[Federal Register Volume 71, Number 159 (Thursday, August 17, 2006)]
[Rules and Regulations]
[Pages 47614-47667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6912]



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Part IV





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. 71, No. 159 / Thursday, August 17, 2006 / 
Rules and Regulations  

[[Page 47614]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 222 and 229

[Docket No. FRA-1999-6439, Notice No. 17]
RIN 2130-AB73


Use of Locomotive Horns at Highway-Rail Grade Crossings

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to petitions for reconsideration of 
FRA's April 27, 2005 final rule that required that the locomotive horn 
be sounded while trains approach and enter public highway-rail grade 
crossings. This document amends and clarifies the final rule, in 
response to petitions for reconsideration and associated letters in 
support that have been submitted by interested parties, including the 
railroad industry, rail unions, and a manufacturer of traffic 
channelization devices.

DATES: The effective date is September 18, 2006.

FOR 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.
    On April 27, 2005, FRA published a Final Rule in the Federal 
Register (70 FR 21844). After the final rule was published, FRA 
received petitions for reconsideration and associated letters in 
support from the Association of American Railroads, Mr. James Adams of 
Placentia, California, GE Transportation-Rail, United Transportation 
Union, Brotherhood of Locomotive Engineers and Trainmen, BNSF Railway 
Company and Qwick Kurb, Inc. In addition, the Association of American 
Railroads submitted a petition for Emergency Order, which was 
subsequently denied.

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 highway-rail grade crossings, but 
gives FRA the authority to make reasonable exceptions.
    FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail 
Grade Crossings (Final Rule) complied with the statutory mandate 
contained within section 20153 of title 49. As required by section 
20153(b) of title 49, the final rule requires locomotive horn sounding 
by trains that approach and enter public highway-rail grade crossings. 
(See rule Sec.  222.21.) However, as allowed by 49 U.S.C. 20153(c), the 
final rule contains exceptions for certain categories of rail 
operations and highway-rail grade crossings.
    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.
    Locomotive horn sounding is also not required within highway-rail 
grade crossing corridors that are equipped with supplementary safety 
measures (SSMs) at each public highway-rail grade crossing. In 
addition, locomotive horn sounding is not required within 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. 
These highway-rail grade crossing corridors have been deemed, by the 
Administrator, to constitute categories 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 
highway-rail 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. Until December 24, 
2005, the final rule

[[Page 47615]]

allowed communities to establish Pre-Rule Quiet Zones, if the Quiet 
Zone Risk Index was at, or below, two times the Nationwide Significant 
Risk Threshold and there were no relevant collisions within the quiet 
zone since April 27, 2000. (See Sec.  222.41.) It should also be noted 
that the final rule allows communities to establish Pre-Rule Quiet 
Zones, 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 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 of title 49 prohibits FRA from entertaining single-
party petitions for waiver from the regulatory requirements issued 
under the authority of 49 U.S.C. 20153, unless FRA determines that this 
prohibition against single-party waiver petitions ``* * * is not likely 
to contribute significantly to public safety.'' Therefore, Sec.  222.15 
of the final rule, which governs the process for obtaining a waiver 
from the requirements of 49 CFR Part 222, requires joint filing of 
waiver petitions by the railroad and public authority, unless the 
Associate Administrator makes the determination that joint submission 
of an individual waiver petition would not be likely to significantly 
contribute to public safety.
    Section 222.55 of the final rule 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 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 and pedestrian grade crossings. Under the final 
rule amendments issued today, the sounding of locomotive audible 
warning devices at private and pedestrian crossings will be governed by 
this rule, if State law requires the sounding of locomotive audible 
warning devices at these crossings. (Sec. Sec.  222.25 and 222.27) 
However, routine locomotive horn sounding is prohibited at private and 
pedestrian grade crossings located within quiet zones, even if other 
locomotive audible warning devices must be sounded at these crossings 
per State and local law.
    Section 222.7 of the rule 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 State and local laws that govern 
locomotive horn use at public highway-rail grade crossings. Under the 
final rule amendments issued today, State and local laws that require 
the sounding of locomotive audible warning devices at public, private 
and pedestrian grade crossings will be preempted to the limited extent 
described in Sec. Sec.  222.21(e), 222.25 and 222.27 of the rule. 
However, as stated in Sec.  222.7(b), this rule does not preempt State 
and local laws governing the sounding of locomotive audible warning 
devices 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.
    Lastly, the final rule also complied 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 an Interim Final Rule on the Use of 
Locomotive Horns at Highway-rail Grade Crossings, which had the same 
force and effect as a final rule. After reviewing approximately 1,400 
comments on the interim final rule, FRA issued a final rule that 
granted additional relief to States and local communities and became 
effective on June 24, 2005. The final rule has therefore complied with 
49 U.S.C. 20153(j) because more than the required 365 days elapsed 
between issuance of the interim final rule on December 18, 2003 and the 
effective date of the rule on June 24, 2005.

3. Emergency Order 15

    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 Emergency Order did, however, permit the 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 Emergency Order are similar, but are not 
identical, to the supplementary safety measures contained in FRA's 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings (70 FR 21844).
    FRA has not yet rescinded Emergency Order 15. Therefore, FRA's 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings does not apply to public highway-rail grade crossings within 
the State of Florida that are currently subject to Emergency Order 15. 
On April 15, 2005, a public conference was held in Florida, at which 
FRA solicited comments on the appropriate excess risk estimate that 
should be applied to public highway-rail grade crossings that are 
currently subject to Emergency Order 15. While FRA intends to 
specifically address this issue in the near future, comments that have 
been received on this issue are still under consideration at this time.

4. Rule Changes

    This brief overview of the major amendments that have been made to 
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 amendments. Indeed, this 
full document should be read together with the previous documents 
issued in the proceeding. Inasmuch as the Final Rule, 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 these amendments should be read in conjunction with the Final 
Rule, 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

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positions and rationale remain those of FRA.

Summary of Changes to the Final Rule

     These amendments extend the compliance date of the time-
based locomotive horn sounding requirements until December 15, 2006. 
(See Sec.  222.21(b) for more information.)
     A ``good faith'' exception has been incorporated into the 
time-based locomotive horn sounding requirements for locomotive 
engineers who are unable to precisely estimate their time of arrival at 
upcoming grade crossings. (See Sec.  222.21(b)(2) for more 
information.)
     An exception has been added to the 15-second minimum 
locomotive horn sounding requirement for locomotives and trains that 
re-initiate movement after having stopped in close proximity to a 
public highway-rail grade crossing. (See Sec.  222.21(d) for more 
information.)
     These amendments expand the scope of the time-based 
locomotive horn sounding requirements to cover the sounding of any 
locomotive audible warning device (i.e., locomotive bells) at public 
highway-rail grade crossings. (See Sec.  222.21(e) for more 
information.)
     If State law requires the sounding of locomotive audible 
warning devices at private and/or pedestrian crossings, these 
amendments will require railroads to sound the locomotive audible 
warning device in a time-based manner. (See Sec. Sec.  222.25 and 
222.27 for more information.)
     An exception has been added to the locomotive horn 
sounding requirements for locomotives equipped with defective horns 
that are being moved for repair. (See Sec.  222.21(b)(2) for more 
information.)
     The notification requirements for Pre-Rule Quiet Zones and 
Pre-Rule Partial Quiet Zones have been streamlined by expanding the 
scope of the Notice of Intent requirement and removing the Notice of 
Detailed Plan requirement. (See Sec.  222.43 for more information.)
     These amendments extend the compliance date for the sound 
level testing of new locomotives until September 18, 2006. (See Sec.  
229.129(b) for more information.)
     These amendments provide clarification that locomotives 
used in rapid transit operations on the general railroad system are 
exempt from the locomotive horn sound level and testing requirements 
contained in 49 CFR 229.129. (See Sec.  229.129 for more information.)

Section-by-Section Analysis

Section 222.1 What is the purpose of this regulation?

    This section has not been revised.

Section 222.3 What areas does this regulation cover?

    This section has not been revised.

Section 222.5 What railroads does this regulation apply to?

    This section has not been revised.

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

    In its petition for reconsideration, the Association of American 
Railroads (AAR) noted that the Final Rule does not specifically address 
the preemptive effect of the Final Rule on State and local laws that 
effectively prohibit and/or restrict the sounding of locomotive horns 
for testing purposes. Asserting that the Final Rule should preempt such 
State and local laws, the AAR requested confirmation of FRA's position 
on this issue.
    FRA does not intend to preempt State and local noise ordinances 
that may have the effect of restricting the time period during which 
the locomotive horn may be sounded at locations other than grade 
crossings. FRA was directed to issue regulations that govern the 
sounding of locomotive horns at public highway-rail grade crossings, 
provided the interests of communities with pre-existing restrictions on 
locomotive horn sounding were taken into consideration. Given the 
nature of this statutory directive, FRA is reluctant to disturb 
longstanding State and local noise ordinances that may restrict 
locomotive horn sounding at locations other than grade crossing 
locations without additional information on the adverse impact of these 
ordinances on the ability of locomotive manufacturers and railroads to 
conduct locomotive horn testing in accordance with Sec.  229.129 of 
this part.
    Paragraph (b) of this section has been revised to reflect FRA's 
intent to refrain from preempting any State law, rule, regulation, or 
order governing the sounding of locomotive audible warning devices, 
including the locomotive horn, at any highway-rail grade crossing 
described in Sec.  222.3(c) of this part. Without this revision, FRA 
might have inadvertently preempted State law by requiring the sounding 
of the locomotive bell, at the highway-rail grade crossings described 
in Sec.  222.3(c) of this part, in accordance with this part.
    Paragraphs (c), (d), and (e) of this section have not been revised.

Section 222.9 Definitions

    FRA is making a minor revision to the definition of 
``channelization device'' in the Final Rule. FRA revised this 
definition in the Final Rule to prohibit the use of surface-mounted 
tubular markers and vertical panels within quiet zones as SSMs, where 
the surface-mounted tubular markers or vertical panels are not used in 
conjunction with a raised longitudinal channelizer. FRA did not, 
however, intend to prohibit the use of surface-mounted tubular markers 
or vertical panels, in conjunction with a raised longitudinal 
channelizer. FRA recognizes that the use of surface-mounted tubular 
markers and vertical panels, in conjunction with a raised longitudinal 
channelizer, can effectively reduce quiet zone risk.
    FRA is also correcting an inadvertent error in the preamble 
discussion of the definition of ``channelization device'' in the Final 
Rule. In that discussion, FRA stated that ``it would be highly 
advisable to use raised longitudinal channelizers that are at least 
four inches high.'' (See 70 FR 21854.) However, in its petition for 
reconsideration, Qwick Kurb, Inc. (``Qwick Kurb'') noted that FRA 
partially relied upon the results of state-sponsored tests on the 
efficacy of Qwick Kurb installations, which consist of three and one-
half inch high longitudinal channelizers with vertical elliptical 
markers attached, when determining that Qwick Kurb installations had an 
effectiveness rating of at least .75. Qwick Kurb also noted that Qwick 
Kurb installations were successfully tested by the Federal Highway 
Administration (FHWA) under FHWA's NCHRP 350 criteria as a crashworthy 
traffic control device.
    FRA notes that the regulatory text itself does not require use of 
raised longitudinal channelizers that are at least four inches high. 
Indeed, FRA never intended to discourage the use of raised longitudinal 
channelizers that are at least three and one-half inches high. Even 
though Qwick Kurb subsequently withdrew its objection to the preamble 
discussion of the definition of ``channelization device'' in the Final 
Rule, FRA recognizes that there may be some communities that have 
already purchased and installed raised longitudinal channelizers that 
are three and one-half inches in height. Therefore, FRA is clarifying 
that raised longitudinal channelizers of at least three and one-half 
inches in height, when affixed with vertical panels or tubular 
delineators, constitute acceptable channelization devices for

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purposes of this part. Lastly, FRA is removing all references to 
specific MUTCD sections from the definition of ``channelization 
device'', in recognition of the somewhat transitory nature of MUTCD 
section citations.
    A definition of ``locomotive audible warning device'' has been 
added to the Final Rule, in recognition of the expanded scope of the 
Final Rule with respect to the sounding of locomotive audible warning 
devices , as opposed to just locomotive horns, at public, private and 
pedestrian grade crossings.
    The definition of ``locomotive horn'' has been revised by adding a 
specific reference to locomotive horns used in rapid transit 
operations.
    The definition of ``MUTCD'' has been revised to correct an 
inadvertent typographical error.
    The definition of ``New Partial Quiet Zone'' has been revised to 
correct an inadvertent typographical error.
    The definition of ``pedestrian grade crossing'' has been revised in 
order to clarify that the requirements for pedestrian crossings 
contained within this part only apply to pedestrian grade crossings. 
Nonetheless, despite the limited scope of these requirements, the terms 
``pedestrian crossing'' and ``pedestrian grade crossing'' have been 
used interchangeably for purposes of this part.
    The definition of ``private highway-rail grade crossing'' has been 
revised to correct an inadvertent typographical error.
    Even though the definition of ``Pre-Rule Quiet Zone'' has not been 
revised, FRA is providing further clarification on the definition of 
this term. While reviewing Notices of Quiet Zone Continuation that have 
been submitted by public authorities seeking to continue locomotive 
horn restrictions in Pre-Rule Quiet Zones, it has come to FRA's 
attention that disagreements have arisen between public authorities and 
railroads on whether local ordinances that seem to prohibit locomotive 
horn sounding at certain highway-rail grade crossings have, in fact, 
been ``enforced or observed''. In these situations, the public 
authority and railroad must determine whether locomotive horns were 
routinely sounded at the grade crossings in question on October 9, 1996 
and December 18, 2003, despite locomotive horn sounding restrictions 
that were ostensibly imposed by State or local law. Railroad timetables 
that reflect locomotive horn sounding practices on October 9, 1996 and 
December 18, 2003 will provide dispositive proof on this issue.
    Even though the definition of ``quiet zone'' has not been revised, 
FRA is providing further clarification on the definition of this term. 
A quiet zone may only contain consecutive public highway-rail grade 
crossings located on a segment of a rail line. Therefore, a public 
authority may find it necessary to establish more than one quiet zone 
within the boundaries of a local community. For example, if there are 
two railroad tracks running through a local community that are not 
adjacent to each other and which do not share grade crossing warning 
system devices, a community that wishes to silence the locomotive horn 
at grade crossings along both tracks must create separate quiet zones 
for each railroad track or right-of-way. Also, if there is both a main 
line track and an industrial spur track within town limits, a community 
that wishes to silence the locomotive horn at grade crossings located 
on both tracks must create separate quiet zones for the main line track 
and the industrial spur track, unless the main line track and the 
industrial spur track share grade crossing warning system devices.

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

    This section has not been revised.

Section 222.13 Who is responsible for compliance?

    This section has not been revised.

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

    This section has not been revised.

Section 222.17 How can a State agency become a recognized State agency?

    This section has not been revised.

Section 222.21 When must a locomotive horn be used?

    This section has been revised in order to address the movement of 
locomotives with inoperative horns, extend the compliance date of 
paragraph (b) of this section by 120 days, provide a good-faith 
exception for locomotive engineers who sound the locomotive horn for 
more than 20 seconds when approaching public crossings, address the 
sounding of locomotive audible warning devices at public highway-rail 
grade crossings when required by State and local law and provide a 
limited exception to the minimum audible warning requirement for trains 
and locomotives that have stopped in close proximity to a public 
highway-rail grade crossing.
    Paragraph (a) of this section requires locomotive engineers to 
initiate locomotive horn sounding, in accordance with paragraph (b) of 
this section, and to continue sounding the locomotive horn until the 
lead locomotive blocks access to the crossing from all roadway 
approaches. FRA received a petition for reconsideration on this issue 
from James Adams, a resident of Placentia, California, who suggested 
that FRA require the locomotive engineer to sound only those locomotive 
horns which point in the direction of locomotive travel, in order to 
reduce unnecessary horn noise impacts from the sounding of locomotive 
horns that are pointed against the direction of travel. Most locomotive 
horns, particularly in freight service, are designed to provide warning 
in both directions of travel; and the engineer has no ability to select 
warning only in the forward direction. FRA will, however, continue 
research into more selective and effective means of providing audible 
warnings and may make further proposals in subsequent proceedings.
    Minor typographical revisions have been made in paragraph (a) of 
this section. Paragraph (b) of this section has been revised to provide 
an exception to the locomotive horn sounding requirements for 
locomotive engineers who discover that the locomotive horn on the lead 
locomotive has failed enroute. Should this situation occur, the 
locomotive must be moved for repair in accordance with Sec.  229.9 of 
this chapter. In addition, any movement of the locomotive with the 
inoperative horn over highway-rail grade crossings must be made in 
accordance with all applicable railroad operating rules.
    Paragraph (b) of this section has also been revised in response to 
petitions for reconsideration that were submitted by the AAR and the 
BNSF Railway Company (BNSF), as well as letters that were submitted by 
the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the 
United Transportation Union (UTU), which were submitted in support of 
certain provisions contained within the AAR's petition for 
reconsideration.
    In the AAR's petition for reconsideration, the AAR asserted that 
the current compliance date for the locomotive horn sounding 
requirements set forth in this paragraph would require a rapid 
transition from State law. The AAR asserted that such a transition 
would not be in the public interest, as locomotive engineers would be 
required to comply with time-based audible warning requirements without 
the benefit of training and/or properly placed whistle posts. 
Therefore, the AAR requested that FRA postpone the

[[Page 47618]]

compliance date of these requirements for one year.
    FRA notes that railroads have been aware of the time-based audible 
warning requirements of this section for some time, as FRA's Interim 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings, which was published on December 18, 2003, contained a 15-20 
second audible warning requirement. While FRA is aware of the fact that 
the AAR objected to the 15-20 second audible warning requirement in its 
comments on the Interim Final Rule, the 15-20 second audible warning 
requirement contained within the Final Rule should not have been a 
complete surprise to the railroad industry. Nonetheless, in the 
interest of railroad safety, FRA has added paragraph (b)(1) to this 
section, which delays the compliance date of the time-based audible 
warning requirement by 120 days from the date of publication of this 
Notice in order to give railroads additional time within which to 
adjust whistle posts and/or issue appropriate instructions to train 
crews. In the interim, railroads must either comply with the locomotive 
horn sounding requirements that were in effect immediately prior to 
June 24, 2005 (i.e., State law or, in the absence of State law, 
railroad operating rules) or this section.
    The AAR, BNSF, BLET, and UTU also indicated significant concerns 
that situations may arise in which engineers are unable to precisely 
estimate the point at which sounding of the horn should be initiated in 
order to meet the 15-20 second criterion of the final rule. The AAR, 
BLET and UTU suggest that a good faith exception be employed where 
circumstances make it difficult to estimate the time of arrival, citing 
concerns about liability. This could include cases where whistle boards 
are placed irregularly (confounding an engineer's attempt to begin a 
``countdown'' at a fixed point), where weather conditions make 
identification of landmarks difficult, where the train is accelerating 
or braking on approach to the crossing, and under other circumstances.
    In sum, AAR's petition appeared to focus on short and long audible 
warnings, while the BLET and the UTU expressed concern with respect to 
exceeding the 20-second audible warning requirement. On the other hand, 
BNSF expressed concern with the time-based nature of the locomotive 
horn sounding requirement and requested that the locomotive horn 
continue to be sounded from a fixed point of reference, such as a 
whistle post.
    FRA appreciates these concerns. FRA is also cognizant that 
previously existing State law requirements, and requirements of 
railroad operating rules have required distance-based use of the horn 
for many years, with attendant liability for non-compliance where 
collisions occur. However, FRA believes that adjustment to a time-based 
approach can, and should be readily accomplished, since locomotive 
engineers are required to be familiar with their territory and are 
accustomed to meeting these kinds of challenges. The time-based 
approach will allow the railroads to provide effective warning without 
incurring the animus of local communities associated with sounding the 
horn for a full quarter-mile when trains are operated a low speed. The 
time-based approach incorporates the strategy used by the locomotive 
engineer who ``took mercy'' on the community by exercising discretion, 
when operating a slow-moving train, to delay the onset of horn sounding 
at grade crossings.
    FRA believes that it is important that sufficient warning be 
provided to the motorist who needs time to recognize the audible 
signal, understand its message, initiate a reaction, and take 
appropriate action when approaching the crossing. Other standards for 
other active warning at highway-rail crossings call for at least 20 
seconds of advance warning (see 49 CFR 234.225), and it is typical for 
basic signal arrangements to provide 30 seconds' warning or more. At 
crossings equipped with active warning devices, the locomotive horn 
generally provides a last-minute, additional warning to the motorist of 
the impending arrival of a train. Thus, it appears quite necessary and 
appropriate to retain the minimum 15-second warning requirement, given 
the need for uniformity and the wide range of conditions on the roadway 
approach to highway-rail crossings (including road speeds as high as 55 
miles per hour).
    Nevertheless, FRA agrees that employees should err on the side of 
safety when there is any uncertainty. In a case where situational 
awareness is partially compromised, an employee should not hesitate to 
begin a horn sounding sequence because of fear that excessive warning 
might be provided. Accordingly, former paragraph (b)(1), which has been 
renumbered as paragraph (b)(2) of this section, has been amended to 
state explicitly that exceeding the maximum warning time up to a limit 
of 25 seconds will not constitute a violation of this section if the 
action is taken in good faith. This is intended to affirm the action of 
an employee who errs on the side of safety in a particular instance, 
and not to condone the actions of an engineer who willfully disregards 
the 20-second limitation for normal operations. FRA will also utilize 
enforcement discretion for cases in excess of 25 seconds where unusual 
circumstances provide a justification.
    Former paragraph (b)(2), which has been renumbered as paragraph 
(b)(3) of this section, has also been revised in order to correct a 
typographical error. Trains, locomotive consists (two or more 
locomotives traveling together without any train cars attached), and 
individual locomotives traveling at speeds in excess of 60 mph are 
prohibited from providing an advance warning more than one-quarter mile 
in advance of public grade crossings, even if this means that high-
speed trains, locomotive consists, and individual locomotives cannot 
provide an advance warning of at least 15 seconds in duration.
    Paragraph (c) of this section has not been revised.
    Paragraph (d) has been added to this section to address locomotive 
horn sounding when a train, locomotive consist, or individual 
locomotive has stopped in close proximity to a public highway-rail 
grade crossing. Trains and locomotives may stop in close proximity to 
public grade crossings during switching and/or commuter rail 
operations, especially when passenger stations are located in close 
proximity to public highway-rail grade crossings. In light of the low 
train speed associated with initiating train or locomotive movement 
from a complete stop, as well as FRA's intent to minimize local noise 
impacts where feasible, paragraph (d) will allow the locomotive 
engineer to sound the locomotive horn for less than 15 seconds before 
entering a public highway-rail grade crossing, when initiating movement 
from a complete stop in the close proximity of a public highway-rail 
grade crossing. Even though passenger stations located adjacent to 
public highway-rail grade crossings were the impetus for this revision, 
FRA notes that this limited exception may apply in other situations 
where trains have stopped in close proximity to public highway-rail 
grade crossings.
    FRA is refraining from providing an exact distance that would 
constitute ``close proximity'' as the length of time that it will take 
for a train to reach the crossing will vary greatly depending on the 
type and weight of the train. If a train is stopped at a location such 
that it will take less than fifteen seconds for it to occupy the 
crossing, it is deemed to be in close proximity.

[[Page 47619]]

    Paragraph (e) has also been added to this section, in response to a 
petition for reconsideration submitted by the AAR, in which the AAR 
requested that 49 CFR Part 222 be revised to preempt State laws that 
govern the sounding of all locomotive audible warning devices at public 
highway-rail grade crossings. Without such preemption, the AAR asserted 
that railroads would be required to initiate locomotive bell sounding 
at a location specified by State law, which may be inconsistent with 
the time-based locomotive horn sounding requirement set forth in this 
section.
    FRA is not exercising complete preemption of State laws on the 
sounding of locomotive audible warning devices at public highway-rail 
grade crossings. Complete preemption of State laws on this issue could 
inadvertently remove the valuable warning currently provided by 
locomotive audible warning devices other than the locomotive horn 
because the Final Rule does not require the sounding of locomotive 
audible warning devices, other than the locomotive horn, at public 
highway-rail grade crossings.
    FRA has, however, added this section to ensure that a consistent 
locomotive audible warning will be provided at public highway-rail 
grade crossings. Therefore, if State law requires the sounding of a 
locomotive audible warning device other than the locomotive horn at 
public highway-rail grade crossings, that locomotive audible warning 
device must be sounded in accordance with paragraphs (b) and (d) of 
this section. By exercising preemption in this limited manner, FRA 
hopes to alleviate any potential confusion on the part of the 
locomotive engineer who might otherwise have been forced to comply with 
distance-based locomotive bell sounding requirements, as well as time-
based locomotive horn sounding requirements, at the same public 
highway-rail grade crossing.

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

    Paragraph (a) of this section has not been revised.
    Paragraph (b) of this section has been revised to correct an 
inadvertent omission from the list of situations in which locomotive 
horn use at quiet zone crossings would be permissible. In the Final 
Rule, FRA stated that locomotive horn use would be permitted at a quiet 
zone crossing equipped with a wayside horn, in the event of a wayside 
horn malfunction. Similarly, the Final Rule states that locomotive horn 
use would be permitted at a quiet zone crossing when active grade 
crossing warning devices installed at the grade crossing are 
malfunctioning or out of service. As indicated by this list of 
potential scenarios, FRA has always intended to permit railroads to 
sound the locomotive horn at a quiet zone crossing whenever engineering 
improvements installed at the grade crossing become non-compliant. 
Therefore, FRA has added paragraph (b)(4) to this section to clarify 
that railroads are not required to comply with the general prohibition 
against routine locomotive horn sounding at a quiet zone crossing, when 
an SSM, modified SSM or engineering SSM installed at the quiet zone 
crossing fails to comply with the requirements set forth in appendix A 
of this part or the conditions contained within the Associate 
Administrator's decision to approve the quiet zone in accordance with 
section 222.39(b) of this part. The railroad should, however, attempt 
to contact the person responsible for monitoring quiet zone compliance 
with this part (as designated in the Notice of Quiet Zone 
Establishment), in order to inform the public authority of the non-
compliant condition of the quiet zone crossing.
    Paragraph (c) of this section has not been revised.

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

    This section has been revised in response to the AAR petition for 
reconsideration. In its petition for reconsideration, the AAR expressed 
support for FRA's decision to refrain from requiring locomotive horn 
sounding at every private highway-rail grade crossing. However, noting 
that some States require the sounding of a locomotive horn or the 
ringing of the locomotive bell at private highway-rail grade crossings, 
the AAR requested that FRA amend 49 CFR Part 222 by adding an explicit 
statement of FRA's intent to preempt State law, to the extent that 
State law requires the sounding of a locomotive audible warning device 
for a period of time or in a pattern different from the locomotive horn 
sounding requirements set forth in Sec.  222.21 of this part. After 
considering this request, as well as the potential for confusion that 
may result from requiring the locomotive engineer to provide a 
different audible warning at public highway-rail grade crossings than 
at private highway-rail grade crossings, FRA revised this section. 
Thus, if State law requires the sounding of locomotive audible warning 
devices at private highway-rail grade crossings, the locomotive audible 
warning device must be sounded in accordance with the locomotive horn 
sounding requirements set forth in Sec.  222.21 of this part as of 
December 15, 2006. However, in recognition of the fact that some 
locomotive audible warning devices (such as the locomotive bell) cannot 
be sounded in accordance with the locomotive horn sounding pattern 
required by Sec.  222.21(a) of this part (i.e., two long blasts, one 
short blast, and one long blast), locomotive audible warning devices 
other than the locomotive horn need only be sounded in accordance with 
the time-based locomotive horn sounding requirements set forth in 
Sec. Sec.  222.21(b) and (d) of this part.
    Paragraph (a) of this section has also been revised, in response to 
the AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that the permissive language in this 
provision could mislead public authorities into thinking that they are 
not required to address private highway-rail grade crossings when 
establishing their quiet zones. After considering this assertion, FRA 
noted that public authorities located in States that do not require 
locomotive horn sounding at private highway-rail grade crossings might 
erroneously assume that it will not be necessary to include and/or 
improve private highway-rail grade crossings located within the 
boundaries of their quiet zone. Therefore, FRA revised this paragraph 
in order to clarify that all private highway-rail grade crossings 
located within the boundaries of a quiet zone must be treated in 
accordance with this part.
    Paragraph (b)(1) of this section has been revised to clarify that 
all private highway-rail grade crossings that are located in New Quiet 
Zones or New Partial Quiet Zones must be evaluated by a diagnostic team 
and then equipped or treated in accordance with the diagnostic team 
recommendations, if the private highway-rail grade crossings allow 
access to the public or provide access to active industrial or 
commercial sites. Paragraph (b)(2) of this section has not been 
revised.
    Paragraph (c) of this section has also been revised to clarify that 
crossbucks and ``STOP'' signs must be installed at each approach to 
private highway-rail grade crossings that are located within quiet 
zones.

Section 222.27 How does this rule affect pedestrian grade crossings?

    This section has been revised in response to the AAR petition for 
reconsideration. In its petition for reconsideration, the AAR expressed

[[Page 47620]]

support for FRA's decision to refrain from requiring locomotive horn 
sounding at pedestrian grade crossings. However, after asserting that 
some States may require the sounding of a locomotive audible warning 
device at pedestrian grade crossings, the AAR requested that FRA amend 
49 CFR Part 222 by adding an explicit statement of FRA's intent to 
preempt State law, to the extent that State law requires the sounding 
of a locomotive audible warning device for a period of time or in a 
pattern different from the locomotive horn sounding requirements set 
forth in Sec.  222.21 of this part. After considering this request, as 
well as the potential for confusion that may result from requiring the 
locomotive engineer to provide a different audible warning at public 
highway-rail grade crossings than at pedestrian grade crossings, FRA 
revised this section. Therefore, if State law requires the sounding of 
a locomotive audible warning device at pedestrian grade crossings, the 
locomotive audible warning device must be sounded in accordance with 
the locomotive horn sounding requirements set forth in Sec.  222.21 of 
this part as of December 15, 2006. However, in recognition of the fact 
that some locomotive audible warning devices (such as the locomotive 
bell) cannot be sounded in accordance with the locomotive horn sounding 
pattern required by Sec.  222.21(a) of this part (i.e., two long 
blasts, one short blast, and one long blast), locomotive audible 
warning devices other than the locomotive horn need only be sounded in 
accordance with the time-based locomotive horn sounding requirements 
set forth in Sec. Sec.  222.21(b) and (d) of this part.
    Paragraph (a) of this section has also been revised, in response to 
the AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR expressed concern that the permissive language 
contained in paragraph (a) of this section could mislead public 
authorities into thinking that they are not required to address 
pedestrian crossings when establishing their quiet zones. After 
considering this assertion, FRA noted that public authorities located 
in States that do not require locomotive horn sounding at pedestrian 
grade crossings might erroneously assume that it will not be necessary 
to include and/or improve pedestrian grade crossings located within the 
boundaries of their quiet zone. Therefore, FRA revised this paragraph 
in order to clarify that all pedestrian grade crossings located within 
the boundaries of a quiet zone must be treated in accordance with this 
part.
    Paragraph (b) of this section has been revised to clarify that all 
pedestrian grade crossings that are located in New Quiet Zones or New 
Partial Quiet Zones must be evaluated by a diagnostic team and then 
equipped or treated in accordance with the diagnostic team 
recommendations, if the pedestrian grade crossings allow access to the 
public or provide access to active industrial or commercial sites.
    A minor typographical edit has been made to paragraph (c) of this 
section.
    Paragraph (d) of this section has also been revised in response to 
the AAR petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that paragraph (d) of this section 
requires the installation of signs at pedestrian crossings that could 
potentially be misleading. In light of the fact that partial quiet 
zones may be established in States that do not require locomotive horn 
sounding at pedestrian grade crossings, the AAR expressed concern that 
pedestrians encountering time-specific warning signs when the partial 
quiet zone is not in effect might assume that the locomotive horn will 
be sounded by approaching trains. After considering this issue, FRA 
agreed that the Final Rule's warning sign requirement could be 
misleading to pedestrians. Therefore, in order to minimize confusion, 
paragraphs (d)(2) and (d)(4) of this section have been revised to give 
public authorities the flexibility to install warning signs which 
advise pedestrians that train horns will not be sounded, but do not 
list the hours within which the partial quiet zone will be in effect. 
Thus, if State law does not require locomotive horn sounding at 
pedestrian grade crossings, signs that indicate that horns are not 
sounded would be appropriate. However, if State law requires locomotive 
horn sounding during non-quiet zone hours, then signs indicating that 
horns are not sounded between stated hours of the partial quiet zone 
would be appropriate. Paragraph (d) of this section has also been 
revised to clarify that advance warning signs must be installed on each 
approach to pedestrian grade crossings located within quiet zones.

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

    This section has not been revised.

Section 222.35 What are the minimum requirements for quiet zones?

    Minor typographical revisions have been made throughout this 
section.
    Paragraph (a)(1)(iii) has been added to this section to address the 
configuration of multiple New Quiet Zones and New Partial Quiet Zones 
along the same rail line within a single political jurisdiction. Even 
though FRA has refrained from establishing a minimum distance between 
neighboring quiet zones, there must be at least one public highway-rail 
grade crossing between New Quiet Zones and New Partial Quiet Zones 
located on the same rail line within a single political jurisdiction 
unless a New Quiet Zone or New Partial Quiet Zone is being added onto 
an existing quiet zone. While it is perfectly acceptable for a 
community to create two quiet zones (each at least one-half mile long) 
with a segment between them at which horns will sound, multiple New 
Quiet Zones and New Partial Quiet Zones cannot be established on the 
same rail line within the boundaries of a single political jurisdiction 
unless they are separated by at least one public highway-rail grade 
crossing.
    By establishing a single New Quiet Zone or New Partial Quiet Zone 
to incorporate all public highway-rail grade crossings at which routine 
locomotive horn sounding will be restricted or prohibited, the 
administrative burden associated with quiet zone establishment will be 
lessened. In addition, FRA perceives no safety-related rationale for 
dividing a multiple-crossing New Quiet Zone or New Partial Quiet Zone 
along a single rail line into fragmented quiet zones. Therefore, unless 
a New Quiet Zone or New Partial Quiet Zone is being added onto an 
existing quiet zone, New Quiet Zones and New Partial Quiet Zones 
created along the same rail line within a single political jurisdiction 
must be separated by at least one public highway-rail grade crossing.
    Paragraph (a)(2)(ii) of this section has been revised to correct an 
inadvertent restriction on the number of Pre-Rule Quiet Zones that can 
be combined. Under the revised language in paragraph (a)(2)(ii) of this 
section, public authorities can combine more than two adjacent Pre-Rule 
Quiet Zones or Pre-Rule Partial Quiet Zones.
    Paragraph (a)(3) of this section, which states that grade crossings 
on a segment of rail line that travels through more than one political 
jurisdiction may be included within a single quiet zone, has been 
revised. This paragraph has been revised in order to clarify that 
pedestrian crossings, located on the same segment of rail line as 
public highway-rail grade crossings, may also be included in multi-
jurisdictional quiet zones.
    Paragraph (b) of this section has not been revised.

[[Page 47621]]

    Paragraph (c) of this section has been revised in response to the 
AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that paragraph (c) of this section 
requires the installation of signs at private highway-rail grade 
crossings that could potentially be misleading. In light of the fact 
that partial quiet zones may be established in States that do not 
require locomotive horn sounding at private highway-rail grade 
crossings, the AAR expressed concern that motorists encountering time-
specific warning signs when the partial quiet zone is not in effect 
might assume that the locomotive horn will be sounded by approaching 
trains. After considering this issue, FRA agreed that the Final Rule's 
warning sign requirement could be misleading to motorists. Therefore, 
in order to minimize confusion, paragraphs (c)(2) and (c)(4) of this 
section have been revised to give public authorities the flexibility to 
install warning signs which advise motorists that train horns will not 
be sounded, but do not list the hours within which the partial quiet 
zone will be in effect. Thus, if State law does not require locomotive 
horn sounding at private highway-rail grade crossings, signs that 
indicate that horns are not sounded would be appropriate. However, if 
State law requires locomotive horn sounding during non-quiet zone 
hours, then signs indicating that horns are not sounded between stated 
hours of the partial quiet zone would be appropriate. These warning 
signs must be installed on each approach to public and private highway-
rail grade crossings.
    Paragraph (c)(5) has been added to this section to clarify that FRA 
does not intend to require public authorities to install advance 
warning signs at highway-rail grade crossings that are equipped with 
wayside horns that conform to the requirements set forth in Sec.  
222.59 and Appendix E of this part, but are located within a quiet 
zone.
    Paragraph (d) of this section has not been revised. Minor 
typographical edits have, however, been made in paragraphs (e), (f), 
and (g) of this section.

Section 222.37 Who may establish a quiet zone?

    Paragraph (a) of this section addresses the situation that may 
occur if a proposed quiet zone includes public highway-rail grade 
crossings that are under the authority and control of more than one 
public authority. This scenario could occur if the proposed quiet zone 
contains county roads and State highways that intersect the railroad 
tracks at adjacent crossings. This scenario could also occur if the 
railroad tracks or the roadway run along the border between two 
neighboring communities.
    When faced with this scenario, paragraph (a) of this section states 
that both public authorities must agree to establishment of the quiet 
zone and must jointly, or by delegation, take such actions as are 
required to comply with this part. Therefore, if two neighboring 
communities are interested in quiet zone creation, the communities 
might want to consider working together to create a multi-
jurisdictional quiet zone. If the neighboring communities are not, 
however, interested in creating a single, multi-jurisdictional quiet 
zone, any shared highway-rail grade crossing (i.e., a highway-rail 
grade crossing that contains a roadway that runs along the border of 
the neighboring communities) can only be attributed to one quiet zone. 
Otherwise, the risk reduction credit associated with any safety 
improvements at the shared highway-rail grade crossing would be 
``double-counted'', if claimed by adjacent quiet zones.
    A minor typographical revision has been made to paragraph (a) of 
this section. However, paragraphs (b) and (c) of this section have not 
been revised.

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

    This section has not been revised.

Section 222.39 How is a quiet zone established?

    Paragraph (a) of this section has not been revised.
    Minor typographical revisions have been made to paragraph (b) of 
this section. In addition, paragraph (b) of this section has been 
revised in response to the AAR's petition for reconsideration. In its 
petition, the AAR asserted that it may be unclear, in certain 
circumstances, as to what constitutes a pedestrian crossing. Therefore, 
the AAR recommended that the Final Rule be revised to require public 
authorities to indicate, in their quiet zone applications and 
notification packages, where pedestrian crossings are located. The AAR 
reasoned that this revision would eliminate any confusion as to where 
crossing signs must be located, in accordance with Sec.  222.27.
    Even though public authorities are required to identify pedestrian 
crossings in their quiet zone notification packages, in accordance with 
the requirements set forth in Sec.  222.43, FRA notes that it had 
inadvertently failed to require public authorities to identify or 
provide information on pedestrian grade crossings in their quiet zone 
applications. Therefore, paragraph (b) of this section has been revised 
to require public authorities to submit Grade Crossing Inventory Forms 
for each pedestrian grade crossing located within a proposed quiet 
zone, as well as information concerning present safety measures and 
proposed improvements at these crossings. FRA also inadvertently failed 
to require public authorities to provide information on current and 
proposed safety improvements at private highway-rail grade crossings. 
Therefore, paragraph (b) of this section has been revised to require 
public authorities to submit information on present safety measures and 
proposed improvements at private highway-rail grade crossings located 
within the proposed quiet zone. With respect to public highway-rail 
grade crossings, paragraph (b) of this section has been revised to 
require public authorities to provide detailed information about all 
safety improvements, as opposed to just SSMs and ASMs, that have been 
proposed for implementation. In making these revisions, FRA hopes to 
obtain better information as to the overall level of safety within the 
proposed quiet zone.
    Paragraph (b)(iv) of this section has been revised by inserting an 
explicit reference to the Notice of Intent requirement contained within 
Sec.  222.43 of this part. (An inadvertent omission of the State agency 
responsible for highway and road safety has also been corrected.) The 
public authority is required to provide a Notice of Intent, in 
accordance with Sec.  222.43 of this part, at least 60 days prior to 
the submission of its quiet zone application. All objections received 
from any railroad operating within the proposed quiet zone, the State 
agency responsible for grade crossing safety, and the State agency 
responsible for highway and road safety in response to the Notice of 
Intent must then be addressed by the public authority in the quiet zone 
application, in accordance with paragraph (b)(iv) of this section.
    Paragraph (b)(2) of this section addresses the inclusion of newly 
established public and private highway-rail grade crossings in quiet 
zones. Any proposed quiet zone that contains a newly established public 
highway-rail grade crossing must be established through public 
authority application, unless one or more SSMs will be implemented at 
every public highway-rail grade crossing within the proposed quiet zone 
in accordance with paragraph (a)(1) of this section. Quiet zones with 
newly established public highway-rail grade crossings cannot be 
established through comparison to

[[Page 47622]]

either the Nationwide Significant Risk Threshold or the Risk Index With 
Horns because the Quiet Zone Risk Index cannot be computed without 
historical vehicle and rail traffic counts for each public highway-rail 
grade crossing within the quiet zone.
    A minor typographical revision has been made in paragraph (b)(3) of 
this section. However, paragraph (b)(4) of this section has not been 
revised. Paragraph (c) of this section has also not been revised.

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

    Minor typographical revisions have been made in paragraphs (a) and 
(b) of this section.
    Paragraph (c) of this section has been revised in order to clarify 
the process that must be followed in order to continue existing 
locomotive horn sounding restrictions within a Pre-Rule Quiet Zone or 
Pre-Rule Partial Quiet Zone that will not be established by automatic 
approval. Paragraph (c)(1) has been added to this section to clarify 
that the public authority must provide a Notice of Quiet Zone 
Continuation, in accordance with Sec.  222.43 of this part, in order to 
retain existing locomotive horn sounding restrictions until June 24, 
2008. Paragraph (c)(2) of this section explains the process that must 
be followed, in order to continue existing locomotive horn sounding 
restrictions until June 24, 2010. Paragraph (c)(3) of this section 
explains the process that can be followed, in order to continue 
existing locomotive horn sounding restrictions until June 24, 2013, by 
providing a comprehensive State-wide implementation plan and funding 
commitment for the establishment of Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones.
    Paragraph (c)(2) of this section has been revised to clarify the 
process for continuing existing locomotive horn sounding restrictions 
beyond June 24, 2008 without interruption. As stated in paragraph 
(c)(2)(i)(A) of this section, the public authority must mail a Notice 
of Intent, in accordance with Sec.  222.43 of this part, by February 
24, 2008. The mailing of the Notice of Intent, which will provide a 
brief explanation of the public authority's plans for implementing 
improvements within the quiet zone, will trigger a 60-day comment 
period, within which affected railroads, the State agency responsible 
for grade crossing safety, and the State agency responsible for highway 
and road safety can provide comments on the proposed improvements. This 
Notice of Intent replaces the Notice of Detailed Plan, which was 
previously required by the Final Rule.
    After the Notice of Intent has been mailed and the subsequent 60-
day comment period has run, paragraph (c)(2)(i)(B) requires the public 
authority to file a detailed plan with the FRA Associate Administrator 
by June 24, 2008. The detailed plan must include a detailed explanation 
of each safety improvement that will be implemented at public, private, 
and pedestrian crossings within the Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone, in order to comply with Sec. Sec.  222.25, 222.27, 
222.35 and 222.39 of this part. (The public authority may also choose 
to explain additional safety improvements that will be implemented 
within the quiet zone, but are not being relied upon to achieve 
compliance with this part.) The detailed plan must also include a 
timetable for the implementation of these safety improvements.
    If the public authority plans to implement ASMs within the quiet 
zone, paragraph (c)(2)(ii) of this section (formerly paragraph (c)(4) 
of the Final Rule) advises the public authority to apply for FRA 
approval of the quiet zone by December 24, 2007, in order to ensure 
that FRA will have ample time within which to review the quiet zone 
application.
    Providing a Notice of Intent and filing a detailed plan in 
accordance with paragraph (c)(2) of this section will, however, only 
postpone routine locomotive horn sounding at public highway-rail grade 
crossings until June 24, 2010, unless the public authority establishes 
a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone in accordance with 
paragraph (c)(4) of this section. Paragraph (c)(2)(ii) in the Final 
Rule, which specifically addressed the establishment of Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones during the three-year period 
following June 24, 2005, has been removed. However, Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones that have Quiet Zone Risk 
Indices that fall to a level at or below the Nationwide Significant 
Risk Threshold during this three-year period are now governed by 
paragraph (c)(4) of this section, which sets forth the procedure for 
establishing Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones that 
will not be established by automatic approval.
    Paragraph (c)(3) of this section explains the process that must be 
followed by an appropriate State agency, in order to continue existing 
locomotive horn sounding restrictions within Pre-Rule Quiet Zones and 
Pre-Rule Partial Quiet Zones for an additional three years (until June 
24, 2013) through the filing of a comprehensive State-wide 
implementation plan and funding commitment. As stated in this 
paragraph, existing locomotive horn sounding restrictions may remain in 
place until June 24, 2013, if: a) a comprehensive State-wide 
implementation plan and funding commitment is filed by the appropriate 
State agency with the Associate Administrator by June 24, 2008; and b) 
safety improvements are initiated within at least one Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone in the State by June 24, 2009. The 
comprehensive State-wide implementation plan must include an 
explanation of the process that will be used to assist Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones to come into compliance with 
Sec. Sec.  222.25, 222.27, 222.35 and 222.39 of this part, as well as a 
timetable for the implementation of necessary safety improvements. As 
of June 24, 2013, locomotive horn sounding will resume unless each 
public authority establishes a Pre-Rule Quiet Zone or Pre-Rule Partial 
Quiet Zones, in accordance with paragraph (c)(4) of this section.
    Paragraph (c)(4) of this section explains the process that must be 
followed in order to establish a Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone. As stated in paragraph (c)(4) of this section, a 
public authority can establish a Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone if: (a) The Pre-Rule Quiet Zone or Pre-Rule Partial 
Quiet Zone complies with the Pre-Rule Quiet Zone requirements set forth 
in Sec. Sec.  222.25, 222.27, and 222.35 of this part; (b) the Pre-Rule 
Quiet Zone or Pre-Rule Partial Quiet Zone complies with the quiet zone 
standards set forth in Sec.  222.39 of this part; and (c) the public 
authority complies with all applicable notification and filing 
requirements contained within this paragraph (c) and Sec.  222.43 of 
this part.
    The notification and filing requirements contained within this 
paragraph (c) and Sec.  222.43 of this part may include: a) mailing the 
Notice of Intent, in accordance with Sec.  222.43 of this part, if new 
SSMs or ASMs will be implemented within the Pre-Rule Quiet Zone or Pre-
Rule Partial Quiet Zone; b) filing a detailed plan with the Associate 
Administrator by June 24, 2008, in accordance with paragraph (c)(2) of 
this section, if the Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
will be established after that date; and c) providing a Notice of Quiet 
Zone Establishment, in accordance with Sec.  222.43 of this part.

[[Page 47623]]

    Paragraph (d) of this section has been revised in order to clarify 
the process that must be followed in order to convert a Pre-Rule 
Partial Quiet Zone into a 24-hour New Quiet Zone. While the final rule 
simply stated that the public authority must provide ``notification of 
the establishment of a New 24-hour Quiet Zone'', paragraph (d) of this 
section has been revised to clarify that the public authority is 
actually required to comply with all applicable notification and filing 
requirements contained within paragraph (c) of this section and Sec.  
222.43 of this part. These notification and filing requirements may 
include: (a) Mailing the Notice of Intent, in accordance with Sec.  
222.43 of this part; b) filing a detailed plan with the Associate 
Administrator by June 24, 2008, in accordance with paragraph (c)(2) of 
this section, if the Pre-Rule Partial Quiet Zone will be converted 
after that date; and c) providing a Notice of Quiet Zone Establishment, 
in accordance with Sec.  222.43 of this part.

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

    This section has been revised in order to clarify the process that 
must be followed in order to continue existing locomotive horn sounding 
restrictions in Intermediate Quiet Zones and Intermediate Partial Quiet 
Zones until June 24, 2006. This section has also been revised in order 
to clarify the process that must be followed in order to convert an 
Intermediate Quiet Zone or Intermediate Partial Quiet Zone into a New 
Quiet Zone or New Partial Quiet Zone on or before June 24, 2006, in 
order to prevent the resumption of locomotive horn sounding on that 
date.
    As stated in paragraph (a)(1) of this section, a public authority 
may continue existing locomotive horn restrictions until June 24, 2006 
by providing a Notice of Quiet Zone Continuation in accordance with 
Sec.  222.43 of this part. An Intermediate Quiet Zone or Intermediate 
Partial Quiet Zone must, however, be converted into a New Quiet Zone or 
a New Partial Quiet Zone by June 24, 2006, in order to prevent the 
resumption of locomotive horn sounding on that date.
    Paragraph (a)(2) of this section explains the process for 
converting an Intermediate Quiet Zone into a New Quiet Zone, or an 
Intermediate Partial Quiet Zone into a New Partial Quiet Zone, by June 
24, 2006. Paragraph (b) of this section explains the process for 
converting an Intermediate Partial Quiet Zone into a 24-hour New Quiet 
Zone by June 24, 2006.
    While most of the requirements for converting an Intermediate Quiet 
Zone or Intermediate Partial Quiet Zone remain unchanged, paragraph 
(a)(2) of this section explains that the public authority is required 
to: (a) Provide a Notice of Intent, in accordance with Sec.  222.43 of 
this part; (b) bring the Intermediate Quiet Zone or Intermediate 
Partial Quiet Zone into compliance with the standards set forth in 
Sec.  222.39 of this part; (c) bring the Intermediate Quiet Zone or 
Intermediate Partial Quiet Zone into compliance with the New Quiet Zone 
requirements set forth in Sec. Sec.  222.25, 222.27, and 222.35 of this 
part; and d) provide a Notice of Quiet Zone Establishment, in 
accordance with Sec.  222.43 of this part, by June 3, 2006. It should 
be noted that the Notice of Intent should be mailed prior to April 3, 
2006, in order to allow at least 60 days for the submission of comments 
and/or ``no-comment'' statements from each railroad operating over 
public highway-rail grade crossings within the quiet zone, the State 
agency responsible for grade crossing safety, and the State agency 
responsible for highway and road safety before the mailing of the 
Notice of Quiet Zone Establishment. (Please refer to Sec.  222.43(b) 
for more information.) Even though these notification requirements were 
contained within Sec.  222.43 of this part and were included in the 
Paperwork Reduction Act analysis that FRA performed on the Final Rule, 
FRA inadvertently omitted explicit reference to these requirements in 
this section of the Final Rule.
    Paragraph (b) of this section has been revised in order to clarify 
the process that must be followed in order to convert an Intermediate 
Partial Quiet Zone into a 24-hour New Quiet Zone. (Please note that the 
requirements for converting an Intermediate Partial Quiet Zone into 
either a 24-hour New Quiet Zone or a New Partial Quiet Zone are 
identical.) While the Final Rule simply stated that the public 
authority is required to provide ``notification of New Quiet Zone 
establishment'', paragraph (b) of this section has been revised to 
clarify that the public authority is actually required to provide two 
different types of quiet zone notification--the Notice of Intent and 
the Notice of Quiet Zone Establishment. In order to facilitate 
conversion of the Intermediate Partial Quiet Zone before the end of the 
one-year grace period for existing locomotive horn sounding 
restrictions, paragraph (b) of this section has also been revised to 
include a deadline for the submission of the Notice of Quiet Zone 
Establishment, which mirrors the submission deadline contained within 
paragraph (a)(2) of this section.

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

    Minor typographical revisions have been made throughout this 
section.
    This section has also been revised by expanding the scope of the 
Notice of Intent requirement to include Pre-Rule Quiet Zones and Pre-
Rule Partial Quiet Zones that will need to implement SSMs or ASMs in 
order to qualify for quiet zone establishment under Sec.  222.41 (c) or 
(d) of this part. The requirement to provide Notice of Detailed Plan, 
which was virtually identical to the Notice of Intent, has therefore 
been removed. Thus, Pre-Rule Quiet Zones and Pre-Rule Partial Quiet 
Zones that were previously required to provide a Notice of Detailed 
Plan are now required to provide a Notice of Intent on or before 
February 24, 2008.
    As stated in paragraph (a)(1) of this section, a Notice of Intent 
must be provided by public authorities who wish to create a New Quiet 
Zone or New Partial Quiet Zone by public authority designation or 
application, in accordance with Sec.  222.39(a) or (b) of this part. 
This includes public authorities who wish to convert Intermediate Quiet 
Zones and Intermediate Partial Quiet Zones into a New Quiet Zone or New 
Partial Quiet Zone. In addition, public authorities seeking to 
implement new SSMs or ASMs within Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones are required to provide a Notice of Intent.
    The Notice of Intent should be mailed early in the quiet zone 
development process, as the submission of the Notice of Intent triggers 
a 60-day comment period and provides State agencies and railroads with 
an opportunity to provide input on the quiet zone to the public 
authority. Therefore, paragraph (b)(1) was added to this section to 
reiterate that a sixty-day period must elapse between the mailing of 
the Notice of Intent and the mailing of the Notice of Quiet Zone 
Establishment, unless the public authority has obtained written 
comments and/or ``no-comment'' statements from each railroad operating 
over public highway-rail grade crossings within the 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)(3)(ii) of this section. This provision is very similar to 
language contained within paragraph (d)(1)(ii) of this section, which

[[Page 47624]]

addresses the timing of Notices of Quiet Zone Establishment.
    With respect to Pre-Rule Quiet Zones and Pre-Rule Partial Quiet 
Zones that will not be established by June 24, 2008, paragraph 
(b)(1)(ii) of this section reminds public authorities that the Notice 
of Intent, which provides a brief explanation of proposed quiet zone 
improvements, must be provided by February 24, 2008, in order to 
continue existing locomotive horn sounding restrictions beyond June 24, 
2008 without interruption.
    As for the Notice of Quiet Zone Continuation, it should be noted 
that submission of the Notice of Quiet Zone Continuation was only 
necessary if the public authority wanted to continue pre-existing 
locomotive horn sounding restrictions after June 24, 2005. If a Pre-
Rule Quiet Zone or Pre-Rule Partial Quiet Zone was established under 
the authority of this part before the Final Rule took effect on June 
24, 2005, the public authority was not required to provide prior Notice 
of Quiet Zone Continuation.
    All Notices of Intent, Notices of Quiet Zone Continuation, and 
Notices of Quiet Zone Establishment that complied with Sec.  222.43 of 
the Final Rule and were mailed on or before August 17, 2006, shall be 
deemed compliant with any revised notification requirements now 
contained in this section.

Section 222.45 When Is a Railroad Required to Cease Routine Sounding of 
Locomotive Horns at Crossings?

    This section has been revised to clarify the required railroad 
response to a valid Notice of Quiet Zone Continuation or Establishment. 
Even though railroads have been required to refrain from, or cease, 
routine sounding of the locomotive horn at all public, private, and 
pedestrian crossings identified in a valid Notice of Quiet Zone 
Continuation or Establishment on the date specified in the Notice, 
reference to the Notice of Quiet Zone Continuation was inadvertently 
omitted from this section in the Final Rule. Pedestrian grade crossings 
were also inadvertently omitted from the description of grade crossings 
at which railroads are required to cease routine use of the locomotive 
horn.

Section 222.47 What periodic updates are required?

    Minor typographical revisions have been made in this section.

Section 222.49 Who may file Grade Crossing Inventory Forms?

    This section has not been revised.

Section 222.51 Under what conditions will quiet zone status be 
terminated?

    This section has not been revised.

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

    This section has not been revised.

Section 222.55 How are new supplementary or alternative safety measures 
approved?

    This section has not been revised.

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

    This section has not been revised.

Section 222.59 When May a Wayside Horn Be Used?

    It has come to FRA's attention that there may be some confusion in 
the railroad industry as to whether the notification requirements 
contained within this section apply to existing wayside horn 
installations. As a result, we wish to clarify that railroads and/or 
public authorities who are responsible for wayside horns that became 
operational before June 24, 2005 and that meet the requirements set 
forth in this part are not required to submit notification of 
operational status, in accordance with paragraphs (b) and (c) of this 
section. Thus, all railroads operating over highway-rail grade 
crossings equipped with wayside horns that became operational before 
June 24, 2005 were required to cease routine sounding of the locomotive 
horn at those crossings on that date, even if notification of 
operational status was not provided in accordance with this section.

Appendix A to Part 222--Approved Supplementary Safety Measures

    Sections (A)(1), (A)(3), (A)(4), and (A)(5) of this Appendix have 
not been revised. However, FRA has added a brief discussion of the 
effectiveness rate assigned to four-quadrant gate systems equipped with 
vehicle presence detection to Section (A)(2) of this Appendix.
    As stated in the Note to section (A)(2) of the Appendix, the lower 
effectiveness rate assigned to four-quadrant gate systems equipped with 
presence detection does not mean that four-quadrant systems with 
presence detection are inherently less safe. The lower effectiveness 
rate merely reflects the fact that motorists who are intent on 
circumventing the grade crossing warning system can take advantage of 
presence detection by driving under the delayed exit gates to enter the 
grade crossing. However, the public authority must weigh this risk 
against site-specific risks, such as nearby highway intersections that 
may cause traffic to back up on the grade crossing, when determining 
which type of four-quadrant gate system should be installed at a 
specific highway-rail grade crossing. FRA therefore recommends the use 
of site-specific studies to determine the best application for each 
installation.
    Sections (B) and (C) of this Appendix have not been revised.

Appendix B to Part 222--Alternative Safety Measures

    Minor revisions have been made to section I.A. of this appendix, 
which contains a brief discussion of the requirements and effectiveness 
rates for modified SSMs. Specifically, section I.A.2 of this appendix 
has been revised in order to clarify that the public authority is 
required to provide estimates of the effectiveness of its modified 
SSMs, which can be based upon adjustments to the effectiveness levels 
provided in appendix A or actual field data derived from the crossing 
sites. These effectiveness rate estimates must be included in the quiet 
zone application, as set forth in Sec.  222.39(b) of this part.
    Sections (I)(B) and (I)(C) of this Appendix have not been revised. 
Sections II and III of this Appendix have also not been revised.

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

    This appendix has been revised to incorporate changes that have 
made been to the rule text.

Appendix D to Part 222--Determining Risk Levels

    This appendix has not been revised.

Appendix E to Part 222--Requirements for Wayside Horns

    This appendix has not been revised.

Appendix F to Part 222--Diagnostic Team Considerations

    This appendix has not been revised.

Appendix G to Part 222--Schedule of Civil Penalties

    This appendix has been revised to reflect the exception for fast-
moving trains (trains operating at speeds in excess of 60 mph) from the 
15-second minimum horn sounding requirement contained in Sec.  
222.21(b) of this part. As stated in Sec.  222.21(b)(3) of this part, 
FRA will not issue civil penalties against railroads whose fast-moving 
trains fail to sound the locomotive horn at least 15

[[Page 47625]]

seconds prior to their arrival at public highway-rail grade crossings, 
if locomotive horn sounding was initiated one-quarter mile from the 
public highway-rail grade crossing.
    This appendix has also been revised to reflect revisions that have 
been made to the audible warning requirement set forth in Sec.  
222.21(b) of this part. When dealing with situations in which the 
locomotive engineer provided an audible warning in excess of 20 seconds 
before public grade crossings, FRA will try to determine whether the 
locomotive engineer made a good faith attempt to comply with the 15-20 
second audible warning requirement. However, if an audible warning in 
excess of 25 seconds was provided before a public highway-rail grade 
crossing and FRA determines that the locomotive engineer failed to make 
a good faith attempt to comply with the 15-20 second audible warning 
requirement set forth in Sec.  222.21(b) of this part, FRA may issue an 
appropriate civil penalty.
    Section 222.21(b)(3) of this part prohibits the initiation of 
locomotive horn sounding from a location more than one-quarter mile 
before a public highway-rail grade crossing. However, under the civil 
penalty schedule contained within Appendix G to the Final Rule, a 
$5,000 civil penalty could only have been assessed if locomotive horn 
sounding was routinely initiated from a location more than one-quarter 
mile before a public highway-rail grade crossing. FRA did not intend to 
restrict its enforcement activity to habitual violations of the 
locomotive horn sounding requirements contained within this part. 
Therefore, FRA is amending this appendix in order to clarify that civil 
penalties may be assessed against railroads for individual instances in 
which locomotive horn sounding was initiated from a location more than 
one-quarter mile before a public highway-rail grade crossing. However, 
the recommended standard civil penalty has been reduced from $5,000 to 
$1,000 and the recommended willful civil penalty has also been reduced 
from $7,500 to $2,000.
    This appendix has also been revised to clarify that routine 
sounding of the locomotive horn at any grade crossing (i.e., public, 
private or pedestrian grade crossing) located within a quiet zone is 
prohibited.

Section 229.5 Definitions

    The three definitions that are being added this section were 
included in the Final Rule on the Use of Locomotive Horns at Highway-
Rail Grade Crossings. These definitions were, however, inadvertently 
removed upon issuance of the Final Rule on Locomotive Event Recorders 
(70 FR 37920).
    Also, the definition of the term ``defective'' has been revised to 
reflect FRA's intent to limit application of this specific definition 
to Sec.  229.129 of this part.

Section 229.129 Locomotive Horn

    The title of this section has been changed to reflect the fact that 
the requirements contained within this section only pertain to one type 
of locomotive audible warning device--the locomotive horn. Therefore, 
all references to ``audible warning devices'' within this section have 
been replaced with the term ``locomotive horn'.
    This section has also been revised in response to petitions for 
reconsideration that were submitted by GE Transportation Rail and the 
AAR. In its petition for reconsideration, GE Transportation Rail 
requested a 120-day extension of the compliance deadline set forth in 
paragraph (b)(1) of this section for the sound level testing of new 
locomotives. GE Transportation Rail asserted that, given the relatively 
short period of time since the issuance of FRA's Final Rule on the Use 
of Locomotive Horns at Highway-Rail Grade Crossings, it would be unable 
to complete sound level testing on its first batch of new locomotives 
prior to June 24, 2005 (the compliance deadline for sound level testing 
of new locomotives). As a result, GE Transportation Rail asserted that 
it would be forced to test every new locomotive, which would negatively 
impact its ability to meet delivery commitments made to its customers.
    After considering the assertions made by GE Transportation Rail 
with respect to the practical limitations associated with testing new 
locomotive sound levels, in accordance with the test parameters set 
forth in Sec.  229.129, FRA revised paragraph (b) to extend the 
compliance date of the new locomotive sound level testing requirements 
to September 18, 2006. In light of the delay incidental to the 
publication of these amendments, this revision will actually extend the 
compliance date of the testing requirements contained in this section 
by more than 120 days. Therefore, any locomotives built on or after 
September 18, 2006 must comply with the minimum and maximum locomotive 
horn sound level requirements set forth in paragraph (a) of this 
section. However, locomotives built before September 18, 2006 must be 
tested and brought into compliance with the minimum and maximum 
locomotive horn sound level requirements set forth in paragraph (a) of 
this section by June 24, 2010.
    Paragraph (b)(3) of this section has been revised to clarify FRA's 
original intent to require the sound level testing of remanufactured 
locomotives, in accordance with this section. Even though the Final 
Rule required sound level testing of ``each locomotive when rebuilt, as 
determined pursuant to 49 CFR 232.5'', FRA has received comments noting 
that this provision is somewhat ambiguous and difficult to interpret. 
Since FRA had actually intended to apply the sound level testing 
requirements contained within this section to those locomotives that 
have been rebuilt or refurbished from a previously used or refurbished 
underframe (``deck'') and contain fewer than 25 percent of previously 
used components (weighted by the dollar value of the components), 
paragraph (b)(3) of this section has been revised to refer only to 
those locomotives that meet the definition of ``remanufactured 
locomotive'', as set forth in Sec.  229.5 of this part. (Please refer 
to FRA's Final Rule on Locomotive Crashworthiness, which was published 
in the Federal Register on June 28, 2006 (71 FR 36888), for further 
discussion of the term ``remanufactured locomotive''.)
    The AAR also submitted a petition for reconsideration that 
addressed a number of provisions contained within Sec.  229.129 of this 
part. First, the AAR asserted that Sec.  229.129 of this part was 
ambiguous as to what additional testing, if any, must be conducted when 
locomotive horns are replaced. If additional testing would be 
necessary, the AAR proposed that railroads be allowed to use the 
sampling scheme set forth in paragraph (b)(1) of this section to 
qualify replacement horns, with no additional testing necessary. 
However, if a replacement horn was not model qualified through 
acceptance sampling, the AAR proposed that railroads be required to 
test the replacement horn at the time of the next periodic inspection 
or by June 24, 2010, whichever is later.
    FRA has not, however, revised this section to allow acceptance 
sampling of replacement horns. Given the level of variation that exists 
in the different types of locomotive/locomotive horn configurations, 
FRA is concerned that acceptance sampling would not ensure that the 
replacement horn, when installed on the locomotive, would generate an 
audible warning commensurate with the sound level parameters 
established by paragraph (a) of this section. FRA believes that 
locomotive horns should not be tested in isolation--the sound level 
must be tested after the horn has been installed

[[Page 47626]]

on the locomotive. FRA notes that there are a variety of factors that 
can influence locomotive horn sound levels, such as the placement, 
mounting, air pressure and actual condition of the locomotive horn. 
However, should railroads develop data from field testing to 
demonstrate that some form of acceptance sampling would be appropriate, 
FRA would be willing to reconsider its position on this issue.
    Paragraph (b)(4) has been added to this section to require sound 
level testing of locomotives equipped with replacement horns, in 
accordance with paragraph (c) of this section. As stated in paragraph 
(b)(4) of this section, locomotives equipped with replacement horns 
must be tested unless: (a) The locomotive has already been individually 
tested or tested through acceptance sampling, in accordance with 
paragraphs (b)(1), (b)(2), or (b)(3) of this section; (b) the 
replacement horn is the same locomotive horn model as the locomotive 
horn that was replaced; and (c) the replacement horn was mounted in the 
same manner and location as the locomotive horn that was replaced. This 
sound level testing must be performed before the next two annual tests 
required by Sec.  229.27 of this part are completed.
    In its petition for reconsideration, the AAR also requested that 
railroads be allowed to use acceptance sampling to qualify the sound 
level output of existing locomotives. In support of this request, the 
AAR asserted that there is a great deal of standardization with respect 
to locomotive horn and locomotive models. However, FRA has not revised 
this section to allow acceptance sampling of the sound level output of 
existing locomotives, as the considerations that militate against 
acceptance sampling of replacement locomotive horns apply equally, if 
not more so, to the acceptance sampling of existing locomotives. FRA 
notes that there are many factors that can influence the sound level 
output of existing locomotives, including the actual condition of the 
locomotive horn, as well as the placement, mounting and air pressure of 
the locomotive horn. FRA may, however, reconsider this issue, should 
railroads develop data from field testing that demonstrates that some 
form of acceptance sampling would be appropriate.
    Paragraph (c)(1) of this section has not been revised.
    By e-mail dated September 20, 2005, the AAR submitted a request for 
modification of the locomotive horn testing requirements in paragraph 
(c)(2) of this section. In its e-mail, the AAR requested permission to 
use electronic calibrators, in addition to approved acoustic 
calibrators, to conduct compliance testing in accordance with this 
section. If such a change were made, the AAR asserted that railroads 
could use an acoustic calibrator during the initial setup of an 
``environmental noise monitoring system'' and then store the results in 
an electronic calibrator which could, conceivably, have an accuracy of 
 0.1 dB.
    FRA has not, however, revised paragraph (c)(2) of this section. 
Acoustical calibration has been incorporated into the recommended 
practice for monitoring aircraft noise in the vicinity of airports, 
unlike electronic calibration, which is mainly used to identify sound 
level measurement system failure. See SAE Aerospace Recommended 
Practice (ARP) 4721--Monitoring Aircraft Noise and Operations in the 
Vicinity of Airports and ISO/DIS 20906--Unattended Monitoring of 
Aircraft Sound in the Vicinity of Airports. Thus, while FRA will permit 
the use of environmental noise monitoring systems to conduct compliance 
testing under this section, FRA cannot permit electronic calibration of 
sound level measurement systems.
    Apart from the correction of a typographical error in paragraph 
(c)(5), paragraphs (c)(3) through (c)(8) of this section have not been 
revised.
    In its e-mail dated September 20, 2005, the AAR also requested that 
FRA relax the requirement in paragraph (c)(9) of this section that 
calibration be done before and after each compliance test. However, FRA 
would like to clarify that calibration is not required before and after 
each compliance test. Acoustical calibration must be performed, at a 
minimum, before and after each session of compliance tests within an 8-
hour period, unless a physical change in the environment (such as a 
drop or rise in temperature, atmospheric pressure or wind) or damage to 
the instrument may cause changes in microphone response. Therefore, 
paragraph (c)(9) of this section has not been revised.
    In its petition for reconsideration, the AAR asserted that the 
requirement to record air flow measurements when testing locomotive 
sound levels would not only be extremely burdensome, but would fail to 
provide any useful information. Noting that Sec.  229.129 does not 
contain any regulatory requirement pertinent to air flow, the AAR 
stated that no regulatory purpose would be served by recording air flow 
measurements. In addition, the AAR asserted that railroads would need 
to employ extra personnel and/or utilize specialized equipment during 
locomotive sound level testing, for the sole purpose of reading the air 
flow meter.
    After considering these assertions, FRA revised paragraph (c)(10) 
of this section by removing the requirement to retain written records 
of air flow measurements taken during locomotive sound level testing. 
FRA was persuaded that this requirement would impose an unnecessary 
burden on railroads and locomotive manufacturers.
    Lastly, the AAR objected to the written signature requirement 
contained within paragraph (c)(10) of this section. Noting that the 
Interim Final Rule did not provide any rationale for requiring the 
signature of the person who performs the locomotive horn sound level 
test, the AAR expressed concern that railroads would be unable to use a 
fully automated test procedure under consideration which would record 
and send sound level test results to a database without any human 
intervention. Nonetheless, if signatures will be required, the AAR 
asserted that FRA will have to allow railroads to use electronic 
signatures, in accordance with the Government Paperwork Elimination 
Act.
    While FRA recognizes the paperwork burdens associated with an 
additional recordkeeping requirement, FRA notes that the written 
signature of the person who performs the locomotive sound level test 
will provide accountability, should questions arise as to the quality 
of the test that was performed. However, FRA acknowledges that an 
electronic recordkeeping system could be designed to provide an 
equivalent level of accountability, while reducing associated paperwork 
burdens. Therefore, even though FRA has not revised paragraph (c)(10) 
of this section to remove the written signature requirements, FRA looks 
forward to the implementation of electronic recordkeeping in the near 
future, at which time FRA intends to review all of the recordkeeping 
requirements contained within 49 CFR Part 229.
    Paragraph (d) of this section has not been revised. However, in 
light of the confusion generated by the preamble discussion of this 
section in the Final Rule, FRA would like to clarify the intent of this 
section.
    Contrary to the discussion of this section in the preamble to the 
Final Rule, rapid transit operations that share track with general 
system railroads are not subject to this section. (This category of 
rapid transit operations includes ``light rail'' vehicles that are 
operated on general system track pursuant to an FRA-approved Temporal 
Separation Plan.) Thus, rapid transit

[[Page 47627]]

operations that share track with general system railroads need not file 
waiver petitions to obtain relief from the locomotive horn volume and 
testing requirements contained in this section.
    It should, however, be noted that rapid transit operations that 
share track with general system railroads remain subject to the 
locomotive horn sounding requirements contained in 49 CFR Part 222, 
absent relief granted in the form of an FRA waiver. Thus, rapid transit 
operations that share track with general system railroads are required 
to sound the locomotive horn when approaching and entering public 
highway-rail grade crossings located outside quiet zones. However, 
these rapid transit operations need not comply with the minimum and 
maximum locomotive horn sound level requirements contained in this 
section, nor do they need to conduct locomotive horn testing in 
accordance with this section.
    Rapid transit operations that operate within a common corridor with 
general system railroads and traverse shared public highway-rail grade 
crossings are also exempt from the requirements contained in this 
section. However, these rapid transit operations remain subject to the 
locomotive horn sounding requirements contained in 49 CFR Part 222, 
absent relief granted in the form of an FRA waiver.
    Therefore, rapid transit operations that operate within a common 
corridor with general system railroads are required to sound the 
locomotive horn when approaching and entering public highway-rail grade 
crossings that are shared with general system railroads and located 
outside quiet zones. However, these rapid transit operations need not 
comply with the minimum and maximum locomotive horn sound level 
requirements contained in this section, nor do they need to conduct 
locomotive horn testing in accordance with this section.

Appendix B to Part 229--Schedule of Civil Penalties

    This appendix has been revised to reflect changes that have been 
made to section 229.129 of this part, which clarify that the sound 
level and testing requirements contained within section 229.129 of this 
part only pertain to one type of locomotive audible warning device--the 
locomotive horn. In addition to other minor clarifying revisions, this 
appendix has also been revised by assigning a civil penalty 
recommendation to the failure of a railroad or locomotive manufacturer 
to complete and/or retain a proper locomotive horn sound level test 
record in accordance with section 229.129(c)(10) of this part.

5. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This revised 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 revised Final Rule. FRA believes that many 
communities will take advantage of the many options available to 
establish quiet zones. FRA also estimated the costs associated with the 
revised horn sound level testing requirements.
    After the release of the Final Rule, FRA received petitions for 
reconsideration on various issues of concern to the railroads, railroad 
suppliers, and other affected entities. After careful consideration, 
FRA is revising the Final Rule to address some of the issues raised in 
the petitions for reconsideration. FRA is also taking the opportunity 
to clean up the rule by correcting a few inadvertent errors and 
omissions which are necessary for the rule to function as intended. 
These revisions to the Final Rule will result in approximately $184,873 
in additional costs. These additional costs are reflected in the cost 
table below. For a complete discussion of the costs of the revisions, 
please see the Economic and Regulatory Flexibility Analyses of the 
Revisions to the Final Rule.
    The table below presents estimated twenty-year monetary costs 
associated with complying with the requirements contained in the Final 
Rule revisions using a 7 percent discount rate.

                  Total Twenty-Year Costs (PV, 7%) \1\
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Extension of Compliance Date for Sound Level Testing of          $34,203
 New Locomotives........................................
Notice and Comment Requirements.........................        $150,670
                                                         ---------------
    Total Twenty-Year Costs associated with                   *$184,873
     implementation of the Final Rule revisions are
     estimated to total.................................
------------------------------------------------------------------------
\1\ 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.
*(PV, 20 Years, 7%).

    FRA extended the compliance deadline for the sound level testing of 
new locomotives at the request of a major locomotive manufacturer, who 
was not prepared to meet the original compliance deadline without major 
disruption. This extension of the compliance deadline has, however, 
resulted in $34,203 in additional costs. FRA believes that this small 
additional cost is justified by the benefit (not quantified) of 
avoiding either substantial non-compliance or disruptions to the 
manufacturing process.
    The remaining additional costs are associated with the notice and 
comment provisions of the Final Rule. These provisions have been 
revised, in order to streamline the quiet zone notification process and 
facilitate communication between interested parties prior to the 
expenditure of significant funds for projects such as crossing safety 
improvements. Even though we do not have the information necessary to 
estimate the amount of ``waste'' which may be avoided through early 
disclosure of planned crossing safety improvements, FRA believes that 
this small increase in total cost will prevent additional cost outlays 
associated with potential problems arising from projects requiring a 
substantial investment for needed safety improvements.
    The direct safety benefit of this revised Final Rule is the 
reduction in casualties that result from collisions between trains and 
highway users at

[[Page 47628]]

public at-grade highway-rail crossings. Implementation of this rule 
will ensure that (1) locomotive horns are sounded to warn highway users 
of approaching trains; or (2) rail corridors where train horns do not 
sound will have a level of risk that is no higher than the average risk 
level at gated crossings nationwide where locomotive horns are sounded 
regularly; or (3) the effectiveness of horns is compensated for in rail 
corridors where train horns do not sound.
    Some of the unquantified benefits of this revised 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.
    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 do not 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. In addition, under the Final Rule revisions, 
locomotive horns need not be sounded for a minimum of 15 seconds by 
trains that re-initiate movement from locations, such as passenger 
stations, that are in close proximity to public highway-rail grade 
crossings, provided certain specified conditions are met.
    The Final Rule revisions will also facilitate railroad compliance 
with required time-based locomotive horn sounding. By extending the 
compliance deadline for time-based locomotive horn sounding, FRA will 
ensure that locomotive engineers have sufficient time to adapt to time-
based locomotive horn sounding. In addition, by expanding the scope of 
these time-based audible warning requirements to cover audible warnings 
provided at public, private and pedestrian crossings, locomotive 
engineers will no longer be required to comply with potentially 
inconsistent State and Federal requirements governing locomotive-based 
audible warnings at grade crossings. Improved railroad compliance is 
not, however, readily quantifiable.
    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. FRA is, however, 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 revised 
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 and have been awaiting 
issuance of this rule to do so. FRA is concerned that with the 
increased risk at grade crossings where train whistles are not sounded, 
or another means of warning utilized, collisions and casualties may 
increase significantly. The rule contains low risk based provisions for 
communities to establish quiet zones. Some crossing corridors may 
already be at risk levels that are permissible under this rule and 
would not need to reduce risk levels any further to establish quiet 
zones. Otherwise, communities establishing Pre-Rule Quiet Zones may 
implement sufficient safety measures along whistle-ban corridors to 
reduce risk to permissible levels. In addition to having permissible 
risk levels, all crossings in New Quiet Zones will have to be equipped 
with gates and flashing lights. If a community elects to simply follow 
the mandate, horn sounding will resume and there will be a noise impact 
on small businesses that exist along crossings where horns are not 
currently routinely sounded. If a community elects to implement 
sufficient safety measures to comply with the requirements for 
establishing a quiet zone, then the governmental jurisdiction will be 
impacted by the cost of such program or system. To the extent that 
potential quiet zone crossing corridors already have average risk 
levels permissible under this rule, and, in the case of New Quiet 
Zones, every crossing is equipped with gates and flashing lights, 
communities will only incur administrative costs associated with 
establishing and maintaining quiet zones.
    The costs of implementing this revised 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

[[Page 47629]]

that approximately 70 percent (i.e. 193 communities) of these 
governmental jurisdictions are considered to be small entities.
    FRA has recently published a final 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. 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 or 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 a 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 these amendments to the 
final rule, which respond to petitions for reconsideration, 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., and 
have been assigned OMB control no. 2130-0560. The sections that contain 
the new information collection requirements and the estimated time to 
fulfill each requirement are as follows:
BILLING CODE 4910-06-P

[[Page 47630]]

[GRAPHIC] [TIFF OMITTED] TR17AU06.000


[[Page 47631]]


[GRAPHIC] [TIFF OMITTED] TR17AU06.001


[[Page 47632]]


[GRAPHIC] [TIFF OMITTED] TR17AU06.002

BILLING CODE 4910-06-C
    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and 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 these amendments to the 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 has obtained OMB control number 2130-0560 for 
the new information collection requirements resulting from the 
amendments to this rulemaking.

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

[[Page 47633]]

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 
revised Final 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 49 U.S.C. 20153 indicates a clear 
Congressional preference that decision-makers be local authorities. 
This revised Final Rule provides non-Federal parties extensive 
involvement in decision-making pertaining to the creation of quiet 
zones. Through issuance of the Final Rule, FRA increased the role of 
States in creation of quiet zones and 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 analyses of the Interim 
Final Rule, the Final Rule, and these Final Rule amendments, FRA 
asserts that the concerns of local communities have been substantially 
met.

F. Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each Federal agency ``shall, unless otherwise prohibited by law, 
assess the effects of Federal regulatory actions on State, local, and 
tribal governments, and the private sector (other than to the extent 
that such regulations incorporate requirements specifically set forth 
in law).'' Unfunded Mandates Reform Act section 201, 2 U.S.C. 1531 
(1995). Section 202 of the Unfunded Mandates Reform Act further 
requires that ``before promulgating any general notice of proposed 
rulemaking that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation)[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 revised Final Rule in accordance with 
Executive Order 13211 and has determined that this revised 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

[[Page 47634]]

``significant energy action'' within the meaning of Executive Order 
13211.

6. 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 revised 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 grade crossings?
Subpart C--Exceptions to the Use of the Locomotive Horn
222.31 [Reserved]

Silenced Horns at Individual Crossings

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

Silenced Horns at Groups of Crossings--Quiet Zones

222.35 What are minimum requirements for quiet zones?
Sec.  222.37 Who may establish a quiet zone?
Sec.  222.38 Can a quiet zone be created in the Chicago Region?
Sec.  222.39 How is a quiet zone established?
Sec.  222.41 How does this rule affect Pre-Rule Quiet Zones and Pre-
Rule Partial Quiet Zones?
Sec.  222.42 How does this rule affect Intermediate Quiet Zones and 
Intermediate Partial Quiet Zones?
Sec.  222.43 What notices and other information are required to 
create or continue a quiet zone?
Sec.  222.45 When is a railroad required to cease routine sounding 
of locomotive horns at crossings?
Sec.  222.47 What periodic updates are required?
Sec.  222.49 Who may file Grade Crossing Inventory Forms?
Sec.  222.51 Under what conditions will quiet zone status be 
terminated?
Sec.  222.53 What are the requirements for supplementary and 
alternative safety measures?
Sec.  222.55 How are new supplementary or alternative safety 
measures approved?
Sec.  222.57 Can parties seek review of the Associate 
Administrator's actions?
Sec.  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 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 locomotive audible warning devices 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

[[Page 47635]]

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, 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 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 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 audible warning device means a horn, whistle, siren, or 
bell affixed to a locomotive that is capable of producing an audible 
signal.
    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. For purposes of this part, 
locomotive horns used in rapid transit operations must be suitable for 
street usage and/or designed in accordance with State law requirements.
    Median means the portion of a divided highway separating the travel 
ways for traffic in opposite directions.
    MUTCD means the Manual on Uniform Traffic Control Devices 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.

[[Page 47636]]

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 or an Intermediate 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 grade crossing means, for purposes of this part, a 
separate designed 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 grade 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 grade crossing means, for purposes of this 
part, a highway-rail 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 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.

[[Page 47637]]

    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 highway-rail grade crossing. 
Sounding of the locomotive horn with two long blasts, one short blast 
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 occupies the crossing. This pattern may 
be varied as necessary where crossings are spaced closely together.
    (b)(1) Railroads to which this part applies shall comply with all 
the requirements contained in this paragraph (b) beginning on December 
15, 2006. On and after June 24, 2005, but prior to December 15, 2006, a 
railroad shall, at its option, comply with this section or shall sound 
the locomotive horn in the manner required by State law, or in the 
absence of State law, in the manner required by railroad operating 
rules in effect immediately prior to June 24, 2005.
    (2) Except as provided in paragraphs (b)(3) and (d) of this 
section, or when the locomotive horn is defective and the locomotive is 
being moved for repair consistent with section 229.9 of this chapter, 
the locomotive horn shall begin to be sounded at least 15 seconds, but 
no more than 20 seconds, before the locomotive enters the crossing. It 
shall not constitute a violation of this section if, acting in good 
faith, a locomotive engineer begins sounding the locomotive horn not 
more than 25 seconds before the locomotive enters the crossing, if the 
locomotive engineer is unable to precisely estimate the time of arrival 
of the train at the crossing for whatever reason.
    (3) Trains, locomotive consists and individual locomotives 
traveling at

[[Page 47638]]

speeds in excess of 60 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.
    (d) Trains, locomotive consists and individual locomotives that 
have stopped in close proximity to a public highway-rail grade crossing 
may approach the crossing and sound the locomotive horn for less than 
15 seconds before the locomotive enters the highway-rail grade 
crossing, if the locomotive engineer is able to determine that the 
public highway-rail grade crossing is not obstructed and either:
    (1) The public highway-rail grade crossing is equipped with 
automatic flashing lights and gates and the gates are fully lowered; or
    (2) There are no conflicting highway movements approaching the 
public highway-rail grade crossing.
    (e) Where State law requires the sounding of a locomotive audible 
warning device other than the locomotive horn at public highway-rail 
grade crossings, that locomotive audible warning device shall be 
sounded in accordance with paragraphs (b) and (d) of this section.


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;
    (3) When grade crossing warning systems are temporarily out of 
service during inspection, maintenance, or testing of the system; or
    (4) When SSMs, modified SSMs or engineering SSMs no longer comply 
with the requirements set forth in appendix A of this part or the 
conditions contained within the Associate Administrator's decision to 
approve the quiet zone in accordance with section 222.39(b) of this 
part.
    (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. However, where State law 
requires the sounding of a locomotive horn at private highway-rail 
grade crossings, the locomotive horn shall be sounded in accordance 
with Sec.  222.21 of this part. Where State law requires the sounding 
of a locomotive audible warning device other than the locomotive horn 
at private highway-rail grade crossings, that locomotive audible 
warning device shall be sounded in accordance with Sec. Sec.  222.21(b) 
and (d) of this part.
    (a) Private highway-rail grade crossings located within the 
boundaries of a quiet zone must be included in the 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, must 
be evaluated by a diagnostic team and 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, each approach to 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, each approach to 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 grade crossings?

    This rule does not require the routine sounding of locomotive horns 
at pedestrian grade crossings. However, where State law requires the 
sounding of a locomotive horn at pedestrian grade crossings, the 
locomotive horn shall be sounded in accordance with Sec.  222.21 of 
this part. Where State law requires the sounding of a locomotive 
audible warning device other than the locomotive horn at pedestrian 
grade crossings, that locomotive audible warning device shall be 
sounded in accordance with Sec. Sec.  222.21(b) and (d) of this part.
    (a) Pedestrian grade crossings located within the boundaries of a 
quiet zone must be included in the quiet zone.
    (b) Pedestrian grade crossings that are located in New Quiet Zones 
or New Partial Quiet Zones must be evaluated by a diagnostic team and 
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 grade crossings.
    (d) Advance warning signs. (1) Each approach to every pedestrian 
grade 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 approach to every pedestrian grade 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 or that 
train horns are not

[[Page 47639]]

sounded at the crossing between the hours of 10 p.m. and 7 a.m., 
whichever is applicable. Such sign shall conform to the standards 
contained in the MUTCD.
    (3) Each approach to every pedestrian grade 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 approach to every pedestrian grade 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 or that train horns are not sounded at the crossing for a 
specified period of time, whichever is applicable. Such sign shall 
conform to the standards contained in the MUTCD.

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 paragraph 
(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.
    (iii) New Quiet Zones and New Partial Quiet Zones established along 
the same rail line within a single political jurisdiction shall be 
separated by at least one public highway-rail grade crossing, unless a 
New Quiet Zone or New Partial Quiet Zone is being added onto an 
existing 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 adjacent Pre-Rule Quiet Zones 
or Pre-Rule Partial Quiet Zones, the addition of any public highway-
rail grade 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 highway-rail grade 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 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 within 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 or that train horns are not sounded at the 
crossing between the hours of 10 p.m. and 7 a.m., whichever is 
applicable. 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 or that train horns 
are not sounded at the crossing for a specified period of time, 
whichever is applicable. Such sign shall conform to the standards 
contained in the MUTCD.
    (5) This paragraph (c) does not apply to public and private 
highway-rail grade crossings equipped with wayside horns that conform 
to the requirements set forth in Sec.  222.59 and Appendix E of this 
part.
    (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

[[Page 47640]]

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 highway-rail grade crossings within the quiet zone 
must be treated in accordance with this section and Sec.  222.25 of 
this part.
    (f) All pedestrian grade crossings within a quiet zone must be 
treated in accordance with Sec.  222.27 of this part.
    (g) All public highway-rail grade 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 highway-rail grade crossings under the authority and 
control of more than one public authority (such as a county road and a 
State highway crossing the railroad tracks at different crossings), 
both public authorities must agree to establishment of the quiet zone, 
and must jointly, or by delegation provided to one of the authorities, 
take such actions as are required by this part.
    (b) A public authority may establish quiet zones irrespective of 
State laws covering the subject matter of sounding or silencing 
locomotive horns at public highway-rail grade crossings. Nothing in 
this part, however, is meant to affect any other applicable role of 
State agencies or the Federal Highway Administration in decisions 
regarding funding or construction priorities for grade crossing safety 
projects, selection of traffic control devices, or engineering 
standards for roadways or traffic control devices.
    (c) A State agency may provide administrative and technical 
services to public authorities by advising them, acting on their 
behalf, or acting as a central contact point in dealing with FRA; 
however, any public authority eligible to establish a quiet zone under 
this part may do so.


Sec.  222.38  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, private and pedestrian grade crossing 
within the proposed quiet zone;
    (ii) Contain sufficient detail concerning the present safety 
measures at each public, private and pedestrian 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 address comments submitted by each railroad operating 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 in response to the Notice of 
Intent. This statement shall also list any objections to the proposed 
quiet zone that were raised by the railroad(s) and State agencies;
    (v) Contain detailed information as to which safety improvements 
are proposed to be implemented at each public, private, or pedestrian 
grade crossing within the proposed quiet zone;
    (vi) Contain a commitment to implement the proposed safety 
improvements within the proposed quiet zone; and
    (vii) Demonstrate through data and analysis that the proposed 
implementation of these measures will reduce the Quiet Zone Risk Index 
to a level at, 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 highway-rail grade 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.

[[Page 47641]]

    (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 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:
    (i) The Pre-Rule Quiet Zone has at every public highway-rail grade 
crossing within the quiet zone one or more SSMs identified in appendix 
A of this part; or
    (ii) The Quiet Zone Risk Index is at, or below, the Nationwide 
Significant Risk Threshold, as last published by FRA in the Federal 
Register; or
    (iii) The Quiet Zone Risk Index is above the Nationwide Significant 
Risk Threshold, as last published by FRA in the Federal Register, but 
less than twice the Nationwide Significant Risk Threshold and there 
have been no relevant collisions at any public highway-rail grade 
crossing within the quiet zone since April 27, 2000 or
    (iv) The Quiet Zone Risk Index 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, if the Pre-Rule Partial 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:
    (i) The Pre-Rule Partial Quiet Zone has at every public highway-
rail grade crossing within the quiet zone one or more SSMs identified 
in appendix A of this part; or
    (ii) The Quiet Zone Risk Index is at, or below, the Nationwide 
Significant Risk Threshold, as last published by FRA in the Federal 
Register; or
    (iii) The Quiet Zone Risk Index is above the Nationwide Significant 
Risk Threshold, as last published by FRA in the Federal Register, but 
less than twice the Nationwide Significant Risk Threshold and there 
have been no relevant collisions at any public highway-rail grade 
crossing within the quiet zone since April 27, 2000. 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 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 
until June 24, 2008, if a Notice of Quiet Zone Continuation is provided 
in accordance with Sec.  222.43 of this part.
    (2)(i) Existing restrictions on the routine sounding of the 
locomotive horn may remain in place until June 24, 2010, if:
    (A) Notice of Intent is mailed, in accordance with Sec.  222.43 of 
this part, by February 24, 2008; and
    (B) A detailed plan for quiet zone improvements is filed with the 
Associate Administrator by June 24, 2008. The detailed plan shall 
include a detailed explanation of, and timetable for, the safety 
improvements that will be implemented at each public, private and 
pedestrian grade crossing located within the Pre-Rule Quiet Zone or 
Pre-Rule Partial Quiet Zone which are necessary to comply with 
Sec. Sec.  222.25, 222.27, 222.35 and 222.39 of this part.
    (ii) 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.
    (3) Locomotive horn restrictions may continue for an additional 
three years beyond June 24, 2010, 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 as quiet zones 
under this part; and
    (ii) Prior to June 24, 2009, either safety 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 Pre-Rule Quiet Zones or Pre-Rule Partial Quiet Zones 
elsewhere within the State.
    (4) A public authority may establish a Pre-Rule Quiet Zone or Pre-
Rule Partial Quiet Zone upon compliance with:
    (A) The Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone 
requirements contained within Sec. Sec.  222.25, 222.27, and 222.35 of 
this part;
    (B) The quiet zone standards set forth in Sec.  222.39 of this 
part; and
    (C) All applicable notification and filing requirements contained 
within this paragraph (c) and Sec.  222.43 of this part.
    (d) Pre-Rule Partial Quiet Zones that will be converted to 24-hour 
New Quiet Zones. A Pre-Rule Partial Quiet Zone

[[Page 47642]]

may be converted into a 24-hour New Quiet Zone, if:
    (1) The quiet zone is brought into compliance with the New Quiet 
Zone requirements set forth in Sec. Sec.  222.25, 222.27, and 222.35 of 
this part;
    (2) The quiet zone is brought into compliance with the quiet zone 
standards set forth in Sec.  222.39 of this part; and
    (3) The public authority complies with all applicable notification 
and filing requirements contained within this paragraph (c) and Sec.  
222.43 of this part.


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

    (a)(1) 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, if the public 
authority provides Notice of Quiet Zone Continuation, in accordance 
with Sec.  222.43 of this part.
    (2) A public authority may continue locomotive horn sounding 
restrictions beyond June 24, 2006 by establishing a New Quiet Zone or 
New Partial Quiet Zone. A public authority may establish a New Quiet 
Zone or New Partial Quiet Zone if:
    (i) Notice of Intent is mailed, in accordance with Sec.  222.43 of 
this part;
    (ii) The quiet zone complies with the standards set forth in Sec.  
222.39 of this part;
    (iii) The quiet zone complies with the New Quiet Zone standards set 
forth in Sec. Sec.  222.25, 222.27, and 222.35 of this part;
    (iv) Notice of Quiet Zone Establishment is mailed, in accordance 
with Sec.  222.43 of this part, by June 3, 2006.
    (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 if:
    (1) Notice of Intent is mailed, in accordance with Sec.  222.43 of 
this part;
    (2) The quiet zone complies with the standards set forth in Sec.  
222.39 of this part;
    (3) The quiet zone is brought into compliance with the New Quiet 
Zone requirements set forth in Sec. Sec.  222.25, 222.27, and 222.35 of 
this part; and
    (4) Notice of Quiet Zone Establishment is mailed, in accordance 
with Sec.  222.43 of this part, by June 3, 2006.


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 or 
to implement new SSMs or ASMs within a Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone under Sec.  222.41(c) or (d) 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 highway-rail grade 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 provided 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 highway-rail grade 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) Timing. (i) The Notice of Intent shall be 
mailed at least 60 days before the mailing of the Notice of Quiet Zone 
Establishment, unless the public authority obtains written comments 
and/or ``no-comment'' statements from each railroad operating over 
public highway-rail grade crossings within the 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)(3)(ii) of this section.
    (ii) The Notice of Intent shall be mailed no later than February 
24, 2008 for all Pre-Rule Quiet Zones and Pre-Rule Partial Quiet Zones 
governed by Sec. Sec.  222.41(c) and (d) of this part, in order to 
continue existing locomotive horn sounding restrictions beyond June 24, 
2008 without interruption.
    (2) Required Contents. The Notice of Intent shall include the 
following:
    (i) A list of each public, private, and pedestrian grade crossing 
within the quiet zone, identified by both U.S. DOT National Highway-
Rail Grade Crossing Inventory Number and street or highway name, if 
applicable.
    (ii) A statement of the time period within which restrictions would 
be imposed on the routine sounding of the locomotive horn (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.
    (3) 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)(3)(i) of this section may terminate when the public authority 
obtains from each railroad operating over public highway-rail 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.

[[Page 47643]]

    (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 on which date locomotive horn use at 
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, private, and pedestrian grade 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, private, and pedestrian grade 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 Quiet Zone Establishment. (1) Timing. (i) The Notice 
of Quiet Zone Establishment shall provide the date upon which the quiet 
zone will be established, 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 highway-rail 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)(3)(ii) of this section.
    (2) Required contents. The Notice of Quiet Zone Establishment shall 
include the following:
    (i) A list of each public, private, and pedestrian grade crossing 
within the quiet zone, identified by both U.S. DOT National Highway-
Rail Grade Crossing Inventory Number and street or highway name, if 
applicable.
    (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, private, and pedestrian grade 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, private, and pedestrian grade 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 highway-rail 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)(3)(ii) of this section.
    (ix) 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.
    (x) A list of the names and addresses of each party that shall be 
notified in accordance with paragraph (a)(3) of this section.
    (xi) 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 sounding of 
locomotive horns at crossings?

    On the date specified in a Notice of Quiet Zone Continuation or 
Notice of Quiet Zone Establishment that complies with the requirements 
set forth in Sec.  222.43 of this part, a railroad shall refrain from, 
or cease, routine sounding of the locomotive horn at all public, 
private and pedestrian grade crossings identified in the Notice.


Sec.  222.47  What periodic updates are required?

    (a) Quiet zones with SSMs at each public crossing. This paragraph

[[Page 47644]]

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 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 
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)(3) 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 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)(3) 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 
grade crossing within the quiet zone.


Sec.  222.49  Who may file Grade Crossing Inventory Forms?

    (a) Grade Crossing Inventory Forms required to be filed with the 
Associate Administrator in accordance with Sec. Sec.  222.39, 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.

[[Page 47645]]

    (iii) If the Quiet Zone Risk Index as last calculated by FRA is at, 
or above, twice the Nationwide Significant Risk Threshold, or if the 
Quiet Zone Risk Index is above the Nationwide Significant Risk 
Threshold, but is lower than twice the Nationwide Significant Risk 
Threshold and a relevant collision occurred at a crossing within the 
quiet zone within the preceding five calendar years, the quiet zone 
will terminate six months after the date of receipt of notification 
from FRA of the Nationwide Significant Risk Threshold level, unless the 
public authority takes the actions specified in paragraph (b)(4) of 
this section.
    (3) Pre-Rule Quiet 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

[[Page 47646]]

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 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. 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

[[Page 47647]]

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 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

[[Page 47648]]

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:
    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. Barric[abreve]des 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 of at least 60 feet (with or 
without presence detection): .92.

    Note: The higher effectiveness rate for four-quadrant gates 
without presence detection does not mean that they are inherently 
safer than four-quadrant gates with presence detection. Four-
quadrant gates with presence detection have been assigned a lower 
effectiveness rate because motorists may learn to delay the lowering 
of the exit gates by driving onto the opposing lane of traffic 
immediately after an opposing car has driven over the grade 
crossing. Since the presence detection will keep the exit gate 
raised, other motorists at the crossing who observe this scenario 
may also be tempted to take advantage of the raised exit gate by 
driving around the lowered entrance gates, thus increasing the 
potential for a crossing collision.
    It should, however, be noted that there are site-specific 
circumstances (such as nearby highway intersections that could cause 
traffic to back up and stop on the grade crossing), under which the 
use of presence detection would be advisable. For this reason, the 
various effectiveness rates assigned to four-quadrant gate systems 
should not be the sole determining factor as to whether presence 
detection would be advisable. A site-specific study should be 
performed to determine the best application for each proposed 
installation. Please refer to paragraphs (f) and (g) for more 
information.

    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. VPD 
should be installed on one or both sides of the crossing and/or in 
the surface between the rails closest to the field. Among the 
factors that should be considered are the presence of intersecting 
roadways near the crossing, the priority that the traffic crossing 
the railroad is given at such intersections, the types of traffic 
control devices at those intersections, and the presence and timing 
of traffic signal preemption.
    h. Highway approaches on one or both sides of the highway-rail 
crossing may be provided with medians or channelization devices 
between the opposing lanes. Medians should be defined by a non-
traversable curb or traversable curb, or by reflectorized 
channelization devices, or by both.
    i. Remote monitoring (in addition to power-out indicators, which 
are required) of the status of these crossing systems is preferable. 
This is especially important in those areas in which qualified 
railroad signal department personnel are not readily available.
    3. Gates With Medians or Channelization Devices: Install medians 
or channelization devices on both highway approaches to a public 
highway-rail grade crossing denying to the highway user the option 
of 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.

[[Page 47649]]

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.
    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

[[Page 47650]]

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 public authority, will be treated as an ASM under this appendix 
B, and not as a SSM under appendix A. After reviewing the estimated 
safety effect of the modified SSM and the proposed quiet zone, FRA 
will approve the proposed quiet zone if FRA finds that the Quiet 
Zone Risk Index will be reduced to a level at or below either the 
Risk Index With Horns or the Nationwide Significant Risk Threshold.
    2. The public authority must provide estimates of effectiveness. 
These estimates may be 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-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,

[[Page 47651]]

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 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. Determine 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.

[[Page 47652]]

    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.
    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

[[Page 47653]]

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 provide a Notice of Intent and then 
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 provide 
a Notice of Quiet Zone Establishment and the quiet zone may be 
implemented. The use of non-engineering ASMs will require continued 
monitoring and analysis throughout the existence of the quiet zone 
to ensure that risk continues to be reduced.
    3. Calculating Risk Reduction--The following should be noted 
when calculating risk reductions in association with the 
establishment of a quiet zone. This information pertains to both New 
Quiet Zones and Pre-Rule Quiet Zones and to the Public Authority 
Designation and Public Authority Application to FRA methods.
    Crossing closures: If any public crossing within the quiet zone 
is proposed to be closed, include that crossing when calculating the 
Risk Index with Horns. 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

[[Page 47654]]

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 must 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 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 U.S. DOT 
Crossing Inventory number and street or highway name. If a crossing 
does not have a U.S. DOT Crossing Inventory 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)) If more than one New Quiet Zone or New 
Partial Quiet Zone will be created within a single political 
jurisdiction, ensure that each New Quiet Zone or New Partial Quiet 
Zone will be separated by at least one public highway-rail grade 
crossing. (Sec.  222.35(a)(1)(iii))
    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.
    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 advance warning sign (in accordance with the MUTCD) 
that advises motorists that train horns are not sounded at the 
crossing, unless the public or private crossing is equipped with a 
wayside horn. (Sec.  222.35(c))
    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

[[Page 47655]]

affected railroads to participate in the diagnostic review. At a 
minimum, each approach to every pedestrian crossing must be equipped 
with a sign that conforms to the MUTCD and advises 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 will have been met. It is 
not necessary for the same SSM to be used at each crossing. However, 
before any improvements are implemented, the public authority must 
provide a Notice of Intent, which will trigger a 60-day comment 
period. During the 60-day comment period, railroads operating within 
the proposed quiet zone and State agencies responsible for grade 
crossing, highway and road safety may submit comments on the 
proposed quiet zone improvements to the public authority. 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 public 
crossing, proceed on to Step 2 and use the risk reduction method.
    2. To begin, calculate the risk index for each public crossing 
within the quiet zone (See appendix D. FRA's web-based Quiet Zone 
Calculator may be used to do this calculation). If flashing lights 
and gates have to be installed at any public crossings, calculate 
the risk indices for such crossings as if lights and gates were 
installed. (Note: Flashing lights and gates must be installed prior 
to initiation of the quiet zone.) If the Inventory record does not 
reflect the actual conditions at the crossing, be sure to use the 
conditions that currently exist when calculating the risk index. 
Note: Private crossings 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 Intent, followed by 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 will qualify for establishment by 
public authority designation. Early in the quiet zone development 
process, a Notice of Intent should be provided by the public 
authority, which will trigger a 60-day comment period. During this 
60-day comment period, railroads operating within the proposed quiet 
zone and State agencies responsible for grade crossing, highway and 
road safety may provide comments on the proposed quiet zone 
improvements described in the Notice of Intent. Once all the 
necessary safety improvements have been implemented, Notice of Quiet 
Zone Establishment must be provided. 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 will qualify for establishment by public 
authority designation. Early in the quiet zone development process, 
a Notice of Intent should be provided by the public authority, which 
will trigger a 60-day comment period. During this 60-day comment 
period, railroads operating within the proposed quiet zone and State 
agencies responsible for grade crossing, highway and road safety may 
provide comments on the proposed quiet zone improvements described 
in the Notice of Intent. Once all the necessary safety improvements 
have been implemented, Notice of Quiet Zone Establishment must be 
provided. 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.

[[Page 47656]]

    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 based upon adjustments from the effectiveness rates provided 
in appendix A or from actual field data derived from the crossing 
sites. The application must 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 will be reduced to a level equal to, or less than, 
either the Nationwide Significant Risk Threshold or the Risk Index 
with Horns, the public authority must provide a Notice of Intent. 
The mailing of the Notice of Intent will trigger a 60-day comment 
period, during which railroads operating within the proposed quiet 
zone and State agencies responsible for grade crossing, highway and 
road safety may provide comments on the proposed quiet zone 
improvements. After reviewing any comments received, 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, private, and 
pedestrian grade crossing.
    b. Detailed information on the safety improvements that are 
proposed to be implemented at public, private and pedestrian grade 
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 address comments submitted by 
affected railroads, the State agency responsible for grade crossing 
safety, and the State agency responsible for highway and road 
safety, including a list of any objections raised by the railroads 
or State agencies.
    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 a level 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 a level 
at, or below, 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. * * *'' (49 U.S.C. 20153(i)) 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. 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

[[Page 47657]]

indices. The difference between the calculated Risk Index with Horns 
and the Quiet Zone Risk Index is the amount of risk that would have 
to be reduced in order to fully compensate for the lack of train 
horns.

                   Table 1.--Risk Index Divisor Values
------------------------------------------------------------------------
                                                   Flashing    Lights  &
                                        Passive     lights       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 do not have to be 
installed on each approach to public, private, and pedestrian grade 
crossings within the quiet zone until June 24, 2008. (Sec. Sec.  
222.27(d) and 222.35(c)) Similarly, STOP signs and crossbucks do not 
have to be installed on each approach to private crossings within 
the quiet zone until June 24, 2008. (Sec.  222.25(c)).

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.
    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. 
(Sec.  222.35(a)(2))
    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). (Sec.  222.35(b)(3))
    5. By June 24, 2008, private crossings must have cross-bucks and 
``STOP'' signs on both approaches to the crossing. (Sec.  222.25(c))
    6. By June 24, 2008, each approach to a public, private, and 
pedestrian crossing must be equipped with an advance warning sign 
that conforms to the MUTCD and advises pedestrians and motorists 
that train horns are not sounded at the crossing. (Sec. Sec.  
222.27(d), 222.35(c))
    7. It will be necessary for the public authority to provide a 
Notice of Quiet Zone Continuation in order to prevent the resumption 
of locomotive horn sounding 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 will not be established by automatic approval, the Notice of 
Quiet Zone Continuation will enable the train horns to be silenced 
until June 24, 2008. (Please refer to Sec.  222.41(c) for more 
information.)

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;
    b. The Quiet Zone Risk Index is equal to, or less than, the 
Nationwide Significant Risk Threshold;
    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 the public authority may provide the Notice of Quiet Zone 
Establishment. 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

[[Page 47658]]

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, 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. However, in order to qualify on this basis, the 
public authority must provide a Notice of Quiet Zone Establishment 
by December 24, 2005. (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)).
    If the Pre-Rule Quiet Zone is not established by automatic 
approval, continuation of the quiet zone may 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 establish a Pre-Rule Quiet Zone using the Public 
Authority Designation method.
    1. The public authority must provide a Notice of Intent 
(Sec. Sec.  222.43(a)(1) and 222.43(b)) to the railroads that 
operate within 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 mailed by February 24, 
2008, in order to continue existing locomotive horn restrictions 
beyond June 24, 2008 without interruption. 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 Notice 
of Intent must be provided, if new SSMs or ASMs will be implemented 
within the quiet zone. 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 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 Intent.
    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 a level equal to, or less than, either the 
Nationwide Significant Risk Threshold or the Risk Index with Horns, 
the quiet zone may be established by 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)).
    7. If the Pre-Rule Quiet Zone will not be established before 
June 24, 2008, the public authority must file a detailed plan for 
quiet zone improvements with the Associate Administrator by June 24, 
2008. By providing a Notice of Intent (see Step 1 above) and a 
detailed plan for quiet zone improvements, existing locomotive horn 
restrictions may continue until June 24, 2010. (If a comprehensive 
State-wide implementation plan and funding commitment are also 
provided and safety improvements are initiated within at least one 
Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone, existing 
locomotive horn restrictions may continue until June 24, 2013.) (See 
Sec.  222.41(c) for more information.)


    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 Notice of Intent 
(Sec. Sec.  222.43(a)(1) and 222.43(b)) to the railroads that 
operate within the proposed quiet zone, the State agency

[[Page 47659]]

responsible for highway and road safety and the State agency 
responsible for grade crossing safety. This notice must be mailed by 
February 24, 2008, in order to continue existing locomotive horn 
restrictions beyond June 24, 2008 without interruption. 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 Notice of Intent must be provided, if new SSMs or 
ASMs will be implemented within the quiet zone. 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 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 based upon adjustments from the benchmark levels provided in 
appendix A or from actual field data derived from the crossing 
sites. The application must 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 will be reduced to a level equal to, or less than, 
either the Nationwide Significant Risk Threshold or the Risk Index 
with Horns, the public authority may make application to FRA for a 
quiet zone under Sec.  222.39(b). FRA will review the application to 
determine the appropriateness of the proposed effectiveness rates, 
and whether or not the proposed application demonstrates that the 
quiet zone meets the requirements of the rule. When submitting the 
application to FRA for approval, it should be remembered that the 
application must contain the following (Sec.  222.39(b)(1)):
    a. Sufficient detail concerning the present safety measures at 
all crossings within the proposed quiet zone to enable the Associate 
Administrator to evaluate their effectiveness. This includes current 
and accurate crossing Inventory forms for each public, private and 
pedestrian grade crossing.
    b. Detailed information on the safety improvements, including 
upgraded warning devices that are proposed to be implemented at 
public, private, and pedestrian grade 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 address comments submitted by 
affected railroads, the State agency responsible for grade crossing 
safety, and the State agency responsible for highway and road 
safety, including a list of any objections raised by the railroads 
or State agencies.
    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 a level at, 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 or implementing new SSMs or ASMs within 
a Pre-Rule Quiet Zone. The Notice of Intent provides an opportunity 
for the railroad and the State agencies to give input to the public 
authority during the quiet zone development process. The State 
agencies and railroads will be given sixty days to provide 
information and comments to the public agency.
    The Notice of Intent must be provided under the following 
circumstances:
    1. A New Quiet Zone or New Partial Quiet Zone is under 
consideration.
    2. An Intermediate Quiet Zone or Intermediate Partial Quiet Zone 
that will be converted into a New Quiet Zone or New

[[Page 47660]]

Partial Quiet Zone. Please note that Notice of Intent must be mailed 
by April 3, 2006, in order prevent the resumption of locomotive horn 
sounding on June 24, 2006.
    3. The implementation of SSMs or ASMs within a Pre-Rule Quiet 
Zone or Pre-Rule Partial Quiet Zone is under consideration. Please 
note that Notice of Intent must be mailed by February 24, 2008, in 
order to continue existing restrictions on locomotive horn sounding 
beyond June 24, 2008 without interruption. 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 Intent.

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; and
    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 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.

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

    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 
Notice of Quiet Zone Establishment must be provided by June 3, 2006, 
in order to prevent the resumption of locomotive horn sounding on 
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; and
    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

[[Page 47661]]

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. 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.
    9. A list of the names and addresses of each party that is 
receiving a copy of the Notice of Quiet Establishment.
    10. 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.

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

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


[[Page 47662]]

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

Example 2--Pre-Rule Quiet Zone

    (a) 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                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns      index w/ horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................          35,000       20,983.21               0          35,000
X...............................................          42,000       25,179.86               0          42,000
Y...............................................          33,500       20,083.93               0          33,500
Z...............................................          15,000        8,576.33               0          15,000
                                                            RIWH  ..............  ..............            QZRI
                                                       18,705.83  ..............  ..............          31,375
----------------------------------------------------------------------------------------------------------------

    (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.

[[Page 47663]]



                                                     Table 6
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns      index w/ horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................          35,000       20,983.21               0          35,000
X...............................................          42,000       25,179.86               0          42,000
Y...............................................          33,500       20,083.93               0          33,500
Z...............................................           7,500        8,576.33               0           7,500
                                                            RIWH  ..............  ..............            QZRI
                                                       18,705.83  ..............  ..............          29,500
----------------------------------------------------------------------------------------------------------------

    (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 quality as quiet zone under the rule.

                                                     Table 7
----------------------------------------------------------------------------------------------------------------
                                                   Crossing risk                                   Crossing risk
                     Street                          index w/o     Crossing risk      SSM EFF        index w/o
                                                       horns      index w/ horns                  horns plus SSM
----------------------------------------------------------------------------------------------------------------
W...............................................       35,000          20,983.21            0             35,000
X...............................................       42,000          25,179.86            0.82           7,560
Y...............................................       33,500          20,083.93            0             33,500
Z...............................................        7,500           8,576.33            0              7,500
                                                         RIWH     ..............  ..............            QZRI
                                                       18,705.83  ..............  ..............          20,890
----------------------------------------------------------------------------------------------------------------

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

Appendix D to Part 222--Determining Risk Levels

Introduction

    The Nationwide Significant Risk Threshold, the Crossing Corridor 
Risk Index, and the Quiet Zone Risk Index are all measures of 
collision risk at public highway-rail grade crossings that are 
weighted by the severity of the associated casualties. Each crossing 
can be assigned a risk index.
    (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[verbar]C))
    3. the probability of a casualty collision given that a 
collision occurs (P(CC[verbar]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

[[Page 47664]]

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[verbar]C). Similarly, the casualty formula calculates the 
probability of a casualty collision given that a collision occurs 
P(CC[verbar]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.\2\
---------------------------------------------------------------------------

    \2\ 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''). 
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(FC[verbar]C)] 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; 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.

[[Page 47665]]

    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 collision 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 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 grade                $5,000          $7,500
 crossing...............................
    Failure to sound horn in proper                1,000           3,000
     pattern............................
(b) Failure to sound horn at least 15              5,000           7,500
 seconds and less than \1/4\-mile before
 crossing...............................
    Sounding the locomotive horn more              1,000           2,000
     than 25 seconds before crossing....
    Sounding the locomotive horn more              1,000           2,000
     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

[[Page 47666]]

 
Sec.   222.45 Routine sounding of the              5,000           7,500
 locomotive horn at quiet zone crossing
Sec.   222.49 (b) Failure to provide               2,500           5,000
 Grade Crossing Inventory Form
 information
Sec.   222.59 (d) Routine sounding of              5,000           7,500
 the 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, 21301-20302, 21304; 49 CFR 149(c), (m).


0
3. Section 229.5 is amended by adding the following definitions in 
alphabetical order:


Sec.  229.5  Definitions.

* * * * *
    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 section 229.129 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  Locomotive horn.

    (a) Each lead locomotive shall be equipped with a locomotive horn 
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 locomotive horn 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 September 18, 2006 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 September 18, 2006 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 September 18, 2006 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 remanufactured locomotive, as determined pursuant to Sec.  
229.5 of this part, shall be tested in accordance with this section to 
ensure that the horn installed on such locomotive is in compliance with 
paragraph (a).
    (4)(i) Except as provided in paragraph (b)(4)(ii) of this section, 
each locomotive equipped with a replacement locomotive horn shall be 
tested, in accordance with paragraph (c) of this section, before the 
next two annual tests required by Sec.  229.27 of this part are 
completed.
    (ii) Locomotives that have already been tested individually or 
through acceptance sampling, in accordance with paragraphs (b)(1), 
(b)(2), or (b)(3) of this section, shall not be required to undergo 
sound level testing when equipped with a replacement locomotive horn, 
provided the replacement locomotive horn is of the same model as the 
locomotive horn that was replaced and the mounting location and type of 
mounting are the same.
    (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. 
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,

[[Page 47667]]

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 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.


0
5. The entry for Sec.  229.129 ``Audible warning device'' in appendix B 
to Part 229 is revised to read as follows:

Appendix B to Part 229--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
229.129 Locomotive horn:
(a) Prescribed sound levels.............           2,500           5,000
    Arrangement of horn.................           2,500           5,000
(b) Failure to perform sound level test.           2,500           5,000
(c) Sound level test improperly                    2,500           5,000
 performed..............................
    Record of sound level test                     1,000           4,000
     improperly executed, or not
     retained...........................
 
                              * * * * * * *
------------------------------------------------------------------------


    Issued in Washington, DC on August 7, 2006.
Joseph H. Boardman,
Administrator.
[FR Doc. 06-6912 Filed 8-16-06; 8:45 am]
BILLING CODE 4910-06-P