[Federal Register Volume 70, Number 80 (Wednesday, April 27, 2005)]
[Rules and Regulations]
[Pages 21844-21920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8285]



[[Page 21843]]

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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; Final Rule

  Federal Register / Vol. 70, No. 80 / Wednesday, April 27, 2005 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 222 and 229

[Docket No. FRA-1999-6439, Notice No. 16]
RIN 2130-AA71


Use of Locomotive Horns at Highway-Rail Grade Crossings

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

ACTION: Final rule.

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SUMMARY: On December 18, 2003, FRA published an interim final rule that 
required that the locomotive horn be sounded while trains approach and 
enter public highway-rail grade crossings. The interim final rule 
contained 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 locomotive horn. Communities that qualify for this exception may 
create ``quiet zones'' within which locomotive horns would not be 
routinely sounded. The final rule issued today amends certain 
provisions of the interim final rule to facilitate the development of 
quiet zones, while balancing the needs of railroads, States and local 
communities.

DATES: The effective date is June 24, 2005. However, public authorities 
may begin to provide quiet zone-related documentation to FRA and other 
parties 30 days after April 27, 2005. This final rule supercedes the 
interim final rule, which was published on December 18, 2003. 
Therefore, the interim final rule will not take effect.

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

SUPPLEMENTARY INFORMATION:

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 under 49 CFR 1.49) to 
issue regulations that require the use of locomotive horns at public 
grade crossings, but gives the Secretary 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 
comment period on May 26, 2000, approximately 3,000 comments had been 
filed with this agency regarding the NPRM and the 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.
    Due to the substantial and wide-ranging public interest in the 
NPRM, FRA conducted a series of public hearings throughout the United 
States in which local citizens, local and State officials, Congressmen, 
and Senators provided testimony. Twelve hearings were held (Washington, 
DC; Fort Lauderdale, Florida; Pendleton, Oregon; San Bernadino, 
California; Chicago, Illinois (four hearings were held in the greater 
Chicago area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; 
and Madison, Wisconsin) at which more than 350 people testified.
    On December 18, 2003, FRA published an Interim Final Rule in the 
Federal Register (68 FR 70586). Even though FRA could have proceeded 
directly to the final rule stage, FRA chose to issue an interim final 
rule in order to give the public an opportunity to comment on changes 
that had been made to the rule. FRA also held a public hearing in 
Washington, DC on February 4, 2004. By the close of the extended 
comment period, over 1,400 comments had been filed with the agency 
regarding the Interim Final Rule. As is FRA's practice, FRA held the 
public docket open for late-filed comments and considered them to the 
extent possible. In order to avoid imposing inconsistent regulatory 
standards for quiet zone creation and establishment, FRA extended the 
effective date of the Interim Final Rule on November 22, 2004 (69 FR 
67858) and on March 18, 2005 (70 FR 13117) so that the Interim Final 
Rule would not take effect before the Final Rule was issued.

2. Statutory Mandate

    On November 2, 1994, Congress passed Public Law 103-440 (``Act'') 
which added section 20153 to title 49 of the United States Code 
(``title 49''). Subsections (I) and (j) were added on October 9, 1996 
when section 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 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 the 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 a railroad in order to 
be excepted from the requirement of this section.

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    (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.
    (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 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.''

    This final rule complies with the statutory mandate contained 
within section 20153 of title 49. The final rule retains the locomotive 
horn sounding requirement for trains that approach and enter public 
highway-rail grade crossings. (See rule Sec.  222.21.) However, the 
rule contains exceptions for certain categories of rail operations and 
highway-rail grade crossings, in accordance with 49 U.S.C. 20153(c)(1). 
Section 222.33 of the rule provides that a railroad operating over a 
public highway-rail grade crossing may, at its discretion, choose not 
to sound the locomotive horn if the locomotive speed is 15 miles per 
hour or less and the train crew or appropriately equipped flaggers 
provide warning to motorists. FRA has determined that these limited 
types of rail operations do not present a significant risk of loss of 
life or serious personal injury. The rule also contains an exception 
for highway-rail grade crossing corridors that are equipped with SSMs 
at each public highway-rail grade crossing, in accordance with 49 
U.S.C. 20143(c).
    Highway-rail grade crossing corridors that have a Quiet Zone Risk 
Index at or below the Nationwide Significant Risk Threshold or the Risk 
Index With Horns have been deemed, by the Administrator, to constitute 
a category of highway-rail grade crossings that do not present a 
significant risk with respect to loss of life or serious personal 
injury or that fully compensate for the absence of the warning provided 
by the locomotive horn. Therefore, communities with grade crossing 
corridors that meet either of these standards may silence the 
locomotive horn within the crossing corridor, if all other applicable 
quiet zone requirements have been met. (See Sec.  222.39.)
    Section 20153(i) of title 49 requires FRA 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''. FRA 
has complied with this requirement in several ways. The rule allows 
Pre-Rule Quiet Zone communities to continue to silence the locomotive 
horn, without any additional safety improvements, if the Quiet Zone 
Risk Index is at, or below, two times the Nationwide Significant Risk 
Threshold and there have not been any relevant collisions within the 
quiet zone during the five years preceding April 27, 2005. (See Sec.  
222.41.) It should also be noted that Pre-Rule Quiet Zone communities 
can continue to silence the locomotive horn, without any additional 
safety improvements, if SSMs have been implemented at every public 
grade crossing within the quiet zone or if the Quiet Zone Risk Index is 
at, or below, the Nationwide Significant Risk Threshold.) Additionally, 
the rule allows Pre-Rule Quiet Zone communities to take additional time 
(up to eight years from the effective date of the interim final rule) 
within which to implement safety improvements that will bring them into 
compliance with the requirements of the rule. This ``grace period'' has 
been included in the rule in order to comply with 49 U.S.C. 
20153(i)(2), which requires FRA to provide ``a reasonable amount of 
time for [pre-existing whistle ban] communities to install SSMs''.
    Section 20153(d) of title 49 states that ``* * * 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.'' Therefore, Sec.  222.15, 
which governs the process for obtaining a waiver from the requirements 
of the rule, requires joint filing of waiver petitions by the railroad 
and public authority.
    Section 222.55 addresses the manner in which new SSMs and ASMs are 
demonstrated and approved for use. Paragraph (c) of this section, which 
reflects the requirements contained within 49 U.S.C. 20153(e), 
specifically provides that the Associate Administrator may order 
railroad carriers operating over a crossing or crossings to temporarily 
cease sounding the locomotive horn at the crossing(s) to demonstrate 
proposed new SSMs and ASMs that have been subject to prior testing and 
evaluation.
    Section 20153(f) of title 49 explicitly gives discretion to the 
Secretary as to whether private highway-rail grade crossings, 
pedestrian crossings, and crossings utilized primarily by nonmotorized 
and other special vehicles should be subject this regulation. FRA has 
decided to refrain from exercising

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jurisdiction over crossings utilized primarily by nonmotorized and 
other special vehicles in this final rule. FRA has, however, exercised 
its jurisdiction, in a limited manner, over private grade and 
pedestrian crossings. Locomotive horn use at private grade and 
pedestrian crossings will be subject to the requirements of this rule, 
if the private grade or pedestrian crossing is located within a quiet 
zone. Sections 222.25 and 222.27 address the specific requirements that 
pertain to private grade and pedestrian crossings within quiet zones.
    Section 222.7 contains a concise statement of the rule's impact 
with respect to 49 U.S.C. 20106 (national uniformity of regulation). 
This statement of the rule's effect on State and local law, which was 
required by 49 U.S.C. 20153(h), provides that the rule, when effective, 
will preempt most State and local laws that govern locomotive horn use 
at public highway-rail grade crossings. However, as stated in section 
222.7(b), the rule will not preempt State and local laws governing 
locomotive horn use at Chicago Region highway-rail grade crossings 
where railroads were excused from sounding the locomotive horn by the 
Illinois Commerce Commission, and where railroads did not sound the 
horn, as of December 18, 2003. In addition, State and local laws that 
govern routine locomotive horn use at private grade and pedestrian 
crossings outside quiet zones will not be preempted.
    Lastly, this rule complies with the statutory one-year delay 
requirement. Section 20153(j) of title 49 prohibits any regulations 
issued under its authority from becoming effective before the 365th day 
following the date of publication of the final rule. On December 18, 
2003, FRA published the interim final rule on the use of locomotive 
horn at highway-rail grade crossings. Because the interim final rule 
had the same force and effect as a final rule, FRA delayed the 
effective date of the interim final rule for one year, in order to 
comply with 49 U.S.C. 20153(j) and to give public authorities 
sufficient time to prepare for quiet zone implementation before the 
rule's locomotive horn sounding requirements took effect. After 
reviewing approximately 1,400 comments on the interim final rule, FRA 
is now issuing a final rule that grants additional relief to States and 
local communities. The final rule will become effective on June 24, 
2005 because the one-year statutory delay requirement was satisfied by 
delaying the effective date of the interim final rule.

3. Liability

    FRA received a number of comments on the liability implications of 
the rule. The majority of these comments were concerned that the 
interim final rule would shift liability onto the public authority that 
creates a quiet zone. For example, Steve Stricker, Village 
Administrator for Burr Ridge, Illinois and Chairperson of the DuPage 
Mayors and Managers Conference, expressed concern at a February 2004 
meeting about the potential municipal liability that may result from 
quiet zone creation. Mr. Stricker urged FRA to include a clear 
statement in the final rule that it will not change any federal or 
state laws or court decisions on municipal liability. Similar 
sentiments were expressed by John Kravcik, President of Western 
Springs, Illinois. The Village of Cornwall-on-Hudson, New York 
submitted comments expressing concern that by not addressing the 
liability of local communities that create quiet zones, the interim 
final rule shifted traditional railroad liability away from the party 
profiting from the use of the tracks and onto local governments. The 
City of Sacramento, California submitted comments suggesting that the 
rule be revised to state that quiet zone establishment cannot be used 
as the basis of a claim against a local government, provided the local 
government established the quiet zone in accordance with the provisions 
of the rule. Noting that the interim final rule exempts railroads from 
liability, the Village of Hinsdale, Illinois recommended that the final 
rule provide a similar exemption for public authorities or, in the 
alternative, state that the existing liability structure will not 
change. Along the same lines, Brian Krajewski, Mayor of Downers Grove, 
Illinois asserted that the rule needs to acknowledge in no uncertain 
terms that it is not intended to alter, in any way, the liabilities of 
any party covered by it. The City of Placentia, California submitted 
comments suggesting that the rule be revised to specify that it is 
intended to provide protection from liability for silencing the train 
horn to public authorities, as well as the railroad and train crew.
    This final rule clearly covers the subject matter of locomotive 
horn sounding at public grade crossings, as well as locomotive horn 
sounding at private and pedestrian grade crossings that are located 
within a quiet zone. Therefore, with the exception of State and local 
laws governing locomotive horn sounding at the highway-rail grade 
crossings described in section 222.3(c), this final rule preempts all 
State and local laws that govern the sounding of locomotive horns at 
grade crossings located within duly established quiet zones. As stated 
in the interim final rule, FRA does not expect that future lawsuits 
will not arise over accidents within quiet zones, as such lawsuits may 
be due to factors other than the lack of an audible warning. However, 
this final rule is intended to remove failure to sound the horn, 
failure to require horn sounding, and prohibitions on sounding of the 
horn, at grade crossings located within duly established quiet zones, 
as potential causes of action. 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 locomotive horn sounding at highway-rail 
grade crossings, as well as at private grade and pedestrian crossings 
that are located within a quiet zone. As a result, a federal standard 
of care defined by this rule will replace the standard of care that 
would otherwise apply at highway-rail grade crossings in each State, 
with the exception of those highway-rail grade crossings described in 
section 222.3(c). (Since the rule does not apply to the highway-rail 
grade crossings described in section 222.3(c), the standard of care 
required under State law will continue to apply at those crossings.) 
Local governments and railroads will benefit equally from the federal 
standard of care.
    States also have the ability to assert sovereign immunity on behalf 
of local units of government within their borders, and many states have 
done so. It is not appropriate for the Federal government to 
unnecessarily disturb decisions States have made about whether local 
governments in their State should be immune from tort liability and FRA 
will not do so here.
    FRA also received comments from local communities who expressed 
concern that railroads would require them to enter into indemnification 
agreements, as a prerequisite to the installation of additional safety 
measures at grade crossings that are located within a proposed quiet 
zone. The City of Arlington, Texas submitted comments stating that 
railroads may require municipalities to enter into indemnification 
agreements, if the rule is not revised to address municipal liability 
for quiet zone establishment. Therefore, the City of Arlington, Texas 
suggested that the rule be revised to prohibit railroads from requiring 
indemnification and hold harmless agreements as a condition of quiet 
zone creation. The DuPage Mayors and

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Managers Conference also submitted comments recommending that the rule 
be revised to prohibit railroads from requiring a transfer of liability 
as a ``quid pro quo'' for safety improvement installation. The Village 
of Wilmette, Illinois submitted comments asserting that, with respect 
to SSMs, the rail carriers may require municipalities to agree to 
whatever terms they demand concerning liability. The West Central 
Municipal Conference and the Chicago Area Transportation Study 
submitted comments recommending that the final rule include language 
that prohibits railroads from requiring waivers of municipal immunity 
as part of any agreement, contract, or lease between railroads and 
municipalities.
    On the other hand, FRA received comments from the railroad industry 
suggesting that the rule be revised to require public authorities to 
enter into indemnification agreements with railroads. The Fort Worth & 
Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho 
Northern & Pacific Railroad submitted comments recommending that the 
final rule require local communities to assume any increased liability 
that would result from quiet zone creation. The Fort Worth & Western 
Railroad submitted additional comments asserting that public 
authorities that establish a quiet zone should provide funding for any 
increase in railroad liability insurance premiums that may result from 
railroad operations within quiet zones. Caltrain submitted comments 
asserting that the sponsoring public authority should be required to 
indemnify railroads and hold them harmless from claims that arise 
within the quiet zone.
    FRA has refrained from adding language to the final rule that would 
expressly prohibit the railroad industry from requiring public 
authorities to enter into indemnification and hold harmless agreements, 
as a condition of obtaining railroad consent to the installation of 
grade crossing safety improvements within proposed quiet zones. The 
provisions contained within, as well as the overall legality of, 
indemnification and hold harmless agreements between railroads and 
local communities are largely governed by State contract law and FRA 
has been given no general charge to adjust these interests.
    In fact, FRA is not persuaded that railroads will, in most cases, 
enjoy significant power that could be used inappropriately in this 
context. State and local governments retain authority to determine 
appropriate traffic control devices and roadway improvements at 
highway-rail grade crossings. In a number of cases, State agencies will 
be able to order installation of automated warning systems, such as 
four-quadrant gates, even on county and local roadways. Use of 
channelization techniques may require little or no cooperation from the 
railroad and, in many cases, photo enforcement can likely be 
accomplished using existing interconnections between crossing warning 
systems and traffic signals.
    Further, in this context, railroads often can provide a unique 
perspective related to crossing improvements. For particular 
applications, railroads may be able to point out important public and 
private benefits from employing basic traffic channelization in lieu of 
more technically complex and maintenance-hungry four-quadrant gate 
systems.

4. Partial Quiet Zones

    Commenters requested clarification of the rule's effect on 
crossings at which horns are silenced for a portion of the day 
(typically during nighttime hours). The final rule thus addresses the 
continuation and establishment of such ``partial quiet zones.''
    Under the final rule, communities with Pre-Rule Partial Quiet Zones 
(see Sec.  222.9 for the complete definition of ``Pre-Rule Partial 
Quiet Zones'') must comply with Pre-Rule Quiet Zone standards, in order 
to continue existing restrictions on the use of the locomotive horn. 
However, Pre-Rule Partial Quiet Zones that do not qualify for automatic 
approval under Sec.  222.41(a) will be given additional time within 
which to come into compliance, provided the public authority complies 
with the requirements set forth in Sec. Sec.  222.41(b) and 222.43. 
Communities that wish to convert their pre-existing partial whistle 
bans into 24-hour quiet zones will, however, be required to comply with 
New Quiet Zone standards. (Please refer to the Section-by-Section 
Analysis of Sec.  222.41 for further information about Pre-Rule Partial 
Quiet Zone requirements.)
    Communities that had partial whistle bans in place as of December 
18, 2003 (the interim final rule publication date), but after October 
9, 1996, may qualify for Intermediate Partial Quiet Zone status. 
(Please refer to Sec.  222.9 for a definition of Intermediate Partial 
Quiet Zones.) Intermediate Partial Quiet Zones may continue existing 
restrictions on the use of the locomotive horn for one year. However, 
Intermediate Partial Quiet Zones must comply with New Quiet Zone 
standards by the end of the one-year grace period, in order to prevent 
the resumption of routine locomotive horn sounding at public grade 
crossings within the former quiet zone. (Please refer to the Section-
by-Section Analysis of Sec.  222.42 for further information about 
Intermediate Partial Quiet Zone requirements.)
    Communities that wish to create a New Partial Quiet Zone will be 
required to comply with New Quiet Zone standards. Unless a waiver is 
granted, all New Partial Quiet Zones must restrict locomotive horn 
sounding between the hours of 10 p.m. and 7 a.m. This requirement will 
ensure consistent application of locomotive horn restrictions within 
New Partial Quiet Zones, which should minimize confusion for the 
locomotive engineer.

5. Rule Changes

    This brief overview of the changes that have been made in the Final 
Rule is provided for the reader's convenience. Because this section 
merely provides an overview, it should not be relied upon for a 
comprehensive discussion of all final rule changes. Indeed, this full 
document should be read together with the previous documents issued in 
the proceeding. Inasmuch as the Interim Final Rule and Notice of 
Proposed Rulemaking contained extensive discussion of both the 
background of the issues involved in this rulemaking and the rationale 
behind decisions relating to those issues, FRA emphasizes that this 
Final Rule should be read in conjunction with the Interim Final Rule 
and Notice of Proposed Rulemaking. Unless the positions and rationale 
expressed in those documents have explicitly changed in the subsequent 
rulemaking documents, the reader should understand that those positions 
and rationale remain those of FRA.

Summary of Changes to the Interim Final Rule

     The final rule clarifies FRA's position that it is not 
intended to preempt administrative procedures required under State law 
regarding grade crossing warning system modifications and 
installations. (See Sec.  222.7 for more information.)
     Surface-mounted tubular delineators have been removed from 
the list of approved Supplementary Safety Measures (SSMs). Tubular 
delineators may only be used as SSMs under the final rule if they have 
been affixed to raised longitudinal channelizers. (See appendix A for 
more information.)
     The final rule provides a one-year grace period to comply 
with New Quiet Zone standards for communities with pre-existing whistle 
bans that were in effect on December 18, 2003, but were adopted after 
October 9, 1996. These communities are considered

[[Page 21848]]

``Intermediate'' Quiet Zones under the final rule. (See Sec.  222.42 
for more information.)
     The final rule addresses quiet zones that prohibit 
sounding of horns during a portion of the day. These are referred to as 
Partial Quiet Zones.
     The final rule requires diagnostic team reviews of 
pedestrian crossings that are located within proposed New Quiet Zones 
and New Partial Quiet Zones. (See Sec.  222.27 for more information.)
     The final rule requires quiet zone communities to retain 
automatic bells at public highway-rail grade crossings that are subject 
to pedestrian traffic. (See Sec.  222.35(d) for more information.)
     The definition of ``public authority'' has been revised 
under the final rule to include only those public entities who are 
responsible for traffic control and law enforcement at public highway-
rail grade crossings. (See Sec.  222.9 for more information.)
     The final rule extends ``recognized State agency'' status 
to State agencies who wish to participate in the quiet zone development 
process. (See Sec.  222.17 for more information.)
     The final rule contains a 60-day comment period on quiet 
zone applications. (See Sec.  222.39(b) for more information.)
     The final rule requires public authorities to provide 
notification of their intent to create a New Quiet Zone. During the 60-
day period after the Notice of Intent is mailed, comments may be 
submitted to the public authority. (See Sec.  222.43(b) for more 
information.)
     The final rule provides quiet zone risk reduction credit 
for certain pre-existing SSMs. (See appendix A for more information.)
     The final rule provides quiet zone risk reduction credit 
for pre-existing modified SSMs. (See appendix B for more information.)
     The final rule contains a new category of ASMs that 
addresses engineering improvements other than modified SSMs. (See 
appendix B for more information.)
     The minimum sound level for wayside horns has been reduced 
to 92 dB(A). (See appendix E for more information.)

6. E.O. 15 Status

    Emergency Order 15, issued in 1991, requires the Florida East Coast 
Railway Company 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 final rule. FRA recognizes that 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.
    Therefore, the provisions of this final rule will apply to all 
grade crossings within the State of Florida when E.O. 15 is rescinded. 
FRA conducted a public conference on April 15, 2005, and solicited 
comments on the appropriate excess risk estimate that should be applied 
when routine use of the locomotive horn is prohibited at highway-rail 
grade crossings that are currently subject to E.O. 15. FRA intends to 
amend the final rule to specifically address this issue, after 
considering comments and testimony provided at the public conference 
from interested parties.

7. Chicago Regional Issues

    The six-county Chicago Region is host to the largest rail terminal 
in the United States, and it accounts for the biggest concentration of 
``whistle bans'' and associated casualties in the nation. Chicago 
communities and industries have grown up with, and around this 
extensive rail network, while the entire Chicago metropolitan area has 
benefitted from an extensive commuter rail system established by the 
State and funded by the State, region, and Federal government. As 
stated in the interim final rule, the unique aspects of locomotive horn 
sounding at public grade crossings within the Chicago Region have 
contributed to the need for different treatment for those crossings 
that have been subject to pre-existing whistle bans.

Excess Risk Estimate for Gated Crossings Subject to Existing Whistle 
Bans in the Chicago Region

    In the interim final rule, FRA explained at some length why the 
agency had decided to apply an excess risk estimate of 17.3% to Chicago 
Region gated crossings. We noted that Chicago Region no-whistle gated 
crossings have a statistical profile that is distinctly different from 
gated whistle ban crossings in the rest of the Nation. We explained 
that analysis conducted for FRA by a statistical firm, Westat, Inc., 
arrived at the 17.3% excess risk estimate for gated crossings in 
contrast to a national excess risk figure of 66.8%, but that the 
estimate for the Chicago Region was not statistically significant at 
conventional levels. We further noted qualitative reasons why the lower 
estimate appeared to make sense (e.g., discretionary selection by 
railroads of crossings subject to no-whistle policies, high train 
counts supporting strong motorist expectations concerning the presence 
of a train, Metra's emphasis on locomotive conspicuity measures). 
Commenters on the interim final rule have continued to question FRA's 
position on this issue. Commenters outside the Chicago area seek the 
benefit of their own regional estimates (which are not achievable given 
the smaller number of relatively homogenous crossings available for 
analysis), and commenters from Chicago claim that the lower estimate is 
too high (and should be set at 0%, requiring no safety offset for loss 
of the train horn as an auditory warning to the motorist).
    In response to the IFR, the Village of Arlington Heights, City of 
Chicago, Northwest Municipal Conference, Metropolitan Mayors Caucus, 
and the Chicago Area Transportation Study (``Chicago Region 
commenters'') submitted a study by TransInfo LLC and the University of 
Illinois at Chicago (``TransInfo-UIC study''), which concluded that `` 
* * * there is no reason to believe that in northeastern Illinois, 
banning the sounding of horns increases the chance of collisions at 
gated highway-rail crossings.'' The TransInfo-UIC study noted that the 
17.3% excess risk estimate was not statistically significant at 
conventional levels. Given this lack of significance, the TransInfo-UIC 
study asserted `` * * * one must then accept the hypothesis of no 
difference in the effects of a ban on horn soundings * * * '' Using the 
same data set as FRA's contractor, Westat, Inc., TransInfo LLC and the 
University of Illinois at Chicago developed alternative statistical 
models. Their seemingly preferred model produced a -26.4% effectiveness 
rate (compared to +17.3% from the Westat model) that was statistically 
significant at the conventional 5% level. TransInfo-UIC also raised 
questions about possible collinearity in the Westat model.
    FRA provided the TransInfo/UIC study to its contractor, Westat, for 
analysis. While acknowledging that its estimate lacks statistical 
significance at conventional levels (a point made explicitly by Westat 
in reporting its 2003 findings), Westat indicated that this does not 
mean that one must accept the hypothesis of no difference in collision 
rates between horn and no-horn crossings. Westat noted that ``[i]n a 
statistical study, absence of evidence

[[Page 21849]]

against a hypothesis is not conclusive evidence for the hypothesis. * * 
* The hypothesis may be true, or false, in the absence of evidence 
against it, we simply do not know.'' After reviewing the TransInfo-UIC 
seemingly preferred model, Westat found that it has biased residuals 
and that it systematically underpredicts collisions for the Chicago 
area ban crossings.
    In 2004, Westat developed a model that tested the sensitivity of 
the Westat 2003 model which was used to develop the interim final rule. 
This 2004 model supports earlier findings and the FRA conclusion that 
collision rates at gated crossings where train horns are not routinely 
sounded in the Chicago area are higher than at gated crossings in the 
rest of the nation (except Florida) where horns are routinely sounded.
    Westat compared the TransInfo-UIC, Westat 2003, and Westat 2004 
models and found that the two Westat models are superior for estimating 
the effect of train horns at gated crossings in Chicago. Both Westat 
models fit the data better and avoid the biased residuals found in the 
TransInfo-UIC model. Since there is some evidence of numerical 
instability in the Westat 2004 model, Westat prefers the Westat 2003 
model. Westat also tested the Westat 2003 model for collinearity and 
found that (1) since approximately 76 percent of the effect of the no-
horn parameter was independent of the other model parameters, there was 
no confirmation of collinearity, (2) although there was evidence of 
some possible collinearity among some of the parameters, there was no 
such evidence pertaining to the no-horn parameter, and (3) the test 
statistic for assessing an adverse effect of collinearity for the no-
horn parameter was well below the threshold for collinearity, therefore 
collinearity did not pose a serious threat to estimated effectiveness 
of train horns. As a result, Westat concluded that its 2003 model 
provided the best representation of excess risk among the models 
applied. FRA analysts agreed that the TransInfo-UIC model did not 
perform suitably to explain crossing risk in the region. Westat further 
concluded that the sample size for the Chicago area is not large enough 
to derive consistent statistical results across different statistical 
models.
    Detailed comments by Chicago jurisdictions further questioned the 
interim final rule's statistical basis. For example, the Metropolitan 
Mayors Caucus, acting in concert with the City of Chicago and the 
Chicago Area Transportation Study (CATS), stated that, ``The FRA's data 
quality and model use is inappropriate for setting policy.'' The Mayors 
Caucus filing (FRA-1999-6439-3770) called attention to direction 
provided in February 2002 by the Office of Management and Budget to 
develop and implement data quality standards. The commenters 
specifically questioned the quality of the National Highway-Rail 
Crossing Inventory, which is maintained by FRA on behalf of States, 
railroads and other users. The Inventory was used to generate risk 
estimates for use in the Westat and TransInfo-UIC studies.\1\
---------------------------------------------------------------------------

    \1\ This criticism was repeated in an October 5, 2004, letter 
from the CATS Council of Mayors Executive Committee to the 
Department of Transportation's Inspector General and in a January 
26, 2005, letter from eleven Members of Congress from Illinois to 
the Director, Office of Management and Budget. These documents are 
filed in the public docket of this proceeding as Document nos. FRA-
1999-6439-3918 and FRA-1999-6439-3922, respectively.
---------------------------------------------------------------------------

    FRA recognizes that, in a voluntarily-populated database that 
provides information for over 149,000 public at-grade crossings, there 
are individual errors. For instance, in conducting additional review of 
Chicago Region crossings equipped with flashing lights only, FRA 
recently determined that several of them have been upgraded by the 
addition of gates. State authorities and railroads apparently had not 
reported the improvements to FRA's contractor. This is the typical type 
of problem encountered when a significant minority of records are 
simply out of date.
    The commenters suggest that FRA ``correct the data'' before 
undertaking further analysis. FRA meets regularly with railroads and 
with State agencies responsible for highway-rail crossing safety. FRA 
strongly encourages submissions from these parties, which typically 
have more recent data available for their own purposes. The U.S. 
Department of Transportation has four times sent legislation to the 
Congress that would have made regular updating of the inventory 
mandatory on both the State agencies (which are generally recipients of 
substantial Federal-aid highway funds) and the railroads. The first 
such legislation was transmitted on July 26, 1999. The Congress has not 
taken final action on this legislation, although a virtually identical 
provision was included in S. 1402, the Federal Railroad Safety 
Improvement Act, which passed the Senate on November 25, 2003, but 
failed of final passage with the adjournment of the 108th Congress in 
December of 2004. Short of mandatory reporting, FRA has no practical 
means of re-creating the national inventory in a manner acceptable to 
Chicago Region commenters in this proceeding.
    FRA is required by law to issue a final rule requiring use of the 
train horn. The agency is not required to provide exceptions to use of 
the train horn, except to the extent that it is useful to take into 
consideration the interests of communities with pre-existing bans. 
Nevertheless, FRA has aggressively sought from the beginning of this 
effort--including before enactment of any requirement to consider the 
interests of pre-rule ban communities--to craft suitable exceptions. 
Providing for quiet zones is a goal embraced by virtually all 
commenters in this proceeding, and in order to do it fairly and 
effectively, FRA must utilize the best data available.
    FRA has proceeded with development of this rulemaking with the 
belief, founded on daily use of Inventory information for a variety of 
purposes, that while some of the data are older than would be desired, 
there are not patterns in the inventory that would create biased 
results as between train horn crossings and whistle ban crossings or in 
any regional analysis. In making their data quality argument, the 
Chicago Region commenters do not allege specific bias or suggest a 
reason why there could be such a bias. If FRA cannot rely upon the 
Inventory data for purposes of this rulemaking, then FRA would lack a 
rational basis for permitting any exceptions to the statutory command 
that train horns sound at highway-rail grade crossings. Nevertheless, 
FRA agrees that, when dealing with a comparative safety performance 
difference as small as the one at issue for gated crossings in the 
Chicago Region, and given the poor results for statistical significance 
and model fit for the various approaches, it is wise to explore whether 
there may be any differences in the characteristics of the Inventory 
data that might inadvertently introduce bias into the analysis.
    FRA had noted during the 10-year pendency of this rulemaking that 
much of the data for the Chicago area and the balance of Illinois was 
badly out of date. FRA encouraged the State to update the information, 
and the State did make a major effort to update average annual daily 
traffic in 2003. Because of the study period (1997 through 2001) and 
the methodology used for retrieval of inventory information, however, 
most of this updated information was not utilized in the Westat or 
Transinfo-UIC analysis (i.e., the updates occurred late in the study 
period or after its close). (The updated information has been used in 
generating corridor risk estimates and is accessed by the quiet zone 
web calculator.) FRA concurs that it is

[[Page 21850]]

prudent to inquire further into whether known data quality issues--
which themselves cannot be effectively addressed by FRA without 
cooperation from other parties--have the potential to adversely affect 
the Chicago Region analysis.
    Therefore, FRA will arrange for an independent peer review of its 
conclusion on this issue before issuing an amendment to this final rule 
which will address Chicago Region crossings. FRA will respond to the 
``peer review report'' and place a copy of its response in the public 
docket.
    Pending completion of this Chicago Region re-analysis, FRA is 
excepting existing Chicago Region no whistle crossings from the 
requirement to sound the train horn. It is FRA's intention to leave 
those crossings--and those crossings alone--subject to existing 
Illinois State Law pending further rulemaking. Existing no-whistle 
excusals will stand, and railroads will remain free to sound the horn 
where they elect to do so (as is the case today).
    In doing so, FRA notes that the most active challenge made by the 
Chicago authorities has to do with the 17.3% excess risk estimate for 
gated crossings. FRA pointed out in the interim final rule that there 
are an insufficient number of non-gated crossings in the region to 
calculate a special excess risk rate for them. Nor, in the case of many 
of the non-gated crossings, would all of the same considerations 
presented by Chicago Region commenters apply (e.g., most of the non-
gated crossings are on tracks used by fewer trains, some are on lines 
exclusively used for freight service). Nevertheless, FRA is including 
those non-gated crossings in the temporary exclusion provided in this 
final rule. The following considerations support this approach:
    1. Some of the subject crossings are within logical pre-rule quiet 
zones comprised principally of gated crossings. It is not reasonable to 
ask public authorities to move forward with improvement of individual 
crossings outside the context of planning for the corridor. Nor would 
it in every case be cost effective, in comparison with a corridor 
approach, to do so.
    2. The total risk associated with these crossings is not high. 
There are fewer than 10 non-gated crossings that would fall in pre-rule 
quiet zones requiring some form of action to compensate for absence of 
the train horn (based on current risk indices and relevant accidents in 
the past 5 years). Several of these are on lines with moderate speeds 
or very modest annual average daily traffic and have individual risk 
indices below the NSRT. The Illinois Commerce Commission has been 
aggressive in adding gates at the higher-risk crossings over the past 
several years. There is no reason to believe that this will not 
continue.
    3. FRA expects to conclude further data analysis regarding the 
Chicago Region gated crossings as soon as possible and to conclude any 
necessary final rule amendment as quickly thereafter as feasible, given 
the need for review and clearance of the amendment. Pre-rule quiet 
zones are expected to be brought in full conformity with this final 
rule within 5 to 8 years, depending upon actions taken by the State to 
support local communities. The further delay associated with 
temporarily excepting these non-gated crossings from the requirement to 
sound the train horn will not be significant.
    FRA does not perceive any reason to conduct an entire new series of 
analyses for the balance of the Nation. Westat's results for the Nation 
were statistically significant with good model fit. Given that whistle 
bans outside of the Chicago Region involve inventory records from 24 
States, FRA cannot conceive any condition under which the Inventory 
records for whistle ban crossings would be of materially different 
quality (currency and accuracy) than for train horn crossings.
    FRA calls attention to the fact that two important sets of data 
have not been effectively challenged as to their quality: Data 
regarding highway-rail crossing incidents (which is filed under penalty 
of law); and the identity of Chicago Region crossings (which has been 
meticulously studied and agreed upon by the Illinois Commerce 
Commission and FRA).
    FRA further notes that there is likely no transportation safety 
database that is free of imperfections. Use of imperfect data is 
greatly to be preferred over disregarding of data. But it is important 
not to rely excessively on data whose characteristics are poorly 
understood. Chicago Region commenters in this rulemaking have 
challenged FRA to take another look at the data, and FRA will do so.
Other Regional Claims
    FRA also received comments from communities in Massachusetts and 
Maryland requesting differential treatment under the final rule, based 
on the characteristics of rail operations in the Northeast. Ledyard 
McFadden of Beverly Farms, Massachusetts accused FRA of discriminatory 
implementation of the rule, given the ``specific exception'' accorded 
to the Chicago Region based on extensive and expensive statistical 
analysis provided by that region. Noting that the Chicago Region was 
afforded ``a much lower effectiveness rate than the rest of the 
nation,'' the City of Cumberland, Maryland asserted that the 
discrepancy should be resolved using accurate data or the rest of the 
nation should also be accorded the lower excess risk estimate. 
Massachusetts Congressman John Tierney submitted comments asserting 
that a number of his constituents ``perceive discriminatory 
implementation of the rule'' based on the rule's specific exception for 
the greater Chicago area. Questioning why similar analysis was not 
performed in the Northeast, particularly along the commuter-only rail 
lines of Boston's North Shore, Congressman Tierney asserted that the 
rule should not be implemented until adequate regional analyses have 
been completed.
    FRA is not able to provide for separate regional estimates of 
excess risk. Statistically, there are sound reasons for assigning a 
horn effectiveness rate to gated crossings in the Chicago area that is 
lower than that for gated crossings in the rest of the country. Westat 
estimated an effectiveness rate for gated crossings for the Chicago 
Region of 17.3% and an effectiveness rate for gated crossings in the 
rest of the nation (excluding Florida) of 66.8%. Associated with these 
point estimates are 95% confidence intervals.\2\ Neither point estimate 
is contained in the 95% confidence interval of the other. Based on 
this, Westat noted ``the ban effect in the Chicago area is different 
from the ban effect in the rest of the nation.'' Had the point estimate 
for the Chicago Region been within the 95% confidence interval for the 
rest of the nation (excluding Florida), there would have been some 
reason to believe that the ban effect in the Chicago Region was not 
necessarily different from that in the rest of the nation (excluding 
Florida).
---------------------------------------------------------------------------

    \2\ A 95% confidence interval for an estimate provides a range 
over which we are highly confident the true value exists. If we 
could sample the Chicago area and the rest of the nation many times 
and compute corresponding confidence intervals, the true value would 
be between the computed confidence intervals about 95% of the time.
---------------------------------------------------------------------------

    Westat performed a statistical analysis at FRA's direction on no-
whistle crossings in Wisconsin and the Chicago Region. These regions 
were selected for regional statistical analysis because (1) commenters 
argued that safety performance at whistle ban crossings is different 
than in the nation at large, (2) the statute provides a basis for 
addressing their concerns, and (3) they contained a sufficiently large 
number of no-whistle crossings that might support

[[Page 21851]]

comparison with national crossing data. Given the relatively low number 
of whistle ban crossings in Northeast Massachusetts and Maryland, FRA 
was not able to perform a regional statistical analysis of those 
crossings that would yield reliable conclusions.
    It is unusual for FRA to tailor a rule to the characteristics of 
one or more regions of the country because of the statutory command 
that ``[l]aws, regulations, and orders related to railroad safety * * * 
shall be nationally uniform to the extent practicable.'' 49 U.S.C. 
20106. In this case, FRA is authorized by statute to treat communities 
with pre-existing quiet zones differently. Congress directed FRA, in 
issuing this rule, to ``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 * * * sounding of a locomotive horn at highway-rail grade 
crossings.'' 49 U.S.C. 20153(i)(1). FRA must, however, have a rational 
basis for doing so. As discussed above and elsewhere in this Final Rule 
and the Interim Final Rule, the Chicago region presented enough data 
points for FRA to rationally distinguish safety behavior at no-whistle 
highway-rail grade crossings in the Chicago region from those in the 
rest of the country. The record does not contain sufficient data for 
Northeast Massachusetts or Cumberland, Maryland to enable FRA to make 
similar rational distinctions for them. Nor have whistle bans in 
Massachusetts or Maryland been subject to discretionary selection 
(i.e., there is no reason to believe that relatively safer crossings 
were selected for inclusion in ban areas).
    If a court should conclude that FRA lacks a rational basis for 
treating the Chicago region differently than the rest of the nation, 
the Chicago region would then be required to meet the national 
standard. Such a ruling would not extend the benefit of the 17.3% 
excess risk estimate to any other region.
    FRA notes the possibility that the marginal effectiveness of the 
train horn might be smaller in a situation such as Northeast 
Massachusetts where the following conditions exist: Predominance of 
commuter rail service (scheduled service, shorter trains), moderate 
speed over crossings adjacent to stations, and absence of heavy freight 
service on the rail lines. However, the Massachusetts Bay 
Transportation Authority provides express, as well as local, service at 
a number of crossings proximate to station locations that present 
significant hazards. Although the small number of crossings and other 
data points makes it impractical to derive special estimates for this 
region, FRA remains open to dialogue regarding circumstances in 
individual communities in the context of waiver proceedings.
    This statutory exception (49 U.S.C. 20153(i)(1)) to the requirement 
for national uniformity may be seen as consistent with the policy 
behind the national uniformity requirement because, while it yields 
varying requirements for communities in different circumstances, the 
requirements for railroads are nationally uniform. The policy is aimed 
at facilitating transportation over the general system of railroad 
transportation by assuring that railroads face the same requirements 
nationwide--put another way, the railroad system cannot function 
efficiently if the rules for operation change across local or state 
jurisdictions. Railroads are required nationwide to sound the train 
horn at every highway-rail grade crossing except those in quiet zones. 
The standards for railroad operations remain the same nationwide 
without regard to regional variations in the standards local 
governments must meet in order to establish quiet zones.
    As noted in the interim final rule, FRA investigated a number of 
options in addressing Chicago area issues. (See section 14 of the 
preamble to the interim final rule, ``Chicago Regional Issues,'' 68 FR 
70611.) FRA noted then, and reiterates here that the 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 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.

Excess Risk Estimate for New Quiet Zones

    Other commenters from the Chicago Region assert that the 17.3% 
excess risk estimate attributed to gated crossings subject to whistle 
bans in the Chicago Region should be applied to all public grade 
crossings within the Chicago Region. Noting that gated crossings 
subject to whistle bans are often located on the same rail lines as 
other grade crossings not subject to existing whistle bans, the Town of 
Riverside, Illinois and the City of Elmhurst, Illinois asserted that it 
was illogical to suggest that motorists consciously exhibit riskier 
behavior at one gated crossing over another. The Village of Northbrook, 
Illinois asserted that differential treatment of public crossings 
implies that drivers need the audible cue at some crossings, but not at 
others, in order to achieve the same level of safety. However, drivers 
in northeastern Illinois regularly cross multiple crossings and are not 
cognizant of which crossings are subject to whistle bans and which are 
not. The Village of Buffalo Grove asserted that different standards 
should not apply to adjacent crossings along the same rail line, while 
George Pradel, Mayor of Naperville, Illinois asserted that there is no 
difference in motorist behavior at such crossings.
    FRA is not persuaded by the suggestion that the lower estimate of 
excess risk associated with gated no-whistle crossings in Chicago is 
applicable to other crossings. As FRA explained in the interim final 
rule, one of the most important explanatory factors supporting a 
reduced estimate of excess risk for gated no-whistle crossings in 
Chicago is discretionary selection. Railroads have determined that they 
should sound the horn at a clear majority of crossings in the region 
where the Illinois Commerce Commission excused use of the horn because 
of the risk that the railroads perceive at those crossings. Factors 
that drive such decisions may include accident history, reports of 
``near hits'' by train crews, poor crossing geometry, poor sight 
distances on one or more approach, absence of active law enforcement, 
and other factors. It is, of course, possible that the excess risk 
associated with silencing the train horn at other crossings in Chicago 
may be less than the national average due to a variety of factors. 
However, FRA has no principled basis for deriving such an estimate. FRA 
notes that Illinois authorities have not seen fit to impose mandatory 
train horn bans at these additional crossings, and FRA is unwilling to 
do so except on the basis required of all New Quiet Zones nationwide.

Chicago Region Proposed Alternate Crossing Safety Program

    The Village of Arlington Heights, City of Chicago, Northwest 
Municipal Conference, Metropolitan Mayors Caucus, and the Chicago Area

[[Page 21852]]

Transportation Study (``Chicago Region commenters'') submitted comments 
asserting that their whistle ban crossings should qualify for the 
statutory exception from the rule's locomotive horn sounding 
requirements found at 49 U.S.C. 20153(c)(1)(C). This exception can be 
applied by FRA to those categories of highway-rail grade crossings that 
do not present a significant risk with respect to loss of life or 
serious personal injury. In support of their assertion, the Chicago 
Region commenters submitted a study by TransInfo LLC and the University 
of Illinois at Chicago (``UIC''), which concluded that ``* * * based on 
FRA data, there is no reason to believe that in the Chicago Area 
banning the sounding of horns increases the chance of collisions at 
gated public highway-rail grade crossings.''
    In the alternative, the Chicago Region commenters submitted a 
Proposed Alternative Crossing Safety Program to FRA for consideration. 
Under this proposed program, FRA would delegate its authority over 
quiet zone development and implementation to ``an appropriate State 
agency with railroad safety oversight responsibilities.'' While FRA 
would monitor the effectiveness of the regional quiet zone program, the 
State agency would establish acceptable safety thresholds, designate 
quiet zone status, and enforce railroad compliance within quiet zones. 
For example, the Chicago Region would establish a safety threshold for 
quiet crossings of no more than three ``relevant'' collisions over a 
five-year period. If this threshold was ever exceeded at a quiet 
crossing, the State agency could immediately impose routine horn 
sounding at the crossing.
    As stated above, FRA provided the TransInfo/UIC study to its 
contractor, Westat, Inc., a nationally respected statistical research 
firm, for analysis. After reviewing the study, Westat concluded that 
the model used by TransInfo/UIC produced biased estimates. Westat also 
concluded that its original model, which estimated a 17.3% risk 
increase at whistle ban crossings in the Chicago Region, constituted 
the best estimate of excess risk available. Given this increase in 
risk, FRA has not, as of this date, applied the statutory exception to 
whistle ban crossings in the Chicago Region. However, FRA has excepted 
pre-rule no-whistle crossings in the Region from the requirement to 
sound the train horn pending further analysis.
    In addition, FRA has not adopted the Proposed Alternative Crossing 
Safety Program. FRA cannot delegate its statutory authority to 
prescribe requirements for quiet zone development and implementation in 
the wholesale manner recommended by the Chicago Region commenters. FRA 
also finds the proposed safety threshold of no more than three 
``relevant'' (as defined by the commenters) collisions over a five-year 
period to be inadequate, particularly in light of the fact that the 
Program would exclude collisions in which the driver intentionally 
drives around or under activated gates from the definition of 
``relevant collision.'' Aggressive motorist behavior is part of the 
risk that this rule seeks to counter. It is simply not the case that a 
motorist who would drive around or under a gate cannot be deterred. 
Absent suicidal behavior (suicides are not included in FRA safety 
data), motorists can often be persuaded by a warning that is urgent and 
clearly associated with the imminent arrival of the train at the 
crossing. To the extent that State policy overlooks this fact, it fails 
to address the full range of risk addressed by this rulemaking.
    Nonetheless, within the framework of a uniform national policy, 
State agencies can make substantial contributions to the successful 
implementation of quiet zones. In response to comments, FRA has added a 
new provision to the final rule that provides a greater role for State 
agencies in the quiet zone development process. This provision will 
allow State agencies to submit applications for ``recognized State 
agency'' status, under which the agency can choose to participate as a 
partner throughout the quiet zone development process. FRA envisions 
that ``recognized State agencies'' could serve as clearinghouses for 
proposed quiet zones, by coordinating the quiet zone development 
process, designating crossings that are eligible for Pre-Rule Quiet 
Zone and Intermediate Quiet Zone status, and/or participating in 
diagnostic team reviews of crossings. Therefore, FRA encourages State 
agencies who, like the Illinois Commerce Commission, would like to take 
a proactive role in the quiet zone development process to submit 
applications for ``recognized State agency'' status.

Section-by-Section Analysis

Section 222.1 What Is the Purpose of This Regulation?

    This section was not revised in the final rule. Noting that the 
interim final rule already addressed private crossings, the AAR 
submitted comments recommending the revision of this section to state 
that the purpose of this rule is to provide for safety at highway-rail 
grade crossings and pedestrian crossings. However, the final rule 
addresses private and pedestrian crossings to the extent that they are 
located within quiet zones. Given the limited number of private and 
pedestrian crossings affected by the rule, FRA has not expanded the 
scope of this section.

Section 222.3 What Areas Does This Regulation Cover?

    Paragraph (a) of this section has not been revised. A new paragraph 
(b) has been added to this section. In the course of drafting any rule, 
and especially when drafting a rule of this complexity and one 
involving a number of sometimes competing interests, FRA makes a number 
of difficult decisions. In doing so, FRA makes every attempt to 
construe and implement statutory requirements appropriately. 
Accordingly, paragraph (b) has been added to this section to expressly 
indicate the intent of FRA that the provisions of this part are 
separate and severable from one another. If any provision is stayed or 
determined to be invalid, it is the intent of FRA that the remaining 
provisions shall continue in effect.
    Due to the uncertainty associated with the excess risk estimate of 
silencing the locomotive horn at highway-rail grade crossings in the 
Chicago Region where horn sounding was excused by the Illinois Commerce 
Commission and where railroads have implemented no-whistle policies, 
paragraph (c) has been added to exclude those highway-rail grade 
crossings from the scope of the final rule pending completion of the 
Chicago Region data re-analysis discussed in ``Chicago Regional 
Issues'' (Supplementary Information, section 7).

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 that operate at a maximum speed of 15 
miles per hour over public grade crossings; and (3) rapid transit 
operations within an urban area that are not connected to the general 
railroad system of transportation.
    Paragraph (a) of this section was not revised in the final rule. 
However,

[[Page 21853]]

paragraph (b) of this section was revised in response to comments 
received from the Association of Railway Museums. Noting that the 
interim final rule would require tourist and excursion railroads to 
limit their operating speeds to 15 miles per hour over all railroad 
trackage, the Association of Railway Museums recommended that the rule 
be revised to exclude passenger railroads that operate on track which 
is not part of the general railroad system of transportation and that 
operate at a maximum speed of 15 mph over public grade crossings. The 
Association of Railway Museums asserted that precedent for this 
recommendation could be found in 49 CFR 229.125, which requires 
operative auxiliary lights on each lead locomotive operating at a speed 
greater than 20 mph over public grade crossings. After considering 
these comments, FRA determined that passenger operations that operate 
on track which is not part of the general railroad system of 
transportation could be exempted from the rule's locomotive horn 
sounding requirements, provided these operations are limited to 15 mph 
over public highway-rail grade and pedestrian crossings. Therefore, FRA 
has revised paragraph (b) accordingly.
    Paragraph (c) of this section has not been revised. The California 
Public Utilities Commission (``California PUC'') submitted comments 
asserting that the rule should be revised to exclude rapid transit 
operations that share highway-rail grade crossings with conventional 
operations but do not share trackage. In its comments, the California 
PUC noted that rapid transit operations exhibit different risk patterns 
and hazards than conventional rail operations. For instance, rapid 
transit operations feature shorter consist lengths, different overall 
visibility profiles, and greater braking abilities. If the rule is 
applied to rapid transit operations that share highway-rail grade 
crossings with conventional operations, rapid transit operations would 
be required to sound the horn more frequently at crossings and to use a 
much louder horn than is being currently used. FRA notes that Sec.  
229.129 continues to exclude all rapid transit operations from the 
audible warning sound level requirements. Therefore, rapid transit 
operations that share highway-rail grade crossings with conventional 
operations will not be required to use louder horns to provide an 
audible warning at public highway-rail grade crossings. However, rapid 
transit operations that share highway-rail grade crossings with 
conventional operations must file a waiver under Sec.  222.15 to obtain 
relief from the application of Part 222. FRA may then grant relief, 
depending on the underlying circumstances of each case.
    New Jersey Transit Corporation (``NJ Transit'') also submitted 
comments requesting clarification of the rule's applicability to light 
rail systems that operate on the general railroad system pursuant to an 
FRA-approved Temporal Separation Plan. NJ Transit urged FRA to exempt 
these light rail operations from the application of the rule based on 
the distinct nature of light rail equipment (i.e., light rail vehicles 
weigh less than conventional rail equipment and have superior stopping 
capabilities).
    FRA also received comments from individuals in Riverton, New Jersey 
who requested that the rule be revised to exempt light rail operations 
from the scope of the rule. Mark Schneider submitted comments 
requesting that the final rule be revised to exclude the light rail 
operation in the historic town of Riverton, New Jersey, which, he 
states, is one of five light rail operations in the nation that can 
``stop on a dime.'' Catherine Wheelhouse, owner of the Thomas Margaret 
Fine Art Gallery, submitted comments asserting that light rail 
operations should be evaluated under a different set of criteria 
because these operations consist of slower moving vehicles that provide 
a very large area of visibility for the operator.
    Given the unique characteristics of individual light rail 
operations and the fact that freight operations over shared crossings 
will generally sound the horn (creating motorist expectations that 
should be considered in planning for safety), FRA has not provided an 
exemption for all light rail operations in the final rule. However, FRA 
would be willing to consider any waivers filed under Sec.  222.15, for 
relief from the requirements of this part, on a case-by-case basis. 
These requests can be considered within existing ``shared use'' dockets 
and after consultation with the Federal Transit Administration and 
State Safety Oversight agencies.
    The Town of Manchester-by-the-Sea, Massachusetts also submitted 
comments recommending that the exemption set forth in paragraph (c) be 
expanded to cover commuter rail service. Noting that its commuter rail 
service consists of short passenger trains, generally not longer than 
seven or eight cars, the Town of Manchester-by-the-Sea asserted that 
motorists are not tempted to ``beat'' the train to the crossing and are 
willing to wait for it to travel through the crossing. The Town of 
Manchester-by-the-Sea also drew similarities between commuter rail 
service and rapid transit operations, as both types of rail service 
operate in densely populated areas. FRA has not, however, revised 
paragraph (c) to cover commuter rail service. Commuter rail service, 
unlike rapid transit operations, operates on the general railroad 
system of transportation, often over the same trackage over which 
freight railroads operate. In addition, the equipment used in commuter 
rail service carries substantial weight which, in turn, requires 
significant stopping distances. Even though the commuter rail service 
in Manchester-by-the-Sea may entirely consist of short passenger 
trains, the longer stopping distances associated with conventional 
commuter rail operations necessitate advance warning of their impending 
arrival at grade crossings, absent additional safety measures that 
mitigate existing risk.

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

    This section contains a statement of FRA's intent regarding the 
preemptive effect of this final rule. While the presence or absence of 
such a section does not conclusively establish the preemptive effect of 
a final rule, it provides information to the public about the statutory 
provisions that govern the preemptive effect of the rule and FRA's 
position on this issue.
    Paragraph (a) has been revised in the final rule to provide 
clarification as to the preemptive effect of the rule on State laws 
governing the sounding of the locomotive horn at public highway-rail 
grade crossings. 49 U.S.C. 20106 states 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. 
However, the highway-rail grade crossings described in Sec.  222.3(c) 
are exempt from the scope of the final rule. Therefore, except as 
provided in paragraph (b) of this section, this final rule shall 
preempt any State statutory or common law, local ordinance or State or 
local regulatory agency rule governing locomotive horn use at public 
highway-rail grade crossings. As for the highway-rail grade crossings 
described in Sec.  222.3(c), paragraph (b) states that the final rule 
will not have any preemptive effect on State laws, rules, regulations, 
or orders governing the sounding of the locomotive horn at those 
crossings. Note that this statement of non-preemptive effect applies 
only to those Chicago

[[Page 21854]]

Region highway-rail grade crossings described in Sec.  222.3(c). Thus, 
it does not apply to every highway-rail grade crossing in the Chicago 
Region.
    Paragraph (c) states that the final rule preempts any State 
statutory or common law, local ordinance or State or local regulatory 
agency rule governing locomotive horn use at private and pedestrian 
grade crossings that are located within a duly established quiet zone. 
This paragraph has been revised in the final rule to include a 
reference to the rule's preemptive effect over State and local laws 
governing locomotive horn use at pedestrian grade crossings within 
quiet zones.
    Paragraph (d) states that the final rule will not preempt State law 
regarding use of SSMs and ASMs as traffic control measures. However, 
with the exception of SSMs and ASMs implemented at the highway-rail 
grade crossings described in Sec.  222.3(c), the final rule will 
preempt State law governing the sounding of the locomotive horn at 
highway-rail grade crossings equipped with SSMs and/or ASMs. Since the 
highway-rail grade crossings described in Sec.  222.3(c) are exempt 
from the scope of the final rule, the final rule will not preempt State 
law governing the sounding of the locomotive horn at those crossings.
    Paragraph (e), which expresses FRA's intent to refrain from 
preempting State law concerning administrative procedures that must be 
followed regarding the installation or modification of engineering 
improvements at highway-rail grade crossings, has been added to the 
final rule in response to comments requesting clarification of the role 
of State agencies that have jurisdiction over highway-rail grade 
crossing safety. For example, while requesting clarification of the 
rule's effect on the role of State agencies, the Oregon Department of 
Transportation noted that signal and median installations within the 
state of Oregon must be approved by the Oregon Department of 
Transportation's Rail Division. Along the same vein, the Missouri 
Department of Transportation stated that whenever highway-rail grade 
crossings are modified, the Missouri Department of Transportation is 
required to review and approve plans and issue administrative orders. 
Noting that State law gives it exclusive jurisdiction over the terms of 
installation, operation, maintenance, use and protection of each 
crossing, the California Public Utilities Commission asserted that the 
interim final rule was sufficiently vague that some localities might 
assume that they could bypass state agencies, such as the California 
Public Utilities Commission, that are empowered with exclusive 
authority over grade crossing design and modification. The Township of 
Montclair, New Jersey also submitted comments requesting clarification 
of the State's role during the quiet zone development process. After 
reviewing these comments, FRA has revised the final rule by 
specifically stating, in paragraph (e), that the rule does not preempt 
State law concerning administrative procedures for the installation or 
modification of highway-rail grade crossing improvements.

Section 222.9 Definitions

    The definitions of ``Administrator'', ``Alternative safety measures 
(ASMs)'', and ``Associate Administrator'' have not been revised in the 
final rule.
    ``Channelization device'' means a traffic separation system made up 
of a raised longitudinal channelizer, with vertical panels or tubular 
delineators attached, that is 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 
Manual on Uniform Traffic Control Devices (``MUTCD'') issued by the 
Federal Highway Administration, are acceptable channelization devices 
for purposes of this part. Additional design specifications are 
determined by the standard traffic design specifications used by the 
governmental entity constructing the channelization device. However, 
FRA notes that it would be highly advisable to use raised longitudinal 
channelizers that are at least four inches high.
    FRA revised the definition of channelization device in the final 
rule to reflect the fact that tubular markers and vertical panels must 
now be attached to raised curbing, in order to qualify as an SSM. Even 
though the interim final rule allowed the use of tubular markers and 
vertical panels that were directly affixed to the pavement as 
Supplementary Safety Measures, FRA received a number of negative 
comments about the effectiveness and high maintenance burden associated 
with the use of this type of roadway treatment. After considering these 
comments, FRA has removed surface-mounted channelization devices from 
the list of approved SSMs. Therefore, the rule has been revised by 
restricting the definition of channelization devices to include only 
those raised longitudinal channelizers that are equipped with vertical 
panels or tubular delineators.
    ``Chicago Region'' means the following six counties in the State of 
Illinois: Cook, DuPage, Lake, Kane, McHenry and Will.
    The definition of ``Crossing Corridor Risk Index'' was not revised 
in the final rule. The definition of ``Diagnostic team'' was also not 
revised in the final rule. The California PUC submitted comments 
recommending that the definition of ``diagnostic team'' be revised to 
state that State agencies with jurisdiction over grade crossings must 
be included in any diagnostic team. However, FRA did not revise the 
definition of ``diagnostic team'' to mandate the inclusion of State 
agencies with jurisdiction over grade crossings because no funding for 
diagnostic team activities has been provided.
    ``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 eliminating collision risk. Measurements 
between zero and one reflect the percentage by which the SSM or ASM 
reduces the probability of a collision. This definition has been 
revised in the final rule to correct a typographical error.
    The definitions of ``FRA'' and ``Grade Crossing Inventory Form'' 
have not been revised in the final rule.
    ``Intermediate Partial Quiet Zone'' means 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 for a specified 
period of time during the evening or nighttime hours, or at which 
locomotive horns did not sound due to formal or informal agreements 
between the community and the railroad or railroads for a specified 
period of time during the evening and/or nighttime hours, and at which 
such statutes, ordinances or agreements were in place and enforced or 
observed as of December 18, 2003, but not as of October 9, 1996.
    ``Intermediate Quiet Zone'' means 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

[[Page 21855]]

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 December 18, 2003, but not as of 
October 9, 1996.
    The definitions of ``Locomotive'', ``Locomotive horn'', ``Median'', 
``MUTCD'', and ``Nationwide Significant Risk Threshold'' have not been 
revised in the final rule.
    ``New Partial 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 between 
the hours of 10 p.m. and 7 a.m., but are routinely sounded during the 
remaining portion of the day, and which does not qualify as a Pre-Rule 
Partial Quiet Zone. This definition contains a uniform period for the 
routine silencing of the locomotive horn, which was included in 
response to comments submitted by the Florida East Coast Railway 
asserting that different time periods for partial quiet zones would 
cause operational confusion and make compliance difficult.
    ``New Quiet Zone'' means a segment of a rail line within which is 
situated one or a number of consecutive public highway-rail grade 
crossings at which routine sounding of locomotive horns is restricted 
pursuant to this part and which does not qualify as either a Pre-Rule 
Quiet Zone or Intermediate Quiet Zone.
    ``Non-traversable curb'' means a highway curb designed to 
discourage a motor vehicle from leaving the roadway. Non-traversable 
curbs, which are used at locations where highway speeds do not exceed 
40 miles per hour, are at least six inches high. Additional design 
specifications are determined by the standard traffic design 
specifications used by the governmental entity constructing the curb.
    FRA revised this definition in the final rule to correct a 
typographical error and to remove the maximum height requirement 
contained within the interim final rule. The interim final rule defined 
non-traversable curbs as being more than six inches, but no more than 
nine inches high. As noted by SEH, Inc., this definition would exclude 
the standard six-inch curb frequently used by governmental entities. 
Therefore, FRA has revised the definition to include the standard six-
inch curbs that are frequently used by governmental entities.
    ``Partial Quiet Zone'' means a segment of a rail line within which 
is situated one or a number of consecutive public highway-rail grade 
crossings at which locomotive horns are not routinely sounded for a 
specified period of time during the evening and/or nighttime hours.
    ``Pedestrian crossing'' means, for purposes of this part, a 
separate designated sidewalk or pathway where pedestrians, but not 
vehicles, cross railroad tracks. Sidewalk crossings contiguous with, or 
separate but adjacent to, public highway-rail grade crossings, are 
presumed to be part of the public highway-rail grade crossing and are 
not considered pedestrian crossings for purposes of this rule.
    The definition for ``Power-out indicator'' has not been revised in 
the final rule.
    ``Pre-existing Modified Supplementary Safety Measure'' (Pre-
existing Modified SSM) means a safety system or procedure that is 
listed in appendix A to this Part, but is not fully compliant with the 
standards set forth therein, which was installed before December 18, 
2003 by the appropriate traffic control or law enforcement authority 
responsible for safety at the highway-rail grade crossing. The 
calculation of risk reduction credit for pre-existing modified SSMs is 
addressed in appendix B of this part.
    ``Pre-existing Supplementary Safety Measure'' (Pre-existing SSM) 
means a safety system or procedure established in accordance with this 
part before December 18, 2003 which was provided by the appropriate 
traffic control or law enforcement authority responsible for safety at 
the highway-rail grade crossing. These safety measures must fully 
comply with the SSM requirements set forth in appendix A. The 
calculation of risk reduction credit for qualifying pre-existing SSMs 
is addressed in appendix A of this part.
    ``Pre-Rule Partial 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 
horns for a specified period of time during the evening and/or 
nighttime hours, or at which locomotive horns did not sound due to 
formal or informal agreements between the community and the railroad or 
railroads for a specified period of time during the evening and/or 
nighttime hours, 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.
    The definition of Pre-Rule Partial Quiet Zone specifically includes 
partial whistle bans 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 the 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 
ordinance.
    The definitions of ``Pre-Rule Quiet Zone'' and ``Private highway-
rail grade crossing'' have not been revised in the final rule.
    ``Public authority'' means the public entity responsible for 
traffic control or law enforcement at the public highway-rail grade or 
pedestrian crossing. The definition of this term has been revised to 
more accurately reflect the statutory definition provided in 49 U.S.C. 
20153. In making this revision, FRA is responding to comments submitted 
by the American Association of Railroads (``AAR'') which asserted that, 
under the definition provided in the interim final rule, multiple 
entities could qualify for public authority status over a set of 
crossings. For example, a county police department could have 
jurisdiction over the same set of crossings that fall under the 
jurisdiction of a State highway agency. Under such a scenario, the 
county police department and the State highway agency would qualify for 
``public authority'' status. By narrowing scope of the definition, FRA 
is attempting to minimize the number of circumstances in which there 
may be multiple entities that can qualify for public authority status 
over a single set of crossings. While the definition refers to the 
entity ``responsible for traffic control or law enforcement'' at the 
public crossing, FRA does not contemplate that the local police 
department will be the entity creating a quiet zone. Instead, the 
public entity having control over that law enforcement agency would be 
the more appropriate entity. Thus, if city police patrol the crossing, 
the city government, rather than the actual city police department, 
would be the appropriate entity.
    ``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. If a public authority maintains the roadway on both sides of 
the crossing, the crossing

[[Page 21856]]

is considered a public crossing for purposes of this part.
    The definition of public highway-rail grade crossing has been 
revised in the final rule. The Florida Department of Transportation 
submitted comments asserting that the definition of public highway-rail 
grade crossing in the interim final rule is inconsistent with the 
definition of public road provided in Title 23 of the United States 
Code. Noting that grade crossings owned and maintained on one side by a 
private entity are generally considered to be private crossings, the 
AAR also submitted comments expressing concern that the definition 
provided by the interim final rule would include a number of crossings 
that are currently considered private crossings. As a result, the 
interim final rule would require routine horn sounding at many 
crossings where horns are not currently sounded. After considering 
these comments, FRA revised the definition of public highway-rail grade 
crossing to reflect the generally-accepted industry standard of having 
a public roadway on both sides of the crossing.
    The definition of ``Quiet Zone'' has not been revised in the final 
rule.
    ``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 with the quiet zone.
    The calculation of the Quiet Zone Risk Index, which is explained in 
appendix D of this part, does not differ for partial quiet zones. FRA 
calculates risk on a 24-hour basis for all quiet zones, even if 
restrictions on locomotive horn use have only been imposed during the 
nighttime hours.
    The definition of ``Railroad'' has not been revised in the final 
rule.
    ``Recognized State agency'' means, for purposes of this part, a 
State agency, responsible for highway-rail grade crossing safety or 
highway and road safety, that has applied for and been approved by FRA 
as a participant in the quiet zone development process.
    ``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. For 
purposes of Pre-Rule Partial Quiet Zones, a relevant collision shall 
not include collisions that occur during the time period within which 
the locomotive horn is routinely sounded.
    A specific exception has been added to the definition of ``relevant 
collision'' for Pre-Rule Partial Quiet Zones. This exception has been 
added to the final rule to ensure that only those relevant collisions 
which occur during periods when the locomotive horn is silenced will be 
considered for purposes of Sec.  222.41(b).
    FRA received comments from Metra recommending that the definition 
of ``relevant collision'' be revised to exclude collisions that were 
deemed intentional on the part of the driver and collisions caused by 
driver impairment due to consumption of alcohol or controlled 
substances. The City of Cumberland, Maryland also submitted comments 
recommending that the definition of ``relevant collision'' be revised 
to exclude collisions in which the driver was under the influence of 
drugs or alcohol and collisions in which the driver committed suicide. 
However, FRA did not revise the definition of ``relevant collision'' to 
exclude these types of collisions because primary cause determinations 
for highway-rail grade crossing collisions are matters that are best 
left for resolution by the courts.
    Lastly, the AAR submitted comments recommending that the definition 
of ``relevant collision'' be revised to include collisions at highway-
rail grade crossings between a train and a pedestrian. While collisions 
between trains and pedestrians have been included in the overall 
calculation of grade crossing risk, FRA has not revised the definition 
of ``relevant collisions'' to include collisions between trains and 
pedestrians because pedestrian collisions are not relevant on the 
direct issue of motorist decision-making.
    ``Risk Index With Horns'' means a measure of risk to the motoring 
public when locomotive horns are routinely sounded at every public 
highway-rail grade crossing within a quiet zone. In Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones, the Risk Index With Horns is 
determined by adjusting the Crossing Corridor Risk Index to account for 
the decreased risk that would result if locomotive horns were routinely 
sounded at each public highway-rail grade crossing.
    The definitions of ``Supplementary safety measure (SSM)'', 
``Waiver'', and ``Wayside horn'' have not been revised in the final 
rule.

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

    This section has been revised in the final rule to reflect the May 
2004 inflation adjustment of FRA's maximum and minimum civil monetary 
penalties. Under the final rule issued on May 28, 2004 (69 FR 30591), 
FRA increased its minimum civil penalty from $500 to $550 and its 
maximum civil penalty where a grossly negligent violation or pattern of 
repeated violations has created an imminent hazard of death or injury 
or has actually caused death of injury from $22,000 to $27,000.

Section 222.13 Who Is Responsible for Compliance?

    This section has not been revised in the final rule.

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

    The California PUC submitted comments recommending that the rule be 
revised to require that any petition for waiver must come before the 
State agency responsible for grade crossings. The California PUC 
asserted that, at the very least, the State agency responsible for 
crossing safety should be a party to the waiver proceeding and should 
be given an opportunity to address the petition. However, FRA notes 
that the waiver procedures set forth in 49 CFR part 211 require 
publication notice of the waiver petition in the Federal Register and 
the public, including State agencies, is encouraged to submit comments 
on the waiver petition before FRA issues a decision.
    The National League of Cities submitted comments recommending that 
the scope of this section be expanded to include multi-jurisdictional 
quiet zones. By expanding this section to include multi-jurisdictional 
quiet zone disputes, FRA would make the final decision with respect to 
whether quiet zone status should be granted or denied in those 
instances in which an individual jurisdiction is in opposition to a 
proposed multi-jurisdictional quiet zone. However, FRA is unwilling to 
allow the waiver process to be used by one jurisdiction to impose its 
proposed quiet zone and all resultant responsibilities upon its 
neighbor. Therefore, the changes requested by the National League of 
Cities will not be made.
    This section has been revised, however, to conform to the statutory 
requirements of Sec. Sec.  20153(d) and 201553(I)(3). Accordingly, 
paragraph (b)

[[Page 21857]]

has been revised to require that in the event the railroad and public 
authority cannot reach agreement to file a joint petition, the filing 
party, in addition to specifying in its petition the steps it has taken 
in an attempt to reach agreement with the other party, must also 
explain why applying the requirement for a jointly filed submission 
under paragraph (a) would not be likely to contribute significantly to 
public safety. If the Associate Administrator determines that applying 
the requirement for a jointly filed submission to that particular 
petition would not be likely to significantly contribute to public 
safety, the Associate Administrator shall waive the requirement for a 
joint submission and accept the petition for consideration.
    Paragraphs (c) and (d) of this section have not been revised in the 
final rule.

Section 222.17 How Can a State Agency Become a Recognized State Agency?

    This section sets forth the procedure that shall be followed by a 
State agency responsible for highway-rail grade crossing safety and/or 
highway and road safety in order to become a recognized State agency. 
Even though the specific functions of a recognized State agency are 
subject to agreement between the State agency and FRA, FRA envisions 
that a recognized State agency could act as a quiet zone clearinghouse 
by providing guidance on appropriate SSM selection, ensuring that 
proposed grade crossing improvements comply with FRA regulations and 
State administrative rules, securing all necessary State administrative 
approvals, and ensuring that all required public authority notification 
packages comply with FRA regulations. FRA does not, however, plan to 
delegate any authority to approve quiet zone applications or to 
establish acceptable risk thresholds within quiet zones. Nor does FRA 
intend to allow recognized State agencies to prevent public authorities 
from creating quiet zones, if the proposed quiet zone qualifies under 
this rule and all applicable State laws and regulations.
    FRA has added this section to the final rule in response to 
comments submitted by State agencies who suggested the need for a 
larger role in the quiet zone development process. Asserting that the 
State's role was virtually non-existent under the interim final rule, 
the Minnesota Department of Transportation submitted comments 
expressing concern that the interim final rule would allow communities 
to bypass the considerable expertise of State agencies charged with 
improving grade crossing safety. The North Carolina Department of 
Transportation recommended that State departments of transportation 
serve as clearinghouses for quiet zone requests, so that State agencies 
could be involved in safety evaluations for each proposed quiet zone.
    Other State agencies submitted comments requesting a more expansive 
role during the quiet zone development process. The Ohio Public 
Utilities Commission and the California Public Utilities Commission 
submitted comments recommending that all proposed quiet zones be 
reviewed and approved by State grade crossing regulatory agencies. 
Similarly, the Ohio Rail Association submitted comments recommending 
that the final rule extend to States the power to determine what 
oversight and safety standards need to be applied when communities seek 
quiet zones. FRA also received a Proposed Alternative Crossing Program 
from the Chicago Region, under which FRA would delegate the authority 
to implement and manage quiet zone development to an appropriate State 
agency with railroad safety oversight responsibilities.
    After considering these comments, FRA decided to create a process 
by which State agencies who are interested in having a greater role in 
quiet zone development can provide assistance to FRA throughout the 
quiet zone development process. As suggested by the North Carolina 
Department of Transportation, recognized State agencies could serve as 
clearinghouses for proposed quiet zones by coordinating quiet zone 
creation and verifying local compliance with all applicable FRA 
regulations and State laws and administrative rules. However, as stated 
above, FRA does not plan to delegate any authority to approve quiet 
zone applications or to establish acceptable quiet zone risk 
thresholds.
    Paragraph (a) provides that a State agency responsible for highway-
rail grade crossing safety and/or highway and road safety may become a 
recognized State agency by submitting an application to the Associate 
Administrator. This application must contain a detailed description of 
the State agency's proposed scope of involvement in the quiet zone 
development process, contact information for the person(s) who will be 
made available to discuss the State agency application with FRA, and a 
statement from State agency counsel affirming that the State agency is 
authorized to undertake the responsibilities proposed.
    Paragraph (b) provides that FRA will approve the State agency 
application if the proposed scope of involvement will, in the Associate 
Administrator's judgment, facilitate safe and effective quiet zone 
development. However, the Associate Administrator reserves the right to 
impose additional conditions as may be necessary to ensure effective 
coordination between the State agency and FRA during the quiet zone 
development process.

Section 222.21 When Must a Locomotive Horn Be Used?

    Paragraph (a) of this section establishes the duty to sound the 
locomotive horn when approaching a public highway-rail grade crossing. 
The locomotive horn shall be sounded when the lead locomotive or cab 
car is approaching a public highway-rail grade crossing. This paragraph 
also requires the sounding of the locomotive horn in a pattern of two 
long, one short, and one long blast, which shall be initiated at the 
location specified in paragraph (b) of this section. The locomotive 
horn sounding pattern shall be repeated or prolonged until the 
locomotive or train occupies the crossing. However, the horn sounding 
pattern may be varied as necessary where crossings are spaced closely 
together.
    FRA revised this paragraph in response to comments received from 
the AAR which noted an inconsistency in the locomotive horn sounding 
requirements imposed by the first two sentences in the interim final 
rule. The first sentence of this paragraph originally required the 
sounding of the locomotive horn when the locomotive or lead car 
approached and passed through a public grade crossing. However, the 
second sentence in the interim final rule required that the sounding of 
the locomotive horn be repeated or prolonged until the locomotive or 
train occupied the public grade crossing. For the sake of consistency, 
FRA revised the first sentence of this paragraph to address the 
initiation of locomotive horn sounding, so that only the second 
sentence of this paragraph refers to the duration of the locomotive 
horn sounding requirement.
    Paragraph (b) of this section addresses the time interval within 
which the locomotive horn shall sound in advance of the public highway-
rail grade crossing. Under the interim final rule, this paragraph (b) 
required that the locomotive horn shall begin sounding at least 15 
seconds, but no more than 20 seconds, before the locomotive enters a 
public highway rail grade crossing. The paragraph also stated that in 
no event

[[Page 21858]]

shall a locomotive horn be sounded more than one-quarter mile in 
advance of the crossing.
    FRA received comments on this paragraph from the North Carolina 
Department of Transportation and the AAR. North Carolina noted that a 
train operating at a speed of 80 mph would only be able to sound its 
horn for 11 seconds prior to its arrival at a public grade crossing. On 
the other hand, the AAR noted that a train operating at a speed less 
than 45 mph would sound its horn for more than 20 seconds, if horn 
sounding was initiated one-quarter mile from the public crossing.
    As a result of the comments received, FRA revised this paragraph. 
New paragraph (b)(1) provides that, subject to paragraph (b)(2), the 
locomotive horn shall begin sounding at least 15 seconds, but no more 
than 20 seconds, before the locomotive enters a public highway-rail 
grade crossing. Paragraph (b)(2) addresses locomotives traveling at 
speeds more than 45 mph. That paragraph states that locomotives 
traveling at speeds in excess of 45 mph shall not begin sounding the 
horn more than one-quarter mile in advance of a public grade crossing, 
even if the advance warning provided by the locomotive will be less 
than 15 seconds in duration. Research has shown that the effect of a 
locomotive horn sounded at a distance greater than \1/4\ mile from a 
grade crossing is attenuated to the extent that it does not provide 
adequate warning to the motorist. There is thus no need to sound the 
horn beyond this point. Eliminating the extra distance over which the 
horn is sounded will reduce its noise impact on nearby residences and 
businesses without affecting safety at grade crossings.
    The Brotherhood of Locomotive Engineers and Trainmen submitted 
comments reiterating the importance of retaining whistle posts in their 
current locations to help locomotive engineers gauge their distance 
from upcoming public crossings. Asserting that the location of upcoming 
grade crossings can often only be determined in reference to permanent 
whistle boards, the Metropolitan Transit Authority submitted comments 
asserting that it would be virtually impossible for locomotive 
engineers to comply with the rule, given the range of speeds over which 
trains are operated. Although FRA has not received many comments from 
locomotive engineers and their representatives asserting that there may 
be substantial difficulties in complying with the time-based horn 
sounding requirements contained within this rule, FRA encourages 
railroads to retain present whistle boards as an aid to their 
locomotive engineers.
    Paragraph (c), which has been added to the final rule, reiterates 
the fact that the highway-rail grade crossings described in Sec.  
222.3(c) have been excluded from the scope of the final rule. Since the 
horn sounding requirements established by this section will not apply, 
locomotive horn sounding at these crossings will continue to be 
governed by State and local law.

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

    This section addresses the situations in which the locomotive horn 
may be sounded within a quiet zone. Paragraph (a)(1) is intended to 
make clear that a locomotive engineer may sound the locomotive horn in 
emergency situations. Notwithstanding any other provision 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 
shall not prevent the locomotive engineer from using his or her 
discretion to sound the locomotive horn in emergency situations.
    The AAR submitted comments on the interim final rule recommending 
that this paragraph be revised to specifically state that sounding of 
the locomotive horn to warn animals constitutes an emergency situation 
that would justify horn sounding within a quiet zone. FRA agrees that 
sounding the locomotive horn to warn animals that are trespassing on, 
or near the track, constitutes an emergency situation that justifies 
horn sounding within a quiet zone. Therefore, the rule has been revised 
accordingly.
    Paragraph (a)(2) is intended to clarify 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 do so. FRA 
received a number of comments from communities throughout the country 
who were concerned that the limited scope of this provision does not 
shield public authorities from liability for silencing the routine use 
of the locomotive horn within quiet zones. For example, the Village of 
Hinsdale, Illinois asserted that the interim final rule exempts 
railroads from liability and recommended that the final rule be revised 
to provide the same coverage for public authorities. Along the same 
lines, the City of Placentia, California submitted comments suggesting 
that the final rule be revised to specify that it is intended to 
provide protection from liability for silencing the train horn to 
public authorities, as well as the railroad and train crew. The City of 
Placentia also recommended that this protection from liability extend 
to incidents involving both motor vehicles and pedestrians. The Village 
of Cornwall-on-Hudson, New York submitted comments asserting that by 
not addressing the liability of local communities that create quiet 
zones, the interim final rule shifts traditional railroad liability 
away from the party that is profiting from the use of the tracks and 
onto local governments. The City of Sacramento, California submitted 
comments recommending that the final rule be revised to state that the 
establishment of a quiet zone cannot be the basis of a claim against a 
local entity, provided the local entity established the quiet zone in 
accordance with the rule. Along the same lines, the Town of Riverside, 
Illinois submitted comments suggesting that the final rule contain a 
clear statement that it is not intended to create any new liability for 
municipalities. The City of West University Place, Texas submitted 
comments suggesting that the final rule be revised by including broad 
language that eliminates liability--either civil or criminal--for 
public and private organizations and individuals who participate in 
quiet zone establishment.
    As stated in the interim final rule, FRA intends to protect from 
liability the locomotive engineer who, in accordance with this rule and 
railroad operating rules that were established in response to the 
creation of a quiet zone, does not sound the locomotive horn. As for 
the public authority that creates a quiet zone in accordance with this 
part, FRA expects that the courts will apply the standard of care set 
by this rule, inasmuch as any quiet zone established in accordance with 
this part will have been established in accordance with federal law and 
FRA's intention to preempt State law is expressly stated. This rule, in 
effect, establishes the standard of care for the creation of quiet 
zones and the sounding of train horns, providing reassurance both to 
railroads and communities that no plaintiff will prevail on the basis 
that an audible warning has been withheld. Further, this rulemaking 
does nothing to undermine the sovereign immunity of State and local 
governments, where they have asserted it.

[[Page 21859]]

    Paragraph (b) of this section addresses situations involving 
warning system malfunctions, in which use of the locomotive horn within 
a quiet zone shall be allowed. These situations include instances in 
which active grade crossing warning devices have malfunctioned and use 
of the locomotive horn is required by Sec. Sec.  234.105, 234.106, or 
234.107 of title 49, Code of Federal Regulations. These situations also 
include instances in which a grade warning system is temporarily out of 
service for inspection, testing, or maintenance purposes. The final 
rule includes a third category of warning system malfunction, which 
consists of wayside horn malfunctions, the occurrence of which shall 
also exempt locomotive horn use within a quiet zone.
    Paragraph (c) permits use of the locomotive horn, within a quiet 
zone, to announce the approach of a train to roadway workers in 
accordance with a program adopted under part 214 of this Chapter, or 
where otherwise required by railroad operating rule.

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 20153(f) of title 49 explicitly gives 
discretion to the Secretary on the question of whether private highway-
rail grade crossings should be subject to the rule's locomotive horn 
sounding requirements.) FRA has determined that exercising its 
jurisdiction in a limited manner over these crossings is the 
appropriate course of action.
    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 49 U.S.C. 20103 and 20153, it is not 
exercising that jurisdiction at this time, except as to the use of 
horns at private crossings within quiet zones.
    Paragraph (a) has not been revised in the final rule. However, 
paragraph (b) has been revised to require the public authority to 
provide an opportunity to the State agency responsible for grade 
crossing safety and all affected railroads to participate in diagnostic 
team reviews of private crossings located within New Quiet Zones and 
New Partial Quiet Zones. FRA is making this revision in response to 
comments requesting a greater role for State agencies and affected 
railroads in the quiet zone establishment process. For example, the 
Florida East Coast Railway expressed concern that the interim final 
rule would entitle a local community to establish a quiet zone without 
railroad input because the importance of receiving such input during 
the planning process cannot be overlooked. The Fort Worth & Western 
Railroad, New Orleans & Gulf Coast Railroad, and the Idaho Northern & 
Pacific Railroad submitted comments recommending that the interim final 
rule be revised to establish a proactive review process by railroads on 
the potential impacts of proposed quiet zones. The Southern California 
Regional Rail Authority commented that the final rule should require 
diagnostic team reviews of every grade crossing within a proposed quiet 
zone or diagnostic team reviews of every grade crossing that will be 
treated with an SSM that will need to be connected to the grade 
crossing warning system. (Please see the Section-by-Section discussion 
of Sec.  222.17 for a summary of the comments requesting a greater role 
for State agencies.) After considering these comments, FRA revised the 
rule by providing greater opportunity for railroads to provide input 
during the quiet zone development process. The revision of paragraph 
(b) reflects this approach, as public authorities are now required to 
provide an opportunity for State agencies and railroads to participate 
in diagnostic team reviews of private crossings.
    Paragraph (b)(1) retains the requirement contained within the 
interim final rule that private highway-rail grade crossings located 
within New Quiet Zones which allow access to the public, or 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 a quiet zone will significantly increase risk at the 
private crossing. The scope of this requirement has, however, been 
expanded in the final rule to include New Partial Quiet Zones.
    Paragraph (b)(2) states that the public authority shall provide the 
State agency responsible for grade crossing safety and all affected 
railroads an opportunity to participate in the diagnostic team review 
of private crossings. This new requirement should ensure that the State 
agency and all affected railroads are given an opportunity to express 
their views and provide useful information for the public authority to 
consider. As stated in paragraph (a), the private crossing must then be 
equipped or treated in accordance with the recommendations of the 
diagnostic team.
    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 that may have been 
entered into by the parties. It is, however, expected that the public 
authority seeking to establish a quiet zone would assume responsibility 
for funding any necessary improvements, the private crossing owner 
would agree to the installation of any necessary improvements, and the 
railroad would assume practical responsibility for maintenance of any 
automated warning systems at the crossing.
    Paragraph (c) of this section establishes requirements for the 
installation of signage at private crossings located within quiet 
zones. Paragraph (c)(1) states that every private crossing within a New 
Quiet Zone or New Partial Quiet Zone shall, at a minimum, be equipped 
with crossbucks and ``STOP'' signs, which are compliant with MUTCD 
standards unless otherwise prescribed by State law, together with 
advance warning signs that comply with Sec.  222.35(c). However, even 
if State law prescribes use of a private crossing sign that is not 
MUTCD-compliant, the private crossing sign must indicate to the 
motorist that a stop is required. Paragraph (c)(2) provides a period of 
three years from the effective date of the final rule for the 
installation of such signs at private crossings located within Pre-Rule 
Quiet Zones and Pre-Rule Partial Quiet Zones.
    Paragraph (c) has been revised in response to comments submitted by 
the Association of American Railroads. Under the interim final rule, 
crossbucks and ``STOP'' signs that were installed at private crossings 
within quiet zones were required to conform to the MUTCD. However, the 
Association of American Railroads noted in its comments that some 
railroads use stop signs and crossbucks that have been incorporated 
into a ``private railroad crossing'' sign, which does not comply with 
all aspects of the MUTCD. Furthermore, the Association of American 
Railroads asserted that the State of California mandates use of a 
specific private railroad crossing sign. Therefore, the interim final 
rule would require railroads to replace signs that have been widely 
used for years. In an attempt to reduce the regulatory burdens 
associated with this rule, FRA has revised this paragraph to allow 
railroads and public authorities to continue to use crossbucks and 
``STOP'' signs that are not fully compliant with MUTCD standards, if 
prescribed by State law.

[[Page 21860]]

Section 222.27 How Does This Rule Affect Pedestrian Crossings?

    This section has been added to the final rule in order to address 
pedestrian crossings located within quiet zones. (Section 20153(f) of 
title 49 explicitly gives discretion to the Secretary on the question 
of whether pedestrian crossings should be subject to the rule's 
locomotive horn sounding requirements.) FRA has determined that 
exercising its jurisdiction in a limited manner of these crossings is 
the appropriate course of action. Although FRA has jurisdiction over 
locomotive horn use at pedestrian crossings based on 49 U.S.C. 20103 
and 20153, it is not exercising that jurisdiction at this time except 
as to the use of horns at pedestrian crossings within quiet zones.
    The AAR submitted comments warning that the failure of the interim 
final rule to address pedestrian crossings and pedestrian accidents was 
a major gap in the regulatory scheme. Noting that, in the absence of 
the warning provided by the locomotive horn, the only warning a 
pedestrian may have of an approaching train is the sound of the train 
itself and visual observation, the AAR recommended that the final rule 
require public authorities that want to create New Quiet Zones that 
encompass pedestrian crossings to demonstrate that they have addressed 
the effect that the quiet zone would have on pedestrian traffic.
    It is imperative that the establishment of a quiet zone shall not 
result in a significant increase in risk at pedestrian crossings 
located within the quiet zone. Therefore, FRA is addressing pedestrian 
crossings in a manner similar to the approach recommended by the AAR. 
Paragraph (a) of this section provides that pedestrian crossings may be 
included in a quiet zone. Paragraph (b) of this section requires public 
authorities to address pedestrian safety issues when establishing New 
Quiet Zones and New Partial Quiet Zones that contain pedestrian 
crossings. Public authorities that want to establish a New Quiet Zone 
or New Partial Quiet Zone that contains pedestrian crossings will be 
required to conduct diagnostic team reviews of the pedestrian crossings 
and treat them in accordance with the diagnostic team recommendations. 
Paragraph (c) states that the public authority is required to provide 
an opportunity for the State agency responsible for grade crossing 
safety and all affected railroads to participate in diagnostic team 
reviews of pedestrian crossings. This will ensure that the State agency 
and all affected railroads are given an opportunity to express their 
views and provide useful information for the public authority to 
consider.
    Paragraph (d), which has been added to the final rule, requires the 
installation of signs at pedestrian crossings located within quiet 
zones that advise pedestrians that train horns are not sounded at the 
crossing. Noting that the interim final rule failed to require specific 
warnings for pedestrians within quiet zones, the Southern California 
Regional Rail Authority and Caltrain submitted comments recommending 
that the rule be revised to require the posting of warning signs at 
locations within quiet zones where pedestrians can access the railroad 
right-of-way. After considering these comments, in combination with the 
comments of the AAR which have been described above, FRA added 
paragraph (d) to the final rule to provide an additional warning to 
pedestrians at pedestrian crossings located within quiet zones.
    Paragraph (d)(1) requires that each pedestrian crossing within a 
New Quiet Zone shall be equipped with a sign that advises the 
pedestrian that train horns are not sounded at the crossing. FRA 
recommends use of the W10-9 ``NO TRAIN HORN'' sign within New Quiet 
Zones. However, any sign used shall conform to the standards contained 
in the MUTCD.
    Paragraph (d)(2) requires that each pedestrian crossing within a 
New Partial Quiet Zone shall be equipped with a sign that advises the 
pedestrian that train horns are not sounded at the crossing between the 
hours of 10 p.m. and 7 a.m. FRA recommends use of the W10-9 ``NO TRAIN 
HORN'' sign, in combination with a yellow S4-1 ``10 p.m. to 7 a.m.'' 
sign within New Partial Quiet Zones. However, any sign(s) used shall 
conform to the standards contained in the MUTCD.
    Paragraph (d)(3) requires that each pedestrian crossing within a 
Pre-Rule Quiet Zone shall be equipped by June 24, 2008 with a sign that 
advises the pedestrian that train horns are not sounded at the 
crossing. FRA recommends use of the W10-9 ``NO TRAIN HORN'' sign within 
Pre-Rule Quiet Zones. However, any sign used shall conform to the 
standards contained in the MUTCD.
    Paragraph (d)(4) requires that each pedestrian crossing within a 
Pre-Rule Partial Quiet Zone shall be equipped by June 24, 2008 with a 
sign that advises the pedestrian that train horns are not sounded at 
the crossing for a specified period of time. FRA recommends use of the 
W10-9 ``NO TRAIN HORN'' sign, in combination with a yellow S4-1 sign 
that sets forth the hours during which train horns will be not sounded, 
within Pre-Rule Partial Quiet Zones. However, any sign(s) used shall 
conform to the standards contained in the MUTCD.
    Paragraphs (d)(3) and (4) provide a three-year grace period for the 
installation of signs at pedestrian crossings in Pre-Rule Quiet Zones 
and Pre-Rule Partial Quiet Zones. This three-year grace period tracks 
the three-year grace period provided to Pre-Rule Quiet Zones and Pre-
Rule Partial Quiet Zones under Sec.  222.41.

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

    This section has not been revised in the final rule. FRA received 
comments on this section from the DuPage Mayors and Managers Conference 
and the Chicago Area Transportation Study recommending that the rule be 
revised to exclude from the rule's locomotive horn sounding 
requirements those situations in which the train stops immediately 
before or after a highway-rail grade crossing. After considering these 
comments, FRA did not revise the final rule because of the potential 
confusion that could be created for motorists. Motorists who may have 
come to expect the sounding of the locomotive horn may not stop before 
entering a crossing that is occupied by a train that is preparing to 
depart. Likewise, motorists who are unaware that an approaching train 
intends to stop immediately after the grade crossing may actually 
accelerate upon viewing an approaching train, in order to ``beat'' the 
train over the crossing. Both of these scenarios present a potentially 
unacceptable increase in risk.
    FRA also received comments from Metra recommending that this 
section be revised to exempt train operations at speeds of 30 mph or 
less. Metra also recommended that the ``flagger'' requirement be 
removed under such a scenario. This section was included in the rule in 
order to exempt switching operations from the rule's locomotive horn 
sounding requirements. However, FRA is unwilling to expand the scope of 
this exemption to include low-speed passenger operations, given the 
increase in risk associated with passenger operations over public 
highway-rail grade crossings.

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

[[Page 21861]]

warning to be provided, and minimum type of signage required.
    Paragraph (a), which governs the minimum required length of quiet 
zones, has been revised in the final rule. The scope of paragraph 
(a)(1)(i) has been expanded to include New Partial Quiet Zones. FRA 
received comments on paragraph (a) of this section from the California 
PUC which re-asserted its position that the minimum length of quiet 
zones should not be codified. In the alternative, the California PUC 
recommended that the rule be revised to allow quiet zone length to be 
determined by the applicant and railroad and approved by the 
appropriate State agency. However, as stated in the interim final rule, 
FRA believes that establishment of a minimum length of one-half mile 
for most New Quiet Zones and New Partial Quiet Zones is appropriate. 
With the exception of New Quiet Zones or New Partial Quiet Zones that 
are added to existing quiet zones, the one-half mile minimum length 
requirement will ensure that the sounding of the locomotive horn at a 
public grade crossing located outside the quiet zone will not 
effectively negate the prohibition on routine locomotive horn sounding 
within the quiet zone. In addition, the one-half mile minimum 
requirement for New Quiet Zones and New Partial Quiet Zones should 
minimize workload demands on the locomotive engineer, who will be 
required to become familiar with all quiet zone locations along his/her 
designated routes.
    In response to comments received from the Chicago Department of 
Transportation and the Chicago Area Transportation Study, an exception 
to the minimum-length requirement has been carved out for New Quiet 
Zones and New Partial Quiet Zones that are being added to existing 
quiet zones. In their comments, the Chicago Department of 
Transportation and the Chicago Area Transportation Study requested that 
the final rule waive the half-mile minimum length requirement for New 
Quiet Zones that are located between existing quiet zones or that will 
be added to the end of an existing quiet zone. After considering the 
fact that New Quiet Zone grade crossings would be required to comply 
with all New Quiet Zone standards, with the sole exception of the one-
half mile minimum length requirement, FRA decided to add paragraph 
(a)(1)(ii) to the final rule. Paragraph (a)(1)(ii) states that the one-
half mile minimum length requirement set forth under Sec.  
222.35(a)(1)(i) shall be waived for New Quiet Zones and New Partial 
Quiet Zones that are added onto existing quiet zones, provided there is 
no public highway-rail grade crossing at which locomotive horns are 
routinely sounded within one-half mile of the New Quiet Zone or New 
Partial Quiet Zone.
    New Quiet Zones and New Partial Quiet Zones in the Chicago Region 
may not, however, include any highway-rail grade crossing described in 
Sec.  222.3(c), for purposes of meeting the one-half mile minimum 
length requirement. Given the uncertainty associated with the 
appropriate excess risk estimate that should be derived from silencing 
the locomotive horn at those highway-rail grade crossings, FRA is 
unable to determine a practicable means of including them in the risk 
calculations for proposed New Quiet Zones and New Partial Quiet Zones. 
Therefore, pending completion of the Chicago Region data re-analysis 
discussed in ``Chicago Regional Issues'' (Supplementary Information, 
section 7), public authorities who are unable to meet the minimum one-
half mile minimum length requirement without including any of the 
highway-rail grade crossings described in Sec.  222.3(c) in their 
proposed New Quiet Zones or New Partial Quiet Zones may apply for a 
waiver, in accordance with Sec.  222.15. FRA will consider any waiver 
petition submitted on a case-by-case basis.
    Paragraph (a)(2) specifically addresses the minimum length 
requirement for Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. 
Even though the length of a Pre-Rule Quiet Zone or Pre-Rule Partial 
Quiet Zone may continue unchanged, FRA has revised the interim final 
rule to clarify that the addition of any public crossing to a Pre-Rule 
Quiet Zone or Pre-Rule Partial Quiet Zone will transform the quiet zone 
into a New Quiet Zone or New Partial Quiet Zone subject to all 
requirements applicable to New Quiet Zones and New Partial Quiet Zones. 
In addition, the deletion of any public crossing from a Pre-Rule Quiet 
Zone or Pre-Rule Partial 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 or Pre-
Rule Partial Quiet Zone status.
    FRA received comments on paragraph (a)(2) from the DuPage Mayors 
and Managers Conference and the Chicago Area Transportation Study 
requesting that the interim final rule be revised to specifically 
authorize communities to combine adjacent Pre-Rule Quiet Zones. As FRA 
had always intended to give communities the ability to combine adjacent 
Pre-Rule Quiet Zones into a single, contiguous Pre-Rule Quiet Zone, FRA 
has clarified the rule accordingly.
    Paragraph (a)(3) has not, however, been revised in the final rule.
    Paragraph (b), which addresses the need for active warning devices 
at crossings within quiet zones, has been revised to address partial 
quiet zones. Paragraph (b)(1) has not been revised in the final rule. 
However, paragraph (b)(2) has been added to the final rule to address 
active warning devices in New Partial Quiet Zones. This new paragraph 
states that, with the exception of public highway-rail grade crossings 
that are temporarily closed in accordance with appendix A of this part, 
each public highway-rail grade crossing in a New Partial Quiet Zone 
must be equipped, no later than the quiet zone implementation date, 
with flashing lights and gates that control motorist traffic over the 
crossing and that conform to the MUTCD. An exception to this 
requirement has been provided for public highway-rail grade crossings 
that are closed between the hours of 10 p.m. and 7 a.m., in accordance 
with appendix A of this part, when routine sounding of the locomotive 
horn will be prohibited. Paragraph (b)(3) provides that grade crossing 
safety warning devices that existed at public highway-rail grade 
crossings located within Pre-Rule Quiet Zones and Pre-Rule Partial 
Quiet Zones as of December 18, 2003 must be retained. These warning 
devices may be upgraded, which can result in additional risk reduction 
credit when calculating the Quiet Zone Risk Index, but they may not be 
downgraded from that which was in existence as of December 18, 2003. 
Any upgrade involving the installation or renewal of an automatic 
warning device system shall include power-out indicators and constant 
warning time devices, unless existing conditions at the crossing would 
prevent the proper operation of the constant warning time devices.
    Paragraph (c) specifically addresses the installation of advance 
warning signs at grade crossings within a quiet zone. Paragraphs (c)(1) 
and (2) require that each highway approach to every public and private 
highway-rail grade crossing within New Quiet Zones and New Partial 
Quiet Zones shall be equipped with an advance warning sign that advises 
the motorist that train horns are not sounded at the crossing. Such 
signs shall conform to the standards contained in the MUTCD. Paragraph 
(c)(2), which was added to the final rule, requires that each highway 
approach to public and private highway-rail grade crossings within New 
Partial Quiet Zones shall be equipped with an advance warning sign that 
advises the

[[Page 21862]]

motorist that train horns are not sounded at the crossing between the 
hours of 10 p.m. and 7 a.m.
    Paragraphs (c)(3) and (4) provide a three-year grace period for the 
installation of advance warning signs at public and private crossings 
in Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. This three-
year grace period tracks the three-year grace period provided to Pre-
Rule Quiet Zones and Pre-Rule Partial Quiet Zones under Sec.  222.41.
    Paragraph (d) has been added to the final rule, in response to 
comments requesting that the rule be revised to address pedestrian 
safety issues within quiet zones. The Florida Department of 
Transportation submitted comments asserting that pedestrian safety at 
crossings is a significant safety factor that should be addressed in 
the final rule. The New York Department of Transportation recommended 
that the final rule address pedestrian traffic over highway-rail grade 
crossings by requiring the installation of bells at all grade crossings 
where pedestrian traffic is prevalent and by requiring public 
authorities to consider pedestrian traffic issues when establishing 
quiet zones. On the other hand, Caltrain and the Southern California 
Regional Rail Authority recommended that advance warning signs be 
installed at locations within quiet zones where pedestrians can legally 
access the railroad right-of-way. After considering these comments, FRA 
decided on an approach that incorporates all of their suggestions. 
Given the fact that the majority of gated crossings are already 
equipped with at least one automatic bell, paragraph (d)(1) of this 
section requires that each public highway-rail grade crossing in a New 
Quiet Zone or New Partial Quiet Zone that is subjected to pedestrian 
traffic and equipped with at least one or more automatic bells shall 
retain those bells in working condition. Similarly, paragraph (d)(2) 
requires that each public highway-rail grade crossing in a Pre-Rule 
Quiet Zone or Pre-Rule Quiet Zone that is subjected to pedestrian 
traffic and equipped with at least one or more automatic bells shall 
retain those bells in working condition.
    Public highway-rail grade crossings that are located within a quiet 
zone, but are not equipped with an automatic bell, shall be equipped 
with advance warning signs that comply with the MUTCD, in accordance 
with Sec.  222.35(c). However, FRA assumes that prudent communities 
will exercise the option to install an automatic bell, particularly at 
those public grade crossings where the locomotive horn has been 
silenced. Due to the scope of the Environmental Impact Statement that 
has accompanied this rulemaking, FRA has refrained from requiring the 
installation of automatic bells at public highway-rail grade crossings 
that are located within quiet zones and subject to pedestrian traffic. 
However, FRA strongly encourages communities to take a prudent approach 
to quiet zone continuation and establishment.
    Paragraph (e) retains the interim final rule requirement that all 
private crossings within the quiet zone must be treated in accordance 
with this section and Sec.  222.25.
    Paragraph (f), which has been added to the final rule, provides 
that all pedestrian grade crossings within a quiet zone must be treated 
in accordance with Sec.  222.27.
    Paragraph (g) retains the interim final rule requirement that all 
public crossings within the quiet zone must be in compliance with the 
requirements of the MUTCD.

Section 222.37 Who May Establish a Quiet Zone?

    This section has not been revised in the final rule. However, it 
should be noted that the highway-rail grade crossings described in 
Sec.  222.3(c) have been excluded from the scope of the final rule. 
Thus, any New Quiet Zones or New Partial Quiet Zones established under 
this part cannot contain any highway-rail grade crossing described in 
Sec.  222.3(c).
    The Chicago Area Transportation Study submitted comments requesting 
that the rule be revised to provide an acknowledgment that a public 
authority (such as a state or county) could grant a blanket delegation 
of authority to municipalities to pursue and create quiet zones. In its 
comments, the Chicago Area Transportation Study stated that the State 
of Illinois has indicated that it would prefer to issue a blanket 
delegation rather than giving individual, written delegations for each 
potential quiet zone under its jurisdiction. However, a revision of the 
rule is not necessary, given the language in paragraph (a) this 
section, which states that if a proposed quiet zone includes public 
grade crossings under the authority and control of more than one public 
authority, both public authorities must agree to the establishment of a 
quiet zone and may, by delegation provided to one of the authorities, 
take such actions as are required by this part. The rule already allows 
the State of Illinois to delegate its authority over public grade 
crossings within proposed quiet zones to local communities for purposes 
of quiet zone creation/continuation.
    The Village of Hinsdale, Illinois submitted comments recommending 
that the rule be revised to limit the definition of ``public 
authority'' to State or regional authorities. In its comments, the 
Village of Hinsdale stated that local governments have the most 
constraints and the least experience in dealing with highway-rail grade 
crossings. In addition, local authorities within the State of Illinois 
cannot order grade crossing modifications. However, after considering 
these comments, FRA did not revise the definition of ``public 
authority'' to exclude local communities. As stated in the interim 
final rule, a review of section 21053 of title 49 of the United States 
Code indicates a clear Congressional preference that quiet zone 
decision-makers be 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 * * * a reasonable 
amount of time for local communities to install SSMs.'' Given this 
statutory directive, FRA is unwilling to exclude local communities from 
the definition of ``public authority.''
    FRA also received comments from Dr. Robert Johnson, a resident of 
Houston, Texas, who recommended that the rule be revised to empower 
citizens to designate quiet zones. However, FRA is unwilling to expand 
the definition of ``public authority'' to include individuals. This 
final rule requires public authorities to take certain steps during the 
quiet zone development process for which State and local governments 
are uniquely suited, given the need to coordinate State and local 
efforts to improve high-risk crossings. If FRA were to empower 
individuals to create quiet zones in their neighborhoods, it would 
become exceedingly difficult to keep track of the quiet zone 
development process and to ensure that the proper notifications of 
quiet zone continuation/establishment have been made.

Section 222.38 Can a Quiet Zone Be Created in the Chicago Region?

    This section has been added to the final rule to provide 
clarification as to the effect of the final rule in the Chicago Region. 
As stated in Sec.  222.3(c) of this part, the final rule will not apply 
to any highway-rail grade crossing in the Chicago Region where the 
railroad was excused from sounding the locomotive horn by the Illinois 
Commerce Commission, and where the railroad did

[[Page 21863]]

not sound the horn, as of December 18, 2003 (the publication date of 
the Interim Final Rule). Therefore, the horn sounding requirements set 
forth in Sec.  222.21 will not apply to these crossings. On the other 
hand, pending the Chicago Region data re-analysis discussed in 
``Chicago Regional Issues'' (Supplementary Information, section 7), 
public authorities who would otherwise have been authorized to include 
these crossings in a new duly created quiet zone may no longer do so.
    Public authorities may establish New Quiet Zones and/or New Partial 
Quiet Zones in the Chicago Region. However, any New Quiet Zone or New 
Partial Quiet Zone established in the Chicago Region cannot include any 
highway-rail grade crossing described in Sec.  222.3(c) of this part.

Section 222.39 How Is a Quiet Zone Established?

    This section addresses the manner in which a quiet zone may be 
established. In the NPRM, FRA proposed two different methods of 
establishing quiet zones. In one method, 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 
be required to designate the 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 (which was ultimately 
adopted) would provide a governmental entity greater flexibility in 
using SSMs and ASMs to address problem crossings. The second method 
allows FRA to consider quiet zones that do not have SSMs 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 absence of routine sounding of the locomotive horn.
    FRA received a number of comments that were critical of the 
corridor approach to risk reduction, including comments from the Ohio 
Rail Development Commission, the Ohio Railroad Association, the 
Metropolitan Transit Authority, and the AAR. FRA also received comments 
from Ohio Congressman Dennis Kucinich, the New York Department of 
Transportation, the Missouri Department of Transportation, and the 
Florida Department of Transportation recommending that the rule be 
revised to establish a maximum risk threshold for individual grade 
crossings.
    FRA is, however, committed to providing a flexible approach to 
quiet zone establishment. Even though the final rule does not require 
public authorities to install SSMs at the highest-risk crossings with 
quiet zones, FRA expects that many public authorities will install SSMs 
at those crossings, regardless of any obvious safety-motivated reasons 
for doing so. By installing an SSM at the highest-risk crossing within 
a proposed quiet zone corridor, the public authority will gain a higher 
overall risk reduction than that which would result from the 
installation of a similar SSM at a low-risk crossing.
    It should also be noted that FRA retains the right to review the 
status of any quiet zone under Sec.  222.51(c). If risk dramatically 
increases within a quiet zone, FRA may require the installation of 
additional safety improvements or terminate the quiet zone after 
providing an opportunity for comment. Should immediate action be 
required, FRA also reserves the right to exercise its emergency 
authority under 49 U.S.C. 20104 and 49 CFR Part 211, by issuing an 
order to immediately resume routine locomotive horn sounding at 
specific grade crossings.
    Paragraph (a) of this section addresses situations in which the 
public authority may designate a quiet zone without the need for formal 
application to, or approval by, FRA. Paragraphs (a)(1) and (a)(2) have 
not been revised in the final rule. However, paragraph (a)(3), which 
provides that a quiet zone can be established by implementing SSMs that 
are sufficient to reduce the Quiet Zone Risk Index to a level at, or 
below, the Risk Index With Horns, has been revised in the final rule to 
substitute the defined term ``Risk Index With Horns'' for language that 
had been used in the interim final rule to provide an explanation of 
this standard.
    FRA has revised the rule to give railroads and State agencies the 
opportunity to play a greater role during the quiet zone development 
process. Therefore, paragraph (b)(1) of this section, which provides a 
list of required documentation for public authority applications for 
quiet zone approval, now requires that the application include a 
statement describing the public authority's efforts to work with all 
affected railroads and the State agency responsible for grade crossing 
safety, as well as a list of any objections that may have been raised 
to the proposed quiet zone by the railroad(s) and State agency.
    Paragraph (b)(1)(i) requires public authorities to submit an 
accurate, complete, and current Grade Crossing Inventory Form for each 
public and private grade crossing. FRA would like to clarify that FRA 
is not requiring that Grade Crossing Inventory Forms be submitted to, 
and processed by, FRA's designated contractor before submission. Given 
the fact that it can take up to three months to process a Grade 
Crossing Inventory Form, FRA will accept copies of Grade Crossing 
Inventory Forms that have been submitted for processing, provided all 
entries on the Grade Crossing Inventory Form have been completed.
    Paragraph (b)(2) specifically addresses quiet zone application 
requirements for newly established public and private highway-rail 
grade crossings. This paragraph has been added to the final rule in 
response to comments received from the Chicago Area Transportation 
Study and the Chicago Department of Transportation, which noted that 
there are locations in the Chicago Region where extensions of rail 
lines are expected to result in new grade crossings. The Chicago Area 
Transportation Study and the Chicago Department of Transportation 
requested that FRA waive the half-mile minimum length requirement 
imposed by Sec.  222.35(a)(1) for these crossings. After considering 
these comments, as well as the implications of creating a quiet zone 
with newly established grade crossings, FRA has added a paragraph to 
the final rule that sets forth additional data requirements for each 
newly established grade crossing that will be included in the proposed 
quiet zone. Thus, paragraph (b)(2) of this section requires public 
authorities to submit five-year projected vehicle and rail traffic 
counts for newly established public and private grade crossings, in 
addition to the documentation required by paragraph (b)(1) of this 
section, as part of the public authority's application package.
    FRA has, however, decided not to waive the half-mile minimum length 
requirement, imposed by Sec.  222.35(a)(1), regarding newly established 
grade crossings. In FRA's experience, rail line extensions often exceed 
one-half mile in length. Therefore, this half-mile minimum length 
requirement should not present a substantial obstacle to the creation 
of quiet zones that contain newly established grade crossings. Should a 
public authority wish to create a quiet zone that is less than one-half 
mile in length, the public authority may file a petition for a waiver 
in accordance with Sec.  222.15.
    Paragraph (b)(3) has been added to the final rule in response to 
comments requesting a greater role for State agencies in the quiet zone 
development process. As discussed earlier in the analysis of Sec.  
222.17, the Ohio Public Utilities Commission and the California Public 
Utilities Commission recommended that the interim final rule

[[Page 21864]]

be revised to require State agency review and approval of all proposed 
quiet zones. The North Carolina Department of Transportation 
recommended that the interim final rule be revised to allow State 
departments of transportation to serve as clearinghouses for quiet zone 
requests or, in the alternative, to require public authorities to seek 
formal state and railroad input on quiet zone proposals. The City of 
Saint Paul, Minnesota also submitted comments recommending that the 
interim final rule be revised to assign technical resource/review 
responsibility to the State rail authority to ensure accuracy and 
uniformity of quiet zone applications.
    FRA also received a number of comments from the railroad industry 
requesting that the final rule be revised to allow railroads to provide 
input during the quiet zone development process. The Fort Worth & 
Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho 
Northern & Pacific Railroad submitted comments suggesting that the rule 
be revised to establish a proactive review process for railroad input 
on the potential impact of proposed quiet zones. The Florida East Coast 
Railway submitted comments recommending that the rule be revised to 
require railroad and state government involvement during the quiet zone 
development process. Asserting that the interim final rule fails to 
provide for any meaningful input by State authorities or railroads 
during the quiet zone development process, the Metropolitan Transit 
Authority also submitted comments recommending that the rule be revised 
to allow for participation by the State and railroads during the quiet 
zone evaluation and decision-making process, in order to facilitate 
consideration of relevant information. The Association of American 
Railroads submitted comments expressing its strong objection to failure 
of the interim final rule to provide railroads that own or operate over 
grade crossings within a proposed quiet zone the opportunity to provide 
input.
    After considering these comments, FRA has revised the rule by 
providing an opportunity for State agencies and railroads to review and 
provide input on the public authority application for FRA approval, in 
accordance with the procedures set forth in paragraph (b)(3). Under the 
terms of this paragraph, copies of the public authority application 
shall be provided, by certified mail, return receipt requested, to: All 
railroads operating over the public highway-rail grade crossings within 
the quiet zone; the highway or traffic control or law enforcement 
authority having jurisdiction over vehicular traffic at grade 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; the State agency responsible for grade 
crossing safety; and the Associate Administrator. Any party that 
receives a copy of the public authority application may then submit 
comments on the public authority application to the Associate 
Administrator during the 60-day period after the date on which the 
application was mailed. However, this 60-day comment period can be 
waived if the public authority application includes written statements 
from each affected railroad, the highway or traffic control authority 
or law enforcement authority having control over vehicular traffic at 
the crossings within the quiet zone, the State agency responsible for 
grade crossing safety, and the State agency responsible for highway and 
road safety stating that the railroad, vehicular traffic authority and 
State agencies have waived their rights to provide comments on the 
public authority application.
    Paragraph (b)(4) addresses the Associate Administrator's decisions 
on quiet zone applications. After reviewing any comments submitted 
during the 60-day comment period established by paragraph (b)(3) of 
this section, the Associate Administrator will approve the quiet zone 
if the public authority has complied with the requirements established 
by this paragraph (b) and has satisfactorily demonstrated that the 
proposed SSMs and ASMs will result in a Quiet Zone Risk Index that is 
at, or below, the Risk Index With Horns or the Nationwide Significant 
Risk Threshold. However, the Associate Administrator may include 
conditions in the decision of approval that are necessary, in the 
Associate Administrator's judgment, to ensure that the proposed safety 
improvements are effective. If the Associate Administrator does not 
approve the quiet zone application, the reasoning behind the Associate 
Administrator's decision will be provided to the public authority. 
Copies of the Associate Administrator's decision shall be provided to 
all parties listed in paragraph (b)(3)(i) of this section.
    This paragraph (b)(4) has been revised in the final rule to give 
railroads an opportunity to petition the Associate Administrator to 
reconsider his/her decision to approve a quiet zone application. Under 
the interim final rule, only the public authority could request 
reconsideration of the Associate Administrator's decisions on quiet 
zone applications. Under this final rule, the public authority and the 
railroad may petition the Associate Administrator to reconsider his/her 
decision to approve or deny a quiet zone application, on the basis that 
the Associate Administrator improperly exercised his/her judgment in 
finding that the proposed SSMs and ASMs would, or would not, result in 
a Quiet Zone Risk Index that is at or below the Risk Index With Horns 
or the Nationwide Significant Risk Threshold. Petitions for 
reconsideration may be filed with the Associate Administrator in 
accordance with Sec. Sec.  222.57(b) and (d).
    Paragraph (c) of this section has not been revised in the final 
rule.

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

    This section addresses the effect of this rule on Pre-Rule Quiet 
Zones and Pre-Rule Partial 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 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. A 
Pre-Rule Partial 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 for a specified period of time 
during the evening and/or nighttime hours, or at which locomotive horns 
did not sound due to formal or informal agreements between the 
community and the railroad or railroads for a specified period of time 
during the evening and/or nighttime hours, 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.
    FRA received a number of comments seeking clarification of the 
rule's treatment of pre-existing partial whistle bans. Noting that it 
had adopted a partial whistle ban in 1993 that prohibits the routine 
sounding of the locomotive horn between the hours of 10 p.m. and 7 
a.m., the City of Plymouth, Minnesota requested that FRA treat pre-
existing partial whistle bans ``just like other Pre-Rule bans.'' The 
City of Highland Park, Illinois also submitted comments asserting that

[[Page 21865]]

partial whistle ban communities should be granted Pre-Rule Quiet Zone 
status. On the other hand, the City of Sacramento, California, which 
has a partial ban on the routine sounding of locomotive horns between 
the hours of 6 p.m. and 7 a.m., requested that FRA establish a lower 
target risk index for partial Pre-Rule Quiet Zones. Noting that two 
communities in DuPage County have pre-existing partial whistle bans, 
the Chicago Area Transportation Study recommended that the same 
standards and procedures already in place be applied to part-time Quiet 
Zones. Additionally, the Chicago Area Transportation Study recommended 
that FRA allow existing partial whistle bans to remain in effect until 
they could meet the standards for 24-hour Quiet Zones.
    On the other hand, the AAR urged FRA to prohibit the continuation 
of pre-existing partial whistle bans that are based on temporary 
crossing closures. AAR argued that, at the very least, these grade 
crossings should not be allowed to qualify for quiet zone status by 
comparison to the Nationwide Significant Risk Threshold because the 
Nationwide Significant Risk Threshold does not accurately reflect the 
average risk level for the time period within which temporary crossing 
closures are in effect. AAR asserted that an average risk level for 
partial whistle bans would necessarily be lower than the Nationwide 
Significant Risk Threshold.
    After considering these comments, FRA decided to adopt an approach 
similar to that which was recommended by the City of Plymouth, 
Massachusetts and the Chicago Area Transportation Study, whereby Pre-
Rule Partial Quiet Zones will be treated in a manner similar to 24-hour 
Pre-Rule Quiet Zones. Therefore, communities with Pre-Rule Partial 
Quiet Zones that do not qualify for automatic approval will be given 
additional time within which to meet the standards set for 24-hour Pre-
Rule Quiet Zones, provided the public authority complies with the 
requirements set forth in Sec.  222.41(b).
    FRA has not established a lower risk threshold for Pre-Rule Partial 
Quiet Zones. FRA remains confident that Pre-Rule Quiet Zones that have 
Quiet Zone Risk Indices that are at, or below, either the Nationwide 
Significant Risk Threshold or two times the Nationwide Significant Risk 
Threshold with no relevant accidents over the past five years 
constitute a category of highway-rail grade crossings that do not 
present a significant risk with respect to loss of life or serious 
personal injury.
    It should be noted that the Nationwide Significant Risk Threshold 
does not reflect the average level of risk at crossings at which the 
locomotive horn is silenced. Rather, the Nationwide Significant Risk 
Threshold reflects the average level of risk at crossings at which the 
locomotive horn is routinely sounded. Therefore, the formula used to 
calculate the Nationwide Significant Risk Threshold would not produce a 
lower risk level for crossings at which the locomotive horn is silenced 
during the evening/nighttime hours.
    Paragraph (a) of this section addresses the establishment of Pre-
Rule Quiet Zones by automatic approval. This paragraph was revised in 
the final rule to extend the cut-off date for relevant collisions to 
April 27, 2005. This revision has been made to ensure that any relevant 
collisions that occur between the publication dates of the interim 
final rule and the final rule are included in any determinations on 
this issue. This paragraph has also been revised to allow Pre-Rule 
Quiet Zones to be established by automatic approval if the Quiet Zone 
Risk Index is at or below the Risk Index With Horns. This revision has 
been made to accommodate those Pre-Rule Quiet Zone communities that 
will be able to meet the Risk Index With Horns by obtaining risk 
reduction credit for pre-existing SSMs. Lastly, this paragraph has also 
been revised to require the public authority to provide Notice of Quiet 
Zone Establishment, in accordance with Sec.  222.43, on or before 
December 24, 2005. After December 24, 2005, all Pre-Rule Quiet Zones 
must be established in accordance with paragraph (c) of this section.
    Paragraph (b) has been added to the final rule to address the 
establishment of Pre-Rule Partial Quiet Zones by automatic approval. 
Pre-Rule Partial Quiet Zones are similar to Pre-Rule Quiet Zones 
because they have a collision history, unlike New Quiet Zones, that can 
be analyzed to determine the safety effect of silencing the horn at the 
crossings within the quiet zone. Therefore, FRA will allow Pre-Rule 
Partial Quiet Zones that are established by automatic approval under 
paragraph (b) of this section to remain in effect. Pre-Rule Partial 
Quiet Zones can be established by automatic approval if, in addition to 
Sec. Sec.  222.35 and 222.43, the quiet zone is in compliance with one 
of the following conditions: (1) There are SSMs at every public 
highway-rail grade crossing within the quiet zone; (2) if the Quiet 
Zone Risk Index as last published by FRA is at, or below, the 
Nationwide Significant Risk Threshold; (3) if 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 past five years; or (4) if the Quiet Zone 
Risk Index as last published by FRA is at, or below, the Risk Index 
With Horns. It should be noted that, for purposes of Pre-Rule Partial 
Quiet Zones, collisions that occurred during the time period within 
which the locomotive horn was routinely sounded are not considered 
``relevant collisions.''
    This paragraph also requires the public authority to provide Notice 
of Quiet Zone Establishment, in accordance with Sec.  222.43, on or 
before December 24, 2005. After December 24, 2005, all Pre-Rule Partial 
Quiet Zones must be established in accordance with paragraph (c) of 
this section.
    Paragraph (c) addresses those Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones that will not be established by automatic approval. 
This paragraph has been revised in the final rule to include Pre-Rule 
Partial Quiet Zones, to adjust the three- and five-year grace periods 
to correspond to the final rule effective date, and to provide a 
reference to other relevant Pre-Rule Quiet Zone and Pre-Rule Partial 
Quiet Zone requirements. Paragraph (c)(1) provides that a public 
authority may decide to continue Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones on an interim basis under the provisions of this 
paragraph. 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 accordance with Sec.  222.39 
(``How is a quiet zone established?'')) and compliance with the 
requirements set forth in Sec. Sec.  222.25(c), 222.27(d), and 222.35.
    Paragraph (c)(2)(i) provides that a public authority may continue a 
Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone for five years from 
the effective date of the final rule. This 5-year grace period should 
ensure that the public authority has adequate time for planning and 
implementation of SSMs or ASMs. This five-year extension is, however, 
dependent on the public authority filing a detailed plan for 
establishing a quiet zone under this part. If the proposed 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 the safety improvements. The plan must 
be filed by June 24, 2008. FRA understands that, in some cases, plans 
filed in accordance with this paragraph will be contingent

[[Page 21866]]

on funding arrangements that may not be complete as of the date of 
filing (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.
    Paragraph (c)(2)(ii) specifically addresses those situations in 
which, during the three-year period following the final rule effective 
date, the Quiet Zone Risk Index for its Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone has dropped to a level at or below the Nationwide 
Significant Risk Threshold. In these situations, the Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone may remain in effect without any 
additional safety improvements, provided the public authority provides 
notification of Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
establishment in accordance with Sec.  222.43 and has complied with the 
requirements of Sec. Sec.  222.25(c), 222.27(d) and 222.35(c) on or 
before June 24, 2008.
    Thus, the practical implication of paragraph (c)(2) is that a Pre-
Rule Quiet Zone or Pre-Rule Partial Quiet Zone may continue for three 
years from the effective date of the final rule without the 
installation of any improvements by the public authority. In addition, 
should the Quiet Zone Risk Index for the Pre-Rule Quiet Zone or Pre-
Rule Partial Quiet Zone fall to a level at or below the Nationwide 
Significant Risk Threshold during this three-year grace period, the 
Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone may remain in 
effect, provided the public authority provides notification of quiet 
zone establishment in accordance with Sec.  222.43 and has complied 
with the requirements set forth in Sec. Sec.  222.25(c), 222.27(d) and 
222.35 on or before June 24, 2008. However, if the Quiet Zone Risk 
Index for the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone does 
not fall to a level at or below the Nationwide Significant Risk 
Threshold by the end of the three-year grace period, locomotive horns 
shall resume sounding at all public crossings within the former quiet 
zone, unless the public authority has filed a detailed plan for 
completing the necessary safety improvements.
    If certain conditions are met, paragraph (c)(3) states that 
locomotive horn restrictions may continue for three years beyond the 
five-year period permitted under paragraph (c)(2). The appropriate 
State agency must provide to the Associate Administrator a 
comprehensive State-wide implementation plan and funding commitment, by 
June 24, 2008, for implementing improvements at Pre-Rule Quiet Zones 
and Pre-Rule Partial Quiet Zones. (These improvements must, when 
implemented, enable the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet 
Zone to qualify for quiet zone status under this rule.) In addition, 
physical improvements must have been initiated at one of the crossings 
within the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone, or the 
State agency must have participated in quiet zone improvements in one 
or more jurisdictions elsewhere in the State, by June 24, 2009. FRA 
wishes to emphasize that the requirement for a plan and some funding 
participation is not intended to restrict any State to a single 
approach for addressing this need. By June 24, 2008, for instance, a 
State agency might have in place a broad policy for providing technical 
assistance to communities interested in continuing Pre-Rule Quiet 
Zones, along with sufficient identified funding to participate in the 
initial improvement required by June 24, 2009. It is not intended that 
the State agency assume general financial responsibility for this 
program unless the State elects to do so. Rather, the additional three-
year grace period provided by this provision is intended to encourage 
State assistance of whatever appropriate type and to create an 
incentive for the State to contribute to improvements in any 
jurisdiction where environmental justice issues are prevalent.
    Paragraph (c)(4), which has not been revised in the final rule, 
states that if the safety improvements planned for the quiet zone will 
require FRA approval, the public authority should apply for such 
approval prior to December 24, 2007, to ensure that FRA will have ample 
time to review such application prior to the end of the three-year 
extension period.
    Paragraph (d), which addresses Pre-Rule Partial Quiet Zones that 
will be converted to 24-hour quiet zones, has been added in response to 
comments received on the rule. The Minnesota Department of 
Transportation submitted comments asserting that communities should be 
entitled to convert their Pre-Rule Partial Quiet Zones into full quiet 
zones, if they so choose. The Township of Montclair, New Jersey also 
submitted comments requesting that the final rule address the Pre-Rule 
Quiet Zone status implications of converting a Pre-Rule Partial whistle 
ban into a 24-hour whistle ban. FRA has decided to allow communities to 
convert their Pre-Rule Partial Quiet Zones into 24-hour quiet zones, if 
the quiet zone complies with the New Quiet Zone requirements set forth 
in Sec. Sec.  222.25, 222.27, 222.35 and 222.39, and the public 
authority provides notification of the establishment of a New 24-hour 
Quiet Zone in accordance with Sec.  222.43. FRA is requiring public 
authorities to meet these requirements because Pre-Rule Partial Quiet 
Zones do not have collision histories that reflect the increased risk 
that will result from silencing the routine use of the locomotive horn 
for 24 hours.

Section 222.42 How Does This Rule Affect Intermediate Quiet Zones and 
Intermediate Partial Quiet Zones?

    This section addresses the effect of this rule on Intermediate 
Quiet Zones and Intermediate Partial Quiet Zones. An Intermediate 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 at which such statutes, ordinances or agreements were in 
place and enforced or observed as of December 18, 2003, but not as of 
October 9, 1996. An Intermediate Partial 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 for a 
specified period of time during the evening or nighttime hours, or at 
which locomotive horns did not sound due to formal or informal 
agreements between the community and the railroad or railroads for a 
specified period of time during the evening and/or nighttime hours, and 
at which such statutes, ordinances or agreements were in place and 
enforced or observed as of December 18, 2003, but not as of October 9, 
1996.
    This section has been added to the final rule in response to 
comments expressing concern that the interim final rule does not 
address the needs of communities that enacted whistle bans after 
October 9, 1996. Steven Klafka, resident of Madison, Wisconsin, 
submitted comments recommending that the final rule extend the cutoff 
date for Pre-Rule Quiet Zone status to include the Madison whistle ban 
that was adopted in 2001. The Town of Newbury, Massachusetts, which 
enacted a whistle ban after commuter rail service resumed in October 
1998, also asserted that communities that had established whistle bans 
as of the date of the interim final rule should qualify

[[Page 21867]]

for Pre-Rule Quiet Zone status. Alternately, a new category of ``pre-
existing'' quiet zones should be added to the rule, which would not be 
required to meet the stringent risk formulas required of New Quiet 
Zones. Congressman John Tierney submitted comments requesting special 
consideration for communities like Newbury that do not qualify for Pre-
Rule Quiet Zone status. At the very least, Congressman Tierney asserted 
that communities like Newbury should be granted a waiver from the 
rule's effective date and given additional time to comply with the 
rule. In a similar vein, Massachusetts State Representative Harriett 
Stanley submitted comments requesting that the interim final rule be 
amended to either grant Pre-Rule Quiet Zone status to communities like 
Newbury or to create a new category of quiet zones for these 
communities.
    The Town of Concord, Massachusetts also submitted comments on this 
issue. Asserting that the October 9, 1996 cutoff date for Pre-Rule 
Quiet Zones is inequitable, the Town of Concord recommended that the 
interim final rule be revised to allow all communities with pre-
existing whistle bans to qualify for Pre-Rule Quiet Zone status. This 
position was reiterated in comments submitted by Massachusetts State 
Representative Doug Atkins and Concord resident Mark Garvey.
    After considering these comments, FRA determined that a third quiet 
zone category should be added to the final rule, which will be referred 
to as ``Intermediate Quiet Zones'' and ``Intermediate Partial Quiet 
Zones'', to cover communities like Newbury and Concord that enacted 
whistle bans after October 9, 1996, which were in place when the 
interim final rule was issued on December 18, 2003. Intermediate Quiet 
Zone and Intermediate Partial Quiet Zone communities will be required 
to meet New Quiet Zone standards, but will be given additional time 
within which to come into compliance. FRA did not extend full Pre-Rule 
Quiet Zone treatment because these whistle bans were not in effect when 
Congress instructed FRA to address the needs of communities that had 
pre-existing whistle bans on October 9, 1996.
    Paragraph (a) provides that a public authority may continue an 
Intermediate Quiet Zone or Intermediate Partial Quiet Zone on an 
interim basis, provided notification of quiet zone continuation is 
provided in accordance with Sec.  222.43. It is, however, important to 
note that this paragraph only provides interim authority to continue a 
quiet zone. Continuation of the Intermediate Quiet Zone or Intermediate 
Partial Quiet Zone beyond June 24, 2006 will require implementation of 
SSMs or ASMs in accordance with Sec.  222.39 (``How is a quiet zone 
established?'') and compliance with the New Quiet Zone standards set 
forth in Sec. Sec.  222.25, 222.27 and 222.35.
    Thus, the practical implications of this timetable is that 
Intermediate Quiet Zones and Intermediate Partial Quiet Zones may 
continue until June 24, 2006. Locomotive horns will, however, resume 
sounding at all public crossings within the former quiet zone, unless 
the public authority has created a New Quiet Zone or New Partial Quiet 
Zone by implementing sufficient SSMs and/or ASMs to bring the quiet 
zone into compliance with Sec.  222.39 and taking the necessary steps 
to comply with the New Quiet Zone standards set forth in Sec. Sec.  
222.25, 222.27 and 222.35.
    Paragraph (b) addresses Intermediate Partial Quiet Zones that will 
be converted to 24-hour quiet zones. An Intermediate Partial Quiet Zone 
can be converted into a 24-hour New Quiet Zone by complying with the 
New Quiet Zone standards set forth in Sec. Sec.  222.25, 222.27, 222.35 
and 222.39, provided notification of intent to create a New Quiet Zone 
and notification of New Quiet Zone establishment is provided in 
accordance with Sec.  222.43.

Section 222.43 What Notices and Other Information Are Required To 
Create or Continue a Quiet Zone?

    This section sets forth the requirements that pertain to the four 
different types of quiet zone notification. The intent of this section 
is to ensure that interested parties are made aware of quiet zone 
initiation, continuation, and establishment in a timely manner.
    Under paragraph (a)(1) of this section, the public authority is 
required to provide notification of its intent to create a New Quiet 
Zone or New Partial Quiet Zone under Sec.  222.39. This notification 
shall be provided by certified mail, return receipt requested, to: All 
railroads operating over the public highway-rail grade crossings within 
the quiet zone; the State agency responsible for highway and road 
safety; and the State agency responsible for grade crossing safety. 
This requirement has been added to the final rule to ensure that 
railroads and State agencies are given an opportunity to provide 
comment on proposed quiet zones.
    Paragraph (a)(2) requires the public authority to provide 
notification of its intent to continue a Pre-Rule Quiet Zone or Pre-
Rule Partial Quiet Zone under Sec.  222.41or to continue an 
Intermediate Quiet Zone or Intermediate Partial Quiet Zone under Sec.  
222.42. This notification shall be provided by certified mail, return 
receipt requested, to: All railroads operating over the public highway-
rail grade crossings within the quiet zone; the highway or traffic 
control or law enforcement authority having jurisdiction over vehicular 
traffic at grade 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; the State agency 
responsible for grade crossing safety; and the Associate Administrator. 
Although the interim final rule required public authorities to provide 
notification of Pre-Rule Quiet Zone continuation, this requirement has 
been expanded in the final rule to include Pre-Rule Partial Quiet 
Zones, Intermediate Quiet Zones, and Intermediate Partial Quiet Zones. 
In addition, the rule has been revised to require the public authority 
to submit copies of all supporting documentation to each party listed 
in this paragraph. (Under the interim final rule, some supporting 
documentation was submitted only to the Associate Administrator.)
    Paragraph (a)(3) requires the public authority to provide 
notification of its intent to file a detailed plan for a Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone in accordance with Sec.  222.41. 
This notification shall be provided by certified mail, return receipt 
requested, to all railroads operating over the public highway-rail 
grade crossings within the quiet zone; the State agency responsible for 
highway and road safety; and the State agency responsible for grade 
crossing safety. This requirement has been added to the final rule to 
ensure that railroads and State agencies are given an opportunity to 
provide comment on proposed improvements to the quiet zone before the 
detailed plan for quiet zone improvements is filed under Sec.  
222.41(c)(2).
    Paragraph (a)(4) requires the public authority to provide 
notification of quiet zone establishment under Sec.  222.39, 222.41(a), 
or 222.41(b). This notification shall be provided by certified mail, 
return receipt requested, to: All railroads operating over the public 
highway-rail grade crossings within the quiet zone; the highway or 
traffic control or law enforcement authority having jurisdiction over 
vehicular traffic at grade 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; the 
State

[[Page 21868]]

agency responsible for grade crossing safety; and the Associate 
Administrator.
    FRA notes that paragraph (a) has been revised in the final rule in 
response to comments submitted by Kristian Foondle, who discovered a 
discrepancy between the preamble and the interim final rule text, which 
failed to include the State agency responsible for grade crossing 
safety in the list of parties to be notified. As it has always been 
FRA's intention to include the State agency responsible for grade 
crossing safety in the list of parties that must receive notification, 
FRA has revised the final rule accordingly.
    Paragraph (b) addresses the Notice of Intent that is required for 
New Quiet Zones and New Partial Quiet Zones. The Notice of Intent has 
been added to the final rule in response to comments from State 
agencies and railroads requesting a greater role in the quiet zone 
development process. (Please refer to the Section-by-Section analysis 
of Sec.  222.39(b) for a discussion of these comments.) As the issuance 
of the Notice of Intent will give State agencies and railroads an 
opportunity to provide input to the public authority on the proposed 
quiet zone, FRA strongly encourages public authorities to provide 
written notification of their intent to create quiet zones as early in 
the quiet zone development process as possible.
    Paragraph (b)(1) provides a list of documents that must be included 
in the Notice of Intent. Paragraph (b)(1)(i) states that the public 
authority must provide a list of each public highway-rail grade 
crossing, private highway-rail grade crossing, and pedestrian crossing 
that would be included in the proposed quiet zone, identified by both 
U.S. DOT National Highway-Rail Grade Crossing Inventory Number and 
street or highway name. This requirement, which was revised in the 
final rule to include pedestrian crossings, will help parties identify 
crossings that would be affected by the proposed quiet zone. Paragraph 
(b)(1)(ii) states that the Notice of Intent must contain a statement of 
the time period within which restrictions would be imposed on the 
routine sounding of the locomotive horn. (It should be noted that New 
Partial Quiet Zones may only restrict locomotive horn use between the 
hours of 10 p.m. and 7 a.m.) This requirement will help parties 
determine the type of quiet zone that is being proposed. Paragraph 
(b)(1)(iii) states that the Notice of Intent shall contain a brief 
explanation of the public authority's tentative plans for implementing 
improvements within the proposed quiet zone. This explanation should 
contain information on the types of SSMs and/or ASMs that may be 
utilized. FRA also encourages the public authority to provide a 
specific reference to the regulatory provision that would provide the 
basis for quiet zone creation, if known. Paragraph (b)(1)(iv) states 
that the Notice of Intent shall provide the name and address of the 
person who will act as the point of contact during the quiet zone 
development process, as well as the manner in which that person can be 
contacted. This designated person shall accept comments, if any, on the 
proposed quiet zone from State agencies and/or railroads. Paragraph 
(b)(1)(v) requires that the Notice of Intent include a list of all of 
the parties that will receive notification in accordance with paragraph 
(a)(1) of this section.
    Paragraph (b)(2), which has been added to the final rule, 
establishes a 60-day comment period on the Notice of Intent. This 
comment period was added in response to comments requesting that the 
rule be revised to provide opportunities for State agencies and 
railroads to provide input during the quiet zone development process. 
Under paragraph (b)(2)(i), any party that receives a copy of the Notice 
of Intent may submit information or comments about the proposed quiet 
zone to the public authority during the 60-day period after the date on 
which the Notice of Intent was mailed. Even though the public authority 
would be well advised to carefully consider any thoughtful and well-
reasoned comments received, FRA will not require the public authority 
to take any action in response. This 60-day comment period may 
terminate, under paragraph (b)(2)(ii), when the public authority 
obtains either written comments or ``no-comment'' statements from each 
railroad operating over public grade crossings within the proposed 
quiet zone, the State agency responsible for grade crossing safety, and 
the State agency responsible for highway and road safety.
    Paragraph (c) addresses the Notice of Quiet Zone Continuation. The 
interim final rule required public authorities to provide notice of the 
continuation of Pre-Rule Quiet Zones, but the scope of this requirement 
has been expanded in the final rule to include Pre-Rule Partial Quiet 
Zones, Intermediate Quiet Zones and Intermediate Partial Quiet Zones. 
Paragraph (c)(1)(i) states that, in order to prevent the resumption of 
locomotive horn sounding on June 24, 2005, the Notice of Quiet Zone 
Continuation shall be served no later than June 3, 2005. However, if 
the Notice of Quiet Zone Continuation is mailed after June 3, 2005, 
paragraph (c)(1)(ii) states that the Notice of Quiet Zone Continuation 
shall state the date on which locomotive horn use at highway-rail grade 
crossings within the quiet zone shall cease, but in no event shall that 
date be earlier than 21 days after the date of mailing. This 
requirement should ensure that railroads receive notification of quiet 
continuation at least 21 days before the horn sounding requirements of 
this rule take effect, so that railroads will have enough time to 
notify their locomotive engineers of quiet zone locations.
    Paragraph (c)(2) provides a list of documents that must be provided 
in each Notice of Quiet Zone Continuation. The final rule has been 
revised to require the public authority to submit copies of all 
documentation to each party listed in paragraph (a)(2) of this section. 
This revision should facilitate the transfer of information about the 
quiet zone to the parties that will be most affected by it.
    Paragraph (c)(2)(i) states that the public authority must provide a 
list of each public highway-rail grade crossing, private highway-rail 
grade crossing, and pedestrian crossing within the quiet zone, 
identified by both U.S. DOT National Highway-Rail Grade Crossing 
Inventory Number and street or highway name. This paragraph was revised 
in the final rule to include pedestrian crossings. Paragraph (c)(2)(ii) 
states that Notice must contain a specific reference to the regulatory 
provision that provides the basis for quiet zone continuation, while 
paragraph (c)(2)(iii) requires that the Notice contain a statement of 
the time period within which restrictions will continue to be imposed 
on the routine sounding of the locomotive horn. This statement should 
indicate whether restrictions are imposed on a 24-hour basis or merely 
during the nighttime hours. If restrictions are imposed during the 
nighttime hours, the statement must provide the specific times at which 
the restrictions will begin and end.
    Paragraph (c)(2)(iv) requires the public authority to submit, to 
each party listed in paragraph (a)(2), an accurate and complete Grade 
Crossing Inventory Form for each public highway-rail grade crossing, 
private highway-rail grade crossing, and pedestrian crossing that 
reflects conditions currently existing at the crossing. The interim 
final rule required public authorities to submit an accurate and 
complete Grade Crossing Inventory Form for each public and private 
highway-rail grade crossing dated within six months of quiet zone 
designation or FRA approval. This paragraph has, however, been revised 
to include pedestrian crossings. In addition, the six-month limitation 
has been removed based on comments

[[Page 21869]]

received from SEH, Inc., which asserted that the six-month requirement 
was burdensome because some states and railroads perform mass updates 
only a few times a year. Therefore, under the final rule, FRA will 
accept copies of accurate and complete Grade Crossing Inventory Forms, 
even if the forms are more than six months old, provided they reflect 
conditions that currently exist at the crossing.
    FRA would like to clarify that FRA is not requiring that Grade 
Crossing Inventory Forms be submitted to, and processed by, FRA's 
contractor before submission. Given the fact that it can take up to 
three months to process a Grade Crossing Inventory Form, FRA will 
accept copies of Grade Crossing Inventory Forms that have been 
submitted to FRA's contractor for processing, provided all entries on 
the Grade Crossing Inventory Form have been completed.
    Paragraph (c)(2)(v) requires the public authority to provide the 
name and address of the person responsible for monitoring compliance 
with the requirements of this part, as well as the manner in which that 
person can be contacted. Paragraph (c)(2)(vi) requires the public 
authority to provide a list of parties that will receive notification 
in accordance with paragraph (a)(2) of this section. Please note that 
this requirement has been revised in the final rule to require the 
public authority to provide a list of the names, as well as the 
addresses, of each party that will be notified in accordance with 
paragraph (a)(2) of this section.
    Paragraph (c)(2)(vii) requires each public authority to submit a 
statement from its chief executive officer. This requirement has been 
revised in the final rule to require that the chief executive officer's 
statement include a certification that the information submitted by the 
public authority is accurate and complete to the best of his/her 
knowledge and belief.
    Paragraph (d) addresses the Notice of Detailed Plan that is 
required for Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that 
did not qualify for automatic approval under Sec.  222.41. The Notice 
of Detailed Plan was added to the final rule in response to comments 
from State agencies and railroads requesting a greater role in the 
quiet zone development process. (Please refer to the Section-by-Section 
analysis of Sec.  222.39(b) for a discussion of these comments.)
    Paragraph (d)(1) states that the Notice of Detailed Plan must be 
served no later than four months before the filing of the detailed plan 
under Sec.  222.41(c)(2). This requirement should ensure that State 
agencies and railroads are given an opportunity to provide input on 
proposed crossing improvements before the detailed plan is filed.
    Paragraph (d)(2) provides a list of documents that must be included 
in the Notice of Detailed Plan. Paragraph (d)(2)(i) states that the 
public authority must provide a list of each public highway-rail grade 
crossing, private highway-rail grade crossing, and pedestrian crossing 
that will be included in the quiet zone, identified by both U.S. DOT 
National Highway-Rail Grade Crossing Inventory Number and street or 
highway name. Paragraph (d)(2)(ii) states that the Notice of Detailed 
Plan shall contain a statement of the time period within which 
restrictions would be imposed on the routine sounding of the locomotive 
horn. This statement should indicate whether restrictions are imposed 
on a 24-hour basis or merely during the nighttime hours. If 
restrictions are imposed during the nighttime hours, the statement must 
provide the specific times at which the restrictions will begin and 
end.
    Paragraph (d)(2)(iii) states that the Notice of Detailed Plan shall 
contain a brief explanation of the public authority's tentative plans 
for implementing improvements within the proposed quiet zone. This 
explanation should contain information on the types of SSMs and/or ASMs 
that may be utilized. FRA also encourages the public authority to 
provide a specific reference to the regulatory provision that would 
provide the basis for quiet zone creation, if known. Paragraph 
(d)(2)(iv) states that the Notice of Detailed Plan must provide the 
name and address of the person who will act as the point of contact 
during the quiet zone development process, as well as the manner in 
which that person can be contacted. This designated person shall accept 
comments, if any, on the proposed crossing improvements from State 
agencies and/or railroads. Paragraph (d)(2)(v) requires that the Notice 
of Detailed Plan include a list of all of the parties that will receive 
notification in accordance with paragraph (a)(3) of this section.
    Paragraph (d)(3) establishes a 60-day comment period on the Notice 
of Detailed Plan. This comment period was added in response to comments 
requesting that the rule be revised to provide opportunities for State 
agencies and railroads to provide input during the quiet zone 
development process. Thus, any party that receives a copy of the Notice 
of Detailed Plan may submit information or comments about the proposed 
crossing improvements to the public authority during the 60-day period 
after the date on which the Notice of Detailed Plan was mailed. Even 
though the public authority would be well advised to carefully consider 
any thoughtful and well-reasoned comments received, FRA will not 
require the public authority to take any action in response.
    Paragraph (e) addresses the Notice of Quiet Zone Establishment. As 
stated in paragraph (a)(4), FRA is requiring public authorities to 
provide notice of quiet zone establishment for New Quiet Zones and New 
Partial Quiet Zones established under Sec.  222.39, Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones that qualify for automatic 
approval under Sec.  222.41(a) or 222.41(b), and Pre-Rule Quiet Zones 
and Pre-Rule Partial Quiet Zones that did not qualify for automatic 
approval under Sec.  222.41.
    Paragraph (e)(1) governs the timing of the Notice of Quiet Zone 
Establishment. Paragraph (e)(1)(i) retains the interim final rule 
requirement that the Notice of Quiet Zone Establishment shall provide 
the date upon which routine locomotive horn use at highway-rail grade 
crossings shall cease, but in no event shall the date be earlier than 
21 days after the date on which the Notice was mailed.
    Paragraph (e)(1)(ii) states that if the public authority was 
required to provide a Notice of Intent, in accordance with paragraph 
(a)(1) of this section, the Notice of Quiet Zone Establishment shall 
not be mailed less than 60 days after the mailing of the Notice of 
Intent, unless the Notice of Quiet Zone Establishment contains a 
written statement affirming that written comments and/or ``no-comment'' 
statements have been received from each railroad operating over public 
grade crossings within the proposed quiet zone, the State agency 
responsible for grade crossing safety, and the State agency responsible 
for highway and road safety in accordance with paragraph (b)(2)(ii) of 
this section. This requirement has been added to the rule to ensure 
that State agencies and railroads are given an opportunity to provide 
comment on the Notice of Intent before the Notice of Quiet Zone 
Establishment is issued.
    Paragraph (e)(2) provides a list of documents that must be provided 
in each Notice of Quiet Zone Establishment. The final rule has been 
revised to require the public authority to submit copies of all 
documentation to each party listed in paragraph (a)(4) of this section. 
This revision should facilitate the transfer of information about the 
quiet zone to the parties that will be most affected by it.

[[Page 21870]]

    Paragraph (e)(2)(i) states that the Notice of Quiet Zone 
Establishment shall include a list of each public highway-rail grade 
crossing, private highway-rail grade crossing, and pedestrian crossing 
within the quiet zone, identified by both U.S. DOT National Highway-
Rail Grade Crossing Inventory Number and street or highway name. This 
paragraph has been revised to include pedestrian crossings. Paragraph 
(e)(2)(ii) states that Notice shall contain a specific reference to the 
regulatory provision that provides the basis for quiet zone 
establishment. This paragraph has, however, been revised to require 
public authorities to provide greater specificity when citing Sec.  
222.41 as the regulatory basis for quiet zone establishment. Paragraph 
(e)(2)(ii) also contains additional documentation requirements that are 
linked to the specific regulatory provision cited in the Notice. If the 
Notice contains a specific reference to Sec.  222.39(a)(2)(i), 
222.39(a)(2)(ii), 222.39(a)(3), 222.41(a)(1)(ii), 222.41(a)(1)(iii), 
222.41(a)(1)(iv), 222.41(b)(1)(ii), 222.41(b)(1)(iii), or 
222.41(b)(1)(iv), the Notice shall contain a copy of the FRA web page 
that reflects the quiet zone data upon which the public authority is 
relying. On the other hand, if the Notice includes a specific reference 
to Sec.  222.39(b), it shall contain a copy of FRA's notification of 
approval. If a diagnostic team review was required under Sec.  222.25 
or 222.27, paragraph (e)(2)(iii) states that the Notice shall contain a 
statement from the public authority affirming that the State agency 
responsible for grade crossing safety and all affected railroads were 
provided an opportunity to participate in the diagnostic team review. 
The Notice shall also contain a list of recommendations made by the 
diagnostic team.
    Paragraph (e)(2)(iv) requires that the Notice contain a statement 
of the time period within which restrictions will be imposed on the 
routine sounding of the locomotive horn. This statement should indicate 
whether restrictions will be imposed on a 24-hour basis or merely 
during the nighttime hours. If restrictions will be imposed during the 
nighttime hours, the statement must provide the specific times at which 
the restrictions will begin and end. (It should be noted that New 
Partial Quiet Zones may only restrict locomotive horn use between the 
hours of 10 p.m. and 7 a.m.)
    Paragraph (e)(2)(v) requires the public authority to submit, to 
each party listed in paragraph (a)(2), an accurate and complete Grade 
Crossing Inventory Form for each public highway-rail grade crossing, 
private highway-rail grade crossing, and pedestrian crossing within the 
quiet zone that reflects the conditions existing at the crossing before 
any new SSMs or ASMs were implemented. (``New'' SSMs are those SSMs 
that do not meet the definition of ``pre-existing SSMs.'') The interim 
final rule required public authorities to submit an accurate and 
complete Grade Crossing Inventory Form for each public and private 
highway-rail grade crossing dated within six months of quiet zone 
designation or FRA approval. This paragraph has, however, been revised 
to include pedestrian crossings. In addition, the six-month limitation 
has been removed in response to comments from SEH, Inc, which asserted 
that the six-month requirement was burdensome because some states and 
railroads perform mass updates only a few times a year. Therefore, 
under the final rule, FRA will accept copies of accurate and complete 
Grade Crossing Inventory Forms, even if the forms are more than six 
months old.
    Paragraph (e)(2)(vi) requires the public authority to submit, to 
each party listed in paragraph (a)(4), an accurate, complete and 
current Grade Crossing Inventory Form for each public highway-rail 
grade crossing, private highway-rail grade crossing, and pedestrian 
crossing within the quiet zone that reflects SSMs and ASMs in place 
upon establishment of the quiet zone. SSMs and ASMs that cannot be 
fully described on the Inventory Form shall be separately described. 
This paragraph has been revised to include pedestrian crossings.
    FRA would like to clarify that FRA is not requiring that Grade 
Crossing Inventory Forms be submitted to, and processed by, FRA's 
contractor before submission. Given the fact that it can take up to 
three months to process a Grade Crossing Inventory Form, FRA will 
accept copies of Grade Crossing Inventory Forms that have been 
submitted to FRA's contractor for processing, provided all entries on 
the Grade Crossing Inventory Form have been completed.
    Paragraph (e)(2)(vii) states that if the public authority was 
required to provide a Notice of Intent, in accordance with paragraph 
(a)(1) of this section, the Notice of Quiet Zone Establishment shall 
contain a statement affirming that the Notice of Intent was, in fact, 
provided in accordance with paragraph (a)(1) of this section. This 
statement shall also state the date on which the Notice of Intent was 
mailed.
    If the Notice of Quiet Zone Establishment was, however, mailed less 
than 60 days after the date on which the Notice of Intent was mailed, 
paragraph (e)(2)(viii) states that the Notice of Quiet Zone 
Establishment shall also contain a written statement, in accordance 
with paragraph (e)(1)(ii), affirming that written comments and/or ``no 
comment'' statements have been received from each railroad operating 
over public grade crossings within the proposed quiet zone, the State 
agency responsible for grade crossing safety, and the State agency 
responsible for highway and road safety in accordance with paragraph 
(b)(2)(ii) of this section.
    Paragraph (e)(2)(ix) states that if the public authority was 
required to provide a Notice of Detailed Plan in accordance with 
paragraph (a)(3) of this section, the Notice of Quiet Zone 
Establishment shall contain a statement affirming that the Notice of 
Detailed Plan was, in fact, provided in accordance with paragraph 
(a)(3) of this section. This statement shall also state the date on 
which the Notice of Detailed Plan was mailed.
    Paragraph (e)(2)(x) requires the public authority to provide the 
name and address of the person responsible for monitoring compliance 
with the requirements of this part, as well as the manner in which that 
person can be contacted. Paragraph (e)(2)(xi) requires the public 
authority to provide a list of parties that will receive notification 
in accordance with paragraph (a)(4) of this section. Please note that 
this requirement has been revised in the final rule to require the 
public authority to provide a list of the names, as well as the 
addresses, of each party that will be notified in accordance with 
paragraph (a) of this section.
    Paragraph (e)(2)(xii) requires each public authority to submit a 
statement from its chief executive officer. This requirement has been 
revised in the final rule to require that the chief executive officer's 
statement include a certification that the information submitted by the 
public authority is accurate and complete to the best of his/her 
knowledge and belief.

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

    This section was revised in the final rule to provide a more 
specific reference to the provisions contained within Sec.  222.43 that 
pertain to the Notice of Quiet Zone Establishment.

Section 222.47 What Periodic Updates Are Required?

    The Southern California Regional Rail Authority submitted comments 
on this section recommending that the rule be revised to require public 
authorities to submit confirmation of dedicated

[[Page 21871]]

funding for non-engineering ASMs in their periodic updates. While FRA 
encourages public authorities to ensure a dedicated funding source for 
their non-engineering ASMs, FRA is unwilling to require public 
authorities to do so. Should a lack of funding negatively impact a non-
engineering ASM, the violation rates within the affected quiet zone 
should increase, which in turn, should motivate the public authority to 
devote additional resources to the ASM. In addition, FRA reserves the 
right to review quiet zone status under Sec.  222.51(c), if the 
Associate Administrator perceives that the safety systems and measures 
implemented within the quiet zone do not fully compensate for the 
absence of the locomotive horn.
    Paragraphs (a) and (b) of this section have been revised in the 
final rule to require public authorities to submit updated Grade 
Crossing Inventory Forms for pedestrian crossings, in addition to the 
updated Inventory Forms for public and private grade crossings that 
were required under the interim final rule.

Section 222.49 Who May File Grade Crossing Inventory Forms?

    Paragraph (a) of this section was revised in the final rule to 
clarify that Grade Crossing Inventory Forms required to be filed with 
the Associate Administrator in accordance with Sec.  222.39 may also be 
filed by the public authority if, for any reason, such forms are not 
timely submitted by the State and railroad. However, paragraph (b) of 
this section has not been revised in the final rule.
    The Ohio Rail Development Commission submitted comments noting that 
the interim final rule did not require State agency review of the Grade 
Crossing Inventory Forms before submission. The Ohio Rail Development 
Commission asserted that such review would ensure that accurate data is 
provided on the Grade Crossing Inventory Form. The California PUC also 
submitted comments asserting that public authorities should not be 
allowed to update the Grade Crossing Inventory Form. However, FRA has 
not revised the rule to require State agency review of Grade Crossing 
Inventory Forms or to prohibit public authorities from submitting 
updated Grade Crossing Inventory Forms. Sections 222.43 and 222.47 of 
the rule, which requires public authorities to submit Grade Crossing 
Inventory Forms as part of their quiet zone notification packages or 
periodic updates, also require the public authority to provide copies 
of these notification packages and periodic updates to the State agency 
responsible for grade crossing safety. Therefore, State agencies that 
receive copies of the Grade Crossing Inventory Forms as part of the 
public authority notification packages and periodic updates can review 
these Forms and then notify FRA if any inaccurate data is discovered. 
If substantial data errors are discovered, FRA reserves the right to 
review quiet zone status under Sec.  222.51(c).
    The North Carolina Department of Transportation submitted comments 
recommending that this section be revised to include penalties and/or 
sanctions for parties that misrepresent data on the Grade Crossing 
Inventory Form. FRA has not revised the rule to include specific 
penalties or sanctions for parties that misrepresent data. However, FRA 
reserves the right to refer any person for criminal prosecution, under 
49 U.S.C. 21311, who knowingly and willfully provides false information 
during the quiet zone application and/or designation process.

Section 222.51 Under What Conditions Will Quiet Zone Status Be 
Terminated?

    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 provided by the average gated public 
crossing where locomotive horns are routinely sounded. In order to 
ensure this level of safety, FRA will review grade crossing safety data 
on at least an annual basis. Paragraphs (a) and (b) address annual FRA 
risk reviews of quiet zones established in comparison to the Nationwide 
Significant Risk Threshold, while paragraph (c) provides for a review 
of quiet zone status at FRA's initiative. Paragraph (d) has been added 
to give public authorities the ability to withdraw their quiet zone 
status at any time, while addressing the implications of withdrawing 
from a multi-jurisdictional quiet zone. Paragraphs (e) and (f) address 
the quiet zone termination process.
    Paragraph (a) addresses annual reviews of risk levels at crossings 
within New Quiet Zones. Paragraph (a)(1) provides that FRA will 
annually calculate the Quiet Zone Risk Index for New Quiet Zones and 
New Partial Quiet Zones, if they were established in comparison to the 
Nationwide Significant Risk Threshold under Sec.  222.39. FRA will also 
notify the public authority of the Quiet Zone Risk Index for the 
preceding calendar year. FRA will not, however, perform routine annual 
risk reviews for New Quiet Zones, or New Partial Quiet Zones that were 
established by having an SSM at every public grade crossing or by 
reducing the Quiet Zone Risk Index to the Risk Index With Horns. There 
is no need to perform annual risk reviews for these types of quiet 
zones because the quiet zone risk level has been reduced to a level 
that fully compensates for the absence of the locomotive horn. 
Paragraph (a)(2) has not been revised in the final rule.
    Paragraph (b) addresses annual reviews of risk levels at crossings 
within Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones. This 
paragraph has been revised in the final rule to include Pre-Rule 
Partial Quiet Zones. 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. Sec.  222.41(a)(1)(ii) and 222.41(a)(1)(iii) and each 
Pre-Rule Partial Quiet Zone that qualified for automatic approval 
pursuant to Sec. Sec.  222.41(b)(1)(ii) and 222.41(b)(1)(iii). 
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. (Again, it should be noted that collisions occurring outside the 
time period within which the locomotive horn is routinely sounded are 
not considered ``relevant collisions'' for purposes of Pre-Rule Partial 
Quiet Zones.)
    Paragraph (b)(2) addresses Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones that originally qualified for automatic approval 
pursuant to Sec. Sec.  222.41(a)(1)(ii) and 222.41(b)(1)(ii). Under 
paragraph (b)(2)(i), a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet 
Zone that qualified for automatic approval under Sec.  222.41(a)(1)(ii) 
or 222.41(b)(1)(ii) may continue unchanged if the Quiet Zone Risk 
Index, as last calculated by FRA, remains at, or below, the Nationwide 
Significant Risk Threshold. In addition, under paragraph (b)(2)(ii) of 
this section, 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, the Pre-Rule Quiet Zone or 
Pre-Rule Partial Quiet Zone may continue as though it originally 
received automatic

[[Page 21872]]

approval pursuant to Sec.  222.41(a)(1)(iii) or 222.41(b)(1)(iii) of 
this part. Paragraph (b)(2)(iii) has not been revised in the final 
rule.
    Paragraph (b)(3) addresses Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones that originally qualified for automatic approval 
pursuant to Sec. Sec.  222.41(a)(1)(iii) and 222.41(b)(1)(iii). Under 
paragraph (b)(3)(i), a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet 
Zone that qualified for automatic approval under Sec. Sec.  
222.41(a)(1)(iii) or 222.41(b)(1)(iii) may continue unchanged if the 
Quiet Zone Risk Index, as last calculated by FRA, remains below twice 
the Nationwide Significant Risk Threshold and there have been no 
relevant collisions at any public grade crossing within the quiet zone 
during the preceding calendar year. Paragraph (b)(3)(ii) of this 
section has not been revised in the final rule.
    Paragraph (b)(4) of this section has been revised to substitute the 
term ``Risk Index With Horns'' for the phrase ``a level that fully 
compensates for the absence of the train horn.''
    Asserting that one year of data may not be indicative of a trend, 
Metra submitted comments on this section, asserting that Pre-Rule Quiet 
Zone status should be maintained for at least three years regardless of 
changes to the Nationwide Significant Risk Threshold. However, FRA has 
not revised the rule to extend the time period between risk reviews for 
Pre-Rule Quiet Zones. If a public authority is concerned that 
fluctuations in the Nationwide Significant Risk Threshold may require 
additional improvements in the near future, then the public authority 
should consider implementing improvements within the Pre-Rule Quiet 
Zone that will reduce the QZRI to a level at or below the Risk Index 
With Horns. By reducing the QZRI to the Risk Index With Horns, the 
public authority can avoid annual risk reviews and any associated 
uncertainty.
    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 any 
unforeseen and dramatic increase in risk that may arise in the future. 
Under this paragraph, if the Associate Administrator makes a 
preliminary determination that (1) the safety systems and measures 
implemented within the quiet zone do not fully compensate for the 
absence of the locomotive horn due to a substantial increase in risk, 
(2) documentation relied upon to establish the quiet zone contains 
substantial errors that may have an adverse impact on public safety, or 
(3) significant risk with respect to the loss of life or serious 
personal injury exists within the quiet zone, the Associate 
Administrator will provide written notice of that determination. This 
notice of determination shall be provided to the public authority, all 
railroads operating over 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 grade crossing 
safety, and the State agency responsible for highway and road safety. 
The Associate Administrator will also publish a notice of determination 
in the Federal Register.
    This paragraph has been revised in the final rule to include those 
situations in which FRA becomes aware of substantial errors in the 
documentation that was relied upon when the quiet zone was established. 
FRA made this revision in response to comments submitted by the AAR, 
which suggested that FRA explicitly reserve the right to immediately 
terminate any quiet zone that was improperly implemented. After 
considering this comment, FRA decided to reserve the right to terminate 
quiet zones that have been implemented on the basis of significantly 
misleading information that may adversely impact public safety. 
Although action by FRA under this section does not immediately 
terminate the quiet zone, as proposed by the AAR, FRA retains emergency 
order authority to do so. It should also be noted that FRA reserves the 
right to refer any person for criminal prosecution under 49 U.S.C. 
21311 or 18 U.S.C. 1001, or both, who knowingly and willfully provides 
false information during the quiet zone application and/or designation 
process.
    FRA would like to provide clarification of the standard that would 
be applied for any quiet zone risk review in accordance with paragraph 
(c)(2)(iii) of this section. The DuPage Mayors and Manager Conference 
and the Chicago Area Transportation Study submitted comments 
recommending that the rule be revised to draw a distinction between the 
standard of ``significant risk with respect to loss of life or serious 
personal injury'' that may be applied during FRA review of a quiet zone 
and the Nationwide Significant Risk Threshold. After considering these 
comments, FRA would like to take this opportunity to note that FRA 
review of quiet zone status under paragraph (c) of this section will 
not be triggered every time the QZRI rises above the Nationwide 
Significant Risk Threshold. However, if the Associate Administrator 
perceives that an existing quiet zone contains an extraordinary level 
of risk, due to a recent collision, a marked increase in train or 
vehicular traffic, or a marked increase in train or vehicular speeds, 
FRA reserves the right to review quiet zone status at its initiative.
    Paragraph (c)(3) provides an opportunity to provide comments on the 
preliminary determination to the Associate Administrator. After 
considering the comments provided, the Associate Administrator may 
require that additional safety measures be taken or that the quiet zone 
be terminated. The final rule has been revised to specifically state 
that the Associate Administrator will provide a copy of his/her 
decision to the public authority and all parties listed in paragraph 
(c)(2) of this section. The public authority may appeal the Associate 
Administrator's decision by submitting a petition for reconsideration 
in accordance with Sec.  222.57(c).
    Although very unlikely, conditions at any particular crossing or 
quiet zone could pose such an imminent hazard that the quiet zone 
termination procedures established by this section become contrary to 
public safety. Thus, paragraph (c)(3) specifically states that this 
section is not intended to limit the Administrator's emergency order 
authority under 49 CFR part 211 or 49 U.S.C. 20104, which provides 
statutory authority to the Administrator 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) was added to the final rule in response to comments 
received from the New Jersey Department of Transportation which noted 
that the interim final rule did not provide a process by which quiet 
zone status could be withdrawn. Under this paragraph, any public 
authority that participated in the establishment a quiet zone may, at 
any time, withdraw its quiet zone status, even if the public authority 
is part of a multi-jurisdictional quiet zone.
    Paragraph (d)(2) establishes the process by which quiet zone status 
may be terminated by the public authority. Under this paragraph, a 
public authority may terminate its quiet zone status by providing 
written notice of quiet zone termination, by certified mail, return 
receipt requested, to all railroads operating the public highway-rail 
grade crossings within the quiet zone, the

[[Page 21873]]

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 grade crossing safety, 
the State agency responsible for highway and road safety, and the 
Associate Administrator.
    Paragraph (d)(3) specifically addresses situations in which a 
public authority may wish to withdraw from a multi-jurisdictional quiet 
zone. Paragraph (d)(3)(i) states that the public authorities 
responsible for the remaining quiet zones shall provide statements to 
the Associate Administrator that certify that the Quiet Zone Risk Index 
for each remaining quiet zone is at, or below, the Nationwide 
Significant Risk Threshold or the Risk Index With Horns. These 
statements shall be provided, no later than six months after the notice 
of quiet zone termination was mailed, to all parties listed in 
paragraph (d)(2) of this section.
    If any remaining quiet zone has a Quiet Zone Risk Index in excess 
of the Nationwide Significant Risk Threshold and the Risk Index With 
Horns, the public authority responsible for that quiet zone shall 
submit a written commitment, to all parties listed in paragraph (d)(2) 
of this section, to reduce the Quiet Zone Risk Index to the Nationwide 
Significant Risk Threshold or the Risk Index With Horns. Included in 
this commitment statement shall be a discussion of the specific steps 
to be taken by the public authority to reduce the Quiet Zone Risk 
Index. This commitment statement shall be provided to all parties 
listed under paragraph (d)(2) of this section no later than six months 
after the date on which the notice of quiet zone termination was 
mailed.
    Paragraph (d)(3)(iii) states that failure to comply with paragraph 
(d)(3)(i) or (d)(3)(ii) of this section (i.e., failure to submit a 
certification or commitment statement) shall result in termination of 
the remaining quiet zone(s) six months after the date on which the 
notice of quiet zone termination was mailed by the withdrawing public 
authority. Paragraph (d)(3)(iv) states that failure to complete 
implementation of SSMs and/or ASMs to reduce the Quiet Zone Risk Index 
to a level at, or below, the Nationwide Significant Risk Threshold or 
the Risk Index With Horns in accordance with the written commitment 
provided under paragraph (d)(3)(ii) of this section shall result in 
termination of the remaining quiet zone three years after the date on 
which the written commitment was received by FRA.
    Paragraph (e) establishes the notification process that must be 
followed when a quiet zone is terminated. This process has been revised 
in the final rule to require the public authority to provide immediate 
notification of quiet zone termination by certified mail, return 
receipt requested, to all railroads operating over 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 grade crossing safety, the State agency 
responsible for highway and road safety, and the Associate 
Administrator. The final rule has also been revised to require FRA to 
provide written notification to all parties listed in paragraph (e)(1) 
of this section. This provision was, however, added as a safeguard, as 
the public authority retains primary responsibility for notifying all 
parties listed in paragraph (e)(1) of the termination of a quiet zone.
    Paragraph (f) retains the requirement that railroads begin sounding 
the locomotive horn at all public highway-rail grade crossings within 
the former quiet zone within seven days after receiving notice of quiet 
zone termination.

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. This paragraph has also been revised in the final 
rule to state that, with the exception of permanent crossing closures, 
pre-existing SSMs can qualify for quiet zone risk reduction credit in 
the manner specified by appendix A. This revision has been made in 
response to comments requesting that the final rule assign quiet zone 
risk reduction credit for pre-existing SSMs. For example, Vydas 
Juskelis, resident of Villa Park, Illinois, submitted comments 
requesting credit for the medians that the village had installed at two 
grade crossings in 1998 and 2003. Under this final rule, if the medians 
installed by the Village of Villa Park comply with the requirements set 
forth in appendix A, the medians will qualify for quiet zone risk 
reduction credit.
    The Village of Hinsdale, Illinois submitted comments suggesting 
that the rule be revised to provide credit for communities that have 
installed SSMs since October 9, 1996. However, the Chicago Department 
of Transportation, the Chicago Area Transportation Study and the DuPage 
Mayors and Managers Conference submitted comments asserting that any 
SSM, regardless of when it was installed, should result in quiet zone 
risk reduction. If a qualification ``cut-off'' date was necessary, 
though, in order to provide credit for some, but not all, SSMs that 
have already been installed, the date of November 2, 1994 would be 
appropriate. After considering these comments, FRA decided to provide 
risk reduction credit for pre-existing SSMs regardless of the date on 
which the SSM was installed, so that all communities that installed 
have SSMs can obtain risk reduction credit for having done so.
    The final rule does not, however, provide credit for pre-existing 
permanent grade crossing closures or pre-existing grade separations 
because the risk level that existed at the original public grade 
crossing before it was permanently closed or grade-separated cannot be 
determined. Public authorities should not be adversely affected by this 
exception, though, because the risk indices for public grade crossings 
that have been permanently closed or grade separated are not included 
in the calculation of the Quiet Zone Risk Index.
    Paragraph (b) has also been revised in the final rule to provide 
credit for pre-existing modified SSMs, in the manner specified by 
appendix B. The Chicago Department of Transportation submitted comments 
asserting that any ASM, regardless of when it was installed, should 
result in quiet zone risk reduction credit. However, if a ``cutoff'' 
date must be chosen, the date on which Public Law 103-440 was adopted 
(November 2, 1994) would be appropriate. After considering these 
comments, FRA revised the rule to provide risk reduction credit for 
pre-existing modified SSMs, regardless of the date on which the 
modified SSM was installed. FRA has not, however, extended risk 
reduction credit for pre-existing non-engineering ASMs or engineering 
ASMs because the initial risk level that existed at public grade 
crossings when the non-engineering ASM or engineering ASM was 
implemented cannot be determined.
    Paragraph (c) has not been revised in the final rule.

[[Page 21874]]

Section 222.55 How Are New Supplementary or Alternative Safety Measures 
Approved?

    This section has not been revised in the final rule.

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

    This section details the right of parties to seek review of the 
Associate Administrator's actions.
    Paragraph (a) of this section has been revised to provide a list of 
the parties that shall receive a copy of the petition for review of the 
Associate Administrator's decision to grant or deny an application of 
approval of a new SSM or ASM.
    Paragraph (b) provides a process by which a public authority may 
request reconsideration of a decision of the Associate Administrator to 
deny an application for approval of a quiet zone or to require 
additional safety measures as a condition of approval. Under the terms 
of this paragraph, the public authority may file a petition for 
reconsideration within 60 days of the date of the Associate 
Administrator's decision. The petition, which must be served upon all 
parties listed in Sec.  222.39(b)(3), must specify the grounds for 
asserting that the proposed SSMs and ASMs would not result in a Quiet 
Zone Risk Index that would be at or below the Risk Index With Horns or 
the Nationwide Significant Risk Threshold. Upon receipt of a timely and 
proper petition, the Associate Administrator will give the public 
authority an opportunity to submit additional documents and to request 
an informal hearing. After reviewing the additional materials and 
completing any hearing requested, the Associate Administrator shall 
issue a decision on the petition that will be administratively final.
    Paragraph (c) provides a process by which a public authority may 
request reconsideration of a decision of the Associate Administrator to 
terminate quiet zone status. This process has, however, been revised in 
the final rule, as filing a petition under this paragraph will no 
longer stay the termination of quiet zone status, unless the Associate 
Administrator publishes a notice in the Federal Register that 
specifically stays the effectiveness of his/her decision to terminate 
quiet zone status. Under the terms of this paragraph, a public 
authority may file a petition for reconsideration within 60 days of the 
date of the Associate Administrator's decision. The petition must 
specify the grounds for the requested relief and be served upon all 
parties listed in Sec.  222.51(c)(2). Upon receipt of a timely and 
proper petition, the Associate Administrator will give the public 
authority an opportunity to submit additional documents and to request 
an informal hearing. After reviewing the additional materials and 
completing any hearing requested, the Associate Administrator shall 
issue a decision on the petition that will be administratively final. A 
copy of this decision will be served on each party listed in Sec.  
222.51(c)(2).
    Paragraph (d) has been added to the final rule in response to 
comments submitted by the Association of American Railroads requesting 
a formal right to appeal FRA approvals of proposed quiet zones when a 
railroad believes that public safety will be adversely affected by the 
quiet zone. After considering these comments, FRA revised the final 
rule to provide a process by which a railroad may request 
reconsideration of a decision of the Associate Administrator to approve 
a quiet zone application under Sec.  222.39(b). Under the terms of this 
paragraph, a railroad may file a petition for reconsideration within 60 
days of the Associate Administrator's decision to approve a quiet zone 
application. The petition, which must be served upon all parties listed 
in Sec.  222.39(b)(3), must specify the grounds for asserting that the 
proposed SSMs and ASMs would result in a Quiet Zone Risk Index that 
would be at or below the Risk Index With Horns or the Nationwide 
Significant Risk Threshold. Upon receipt of a timely and proper 
petition, the Associate Administrator will give the railroad an 
opportunity to submit additional materials and to request an informal 
hearing. After reviewing any additional materials and completing any 
hearing requested, the Associate Administrator shall issue a decision 
which shall be administratively final.

Section 222.59 When May a Wayside Horn Be Used?

    This section addresses the requirements pertaining to wayside horn 
installations at grade crossings.
    Paragraph (a) of this section has not been revised in the final 
rule. The Chicago Area Transportation Study submitted comments 
recommending that the rule be revised to provide risk reduction credit 
for wayside horn installations within quiet zones. Since wayside horns 
have an effect that is similar to the locomotive horn, the Chicago Area 
Transportation Study recommended that an effectiveness rate of 66.8 
percent be assigned to wayside horns. FRA has not, however, revised the 
rule by assigning an effectiveness rate to the wayside horn. A study 
performed by the Texas Transportation Institute in May 2000, which 
compared driver violation rates at a grade crossing equipped with a 
wayside horn, found that the wayside horn was as effective as the 
locomotive horn. However, after almost five years, use of the wayside 
horn did not result in a significant reduction in driver violation 
rates, when compared to the pre-test, baseline driver violation rate. 
FRA notes that the safety measures that have been approved for use as 
SSMs and have been assigned effectiveness rates, when implemented, have 
a demonstrated effect on reducing crossing collision risk. Since the 
wayside horn has not demonstrated a significant effect on driver 
violation rates, the final rule will continue to treat wayside horns as 
a one-to-one substitute for the locomotive horn.
    Paragraph (b) of this section has been revised in the final rule to 
provide a specific list of parties who shall receive a copy of the 
notice of wayside horn installation. This paragraph has also been 
revised to require that the notice of wayside horn installation state 
the date on which the wayside horn will become operational, which shall 
be at least 21 days after the notice of wayside horn installation is 
mailed.
    Paragraph (c) has been modified in the final rule to allow a 
railroad or public authority to provide written notification of wayside 
horn installations at grade crossings that are located outside a quiet 
zone. Under the interim final rule, the public authority was the only 
party authorized to provide this notification. FRA decided to extend 
this authorization in the final rule to include railroads, in order to 
provide greater flexibility.
    This paragraph has also been revised in the final rule to require 
the railroad or public authority to provide written notification of 
wayside horn installation to all railroads operating over the public 
highway-rail grade crossing, the highway or traffic control authority 
or law enforcement authority having control over vehicular traffic at 
the crossing, the State agency responsible for grade crossing safety, 
the State agency responsible for highway and road safety, and the 
Associate Administrator. Under the interim final rule, the public 
authority was required to provide written notification to the Associate 
Administrator and each railroad operating over the grade crossing. FRA 
has expanded this list of notified parties to ensure that all affected 
parties are notified of wayside horn installations outside quiet zones.
    Paragraph (d) retains the interim final rule requirement that a 
railroad

[[Page 21875]]

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. This paragraph has, 
however, been revised in the final rule, with respect to its treatment 
of grade crossings that are equipped with wayside horns, but located 
outside of a quiet zone. Under the interim final rule, railroads could 
cease routine locomotive horn use at these grade crossings through 
agreement with the public authority. This paragraph has, however, been 
revised in the final rule to require railroads to cease routine 
locomotive horn use on the operational date specified in the notice of 
wayside horn installation, which shall be provided pursuant to 
paragraph (c) of this section.

Appendix A--Supplementary Safety Measures

    Appendix A provides a list of SSMs that have been determined by FRA 
to effectively compensate for the lack of the locomotive horn. This 
list of approved SSMs has been expanded to include permanent closures 
of public highway-rail grade crossings, as discussed herein. However, 
barrier gates have not been added to the list of approved SSMs. FRA 
received comments from Universal Safety Response, Inc. recommending 
that the rule be revised to allow ``smart'' barriers, such as the GRAB-
sp (Ground Retractable Automobile Barrier), to qualify as approved 
SSMs. FRA notes that barrier gates are currently treated as Gates with 
Medians for purposes of quiet zone risk reduction credit. However, 
public authorities who are interested in obtaining a higher 
effectiveness rate for a proposed barrier gate system may submit 
supporting documentation to the Associate Administrator for 
consideration.
    FRA also received a number of comments from individuals and 
organizations, who submitted comments recommending that the rule be 
revised to include extended gate arms which completely block the 
intersection in the list of approved SSMs as a cost-effective 
substitute for 4-quadrant gate systems. Terence Daugherty, Village 
Council President in Russia, Ohio, submitted comments expressing 
disappointment that gates which completely block the intersection on 
the ingress side have not been included in the final rule. The Rice 
Lake Homeowners Association in Chesterton, Indiana, submitted comments 
asserting that extended gate arms should be considered by FRA as a 
cost-effective option for quiet zone risk reduction credit. The Village 
of Silver Lake, Wisconsin submitted comments recommending that extended 
gate arms be tested and approved by FRA as SSMs because they 
effectively prevent motorists from driving around lowered gates and 
they cost considerably less than 4-quadrant gates. Laurie and Greg 
Teran, residents of Acton, Massachusetts, submitted comments urging FRA 
to accommodate local solutions for high grade crossing risk by allowing 
safety gates with \3/4\-length arms to be used as Alternative Safety 
Measures. On the other hand, the North Carolina Department of 
Transportation submitted comments asserting that the use of articulated 
and longer gate arms should not be permitted as an SSM, in light of 
studies that have demonstrated decreased effectiveness from the use of 
these devices.
    After considering these comments, FRA did not revise the rule by 
adding elongated gate arms to the list of approved SSMs because of the 
lack of demonstrated effectiveness of these devices. However, public 
authorities who wish to add elongated gate arms to the list of approved 
SSMs are encouraged to follow the procedures set forth in Sec.  222.55 
for obtaining FRA approval to demonstrate the effectiveness of these 
traffic control measures.
    Appendix A has also been revised in the final rule to set forth the 
procedures by which public authorities can receive credit for certain 
pre-existing SSMs. (For a discussion of the comments received on this 
issue, please refer to the preamble discussion of Sec.  222.53.) An 
explanatory note has also been added at the beginning of this appendix, 
which states that the SSM effectiveness rates are subject to adjustment 
as research and demonstration projects are completed and data is 
gathered and refined. This explanatory note, which was derived from 
language in the preamble to the interim final rule, has been added to 
the final rule text to make it clear that the effectiveness rates of 
the SSMs listed in appendix A are subject to change. FRA received 
comments on this issue from the Metropolitan Transit Authority and the 
New York Department of Transportation suggesting that the interim final 
rule be revised to include a periodic review of SSM effectiveness 
rates. FRA intends to revise the SSM effectiveness rates in the future, 
as more data on SSM effectiveness rates becomes available through 
research and demonstration projects, as well as real-world experience 
with SSM implementation inside quiet zones. However, formal periodic 
reviews of SSM effectiveness rates have not been added to the final 
rule.
Temporary Closure of a Public Highway-Rail Grade Crossing
    The requirements pertaining to this SSM have been modified in the 
final rule. Requirement ``a'' has been modified to state that the 
closure system must completely block highway traffic on all approach 
lanes to the crossing. This modification was made in response to 
comments received from the Ohio Rail Development Commission suggesting 
that the rule be revised to make it clear that closure devices should 
be provided for each approach to the crossing, including one-way 
streets. Requirement ``b'', which has been added to the final rule, 
pertains to adjacent pedestrian crossings. FRA received comments from 
the AAR and the Ohio Rail Development Commission recommending that the 
final rule be revised to require closure of pedestrian crossings and 
adjacent sidewalks whenever the highway-rail grade crossing is 
temporarily closed. After considering these comments, FRA added 
requirement ``b'' to the final rule, which requires that the closure 
system completely block adjacent pedestrian crossings. Requirement 
``c'' has also been revised in the final rule by requiring a specified 
crossing closure period (10 p.m. until 7 a.m.) within New Partial Quiet 
Zones. This revision has been made in response to comments submitted by 
the AAR, which urged FRA to establish uniform closure periods for 
temporary crossing closures in order to minimize locomotive engineer 
confusion.
    Requirements ``d'' through ``f'' have not been revised in the final 
rule. However, requirement ``g'', which requires that the closure 
system be equipped with a monitoring device that contains an indicator 
that is visible to the train crew prior to entering the crossing, has 
been added to the final rule. The Ohio Rail Development Commission and 
the North Carolina Department of Transportation submitted comments 
recommending that the rule be revised to require that temporary closure 
systems be equipped with monitoring/indicator devices that illuminate 
and are visible to the train crew whenever the quiet zone is in effect 
and the closure system has been deployed. After considering these 
comments and the positive effect that the monitoring/indicator device 
would have on crossing safety, FRA revised the final rule accordingly.

[[Page 21876]]

Four-Quadrant Gate System
    This section has not been revised in the final rule.
    FRA received comments on the effectiveness rates assigned to four-
quadrant gate systems in the interim final rule. The Ohio Rail 
Development Commission submitted comments asserting that the lower 
effectiveness rate assigned to 4-quadrant gate systems with vehicle 
presence detection acts as a disincentive against their use, even 
though vehicle presence detection can be critical to the safe operation 
of the 4-quadrant gate system. Railroad Controls Limited submitted 
similar comments requesting that FRA reconsider its position on this 
issue and acknowledge that 4-quadrant gate systems that incorporate 
vehicle presence detection provide a greater degree of safety to 
roadway users. After considering these comments, FRA did not revise the 
effectiveness rates assigned to four-quadrant systems equipped with 
vehicle presence detection because the vehicle presence detection 
system provides a potential opportunity for motorists to circumvent the 
grade crossing warning system. However, FRA notes that the rule assigns 
a higher effectiveness rate (.92) to four-quadrant gate systems 
equipped with vehicle presence detection, if traffic channelization 
devices at least 60 feet in length are also installed at the crossing. 
FRA also notes that more extensive use of 4-quadrant gates, which has 
begun to take place only over the past several years, will provide 
additional data that may permit an adjustment in the effectiveness rate 
within a reasonably short period.
Gates With Medians or Channelization Devices
    The definition of channelization devices has been revised in the 
final rule to exclude surface-mounted tubular delineators, in response 
to comments expressing concern with the effectiveness of these devices. 
In particular, FRA notes that the North Carolina Department of 
Transportation submitted comments recommending that the rule prohibit 
the use of tube-type delineators that adhere directly to the roadway 
surface as approved channelization devices. These comments were 
especially troubling because FRA relied upon the positive results of a 
traffic study conducted in Charlotte, North Carolina when it allowed 
surface-mounted traffic delineators to be used as approved SSMs under 
the interim final rule.
    FRA also received negative comments on the use of surface-mounted 
tubular delineators from Richard Calvin, Maintenance Manager for the 
City of Malibu, California, which had installed these devices on the 
Pacific Coast Highway to discourage drivers from making left turns at 
inappropriate locations. Mr. Calvin asserted that motorists drove over 
the surface-mounted tubular delineators at such a high rate that the 
majority of the devices had to be replaced annually. Once the surface-
mounted tubular delineators were removed and replaced with medians 
equipped with wide vertical markers, there was a dramatic reduction in 
associated maintenance costs.
    The increased maintenance responsibility associated with surface-
mounted tubular delineators was also discussed in comments from the 
Ohio Rail Development Commission, which asserted that traffic lane 
delineators should not be allowed as channelization devices because 
they are easy to drive through and can be easily broken. Richard Doll, 
Sr., Signal Systems Engineer for the Town of Greenwich, Connecticut, 
submitted comments suggesting that FRA revert back to the language 
within the NPRM, which only allowed the use of mountable curbs as 
approved channelization devices.
    After considering these comments, FRA decided to revise the 
definition of channelization devices to exclude surface-mounted tubular 
delineators, given the maintenance responsibility associated with these 
devices and the impact that inadequate maintenance would have on the 
effectiveness of these devices. FRA decided to adopt an approach 
similar to that recommended by the North Carolina Department of 
Transportation of requiring permanent raised longitudinal channelizers 
as a component of approved median SSMs. FRA notes that it would be 
highly advisable to use raised longitudinal channelizers that are at 
least four inches high. Thus, under the final rule, vertical panels and 
tubular delineators can only be used as approved SSMs, if they are 
affixed to raised longitudinal channelizers or non-traversable curbs.
    The requirements pertaining to this SSM have not been substantially 
revised in the final rule. However, edits have been made to requirement 
``e'' in order to correct a typographical error and provide further 
clarification on when constant warning time devices must be installed. 
The final rule states that constant warning time devices are required 
when existing warning systems are renewed or when new automatic warning 
systems are installed, unless conditions at the crossing would prevent 
the proper operation of these devices.
    FRA received comments on requirements ``b'' and ``c''. The Florida 
Department of Transportation submitted comments reiterating its 
position that 100-foot medians may not provide a sufficient deterrent 
effect. In support of this position, the Florida Department of 
Transportation asserted that 200-foot medians are more effective on 
heavily traveled, multi-lane urban roadways. Therefore, the Florida 
Department of Transportation recommended that traffic volume and the 
number of roadway lanes be evaluated when determining desirable median 
length. As stated in the Interim Final Rule, FRA agrees that use of 
200-foot medians will often be recommended when practicable. However, 
FRA is merely prescribing a minimum 100-foot median length requirement. 
Public authorities may choose to install longer medians at their 
discretion.
    With respect to requirement ``c'', FRA received comments from the 
City of Orange, California recommending that the rule be revised to 
allow commercial driveways within 60 feet of the crossing gate arm, 
provided they are equipped with directional signs and positive 
barricades (i.e., ``Pork Chop'' medians). The City of Orange, 
California also asserted that low-volume commercial driveways should 
not be considered to be intersections for purposes of this rule. 
However, given the unique characteristics of each highway-rail grade 
crossing, FRA would prefer to review public authority applications for 
the use of these modified SSMs on a crossing-by-crossing basis. 
Therefore, requirement c has not been revised in the final rule.
One Way Street With Gate(s)
    Only minor revisions have been made to the list of requirements for 
this SSM. Requirements ``a'' through ``c'' have not been revised in the 
final rule. However, requirement ``d'' has been revised to include Pre-
Rule Partial Quiet Zones. Requirement ``d'' has also been revised to 
provide clarification of the circumstances under which the installation 
of constant warning time devices and power-out indicators would be 
required.
Permanent Closure of a Public Highway-Rail Grade Crossing
    FRA has added permanent grade crossing closures to the list of 
approved SSMs in appendix A. Under the interim final rule, public 
authorities could receive credit for permanently closing a public grade 
crossing by including the crossing to be closed in the calculation of 
the Risk Index With Horns. However, the public authority could not 
include

[[Page 21877]]

the crossing in the calculation of the Quiet Zone Risk Index. As a 
result, the public authority could benefit from an increased Risk Index 
With Horns, but could not directly reduce the Quiet Zone Risk Index by 
permanently closing a public crossing.
    FRA received comments on this issue from the DuPage Mayors and 
Managers Conference, the Chicago Department of Transportation, and the 
Chicago Area Transportation Study requesting that FRA reconsider this 
issue and allow public authorities to include a crossing to be closed 
in the calculation of the Quiet Zone Risk Index. After considering 
these comments and taking note of the fact that the interim final rule 
assigned an effectiveness rate of one to temporary crossing closures, 
FRA decided to include permanent grade crossing closures in the list of 
approved SSMs and to assign an effectiveness rate of one to this new 
SSM. However, the public authority must remember to adjust upward the 
traffic counts of adjacent crossings, in order to reflect the diversion 
of traffic from the newly closed crossing.
Credit for Pre-Existing SSMs
    Sections B and C of this appendix have been added to the final rule 
to address quiet zone risk reduction credit for pre-existing SSMs. The 
procedures set forth in these sections provide quiet zone risk 
reduction credit by inflating the Risk Index With Horns. This reflects 
an assumption that the Risk Index With Horns would have been higher if 
the pre-existing SSMs were never implemented. As discussed in the 
preamble discussion of Sec.  222.53, FRA decided to provide credit for 
pre-existing SSMs after receiving comments on this issue from 
individuals and organizations in the Chicago Region.
    Section B sets forth the procedure by which a community seeking to 
create a New Quiet Zone or New Partial Quiet Zone can receive quiet 
zone risk reduction credit for pre-existing SSMs located within the 
proposed quiet zone. (It should, however, be noted that a public 
authority cannot receive credit for pre-existing permanent crossing 
closures or pre-existing grade separations.) Under this section, a 
public authority is instructed to calculate the current risk index for 
the grade crossing that is equipped with a pre-existing SSM. This 
current risk index will then be increased by dividing the index by one 
minus the SSM effectiveness rate, in order to calculate what the risk 
index for the grade crossing would have been if the SSM had never been 
implemented. This new risk index is then averaged with the current risk 
indices for the other grade crossings within the proposed quiet zone, 
in order to calculate the new Risk Index With Horns for the proposed 
quiet zone. A public authority can then choose to establish a New Quiet 
Zone or New Partial Quiet Zone in comparison to either the new Risk 
Index With Horns or the Nationwide Significant Risk Threshold.
    Section C sets forth the procedure by which a community seeking to 
continue a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone can 
receive quiet zone risk reduction credit for pre-existing SSMs located 
within the quiet zone. (Again, it should be noted that a public 
authority cannot receive credit for pre-existing permanent crossing 
closures or grade separations.) The public authority should first 
calculate the current risk index for the grade crossing that is 
equipped with a pre-existing SSM. This current risk index should then 
be reduced to reflect the risk reduction that could have been achieved 
if locomotive horns had been routinely sounded at the crossing. Based 
on FRA analysis of the effect of the locomotive horn on various 
crossing types, the following risk reduction percentages shall be 
applied: (a) Risk indices for passive crossings shall be reduced by 
43%; (b) Risk indices for grade crossings equipped with automatic 
flashing lights shall be reduced by 27%; and (c) Risk indices for gated 
crossings shall be reduced by 40%.
    This reduced risk index should then be increased by dividing it by 
one minus the SSM effectiveness rate, in order to calculate what the 
risk index would have been if locomotive horns routinely sounded, but 
no SSM had ever been implemented, at the grade crossing.
    Since locomotive horns have been silenced at the other grade 
crossings within the quiet zone, the public authority will also have to 
reduce the current risk indices for the other grade crossings to 
reflect the risk reduction that could have been achieved if locomotive 
horns had been routinely sounded at those grade crossings. Please refer 
to step two for the list of approved risk reduction percentages by 
crossing type.
    These new reduced risk indices should then be averaged with the new 
risk index for the grade crossing equipped with a pre-existing SSM, in 
order to calculate the new Risk Index With Horns for the quiet zone. A 
public authority can then choose to establish the quiet zone in 
comparison to the new Risk Index With Horns or the Nationwide 
Significant Risk Threshold.

Appendix B--Alternative Safety Measures

    Appendix B addresses three types of ASMs: modified SSMs, non-
engineering ASMs, and engineering ASMs. Modified SSMs are SSMs that do 
not fully comply with the provisions listed in appendix A. As provided 
in section I.B. of this appendix, public authorities can obtain risk 
reduction credit for pre-existing modified SSMs under the final rule. 
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. Engineering ASMs are engineering 
improvements, other than modified SSMs, that reduce risk at highway-
rail grade crossings. Examples of engineering ASMs include engineering 
improvements to geometric conditions and sight lines at the crossing.
Modified SSMs
    Section I.A. of this appendix, which contains a discussion of 
modified SSMs and the process by which modified SSM effectiveness rates 
can be determined, has not been revised in the final rule. However, 
sections I.B. and I.C. of this appendix have been added to the final 
rule to address quiet zone risk reduction credit for pre-existing 
modified SSMs. The procedures set forth in these sections provide quiet 
zone risk reduction credit by inflating the Risk Index With Horns. This 
reflects an assumption that the Risk Index With Horns would have been 
higher if the pre-existing modified SSMs were never implemented. As 
discussed in the preamble discussion of Sec.  222.53, FRA decided to 
provide credit for pre-existing modified SSMs after receiving comments 
on this issue from the Chicago Department of Transportation.
    Section I.B. sets forth the procedure by which a community seeking 
to create a New Quiet Zone or New Partial Quiet Zone can receive quiet 
zone risk reduction credit for pre-existing modified SSMs located 
within the proposed quiet zone. Under this section, a public authority 
is instructed to calculate the current risk index for the grade 
crossing that is equipped with a pre-existing modified SSM. Once the 
public authority obtains FRA approval of the estimated effectiveness 
rate for the pre-existing modified SSM, the current risk index for the 
crossing should be increased by dividing the index by one minus the 
FRA-approved estimated effectiveness rate for the pre-existing modified 
SSM, in order to calculate what the risk index for the grade crossing 
would have been if the

[[Page 21878]]

pre-existing modified SSM had never been implemented. This new risk 
index is then averaged with the current risk indices for the other 
grade crossings within the proposed quiet zone, in order to calculate 
the new Risk Index With Horns for the proposed quiet zone. A public 
authority can then choose to establish a New Quiet Zone or New Partial 
Quiet Zone in comparison to either the new Risk Index With Horns or the 
Nationwide Significant Risk Threshold.
    Section I.C. sets forth the procedure by which a community seeking 
to continue a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone can 
receive quiet zone risk reduction credit for pre-existing modified SSMs 
located within the quiet zone. The public authority should first 
calculate the current risk index for the grade crossing that is 
equipped with a pre-existing SSM. This current risk index should then 
be reduced to reflect the risk reduction that could have been achieved 
if locomotive horns had been routinely sounded at the crossing. Based 
on FRA analysis of the effect of the locomotive horn on various 
crossing types, the following risk reduction percentages shall be 
applied: (a) Risk indices for passive crossings shall be reduced by 
43%; (b) Risk indices for grade crossings equipped with automatic 
flashing lights shall be reduced by 27%; and (c) Risk indices for gated 
crossings shall be reduced by 40%.
    Once the public authority obtains FRA approval of the estimated 
effectiveness rate for the pre-existing modified SSM, the reduced risk 
index for the crossing should be increased by dividing it by one minus 
the FRA-approved estimated modified SSM effectiveness rate. This will 
calculate what the risk index would have been if locomotive horns 
routinely sounded, but no modified SSM had ever been implemented, at 
the grade crossing.
    Since locomotive horns have been silenced at the other grade 
crossings within the quiet zone, the public authority will also have to 
reduce the current risk indices for the other grade crossings to 
reflect the risk reduction that could have been achieved if locomotive 
horns had been routinely sounded at those grade crossings. Please refer 
to step two for the list of approved risk reduction percentages by 
crossing type.
    These new reduced risk indices should then be averaged with the new 
risk index for the grade crossing equipped with a pre-existing modified 
SSM, in order to calculate the new Risk Index With Horns for the quiet 
zone. A public authority can then choose to establish the quiet zone in 
comparison to the new Risk Index With Horns or the Nationwide 
Significant Risk Threshold.
Non-Engineering ASMs
    The final rule adds a new recordkeeping requirement for all non-
engineering ASMs. FRA received comments on the interim final rule which 
expressed concern that non-engineering ASMs are not effective 
substitutes for the routine use of the locomotive horn. The North 
Carolina Department of Transportation submitted comments asserting that 
enforcement programs require constant application and significant 
resource allocation to generate significant safety benefits. The 
Metropolitan Transit Authority submitted similar comments and expressed 
concern that, over time, resources may be allocated to other issues, 
resulting in inconsistent enforcement at crossings. In response to 
these comments, FRA revised the final rule to require the public 
authority to retain all records pertaining to monitoring or sampling 
efforts at grade crossings within quiet zones, which are subject to 
non-engineering ASMs, for a period of not less than five years. These 
records shall also be made available, upon request, to FRA as provided 
by 49 U.S.C. 20107.
    FRA received comments from the City of Elmhurst, Illinois 
recommending that the rule be revised to provide credit for past 
education and enforcement initiatives. Noting that it has worked on 
education and enforcement initiatives for over a decade, the City of 
Elmhurst, Illinois asserted it would be penalized under the approach 
taken in the interim final rule because it would be very difficult to 
further reduce the violation rate. FRA has not, however, revised the 
rule to provide credit for prior non-engineering initiatives because it 
would be nearly impossible to determine the baseline violation rate 
that existed before the non-engineering measures were undertaken.
    The discussion of Public Education and Awareness programs has also 
been revised to correct a typographical error in requirement ``b''.
Engineering ASMs
    The final rule adds a new category of ASMs to appendix B. This 
category consists of engineering improvements that fall outside the 
scope of modified SSMs. Examples of engineering ASMs include 
improvements to the geometric conditions and/or sight lines at the 
grade crossing.
    This new category of ASMs has been added to the final rule in 
response to comments requesting greater flexibility in the range of 
improvements that could qualify for SSM or ASM status. Noting that the 
interim final rule contained a limited range of safety measures that 
could be applied to a grade crossing for quiet zone risk reduction 
credit, the Northwest Municipal Conference submitted comments 
suggesting that the rule be revised to provide credit for improvements 
that address underlying geometric conditions that are a source of risk 
at grade crossings. The Village of Andover, Massachusetts submitted 
comments that strongly encouraged FRA to allow communities to qualify 
for quiet zone status on the basis of cost effective safety measures 
that are tailored to the risks and circumstances of each individual 
grade crossing. The City of Cumberland, Maryland submitted comments 
noting that there are a myriad of improvements that could ``substitute 
for the sounding of a train horn'', such as sight distance and 
geometric improvements, Intelligent Transportation Systems, and 
operational improvements. Noting that the interim final rule did not 
provide credit for relatively obvious safety improvements such as 
geometric changes and improvements to sight lines, the Chicago Area 
Transportation Study submitted comments recommending that the final 
rule provide credit for the on-site review of safety problems and the 
professional use of engineering judgment to address actual safety 
problems. In response to these comments, FRA added a new category to 
appendix B to make it clear that engineering improvements such as those 
which address underlying geometric conditions can qualify for quiet 
zone risk reduction credit as ASMs. However, if the Engineering ASM 
consists of vegetation clearance to improve sight lines, the quiet zone 
application should include a plan for periodic vegetation clearing that 
will ensure the continuation of unobstructed sight lines at the 
crossing.
    Public authorities can determine the effectiveness of an 
Engineering ASM as follows:
    1. The first step in assessing the effectiveness of an Engineering 
ASM is to establish the quarterly (3 months) baseline violation rate 
for the crossing at which the Engineering ASM will be applied. 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.

[[Page 21879]]

    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 ensure that the results will provide a statistically valid result. 
While 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 Engineering ASM should be initiated at the crossing. During 
this time period, the sounding of train horns will continue. Train 
horns will not be silenced until the quiet zone 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 the crossing. The 
violation rate reduction for the 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 Engineering ASM, 
the new violation rate for the next quarter was 20 violations per 
100 gate activations. The violation rate reduction would be 66% 
(.66).

    4. Using the Engineering ASM effectiveness rate, determine the 
Quiet Zone Risk Index. If and when the Quiet Zone Risk Index for the 
proposed quiet zone has been reduced to a risk level at or below the 
Risk Index With Horns or 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 notification and implementation of the 
quiet zone.
    5. Violation rates must be monitored for the next two calendar 
quarters. Unless otherwise provided in FRA's notification of quiet zone 
approval, if the violation rate for these two calendar quarters does 
not exceed the violation rate used to determine the effectiveness rate 
that was approved by FRA, the public authority may cease violation rate 
monitoring.

    Example. Continuing with the above example, the monitoring 
during the two calendar quarters following implementation of the 
quiet zone showed that the violation rate never exceeded 20 
violations per 100 gate activations. Since the notification of quiet 
zone approval did not include any conditions requiring additional 
violation rate monitoring, the public authority may cease violation 
report monitoring.

    6. In the event that the violation rate over either of the next two 
calendar quarters is 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 a third calendar quarter. However, if 
the third calendar quarter violation rate is also 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 exceeds the Risk Index With Horns or the Nationwide 
Significant Risk Threshold, the procedures for dealing with 
unacceptable effectiveness after establishment of a quiet zone should 
be followed.

Appendix C--Guide To Establishing Quiet Zones

    This appendix has been revised to incorporate changes made to the 
rule text and to reflect the current Nationwide Significant Risk 
Threshold value.

Appendix D--Determining Risk Levels

    This appendix has been revised to reflect the revised data set used 
to calculate the current Nationwide Significant Risk Threshold.

Appendix E--Requirements for Wayside Horns

    Appendix E sets forth the minimum requirements for wayside horn use 
at highway-rail grade crossings. One such requirement, the minimum 
required sound level, has been revised in the final rule.
    The interim final rule established a minimum required sound level 
of 96 dB(A), when measured 100 feet from the wayside horn in the 
direction in which it has been installed. However, the Village of 
Mundelein, Illinois submitted comments asserting that a wayside horn 
sound level of 92 dB(A) matches the sound level produced by a 
locomotive horn that has been set to 111 dB(A). Since the interim final 
rule established a maximum sound level of 110 dB(A) for locomotive 
horns, the Village of Mundelein argued that the minimum sound level for 
wayside horns should be reduced from 96 dB(A) to 92 dB(A), as measured 
100 feet from the track. The City of Roseville, California, which has a 
wayside horn that has been set to 92 dB(A), submitted similar comments 
asserting that an increase of 4 dB(A) (to meet the minimum sound level 
required by the interim final rule) would negate much of the noise 
reduction benefits that are currently enjoyed by its residents. Noting 
that all existing wayside horn installations in Illinois, Iowa, 
Nebraska, and Kansas, are set at 92 dB(A), as measured 100 feet from 
the crossing, Hanson Wilson Incorporated submitted comments asserting 
that the interim final rule required wayside horns to provide a louder 
alarm on roadway approaches than the locomotive horn.
    Railroad Controls Limited submitted comments asserting that the 
sound level of wayside horns should be measured from a location 100 
feet from the crossing, as opposed to a location 100 feet from the 
wayside horn. Noting that all studies completed to date have 
established wayside horn sound levels in reference to the track, as 
opposed to the horn location, Railroad Controls Limited asserted that 
grade crossings at severely skewed crossing angles could create 
situations in which the wayside horn must be installed 50 feet or 
greater from the centerline of the track. This could result in wayside 
horn sound level measurements being taken from a

[[Page 21880]]

location 150 feet or greater from the track. In the alternative, sound 
level measurements taken 100 feet from the track would provide a more 
accurate measurement of the audible warning provided to motorists 
approaching the crossing.
    After reviewing its previous analysis of the alerting power of a 
wayside horn, FRA determined that a wayside horn set to 92 dB(A) would 
provide a comparable audible warning. Therefore, FRA revised the final 
rule by reducing the minimum required sound level for wayside horns to 
92 dB(A). In addition, FRA revised the final rule to require that 
wayside horn sound level measurements be taken from a location 100 feet 
from the centerline of the nearest track.

Appendix F--Diagnostic Team Considerations

    Appendix F contains lists of issues that should be considered 
during diagnostic team reviews of grade crossings that have been 
proposed for inclusion within a quiet zone. In the interim final rule, 
this appendix contained a list of issues that should be considered when 
reviewing any highway-rail grade crossing that is proposed for 
inclusion within a quiet zone, as well as a list of issues that should 
be considered during diagnostic team reviews of private crossings in 
accordance with Sec.  222.25. A third list of issues has been added in 
the final rule, which addresses diagnostic team reviews of pedestrian 
crossings required by Sec.  222.27.
    A minor revision has also been made to this appendix, in order to 
clarify that engineering personnel from the State agency responsible 
for grade crossing safety should also be invited to participate in 
diagnostic team reviews of grade crossings proposed for inclusion 
within a quiet zone.

Appendix G--Schedule of Civil Penalties

    Appendix G contains the list of civil penalties that can be 
assessed for specific violations of Part 222. The list of civil 
penalties has been modified to state that routine sounding of the 
locomotive horn more than \1/4\-mile in advance of public highway-rail 
grade crossings and at highway-rail grade crossings located within 
quiet zones could subject the operating railroad to standard civil 
penalties of $5,000 and willful civil penalties of $7,500. A minor 
modification has also been made to this list in the final rule to 
correct a typographical error. Routine sounding of the locomotive horn 
at a grade crossing equipped with a wayside horn, which could subject a 
railroad to standard penalties of $5,000 and willful penalties of 
$7,500, is now listed as a violation of Sec.  222.59(d). Lastly, the 
footnote to this appendix has been revised to reflect the increased 
maximum civil penalty ($27,000) which can be assessed by FRA when a 
grossly negligent violation or pattern of repeated violations has 
created an imminent hazard of death or injury or has actually caused 
death or injury.

Section 229.129 Audible Warning Device

    Paragraph (a) of this section requires that each lead locomotive be 
equipped with an audible warning device that produces a minimum sound 
level of 96 dB(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 conveniently operated from the engineer's usual position during 
operation of the locomotive.
    FRA received a number of comments asserting that the maximum sound 
level of 110 dB(A) was too high. City Councilman James Moore, 
representing Northwood, Ohio, submitted comments noting that OSHA has 
deemed noise levels above 80 dB(A) to be hazardous to your hearing. 
Margaret Petitjean, a commenter from Menlo Park, California, noted that 
the Environmental Protection Agency has compiled scientific information 
about the effects of noise exposure and defined 60 dB(A) as an 
acceptable sound level for residential noise exposure. The City of 
Rocky River, Ohio suggested that the maximum sound level be reduced to 
65 dB(A), which would be consistent with the noise exposure experienced 
by communities around airports. At a February 2004 meeting in Western 
Springs, Illinois, Alderman Ginger Rugai, who represents Chicago's 19th 
Ward, suggested that 85 dB(A) be adopted as the maximum sound level for 
locomotive horns.
    On the other hand, FRA received comments from the railroad industry 
stating that the maximum sound level of 110 dB(A) was too low. The 
Florida East Coast Railway asserted that a maximum sound level of 111 
dB(A), which was originally proposed in the NPRM, should be reinstated. 
The Association of American Railroads submitted similar comments urging 
FRA to adopt a maximum sound level of 111 dB(A). Asserting that no 
explanation was provided in the interim final rule for the selection of 
the 110 dB(A) maximum sound level, the Association of American 
Railroads asserted that FRA appears to have acted in a somewhat 
arbitrary manner when making this selection. If the maximum sound level 
was increased to 111 dB(A), the Association of American Railroads 
asserted that five-chime locomotive horns located in the mid-body 
section of the locomotive could be expected to meet this requirement 
without modification, which could have a significant impact on the 
regulatory burdens associated with this rule.
    After considering these comments and reviewing its rationale for 
the 110 dB(A) maximum sound level requirement, FRA decided to retain 
the 110 dB(A) maximum sound level requirement. FRA's analysis indicates 
that there is a 95% likelihood that a locomotive horn set to 108 dB(A) 
will be detected by motorists approaching a grade crossing. Therefore, 
FRA considers 108 dB(A) to be the optimal sound level for the 
locomotive horn. FRA added a 2 dB(A) tolerance to the 108 dB(A) 
standard, in order to account for measurement uncertainty and 
fluctuations in horn sound level output. Given the strong concerns 
about potential noise exposure expressed by local communities, FRA 
remains unconvinced that the additional noise exposure that would 
result from a 111 dB(A) maximum sound level, plus or minus an 
additional 2 dB(A) tolerance for measurement uncertainty, is 
justifiable.
    FRA also decided to retain the minimum horn sound level of 96 
dB(A), which is already 12 dB(A) lower than the optimal locomotive horn 
sound level of 108 dB(A). A locomotive horn set to the optimal sound 
level of 108 dB(A) would have a sound level of approximately 95 dB(A) 
at the motorist decisionmaking point (50 feet in advance of the grade 
crossing). If FRA reduced the minimum sound level for locomotive horns 
by 4 dB, for example, the locomotive horn sound level would be 
drastically reduced to approximately 79 dB(A) at the motorist decision-
making point. Despite the benefits in decreased noise exposure that 
might result from such a reduction, FRA is unwilling to reduce the 
minimum required sound level, given the corresponding reduction in horn 
effectiveness.
    Paragraph (b) provides a schedule for locomotive horn testing. This 
schedule has been adjusted in the final rule to correspond to the final 
rule effective date. Locomotives built on or after June 24, 2005 must 
be tested and brought into compliance with this section. However, 
paragraph (b) of this section has been revised in response to comments 
which recommended that the rule be revised to allow for locomotive horn 
certification. The AAR submitted comments which noted that, if a

[[Page 21881]]

certification process were used, only a limited number of tests would 
be necessary under the rule. GM Electro Motive Division submitted 
comments recommending that the rule allow the locomotive horn 
manufacturer to certify the horn sound level output, while the 
locomotive manufacturer would certify that proper air supply is being 
provided to the horn mounting interface. On the other hand, General 
Electric submitted comments recommending a combination of type testing 
of the horn on the locomotive and laboratory testing for each horn 
produced. A type locomotive for the purpose of this rule would be 
defined as all locomotives utilizing the same horn model, 
configuration, and location, the same air pressure and delivery system, 
and the same locomotive roof configuration including the location of 
other roof mounted apparatus and devices. Once a specific type of 
locomotive has been successfully tested to show compliance, on-going 
validation would be limited to quantified testing of the horn sound 
level in a laboratory, preferably at the horn supplier's factory, and a 
non-quantified functional test of the horn on the locomotive prior to 
shipment.
    After considering these comments, FRA has revised paragraph (b)(1) 
to allow type testing of new locomotives through a method similar to 
that which was proposed by General Electric. Under paragraph (b)(1), 
railroads and locomotive manufacturers will be allowed to use 
acceptance sampling to determine whether new locomotives meet the 
standards prescribed on this section. However, all sampling shall be 
performed on locomotive horns that have already been installed on the 
locomotive. Thus, acceptance sampling of locomotive horns prior to 
installation is not permitted under this section.
    Paragraph (b)(1) requires that the acceptance sampling scheme used 
by the railroad must have a probability of .05 or less of rejecting a 
lot with a proportion of defectives equal to an AQL of 1% or less, as 
set forth in 7 CFR part 43.
    Locomotives built before June 24, 2005 cannot be type tested to 
ensure compliance, but an additional year has been provided for the 
testing of these locomotives under the final rule. Even though the City 
of Fresno, California submitted comments urging FRA to advance the 
compliance date for existing locomotives to December 31, 2006, FRA 
decided to provide an additional year for the testing of existing 
locomotives to alleviate concerns expressed by the Association of 
American Railroads that the testing requirements set forth in the 
interim final rule for existing locomotives were burdensome. Therefore, 
locomotives built before June 24, 2005 must be tested and brought into 
compliance with this section by June 24, 2010. However, the final rule 
retains the requirement that horns must be tested and brought into 
compliance with this section whenever a locomotive is rebuilt (as 
determined in accordance with 49 CFR 232.5).
    Paragraph (c) specifies the testing and recordkeeping requirements 
and measurement procedures. This paragraph has been revised in the 
final rule in order to reduce any adverse impact that may have been 
associated with the testing requirements and measurement procedures 
contained within the interim final rule. However, paragraphs (c)(1) 
through (c)(4) have not been revised.
    Paragraph (c)(5) has been revised in response to comments that the 
clearance restrictions contained within the interim final rule were 
impracticable. Asserting that many, if not most, railroads would be 
unable to meet the interim final rule minimum clearance requirements of 
400 feet to the front of the locomotive and 200 feet to the side of the 
locomotive and horn, the Association of American Railroads recommended 
that the minimum clearance requirements be revised to allow 200 foot 
clearances to the front of the locomotive and 100 foot clearances to 
the side of the locomotive and horn. After considering these comments, 
FRA revised the minimum clearance requirements in the final rule to 
allow 200 foot clearances to the front and sides of the locomotive, 
even though FRA strongly recommends that 400 foot clearances to the 
front of the locomotive, where practicable.
    FRA did not fully adopt AAR's recommendation out of concern with 
the increased error that may result from the introduction of large, 
reflective structures in close proximity to the testing microphone. 
Therefore, FRA adopted an approach comparable to ISO 3095 
(``Measurement of noise emitted by railbound vehicles''), which calls 
for at least 57.7 meters (or 189 feet) clear of large reflecting 
objects around a stationary locomotive. Yard test facilities that are 
already in compliance with ISO 3095 should also be in compliance with 
the final rule, so this modification to the minimum clearance 
requirements should reduce any financial or operational burdens 
associated with the original clearance requirements contained within 
the interim final rule.
    Paragraph (c)(6) has been revised to provide more flexibility in 
the parameters for acceptable horn testing conditions. FRA received 
comments from the GM Electro Motive Division, General Electric, and the 
AAR which asserted that the required parameters for optimal horn 
testing conditions would have a significant adverse impact on 
locomotive manufacturers. In particular, the GM Electro Motive Division 
asserted that the temperature and humidity requirements contained 
within the interim final rule would prohibit horn testing at its 
Ontario facility for an average of 62 days out of the year. General 
Electric also submitted comments asserting that it would be forced to 
reduce its production of new locomotives, due to the parameters imposed 
by interim final rule for acceptable horn testing conditions. 
MotivePower, a manufacturer of commuter and switcher locomotives, 
submitted comments asserting that the minimum temperature requirements 
for locomotive horn testing could be problematic, as daytime 
temperatures at their location may not reach 32 degrees Fahrenheit 
during the wintertime. Therefore, MotivePower proposed that a standard 
set of data be taken and kept on record for each type of locomotive and 
locomotive horn. This data set could then be used to calibrate horn 
sound level measurements taken at temperature and humidity levels 
outside of those levels required by paragraph (c)(6) of the rule.
    FRA has attempted to alleviate the potential impact of the rule's 
horn testing requirements by allowing type testing for new locomotives. 
However, FRA made additional modifications in the final rule by 
expanding the parameters for acceptable horn testing conditions. The 
acceptable ambient temperature range has been expanded in the final 
rule to include temperatures between 32 and 104 degrees Fahrenheit (0 
to 40 degrees Celsius) inclusively.
    Paragraph (c)(7) has been revised in response to comments 
requesting modifications in the horn testing protocol for cab-mounted 
and low-mounted horns. Noting that the locomotive horn has been placed 
at the bottom of its locomotive fleet, the Southern California Regional 
Rail Authority suggested that the rule be revised by requiring the 
testing of higher-mounted horns at 15 feet above the rail and lower-
mounted horns at four feet above the rail. In a similar vein, Caltrain 
submitted comments noting that its locomotive horns have been relocated 
to a position that is four feet above the rail. Therefore, Caltrain 
suggested that the rule be revised to accept horn measurements taken at 
points between four and fifteen feet above the rail. The Association of

[[Page 21882]]

American Railroads also submitted comments recommended that the rule be 
revised to allow testing between four and fifteen feet above the ground 
and within eight and fifteen feet from the center line of the track to 
accommodate cab-mounted horns. After reviewing these comments, FRA 
revised the rule to allow testing of cab-mounted and low-mounted horns 
from a position four feet above the rail.
    Paragraph (c)(7) has also been revised in response to comments from 
the Association of American Railroads requesting that the rule permit 
testing with the microphone positioned off from the track center to 
facilitate the use of permanent testing equipment. If testing of 
locomotive horns must take place directly in front of the locomotive, 
the Association of American Railroads argued that railroads would be 
unable to use permanent testing equipment as the equipment would 
obstruct train movements down the track. By allowing microphone 
positions offset from the center of the track, however, the use of 
permanent testing equipment to measure sound levels would become 
feasible and a more realistic measurement of motorist perception could 
be obtained. Therefore, the Association of American Railroads 
recommended that the rule be revised to allow microphone placement at 
an angle up to 45 degrees from the center line of the track.
    After considering these comments and reviewing its analysis on this 
issue, FRA concluded that there is a three to six dB drop in sound 
level when the microphone is positioned at an angle of 45 degrees from 
the center of the track. However, there is less than a 1.5 dB drop in 
sound level when the microphone is positioned at an angle of less than 
30 degrees from the center of the track. Therefore, FRA revised the 
final rule to allow locomotive horn testing, using a microphone 
positioned at an angle up to 20 degrees from the center of the track, 
in order to facilitate the use of permanent testing equipment.
    Paragraph (c)(8) has not been revised. However, paragraph (c)(9) 
has been revised in the final rule to allow shorter horn sounding 
events. Under the interim final rule, railroads were required to take 
at least six 20-second sound level readings after the locomotive horn 
reached a stable sound level in order to determine the average 
locomotive horn sound level. However, the Association of American 
Railroads submitted comments recommending that the rule be revised to 
reduce the duration of the sound level readings to six to ten seconds, 
in order to reduce unnecessary noise exposure. After considering these 
comments, FRA agreed that 10-second sound level measurements should be 
sufficient, once the locomotive horn reaches a stable sound level. 
Therefore, the final rule was revised to allow six 10-second sound 
level measurements after output from the locomotive horn system reaches 
a stable level.
    Paragraph (c)(10) has been revised in the final rule to provide 
more specific recordkeeping requirements. The final rule requires 
railroads to record horn type, the location of horn testing, air flow 
and sound level measurements, in addition to the date and manner of 
testing. In addition, the person who performs horn testing is now 
required to sign the record, which shall be retained by the railroad, 
at a location of its choice, until a subsequent locomotive horn test is 
completed. The locomotive horn test record shall be made available to 
FRA upon request.
    Paragraph (d) has not been revised. FRA received comments from NJ 
Transit recommending that this paragraph be revised to exclude light 
rail systems operating on the general railroad system pursuant to an 
FRA-approved Temporal Separation Plan. In the alternative, NJ Transit 
asserted that safety standards for audible warning sound levels on 
light rail operations could be adopted through the State safety 
oversight process. FRA has not, however, revised this paragraph to 
exclude all light rail operations on the general railroad system. 
Therefore, railroads that conduct light rail operations on the general 
railroad system pursuant to an FRA-approved Temporal Separation Plan 
must file a waiver under Sec.  222.15 to obtain relief from the 
application of this provision. After reviewing the underlying 
circumstances, FRA may then grant relief on a case-by-case basis.

17. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This Final Rule has been evaluated in accordance with existing 
policies and procedures and is considered to be significant under both 
Executive Order 12866 and DOT policies and procedures. FRA has prepared 
and placed in the docket a regulatory evaluation of the rule. Following 
is a summary of the findings.
    FRA identified 1,598 existing whistle ban or no-horn crossings that 
would qualify for inclusion in Pre-Rule Quiet Zones. FRA also 
identified 372 potential New Quiet Zone crossings and 71 potential 
Intermediate 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. 
Some existing whistle ban crossings may not be included in quiet zones. 
FRA also estimated the costs associated with the maximum horn sound 
level requirements.
    The table below presents estimated twenty-year monetary costs 
associated with complying with the requirements contained in the Final 
Rule using a 7 percent discount rate.

                   Total Twenty-Year Costs (PV, 7%) \3\
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Maximum Horn Sound Level................................      $3,136,020
Relocations Due to Resumption of Horn Sounding..........       1,676,663
Pre-Rule Quiet Zones--Nationwide, Excluding Chicago Area      14,827,438
Intermediate Quiet Zones................................       4,790,469
New Quiet Zones.........................................      16,261,900
Annual Update of NSRT/QZRIs and Notification............         25,426
------------------------------------------------------------------------
Total Twenty-Year Costs associated with implementation of this rule are
  estimated to total $40,717,916 (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.
---------------------------------------------------------------------------

    \3\ Present Value (PV) provides a way of converting future 
benefits and costs into equivalent dollars today so that benefit and 
cost streams that involve different time paths may be compared. The 
formula used to calculate these flows is: 1/(1+I)t where 
``I'' is the discount rate, and ``t'' is the year. Per guidance from 
the Office of Management and Budget, a discount rate of .07 is used 
in this analysis.
---------------------------------------------------------------------------

    The direct safety benefit of this 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

[[Page 21883]]

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%)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Maximum Sound Level...............................      Not Quantifiable
Casualties Prevented (Cancellation of W-Bans).....            $5,810,789
Pre-Rule QZs Nationwide (Excluding Chicago Area)..            26,422,526
Intermediate Quiet Zones..........................             6,302,667
New Quiet Zones...................................            18,602,675
                                                   ---------------------
    Total.........................................            57,138,657
------------------------------------------------------------------------

    In terms of collisions and casualties, over the next twenty years, 
FRA anticipates implementation of this rule will result in the 
prevention of 95 collisions, 8 fatalities, and 46 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 $300,000 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 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 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

[[Page 21884]]

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 (SBA) did not submit comments to the docket for this 
rulemaking in response to the Initial Regulatory Flexibility Assessment 
that accompanied the NPRM or the Regulatory Flexibility Assessment that 
accompanied the Interim Final Rule. FRA certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    FRA has performed a Final Regulatory Flexibility Assessment (FRFA) 
on small entities that potentially can be affected by this Final Rule. 
The FRFA is summarized in this preamble as required by the Regulatory 
Flexibility Act. The full FRFA 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 and Intermediate 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 and Intermediate 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 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

[[Page 21885]]

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 FRA 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 between $13,000 and $15,000 for simple installations; upgrade 
two-quadrant gate systems to four-quadrant gate systems at an estimated 
cost of $100,000-$300,000 plus annual maintenance costs of $2,500-
$3,000; 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 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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Average time per     Total annual burden     Tot. annual burden
            CFR Section                Respondent universe   Total annual responses         response                hours                   cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
222.11--Penalties..................  340 Public Authorities  5 false reports/rcd...  2 hours..............  10 hours.............  $370
------------------------------------
222.15--Petitions for Waivers......  340 Public Authorities  5 petitions...........  4 hours..............  20 hours.............  740
------------------------------------
222.17--Applications To Be           68 State Agencies.....  13 applications.......  8 hours..............  104 hours............  6,344
 Recognized as a State Agency.
------------------------------------
222.39--Establishment of Quiet
 Zones:
    --Public Authority Application   340 Public Authorities  105 Applications......  80 hours.............  8,400 hours..........  512,400
     to FRA.
        --Diagnostic Team Reviews..  340 Public Authorities  53 reviews............  32 hours.............  1,696 hours..........  0 (Cost incl. RIA)
    --Updated Crossing Inventory     340 Public Authorities  302 forms.............  1 hour...............  302 hours............  0 (Cost incl. RIA)
     Form.
    --60-Day Comment Period: Copies  340 Public Authorities  630 copies............  10 minutes...........  105 hours............  6,405
     of Quiet Zone Application.
    --Comments on Applications.....  340 Public Authorities  2 comments............  2.5 hours............  5 hours..............  185
------------------------------------
222.41--Pre-Rule Quiet Zones Which   262 communities/Pub.    262 notices + 1572      40 hours + 10 min....  10,742 hours.........  0 (Cost incl. RIA)
 Qualify For Automatic Approval--     Auth..                  notifications.
 Notices/Notice Copies.
    --Certifications...............  262 communities/Pub.    262 certifications....  5 minutes............  22 hours.............  0 (Cost incl. RIA)
                                      Auth..
    --Updated Grade Crossing         200 communities/Pub.    1,182 Forms...........  1 hour...............  1,182 hours..........  0 (Cost incl. RIA)
     Inventory Forms.                 Auth..
    --Pre-Rule Quiet Zones That      103 Communities.......  103 notices + 618       40 hours + 10 min....  4,223 hours..........  0 (Cost incl. RIA)
     Will Not Be Established By                               notifications.
     Automatic Approval.
    --Certifications...............  103 Communities.......  103 certifications....  5 minutes............  9 hours..............  0 (Cost incl. RIA)
    --Updated Crossing Inventory     103 Communities.......  416 Forms.............  1 hour...............  416 hours............  0 (Cost incl. RIA)
     Forms.
------------------------------------
222.42--Intermediate Quiet Zones     3 Communities.........  3 notices + 18          40 hours + 10 min....  123 hours............  7,503
 and Intermediate Partial Quiet                               notifications.
 Zones--Notices/Notifications.

[[Page 21886]]

 
    --Updated Grade Crossing         3 Communities.........  71 Forms..............  1 hour...............  71 hours.............  0 (Cost incl. RIA)
     Inventory Forms.
------------------------------------
222.43--Notice and Other             99 Communities........  99 notices + 594        40 hours + 10 min....  4,059 hours..........  247,599
 Information Required to Establish                            notifications.
 a Quiet Zone.
    --Updated Grade Crossing         302 Communities.......  376 Forms.............  1 hour...............  376 hours............  0 (Cost incl. RIA)
     Inventory Forms.
    --60-Day Comment Period on       715 Railroads/State     70 comments...........  4 hours..............  280 hours............  10,360
     Notices of Intent.               Agencies.
    --Notice of Intent to Continue   177 Communities.......  177 notices + 1,062     1 hour + 10 min......  354 hours............  21,594
     Pre-Rule Quiet Zone or Partial                           notification.
     Quiet Zone.
    --Updated Grade Crossing         177 Communities.......  1,100 Forms...........  1 hour...............  1,100 hours..........  67,100
     Inventory Forms.
    --Certifications Continuing      177 Communities.......  177 certifications....  5 minutes............  15 hours.............  0 (Cost incl. RIA)
     Quiet Zones.
    --Certifications Establishing    97 Communities........  97 certifications.....  5 minutes............  8 hours..............  0 (Cost incl. RIA)
     Quiet Zones.
------------------------------------
222.47--Periodic Updates:
    --Quiet Zones Which Do Not Have  200 Public Authorities  9 Affirmations + 54     30 minutes + 2 min...  6 hours..............  0 (Cost incl. RIA)
     Supplementary Safety Measures                            Copies.
     at Each Public Crossing.
    --Updated Crossing Inventory     200 Public Authorities  45 Forms..............  1 hour...............  45 hours.............  0 (Cost incl. RIA)
     Forms.
------------------------------------
222.51--Review of Quiet Zone         9 Public Authorities..  2 statements..........  5 hours..............  10 hours.............  610
 Status--Public Authority Written
 Statements/Commitments.
    --Review at FRA's Initiative--   3 Public Authorities..  60 comments...........  30 minutes...........  30 hours.............  1,830
     Comments.
------------------------------------
222.55--Approval of New SSMs or      265 Interested Parties  1 letter..............  30 minutes...........  1 hour...............  61
 ASMs--Letters.
    --Comments.....................  265 Interested Parties  5 comments............  30 minutes...........  3 hours..............  183
    --Demo of New SSM/ASM &          265 Interested Parties  1 letter..............  30 minutes...........  1 hour...............  61
     Approval Application.
------------------------------------
222.57--Review of Assoc.             265 Public Authorities/ 1 petition + 6          1 hour + 2 min.......  1 hour...............  61
 Administrator's Actions.             Int. Parties.           petition copies.
    --Petition For Reconsideration   200 Public Authorities  1 petition + 6          5 hours + 2 min......  5 hours..............  305
     by Pub. Authority.                                       petition copies.
    --Additional Documents/          200 Public Authorities  1 document............  2 hours..............  2 hours..............  122
     Materials.
    --Request For Informal Hearing.  200 Public Authorities  1 letter..............  30 minutes...........  1 hour...............  61
------------------------------------
222.59--Use of Wayside Horns--       200 Public Authorities  10 notices + 60 notice  5 hours + 10 min.....  60 hours.............  3,660
 Notices/Copies.                                              copies.
------------------------------------
Appendix B: Non-Engineering ASMs:
    --Records For Programmed         200 Public Authorities  20 records............  500 hours............  10,000 hours.........  610,000
     Enforcement/Public Educ..
    --Records For Photo Enforcement  200 Public Authorities  20 records............  9 hours..............  180 hours............  10,980
------------------------------------
229.129--Audible Warning Devices--   684 Railroads.........  23,230 records........  1 hour...............  23,230 hours.........  859,510
 Testing Reports or Records.
    --Retests of Locomotive Horns--  684 Railroads.........  650 records...........  1 hour...............  650 hours............  24,050
     Records.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register.
    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

[[Page 21887]]

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

    A Record of Decision has been prepared and is available in the 
public docket.

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 have 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 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 four 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 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 
regarding ``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 final rule provides non-Federal parties extensive involvement in 
decision-making pertaining to the creation of quiet zones. This final 
rule has increased the role of States in creation of quiet zones and 
has provided more opportunities for non-Federal parties, including 
States to have input in decisions made regarding creation and 
termination 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 
section-by-section analysis, of the final rule and the interim final 
rule, 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

[[Page 21888]]

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 $100,00,000 
or more (adjusted annually for inflation)[currently $120,700,000] in 
any one 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 
$120,700,000 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 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.

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 obtain a waiver of a provision of this 
regulation?
222.17 How can a State agency become a recognized State agency?
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?
222.27 How does this rule affect pedestrian 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?
222.38 Can a quiet zone be created in the Chicago Region?
222.39 How is a quiet zone established?
222.41 How does this rule affect Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones?
222.42 How does this rule affect Intermediate Quiet Zones and 
Intermediate Partial Quiet Zones?
222.43 What notices and other information are required to create or 
continue 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 quiet zone status be terminated?
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: 28 U.S.C. 2461, note; 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?

    (a) 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.
    (b) The provisions of this part are separate and severable from one 
another. If any provision is stayed or determined to be invalid, it is 
the intent of FRA that the remaining provisions shall continue in 
effect.
    (c) This part does not apply to any Chicago Region highway-rail 
grade crossing where the railroad was excused from sounding the 
locomotive horn by the Illinois Commerce Commission, and

[[Page 21889]]

where the railroad did not sound the horn, as of December 18, 2003.


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 that operate 
at a maximum speed of 15 miles per hour over public highway-rail grade 
crossings; 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) Except as provided in paragraph (b) of this section, issuance 
of this part preempts any State law, rule, regulation, or order 
governing the sounding of the locomotive horn at public highway-rail 
grade crossings, in accordance with 49 U.S.C. 20106.
    (b) This part does not preempt any State law, rule, regulation, or 
order governing the sounding of the locomotive horn at any highway-rail 
grade crossing described in Sec.  222.3(c) of this part.
    (c) Except as provided in Sec. Sec.  222.25 and 222.27, this part 
does not preempt any State law, rule, regulation, or order governing 
the sounding of locomotive horns at private highway-rail grade 
crossings or pedestrian crossings.
    (d) 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 
SSMs or ASMs are appropriate traffic control measures for that State, 
consistent with Federal Highway Administration regulations and the 
MUTCD. However, except for the SSMs and ASMs implemented at highway-
rail grade crossings described in Sec.  222.3(c) of this part, 
inclusion of SSMs and ASMs in this part does constitute federal 
preemption of State law concerning the sounding of the locomotive horn 
in relation to the use of those measures.
    (e) Issuance of this part does not constitute federal preemption of 
administrative procedures required under State law regarding the 
modification or installation of engineering improvements at highway-
rail grade crossings.


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 a traffic separation system made up of 
a raised longitudinal channelizer, with vertical panels or tubular 
delineators attached, that is 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 specifications are determined by the standard traffic 
design specifications used by the governmental entity constructing the 
channelization device.
    Chicago Region means the following six counties in the State of 
Illinois: Cook, DuPage, Lake, Kane, McHenry and Will.
    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 eliminating collision risk. 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.
    Intermediate Partial Quiet Zone means 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 for a specified 
period of time during the evening or nighttime hours, or at which 
locomotive horns did not sound due to formal or informal agreements 
between the community and the railroad or railroads for a specified 
period of time during the evening and/or nighttime hours, and at which 
such statutes, ordinances or agreements were in place and enforced or 
observed as of December 18, 2003, but not as of October 9, 1996.
    Intermediate Quiet Zone means 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 at which such statutes, ordinances 
or agreements were in place and enforced or observed as of

[[Page 21890]]

December 18, 2003, but not as of October 9, 1996.
    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 
in the Federal Register.
    New Partial 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 between 
the hours of 10 p.m. and 7 a.m., but are routinely sounded during the 
remaining portion of the day, and which does not qualify as a Pre-Rule 
Partial Quiet Zone.
    New Quiet Zone means a segment of a rail line within which is 
situated one or a number of consecutive public highway-rail grade 
crossings at which routine sounding of locomotive horns is restricted 
pursuant to this part and which does not qualify as either a Pre-Rule 
Quiet Zone or Intermediate Quiet Zone.
    Non-traversable curb means a highway curb designed to discourage a 
motor vehicle from leaving the roadway. Non-traversable curbs are used 
at locations where highway speeds do not exceed 40 miles per hour and 
are at least six inches high. Additional design specifications are 
determined by the standard traffic design specifications used by the 
governmental entity constructing the curb.
    Partial Quiet Zone means a segment of a rail line within which is 
situated one or a number of consecutive public highway-rail grade 
crossings at which locomotive horns are not routinely sounded for a 
specified period of time during the evening and/or nighttime hours.
    Pedestrian crossing means, for purposes of this part, a separate 
designated sidewalk or pathway where pedestrians, but not vehicles, 
cross railroad tracks. Sidewalk crossings contiguous with, or separate 
but adjacent to, public highway-rail grade crossings, are presumed to 
be part of the public highway-rail grade crossing and are not 
considered pedestrian crossings.
    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-existing Modified Supplementary Safety Measure (Pre-existing 
Modified SSM) means a safety system or procedure that is listed in 
appendix A to this Part, but is not fully compliant with the standards 
set forth therein, which was installed before December 18, 2003 by the 
appropriate traffic control or law enforcement authority responsible 
for safety at the highway-rail grade crossing. The calculation of risk 
reduction credit for pre-existing modified SSMs is addressed in 
appendix B of this part.
    Pre-existing Supplementary Safety Measure (Pre-existing SSM) means 
a safety system or procedure established in accordance with this part 
before December 18, 2003 which was provided by the appropriate traffic 
control or law enforcement authority responsible for safety at the 
highway-rail grade crossing. These safety measures must fully comply 
with the SSM requirements set forth in appendix A of this part. The 
calculation of risk reduction credit for qualifying pre-existing SSMs 
is addressed in appendix A.
    Pre-Rule Partial 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 for a specified period of time 
during the evening and/or nighttime hours, or at which locomotive horns 
did not sound due to formal or informal agreements between the 
community and the railroad or railroads for a specified period of time 
during the evening and/or nighttime hours, 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.
    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 traffic 
control or law enforcement at the public highway-rail grade or 
pedestrian 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. If a public authority maintains the roadway on both sides 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 with the quiet zone. The 
calculation of the Quiet Zone Risk Index, which is explained in 
appendix

[[Page 21891]]

D of this part, does not differ for partial quiet zones.
    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
    (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.
    Recognized State agency means, for purposes of this part, a State 
agency, responsible for highway-rail grade crossing safety or highway 
and road safety, that has applied for and been approved by FRA as a 
participant in the quiet zone development process.
    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. With 
respect to Pre-Rule Partial Quiet Zones, a relevant collision shall not 
include collisions that occur during the time period within which the 
locomotive horn is routinely sounded.
    Risk Index With Horns means a measure of risk to the motoring 
public when locomotive horns are routinely sounded at every public 
highway-rail grade crossing within a quiet zone. In Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones, the Risk Index With Horns is 
determined by adjusting the Crossing Corridor Risk Index to account for 
the decreased risk that would result if locomotive horns were routinely 
sounded at each public highway-rail grade crossing.
    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 of 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 $550 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 
$27,000 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 of this 
part 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) of this section, 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, and 
explain why applying the requirement that a joint submission be made in 
that instance would not be likely to contribute significantly to public 
safety. If the Associate Administrator determines that applying the 
requirement for a jointly filed submission to that particular petition 
would not be likely to significantly contribute to public safety, the 
Associate Administrator shall waive the requirement for joint 
submission and accept the petition for consideration.. 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.


Sec.  222.17  How can a State agency become a recognized State agency?

    (a) Any State agency responsible for highway-rail grade crossing 
safety and/or highway and road safety may become a recognized State 
agency by submitting an application to the Associate Administrator that 
contains:
    (1) A detailed description of the proposed scope of involvement in 
the quiet zone development process;
    (2) The name, address, and telephone number of the person(s) who 
may be contacted to discuss the State agency application; and
    (3) A statement from State agency counsel which affirms that the 
State agency is authorized to undertake the responsibilities proposed 
in its application.
    (b) The Associate Administrator will approve the application if, in 
the Associate Administrator's judgment, the proposed scope of State 
agency involvement will facilitate safe and effective quiet zone 
development. The Associate Administrator may include in any decision of 
approval such conditions as he/she deems necessary and appropriate.

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 cab car is approaching a public

[[Page 21892]]

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 accordance 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)(1) Except as provided in paragraph (b)(2) of this section, the 
locomotive horn shall begin to be sounded at least 15 seconds, but no 
more than 20 seconds, before the locomotive enters the crossing.
    (2) Trains, locomotive consists, and individual locomotives 
traveling at speeds in excess of 45 mph shall not begin sounding the 
horn more than one-quarter mile (1,320 feet) in advance of the nearest 
public highway-rail grade crossing, even if the advance warning 
provided by the locomotive horn will be less than 15 seconds in 
duration.
    (c) As stated in Sec.  222.3(c) of this part, this section does not 
apply to any Chicago Region highway-rail grade crossing at which 
railroads were excused from sounding the locomotive horn by the 
Illinois Commerce Commission, and where railroads did not sound the 
horn, as of December 18, 2003.


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 animals, 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 a quiet zone, 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 
in the following situations:
    (1) When a wayside horn is malfunctioning;
    (2) When active grade crossing 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
    (3) When grade crossing warning systems are temporarily out of 
service during inspection, maintenance, or testing of the system.
    (c) 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 a train to roadway workers in accordance with a program 
adopted under part 214 of this chapter, or where required for other 
purposes under railroad 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)(1) Private highway-rail grade crossings that are located in New 
Quiet Zones or New Partial Quiet Zones and 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 accordance with the 
recommendations of such diagnostic team.
    (2) The public authority shall provide the State agency responsible 
for grade crossing safety and all affected railroads an opportunity to 
participate in the diagnostic team review of private highway-rail grade 
crossings.
    (c)(1) At a minimum, every private highway-rail grade crossing 
within a New Quiet Zone or New Partial Quiet Zone shall be marked by a 
crossbuck and a ``STOP'' sign, which are compliant with MUTCD standards 
unless otherwise prescribed by State law, and shall be equipped with 
advance warning signs in compliance with Sec.  222.35(c) of this part.
    (2) At a minimum, every private highway-rail grade crossing within 
a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone shall, by June 24, 
2008, be marked by a crossbuck and a ``STOP'' sign, which are compliant 
with MUTCD standards unless otherwise prescribed by State law, and 
shall be equipped with advance warning signs in compliance with Sec.  
222.35(c) of this part.


Sec.  222.27  How does this rule affect pedestrian crossings?

    This rule does not require the routine sounding of locomotive horns 
at pedestrian crossings. Except as specified in this section, this part 
is not meant to address the subject of pedestrian crossings and is not 
intended to affect State or local laws or orders, or private 
contractual or other arrangements, regarding the routine sounding of 
locomotive horns at pedestrian crossings.
    (a) Pedestrian crossings may be included in a quiet zone.
    (b) Pedestrian crossings that are located in New Quiet Zones or New 
Partial Quiet Zones may be included in a quiet zone only if a 
diagnostic team evaluates the crossings and the crossings are equipped 
or treated in accordance with the recommendations of such diagnostic 
team.
    (c) The public authority shall provide the State agency responsible 
for grade crossing safety and all affected railroads an opportunity to 
participate in diagnostic team reviews of pedestrian crossings.
    (d) Advance warning signs. (1) Each pedestrian crossing within a 
New Quiet Zone shall be equipped with a sign that advises the 
pedestrian that train horns are not sounded at the crossing. Such sign 
shall conform to the standards contained in the MUTCD.
    (2) Each pedestrian crossing within a New Partial Quiet Zone shall 
be equipped with a sign that advises the pedestrian that train horns 
are not sounded at the crossing between the hours of 10 p.m. and 7 a.m. 
Such sign shall conform to the standards contained in the MUTCD.
    (3) Each pedestrian crossing within a Pre-Rule Quiet Zone shall be 
equipped by June 24, 2008 with a sign that advises the pedestrian that 
train horns are not sounded at the crossing. Such sign shall conform to 
the standards contained in the MUTCD.
    (4) Each pedestrian crossing within a Pre-Rule Partial Quiet Zone 
shall be equipped by June 24, 2008 with a sign that advises the 
pedestrian that train horns are not sounded at the crossing for a 
specified period of time. Such sign shall conform to the standards 
contained in the MUTCD.

[[Page 21893]]

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 the minimum requirements for quiet zones?

    The following requirements apply to quiet zones established in 
conformity with this part.
    (a) Minimum length. (1)(i) Except as provided in paragraphs 
(a)(1)(ii) of this section, the minimum length of a New Quiet Zone or 
New Partial Quiet Zone established under this part shall be one-half 
mile along the length of railroad right-of-way.
    (ii) The one-half mile minimum length requirement shall be waived 
for any New Quiet Zone or New Partial Quiet Zone that is added onto an 
existing quiet zone, provided there is no public highway-rail grade 
crossing at which locomotive horns are routinely sounded within one-
half mile of the New Quiet Zone or New Partial Quiet Zone.
    (2)(i) The length of a Pre-Rule Quiet Zone or Pre-Rule Partial 
Quiet Zone may continue unchanged from that which existed as of October 
9, 1996.
    (ii) With the exception of combining two adjacent Pre-Rule Quiet 
Zones or Pre-Rule Partial Quiet Zones, the addition of any public 
crossing to a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone shall 
end the grandfathered status of that quiet zone and transform it into a 
New Quiet Zone or New Partial Quiet Zone that must comply with all 
requirements applicable to New Quiet Zones and New Partial Quiet Zones.
    (iii) The deletion of any public crossing from a Pre-Rule Quiet 
Zone or Pre-Rule Partial 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 or Pre-
Rule Partial 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 part 
must be equipped, no later than the quiet zone implementation date, 
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) With the exception of public highway-rail grade crossings that 
will be temporarily closed in accordance with appendix A of this part, 
each public highway-rail grade crossing in a New Partial Quiet Zone 
established under this part must be equipped, no later than the quiet 
zone implementation date, 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.
    (3) Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones must 
retain, and may upgrade, the grade crossing safety warning system which 
existed as of December 18, 2003. Any upgrade involving the installation 
or renewal of an automatic warning device system 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 Risk Index.
    (c) Advance warning signs. (1) Each highway approach to every 
public and private highway-rail grade crossing within a New Quiet Zone 
shall be equipped with an advance warning sign that advises the 
motorist that train horns are not sounded at the crossing. Such sign 
shall conform to the standards contained in the MUTCD.
    (2) Each highway approach to every public and private highway-rail 
grade crossing in a New Partial Quiet Zone shall be equipped with an 
advance warning sign that advises the motorist that train horns are not 
sounded at the crossing between the hours of 10 p.m. and 7 a.m. Such 
sign shall conform to the standards contained in the MUTCD.
    (3) Each highway approach to every public and private highway-rail 
grade crossing within a Pre-Rule Quiet Zone shall be equipped by June 
24, 2008 with an advance warning sign that advises the motorist that 
train horns are not sounded at the crossing. Such sign shall conform to 
the standards contained in the MUTCD.
    (4) Each highway approach to every public and private highway-rail 
grade crossing within a Pre-Rule Partial Quiet Zone shall be equipped 
by June 24, 2008 with an advance warning sign that advises the motorist 
that train horns are not sounded at the crossing for a specified period 
of time. Such sign shall conform to the standards contained in the 
MUTCD.
    (d) Bells. (1) Each public highway-rail grade crossing in a New 
Quiet Zone or New Partial Quiet Zone that is subjected to pedestrian 
traffic and equipped with one or more automatic bells shall retain 
those bells in working condition.
    (2) Each public highway-rail grade crossing in a Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone that is subjected to pedestrian 
traffic and equipped with one or more automatic bells shall retain 
those bells in working condition.
    (e) All private crossings within the quiet zone must be treated in 
accordance with this section and Sec.  222.25 of this part.
    (f) All pedestrian crossings within a quiet zone must be treated in 
accordance with Sec.  222.27 of this part.
    (g) All public crossings within the quiet zone must be in 
compliance with the 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

[[Page 21894]]

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.  222.38  Can a quiet zone be created in the Chicago Region?

    Public authorities that are eligible to establish quiet zones under 
this part may create New Quiet Zones or New Partial Quiet Zones in the 
Chicago Region, provided the New Quiet Zone or New Partial Quiet Zone 
does not include any highway-rail grade crossing described in Sec.  
222.3(c) of this part.


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), (a)(2), or (a)(3) of this 
section, and complies with the information and notification provisions 
of Sec.  222.43 of this part, 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
    (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 Index With Horns.
    (b) Public authority application to FRA. (1) 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) 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 engineering improvement 
which does not fully comply with the requirements for an SSM under 
appendix A of this part, 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 each public highway-rail grade crossing proposed to be 
included in the quiet zone to enable the Associate Administrator to 
evaluate their effectiveness;
    (iii) Contain detailed information about diagnostic team reviews of 
any crossing within the proposed quiet zone, including a membership 
list and a list of recommendations made by the diagnostic team;
    (iv) Contain a statement describing efforts taken by the public 
authority to work with each railroad operating over the public highway-
rail grade crossings within the quiet zone and the State agency 
responsible for grade crossing safety. This statement shall also list 
any objections to the proposed quiet zone that were raised by the 
railroad(s) and State agency;
    (v) Contain detailed information as to which SSMs and ASMs are 
proposed to be implemented at each public or private highway-rail grade 
crossing within the proposed quiet zone;
    (vi) Contain a commitment to implement the proposed safety measures 
within the proposed quiet zone; and
    (vii) 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 Index With Horns or the 
Nationwide Significant Risk Threshold.
    (2) If the proposed quiet zone contains newly established public or 
private highway-rail grade crossings, the public authority's 
application for approval must also include five-year projected vehicle 
and rail traffic counts for each newly established grade crossing;
    (3) 60-day comment period. (i) The public authority application for 
FRA approval of the proposed quiet zone shall be provided, by certified 
mail, return receipt requested, to: all railroads operating over the 
public highway-rail grade crossings within the quiet zone; the highway 
or traffic control or law enforcement authority having jurisdiction 
over vehicular traffic at grade 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; the 
State agency responsible for grade crossing safety; and the Associate 
Administrator.
    (ii) Except as provided in paragraph (b)(3)(iii) of this section, 
any party that receives a copy of the public authority application may 
submit comments on the public authority application to the Associate 
Administrator during the 60-day period after the date on which the 
public authority application was mailed.
    (iii) If the public authority application for FRA approval contains 
written statements from each railroad operating over the public 
highway-rail grade crossings within the quiet zone, the highway or 
traffic control authority or law enforcement authority having 
jurisdiction over vehicular traffic at grade crossings within the quiet 
zone, the State agency responsible for grade crossing safety, and the 
State agency responsible for highway and road safety stating that the 
railroad, vehicular traffic authority and State agencies have waived 
their rights to provide comments on the public authority application, 
the 60-day comment period under paragraph (b)(3)(ii) of this section 
shall be waived.
    (4)(i) After reviewing any comments submitted under paragraph 
(b)(3)(ii) of this section, the Associate Administrator will approve 
the quiet zone if, in the Associate Administrator's judgment, the 
public authority is in compliance with paragraphs (b)(1) and (b)(2) of 
this section and has satisfactorily demonstrated that the SSMs and ASMs 
proposed by the public authority result in a Quiet Zone Risk Index that 
is either:
    (A) At or below the Risk Index With Horns 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 will describe, in the decision, the basis upon which the 
decision was made. Decisions issued by the Associate Administrator on 
quiet zone applications shall be provided to all parties listed in 
paragraph (b)(3)(i) of

[[Page 21895]]

this section and may be reviewed as provided in Sec. Sec.  222.57(b) 
and (d) of this part.
    (c) Appendix C of this part contains guidance on how to create a 
quiet zone.


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

    (a) Pre-Rule Quiet Zones that will be established by automatic 
approval. (1) A Pre-Rule Quiet Zone may be established by automatic 
approval and remain in effect, subject to Sec.  222.51, if the Pre-Rule 
Quiet Zone is in compliance with Sec. Sec.  222.35 (minimum 
requirements for quiet zones) and 222.43 of this part (notice and 
information requirements) and the Pre-Rule Quiet Zone:
    (i) Has at every public highway-rail grade crossing within the 
quiet zone one or more SSMs identified in appendix A of this part;
    (ii) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register is at, or below, the Nationwide Significant Risk 
Threshold; or
    (iii) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register 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 April 27, 2005 or
    (iv) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register is at, or below, the Risk Index With Horns.
    (2) The public authority shall provide Notice of Quiet Zone 
Establishment, in accordance with Sec.  222.43 of this part, no later 
than December 24, 2005.
    (b) Pre-Rule Partial Quiet Zones that will be established by 
automatic approval.
    (1) A Pre-Rule Partial Quiet Zone may be established by automatic 
approval and remain in effect, subject to Sec.  222.51 of this part, if 
the Pre-Rule Partial Quiet Zone is in compliance with Sec. Sec.  222.35 
(minimum requirements for quiet zones) and 222.43 (notice and 
information requirements) of this part and the Pre-Rule Partial Quiet 
Zone:
    (i) Has at every public highway-rail grade crossing within the 
quiet zone one or more SSMs identified in appendix A of this part;
    (ii) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register is at, or below, the Nationwide Significant Risk 
Threshold; or
    (iii) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register 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 April 27, 2005. With 
respect to Pre-Rule Partial Quiet Zones, collisions that occurred 
during the time period within which the locomotive horn was routinely 
sounded shall not be considered ``relevant collisions''; or
    (iv) The Quiet Zone Risk Index as last published by FRA in the 
Federal Register is at, or below, the Risk Index With Horns.
    (2) The public authority shall provide Notice of Quiet Zone 
Establishment, in accordance with Sec.  222.43 of this part, no later 
than December 24, 2005.
    (c) Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that will 
not be established by automatic approval. (1) If a Pre-Rule Quiet Zone 
or Pre-Rule Partial Quiet Zone will not be established by automatic 
approval under paragraph (a) or (b) 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 (c) and upon 
compliance with Sec.  222.43 (notice and information requirements) of 
this part. Continuation of a quiet zone beyond the interim periods 
specified in this paragraph will require implementation of SSMs or ASMs 
in accordance with Sec.  222.39 of this part and compliance with the 
requirements set forth in Sec. Sec.  222.25(c), 222.27(d), and 222.35 
of this part.
    (2)(i) In order to provide time for the public authority to plan 
for and implement quiet zones that are in compliance with the 
requirements of this part, a public authority may continue locomotive 
horn restrictions at Pre-Rule Quiet Zones and Pre-Rule Partial Quiet 
Zones for a period of five years from June 24, 2005, provided the 
public authority has, within three years of June 24, 2005, 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) of this part, all of the required 
elements of filings under that paragraph together with a timetable for 
implementation of safety improvements.
    (ii) If, during the three-year period after June 24, 2005, the 
Quiet Zone Risk Index for the Pre-Rule Quiet Zone or Pre-Rule Partial 
Quiet Zone has fallen to a level at or below the Nationwide Significant 
Risk Threshold, the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
may remain in effect, subject to Sec.  222.51 of this part, provided 
the public authority provides notification of Pre-Rule Quiet Zone or 
Pre-Rule Partial Quiet Zone establishment in accordance with Sec.  
222.43 and has complied with the requirements of Sec. Sec.  222.25(c), 
222.27(d), and 222.35 by June 24, 2008.
    (3) Locomotive horn restrictions may continue for an additional 
three years beyond the five-year period permitted by paragraph 
(b)(2)(i) of this section, if:
    (i) Prior to June 24, 2008, 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 and Pre-Rule Partial Quiet Zones 
which, when implemented, would enable them to qualify for a quiet zone 
under this part; and
    (ii) Prior to June 24, 2009, 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) of this part, the 
public authority should apply for such approval prior to December 24, 
2007, to ensure that FRA has ample time in which to review such 
application prior to the end of the extension period.
    (d) Pre-Rule Partial Quiet Zones that will be converted to 24-hour 
Quiet Zones. A Pre-Rule Partial Quiet Zone may be converted to a 24-
hour quiet zone if the quiet zone is brought into compliance with the 
New Quiet Zone requirements set forth in Sec. Sec.  222.25, 222.27, 
222.35 and 222.39 of this part and notification of the establishment of 
a New 24-hour Quiet Zone is provided in accordance with Sec.  222.43 of 
this part.


Sec.  222.42  How does this rule affect Intermediate Quiet Zones and 
Intermediate Partial Quiet Zones?

    (a) Existing restrictions may, at the public authority's 
discretion, remain in place within the Intermediate Quiet Zone or 
Intermediate Partial Quiet Zone until June 24, 2006, provided the 
public authority complies with Sec.  222.43 (notice and information 
requirements) of this part. Continuation of the quiet zone beyond June 
24, 2006 will require implementation of SSMs or ASMs in accordance with 
Sec.  222.39 of this part and compliance with the New Quiet Zone 
standards set forth in Sec. Sec.  222.25, 222.27 and 222.35 of this 
part.
    (b) Conversion of Intermediate Partial Quiet Zones into 24-hour New 
Quiet Zones. An Intermediate Partial Quiet Zone may be converted into a 
24-hour New Quiet Zone when the quiet zone is

[[Page 21896]]

brought into compliance with the New Quiet Zone requirements set forth 
in Sec. Sec.  222.25, 222.27, 222.35 and 222.39 (requirements for quiet 
zone establishment) of this part, provided notification of New Quiet 
Zone establishment is provided in accordance with Sec.  222.43 (notice 
and information requirements) of this part.


Sec.  222.43  What notices and other information are required to create 
or continue a quiet zone?

    (a)(1) The public authority shall provide written notice, by 
certified mail, return receipt requested, of its intent to create a New 
Quiet Zone or New Partial Quiet Zone under Sec.  222.39 of this part. 
Such notification shall be provided to: all railroads operating over 
the public highway-rail grade crossings within the quiet zone; the 
State agency responsible for highway and road safety; and the State 
agency responsible for grade crossing safety.
    (2) The public authority shall provide written notification, by 
certified mail, return receipt requested, to continue a Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone under Sec.  222.41 of this part or 
to continue an Intermediate Quiet Zone or Intermediate Partial Quiet 
Zone under Sec.  222.42 of this part. Such notification shall be 
provided to: all railroads operating over the public highway-rail grade 
crossings within the quiet zone; the highway or traffic control or law 
enforcement authority having jurisdiction over vehicular traffic at 
grade 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; the State agency responsible 
for grade crossing safety; and the Associate Administrator.
    (3) The public authority shall provide written notice, by certified 
mail, return receipt requested, of its intent to file a detailed plan 
for a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone in accordance 
with Sec.  222.41(c)(2) of this part. Such notification shall be 
provided to: all railroads operating over the public highway-rail grade 
crossings within the quiet zone; the State agency responsible for 
highway and road safety; and the State agency responsible for grade 
crossing safety.
    (4) The public authority shall provide written notice, by certified 
mail, return receipt requested, of the establishment of a quiet zone 
under Sec.  222.39 or 222.41 of this part. Such notification shall be 
provided to: all railroads operating over the public highway-rail grade 
crossings within the quiet zone; the highway or traffic control or law 
enforcement authority having jurisdiction over vehicular traffic at 
grade 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; the State agency responsible 
for grade crossing safety; and the Associate Administrator.
    (b) Notice of Intent. (1) Required Contents. The Notice of Intent 
shall include the following:
    (i) A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing that would be 
included within the proposed quiet zone, identified by both U.S. DOT 
National Highway-Rail Grade Crossing Inventory Number and street or 
highway name.
    (ii) A statement of the time period within which restrictions would 
be imposed on the routine sounding of the locomotive horn imposed 
(i.e., 24 hours or from 10 p.m. until 7 a.m.)
    (iii) A brief explanation of the public authority's tentative plans 
for implementing improvements within the proposed quiet zone.
    (iv) The name and title of the person who will act as point of 
contact during the quiet zone development process and the manner in 
which that person can be contacted.
    (v) A list of the names and addresses of each party that will 
receive notification in accordance with paragraph (a)(1) of this 
section.
    (2) 60-day comment period. (i) A party that receives a copy of the 
public authority's Notice of Intent may submit information or comments 
about the proposed quiet zone to the public authority during the 60-day 
period after the date on which the Notice of Intent was mailed.
    (ii) The 60-day comment period established under paragraph 
(b)(2)(i) of this section may terminate when the public authority 
obtains from each railroad operating over public grade crossings within 
the proposed quiet zone, the State agency responsible for grade 
crossing safety, and the State agency responsible for highway and road 
safety:
    (A) Written comments; or
    (B) Written statements that the railroad and State agency do not 
have any comments on the Notice of Intent (``no-comment statements''.)
    (c) Notice of Quiet Zone Continuation. (1) Timing. (i) In order to 
prevent the resumption of locomotive horn sounding on June 24, 2005, 
the Notice of Quiet Zone Continuation under Sec.  222.41 or 222.42 of 
this part shall be served no later than June 3, 2005.
    (ii) If the Notice of Quiet Zone Continuation under Sec.  222.41 or 
222.42 of this part is mailed after June 3, 2005, the Notice of Quiet 
Zone Continuation shall state the date on which locomotive horn use at 
highway-rail grade crossings within the quiet zone shall cease, but in 
no event shall that date be earlier than 21 days after the date of 
mailing.
    (2) Required contents. The Notice of Quiet Zone Continuation shall 
include the following:
    (i) A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing within the quiet 
zone, identified by both U.S. DOT National Highway-Rail Grade Crossing 
Inventory Number and street or highway name.
    (ii) A specific reference to the regulatory provision that provides 
the basis for quiet zone continuation, citing as appropriate, Sec.  
222.41 or 222.42 of this part.
    (iii) A statement of the time period within which restrictions on 
the routine sounding of the locomotive horn will be imposed (i.e., 24 
hours or nighttime hours only.)
    (iv) An accurate and complete Grade Crossing Inventory Form for 
each public highway-rail grade crossing, private highway-rail grade 
crossing, and pedestrian crossing within the quiet zone that reflects 
conditions currently existing at the crossing.
    (v) 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.
    (vi) A list of the names and addresses of each party that will 
receive notification in accordance with paragraph (a)(2) of this 
section.
    (vii) A statement signed by the chief executive officer of each 
public authority participating in the continuation of the quiet zone, 
in which the chief executive officer certifies that the information 
submitted by the public authority is accurate and complete to the best 
of his/her knowledge and belief.
    (d) Notice of Detailed Plan. (1) Timing. The Notice of Detailed 
Plan shall be served no later than four months before the filing of the 
detailed plan under Sec.  222.41(c)(2) of this part.
    (2) Required contents. The Notice of Detailed Plan shall include 
the following:
    (i) A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing that is included 
in the quiet zone, identified by both U.S. DOT National Highway-Rail 
Grade Crossing Inventory Number and street or highway name.
    (ii) A statement of the time period within which restrictions would 
be imposed on the routine sounding of the

[[Page 21897]]

locomotive horn imposed (i.e., 24 hours or nighttime hours only.)
    (iii) A brief explanation of the public authority's tentative plans 
for implementing improvements within the quiet zone.
    (iv) The name and title of the person who will act as point of 
contact during the quiet zone development process and the manner in 
which that person can be contacted.
    (v) A list of the names and addresses of each party that will 
receive notification in accordance with paragraph (a)(3) of this 
section.
    (3) 60-day comment period. A party that receives a copy of the 
public authority's Notice of Detailed Plan may submit information or 
comments about the proposed improvements to the public authority during 
the 60-day period after the date on which the Notice of Detailed Plan 
was mailed.
    (e) Notice of Quiet Zone Establishment. (1) Timing. (i) The Notice 
of Quiet Zone Establishment shall provide the date upon which routine 
locomotive horn use at highway-rail grade crossings shall cease, but in 
no event shall the date be earlier than 21 days after the date of 
mailing.
    (ii) If the public authority was required to provide a Notice of 
Intent, in accordance with paragraph (a)(1) of this section, the Notice 
of Quiet Zone Establishment shall not be mailed less than 60 days after 
the date on which the Notice of Intent was mailed, unless the Notice of 
Quiet Zone Establishment contains a written statement affirming that 
written comments and/or ``no-comment'' statements have been received 
from each railroad operating over public grade crossings within the 
proposed quiet zone, the State agency responsible for grade crossing 
safety, and the State agency responsible for highway and road safety in 
accordance with paragraph (b)(2)(ii) of this section.
    (2) Required contents. The Notice of Quiet Zone Establishment shall 
include the following:
    (i) A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing within the quiet 
zone, identified by both U.S. DOT National Highway-Rail Grade Crossing 
Inventory Number and street or highway name.
    (ii) A specific reference to the regulatory provision that provides 
the basis for quiet zone establishment, citing as appropriate, Sec.  
222.39(a)(1), 222.39(a)(2)(i), 222.39(a)(2)(ii), 222.39(a)(3), 
222.39(b), 222.41(a)(1)(i), 222.41(a)(1)(ii), 222.41(a)(1)(iii), 
222.41(a)(1)(iv), 222.41(b)(1)(i), 222.41(b)(1)(ii), 222.41(b)(1)(iii), 
or 222.41(b)(1)(iv) of this part.
    (A) If the Notice contains a specific reference to Sec.  
222.39(a)(2)(i), 222.39(a)(2)(ii), 222.39(a)(3), 222.41(a)(1)(ii), 
222.41(a)(1)(iii), 222.41(a)(1)(iv), 222.41(b)(1)(ii), 
222.41(b)(1)(iii), or 222.41(b)(1)(iv) of this part, it shall include a 
copy of the FRA web page that contains the quiet zone data upon which 
the public authority is relying (http://www.fra.dot.gov/us/content/1337).
    (B) If the Notice contains a specific reference to Sec.  222.39(b) 
of this part, it shall include a copy of FRA's notification of 
approval.
    (iii) If a diagnostic team review was required under Sec.  222.25 
or 222.27 of this part, the Notice shall include a statement affirming 
that the State agency responsible for grade crossing safety and all 
affected railroads were provided an opportunity to participate in the 
diagnostic team review. The Notice shall also include a list of 
recommendations made by the diagnostic team.
    (iv) A statement of the time period within which restrictions on 
the routine sounding of the locomotive horn will be imposed (i.e., 24 
hours or from 10 p.m. until 7 a.m.)
    (v) An accurate and complete Grade Crossing Inventory Form for each 
public highway-rail grade crossing, private highway-rail grade 
crossing, and pedestrian crossing within the quiet zone that reflects 
the conditions existing at the crossing before any new SSMs or ASMs 
were implemented.
    (vi) An accurate, complete and current Grade Crossing Inventory 
Form for each public highway-rail grade crossing, private highway-rail 
grade crossing, and pedestrian crossing within the quiet zone that 
reflects SSMs and ASMs in place upon establishment of the quiet zone. 
SSMs and ASMs that cannot be fully described on the Inventory Form 
shall be separately described.
    (vii) If the public authority was required to provide a Notice of 
Intent, in accordance with paragraph (a)(1) of this section, the Notice 
of Quiet Zone Establishment shall contain a written statement affirming 
that the Notice of Intent was provided in accordance with paragraph 
(a)(1) of this section. This statement shall also state the date on 
which the Notice of Intent was mailed.
    (viii) If the public authority was required to provide a Notice of 
Intent, in accordance with paragraph (a)(1) of this section, and the 
Notice of Intent was mailed less than 60 days before the mailing of the 
Notice of Quiet Zone Establishment, the Notice of Quiet Zone 
Establishment shall also contain a written statement affirming that 
written comments and/or ``no comment'' statements have been received 
from each railroad operating over public grade crossings within the 
proposed quiet zone, the State agency responsible for grade crossing 
safety, and the State agency responsible for highway and road safety in 
accordance with paragraph (b)(2)(ii) of this section.
    (ix) If the public authority was required to provide a Notice of 
Detailed Plan in accordance with paragraph (a)(3) of this section, the 
Notice of Quiet Zone Establishment shall contain a statement affirming 
that the Notice of Detailed Plan was provided in accordance with 
paragraph (a)(3) of this section. This statement shall also state the 
date on which the Notice of Detailed Plan was mailed.
    (x) 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.
    (xi) A list of the names and addresses of each party that shall be 
notified in accordance with paragraph (a)(4) of this section.
    (xii) A statement signed by the chief executive officer of each 
public authority participating in the establishment of the quiet zone, 
in which the chief executive officer shall certify that the information 
submitted by the public authority is accurate and complete to the best 
of his/her knowledge and belief.


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(e) of this part, 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. Sec.  222.39(a)(1), 
222.41(a)(1)(i), and 222.41(b)(1)(i) (quiet zones with an SSM 
implemented at every public crossing within the quiet zone) of this 
part. Between 4\1/2\ and 5 years after the date of the quiet zone 
establishment notice provided by the public authority under Sec.  
222.43(e) of this part, 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

[[Page 21898]]

implemented within the quiet zone continue to conform to the 
requirements of appendix A of this part. Copies of such affirmation 
must be provided by certified mail, return receipt requested, to the 
parties identified in Sec.  222.43(a)(4) of this part; and
    (2) Provide to the Associate Administrator an up-to-date, accurate, 
and complete Grade Crossing Inventory Form for each public highway-rail 
grade crossing, private highway-rail grade crossing, and pedestrian 
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), 
Sec. Sec.  222.41(a)(1)(ii), (a)(1)(iii), and (a)(1)(iv), and 
Sec. Sec.  222.41(b)(1)(ii), (b)(1)(iii), and (b)(1)(iv) (quiet zones 
which do not have an SSM at every public crossing within the quiet 
zone) of this part. Between 2\1/2\ and 3 years after the date of the 
quiet zone establishment notice provided by the public authority under 
Sec.  222.43(e) of this part, 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)(4) of this part 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 highway-rail 
grade crossing, private highway-rail grade crossing, and pedestrian 
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.  222.39, 222.43 
and 222.47 of this part 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 quiet zone status be 
terminated?

    (a) New Quiet Zones--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) and 222.39(b) of this part, and in 
comparison to the Nationwide Significant Risk Threshold. FRA will 
notify each public authority of the Quiet Zone Risk Index for the 
preceding calendar year. FRA will not conduct annual risk reviews for 
quiet zones established by having an SSM at every public crossing 
within the quiet zone or for quiet zones established by reducing the 
Quiet Zone Risk Index to the Risk Index With Horns.
    (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 the Risk Index With Horns. 
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 the Risk Index With 
Horns, and receive approval from the Associate Administrator, under the 
procedures set forth in Sec.  222.39(b) of this part, for continuation 
of the quiet zone. If the Quiet Zone Risk Index is reduced to the Risk 
Index With Horns, the quiet zone will be considered to have been 
established pursuant to Sec.  222.39(a)(3) of this part 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 Zones--Annual risk review. (1) FRA will annually 
calculate the Quiet Zone Risk Index for each Pre-Rule Quiet Zone and 
Pre-Rule Partial Quiet Zone that qualified for automatic approval 
pursuant to Sec. Sec.  222.41(a)(1)(ii), 222.41(a)(1)(iii), 
222.41(b)(1)(ii), and 222.41(b)(1)(iii) of this part. FRA will notify 
each public authority of the Quiet Zone Risk Index for the preceding 
calendar year. 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 Zones and Pre-Rule Partial Quiet Zones 
authorized under Sec. Sec.  222.41(a)(1)(ii) and 222.41(b)(1)(ii). (i) 
If a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone originally 
qualified for automatic approval because the Quiet Zone Risk Index was 
at, or below, the Nationwide Significant Risk Threshold, the quiet zone 
may continue unchanged if the Quiet Zone Risk Index as last calculated 
by the 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)(1)(iii) or 222.41(b)(1)(iii) of this part.
    (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

[[Page 21899]]

specified in paragraph (b)(4) of this section.
    (3) Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones 
authorized under Sec. Sec.  222.41(a)(1)(iii) and 222.41(b)(1)(iii). 
(i) If a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone originally 
qualified for automatic approval because the Quiet Zone Risk Index was 
above the Nationwide Significant Risk Threshold, but below twice the 
Nationwide Significant Risk Threshold, and no relevant collisions had 
occurred within the five-year qualifying period, 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 
the Risk Index With Horns. 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 the Risk Index With Horns, 
and receive approval from the Associate Administrator, under the 
procedures set forth in Sec.  222.39(b) of this part, 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) of this part 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 zone three years after the date of receipt of notification 
from FRA.
    (c) Review at FRA's initiative. (1) The Associate Administrator 
may, at any time, review the status of any quiet zone.
    (2) If the Associate Administrator makes any of the following 
preliminary determinations, the Associate Administrator will provide 
written notice to the public authority, all railroads operating over 
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 grade crossing safety, and 
the State agency responsible for highway and road safety and will 
publish a notice of the determination in the Federal Register:
    (i) Safety systems and measures implemented within the quiet zone 
do not fully compensate for the absence of the locomotive horn due to a 
substantial increase in risk;
    (ii) Documentation relied upon to establish the quiet zone contains 
substantial errors that may have an adverse impact on public safety; or
    (iii) Significant risk with respect to loss of life or serious 
personal injury exists within the quiet zone.
    (3) 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 will 
provide a copy of his/her decision to the public authority and all 
parties listed in paragraph (c)(2) of this section. The public 
authority may appeal the Associate Administrator's decision in 
accordance with Sec.  222.57(c) of this part. 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) Termination by the public authority. (1) Any public authority 
that participated in the establishment of a quiet zone under the 
provisions of this part may, at any time, withdraw its quiet zone 
status.
    (2) A public authority may withdraw its quiet zone status by 
providing written notice of termination, by certified mail, return 
receipt requested, to all railroads operating 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 grade crossing safety, the State agency 
responsible for highway and road safety, and the Associate 
Administrator.
    (3)(i) If the quiet zone that is being withdrawn was part of a 
multi-jurisdictional quiet zone, the remaining quiet zones may remain 
in effect, provided the public authorities responsible for the 
remaining quiet zones provide statements to the Associate Administrator 
certifying that the Quiet Zone Risk Index for each remaining quiet zone 
is at, or below, the Nationwide Significant Risk Threshold or the Risk 
Index With Horns. These statements shall be provided, no later than six 
months after the date on which the notice of quiet zone termination was 
mailed, to all parties listed in paragraph (d)(2) of this section.
    (ii) If any remaining quiet zone has a Quiet Zone Risk Index in 
excess of the Nationwide Significant Risk Threshold and the Risk Index 
With Horns, the public authority responsible for the quiet zone shall 
submit a written commitment, to all parties listed in paragraph (d)(2) 
of this section, to reduce the Quiet Zone Risk Index to a level at or 
below the Nationwide Significant Risk Threshold or the Risk Index With 
Horns within three years. Included in the commitment statement shall be 
a discussion of the specific steps to be taken by the public authority 
to reduce the Quiet Zone Risk Index. This commitment statement shall be 
provided to all parties listed in paragraph (d)(2) of this section no 
later than six months after the date on which the notice of quiet zone 
termination was mailed.
    (iii) Failure to comply with paragraphs (d)(3)(i) and (d)(3)(ii) of 
this section shall result in the termination of the remaining quiet 
zone(s) six months after the date on which the notice of quiet zone 
termination was mailed by the withdrawing public authority in 
accordance with paragraph (d)(2) of this section.
    (iv) Failure to complete implementation of SSMs and/or ASMs to 
reduce the Quiet Zone Risk Index to

[[Page 21900]]

a level at, or below, the Nationwide Significant Risk Index or the Risk 
Index With Horns, in accordance with the written commitment provided 
under paragraph (d)(3)(ii) of this section, shall result in the 
termination of quiet zone status three years after the date on which 
the written commitment was received by FRA.
    (e) Notification of termination. (1) 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 immediately provide written 
notification of the termination by certified mail, return receipt 
requested, to all railroads operating over 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 grade crossing safety, the State agency 
responsible for highway and road safety, and the Associate 
Administrator.
    (2) Notwithstanding paragraph (e)(1) of this section, if a quiet 
zone is terminated under the provisions of this section, FRA shall also 
provide written notification to all parties listed in paragraph (e)(1) 
of this section.
    (f) Requirement to sound the locomotive horn. Upon receipt of 
notification of quiet zone termination pursuant to paragraph (e) of 
this section, 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. With the 
exception of permanent crossing closures, approved SSMs can qualify for 
quiet zone risk reduction credit in the manner specified 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) of this part are listed 
in appendix B of this part. Modified SSMs can qualify for quiet zone 
risk reduction credit in the manner specified 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 of this part 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 of this part.


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 of this part. 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 the following parties: all 
railroads ordered to temporarily cease sounding of the locomotive horn 
over public highway-rail grade crossings for the demonstration of the 
proposed new SSM or ASM, the highway or traffic control authority or 
law enforcement authority having control over vehicular traffic at the 
crossings affected by the new SSM/ASM demonstration, the State agency 
responsible for grade crossing safety, the State agency responsible for 
highway and road safety, and the Associate Administrator. 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 request reconsideration of a decision by 
the Associate Administrator to deny an

[[Page 21901]]

application by that authority for approval of a quiet zone, or to 
require additional safety measures, by filing a petition for 
reconsideration with the Associate Administrator. The petition must 
specify the grounds for asserting that the Associate Administrator 
improperly exercised his/her judgment in finding that the proposed SSMs 
and ASMs would not result in a Quiet Zone Risk Index that would be at 
or below the Risk Index With Horns or the Nationwide Significant Risk 
Threshold. The petition shall be filed within 60 days of the date of 
the decision to be reconsidered and be served upon all parties listed 
in Sec.  222.39(b)(3) of this part. Upon receipt of a timely and proper 
petition, the Associate Administrator will provide the petitioner an 
opportunity to submit additional materials and to request 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.
    (c) A public authority may request reconsideration of a decision by 
the Associate Administrator to terminate quiet zone status by filing a 
petition for reconsideration with the Associate Administrator. The 
petition must be filed within 60 days of the date of the decision, 
specify the grounds for the requested relief, and be served upon all 
parties listed in Sec.  222.51(c)(2) of this part. Unless the Associate 
Administrator publishes a notice in the Federal Register that 
specifically stays the effectiveness of his/her decision, the filing of 
a petition under this paragraph will not stay the termination of quiet 
zone status. Upon receipt of a timely and proper petition, the 
Associate Administrator will provide the petitioner an opportunity to 
submit additional materials and to request 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. A copy of this decision 
shall be served upon all parties listed in Sec.  222.51(c)(2) of this 
part.
    (d) A railroad may request reconsideration of a decision by the 
Associate Administrator to approve an application for approval of a 
proposed quiet zone under Sec.  222.39(b) of this part by filing a 
petition for reconsideration with the Associate Administrator. The 
petition must specify the grounds for asserting that the Associate 
Administrator improperly exercised his/her judgment in finding that the 
proposed SSMs and ASMs would result in a Quiet Zone Risk Index that 
would be at or below the Risk Index With Horns or the Nationwide 
Significant Risk Threshold. The petition shall be filed within 60 days 
of the date of the decision to be reconsidered, and be served upon all 
parties listed in Sec.  222.39(b)(3) of this part. Upon receipt of a 
timely and proper petition, the Associate Administrator will provide 
the petitioner an opportunity to submit additional materials and to 
request an informal hearing. Upon review of the additional materials 
and completion of any hearing requested, the Associate Administrator 
shall issue a decision that will be administratively final.


Sec.  222.59  When may a wayside horn be used?

    (a)(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.
    (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 provide written notice that a 
wayside horn is being installed to all railroads operating over the 
public highway-rail grade crossings within the quiet zone, the highway 
or traffic control authority or law enforcement authority having 
control over vehicular traffic at the crossings within the quiet zone, 
the landowner having control over any private crossings within the 
quiet zone, the State agency responsible for grade crossing safety, the 
State agency responsible for highway and road safety, and the Associate 
Administrator. This notice shall provide the date on which the wayside 
horn will be operational and identify the grade crossing at which the 
wayside horn shall be installed by both the U.S. DOT National Highway-
Rail Grade Crossing Inventory Number and street or highway name. The 
railroad or public authority shall provide notification of the 
operational date at least 21 days in advance.
    (c) A railroad or public authority installing a wayside horn at a 
grade crossing located outside a quiet zone shall provide written 
notice that a wayside horn is being installed to all railroads 
operating over the public highway-rail grade crossing, the highway or 
traffic control authority or law enforcement authority having control 
over vehicular traffic at the crossing, the State agency responsible 
for grade crossing safety, the State agency responsible for highway and 
road safety, and the Associate Administrator. This notice shall provide 
the date on which the wayside horn will be operational and identify the 
grade crossing at which the wayside horn shall be installed by both the 
U.S. DOT National Highway-Rail Grade Crossing Inventory Number and 
street or highway name. The railroad or 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 that is equipped with a 
wayside horn and located outside of a quiet zone shall cease routine 
locomotive horn use at the grade crossing on the operational date 
specified in the notice required by paragraph (c) of this section.

Appendix A to Part 222--Approved Supplementary Safety Measures

A. Requirements and Effectiveness Rates for Supplementary Safety 
Measures

    This section provides a list of approved supplementary safety 
measures (SSMs) that may be installed at highway-rail grade 
crossings within quiet zones for risk reduction credit. Each SSM has 
been assigned an effectiveness rate, which may be subject to 
adjustment as research and demonstration projects are completed and 
data is gathered and refined. Sections B and C govern the process 
through which risk reduction credit for pre-existing SSMs can be 
determined.
    1. Temporary Closure of a Public Highway-Rail Grade Crossing: 
Close the crossing to highway traffic during designated quiet 
periods. (This SSM can only be implemented within Partial Quiet 
Zones.)
    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:

[[Page 21902]]

    a. The closure system must completely block highway traffic on 
all approach lanes to the crossing.
    b. The closure system must completely block adjacent pedestrian 
crossings.
    c. Public highway-rail grade crossings located within New 
Partial Quiet Zones shall be closed from 10 p.m. until 7 a.m. every 
day. Public highway-rail grade crossings located within Pre-Rule 
Partial Quiet Zones 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 tracks. The public 
authority 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.
    g. The closure system shall be equipped with a monitoring device 
that contains an indicator which is visible to the train crew prior 
to entering the crossing. The indicator shall illuminate whenever 
the closure device is deployed.
    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 or New 
Partial 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 and Pre-Rule Partial Quiet Zones. However, 
if existing automatic warning device systems in Pre-Rule Quiet Zones 
and Pre-Rule Partial Quiet Zones are renewed, or new automatic 
warning device systems are installed, power-out indicators and 
constant warning time devices are required, unless existing 
conditions at the crossing would prevent the proper operation of the 
constant warning devices.

    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. 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.
    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 circumventing the approach lane gates by switching into the 
opposing (oncoming) traffic lane and driving around the 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 d and e apply only to New Quiet Zones 
and New Partial 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 or Pre-Rule Partial Quiet 
Zones. However, if existing automatic warning device systems in Pre-
Rule Quiet Zones and Pre-Rule Partial Quiet Zones are renewed, or 
new automatic warning device systems are installed, power-out 
indicators and constant warning time devices are required, unless 
existing conditions at the crossing would prevent the proper 
operation of the constant warning devices.

[[Page 21903]]

    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 and New 
Partial 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 or Pre-Rule Partial Quiet Zones. If 
automatic warning systems are, however, installed or renewed in a 
Pre-Rule Quiet or Pre-Rule Partial Quiet Zone, power-out indicators 
and constant warning time devices shall be installed, unless 
existing conditions at the crossing would prevent the proper 
operation of the constant warning time devices.

    5. Permanent Closure of a Public Highway-Rail Grade Crossing: 
Permanently close the crossing to highway traffic.
    Effectiveness: 1.0.
    Required:
    a. The closure system must completely block highway traffic from 
entering the grade crossing.
    b. Barricades and signs used for closure of the roadway shall 
conform to the standards contained in the MUTCD.
    c. The closure system must be tamper and vandal resistant to the 
same extent as other traffic control devices.
    d. Since traffic will be redistributed among adjacent crossings, 
the traffic counts for adjacent crossings shall be increased to 
reflect the diversion of traffic from the closed crossing.

B. Credit for Pre-Existing SSMs in New Quiet Zones and New Partial 
Quiet Zones

    A community that has implemented a pre-existing SSM at a public 
grade crossing can receive risk reduction credit by inflating the 
Risk Index With Horns as follows:
    1. Calculate the current risk index for the grade crossing that 
is equipped with a qualifying, pre-existing SSM. (See appendix D. 
FRA's web-based Quiet Zone Calculator may be used to complete this 
calculation.)
    2. Adjust the risk index by accounting for the increased risk 
that was avoided by implementing the pre-existing SSM at the public 
grade crossing. This adjustment can be made by dividing the risk 
index by one minus the SSM effectiveness rate. (For example, the 
risk index for a crossing equipped with pre-existing channelization 
devices would be divided by .25.)
    3. Add the current risk indices for the other public grade 
crossings located within the proposed quiet zone and divide by the 
number of crossings. The resulting risk index will be the new Risk 
Index With Horns for the proposed quiet zone.

C. Credit for Pre-Existing SSMs in Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones

    A community that has implemented a pre-existing SSM at a public 
grade crossing can receive risk reduction credit by inflating the 
Risk Index With Horns as follows:
    1. Calculate the current risk index for the grade crossing that 
is equipped with a qualifying, pre-existing SSM. (See appendix D. 
FRA's web-based Quiet Zone Calculator may be used to complete this 
calculation.)
    2. Reduce the current risk index for the grade crossing to 
reflect the risk reduction that would have been achieved if the 
locomotive horn was routinely sounded at the crossing. The following 
list sets forth the estimated risk reduction for certain types of 
crossings:
    a. Risk indices for passive crossings shall be reduced by 43%;
    b. Risk indices for grade crossings equipped with automatic 
flashing lights shall be reduced by 27%; and
    c. Risk indices for gated crossings shall be reduced by 40%.
    3. Adjust the risk index by accounting for the increased risk 
that was avoided by implementing the pre-existing SSM at the public 
grade crossing. This adjustment can be made by dividing the risk 
index by one minus the SSM effectiveness rate. (For example, the 
risk index for a crossing equipped with pre-existing channelization 
devices would be divided by .25.)
    4. Adjust the risk indices for the other crossings that are 
included in the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
by reducing the current risk index to reflect the risk reduction 
that would have been achieved if the locomotive horn was routinely 
sounded at each crossing. Please refer to step two for the list of 
approved risk reduction percentages by crossing type.
    5. Add the new risk indices for each crossing located within the 
proposed quiet zone and divide by the number of crossings. The 
resulting risk index will be the new Risk Index With Horns for the 
quiet zone.

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 ASMs 
listed in this appendix in its proposal. This appendix addresses 
three types of ASMs: Modified SSMs, Non-Engineering ASMs, and 
Engineering ASMs. Modified SSMs are SSMs that do not fully comply 
with the provisions listed in appendix A. As provided in section 
I.B. of this appendix, public authorities can obtain risk reduction 
credit for pre-existing modified SSMs under the final rule. Non-
engineering ASMs consist of programmed enforcement, public education 
and awareness, and photo enforcement programs that may be used to 
reduce risk within a quiet zone. Engineering ASMs consist of 
engineering improvements that address underlying geometric 
conditions, including sight distance, that are the source of 
increased risk at crossings.

I. Modified SSMs

A. Requirements and Effectiveness Rates for Modified SSMs

    1. 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 a 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.
    2. 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.
    3. 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).

B. Credit for Pre-Existing Modified SSMs in New Quiet Zones and New 
Partial Quiet Zones

    A community that has implemented a pre-existing modified SSM at 
a public grade crossing can receive risk reduction credit by 
inflating the Risk Index With Horns as follows:
    1. Calculate the current risk index for the grade crossing that 
is equipped with a pre-

[[Page 21904]]

existing modified SSM. (See appendix D. FRA's web-based Quiet Zone 
Calculator may be used to complete this calculation.)
    2. Obtain FRA approval of the estimated effectiveness rate for 
the pre-existing modified SSM. Estimated effectiveness rates may be 
based upon adjustments from the SSM effectiveness rates provided in 
appendix A or actual field data derived from crossing sites.
    3. Adjust the risk index by accounting for the increased risk 
that was avoided by implementing the pre-existing modified SSM at 
the public grade crossing. This adjustment can be made by dividing 
the risk index by one minus the FRA-approved modified SSM 
effectiveness rate.
    4. Add the current risk indices for the other public grade 
crossings located within the proposed quiet zone and divide by the 
number of crossings. The resulting risk index will be the new Risk 
Index With Horns for the proposed quiet zone.

C. Credit for Pre-Existing Modified SSMs in Pre-Rule Quiet Zones 
and Pre-Rule Partial Quiet Zones

    A community that has implemented a pre-existing modified SSM at 
a public grade crossing can receive risk reduction credit by 
inflating the Risk Index With Horns as follows:
    1. Calculate the current risk index for the grade crossing that 
is equipped with a pre-existing modified SSM. (See appendix D. FRA's 
web-based Quiet Zone Calculator may be used to complete this 
calculation.)
    2. Reduce the current risk index for the grade crossing to 
reflect the risk reduction that would have been achieved if the 
locomotive horn was routinely sounded at the crossing. The following 
list sets forth the estimated risk reduction for certain types of 
crossings:
    a. Risk indices for passive crossings shall be reduced by 43%;
    b. Risk indices for grade crossings equipped with automatic 
flashing lights shall be reduced by 27%; and
    c. Risk indices for gated crossings shall be reduced by 40%.
    3. Obtain FRA approval of the estimated effectiveness rate for 
the pre-existing modified SSM. Estimated effectiveness rates may be 
based upon adjustments from the SSM effectiveness rates provided in 
appendix A or actual field data derived from crossing sites.
    4. Adjust the risk index by accounting for the increased risk 
that was avoided by implementing the pre-existing modified SSM at 
the public grade crossing. This adjustment can be made by dividing 
the risk index by one minus the FRA-approved modified SSM 
effectiveness rate.
    5. Adjust the risk indices for the other crossings that are 
included in the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
by reducing the current risk index to reflect the risk reduction 
that would have been achieved if the locomotive horn was routinely 
sounded at each crossing. Please refer to step two for the list of 
approved risk reduction percentages by crossing type.
    6. Add the new risk indices for each crossing located within the 
proposed quiet zone and divide by the number of crossings. The 
resulting risk index will be the new Risk Index With Horns for the 
quiet zone.

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 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 provides a 
statistically valid violation rate that indicates the effectiveness 
of the law enforcement effort.
    c. The public authority shall retain records pertaining to 
monitoring and sampling efforts at the grade crossing for a period 
of not less than five years. These records shall be made available, 
upon request, to FRA as provided by 49 U.S.C. 20107.
    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 public education and awareness 
effort. This program shall be provided and supported primarily 
through local resources.
    c. The public authority shall retain records pertaining to 
monitoring and sampling efforts at the grade crossing for a period 
of not less than five years. These records shall be made available, 
upon request, to FRA as provided by 49 U.S.C. 20107.
    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.
    Requirements:
    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.
    i. The public authority shall retain records pertaining to 
monitoring and sampling efforts at the grade crossing for a period 
of not less than five years. These records shall be made available, 
upon request, to FRA as provided by 49 U.S.C. 20107.
    B. The effectiveness of an ASM will be determined as follows:
    1. Establish the quarterly (three 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

[[Page 21905]]

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 stated 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 grade 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 a level at, or below, the Risk Index With Horns or the Nationwide 
Significant Risk Threshold, the public authority may apply to FRA 
for approval of the proposed 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 National Significant 
Risk Threshold, the procedures for dealing with unacceptable 
effectiveness after establishment of a quiet zone should be 
followed.

III. Engineering ASMs

    A. Engineering improvements, other than modified SSMs, may be 
used in the creation of a Quiet Zone. These engineering 
improvements, which will be treated as ASMs under this appendix, may 
include improvements that address underlying geometric conditions, 
including sight distance, that are the source of increased risk at 
the crossing.
    B. The effectiveness of an Engineering ASM will be determined as 
follows:
    1. Establish the quarterly (three months) baseline violation 
rate for the crossing at which the Engineering ASM will be applied.
    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 stated in this paragraph unless FRA 
authorizes another methodology.
    2. The Engineering ASM should be initiated at the crossing. 
Train horns are still being sounded during this time period.
    3. In the calendar quarter following initiation of the 
Engineering ASM, determine a new quarterly violation rate using the 
same methodology as in paragraph (1) above.
    4. Determine the violation rate reduction for the crossing by 
the following formula:

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

    5. Using the Engineering ASM effectiveness rate, determine the 
Quiet Zone Risk Index. If and when the Quiet Zone Risk Index for the 
proposed quiet zone has been reduced to a risk level at or below the 
Risk Index With Horns or 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.
    6. Violation rates must be monitored for the next two calendar 
quarters. Unless otherwise provided in FRA's notification of quiet 
zone approval, if the violation rate for these two calendar quarters 
does not exceed the violation rate that was used to determine the 
effectiveness rate that was approved by FRA, the public authority 
can cease violation rate monitoring.
    7. In the event that the violation rate over either of the next 
two calendar quarters are 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 a third calendar 
quarter. However, if the third calendar quarter violation rate is 
also 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 exceeds the 
Risk Index With Horns and 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 
five 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. This section also discusses Partial (e.g. night time only 
quiet zones) and Intermediate Quiet Zones. An Intermediate Quiet 
Zone is one where horn restrictions were in place after October 9, 
1996, but as of December 18, 2003.
    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.

[[Page 21906]]

    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 by public authorities when establishing both 
New and continuing Pre-Rule or Intermediate 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

    (1) 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:
    a. One or more SSMs as identified in appendix A are installed at 
each public crossing in the quiet zone; or
    b. 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
    c. 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
    d. Additional safety measures are taken at selected crossings 
resulting in the Quiet Zone Risk Index being reduced to at least the 
level of the Risk Index With Horns (that is, the risk that would 
exist if train horns were sounded at every public crossing in the 
quiet zone).
    (2) 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.
    (3) 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.
    (4) 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 they 
still qualify 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.
    (5) The use of FRA's web-based Quiet Zone Calculator is 
recommended to aid in the decision making process (http://www.fra.dot.gov/us/content/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 SSMs 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. In other words, the Quiet Zone 
Calculator does not need to be used. 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 (which 
includes a copy of the report generated by the Quiet Zone Calculator 
showing that the risk in the quiet zone has been sufficiently 
reduced), 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 ASMs (see appendix B). ASMs include modified SSMs that do not 
fully comply with the provisions found in appendix A (e.g., shorter 
than required traffic channelization devices), non-engineering ASMs 
(e.g., programmed law enforcement), and engineering ASMs (i.e, 
engineering improvements other than modified SSMs). If the use of 
ASMs (or a combination of ASMs and 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

[[Page 21907]]

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. The effectiveness of a closure is 1.0. 
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. It should be noted that crossing closures that are already 
in existence are not considered in the risk calculations.
    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 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% 
and divide the sum of the three remaining crossings by four. 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. 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 and the existing at-grade crossing 
closed. 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% and divide the sum 
of the three remaining crossings by four. This is the initial Quiet 
Zone Risk Index and accounts for the risk reduction caused by the 
grade separation at C Street.
    Pre-Existing SSMs: Risk reduction credit may be taken by a 
public authority for a SSM that was previously implemented and is 
currently in place in the quiet zone. If an existing improvement 
meets the criteria for a SSM as provided in appendix A, the 
improvement is deemed a Pre-Existing SSM. Risk reduction credit is 
obtained by inflating the Risk Index With Horns to show what the 
risk would have been at the crossing if the pre-existing SSM had not 
been implemented. Crossing closures and grade separations that 
occurred prior to the implementation of the quiet zone are not Pre-
Existing SSMs and do not receive any risk reduction credit.
    Example 1-- A proposed New Quiet Zone has one crossing that is 
equipped with flashing lights and gates and has medians 100 feet in 
length on both sides of the crossing. The medians conform to the 
requirements in appendix A and qualify as a Pre-Existing SSM. The 
risk index as calculated for the crossing is 10,000. To calculate 
the Risk Index With Horns for this crossing, you divide the risk 
index by difference between one and the effectiveness rate of the 
pre-existing SSM (10,000 / (1-0.75) = 40,000). This value (40,000) 
would then be averaged in with the risk indices of the other 
crossings to determine the proposed quiet zone's Risk Index With 
Horns. To calculate the Quiet Zone Risk Index, the original risk 
index is increased by 66.8% to account for the additional risk 
attributed to the absence of the train horn (10,000 x 1.668 = 
16,680). This value (16,680) is then averaged into the risk indices 
of the other crossings that have also been increased by 66.8%. The 
resulting average is the Quiet Zone Risk Index.
    Example 2-- A Pre-Rule Quiet Zone consisting of four crossings 
has one crossing that is equipped with flashing lights and gates and 
has medians 100 feet in length on both sides of the crossing. The 
medians conform to the requirements in appendix A and qualify as a 
Pre-Existing SSM. The risk index as calculated for the crossing is 
20,000. To calculate the Risk Index With Horns for this crossing, 
first reduce the risk index by 40 percent to reflect the risk 
reduction that would be achieved if train horns were routinely 
sounded (20,000 x 0.6 = 12,000). Next, divide the resulting risk 
index by difference between one and the effectiveness rate of the 
pre-existing SSM (12,000 / (1-0.75) = 48,000). This value (48,000) 
would then be averaged with the adjusted risk indices of the other 
crossings to determine the pre-rule quiet zone's Risk Index With 
Horns. To calculate the Quiet Zone Risk Index, the original risk 
index (20,000) is then averaged into the risk original indices of 
the other crossings. The resulting average is the Quiet Zone Risk 
Index.
    Pre-Existing Modified SSMs: Risk reduction credit may be taken 
by a public authority for a modified SSM that was previously 
implemented and is currently in place in the quiet zone. Modified 
SSMs are Alternative Safety Measures which must be approved by FRA. 
If an existing improvement is approved by FRA as a modified SSM as 
provided in appendix B, the improvement is deemed a Pre-Existing 
Modified SSM. Risk reduction credit is obtained by inflating the 
Risk Index With Horns to show what the risk would have been at the 
crossing if the pre-existing SSM had not been implemented. The 
effectiveness rate of the modified SSM will be determined by FRA. 
The public authority may provide information to FRA to be used in 
determining the effectiveness rate of the modified SSM. Once an 
effectiveness rate has been determined, follow the procedure 
previously discussed for Pre-Existing SSMs to determine the risk 
values that will be used in the quiet zone calculations.
    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% and average the results. This is the initial 
Quiet Zone Risk Index for the proposed quiet zone.

C. Partial Quiet Zones

    A Partial Quiet Zone is a quiet zone in which locomotive horns 
are not routinely sounded at public crossings for a specified period 
of time each day. For example, a quiet zone during only the 
nighttime hours would be a partial quiet zone. Partial quiet zones 
may be either New or Pre-Rule and follow the same rules as 24 hour 
quiet zones. New Partial Quiet Zones may be in effect during the 
hours of 10 p.m. to 7 a.m. All New Partial Quiet Zones must comply 
with all of the requirements for New Quiet Zones. For example, all 
public grade crossings that are open during the time that horns are 
silenced must be equipped with flashing lights and gates that are 
equipped with constant warning time (where practical) and power out 
indicators. Risk is calculated in exactly the same manner as for New 
Quiet Zones. The Quiet Zone Risk Index is calculated for the entire 
24-hour period, even though the train horn will only be silenced 
during the hours of 10 p.m. to 7 a.m.
    A Pre-Rule Partial Quiet Zone is a partial quiet zone at which 
train horns were not sounding as of October 9, 1996 and on December 
18, 2003. All of the regulations that pertain to Pre-Rule Quiet 
Zones also pertain to Pre-Rule Partial Quiet Zones. The Quiet Zone 
Risk Index is calculated for the entire 24-hour period for Pre-Rule 
Partial Quiet Zones, even though train horns are only silenced 
during the nighttime hours. Pre-Rule Partial Quiet Zones may qualify 
for automatic approval in the same manner as Pre-Rule Quiet Zones 
with one exception. If the Quiet Zone Risk Index is less than twice 
the National Significant Risk Threshold, and

[[Page 21908]]

there have been no relevant collisions during the time period when 
train horns are silenced, then the Pre-Rule Partial Quiet Zone is 
automatically qualified. In other words, a relevant collision that 
occurred during the period of time that train horns were sounded 
will not disqualify a Pre-Rule Partial Quiet Zone that has a Quiet 
Zone Risk Index that is less than twice the National Significant 
Risk Index. Pre-Rule Partial Quiet Zones must provide the 
notification as required in Sec.  222.43 in order to keep train 
horns silenced. A Pre-Rule Partial Quiet Zone may be converted to a 
24 hour New Quiet Zone by complying with all of the New Quiet Zone 
regulations.

D. Intermediate Quiet Zones

    An Intermediate Quiet Zone is one where horn restrictions were 
in place after October 9, 1996, but as of December 18, 2003 (the 
publication date of the Interim Final Rule). Intermediate Quiet 
Zones and Intermediate Partial Quiet Zones will be able to keep 
train horns silenced until June 24, 2006, provided notification is 
made per Sec.  222.43. This will enable public authority to have 
additional time to make the improvement necessary to come into 
compliance with the rule. Intermediate Quiet Zones must conform to 
all the requirements for New Quiet Zones by June 24, 2006. Other 
than having the horn silenced for an additional year, Intermediate 
Quiet Zones are treated exactly like New Quiet Zones.

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. The 
requirements are the same regardless of whether a 24-hour or partial 
quiet zone is being created.

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. The public authority must provide a written Notice of Intent 
(Sec.  222.43(a)(1) and Sec.  222.43(b)) to the railroads that 
operate over the proposed quiet zone, the State agency responsible 
for highway and road safety and the State agency responsible for 
grade crossing safety. The purpose of this Notice of Intent is to 
provide an opportunity for the railroads and the State agencies to 
provide comments and recommendations to the public authority as it 
is planning the quiet zone. They will have 60 days to provide these 
comments to the public authority. The quiet zone cannot be created 
unless the Notice of Intent has been provided. FRA encourages public 
authorities to provide the required Notice of Intent early in the 
quiet zone development process. The railroads and State agencies can 
provide an expertise that very well may not be present within the 
public authority. FRA believes that it will be very useful to 
include these organizations in the planning process. For example, 
including railroads and State agencies in the inspections of the 
crossing will help ensure accurate Inventory information for the 
crossings. The railroad can provide information on whether the 
flashing lights and gates are equipped with constant warning time 
and power out indicators. Pedestrian crossings and private crossings 
with public access, industrial or commercial use that are within the 
quiet zone must have a diagnostic team review and be treated 
according to the team's recommendations. Railroads and the State 
agency responsible for grade crossing safety must be invited to the 
diagnostic team review. Note: Please see Section IV for details on 
the requirements of a Notice of Intent.
    2. Determine all public, private and pedestrian 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.
    3. Ensure that the quiet zone will be at least one-half mile in 
length. (Sec.  222.35(a)(1))
    4. A complete and accurate Grade Crossing Inventory Form must be 
on file with FRA for all crossings (public, private and pedestrian) 
within the quiet zone. An inspection of each crossing in the 
proposed quiet zone should be performed and the Grade Crossing 
Inventory Forms updated, as necessary, to reflect the current 
conditions at each crossing. (Sec.  222.43(e)(2)(vi))
    5. 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. FRA recommends that these automatic 
warning devices also be equipped with at least one bell to provide 
an audible warning to pedestrians. If the warning devices are 
already equipped with a bell (or bells), the bells may not be 
removed or deactivated. 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. Sec.  222.35(b)(1) and 222.35(b)(2))
    6. 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. The 
public authority must invite the State agency responsible for grade 
crossing safety and all affected railroads to participate in the 
diagnostic review. (Sec. Sec.  222.25(b) and (c))
    7. 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. Sec.  222.25(c)(1), 222.35(c)(1) and 222.35(c)(2))
    8. Each pedestrian crossing must be reviewed by a diagnostic 
team and equipped or treated in accordance with the recommendation 
of the diagnostic team. The public authority must invite the State 
agency responsible for grade crossing safety and all affected 
railroads to participate in the diagnostic review. At a minimum 
pedestrian crossings must be equipped with signs that conform to the 
MUTCD that advise pedestrians that train horns are not sounded at 
the crossing. (Sec.  222.27)

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:
    a. 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
    b. 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
    c. SSMs 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
    d. SSMs 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, Notice of Quiet Zone 
Establishment shall be provided and the quiet zone implemented in 
accordance with the rule. If SSMs are not installed at each 
crossings, 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:

[[Page 21909]]

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 and pedestrian 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% at 
gated crossings. 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 
provide the Notice of Quiet Zone Establishment. 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 rises 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 
result is obtained, the quiet zone has qualified for the public 
authority designation method, and Notice of Quiet Zone Establishment 
must be provided 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 rises 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 Notice of Quiet Zone Establishment must be 
provided 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 three 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. Third, when engineering ASMs are used to 
reduce risk. 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 ASMs to help guide the application process. If non-
engineering ASMs or 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 II B.
    c. Engineering ASMs--Effectiveness rates are to be calculated in 
accordance with the provisions of appendix B, paragraph III 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)):
    a. Sufficient detail concerning the present safety measures at 
all crossings within the proposed quiet zone. This includes current 
and accurate crossing inventory forms for each public and private 
grade crossing.
    b. Detailed information on the SSMs or ASMs 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. Statement of efforts taken to work with affected railroads 
and the State agency

[[Page 21910]]

responsible for grade crossing safety, including a list of any 
objections raised by the railroads or State agency.
    e. A commitment to implement the proposed safety measures.
    f. 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.
    g. A copy of the application must be provided to: all railroads 
operating over the public highway-rail grade crossings within the 
quiet zone; the highway or traffic control or law enforcement 
authority having jurisdiction over vehicular traffic at grade 
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; the State agency 
responsible for grade crossing safety; and the Associate 
Administrator. (Sec.  222.39(b)(3))
    7. Upon receiving written approval from FRA of the quiet zone 
application, the public authority may then provide the Notice of 
Quiet Zone Establishment and implement 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 rises 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, wayside horns, pre-existing SSMs and pre-existing 
modified SSMs 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 are not established by 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 June 24, 2010. (Sec.  222.41(c)(2)) There are four 
differences in the requirements between Pre-Rule Quiet Zones and New 
Quiet Zones that must be noted.
    (1) 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%. For 
Pre-Rule Quiet Zones, the Crossing Corridor Risk Index and the 
initial Quiet Zone Risk Index have the same value.
    (2) 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
----------------------------------------------------------------------------------------------------------------
                                                              Passive        Flashing lights    Lights and gates
----------------------------------------------------------------------------------------------------------------
U.S....................................................             1.749              1.309              1.668
----------------------------------------------------------------------------------------------------------------

    (3) 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)(3)). 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% 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 in New Quiet Zones.
    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.
    (4) 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 (Sec.  222.35(a)(2)). A Pre-Rule Quiet Zone 
does not have to have automatic warning devices consisting of 
flashing lights and gates at every public crossing (Sec.  
222.35(b)(3)). 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)(3)). 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 
June 24, 2008, which allows three years to install the required 
signage (Sec. Sec.  222.35(c)(3) and 222.35(c)(4)).

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

    The 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.

[[Page 21911]]

    1. Determine all public, private and pedestrian 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 that is not a part of an existing Pre-Rule Quiet 
Zone to a quiet zone nullifies its pre-rule status, and the 
resulting New Quiet Zone must be at least 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 at 
least one half mile in length. It is the intent of the rule to allow 
adjacent Pre-Rule Quiet Zones to be combined into one large pre-rule 
quiet zone if the respective public authorities desire to do so.
    3. A complete and accurate Grade Crossing Inventory Form must be 
on file with FRA for all crossings (public, private and pedestrian) 
within the quiet zone. An inspection of each crossing in the 
proposed quiet zone should be performed and the Grade Crossing 
Inventory Forms updated, as necessary, 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 June 24, 2008, private crossings must have cross-bucks and 
``STOP'' signs on both approaches to the crossing.
    6. By June 24, 2008, pedestrian crossings must be equipped with 
signs that conform to the MUTCD that advise pedestrians that train 
horns are not sounded at the crossing.
    7. By June 24, 2008, 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.
    8. It will be necessary for the public authority to provide a 
Notice of Quiet Zone Continuation in order for the railroads not to 
start sounding train horns when the rule becomes effective. A 
detailed discussion of the requirements of Sec.  222.43(c) is 
provided in Section IV of this appendix. The Notice of Quiet Zone 
Continuation must be provided to the appropriate parties by all Pre-
Rule Quiet Zones that have not established quiet zones by automatic 
approval. This should be done no later than June 3, 2005 to ensure 
that train horns will not start being sounded on June 24, 2005. A 
Pre-Rule Quiet Zone may provide a Notice of Quiet Zone Continuation 
before it has determined whether or not it qualifies for automatic 
approval. Once it has been determined that the Pre-Rule Quiet Zone 
will be established by automatic approval, the Public Authority must 
provide the Notice of Quiet Zone Establishment. This must be 
accomplished no later than December 24, 2005. If the Pre-Rule Quiet 
Zone does not qualify for automatic approval, the Notice of Quiet 
Zone Continuation will enable the train horns to be silenced until 
the quiet zone is established in accordance with the rule.

B. Pre-Rule Quiet Zones--Automatic Approval

    In order for a Pre-Rule Quiet Zone to be established under this 
rule (Sec.  222.41(a)), one of the following conditions must be met:
    a. One or more SSMs as identified in appendix A are installed at 
each public crossing in the quiet zone; or
    b. The Quiet Zone Risk Index is equal to, or less than, the 
Nationwide Significant Risk Threshold; or
    c. 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; 
or
    d. The Quiet Zone Risk Index is equal to, or less than, the Risk 
Index With Horns.
    Additionally, the Pre-Rule Quiet Zone 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 at every public 
crossing. (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 provide the Notice of Quiet Zone Establishment. 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 found to be above the 
Nationwide Significant Risk Threshold, FRA will notify the public 
authority so that appropriate measures can be taken (See Sec.  
222.51(b)). If the Pre-Rule Quiet Zone is not established 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 provide the Notice 
of Quiet Zone Establishment. (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)).
    7. If the Pre-Rule Quiet Zone is not established by automatic 
approval, continuation of the quiet zone will require implementation 
of SSMs or ASMs to reduce the Quiet Zone Risk Index for the quiet 
zone 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

[[Page 21912]]

establish a Pre-Rule Quiet Zone using the Public Authority 
Designation method.
    1. The public authority must provide a written Notice of 
Detailed Plan (Sec. Sec.  222.43(a)(3) and 222.43(d)) to the 
railroads that operate over the proposed quiet zone, the State 
agency responsible for highway and road safety and the State agency 
responsible for grade crossing safety. This notice must be given at 
least four months before the filing of the detailed plan with FRA as 
required in Sec.  222.41(c)(2). The purpose of this Notice of 
Detailed Plan is to provide an opportunity for the railroads and the 
State agencies to provide comments and recommendations to the public 
authority as it is planning the quiet zone. They will have 60 days 
to provide these comments to the public authority. The quiet zone 
cannot be created unless the Notice of Detailed Plan has been 
provided. FRA encourages public authorities to provide the required 
Notice of Detailed Plan early in the quiet zone development process. 
The railroads and State agencies can provide an expertise that very 
well may not be present within the public authority. FRA believes 
that it will be very useful to include these organizations in the 
planning process. For example, including them in the inspections of 
the crossing will help ensure accurate Inventory information for the 
crossings. Note: Please see Section IV for details on the 
requirements of a Notice of Detailed Plan.
    2. 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.
    3. Calculate the risk index for each public crossing within the 
quiet zone as in Step 3--Pre-Rule Quiet Zones--Automatic Approval.
    4. 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.
    5. 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.
    6. 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 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 
the public authority may provide the Notice of Quiet Zone 
Establishment once all the necessary improvements have been 
installed. If the quiet zone is established by reducing the Quiet 
Zone Risk Index to a risk 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 
Index. If the Quiet Zone Risk Index for the quiet zone rises above 
the Nationwide Significant Risk Threshold, FRA will notify the 
public authority so that appropriate measures can be taken (See 
Sec.  222.51(b)).

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

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

    The following discussion is meant to provide guidance on the 
steps necessary to establish a Pre-Rule Quiet zone using the Public 
Authority Application to FRA method.
    1. The public authority must provide a written Notice of 
Detailed Plan (Sec. Sec.  222.43(a)(3) and 222.43(d)) to the 
railroads that operate over the proposed quiet zone, the State 
agency responsible for highway and road safety and the State agency 
responsible for grade crossing safety. This notice must be given at 
least four months before the filing of the detailed plan with FRA as 
required in Sec.  222.41(c)(2). The purpose of this Notice of 
Detailed Plan is to provide an opportunity for the railroads and the 
State agencies to provide comments and recommendations to the public 
authority as it is planning the quiet zone. They will have 60 days 
to provide these comments to the public authority. The quiet zone 
cannot be created unless the Notice of Detailed Plan has been 
provided. FRA encourages public authorities to provide the required 
Notice of Detailed Plan early in the quiet zone development process. 
The railroads and State agencies can provide an expertise that very 
well may not be present within the public authority. FRA believes 
that it will be very useful to include these organizations in the 
planning process. For example, including them in the inspections of 
the crossing will help ensure accurate Inventory information for the 
crossings. Note: Please see Section IV for details on the 
requirements of a Notice of Detailed Plan.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. Begin to reduce the Quiet Zone Risk Index through the use of 
ASMs and/or SSMs. Follow the procedure provided in Step 6--New Quiet 
Zones 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, section 
II B.
    c. Engineering ASMs--Effectiveness rates are to be calculated in 
accordance with the provisions of appendix B, section III B.
    7. 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

[[Page 21913]]

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 
all crossings within the proposed quiet zone. This includes current 
and accurate crossing inventory forms for each public and private 
grade crossing.
    b. Detailed information on the SSMs, ASMs, 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. Statement of efforts taken to work with affected railroads 
and the State agency responsible for grade crossing safety, 
including a list of any objections raised by the railroads or State 
agency.
    e. A commitment to implement the proposed safety measures.
    f. 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.
    g. A copy of the application must be provided to all railroads 
operating over the public highway-rail grade crossings within the 
quiet zone; the highway or traffic control or law enforcement 
authority having jurisdiction over vehicular traffic at grade 
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; the State agency 
responsible for grade crossing safety; and the Associate 
Administrator. (Sec.  222.39(b)(3))
    8. Upon receiving written approval from FRA of the quiet zone 
application, the public authority may then provide the Notice of 
Quiet Zone Establishment and implement 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(b)).

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

Section IV--Required Notifications

A. Introduction

    The public authority is responsible for providing notification 
to parties that will be affected by the quiet zone. There are 
several different types of notifications and a public authority may 
have to make more than one notification during the entire process of 
complying with the regulation. The notification process is to ensure 
that interested parties are made aware in a timely manner of the 
establishment or continuation of quiet zones. It will also provide 
an opportunity for State agencies and affected railroads to provide 
input to the public authority during the development of quiet zones. 
Specific information is to be provided so that the crossings in the 
quiet zone can be identified. Providing the appropriate notification 
is important because 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 or Intermediate 
Quiet Zone is being continued.

B. Notice of Intent--Sec.  222.43(b)

    The purpose of the Notice of Intent is to provide notice to the 
railroads and State agencies that the public authority is planning 
on creating a New Quiet Zone and to provide an opportunity for the 
railroad and the state agencies to give input to the public 
authority during the quiet zone development process. (Note: This 
includes Intermediate and Intermediate Partial Quiet Zones that must 
qualify as New Quiet Zones in order to keep the train horn silenced 
as of June 24, 2006.) The State agencies and railroads will be given 
sixty days to provide information and comments to the public agency. 
Each public authority that is creating a New Quiet Zone must provide 
written notice, by certified mail, return receipt requested, to the 
following:
    1. All railroads operating within the proposed quiet zone.
    2. State agency responsible for highway and road safety.
    3. State agency responsible for grade crossing safety.
    The Notice of Intent must contain the following information:
    1. A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossings within the 
proposed quiet zone. The crossings are to be identified by both the 
U.S. DOT Crossing Inventory Number and the street or highway name.
    2. A statement of the time period within which the restrictions 
would be in effect on the routine sounding of train horns (i.e., 24 
hours or from 10 p.m. to 7 a.m.).
    3. A brief explanation of the public authority's tentative plans 
for implementing improvements within the proposed quiet zone.
    4. The name and title of the person who will act as the point of 
contact during the quiet zone development process and how that 
person can be contacted.
    5. A list of the names and addresses of each party that will 
receive a copy of the Notice of Intent.
    The parties that receive the Notice of Intent will be able to 
submit information or comments to the public authority for 60 days. 
The public authority will not be able to establish the quiet zone 
during the 60 day comment period unless each railroad and State 
agency that receives the Notice of Intent provides either written 
comments to the public authority or a written statement waiving its 
right to provide comments on the Notice of Intent. The public 
authority must provide an affirmation in the Notice of Quiet Zone 
Establishment that each of the required parties was provided the 
Notice of Intent and the date it was mailed. If the quiet zone is 
being established within 60 days of the mailing of the Notice of 
Intent, the public authority also must affirm each of the parties 
have provided written comments or waived its right to provide 
comments on the Notice of Quiet Zone Establishment.

C. Notice of Quiet Zone Continuation--Sec.  222.43(c)

    The purpose of the Notice of Quiet Zone Continuation is to 
provide a means for the public authority to formally advise affected 
parties that an existing quiet zone is being continued after the 
effective date of the rule. All Pre-Rule, Pre-Rule Partial, 
Intermediate and Intermediate Partial Quiet Zones must provide this 
Notice of Quiet Zone Continuation no later than June 3, 2005 to 
ensure that train horns are not sounded at public crossings when the 
rule becomes effective on June 24, 2005. This will enable railroads 
to properly comply with the requirements of the Final Rule.
    Each public authority that is continuing an existing Pre-Rule, 
Pre-Rule Partial, Intermediate and Intermediate Partial Quiet Zone 
must provide written notice, by certified mail, return receipt 
requested, to the following:
    1. All railroads operating over the public highway-rail grade 
crossings within the quiet zone.
    2. The highway or traffic control or law enforcement authority 
having jurisdiction over vehicular traffic at grade crossings within 
the quiet zone.
    3. The landowner having control over any private crossings 
within the quiet zone.
    4. The State agency responsible for highway and road safety.
    5. The State agency responsible for grade crossing safety.
    6. The Associate Administrator.
    The Notice of Quiet Zone Continuation must contain the following 
information:
    1. A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing within the 
quiet zone, identified by both U.S. DOT National Highway-Rail Grade 
Crossing Inventory Number and street or highway name.
    2. A specific reference to the regulatory provision that 
provides the basis for quiet zone continuation, citing as 
appropriate, Sec.  222.41 or 222.42.
    3. A statement of the time period within which restrictions on 
the routine sounding of the locomotive horn will be imposed (i.e., 
24 hours or nighttime hours only.)
    4. An accurate and complete Grade Crossing Inventory Form for 
each public highway-rail grade crossing, private highway-rail grade 
crossing, and pedestrian crossing within the quiet zone that 
reflects conditions currently existing at the crossing.
    5. The name and title of the person responsible for monitoring 
compliance with

[[Page 21914]]

the requirements of this part and the manner in which that person 
can be contacted.
    6. A list of the names and addresses of each party that will 
receive the Notice of Quiet Zone Continuation.
    7. A statement signed by the chief executive officer of each 
public authority participating in the continuation of the quiet 
zone, in which the chief executive officer certifies that the 
information submitted by the public authority is accurate and 
complete to the best of his/her knowledge and belief.
    Public authorities should remember that this notice is required 
to ensure that train horns will remain silent. Even if a public 
authority has not been able to determine whether its Pre-Rule or 
Pre-Rule Partial Quiet Zone qualifies for automatic approval under 
the rule, it should issue a Notice of Quiet Zone Continuation to 
keep the train horns silent after the effective date of the rule.

D. Notice of Detailed Plan--Sec.  222.43(d)

    The purpose of the Notice of Detailed Plan is to provide notice 
to the railroads and State agencies that the public authority is 
planning on filing a detailed plan for a Pre-Rule or Pre-Rule 
Partial Quiet Zone that was not established by automatic approval 
under Sec.  222.41. The public authority is required to provide to 
FRA a detailed plan on how the quiet zone will be brought into 
compliance with the rule. The Notice of Detailed Plan will provide 
an opportunity for the railroad and the state agencies to give input 
to the public authority during the quiet zone development process. 
The Notice of Detailed Plan must be provided at least four months 
before the public authority submits its detailed plan to FRA. The 
State agencies and railroads will be given 60 days to provide 
information and comments to the public agency.
    Each public authority that is required to provide FRA with a 
detailed plan must provide written notice, by certified mail, return 
receipt requested, to the following:
    1. All railroads operating within the quiet zone.
    2. State agency responsible for highway and road safety.
    3. State agency responsible for grade crossing safety.
    The Notice of Detailed Plan must contain the following 
information:
    1. A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing within the 
quiet zone. The crossings are to be identified by both the U.S. DOT 
Crossing Inventory Number and the street or highway name.
    2. A statement of the time period within which the restrictions 
would be in effect on the routine sounding of train horns (i.e., 24 
hours or nighttime hours only).
    3. A brief explanation of the public authority's tentative plans 
for implementing improvements within the proposed quiet zone.
    4. The name and title of the person who will act as the point of 
contact during the quiet zone development process and how that 
person can be contacted.
    5. A list of the names and addresses of each party that will 
receive a copy of the Notice of Detailed Plan.
    The parties that receive the Notice of Detailed Plan will be 
able to submit information or comments to the public authority for 
60 days. The public authority must provide an affirmation that each 
of the parties has provided been provided the Notice of Detailed 
Plan and provide the date that the notice was mailed.

E. Notice of Quiet Zone Establishment--Sec.  222.43(e)

    The purpose of the Notice of Quiet Zone Establishment is to 
provide a means for the public authority to formally advise affected 
parties that a quiet zone is being established. Notice of Quiet Zone 
Establishment must be provided under the following circumstances:
    1. A New Quiet Zone or New Partial Quiet Zone is being created.
    2. A Pre-Rule Quiet Zone or a Pre-Rule Partial Quiet Zone that 
qualifies for automatic approval under the rule is being 
established.
    3. An Intermediate Quiet Zone or Intermediate Partial Quiet Zone 
that is creating a New Quiet Zone under the rule. Please note that 
these quiet zones must be brought into compliance with the rule by 
June 24, 2006.
    4. A Pre-Rule Quiet Zone or a Pre-Rule Partial Quiet Zone that 
was not established by automatic approval and has since implemented 
improvements to establish a quiet zone in accordance to the rule.
    Each public authority that is establishing a quiet zone under 
the above circumstances must provide written notice, by certified 
mail, return receipt requested, to the following:
    1. All railroads operating over the public highway-rail grade 
crossings within the quiet zone.
    2. The highway or traffic control or law enforcement authority 
having jurisdiction over vehicular traffic at grade crossings within 
the quiet zone.
    3. The landowner having control over any private crossings 
within the quiet zone.
    4. The State agency responsible for highway and road safety.
    5. The State agency responsible for grade crossing safety.
    6. The Associate Administrator.
    The Notice of Quiet Establishment must contain the following 
information:
    1. A list of each public highway-rail grade crossing, private 
highway-rail grade crossing, and pedestrian crossing within the 
quiet zone, identified by both U.S. DOT National Highway-Rail Grade 
Crossing Inventory Number and street or highway name.
    2. A specific reference to the regulatory provision that 
provides the basis for quiet zone establishment, citing as 
appropriate, Sec.  222.39(a)(1), 222.39(a)(2)(i), 222.39(a)(2)(ii), 
222.39(a)(3), 222.39(b), 222.41(a)(1)(i), 222.41(a)(1)(ii), 
222.41(a)(1)(iii), 222.41(a)(1)(iv), 222.41(b)(1)(i), 
222.41(b)(1)(ii), 222.41(b)(1)(iii), or 222.41(b)(1)(iv).
    (a) If the Notice of Quiet Establishment contains a specific 
reference to Sec.  222.39(a)(2)(i), 222.39(a)(2)(ii), 222.39(a)(3), 
222.41(a)(1)(ii), 222.41(a)(1)(iii), 222.41(a)(1)(iv), 
222.41(b)(1)(ii), 222.41(b)(1)(iii), or 222.41(b)(1)(iv), it shall 
include a copy of the FRA web page that contains the quiet zone data 
upon which the public authority is relying.
    (b) If the Notice of Quiet Establishment contains a specific 
reference to Sec.  222.39(b), it shall include a copy of FRA's 
notification of approval.
    3. If a diagnostic team review was required under Sec.  222.25 
(private crossings) or Sec.  222.27 (pedestrian crossings), the 
Notice of Quiet Establishment shall include a statement affirming 
that the State agency responsible for grade crossing safety and all 
affected railroads were provided an opportunity to participate in 
the diagnostic team review. The Notice of Quiet Establishment shall 
also include a list of recommendations made by the diagnostic team.
    4. A statement of the time period within which restrictions on 
the routine sounding of the locomotive horn will be imposed (i.e., 
24 hours or from 10 p.m. until 7 a.m.).
    5. An accurate and complete Grade Crossing Inventory Form for 
each public highway-rail grade crossing, private highway-rail grade 
crossing, and pedestrian crossing within the quiet zone that 
reflects the conditions existing at the crossing before any new SSMs 
or ASMs were implemented.
    6. An accurate, complete and current Grade Crossing Inventory 
Form for each public highway-rail grade crossing, private highway-
rail grade crossing, and pedestrian crossing within the quiet zone 
that reflects SSMs and ASMs in place upon establishment of the quiet 
zone. SSMs and ASMs that cannot be fully described on the Inventory 
Form shall be separately described.
    7. If the public authority was required to provide a Notice of 
Intent:
    (a) The Notice of Quiet Zone Establishment shall contain a 
statement affirming that the Notice of Intent was provided in 
accordance with the rule. This statement shall also state the date 
on which the Notice of Intent was mailed.
    (b) If the Notice of Quiet Zone Establishment will be mailed 
less than 60 days after the date on which the Notice of Intent was 
mailed, the Notice of Quiet Zone Establishment shall also contain a 
written statement affirming that comments and/or written waiver 
statements have been received from each railroad operating over 
public grade crossings within the proposed quiet zone, the State 
agency responsible for grade crossing safety, and the State agency 
responsible for highway and road safety.
    8. If the public authority was required to provide a Notice of 
Detailed Plan, the Notice of Quiet Zone Establishment shall contain 
a statement affirming that the Notice of Detailed Plan was provided 
and the date on which the Notice of Detailed Plan was mailed.
    9. 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.
    10. A list of the names and addresses of each party that is 
receiving a copy of the Notice of Quiet Establishment.
    11. A statement signed by the chief executive officer of each 
public authority participating in the establishment of the quiet 
zone, in which the chief executive officer

[[Page 21915]]

shall certify that the information submitted by the public authority 
is accurate and complete to the best of his/her knowledge and 
belief.

Section V--Examples of Quiet Zone Implementations

Example 1--New Quiet Zone

    (a) 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.
    (b) 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''), which is the average risk in 
the proposed quiet zone taking into consideration the increased risk 
caused by the lack of train horns and the reductions in risk 
attributable to the installation of SSMs. For this example, it is 
assumed that the Nationwide Significant Risk Threshold is 17,030. In 
order for the proposed quiet zone to qualify under the rule, the 
Quiet Zone Risk Index must be reduced to a level at, or below, the 
Nationwide Significant Risk Threshold (17,030) or the Risk Index 
with Horns.
    (c) Table 2 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 2
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                            index w/horns    index w/o horns                        plus 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
----------------------------------------------------------------------------------------------------------------

    (d) 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 3 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 17,030.

                                                     Table 3
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                            index w/horns    index w/o 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
----------------------------------------------------------------------------------------------------------------

    (e) The public authority realizes that reducing the Quiet Zone 
Risk Index to a level 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 17,030), 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 4 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 4
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                            index w/horns    index w/o 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
----------------------------------------------------------------------------------------------------------------


[[Page 21916]]

Example 2--Pre-Rule Quiet Zone

    (a) 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.
    (b) 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''), which 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 17,030. The Quiet 
Zone Risk Index must be reduced to either the Nationwide Significant 
Risk Threshold (17,030) or to the Risk Index with Horns in order to 
qualify under the rule.
    (c) Table 5 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 5
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                           index w/o horns    index w/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
----------------------------------------------------------------------------------------------------------------

    (d) 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 6 
shows the quiet zone corridor after including the warning device 
upgrade at Z Street. The Quiet Zone Risk Index has been reduced to 
29,500.

                                                     Table 6
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                           index w/o horns    index w/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
----------------------------------------------------------------------------------------------------------------

    (e) The public authority elects to install four-quadrant gates 
without vehicle presence detection at X Street. As shown in Table 7, 
this reduces the Quiet Zone Risk Index to 20,890. This risk 
reduction is not sufficient to qualify as quiet zone under the rule.

                                                     Table 7
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                           index w/o horns    index w/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
----------------------------------------------------------------------------------------------------------------


[[Page 21917]]

    (f) The public authority next decides to use traffic 
channelization devices at W Street. Table 8 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 8
----------------------------------------------------------------------------------------------------------------
                                                                                                  Crossing risk
                 Street                     Crossing risk     Crossing risk        SSM EFF       index w/o horns
                                           index w/o horns    index w/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.
    (a) 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.
    (b) The Crossing Corridor Risk Index represents the average 
severity weighted collision risk for all public highway-rail grade 
crossings along a defined rail corridor.
    (c) 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

    (a) 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.
    (b) The prediction formulas can be used to derive the following 
for each crossing:
    1. The predicted collisions (PC)
    2. The probability of a fatal collision given that a collision 
occurs (P(FC[bond]C))
    3. The probability of a casualty collision given that a 
collision occurs (P(CC[bond]C))
    (c) The following factors are the determinants of the number of 
predicted collisions per year:
    1. Average annual daily traffic
    2. Total number of trains per day
    3. Number of highway lanes
    4. Number of main tracks
    5. Maximum timetable train speed
    6. Whether the highway is paved or not
    7. Number of through trains per day during daylight hours
    (d) 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).
    (e) 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).
    (f) 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

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

PC, P(CC[verbar]C), and P(FC[verbar]C) are direct outputs of the DOT 
prediction formulas.
    (b) 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.
    (c) The highway-rail incident files from 1999 through 2003 were 
matched against a data file containing the list of whistle ban 
crossings in existence from January 1,1999 through December 31, 2003 
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.
---------------------------------------------------------------------------

    (d) 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.
    (e) The collisions (incidents) selected were summarized by year 
from 1999 through 2003. The total number of collisions for the 
period was 2,161. 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'').

[[Page 21918]]

There were 274 fatal incidents resulting in 324 fatalities and 
yielding a fatality rate 1.1825 for the period. There were 551 
injury-only incidents resulting in 733 injuries and yielding an 
injury rate 1.3303 for the period.
    (f) 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 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.)
    (g) Notice that the quantity [PC*P(FCC)] represents the expected 
number of fatal collisions. Similarly, {PC*[P(CC[verbar]C)-
P(FC[verbar]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.
    (h) 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 35,803 gated non-
whistle ban crossings for input to the Nationwide Significant Risk 
Threshold.
    The Nationwide Significant Risk Threshold rounds to 17,030. 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

    This appendix sets forth the following 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 
the wayside horn indicator, or an equivalent system, indicates that 
the system is not operating as intended;
    4. Horn system must provide a minimum sound level of 92 dB(A) 
and a maximum of 110 dB(A) when measured 100 feet from the 
centerline of the nearest track;
    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;
    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 the safety needs 
at that crossing. Crossings proposed for inclusion in a quiet zone 
should be reviewed in the field by a diagnostic team composed of 
railroad personnel, public safety or law enforcement, engineering 
personnel from the State agency responsible for grade crossing 
safety, 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:
    1. 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.
    2. 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.
    3. Is the grade crossing surface smooth, well graded and free 
draining?
    4. 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?
    5. 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).
    6. If a roadway that runs parallel to the railroad tracks is 
within 100 feet of the railroad tracks when it crosses an 
intersecting road that also crosses the tracks, the appropriate 
advance warning signs should be posted as shown in the MUTCD.
    7. Is the posted highway speed (on each approach to the 
crossing) appropriate for the alignment of the roadway and the 
configuration of the crossing?
    8. 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?
    9. 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?
    10. 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?
    11. 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 automatic warning device violations.
    12. Are motorists currently violating the warning devices at any 
of the crossings at an excessive rate?
    13. Do accident statistics for the corridor indicate any 
potential problems at any of the crossings?
    14. If school buses or transit buses use crossings within the 
proposed quiet zone

[[Page 21919]]

corridor, can they be rerouted to use a 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 note the following issues when examining any private 
crossings within a proposed quiet zone:
    1. How often is the private crossing used?
    2. What kind of signing or pavement markings are in place at the 
private crossing?
    3. What types of vehicles use the private crossing?

School buses
Large trucks
Hazmat carriers
Farm equipment

    4. What is the volume, speed and type of train traffic over the 
crossing?
    5. Do passenger trains use the crossing?
    6. Do approaching trains sound the horn at the private crossing?

State or local law requires it?
Railroad safety rule requires it?

    7. Are there any nearby crossings where train horns sound that 
might also provide some warning if train horns were not sounded at 
the private crossing?
    8. What are the approach (corner) sight distances?
    9. What is the clearing sight distance for all approaches?
    10. What are the private roadway approach grades?
    11. What are the private roadway pavement surfaces?

Pedestrian Crossings Within a Proposed Quiet Zone

    In addition to the items discussed in the section titled, 
``''All crossings within a proposed quiet zone'', a diagnostic team 
should note the following issues when examining any pedestrian 
crossings within a proposed quiet zone:
    1. How often is the pedestrian crossing used?
    2. What kind of signing or pavement markings are in place at the 
pedestrian crossing?
    3. What is the volume, speed, and type of train traffic over the 
crossing?
    4. Do approaching trains sound the horn at the pedestrian 
crossing?

State or local law requires it?
Railroad safety rule requires it?

    5. Are there any crossings where train horns sound that might 
also provide some warning if train horns were not sounded at the 
pedestrian crossing?
    6. What are the approach sight distances?
    7. What is the clearing sight distance for all approaches?

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

    \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 $27,000 for any violation where circumstances 
warrant. See 49 CFR part 209, appendix A.

------------------------------------------------------------------------
                                                             Willful
               Section                    Violation         Violation
------------------------------------------------------------------------
 Subpart B--Use of Locomotive Horns
Sec.   222.21 Use of locomotive
 horn:
    (a) Failure to sound horn at                $5,000            $7,500
     grade crossing.................
        Failure to sound horn in                 1,000             3,000
         proper pattern.............
    (b) Failure to sound horn at                 5,000             7,500
     least 15 and no more than 20
     seconds before crossing;.......
        Routine sounding of the                  5,000             7,500
         locomotive horn more than
         \1/4\-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
    Routine sounding of the                      5,000             7,500
     locomotive horn at a grade
     crossing within a quiet zone...
Sec.   222.49
    (b) Failure to provide Grade                 2,500             5,000
     Crossing Inventory Form
     information....................
Sec.   222.59
    (d) Routine sounding of the                  5,000             7,500
     locomotive horn at a grade
     crossing equipped with wayside
     horn...........................
------------------------------------------------------------------------

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, 21301-21302, 21304; 49 CFR 149(c), (m)


Sec.  229.5  [Amended]

0
3. Section 229.5 is amended by removing paragraph designations (a) 
through (p), transferring the definition of ``electronic air brake'' so 
that it appears in alphabetical order, and adding the following 
definitions in alphabetical order to read as follows:
    Acceptable quality level (AQL). The AQL is expressed in terms of 
percent defective or defects per 100 units. Lots having a quality level 
equal to a specified AQL will be accepted approximately 95 percent of 
the time when using the sampling plans prescribed for that AQL.
* * * * *
    Defective means, for purposes of this part, a locomotive equipped 
with an audible warning device that produces a maximum sound level in 
excess of 110 dB(A) and/or a minimum sound level below 96 dB(A), as 
measured 100 feet forward of the locomotive in the direction of travel.
* * * * *
    Lot means a collection of locomotives, equipped with the same horn 
model, configuration, and location, and the same air pressure and 
delivery system, which has been manufactured or processed under 
essentially the same conditions.
* * * * *

0
4. 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 June 24, 2005 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. Locomotives built on or after June 24, 2005 may, however, 
be tested in accordance with an acceptance sampling scheme such that 
there is a probability of .05 or less of rejecting a lot with a 
proportion of defectives equal to an AQL of 1% or less, as set forth in 
7 CFR part 43.
    (2) Each locomotive built before June 24, 2005 shall be tested in 
accordance with this section before June 24, 2010 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

[[Page 21920]]

on such locomotive is in compliance with paragraph (a).
    (c) Testing of the locomotive horn sound level shall be in 
accordance 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 200 feet to the front and 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 32 degrees and 104 degrees Fahrenheit inclusively; relative 
humidity is between 20 percent and 95 percent inclusively; wind 
velocity is not more than 12 miles per hour and there is no 
precipitation.
    (7) With the exception of cab-mounted or low-mounted horns, the 
microphone shall be located 100 feet forward of the front knuckle of 
the locomotive, 15 feet above the top of the rail, at an angle no 
greater than 20 degrees from the center line of the track, and oriented 
with respect to the sound source according to the manufacturer's 
recommendations. For cab-mounted and low-mounted horns, the microphone 
shall be located 100 feet forward of the front knuckle of the 
locomotive, four feet above the top of the rail, at an angle no greater 
than 20 degrees from 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 10-second duration (LAeq, 10s) 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 10-second duration readings shall be used 
to determine compliance. The standard deviation of the readings shall 
be less than 1.5 dB.
    (10) Written reports of locomotive horn testing required by this 
part shall be made and shall reflect horn type; the date, place, and 
manner of testing; and air flow and sound level measurements. These 
reports, which shall be signed by the person who performs the test, 
shall be retained by the railroad, at a location of its choice, until a 
subsequent locomotive horn test is completed and shall be made 
available, upon request, to FRA as provided by 49 U.S.C. 20107.
    (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
                                                 Violation    Violation
------------------------------------------------------------------------
229.129 Audible warning device:
  (a) prescribed sound levels.................       $2,500       $5,000
      arrangement of device...................        2,500        5,000
  (b) 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 April 21, 2005.
Robert D. Jamison,
Acting Administrator.
[FR Doc. 05-8285 Filed 4-22-05; 8:54 am]
BILLING CODE 4910-06-P