort already 
expended, taking into account scores of comments by Chicago area 
officials and residents as well as the ``interests'' of communities 
wishing to retain existing no-whistle policies.
    [sbull] The recent study takes into consideration other variables 
that may have closed the risk gap in the region, particularly 
completion of the retrofit of auxiliary alerting lights, as well as 
special efforts made in the region (e.g., Metra's election to utilize 
both low-mounted ``ditch lights'' and oscillating lights, rather than 
just ditch lights).
    [sbull] Use of the lower estimate is fully consistent with what FRA 
understands regarding the application of no-whistle policies, i.e.,
    [sbull] Discretionary selection has almost certainly occurred in 
the region. Under current State law (which will be preempted by this 
interim final rule), railroads have the latitude to sound the horn or 
refrain from sounding the horn at individual crossings excepted from 
train horn sounding.
    [sbull] Following their interest in safety and limitation of 
liability, overall railroads likely have elected to use the train horn 
where risk is higher or have exacted responsive action from communities 
to compensate for use of the train horn.
    [sbull] The most extensive use of no-whistle policies has been made 
on commuter lines where many trains are scheduled, train counts are 
high, and motorists are thus more likely to expect a train. Although 
the absolute effect of silencing the horn at these crossings is still a 
matter of substantial concern given the high exposure at these 
crossings, the proportional effect of silencing the train horn is lower 
(again, because motorists are conditioned to believe the train will 
come, most trains are very conspicuous with two forms of alerting 
lights, and--on lines where commuter trains are predominant--motorist 
tolerance of delays is reduced by the expectation that the train will 
clear the crossing rapidly).
    FRA believes that the combination of these various factors provides 
a fully rational basis for selecting this option over the equally 
rational first option and the unsupportable second option, described 
above. FRA notes that the application of this lower effectiveness rate 
for the train horn to pre-rule, no-whistle gated Chicago Region 
crossings does not mean that the acceptable risk at those crossings 
will be measured differently. To the contrary, those crossings will be 
subject to the same Nationwide Significant Risk Threshold as all other 
pre-rule, no-whistle crossings. The unique effectiveness rate, which 
applies only at Chicago Region gated crossings, determines only the 
amount of reduction that may be required to meet this national risk 
standard. FRA believes that a reduced estimate of ban-induced accidents 
at grade crossings is appropriate for existing (pre-rule) no-whistle 
crossings. However, a reduced estimate would not be appropriate for 
current crossings in the Chicago Region where the train horn presently 
sounds, should those communities desire New Quiet Zones. Even on the 
commuter rail network, the risk characteristics of those crossings may 
be substantially different (e.g., more difficult geometry or sight 
distances, less local commitment to enforcement, etc.) Indeed, the 
comparisons between train horn and no-whistle crossings in the region 
confirm that a reduced estimate at the 17 percent level would not be 
appropriate for those crossings. Nor can FRA say that there is an 
intermediate level which is well supported empirically or judgmentally. 
Accordingly, FRA will apply the national estimate of ban impacts to New 
Quiet Zones in the Chicago Region.
    FRA recognizes the potential down side of qualifying Pre-Rule Quiet 
Zones using a lower estimate of ban effects. It is possible that some 
or all of the difference in performance has to do with factors that are 
beyond the control of this interim final rule. For instance, the 
extensive coverage of this rulemaking by the Chicago media will end as 
the rule is implemented, and that may result in future motorist 
behavior that is less favorable than in the past. Changes in local risk 
to which railroads might previously have reacted by resuming use of the 
train horn may become a source of concern, given the mandate of the 
rule to run silent through Pre-Rule Quiet Zones that have been 
qualified under the new procedures. Accordingly, FRA will monitor 
results in the region and consider further action as indicated.
Note on Intra-Regional Comparisons
    Commenters in the proceeding also asked FRA to compare Chicago ban 
crossings to Chicago crossings where the train horn sounds, and FRA 
charged Westat with including that element in its analysis. As noted 
above, Westat reported that no statistically significant effect from 
the train horn was found when Chicago Region gated crossings, where the 
train horn sounds, are compared with the Chicago Region whistle ban 
crossings. This is neither surprising nor in conflict with the 
hypothesis that the train horn is useful. No accident prediction 
formula can capture all factors present at individual crossings, and in 
Illinois railroads have the latitude under law to sound the horn at 
exempt crossings. It is logical to expect that railroads would as a 
matter of discretion elect to sound the horn at crossings with very 
high known accident potential (given factors such as roadway geometry, 
accident history and observed motorist behavior), at least in those 
cases where community objections to noise are not sufficiently 
strenuous to convince them otherwise. Further, in those cases where the 
railroads did not make this election and the accident counts rose 
significantly, the ICC could eventually be expected to intervene. 
Neither the railroads nor the ICC could be expected to go too far in 
the direction of discretionary use of the train horn, however, given 
vocal community objections.
    The result has been, FRA believes, that the train horn is sounded 
as a matter of discretion at many (but by no means all) of the very 
riskiest crossings

[[Page 70617]]

in the region that may technically have been considered whistle ban 
crossings due to an exemption from the State mandate to use the horn; 
and, even though the risk is reduced by the train horn, these crossings 
nevertheless remain among the riskiest in the region.\10\ This 
discretionary selection has indeed had the effect of abating 
significant risk in the region, but it follows from this discussion 
that the resulting statistical pattern within the region does not in 
any way call into question the potential for risk reduction at the 
remaining crossings where the horn is silenced. To the contrary, FRA 
anticipates that requiring that the train horn be sounded at remaining 
whistle ban crossings in Chicago would reduce accident risk at those 
crossings, on average, about 15 percent.\11\
---------------------------------------------------------------------------

    \10\ Many of these very high risk train horn crossings would 
also benefit substantially from safety improvements such as four-
quadrant gates, traffic channelization, or photo enforcement; and 
public investments would be recovered through reduced loss of life 
and injuries avoided. FRA will continue to encourage use of these 
techniques wherever they may be useful. While that is not the 
subject of this proceeding, the pendency of this proceeding has the 
benefit of calling attention to these possibilities for risk 
reduction that cannot be achieved using ``standard'' crossing safety 
measures.
    \11\ A 17.3 percent increase to a base amount yields a value of 
117.3 percent (risk after implementation of a no-whistle policy). 
Restoring use of the horn would reduce the risk to a level 100 
percent of the prior level. Seventeen and three-tenths is 14.7 
percent of 117, so restoring the inflated value to the base amount 
is a 15 percent reduction to the no-whistle state, after rounding.
---------------------------------------------------------------------------

Studies Provided by Commenters
    In response to the NPRM, CATS (Hafeez and Laffey) performed a 
separate study of the effects of whistle bans in the Chicago area and 
concluded that whistle bans have no effect on the collision frequency 
in the Chicago area. Following receipt of the CATS study, FRA asked 
Westat to review that report and provide an evaluation.
    The CATS study used a statistical technique called Analysis of 
Variance (ANOVA) to determine if grade crossings that had a whistle ban 
experienced a higher collision rate in comparison to grade crossings 
where train horns are routinely sounded. This method tested the 
statistical significance of the effect of a whistle ban on collision 
frequency using the interaction between device type and whistle ban. 
Westat found that, besides warning device class, this method failed to 
account for any of the other factors that are known to affect collision 
rates, such as daily train and traffic frequencies, train speed, number 
of highway lanes, and number of tracks. Furthermore, grade crossing 
collisions are rare event that are not normally distributed, but rather 
follow a Poisson distribution. The CATS study applied a technique 
designed for use with normally distributed data that does not work well 
for data that are not normally distributed. The result of applying this 
model was residuals that were not normally distributed. According to 
Westat, the omissions of factors known to affect collision rates 
coupled with an improper technique rendered the model poor for the 
purpose of analyzing the effect of whistle bans on collision rates.
    Disagreements about methods notwithstanding, Hafeez and Laffey come 
to essentially the same conclusion as the Westat analysis--i.e., 
Chicago Region no-whistle crossings may be safer on average than 
Chicago Region train horn crossings, at least when only certain factors 
are controlled in the analysis. As we have explained above, this is not 
a surprising outcome when discretionary selection is considered.
    Further, given the analytical methods used and the small data sets 
available for analysis, it would be as easy for confounding variables 
to mask any differences as it is alleged by commenters to be for such 
variables to generate specious differences. Consider, for instance, 
that most of the Chicago-area no-whistle crossings are on the commuter 
rail network, while most of the train horn crossings are on lines used 
exclusively or almost exclusively for freight. (Hafeez and Laffey also 
used the same, inflated data set of no-whistle crossings that FRA had 
used in its earlier analysis, which was the best available at the time. 
It contained large numbers of freight-only crossings where the train 
horn was likely sounded during much of the period.)
    The Northwest Municipal Conference (NWMC) also filed comments in 
this docket and attempted a statistical re-analysis of accident risk 
within its territory using the FRA method as reported in the NPRM and 
Nationwide studies. This analysis also compared local area train horn 
crossings with exempt crossings where railroads have elected to run 
silent. It concluded that train horn crossings are no safer than no-
whistle crossings, whether one compares all crossings or just gated 
crossings. FRA determined that NWMC's analysis did not follow the FRA 
procedure appropriately, particularly as to stratification of the 
sample. Nevertheless, as noted above, FRA has determined that 
comparisons, between Chicago train horn crossings and no-whistle 
crossings, cannot properly evaluate train horn usefulness within the 
context of the Chicago Region, since discretionary selection has likely 
shifted a disproportionate number of the most hazardous exempt 
crossings into the train horn category and other confounding variables 
may apply.
    The NWMC analysis concludes the whistle ban is likely a spurious 
variable in the FRA analysis. It argues the factors used in the APF, 
such as train and automobile traffic, account for current accident 
levels rather than the whistle ban because the APF accounts for almost 
80 percent of the variation in accidents. FRA's current approach 
adjusts for these effects. It is based on a Poisson regression that 
includes the factors used in the APF along with the whistle ban.
Implications of the Various Studies
    This interim final rule endeavors to ensure that, to the extent 
practicable, these decisions are made based on safety rather than 
economic or political influence, with the important additional 
difference that communities have the option of insisting that the horn 
be silenced where supplementary or alternative safety measures are put 
in place (or where no ``significant risk'' is determined for the 
corridor).
    Again, FRA is keenly aware of the hazard that a spurious variable 
can confound statistical analysis and designed the stratified/matched 
pair method used in the national studies specifically in an effort to 
avoid that effect. FRA has also performed longitudinal studies, as 
reflected in the Florida report and case studies embodied in the 
Nationwide report. In every case where FRA has had sufficient valid 
data points to draw meaningful conclusions, the effect of the train 
horn has been confirmed, lending empirical confirmation of the 
following: the judgment implicit in ICC exemption management (that 
restoring use of the train horn can lower risk); human factors 
research; State laws requiring use of the horn; the opinions of 
railroad professionals who are exposed to motorist behavior on a daily 
basis; and the assumptions Congress made in enacting the law that 
required FRA to issue this rule.
    In any event, FRA strongly agrees with the NWMC comment that it is 
best to utilize a method that is responsive to demonstrable regional 
differences, where possible; and the interim final rule follows this 
pattern. The result is a significant reduction in effort that would 
need to be expended to institute quiet zones in the Chicago Region.
    In conclusion, the comments related to safety at gated crossings, 
taken together with subsequent statistical analysis, support 
reconciliation of FRA safety concerns with the strenuously

[[Page 70618]]

argued representations of the State and local jurisdictions that they 
are actively promoting safety at highway-rail crossings. The bottom 
line is that Chicago-area railroads and the ICC have acted to employ 
the train horn at many of the most hazardous crossings, but it is very 
probable (in FRA's judgment) that excess risk continues to be unabated 
at many no-whistle crossings where the train horn is silenced. This 
interim final rule offers the region automatic approval of the 
demonstrably safest quiet zones and, for quiet zones exhibiting higher 
degrees of risk, a mechanism for implementing supplementary and 
alternative safety measures, over a longer period of time and at lower 
cost than originally proposed, with the result that existing quiet can 
be preserved and New Quiet Zones can be established with a reasonable 
degree of confidence.

G. ``Chicago Anomaly''

    In the NPRM at page 2234, FRA reported results of the Updated 
Analysis of Train Whistle Bans, January 2000, which examined data for 
the five year period from 1992 through 1996 (Updated Nationwide Study). 
The most widely cited passage in that analysis reads as follows:

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.

The Nationwide study showed a similar unexpected result for passively 
signed crossings in the Chicago Region.

    Over three years after this analysis was published, FRA still has 
not received a full update of the Inventory for the City of Chicago, 
despite frequent requests. FRA did, however, test its thesis that the 
data set is not suitable for analysis by checking crossing status 
directly with railroads and through site visits to a representative 
sample of crossings. The result is that, based on current conditions 
many of the crossings identified in the Inventory have long since been 
closed (over half of the passive crossings and almost a third of 
flashers-only crossings) or the type of warning device has changed. It 
is logical to assume that the remaining crossings have experienced 
other changes since the last inventory records that may have further 
confounded the analysis.
    More importantly, when post-NPRM filings from the ICC, AAR and 
Metra were examined and compared with declarations in the ICC 
proceeding during the period 1988-1994, it became evident that there 
likely were very few passively-signed and flashers-only crossings that 
were in no-whistle status during the most of the study period 1992-
1996. Certainly there are very few today--too few to yield meaningful 
comparative data towards a regional estimate.
    As explained above, FRA finds no reason to apply estimates other 
than the national averages to these categories of crossings. Since the 
crossings equipped with flashing lights only or passive devices are 
generally low-train-speed and single-track crossings, FRA knows of no 
supportable reason why there should be a special effect in the Chicago 
Region at those crossings. Indeed, since the ICC did not excuse use of 
the train horn at passive crossings, it is likely that no bans have 
been observed at those crossings during the period or--as suggested by 
the AAR in its October 2000 filing--that this has occurred only at 
crossings where train speeds were less than 10 mph, which is typical 
only within yards and on track approaching industries. Accordingly, 
National averages are appropriate for use under this interim final rule 
for both passive crossings and flashers-only crossings.

H. Safety Trend Lines

    Chicago-area and other Illinois respondents asked FRA to consider 
the improving safety record at grade crossings before imposing a train 
horn requirement. CATS noted that collisions at crossings in Northeast 
Illinois had declined 59 percent since 1988. FRA recognizes that the 
safety record at Chicago Region crossings has improved markedly during 
the last several decades, and this is also true for the State of 
Illinois and for the Nation as a whole. These gains have resulted from 
expenditure of Federal and State funds on improved warning systems, 
local and National public awareness efforts sponsored by a variety of 
parties (including U.S. DOT and the States through Operation Lifesaver, 
Inc.), improved engineering of highway-rail crossing and related 
traffic control systems, installation of alerting lights on locomotives 
and cab cars, general efforts devoted to improving highway safety 
(e.g., seat belt campaigns, impaired driver campaigns, etc.), closure 
of redundant crossings, and targeted law enforcement in some local 
jurisdictions supported by a 1995 Illinois State law imposing a high 
monetary penalty for disregarding warning systems at crossings. It is 
also possible that freight railroads operating in Illinois have been 
more aggressive in sounding the horn since the publication of FRA's 
Florida and National studies (as they have been in other jurisdictions 
where permitted to do so by repeal of bans or as a result of favorable 
Federal court rulings).
    As noted above, FRA has further updated its safety analysis to 
capture developments in the period 1997-2001. The result is a much 
lower estimate for current ban-induced risk at Chicago gated 
crossings--the great majority of no-whistle crossings in the regions.

I. Accident-Free and Low Risk Jurisdictions

    Chicago-area commenters, including the Northwest Municipal 
Conference, were prominent among those arguing that extended periods of 
safe outcomes at local crossings should be recognized. As explained 
elsewhere in this preamble, the interim final rule provides a 
conditional exclusion for existing whistle bans where all crossings in 
the jurisdiction have been collision-free for the past 5 years, 
provided the projected risk is below the product of two times the 
Nationwide Significant Risk Threshold. The interim final rule employs a 
risk-based approach that credits good safety results. In fact, some 
existing whistle ban jurisdictions may be able to avoid additional 
costs indefinitely provided their safety record stays within the 
required parameters outlined in the interim final rule.

J. Impracticability

    Many Chicago-area commenters were particularly strong in making the 
point that several of the identified supplementary and alternative 
safety measures would not work in their local communities. Although 
many of these comments are discussed in other portions of this 
preamble, it is appropriate to call attention to three safety 
alternatives to the horn which were cited as impractical due to local

[[Page 70619]]

conditions in the Chicago area or in Illinois generally.
    First, FRA was told that four-quadrant gate systems were not 
permitted by the Illinois Commerce Commission. Since that testimony, 
the MUTCD, which is issued by the Federal Highway Administration and 
supported by a national committee of traffic control experts, has been 
amended to specify criteria for four-quadrant gates as a standard 
warning system at highway-rail crossings. This action signals the 
acceptance of this safety system by professional traffic safety 
experts. Further, the Illinois Department of Transportation has funded 
installation of a large number of four-quadrant gates at crossings on 
the designated high-speed rail corridor between Chicago and St. Louis 
via Springfield, with ICC participation. The ICC has also stepped 
forward to demonstrate a low-cost vehicle presence detection system for 
use with four-quadrant gates. FRA believes that the Illinois Commerce 
Commission will continue to respond appropriately to identified needs 
for four-quadrant gate systems.
    Second, FRA was told that photo enforcement is not authorized under 
Illinois law at highway-rail crossings. Photo enforcement for red-light 
running (and to a lesser extent for excessive speed) is becoming 
standard practice in a growing number of jurisdictions nationwide. 
After some initial difficulties related to program design and judicial 
acceptance, a photo enforcement project in the Chicago Region is 
continuing with the promise of positive results. There are currently 
four crossings in the Chicago Region that are equipped with photo 
enforcement (Downers Grove, Naperville, Wood Dale and Winfield each 
have one crossing so equipped). The Naperville installation has been in 
effect since July 2000. There has been an 87 percent reduction in 
violations of the warning devices at the crossings, and there has been 
a 98.5 percent conviction rate of the citations issued. The Wood Dale 
installation, which has been in service since December 1999, showed a 
47 percent reduction in violations as reported in September 2000. Both 
the Downers Grove and Winfield systems are relatively recent but the 
initial reports are favorable. The timetable set forth in this rule 
allows ample time for results of the current demonstration to be 
communicated to the legislature and for the legislature to authorize 
photo enforcement.
    Third, FRA heard from many jurisdictions in the Chicago Region that 
median barriers would not work in their settings because of major 
roadways that run parallel to rail lines, either on one side or on both 
sides of the rail line. FRA has noted these circumstances in visits to 
the communities, and FRA concurs that median barriers as specified for 
supplementary safety measures in the NPRM will not work at many 
locations. FRA has responded by making the requirements for 
channelization more explicitly flexible in the appendix language 
describing alternative safety measures. FRA has made it clear, for 
instance, that channelization on one side of the rail line--or for a 
shorter distance than the 60-100 feet nominally desired--could qualify 
for a risk reduction credit. FRA has also recognized that at many 
locations channelization is not feasible, and this has been taken into 
consideration as the costs and benefits of the interim final rule have 
been assessed.
    Finally, FRA has taken seriously the concerns expressed with 
respect to the cost associated with verifying risk reduction following 
implementation of public education and enforcement programs. FRA has 
joined forces with the ICC and local communities to implement the 
Public Education and Enforcement Research Study (PEERS) program. This 
education and outreach effort will be evaluated for effectiveness at 
the community level and, if successful, could have potential for 
application across the region. Although FRA cannot state specifically 
how this approach might be integrated into this rule until results are 
known, it does offer an additional possibility for achieving the safety 
goals of the rulemaking at relatively low cost.

K. Costs

    Chicago respondents testified that the cost of installing 
Supplemental Safety Measures (SSMs) or implementing Alternative Safety 
Measures (ASMs) that will permit the creation of quiet zones far 
exceeds cost estimates developed by FRA and represents an unfunded 
Federal mandate. The City of Chicago, Department of Transportation 
commented the rule would force the installation of four-quadrant gates 
at 237 crossings in the City. The Chicago Area Transportation Study 
estimated that the cost to implement quiet zones in the CATS region 
would be $200 million.
    However, these arguments stem from the presumption that all 
crossings within a quiet zone will need to be equipped with four-
quadrant gate systems. Other SSM's were dismissed by Chicago commenters 
as impractical for a variety of reasons. CATS Council of Mayors 
Executive Committee argued that the proposed safety measures are 
unworkable.
    To test these criticisms, FRA conducted a preliminary cost analysis 
associated with implementation of quiet zones in several Chicago-area 
communities. The site-specific analysis was conducted at 12 highway-
rail grade crossings in the communities of LaGrange, Western Springs 
and Hinsdale, and in each instance employed a corridor approach.
    The analysis revealed that in some cases, public education efforts 
and increased enforcement of existing highway-rail crossing laws can be 
used in place of engineering solutions. At crossings where engineering 
improvements would be the most practical approach, the study found the 
costs of implementing a variety of SSM's would be significantly less 
than Chicago commenters estimated. Based upon the earlier estimates for 
effects of no-whistle policies in the Chicago Region, it was estimated 
that by utilizing the corridor risk reduction approach and utilizing 
engineering improvements at selected crossings that the total 
construction cost for these corridors would be $360,000 with an annual 
maintenance cost of $37,000. This is much less than estimates received 
from some commenters who erroneously assumed that four-quadrant gates 
would be required at each crossing. Actual costs under this rule should 
be even lower, since on many corridors, the required risk reduction of 
15 percent can be taken at a single crossing.
    In light of the greater flexibility of the interim final rule with 
respect to existing whistle bans, and the menu of engineering options, 
costs to convert existing whistle bans into quiet zones, or even create 
New Quiet Zones will be significantly less than most Chicago commenters 
estimated in responding to the NPRM. In instances where an existing 
quiet zone falls below the Nationwide Significant Risk Threshold, the 
only costs that would be incurred would be for maintenance of the 
Inventory data and posting of ``No Train Horn'' signs at crossings.
    FRA understands the concern of commenters that paying for SSMs or 
ASMs where necessary to preserve or create a quiet zone may pose some 
fiscal hardships for some communities. Although this rule will not cost 
in excess of $100 million in any year, and thus is not subject to the 
assessment requirements of the Unfunded Mandates Reform Act of 1995, 
FRA has made every effort to limit the burdens that this rule imposes 
and to concentrate those

[[Page 70620]]

burdens where the safety rationale is most compelling.

L. Time for Implementation

    Chicago respondents also argued that the time frame proposed for 
implementation of quiet zones was too short. The Illinois Commerce 
Commission projected that it would take ten years to implement the 
required safety measures. CATS Council of Mayors Executive Committee's 
estimate was as long as 15 years. They argued that the time it would 
take to do the work in more than 200 communities in the Chicago Region 
alone would overburden the railroad industry, tax Federal resources 
beyond their capacity to deliver, and be more of a burden than the 
railroad construction industry could handle within the required time 
frame. These arguments were generally based on the presumption that all 
crossings would need to be equipped with four-quadrant gate systems. 
Nevertheless, FRA gave careful consideration to this concern, and has 
provided significant additional time to implement quiet zones while 
also attempting to reduce the number of corridors for which 
supplementary or alternative safety measures will be required.

15. E.O. 15 Status

    Emergency Order 15, issued in 1991, requires the FEC to sound 
locomotive horns at all public grade crossings. The Emergency Order 
preempted state and local laws that permitted nighttime bans on the use 
of locomotive horns. Amendments to the Order did, however, permit 
establishment of quiet zones if supplementary safety measures were 
implemented at every crossing within a proposed quiet zone. The 
supplementary safety measures specified in the Order, although similar, 
are not the same as those contained in this Interim Final Rule. The 
SSMs and the conditions on their implementation contained in this rule, 
provide communities substantially greater flexibility in creating quiet 
zones than those in the Order. So as not to adversely affect Florida 
communities along FEC tracks by imposing different standards for 
establishing quiet zones than along other Florida rail lines or 
elsewhere in the Nation, FRA will rescind E.O. on December 18, 2004, 
the effective date of this rule. At that time, the provisions of this 
rule will apply to all grade crossings within the State of Florida. 
Some communities along the FEC (communities subject to E.O. 15) may 
wish to establish New Quiet Zones following the effective date of this 
rule. FRA is not at this time calculating the effect of silencing the 
train horn along that corridor because information gathered in response 
to the NPRM was not sufficient to make such estimate and because the 
actual rate of increase experienced during the period studied prior to 
issuance of E.O. 15 requires re-examination to determine whether it 
remains valid in light of changed circumstances. FRA will determine 
whether to apply a regional estimate as to the effect of silencing the 
train horn at E.O. 15 crossings based on comments submitted in response 
to this interim final rule or through supplementary fact finding prior 
to the rescission of E.O. 15. FRA will issue the necessary finding well 
before the effective date of this interim final rule.

16. Section-by-Section Analysis

Section 222.1 What Is the Purpose of This Regulation?

    This section describes the purpose of this regulation--to provide 
for safety at public highway rail grade crossings by regulating 
locomotive horn use at those crossings. In addition to regulating 
locomotive use at the crossings, the regulation provides an opportunity 
for the cessation of routine use of the locomotive horn at those 
crossings, while maintaining, at a minimum, the same level of safety as 
exists when horns are used.

Section 222.3 What Areas Does This Regulation Cover?

    This section describes the areas, or scope, of the regulation. The 
regulation prescribes standards for sounding of locomotive horns when 
locomotives approach and pass through public highway-rail grade 
crossings. The regulation also addresses standards under which 
locomotive horns are not sounded when locomotives approach and cross 
public crossings. The regulation does not cover the use of horns at 
private crossings except when those private crossings are within a 
quiet zone. For a further discussion of private crossings, see Sec.  
222.25.

Section 222.5 What Railroads Does This Regulation Apply To?

    This section describes the railroads to which this regulation 
applies. The regulation applies to every railroad with a number of 
listed exceptions. The regulation does not apply to (1) railroads 
exclusively operating freight trains only on track which is not part of 
the general railroad system of transportation; (2) passenger railroads 
that operate only on track which is not part of the general railroad 
system of transportation and which operate at a maximum speed of 15 
miles per hour; and (3) rapid transit operations within an urban area 
that are not connected to the general railroad system of 
transportation.
    In the NPRM, FRA proposed to not apply the rule to plant railroads 
and freight railroads which are not part of the general railroad system 
of transportation. FRA noted that these operations are typically low 
speed with small numbers of rail cars permitting relatively short 
stopping distances. Additionally, these operations typically involve 
roadway crossings with relatively low speed vehicular traffic. These 
reasons, together with FRA's historical basis for not making its 
regulations applicable to plant and non-general-system freight 
railroads led FRA to propose not to apply the rule to such operations. 
Since use of the locomotive horn is a matter within the scope of 
railroad operating rules (see 49 CFR Part 217), maintaining reasonably 
consistent policies of inclusion and exclusion appeared sensible. 
Omitting plant railroads from the scope of the section is intended to 
leave State authorities with continuing jurisdiction over the subject 
matter of the appropriate audible warnings to be used by such 
railroads.
    In the NPRM, FRA also discussed its basis for proposing to make the 
rule applicable to ``scenic'' or ``tourist'' railroads which are not 
part of the general system of railroad transportation. FRA took the 
position that since the rule deals directly with public grade 
crossings, it should apply to all tourist and scenic railroads with 
public grade crossings irrespective of whether they are part of the 
general system of railroad transportation. FRA took a similar position 
in its rule on grade crossing signal system safety, which applies to 
tourist and excursion railroads outside of the general system if they 
have attributes that make them non-insular, such as public grade 
crossings. See 49 CFR 234.3(c). The Association of Railway Museums, in 
opposing the inclusion of tourist and scenic railroads in what it 
termed as ``a general system rulemaking,'' stated that ``[i]f the 
operating characteristics which FRA has ascribed to plant and private 
freight railroads are sufficient to justify different treatment under 
the rule, they are certainly sufficient to justify different treatment 
of tourist/historic railroads.'' The commenter pointed out that FRA is 
required by statute to consider differences between tourist railroads 
and general system railroads, whereas there is no similar statutory 
requirement applicable to plant and ``private freight railroads.''
    FRA believes that there are significant differences between 
industrial railroads

[[Page 70621]]

and tourist railroads that warrant exclusion of the former and 
inclusion of the latter in this rule. The primary and obvious 
difference, of course, is the presence of passengers in tourist 
operations, which increases the number of people at risk of injury in 
highway-rail accidents. The operating environments are also quite 
different, with tourist operations more likely to achieve higher speeds 
and encounter higher speed highway traffic than plant railroads. 
Moreover, FRA has historically not applied its rules to plant railroads 
(see the discussion of FRA's policy on the exercise of its jurisdiction 
in these circumstances, 49 CFR, part 209, appendix A) for reasons not 
applicable to tourist operations. However, as a result of the comments, 
FRA has reviewed this section and is persuaded that low speed passenger 
service (i.e., at 15 miles per hour, or less) not on the general 
railroad system does not constitute a significant risk. Low speed 
service, together with relatively short trains, and comparatively light 
passenger cars permit significantly shorter stopping distances than 
fast, long, heavy freight trains. These conditions convinced FRA that 
such operations do not require the sounding of locomotive horns at this 
time. However, it should be noted that FRA may amend the rule in the 
future to include plant railroads or tourist railroads in the event 
that it determines that safety requires such action.
    Paragraph (3) of this section addresses the extent to which rapid 
transit operations are governed by this part. Under the Federal 
railroad safety laws, FRA has jurisdiction over all railroads except 
``rapid transit operations in an urban area that are not connected to 
the general railroad system of transportation.'' 49 U.S.C. 20102. Like 
the proposed rule, the interim final rule tracks the statutory 
provision, excluding from the rule's reach only those rapid transit 
operations not subject to FRA's jurisdiction, i.e., those not connected 
to the general system. However, shortly after issuance of the proposed 
rule, FRA issued an interpretive statement that explains what FRA 
believes ``connected to the general railroad system'' means. Statement 
of Agency Policy, 65 FR 42529 (2000); 49 CFR part 209, appendix A. FRA 
made clear that a passenger operation, even if rapid transit in nature, 
that shares the same track as a conventional railroad is subject to FRA 
jurisdiction on all shared track. FRA also made clear that highway-rail 
grade crossings traversed by a rapid transit operation and a 
conventional railroad that share a corridor but do not share track were 
sufficient connections to the general system to warrant FRA's exercise 
of jurisdiction over the rapid transit operation at the point of 
connection. 65 FR 42541. FRA pointed out that the rapid transit 
operation would be expected to observe FRA's rules concerning grade 
crossings that were then in effect, i.e., the rules on grade crossing 
signals and ditch lights. Id. (FRA's proposed policy statement had made 
this same point; see 64 FR 59058 (1999).) FRA's policy statement 
explains the logic behind this determination:

Certain types of connections the general railroad system will cause 
FRA to exercise jurisdiction over the rapid transit line to the 
extent it is connected. FRA will exercise jurisdiction over the 
portion of a rapid transit operation that is conducted as a part of 
or over the lines of the general system. * * * [W]here transit 
operations share highway-rail grade crossings with conventional 
railroads, FRA expects both systems to observe its signal rules. For 
example, FRA expects both railroads to observe the provision of its 
rule on grade crossing signals that requires prompt reports of 
warning system malfunctions. See 49 CFR part 234. FRA believes these 
connections present sufficient intermingling of the rapid transit 
and general system operations to pose significant hazards to one or 
both operations and, in the case of highway-rail grade crossings, to 
the motoring public. The safety of highway users of highway-rail 
grade crossings can best be protected if they get the same signals 
concerning the presence of any rail vehicles at the crossing and if 
they can react the same way to all rail vehicles (65 FR 42545; 49 
CFR part 209, app. A).

    This same logic clearly applies to audible warnings at highway-rail 
grade crossings: motorists are best protected if they receive the same 
warnings concerning the presence of rail vehicles at a crossing 
regardless of whether those vehicles are rapid transit or conventional 
rail. In light of FRA's July 2000 interpretive guidance that considers 
these crossings sufficient connections to warrant exercise of its 
jurisdiction, this interim final rule, which uses the same relevant 
language as the proposed rule, will apply to rapid transit operations 
that share grade crossings with conventional railroads in a common 
corridor, as well as to rapid transit operations that share track with 
conventional railroads.
    However, applying this rule to rapid transit operations may pose 
certain problems. The horns in use on such rapid transit trains may not 
be able to meet the standards for audible warning devices in 49 CFR 
229.129. Accordingly, new subsection (d) to Sec.  222.129 excludes 
rapid transit operations from the ``audible warning device'' 
requirements of that section, which governs the sound levels of 
locomotive horns on general system railroads. FRA seeks comment on what 
standards may be appropriate for the audible warning devices used by 
rapid transit systems subject to part 222. Other impacts of applying 
the rule would include the need to involve yet another entity in the 
creation and enforcement of quiet zones. However, true quiet could not 
be achieved without the involvement of all entities that operate trains 
over those crossings.
    Given the questions surrounding application of the rule in the 
shared corridor context, FRA solicits comments on this issue. Should 
FRA leave the applicability provisions of parts 222 and 229 as they 
are, i.e., inclusive of rapid transit operations in shared corridors? 
Or, should FRA amend the applicability provisions of part 222 and 229 
to exclude rapid transit operations that share highway-rail grade 
crossings with conventional operations but do not share trackage? If 
so, how can the rule's central purpose of achieving adequate train horn 
warnings at grade crossings be achieved, if those rapid transit 
operations would not be subject to the mandate to sound their horns? 
How would communities that have or wish to establish quiet zones 
achieve their goals if the rapid transit operations operating over 
shared corridors are not subject to the rule?

Section 222.7 What Is This Regulation's Effect on State and Local Laws 
and Ordinances?

    This section informs the public as to FRA's intention regarding the 
preemptive effect of this interim final rule. While the presence or 
absence of such a section does not conclusively establish the 
preemptive effect of a final or interim final rule, it informs the 
public concerning the statutory provisions which govern the preemptive 
effect of the rule and FRA's intentions concerning preemption. 
Paragraph (a) points out the preemptive provision contained in 49 
U.S.C. 20106, which provides that all regulations prescribed by the 
Secretary relating to railroad safety preempt any State law, 
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 a Federal law, regulation or order 
and that does not unreasonably burden interstate commerce. With the 
exception of a provision directed at an essentially local safety hazard 
that is not inconsistent with a Federal law, regulation or order and 
that does not unreasonably burden interstate commerce, 49 U.S.C. 20106

[[Page 70622]]

will preempt any State statutory or common law, local ordinance or 
State or local regulatory agency rule covering the same subject matter 
as the regulations contained in this interim final rule. See Norfolk 
Southern v. Shanklin, 529 U.S. 344 (2000) and CSX v. Easterwood, 507 
U.S. 658 (1993).
    Paragraph (b) makes clear the intention of FRA that by including 
SSMs and ASMs in this regulation (or by approving additional SSMs or 
ASMs subsequent to issuance of this interim final rule), FRA does not 
intend to preempt State law regarding use of those measures for traffic 
control. Individual States may, consistent with Federal Highway 
Administration regulations and the MUTCD, continue to determine whether 
specific SSMs or ASMs are appropriate for traffic control. State law 
and local ordinances concerning sounding of train horns in relation to 
the use of conventional crossing safety systems, SSMs and ASMs are, 
however, preempted. Thus, if a specific engineering improvement is 
approved as an SSM for purposes of this rule, and consistent with FHWA 
regulations and the MUTCD, a State has the discretion whether to accept 
its use for traffic control purposes. If a State decides that such SSM 
cannot be used within the State, such decision is not meant to be 
preempted by this rule--this interim final rule would not force State 
acceptance of an SSM. However, any State law or regulation relating the 
use of train horns to the SSM would be preempted by this rule.
    The interim final rule published today permits localities to 
establish quiet zones irrespective of any State law regarding sounding 
of train horns or establishment of whistle bans and quiet zones. This 
view differs from that which FRA stated in the preamble to the NPRM--
that the proposed rule ``does not confer authority on localities to 
establish quiet zones if state law does not otherwise permit such 
actions.'' Both the CPUC and the Florida Department of Transportation 
expressed the view that the rule should allow States to impose more 
stringent requirements for establishing quiet zones. Expressing an 
opposite view, the mayor of Middleburg Heights, Ohio is in favor of 
``empower[ing] the local elected officials to make the best decisions 
for their community. Local officials on the scene are more capable of 
judging any internal budgetary, safety or quality of life issues.'' The 
representative of the Metropolitan Council of Governments, representing 
two cities in Minnesota and two cities in North Dakota, points out that 
because North Dakota currently prohibits quiet zones, the Council of 
Governments wants the rule so as to be able to establish quiet zones. 
Counsel for the League of Wisconsin Municipalities, representing all of 
the cities and most of the villages in Wisconsin, stated that 
municipalities in Wisconsin are granted broad home rule powers and thus 
are concerned about the preemption of their authority to regulate the 
use of train horns within their communities. Wisconsin State 
Representative Miller expressed similar views. The County Commissioner 
of Olmstead County, Minnesota, testified to his opposition to 
additional preemption of State and local authority.
    While the commenters representing local government may prefer to 
have no regulation of their ability to institute quiet zones, the 
decision as to the regulatory body has already been made by Congress. 
The issue raised in the NPRM, however, is whether, despite issuance of 
this rule, States may prohibit or permit localities to establish quiet 
zones. FRA is rejecting the view posited in the NPRM that the rule does 
not confer authority on localities to establish quiet zones if State 
law does not otherwise permit such actions. A close review of the 
statutory language leads to the conclusion that Congress intended that 
local communities be the primary parties in establishing quiet zones as 
long as this is done in accordance with Federal rules. Moreover, there 
can be no doubt that such State laws would clearly be within the 
subject matter covered by this rule, and would therefore be preempted.

Section 222.9 Definitions

    This section defines various terms which are not widely understood 
or which, for purposes of this rule, have very specific definitions. 
This section defines the following terms:

``Administrator''
    This definition makes clear that when the term ``Administrator'' is 
used in the rule, it refers to the Administrator of the Federal 
Railroad Administration. It also provides that the Administrator may 
delegate authority under this rule to other Federal Railroad 
Administration officials.

``Alternative safety measure''

    This term was not included in the definition section of the NPRM. 
It is included in this section because of its unique meaning within 
this rule. The term ``alternative safety measure'' refers to a safety 
system or procedure established in accordance with this rule and which 
has been determined to be an effective substitute for the locomotive 
horn in the prevention of highway-rail casualties at specific highway-
rail grade crossings. All ASMs and SSMs listed as approved in 
appendices A and B have been approved by the Administrator. Section 
222.55 addresses how new SSMs and ASMs are approved. Such new SSMs and 
ASMs are approved by the Associate Administrator.
    ``Alternative safety measure'' should be read in conjunction with 
the definition of an SSM. Both SSMs and ASMs are safety systems or 
procedures determined to be an effective substitute for the locomotive 
horn in the prevention of highway rail casualties at highway-rail grade 
crossings. SSMs have been determined by the Administrator in appendix A 
to be effective substitutes for the horn at any grade crossing to which 
they are applied. Thus, the Administrator has determined that if, for 
example, four-quadrant gates are appropriately installed at a grade 
crossing, the warning and protections provided will at least equal that 
provided by the locomotive horn. Because these safety measures will 
compensate for the lack of the locomotive horn wherever they are used, 
FRA has not required prior approval for their use at specific 
locations. ASMs differ from SSMs in that they are capable of being an 
effective substitute for the locomotive horn, but can only be 
determined to be effective on a crossing-by-crossing basis. Because of 
that limitation, use of such ASMs requires prior approval of the 
Associate Administrator.
    Appendix B lists ASMs currently accepted for the Associate 
Administrator's review on an individual crossing-by-crossing basis.
    ``Associate Administrator'' means the Associate Administrator for 
Safety of the Federal Railroad Administration. The term also includes 
the Associate Administrator's delegate.
    ``Channelization device'' means one of a continuous series of 
highly visible vertical markers placed between opposing highway lanes 
designed to alert or guide traffic around an obstacle or to direct 
traffic in a particular direction. This term was defined in more detail 
in the NPRM--minimum height and distance requirements were listed. 
Rather than dictating such detail to the community installing the 
devices, the present definition states that design specifications are 
determined by the standard design specifications used by the 
governmental entity constructing the channelization device. However, 
any channelization device used shall comply with the MUTCD and should 
be in compliance with applicable guidelines of the American Association 
of State Highway and Transportation Officials. The definition thus 
makes

[[Page 70623]]

explicit that ``tubular markers'' and ``vertical panels'' as described 
in sections 6F.57 and 6F.58, respectively, of the MUTCD, are acceptable 
channelization devices for purposes of this part. This change is 
consistent with a comment submitted by Winter Park, Colorado in which 
the community requested more flexibility in the definition/design of 
channelization devices.
    ``Crossing Corridor Risk Index'' is a number reflecting the 
relative risk to motorists at grade crossings within a grade crossing 
corridor in which locomotive horns are routinely sounded. This number 
is derived by calculating the number of predicted collisions per year 
at each public grade crossing within a corridor of crossings. A risk 
index reflecting the predicted likelihood and severity of casualties 
resulting from those collisions for each crossing is then calculated. 
An average risk index for the entire group of crossings within the 
corridor is then calculated (by summing the risk index for each 
crossing and dividing the total by the number of crossings within the 
corridor). This average risk is the Crossing Corridor Risk Index. It 
reflects the present risk associated with a crossing corridor, before 
the level of risk changes due to silencing of locomotive horns or 
implementation of SSMs or ASMs. Details on determining the Crossing 
Corridor Risk Index are provided in Appendix D of this part.
    ``Diagnostic team'' means a group of knowledgeable representatives 
of parties in interest in a highway-rail grade crossing, organized by 
the public authority responsible for, or funding improvements at, the 
crossing, who, using crossing safety management principles, evaluate 
conditions at a grade crossing to make determinations and 
recommendations for the public authority concerning safety needs at 
that crossing. A diagnostic team can consist of the local traffic or 
highway engineer, and representatives of various parties including the 
local public works department, the railroad whose tracks are crossed, 
the State department of transportation, local law enforcement, and 
emergency responders. The diagnostic team, ideally having 
representatives of major interested parties, can evaluate a crossing 
from many perspectives and can make recommendations as to the safety 
needs at the crossing.
    ``Effectiveness rate'' is a number which indicates the 
effectiveness of a safety measure in reducing the probability of a 
collision at a public highway-rail grade crossing. Effectiveness rate 
is defined as a number between zero and one which represents the 
reduction of the probability of a collision at a public highway-rail 
grade crossing as a result of the installation of a safety measure when 
compared to the same crossing equipped only with conventional gates and 
lights. An effectiveness rate of zero indicates that the safety measure 
provides no reduction in the probability of collision. The safety 
measure is not effective at all. At the other extreme, a safety measure 
of one indicates that the safety measure is totally effective in 
reducing collisions. Grade separation would fall into the latter 
category--separating railroad tracks from the roadway is totally 
effective in reducing grade crossing collisions. Values between zero 
and one reflect the percentage by which the safety measure reduces the 
probability of a collision. For example, if a safety measure has an 
effectiveness rate of .75, it reduces the probability of a collision at 
the crossing by 75 percent. Conversely, if a safety measure has only an 
effectiveness rate of .05, it would reduce the probability of a 
collision by only 5 percent.
    The few comments FRA received on this topic were negative. The 
Illinois Commerce Commission, while not objecting to the definition 
itself or concept, complained that the ``ratios are arbitrary guesses 
which have little empirical value.'' The CPUC similarly felt that there 
are insufficient data to assign effectiveness rates. They stated that 
instead ``[t]he effectiveness of an SSM * * * should be evaluated by 
the applicant, the railroad, and the regulating state agency for each 
individual crossing in a quiet zone.''
    FRA recognizes that, to the extent effectiveness estimates have 
been derived from limited data, they should not be treated as 
sacrosanct. Further, individual crossing characteristics may be more or 
less compatible with realizing the benefits of particular safety 
measures. Accordingly, the concept of alternative safety measures is 
incorporated into this rule with the expectation that diagnostic teams 
will be able to estimate effectiveness with a higher degree of 
refinement, working (as relevant) from the benchmark levels provided 
for supplementary safety measures. The expertise available at the State 
level will contribute to this process of refinement. On the other hand, 
FRA is not comfortable with the idea of proceeding without benchmark 
values. Far from being arbitrary guesses, the benchmark values take 
into consideration and reflect substantial information available at the 
national level, and they have been exposed to the scrutiny of public 
comments in this proceeding. Since they are conservative in nature, 
reliance upon them in the context of application of SSMs to all 
crossings in a quiet zone should be entirely appropriate in virtually 
every case. The individual judgments of local public authorities or 
State level officials cannot be assumed, a priori, to be superior to 
these benchmarks, particularly where the personnel involved have no 
experience in the use of particular safety measures (many of which are 
new to the realm of highway-rail crossing safety).\12\ Balancing these 
concerns, FRA has attempted to craft a structure that fosters 
consistency while inviting attention to project-specific considerations 
and enabling the use of professional engineering judgment where 
warranted.
---------------------------------------------------------------------------

    \12\ See Report to Congress entitled North Carolina ``Sealed 
Corridor'' Phase I U.S. DOT Assessment Report (FRA Office of 
Railroad Development, September 2001), which describes most of the 
pioneering work undertaken by the State of North Carolina and the 
Norfolk Southern Railroad (with FRA funding assistance) in support 
of the State's high-speed rail program.
---------------------------------------------------------------------------

    ``FRA'' means the Federal Railroad Administration.
    ``Grade Crossing Inventory Form'' means the U.S. DOT National 
Highway-Rail Grade Crossing Inventory Form, FRA Form F6180.71. This 
form is available through the FRA's Office of Safety, or on FRA's Web 
site at http://www.fra.dot.gov.
    ``Locomotive'' means a piece of on-track equipment other than hi-
rail, specialized maintenance, or other similar equipment--(1) With one 
or more propelling motors designed from moving other equipment; (2) 
with one or more propelling motors designed to carry freight or 
passenger traffic or both; or (3) without propelling motors but with 
one or more control stands. This definition is being added as a result 
of a suggestion from the AAR.
    ``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 by many people 
to denote the audible warning device mounted on a locomotive or control 
cab car.
    ``Median'' means the portion of a divided highway separating the 
travel ways for traffic in opposite directions.
    ``MUTCD'' means the Manual on Uniform Traffic Control Devices 
issued by the Federal Highway Administration.
    ``Nationwide Significant Risk Threshold'' means a number, 
calculated on a nationwide basis, which reflects the average level of 
risk at public

[[Page 70624]]

highway-rail grade crossings equipped with lights and gates and at 
which locomotive horns are sounded. For purposes of this rule, a risk 
level above the Nationwide Significant Risk Threshold represents a 
significant risk with respect to loss of life or serious personal 
injury. The Nationwide Significant Risk Threshold is calculated in 
accordance with the procedures in Appendix D of this part. In 
determining this risk threshold, FRA determines the average level of 
risk at public highway-rail grade crossings equipped with lights and 
gates and at which locomotive horns are sounded. This data pool in 
essence provides the starting point for communities in establishing 
quiet zones. Because every grade crossing in a New Quiet Zone must, at 
a minimum, be equipped with conventional lights and gates, a community 
will be able to determine the risk level associated with the crossings 
within the proposed quiet zone.
    ``New Quiet Zone'' means a segment of rail line within which is 
situated one, or a number of consecutive public highway-rail crossings 
at which routine sounding of locomotive horns is restricted pursuant to 
this part and which does not qualify as a Pre-Rule Quiet Zone.
    ``Non-traversable curb'' means a highway curb designed to 
discourage a motor vehicle from leaving the roadway. FRA is not 
specifying design details for such curbs beyond requiring, that they be 
at least six inches but not more than nine inches high. Such curbs are 
often combined with median islands at least two feet wide. If the curbs 
are not equipped with reboundable, reflectorized vertical markers, 
paint and reflective beads should be applied to the curb for night 
visibility. Additional design specifications are determined by the 
standard traffic design specifications used by the governmental agency 
constructing the curb. The term ``non-traversable curb'' is replacing 
the term ``barrier curb'' as proposed in the NPRM due to its greater 
acceptance in the highway community. FRA has also deleted from the rule 
the definition of ``mountable curb'' because that term is not being 
used in the rule.
    ``Power-out indicator'' means a device which is capable of 
indicating to trains approaching a grade crossing equipped with an 
active warning system whether commercial electric power is activating 
the warning system at that crossing. This term includes remote health 
monitoring of grade crossing warning systems if such monitoring system 
is equipped to indicate power status.
    ``Pre-Rule Quiet Zone'' means a segment of a rail line within which 
is situated one, or a number of consecutive public or private highway-
rail crossings at which State statutes or local ordinances restricted 
the routine sounding of locomotive horns, or at which locomotive horns 
did not sound due to formal or informal agreements between the 
community and the railroad or railroads, and such statutes, ordinances 
or agreements were in place and enforced or observed as of October 9, 
1996 and on December 18, 2003. As proposed, this definition includes 
quiet zones enforced or observed as of the date of passage of Public 
Law 104-264, which amended 49 U.S.C. 20153 to require the Secretary to 
take into account the interest 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. FRA reads the statute 
as requiring FRA to be particularly solicitous of communities that had 
restrictions in effect at the time of the 1996 enactment. FRA has added 
the requirement that the ordinance or agreement was observed or 
enforced as of the date of publication of this interim final rule 
because it would make little sense to reinstate a ban abandoned by the 
community (or determined to be inconsistent with State law) and because 
use of information from the more recent date will permit FRA to achieve 
greater certainty as to the status of bans and eligibility for Pre-Rule 
Quiet Zone status. In particular, FRA has noted some year-to-year 
variability in the no-whistle policies observed in Illinois during the 
1990s; and achieving certainty as to the status of individual line 
segments has proven much more difficult than FRA anticipated in issuing 
the proposed rule.
    ``Private highway-rail grade crossing'' means, for purposes of this 
part, a highway-rail at grade crossing which is not a public highway-
rail grade crossing. When viewed in light of the definition of public 
highway-rail grade crossings, a private crossing is a crossing where a 
private roadway crosses one or more railroad tracks at grade, and at 
which a public authority does not maintain the roadway on either side 
of the crossing. References in this rule to ``private grade crossing'' 
or ``private crossing'' refer to a private highway-rail grade crossing.
    ``Public authority'' means the public entity responsible for safety 
and maintenance of the roadway that crosses the railroad tracks at a 
public highway-rail grade crossing. This term includes the traffic 
control authority or law enforcement authority, or the governmental 
jurisdiction having responsibility for motor vehicle safety at the 
crossing.
    ``Public highway-rail grade crossing'' means, for purposes of this 
part, a location where a public highway, road, or street, including 
associated sidewalks or pathways, crosses one or more railroad tracks 
at grade. In the event a public authority maintains the roadway on at 
least one side of the crossing, the crossing is considered a public 
crossing for purposes of this part. The second sentence of this 
definition is often included in a definition of public grade crossing, 
but was inadvertently omitted from the NPRM. References in this rule to 
``public grade crossing'' or ``public crossing'' refer to a public 
highway-rail grade crossing.
    ``Quiet Zone'' means a segment of a rail line, within which is 
situated one or a number of consecutive public or private highway-rail 
crossings at which locomotive horns are not routinely sounded. This 
definition has been modified slightly from that proposed in the NPRM. 
The phrase ``locomotive horns may not be routinely sounded'' has been 
changed to ``locomotive horns are not routinely sounded'' to more 
effectively indicate the non-permissive nature of the ban on routine 
sounding of horns within the quiet zone. Additionally, ``private 
crossings'' has been added to the definition in recognition that a 
quiet zone may have a combination of both public and private crossings 
at which routine horn use is prohibited.
    ``Quiet Zone Risk Index'' means a measure of risk to the motoring 
public which reflects the Crossing Corridor Risk Index for a quiet 
zone, after adjustment to account for (1) increased risk due to lack of 
locomotive horn use at the crossings within the quiet zone (if horns 
are presently sounded at the crossings), and (2) reduced risk due to 
implementation, if any, of SSMs and ASMs within the quiet zone. The 
Quiet Zone Risk Index is calculated in accordance with the procedures 
in Appendix D of this part. The Quiet Zone Risk Index is thus a measure 
of risk at crossings within the quiet zone after all adjustments to 
risk have been made. This measure is necessary in comparing the risk 
level to the Nationwide Significant Risk Threshold.
    ``Railroad'' means any form of non-highway 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

[[Page 70625]]

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.
    ``Relevant collision'' means a collision at a highway-rail grade 
crossing between a train and a motor vehicle, excluding the following: 
a collision resulting from an activation failure of an active grade 
crossing warning system; a collision in which there is no driver in the 
motor vehicle; or a collision where the highway vehicle struck the side 
of the train beyond the fourth locomotive unit or rail car. The term 
``relevant collision'' has been included in this rule to provide a 
basis for reviewing the safety history at a crossing while ensuring 
that collisions not relevant to the direct issue of motorist decision-
making are omitted from the analysis.
    ``Supplementary safety measure'' (SSM) 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 
responsible for safety at the highway-rail grade crossing, 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 supplementary safety measures.
    ``Waiver'' means a temporary or permanent modification of some or 
all of the requirements of this part as they apply to a specific party 
under a specific set of facts. Waiver does not refer to the process of 
establishing quiet zones or approval of quiet zones in accordance with 
the provisions of this part.
    ``Wayside horn'' means a stationary horn (or device designed to 
produce a sound resembling a horn) located at a highway rail grade 
crossing, designed to provide, upon the approach of a locomotive or 
train, audible warning to oncoming motorists of the approach of a 
train.

Section 222.11 What Are the Penalties for Failure To Comply With This 
Regulation?

    This section, which has not changed from that proposed in the NPRM, 
identifies the civil penalties that FRA may impose upon any person, 
including a railroad that violates any requirement of this part. The 
penalty provision parallels penalty provisions included in many other 
safety regulations issued by FRA. Essentially, any person who violates 
any requirement of this part or causes the violation of any such 
requirement will be subject to a civil penalty of at least $500 and not 
more than $11,000 per violation. Civil penalties may be assessed 
against individuals only for willful violations, and where a grossly 
negligent violation or a pattern of repeated violations creates an 
imminent hazard of death or injury to persons, or causes death or 
injury, a penalty not to exceed $22,000 per violation may be assessed. 
In addition, each day a violation continues will constitute a separate 
offense. (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.) Furthermore, a person may be subject to 
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully 
falsifying reports required by these regulations. FRA believes that the 
inclusion of penalty provisions for failure to comply with the 
regulations is important in ensuring that compliance is achieved. The 
interim final rule includes a schedule of civil penalties as Appendix G 
to this part. Because the penalty schedule is a statement of agency 
policy, notice and comment was not required prior to its issuance. See 
5 U.S.C. 553(b)(3)(A).
    New Jersey DOT requested that FRA clarify this section ``to assure 
one that the application of a safety measure such as an audible warning 
device is not subject to civil or criminal penalties.'' While the 
meaning of this comment is not clear, FRA intends that the routine 
sounding of a locomotive horn in a quiet zone will subject the railroad 
to civil penalties, as would not sounding the horn at a public crossing 
outside of a quiet zone.

Section 222.13 Who Is Responsible for Compliance?

    This section is intended to make clear that any person, including 
but not limited to a railroad, 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.

Section 222.15 How Does One Obtain a Waiver of a Provision of This 
Regulation?

    This section governs the process for obtaining a waiver from a 
provision of this regulation. There was confusion on the part of some 
commenters regarding the meaning and purpose of waivers. Some 
commenters incorrectly considered waivers to be synonymous with 
exceptions from the requirement to sound the horn. In an effort to 
further clarify this section, FRA has added ``waiver'' to the list of 
defined terms in section 222.9. It is defined as ``a temporary or 
permanent modification of some or all of the requirements of this part 
as they apply to a specific party under a specific set of facts. Waiver 
does not refer to the process of establishing quiet zones or approval 
of quiet zones in accordance with the provisions of this part.''
    FRA has historically entertained waiver petitions from parties 
subject to 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

[[Page 70626]]

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 any 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 section 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, by delegation, the Administrator) 
the authority to waive in whole or part any requirement of section 
20153 (with certain limited exceptions) if it is determined not to 
contribute significantly to public safety. FRA thus has decided 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 requires 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.
    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 users will not be diminished. The 
Administrator may grant the waiver subject to any necessary conditions 
required to maintain public safety.

Section 222.21 When Must a Locomotive Horn Be Used?

    Paragraph (a) of this section addresses the duty to sound the 
locomotive horn when approaching and passing through a public highway-
rail grade crossing. The locomotive horn shall be sounded when such 
locomotive or lead car is approaching and passes through each public 
highway-rail grade crossing. This paragraph also requires that sounding 
of the horn be in the pattern of two long, one short, and one long 
blast be initiated at the place specified in paragraph (b) of the 
section and that the pattern be repeated or prolonged until the 
locomotive or train occupies the crossing. This paragraph also states 
that the pattern may be varied as necessary where crossings are spaced 
closely together.
    FRA proposed to adopt the industry standard pattern for sounding of 
horns at grade crossings. FRA received a number of requests that we 
define what ``long'' and ``short'' horn blasts are. The apparent intent 
of the commenters is to ensure that the locomotive horn not be sounded 
excessively when entering a grade crossing. It is clear that some 
engineers at some times ``lean on the horn'' for longer periods than is 
common in the industry. Despite this, the vast majority of engineers 
apply the locomotive horn appropriately. Imposing strict time 
requirements for the sound pattern would impose unrealistic limits on 
engineers and add to their already full workload. The Florida East 
Coast Railway recommended that the horn pattern be left up to the 
individual railroad. While some locomotive horns can be preprogrammed 
with specific horn sequences, FRA will not be requiring such horns, nor 
has a need for them yet been shown. FRA is thus retaining the proposed 
language of ``long'' and'short'' blasts. FRA is also leaving to the 
railroad or individual engineer the decision as to how to vary the horn 
pattern when crossings are spaced closely together. Such decisions have 
been made by these parties for many years, and there has been no 
showing that there is a need to alter those determinations.
    Paragraph (b) of the NPRM addressed the location at which the 
locomotive horn needs to begin being sounded. The basic premise of this 
section as proposed in the NPRM was that the locomotive horn should be 
sounded no less than 20, nor more than 24 seconds in advance of a grade 
crossing, but in no event could the horn be sounded more than \1/4\ 
mile in advance of the crossing.
    Research has shown that the effect of a locomotive horn sounded at 
a distance greater than \1/4\ mile from a crossing is attenuated to the 
extent that it does not provide warning to the motorist. The NPRM 
relied on the presence of whistle boards to notify the engineer when to 
sound the horn. Thus the proposal went into great detail regarding the 
present location of whistle boards and adjusting the location of 
whistle boards in the future. However, the BLE, representing the 
majority of railroad engineers in the country, testified that engineers 
did not need variably-placed whistle boards to indicate the proper 
location at which to sound horns. The BLE testified that engineers 
could provide a time-based warning if asked to do so. As a result, FRA 
has revised paragraph (b) to simply provide a range of time between 
which the locomotive horn must be sounded in advance of a grade 
crossing, while retaining the outside limit of \1/4\ mile.
    As noted above, FRA proposed that the horn be sounded at least 20, 
but not more than 24 seconds, before the locomotive enters the 
crossing. This proposal generated a number of comments, the majority of 
which objected that the proposal required the horn to be sounded for an 
excessive period of time. Missouri's Division of Motor Carrier and 
Railroad Safety stated that the ``range of 20 to 24 seconds will be 
difficult for engineers to determine when not traveling near maximum 
authorized speed.'' The agency recommended a minimum of 15 seconds, 
which provides, according to the agency, a 10 second margin. The 
Commissioner of the City of Aventura, Florida stated that 20 seconds 
may be acceptable during the day, but is unreasonable at night. The 
Commissioner suggested 10 seconds of warning during nighttime hours. 
The Florida East Railway said that it wasn't aware of technology to 
enable a train moving at less than maximum authorized speed to properly 
blow the horn within 20 to 24 seconds. The FEC recommended further 
thought on the subject. The FEC further stated that if FEC train speed 
is 60 miles per hour, the one-quarter mile limit only provides for 15 
seconds warning rather than 20 to 24 seconds warning. The FEC is 
correct, and as noted below, that is the desired result.
    As a result of comments received and the results of its research on 
this issue, FRA has revised the proposal to provide that the locomotive 
horn be sounded at least 15 seconds, but no more than 20 seconds, 
before the locomotive enters the crossing, but in no event shall a 
locomotive horn sounded in accordance with paragraph (a) be sounded 
more than one-quarter mile in advance of a public highway-rail grade 
crossing. This provision as revised recognizes that establishing only a 
set location at which horns must be sounded (as is the case under many 
present State laws), has the potential to disrupt local communities 
without affecting the warning provided to the motorist. Because a fixed 
location for sounding of a horn results in differing periods of warning 
depending on the speed of the train, FRA chose to

[[Page 70627]]

eliminate the traditional fixed point at which the locomotive horn 
needs to be sounded. Rather, the length of time of the warning is the 
operative factor as to when to begin sounding the horn. FRA is 
providing the locomotive engineer a range of 15 to 20 seconds in 
advance of the crossing in which to sound the horn. This provision will 
prevent much unnecessary disruption to surrounding communities. Under 
present law in many States, a train traveling at 15 miles per hour 
would sound its horn for 60 seconds (over a full quarter mile) if 
required to initiate the sounding one-quarter mile in advance of the 
crossing. Under this rule, such a train traveling at 15 miles per hour 
would sound its horn for 15 to 20 seconds, but would only sound it over 
a distance of from 330 feet to 440 feet. Ample warning is provided the 
motorist while preventing unnecessary noise among the surrounding 
community. At the other end of the spectrum, a train traveling at 79 
miles per hour travels more than four tenths of a mile in 20 seconds, 
and thus would only sound its horn for less than 12 seconds under this 
rule. It is clear that excessive horn noise would be generated if the 
horn were to be sounded for a full 20 seconds, since the horn sound is 
not effective as a warning beyond one-quarter mile. Thus, as proposed 
in the NPRM, FRA is limiting the sounding of the horn to a maximum of 
one-quarter mile in advance of a crossing, regardless of train speed. 
Sound diminishes at a rate of approximately 7.5 dB(A) for each doubling 
of distance. Thus, the sound from a locomotive horn registering 
100dB(A) at 100 feet in front of the locomotive will have diminished to 
roughly 75 dB(A) at one-quarter mile in front of the locomotive. That 
distance is near the outer margin of utility in terms of alerting the 
motorist to oncoming trains at that crossing.

Section 222.23 How Does This Regulation Affect Sounding of a Horn 
During an Emergency or Other Situations?

    Paragraph (a)(1) of this section is meant to make clear that a 
locomotive engineer may sound the locomotive horn in emergency 
situations. Notwithstanding any other provisions of the rule, a 
locomotive engineer may sound 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. Thus, establishment of a quiet zone and the limits 
established on the length of time a horn may be sounded, are not 
intended to prevent the engineer from using his or her discretion in 
emergency situations. CPUC recommended that FRA add ``or at the 
discretion of the locomotive engineer'' at the end of this paragraph 
because it is claimed that the proposed language places a burden on the 
engineer to prove that an emergency situation existed which would have 
resulted in imminent injury, death or property damage. FRA agrees that 
the engineer should not have the burden to prove that an emergency 
existed. We believe the present language is sufficiently clear to 
relieve the engineer of that burden. The BLE expressed ``complete 
agreement'' with the proposed language, as does the Mayor of Boca 
Raton, Florida. With the exception of minor proposed language change, 
the AAR also agrees with the proposal.
    The AAR suggested that the phrase ``[N]othing in this part'' be 
replaced with ``A railroad shall not be prohibited or restricted from 
using'' in paragraph (b). The AAR claims that ``FRA does not go far 
enough in addressing the railroads' need to sound horns for purposes 
other than to warn the public of trains approaching grade crossings or 
to warn roadway workers. Locomotive engineers use horns in other 
circumstances, such as when approaching passenger stations and to alert 
railroad employees to the pending movement of a train. It would be 
unsafe to prohibit the use of locomotive horns for such purposes. 
Consequently, FRA should specifically prevent States and localities 
from restricting railroads from sounding the locomotive horn for 
railroad operating purposes.'' While the substance of AAR's proposal 
has merit, the scope of this rulemaking is limited to locomotive horn 
use at grade crossings. Extending the regulatory framework beyond this 
limited area would require further rulemaking. To avoid 
misunderstanding regarding the subject matter subsumed by the rule, 
however, FRA has added the words, ``or where required for other 
purposes under the railroad operating rules'' at the end of this 
section.
    This paragraph has been further changed slightly from the NPRM. The 
phrase, ``including establishment of quiet-zones, or limits on the 
length of time in which a horn may be sounded'' has been added to this 
paragraph to make clear that nothing in the rule, including the 
creation of quiet zones, or rules setting limits on where and when 
horns are sounded, shall prevent an engineer from using the horn as a 
warning in an emergency situation.
    Paragraph (a)(2) is intended to make clear that while the rule does 
not preclude the sounding of the locomotive horn in emergency 
situations, the rule also does not impose a legal duty to sound the 
locomotive horn in such situations. It is FRA's intent that this 
section, and the rule as a whole, subsume the subject matter of 
sounding the locomotive horn at public grade crossings, including the 
sounding of locomotive horns within quiet zones during emergency and 
non-emergency situations. Absent the paragraph, it is conceivable that 
a railroad or engineer or both, could be found liable for damages 
resulting from a collision with an automobile at a grade crossing under 
the theory that the horn should have been sounded even though the 
crossing is within a quiet zone. It is the intent of FRA, that once a 
public authority creates a quiet zone pursuant to this part, the 
railroad and locomotive crew are relieved from any legal duty to sound 
the locomotive horn in an emergency situation. The rule's dual purpose 
of ensuring safety and reducing train horn noise where safety can 
reasonably be assured without horn use would be defeated if railroads 
felt compelled to make liberal use of the train horn in quiet zones 
merely to avoid being sued for not using it. Moreover, railroads and 
their crews would be placed in an untenable legal position, being 
prohibited from routine sounding of the horn but possibly being held 
liable for not sounding the horn if a collision does occur in a quiet 
zone and a plaintiff argues that the horn should have been sounded. Of 
course, we are confident that railroads and their engineers, given 
their very strong interest in avoiding crossings accidents, will err on 
the side of caution in using their discretion to determine which 
situations are truly emergencies warranting use of the horn.
    In paragraph (b), the NPRM provided that nothing in 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 either 49 CFR 234.105 
(activation failure), 234.106 (partial activation), or 234.107 (false 
activation). This makes clear that locomotive horns must still be 
sounded in accordance with the listed regulations irrespective or the 
existence of a quiet zone. Such provisions have been established to 
provide warning to railroad employees working on and along the track 
and to motorists when grade crossing warning

[[Page 70628]]

systems malfunction. The BRS expressed their support for this 
paragraph, stating that it is ``imperative that this remain unchanged. 
An important element of safety for roadway workers is the warning 
conveyed by the engineer.'' With the exception of the additional 
language pertaining to railroad operating rules discussed above, the 
paragraph remains unchanged from the NPRM.

Section 222.25 How Does This Rule Affect Private Highway-Rail Grade 
Crossings?

    This section clarifies the manner in which this rule affects 
private crossings. (Section (f) of the Act explicitly gives discretion 
to the Secretary as to the question of whether to subject private 
highway-rail grade crossings to the regulation.) FRA has determined 
that exercising its jurisdiction in a limited manner regarding these 
crossings is the appropriate course of action.
    Although the subject of private crossings was discussed in the 
preamble to the NPRM, a specific regulatory section was not included. 
In an effort to clearly set out the manner in which the rule affects 
private crossings, this new Sec.  222.25 is included in the rule.
    Although only a relatively small number of commenters addressed the 
issue of the rule's applicability to private crossings, the majority of 
commenters suggested that the rule should apply to private crossings to 
some extent. For example, both the Missouri Department of Economic 
Development (MDED) and the CPUC recommended that the proposed rule 
apply to private crossings in the same manner as public crossings. The 
MDED explained that many private highway-rail grade crossings, 
especially those in rural areas where trains usually travel at speeds 
near the maximum authorized, have hardly any warnings indicating the 
presence of the crossings. The CPUC explained that some private 
crossings carry very high volumes of truck or employee automobile 
traffic at particular times. The CPUC also pointed out that California 
law on the use of locomotive horns at crossings applies to all 
crossings, both public and private, and that no empirical data exists 
that justifies reduced protection for private crossings in quiet zones. 
Accordingly, the CPUC also recommended that entities seeking to 
establish quiet zones should be required to provide notice of their 
intent to all owners of private property within the proposed zone.
    Similarly, the New York Department of Transportation explained that 
almost half the grade crossings in New York are private, but many 
function essentially as public crossings, with free access by anyone at 
any time of the day. Accordingly, the New York DOT suggested that the 
proposed rule apply to high-risk private crossings, as well as public 
crossings. The agency suggested that the determination of whether a 
private crossing was a high risk crossing could be based on a 
calculation similar to the New Hampshire Index, an analysis of train 
and highway volume. Alternatively, the agency suggested that a more 
complex review considering additional factors such as highway and train 
speed, as well as the type of railroad operations involved (e.g., 
intercity, commuter, freight, etc.) might be appropriate.
    The UTU indicated it has ``a problem with not requiring improved 
protection for private crossings in a quiet zone.'' The UTU expressed 
the view ``that not to require a private crossing or crossings within 
the quiet zone to be similarly equipped as a public crossing will allow 
an unsafe condition to exist.'' Similarly, the CPUC is in favor of 
``applying the standards to all railroads, public, private, plant, 
because the motoring public cannot distinguish these categories.''
    Although not recommending that the proposed rule apply to private 
crossings in the same manner as public crossings, two local governments 
suggested that to ensure private crossings in quiet zones are safe, the 
rule should require advance warning signs advising users of the 
crossings that train horns will not be sounded. In addition, these 
commenters, the City of Moorhead, Minnesota, and the City of Fargo, 
North Dakota, suggested that the provision of the proposed rule 
addressing implementation of quiet zones, be revised to specifically 
indicate that railroad operations in established quiet zones should 
cease routine use of horns at private crossings, as well as public 
crossings.
    FRA understands the concern expressed by those commenters 
recommending that private crossings be addressed in the same manner as 
public crossings. FRA remains unconvinced that private crossings at 
this time should be subject to Federally imposed mandatory sounding of 
horns. In expressing this view in the NPRM, FRA stated that 
``[A]lthough 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.'' As noted by the CPUC, 
California State law requires use of horns at private crossings. We 
note that FRA, by not applying this rule to private crossings which are 
not in quiet zones, has left States free to require the sounding of 
locomotive horns if it is determined by the appropriate State authority 
that it is appropriate given the circumstances within that State. 
Similarly, to the extent they are not constrained by Federal law 
(within a quiet zone) or State law, railroads remain free to elect 
whether to sound the horn at private crossings.
    An FRA requirement to sound the horn at all private crossings would 
in some respects have more impact than the requirement to sound the 
horn at public crossings. By requiring the latter, Congress merely 
Federalized what had been uniform practice throughout the United 
States. Horns have sounded at public crossings for many decades 
throughout the country, first by railroad rules, and later based on 
State law. Horn use at private crossings, has, however, generally not 
been regulated by the States (presumably because there was less need 
for such requirement at private crossings), and horn use has thus been 
left up to railroads. Thus, if FRA were to require horn use at each of 
the more than 98,000 private crossings throughout the nation, the 
environmental impact in terms of increased noise would be significant. 
It is unclear at this time, based on the data available, if there would 
be a corresponding increase in safety as a result. Therefore, other 
than its effect on private crossings within quiet zones, the rule is 
not meant to affect present State laws or orders, or private 
contractual or other arrangements regarding the routine sounding of 
locomotive horns at private highway-rail grade crossings. See Sec.  
222.7.
    FRA does agree that evaluation of the use of the train horn at 
private crossings merits further study. Because private crossings are 
generally not controlled by State transportation or regulatory 
officials, the current national inventory does not provide details 
regarding key data elements required to evaluate safety at individual 
private crossings to the same extent possible at public crossings. 
Clearly, further information is needed concerning the potential utility 
of using train horns at private crossings and the collateral issues 
such a policy might entail (including the effects on crew noise dose). 
FRA will pursue these issues in the context of a forthcoming

[[Page 70629]]

review of safety at private highway-rail crossings.
    There was also general agreement among commenters of the need to 
consider safety at private crossings located within proposed quiet 
zones. We agree. Although many private crossings do not present high 
risk in comparison with active public crossings (e.g., entrances to 
individual residences; lightly used agricultural crossings), other 
private crossings may present considerable risk. In some cases, 
railroads instruct crews to sound the horn at particular private 
crossings where risk is perceived to be high; in other cases train 
horns provide effective warning as an accident of geography (i.e., 
where the private crossing is sandwiched between two nearby public 
crossings). Although, as noted, the statute does not mandate that FRA 
require use of the train horn at private crossings, it is imperative 
that actions to facilitate establishment of quiet zones not 
significantly increase risk at these crossings, and that their presence 
in the midst of public crossings not be allowed to defeat the purpose 
of a quiet zone.
    This section specifically states that this rule does not require 
the routine sounding of locomotive horns at private highway-rail grade 
crossings. Although FRA has jurisdiction over locomotive horn use at 
private crossings based on both 49 U.S.C. 20153 and 49 U.S.C. 20103, it 
has not exercised that jurisdiction at this time except as to the use 
of horns at private crossings within quiet zones.
    Paragraph (a) of this section provides that private highway-rail 
grade crossings may be included in a quiet zone. To do otherwise would 
defeat the purpose of such a quiet zone. Paragraph (b) provides that 
private grade crossings which allow access to the public, or which 
provide access to active industrial or commercial sites, may be 
included in a quiet zone only if a diagnostic team evaluates the 
crossing to determine whether the institution of the quiet zone will 
significantly increase risk at the private crossing. The crossing must 
then be equipped or treated in accord with the recommendations of such 
team. A diagnostic team is composed of a group of knowledgeable 
representatives of the parties of interest in a grade crossing. 
Typically, the team would be composed of railroad personnel, public 
safety or law enforcement representatives, and engineering personnel 
for the public authority. In appendix F, FRA has set forth crossing 
safety issues for the diagnostic team to consider. The diagnostic team, 
using crossing safety management principles, should evaluate conditions 
at the grade crossing to make determinations and recommendations 
concerning safety needs at that crossing. The diagnostic team can 
evaluate a crossing from many perspectives and can make recommendations 
as to what improvements might be needed to compensate for the lack of a 
train horn at the crossing. FRA will expect that the results of 
diagnostic review will be reflected in the filings submitted under 
Sec.  222.39, so that FRA can determine the appropriateness of the 
proposed action.
    The following options should be available if the diagnostic team 
determines that the private crossing could experience increased 
significant risk as a result of quiet zone implementation: (1) The 
public authority ``adopts'' the crossing by agreement with the holder 
or through condemnation and the crossing is then included in the 
corridor-based risk-reduction program; (2) the crossing is closed; or 
(3) safety improvements are implemented that address increased risk at 
that crossing, as evaluated by the diagnostic team.
    FRA does not believe it is necessary to specify a means of 
resolving any differences within the diagnostic team. In the event of 
disagreement, the contrasting views can be documented and included in 
the public authority's submission to FRA. If necessary, FRA will 
undertake additional fact finding before accepting or rejecting the 
proposed course of action. FRA expects public authorities to make these 
determinations in the first instance; FRA's role is to determine 
whether these authorities have considered the grade crossing safety 
issues set forth in the appendix and have stated an accurate and 
reasonable basis for their determinations.
    This rule does not specify the financial responsibility of parties 
for safety improvements at private crossings. Responsibility will be 
determined under normal principles of property law and based upon 
whatever contracts and cooperative agreements may be entered into by 
the parties. At private crossings, the holder of the right to cross has 
normal common law obligations regarding the safe passage of employees 
and guests; and the community as a whole has an interest in a quiet 
environment. It is expected that the private crossing holder and the 
public authority would cooperate to effect any necessary improvements, 
with the railroad assuming practical responsibility for maintenance of 
any automated warning systems at the crossing. (Allocation of expense 
between the railroad and the crossing holder might be further 
influenced by any existing contractual arrangements between them.) In 
the case of a failure of parties to agree on new arrangements, the 
public authority might elect to adopt the roadway (using condemnation 
authority as necessary), in which case the crossing would be treated as 
public in nature.
    Paragraph (c) of this section establishes that the private 
crossings within a quiet zone must at a minimum be equipped with 
crossbucks and ``STOP'' signs conforming to MUTCD standards together 
with advance warning signs in compliance with Sec.  222.35(c).

Section 222.33 Can Locomotive Horns Be Silenced at an Individual Public 
Highway-Rail Grade Crossing Which Is Not Within a Quiet Zone?

    This section addresses the situation in which locomotive horns need 
not be sounded even though the crossing is not part of a quiet zone. A 
railroad operating over an individual public highway-rail grade 
crossing may, at its discretion, cease the sounding of locomotive horns 
under certain conditions. Locomotive horns need not be sounded when the 
locomotive speed is 15 miles per hour or less and train crewmembers or 
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. FRA anticipates that this section will 
be used primarily at crossings located in industrial areas where 
substantial switching occurs, and thus would avoid unnecessary noise 
impacts on those railroad personnel working on the ground in very close 
proximity to the locomotive horn. This section also has the potential 
to reduce noise impacting residences and businesses near crossings 
where railroad switching

[[Page 70630]]

occurs. 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 received a number of comments on the equivalent section in the 
NPRM (Sec.  222.31). The representative of Miami Springs, Florida felt 
that if train speed is less than 15 miles per hour, local authorities 
can decide if an exemption for the horn is appropriate. The 
representative did not think flaggers are needed in this situation. The 
AAR recommended that the decision to flag be left to railroads. In 
addition, this AAR representative pointed out that proposed Sec.  
222.31 identified the threshold speed of 15 miles per hour as the 
maximum authorized operating speed established by the railroad, not the 
actual operating speed. This commenter suggested that the maximum 
authorized speed is not the critical factor and recommended that the 
maximum speed identified in Sec.  222.31 be revised to refer to actual 
operating speed. FRA agrees with this suggestion and has changed this 
provision accordingly. However, FRA will retain the requirement to flag 
the crossing in the absence of the horn. To do otherwise would put the 
traveling public at risk, in that the motorist could not be certain of 
the warning to be provided at the crossing. If a train passes through 
at 20 miles an hour, a horn would sound, but at 15 miles per hour a 
horn would not sound. Only if actual warning is provided by the horn at 
train speeds greater than 15 miles per hour and by a flagger at speeds 
of 15 miles per hour or less would the motorist consistently receive 
warning of the train's approach. The BLE provided the general comment 
that the assumption on which proposed Sec.  221.31 is based, that slow 
moving trains or less frequent train movements lead to a diminished 
safety risk, must be carefully evaluated and must be supported by 
substantial relevant data. We agree, however, that is a less 
significant an issue in this case because flagging is required to 
provide an alternative methods of warning. Further, careful review of 
accident data shows that, even if the flagger's warning is not heeded, 
the likely severity of a collision will be much lower than at higher 
speeds.
    Another railroad industry commenter, the Florida East Coast Railway 
Company, stated that it interpreted proposed Sec.  222.31 as leaving it 
to the discretion of railroads to decide whether to sound the 
locomotive horn or not when the specified conditions are present. The 
commenter is correct that if all the conditions are met under this 
section, the railroad may, but is not required to forgo sounding the 
horn. The reason for leaving significant discretion with the railroad 
in this instance is that in many cases highly restricted sight 
distances and complex traffic patterns may complicate the flagger's job 
and make use of the horn virtually mandatory.

Section 222.35 What Are the Minimum Requirements for Quiet Zones?

    This section details the minimum requirements for quiet zones 
established in conformity with this part. It addresses the minimum 
length of a quiet zone, minimum level of active warning to be provided, 
and minimum type of signage required.
    The requirements of this section appeared in the NPRM in proposed 
Sec.  222.33, ``Establishment of quiet zones.'' Because of the breadth 
of that proposed section, in this interim final rule, it has been 
broken down into smaller sections for ease of use and reference. Thus, 
this Sec.  222.35 addresses minimum physical requirements, Sec.  222.37 
addresses who may establish a quiet zone, and Sec.  222.39 addresses 
how a quiet zone is established.
    In the NPRM, FRA discussed the rationale for requiring quiet zones 
rather than permitting a ban on locomotive horns on a crossing-by 
crossing basis. A quiet zone is defined in this rule as a segment of a 
rail line, within which is situated one or a number of consecutive 
public highway-rail crossings at which locomotive horns are not 
routinely sounded. 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 basis. Without a quiet zone, the sounding of horns may be 
prohibited at one crossing, required at the next few crossings and then 
prohibited at another crossing perhaps one-quarter mile down the 
tracks. Because locomotive horns must be sounded in advance of the 
crossing, the horn being sounded at one crossing will effectively 
negate a large measure of the benefit of the prohibition elsewhere 
along the rail line. Imposition of a horn prohibition on a corridor 
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, or are 
not, subject to a prohibition.
    Paragraph (a) addresses the length of quiet zones. Unlike the NPRM, 
which required an across the board one-half mile length irrespective of 
when the quiet zone was established, this Interim Final Rule provides 
for a minimum length for New Quiet Zones and permits Pre-Rule Quiet 
Zones to retain their length under specified conditions.
    Paragraph (a)(1) provides that the minimum length of a New Quiet 
Zone established under this part shall be one-half mile along the 
length of railroad right-of-way. This is consistent with the NPRM, 
which as stated, required that all quiet zones to be at least one-half 
mile long. This provision did not generate a large number of comments; 
however, the concept of a minimum length was generally supported. The 
communities of Moorhead, Minnesota, Fargo, North Dakota, and Rocky 
River, Ohio supported the one-half mile length. New Jersey Department 
of Transportation pointed out that the purpose of a quiet zone and the 
requirement for minimum length may not be met throughout the entire 
length of a quiet zone ``because of stations, private grade crossings, 
curves and points where the locomotive horn would routinely be sounded 
regardless of its proximity to public grade crossings. * * * The 
definition and minimum length of a quiet zone * * * may need additional 
refinement regarding non-grade crossing safety points on the rail 
segment.'' While New Jersey DOT's points are well taken, it remains a 
local decision as to whether to implement a quiet zone. It is true that 
sounding of locomotive horns at stations and around curves would not be 
affected by this rule (although horn use at private crossings within 
quiet zones is regulated by this rule (see Sec.  222.25)), but if a 
community determines that it wishes to reduce train noise even if it 
can not be totally eliminated, it may do so under this rule. The CPUC 
recommended that minimum length not be codified in the rule, but should 
be determined by the railroad and applicant and approved by the State 
agency. The Illinois Commerce

[[Page 70631]]

Commission agrees with the one-half mile length but argues that it 
should not be binding since shorter lengths may be appropriate. FRA 
believes that establishment of a minimum length of one-half mile is 
appropriate. It is, however, a local community decision as to whether 
to establish a quiet zone and it is the community which, after weighing 
the costs, can best determine where a quiet should be established. FRA 
understands that there may be situations in which a quiet zone must, 
for legitimate reasons, be shorter than one-half mile. In any such 
situation, the community may apply for a waiver from this requirement 
under the waiver provisions of Sec.  222.15, showing special 
circumstances.
    The Florida Department of Transportation recommended that FRA 
establish a minimum distance between quiet zones because without a 
specified distance between quiet zones, the actual separation may be as 
short as 50-100 feet. The agency claimed that the lack of a specified 
distance would violate the spirit of the one-half mile requirement. 
While a short distance between quiet zones may not be ideal in that the 
train horn may sound at a crossing within that distance, the horns will 
still be silenced within the minimum one-half mile length, which should 
provide relief to residents and businesses within that segment. FRA 
expects that there will indeed be situations in which a number of quiet 
zones are established in accordance with this section which will result 
in some crossings not included in quiet zones created on both sides of 
them. We anticipate that communities will calculate the Quiet Zone Risk 
Index for a number of different combinations of crossings in order to 
establish the right mix of crossings and anticipated costs. It is 
perfectly acceptable for a community to create two quiet zones (each at 
least one-half mile long) with a segment between them at which horns 
will sound. FRA believes that such a decision on the local level best 
reflects the needs and views of local residents and businesses. In such 
a situation FRA will not substitute its judgment for that of the local 
authorities.
    Paragraph (a)(2) provides that the length of a Pre-Rule Quiet Zone 
may continue unchanged from that which existed as of October 9, 1996. 
FRA chose to exempt Pre-Rule Quiet Zones from the minimum one-half mile 
requirement in order to fairly take into consideration the interests of 
communities with existing whistle bans. While FRA does not believe 
there are many Pre-Rule Quiet Zones less than one-half mile in length, 
those that otherwise qualify to continue quiet zones under this rule 
may retain the original length of the quiet zone. This provision will 
prevent disruption in communities with established and effective 
whistle bans. FRA has determined that the addition of any crossing to a 
Pre-Rule Quiet Zone will end the grandfathered status of that quiet 
zone. Such additional crossing will change the status of a Pre-Rule 
Quiet Zone to a New Quiet Zone. To do otherwise would confer additional 
benefits to those communities with existing whistle bans not 
contemplated by the statutory directive to take into account existing 
restrictions on the sounding of the horn. Additionally, the Pre-Rule 
Quiet Zone has a safety record while horns did not sound, and 
presumably the ban had been continued because it met certain safety 
standards. There is no such safety record for the new crossing to be 
added to the quiet zone. Therefore, because new and additional risk is 
added by the new crossings added to the Pre-Rule Quiet Zone, risk needs 
to be calculated for the entire quiet zone. The resulting quiet zone 
must therefore comply with the requirements for New Quiet Zones and 
thus must be at least one-half mile in length.
    Paragraph (a)(2) further states that the deletion of any crossing 
from a Pre-Rule Quiet Zone, with the exception of a grade separation or 
crossing closure, must result in a quiet zone of at least one-half mile 
in length in order to retain Pre-Rule Quiet Zone status. Of course, in 
addition to not qualifying for Pre-Rule Quiet Zone status, the 
resulting proposed quiet zone, if less than one-half mile, would also 
not qualify for New Quiet Zone status.
    Paragraph (a)(3) makes clear that a quiet zone may extend beyond 
the boundaries of a political jurisdiction. This will permit the 
establishment of quiet zones reflective of the needs of the nearby 
residents and businesses rather than of artificial political 
boundaries. A quiet zone may thus extend for its full appropriate 
length, rather than being broken into two or three separate quiet 
zones. Of course, if more than one public authority is involved due to 
the fact that the quiet zone extends into more than one political 
jurisdiction, the different public authorities must agree to the 
establishment of the quiet zone, and must jointly, or by delegation 
provided to one of the authorities, take necessary actions under this 
rule. See Sec.  222.34(a).
    Paragraph (b) addresses the need for the presence of active grade 
crossing warning devices at crossings within quiet zones. Paragraph 
(b)(1) addresses active warning devices at crossings within New Quiet 
Zones. Each public highway-rail grade crossing in a New Quiet Zone must 
be equipped, no later than the implementation date of the New Quiet 
Zone, with active grade crossing warning devices comprising both 
flashing lights and gates which control traffic over the crossing. Such 
devices must conform to the standards contained in the MUTCD issued by 
the Federal Highway Administration. As noted in the general discussion 
above, flashing lights and gates alone provide an unambiguous warning 
to the motorist of the arrival of the train. Removing the active 
warning provided by the train horn without providing flashing lights 
and gates would put the motorist in the position of relying exclusively 
on visual sighting of the train to make a decision, which is 
impractical under many circumstances (e.g., permanently or temporarily 
obscured sight lines, compromised night vision, adverse weather and 
other factors that create visual clutter).
    Such warning devices shall be equipped with power-out indicators. A 
power-out indicator is a device which is capable of indicating to 
trains approaching a grade crossing equipped with an active warning 
system whether commercial electric power is activating the warning 
system at that crossing. Presence of such power-out indicator adds 
another level of protection at the crossing in that it helps the 
railroad know as soon as possible if electric power is out at the 
crossing. While all crossing warning systems are equipped with back-up 
battery power, it is essential that the railroad know as soon as 
possible if the system is operating on reserve battery power rather 
than commercial power in order to allow the railroad to take 
appropriate action before the battery fails. (Of course, because all 
grade crossing warning systems are designed on the ``fail-safe'' 
principle, if a warning system does lose all power, the gates will 
descend across the roadway. However, no additional visible warning is 
provided; and it is not uncommon for gates to be broken off by motor 
vehicles under such circumstances, leaving the crossing a potential 
trap for motorists subsequently seeking to cross.)
    Paragraph (b)(2) addresses active warning devices at crossings 
within Pre-Rule Quiet Zones. Such quiet zones must retain the grade 
crossing safety warning devices which existed at the crossing as of the 
date of publication of this rule. Such warning systems may be upgraded, 
but in no event may the warning system be downgraded from that which 
was in existence as of this date. This provision is consistent with the 
statutory mandate that FRA take into

[[Page 70632]]

consideration the interest of communities which had existing horn 
restrictions in place. Permitting quiet zones with crossings not 
equipped with both flashing lights and gates, is appropriate since the 
safety history, and thus the risk level, is known at such crossings. 
For existing quiet zones, where the risk level without locomotive horns 
can be determined, the risk level, rather than the equipment level, 
will determine whether an existing quiet zone qualifies as a Pre-Rule 
Quiet Zone. While this approach may strike one as inconsistent with the 
approach of paragraph (b)(1), which requires both flashing lights and 
gates, the determining distinction is the lack of non-horn safety 
history at New Quiet Zones. In such circumstances, FRA is not willing 
to permit elimination of the train horn when active warning systems are 
absent. This distinction also further reflects the statutory mandate 
that this rule take into account the interest of communities with 
existing bans.
    Paragraph (c) addresses the requirement for advance warning signs 
at crossings within a quiet zone. Paragraph (c)(1) requires that each 
highway approach to every public and private highway-rail grade 
crossing within a Pre-Rule Quiet Zone or New Quiet Zone shall be 
equipped with an advance warning sign which advises the motorist that 
train horns are not sounded at the crossing. Such sign shall conform to 
the standards contained in the MUTCD issued by the Federal Highway 
Administration. Paragraph (2) provides a period of three years from 
this date of publication for such signs to be installed at public and 
private crossings in a Pre-Rule Quiet Zone. This three-year interval 
tracks the period during which existing quiet zones may be continued 
without the necessity of a commitment by the public authority to 
continue the quiet zones as Pre-Rule Quiet Zones. Without this three-
year exception, those communities with existing quiet zones with no 
advance warning signs would be forced to install such signs even if 
they were to discontinue the quiet zones within that three-year grace 
period. We note that, although we strongly encourage such signs 
wherever use of locomotive horns are prohibited, lack of signs is only 
being permitted for a short period of time, and only where they are not 
already in use.
    Paragraph (d) requires that all private grade crossings within a 
quiet zone must be treated in accordance with this section and with 
Sec.  222.25.

Section 222.37 Who May Establish a Quiet Zone?

    This section addresses which entities may establish quiet zones. In 
the NPRM, FRA proposed that a local political jurisdiction, in addition 
to a State, have authority to establish a quiet zone. Additionally, in 
the preamble to the NPRM, FRA stated that ``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.''
    Understandably, this provision generated many comments from State 
and local governments. Of those States commenting, the consistent view 
was that States should have the primary role in establishing quiet 
zones and in administering a quiet zone program. Florida DOT strongly 
supported the view that a State agency should be the only governmental 
entity to designate or apply for quiet zone approval, comparing that 
process with the State agency's role in prioritizing grade crossing 
projects and administering Federal funds. Florida DOT suggested that 
there needs to be ``uniformity within a given State for the treatment 
applied to the crossings to permit quiet zones' and thus the only way 
to achieve this is for a State agency to be the only party to designate 
or apply to the FRA for a quiet zone. New Jersey DOT similarly felt 
that all designations and applications should come from a State agency 
which would provide more consistent and systematic approach within each 
State. The State also felt that having a single contact per State would 
lessen the burden on FRA. Washington DOT also felt that it is simpler 
to have one contact per State rather than have each community deal with 
the issue individually. California DOT echoed these views and added the 
suggestion that States should be free to provide more stringent 
protections above the Federal floor. The State recommended that 
references in the rule to ``state or local government'' should be 
replaced with ``State agency.'' Missouri's Division of Motor Carrier 
and Railroad Safety suggested that the State agency with regulatory 
authority over grade crossings should process quiet zone applications, 
thereby removing a burden on FRA. North Carolina Department of 
Transportation (NCDOT) suggested that each State DOT serve as a 
clearinghouse for quiet zone requests to FRA since these agencies have 
already been charged with evaluating public crossing safety and thus 
would be appropriately involved in safety evaluations for proposed 
quiet zones.
    Comments from local governments tended to support the view that 
localities are in the best position to apply for quiet zones, however 
some communities favored State agency involvement. Brighton, Colorado 
expressed the view that local political subdivisions should establish 
quiet zones. Carrollton, Texas favors local government's role, as does 
Fort Collins, Colorado and Fargo, North Dakota. Chicago encourages 
``FRA to allow state and local governments to agree to the most 
appropriate procedure for managing quiet zone implementation and 
maintenance.''
    FRA notes that Congress, in mandating issuance of this rule, 
established the criteria and parameters under which the rule would be 
issued. Congress did not specifically provide a State role in managing 
the quiet zone program,\13\ and FRA has not provided one either. Thus, 
despite suggestions to the contrary, FRA will not delegate to 
individual States any of its authority to manage this program. FRA did, 
however, solicit suggestions as to which is the appropriate party to 
establish quiet zones under the provisions of this rule. Commenters 
claiming that State oversight would provide consistency and only State 
agencies have the experience evaluating crossings from a safety 
standpoint are accurate to some extent. However, this rule has been 
crafted to provide a level of consistency while at the same time 
providing a range of options for quiet zone implementation. The 
``consistency'' is found within the boundaries of this rule. 
Application of the same provisions throughout the State and nation will 
provide the needed level of consistency, without unduly preventing 
implementation of quiet zones under various situations. Similarly, 
reliance on a State agency's expertise in grade crossing safety will be 
helpful to public authorities in determining which among various 
alternatives should be followed, but this expertise should not 
determine which public body should make the ultimate decision. We 
encourage the use of diagnostic teams (such teams are required if 
specified categories of private crossings are proposed for inclusion in 
a quiet zone (See Sec.  222.25)), but using diagnostic teams or others 
with safety expertise should not affect who the ultimate decision 
making authority should be. After reviewing public comments and 
testimony, and

[[Page 70633]]

further review of Sec.  20153, FRA has determined that the public 
entity with safety authority over the roadway that crosses the railroad 
is the appropriate public body to determine whether quiet zones should 
be established. As the authority over the roadway, that body is the 
logical entity to make such decisions. That authority, as the public 
entity responsible for safety and maintenance of the roadway (be it 
State, city, county or township), already has the legal authority over 
the roadway and therefore ostensibly has the necessary expertise or 
judgment to make decisions regarding that roadway. To the extent a 
State agency retains control over engineering decisions at highway-rail 
crossings, nothing in this rule should be read to compromise that 
authority. It is only the conditions under which the train horn will 
sound or be silenced that is reserved for resolution under this rule.
---------------------------------------------------------------------------

    \13\ By contrast, see 49 U.S.C. 20105 and 49 CFR part 212 (State 
Safety Participation).
---------------------------------------------------------------------------

    A review of section 20153 indicates a clear Congressional 
preference that decision-makers be the ``traffic control authority or 
law enforcement authority responsible for safety at the highway-rail 
grade crossing.'' The statute refers to SSMs being provided by such 
body. Similarly, in the event a waiver from the regulation is desired, 
the statute requires that such application be from the traffic control 
authority or law enforcement authority responsible for safety at the 
highway-rail grade crossing. The statute also requires that FRA take 
into account the interest of ``communities'' and that FRA ``work in 
partnership with affected communities to provide technical assistance 
and proved a reasonable amount of time for local communities to install 
SSMs.'' Nowhere does the statute refer to State agencies. The focus of 
the statute, and thus the focus of this rule is on the public bodies 
that are the ``traffic control authority or law enforcement authority 
responsible for safety at the highway-rail grade crossing.'' Yet States 
do have an interest in this issue, and will of course play an important 
role as the discussion of paragraph (b) below details.
    There are many different roadways crossing railroad tracks. Some 
are roads maintained by a small local jurisdiction, such as a town or 
village, and some are State highways maintained by the State. We do not 
expect, nor do we think it advisable, that a small political 
jurisdiction, such as a township desiring a quiet zone, have authority 
under this rule to determine what the State installs on its State 
highway within the borders of that town or village. Therefore, we have 
crafted this rule to provide that the political entity having safety 
jurisdiction over the highway have the authority to implement quiet 
zones involving those crossings.
    FRA wishes to emphasize that it expects to participate in a broad 
cooperative effort involving States, local public authorities, and 
railroads that will identify the dimensions of potential quiet zones, 
staff diagnostic teams, identify funding sources, and help resolve any 
technical issues related to issues such as effectiveness rates for 
proposed ASMs. In this context, the strong participation of State 
departments of transportation and regulatory commissions will be 
crucial to project success, particularly since in many States the 
primary expertise for grade crossing safety issues resides at the State 
level.
    FRA appreciates the offers made by several State-level departments 
and agencies to manage the implementation of this rule within their 
States. Although FRA does recognize that these agencies will need to 
play a strong role in implementation of the rule, FRA has not chosen to 
grant to State governments final approval functions for several 
reasons, any one of which is independently sufficient as a decisional 
criterion.
    First, the obvious objective of the statute is to create a uniform 
and consistent pattern nationwide with respect to the conditions under 
which use of the train horn will and will not occur. It would be 
virtually impossible for FRA to ensure that a variety of State agencies 
were consistently applying the regulation; in fact, the burden of doing 
so could exceed the burden of administering the regulation directly. 
Congress did not direct that the States play any specific role in this 
regard.
    Second, as a practical matter it is not clear that State agencies 
are authorized to take on this duty; and the delays inherently involved 
in obtaining this authority from legislatures could defeat the 
expectations of communities seeking to preserve or establish quiet 
zones.
    Third, unlike many other situations where existing State programs 
are incorporated into a new Federal effort, this is not a field where 
State innovation has provided the model for Federal action. Although 
certain States have distinguished themselves in providing for safety at 
crossings by insisting on use of the train horn, and others have been 
responsive to local concerns by providing exceptions to its use, 
perhaps no more than one or two States has settled on an approach that 
appears to adequately balance the two interests and provide a 
foundation for a ready transition to functioning under this interim 
final rule.\14\
---------------------------------------------------------------------------

    \14\ This is not a criticism, but merely an observation. Until 
the studies undertaken by FRA beginning in the 1990s, there was 
insufficient data available to anyone to fairly evaluate the actual 
impact of silencing the train horn. By the same token, supplementary 
and alternative safety measures emerged as a credible alternative to 
the train horn only as a result of innovation and research that 
flowered in the 1990s as a result of broad partnerships at the State 
and Federal levels, with strong participation by passenger and 
freight railroads.
---------------------------------------------------------------------------

    Paragraph (a) of this section provides that a public authority may 
establish quiet zones which are consistent with the provisions of this 
part. If a proposed quiet zone includes public grade crossings under 
the authority and control of more than one public authority (such as a 
county road and a State highway crossing the railroad tracks at 
different crossings), both public authorities must agree to 
establishment of the quiet zone, and must jointly, or by delegation 
provided to one of the authorities, take such actions as are required 
by this part. We anticipate that many quiet zones will encompass 
roadways under the control of more than one political jurisdiction, 
thereby requiring cooperation among the various jurisdictions in order 
to establish a quiet zone. We recognize that under this scenario one 
jurisdiction could prevent the establishment of a quiet zone, but the 
alternative of one jurisdiction imposing its will on another in such 
decisions is unacceptable. If a multi-jurisdictional quiet zone is 
established, the various jurisdictions are free to make whatever 
arrangements are administratively helpful to those entities. The 
entities may, by agreement, delegate all decision-making and 
administrative actions, such as notifications and official contact with 
FRA, to one body. On the other hand, the entities may decide to act as 
a group, with each entity being involved in each activity throughout 
the application and implementation process. Thus, how, and to what 
extent the entities organize, is left up to the individual 
jurisdictions within the proposed quiet zone.
    Paragraph (b) of this section provides that a public authority may 
establish quiet zones irrespective of State laws covering the subject 
matter of sounding or silencing locomotive horns at public highway-rail 
grade crossings. It is unlikely that a State would attempt to restrict 
a community's freedom to create a quiet zone after issuance of this 
rule. However, were a State to impose such a restriction and be upheld 
in doing so, the other provisions of this rule would be left intact. 
This would mean that the mandate of Sec.  222.21 would go into

[[Page 70634]]

effect, but the community's authority to create an exemption to that 
mandate would not. Nothing in this part, however, is meant to affect 
any other applicable role of State agencies or the Federal Highway 
Administration in decisions regarding funding or construction 
priorities for grade crossing safety projects, selection of traffic 
control devices, or engineering standards for roadways or traffic 
control devices.
    This section (along with Sec.  222.5 ``Preemption'') makes clear 
that State laws covering the subject of locomotive horn use at public 
highway-rail grade crossing are preempted by this rule and thus are of 
no effect. State laws which establish minimum distances in advance of a 
public crossing at which locomotive horns must be sounded are thus 
preempted. Also preempted by this rule are State laws which establish 
criteria for the prohibition of horn use at public crossings, as are 
State laws which prohibit the creation of whistle ban crossings or 
quiet zones. This paragraph also makes clear that the rule does not 
affect the traditional role of State agencies, or the Federal Highway 
Administration, in their role of funding and constructing grade 
crossing safety projects, the selection of traffic control devices, or 
engineering standards for roadways or traffic control devices.
    Paragraph (c) of this section makes clear that State agencies may 
provide administrative and technical services to public authorities by 
advising them, acting on their behalf, or acting as a central contact 
point in dealing with FRA, however, any public authority eligible to 
establish a quiet zone under this part may do so.

Section 222.39 How Is a Quiet Zone Established?

    This section addresses the manner in which a New Quiet Zone is 
established. FRA chose to use a quiet zone as a basis for this rule. 
While it would be possible to approve a locomotive horn ban on 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 in advance of a grade 
crossing, the noise spill-over from a crossing not subject to a ban 
could still disrupt the residents and businesses near a crossing where 
horns are banned. As a result, the concept of a quiet zone was 
developed, which is meant to fulfill the following purposes: ensure 
that banning of locomotive horns 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.
    In the NPRM, FRA proposed two different methods of establishing 
quiet zones, depending on local circumstances. In one method (set forth 
in proposed Sec.  222.33(a)), every public grade crossing within the 
proposed quiet zone would have an SSM applied to the crossing and the 
governmental entity establishing the quiet zone would only need to 
designate perimeters of the quiet zone, install the SSMs, and comply 
with various notice and information requirements set forth in the rule. 
The second proposed method (set forth in Sec.  222.33(b)) would provide 
a governmental entity greater flexibility in using SSMs or ASMs to 
address problem crossings. The second method would allow FRA to 
consider a quiet zone that does not have a supplemental safety measure 
at every crossing as long as implementation of the proposed SSMs and 
ASMs in the quiet zone as a whole would cause a reduction in risk to 
compensate for the lack of locomotive horn. Because the success of ASMs 
in compensating for the lack of the locomotive horn is dependent on the 
level of time and effort expended by the governmental entity, and 
because estimates of effectiveness for ASMs will entail a degree of 
judgment, FRA retained a review and approval function where the 
governmental entity proposed less than using SSMs at every crossing.
    Regardless of the method used, the proposed rule contemplated that 
both State and local governments would have authority to establish 
quiet zones. Some State commenters recommended that authority to 
establish quiet zones should be limited to State agencies, and thus 
recommended that FRA revise the language of Sec.  222.33 to remove all 
references to local governments. The CPUC recommended that State 
agencies retain the primary authority for review and approval of quiet 
zones. The North Carolina Department of Transportation (NCDOT) 
similarly expressed the view that it is essential that State 
transportation agencies serve as clearinghouses for quiet zone 
designations and applications to FRA since these agencies are the 
administrators of the Section 130 Federal safety program. The NCDOT 
further recommended that the criteria for establishment of quiet zones 
should strongly encourage States to perform Traffic Separation Studies 
in order to identify additional safety devices that may be required at 
particular crossings. The NCDOT also recommended that FRA, along with 
registered Professional Engineers, review the underlying diagnostic 
process undertaken by the requesting agency when reviewing applications 
to establish quiet zones.
    The Oregon DOT expressed the belief that the establishment of quiet 
zones should require more than just installing FRA pre-approved SSMs as 
articulated in Sec.  222.33(a). The Oregon DOT suggested that some sort 
of safety review should be required before quiet zones are designated. 
The CPUC similarly agreed that States should review each crossing 
proposed for inclusion in a quiet zone under proposed Sec.  222.33(a), 
even if FRA requires no further review. The New Jersey DOT suggested 
that any rule providing for quiet zones needs to address other non-
highway-rail crossings in areas near railroad stations, curves, or at 
other points along rail lines where views may be obscured and the 
locomotive horn would normally be sounded. While FRA does not require a 
diagnostic team to review a proposed quiet zone (with the exception of 
reviewing improvements to private crossings), we anticipate that in 
most instances, such a team will be utilized. FRA is not requiring such 
a review because, in the case of SSMs, such measures have already been 
found to be effective in compensating for the lack of a horn. FRA 
believes that a public authority will use the best talent available to 
determine the appropriate manner of establishing a quiet zone.
    Railroad industry commenters voiced strong disagreement with the 
proposed rule in that it does not provide for railroad participation in 
the process of establishing quiet zones. Specifically, the American 
Short Line and Regional Railroad Association (ASLRRA) and the Florida 
East Coast Railway Company (FEC) emphasized that including railroads in 
the process of establishing quiet zones is a logical and practical 
necessity. Both ASLRRA and FEC insisted that railroads must have the 
right to review and respond to any request for a quiet zone that may 
affect the railroads' operations. In support of its position, FEC cited 
its previous experience with whistle bans established in Florida that 
led to numerous lawsuits against the company. FRA notes that Florida's 
whistle ban law, which led to imposition of FRA Emergency Order No. 15, 
only required that crossings subject to the ban be equipped with gates 
and flashing lights--it did not provide for the extensive set of 
safeguards which are the subject of this rule. As discussed earlier, 
collisions increased dramatically during the whistle ban period, which 
naturally resulted in increased lawsuits.

[[Page 70635]]

This rule is crafted specifically to avoid such increased risk at 
subject crossings. One local government commenter, however, expressed 
concern over the potential inclusion of railroads in the process of 
establishing quiet zones. This commenter emphasized the necessity of 
communities being able to take unilateral action to implement quiet 
zones.
    FRA appreciates the role that railroads must play in establishing 
quiet zones, from possible installation of four-quadrant gates to 
providing information for the National Grade Crossing Inventory. We 
also anticipate that, with or without use of diagnostic teams, 
railroads will play an integral role with public authorities in 
designing the most effective and most cost effective quiet zones. 
Despite the clear need for railroad involvement, FRA does not intend 
that railroads have a veto power over the establishment of quiet zones. 
The decision to establish such zones resides with the public authority. 
Once a public authority establishes a quiet zone under the terms of 
this rule, the railroad is legally prohibited from routinely sounding 
the locomotive horn at crossings within the quiet zone. As discussed 
earlier, such prohibition preempts local ordinances and State laws 
regarding sounding of locomotive horns at public crossings and private 
crossings within quiet zones. We expect court decisions will reflect 
that reality and will not hold the railroad liable based on a cause of 
action of failure to sound a locomotive horn. Please see also Sec.  
222.7 ``What is this regulations's effect on State and local laws and 
ordinances?'' and Sec.  222.23 ``How does this regulation affect 
sounding of a horn during any emergency or other situation?''
    Other railroad industry commenters agreed with State commenters as 
to the necessity of either limiting the authority to establish quiet 
zones to State agencies, or at least mandating the inclusion of State 
agencies in the process. The AAR voiced support for the position of 
CPUC that only States should have the authority to establish quiet 
zones. The BLE, on the other hand, felt that the language of Sec.  
222.33 giving State and local governments the authority to establish 
quiet zones was appropriate, but that the relevant State governmental 
agency should always be included in the process in order to provide a 
consistent and efficient approach. FRA continues to believe the best 
approach, and the approach consistent with the statutory mandate, 
requires that public authorities with safety authority over the roads 
and highways within a quiet zone make the ultimate decision as to 
establishment of quiet zones. FRA anticipates that public authorities 
will work closely with State agencies with expertise in the area and 
with State funding agencies, but, as in a public authority's 
relationship with a railroad, the ultimate decision must be left to the 
public authority.
    In additional comments from railroad industry participants, the BRS 
voiced general support for the two methods of establishing quiet zones 
in proposed Sec.  222.33, but a representative of the Wisconsin Central 
System expressed concern about FRA's ability to analyze and process 
quiet zone petitions in a timely manner. In comments specifically 
relevant to passenger operations, the National Railroad Passenger 
Corporation (Amtrak) expressed concern about the exposure of train 
passengers to the dangers of accidents at highway-rail grade crossings. 
Amtrak suggested that communities seeking to establish quiet zones 
should be required to provide for the re-routing of heavy commercial 
motor vehicles away from crossings that appear to have dangerous 
characteristics or that have a history of violations or accidents. 
Amtrak also suggested that diagnostic teams reviewing crossings for 
potential inclusion in quiet zones should focus on heavy truck traffic 
because such vehicles pose the greatest risk of accidents. FRA 
appreciates Amtrak's concerns, however, quiet zones will only be 
established under this rule where there is compensation for the lack of 
a locomotive horn. Specifically, the requirement that flashing lights 
and gates be provided at each crossing in a New Quiet Zone, together 
with other requirements of the rule, should limit any possibility that 
this rule will adversely affect safety on Amtrak routes. (In fact, the 
exposure provided to innovative safety measures during this rulemaking 
and prior public outreach has already had a beneficial effect on 
emerging corridors.) However, FRA does recognize the possibility that 
passenger risk may be susceptible to special analysis as this rule is 
revised in future years based on the results of research.
    In this rule, FRA has retained the basic framework as proposed in 
the NPRM, but has modified it in response to the many comments 
pertaining to the perceived inflexibility of the proposal. The NPRM was 
crafted in order to provide flexibility to the local communities. As 
stated in the NPRM at page 2246, ``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 SSMs and ASMs 
on [sic] 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 fore the lack of a horn, a quiet zone may be 
established.''
    This interim final rule continues the concept of viewing risk on a 
corridor-wide basis, however the rule includes measurements of risk 
that reflect commenters' suggestions that FRA should give greater 
weight to the safety history and circumstances locally. Thus, FRA will 
permit quiet zones where risk has been addressed in one of three ways: 
one is the reduction of risk by compensating for the lack of the 
locomotive horn by implementation of SSMs at every crossing within a 
quiet zone; second, by reducing the risk level within the quiet zone to 
a level at least equal to the average risk level nationwide at 
crossings equipped with flashing lights and gates and at which horns 
are sounded; or third, by implementation of safety measures that will 
cause the risk level within the quiet zone to fall to or below the risk 
level which would exist if locomotive horns sounded at all crossings 
within the quiet zone.
Paragraph (a)--Public Authority Designation
    Paragraph (a) of this section addresses the situations in which the 
public authority may designate a quiet zone without the need for formal 
application to, or approval by, FRA. Paragraph (a)(1), which is similar 
to proposed Sec.  222.33(a), provides that a quiet zone may be 
established by implementing at every public highway-rail grade crossing 
within the quiet zone one or more SSMs identified in Appendix A. 
Because each of those SSMs have been determined to have an 
effectiveness rate which is at least equivalent to that of a locomotive 
horn, and there is an SSM at every public crossing, FRA can be assured 
that there is compensation for the lack of a locomotive horn in the 
quiet zone. FRA's role in this situation is thus minimal. The public 
authority would only need to designate the extent of the quiet zone and 
comply with the information and notice requirements of Sec.  222.43.
    Paragraph (a)(2) permits quiet zones if the risk level is, or can 
be made to be, no higher than a national standard of risk where train 
horns are used. The section compares the risk level at

[[Page 70636]]

crossings within the quite zone to the average risk level on a 
nationwide basis at crossings equipped with flashing lights and gates, 
and at which locomotive horns are sounded. Thus, if the Quiet Zone Risk 
Index is at, or below, the Nationwide Significant Risk Threshold, the 
risk at crossings within the quiet zone would be at least equal to the 
risk level at the average crossing where horns are sounded. Paragraph 
(a)(2)(i) provides that a quiet zone may be established if the Quiet 
Zone Risk Index is already at, or below, the Nationwide Significant 
Risk Threshold. If so, there is no need to implement SSMs.
    Paragraph (a)(2)(ii) provides that a quiet zone can be established 
if SSMs are implemented which are sufficient to reduce the Quiet Zone 
Risk Index to a level at, or below, the Nationwide Significant Risk 
Threshold. Under this provision, there is no requirement to implement 
SSMs at every public crossing within the quiet zone. The public 
authority has discretion both as to which crossing or crossings will be 
equipped with an SSM and which type of SSM to use. FRA will provide the 
basic calculations to the public authority. Such information will be 
available on FRA's Web site at http://www.fra.dot.gov. Additionally, 
software and technical assistance will be available from FRA's Regional 
Grade Crossing Managers. The general idea behind paragraph (a)(2) and 
the Nationwide Significant Risk Threshold is that communities desiring 
quiet zones should not be required to achieve a higher degree of safety 
than the average level of risk at public crossings with lights and 
gates where the horn is sounded. This can relieve some communities of 
the need to make expensive improvements to eliminate risk below the 
significant level.
    Paragraph (a)(3) provides an additional manner of establishing 
quiet zones by designation. A public authority may implement SSMs which 
reduce the Quiet Zone Risk Index to a level at or below the risk level 
which would exist if locomotives horns sounded at all public crossings 
within the quiet zone. This permits quiet zones to exist even if the 
level of risk will be above the national average for train horn 
crossings as long as measures are taken to ensure risk in the quiet 
zone does not increase when the horn is silenced. The quiet zone is 
viewed in the aggregate to determine if there has been compensation for 
the lack of the locomotive horn.
    It is important to note that under any of the alternatives within 
this section any additional safety measures must be SSMs as listed in 
Appendix A. Because of this, FRA does not need to review the proposal. 
The safety measures have already been reviewed individually by FRA in 
determining their effectiveness rates and the risk levels have been 
also been determined in accord with the Appendix D, ``Determining Risk 
Levels.''.
Paragraph (b)--Public Authority Application to FRA
    Paragraph (b) addresses the circumstances in which a quiet zone may 
be established after application to, and approval by, FRA. This 
paragraph is intended to provide greater flexibility to the public 
authority to use ASMs, ASMs and SSMs at different crossings, and 
variations of SSMs, such as a median shorter than is required when it 
is used as an SSM. (An ``SSM'' which does not fully comply with the 
requirements of Appendix A is considered to be an ASM.) This paragraph 
is based on proposed Sec.  222.33(b). As in the proposal, not every 
public crossing within a quiet zone necessarily needs to be treated 
with an SSM or ASM. However, sufficient data must be submitted to the 
Associate Administrator to demonstrate that implementation of the 
measures will cause a reduction in the Quiet Zone Risk Index to, or 
below either the risk level which would exist if locomotive horns 
sounded at all crossings in the quiet zone or to a risk level at, or 
below the Nationwide Significant Risk Threshold.
    Paragraph (b)(1) provides that a public authority may apply to the 
Associate Administrator for approval of a quiet zone that does not meet 
the standards for public authority designation under paragraph (a). The 
application must contain a proposal to implement one or more SSMs or 
ASMs and must contain sufficient detail concerning the present and 
proposed safety measures at the public and private crossings within the 
proposed quiet zone. The paragraph also requires that the membership 
and recommendations of a diagnostic team, if used, must be included in 
the application. FRA is requiring that a diagnostic team be used only 
when private grade crossings are to be included in a quiet zone, 
although their use elsewhere is highly recommended. The public 
authority must also commit to implement the proposed safety measures 
and demonstrate through data and analysis that implementation of these 
measures will reduce the Quite Zone Risk Index to, or below the risk 
level which would exist if locomotive horns sounded at all crossings in 
the quiet zone or to a risk level at, or below the Nationwide 
Significant Risk Threshold.
    Paragraph (b)(2) addresses approval by the Associate Administrator. 
If, in the Associate Administrator's judgment, the public authority is 
in compliance with paragraph (b)(1) and has satisfactorily demonstrated 
that the SSMs and ASMs proposed by the public authority result in a 
Quiet Zone Risk Index which is at or below the risk level which would 
exist if locomotive horns sounded at all crossings in the quiet zone, 
or is at, or below, the Nationwide Significant Risk Threshold, the 
quiet zone will be approved. Because of the greater flexibility and the 
greater variation in possible risk reduction, FRA's role is much 
greater than when a public authority designates a quiet zone; thus, the 
Associate Administrator may include in any decision of approval such 
conditions as may be necessary to ensure that the proposed safety 
improvements are effective. The Associate Administrator may also not 
approve the quiet zone, in which case the reasoning behind the 
rejection will be provided to the public authority. Sec.  222.57. A 
decision disapproving a request for approval may be challenged by 
filing a petition for reconsideration with the Associate Administrator. 
The petitioner will have the opportunity for an informal hearing.

Proposed Sec.  222.33(c) and Proposed Appendix C--Quiet Zones in Which 
SSMs or ASMs Are Not Necessary

    Proposed Sec.  222.33(c) addressed the limited circumstances in 
which a quiet zone could be established without the need for SSMs or 
ASMs. The limited conditions under which such a quiet zone could be 
established were proposed in Appendix C of the NPRM. FRA proposed five 
criteria that must be met for a quiet zone to be established under 
Sec.  222.339(c): (1) Train speed does not exceed 15 miles per hour; 
(2) trains travel 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 is rung when 
approaching and traveling through the crossing.
    The Oregon Department of Transportation expressed strong 
disagreement with FRA's inclusion in proposed Appendix C of slow moving 
trains running within a street right-of-

[[Page 70637]]

way. The Oregon DOT claimed that although crossings where slow moving 
trains run within a street right-of-way could qualify for a quiet zone, 
such situations should not be globally exempt from the requirement to 
sound the locomotive horn. The Town of Andover, Massachusetts, 
recommended that the Appendix C criteria be expanded to take into 
account the volume of traffic at a crossing and historical accident 
data and safety measures in place at the crossing. Recognizing that 
Appendix C as written would require that all five of the listed 
conditions be present in order to establish a quiet zone, another local 
government commenter, Jefferson Parish, Louisiana, suggested a more 
flexible approach to identifying situations which should qualify as 
quiet zones without any additional safety measures. Specifically, 
Jefferson Parish explained that many residential areas are located 
directly adjacent to railroad rights-of-way, with no intervening public 
streets. Thus, even if crossings in these areas meet all of the 
conditions listed in Appendix C except for close proximity to a public 
street, these areas would never be able to qualify as quiet zones. 
Jefferson Parish therefore suggested that either some flexibility be 
allowed on the criterion pertaining to the distance of the track from a 
parallel street, or to require that areas meet some percentage of the 
criteria (e.g., four out of five) listed in Appendix C in order to be 
designated a quiet zone with no additional safety measures necessary.
    The Northern Indiana Commuter Transportation District recommends a 
new categorical exclusion for an intersection of two streets, one of 
which has railroad tracks, a highway speed limit of 25 miles per hour 
and railroad speed limit of 15 with passive warnings. In support of 
this exclusion, the Transportation District cited 17 ``non-serious'' 
accidents at its crossings during a recent eight year period. Given the 
limited information regarding this type of operation, it would not be 
appropriate to provide a categorical exclusion.
    One commenter testifying at the Salem, Massachusetts, public 
hearing, expressed the view that the Appendix should be eliminated in 
its entirety. This commenter, a locomotive engineer, explained that 
while some situations may exist which require no safety measures to 
offset the lack of use of the locomotive horn, such situations are rare 
and should be dealt with on an individual case-by-case basis after 
local public hearings. This commenter also expressed concern regarding 
the inclusion of crossings where the railroad and a highway run 
parallel to each other with only a small distance separating the two. 
This commenter explained that even if a train is operating at slow 
speed, it is very difficult for a motorist driving parallel and close 
to the track to see a train coming up from behind when the motorist is 
at an intersection and about to turn and cross the track.
    Several commenters, unable to determine whether specific crossings 
in their communities would meet the requirements of Appendix C, 
requested clarification of the listed criteria. Specifically, some 
commenters were unclear as to whether all five of the conditions must 
be present together or if the requirements must only be met 
individually. In addition, one local government commenter specifically 
requested clarification of the requirement that trains be traveling 
between or parallel to traffic lanes of a public street, and what was 
meant by the phrase ``railroad is actually situated on the surface of a 
public street.''
    One commenter, representing the City of Saint Paul, Minnesota, 
expressed support for the inclusion of train speed as a factor in 
Appendix C. The City of Saint Paul expressed the opinion that as 
compared to fast moving trains, slow moving trains greatly reduce the 
safety risk involved with train-auto collisions. However, this 
commenter also noted that because slow moving trains take a longer time 
to travel through the same amount of track as fast moving trains, slow 
moving trains lead to greater noise disturbances if required to sound 
their horns at every crossing.
    Other commenters indicated that the NPRM's Appendix C required 
revision or that the Appendix should be eliminated altogether. One 
commenter speaking at the Salem, Massachusetts, public hearing 
suggested that the criteria listed in Appendix C do not address safety. 
Instead, this commenter suggested that the listed criteria address a 
certain pattern of railroad and roadway coexistence, which pattern is 
not exclusive of other safe conditions. This commenter suggested that 
in lieu of the proposed Appendix C, FRA should adopt performance based 
criteria which do not exempt single crossings, but instead exempt 
collections of crossings within an area that already have a 
demonstrated safety record. FRA notes that essentially performance 
based criteria have in fact been adopted in response to public 
comments.
    The proposed language addressed a very specific, limited, situation 
which, in FRA's judgment, was of inherently low risk. It was FRA's 
judgment that such low risk crossings need not be required to have SSMs 
or ASMs in order to silence the horn. Providing this exception to the 
proposed rule was appropriate given the structure of the NPRM. However, 
because the actions required of public authorities in creating quiet 
zones under this interim final rule are based to a much greater extent 
on risk at those crossings, there is no longer a need to retain this 
proposed provision. Communities which would have likely qualified under 
the proposed section will likely qualify for a quiet zone pursuant to 
Sec.  222.39(a) (public authority designation) by being below the NSRT 
and thus will not need to apply SSMs or ASMs to retain a quiet zone. If 
a quiet zone meeting the conditions of the proposed section does not 
qualify under Sec.  222.39(a), it is likely that certain conditions are 
present which add to the risk level. In such unlikely circumstance, an 
SSM or ASM might be appropriate, or the public authority may wish to 
apply for a waiver.
    Based on the above, and the comments calling into question its 
provisions, FRA is deleting proposed Appendix C and is not carrying 
forward to this interim final rule language of proposed Sec.  
222.33(c).

Section 222.41 How Does This Rule Affect Pre-Rule Quiet Zones?

    This section addresses the effect of this rule on Pre-Rule Quiet 
Zones. A Pre-Rule Quiet Zone is a segment of a rail line within which 
is situated one, or a number of consecutive public highway-rail grade 
crossings at which State statutes or local ordinances restricted the 
routine sounding of locomotive horns, or at which locomotive horns did 
not sound due to formal or informal agreements between the community 
and the railroad or railroads, and such statutes, ordinances or 
agreements were in place and enforced or observed as of October 9, 1996 
and on the date this rule was published.
    In the NPRM, FRA proposed to provide communities with pre-existing 
whistle bans with a three-year grace period for compliance with the 
final rule. To take advantage of this three-year grace period, the NPRM 
would require that these communities initiate or increase highway-rail 
grade crossing safety public awareness initiatives and grade crossing 
traffic law enforcement programs within two years after the date of 
issuance of the final rule if no quiet zone was yet designated or 
accepted for its jurisdiction in accordance with the rule.
    FRA received numerous comments regarding its proposal from State 
and local governments, as well as representatives of the railroad 
industry.

[[Page 70638]]

Most local governments commented that the three-year grace period was 
insufficient, citing lack of adequate funding and the costs involved 
with installing the approved SSMs. Most local governments felt that it 
would take 5-10 years to arrange funding and actually install the 
approved SSMs. One Illinois municipality suggested that even with 
adequate funding, bringing the State's quiet zones into compliance with 
the rule could take up to 15 years.
    On the other hand, the Washington Department of Transportation 
suggested that a three-year grace period is too long and indicated that 
communities with existing quiet zones should be able to comply with the 
rule within one year of the issuance of the final rule. Several 
railroad industry commenters also suggested that the three-year grace 
period for communities with pre-existing whistle bans is excessive. The 
United Transportation Union suggested a six-month grace period, while 
the BRS recommended two years as an appropriate period.
    Most State commenters emphasized the importance of grandfathering 
existing quiet zones where substantial investment has already been made 
by State transportation agencies, railroads, and affected communities. 
The Illinois Commerce Commission suggested that all crossings in 
communities with pre-existing whistle bans be grandfathered under the 
rule until the responsible State oversight agency establishes a 
recognized quiet zone for the area. Likewise, the Oregon DOT noted that 
requiring a community with a pre-existing whistle ban to initiate or 
increase both highway-rail grade crossing safety public awareness 
initiatives and crossing traffic law enforcement programs, if no quiet 
zone is designated or accepted under the final rule within two years, 
imposes a new financial burden on the community. In particular, the 
Oregon DOT questioned the efficacy of this requirement in situations 
where a community has had a whistle ban in place for several years with 
no reported accident history that would be impacted by the additional 
initiatives or enforcement.
    In its comments, the BLE recognized the past efforts and 
investments of communities regarding the issue of locomotive horn 
noise. However, citing concerns that crossings in localities with pre-
existing quiet zones which are grandfathered from the requirements of 
the final rule could continue to exist without appropriate safety 
measures, the BLE requested that the final rule explicitly state that 
the provisions for termination of quiet zones set forth in Sec.  
222.39(d) apply to crossings with pre-existing quiet zones.
    The AAR was the only commenter to specifically oppose the blanket 
grandfathering of pre-existing quiet zones for any period of time. 
Specifically, the AAR recommended that FRA examine the crossings within 
these pre-existing quiet zones to ensure that additional safety 
measures are not needed. The AAR suggested a number of specific 
prerequisites to the granting of quiet-zone status to communities where 
locomotive horns have not historically been sounded. First, the AAR 
suggested that all public crossings within pre-existing quiet-zones be 
equipped with gates and lights, and signs warning of the existence of 
the quiet zone should be placed at the approach to each crossing. 
Second, the AAR recommended that notices of quiet zone implementation 
or termination be published in the Federal Register. Third, reasoning 
that the ability of a local community to institute a quiet zone has 
historically been dependent on approval of the State, the AAR 
recommended that only States be permitted to apply for quiet zone 
status. Next, the AAR recommended that States have the burden of 
demonstrating the safety of grade crossings, and diagnostic teams 
should be used to analyze crossing issues before any quiet zone is 
instituted. Finally, the AAR recommended that only crossings where 
locomotive horns have not sounded for the previous five years should be 
eligible for grandfathered status.
    In comments specifically relevant to railroad operations and 
highway-rail grade crossings within the State of Florida, the Florida 
East Coast Railway Company (``FEC'') noted that the NPRM does not 
address the pre-existing restrictions on the sounding of locomotive 
horns that were preempted by Emergency Order No. 15 in 1991 which 
required FEC to sound warning devices at grade crossings and required 
that FEC revoke operating rules and bulletins to the contrary. In its 
comments, FEC explained that it considers all local ordinances 
preempted by Emergency Order No. 15 null and void and understands that 
for purposes of the final rule, the subject crossings will not be 
viewed as being within pre-existing quiet zones. FEC, however, 
requested that FRA specifically address the status of the affected 
crossings in the final rule so as to avoid any confusion among affected 
jurisdictions. The status of such affected crossings is in fact 
addressed in this rule. Florida crossings subject to Emergency Order 
No. 15 do not fall within the definition of Pre-Rule Quite Zones 
inasmuch as Florida State statutes and local ordinances permitting 
whistle bans were not enforced or observed as of October 9, 1996, 
having been preempted by the Emergency Order in 1991. Therefore, any 
quiet zones to be established in Florida would need to qualify as New 
Quiet Zones under this rule.
    FRA recognizes the strong feelings associated with the issues 
raised by this provision. As noted, some commenters recommended a 
longer grandfathering period while others recommended substantially 
shorter periods. FRA, after considering the comments, and reviewing the 
statutory mandate that FRA take into account the interest of 
communities that have in effect restrictions on the sounding of a 
locomotive horn at highway-rail grade crossings, has determined that 
extension of the grandfathering period is appropriate. FRA has also 
considered that budgetary cycles and funding planning may require more 
time than was proposed in the NPRM. As discussed further below, the 
grandfathering period will extend from three to eight years from the 
publication date of this rule in the Federal Register. The determining 
factor as to how long within that period a community has will depend on 
the actions taken by that community and the appropriate State agency. 
FRA agrees with Oregon DOT and has crafted the rule in such a manner 
that the public authority does not need to expend construction or 
program funds (other than for planning and application purposes) until 
it has determined, and has had approved when necessary, the actions to 
be taken. FRA has also provided for State involvement to the extent 
that if a public authority wishes to take advantage of the entire 
eight-year grandfathered period, the plans of the public authority must 
be part of a State-wide implementation plan. Thus, the appropriate 
State agency will be involved in working with public authorities in 
resolving planning and funding issues.
    Paragraph (a) of Sec.  222.41 addresses Pre-Rule Quiet Zones which 
qualify for automatic approval. A Pre-Rule Quiet Zone will be 
considered to be automatically approved if (in addition to compliance 
with Sec. Sec.  222.35 and 222.43) the quiet zone is in compliance with 
one of a number of conditions. The quiet zone may remain in effect if 
there are SSMs at every public highway-rail grade crossing within the 
quiet zone (paragraph (a)(1)). Similarly, the quiet zone may continue 
automatically if the Quiet Zone Risk Index as last published by FRA is 
at, or below, the Nationwide

[[Page 70639]]

Significant Risk Threshold (paragraph (a)(2)). FRA has added this 
provision in recognition of the many comments that emphasized the need 
for FRA to look at the safety record at individual crossings and quiet 
zones rather than impose a standard that required SSMs regardless of an 
extremely good safety record. Comparing the Quiet Zone Risk Index to 
the Nationwide Significant Risk Threshold does in fact address safety 
history at crossings within the quiet zone because the accident history 
is one component of the Quiet Zone Risk Index. That is why this 
provision applies to both New Quiet Zones and Pre-Rule Quiet Zones.
    While the preceding conditions permitting continuation of a quiet 
zone essentially track the provisions for automatic approval for New 
Quiet Zones, paragraph (a)(3) is unique to Pre-Rule Quiet Zones. A 
quiet zone may be continued automatically if the Quiet Zone Risk Index 
as last published by FRA is above the Nationwide Significant Risk 
Threshold but is less than twice the Nationwide Significant Risk 
Threshold and there have been no relevant collisions at any public 
grade crossing within the quiet zone for the five years preceding the 
date of publication of this rule.
    This provision goes a step further in recognizing situations where 
train horn bans have been in place for a considerable period with no 
untoward effects. We accommodate such impressive facts by giving the 
accident history greater weight than that the overall risk index. In 
determining the risk level resulting from silencing horns in New Quiet 
Zones, FRA can only project the safety implications from silencing the 
horn--by definition there is no empirical evidence at those crossings 
of the safety implications of silencing the horn. On the other hand, 
Pre-Rule Quiet Zones present direct empirical evidence of the safety 
effect of silencing the horn at those crossings within the quiet zone. 
Thus, FRA includes paragraph (a)(3) in recognition that, although 
statistically the quiet zone may present a higher safety risk (Quiet 
Zone Risk Index is greater than the Nationwide Significant Risk 
Threshold) due to risk factors such as traffic volume, experience shows 
that, for whatever reason, the lack of a locomotive horn at those 
crossings has not resulted in appreciably unsafe conditions. (Of 
course, the occurrence of an accident will eliminate this special 
exception.) Paragraph (b) addresses those Pre-Rule Quiet Zones which do 
not qualify for automatic approval under paragraph (a). Paragraph 
(b)(1) provides that a public authority may decide to continue Pre-Rule 
Quiet Zones on an interim basis under the provisions of this paragraph. 
It is important, however, to note that this paragraph only provides 
interim authority to continue a quiet zone. Continuation of a quiet 
zone beyond the periods specified in this paragraph will require 
implementation of SSMs or ASMs as though the quiet zone is a New Quiet 
Zone (in accord with Sec.  222.39 (``How is a quiet zone 
established?'')).
    Paragraph (b)(2) provides that a public authority may continue a 
quiet zone for five years from the date of publication of this rule. 
This period will ensure that the public authority has adequate time for 
planning and implementation of SSMs or ASMs. The five-year extension 
period is dependent on the public authority filing with the Associate 
Administrator a detailed plan for establishing a quiet zone under this 
part. If the quiet zone will require approval under Sec.  222.39(b), 
the plan must include all the required elements of filings under that 
paragraph together with a timetable for implementation of safety 
improvements. The plan must be filed within three years of the date of 
publication of this rule. FRA understands that, in some cases, plans 
filed within this period will be contingent on funding arrangements 
that may not be complete as of that date (particularly where State-
level participation has been requested). FRA is seeking a good faith 
filing, which normally would be tendered by the executive head of the 
relevant public authority or authorities involved.
    Thus, the practical implication of this timetable is that a Pre-
Rule Quiet Zone may continue for three years from the date of 
publication of this rule without any action taken by the public 
authority. However, at the expiration of that three-year period 
locomotive horns will resume sounding at all public crossings within 
the former quiet zone unless the public authority has filed a plan for 
completing the necessary improvements. Thereafter, if the public 
authority wishes to establish a quiet zone, it will need to comply with 
the requirements for New Quiet Zones contained in this rule.
    Paragraph (b)(3) provides that if certain conditions are met, 
locomotive horn restrictions may continue for three years beyond the 
five-year period permitted in paragraph (b)(2). Before the expiration 
of three years after publication, the appropriate State agency must 
provide to the Associate Administrator a comprehensive State-wide 
implementation plan and funding commitment for implementing 
improvements at Pre-Rule Quiet Zones which do not qualify for automatic 
approval. The improvements must, when implemented, enable the Pre-Rule 
Quiet Zones to qualify for a quiet zone under this rule. Before the 
expiration of four years after publication, physical improvements must 
be initiated at least one of the crossings within the quiet zone, or 
the State agency must have participated in quiet zone improvements in 
one or more jurisdictions elsewhere in the State.
    In summation, paragraph (b)(2) permits a quiet zone to be extended 
for three years without any action taken by the public authority. If, 
however, the public authority files a detailed plan for implementation 
of SSMs or ASMs within that three-year period, the quiet zone will be 
extended to five years to permit implementation of those plans. 
Paragraph (b)(3) permits a quiet zone to be extended for an additional 
three years (for a total of eight years) if the State files a 
comprehensive State-wide implementation plan and funding commitment 
within three years of publication of this rule, and if, within four 
years of publication, improvements are made to a crossing within the 
quiet zone, or to another crossing in another quiet zone elsewhere in 
the State.
    Paragraph (4) merely recommends that if the improvements planned by 
the public authority require FRA approval under Sec.  222.39(b), 
application for approval should be filed no later than thirty months 
after publication of this rule. This will provide sufficient time for 
FRA to review the proposal prior to the end of the three-year extension 
period.

Section 222.43 What Notices and Other Information Are Required To 
Establish a New Quiet Zone or To Continue a Pre-Rule Quiet Zone?

    This section governs the type and timing of notification and 
information that must be provided to various parties. The intent of 
this section is to ensure that interested parties are made aware in a 
timely manner of the establishment or continuation of quiet zones and, 
if necessary, of their termination. This section also details the 
information that must be provided to FRA. FRA received a small number 
of comments regarding the notice and information requirements of the 
proposed rule. Although most commenters acknowledged the necessity of 
notification procedures ensuring that all interested parties are aware 
of the existence of quiet zones, a few commenters suggested that the 
specific notice and information requirements of the proposed rule would 
be administratively burdensome and impractical. First, the BLE

[[Page 70640]]

expressed the opinion that a 14-day period between designation or FRA 
approval of a quiet zone and actual implementation is insufficient. The 
BLE recommended that this provision be modified to provide that a 
railroad has an affirmative duty to notify each employee of the 
establishment of a quiet zone via the railroad's usual means of 
communication with its employees. FRA agrees with the BLE that 14 days 
may not be sufficient and has therefore lengthened the 14 day period to 
21 days. However, despite the BLE's request for a regulatory 
requirement that railroads notify their employees of the establishment 
of a quiet zone, FRA is confident that railroads will indeed so notify 
their employees without the necessity of such a requirement, if for no 
other reason, than the railroad would be in violation of this 
regulation if horns were to routinely sound within quiet zone limits.
    Other commenters explained that because FRA accepts updates to the 
AAR Inventory only from States and railroads, the requirement for 
designating entities to submit the Inventory Forms is impractical. The 
Oregon Department of Transportation (``DOT'') explained that the State 
does not have the staff or resources to update the Inventory as the 
proposed rule would require. The Oregon DOT also questioned whether 
railroads would be willing to expend their resources to update the 
Inventory as proposed. The City of Fargo, North Dakota, and the City of 
Moorhead, Minnesota, echoed the Oregon DOT's concern in this regard and 
suggested three alternatives: (1) That communities be allowed to update 
the Inventory for crossings within quiet zones, (2) that railroads be 
required to update the Inventory when installing the safety measures 
necessary to implement the quiet zone, or (3) that FRA incorporate the 
information contained in the quiet zone notification into the 
Inventory. FRA is aware of the problem associated with updating the 
Inventory. However, an up-to-date Inventory is critical to the success 
of any quiet zone program. FRA needs accurate up-to-date data upon 
which to base its calculations of risk. FRA agrees in part with the 
Cities of Fargo and Moorhead that communities should be allowed to 
update the inventory and has addressed the issue in Sec.  222.49, ``Who 
may file Grade Crossing Inventory Forms?''
    Paragraph (a)(1) of this section provides that information 
pertaining to the establishment or continuation of quiet zones must be 
provided 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 crossings within the quiet zone; the landowner having 
control over any private crossings within the quiet zone; the State 
agency or agencies responsible for highway and railroad safety; and the 
Associate Administrator. While it is likely that most of these parties 
will be aware of the establishment of a quiet zone, this provision 
ensures complete and timely notification. 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 (a)(2) requires that the notice shall specify the grade 
crossings within the quiet zone, identified by both the U.S. DOT 
National Highway-Rail Grade Crossing Inventory Number and street or 
highway and the specific date upon which routine locomotive horn use at 
grade crossings shall cease. With the exception of Pre-Rule Quiet Zones 
continuing under Sec.  222.41, the cessation date shall not be earlier 
than 21 days after mailing of the notification. Paragraph (a)(3) 
details the requirement to reference the regulatory provision under 
which the quiet zone is being established or continued. In those 
instances in which the public authority is relying on risk calculations 
provided by FRA, this paragraph requires that a copy of the FRA web 
page containing the quiet zone data be included in the notice. In this 
way, all parties will understand the basis for establishment or 
continuation of the quiet zone.
    Paragraph (b) addresses the requirement that Grade Crossing 
Inventory Forms be filed with the Associate Administrator for each 
public and private highway-rail grade crossing within the quiet zone. 
This paragraph requires two Grade Crossing Inventory Forms for each 
crossing. One must be dated within six months prior to designation or 
FRA approval of the quiet zone. This filing will permit FRA to 
calculate risk based on current grade crossing information, and thus 
the public authority will be able to make planning decisions based on 
accurate data. The second Grade Crossing Inventory Form must reflect 
the SSMs and ASMs in place upon establishment of the quiet zone. This 
paragraph also requires that the Associate Administrator be furnished 
the name, title, and contact information of the public official 
responsible for monitoring compliance with the requirements of the 
regulation.
    Paragraph (b)(5) requires each chief executive officer of each 
public authority establishing or continuing a quiet zone under this 
part, to certify that responsible officials of the public authority 
have reviewed documentation prepared by or for FRA sufficient to make 
an informed decision regarding the advisability of establishing the 
quiet zone. This paragraph provides reference to the docket of this 
proceeding and to FRA's web page for documents which may be of interest 
to the chief executive or to the reviewing responsible officials. This 
provision is included in recognition of the differing views as to the 
efficacy of banning the routine use of locomotive horns at grade 
crossings and of the fact that establishment of quiet zones is not 
required by this rule, but is purely voluntary on the part of public 
authorities.

Section 222.45 When Is a Railroad Required To Cease Routine Use of 
Locomotive Horns at Crossings?

    This section addresses the requirement imposed on a railroad to 
cease routine use of the locomotive horn upon receipt of notice of 
establishment of a quiet zone. After a railroad receives notification 
from a public authority that a quiet zone is being established, the 
railroad, upon the date specified by the public authority, shall cease 
routine use of the locomotive horn at all public and private highway-
rail grade crossings identified by the public authority. After receipt 
of such a notice, a railroad is prohibited from routine use of the 
locomotive horn at the crossing after the date specified in the notice. 
While the most extensive use of the horn in railroad operations is to 
provide routine warning at highway-rail crossings, it has many other 
purposes as an audible signal. As stated in Sec.  222.23(b), this 
prohibition does not prevent a railroad from use of the horn for other 
purposes, e.g., to warn railroad employees working near the track of an 
approaching train, or to warn motorists of the approaching train in the 
event of a grade crossing safety system malfunction. This is not an 
all-inclusive list of the uses that this rule does not affect (e.g., 
use of horn to signal during switching operations; use of horn to alert 
pedestrians entering stations or to communicate within crews while 
leaving stations, etc.) Nor does this section prohibit emergency use of 
the horn, which is expressly permitted by Sec.  222.23, and which is, 
by definition, not routine.
    The form of the notice which triggers the cessation of routine horn 
use is specified in Sec.  222.43. Section 222.43 also requires that the 
notice be mailed,

[[Page 70641]]

by certified mail, to every railroad operating over the grade crossing 
subject to the New Quiet Zone.

Section 222.47 What Periodic Updates Are Required?

    This section details the periodic updates required of public 
authorities after a quiet zone is established. The NPRM, at proposed 
Sec.  222.39(a), (b), and (c), contained provisions generally similar 
to those in this section. However, rather than divide the section based 
on SSMs and ASMs as was done in the NPRM, this section distinguishes 
among quiet zones with SSMs at each public crossing (Sec.  
222.39(a)(1)), and those quiet zones which do not have SSMs at each 
public crossing (Sec. Sec.  222.39(a)(2) and 222.39(b)).
    There were few comments on proposed periodic updates. The City of 
Fargo, North Dakota commented that the periodic written affirmation 
requirements of Sec.  222.39 are excessive. Fargo suggested that FRA's 
reservation in Sec.  222.39(d) of the right to review at any time the 
status of any quiet zone is sufficient to assure that the SSM and ASM 
in place at crossings within the quiet zone fully compensate for the 
absence of the warning provided by the locomotive horn under the 
conditions then present at the crossings within the quiet zone. 
Likewise, to limit the reporting burden of the requirement for periodic 
quiet zone affirmations in the proposed rule, the City of Chicago, 
Illinois, recommended that State agencies responsible for railroad 
safety should be designated to monitor quiet zone grade crossing 
accidents under their existing procedures. FRA does not agree that an 
update every three or five years is burdensome. FRA needs to be 
informed of the current status of the quiet zone and when viewed in 
light of the safety interest and minimal inconvenience to the public 
authority, periodic updates on the schedule proposed is being retained.
    Paragraph (a) of this section governs periodic information updates 
for quiet zones with SSMs at each public crossing (those quiet zones 
established pursuant to Sec. Sec.  222.39(a)(1) and 222.41(a)(1)). This 
section requires the public authority to provide to FRA updated 
information every five years, with a six month window during which the 
information must be filed. Thus, the rule states that the required 
information must be filed between 4\1/2\ and 5 years after the initial 
implementation notice required by Sec.  222.43 and every 4\1/2\ to 5 
years thereafter. This section requires the public authority to affirm 
in writing to the Associate Administrator that the SSMs implemented 
within the quiet zone continue to conform to the requirements of 
Appendix A of this part. This requirement merely ensures that the 
original basis for establishment of the quiet zone continues to exist. 
Copies of the affirmation must be sent to the same parties which 
received the original notice of establishment of quiet zone (Sec.  
222.43(a)): 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 landowner having 
control over any private crossings within the quiet zone; the State 
agency responsible for highway and road safety; and FRA. The 
affirmation and copies must be provided to the required parties by 
certified mail, return receipt requested. In addition, the public 
authority must file with the Associate Administrator an up-to-date, 
accurate, and complete Grade Crossing Inventory Form for each public 
and private highway-rail grade crossing within the quiet zone.
    Paragraph (b) of this section governs periodic information updates 
for quiet zones which do not have an SSM at each public crossing (those 
quiet zones established pursuant to Sec. Sec.  222.39(a)(2) and (a)(3), 
Sec.  222.39(b) and Sec. Sec.  222.41(a)(2) and (a)(3)). FRA is 
providing for a shorter period between affirmations because of the 
greater possibility that changed circumstances will affect either the 
level of risk within zones where no SSMs or ASMs were necessary due to 
low risk or the effectiveness of the safety measures put in place in 
the quiet zone. Because the safety measures instituted at crossings 
subject to the three-year affirmation cycle are dependent on local 
circumstances and local effort, review on a more frequent basis is 
appropriate. Thus, the period between updates for these quiet zones is 
three years, rather than the five years for quiet zones provided in 
paragraph (a). The required information must be filed with the 
Associate Administrator between 2\1/2\ and 3 years after the initial 
implementation notice required by Sec.  222.43 and every 2\1/2\ to 3 
years thereafter. This section requires the public authority to affirm 
in writing to the Associate Administrator that all SSMs and ASMs 
implemented within the quiet zone continue to conform to the 
requirements of Appendices A and B of this part, and the terms, if any, 
of FRA's quiet zone approval. The method of notice and the parties to 
which the copies of the affirmation must be sent mirror the 
requirements in paragraph (a) above. As in paragraph (a), an up-to-
date, accurate, and complete Grade Crossing Inventory Form for each 
public and private highway-rail grade crossing within the quiet zone is 
required.

Section 222.49 Who May File Grade Crossing Inventory Forms?

    This section addresses filing of Grade Crossing Inventory Forms. 
The U.S. DOT National Highway-Rail Grade Crossing Inventory provides 
the basic database by which FRA compiles information pertaining to 
characteristics of both public and private highway-rail grade 
crossings. The data collected includes information on the railroad 
operating over the crossing, such as: the name of the railroad; maximum 
authorized speed of trains which cross the roadway; type of warning 
system at the crossing; train traffic at the crossing; type of railroad 
signal system, if any, at the crossing; and the number of tracks 
crossing the roadway. Similarly, the inventory contains information 
about the roadway and motor vehicle traffic at the crossing, such as: 
the type of road surface; number of lanes; and speed limit.
    It is essential that the inventory be up-to-date, accurate and 
complete in order that FRA's safety analyses are based on the best 
data. While filing of Inventory Forms has been voluntary, this Interim 
Final Rule requires the filing of such forms for each grade crossing 
within a quiet zone.
    Paragraph (a) of this section provides that if the State or 
railroad do not file Grade Crossing Inventory Forms with the Associate 
Administrator, in accordance with Sec. Sec.  222.43 and 222.47, the 
public authority may do so. Those sections require that forms be filed 
when a quiet zone is established (Sec.  222.43) and when periodic 
updates are filed with the Associate Administrator (Sec.  222.47). 
Providing the public authority with the authority to file Grade 
Crossing Inventory Forms prevents the public authority from being 
powerless if either the State or railroad fails to provide such needed 
information due, for instance, to the workload issues identified by 
commenters.
    Paragraph (b) requires that, upon the request of the public 
authority, the railroad owning the line of railroad that includes 
public or private highway-rail grade crossings within the quiet zone, 
or within the proposed quiet zone, shall provide sufficient current 
information to the State and public authority regarding the grade 
crossing and its operations to enable the State and public authority to 
complete the Grade Crossing Inventory Form. FRA is requiring that 
railroads

[[Page 70642]]

provide such information because it is information that, in many cases, 
is known only by the railroad. For instance, maximum authorized speed, 
track class, and type of railroad signal system at the crossing is not 
public knowledge and is not information that would be readily available 
to the public authority. FRA is declining in this rule to require the 
State to provide such information, except to the extent the State is a 
cooperating public authority in a quiet zone project (i.e., where a 
State highway is involved). While it is of course desirable that a 
State, and indeed, the railroad, cooperate in furnishing this important 
data, information that would be provided by a State, such as roadway 
type and traffic volume at the crossing, is readily available to the 
public authority.

Section 222.51 Under What Conditions Will FRA Review and Terminate 
Quiet Zone Status?

    This provision is intended to ensure that quiet zones, while 
providing for quiet at grade crossings, also continue to provide the 
level of safety for motorists and rail employees and passengers that 
existed before the quiet zones were first established, or in the 
alternative, the level of safety reached by the average public grade 
crossing where locomotive horns sound. In order to ensure this level of 
safety, FRA will review safety data on at least an annual basis. 
Paragraph (a) addresses FRA's annual risk reviews of New Quiet Zones, 
while paragraph (b) addresses FRA's annual risk reviews of Pre-Rule 
Quiet Zones. Paragraph (c) provides for a review of quiet zone status 
at the initiative of FRA.
Paragraph (a)--New Quiet Zones
    Paragraph (a) addresses annual reviews of risk levels at crossings 
within New Quiet Zones. This paragraph provides that FRA will annually 
calculate the Quiet Zone Risk Index for each New Quiet Zone established 
based on risk comparison with the Nationwide Significant Risk Threshold 
(Sec.  222.39(a)(2)) and quiet zones established based on application 
to, and approval of, FRA and that reduce risk to a level at, or below, 
the Nationwide Significant Risk Threshold (Sec.  222.39(b)(2)(ii)). 
Routine annual risk reviews will not be conducted for quiet zones 
established by having an SSM at every public crossing within the quiet 
zone (Sec.  222.39(a)(1)) and quiet zones established based on the risk 
level having been reduced to a level fully compensating for the absence 
of the train horn (Sec.  222.39(a)(3) and (b)(2)(i)). Annual risk 
reviews are not necessary for those quiet zones because the risk level 
has been reduced to a level which fully compensates for the absence of 
the horn. Any subsequent safety variations would be due to factors 
other than absence of the horn.
    Paragraph (a)(1) of this Sec.  222.51 provides that for those quiet 
zones which are subject to annual risk reviews (those quiet zones 
established pursuant to Sec. Sec.  222.39(a)(2) and 222.39(b)(2)(ii)), 
FRA will notify each public authority of the Quiet Zone Risk Index for 
the preceding calendar year. A Quiet Zone Risk Index above the 
Nationwide Significant Risk Threshold signifies an unacceptable 
increase in risk at crossings within the quiet zone.
    Paragraph (a)(2) addresses the actions that need to be taken by a 
public authority to retain a New Quiet Zone in the event the Quiet Zone 
Risk Index is above the Nationwide Significant Risk Threshold.
    Paragraph (a)(2)(i) provides that unless the public authority takes 
certain specified actions to reduce the risk level, the quiet zone will 
terminate six months after the public authority receives notice that 
the Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold. If the public authority wishes to retain the quiet zone, it 
must, within that six month period, provide to the Associate 
Administrator a written commitment to lower the potential risk to the 
traveling public at the crossings within the quiet zone, by reducing 
the risk level to a level at, or below, the Nationwide Significant Risk 
Threshold or to a level fully compensating for the absence of the train 
horn. As part of this commitment, the public authority must provide a 
discussion of the specific steps the authority plans to take to 
increase safety at the crossings within the quiet zone. Taking these 
actions will preserve the quiet zone for three years from the date of 
FRA notification--sufficient time for the public authority to implement 
safety measures at the quiet zone.
    Paragraph (a)(2)(ii) provides that in addition to complying with 
paragraph (a)(2)(i) (commitment and discussion of steps to be taken), 
within three years after the public authority receives notification 
from FRA that the Quiet Zone Risk Index exceeds the Nationwide 
Significant Risk Threshold, the public authority must complete 
implementation of SSMs or ASMs sufficient to reduce the Quiet Zone Risk 
Index to a level at, or below, the Nationwide Significant Risk 
Threshold, or to a level that fully compensates for the absence of the 
train horn. The public authority must receive approval of the Associate 
Administrator for continuation of the quiet zone. Procedures for such 
approval process are those set forth in Sec.  222.39(b). FRA is only 
requiring that the public authority reduce the risk index to either of 
the two risk levels (Nationwide Significant Risk Threshold or the risk 
level that fully compensates for the absence of the train horn). 
However, there are long term benefits in reducing the risk to the level 
that fully compensates for the absence of the train horn, rather than 
reducing the risk level to a level at, or below, the Nationwide 
Significant Risk Threshold. If the Quiet Zone Risk Index is reduced to 
a level that fully compensates for the absence of the train horn, the 
quiet zone will be considered to have been established pursuant to 
Sec.  222.39(a)(3) and thus subsequent annual risk reviews will not be 
conducted for that quiet zone. Annual risk reviews are not necessary 
for those quiet zones because the risk level has been reduced to a 
level which fully compensates for the absence of the horn. Any 
subsequent safety variations would be due to factors other than absence 
of the horn.
    Paragraph (a)(2)(iii) provides that failure of the public authority 
to comply with paragraph (a)(1) (commitment to lower the risk level) 
shall result in the termination of the quiet zone six months after the 
date of receipt of notification from FRA of the Quiet Zone Risk Index. 
This paragraph also provides that failure of the public authority to 
comply with paragraph (a)(2) (implementation of safety measures) shall 
result in the termination of the quiet zone three years after the date 
of receipt of notification from FRA of the Quiet Zone Risk Index.
Paragraph (b)--Pre-Rule Quiet Zones
    Paragraph (b) of this section addresses annual reviews of risk 
levels at crossings within Pre-Rule Quiet Zones. Certain categories of 
Pre-Rule Quiet Zones are not subject to annual risk reviews, i.e., 
those Pre-Rule Quiet Zones which met the requirements for public 
authority designation by implementing SSMs at each public grade 
crossing within the quiet zone (Sec.  222.41(a)(1)). Annual risk 
reviews are not necessary for those quiet zones because the risk level 
has been reduced to a level which fully compensates for the absence of 
the horn. Any subsequent safety variations would be due to factors 
other than absence of the horn.
    Paragraph (b)(1) provides that FRA will annually calculate the 
Quiet Zone Risk Index for two types of Pre-Rule Quiet Zones: each Pre-
Rule Quiet Zone that qualified for automatic approval pursuant to Sec.  
222.41(a)(2) (quiet zones

[[Page 70643]]

with a Quiet Zone Risk Index below the Nationwide Significant Risk 
Threshold) and those that qualified for automatic approval pursuant to 
Sec.  222.41(a)(3) (Pre-Rule Quiet Zones that originally qualified for 
automatic approval because the Quiet Zone Risk Index was above the 
Nationwide Significant Risk Threshold but was below twice the 
Nationwide Significant Risk Threshold and no relevant collisions had 
occurred within the five year qualifying period. Paragraph (b)(1) also 
provides that FRA will notify each public authority of the Quiet Zone 
Risk Index for the preceding calendar year for each such quiet zone in 
its jurisdiction. In addition, FRA will notify each public authority if 
a relevant collision occurred at a grade crossing within the quiet zone 
during the preceding calendar year.
    Paragraph (b)(2) addresses how the Quiet Zone Risk Index affects 
Pre-Rule Quiet Zones which were approved under Sec.  222.41(a)(2)--
those quiet zones which qualified because their Quiet Zone Risk Index 
was at, or below, the Nationwide Significant Risk Threshold. Paragraph 
(b)(2)(i) provides that the quiet zone may continue if the Quiet Zone 
Risk Index, as last calculated by FRA, continues to be at, or below, 
the Nationwide Significant Risk Threshold.
    Paragraph (b)(2)(ii) addresses the situation which occurs if the 
annual risk review indicates that the Quiet Zone Risk Index is above 
the Nationwide Significant Risk Threshold, but is less than twice the 
Nationwide Significant Risk Threshold. In this situation, the quiet 
zone may continue only if there have not been any relevant collisions 
at public grade crossings within the quiet zone for five years 
preceding the annual risk review. That is, a Pre-Rule Quiet Zone 
initially established on the basis that the Quiet Zone Risk Index fell 
below the NSRT may be continued without further action by the public 
authority only if it would have initially qualified based on the no 
relevant accident criterion and only if the quiet zone has been free of 
relevant collisions thereafter.
    Paragraph (b)(2)(iii) addresses the situation in which the 
conditions for continuation of a quiet zone under (b)(2)(ii) do not 
apply, resulting in the quiet zone will terminating six months after 
receipt of notification from FRA of the Nationwide Significant Risk 
Threshold. Explained differently, if the Quiet Zone Risk Index is at, 
or above twice the Nationwide Significant Risk Threshold, the quiet 
zone will terminate six months after receipt of FRA's notification. 
Similarly, if the Quiet Zone Risk Index is above the Nationwide 
Significant Risk Threshold but is lower than twice the Nationwide 
Significant Risk Threshold and a relevant collision occurred at a 
crossing within the quiet zone during the five years preceding the 
annual risk review, the quiet zone will terminate six months after 
receipt of FRA's notification.
    Subsequent annual reviews of such quiet zones will be subject to 
paragraph (3), i.e., the quiet zones will be considered to have been 
established under Sec.  222.41(a)(3), which permits quiet zones if the 
Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold but less than twice the Nationwide Significant Risk Threshold 
and there have been no relevant collisions at any public grade crossing 
within the quiet zone for the last five years. Paragraph (a)(2)(ii) 
requires that the public authority must, within three years after FRA 
notification, complete implementation of SSMs or ASMs sufficient to 
reduce the Quite Zone Risk Index to a level at, or below, the 
Nationwide Significant Risk Threshold or to a level that fully 
compensates for the absence of the train horn. Of course, as in other 
provisions of this rule, safety measures other than implementation of 
SSMs at every public crossing require approval by the Associate 
Administrator.
    Rather than reducing the Quiet Zone Risk Index to a level at, or 
below, the Nationwide Significant Risk Threshold, the public authority 
may decide that it is more effective to reduce the risk level to a 
level that fully compensates for the absence of the train horn. If this 
action is taken, the quiet zone will be considered to have been 
established pursuant to Sec.  222(a)(3) and subsequent annual risk 
reviews will not be conducted, although the quiet zone, like all quiet 
zones, is subject to reviews at the initiative of FRA. If either of the 
actions specified by paragraph (b)(4) are not taken, the quiet zone 
will terminate six months after the date of notification from FRA.
    Paragraph (b)(3) governs annual risk reviews of risk levels at 
crossings within quiet zones established under Sec.  222.41(a)(3)--
quiet zones which originally qualified for automatic approval because 
the Quiet Zone Risk Index was below twice the Nationwide Significant 
Risk Threshold and no relevant collisions had occurred within the five 
year qualifying period. Paragraph (b)(3)(i) provides that a quiet zone 
may continue unchanged if the Quiet Zone Risk Index as last calculated 
by FRA remains below twice the Nationwide Significant Risk Threshold 
and no relevant collisions occurred at a public grade crossing within 
the quiet zone during the preceding calendar year. Thus, the quiet zone 
may continue if the conditions which qualified the quiet zone in the 
first place have remained essentially unchanged. Paragraph (b)(3)(ii) 
addresses the situation in which conditions have changed. If the Quiet 
Zone Risk Index as last calculated by FRA is above twice the Nationwide 
Significant Risk Threshold, or if a relevant collision has occurred at 
a public grade crossing within the quiet zone during the previous 
calendar year, the quiet zone will terminate six months after the date 
of notification from FRA, unless the public authority takes the actions 
specified in paragraph (b)(4).
    Paragraph (b)(4) addresses the actions that need to be taken by the 
public authority to retain a quiet zone. This paragraph, which governs 
Pre-Rule Quiet Zones, is similar to paragraph (a)(2) which governs such 
situations involving New Quiet Zones. Paragraph (b)(4)(i) provides that 
if the public authority wishes to retain the quiet zone, it must take 
certain actions during the six month period following notification by 
the FRA of the most recent Quiet Zone Risk Index. The public authority 
must provide to the Associate Administrator a written commitment to 
lower the potential risk to the traveling public at the crossings 
within the quiet zone, by reducing the risk level to a level below the 
Nationwide Significant Risk Threshold or to a level fully compensating 
for the absence of the train horn. As part of this commitment, the 
public authority must provide a discussion of the specific steps the 
authority plans to take to increase safety at the crossings within the 
quiet zone. Taking these actions will preserve the quiet zone for three 
years from the date of FRA notification--sufficient time for the public 
authority to implement safety measures at the quiet zone.
    Paragraph (b)(4)(ii) requires that the public authority must, 
within three years after FRA notification, complete implementation of 
SSMs or ASMs sufficient to reduce the Quiet Zone Risk Index to a level 
below the Nationwide Significant Risk Threshold or to a level that 
fully compensates for the absence of the train horn. As in other 
provisions of this rule, safety measures other than implementation of 
SSMs at every public crossing require approval by the Associate 
Administrator.
    Paragraph (b)(4)(iii) provides that failure of the public authority 
to comply with paragraph (a)(1) (commitment to lower the risk level) 
shall result in the termination of the quiet zone six months after the 
date of receipt of notification from FRA of the Quiet Zone Risk Index.

[[Page 70644]]

This paragraph also provides that failure of the public authority to 
comply with paragraph (a)(2) (implementation of safety measures) shall 
result in the termination of the quiet zone three years after the date 
of receipt of notification from FRA.
Paragraph (c)--Review at FRA Initiative
    Paragraph (c) provides that the Associate Administrator may, at any 
time, review the status of any quiet zone. This section is included in 
the rule to enable the Associate Administrator to deal with unforeseen 
safety situations which may arise in the future. Under this provision, 
if the Associate Administrator makes a preliminary determination that 
safety systems and measures do not fully compensate for the absence of 
the locomotive horn, or that there is significant risk with respect to 
loss of life or serious personal injury, (e.g., if the collision 
history in the quiet zone indicates that removal of the train horn has 
resulted in a dramatically higher than expected increase in risk 
similar to the FEC experience) he or she will provide a written notice 
of that determination to the public authority and other parties 
originally provided notice under Sec.  222.43. FRA appreciates the 
comment of the MDEC which pointed out that the original language in 
proposed Sec.  222.39(d) limited actual notice of such preliminary 
determination to the public authority. MDEC commented that limiting 
notice of FRA's preliminary determination to publication in the Federal 
Register is insufficient. Accordingly, FRA has modified the 
notification procedures to include notification of those parties 
originally receiving notification of the establishment of the quiet 
zone under Sec.  222.43.
    The Associate Administrator will also publish a notice in the 
Federal Register. The public authority and other interested parties 
will have the opportunity to provide comments to the Associate 
Administrator before any action is taken by the Associate 
Administrator. After the comment period, the Associate Administrator 
may require that additional safety measures be taken or that the quiet 
zone be terminated. If the public authority wishes the decision to be 
reconsidered, it may petition the Associate Administrator for 
reconsideration under the provisions of Sec.  222.57(b). Upon the 
filing of such a petition, the Associate Administrator will give the 
petitioner an opportunity to submit additional materials and an 
opportunity for an informal hearing. Although very unlikely, conditions 
at any particular crossing or quiet zone could pose such an imminent 
hazard that such a protracted process may be contrary to public safety. 
Thus, paragraph (c) makes clear that the paragraph is not intended to 
limit the Administrator's emergency order authority under 49 U.S.C. 
20104 and 49 CFR part 211. That statutory authority provides the 
Administrator authority to immediately issue emergency orders ``when an 
unsafe condition or practice, or a combination of unsafe conditions and 
practices, causes an emergency situation involving a hazard of death or 
personal injury.''
Paragraph (d)--Public Authority Responsibility
    Paragraph (d) provides that if a quiet zone is terminated under a 
provision of this section, the public authority has the responsibility 
to notify all parties listed in Sec.  222.43(a) of the termination. The 
manner of such notification shall be in accordance with Sec.  
222.43(a).
Paragraph (e)--Railroad Responsibility
    Paragraph (e) provides that upon notification from either the 
public authority, or from FRA, that the quiet zone is being terminated, 
the railroads shall, within seven days, sound the locomotive horn when 
approaching and passing through all public highway-rail crossings 
within the former quiet zone.

Section 222.53 What Are the Requirements for Supplementary and 
Alternative Safety Measures?

    This section, through reference to Appendices A and B, lists 
acceptable SSMs and ASMs. Paragraph (a) states that approved SSMs are 
listed in Appendix A, while paragraph (b) states that Appendix B lists 
those ASMs that may be included in a request for FRA approval of a 
quiet zone under Sec.  222.39(b).
    Paragraph (c) states that standard traffic control device 
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 are not considered 
SSMs or ASMs. This provision is consistent with the statutory 
definition of an SSM (49 U.S.C. 20153(a)(3)).

Section 222.55 How Are New Supplementary Safety Measures Approved?

    This section addresses the manner in which new SSMs are 
demonstrated and approved for use. This section is similar to the 
NPRM's proposed Sec.  222.43, with three exceptions. Paragraph (e) has 
been revised to provide that when the Associate Administrator approves 
the use of a new SSM, notice of that approval will be published in the 
Federal Register. Paragraph (d) has been revised to provide that the 
Associate Administrator may impose any conditions or limitation on use 
of the SSMs which the Associate Administrator deems necessary in order 
to provide the level of safety at least equivalent to that provided by 
the locomotive horn. The standard of a level of safety ``at least 
equivalent to that provided by the locomotive horn'' is more 
appropriate and consistent with the rest of the rule than the former 
standard of ``the highest level of safety.'' Paragraph (d) has also 
been revised to provide that the Associate Administrator, rather than 
approving a proposed safety measure as an SSM, may approve it as an 
ASM.
    Paragraph (b) provides that interested parties may demonstrate 
proposed new SSMs or ASMs to determine if they are an effective 
substitute for the locomotive horn in the prevention of highway-rail 
grade crossing casualties. Paragraph (c) provides that the Associate 
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 SSMs or ASMs. This paragraph 
reflects statutory language and requires that proposed new SSMs (and 
ASMs) 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.
    Paragraph (d) provides that upon the successful completion of a 
demonstration of proposed SSMs or ASMs, interested parties may apply 
for their approval. This section requires certain information to be 
included in every application for approval.
    Paragraphs (e) and (f) provide that if the Associate Administrator 
is satisfied that the proposed SSM fully compensates for the absence of 
the locomotive horn, its use as an SSM (with any conditions or 
limitations deemed necessary) will be approved and it will be added to 
Appendix A. Rather than approving the proposed safety measure as an 
SSM, the Associate Administrator may approve it as an ASM. The 
applicant is notified and a

[[Page 70645]]

notice of such approval is published in the Federal Register.
    Paragraph (g) provides an opportunity to appeal a decision of the 
Associate Administrator for Safety. The party applying for approval of 
an SSM or ASM may appeal to the Administrator a decision by the 
Associate Administrator rejecting a proposed SSM or ASM or the 
conditions or limitations imposed on its use.

Section 222.57 Can Parties Seek Review of the Associate Administrator's 
Actions?

    This new section has been added to explicitly detail the right of 
parties to seek review of the Associate Administrator's actions. 
Paragraph (a) addresses decisions by the Associate Administrator 
granting or denying approval of a new SSM or ASM under Sec.  222.55. A 
public authority or other interested party may petition the 
Administrator for review of a decision by the Associate Administrator 
approving or denying such an application. This paragraph requires that 
the petition be filed within 60 days of the decision to be reviewed. 
The petition must specify the grounds for the requested relief, and be 
served on all parties identified in Sec.  222.43(a) (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 landowner having control over any private crossings 
within the quiet zone, and the State agency responsible for highway and 
road safety). Filing of a petition under this paragraph does not stay 
the effectiveness of the action sought to be reviewed unless the 
Administrator specifically provides otherwise and either gives notice 
to the petitioner or publishes a notice in the Federal Register to that 
effect. The Administrator may reaffirm, modify, or revoke the decision 
of the Associate Administrator without further proceedings and shall 
notify the petitioner and other interested parties in writing or by 
publishing a notice in the Federal Register.
    Paragraph (b) addresses reviews of decisions by the Associate 
Administrator: denying an application for approval of a quiet zone; 
requiring additional safety measures at crossings within a quiet zone; 
or terminating a quiet zone. This paragraph provides that a public 
authority may challenge a decision by the Associate Administrator in 
the above situations by filing a petition for reconsideration with the 
Associate Administrator. The petition must specify the grounds for the 
requested relief, be filed within 60 days of the decision to be 
reconsidered, and be served upon all parties identified in Sec.  222.43 
(a). The Associate Administrator will then provide the petitioner an 
opportunity to submit additional materials and an opportunity for an 
informal hearing. Upon review of the additional materials and 
completion of any hearing requested, the Associate Administrator will 
issue a decision on the petition. This decision will be 
administratively final.

Section 222.59 When May a Wayside Horn Be Used?

    The effectiveness of wayside horns as compensating for the lack of 
a locomotive horn has been addressed earlier in this notice. This 
section addresses the circumstances in which wayside horns may be used 
in lieu of the locomotive horn.
    Paragraph (a) provides that a wayside horn conforming to the 
requirements of Appendix E may be used in lieu of a locomotive horn at 
any highway-rail grade crossing equipped with an active warning system 
consisting of, at a minimum, flashing lights and gates. Thus, 
installation of wayside horns are not limited to quiet zones, but may 
be used at any grade crossing equipped with at least gates and lights.
    Paragraph (b) addresses use of wayside horns within quiet zones. 
Wayside horns conforming to the requirements of Appendix E may be 
installed within a quiet zone. FRA is fully aware that in one sense, 
the purpose of a quiet zone may be considered to be defeated if horns 
still sound to indicate the approach of a train, irrespective of 
whether the horn is stationary or is located on a locomotive. However, 
the choice is left up to the public authority. That entity may find the 
wayside horn, with a horn sounding in a less obtrusive manner, to be 
preferable to installation of SSMs. The presence of a wayside horn will 
be considered to be the same as a crossing treated with an SSM in 
determining the length of a quiet zone. Thus, a crossing equipped with 
a wayside horn may be in the middle of a one-half mile long quiet zone 
without jeopardizing the establishment of the quiet zone. In those 
situations in which the Quiet Zone Risk Index must be calculated, any 
grade crossings equipped with a wayside horn shall not be included in 
such calculations. The risk level will thus be determined by the 
average risk level at the remaining crossings.

Appendices A and B

    Appendix A lists those SSMs which FRA has determined effectively 
compensate for the lack of a locomotive horn. Because each SSM 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 ASMs 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. 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. It is meant to assist in the community's decision-making process 
in determining whether to designate a quiet zone under Sec.  222.39(a) 
or to apply for approval of a quiet zone under Sec.  222.39(b).

Appendix A

    This Appendix lists those SSMs which FRA has determined effectively 
compensate for the lack of a locomotive horn. Included in the 
discussion of each SSM is an ``effectiveness'' figure for that measure. 
That figure indicates the effectiveness of the SSM in reducing the 
probability of a collision at a highway-rail grade crossing.
    As discussed earlier, effectiveness rates are based on actual 
experience showing how much each SSM has reduced the probability of a 
collision. The issue of what should constitute an SSM or ASM generated 
a number of comments to the NPRM. Generally, communities expressed 
displeasure with the proposed list of SSMs. Railroads, however, 
expressed general satisfaction with the suggested SSMs.
    The majority of public comments focused on communities' 
dissatisfaction with the proposed SSMs because they are thought to be: 
(1) Prohibitively expensive to implement; (2) impracticable, unfeasible 
or inapplicable to their particular community's street grid; and (3) 
incompatible with the three-year implementation period proposed in the 
NPRM. The cost of installation and maintenance is of particular concern 
to communities. State Senator Patrick J. O'Malley of Illinois predicted 
that the cost of installing SSMs will be ``enormous.'' Selectman 
Attillio Paglia from the Town of Rawley, Massachusetts expressed 
displeasure that local funds would have to be spent implementing 
expensive SSMs instead of funding other local concerns such as

[[Page 70646]]

schools, libraries and police stations. The General Manager of Pioneer 
Valley Railroad in Westfield, Massachusetts noted that while the SSMs 
will be installed at the cost of the community, they will be maintained 
by the railroads. A representative of BLAST (Beverly [Massachusetts] 
Lobbying Against Sounding of Train Horns) recommends that any Federal 
or State funding for new or improved crossings have a stipulation 
requiring an SSM at each crossing.
    Some communities were dissatisfied with the proposed list of SSMs 
because the available options are claimed to be too limited, since, it 
is argued, only one or two of the SSMs may be applicable to a 
particular community. For example, State Representative Michael Festa 
from the City of Melrose in Massachusetts noted that many of crossings 
in his district are very busy commuting streets that are perpendicular, 
which makes some SSMs unfeasible. Likewise, Councilman Doyle Slater of 
LaGrand, Oregon noted that photo enforcement, one way streets, 
nighttime closures and medians are not practical at many crossings. 
Moreover, communities in Illinois, as expressed by the Commissioner of 
Chicago's Department of Transportation, have fewer options to choose 
from because many of the prescribed SSMs are not feasible or legal in 
Illinois. Megan Swanson, a Planning Coordinator for the West Central 
Municipal Conference, stated that only one way streets or closures were 
applicable. An extreme case is that of the village of Hinsdale, 
Illinois, where the President of the village, opined that no SSM is 
possible within village limits. Illinois had particular problems with 
the proposed SSMs because, as noted by the Village of Winfield, the 
Illinois Commerce Commission (ICC) did not approve the use of four-
quadrant gates or photo enforcement at crossings, thereby further 
limiting the options available to communities. See discussion under 
``Chicago Region'' above for general responses to concerns related to 
Illinois practice.
    In the NPRM, and to an even greater extent in this Interim Final 
Rule, FRA has provided flexibility to public authorities in the 
selection of SSMs to be used at crossings within a community. There 
are, of course, wide variations in costs between, for example, four 
quadrant gates and medians. Because of those variations, and variations 
in the ability of communities to pay for various improvements, and 
physical limitations at certain crossings limiting options, FRA crafted 
the NPRM and this Interim Final Rule to provide the greatest level of 
flexibility to the community. The public authority is best suited to 
determine which SSM is appropriate for a specific crossing. That body, 
will, in addition to considering cost, consider other factors as well: 
physical limitations at the crossing; aesthetics; maintenance costs; 
and acceptance of a specific safety measure by the State.
    FRA believes that providing public authorities with the choice of 
implementing SSMs or alternative measures, the choice of which measures 
to implement within those categories, and in many circumstances, the 
choice of which crossing to improve in order to bring the quiet zone's 
risk level into the acceptable range, provides an almost unlimited 
range of choices and thus a vast range of potential costs. FRA notes 
that the estimates of the cost of SSMs in the Chicago Region made by 
various parties during the NPRM comment period were notably unrealistic 
and were based on the most expensive scenario of four-quadrant gates at 
every crossing and construction costs based on the invalid assumption 
that each crossing would be upgraded from no warning system to four-
quadrant gates.
    The AAR has emphatically stated its position that locomotive horns 
should only be banned at crossing that have sufficient safety devices 
to substitute for the audible warning. In the view of the AAR, 
``engineering'' methods, such as four-quadrant gates and closures can 
be effective substitutes for the sounding of horns, while the use of 
``non-engineering'' SSMs like photo enforcement, programmed 
enforcement, public awareness and education are not appropriate. The 
AAR submits that these non-engineering measures do not provide 
assurance that they sustain the same level of safety as a locomotive 
horn. In contrast to the AAR's stance, METRA's chairman suggested that 
non-engineering measures such as advanced train alert technology, grade 
separation projects, stricter enforcement penalties, and public 
awareness education projects are more effective and a less expensive 
way to improve crossing safety than engineering methods. FRA has 
considered AAR's view along with those comments supporting the use of 
such non-engineering safety measures. Such safety measures are only 
acceptable when they have resulted in documented reduction in traffic 
law violation rates at crossings. In such cases, their efficacy in 
reducing risk has been shown. Further monitoring of such reductions 
will help to ensure that they remain effective. However, FRA agrees 
that photo enforcement requires scrutiny on a location-specific basis 
and has therefore moved photo enforcement to the category of 
Alternative Safety Measures.
    Several communities such as Arvada, Colorado; Brighton, Colorado; 
Fort Collins, Colorado; Wichita, Kansas; Manchester by the Sea, 
Massachusetts; Northfield, Minnesota; Roseville, California; and 
Madison, Wisconsin suggested adding the following to the list of SSMs 
in order to add flexibility and reduce installation costs: (1) Wayside 
horns, (2) longer gates that cover the entire road, (3) placing 
lighting on trains similar to that of emergency vehicles, and (4) 
articulated gates. As noted elsewhere in this rule, wayside horns are 
acceptable substitutes for the locomotive horn under the provisions of 
Sec.  222.59. Long gates that cover the entire road are acceptable in 
one-way street situations. See Appendix A. FRA is not at this time 
aware of non-articulated gates that extend over two opposing lanes of 
traffic, and it would not appear prudent to use such an arrangement in 
most cases given the potential to entrap vehicles between the gates. 
FRA has explored the use of 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). As stated in the NPRM, `` such 
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.'' While use of 
such gates has been studied, it is apparent that they have not yet 
reached a stage of reliability such that they would be an acceptable 
SSM. FRA will continue to monitor their development for future 
acceptance as an SSM.
    The use of longer gate arms has also been considered during the 
rulemaking. Longer gate arms extend beyond the centerline of the 
roadway and block a portion of the opposing lane of traffic. This 
application differs from the long gate arms previously discussed which 
extend completely across the roadway in that the longer gate arms do 
not completely block the lane of a vehicle exiting from the crossing. 
The opening that is left between the end of the gate arm and the curb 
would allow room for a vehicle to exit the crossing without becoming 
trapped on the crossing. The longer gate arms would make it more 
difficult for a motorist to drive around the lowered gate arms. At this 
time there have been few test installations of this technology, and FRA 
does not feel that

[[Page 70647]]

there is enough experience with longer gate arms to include them as an 
SSM at this time. FRA will continue to monitor their development for 
future acceptance as an SSM. FRA is also aware of a manufacturer that 
has developed a gate arm that telescopically extends beyond the 
centerline and is equipped with a sensing mechanism which will stop the 
extension if it encounters an obstacle. This technology has potential 
to be considered as an SSM but has yet to be field tested. FRA will 
also monitor this technology.
    California PUC's Rail Safety and Carrier Division advised that each 
crossing in a quiet zone should be equipped with ``Remote Health 
Monitoring.'' Missouri's Division of Motor Carrier and Railroad Safety 
stated that each SSM should have constant warning time with redundancy. 
We note that the rule requires that all active grade crossing warning 
devices in New Quiet Zones be equipped with power-out indicators 
(defined to include remote health monitoring that includes reporting 
exceptions to primary power status) and (with limited exceptions) 
constant warning time devices. See Sec.  222.35(b).
    FRA received a large number of comments addressing specific SSMs. A 
brief summary of comments received follows.
Temporary Closure of a Public Highway-Rail Grade Crossing
    Some communities expressed concern with the temporary closure. The 
communities of Orlando Park and Wilmette, both in Illinois, viewed 
closures as impractical or not feasible. Community representatives 
argued that most crossings are major thoroughfares, and thus closing a 
crossing would have a serious impact on traffic patterns. Jeffrey 
Smelty, chairman of the Executive Committee of the Chicago Area 
Transportation Studies Council of Mayors, stated that closures are a 
``viable option only in a few instances of low volume roads.'' The 
President of the Village of Northbrook claims that closing low volume 
crossings would have little effect on collisions since the low volume 
itself decreases the statistical risk of an accident. Two States, the 
Kansas DOT and Missouri Division of Motor Carrier and Railroad Safety 
commented that if a crossing can be temporarily closed part of the day, 
then it should be able to be closed permanently. They were also 
concerned with the potential for human error in closing and opening the 
roadway. In contrast, the North Carolina DOT stated that overnight 
closures should be given a preference in the rule because it would 
entirely eliminate the need for horns to sound.
    The AAR expressed concern regarding the potential confusion that 
would occur if States and localities adopt different closure periods. 
Different closure times would mean that engineers would have to know 
each crossing's closing period, thus placing an extra burden on the 
engineer. Therefore, the AAR recommended that the FRA establish uniform 
closure periods for every day of the week. Additionally, the AAR 
recommended that the FRA require barriers that cannot be moved by the 
public and cannot be crossed by automobile or pedestrian traffic. A 
comment by Wichita, Kansas took into account the possible side effects 
of temporary closures. They noted that temporary closures may result in 
drivers speeding to beat the closure time. They were also concerned 
about the possibility of disrupting emergency vehicle service routes.
    FRA does not view the temporary closure as a solution for every 
crossing in every situation. Commenters are indeed correct that in some 
situations temporary closures are impractical. However, temporary 
closures can in some circumstances provide a legitimate alternative to 
other SSMs. This alternative is but one among a number of choices 
available to public authorities in developing quiet zones. FRA believes 
that the MUTCD provides appropriate standards for barriers and that 
train crews can become familiar with quiet zone time periods.
Four-Quadrant Gate System
    Comments on the four-quadrant gate system (``4Q system'') centered 
on its cost, potential for failure, and dangerousness. The FRA did 
receive praise on this proposed SSM from some, including the Washington 
Department of Transportation, which stated that the proposal 
``indicated extensive thought and effort.'' Others had problems with 
the 4Q system. The State of Illinois was particularly concerned with 
the 4Q system because the ICC did not allow for their use at highway-
rail grade crossings. The ICC had concerns about safety regarding 
trapped vehicles in the crossing. Also, the ICC believes that it will 
take more time than the FRA estimates for vendors and railroads to 
design, manufacture, and install the gates to meet all of the new 
demand.
    Many comments provided suggestions for improving the design of the 
4Q system to make its overall functioning safer. The Florida Department 
of Transportation recommended that median barriers of at least 100 feet 
be required at crossings in addition to the gates. This overall 
sentiment was echoed by the Missouri Division of Motor Carrier and 
Railroad Safety, which objected to the term ``blocked crossing'' being 
used to describe the 4Q system because the gates only ``greatly deter'' 
a driver and do not totally impede a vehicle or pedestrian from 
crossing the gated tracks. The New Jersey Department of Transportation 
suggested that all traffic signals within 200 feet be equipped with 
preemption circuitry.
    Most States and communities, like Moorhead, Minnesota, were 
particularly concerned with the danger of a car getting trapped within 
the gates on the tracks. Robert Guttman, a top official on the MBTA 
Advisory Board believes that quadrant gates should be outfitted with a 
safety mechanism to prevent vehicles from being trapped. Another safety 
measure that communities would like to see is constant warning time 
circuitry. The AAR points out, however, that this system may be 
impractical at crossings with three or more tracks.
    One of the most controversial issues centered on whether to have 
the four-quadrant gates programmed to stay up or down during a failure 
of the system. Concerned with safety, the North Carolina DOT clearly 
stated that gates should always fail in the down position. This 
position was supported by a study conducted in conjunction with Norfolk 
Southern titled ``Exit Gate-Arm Fail-Safe Down Test.'' The data 
provided evidence that fewer vehicles traveled through a failed 
crossing when all the gates were in the down position than when one or 
more of the gates were in the upright position. Communities and their 
representatives disagree; for example, Illinois State Representative 
Eileen Myins stated, ``What will they do when double gates malfunction, 
and there is no way around them?'' Gate failure appears to be a 
``particularly bothersome'' problem, as noted by Massachusetts State 
Representative Michael Cahill: ``gates frequently malfunction in the 
down position, resulting in motorists who leave their car, get on the 
track, and wave motorists across the tracks because there is no train 
approaching.'' Mayor William Scanlon of the city of Beverly in 
Massachusetts also reports frequent incidents of failure where police 
have had to direct traffic around the gates. Therefore, these 
communities recommended that the gates fail in the upright position.
    Another area of great concern with the four quadrant gate system 
was the cost, which Orlando Park, Illinois describes as ``inordinately 
expensive.'' A representative of Chicago referred to a

[[Page 70648]]

study done by the General Accounting Office, which stated that a single 
system equipped with sensors to detect trapped cars could cost $1 
million. The BRS disagrees, estimating that vehicle detection systems 
can be installed for around $175,000.
    Vehicle detection systems are used for a variety of purposes in 
traffic control systems. They generally consist of inductive loops 
buried just beneath the surface of the roadway to detect a metal mass 
over the location. Their cost will vary depending upon the complexity 
of the application. In pilot studies and high-speed rail applications, 
costs of four-quadrant gate installations with complex vehicle presence 
detection systems have approached $1 million; however, it appears that 
much of this cost has resulted from attempts to make the circuitry 
fully fail-safe in nature. Neither the MUTCD nor FRA regulations 
require that vehicle presence detection function on a fail-safe or 
closed circuit principle. Rather, in the context of a four-quadrant 
gate system it appears that a reasonable design objective would be a 
high degree of reliability in detecting a motor vehicle. FRA believes 
that a typical installation should be feasible for costs in the range 
of $175,000 to $250,000.
    FRA wishes to emphasize that use of vehicle presence detection 
makes sense only where there is reason to be concerned about storage on 
the crossing due to cued traffic (normally as a result of nearby 
intersections). For instance, the State of Florida has installed 
several four-quadrant gate systems without vehicle presence detection 
along the Tri-Rail commuter line in south Florida. Those installations 
have functioned well. By contrast, FRA agrees that, at many Chicago 
Region crossings with nearby traffic signals and heavy traffic volumes, 
use of vehicle presence detection to keep the exit gate arms up until 
all vehicles clear the track will be fully warranted. The question of 
whether the exit gates should fail up or down has been resolved by 
amendments to the MUTCD subsequent to the publication of the NPRM. 
These amendments permit failure down only in the presence of remote 
health monitoring.
    The AAR objected to FRA's proposed requirement that gates must be 
activated by use of constant warning time devices. The AAR stated that 
``constant warning time devices are not always practical. For example, 
constant warning time devices may be impractical where three or more 
tracks are located close to each other. Thus, FRA should at most 
require constant warning time devices where practical.'' FRA 
acknowledges concerns about the use of constant warning time devices in 
electrified territory and AAR's concerns about three track crossings. 
Accordingly, FRA is requiring constant warning time devices where 
reasonably practical.
Gates With Medians or Channelization Devices
    In the NPRM, FRA proposed to require that gates with medians or 
channelization devices be considered SSM if: opposing traffic lanes on 
both highway approaches to the crossing are separated either by medians 
bounded by barrier curbs or medians bounded by mountable curbs if 
equipped with channelization devices. FRA proposed that such medians 
must extend at least 100 feet from the gate, unless there is an 
intersection within that distance. If so, the median must extend at 
least 60 feet from the gate, with intersections with that 60 feet 
closed or moved.
    The median barrier option was given positive comments by some, and 
constructive criticism by others. Communities commented that they can 
be impracticable, expensive, unsafe, and that the required median 
length is too long. Planning Coordinator of the West Central Municipal 
Conference, Megan Swanson and Mayor Jeffrey Smelty pointed out that 
median barriers are simply ``aesthetically displeasing'' or have 
``aesthetic problems.'' Orlando Park, Illinois submitted that the 
medians were ``inordinately expensive.''
    Several commentaries focused on the possible safety hazards that 
may arise when median barriers are installed. Mayor William Scanlon of 
the City of Beverly noted that fire apparatus would be inhibited when 
trying to pass vehicles near the grade crossing medians. The New Jersey 
Department of Transportation offered a possible solution by suggesting 
that mountable medians be installed to allow for emergency vehicle 
access. The problem with mountable devices, as the Florida and North 
Carolina DOTs point out, is that they can be ``high maintenance'' 
items, and may encourage drivers to drive over the median. Others, such 
as LCI Energy of Ipswich, Massachusetts, were concerned about disabled 
vehicles and the driver's ability to escape from the vehicle. Jefferson 
Parish, Louisiana noted that medians may invite motorists to make 
additional U-turns that they would not have otherwise made but for 
their driveway being blocked. Another safety concern brought up by 
David Bier of LaGrange, Illinois, is that installing barriers may 
create a secondary problem of vehicles crashing into the medians.
    The main body of commentary complained that median barriers are 
simply impracticable. Many submissions, such as those from the Kansas 
Department of Transportation; Chicago Department of Transportation; 
Ipswich, Massachusetts; Edward Sirovy of the Dupage Railroad Safety 
Council; Gene Shannon of the Metropolitan Council of Governments; 
Wilmette, Illinois; Mayor Jeffrey Smelty; Peter Wells, City Attorney of 
Pendleton, Oregon; and Joan Johnson of BLAST, noted that most of their 
crossings are adjacent to a parallel highway intersection, making 
barriers unusable, especially if the required distance remains 100 
feet. These comments also noted that narrow roads would make 
installation of median barriers impossible. Gene Shannon was 
particularly concerned that motorists would be unable to access 
businesses if a median was installed. Communities located in the north 
said that medians were not an option because they would either prevent 
snow from being plowed off the road, or be inadvertently destroyed by 
the plow.
    Another body of commentary focused on the required length of the 
proposed medians. Most communities requested that the FRA shorten the 
requirement so that the barriers could be installed at more locations. 
But the Florida Department of Transportation requested that the medians 
be mandated to be a fixed height of nine inches and a length of 200 
feet, so that motorists would not drive around them. Of the commenters 
that believed medians should be shorter, there was disagreement as to 
whether the length should be set or decided on a crossing by crossing 
basis. The Kansas Department of Transportation stated, ``We encourage 
that the determination of the length of median be made as a crossing 
specific engineering decision and that the 100-foot distance is only a 
recommended practice.'' The Missouri Division of Motor Carriers 
submitted that a shorter median may be just as effective as a longer 
one, and that a State level diagnostic team should assess the 
particular length of each median. In contrast, Illinois ICC recommended 
that FRA avoid arbitrary criteria for the length and material of 
medians.
    FRA understands the point made by many commenters that median 
length may be substantially constrained by roadway geometry. However, 
safety at highway-rail crossings has already benefitted substantially 
from use of median arrangements at many crossings, and there is no 
reason not to fully exploit this technique in support of community 
quiet. Accordingly, FRA continues its approval of shorter 
channelization arrangements and, in the revised Appendix B, invites 
local

[[Page 70649]]

authorities to provide estimates of effectiveness that are reasonable 
considering the extent of deviation from the nominal requirements of 
Appendix A.
    FRA agrees with the Florida DOT that use of 200 foot medians will 
often be recommended when practicable. However, FRA believes that the 
prescribed minimums of 100 and 60 feet are consistent with the 
designated effectiveness rate. A public authority that can show a 
higher effectiveness rate for longer medians may bring in that estimate 
for consideration under Appendix B.
    FRA also understands the conflict to which traffic control 
authorities may be subject with respect to the appearance of 
channelization arrangements, but FRA does not believe that in the end 
aesthetics should be countenanced as a bar to saving lives and 
preventing serious personal injury. FRA believes that in many cases 
local public authorities will utilize options such as using native 
stone or decorative plantings to enhance the appearance of median 
arrangements, as they have done in other settings. To the extent that 
roadway width does not allow for these treatments, and to the extent 
channelization devices such as flexible delineators are viewed as 
unacceptable in a particular community, the incremental cost of 
alternative arrangements should be evaluated as a cost of community 
beautification rather than as a cost of this rule.
One Way Street With Gates
    The use of one way streets with gates received sparse comments, 
mostly directed to their applicability. Illinois ICC pointed out that 
the one way street is rarely, if ever acceptable to local governments, 
because it would cause major disruptions in traffic flow. The Missouri 
Division of Motor Carrier and Railroad Safety and the Chicago 
Department of Transportation noted that there is limited applicability 
to most roads without violating traffic engineering practices. This 
option is considered safe, however, as noted by the BRS, who strongly 
support the option.
    FRA notes that, despite the protestations of several commenters, 
use of one-way streets in American cities and towns is quite 
substantial and that, without further use of unidirectional traffic 
flows, attention to engineering of existing locations would permit 
credit to be taken for this SSM at very low cost. FRA further notes 
that new one-way traffic patterns, if applied to residential and 
industrial areas (not including retail commercial areas where economic 
effects may be unacceptable), could be useful in designing a quiet zone 
and might help to serve other public purposes, such as providing 
additional on-street parking where current roadway width is a 
constraint and addressing other local issues, such as addressing 
particularly hazardous intersections for left turns.
Photo Enforcement
    The comments regarding photo enforcement were generally negative. 
Most commenters objected to this either because it is not permitted in 
their State or because it is viewed as ineffective. California, Kansas 
and New Jersey requested that the option be removed from the list 
because of its ineffectiveness. Additionally, there were complaints 
about the cost of photo enforcement.
    A significant objection expressed by the Kansas DOT and the 
Massachusetts Executive Office of Transportation and Construction, is 
that photo enforcement simply does not provide a physical impediment to 
driving around gates and does nothing to replace the audible warning 
provided by a locomotive horn. While the deterrent effect is 
recognized, it is argued that it is minimal because, as Nevada states, 
``It does not provide a positive means of separating vehicles and 
pedestrians from trains, as do other SSMs.'' The AAR strongly opposes 
its use as an SSM, stating that ``[t]he proposed non-engineering 
measures do not provide assurance that they can sustain the same level 
of safety as a locomotive horn.'' Using a speeding car metaphor, Mayor 
Alisi, trustee of Glencoe, pointed out that receiving a ticket is not a 
deterrent. Wichita, Kansas categorized photo enforcement as an ``after 
the fact safety measure.''
    In contrast, the President of Traffipax, a supplier of photo 
enforcement equipment, submitted that photo enforcement is very 
effective, citing a 40 percent reduction in violation rates, even when 
dummy cameras are installed along with real cameras. Another benefit 
that he mentioned is that the photos provide a record of conditions and 
history of violations at a given crossing. Supporting this view is Dan 
Lauzon, first vice-chairman of the BLE Massachusetts Legislative Board, 
who noted that motorists are ``angelic'' when they know they are being 
watched by cameras.
    Based on the comments and FRA's own review, photo enforcement has 
been redesignated as an ASM rather than an SSM. FRA has been persuaded 
that photo enforcement more appropriately belongs in the listing of 
ASMs. Its non-engineering nature and need for regular monitoring drives 
its inclusion as an ASM rather than the engineering solutions listed as 
SSMs.
    Another concern expressed with photo enforcement (irrespective as 
to whether it is an ASM or ASM) is that it not currently accepted in 
every State. The Missouri Division of Motor Carrier and Railroad Safety 
noted that it is not permitted under present State law. The City 
Attorney of Pendleton, Oregon believes that the State constitution may 
have to be amended to permit photo enforcement. Although not every 
State currently permits automated photo enforcement, the trend is 
towards greater acceptance of such methods for other traffic 
enforcement purposes. There is every reason to believe it can work in 
the grade crossing law violation context, especially when supported by 
public awareness efforts. It is true that some States will have to 
change their laws in order to take advantage of this alternative. FRA 
believes sufficient time has been built into the rule for that to 
happen. It is important to note that use of photo enforcement, like 
every SSM and ASM, is voluntary. Thus, if a State chooses not to 
provide for its use within the State, other means for compensating for 
the lack of a locomotive horn are available under this rule.
    It is clear that the SSMs proposed in the NPRM do not receive 
universal acceptance among the commenters. However, FRA remains 
convinced that the proposed SSMs are sound safety strategies and 
provide a range of realistic options from which communities can choose 
to meet their own needs. The ability to vary SSMs, through the ASMs 
allowed by Appendix B, provides additional flexibility for communities.

Effectiveness of Supplementary Safety Measures

    The effectiveness (see definition of effectiveness rate in Sec.  
222.9) figures discussed for each SSM 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 is using these estimates as benchmark values to determine the 
effectiveness of an individual SSM and the combined effectiveness of 
all SSMs along a proposed quiet zone.
    FRA's final study of train horn effectiveness indicated that 
collision probabilities increase an average of 66.8 percent when horns 
are silenced at crossings with flashing lights and gates. As such, the 
SSM should have an effectiveness of at least .40 (reducing the

[[Page 70650]]

probability of a collision by at least 40 percent) in order to 
compensate for this 66.8 percent increase. For example, if a select 
group of 1,000 crossings is expected to have 100 collisions per year 
with train horns being sounded, this same group of crossings would be 
expected to have 167 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 167 
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 re-
instituted. This would equate to an effectiveness of 67/167, or .40.
    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 rule, since historic collision patterns over a 
small number of crossings are not, by themselves, meaningful predictors 
of future exposure.
    Much of the data available today to evaluate the effectiveness of 
SSMs reflect the reduction in violation rates, not collision rates. 
(Collisions are rare, and determination of a collision rate reduction 
for any one SSM 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 are 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 being 
used to adjust violation rate reductions in order to estimate resultant 
reductions in collision rates for law enforcement, education/awareness 
and photo enforcement 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, education/awareness and photo enforcement 
options the rate of violations must be reduced 78 percent in order to 
determine the effectiveness value for the ASM.
    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 almost 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 rule adopts 
estimates of success drawn from carefully monitored studies of 
individual crossings.
1. Temporary Closure of a Public Highway-Rail Grade Crossing
    This SSM 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 public authority 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 public authority 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 the silencing of train horns, 
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.
    FRA is requiring that all four-quadrant gate systems conform to the 
standards contained in Part 8, Section D.05 (``Four-Quadrant Gate 
Systems'') of the MUTCD. These standards were added by FHWA to the 
MUTCD subsequent to publication of the NPRM. Because four quadrant 
gates would be used at crossing where horns are not sounded, FRA is 
requiring the following in addition to the MUTCD requirements.
    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. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing would 
prevent the proper operation of the constant warning time devices. FRA 
has been made aware that constant warning devices may not work properly 
under certain circumstance such as in electrified territory. If 
conditions exist that would not allow constant warning time systems to 
work as intended, other appropriate types of control circuitry may be 
used. Constant warning time devices are not required to be added to 
existing warning systems in Pre-Rule Quiet Zones. However, if warning 
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems 
are installed, constant warning time devices are required.
    c. Crossing warning systems must be equipped with power-out 
indicators. Power-out indicators are not required to be added to 
existing warning systems in Pre-Rule Quiet Zones. However, if

[[Page 70651]]

warning systems in Pre-Rule Quiet Zones are upgraded, or new warning 
systems are installed, power-out indicators are required.
    d. 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.
    e. ``Break-away'' channelization devices must be frequently 
monitored to replace broken elements.
    Additionally, FRA is recommending that new installations conform to 
the following:
    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. It should be noted that the MUTCD recommends that exit 
gates should fail in the ``up'' position unless a traffic engineering 
study indicates otherwise.
    g. 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. VPDs should be 
installed on one or both sides of the crossing and/or in the surface 
between the rails closest to the 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.
    h. 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 non-traversable curb 
or traversable curb, or by reflectorized channelization devices, or by 
both. The installation of traffic channelization increases the 
effectiveness of the four quadrant gates and should be considered when 
looking at situations where it appears that motorists may be tempted to 
circumvent the warning devices.
    i. Remote monitoring (in addition to power-out indicators, which 
are required) 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.
    Effectiveness:
    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. North Carolina Department of Transportation (NCDOT) 
conducted a pilot study of a four quadrant gate system at the Sugar 
Creek Road crossing in Charlotte, NC. Following installation of the 
four quadrant gates, the number of violations fell by 86 percent. 
Traffic channelization was added later to the four quadrant gates, 
reducing violations to an even greater extent, by 97 percent. During 
the test, the train horn was also sounding. To account for any 
complementary effects of the train horn, FRA uses more conservative 
effectiveness rates of 82 percent and 92 percent for four quadrant 
gates without and with medians, respectively.
    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 traffic 
channelization is not provided to prevent this pattern, we assume a 
lower effectiveness rate. FRA estimates that four-quadrant gates with 
presence detection, but without traffic channelization, would have an 
effectiveness rate of approximately .77.
    By contrast, where four-quadrant gates are supplemented by lengthy 
traffic channelization 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 to this illustration, FRA 
estimates an effectiveness rate of .92 for four-quadrant gates with 
traffic channelization 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.
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.

[[Page 70652]]

    FRA therefore is requiring that the following conditions be met.
    a. Opposing traffic lanes on both highway approaches to the 
crossing must be separated by either: (1) Medians bounded by non-
traversable curbs or (2) channelization devices.
    b. Medians or channelization devices must extend at least 100 feet 
from the gate arm, or if there is an intersection within 100 feet of 
the gate, the median or channelization device must extend at least 60 
feet from the gate arm. Driveways for private, residential properties 
(up to four units) are not considered intersections in calculating the 
required median length.
    c. Intersections of two or more streets, or a street and an alley, 
that are within 60 feet of the gate arm must be closed or relocated. 
Driveways for private, residential properties (up to four units) within 
60 feet of the gate arm are not considered to be intersections under 
this part and need not be closed. However, consideration should be 
given to taking steps to ensure that motorists exiting the driveways 
are not able to move against the flow of traffic to circumvent the 
purpose of the median and drive around lowered gates. This may be 
accomplished by the posting of ``no left turn'' signs or other means of 
notification. For the purpose of this part, driveways accessing 
commercial properties are considered to be intersections and are not 
allowed. It should be noted that if a public authority cannot comply 
with this 60 feet requirement, it may apply to FRA for a quiet zone 
under Sec.  222.39(b), ``Public authority application to FRA.'' During 
the comment period FRA was made aware of many circumstances in which 
roadways parallel to the tracks would not physically accommodate a 60 
feet median. It was always FRA's intent to allow public authorities to 
apply to FRA for consideration of SSMs that do not fully comply with 
the provisions of Appendix A. There should be many circumstances in 
which medians or traffic channelization of less that 60 feet in length 
may sufficiently reduce risk in order to permit the creation of a quiet 
zone. FRA will review such applications and give them due 
consideration.
    d. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing would 
prevent the proper operation of the constant warning time devices. FRA 
has been made aware that constant warning devices may not work properly 
under certain circumstances such as in electrified territory. If 
conditions exist that would not allow constant warning time systems to 
work as intended, other appropriate types of control circuitry may be 
used. Constant warning time devices are not required to be added to 
existing warning systems in Pre-Rule Quiet Zones. However, if warning 
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems 
are installed, constant warning time devices are required.
    e. Crossing warning systems must be equipped with power-out 
indicators. Power-out indicators are not required to be added to 
existing warning systems in Pre-Rule Quiet Zones. However, if warning 
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems 
are installed, power-out indicators are required.
    f. The gap between the lowered gate and the curb or channelization 
device must be one foot or less, measured horizontally across the road 
from the end of the lowered gate to the 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.
    g. ``Break-away'' channelization devices must be frequently 
monitored to replace broken elements.
    Effectiveness:
    FRA estimates that channelization devices have an effectiveness of 
.75 and medians with non-traversable curbs with or without 
channelization devices have an effectiveness of .80. The installation 
of traffic channelization devices as part of North Carolina's ``Sealed 
Corridor'' demonstration project provides empirical data upon which to 
base an effectiveness rate. Traffic channelization devices were 
installed at the Sugar Creek Road crossing in Charlotte, NC. Prior to 
the traffic channelization devices being installed, the Norfolk 
Southern Corporation and NCDOT counted the number of motorists going 
around the crossing gates for twenty weeks. This data established a 
baseline traffic violation rate. The number of violations were then 
counted after installation of the channelization devices. Comparing the 
number of violations before and after the grade crossing treatment 
showed that violations decreased by 77 percent. As in the NPRM, FRA 
discounts this rate slightly for the novelty effect that may occur 
immediately following installation of the treatment and to account for 
the added safety benefit of the horn which was sounding during the 
study. FRA therefore assigns an effectiveness rate of 75 percent for 
traffic channelization devices. FRA reasons that medians with non-
traversable curbs present a greater deterrence, and estimates their 
effectiveness rate at 80 percent. This reasoning is supported by data 
collected in Spokane County, WA where non-traversable medians reduced 
violations at the University Road crossing by 92 percent. The unusual 
physical and operating characteristics of the crossing are sufficiently 
different from an average crossing that FRA believes that the 
effectiveness rate in this study should be discounted when determining 
an effectiveness rate for a national rule.
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 is 
requiring that the following conditions are met.
    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 non-traversable curb extending at 
least 100 feet.
    c. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing would 
prevent the proper operation of the constant warning time devices. FRA 
has been made aware that constant warning devices may not work properly 
under certain circumstance such as in electrified territory. If 
conditions exist that would not allow constant warning time systems to 
work as intended, other appropriate types of control circuitry may be 
used. Constant warning time devices are not required to be added to 
existing warning systems in Pre-Rule Quiet Zones. However, if warning 
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems 
are installed, constant warning time devices are required.
    d. Crossing warning systems must be equipped with power-out 
indicators. Constant warning time devices are not required to be added 
to existing warning systems in Pre-Rule Quiet Zones. However, if 
warning systems in Pre-Rule Quiet Zones are upgraded, or new warning 
systems are installed, constant warning time devices are required.
    Effectiveness: FRA does not have an empirical data source for an 
effectiveness rate for one way streets with gates. FRA reasons that as 
this SSM will fully block approach lanes to the highway rail crossing, 
it's effectiveness should be similar to other measures that physically 
prevent a motorist from entering a crossing when

[[Page 70653]]

the gates are activated. In this respect, one way streets with gates 
functions like four quadrant gates without medians, and FRA estimates 
an effectiveness rate of 82 percent.

Appendix B--Alternative Safety Measures

Introduction
    Section 222.39(b) provides that a public authority may apply to FRA 
for approval of a quiet zone that does not meet the standards for 
public authority designation under Sec.  222.39(a). Under Sec.  
222.39(b) a quiet zone application may be presented to FRA for 
consideration. Public authority application provides two unique 
benefits towards the creation of a quiet zone. The first benefit is the 
ability to use SSMs that may not conform to all of the requirements in 
Appendix A. FRA received many comments indicating that traffic 
channelization would not be practical due to parallel roadways that 
were closer than 60 feet. Under Appendix B, short traffic 
channelization devices may be considered. The second benefit is the 
ability to use programmed law enforcement, public education and 
awareness programs and photo enforcement to reduce risk and to 
compensate for the loss of the train horn. A public authority must 
receive written FRA approval of its quiet zone application prior to the 
silencing of train horns.
    As with quiet zones created using the public authority designation 
method, credit will be given for closing of public highway-rail grade 
crossings. It will be necessary to adjust the baseline severity risk 
index at other crossings by increasing traffic counts at neighboring 
crossings as input data to the severity risk formula. If nearby grade 
separations are expected to carry some or all of the traffic, it will 
not be necessary. FRA Regional Managers for Grade Crossing Safety will 
be available to assist in performing the required analysis.
    Appendix B addresses two types of ASMs-modified SSMs and non-
engineering ASMs. Modified SSMs are SSMs that do no fully comply with 
the provisions listed in Appendix A. Depending on the resulting 
configuration, modified SSMs may still provide a substantial reduction 
in risk and can contribute to the creation of quiet zones. Non-
engineering ASMs are programmed law enforcement, public education and 
awareness programs; and photo enforcement efforts that may be used to 
reduce risk in the creation of a quiet zone. It should be noted that if 
non-engineering ASMs are proposed, the application must demonstrate 
their effectiveness through the collection and analysis of data 
collected at the crossings. Periodic monitoring will be required 
throughout the existence of the quiet zone in order to show that the 
ASM is still effective. The public authority must receive written FRA 
approval of the quiet zone application prior to the silencing of train 
horns. The public authority is strongly encouraged to submit the 
application to FRA for review and comment before the Appendix B 
treatments are initiated to ensure that the proposed modified SSMs and/
or non-engineering ASMs will meet with FRA's approval. If non-
engineering ASMs are proposed, the public authority may wish to confirm 
with FRA that the sampling methods are appropriate. Submitting the 
application for review prior to implementation will enable FRA to 
provide comments to assist the public authority in developing a quiet 
zone plan that will be acceptable.
Modified SSMs
    a. If there are unique circumstances pertaining to a specific 
crossing or number of crossings which prevent the SSMs from being fully 
compliant with all of the SSM requirements listed in Appendix A, those 
SSM requirements may be adjusted or revised. In that case, the SSM, as 
modified, will be treated as an ASM under this Appendix B, and not as a 
SSM under Appendix A, so that its safety effects may be evaluated. By 
using modified SSMs, a locality will be able to tailor the use and 
application of various SSM-types of applications to a specific set of 
circumstances (e.g. being able to use traffic channelization devices of 
less than 60 feet in length). Thus, a locality may propose a quiet zone 
that contains modified SSMs at a number of crossings, that due to 
specific circumstances, could not have been treated with an Appendix A 
SSM and would have to be omitted from the proposed quiet zone. FRA will 
review the proposed quiet zone, and will approve the proposal if it 
finds that the Quiet Zone Risk Index is reduced to the level that would 
be expected with sounding of the train horns or to the Nationwide 
Significant Risk Threshold.
    b. Estimates of effectiveness may be proposed based upon 
adjustments from the effectiveness levels provided in Appendix A or 
from actual field data derived from the crossing sites. The application 
should provide an estimate for the effectiveness of the proposed ASM 
and the rationale for the estimate. For example, in Appendix A the 
effectiveness of a 60 foot traffic channelization device is .75. A 
public authority may propose for consideration that an effectiveness 
rate of .60 for a traffic channelization device that is 45 feet in 
length would be appropriate. The specific crossing and applied 
mitigation measure will be assessed to determine the effectiveness of 
the modified SSM. FRA will continue to develop and make available 
effectiveness estimates and data from actual experience under the rule.
    c. The following engineering types of ASMs may be included in a 
proposal for approval by FRA for creation of a quiet zone. SSMs that 
are listed in Appendix A may be used for purposes of modified SSMs. If 
one or more of the requirements associated with an SSM as listed in 
Appendix A is revised or deleted, data or analysis supporting the 
revision or deletion must be provided to FRA for review. These SSMs 
include: (1) Temporary Closure of a Public Highway-Rail Grade Crossing, 
(2) Four-Quadrant Gate System, (3) Gates With Medians or Channelization 
Devices, and (4) One-Way Street With Gate(s). A discussion of these 
safety measures may be found in the discussion of Appendix A.
Non-Engineering ASMs
    The following non-engineering ASMs may be used in the creation of a 
Quiet Zone. The method for determining the effectiveness of the non-
engineering ASMs, the implementation of the quiet zone, subsequent 
monitoring requirements, and provision for dealing with an unacceptable 
effectiveness rate are provided in paragraph b.
    1. 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).
    b. A law enforcement effort must be defined, established and 
continued along with continual or regular monitoring.
    2. 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.

[[Page 70654]]

    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).
    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. 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.
    3. Photo Enforcement: This alternative entails automated means of 
gathering valid photographic or video evidence of traffic law 
violations at a public highway-rail grade crossing 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, ``points'' toward license suspension or revocation) 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 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. Public awareness efforts designed to reinforce photo enforcement 
and alert motorists to the absence of train horns.
    g. 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).
    h. A law enforcement effort must be defined, established and 
continued along with continual or regular monitoring.
    The effectiveness of non-engineering ASMs will be determined as 
follows:
    1. The first step in assessing the effectiveness of an ASM is to 
establish quarterly (3 months) baseline violation rates for each of the 
crossings. A violation in this context refers to a motorist not 
complying with the automatic warning devices at the crossing (not 
stopping for the flashing lights and driving over the crossing after 
the gate arms have started to descend, or driving around the lowered 
gate arms). A violation does not have to result in a traffic citation 
for the violation to be considered. Violation data may be obtained by 
any method that can be shown to provide a statistically valid sample. 
This may include the use of video cameras, other technologies (e.g. 
inductive loops), or manual observations that capture driver behavior 
when the automatic warning devices are operating. In the event that 
data is not collected continuously during the quarter, sufficient 
detail must be provided in the application in order to validate that 
the methodology used results in a statistically valid sample. FRA 
recommends that at least a minimum of 600 samples (one sample equals 
one gate activation) be collected during the baseline and subsequent 
quarterly sample periods. The sampling methodology must take measures 
to avoid biases in their sampling technique. Potential sampling biases 
could include: sampling on certain days of the week but not others, 
sampling during certain times of the day but not others, sampling 
immediately after implementation of an ASM while the public is still 
going through an adjustment period, or applying one sample method for 
the baseline rate and another for the new rate. One possible approach 
to avoid sampling bias would be to break a three-month observation 
period into many time slots and then randomly selecting these slots for 
sampling. The baseline violation rate should be expressed as the number 
of violations per gate activations in order to normalize for unequal 
gate activations during subsequent data collection periods. The 
application should include enough detail on the method used to collect 
and assess the data to insure that the results will provide a 
statistically valid result. While not it is not mandatory, public 
authorities are encouraged to provide FRA with its sampling methodology 
for comment prior to actually collecting the data. This will enable FRA 
to provide comments to ensure that the sampling methodology is 
adequate.
    2. The ASM should then be initiated for each crossing in the 
proposed quiet zone that is to be treated with programmed enforcement 
or education. During this time frame, train horns are still being 
sounded. Train horns will not be silenced until the application has 
been formally approved by FRA.
    3. In the calendar quarter following initiation, a new violation 
rate should be determined (using the same methodology as in paragraph 
a) and compared to the baseline violation rate for each crossing 
treated with an ASM. The violation rate reduction for each crossing 
should then be determined by the following formula:

Violation rate reduction = (new rate--baseline rate)/baseline rate

    Example:  The baseline rate for a crossing was 60 violations per 
100 gate activations. After implementation of the ASM, the new 
violation rate for the next quarter was 20 violations per 100 gate 
activations. The violation rate reduction would be 66 percent (.66).

    4. The effectiveness rate for each crossing is then determined by 
multiplying the violation rate reduction by .78. This converts the 
violation rate reduction to the collision reduction rate which is the 
effectiveness rate. The effectiveness rate of the ASM would then be 
used in the calculation of the Quiet Zone Risk Index.

    Example:  In the above example, the violation rate reduction of 
.66 would be multiplied by .78 which results in an effectiveness 
rate of .51.

    5. Using the effectiveness rates for each crossing treated by an 
ASM, determine the Quiet Zone Risk Index. If and when the Quiet Zone 
Risk Index for the proposed the quiet zone has been reduced to either 
the risk level which would exist if locomotive horns sounded at all 
crossings in the quiet zone or to a risk level below the Nationwide 
Significant Risk Threshold, the public authority may apply to FRA for 
approval of the quiet zone. Upon receiving written approval of the 
quiet zone application, the public authority may then proceed with 
notifications and implementation of the quiet zone.
    6. Violation rates must be monitored for the next two calendar 
quarters and every second quarter thereafter. If after five years from 
the implementation of the quiet zone, the violation rate for any 
quarter has never exceeded the violation rate used to determine the 
effectiveness rate that was approved by FRA,

[[Page 70655]]

violation rates may be monitored for one quarter per year.

    Example:  Continuing with the above example, the periodic 
monitoring during the five years following implementation of the 
quiet zone showed that the violation rate never exceeded 20 
violations per 100 gate activations. It then would only be necessary 
to monitor every fourth quarter thereafter.

    7. In the event that the violation rate is ever greater than the 
violation rate used to determine the effectiveness rate that was 
approved by FRA, the public authority may continue the quiet zone for 
another quarter. If, in the second quarter the violation rate used to 
determine the effectiveness rate that was approved by FRA, a new 
effectiveness rate must be calculated and the Quiet Zone Risk Index re-
calculated using the new effectiveness rate. If the new Quiet Zone Risk 
Index indicates that the ASM no longer fully compensates for the lack 
of a train horn, or that the risk level is equal to, or exceeds the 
Nationwide Significant Risk Threshold, the procedures for dealing with 
unacceptable effectiveness after establishment of a quiet zone should 
be followed.

    Example:  Three years after initiating the quiet zone cited 
above, the violation rate was 30 violations per 100 gate 
activations. The quiet zone continues with monitoring. In the next 
quarter, the violation rate was still 30 violations per 100 gate 
activations. When compared to the original baseline violation rate, 
this represents a violation rate reduction of 50 percent. The new 
effectiveness rate is calculated by multiplying .50 by .78. The new 
effectiveness rate of .39 would then be used in the calculation of a 
new Quiet Zone Risk Index. If the new Quiet Zone Risk Index is no 
longer below the Nationwide Significant Risk Threshold or no longer 
fully compensates for the loss of the train horn, the provisions of 
222.51 would then apply.

Section 229.129 Audible Warning Device

    Paragraph (a) of this section requires that each lead locomotive be 
provided with an audible warning device that produces a minimum sound 
level of 96dB(A) and a maximum sound level of 110 dB(A) at 100 feet 
forward of the locomotive in its direction of travel. The device shall 
be arranged so that it can be conveniently operated from the engineer's 
usual position during operation of the locomotive. The phrase ``usual 
position during operation of the locomotive'' replaces ``normal 
position in the cab.'' This change, which was not proposed in the NPRM, 
will bring this section into conformity with the first sentence of 
Sec.  229.53 which refers to the location of the various brake gauges 
used by a locomotive engineer. FRA removed Sec.  229.53's reference to 
``normal position in the cab'' in the final rule revising the 
regulations governing braking systems and equipment used in freight and 
other non-passenger railroad train operations. See 66 FR 4104, January 
17, 2001. FRA, in its response to petitions for reconsideration, stated 
that the phrase, ``normal position in the cab'' is unnecessary and 
antiquated. FRA stated that ``FRA's intent when removing the language 
was to ensure that the gauges used by an engineer to aid in the control 
or braking of a train or locomotive were located so as to be read from 
the engineer's usual position when operating the locomotive, whether 
that be in the cab of the locomotive or elsewhere. FRA's intent when 
issuing the final rule was to accommodate and facilitate advanced 
technologies and designs.'' See 67 FR 17562, April 10, 2002. Because 
the rationale for the language change as it pertains to brake gauges 
applies equally well to the location of horn controls, FRA has modified 
Sec.  229.129 to be consistent with Sec.  229.53. Because this change 
was not proposed in the NPRM, interested parties are encouraged to 
provide comment on this aspect of the interim final rule. FRA will take 
into consideration comments when issuing the final rule.
    Paragraph (b) addresses the schedule of testing to determine if 
locomotive horns are in compliance with this section. Locomotives built 
on or after December 18, 2004, must be tested and brought into 
compliance with this section prior to being placed in service. 
Locomotives built before December 18, 2004, have five years from the 
date of this notice in which to be tested. Thus they must be tested and 
brought into compliance with this section by December 18, 2008. 
Additionally, horns must be tested and brought into compliance with 
this section whenever a locomotive is rebuilt (as determined in 
accordance with 49 CFR 232.50).
    Paragraph (c) specifies the testing requirements and measurement 
procedures. The paragraph also specifies that the railroad must 
maintain records sufficient to show the date, manner and result of 
locomotive horn testing conducted in compliance with this part.
    Paragraph (d) provides that this section of part 229 addressing 
audible warning devices does not apply to rapid transit operations 
which are otherwise subject to part 229. Rapid transit operations which 
are subject to part 222 solely because they share track or rail 
corridors at public highway-rail crossings with general system 
railroads are thus not subject to this section. While such operations 
are subject to all provisions of part 222, including the requirement to 
sound the horn at public rail grade crossings which they share with 
general system railroads, and to silence the horn within quiet zones 
which include such shared crossings, they are not subject to Sec.  
229.129's requirements, including those regarding locomotive horn 
volume and testing.

17. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    FRA has conducted a Regulatory Evaluation of this Interim Final 
Rule in accordance with Executive Order 12866. A copy of this document 
has been placed in the docket for this rulemaking. Following is a 
summary of the findings.
    FRA identified 1,988 existing whistle ban or no-horn crossings that 
would qualify for inclusion in Pre-Rule Quiet Zones. FRA also 
identified 442 potential New Quiet Zone crossings. Using information 
available about the crossing characteristics and the number of persons 
that would be or currently are severely affected by the sounding of 
train horns, FRA estimated the costs and benefits of the actions that 
communities would take in response to this rule. FRA believes that many 
communities will take advantage of the many options available to 
establish quiet zones. FRA also estimated the costs associated with the 
maximum horn sound level requirements. Some existing whistle ban 
crossings may not be included in quiet zones.
    The table below presents estimated twenty-year monetary costs 
associated with complying with the requirements contained in the 
Interim Final Rule using a 7 percent discount rate. Given the high 
prevalence of existing whistle ban crossings in the Chicago Region \15\ 
and the significant level of interest commenters from this area have 
shown regarding this rulemaking, costs are presented separately from 
the rest of the nation where applicable.
---------------------------------------------------------------------------

    \15\ The Chicago area is comprised of the following six 
counties: Cook, Du Page, Kane, Lake, McHenry, and Will.

[[Page 70656]]



                                        Total Twenty-Year Costs (PV, 7%)
----------------------------------------------------------------------------------------------------------------
                                                                    Nationwide        Chicago     Rest of nation
----------------------------------------------------------------------------------------------------------------
Maximum Horn Sound Level........................................      $2,902,478           (\2\)           (\2\)
Relocations Due to Horn Noise \1\...............................       1,724,590         $47,927      $1,676,663
Establish/Maintain Pre-Rule Quiet Zones.........................      15,275,946       4,008,013      11,267,933
Establish/Maintain New Quiet Zones..............................      21,501,796           (\2\)           (\2\)
FRA Administrative Costs........................................          25,426           (\2\)          (\2\)
----------------------------------------------------------------------------------------------------------------
\1\ Due to resumption of horn sounding.
\2\ Not applicable.

Total Twenty-Year Costs associated with implementation of this rule are 
estimated to be $41,430,236 (PV, 20 Years, 7%).
    In general there has been a downward trend in collisions at grade 
crossings nationwide due to the implementation of various private and 
public safety initiatives such as Operation Lifesaver and other public 
education and awareness campaigns. Costs presented in this analysis may 
be overstated to the extent that such initiatives would lead to the 
eventual implementation of some of the same or equivalent safety 
measures that this rule requires for the establishment of quiet zones. 
In such cases, this rule may be merely accelerating implementation and 
the rate of expenditures.
    The direct safety benefit of this interim final rule is the 
reduction in casualties that result from collisions between trains and 
highway users at public at-grade highway-rail crossings. Implementation 
of this rule will ensure that (1) locomotive horns are sounded to warn 
highway users of approaching trains; or (2) rail corridors where train 
horns do not sound will have a level of risk that is no higher than the 
average risk level at gated crossings nationwide where locomotive horns 
are sounded regularly; or (3) the effectiveness of horns is compensated 
for in rail corridors where train horns do not sound.
    FRA has reviewed trends in collision rates for whistle ban 
crossings going back to 1980 and believes that collision rates over the 
twenty-years that this analysis covers will be no higher than 4 
percent. The following table presents anticipated twenty-year safety 
benefits expressed in monetary terms assuming that collisions decline 
at an average rate of 4 percent annually and using a 7 percent discount 
rate.

                              Total Twenty-Year Safety Benefits Monetized (PV, 7%)
                                 [Declining collision rate (4% annual decline)]
----------------------------------------------------------------------------------------------------------------
                      Casualties prevented                          Nationwide        Chicago     Rest of nation
----------------------------------------------------------------------------------------------------------------
Cancellation of W-Bans..........................................      $6,102,371        $291,582      $5,810,789
Pre-Rule Quiet Zones:...........................................      48,794,232      22,371,706      26,422,526
New Quiet Zones.................................................      21,976,553           (\1\)           (\1\)
                                                                 -----------------
    Total.......................................................      76,873,156           (\1\)          (\1\)
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.

In terms of collisions and casualties, over the next twenty years, FRA 
anticipates implementation of this rule will result in the prevention 
of 123 collisions, 13 fatalities, and 60 injuries.
    In addition to the prevention of casualties, FRA estimates that, 
over the next twenty years, this collision prevention will result in a 
reduction of approximately $400,000 in highway vehicle, railroad 
equipment, and track damage.
    This analysis covers the first twenty years of the rule and 
includes some compliance costs that will be incurred towards the end of 
the period. Unlike the benefits associated with costs incurred in the 
early years of the rule, much of the twenty-year stream of benefits 
associated with these costs is not captured in this analysis. Safety 
benefits are understated to the extent that many years of safety 
benefits resulting from safety measures implemented in out-years are 
not included.
    Some of the unquantified benefits of this interim final rule 
include reductions in freight and passenger train delays, both of which 
can be very significant when grade crossing collisions occur, and 
collision investigation efforts. Although these benefits are not 
quantified in this analysis, their monetary value is significant.
    Because such events are rare, FRA has not attempted to estimate the 
value of avoiding events in which a highway-rail collision results in a 
derailment, with harm to persons on the train or release of hazardous 
materials into the community.
    Maximum horn sound level requirements will limit community 
disruption by not allowing horns to be sounded any louder than 
necessary to provide motorists with adequate warning of a train's 
approach. The benefit in noise reduction due to this change in maximum 
horn loudness is not readily quantifiable.
    Another unquantified benefit of this rule is elimination of some 
locomotive horn noise disruption to some railroad employees and those 
who may reside near industrial areas served by railroads. Locomotive 
horns will no longer have to be sounded at individual highway-rail 
grade crossings at which the maximum authorized operating speed for 
that segment of track is 15 miles per hour or less and properly 
equipped flaggers (as defined in by 49 CFR 234.5, but who for purposes 
of this rule can also be crew members) provide warning to motorists. 
This rule will allow engineers, who were probably already exercising 
some level of discretion as to the duration and sound level of 
locomotive horn sounding, to stop sounding the horn under these 
circumstances at no additional cost.
    This analysis does not quantify the benefit of eliminating 
community disruption caused by the sounding of train horns, nor does it 
quantify costs from increased noise at crossings where

[[Page 70657]]

horns will sound where they were previously silent.
    In an effort to determine the costs to a community associated with 
the locomotive horn, FRA examined the effects of sounding of locomotive 
horns on property values. This effort was based on the assumption that 
property values reflect concerns of property owners that are often 
subjective and otherwise difficult to quantify. For a full discussion 
of the effects of sounding locomotive horns on property values, see 
Appendix A to the Regulatory Evaluation.
    Research shows that residential property markets are influenced by 
a variety of factors including structural features of the property, 
local fiscal conditions, and neighborhood characteristics. Hedonic 
housing price models treat a property as a bundle of characteristics, 
with each individual characteristic generating an influence on the 
price of the property. For example, additional structural 
characteristics such as bathrooms, bedrooms, interior or exterior 
square footage increase the value of residential properties. Likewise, 
neighborhood characteristics are expected to influence property prices. 
For example, homes that are in relatively close proximity to noxious 
activities such as hazardous waste sites, incinerators, etc. have been 
shown to have lower values, other things equal. Thus, a carefully 
designed hedonic model can be used to implicitly value locational 
attributes that have no explicit market price.
    The effects of the sounding of locomotive horns on property values 
have been studied recently in response to the NPRM. While initial 
results are available, unfortunately they are not conclusive. David E. 
Clark performed one study for the FRA, and Schwieterman and Baden of 
the Chaddick Institute performed the other. According to Clark, the 
study performed for FRA was ``just a first step in understanding how 
train whistles influence local property values.'' Schwieterman and 
Baden of the Chaddick Institute emphasize that their ``report is a 
preliminary assessment of a complex issue. Some of our findings are 
speculative in nature.'' Those who have studied the issue agree that 
further study is needed to reach a better understanding of the true 
effects of locomotive horn sounding on property values. Clark concluded 
that there is little indication that the decision of a railroad to 
ignore whistle bans (and thus sound the locomotive horn) had any 
permanent and appreciable influence on the housing values in the three 
communities analyzed. Clark offers two explanations for the lack of 
effect on property values. First, those buying property within the 
audible range of a highway-rail grade crossing likely consider the 
possibility that train whistles may be sounded at the crossing in the 
future. Second, the railroad's action generated dynamic changes in the 
composition of residents that served to mitigate the initial impact of 
the action. Residents most sensitive to the sounding of locomotive 
horns moved away and were replaced with those less sensitive to such 
sounding.
    The Chaddick Institute study evaluated the probable costs of the 
noise generated by locomotive horns at grade crossings in the Chicago 
area. The study concluded that the region would experience significant 
losses in property value from sounding of horns at crossings currently 
subject to whistle bans. The study also concluded that even if property 
values do not fall, homeowners that are forced to move away may incur 
other real economic costs. For the reasons discussed in Appendix A to 
the Regulatory Evaluation, FRA has concluded that it is not likely that 
the overall costs associated with sounding the horns where they are not 
currently sounded will be as high as the Chaddick Institute study 
concludes.
    Although there are airport and highway hedonic property value 
studies, FRA has not applied them to grade crossings for a number of 
reasons. The types of noise experienced by residents near highways and 
airports can be different from that experienced by residents near 
highway-rail grade crossings. Highways and airports where noise is an 
issue have higher daily volumes of motor vehicle and aircraft traffic 
than grade crossings with whistle bans. The noise produced by 
locomotive horns at crossings is also generally more intermittent than 
that produced at airports and highways.
    The effect of highways and airports on nearby property values can 
also be very different than that of highway-rail at-grade crossings on 
nearby property values. For instance, airports are a source of 
employment for residents in the community. Although airport employees 
may not desire to reside in properties immediately adjacent to 
airports, they probably want to reside relatively close by. Few highway 
users desire to reside in properties immediately adjacent to highways, 
however many probably want to reside close enough to have easy access 
to highways. Such situations may greatly influence the magnitude of 
difference between property values of residences immediately adjacent 
to highways and airports compared to property values of residences that 
are still very close to highways and airports yet not adjacent. Since 
there generally is no incentive to residing near highway-rail at-grade 
crossings (unless there happens to be a commuter rail station nearby) 
the difference in property values between residences immediately 
adjacent to grade crossings and those a little further away is probably 
not as great.
    Studies of airport and highway noise compare property values of 
residences adjacent to the source of noise to property values of 
residences that are near but not adjacent to the source of noise. To 
isolate the effect of the noise itself and thereby make these studies 
more relevant to the highway-rail grade crossing context, the effect of 
the incentive for residing nearby, versus adjacent to, would have to be 
removed from the studies of airport and highway noise. Given the 
differences in (1) types of noise produced by highway vehicles and 
aircraft versus locomotive horns and (2) effects of highways and 
airports on nearby property values versus effects of grade crossings on 
property values, FRA believes that results from hedonic studies of 
airport and highway noises on property values are not directly 
transferable to locomotive horn noise effects on property values.
    It is important to note that since this rule is permissive as to 
the establishment of quiet zones, communities will establish quiet 
zones to the extent that the perceived benefit of elimination of the 
train horn disruption coupled with the safety benefit of any safety 
enhancements exceeds the costs of compliance associated with the 
requirements for establishing New Quiet Zones.
    FRA is confident that the benefits in terms of lives saved and 
injuries prevented will exceed the costs imposed on society by this 
rule.

B. 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. Data available to FRA indicates that this rule may have 
minimal economic impact on a substantial number of small entities 
(railroads) and possibly a significant economic impact on a few small 
entities (government jurisdictions and small businesses). However, 
there is no indication that this rule will have a significant economic 
impact on a substantial number of small entities. The Small Business 
Administration

[[Page 70658]]

(SBA) did not submit comments to the docket for this rulemaking in 
response to the Initial Regulatory Flexibility Assessment that 
accompanied the NPRM. FRA certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.
    FRA has performed a Regulatory Flexibility Assessment (RFA) on 
small entities that potentially can be affected by this interim final 
rule. The RFA is summarized in this preamble as required by the 
Regulatory Flexibility Act. The full RFA is included in the Regulatory 
Evaluation, which is available in the public docket of this proceeding.
    This is essentially a safety rule that implements as well as 
minimizes the potential negative impacts of a Congressional mandate to 
blow train whistles and horns at all public crossings. 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). Some communities would like to establish ``quiet zones'' 
where train horns would not be routinely sounded, but are awaiting 
issuance of this rule to do so. 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. The rule contains low risk based provisions for 
communities to establish quiet zones. Some crossing corridors may 
already be at risk levels that are permissible under this rule and 
would not need to reduce risk levels any further to establish quiet 
zones. Otherwise, communities establishing Pre-Rule Quiet Zones may 
implement sufficient safety measures along whistle-ban corridors to 
reduce risk to permissible levels. In addition to having permissible 
risk levels, all crossings in New Quiet Zones will have to be equipped 
with gates and flashing lights. If a community elects to simply follow 
the mandate, horn sounding will resume and there will be a noise impact 
on small businesses that exist along crossings where horns are not 
currently routinely sounded. If a community elects to implement 
sufficient safety measures to comply with the requirements for 
establishing a quiet zone, then the governmental jurisdiction will be 
impacted by the cost of such program or system. To the extent that 
potential quiet zone crossing corridors already have average risk 
levels permissible under this rule, and, in the case of New Quiet 
Zones, every crossing is equipped with gates and flashing lights, 
communities will only incur administrative costs associated with 
establishing and maintaining quiet zones.
    The costs of implementing this interim final rule will 
predominately be on the governmental jurisdictions of communities some 
of which are ``small governmental jurisdictions.'' As defined by the 
SBA this term means governments of cities, counties, towns, townships, 
villages, school districts, or special districts with a population of 
less than fifty thousand. The most significant impacts from this rule 
will be on about 260 governmental jurisdictions whose communities 
currently have either formal or informal whistle bans in place. FRA 
estimates that approximately 70 percent (i.e. 193 communities) of these 
governmental jurisdictions are considered to be small entities.
    FRA has recently published final a 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 using this definition of small entity for this 
rulemaking. The RFA believes that approximately 640 small railroads 
would be minimally impacted by train horn sound level testing 
requirements contained in this 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 
rule, could be moderately impacted.
    Alternative options for complying with this 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 $13,000 for a mountable curb with frangible delineators and 
``Photo enforcement'' which is estimated to cost $28,000-$65,500 per 
crossing, and have annual maintenance costs of $6,600-$24,000 per 
crossing. Finally, FRA has not limited compliance to the lists provided 
in Appendix A or Appendix B of the rule. The rule 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 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 rule. If supplementary safety measures are 
implemented to create a quiet zone then such small entities should not 
be impacted. FRA held 12 public hearings nationwide following issuance 
of the NPRM and requested comments to the docket from small businesses 
that feel they will be adversely impacted by the requirements contained 
in the NPRM. FRA received no comments in response.

C. Paperwork Reduction Act

    The information collection requirements in this interim final 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:
BILLING CODE 4910-06-P

[[Page 70659]]

[GRAPHIC] [TIFF OMITTED] TR18DE03.000


[[Page 70660]]


[GRAPHIC] [TIFF OMITTED] TR18DE03.001


[[Page 70661]]


[GRAPHIC] [TIFF OMITTED] TR18DE03.002

BILLING CODE 4910-06-C
    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and

[[Page 70662]]

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. For information or a copy of the paperwork package submitted 
to OMB, contact Robert Brogan at 202-493-6292.
    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 [60 days after the date of 
publication]. Organizations and individuals desiring to submit comments 
on the collection of information requirements should direct them to 
Robert Brogan, Federal Railroad Administration, RRS-21, Mail Stop 17, 
1120 Vermont Ave., NW., MS-17, Washington, DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this interim final 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.

D. Environmental Impact

    FRA has evaluated this interim final rule 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. FRA has prepared a final environmental 
impact statement (FEIS) analyzing the environmental impacts associated 
with this rule. The FEIS is being issued concurrently with this interim 
final rule. The principal environmental effect and potentially 
significant impact of the interim final rule is reduced horn noise in 
aggregate at approximately 150,000 public at-grade crossings and 
additional horn noise at some crossings where whistle bans currently 
exist.
    The application of the requirement to provide an audible warning at 
existing whistle ban crossings has been substantially modified in the 
interim final rule. Provisions have been made that would qualify 
certain existing whistle bans for quiet zone status according to their 
risk levels. This is expected to result in the continued absence of 
train horns at many Pre-Rule Quiet Zones and would reduce the potential 
for additional horn noise impacts. Train horns will continue to be 
silenced at other Pre-Rule Quiet Zones through implementation of 
supplemental or alternative safety measures. Thus, additional horn 
noise impact is unlikely to approach the levels that would occur if 
horns were to sound where all whistle bans now exist.
    This rule contains provisions that would reduce existing train horn 
noise exposure over time. The provision limiting the distance for 
regular horn sounding would reduce the total amount of horn noise 
generated. This provision would reduce existing horn noise impacts by 
approximately 27 percent. The provision for a maximum horn sound level 
would reduce horn noise for some particularly loud locomotives and 
would reduce existing horn noise impacts by approximately 14 percent. 
It is estimated that the combined effect of these two provisions would 
reduce horn noise impacts by approximately 38 percent.
    Finally, the interim final rule contains provisions that would make 
it possible for the creation of quiet zones in many communities that 
are currently exposed to train horn noise. The potential benefit from 
these New Quiet Zones is indeterminate, as it is impossible to 
determine prospectively the number of New Quiet Zones and their 
establishment date; however, FRA's best estimate is that there will 
likely be approximately 107 New Quiet Zones.
    Copies of the FEIS are being distributed to organizations and 
individuals who filed comments on the Draft environmental impact 
statement. The FEIS is also available on FRA's Web site 
(www.fra.dot.gov), or from the FRA at the following address: Office of 
Safety, FRA, 1120 Vermont Avenue, NW, (Mail Stop 25), Washington, DC 
20590.

E. 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 has complied with E.O. 13132 in issuing this rule. FRA 
consulted extensively with State and local officials prior to issuance 
of the NPRM, and we have taken very seriously the concerns and views 
expressed by State and local officials as expressed in written comments 
and testimony at the various public hearings throughout the country. 
FRA staff provided 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 was 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 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

[[Page 70663]]

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 
constituents.
    Prior to issuance of the NPRM, FRA had 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 met with many 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.
    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. 
For further discussion of the effect of this rule on State and local 
laws and ordinances, see Sec.  222.7 and its accompanying discussion.
    As noted, this rulemaking is required by 49 U.S.C. 20153. The 
statute both requires that the Department issue this rule and sets out 
clear guidance as to the structure of such rule. The statute clearly 
and unambiguously requires the Department to issue rules requiring 
locomotive horns to be sounded at every public grade crossing. The 
Department has no discretion in as to this aspect of the rule. The 
statute also makes clear that the Federal government must have a 
leading role in establishing the framework for providing exceptions to 
the requirement that horns sound at every public crossing. While some 
States and communities expressed opposition to Federal involvement in 
this area which historically has been subject to State regulation, the 
majority of State and local community commenters recognized and 
accepted the statutorily required Federal involvement. Of concern to 
many of these commenters, however, was the issue as to whether States 
or local communities should have primary responsibility for creation of 
quiet zones. As further discussed in the section-by-section analysis of 
Sec.  222.37, ``Who may establish a quiet zone?'', States generally 
felt that they should have a primary role in establishing quiet zones 
and in administering a quiet zone. Comments from local governments 
tended to support the contrary view that local political subdivisions 
should establish quiet zones. A review of Sec.  20153 indicates a clear 
Congressional preference that decision-makers be local authorities. 
This Interim Final Rule provides non-Federal parties extensive 
involvement in decision-making pertaining to the creation of quiet 
zones. However, given the nature of the competing interests of State 
and local governments in this area, FRA could not fully meet the 
concerns of both groups. For the reasons detailed in the above section-
by-section analysis, the concerns of local communities have been 
substantially met.

F. Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 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).'' Sec. 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 State, local and tribal 
governments and the private sector. The rule 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.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this Interim Final Rule in accordance with 
Executive Order 13211 and has determined that this Final Rule is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulatory action is not a ``significant energy action'' within 
the meaning of Executive Order 13211.

18. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment), if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

[[Page 70664]]

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.

0
In consideration of the foregoing, FRA is amending chapter II, subtitle 
B of title 49, Code of Federal Regulations as follows:
0
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 What is the purpose of this regulation?
222.3 What areas does this regulation cover?
222.5 What railroads does this regulation apply to?
222.7 What is this regulation's effect on State and local laws and 
ordinances?
222.9 Definitions.
222.11 What are the penalties for failure to comply with this 
regulation?
222.13 Who is responsible for compliance?
222.15 How does one request a waiver of a provision of this 
regulation?
Subpart B--Use of Locomotive Horns
222.21 When must a locomotive horn be used?
222.23 How does this regulation affect sounding of a horn during an 
emergency or other situations?
222.25 How does this rule affect private highway-rail grade 
crossings?
Subpart C--Exceptions to the Use of the Locomotive Horn
222.31 [Reserved]

Silenced Horns at Individual Crossings

222.33 Can locomotive horns be silenced at an individual public 
highway-rail grade crossing which is not within a quiet zone?

Silenced Horns at Groups of Crossings--Quiet Zones

222.35 What are minimum requirements for quiet zones?
222.37 Who may establish a quiet zone?
222.39 How is a quiet zone established?
222.41 How does this rule affect Pre-Rule Quiet Zones?
222.43 What notices and other information are required to establish 
a quiet zone?
222.45 When is a railroad required to cease routine use of 
locomotive horns at crossings?
222.47 What periodic updates are required?
222.49 Who may file Grade Crossing Inventory Forms?
222.51 Under what conditions will FRA review and terminate quiet 
zone status?
222.53 What are the requirements for supplementary and alternative 
safety measures?
222.55 How are new supplementary or alternative safety measures 
approved?
222.57 Can parties seek review of the Associate Administrator's 
actions?
222.59 When may a wayside horn be used?
Appendix A to Part 222--Approved Supplementary Safety Measures
Appendix B to Part 222--Alternative Safety Measures
Appendix C to Part 222--Guide to Establishing Quiet Zones
Appendix D to Part 222--Determining Risk Levels
Appendix E to Part 222--Requirements for Wayside Horns
Appendix F to Part 222--Diagnostic Team Considerations
Appendix G to Part 222--Schedule of Civil Penalties

    Authority: 49 U.S.C. 20103, 20107, 20153, 21301, 21304; 49 CFR 
1.49.

Subpart A--General


Sec.  222.1  What is the purpose of this regulation?

    The purpose of this part is to provide for safety at public 
highway-rail grade crossings by requiring locomotive horn use at public 
highway-rail grade crossings except in quiet zones established and 
maintained in accordance with this part.


Sec.  222.3  What areas does this regulation cover?

    This part prescribes standards for sounding locomotive horns when 
locomotives approach and pass through public highway-rail grade 
crossings. This part also provides standards for the creation and 
maintenance of quiet zones within which locomotive horns need not be 
sounded.


Sec.  222.5  What railroads does this regulation apply to?

    This part applies to all railroads except:
    (a) A railroad that exclusively operates freight trains only on 
track which is not part of the general railroad system of 
transportation;
    (b) Passenger railroads that operate only on track which is not 
part of the general railroad system of transportation and which operate 
at a maximum speed of 15 miles per hour; and
    (c) Rapid transit operations within an urban area that are not 
connected to the general railroad system of transportation. See 49 CFR 
part 209, appendix A for the definitive statement of the meaning of the 
preceding sentence.


Sec.  222.7  What is this regulation's effect on State and local laws 
and ordinances?

    (a) 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. However, except as provided in Sec.  222.25, this part does 
not cover the subject matter of the routine sounding of locomotive 
horns at private highway-rail grade crossings.
    (b) Inclusion of SSMs and ASMs in this part or approved subsequent 
to issuance of this part does not constitute federal preemption of 
State law regarding whether those measures may be used for traffic 
control. Individual states may continue to determine whether specific 
Supplementary Safety Measures (SSMs) or Alternative Safety Measures 
(ASMs) are appropriate traffic control measures for that State, 
consistent with Federal Highway Administration regulations and the 
Manual on Uniform Traffic Control Devices (MUTCD). However, inclusion 
of SSMs and ASMs in this part does constitute federal preemption of 
State law concerning the sounding of train horns in relation to the use 
of those measures.


Sec.  222.9  Definitions.

    As used in this part--
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Alternative safety measures (ASM) means a safety system or 
procedure, other than an SSM, established in accordance with this part 
which is provided by the appropriate traffic control authority or law 
enforcement authority and which, after individual review and analysis 
by the Associate Administrator, is determined to be an effective 
substitute for the locomotive horn in the prevention of highway-rail 
casualties at specific highway-rail grade crossings. Appendix B to this 
part lists such measures.
    Associate Administrator means the Associate Administrator for 
Safety of the Federal Railroad Administration or the Associate 
Administrator's delegate.
    Channelization device means one of a series of highly visible 
vertical markers placed between opposing highway lanes designed to 
alert or guide traffic around an obstacle or to direct traffic in a 
particular direction. ``Tubular markers'' and ``vertical panels'' as 
described in sections 6F.57 and 6F.58, respectively, of the MUTCD, are 
acceptable channelization devices for purposes of this part. Additional 
design

[[Page 70665]]

specifications are determined by the standard traffic design 
specifications used by the governmental entity constructing the 
channelization device.
    Crossing Corridor Risk Index means a number reflecting a measure of 
risk to the motoring public at public grade crossings along a rail 
corridor, calculated in accordance with the procedures in appendix D of 
this part, representing the average risk at each public crossing within 
the corridor. This risk level is determined by averaging among all 
public crossings within the corridor, the product of the number of 
predicted collisions per year and the predicted likelihood and severity 
of casualties resulting from those collisions at each public crossing 
within the corridor.
    Diagnostic team as used in this part, means a group of 
knowledgeable representatives of parties of interest in a highway-rail 
grade crossing, organized by the public authority responsible for that 
crossing, who, using crossing safety management principles, evaluate 
conditions at a grade crossing to make determinations or 
recommendations for the public authority concerning safety needs at 
that crossing.
    Effectiveness rate means a number between zero and one which 
represents the reduction of the likelihood of a collision at a public 
highway-rail grade crossing as a result of the installation of an SSM 
or ASM when compared to the same crossing equipped with conventional 
active warning systems of flashing lights and gates. Zero effectiveness 
means that the SSM or ASM provides no reduction in the probability of a 
collision, while an effectiveness rating of one means that the SSM or 
ASM is totally effective in reducing collisions. Measurements between 
zero and one reflect the percentage by which the SSM or ASM reduces the 
probability of a collision.
    FRA means the Federal Railroad Administration.
    Grade Crossing Inventory Form means the U.S. DOT National Highway-
Rail Grade Crossing Inventory Form, FRA Form F6180.71. This form is 
available through the FRA's Office of Safety, or on FRA's Web site at 
http://www.fra.dot.gov.
    Locomotive means a piece of on-track equipment other than hi-rail, 
specialized maintenance, or other similar equipment--
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Locomotive horn means a locomotive air horn, steam whistle, or 
similar audible warning device (see 49 CFR 229.129) 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.
    MUTCD means the Manual on Traffic Control Devices published by the 
Federal Highway Administration.
    Nationwide Significant Risk Threshold means a number reflecting a 
measure of risk, calculated on a nationwide basis, which reflects the 
average level of risk to the motoring public at public highway-rail 
grade crossings equipped with flashing lights and gates and at which 
locomotive horns are sounded. For purposes of this rule, a risk level 
above the Nationwide Significant Risk Threshold represents a 
significant risk with respect to loss of life or serious personal 
injury. The Nationwide Significant Risk Threshold is calculated in 
accordance with the procedures in Appendix D of this part. Unless 
otherwise indicated, references in this part to the Nationwide 
Significant Risk Threshold reflect its level as last published by FRA.
    New 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 routine sounding of locomotive horns is restricted pursuant to 
this part and which does not qualify as a Pre-Rule Quiet Zone.
    Non-traversable curb means a highway curb designed to discourage a 
motor vehicle from leaving the roadway. Such curb used where highway 
speeds do not exceed 40 miles per hour, is more than six inches but not 
more than nine inches high. If not equipped with reboundable, 
reflectorized vertical markers, paint and reflective beads should be 
applied to the curb for night visibility. Additional design 
specifications are determined by the standard traffic design 
specifications used by the governmental entity constructing the curb.
    Power-out indicator means a device which is capable of indicating 
to trains approaching a grade crossing equipped with an active warning 
system whether commercial electric power is activating the warning 
system at that crossing. This term includes remote health monitoring of 
grade crossing warning systems if such monitoring system is equipped to 
indicate power status.
    Pre-Rule 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 State statutes or local ordinances restricted the routine 
sounding of locomotive horns, or at which locomotive horns did not 
sound due to formal or informal agreements between the community and 
the railroad or railroads, and at which such statutes, ordinances or 
agreements were in place and enforced or observed as of October 9, 1996 
and on December 18, 2003.
    Private highway-rail crossing means, for purposes of this part, a 
highway-rail at grade crossing which is not a public highway-rail grade 
crossing.
    Public authority means the public entity responsible for safety and 
maintenance of the roadway crossing the railroad tracks at a public 
highway-rail grade crossing. This term includes the traffic control 
authority or law enforcement authority, or the governmental 
jurisdiction having responsibility for motor vehicle safety at the 
crossing.
    Public highway-rail grade crossing means, for purposes of this 
part, a location where a public highway, road, or street, including 
associated sidewalks or pathways, crosses one or more railroad tracks 
at grade. In the event a public authority maintains the roadway on at 
least one side of the crossing, the crossing is considered a public 
crossing for purposes of this part.
    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 are not routinely sounded.
    Quiet Zone Risk Index means a measure of risk to the motoring 
public which reflects the Crossing Corridor Risk Index for a quiet 
zone, after adjustment to account for increased risk due to lack of 
locomotive horn use at the crossings within the quiet zone (if horns 
are presently sounded at the crossings), and reduced risk due to 
implementation, if any, of SSMs and ASMs within the quiet zone. The 
Quiet Zone Risk Index is calculated in accordance with the procedures 
in Appendix D of this part.
    Railroad means any form of non-highway 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

[[Page 70666]]

    (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.
    Relevant collision means a collision at a highway-rail grade 
crossing between a train and a motor vehicle, excluding the following: 
a collision resulting from an activation failure of an active grade 
crossing warning system; a collision in which there is no driver in the 
motor vehicle; or a collision in which the highway vehicle struck the 
side of the train beyond the fourth locomotive unit or rail car.
    Supplementary safety measure (SSM) 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 
responsible for safety at the highway-rail grade crossing, that is 
determined by the Associate Administrator to be an effective substitute 
for the locomotive horn in the prevention of highway-rail casualties. 
Appendix A to this part lists such SSMs.
    Waiver means a temporary or permanent modification of some or all 
of the requirements of this part as they apply to a specific party 
under a specific set of facts. Waiver does not refer to the process of 
establishing quiet zones or approval of quiet zones in accordance with 
the provisions of this part.
    Wayside horn means a stationary horn located at a highway rail 
grade crossing, designed to provide, upon the approach of a locomotive 
or train, audible warning to oncoming motorists of the approach of a 
train.


Sec.  222.11  What are the penalties for failure to comply with this 
regulation?

    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. Appendix G 
contains a schedule of civil penalty amounts used in connection with 
this part.


Sec.  222.13  Who is responsible for compliance?

    Any person, including but not limited to a railroad, 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.


Sec.  222.15  How does one obtain a waiver of a provision of this 
regulation?

    (a) Except as provided in paragraph (b), two parties must jointly 
file a petition (request) for a waiver. They are the railroad owning or 
controlling operations over the railroad tracks crossing the public 
highway-rail grade crossing and the public authority which has 
jurisdiction over the roadway crossing the railroad tracks.
    (b) If the railroad and the public authority cannot reach agreement 
to file a joint petition, either party may file a request for a waiver; 
however, the filing party must specify in its petition the steps it has 
taken in an attempt to reach agreement with the other party. The filing 
party must also provide the other party with a copy of the petition 
filed with FRA.
    (c) Each petition for waiver must be filed in accordance with 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 consistent with 
the safety of highway and railroad users, the Administrator may grant 
the waiver subject to any conditions the Administrator deems necessary.

Subpart B--Use of Locomotive Horns


Sec.  222.21  When must a locomotive horn be used?

    (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 a location so as to be 
in accord with paragraph (b) of this section and shall be repeated or 
prolonged until the locomotive or train occupies the crossing. This 
pattern may be varied as necessary where crossings are spaced closely 
together.
    (b) The locomotive horn shall begin to be sounded at least 15 
seconds, but no more than 20 seconds, before the locomotive enters the 
crossing, but 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) in advance of the nearest public highway-rail grade 
crossing.


Sec.  222.23  How does this regulation affect sounding of a horn during 
an emergency or other situations?

    (a)(1) Notwithstanding any other provision of this part, a 
locomotive engineer may sound the locomotive horn to provide a warning 
to vehicle operators, pedestrians, trespassers or crews on other trains 
in an emergency situation if, in the locomotive engineer's sole 
judgment, such action is appropriate in order to prevent imminent 
injury, death or property damage.
    (2) Notwithstanding any other provision of this part, including 
provisions addressing the establishment of quiet zones, limits on the 
length of time in which a horn may be sounded, or installation of 
wayside horns within quiet zones, this part 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 in this part restricts the use of the locomotive horn 
where active warning devices have malfunctioned and use of the horn is 
required by one of the following sections of this Chapter: Sec. Sec.  
234.105; 234.106; or 234.107, or where warning systems are temporarily 
out of service during inspection, maintenance, or testing. Nothing in 
this part restricts the use of the locomotive horn for purposes other 
than highway-rail crossing safety (e.g., to announce the approach of 
the train to roadway workers in accordance with a program adopted under 
part 214 of this Chapter, or where required for other purposes under 
the railroad's operating rules).


Sec.  222.25  How does this rule affect private highway-rail grade 
crossings?

    This rule does not require the routine sounding of locomotive horns 
at private highway-rail grade crossings. Except as specified in this 
section, this part is not meant to address the subject of private grade 
crossings and is not intended to affect present State or local laws or 
orders, or private contractual or other arrangements regarding the 
routine sounding of locomotive horns at private highway-rail grade 
crossings.
    (a) Private highway-rail grade crossings may be included in a quiet 
zone.
    (b) Private highway-rail grade crossings which are located in New

[[Page 70667]]

Quiet Zones and which allow access to the public, or which provide 
access to active industrial or commercial sites, may be included in a 
quiet zone only if a diagnostic team evaluates the crossing and the 
crossing is equipped or treated in accord with the recommendations of 
such diagnostic team.
    (c)(1) At a minimum, every private highway-rail grade crossing 
within a New Quiet Zone shall be marked by a crossbuck and a ``STOP'' 
sign, each of which shall conform to the standards contained in the 
MUTCD, and shall be equipped with advance warning signs in compliance 
with Sec.  222.35(c).
    (2) At a minimum, every private highway-rail grade crossing within 
a Pre-Rule Quiet Zone shall, by December 18, 2006, be marked by a 
crossbuck and a ``STOP'' sign, each of which shall conform to the 
standards contained in the MUTCD, and shall be equipped with advance 
warning signs in compliance with Sec.  222.35(c)

Subpart C--Exceptions to the Use of the Locomotive Horn


Sec.  222.31  [Reserved]

Silenced Horns at Individual Crossings


Sec.  222.33  Can locomotive horns be silenced at an individual public 
highway-rail grade crossing which is not within a quiet zone?

    (a) A railroad operating over an individual public highway-rail 
crossing, may, at its discretion, cease the sounding of the locomotive 
horn if the locomotive speed is 15 miles per hour or less and train 
crew members, or appropriately equipped flaggers, as defined in 49 CFR 
234.5, flag the crossing to provide warning of approaching trains to 
motorists.
    (b) This section does not apply where active grade crossing warning 
devices have malfunctioned and use of the horn is required by 49 CFR 
234.105, 234.106, or 234.107.

Silenced Horns at Groups of Crossings--Quiet Zones


Sec.  222.35  What are minimum requirements for quiet zones?

    The following requirements apply to quiet zones established in 
conformity with this part.
    (a) Minimum length. (1) The minimum length of a New Quiet Zone 
established under this part shall be one-half mile along the length of 
railroad right-of-way.
    (2) The length of a Pre-Rule Quiet Zone may continue unchanged from 
that which existed as of October 9, 1996. Because the addition of any 
crossing to a Pre-Rule Quiet Zone ends the grandfathered status of that 
quiet zone, the New Quiet Zone resulting from the addition of one or 
more crossings to a Pre-Rule Quiet Zone shall be at least one-half mile 
in length and shall comply with all requirements applicable to New 
Quiet Zones. The deletion of any crossing from a Pre-Rule Quiet Zone, 
with the exception of a grade separation or crossing closure, must 
result in a quiet zone of at least one-half mile in length in order to 
retain Pre-Rule Quiet Zone status.
    (3) A quiet zone may include highway-rail grade crossings on a 
segment of rail line crossing more than one political jurisdiction.
    (b) Active grade crossing warning devices. (1) Each public highway-
rail grade crossing in a New Quiet Zone established under this subpart 
must be equipped, no later than the implementation date of the New 
Quiet Zone, 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 MUTCD. Such warning 
devices shall be equipped with constant warning time devices, if 
reasonably practical, and power-out indicators.
    (2) Pre-Rule Quiet Zones must retain, and may upgrade the grade 
crossing safety warning system which existed as of December 18, 2003. 
Any such upgrade shall include constant warning time devices, where 
reasonably practical, and power-out indicators. In no event may the 
grade crossing safety warning system which existed as of December 18, 
2003, be downgraded. Risk reduction resulting from upgrading to 
flashing lights or gates may be credited in calculating the quiet 
zone's Quiet Zone Risk Index.
    (c) Advance warning signs. (1) Subject to paragraph (c)(2) of this 
section, each highway approach to every public and private highway-rail 
grade crossing within a Pre-Rule Quiet Zone or New Quiet Zone shall be 
equipped with an advance warning sign which advises the motorist that 
train horns are not sounded at the crossing. Such sign shall conform to 
the standards contained in the MUTCD issued by the Federal Highway 
Administration.
    (2) Each highway approach to every public and private highway-rail 
grade crossing in a Pre-Rule Quiet Zone shall be equipped with such 
advance warning signs described in paragraph (c)(1) of this section by 
December 18, 2006.
    (d) All private crossings within the quiet zone must be treated in 
accordance with this section and Sec.  222.25.
    (e) All public crossings within the quiet zone must be in 
compliance with requirements of the MUTCD.


Sec.  222.37  Who may establish a quiet zone?

    (a) A public authority may establish quiet zones that are 
consistent with the provisions of this part. If a proposed quiet zone 
includes public grade crossings under the authority and control of more 
than one public authority (such as a county road and a State highway 
crossing the railroad tracks at different crossings), both public 
authorities must agree to establishment of the quiet zone, and must 
jointly, or by delegation provided to one of the authorities, take such 
actions as are required by this part.
    (b) A public authority may establish quiet zones irrespective of 
State laws covering the subject matter of sounding or silencing 
locomotive horns at public highway-rail grade crossings. Nothing in 
this part, however, is meant to affect any other applicable role of 
State agencies or the Federal Highway Administration in decisions 
regarding funding or construction priorities for grade crossing safety 
projects, selection of traffic control devices, or engineering 
standards for roadways or traffic control devices.
    (c) A State agency may provide administrative and technical 
services to public authorities by advising them, acting on their 
behalf, or acting as a central contact point in dealing with FRA; 
however, any public authority eligible to establish a quiet zone under 
this part may do so.


Sec.  222.39  How is a quiet zone established?

    (a) Public authority designation. This paragraph (a) describes how 
a quiet zone may be designated by a public authority without the need 
for formal application to, and approval by FRA. If a public authority 
complies with either paragraph (a)(1), (2), or (3) of this section, and 
complies with the information and notification provisions of Sec.  
222.43, a public authority may designate a quiet zone without the 
necessity for FRA review and approval.
    (1) A quiet zone may be established by implementing, at every 
public highway-rail grade crossing within the quiet zone, one or more 
SSMs identified in Appendix A of this part.
    (2) A quiet zone may be established if the Quiet Zone Risk Index is 
at, or below, the Nationwide Significant Risk Threshold, as follows:
    (i) If the Quiet Zone Risk Index is already at, or below, the 
Nationwide Significant Risk Threshold without being reduced by 
implementation of SSMs; or

[[Page 70668]]

    (ii) If SSMs are implemented which are sufficient to reduce the 
Quiet Zone Risk Index to a level at, or below, the Nationwide 
Significant Risk Threshold.
    (3) A quiet zone may be established if SSMs are implemented which 
are sufficient to reduce the Quiet Zone Risk Index to a level at or 
below the risk level which would exist if locomotive horns sounded at 
all public crossings in the quiet zone.
    (b) Public authority application to FRA. (1) A public authority may 
apply to the Associate Administrator for approval of a quiet zone which 
does not meet the standards for public authority designation under 
paragraph (a) of this section, but in which it is proposed that one or 
more safety measures be implemented. Such proposed quiet zone may 
include only ASMs, or a combination of ASMs and SSMs at various 
crossings within the quiet zone. Note that an ``SSM'' which does not 
fully comply with the requirements for an SSM under Appendix A, is 
considered to be an ASM. The public authority's application must:
    (i) Contain an accurate, complete and current Grade Crossing 
Inventory Form for each public and private highway-rail grade crossing 
within the proposed quiet zone;
    (ii) Contain sufficient detail concerning the present safety 
measures at the public highway-rail grade crossings proposed to be 
included in the quiet zone to enable the Associate Administrator to 
evaluate their effectiveness;
    (iii) Contain detailed information as to which SSMs or ASMs are 
proposed to be implemented and at which public or private highway-rail 
grade crossings within the proposed quiet zone, including membership 
and recommendations of the diagnostic team, if any, which reviewed the 
proposed quiet zone;
    (iv) Contain a commitment to implement the proposed safety measures 
within the proposed quiet zone;
    (v) Demonstrate through data and analysis that the proposed 
implementation of these measures will cause a reduction in the Quiet 
Zone Risk Index to, or below, either the risk level which would exist 
if locomotive horns sounded at all crossings in the quiet zone or to a 
risk level at, or below, the Nationwide Significant Risk Threshold; and
    (vi) Be provided to the parties listed in Sec.  222.43(a)(1) in the 
manner specified in that section.
    (2)(i) The Associate Administrator will approve the quiet zone if, 
in the Associate Administrator's judgment, the public authority is in 
compliance with paragraph (b)(1) of this section and has satisfactorily 
demonstrated that the SSMs and ASMs proposed by the public authority 
result in a Quiet Zone Risk Index which is either:
    (A) At or below the risk level which would exist if locomotive 
horns sounded at all crossings in the quiet zone or
    (B) At, or below, the Nationwide Significant Risk Threshold.
    (ii) The Associate Administrator may include in any decision of 
approval such conditions as may be necessary to ensure that the 
proposed safety improvements are effective. If the Associate 
Administrator does not approve the quiet zone, the Associate 
Administrator describes in the decision the basis upon which the 
decision was made. A decision denying approval may be reviewed as 
provided in Sec.  222.57(b).
    (c) Appendix C contains guidance on how to create a quiet zone.


Sec.  222.41  How does this rule affect Pre-Rule Quiet Zones?

    (a) Pre-Rule Quiet Zones which qualify for automatic approval. A 
Pre-Rule Quiet Zone will be considered automatically approved and may 
remain in effect, subject to Sec.  222.51, if the Pre-Rule Quiet Zone 
is in compliance with Sec.  222.35 (minimum requirements for quiet 
zones) and Sec.  222.43 (notice and information requirements, with the 
exception of providing advance notice) and the Pre-Rule Quiet Zone:
    (1) Has at every public highway-rail grade crossing within the 
quiet zone, one or more SSMs identified in Appendix A of this part; or
    (2) The Quiet Zone Risk Index as last published by FRA is at, or 
below, the Nationwide Significant Risk Threshold; or
    (3) The Quiet Zone Risk Index as last published by FRA is above the 
Nationwide Significant Risk Threshold but less than twice the 
Nationwide Significant Risk Threshold and there have been no relevant 
collisions at any public grade crossing within the quiet zone for the 
five years preceding December 18, 2003.
    (b) Pre-Rule Quiet Zones which do not qualify for automatic 
approval. (1) If a Pre-Rule Quiet Zone does not qualify for automatic 
approval under paragraph (a) of this section, existing restrictions 
may, at the public authority's discretion, remain in place on an 
interim basis under the provisions of this paragraph (b) and upon 
compliance with Sec.  222.43 (notice and information requirements, with 
the exception of providing advance notice). Continuation of a quiet 
zone beyond the interim periods specified in this paragraph will 
require implementation of SSMs or ASMs in accord with Sec.  222.39.
    (2) In order to provide time for the public authority to plan for 
and implement quiet zones which are in compliance with the requirements 
of this part, a public authority may continue locomotive horn 
restrictions at Pre-Rule Quiet Zones which do not qualify for automatic 
approval for a period of five years from December 18, 2003, provided 
that, the public authority has, within three years of December 18, 
2003, filed with the Associate Administrator a detailed plan for 
establishing a quiet zone under this part, including, in the case of a 
plan requiring approval under Sec.  222.39(b), all of the required 
elements of filings under that paragraph together with a timetable for 
implementation of safety improvements.
    (3) Locomotive horn restrictions may continue for an additional 
three years beyond the five year period permitted by paragraph (b)(2) 
of this section, if,
    (i) Prior to December 18, 2006, the appropriate State agency 
provides to the Associate Administrator: a comprehensive State-wide 
implementation plan and funding commitment for implementing 
improvements at Pre-Rule Quiet Zones which do not qualify for automatic 
approval under paragraph (a) of this section, which, when implemented, 
would enable them to qualify for a quiet zone under this part; and
    (ii) Prior to December 18, 2007, either physical improvements are 
initiated at a portion of the crossings within the quiet zone, or the 
appropriate State agency has participated in quiet zone improvements in 
one or more jurisdictions elsewhere within the State.
    (4) In the event that the safety improvements planned for the quiet 
zone require approval of FRA under Sec.  222.39(b), the public 
authority should apply for such approval prior to June 19, 2006, to 
assure that FRA has ample time in which to review such application 
prior to the end of the extension period.


Sec.  222.43  What notices and other information are required to 
establish a quiet zone?

    (a) (1) Upon compliance with Sec. Sec.  222.39(a) or 222.39(b) 
resulting in the establishment or approval of a quiet zone, or of its 
continuation under Sec.  222.41, the public authority shall provide 
written notice, by certified mail, return receipt requested, of the 
quiet zone implementation to: all railroads operating over the public 
highway-rail grade crossings within the quiet zone; the highway or 
traffic control authority

[[Page 70669]]

or law enforcement authority having control over vehicular traffic at 
the crossings within the quiet zone; the landowner having control over 
any private crossings within the quiet zone; the State agency 
responsible for highway and road safety; and the Associate 
Administrator.
    (2)(i) Notice of the establishment of a quiet zone established 
under the provisions of Sec.  222.39 (New Quiet Zones) shall provide 
the date upon which routine locomotive horn use at grade crossings 
shall cease, but in no event shall the date be earlier than 21 days 
after the date of mailing of such written notification.
    (ii) Notice of the continuation of a quiet zone under Sec. Sec.  
222.41(a) and (b) (Pre-Rule Quiet Zone) shall be served no later than 
December 18, 2004.
    (3) The notice shall list the grade crossings within the quiet 
zone, identified by both U.S. DOT National Highway-Rail Grade Crossing 
Inventory Number and street or highway name. The notice shall also 
include specific reference to the regulatory provision which provides 
the basis for establishment or continuation of the quiet zone, citing 
as appropriate, either Sec.  222.39(a)(1), 222.39(a)(2)(i), 
222.39(a)(2)(ii), 222.39(a)(3), 222.39(b), or 222.41. Reference to 
Sec. Sec.  222.39(a)(1), (2), or (3) shall include a copy of the FRA 
web page containing the quiet zone data upon which the public authority 
relies. Reference to Sec.  222.39(b) shall include a copy of FRA's 
notification of approval. Reference to Sec.  222.41 shall include a 
statement as to how the quiet zone is in compliance with the 
requirements of that section and, if appropriate, shall include a copy 
of the FRA web page containing the quiet zone data upon which the 
public authority relies. The notice shall be accompanied by a 
certificate of service showing to whom and by what means the notice was 
provided.
    (b) The following must be submitted to the Associate Administrator 
together with the notification required in paragraph (a) of this 
section:
    (1) An accurate and complete Grade Crossing Inventory Form for each 
public and private highway-rail grade crossing within the quiet zone, 
dated within six months prior to designation or FRA approval of the 
quiet zone;
    (2) An accurate, complete and current Grade Crossing Inventory Form 
reflecting SSMs and ASMs in place upon establishment of the quiet zone. 
SSMs or ASMs that cannot be fully described on the Inventory Form shall 
be separately described;
    (3) The name and title of the person responsible for monitoring 
compliance with the requirements of this part and the manner in which 
that person can be contacted;
    (4) A list of all parties notified in accordance with paragraph (a) 
of this section, together with copies of the certificates of service 
showing to whom and by what means the notice was provided; and
    (5) A statement signed by the chief executive officer of each 
public authority establishing or continuing a quiet zone under this 
part, in which the official shall certify that responsible officials of 
the public authority have reviewed documentation prepared by or for 
FRA, and filed in Docket No. FRA-1999-6439, sufficient to make an 
informed decision regarding the advisability of establishing the quiet 
zone. FRA documents which may be of interest are found on FRA's Web 
site at http://www.fra.dot.gov.


Sec.  222.45  When is a railroad required to cease routine use of 
locomotive horns at crossings?

    After notification from a public authority, pursuant to Sec.  
222.43, that a quiet zone is being established, a railroad shall cease 
routine use of the locomotive horn at all public and private highway-
rail grade crossings identified by the public authority upon the date 
set by the public authority.


Sec.  222.47  What periodic updates are required?

    (a) Quiet zones with SSMs at each public crossing. This paragraph 
addresses quiet zones established pursuant to Sec.  222.39(a)(1) and 
Sec.  222.41(a)(1) (quiet zones with an SSM implemented at every public 
crossing within the quiet zone). Between 4\1/2\ and 5 years after the 
date of the original quiet zone implementation notice provided by the 
public authority to the FRA and relevant railroads under Sec.  
222.43(a), and between 4\1/2\ and 5 years after the last affirmation 
under this section, the public authority must:
    (1) Affirm in writing to the Associate Administrator that the SSMs 
implemented within the quiet zone continue to conform to the 
requirements of Appendix A of this part. Copies of such affirmation 
must be provided to the parties identified in Sec.  222.43(a) by 
certified mail, return receipt requested; and
    (2) Provide to the Associate Administrator an up-to-date, accurate, 
and complete Grade Crossing Inventory Form for each public and private 
highway-rail grade crossing within the quiet zone.
    (b) Quiet zones which do not have a supplementary safety measure at 
each public crossing. This paragraph addresses quiet zones established 
pursuant to Sec. Sec.  222.39(a)(2) and (a)(3), Sec.  222.39(b) and 
Sec. Sec.  222.41(a)(2) and (a)(3) (quiet zones which do not have an 
SSM at every public crossing within the quiet zone). Between 2\1/2\ and 
3 years after the date of the original quiet zone implementation notice 
provided by the public authority to the FRA and relevant railroads 
under Sec.  222.43(a), and between 2\1/2\ and 3 years after the last 
affirmation under this section, the public authority must:
    (1) Affirm in writing to the Associate Administrator that all SSMs 
and ASMs implemented within the quiet zone continue to conform to the 
requirements of Appendices A and B of this part or the terms of the 
Quiet Zone approval. Copies of such notification must be provided to 
the parties identified in Sec.  222.43(a)(1) by certified mail, return 
receipt requested; and
    (2) Must provide to the Associate Administrator an up-to-date, 
accurate, and complete Grade Crossing Inventory Form for each public 
and private highway-rail grade crossing within the quiet zone.


Sec.  222.49  Who may file Grade Crossing Inventory Forms?

    (a) Grade Crossing Inventory Forms required to be filed with the 
Associate Administrator in accordance with Sec. Sec.  222.43 and 222.47 
may be filed by the public authority if, for any reason, such forms are 
not timely submitted by the State and railroad.
    (b) Within 30 days after receipt of a written request of the public 
authority, the railroad owning the line of railroad that includes 
public or private highway rail grade crossings within the quiet zone or 
proposed quiet zone shall provide to the State and public authority 
sufficient current information regarding the grade crossing and the 
railroad's operations over the grade crossing to enable the State and 
public authority to complete the Grade Crossing Inventory Form.


Sec.  222.51  Under what conditions will FRA review and terminate quiet 
zone status?

    (a) New Quiet Zone--Annual risk review. (1) FRA will annually 
calculate the Quiet Zone Risk Index for each quiet zone established 
pursuant to Sec. Sec.  222.39(a)(2) (quiet zones established based on 
comparison with Nationwide Significant Risk Threshold), and 
222.39(b)(2)(ii) (quiet zones established based on approval of FRA and 
that reduce risk to a level at, or below, the Nationwide Significant 
Risk Threshold). Annual risk reviews will not be conducted for quiet 
zones established

[[Page 70670]]

pursuant to Sec. Sec.  222.39(a)(1) (quiet zones established by having 
an SSM at every public crossing within the quiet zone) and Sec. Sec.  
222.39(a)(3) and (b)(2)(i) (quiet zones established based on the risk 
level having been reduced to a level fully compensating for the absence 
of the train horn by use of SSMs). FRA will notify each public 
authority of the Quiet Zone Risk Index for the preceding calendar year 
for each such quiet zone in its jurisdiction.
    (2) Actions to be taken by public authority to retain quiet zone. 
If the Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold, the quiet zone will terminate six months from the date of 
receipt of notification from FRA that the Quiet Zone Risk Index exceeds 
the Nationwide Significant Risk Threshold, unless the public authority 
takes the following actions:
    (i) Within six months after the date of receipt of notification 
from FRA that the Quiet Zone Risk Index exceeds the Nationwide 
Significant Risk Threshold, provide to the Associate Administrator a 
written commitment to lower the potential risk to the traveling public 
at the crossings within the quiet zone to a level at, or below, the 
Nationwide Significant Risk Threshold or to a level fully compensating 
for the absence of the train horn. Included in the commitment statement 
shall be a discussion of the specific steps to be taken by the public 
authority to increase safety at the crossings within the quiet zone; 
and
    (ii) Within three years after the date of receipt of notification 
from FRA that the Quiet Zone Risk Index exceeds the Nationwide 
Significant Risk Threshold, complete implementation of SSMs or ASMs 
sufficient to reduce the Quiet Zone Risk Index to a level at, or below, 
the Nationwide Significant Risk Threshold, or to a level that fully 
compensates for the absence of the train horn, and receive approval 
from the Associate Administrator, under the procedures set forth in 
Sec.  222.39(b), for continuation of the quiet zone. If the Quiet Zone 
Risk Index is reduced to a level that fully compensates for the absence 
of the train horn, the quiet zone will be considered to have been 
established pursuant to Sec.  222.39(a)(3) and subsequent annual risk 
reviews will not be conducted for that quiet zone.
    (iii) Failure to comply with paragraph (a)(2)(i) of this section 
shall result in the termination of the quiet zone six months after the 
date of receipt of notification from FRA that the Quiet Zone Risk Index 
exceeds the Nationwide Significant Risk Threshold. Failure to comply 
with paragraph (a)(2)(ii) of this section shall result in the 
termination of the quiet zone three years after the date of receipt of 
notification from FRA that the Quiet Zone Risk Index exceeds the 
Nationwide Significant Risk Threshold.
    (b) Pre-Rule Quiet Zone--Annual risk review. (1) FRA will annually 
calculate the Quiet Zone Risk Index for each Pre-Rule Quiet Zone that 
qualified for automatic approval pursuant to Sec. Sec.  222.41(a)(2) 
and (a)(3). FRA will notify each public authority of the Quiet Zone 
Risk Index for the preceding calendar year for each such quiet zone in 
its jurisdiction. FRA will also notify each public authority if a 
relevant collision occurred at a grade crossing within the quiet zone 
during the preceding calendar year.
    (2) Pre-Rule Quiet Zone authorized under Sec.  222.41(a)(2). (i) If 
a Pre-Rule Quiet Zone originally qualified for automatic approval 
because the Quiet Zone Risk Index was at, or below, the Nationwide 
Significant Risk Threshold (Sec.  222.41(a)(2)), the quiet zone may 
continue unchanged if the Quiet Zone Risk Index as last calculated by 
FRA remains at, or below, the Nationwide Significant Risk Threshold.
    (ii) If the Quiet Zone Risk Index as last calculated by FRA is 
above the Nationwide Significant Risk Threshold, but is lower than 
twice the Nationwide Significant Risk Threshold and no relevant 
collisions have occurred at crossings within the quiet zone within the 
five years preceding the annual risk review, then the quiet zone may 
continue as though it originally received automatic approval pursuant 
to Sec.  222.41(a)(3).
    (iii) If the Quiet Zone Risk Index as last calculated by FRA is at, 
or above, twice the Nationwide Significant Risk Threshold, or if the 
Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold, but is lower than twice the Nationwide Significant Risk 
Threshold and a relevant collision occurred at a crossing within the 
quiet zone within the preceding five calendar years, the quiet zone 
will terminate six months after the date of receipt of notification 
from FRA of the Nationwide Significant Risk Threshold level, unless the 
public authority takes the actions specified in paragraph (b)(4) of 
this section.
    (3) Pre-Rule Quiet Zone authorized under Sec.  222.41(a)(3). (i) If 
a Pre-Rule Quiet Zone originally qualified for automatic approval 
because the Quiet Zone Risk Index was above the Nationwide Significant 
Risk Threshold but was below twice the Nationwide Significant Risk 
Threshold and no relevant collisions had occurred within the five year 
qualifying period (Sec.  222.41(a)(3)), the quiet zone may continue 
unchanged if the Quiet Zone Risk Index as last calculated by FRA 
remains below twice the Nationwide Significant Risk Threshold and no 
relevant collisions occurred at a public grade crossing within the 
quiet zone during the preceding calendar year.
    (ii) If the Quiet Zone Risk Index as last calculated by FRA is at, 
or above, twice the Nationwide Significant Risk Threshold, or if a 
relevant collision occurred at a public grade crossing within the quiet 
zone during the preceding calendar year, the quiet zone will terminate 
six months after the date of receipt of notification from FRA that the 
Quiet Zone Risk Index is at, or exceeds twice the Nationwide 
Significant Risk Threshold or that a relevant collision occurred at a 
crossing within the quiet zone, unless the public authority takes the 
actions specified in paragraph (b)(4) of this section.
    (4) Actions to be taken by the public authority to retain a quiet 
zone. (i) Within six months after the date of FRA notification, the 
public authority shall provide to the Associate Administrator a written 
commitment to lower the potential risk to the traveling public at the 
crossings within the quiet zone by reducing the Quiet Zone Risk Index 
to a level at, or below, the Nationwide Significant Risk Threshold or 
to a level that fully compensates for the absence of the train horn. 
Included in the commitment statement shall be a discussion of the 
specific steps to be taken by the public authority to increase safety 
at the public crossings within the quiet zone; and
    (ii) Within three years of the date of FRA notification, the public 
authority shall complete implementation of SSMs or ASMs sufficient to 
reduce the Quiet Zone Risk Index to a level at, or below, the 
Nationwide Significant Risk Threshold, or to a level that fully 
compensates for the absence of the train horn, and receive approval 
from the Associate Administrator, under the procedures set forth in 
Sec.  222.39(b), for continuation of the quiet zone. If the Quiet Zone 
Risk Index is reduced to a level that fully compensates for the absence 
of the train horn, the quiet zone will be considered to have been 
established pursuant to Sec.  222.39(a)(3) and subsequent annual risk 
reviews will not be conducted for that quiet zone.
    (iii) Failure to comply with paragraph (b)(4)(i) of this section 
shall result in the termination of the quiet zone six months after the 
date of receipt of notification from FRA. Failure to comply with 
paragraph (b)(4)(ii) of this section shall result in the termination of 
the quiet

[[Page 70671]]

zone three years after the date of receipt of notification from FRA.
    (c) Review at FRA's initiative. The Associate Administrator may, at 
any time, review the status of any quiet zone. If the Associate 
Administrator makes a preliminary determination that safety systems and 
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, the Associate Administrator will provide 
written notice to the public authority and all parties listed in Sec.  
222.43(a) and will publish notice of the determination in the Federal 
Register. After providing an opportunity for comment, the Associate 
Administrator may require that additional safety measures be taken or 
that the quiet zone be terminated. The Associate Administrator's 
decision may be challenged in accordance with Sec.  222.57(b). Nothing 
in this section is intended to limit the Administrator's emergency 
authority under 49 U.S.C. 20104 and 49 CFR part 211.
    (d) Notification of termination. In the event that a quiet zone is 
terminated under the provisions of this section, it shall be the 
responsibility of the public authority to notify all parties listed in 
Sec.  222.43(a) and in the manner specified in Sec.  222.43(a), of such 
termination.
    (e) Requirement to sound the locomotive horn. Upon receipt of 
notification pursuant to paragraph (d), or upon receipt of notification 
from FRA that the quiet zone is being terminated, railroads shall, 
within seven days, and in accordance with the provisions of this part, 
sound the locomotive horn when approaching and passing through every 
public highway-rail grade crossing within the former quiet zone.


Sec.  222.53  What are the requirements for supplementary and 
alternative safety measures?

    (a) Approved SSMs are listed in appendix A of this part.
    (b) Additional ASMs that may be included in a request for FRA 
approval of a quiet zone under Sec.  222.39(b) are listed in appendix B 
of this part.
    (c) The following do not, individually or in combination, 
constitute SSMs or ASMs: Standard traffic control device 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.  222.55  How are new supplementary or alternative safety measures 
approved?

    (a) The Associate Administrator may add new SSMs and standards to 
appendix A and new ASMs and standards to appendix B of this part when 
the Associate 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.
    (b) Interested parties may apply for approval from the Associate 
Administrator to demonstrate proposed new SSMs or ASMs to determine 
whether they are effective substitutes for the locomotive horn in the 
prevention of collisions and casualties at public highway-rail grade 
crossings.
    (c) The Associate Administrator may, after notice and opportunity 
for comment, 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 SSMs or 
ASMs, provided that such proposed new SSMs or ASMs have been subject to 
prior testing and evaluation. In issuing such order, the Associate 
Administrator may impose any conditions or limitations on such use of 
the proposed new SSMs or ASMs which the Associate Administrator deems 
necessary in order to provide the level of safety at least equivalent 
to that provided by the locomotive horn.
    (d) Upon completion of a demonstration of proposed new SSMs or 
ASMs, interested parties may apply to the Associate Administrator for 
their approval. 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 SSM or ASM;
    (3) A description and results of the demonstration project in which 
the proposed SSMs or ASMs were tested;
    (4) Estimated costs of the proposed new SSM or ASM; and
    (5) Any other information deemed necessary.
    (e) If the Associate Administrator is satisfied that the proposed 
safety measure fully compensates for the absence of the warning 
provided by the locomotive horn, the Associate Administrator will 
approve its use as an SSM to be used in the same manner as the measures 
listed in Appendix A of this part, or the Associate Administrator, may 
approve its use as an ASM to be used in the same manner as the measures 
listed in Appendix B of this part. The Associate Administrator may 
impose any conditions or limitations on use of the SSMs or ASMs which 
the Associate Administrator deems necessary in order to provide the 
level of safety at least equivalent to that provided by the locomotive 
horn.
    (f) If the Associate Administrator approves a new SSM or ASM, the 
Associate Administrator will: notify the applicant, if any; publish 
notice of such action in the Federal Register; and add the measure to 
the list of approved SSMs or ASMs.
    (g) A public authority or other interested party may appeal to the 
Administrator from a decision by the Associate Administrator granting 
or denying an application for approval of a proposed SSM or ASM or the 
conditions or limitations imposed on its use in accordance with Sec.  
222.57 .


Sec.  222.57  Can parties seek review of the Associate Administrator's 
actions?

    (a) A public authority or other interested party may petition the 
Administrator for review of any decision by the Associate Administrator 
granting or denying an application for approval of a new SSM or ASM 
under Sec.  222.55. The petition must be filed within 60 days of the 
decision to be reviewed, specify the grounds for the requested relief, 
and be served upon all parties identified in Sec.  222.43(a). Unless 
the Administrator specifically provides otherwise, and gives notice to 
the petitioner or publishes a notice in the Federal Register, the 
filing of a petition under this paragraph does not stay the 
effectiveness of the action sought to be reviewed. The Administrator 
may reaffirm, modify, or revoke the decision of the Associate 
Administrator without further proceedings and shall notify the 
petitioner and other interested parties in writing or by publishing a 
notice in the Federal Register.
    (b) A public authority may challenge a decision by the Associate 
Administrator to deny an application by that authority for approval of 
a quiet zone, or to require additional safety measures, or that a quiet 
zone be terminated, by filing a petition for reconsideration with the 
Associate Administrator. The petition must specify the grounds for the 
requested relief, be filed within 60 days of the decision to be 
reconsidered, and be served upon all parties identified in Sec.  
222.43(a). Upon receipt of a timely and proper petition, the Associate 
Administrator will provide the petitioner an opportunity to submit 
additional materials and for an informal hearing. Upon review of the 
additional materials and completion of any hearing requested, the 
Associate Administrator shall issue a decision on the petition that 
will be administratively final.

[[Page 70672]]

Sec.  222.59  When may a wayside horn be used?

    (a) Notwithstanding any provisions in this part to the contrary:
    (1) A wayside horn conforming to the requirements of Appendix E of 
this part may be used in lieu of a locomotive horn at any highway-rail 
grade crossing equipped with an active warning system consisting of, at 
a minimum, flashing lights and gates; and
    (2) A wayside horn conforming to the requirements of Appendix E of 
this part may be installed within a quiet zone. For purposes of 
calculating the length of a quiet zone, the presence of a wayside horn 
at a highway-grade crossing within a quiet zone shall be considered in 
the same manner as a grade crossing treated with an SSM. A grade 
crossing equipped with a wayside horn shall not be considered in 
calculating the Quiet Zone Risk Index or Crossing Corridor Risk Index.
    (b) A public authority installing a wayside horn at a grade 
crossing within a quiet zone shall identify by both the U.S. DOT 
National Highway-Rail Grade Crossing Inventory Number and street or 
highway name the grade crossing equipped with such wayside horn in its 
notice to railroads and other parties required by Sec.  222.43.
    (c) A public authority installing a wayside horn at a grade 
crossing outside a quiet zone shall provide written notice to the 
Associate Administrator and to each railroad operating over the grade 
crossing that a wayside horn is being installed and the date on which 
the wayside horn will be operational. The grade crossing shall be 
identified by both the U.S. DOT National Highway-Rail Grade Crossing 
Inventory Number and street or highway name. The public authority shall 
provide notification of the operational date at least 21 days in 
advance.
    (d) A railroad operating over a grade crossing equipped with an 
operational wayside horn installed within a quiet zone pursuant to this 
section shall cease routine locomotive horn use at the grade crossing. 
A railroad operating over a grade crossing equipped with an operational 
wayside horn installed outside of a quiet zone may cease routine 
locomotive horn use by agreement with the public authority.

Appendix A to Part 222--Approved Supplementary Safety Measures

    1. Temporary Closure of a Public Highway-Rail Grade Crossing: 
Close the crossing to highway traffic during designated quiet 
periods.
    Effectiveness: 1.0.
    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 therefore equal 1. However, analysis should take 
into consideration that traffic would need to be redistributed among 
adjacent crossings or grade separations for the purpose of 
estimating risk following the silencing of train horns, unless the 
particular ``closure'' was accomplished by a grade separation.
    Required:
    a. The closure system must completely block highway 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. Barricades and signs used for closure of the roadway shall 
conform to the standards contained in the MUTCD.
    e. Daily activation and deactivation of the system is the 
responsibility of the public authority responsible for maintenance 
of the street or highway crossing the railroad. The entity may 
provide for third party activation and deactivation; however, the 
public authority shall remain fully responsible for compliance with 
the requirements of this part.
    f. The system must be tamper and vandal resistant to the same 
extent as other traffic control devices.
    Recommended:
    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.
    Effectiveness:
    Four-quadrant gates only, no presence detection: .82.
    Four-quadrant gates only, with presence detection: .77.
    Four-quadrant gates with traffic channelization of at least 60 
feet (with or without presence detection): .92.
    Required:
    Four-quadrant gate systems shall conform to the standards for 
four-quadrant gates contained in the MUTCD, and shall in addition 
comply with the following:
    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. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing 
would prevent the proper operation of the constant warning time 
devices.
    c. Crossing warning systems must be equipped with power-out 
indicators.

    Note: Requirements b and c apply only to New Quiet Zones. 
Constant warning time devices and power-out indicators are not 
required to be added to existing warning systems in Pre-Rule Quiet 
Zones. However, if warning systems in Pre-Rule Quiet Zones are 
upgraded, or new warning systems are installed, constant warning 
time devices, if reasonably practical, and power-out indicators are 
required.

    d. 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.
    e. ``Break-away'' channelization devices must be frequently 
monitored to replace broken elements.
    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. 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 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.
    h. 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 non-
traversable curb or traversable curb, or by reflectorized 
channelization devices, or by both.
    i. Remote monitoring (in addition to power-out indicators, which 
are required) 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

[[Page 70673]]

circumventing the approach lane gates by switching into the opposing 
(oncoming) traffic lane in order to drive around lowered gates to 
cross the tracks.
    Effectiveness:
    Channelization devices--.75
    Non-traversable curbs with or without channelization 
devices--.80.
    Required:
    a. Opposing traffic lanes on both highway approaches to the 
crossing must be separated by either: (1) Medians bounded by non-
traversable curbs or (2) channelization devices.
    b. Medians or channelization devices must extend at least 100 
feet from the gate arm, or if there is an intersection within 100 
feet of the gate, the median or channelization device must extend at 
least 60 feet from the gate arm.
    c. Intersections of two or more streets, or a street and an 
alley, that are within 60 feet of the gate arm must be closed or 
relocated. Driveways for private, residential properties (up to four 
units) within 60 feet of the gate arm are not considered to be 
intersections under this part and need not be closed. However, 
consideration should be given to taking steps to ensure that 
motorists exiting the driveways are not able to move against the 
flow of traffic to circumvent the purpose of the median and drive 
around lowered gates. This may be accomplished by the posting of 
``no left turn'' signs or other means of notification. For the 
purpose of this part, driveways accessing commercial properties are 
considered to be intersections and are not allowed. It should be 
noted that if a public authority can not comply with the 60 feet or 
100 feet requirement, it may apply to FRA for a quiet zone under 
Sec.  222.39(b), ``Public authority application to FRA.'' Such 
arrangement may qualify for a risk reduction credit in calculation 
of the Quiet Zone Risk Index. Similarly, if a public authority finds 
that it is feasible to only provide channelization on one approach 
to the crossing, it may also apply to FRA for approval under Sec.  
222.39(b). Such an arrangement may also qualify for a risk reduction 
credit in calculation of the Quiet Zone Risk Index.
    d. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing 
would prevent the proper operation of the constant warning time 
devices.
    e. Crossing warning systems must be equipped with power-out 
indicators. Note: Requirements b and c apply only to New Quiet 
Zones. Constant warning time devices and power-out indicators are 
not required to be added to existing warning systems in Pre-Rule 
Quiet Zones. However, if warning systems in Pre-Rule Quiet Zones are 
upgraded, or new warning systems are installed, constant warning 
time devices, if reasonably practical, and power-out indicators are 
required.
    f. The gap between the lowered gate and the curb or 
channelization device must be one foot or less, measured 
horizontally across the road from the end of the lowered gate to the 
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.
    g. ``Break-away'' channelization devices must be frequently 
monitored to replace broken elements
    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.
    Effectiveness: .82.
    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 must 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 non-traversable curb 
extending at least 100 feet.
    c. Crossing warning systems must be activated by use of constant 
warning time devices unless existing conditions at the crossing 
would prevent the proper operation of the constant warning time 
devices.
    d. Crossing warning systems must be equipped with power-out 
indicators. Note: Requirements c and d apply only to New Quiet 
Zones. Constant warning time devices and power-out indicators are 
not required to be added to existing warning systems in Pre-Rule 
Quiet Zones. However, if warning systems in Pre-Rule Quiet Zones are 
upgraded, or new warning systems are installed, constant warning 
time devices, if reasonably practical, and power-out indicators are 
required.

Appendix B to Part 222--Alternative Safety Measures

Introduction

    A public authority seeking approval of a quiet zone under public 
authority application to FRA (Sec.  222.39(b)) may include in its 
proposal ASMs listed in this appendix. Credit will be given for 
closing of public highway-rail grade crossings provided the baseline 
severity risk index at other crossings is appropriately adjusted by 
increasing traffic counts at neighboring crossings as input data to 
the severity risk formula (except to the extent that nearby grade 
separations are expected to carry that traffic). FRA Regional 
Managers for Grade Crossing Safety can assist in performing the 
required analysis.
    Appendix B addresses two types of ASMs: Modified SSMs and non-
engineering ASMs. Modified SSMs are SSMs that do not fully comply 
with the provisions listed in appendix A. Depending on the resulting 
configuration, non-compliant SSMs may still provide a substantial 
reduction in risk and can contribute to the creation of quiet zones. 
Non-engineering ASMs are programmed enforcement, public education 
and awareness, and photo enforcement that may be used to reduce risk 
in the creation of a quiet zone. The public authority must receive 
written FRA approval of the quiet zone application prior to the 
silencing of train horns. The public authority is strongly 
encouraged to submit the application to FRA for review and comment 
before the appendix B treatments are initiated to ensure that the 
proposed modified SSMs and/or non-engineering ASMs will meet with 
FRA's approval. If non-engineering ASMs are proposed, the public 
authority may wish to confirm with FRA that the sampling methods are 
appropriate.

I. Modified SSMs

    a. If there are unique circumstances pertaining to a specific 
crossing or number of crossings which prevent SSMs from being fully 
compliant with all of the SSM requirements listed in Appendix A, 
those SSM requirements may be adjusted or revised. In that case, the 
SSM, as modified by the pubic authority, will be treated as an ASM 
under this Appendix B, and not as an SSM under Appendix A. FRA will 
review the safety effects of the modified SSMs and the proposed 
quiet zone, and will approve the proposal if it finds that the Quiet 
Zone Risk Index is reduced to the level that would be expected with 
the sounding of the train horns or to a level at, or below the 
Nationwide Significant Risk Threshold, whichever is greater.
    b. A public authority may provide estimates of effectiveness 
based upon adjustments from the effectiveness levels provided in 
Appendix A or from actual field data derived from the crossing 
sites. The specific crossing and applied mitigation measure will be 
assessed to determine the effectiveness of the modified SSM. FRA 
will continue to develop and make available effectiveness estimates 
and data from experience under the final rule.
    c. If one or more of the requirements associated with an SSM as 
listed in Appendix A is revised or deleted, data or analysis 
supporting the revision or deletion must be provided to FRA for 
review. The following engineering types of ASMs may be included in a 
proposal for approval by FRA for creation of a quiet zone: (1) 
Temporary Closure of a Public Highway-Rail Grade Crossing, (2) Four-
Quadrant Gate System, (3) Gates With Medians or Channelization 
Devices, and (4) One-Way Street With Gate(s).

II. Non-Engineering ASMs

    A. The following non-engineering ASMs may be used in the 
creation of a Quiet Zone: (The method for determining the 
effectiveness of the non-engineering ASMs, the implementation of the 
quiet zone, subsequent monitoring requirements, and provision for 
dealing with an unacceptable effectiveness rate is provided in 
paragraph B.
    1. 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 ASM.
    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); and
    b. A law enforcement effort must be defined, established and 
continued along with continual or regular monitoring that

[[Page 70674]]

provides a statistically valid violation rate that indicates the 
effectiveness of the law enforcement effort.
    2. 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); and
    b. A sustainable public education and awareness program must be 
defined, established and continued along with continual or regular 
monitoring that provides a statistically valid violation rate that 
indicates the effectiveness of the law enforcement effort. This 
program shall be provided and supported primarily through local 
resources.
    3. Photo Enforcement: This ASM entails automated means of 
gathering valid photographic or video evidence of traffic law 
violations at a public highway-rail grade crossing 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, ``points'' toward license suspension or revocation) 
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: 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. Public awareness efforts designed to reinforce photo 
enforcement and alert motorists to the absence of train horns;
    g. 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); and
    h. A law enforcement effort must be defined, established and 
continued along with continual or regular monitoring.
    B. The effectiveness of an ASM will be determined as follows:
    1. Establish the quarterly (3 months) baseline violation rates 
for each crossing in the proposed quiet zone.
    a. A violation in this context refers to a motorist not 
complying with the automatic warning devices at the crossing (not 
stopping for the flashing lights and driving over the crossing after 
the gate arms have started to descend, or driving around the lowered 
gate arms). A violation does not have to result in a traffic 
citation for the violation to be considered.
    b. Violation data may be obtained by any method that can be 
shown to provide a statistically valid sample. This may include the 
use of video cameras, other technologies (e.g. inductive loops), or 
manual observations that capture driver behavior when the automatic 
warning devices are operating.
    c. If data is not collected continuously during the quarter, 
sufficient detail must be provided in the application in order to 
validate that the methodology used results in a statistically valid 
sample. FRA recommends that at least a minimum of 600 samples (one 
sample equals one gate activation) be collected during the baseline 
and subsequent quarterly sample periods.
    d. The sampling methodology must take measures to avoid biases 
in their sampling technique. Potential sampling biases could 
include: sampling on certain days of the week but not others; 
sampling during certain times of the day but not others; sampling 
immediately after implementation of an ASM while the public is still 
going through an adjustment period; or applying one sample method 
for the baseline rate and another for the new rate.
    e. The baseline violation rate should be expressed as the number 
of violations per gate activations in order to normalize for unequal 
gate activations during subsequent data collection periods.
    f. All subsequent quarterly violation rate calculations must use 
the same methodology as in this paragraph unless FRA authorizes 
another methodology.
    2. The ASM should then be initiated for each crossing. Train 
horns are still being sounded during this time period.
    3. In the calendar quarter following initiation of the ASM, 
determine a new quarterly violation rate using the same methodology 
as in paragraph (1) above.
    4. Determine the violation rate reduction for each crossing by 
the following formula:

Violation rate reduction = (new rate-baseline rate)/baseline rate

    5. Determined the effectiveness rate of the ASM for each 
crossing by multiplying the violation rate reduction by .78.
    6. Using the effectiveness rates for each crossing treated by an 
ASM, determine the Quiet Zone Risk Index. If and when the Quiet Zone 
Risk Index for the proposed quiet zone has been reduced to either 
the risk level which would exist if locomotive horns sounded at all 
crossings in quiet zone or to a risk level below the Nationwide 
Significant Risk Threshold, the public authority may apply to FRA 
for approval of the quiet zone. Upon receiving written approval of 
the quiet zone application from FRA, the public authority may then 
proceed with notifications and implementation of the quiet zone.
    7. Violation rates must be monitored for the next two calendar 
quarters and every second quarter thereafter. If after five years 
from the implementation of the quiet zone, the violation rate for 
any quarter has never exceeded the violation rate that was used to 
determine the effectiveness rate that was approved by FRA, violation 
rates may be monitored for one quarter per year.
    8. In the event that the violation rate is ever greater than the 
violation rate used to determine the effectiveness rate that was 
approved by FRA, the public authority may continue the quiet zone 
for another quarter. If, in the second quarter the violation rate is 
still greater than the rate used to determine the effectiveness rate 
that was approved by FRA, a new effectiveness rate must be 
calculated and the Quiet Zone Risk Index re-calculated using the new 
effectiveness rate. If the new Quiet Zone Risk Index indicates that 
the ASM no longer fully compensates for the lack of a train horn, or 
that the risk level is equal to, or exceeds the Nationwide 
Significant Risk Threshold, the procedures for dealing with 
unacceptable effectiveness after establishment of a quiet zone 
should be followed.

Appendix C to Part 222--Guide to Establishing Quiet Zones

Introduction

    This Guide to Establishing Quiet Zones (Guide) is divided into 
four sections in order to address the variety of methods and 
conditions that affect the establishment of quiet zones under this 
rule.
    Section I of the Guide provides an overview of the different 
ways in which a quiet zone may be established under this rule. This 
includes a brief discussion on the safety thresholds that must be 
attained in order for train horns to be silenced and the relative 
merits of each. It also includes the two general methods that may be 
used to reduce risk in the proposed quiet zone, and the different 
impacts that the methods have on the quiet zone implementation 
process.
    Section II of the Guide provides information on establishing New 
Quiet Zones. A New Quiet Zone is one at which train horns are 
currently being sounded at crossings. The Public Authority 
Designation and Public Authority Application to FRA methods will be 
discussed in depth.
    Section III of the Guide provides information on establishing 
Pre-Rule Quiet Zones. A Pre-Rule Quiet Zone is one where train horns 
were not routinely sounded as of October 9, 1996 and December 18, 
2003. The differences between New and Pre-Rule Quiet Zones will be 
explained. Public Authority Designation and Public Authority 
Application to FRA methods also apply to Pre-Rule Quiet Zones.
    Section IV of the Guide deals with the required notifications 
that must be provided

[[Page 70675]]

by public authorities when establishing both New and continuing Pre-
Rule Quiet Zones.
    Section V of the Guide provides examples of quiet zone 
implementation.

Section I--Overview

    In order for a quiet zone to be qualified under this rule, it 
must be shown that the lack of the train horn does not present a 
significant risk with respect to loss of life or serious personal 
injury, or that the significant risk has been compensated for by 
other means. The rule provides four basic ways in which a quiet zone 
may be established. Creation of both New Quiet Zones and Pre-Rule 
Quiet Zones are based on the same general guidelines; however, there 
are a number of differences that will be noted in the discussion on 
Pre-Rule Quiet Zones.

A. Qualifying Conditions

    One of the following four conditions or scenarios must be met in 
order to show that the lack of the train horn does not present a 
significant risk, or that the significant risk has been compensated 
for by other means:
    1. One or more SSMs as identified in Appendix A are installed at 
each public crossing in the quiet zone; or
    2. The Quiet Zone Risk Index is equal to, or less than, the 
Nationwide Significant Risk Threshold without implementation of 
additional safety measures at any crossings in the quiet zone; or
    3. Additional safety measures are implemented at selected 
crossings resulting in the Quiet Zone Risk Index being reduced to a 
level equal to, or less than, the Nationwide Significant Risk 
Threshold; or
    4. Additional safety measures are taken at selected crossings 
resulting in the Quiet Zone Risk Index being reduced to at least the 
level of risk that would exist if train horns were sounded at every 
public crossing in the quiet zone.
    It is important to consider the implications of each approach 
before deciding which one to use. If a quiet zone is qualified based 
on reference to the Nationwide Significant Risk Threshold (i.e. the 
Quiet Zone Risk Index is equal to, or less than, the Nationwide 
Significant Risk Threshold--see the second and third scenarios 
above), then an annual review will be done by FRA to determine if 
the Quiet Zone Risk Index remains equal to, or less than, the 
Nationwide Significant Risk Threshold. Since the Nationwide 
Significant Risk Threshold and the Quiet Zone Risk Index may change 
from year to year, there is no guarantee that the quiet zone will 
remain qualified. The circumstances that cause the disqualification 
may not be subject to the control of the public authority. For 
example, an overall national improvement in safety at gated 
crossings may cause the Nationwide Significant Risk Threshold to 
fall. This may cause the Quiet Zone Risk Index to become greater 
than the Nationwide Significant Risk Threshold. If the quiet zone is 
no longer qualified, then the public authority will have to take 
additional measures, and may incur additional costs that might not 
have been budgeted, to once again lower the Quiet Zone Risk Index to 
at least the Nationwide Significant Risk Threshold in order to 
retain the quiet zone. Therefore, while the initial cost to 
implement a quiet zone under the second or third scenario may be 
lower than the other options, these scenarios also carry a degree of 
uncertainty about the quiet zone's continued existence.
    The use of the first or fourth scenarios reduces the risk level 
to at least the level that would exist if train horns were sounding 
in the quiet zone. These methods may have higher initial costs 
because more safety measures may be necessary in order to achieve 
the needed risk reduction. Despite the possibility of greater 
initial costs, there are several benefits to these methods. The 
installation of SSMs at every crossing will provide the greatest 
safety benefit of any of the methods that may be used to initiate a 
quiet zone. With both of these methods (first and fourth scenarios), 
the public authority will never need to be concerned about the 
Nationwide Significant Risk Threshold, annual reviews of the Quiet 
Zone Risk Index, or failing to be qualified because the Quiet Zone 
Risk Index is higher than the Nationwide Significant Risk Threshold. 
Public authorities are strongly encouraged to carefully consider 
both the pros and cons of all of the methods and to choose the 
method that will best meet the needs of its citizens by providing a 
safer and quieter community.
    For the purposes of this Guide, the term ``Risk Index with 
Horns'' is used to represent the level of risk that would exist if 
train horns were sounded at every public crossing in the proposed 
quiet zone. If a public authority decides that it would like to 
fully compensate for the lack of a train horn and not install SSMs 
at each public crossing in the quiet zone, it must reduce the Quiet 
Zone Risk Index to a level that is equal to, or less than, the Risk 
Index with Horns. The Risk Index with Horns is similar to the 
Nationwide Significant Risk Threshold in that both are targets that 
must be reached in order to establish a quiet zone under the rule. 
Quiet zones that are established by reducing the Quiet Zone Risk 
Index to at least the level of the Nationwide Significant Risk 
Threshold will be reviewed annually by FRA to determine if it still 
qualifies under the rule to retain the quiet zone. Quiet zones that 
are established by reducing the Quiet Zone Risk Index to at least 
the level of the Risk Index with Horns will not be subject to annual 
reviews.
    The use of FRA's web-based Quiet Zone Calculator is recommended 
to aid in the decision making process (http://www.fra.dot.gov/Content3.asp?P=1337). The Quiet Zone Calculator will allow the 
public authority to consider a variety of options in determining 
which SSMs make the most sense. It will also perform the necessary 
calculations used to determine the existing risk level and whether 
enough risk has been mitigated in order to create a quiet zone under 
this rule.

B. Risk Reduction Methods

    FRA has established two general methods to reduce risk in order 
to have a quiet zone qualify under this rule. The method chosen 
impacts the manner in which the quiet zone is implemented.
    1. Public Authority Designation (SSMs)--The Public Authority 
Designation method (Sec.  222.39(a)) involves the use of SSMs (see 
appendix A) at some or all crossings within the quiet zone. The use 
of only SSMs to reduce risk will allow a public authority to 
designate a quiet zone without approval from FRA. If the public 
authority installs SSM's at every crossing within the quiet zone, it 
need not demonstrate that they will reduce the risk sufficiently in 
order to qualify under the rule since FRA has already assessed the 
ability of the SSMs to reduce risk. However, if only SSMs are 
installed within the quiet zone, but not at every crossing, the 
public authority must calculate that sufficient risk reduction will 
be accomplished by the SSMs. Once the improvements are made, the 
public authority must make the required notifications, and the quiet 
zone may be implemented. FRA does not need to approve the plan as it 
has already assessed the ability of the SSMs to reduce risk.
    2. Public Authority Application to FRA (ASMs)--The Public 
Authority Application to FRA method (Sec.  222.39(b)) involves the 
use of ASMs (see appendix B). ASMs include both modified SSMs that 
do not fully comply with the provisions found in Appendix A (e.g. 
shorter than required traffic channelization devices), and non-
engineering ASMs such as programmed law enforcement. If the use of 
ASMs (or a combination of ASMs, SSMs, and modified SSMs) is elected 
to reduce risk, then the public authority must apply to FRA for 
approval of the quiet zone. The application must contain sufficient 
data and analysis to confirm that the proposed ASMs do indeed 
provide the necessary risk reduction. FRA will review the 
application and will issue a formal approval if it determines that 
risk is reduced to a level that is necessary in order to comply with 
the rule. Once FRA approval has been received and the safety 
measures fully implemented, the public authority would then proceed 
to make the necessary notifications, and the quiet zone may be 
implemented. The use of non-engineering ASMs will require continued 
monitoring and analysis throughout the existence of the quiet zone 
to ensure that risk continues to be reduced.
    3. Calculating Risk Reduction--The following should be noted 
when calculating risk reductions in association with the 
establishment of a quiet zone. This information pertains to both New 
Quiet Zones and Pre-Rule Quiet Zones and to the Public Authority 
Designation and Public Authority Application to FRA methods.
    Crossing closures: If any public crossing within the quiet zone 
is proposed to be closed, include that crossing when calculating the 
Risk Index with Horns. Do not include the crossing to be closed when 
calculating the Quiet Zone Risk Index since the crossing will no 
longer exist. This will reflect the fact that the risk associated 
with the crossing has been eliminated entirely. However, be sure to 
increase the traffic counts at other crossings within the quiet zone 
and recalculate the risk indices for those crossings that will 
handle the traffic diverted from the closed crossing.

    Example: A proposed New Quiet Zone contains four crossings: A, 
B, C and D streets. A, B and D streets are equipped with flashing 
lights and gates. C Street is a passive

[[Page 70676]]

crossbuck crossing with a traffic count of 400 vehicles per day. It 
is decided that C Street will be closed as part of the project. 
Compute the risk indices for all four streets. The calculation for C 
Street will utilize flashing lights and gates as the warning device. 
Calculate the Crossing Corridor Risk Index by averaging the risk 
indices for all four of the crossings. This value will also be the 
Risk Index with Horns since train horns are currently being sounded. 
To calculate the Quiet Zone Risk Index, first re-calculate the risk 
indices for B and D streets by increasing the traffic count for each 
crossing by 200. (Assume for this example that the public authority 
decided that the traffic from C Street would be equally divided 
between B and D streets.) Increase the risk indices for A, B and D 
streets by 66.8 percent and average the results. This is the initial 
Quiet Zone Risk Index and accounts for the risk reduction caused by 
closing C Street.

    Grade Separation: Grade separated crossings that were in 
existence before the creation of a quiet zone are not included in 
any of the calculations. However, any public crossings within the 
quiet zone that are proposed to be treated by grade separation 
should be treated in the same manner as crossing closures as 
explained above. Highway traffic that may be diverted from other 
crossings within the quiet zone to the new grade separated crossing 
should be considered when computing the Quiet Zone Risk Index.

    Example: A proposed New Quiet Zone contains four crossings: A, 
B, C and D streets. All streets are equipped with flashing lights 
and gates. C Street is a busy crossing with a traffic count of 
25,000 vehicles per day. It is decided that C Street will be grade 
separated as part of the project. Compute the risk indices for all 
four streets. Calculate the Crossing Corridor Risk Index, which will 
also be the Risk Index with Horns, by averaging the risk indices for 
all four of the crossings. To calculate the Quiet Zone Risk Index, 
first re-calculate the risk indices for B and D streets by 
decreasing the traffic count for each crossing by 1,200. (The public 
authority decided that 2,400 motorists will decide to use the grade 
separation at C Street in order to avoid possible delays caused by 
passing trains.) Increase the risk indices for A, B and D streets by 
66.8 percent and average the results. This is the initial Quiet Zone 
Risk Index and accounts for the risk reduction caused by the grade 
separation at C Street.

    Wayside Horns: Crossings with wayside horn installations will be 
treated as a one for one substitute for the train horn and are not 
to be included when calculating the Crossing Corridor Risk Index, 
the Risk Index with Horns or the Quiet Zone Risk Index.

    Example: A proposed New Quiet Zone contains four crossings: A, 
B, C and D streets. All streets are equipped with flashing lights 
and gates. It is decided that C Street will have a wayside horn 
installed. Compute the risk indices for A, B and D streets. Since C 
Street is being treated with a wayside horn, it is not included in 
the calculation of risk. Calculate the Crossing Corridor Risk Index 
by averaging the risk indices for A, B and D streets. This value is 
also the Risk Index with Horns. Increase the risk indices for A, B 
and D streets by 66.8 percent and average the results. This is the 
initial Quiet Zone Risk Index for the proposed quiet zone.

Section II--New Quiet Zones

    FRA has established several approaches that may be taken in 
order to establish a New Quiet Zone under this rule. Please see the 
preceding discussions on ``Qualifying Conditions'' and ``Risk 
Reduction Methods'' to assist in the decision-making process on 
which approach to take. This following discussion provides the steps 
necessary to establish New Quiet Zones and includes both the Public 
Authority Designation and Public Authority Application to FRA 
methods. It must be remembered that in a New Quiet Zone all public 
crossings must be equipped with flashing lights and gates.

A. Requirements for Both Public Authority Designation and Public 
Authority Application

    The following steps are necessary when establishing a New Quiet 
Zone. This information pertains to both the Public Authority 
Designation and Public Authority Application to FRA methods.
    1. Determine all public and private at-grade crossings that will 
be included within the quiet zone. Also determine any existing 
grade-separated crossings that fall within the quiet zone. Each 
crossing must be identified by the US DOT Crossing Inventory number 
and street or highway name. If a crossing does not have a US DOT 
crossing number, then contact FRA's Office of Safety (202-493-6299) 
for assistance.
    2. Ensure that the quiet zone will be at least one-half mile in 
length. (Sec.  222.35(a)(1))
    3. A complete and accurate Grade Crossing Inventory Form must be 
on file with FRA for all crossings (public and private) within the 
quiet zone. These must be dated within six months prior to the 
designation of the quiet zone. An inspection of each crossing in the 
proposed quiet should be performed and the Grade Crossing Inventory 
Forms updated to reflect the current conditions at each crossing.
    4. Every public crossing within the quiet zone must be equipped 
with active warning devices comprising both flashing lights and 
gates. The warning devices must be equipped with power out 
indicators. Constant warning time circuitry is also required unless 
existing conditions would prevent the proper operation of the 
constant warning time circuitry. The plans for the quiet zone may be 
made assuming that flashing lights and gates are at all public 
crossings; however the quiet zone may not be implemented until all 
public crossings are actually equipped with the flashing lights and 
gates. (Sec.  222.35(b)(1))
    5. Private crossings must have cross-bucks and ``STOP'' signs on 
both approaches to the crossing. Private crossings with public 
access, industrial or commercial use must have a diagnostic team 
review and be treated according to the team's recommendations. 
(Sec. Sec.  222.25(b) and (c))
    6. Each highway approach to every public and private crossing 
must have an advanced warning sign (in accordance with the MUTCD) 
that advises motorists that train horns are not sounded at the 
crossing. (Sec.  222.35(c)(1) and 222.25(c)(2))

B. New Quiet Zones--Public Authority Designation

    Once again it should be remembered that all public crossings 
must be equipped with automatic warning devices consisting of 
flashing lights and gates in accordance with Sec.  222.35(b). In 
addition, one of the following conditions must be met in order for a 
public authority to designate a new quiet zone without FRA approval:
    [sbull] One or more SSMs as identified in Appendix A are 
installed at each public crossing in the quiet zone (Sec.  
222.39(a)(1)); or
    [sbull] The Quiet Zone Risk Index is equal to, or less than, the 
Nationwide Significant Risk Threshold without SSMs installed at any 
crossings in the quiet zone (Sec.  222.39(a)(2)(i)); or
    [sbull] SSMS's are installed at selected crossings resulting in 
the Quiet Zone Risk Index being reduced to a level equal to, or less 
than, the Nationwide Significant Risk Threshold (Sec.  
222.39(a)(2)(ii)); or
    [sbull] SSMS's are installed at selected crossings resulting in 
the Quiet Zone Risk Index being reduced to a level of risk that 
would exist if the horn were sounded at every crossing in the quiet 
zone (i.e. the Risk Index with Horns) (Sec.  222.39(a)(3)).
    Steps necessary to establish a New Quiet Zone using the Public 
Authority Application to FRA method:
    1. If one or more SSMs as identified in appendix A are installed 
at each public crossing in the quiet zone, the requirements for a 
public authority designation quiet zone have been met. It is not 
necessary for the same SSM to be used at each crossing. Once the 
necessary improvements have been installed, notifications may take 
place and the quiet zone implemented in accordance with the rule. If 
SSMs are not installed at each crossing, proceed on to Step 2 and 
use the risk reduction method.
    2. To begin, calculate the risk index for each public crossing 
within the quiet zone (See appendix D. FRA's web-based Quiet Zone 
Calculator may be used to do this calculation). If flashing lights 
and gates have to be installed at any public crossings, calculate 
the risk indices for such crossings as if lights and gates were 
installed. (Note: Flashing lights and gates must be installed prior 
to initiation of the quiet zone.) If the Inventory record does not 
reflect the actual conditions at the crossing, be sure to use the 
conditions that currently exist when calculating the risk index. 
Note: Private crossings are not included when computing the risk for 
the proposed quiet zone.
    3. The Crossing Corridor Risk Index is then calculated by 
averaging the risk index for each public crossing within the 
proposed quiet zone. Since train horns are routinely being sounded 
for crossings in the proposed quiet zone, this value is also the 
Risk Index with Horns.
    4. In order to calculate the initial Quiet Zone Risk Index, 
first adjust the risk index at each public crossing to account for 
the increased risk due to the absence of the train horn. The absence 
of the horn is reflected by an increased risk index of 66.8 percent 
at

[[Page 70677]]

gated crossings. (New Quiet Zones within the Chicago Region will 
reflect an increased risk index of 17.3 percent.) The initial Quiet 
Zone Risk Index is then calculated by averaging the increased risk 
index for each public crossing within the proposed quiet zone. At 
this point the Quiet Zone Risk Index will equal the Risk Index with 
Horns multiplied by 1.668.
    5. Compare the Quiet Zone Risk Index to the Nationwide 
Significant Risk Threshold. If the Quiet Zone Risk Index is equal 
to, or less than, the Nationwide Significant Risk Threshold, then 
the public authority may decide to designate a quiet zone and 
proceed with the notification process. With this approach, FRA will 
annually recalculate the Nationwide Significant Risk Threshold and 
the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the 
quiet zone is above the Nationwide Significant Risk Threshold, FRA 
will notify the Public Authority so that appropriate measures can be 
taken. (See Sec.  222.51(a).)
    6. If the Quiet Zone Risk Index is greater than the Nationwide 
Significant Risk Threshold, then select an appropriate SSM for a 
crossing. Reduce the inflated risk index calculated in Step 4 for 
that crossing by the effectiveness rate of the chosen SSM. (See 
appendix A for the effectiveness rates for the various SSMs.) 
Recalculate the Quiet Zone Risk Index by averaging the revised 
inflated risk index with the inflated risk indices for the other 
public crossings. If this new Quiet Zone Risk Index is equal to, or 
less than, the Nationwide Significant Risk Threshold, the quiet zone 
would qualify for public authority designation. If the Quiet Zone 
Risk Index is still higher than the Nationwide Significant Risk 
Threshold, treat another public crossing with an appropriate SSM and 
repeat the process until the Quiet Zone Risk Index is equal to, or 
less than, the Nationwide Significant Risk Threshold. Once this is 
obtained the quiet zone has qualified for the public authority 
designation method, and notification may take place once all the 
necessary improvements have been installed. With this approach, FRA 
will annually recalculate the Nationwide Significant Risk Threshold 
and the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the 
quiet zone is above the Nationwide Significant Risk Threshold, FRA 
will notify the public authority so that appropriate measures can be 
taken. (See Sec.  222.51(a).)
    7. If the public authority wishes to reduce the risk of the 
quiet zone to the level of risk that would exist if the horn were 
sounded at every crossing within the quiet zone, the public 
authority should calculate the initial Quiet Zone Risk Index as in 
Step 4. The objective is to now reduce the Quiet Zone Risk Index to 
the level of the Risk Index with Horns by adding SSMs at the 
crossings. The difference between the Quiet Zone Risk Index and the 
Risk Index with Horns is the amount of risk that will have to be 
reduced in order to fully compensate for lack of the train horn. The 
use of the Quiet Zone Calculator will aid in determining which SSMs 
may be used to reduce the risk sufficiently. Follow the procedure 
stated in Step 6, except that the Quiet Zone Risk Index must be 
equal to, or less than, the Risk Index with Horns instead of the 
Nationwide Significant Risk Threshold. Once this risk level is 
attained, the quiet zone has qualified for the public authority 
designation method, and notification may take place once all the 
necessary improvements have been installed. One important 
distinction with this option is that the public authority will never 
need to be concerned with the Nationwide Significant Risk Threshold 
or the Quiet Zone Risk Index. The rule's intent is to make the quiet 
zone as safe as if the train horns were sounding. If this is 
accomplished, the public authority may designate the crossings as a 
quiet zone and need not be concerned with possible fluctuations in 
the Nationwide Significant Risk Threshold or annual risk reviews.

C. New Quiet Zones--Public Authority Application to FRA

    A public authority must apply to FRA for approval of a quiet 
zone under two conditions. First, if any of the SSMs selected for 
the quiet zone do not fully conform to the design standards set 
forth in appendix A. These are referred to as modified SSMs in 
appendix B. Second, when programmed law enforcement, public 
education and awareness programs, or photo enforcement is used to 
reduce risk in the quiet zone, these are referred to as non-
engineering ASMs in appendix B. It should be remembered that non-
engineering ASMs will require periodic monitoring as long as the 
quiet zone is in existence. Please see appendix B for detailed 
explanations of ASMs and the periodic monitoring of non-engineering 
ASMs.
    The public authority is strongly encouraged to submit the 
application to FRA for review and comment before the appendix B 
treatments are initiated. This will enable FRA to provide comments 
on the proposed modified SSMs or non-engineering ASMs to help guide 
the application process. If non-engineering ASMs are proposed, the 
public authority also may wish to confirm with FRA that the 
methodology it plans to use to determine the effectiveness rates of 
the proposed ASMs is appropriate. A quiet zone that utilizes a 
combination of SSMs from appendix A and ASMs from appendix B must 
make a Public Authority Application to FRA. A complete and 
thoroughly documented application will help to expedite the approval 
process.
    The following discussion is meant to provide guidance on the 
steps necessary to establish a new quiet zone using the Public 
Authority Application to FRA method. Once again it should be 
remembered that all public crossings must be equipped with automatic 
warning devices consisting of flashing lights and gates in 
accordance with Sec.  222.35(b).
    1. Gather the information previously mentioned in the section on 
``Requirements for both Public Authority Designation and Public 
Authority Application.''
    2. Calculate the risk index for each public crossing as directed 
in Step 2--Public Authority Designation.
    3. Calculate the Crossing Corridor Risk Index, which is also the 
Risk Index with Horns, as directed in Step 3--Public Authority 
Designation.
    4. Calculate the initial Quiet Zone Risk Index as directed in 
Step 4--Public Authority Designation.
    5. Begin to reduce the Quiet Zone Risk Index through the use of 
ASMs and SSMs. Follow the procedure provided in Step 6--Public 
Authority Designation until the Quiet Zone Risk Index has been 
reduced to equal to, or less than, either the Nationwide Significant 
Risk Threshold or the Risk Index with Horns. (Remember that the 
public authority may choose which level of risk reduction is the 
most appropriate for its community.) Effectiveness rates for ASMs 
should be provided as follows:
    a. Modified SSMs--Estimates of effectiveness for modified SSMs 
may be proposed based upon adjustments from the effectiveness rates 
provided in appendix A or from actual field data derived from the 
crossing sites. The application should provide an estimated 
effectiveness rate and the rationale for the estimate.
    b. Non-engineering ASMs--Effectiveness rates are to be 
calculated in accordance with the provisions of appendix B, 
paragraph 2(b).
    6. Once it has been determined through analysis that the Quiet 
Zone Risk Index has been reduced to equal to, or less than, either 
the Nationwide Significant Risk Threshold or the Risk Index with 
Horns, the public authority may make application to FRA for a quiet 
zone under Sec.  222.39(b). FRA will review the application to 
determine the appropriateness of the proposed effectiveness rates, 
and whether or not the proposed application demonstrates that the 
quiet zone meets the requirements of the rule. When submitting the 
application to FRA for approval, the application must contain the 
following (Sec.  222.39(b)(1)):
    [sbull] Sufficient detail concerning the present safety measures 
at the public crossings within the proposed quiet zone. This 
includes current and accurate crossing inventory forms.
    [sbull] Detailed information on the SSMS's or ASM's that are 
proposed to be implemented and at which public crossings within the 
proposed quiet zone.
    [sbull] Membership and recommendations of the diagnostic team 
(if any) that reviewed the proposed quiet zone.
    [sbull] A commitment to implement the proposed safety measures.
    [sbull] Demonstrate through data and analysis that the proposed 
measures will reduce the Quiet Zone Risk Index to equal, to or less 
than, either the Nationwide Significant Risk Threshold or the Risk 
Index with Horns.
    [sbull] A copy of the application must be provided to the 
parties listed under Required Notifications.
    7. Upon receiving written approval from FRA of the quiet zone 
application, the public authority may then proceed with 
notifications and implementation of the quiet zone. If the quiet 
zone is qualified by reducing the Quiet Zone Risk Index to at the 
least the level of the Nationwide Significant Risk Threshold, FRA 
will annually recalculate the Nationwide Significant Risk Threshold 
and the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the 
quiet zone is above the Nationwide Significant Risk Threshold, FRA 
will notify the public

[[Page 70678]]

authority so that appropriate measures can be taken. (See Sec.  
222.51(a)).

    Note: The provisions stated above for crossing closures, grade 
separations and wayside horns apply for Public Authority Application 
to FRA as well.

Section III--Pre-Rule Quiet Zones

    Pre-Rule Quiet Zones are treated slightly differently from New 
Quiet Zones in the rule. This is a reflection of the statutory 
requirement to ``take into account the interest of communities that 
have in effect restrictions on the sounding of a locomotive horn at 
highway-rail grade crossings * * *'' It also recognizes the 
historical experience of train horns not being sounded at Pre-Rule 
Quiet Zones.

Overview

    Pre-Rule Quiet Zones that do not meet the requirements for 
automatic approval (see discussion that follows) must meet the same 
requirements as New Quiet Zones as provided in Sec.  222.39. In 
other words, risk must be reduced through the use of SSMs or ASMs so 
that the Quiet Zone Risk Index for the quiet zone has been reduced 
to either the risk level which would exist if locomotive horns 
sounded at all crossings in the quiet zone (i.e. the Risk Index with 
Horns) or to a risk level equal to, or less than, the Nationwide 
Significant Risk Threshold. Pre-Rule Quiet Zones must meet these 
requirements by December 18, 2008 (Sec.  222.41(b)(2)). There are 
four differences in the requirements between Pre-Rule Quiet Zones 
and New Quiet Zones that must be noted.
    First, since train horns have not been routinely sounded in the 
Pre-Rule Quiet Zone, it is not necessary to increase the risk 
indices of the public crossings to reflect the additional risk 
caused by the lack of a train horn. Since the train horn has already 
been silenced, the added risk caused by the lack of a horn is 
reflected in the actual collision history at the crossings. 
Collision history is an important part in the calculation of the 
severity risk indices. In other words, the Quiet Zone Risk Index is 
calculated by averaging the existing risk index for each public 
crossing without the need to increase the risk index by 66.8 
percent. For Pre-Rule Quiet Zones, the Crossing Corridor Risk Index 
and the initial Quiet Zone Risk Index have the same value.
    Second, since train horns have been silenced at the crossings, 
it will be necessary to mathematically determine what the risk level 
would have been at the crossings if train horns had been routinely 
sounded. These revised risk levels then will be used to calculate 
the Risk Index with Horns. This calculation is necessary to 
determine how much risk must be eliminated in order to compensate 
for the lack of the train horn. This will allow the public authority 
to have the choice to reduce the risk to at least the level of the 
Nationwide Significant Risk Threshold or to fully compensate for the 
lack of the train horn.
    To calculate the Risk Index with Horns, the first step is to 
divide the existing severity risk index for each crossing by the 
appropriate value as shown in Table 1. This process eliminates the 
risk that was caused by the absence of train horns. The table takes 
into account that the train horn has been found to produce different 
levels of effectiveness in preventing collisions depending on the 
type of warning device at the crossing. (Note: FRA's web based Quiet 
Zone Calculator will perform this computation automatically for pre-
rule quiet zones.) The Risk Index with Horns is the average of the 
revised risk indices. The difference between the calculated Risk 
Index with Horns and the Quiet Zone Risk Index is the amount of risk 
that would have to be reduced in order to fully compensate for the 
lack of train horns.

                                       Table 1.--Risk Index Divisor Values
----------------------------------------------------------------------------------------------------------------
                                                                                     Flashing       Lights and
                                                                      Passive         lights           gates
----------------------------------------------------------------------------------------------------------------
U.S. except Chicago.............................................           1.749           1.309           1.668
Chicago Region..................................................             N/A             N/A           1.173
----------------------------------------------------------------------------------------------------------------


    Note: The Chicago Region includes the Illinois counties of: 
Cook, DuPage, Lake, Kane, McHenry and Will. Pre-Rule Quiet Zones in 
the Chicago Region are able to use a lower adjustment factor at 
crossings equipped with gates due to data that indicate that the 
collision rate for Pre-Rule Quiet Zone crossings that were equipped 
with flashing lights and gates in the Chicago Region had an 
increased collision rate of 17.3 percent when compared to similar 
gated crossings in the Nation where horns were sounded. Gated 
crossings in Pre-Rule Quiet Zones outside of the Chicago Region had 
an increased collision rate of 66.8 percent when compared to similar 
crossings in the Nation where horns were sounded. Passive and 
flashing lights crossings in the Chicago Region use the ``U.S. 
except Chicago'' values in Table 1.

    The third difference is that credit is given for the risk 
reduction that is brought about through the upgrading of the warning 
devices at public crossings (Sec.  222.35(b)(2)). For New Quiet 
Zones, all crossings must be equipped with automatic warning devices 
consisting of flashing lights and gates. Crossings without gates 
must have gates installed. The severity risk index for that crossing 
is then calculated to establish the risk index that is used in the 
Risk Index with Horns. The Risk Index with Horns is then increased 
by 66.8 percent to adjust for the lack of the train horn. The 
adjusted figure is the initial Quiet Zone Risk Index. There is no 
credit received for the risk reduction that is attributable to 
warning device upgrades.
    For Pre-Rule Quiet Zones, the Risk Index with Horns is 
calculated from the initial risk indices which use the warning 
devices that are currently installed. If a public authority elects 
to upgrade an existing warning device as part of its quiet zone 
plan, the accident prediction value for that crossing will be re-
calculated based on the upgraded warning device. (Once again, FRA's 
web-based Quiet Zone Calculator can do the actual computation.) The 
new accident prediction value is then used in the severity risk 
index formula to determine the risk index for the crossing. This 
adjusted risk index is then used to compute the new Quiet Zone Risk 
Index. This computation allows the risk reduction attributed to the 
warning device upgrades to be used in establishing a quiet zone.
    The fourth difference is that pre-rule quiet zones have 
different minimum requirements under Sec.  222.35. A pre-rule quiet 
zone may be less than one-half mile in length if that was its length 
as of October 9, 1996. A pre-rule quiet zone does not have to have 
automatic warning devices consisting of flashing lights and gates at 
every public crossing (Sec.  222.32(b)(2)). The existing crossing 
safety warning systems in place as of December 18, 2003, may be 
retained but cannot be downgraded. It also is not necessary for the 
automatic warning devices to be equipped with constant warning time 
devices or power out indicators; however, when the warning devices 
are upgraded, constant warning time and power out indicators will be 
required if reasonably practical (Sec.  222.35(b)(2)). Advance 
warning signs that notify the motorist that train horns are not 
sounded and STOP signs and crossbucks at private crossings do not 
have to be installed until December 18, 2006, which allows three 
years to install the required signage.

A. Requirements for Both Public Authority Designation and Public 
Authority Application--Pre-Rule Quiet Zones

    These following is necessary when establishing a Pre-Rule Quiet 
Zone. This information pertains to Automatic Approval, the Public 
Authority Designation and Public Authority Application to FRA 
methods.
    1. Determine all public and private at-grade crossings that will 
be included within the quiet zone. Also determine any existing grade 
separated crossings that fall within the quiet zone. Each crossing 
must be identified by the U.S. DOT Crossing Inventory number and 
street name. If a crossing does not have a U.S. DOT crossing number 
then contact FRA for assistance.
    2. Document the length of the quiet zone. It is not necessary 
that the quiet zone be at least one-half mile in length. Pre-Rule 
Quiet Zones may be shorter than one-half mile. However, the addition 
of a new crossing to a quiet zone nullifies its pre-rule status, and 
the resulting New Quiet Zone must be at least

[[Page 70679]]

one-half mile. The deletion of a crossing from a Pre-Rule Quiet Zone 
(except through closure or grade separation) must result in a quiet 
zone that is a least one half mile in length.
    3. A complete and accurate Grade Crossing Inventory Form must be 
on file with FRA for all crossings (public and private) within the 
quiet zone. These must be dated within six months prior to the 
designation of the quiet zone. An inspection of each crossing in the 
proposed quiet should be performed and the Grade Crossing Inventory 
Forms updated to reflect the current conditions at each crossing.
    4. Pre-Rule Quiet Zones must retain, and may upgrade, the 
existing grade crossing safety warning systems. Unlike New Quiet 
Zones, it is not necessary that every public crossing within a Pre-
Rule Quiet Zone be equipped with active warning devices comprising 
both flashing lights and gates. Existing warning devices need not be 
equipped with power out indicators and constant warning time 
circuitry. If warning devices are upgraded to flashing lights, or 
flashing lights and gates, the upgraded equipment must include, as 
is required for New Quiet Zones, power out indicators and constant 
warning time devices (if reasonably practical).
    5. By December 18, 2006, private crossings must have cross-bucks 
and ``STOP'' signs on both approaches to the crossing. Private 
crossings with public access, industrial or commercial use must have 
a diagnostic team review and be treated according to the team's 
recommendations unless the quiet zone qualifies for automatic 
approval. A diagnostic team review of private crossings is not 
necessary for Pre-Rule Quiet Zones that qualify for Automatic 
Approval.
    6. By December 18, 2006, each highway approach to every public 
and private crossing must have an advanced warning sign (in 
accordance with the MUTCD) that advises motorists that train horns 
are not sounded at the crossing.

B. Pre-Rule Quiet Zones--Automatic Approval

    In order for a Pre-Rule Quiet Zone to be automatically approved 
as a quiet zone under this rule (Sec.  222.41(a)), one of the 
following conditions must be met:
    [sbull] One or more SSMs as identified in appendix A are 
installed at each public crossing in the quiet zone; or
    [sbull] The Quiet Zone Risk Index is equal, to or less, than the 
Nationwide Significant Risk Threshold; or
    [sbull] The Quiet Zone Risk Index is above the Nationwide 
Significant Risk Threshold but less than twice the Nationwide 
Significant Risk Threshold and there have been no relevant 
collisions at any public grade crossing within the quiet zone for 
the preceding five years.
    Additionally, it must be in compliance with the minimum 
requirements for quiet zones (Sec.  222.35) and the notification 
requirements in Sec.  222.43.
    The following discussion is meant to provide guidance on the 
steps necessary to determine if a Pre-Rule Quiet Zone qualifies for 
automatic approval.
    1. All of the items listed in Requirements for both Public 
Authority Designation and Public Authority Application--Pre-Rule 
Quiet Zones previously mentioned are to be accomplished. Remember 
that a Pre-Rule Quiet Zone may be less than one-half mile in length 
if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet 
Zone does not have to have automatic warning devices consisting of 
flashing lights and gates at every public crossing.
    2. If one or more SSMs as identified in Appendix A are installed 
at each public crossing in the quiet zone, the quiet zone qualifies 
and notification should take place. If the Pre-Rule Quiet Zone does 
not qualify by this step, proceed on to the next step.
    3. Calculate the risk index for each public crossing within the 
quiet zone (See appendix D). Be sure that the risk index is 
calculated using the formula appropriate for the type of warning 
device that is actually installed at the crossing. Unlike New Quiet 
Zones, it is not necessary to calculate the risk index using 
flashing lights and gates as the warning device. (FRA's web-based 
Quiet Zone Calculator may be used to simplify the calculation 
process). If the Inventory record does not reflect the actual 
conditions at the crossing, be sure to use the conditions that 
currently exist when calculating the risk index.
    4. The Quiet Zone Risk Index is then calculated by averaging the 
risk index for each public crossing within the proposed quiet zone. 
(Note: The initial Quiet Zone Risk Index and the Crossing Corridor 
Risk Index are the same for Pre-Rule Quiet Zones.)
    5. Compare the Quiet Zone Risk Index to the Nationwide 
Significant Risk Threshold. If the Quiet Zone Risk Index is equal 
to, or less than, the Nationwide Significant Risk Threshold, then 
the quiet zone qualifies for automatic approval, and the public 
authority may proceed with the notification process. With this 
approach, FRA will annually recalculate the Nationwide Significant 
Risk Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index 
for the quiet zone is above the Nationwide Significant Risk 
Threshold, FRA will notify the public authority so that appropriate 
measures can be taken (See Sec.  222.51(b)(2)). If the pre-rule 
quiet zone does not qualify by this step, proceed on to the next 
step.
    6. If the Quiet Zone Risk Index is above the Nationwide 
Significant Risk Threshold but less than twice the Nationwide 
Significant Risk Threshold and there have been no relevant 
collisions at any public grade crossing within the quiet zone for 
the preceding five years, then the quiet zone qualifies for 
automatic approval, and the public authority may proceed with the 
notification process. Note: A relevant collision means a collision 
at a highway-rail grade crossing between a train and a motor 
vehicle, excluding the following: a collision resulting from an 
activation failure of an active grade crossing warning system; a 
collision in which there is no driver in the motor vehicle; or a 
collision where the highway vehicle struck the side of the train 
beyond the fourth locomotive unit or rail car. With this approach, 
FRA will annually recalculate the Nationwide Significant Risk 
Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index for 
the quiet zone is above two times the Nationwide Significant Risk 
Threshold, or a relevant collision has occurred during the preceding 
year, FRA will notify the public authority so that appropriate 
measures can be taken (See Sec.  222.51(b)(3)).
    If the Pre-Rule Quiet Zone does not qualify for automatic 
approval, continuation of the quiet zone beyond the interim three 
year period will require implementation of SSMs or ASMs so that the 
Quiet Zone Risk Index for the quiet zone has been reduced to a risk 
level equal to, or below, either the risk level which would exist if 
locomotive horns sounded at all crossings in the quiet zone (i.e. 
the Risk Index with Horns) or the Nationwide Significant Risk 
Threshold. This is the same methodology used to create New Quiet 
Zones with the exception of the four differences previously noted. A 
review of the previous discussion on the two methods used to 
establish quiet zones may prove helpful in determining which would 
be the most beneficial to use for a particular Pre-Rule Quiet Zone.

C. Pre-Rule Quiet Zones--Public Authority Designation

    The following discussion is meant to provide guidance on the 
steps necessary to establish a Pre-Rule Quiet Zone using the Public 
Authority Designation method.
    1. All of the items listed in ``Requirements for both Public 
Authority Designation and Public Authority Application--Pre-Rule 
Quiet Zones'' previously mentioned are to be accomplished. Remember 
that a Pre-Rule Quiet Zone may be less than one-half mile in length 
if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet 
Zone does not have to have automatic warning devices consisting of 
flashing lights and gates at every public crossing.
    2. Calculate the risk index for each public crossing within the 
quiet zone as in Step 3--Pre-Rule Quiet Zones--Automatic Approval.
    3. The Crossing Corridor Risk Index is then calculated by 
averaging the risk index for each public crossing within the 
proposed quiet zone. Since train horns are not being sounded for 
crossings, this value is actually the initial Quiet Zone Risk Index.
    4. Calculate Risk Index with Horns by the following:
    a. For each public crossing, divide the risk index that was 
calculated in Step 2 by the appropriate value in Table 1. This 
produces the risk index that would have existed had the train horn 
been sounded.
    b. Average these reduced risk indices together. The resulting 
average is the Risk Index with Horns.
    5. Begin to reduce the Quiet Zone Risk Index through the use of 
SSMs or by upgrading existing warning devices. Follow the procedure 
provided in Step 6--Public Authority Designation until the Quiet 
Zone Risk Index has been reduced to a level equal to, or less than, 
either the Nationwide Significant Risk Threshold or the Risk Index 
with Horns. A public authority may elect to upgrade an existing 
warning device as part of its Pre-Rule Quiet Zone plan. When 
upgrading a warning device, the accident

[[Page 70680]]

prediction value for that crossing must be re-calculated for the new 
warning device. Determine the new risk index for the upgraded 
crossing by using the new accident prediction value in the severity 
risk index formula. This new risk index is then used to compute the 
new Quiet Zone Risk Index. (Remember that FRA's web-based Quiet zone 
Calculator will be able to do the actual computations.) Once the 
Quiet Zone Risk Index has been reduced to equal to, or less than, 
either the Nationwide Significant Risk Threshold or the Risk Index 
with Horns, the quiet zone has qualified for the Public Authority 
Designation method, and notification may take place once all the 
necessary improvements have been installed. If quiet zone is 
established by reducing the Quiet Zone Risk Index to equal to, or 
less than, the Nationwide Significant Risk Threshold, FRA will 
annually recalculate the Nationwide Significant Risk Threshold and 
the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the 
quiet zone is above the Nationwide Significant Risk Threshold, FRA 
will notify the public authority so that appropriate measures can be 
taken (See Sec.  222.51(a)).

    Note: The provisions stated above for crossing closures, grade 
separations, and wayside horns apply for Public Authority 
Designation.

D. Pre-Rule Quiet Zones--Public Authority Application to FRA

    The following discussion is meant to provide guidance in the 
steps necessary to establish a Pre-Rule Quiet zone using the Public 
Authority Application to FRA method.
    1. All of the items listed in ``Requirements for both Public 
Authority Designation and Public Authority Application--Pre-Rule 
Quiet Zones'' previously mentioned are to be accomplished. Remember 
that a Pre-Rule Quiet Zone may be less than one-half mile in length 
if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet 
Zone does not have to have automatic warning devices consisting of 
flashing lights and gates at every public crossing.
    2. Calculate the risk index for each public crossing within the 
quiet zone (See Appendix D. FRA's web-based Quiet Zone Calculator 
may be used to simplify the calculation process). If the Inventory 
record does not reflect the actual conditions at the crossing, be 
sure to use the conditions that currently exist when calculating the 
risk index.
    3. The Crossing Corridor Risk Index is then calculated by 
averaging the risk index for each public crossing within the 
proposed quiet zone. Since train horns are not being sounded for 
crossings, this value is actually the initial Quiet Zone Risk Index.
    4. Calculate Risk Index with Horns by the following:
    a. For each public crossing, divide its risk index that was 
calculated in Step 2 by the appropriate value in Table 1. This 
produces the risk index that would have existed had the train horn 
been sounded.
    b. Average these reduced risk indices together. The resulting 
average is the Risk Index with Horns.
    5. Begin to reduce the Quiet Zone Risk Index through the use of 
ASMs and/or SSMs. Follow the procedure the provided in Step 6--
Public Authority Designation until the Quiet Zone Risk Index has 
been reduced to a level equal to, or less than, either the 
Nationwide Significant Risk Threshold or the Risk Index with Horns. 
A public authority may elect to upgrade an existing warning device 
as part of its Pre-Rule Quiet Zone plan. When upgrading a warning 
device, the accident prediction value for that crossing must be re-
calculated for the new warning device. Determine the new risk index 
for the upgraded crossing by using the new accident prediction value 
in the severity risk index formula. (Remember that FRA's web-based 
quiet zone risk calculator will be able to do the actual 
computations.) This new risk index is then used to compute the new 
Quiet Zone Risk Index. Effectiveness rates for ASMs should be 
provided as follows:
    a. Modified SSMs--Estimates of effectiveness for modified SSMs 
may be proposed based upon adjustments from the benchmark levels 
provided in Appendix A or from actual field data derived from the 
crossing sites. The application should provide an estimated 
effectiveness rate and the rationale for the estimate.
    b. Non-engineering ASMs--Effectiveness rates are to be 
calculated in accordance with the provisions of appendix B, 
paragraph 2(b).
    6. Once it has been determined through analysis that the Quiet 
Zone Risk Index has been reduced to a level equal to, or less than, 
either the Nationwide Significant Risk Threshold or the Risk Index 
with Horns, the public authority may make application to FRA for a 
quiet zone under Sec.  222.39(b). FRA will review the application to 
determine the appropriateness of the proposed effectiveness rates, 
and whether or not the proposed application demonstrates that the 
quiet zone meets the requirements of the rule. When submitting the 
application to FRA for approval, it should be remembered that the 
application must contain the following (Sec.  222.39(b)(1)):
    a. Sufficient detail concerning the present safety measures at 
the public crossings within the proposed quiet zone. This includes 
current and accurate crossing inventory forms.
    b. Detailed information on the SSMS's, ASM's, or upgraded 
warning devices that are proposed to be implemented and at which 
public crossings within the proposed quiet zone.
    c. Membership and recommendations of the diagnostic team (if 
any) that reviewed the proposed quiet zone.
    d. A commitment to implement the proposed safety measures.
    e. Demonstrate through data and analysis that the proposed 
measures will reduce the Quiet Zone Risk Index to, or below, either 
the Nationwide Significant Risk Threshold or the Risk Index with 
Horns.
    f. A copy of the application must be provided to the parties 
listed under Required Notifications.
    7. Upon receiving written approval from FRA of the quiet zone 
application, the public authority may then proceed with 
notifications and implementation of the quiet zone. If the quiet 
zone is established by reducing the Quiet Zone Risk Index to a level 
equal to, or less than, the Nationwide Significant Risk Threshold, 
FRA will annually recalculate the Nationwide Significant Risk 
Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index for 
the quiet zone is above the Nationwide Significant Risk Threshold, 
FRA will notify the public authority so that appropriate measures 
can be taken (See Sec.  222.51(a)).

    Note: The provisions stated above for crossing closures, grade 
separations, and wayside horns apply for Public Authority 
Application to FRA as well.

Section IV--Required Notifications

    A. The public authority responsible for the creation of a New 
Quiet Zone or the continuation of a Pre-Rule Quiet Zone, is required 
to provide notification to parties that will be affected by the 
quiet zone. The notification process is to ensure that interested 
parties are made aware in a timely manner of the establishment or 
continuation of quiet zones. Specific information is to be provided 
so that the crossings in the quiet zone can be identified. The 
method used to qualify or continue the quiet zone is to be given. 
The notification process also includes additional information that 
must be provided to FRA. Once the rule becomes effective, railroads 
will be obligated to sound train horns when approaching all public 
crossings unless notified in accordance with the rule that a New 
Quiet Zone has been established or that a Pre-Rule Quiet Zone is 
being continued.
    The time frames for the notification process is as follows:
    [sbull] New Quiet Zones--Notification of the establishment of a 
New Quiet Zone under Sec.  222.39 must be mailed at least 21 days 
before the routine sounding of train horns for public crossings is 
to cease (Sec.  222.43(a)(2)(i)). The routine use of train horns at 
public crossings will not cease unless the proper notification has 
been given.
    [sbull] Pre-Rule Quiet Zones--Notification of the continuation 
of a Pre-Rule Quiet Zone under Sec.  222.41 must be served no later 
than December 18, 2004 (Sec.  222.43(a)(2)(ii)). Failure to provide 
the required notice will result in the commencement of the sounding 
of train horns at public crossings on this date.

B. Parties To Be Notified

    The public authority that is implementing a New Quiet Zone or is 
continuing a Pre-Rule Quiet Zone must provide notification of the 
quiet zone by certified mail, return receipt requested, to the 
following (see Sec.  222.43(a)(1)):
    [sbull] All railroads operating over the crossings within the 
quiet zone.
    [sbull] The highway or traffic control authority, or law 
enforcement authority having control over vehicular traffic at 
crossings within the quiet zone.
    [sbull] The State agency responsible for highway and road 
safety.
    [sbull] All landowners owning a private crossing within the 
quiet zone.
    [sbull] The Associate Administrator.

C. Required Information

    The quiet zone implementation notification should contain the 
following information (Sec.  222.43(a)(3)):

[[Page 70681]]

    1. A list all grade crossings within the quiet zone by both the 
U.S. DOT crossing number and the street or highway name. This 
includes public, private and grade separated crossings.
    2. The specific date upon which routine use of the train horn 
will cease at crossings within the quiet zone. The date for New 
Quiet Zones shall be no earlier than 21 days after mailing of 
written notification.
    3. The notice should state which section contained in the rule 
is used as the basis for establishment or continuation of the quiet 
zone.
    4. Reference to Sec.  222.39(a)(1), (2), or (3) shall include a 
copy of the FRA web page containing the quiet zone data upon which 
the public authority relies.
    5. Reference to Sec.  222.39(b) shall include a copy of FRA's 
notification of approval.
    6. Reference to Sec.  222.41 shall include a statement as to how 
the quiet zone is in compliance with that section. If appropriate, 
it shall include a copy of the FRA web page containing the quiet 
zone data upon which the public authority relies.
    7. A certificate of service showing to whom and by what means 
the notice was provided.
    D. In addition to the above required information, the 
notification to the Associate Administrator also must include the 
following (Sec.  222.43(b)):
    1. An accurate and complete Grade Crossing Inventory Form for 
each public and private highway-rail grade crossing within the quiet 
zone, dated within six months prior to designation or approval by 
FRA of the quiet zone. Copies of the inventory forms may be obtain 
on FRA Web site (www.fra.dot.gov).
    2. An accurate, complete and current Grade Crossing Inventory 
Form reflecting SSMs or ASMs in place upon establishment of the 
quiet zone. SSMs or ASMs that cannot be fully described on the 
Inventory form must be fully described in writing.
    3. The name and title of the person responsible for monitoring 
compliance with the requirements of this part, and the manner in 
which that person can be contacted.
    4. A list of all parties that received notification of the 
establishment or continuation of the quiet zone together with copies 
of the certificates of service showing to whom and by what means the 
notice was provided.
    5. A statement signed by the CEO of each public authority 
establishing or continuing a quiet zone that certifies that 
responsible officials of the public authority have reviewed 
documentation provided by FRA sufficient to make an informed 
decision regarding the advisability of establishing the quiet zone.

Section V--Examples of Quiet Zone Implementations

Example 1--New Quiet Zone

    A public authority wishes to create a New Quiet Zone over four 
public crossings. All of the crossings are equipped with flashing 
lights and gates, and the length of the quiet zone is 0.75 mile. 
There are no private crossings within the proposed zone.
    The tables that follow show the street name in the first column, 
and the existing risk index for each crossing with the horn sounding 
(``Crossing Risk Index w/Horns'') in the second. The third column, 
``Crossing Risk Index w/o Horns'', is the risk index for each 
crossing after it has been inflated by 66.8% to account for the lack 
of train horns. The fourth column, ``SSM Eff'', is the effectiveness 
of the SSM at the crossing. A zero indicates that no SSM has been 
applied. The last column, ``Crossing Risk Index w/o Horns Plus 
SSM'', is the inflated risk index for the crossing after being 
reduced by the implementation of the SSM. At the bottom of the table 
are two values. The first is the Risk Index with Horns (``RIWH'') 
which represents the average initial amount of risk in the proposed 
quiet zone with the train horn sounding. The second is the Quiet 
Zone Risk Index (``QZRI'') and is the average risk in the proposed 
quiet zone taking into consideration the increased risk caused by 
the lack of train horns and reductions in risk attributable to the 
installation of SSMs. For this example it is assumed that the 
Nationwide Significant Risk Threshold is 15,424. In order for the 
proposed quiet zone to qualify under the rule, the Quiet Zone Risk 
Index must be reduced to at least either the Nationwide Significant 
Risk Threshold (15,424) or to the Risk Index with Horns.
    Table 1 shows the existing conditions in the proposed quiet 
zone. SSMs have not yet been installed. The Risk Index with Horns 
for the proposed quiet zone is 11,250. The Quiet Zone Risk Index 
without any SSMs is 18,765.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                                                   Crossing risk
                                                   Crossing risk   Crossing risk                     index w/o
                     Street                        index w/horns     index w/o        SSM EFF       horns, plus
                                                                       horns                            SSM
----------------------------------------------------------------------------------------------------------------
A...............................................           12000           20016               0           20016
B...............................................           10000           16680               0           16680
C...............................................            8000           13344               0           13344
D...............................................           15000           25020               0           25020
                                                       RIWH       ..............  ..............       QZRI
                                                       11250      ..............  ..............       18765
----------------------------------------------------------------------------------------------------------------

    The public authority decides to install traffic channelization 
devices at D Street. Reducing the risk at the crossing that has the 
highest severity risk index will provide the greatest reduction in 
risk. The effectiveness of traffic channelization devices is 0.75. 
Table 2 shows the changes in the proposed quiet zone corridor that 
would occur when traffic channelization devices are installed at D 
Street. The Quiet Zone Risk Index has been reduced to 14,073.75. 
This reduction in risk would qualify the quiet zone as the risk has 
been reduced lower than the Nationwide Significant Risk Threshold 
which is 15,424.

                                                     Table 2
----------------------------------------------------------------------------------------------------------------
                                                                   Crossing risk                   Crossing risk
                     Street                        Crossing risk     index w/o        SSM EFF        index w/o
                                                  index w/ horns       horns                      horns plus SSM
----------------------------------------------------------------------------------------------------------------
A...............................................           12000           20016               0           20016
B...............................................           10000           16680               0           16680
C...............................................            8000           13344               0           13344
D...............................................           15000           25020            0.75            6255
                                                       RIWH       ..............  ..............       QZRI
                                                       11250      ..............  ..............     14073.75
----------------------------------------------------------------------------------------------------------------


[[Page 70682]]

    The public authority realizes that authorizing the quiet zone by 
lowering the risk to below the Nationwide Significant Risk Threshold 
will result in an annual re-calculation of the Quiet Zone Risk Index 
and comparison to the Nationwide Significant Risk Threshold. As the 
Quiet Zone Risk Index is close to the Nationwide Significant Risk 
Threshold (14,074 to 15,424), there is a reasonable chance that the 
Quiet Zone Risk Index may some day exceed the Nationwide Significant 
Risk Threshold. This would result in the quiet zone no longer being 
qualified and additional steps would have to be taken to keep the 
quiet zone. Therefore, the public authority decides to reduce the 
risk further by the use of traffic channelization devices at A 
Street. Table 3 shows the results of this change. The Quiet Zone 
Risk Index is now 10,320.75 which is less than the Risk Index with 
Horns of 11,250. The quiet zone now qualifies by fully compensating 
for the loss of train horns and will not have to undergo annual 
reviews of the Quiet Zone Risk Index.

                                                     Table 3
----------------------------------------------------------------------------------------------------------------
                                                                   Crossing risk                   Crossing risk
                     Street                        Crossing risk     index w/o        SSM EFF        index w/o
                                                   index w/horns       horns                      horns plus SSM
----------------------------------------------------------------------------------------------------------------
A...............................................           12000           20016            0.75            5004
B...............................................           10000           16680               0           16680
C...............................................            8000           13344               0           13344
D...............................................           15000           25020            0.75            6255
                                                       RIWH       ..............  ..............       QZRI
                                                       11250      ..............  ..............     10320.75
----------------------------------------------------------------------------------------------------------------

Example 2--Pre-Rule Quiet Zone

    A public authority wishes to qualify a Pre-Rule Quiet Zone which 
did not meet the requirements for Automatic Approval because the 
Quiet Zone Risk Index is greater than twice the Nationwide 
Significant Risk Threshold. There are four public crossings in the 
Pre-Rule Quiet Zone. Three of the crossings are equipped with 
flashing lights and gates, and the fourth (Z Street) is passively 
signed with a STOP sign. The length of the quiet zone is 0.6 mile, 
and there are no private crossings within the proposed zone.
    The tables that follow are very similar to the tables in Example 
1. The street name is shown in the first column, and the existing 
risk index for each crossing (``Crossing Risk Index w/o Horns'') in 
the second. This is a change from the first example because the risk 
is calculated without train horns sounding because of the existing 
ban on whistles. The third column, ``Crossing Risk Index w/ Horns'', 
is the risk index for each crossing after it has been adjusted to 
reflect what the risk would have been had train horns been sounding. 
This is mathematically done by dividing the existing risk index for 
the three gated crossing by 1.668. The risk at the passive crossing 
at Z Street is divided by 1.749. (See the above discussion in ``Pre-
Rule Quiet Zones--Establishment Overview'' for more information.) 
The fourth column, ``SSM EFF'', is the effectiveness of the SSM at 
the crossing. A zero indicates that no SSM has been applied. The 
last column, ``Crossing Risk Index w/o Horns Plus SSM'', is the risk 
index without horns for the crossing after being reduced for the 
implementation of the SSM. At the bottom of the table are two 
values. The first is the Risk Index with Horns (RIWH) which 
represents the average initial amount of risk in the proposed quiet 
zone with the train horn sounding. The second is the Quiet Zone Risk 
Index (``QZRI'') and is the average risk in the proposed quiet zone 
taking into consideration the increased risk caused by the lack of 
train horns and reductions in risk attributable to the installation 
of SSMs. Once again it is assumed that the Nationwide Significant 
Risk Threshold is 15,424. The Quiet Zone Risk Index must be reduced 
to either the Nationwide Significant Risk Threshold (15,424) or to 
the Risk Index with Horns in order to qualify under the rule.
    Table 4 shows the existing conditions in the proposed quiet 
zone. SSMs have not yet been installed. The Risk Index with Horns 
for the proposed quiet zone is 18,705.83. The Quiet Zone Risk Index 
without any SSMs is 31,375. Since the Nationwide Significant Risk 
Threshold is less than the calculated Risk Index with Horns, the 
public authority's goal will be to reduce the risk to at least value 
of the Risk Index with Horns. This will qualify the Pre-Rule Quiet 
Zone under the rule.

                                                     Table 4
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns       index w/horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................           35000        20983.21               0           35000
X...............................................           42000        25179.86               0           42000
Y...............................................           33500        20083.93               0           33500
Z...............................................           15000         8576.33               0           15000
                                                       RIWH       ..............  ..............       QZRI
                                                     18705.83     ..............  ..............           31375
----------------------------------------------------------------------------------------------------------------

    The Z Street crossing is scheduled to have flashing lights and 
gates installed as part of the state's highway-rail grade crossing 
safety improvement plan (section 130). While this upgrade is not 
directly a part of the plan to authorize a quiet zone, the public 
authority may take credit for the risk reduction achieved by the 
improvement from a passive STOP sign crossing to a crossing equipped 
with flashing lights and gates. Unlike New Quiet Zones, upgrades to 
warning devices in Pre-Rule Quiet Zones do contribute to the risk 
reduction necessary to qualify under the rule. Table 5 shows the 
quiet zone corridor after including the warning device upgrade at Z 
Street. Note that the Risk Index with Horns and the Crossing Risk 
Index With Horns for Z Street do not change. The Quiet Zone Risk 
Index has been reduced to 29,500.

[[Page 70683]]



                                                     Table 5
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns       index w/horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................           35000        20983.21               0           35000
X...............................................           42000        25179.86               0           42000
Y...............................................           33500        20083.93               0           33500
Z...............................................            7500         8576.33               0            7500
                                                       RIWH       ..............  ..............       QZRI
                                                     18705.83     ..............  ..............       29500
----------------------------------------------------------------------------------------------------------------

    The public authority elects to install four-quadrant gates 
without vehicle presence detection at X Street. As shown in Table 6, 
this reduces the Quiet Zone Risk Index to 20,890. This risk 
reduction is not sufficient to quality as quiet zone under the rule.

                                                     Table 6
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns       index w/horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................           35000        20983.21               0           35000
X...............................................           42000        25179.86            0.82            7560
Y...............................................           33500        20083.93               0           33500
Z...............................................            7500         8576.33               0            7500
                                                       RIWH       ..............  ..............       QZRI
                                                     18705.83     ..............  ..............       20890
----------------------------------------------------------------------------------------------------------------

    The public authority next decides to use traffic channelization 
devices at W Street. Table 7 shows that the Quiet Zone Risk Index is 
now reduced to 14,327.5. This risk reduction fully compensates for 
the loss of the train horn as it is less than the Risk Index with 
Horns. The quiet zone is qualified under the rule.

                                                     Table 7
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns       index w/horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................           35000        20983.21            0.75            8750
X...............................................           42000        25179.86            0.82            7560
Y...............................................           33500        20083.93               0           33500
Z...............................................            7500         8576.33               0            7500
                                                       RIWH       ..............  ..............       QZRI
                                                     18705.83     ..............  ..............      14327.5
----------------------------------------------------------------------------------------------------------------

Appendix D to Part 222--Determining Risk Levels

Introduction

    The Nationwide Significant Risk Threshold, the Crossing Corridor 
Risk Index, and the Quiet Zone Risk Index are all measures of collision 
risk at public highway-rail grade crossings that are weighted by the 
severity of the associated casualties. Each crossing can be assigned a 
risk index.
    The Nationwide Significant Risk Threshold represents the average 
severity weighted collision risk for all public highway-rail grade 
crossings equipped with lights and gates nationwide where train horns 
are routinely sounded. FRA developed this index to serve as a threshold 
of permissible risk for quiet zones established under this rule.
    The Crossing Corridor Risk Index represents the average severity 
weighted collision risk for all public highway-rail grade crossings 
along a defined rail corridor.
    The Quiet Zone Risk Index represents the average severity weighted 
collision risk for all public highway-rail grade crossings that are 
part of a quiet zone.

The Prediction Formulas

    The Prediction Formulas were developed by DOT as a guide for 
allocating scarce traffic safety budgets at the State level. They allow 
users to rank candidate crossings for safety improvements by collision 
probability. There are three formulas, one for each warning device 
category: (1) automatic gates with flashing lights, (2) flashing lights 
with no gates, and (3) passive warning devices.
    The prediction formulas can be used to derive the following for 
each crossing:
    1. PC which is the predicted collisions.
    2. P(FC[bond]C) which is the probability of a fatal collision given 
that a collision occurs.
    3. P(CC[bond]C) which is the probability of a casualty collision 
given that a collision occurs.
    The following factors are the determinants of the number of 
predicted collisions per year:
    [sbull] Average annual daily traffic;
    [sbull] Total number of trains per day;
    [sbull] Number of highway lanes;
    [sbull] Number of main tracks;

[[Page 70684]]

    [sbull] Maximum timetable train speed;
    [sbull] Whether the highway is paved or not;
    [sbull] Number of through trains per day during daylight hours.
    The resulting basic prediction is improved in two ways. It is 
enriched by the particular crossing's collision history for the 
previous five years and it is calibrated by resetting normalizing 
constants. The normalizing constants are reset so that the sum of the 
predicted accidents in each warning device group (passive, flashing 
lights, gates) for the top twenty percent most hazardous crossings 
exactly equals the number of accidents which occurred in a recent 
period for the top twenty percent of that group. This adjustment factor 
allows the formulas to stay current with collision trends. The 
calibration also corrects for errors such as data entry errors. The 
final output is the predicted number of collisions (PC).
    The severity formulas answer the question, ``What is the chance 
that a fatality (or casualty) will happen, given that a collision has 
occurred?'' The fatality formula calculates the probability of a fatal 
collision given that a collision occurs (i.e. the probability of a 
collision in which a fatality occurs) P(FC[bond]C). Similarly, the 
casualty formula calculates the probability of a casualty collision 
given that a collision occurs P(CC[bond]C). As casualties consist of 
both fatalities and injuries, the probability of a non-fatal injury 
collision is found by subtracting the probability of a fatal collision 
from the probability of a casualty collision. To convert the 
probability of a fatal or casualty collision to the number of expected 
fatal or casualty collisions, that probability is multiplied by the 
number of predicted collisions (PC).
    For the prediction and severity index formulas, please see the 
following DOT publications: Summary of the DOT Rail-Highway Crossings 
Resource Allocation Procedure--Revised, June 1987, and the Rail-Highway 
Crossing Resource Allocation Procedure: User's Guide, Third Edition, 
August 1987. Both documents are in the docket for this rulemaking and 
also available through the National Technical Information Service 
located in Springfield, Virginia 22161.

Risk Index

    The risk index is basically the predicted cost to society of the 
casualties that are expected to result from the predicted collisions at 
a crossing. It incorporates three outputs of the DOT prediction 
formulas. The two components of a risk index are:

1. Predicted Cost of Fatalities = PC x P(FC[bond]C) x (Average Number 
of Fatalities Observed In Fatal Collisions) x $3 million
2. Predicted Cost of Injuries = PC x (P(CC[bond]C) - P(FC[bond]C)) x 
(Average Number of Injuries in Collisions Involving Injuries) x 
$1,167,000


PC, P(CC[bond]C), and P(FC[bond]C) are direct outputs of the DOT 
prediction formulas.
    The average number of fatalities observed in fatal collisions and 
the average number of injuries in collisions involving injuries were 
calculated by FRA as follows.
    The highway-rail incident files from 1997 through 2001 were matched 
against a data file containing the list of whistle ban crossings in 
existence from January 1, 1997 through December 31, 2001 to identify 
two types of collisions involving trains and motor vehicles (1) those 
that occurred at crossings where a whistle ban was in place during the 
period, and (2) those that occurred at crossings equipped with 
automatic gates where a whistle ban was not in place. Certain records 
were excluded. These were incidents where the driver was not in the 
motor vehicle, or the motor vehicle struck the train beyond the 4th 
locomotive or rail car that entered the crossing. FRA believes that 
sounding the train horn would not be very effective at preventing such 
incidents.\1\
---------------------------------------------------------------------------

    \1\ The data used to make these exclusions is contained in 
blocks 18--Position of Car Unit in Train; 19--Circumstance: Rail 
Equipment Struck/Struck By Highway User; 28--Number of Locomotive 
Units; and 29--Number of Cars of the current FRA Form 6180-57 
Highway-Rail Grade Crossing Accident/Incident Report.
---------------------------------------------------------------------------

    Collisions in the group containing the gated crossings nationwide 
where horns are routinely sounded were then identified as either fatal, 
injury only, or no casualty. Collisions were identified as fatal if one 
or more deaths occurred, regardless of whether or not injuries were 
also sustained. Collisions were identified as injury only when 
injuries, but no fatalities resulted.
    The collisions (incidents) selected were summarized by year from 
1997 through 2001 (see table below). The fatality rate for each year 
was calculated by dividing the number of fatalities (``Deaths'') by the 
number of fatal incidents (``Number''). The injury rates were 
calculated by dividing the number of injuries in injury only incidents 
(``Injured'') by the number of injury only incidents (``Number'').
    The following table lists the results. Note that the number of 
injuries in the sixth column includes only those injuries resulting 
from injury only incidents, it excludes any non-fatal injuries 
sustained in fatal incidents. Non-fatal injuries sustained in fatal 
incidents are not included in this table. The first line in the table 
presents information in summary form for the five-year period.

                                                    Motor Vehicle Incidents at Non WB Gated Crossings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Fatal incidents                        Injury incidents
                                                                  Total    -----------------------------------------------------------------------------
                                                                incidents      Number       Deaths        Rate        Number      Injured        Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total....................................................        2,028          255          311       1.2196          552          739       1.3388
--------------------------------------------------------------
2001.........................................................          457           70           78       1.1143          119          156       1.3109
2000.........................................................          430           48           56       1.1667          109          157       1.4404
1999.........................................................          395           43           59       1.3721          109          144       1.3211
1998.........................................................          353           46           57       1.2391          105          131       1.2476
1997.........................................................          393           48           61       1.2708          110          151       1.3727
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The fatality rate and the injury rate for the five-year period 
appear in bold in the first line.
    Per guidance from DOT, $3 million is the value placed on preventing 
a fatality. The Abbreviated Injury Scale (AIS) developed by the 
Association for the Advancement of Automotive Medicine categorizes 
injuries into six levels of severity. Each AIS level is assigned a 
value of injury avoidance as

[[Page 70685]]

a fraction of the value of avoiding a fatality. FRA rates collisions 
that occur at train speeds in excess of 25 mph as an AIS level 5 
($2,287,500) and injuries that result from collisions involving trains 
traveling under 25 mph as an AIS level 2 ($46,500). About half of grade 
crossing collisions occur at speeds greater than 25 mph. Therefore, FRA 
estimates that the value of preventing the average injury resulting 
from a grade crossing collision is $1,167,000 (the average of an AIS-5 
injury and an AIS-2 injury.)
    Notice that the quantity [PC*P(FC[bond]C)] represents the expected 
number of fatal collisions. Similarly, {PC*[P(CC[bond]C)-
P(FC[bond]C)]{time}  represents the expected number of injury 
collisions. These are then multiplied by their respective average 
number of fatalities and injuries (from the table above) to develop the 
number of expected casualties. The final parts of the expressions 
attach the dollar values for these casualties.
    The Risk Index for a Crossing is the integer sum of the Predicted 
Cost of Fatalities and the Predicted Cost of Injuries.

Nationwide Significant Risk Threshold

    The Nationwide Significant Risk Threshold is simply an average of 
the risk indexes for all of the gated crossings nationwide where train 
horns are routinely sounded. FRA identified 33,879 gated non-whistle 
ban crossings for input to the Nationwide Significant Risk Threshold.
    The Nationwide Significant Risk Threshold rounds to 15,424. This 
value is recalculated annually.

Crossing Corridor Risk Index

    The Crossing Corridor Risk Index is the average of the risk indexes 
of all the crossings in a defined rail corridor. Communities seeking to 
establish `Quiet Zones' should initially calculate this average for 
potential corridors.

Quiet Zone Risk Index

    The Quiet Zone Risk Index is the average of the risk indexes of all 
the public crossings in a Quiet Zone. It takes into consideration the 
absence of the horn sound and any safety measures that may have been 
installed.

Appendix E to Part 222--Requirements for Wayside Horns

    Minimum requirements for wayside horn use at highway-rail grade 
crossings:
    1. Highway-rail crossing must be equipped with constant warning 
time device, if reasonably practical, and power-out indicator;
    2. Horn system must be equipped with an indicator or other 
system to notify the locomotive engineer as to whether the wayside 
horn is operating as intended in sufficient time to enable the 
locomotive engineer to sound the locomotive horn for at least 15 
seconds prior to arrival at the crossing in the event the wayside 
horn is not operating as intended;
    3. The railroad must adopt an operating rule, bulletin or 
special instruction requiring that the train horn be sounded if the 
wayside horn indicator is not visible approaching the crossing, or 
if this, or an equivalent system, does not indicate that the system 
is operating as intended;
    4. Horn system must provide a minimum of 96 and a maximum of 110 
dB(A) when measured 100 feet from the horn in the direction it is 
installed;
    5. Horn system must sound at a minimum of 15 seconds prior to 
the train's arrival at the crossing and while the lead locomotive is 
traveling across the crossing. It is permissible for the horn system 
to begin to sound simultaneously with activation of the flashing 
lights or descent of the crossing arm; and
    6. Horn shall be directed toward approaching traffic.

Appendix F to Part 222--Diagnostic Team Considerations

    For purposes of this part, a diagnostic team is a group of 
knowledgeable representatives of parties of interest in a highway-
rail grade crossing, organized by the public authority responsible 
for that crossing, who, using crossing safety management principles, 
evaluate conditions at a grade crossing to make determinations or 
recommendations for the public authority concerning safety needs at 
that crossing. Crossings proposed for inclusion in a quiet zone 
should be reviewed in the field by such a diagnostic team composed 
of railroad personnel, public safety or law enforcement, engineering 
personnel from the public agency with responsibility for the roadway 
that crosses the railroad, and other concerned parties.
    This diagnostic team, using crossing safety management 
principles, should evaluate conditions at a grade crossing to make 
determinations and recommendations concerning safety needs at that 
crossing. The diagnostic team can evaluate a crossing from many 
perspectives and can make recommendations as to what safety measures 
authorized by this part might be utilized to compensate for the 
silencing of the train horns within the proposed quiet zone.

All Crossings Within a Proposed Quiet Zone

    The diagnostic team should obtain and review the following 
information about each crossing within the proposed quiet zone:
    1. Current highway traffic volumes and percent of trucks;
    2. Posted speed limits on all highway approaches;
    3. Maximum allowable train speeds, both passenger and freight;
    4. Accident history for each crossing under consideration;
    5. School bus or transit bus use at the crossing; and
    6. Presence of U.S. DOT grade crossing inventory numbers clearly 
posted at each of the crossings in question.
    The diagnostic team should obtain all inventory information for 
each crossing, and should check while in the field to see that 
inventory information is up-to-date and accurate. Outdated inventory 
information should be updated as part of the quiet zone development 
process.
    When in the field, the diagnostic team should take note of the 
physical characteristics of each crossing, including the following 
items:
    [sbull] Can any of the crossings within the proposed quiet zone 
be closed, or consolidated with another adjacent crossing? Crossing 
elimination should always be the preferred alternative, and it 
should be explored for crossings within the proposed quiet zone.
    [sbull] What is the number of lanes on each highway approach? 
Note the pavement condition on each approach, as well as the 
condition of the crossing itself.
    [sbull] Is the grade crossing surface smooth, well graded and 
free draining?
    [sbull] Does the alignment of the railroad tracks at the 
crossing create any problems for road users on the crossing? Are the 
tracks in superelevation (are they banked on a curve?) and does this 
create a conflict with the vertical alignment of the crossing 
roadway?
    [sbull] Note the distance to the nearest intersection or traffic 
signal on each approach (if within 500 feet or so of the crossing, 
or if the signal or intersection is determined to have a potential 
impact on highway traffic at the crossing because of queuing or 
other special problems).
    [sbull] If there is a roadway that runs parallel to the railroad 
tracks, and it is within 100 feet of the railroad tracks when it 
crosses an intersecting road that crosses the tracks, the 
appropriate advance warning signs should be posted as shown in the 
MUTCD.
    [sbull] Is the posted highway speed (on each approach to the 
crossing) appropriate for the alignment of the roadway, and the 
configuration of the crossing?
    [sbull] Does the vertical alignment of the crossing create the 
potential for a ``hump crossing'' where long, low-clearance vehicles 
might get stuck on the crossing?
    [sbull] What are the grade crossing warning devices in place at 
each crossing? Flashing lights and gates are required for each 
public crossing in a New Quiet Zone. Are all required warning 
devices, signals, pavement markings and advance signing in place, 
visible and in good condition for both day and night time 
visibility?
    [sbull] What kind of train detection is in place at each 
crossing? Are these systems old or outmoded; are they in need of 
replacement, upgrading, or refurbishment?
    [sbull] Are there sidings or other tracks adjacent to the 
crossing that are often used to store railroad cars, locomotives, or 
other equipment that could obscure the vision of road users as they 
approach the crossings in the quiet zone? Clear visibility may help 
to reduce violation of automatic devices.
    [sbull] Are motorists currently violating the warning devices at 
any of the crossings at an excessive rate?
    [sbull] Do accident statistics for the corridor indicate any 
potential problems at any of the crossings?

[[Page 70686]]

    [sbull] If school buses or transit buses use crossings within 
the proposed quiet zone corridor, can they be rerouted to a use 
single crossing within or outside of the quiet zone?

Private Crossings Within a Proposed Quiet Zone

    In addition to the items discussed above, a diagnostic team 
should examine the following for any private crossings within a 
proposed quiet zone:

    [sbull] How often is the private crossing used?
    [sbull] What kind of signing or pavement markings are in place 
at the private crossing?
    [sbull] What types of vehicles use the private crossing?

School buses
Large trucks
Hazmat carriers
Farm equipment

    [sbull] What is the volume, speed and type of train traffic over 
the crossing?
    [sbull] Do passenger trains use the crossing?
    [sbull] Do approaching trains sound the horn at private 
crossings?

State or local law forbids or requires it?
Railroad safety rule requires it?
    [sbull] Are there any nearby crossings where train horns sound 
that might also provide some warning at the private crossing where 
no horns sound?
    [sbull] What are the approach (corner) sight distances?
    [sbull] What is the clearing sight distance for all approaches?
    [sbull] What are the private roadway approach grades?
    [sbull] What are the private roadway pavement surfaces?

Appendix G to Part 222--Schedule of Civil Penalties \1\

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
   Subpart B--Use of Locomotive Horns
Sec.   222.21 Use of locomotive horn:
    (a) Failure to sound horn at grade            $5,000          $7,500
     crossing...........................
        Failure to sound horn in proper            1,000           3,000
         pattern........................
    (b) Failure to sound horn at least             5,000           7,500
     15 and no more than 20 seconds
     before crossing....................
        Sounding horn more than \1/4\              1,000           4,000
         mile in advance of crossing....
Sec.   222.33 Failure to sound horn when           5,000           7,500
 conditions of Sec.   222.33 are not met
Sec.   222.45 Sounding locomotive horn             1,500           5,000
 at a grade crossing within a quiet zone
Sec.   222.49 (b) Failure to provide               2,500           5,000
 Grade Crossing Inventory Form
 information............................
Sec.   222.59 (c) Routine sounding                 5,000          7,500
 locomotive horn at a grade crossing
 equipped with wayside horn.............
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $20,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.

PART 229--[AMENDED]

0
2. The authority citation for part 229 continues to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20137-20138, 
20143, 20701-20703, 21301-20302, 21304; 49 CFR 149(c), (m).

0
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 110 dB(A) at 100 feet forward of the locomotive in its 
direction of travel. The device shall be arranged so that it can be 
conveniently operated from the engineer's usual position during 
operation of the locomotive.
    (b)(1) Each locomotive built on or after December 18, 2004, shall 
be tested in accordance with this section to ensure that the horn 
installed on such locomotive is in compliance with paragraph (a) of 
this section.
    (2) Each locomotive built before December 18, 2004, shall be tested 
in accordance with this section before December 18, 2008, to ensure 
that the horn installed on such locomotive is in compliance with 
paragraph (a) of this section.
    (3) Each locomotive when rebuilt, as determined pursuant to 49 CFR 
232.5, shall be tested in accordance with this section to ensure that 
the horn installed on such locomotive is in compliance with paragraph 
(a).
    (c) Testing of horn locomotive horn sound level shall be in accord 
with the following requirements:
    (1) A properly calibrated sound level meter shall be used that, at 
a minimum, complies with the requirements of International 
Electrotechnical Commission (IEC) Standard 61672-1 (2002-05) for a 
Class 2 instrument.
    (2) An acoustic calibrator shall be used that, at a minimum, 
complies with the requirements of IEC Standard 60942 (1997-11) for a 
Class 2 instrument.
    (3) The manufacturer's instructions pertaining to mounting and 
orienting the microphone; positioning of the observer; and periodic 
factory recalibration shall be followed.
    (4) A microphone windscreen shall be used and tripods or similar 
microphone mountings shall be used that minimize interference with the 
sound being measured.
    (5) The test site shall be free of large reflective structures, 
such as barriers, hills, billboards, tractor trailers or other large 
vehicles, locomotives or rail cars on adjacent tracks, bridges or 
buildings, within 400 feet in front of the locomotive and within 200 
feet to the sides of the locomotive and microphone. The locomotive 
shall be positioned on straight, level track.
    (6) Measurements shall be taken only when ambient air temperature 
is between 36 degrees and 95 degrees Fahrenheit inclusively; relative 
humidity is between 20 percent and 95 percent inclusively; wind 
velocity is not more than 12 mile per hour and there is no 
precipitation.
    (7) The microphone shall be located 100 feet forward of the front 
knuckle of the locomotive, 15 feet above the top of rail, at the center 
line of the track, and oriented with respect to the sound source 
according to the manufacturer's recommendations. The observer shall not 
stand between the microphone and the horn.
    (8) Background noise shall be minimal: the sound level at the test 
site immediately before and after each horn sounding event shall be at 
least 10 dB(A) below the level measured during the horn sounding.
    (9) Measurement procedures. The sound level meter shall be set for 
A-weighting with slow exponential response and shall be calibrated with 
the acoustic calibrator immediately before and after compliance tests. 
Any change in the before and after calibration levels shall be less 
than 0.5 dB. After the output from the locomotive horn system has 
reached a stable level, the A-weighted equivalent sound level (slow 
response) for a 20 second duration (LAeq,20s) shall be obtained either 
directly using an integrating-averaging sound level meter, or recorded 
once per second and calculated indirectly . The arithmetic-average of a 
series of at least six such readings shall be used to determine 
compliance. The standard deviation of the readings shall be less than 
1.5 dB.

[[Page 70687]]

    (10) The railroad shall maintain, at a location of its choice, 
records sufficient to show the date, manner and result of locomotive 
horn testing conducted in compliance with this part.
    (d) This section does not apply to locomotives of rapid transit 
operations which are otherwise subject to this part.

Appendix B to Part 229--[Amended]

0
4. The entry for Sec.  229.129 ``Audible warning devices'' in appendix 
B to part 229 is revised to read as follows:

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       Violation
------------------------------------------------------------------------
 
                              * * * * * * *
229.129 Audible warning device:
    (a) Prescribed sound levels.........          $2,500          $5,000
        Arrangement of device...........           2,500           5,000
    (b) (1), (ii) Testing...............           2,500           5,000
    (c) Test procedures.................           2,500           5,000
(c)(10) Records of tests................           2,500           5,000
 
                              * * * * * * *
------------------------------------------------------------------------


    Issued in Washington, DC, on December 5, 2003.
Allan Rutter,
Administrator.
[FR Doc. 03-30606 Filed 12-17-03; 8:45 am]
BILLING CODE 4910-06-P