[Federal Register: December 18, 2003 (Volume 68, Number 243)]
[Rules and Regulations]
[Page 70585-70687]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de03-12]
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Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 222 and 229
Use of Locomotive Horns at Highway-Rail Grade Crossings; Interim Final
Rule
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 222 and 229
[Docket No. FRA-1999-6439, Notice No. 8]
RIN 2130-AA71
Use of Locomotive Horns at Highway-Rail Grade Crossings
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule.
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SUMMARY: FRA is issuing rules to require that a locomotive horn be
sounded while a train is approaching and entering a public highway-rail
crossing. The rules also provide for an exception to the above
requirement in circumstances in which there is not a significant risk
of loss of life or serious personal injury, use of the locomotive horn
is impractical, or safety measures fully compensate for the absence of
the warning provided by the horn. This rule is required by law.
DATES: The effective date is December 18, 2004.
Written Comments: Comments must be received by February 17, 2004.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
Public Hearing: FRA intends to hold a public hearing in Washington,
DC to allow interested parties the opportunity for oral comment on
issues addressed in the interim final rule. The date and specific
location of the hearing will be set forth in a forthcoming notice that
will be published in the Federal Register and posted on FRA's Web site
(http://www.fra.dot.gov).
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FRA-1999-6439 by any of the following methods:
[sbull] Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
[sbull] Fax: 1-202-493-2251.
[sbull] Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
[sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, S.W., Washington, DC between 9 a.m. and 5
p.m., Monday through Friday, except Federal Holidays.
[sbull] Federal e-Rulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket name and docket number or Regulatory Identification Number (RIN)
for this rulemaking. For detailed instructions on submitting comments
and additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to http://dms.dot.gov, including any personal information provided.
Please see the Privacy Act heading under Regulatory Notices.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120
Vermont Avenue, NW.,Washington, DC 20590 (telephone: 202-493-6299); or
Kathryn Shelton or Mark Tessler, Office of Chief Counsel, FRA, 1120
Vermont Avenue, NW., Washington, DC 20590 (telephone: 202-493-6038).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
1. Background
2. Who is at Risk in a Grade Crossing Collision
3. FRA'S Study of Florida's Whistle Ban
4. FRA'S Nationwide Study of Whistle Bans
5. Statutory Mandate
6. Issuance of Interim Final Rule
7. Effective Date of This Rule
8. Rule Summary
9. Overview of the Interim Final Rule; Principles, Strategies and
Major Outcomes
A. Usefulness of the Train Horn
B. Incompatibility of Horn Noise with Community Needs
C. Crafting Exceptions to the Use of the Train Horn
D. Alternatives Considered
E. Implementing the Interim Final Rule
F. Existing Bans and New Quiet Zones
G. Requirements for the Train Horn and its Use
H. Post-NPRM Ban Impact Studies
10. Funding
11. Liability
12. Wayside Horn
13. Horn Sound Level and Directionality
14. Chicago Regional Issues
A. Introduction
B. Legislative and Administrative Actions in Illinois
C. Actual Practice Sounding Train Horns in the Chicago Region
D. Current Chicago Region Whistle Ban Status
E. Community Reaction to the Proposed Rule
F. Methodology/inventory Data
G. ``Chicago Anomaly''
A. Safety Trend Lines
I. Accident-free and Low Risk Jurisdictions
J. Impracticality
K. Costs
L. Time for Implementation
15. E.O. 15 Status
16. Section-by-Section Analysis
17. Regulatory Impact
A. Executive Order 12866 and Dot Regulatory Policies and
Procedures
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Environmental Impact
E. Federalism Implications
F. Compliance with the Unfunded Mandates Reform Act of 1995
G. Energy Impact
18. Privacy Act Statement
19. List of Subjects
1. Background
On January 13, 2000, FRA published a Notice of Proposed Rulemaking
(NPRM) in the Federal Register (65 FR 2230) addressing the use of
locomotive horns at public highway-rail grade crossings. This
rulemaking was mandated by Public Law 103-440, which added section
20153 to title 49 of the United States Code. The statute requires the
Secretary of Transportation (whose authority in this area has been
delegated to the Federal Railroad Administrator (49 CFR 1.49), to issue
regulations to require the use of locomotive horns at public grade
crossings, but gives the agency the authority to make reasonable
exceptions.
In accordance with the Administrative Procedure Act (5 U.S.C. 553),
FRA solicited written comments from the public. By the close of the
public comment period on May 26, 2000, almost 3,000 comments had been
filed with the agency regarding this rule and its associated Draft
Environmental Impact Statement. As is FRA's practice, FRA held the
public docket open for late filed comments and considered them to the
extent possible.
Because the NPRM was the subject of substantial and wide-ranging
public interest, FRA took unprecedented steps to ensure that the views
of the affected public would be heard and considered in development of
this interim final rule. FRA conducted a series of public hearings
throughout the United States in which local citizens, local and State
officials, and members of the U.S. House of Representatives and Senate
testified. Twelve hearings were held (Washington, DC; Fort Lauderdale,
Florida; Pendleton, Oregon; San Bernadino, California; Chicago,
Illinois (four hearings in the greater Chicago
[[Page 70587]]
area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; and
Madison, Wisconsin) at which more than 350 people testified. The extent
of public comment and testimony throughout the country is evidence of
the wide-ranging public interest in this rulemaking.
Because the vast majority of people reading this document will not
have the benefit of having the NPRM at hand, a portion of the
``Background'' section which appeared in the proposed rule is being
repeated here (with updated data, where appropriate) in order to
provide the necessary perspective in which to view Congress' mandate
and the resulting rule.
Approximately 4,000 times per year, a train and a highway vehicle
collide at one of this country's 251,000 public and private highway-
rail grade crossings. Of those crossings, more than 153,000 are public
at-grade crossings--those crossings in which a public road crosses
railroad tracks at grade. During the years 1997 through 2001, there
were 17,601 grade crossing collisions in the United States. These
collisions are one of the greatest causes of death associated with
railroading, resulting in more than 400 deaths each year. For example,
in the 1997-2001 period, 2,140 people died in these collisions. Another
6,615 people were injured. Approximately 50 percent of collisions at
highway-rail intersections occur at those intersections equipped with
active warning devices such as bells, flashing lights, or gates
(approximately 62,000 crossings).
Compared to a collision between two highway vehicles, a collision
with a train is forty times more likely to result in a fatality. The
average freight locomotive weighs between 140 and 200 tons, compared to
the average car weight of one to two tons. Many freight trains weigh in
excess of ten thousand tons. Any highway vehicle, even a large truck,
would be crushed when struck by a moving train. The laws of physics
compound the likelihood that a motor vehicle will be crushed in a
collision with a moving train. The train's weight, when combined with
the likelihood that the train will not be able to stop to avoid a
collision, results in the potential for severe injury or death in
virtually every collision (it takes a one-hundred car train traveling
30 miles per hour approximately half a mile to stop--at 50 miles an
hour that train's stopping distance increases to one and a third
miles).
FRA is responsible for ensuring that America's railroads are safe
for both railroad employees and the public. FRA shares with the public
the responsibility to confront the compelling facts surrounding grade
crossing collisions.
In 1990, as part of FRA's crossing safety program, the agency
studied the impact of train whistle bans (i.e., State or local laws
prohibiting the use of train horns or whistles at crossings) on safety
in Florida. (In this document the terms ``whistle'' and ``horn'' are
used interchangeably to refer to the air powered locomotive audible
warning device required to be installed on locomotives by 49 CFR
229.129, and to steam whistles required to be installed on steam
locomotives by 49 CFR 230.121. These terms do not refer to a locomotive
bell, which has value as a warning to pedestrians but which is not
designed to provide a warning over long distances.) FRA had previously
recognized the locomotive horn's contribution to rail safety by
requiring that lead locomotives be equipped with an audible warning
device, 49 CFR 229.129, and exempting the use of whistles from Federal
noise emission standards ``when operated for the purpose of safety.''
49 CFR 210.3(b)(3). The Florida study, which is discussed below (and
which has been filed in the docket), documented how failing to use
locomotive horns can significantly increase the number of collisions.
2. Who Is at Risk in a Grade Crossing Collision?
Many people, including a number of commenters to the NPRM, have
expressed the view that highway drivers who disobey the law and try to
beat a train through a crossing should not be protected at the expense
of the peace and quiet of communities that parallel railroad tracks.
FRA agrees that drivers who unlawfully enter grade crossings should be
punished in accordance with appropriate traffic laws. However, strong
public policy reasons argue in favor of reasonable measures to protect
all who are put at risk at grade crossings, even drivers who disregard
warning devices.
Overlooked in this debate are the many innocent victims of crossing
collisions, including automobile and railroad passengers and railroad
crews who, despite performing their duties correctly, are usually
unable to avoid the collisions. Nationally, from 1994 to 1998, eight
railroad crewmembers died in collisions at highway-rail crossings, and
570 crewmembers were injured. A number of locomotive engineers have
commented that they or their colleagues have had to deal with the
trauma associated with helplessly watching people being killed beneath
their trains. Two hundred railroad passengers were also injured and two
died. In Bourbonnais, Illinois, in 1999, eleven passengers died in
their sleeper car following a collision with a truck at a highway-rail
crossing. In addition, since approximately one-half of all collisions
occur at grade crossings that are not fully equipped with warning
devices, some of the drivers involved in these collisions may have been
unaware of the approaching train.
Property owners living near railroad rights-of-way can also be at
risk. For example, on December 1, 1992, in Hiebert, Alabama, a freight
train collided with a lumber truck. Three locomotives and nine rail
cars were derailed, releasing 10,000 gallons of sulfuric acid into a
nearby water supply. Residents living near the derailment site had to
be evacuated because of the chemical spill. Even where the locomotive
consist is not derailed in the initial collision with the highway
vehicle, application of the train's emergency brake can result in
derailment and harm to persons and property along the right-of-way.
Law-abiding motorists can also be endangered in crossing
collisions. On March 17, 1993, an Amtrak train collided with a tanker
truck in Fort Lauderdale, Florida. Five people died when 8,500 gallons
of burning fuel from the tanker truck engulfed cars waiting behind the
crossing gates.
Highway passengers can also be victims. On December 14, 1995, in
Ponchatoula, Louisiana, five people were killed when their truck was
hit by an Amtrak train. Among the dead were three children who were
passengers in the truck.
In making a decision on the use of locomotive horns, all of the
competing interests must be reasonably considered. Those whose
interests will be affected by this rule include those who may be
disturbed by the sounding of locomotive horns and all of those who may
suffer in the event of a collision: pedestrians using the crossing, the
motor vehicle driver and passengers, those in adjacent vehicles, train
crews, and those living or working nearby.
3. FRA's Study of the Florida Train Whistle Ban
Effective July 1, 1984, Florida authorized local governments to ban
the nighttime use of whistles by intrastate trains approaching highway-
rail grade crossings equipped with flashing lights, bells, crossing
gates, and highway signs that warned motorists that train whistles
would not be sounded at night. Fla. Stat. section 351.03(4)(a) (1984).
After enactment of this Florida law, many local jurisdictions passed
whistle ban ordinances.
[[Page 70588]]
In August 1990, FRA issued a study of the effect of the Florida
train whistle ban up to the end of 1989. The study compared the number
of collisions at crossings subject to bans with four control groups.
FRA was trying to determine the impact of the whistle bans and to
eliminate other possible causes for any increase or decrease in
collisions.
Using the first control group, FRA compared collision records for
time periods before and during the bans. FRA found there were almost
three times more collisions after the whistle bans were established, a
195 percent increase. If collisions continued to occur at the same rate
as before the bans began taking effect, it was estimated that 49 post-
ban collisions would have been expected. However, 115 post-ban
collisions occurred, leaving 66 crossing collisions statistically
unexplained. Nineteen people died and 59 people were injured in the 115
crossing collisions. Proportionally, 11 of the fatalities and 34 of the
injuries could be attributed to the 66 unexplained collisions.
In the second control group, FRA found that the daytime collision
rates remained virtually unchanged for the same highway-rail crossings
where the whistle bans were in effect during nighttime hours.
The third control group showed that nighttime collisions increased
only 23 percent along the same rail line at crossings with no whistle
ban.
Finally, FRA compared the 1984 through 1989 accident record of the
Florida East Coast Railway Company (FEC), which, because it was
considered an ``intrastate'' carrier under Florida law, was required to
comply with local whistle bans, with that of the parallel rail line of
interstate carrier, CSX Transportation Company (CSX), which was not
subject to the whistle ban law. By December 31, 1989, 511 of the FEC's
600 gate-equipped crossings were affected by whistle bans. Collision
data from the same period were available for 224 similarly equipped CSX
crossings in the six counties in which both railroads operate. As noted
above, FRA found that FEC's nighttime collision rate increased 195
percent after whistle bans were imposed. At similarly equipped CSX
crossings, the number of collisions increased 67 percent.
On July 26, 1991, FRA issued an emergency order to end whistle bans
in Florida. Notice of that emergency order (Emergency Order No. 15) was
published in the Federal Register at 56 FR 36190. FRA is authorized to
issue emergency orders where an unsafe condition or practice creates
``an emergency situation involving a hazard of death or injury.'' 49
U.S.C. 20104. FRA acted after updating its study with 1990 and initial
1991 collision records and finding that another twelve people had died
and thirteen were injured in nighttime collisions at whistle ban
crossings. During this time, a smaller study, conducted by the Public
Utility Commission of Oregon, corroborated FRA's findings and led to
the cessation of State efforts to initiate a whistle ban in Oregon.
FRA's emergency order required that trains operated by the FEC
sound their whistles when approaching public highway-rail grade
crossings. This order preempted State and local laws that permitted the
nighttime ban on the use of locomotive horns.
Twenty communities in Florida petitioned for a review of the
emergency order. During this review, FRA studied other potential causes
for the collision increase. FRA's closer look at the issue strengthened
the conclusion that whistle bans were the likely cause of the increase.
For example, FRA subtracted collisions that whistles probably would
not have prevented from the collision totals. Thirty-five collisions
where the motor vehicle was stopped or stalled on the crossing were
removed from the totals. Eighteen of these collisions occurred before
and 17 were recorded during the bans. When these figures were excluded,
the number of collisions in the pre-ban period changed from 39 to 21,
and the number of collisions in the post-ban period decreased from 115
to 98. Collisions which whistles could have prevented, therefore,
totaled 98 collisions as compared to 21 collisions in the pre-ban
period; this represents a 367 percent increase, compared to the 195
percent increase initially calculated.
Similarly, if collisions where the motor vehicle hit the side of
the train were also excluded (nine in the pre-ban period and 26 in the
post-ban period) as being unlikely to have been prevented by train
whistles, the pre-ban collision count became 12 versus 72 in the
whistle ban period. The increase in collisions caused by the lack of
whistles then became 500 percent.
FRA's data, however, showed that, before the ban, highway vehicles
on average, struck the sides of trains at the 37th train car behind the
locomotive. After the ban took effect, 26 vehicles struck trains, and
on average, struck the twelfth train car behind the locomotive. This
indicated that motor vehicles are more cautious at crossings if a
locomotive horn is sounding nearby. Before the whistle bans, highway
vehicles tended to hit the side of the train after the whistling
locomotive had long passed through the crossing. After the ban took
effect, highway traffic hit the train much closer to the now silent
locomotive--at the 12th car. The number of motor vehicles hitting the
sides of trains also increased nearly threefold after the ban was
established.
FRA also considered collisions involving double-tracked grade
crossings where two trains might approach at the same time. Since a
driver's view of the second train might be blocked, hearing the second
train's whistle could be the only warning available to an impatient
driver. FRA's Florida study found the number of second train collisions
for the pre-ban period was zero, while four were reported for the
period the bans were in effect.
Several Florida communities asked whether train speed increased
collisions. FRA research has well established, as discussed below, that
train speed is not a factor in determining the likelihood of a traffic
collision at highway-rail crossings equipped with active warning
devices that include gates and flashing lights. Speed, however, is a
factor in determining the severity of a collision.
FRA also considered population growth in Florida, but found it was
not a factor. Daytime collision rates were not increasing at the very
same crossings that had whistle bans at night. If population was a
factor, then the daytime numbers should have increased dramatically as
well. FRA also reviewed the number of fatal highway collisions, and
registered drivers and motor vehicles and found no increases that
either paralleled or explained the rise in nighttime crossing
collisions.
In the first two years after July 1991, when FRA issued its
emergency order prohibiting whistle bans in Florida, collision rates
dropped dramatically to pre-ban levels. In the two years before the
emergency order, there were 51 nighttime collisions. In the two years
after, there were only 16. Daytime collisions dropped slightly from 34
collisions in the two years before the emergency order, to 31 in the
following two years.
4. FRA's Nationwide Study of Train Whistle Bans
FRA's Florida study raised the concern that whistle bans could be
increasing collisions in other locations. Given the wide difference
between grade crossing conditions from one community to another, FRA
did not assume that the Florida results would be true at every whistle
ban crossing. FRA began a nationwide effort to locate grade
[[Page 70589]]
crossings subject to whistle bans and study collision information for
those crossings. The Association of American Railroads (AAR) joined the
FRA in that effort.
The AAR surveyed the rail industry and found 2,122 public grade
crossings subject to whistle bans for some period of time between
January 1988 and June 30, 1994. This total did not include the 511
public crossings that were subject to whistle bans in Florida that FRA
had already studied.\1\ The study also did not include crossings on
small, short line railroads, and certain regional railroads which did
not report to the AAR. The nationwide survey found whistle bans in 27
States that affected 17 railroads. FRA studied collisions occurring
between January 1988, and June 30, 1994.
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\1\ The FEC crossings comprised virtually all of the whistle ban
crossings in Florida. For simplicity, FRA elected to remove all
Florida crossings from the national study. Since it became apparent
from this initial national review that the FEC experience
represented the high end of ban impacts, and since those impacts had
been mitigated by E.O. 15 with respect to the later study period,
FRA continued to remove both Florida ban crossings and Florida train
horn crossings from all subsequent studies. Florida public crossings
represent 2.6 percent of public crossings, so this omission should
not materially affect the national analysis.
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Two thousand and four of the crossings were subject to 24-hour
whistle bans. Another 118 grade crossings were subject to nighttime-
only bans. The States with the largest number of whistle ban crossings
were Illinois, Wisconsin, Kentucky, New York, and Minnesota. More than
half of the crossings were on three railroads: CSX, Consolidated Rail
Corporation (Conrail), and Soo Line. A report covering the nationwide
study was issued in April 1995. FRA found that whistle ban crossings
averaged 84 percent more collisions than similar crossings with no
bans. There were 948 collisions at whistle ban crossings during the
period studied. Sixty-two people died in those collisions and 308 were
injured. Collisions occurred on every railroad with crossings subject
to whistle bans, and in 25 of the 27 States where bans were in effect.
Since the 1995 study, FRA continued to analyze relevant data. Over
the period of 1992-1996, there were 793 collisions at 2,366 crossings
subject to whistle bans. These collisions resulted in the fatalities
and injuries displayed in Table 1, as well as more than $2 million in
motor vehicle damages.
Table 1.--Collision Injuries and Fatalities by Type of Person Involved
------------------------------------------------------------------------
Type of person involved Injuries Fatalities
------------------------------------------------------------------------
Motorist.......................................... 258 56
Pedestrian........................................ 17 41
Railroad employee................................. 56 0
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The types of collisions which took place at whistle ban crossings
and the resulting casualties are shown in Table 2 (casualty figures in
this table exclude casualties to railroad employees). It is interesting
to note that the mean train speed (train speed is positively correlated
with fatalities) varies by type of collision. Of the injuries and
fatalities shown in Table 2, 11 injuries and 5 deaths occurred when the
vehicle was hit by a second train.
Table 2.--Type of Collision
------------------------------------------------------------------------
Mean
Type of collision Injuries Fatalities train
speed
------------------------------------------------------------------------
Motor vehicle struck train................ 51 8 15.5
Train struck motor vehicle................ 224 89 25.4
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The driver was killed in the collision in 42 instances (5.3 percent
of collisions), the remaining 55 fatalities were either passengers or
pedestrians. The driver passed standing vehicles to go over the
crossing in 37 of the collisions (4.7 percent). The driver was more
likely to be killed when moving over the crossing at the time of the
collision (35 of the driver fatalities), rather than when the vehicle
was stopped or stalled at the crossing, and in most of the collisions
(69.9 percent) at whistle-ban crossings the driver was moving over the
crossing. Additionally, in almost every collision (97 percent), a
warning device (either active or passive) was located on the vehicle's
side of the crossing. This supports the theory that the warning given
by the train horn could deter the motorist from entering the crossing.
Collisions which took place when the motorist was moving over the
crossing were more likely to be fatal (72 percent of the fatalities).
This type of collision was also more likely to result in injury with
209 of the 258 motorist injuries occurring under these circumstances.
These are the types of collisions the proposed rule is designed to
prevent. Motorists that fail to notice or heed the warning devices in
place at a crossing may be deterred by the sound of a train horn. The
motorist is also given information by the horn about the proximity,
speed, and direction of the train.
FRA's study indicated that the installation of automatic traffic
gates at crossings with whistle bans was more than twice the national
average. Forty percent of the whistle ban crossings had gates compared
to 17 percent nationally.
FRA found 831 crossings where whistle sounding had at one time been
in effect, but where the practice had changed during the January 1988
through June 1994 study period. In 87 percent of the cases, bans were
no longer in effect. A ``before-and-after'' analysis comparing
collision rates showed an average of 38 percent fewer collisions when
whistles were sounded indicating that resuming use of the whistles had
a .38 effectiveness rate in reducing collisions. This finding
paralleled the Florida experience.
FRA also rated whistle ban grade crossings according to an
``Accident Prediction Formula.'' The formula predicts the statistical
likelihood of having a collision at a given highway-rail grade
crossing. The physical characteristics of each crossing were considered
in the formula, including the number of tracks and highway lanes, types
of warning devices, urban or rural location, and whether the roadway
was paved. Also considered were operational aspects, such as, the
number of highway vehicles, and the number, type, time of day, and
maximum speed of trains using the crossing. The formula was developed
using data from thousands of collisions spanning many years. FRA then
ranked the 167,000 public crossings in the national inventory at that
time in an identical manner. Both the whistle ban crossings and the
national inventory crossings were then placed into one of ten groups
ranging from low-risk to high-risk.
FRA compared the number of collisions occurring within each of the
ten groups of crossings, over a five year period from 1989 through
1993, and found that for nine out of the ten risk groups, the whistle
ban crossings had significantly higher collision rates than the
crossings with no whistle bans. On average, the risk of a collision was
found to be 84 percent greater at crossings where train horns were
silenced. Another way to interpret this difference would be to say that
locomotive horns had a .46 effectiveness rate in reducing the rate of
collisions.
FRA was concerned about the higher risk disclosed by the nationwide
study. From its vantage point, FRA was able to see the elevated risk
associated with whistle bans, which might not be apparent to local
communities. While
[[Page 70590]]
crossing collisions are infrequent events at individual crossings, the
nationwide study, and the experience in Florida, showed they were much
less infrequent when train horns were not sounded.
FRA conducted an outreach program in order to promptly share this
information with all communities where bans were in effect. In addition
to issuing press releases and sending informational letters to various
parties, FRA met with community officials and participated in town
meetings. Along with the study's findings, information about the
upcoming rule requiring the sounding of train horns was presented,
including provisions for Supplemental Safety Measures (SSMs) that could
be implemented by communities to compensate for silenced train horns
and allow bans to remain in effect.
From the outreach effort, FRA gained a clearer understanding of
local concerns and issues. Many of those concerns were expressed in
person and others were submitted in writing to FRA's train horn docket.
Another result of the outreach effort was the identification by
communities and State and local governmental agencies of 664 additional
crossings that were purportedly subject to whistle bans, but not
included in the nationwide study. About 95 percent of these were
located in the city and suburbs of Chicago, Illinois. Many carry a high
volume of commuter rail traffic.
Prior to issuing the NPRM, FRA updated its analysis of safety at
whistle ban crossings, expanding it to include data for all the Chicago
Region crossings as well as for a few other newly identified locations.
FRA also refined its procedure by conducting separate analyses for
three different categories of warning devices in place at the crossings
(e.g., automatic gates with flashing lights; flashing lights or other
active devices without gates; and passive devices only, such as
``crossbucks'' or other signs). By separating crossings according to
the different categories of warning devices installed, FRA was better
able to identify the level at which locomotive horns increase safety at
crossings with different types of warning devices and thus the level at
which substitutes for the horn must be effective in order to fully
compensate for the lack of a horn at those crossings. In addition, FRA
excluded from the analysis certain collisions where the sounding of the
train horn would not have been a deterrent to the collisions. These
included cases where there was no driver in the vehicle and collisions
where the vehicle struck the side of the train beyond the fourth
locomotive unit (or railcar). FRA also excluded events where
pedestrians were struck. Pedestrians, compared to vehicle operators,
have a greater opportunity to see and recognize an approaching train
because they can look both ways from the edge of the crossing, closer
than the motorist sitting at least a car hood length or more back from
the edge. They can also stop or reverse their direction more quickly
than a motorist if they have second thoughts about crossing safely.
Data for the five-year time period from 1992 through 1996 were used
for the updated analysis in place of the older data of the 1995
Nationwide Study. For the updated analysis, the collision rate for
whistle ban crossings in each device category was compared to similar
crossings in the national inventory using the ten-range risk level
method used in the original study.
The analysis showed that an average of 62 percent more collisions
occurred at whistle ban crossings equipped with automatic gates and
flashing lights than at similarly equipped crossings across the nation
without bans. For purposes of the NPRM, FRA used this value as the
increased risk associated with whistle bans instead of the 84 percent
cited in the Nationwide Study of Train Whistle Bans released in April
1995. FRA determined that 62 percent was appropriate because it
represents the elevated risk associated with crossings with automatic
gates and flashing lights, which is the only category of crossings that
will be eligible under this rule for new ``quiet zones'' (except for
certain crossings where train speeds do not exceed 15 miles per hour).
The updated analysis also indicated that whistle ban crossings
without gates, but equipped with flashing light signals and/or other
types of active warning devices, on average, experienced 119 percent
more collisions than similarly equipped crossings without whistle bans.
This finding made clear that the train horn was highly effective in
deterring collisions at non-gated crossings equipped only with flashing
lights. The only exception to this finding was in the Chicago Region
where collisions appeared from available data to be 16 percent less
frequent. This will be discussed in greater detail below.
In comparing the collision differences at crossings with gates and
those without gates, FRA found that about 55 percent of the collisions
at crossings with gates occurred when motorists deliberately drove
around lowered gates. These collisions occurred 128 percent more often
at crossings with whistle bans than at other crossings. Another 18
percent of the collisions occurred while motorists were stopped on the
crossings, probably waiting for vehicles ahead to move forward. There
were smaller percentages of collisions involving stalled and abandoned
vehicles. Suicides are not included in the collision counts. At
crossings equipped with flashing signal lights and/or other active
warning devices, but not gates, collisions occurred 119 percent more
often at crossings subject to bans. A distinction should be made
between the two circumstances. In the case of lowered gates, it is the
motorist's decision to circumvent a physical barrier to take a clearly
unsafe and unlawful action that can result in a collision. However, in
the case of crossings with flashing light signals and/or other active
devices, collisions may be more the result of a motorist's error in
judgment rather than a deliberate violation of the State's motor
vehicle laws. The ambiguity of flashing lights at crossings, which in
other traffic control situations indicate that the motorist may proceed
after stopping, when safe to do so, coupled with the difficulty of
correctly judging the rate of approach of a large object such as a
locomotive, may contribute to this phenomenon. FRA's collision data
suggested that the added warning provided by the train horn is most
critical at crossings without gates but which are equipped with other
types of active warning devices.
By separating crossings according to the different categories of
warning devices installed, FRA was better able to identify the level at
which locomotive horns increase safety at gated crossings and thus the
level at which substitutes for the horn must be effective in order to
fully compensate for the lack of a horn at those crossings.
For crossings with passive signs as the only type of warning
device, the updated study indicated an average of 27 percent more
collisions for crossings subject to whistle bans. This is the smallest
difference identified between crossings with and without whistle bans.
These crossings account for about one fourth of the crossings with
whistle bans. Typically, they are the crossings with the lowest
aggregate risk of collision because the installation of active warning
devices usually follows a sequence where the highest risk crossings are
equipped first. Two determinants of crossing risk are the amount of
train traffic and highway traffic at a crossing. Often, crossings with
only passive warning devices are located on seldom used sidings and
industrial tracks and/or on roadways with relatively low traffic
levels. FRA
[[Page 70591]]
believes this may be the reason that the difference in the numbers of
collisions at whistle ban and non-ban crossings is so much less than
for the other crossing categories. For crossings with passive warnings
where trains do not exceed 15 miles per hour and where railroad
personnel use flags to warn motorists of the approach of a train,
whistle bans would entail a small risk of a collision resulting in an
injury. However, at crossings with passive warnings and with higher
train speeds, motorists would have no warning of the approach of a
train if the train horn were banned. At such crossings, in order to
ensure their safety, motorists must search for and recognize an
approaching train, and then visually judge whether it is moving, and if
so, estimate its arrival time at the crossing, all based only on visual
information which may be impaired by hills, structures, vegetation,
track curvature, and road curvature as well as by sun angle, weather
conditions, or darkness. The driver's decision to stop must be made at
a point sufficiently in advance of reaching the crossing to accommodate
the vehicle's stopping distance. If other vehicles are following, a
sudden decision to stop could result in a rear-end collision with the
vehicle being pushed into the path of the train. While FRA's data
indicated that the smallest increase in collision frequency is
associated with whistle bans at passive crossings, logic suggested that
the banning of train horns at passive crossings could entail a much
more significant safety risk per unit of exposure (vehicle crossings
per train movement). Without the audible train horn warning, motorists
would have no indication of the imminent arrival of a train beyond what
they could determine visually. For motorists unfamiliar with whistle
bans who encounter passive crossings where horns are not sounded, there
would be an even greater risk.
5. Statutory Mandate
After reviewing FRA's Florida study, Congress addressed the issue.
On November 2, 1994, Congress passed Public Law 103-440 (``Act'') which
added Sec. 20153 to title 49 of the United States Code. (Subsections
(I) and (j) were added on October 9, 1996 when Sec. 20153 was amended
by Public Law 104-264.) The Act requires the use of locomotive horns at
public grade crossings, but gives FRA the authority to make reasonable
exceptions. Section 20153 of title 49 of the United States Code states
as follows:
``Section 20153. Audible warning at highway-rail grade crossings.
``(a) Definitions.--As used in this section--
``(1) the term ``highway-rail grade crossing'' includes any street
or highway crossing over a line of railroad at grade;
``(2) the term ``locomotive horn'' refers to a train-borne audible
warning device meeting standards specified by the Secretary of
Transportation; and
``(3) the term ``supplementary safety measure'' (SSM) refers to a
safety system or procedure, provided by the appropriate traffic control
authority or law enforcement authority responsible for safety at the
highway-rail grade crossing, that is determined by the Secretary to be
an effective substitute for the locomotive horn in the prevention of
highway-rail casualties. A traffic control arrangement that prevents
careless movement over the crossing (e.g., as where adequate median
barriers prevent movement around crossing gates extending over the full
width of the lanes in the particular direction of travel), and that
conforms to standards prescribed by the Secretary under this
subsection, shall be deemed to constitute an SSM. The following do not,
individually or in combination, constitute SSMs within the meaning of
this subsection: standard traffic control devices or arrangements such
as reflectorized crossbucks, stop signs, flashing lights, flashing
lights with gates that do not completely block travel over the line of
railroad, or traffic signals.
``(b) Requirement.--The Secretary of Transportation shall prescribe
regulations requiring that a locomotive horn shall be sounded while
each train is approaching and entering upon each public highway-rail
grade crossing.
``(c) Exception.--(1) In issuing such regulations, the Secretary
may except from the requirement to sound the locomotive horn any
categories of rail operations or categories of highway-rail grade
crossings (by train speed or other factors specified by regulation)--
``(A) that the Secretary determines not to present a significant
risk with respect to loss of life or serious personal injury;
``(B) for which use of the locomotive horn as a warning measure is
impractical; or
``(C) for which, in the judgment of the Secretary, SSMs fully
compensate for the absence of the warning provided by the locomotive
horn.
``(2) In order to provide for safety and the quiet of communities
affected by train operations, the Secretary may specify in such
regulations that any SSMs must be applied to all highway-rail grade
crossings within a specified distance along the railroad in order to be
excepted from the requirement of this section.
``(d) Application for Waiver or Exemption.--Notwithstanding any
other provision of this subchapter, the Secretary may not entertain an
application for waiver or exemption of the regulations issued under
this section unless such application shall have been submitted jointly
by the railroad carrier owning, or controlling operations over, the
crossing and by the appropriate traffic control authority or law
enforcement authority. The Secretary shall not grant any such
application unless, in the judgment of the Secretary, the application
demonstrates that the safety of highway users will not be diminished.
``(e) Development of Supplementary Safety Measures.--(1) In order
to promote the quiet of communities affected by rail operations and the
development of innovative safety measures at highway-rail grade
crossings, the Secretary may, in connection with demonstration of
proposed new SSMs, order railroad carriers operating over one or more
crossings to cease temporarily the sounding of locomotive horns at such
crossings. Any such measures shall have been subject to testing and
evaluation and deemed necessary by the Secretary prior to actual use in
lieu of the locomotive horn.
``(2) The Secretary may include in regulations issued under this
subsection special procedures for approval of new SSMs meeting the
requirements of subsection (c)(1) of this section following successful
demonstration of those measures.
``(f) Specific Rules.--The Secretary may, by regulation, provide
that the following crossings over railroad lines shall be subject, in
whole or in part, to the regulations required under this section:
``(1) Private highway-rail grade crossings.
``(2) Pedestrian crossings.
``(3) Crossings utilized primarily by nonmotorized vehicles and
other special vehicles.
``(g) Issuance.--The Secretary shall issue regulations required by
this section pertaining to categories of highway-rail grade crossings
that in the judgment of the Secretary pose the greatest safety hazard
to rail and highway users not later than 24 months following the date
of enactment of this section. The Secretary shall issue regulations
pertaining to any other categories of crossings not later than 48
months following the date of enactment of this section.
[[Page 70592]]
``(h) Impact of Regulations.--The Secretary shall include in
regulations prescribed under this section a concise statement of the
impact of such regulations with respect to the operation of section
20106 of this title (national uniformity of regulation).
``(I) Regulations.--In issuing regulations under this section, the
Secretary--
``(1) shall take into account the interest of communities that--
(A) have in effect restrictions on the sounding of a locomotive
horn at highway-rail grade crossings; or
(B) have not been subject to the routine (as defined by the
Secretary) sounding of a locomotive horn at highway-rail grade
crossings;
``(2) shall work in partnership with affected communities to
provide technical assistance and shall provide a reasonable amount of
time for local communities to install SSMs, taking into account local
safety initiatives (such as public awareness initiatives and highway-
rail grade crossing traffic law enforcement programs) subject to such
terms and conditions as the Secretary deems necessary, to protect
public safety; and
``(3) may waive (in whole or in part) any requirement of this
section (other than a requirement of this subsection or subsection (j))
that the Secretary determines is not likely to contribute significantly
to public safety.
``(j) Effective Date of Regulations.--Any regulations under this
section shall not take effect before the 365th day following the date
of publication of the final rule.''
6. Issuance of Interim Final Rule
FRA is issuing today's rule as an interim final rule, rather than
as a final rule. An interim final rule has the same force and effect as
a final rule, but differs from a final rule in one principal way--when
an interim final rule is issued, comments are solicited and the agency
reserves the right to make changes to the rule in response to the
comments received. Because the rule issued today is a logical outgrowth
of the NPRM, FRA could have issued it as a final rule. Both the NPRM
and interim final rule issued today permit exceptions to the use of the
locomotive horn, address the need to mitigate the risk associated with
lack of the locomotive horn, provide for implementation of SSMs and
ASMs, and address mitigation of risk on a corridor-wide, rather than
individual grade crossing basis. Like one major provision of the NPRM,
the interim final rule bases the determination of a corridor's risk
mitigation goal on FRA's Accident Prediction Formula (APF). However,
the interim final rule adds a level of further sophistication to the
formula by considering collision severity and permitting quiet zones in
part based on a corridor's relationship to a national crossing risk
index derived from this severity-weighted APF. A large number of
commenters complained that FRA did not sufficiently take into
consideration safety history at the crossing. While the APF does take
into consideration such past record, the interim final rule builds on
the NPRM and resulting comments by placing more weight on the safety
record at crossings within a corridor and permitting exceptions based
on that safety record. The result--that some quiet zones may be
established without the need to implement SSMs or ASMs if the corridor
does not pose a significant risk based on a national standard--flows
logically from the NPRM's use of the APF and the commenters' clear
request to make the entire rule more risk based.
Even though this rule could be issued as a final rule, FRA has
determined that the public should have an opportunity to comment on the
rule as changed. Because the language in some sections has been
revised, FRA, and the final rule, will benefit from the input of the
public; FRA has found in the past that public comments often contain
suggestions that can improve a regulatory document. Therefore, comments
are being solicited on all aspects of this rule [see ``Public
Participation'' section]. FRA will review the comments and reserves the
right to make revisions when issuing a final rule.
7. Effective Date of This Rule
Because this interim final rule has all the legal attributes of a
final rule, the effective date of this rule will be December 18, 2004.
Congress specifically provided for this one year delay; subsection (j)
of Sec. 20153, which was added to the basic rulemaking mandate in
1996, provides that any regulations issued under that section shall not
take effect before the 365th day following the date of publication of
the final rule. Issuing this interim final rule rather than a final
rule will not penalize those communities which have waited a number of
years for issuance of a rule permitting the creation of quiet zones.
They will still be able to establish quiet zones on the same schedule
as if a final rule were issued today. Alternatively, issuance of this
rule in the form of an interim final rule will not have a significant
negative effect on those communities with present whistle bans. FRA has
specifically included in the rule sufficient time for those communities
to conform to any changes that may be made to the interim final rule in
order to enable them to retain their whistle-free crossings.
However, we don't believe Congress intended that FRA delay
administrative actions such as working with public authorities and
reviewing applications for quiet zones in order to permit communities
to institute quiet zones at the earliest possible date after the one
year required delay has elapsed. Accordingly, FRA will accept quiet
zone applications from public authorities during the one year delay
period. While this interval should enable public authorities to begin
planning, they should also be aware that the final rule may contain
changes based on comments to this interim final rule. Because of this
uncertainty, FRA will make every effort to issue a final rule
expeditiously after the close of the comment period.
8. Rule Summary
The following very brief summary of this interim final rule is
provided for the reader's convenience. Because this is merely a
summary, it should not be relied on for definitive information
regarding compliance with this rule.
[sbull] This rule applies to all railroads that operate on the
general railroad system of transportation. The rule does not apply to
freight railroads and tourist and scenic railroads which are not on the
general railroad system. It does not apply to rapid transit systems in
urban areas that are not connected to the general railroad system of
transportation. Rapid transit operations sharing tracks with general
system railroads at crossings, or sharing crossings with general system
railroads are connected to the general system at the crossings and are
thus subject to part 222; however, rapid transit operations are not
subject to the horn volume requirements of part 229.
[sbull] Locomotive horns must be sounded while approaching and
entering upon each public highway-rail grade crossing. The horn sound
level must be a minimum of 96 dB(A) and no louder than 110 dB(A)
measured 100 feet in front of the locomotive and 15 feet above the
rail. All locomotives must sound the horn in the standard sequence of
two longs, one short, and one long starting at least 15 seconds, but no
more than 20 seconds before reaching the grade crossing, however, in no
case may the horn be sounded more than \1/4\ mile before the crossing.
[sbull] A railroad may, with certain exceptions, decide to not
sound the
[[Page 70593]]
locomotive horn at a crossing if the locomotive speed is 15 miles per
hour or less and train crew members or equipped flaggers flag the
crossing to provide warning of the approaching train to motorists.
[sbull] A quiet zone is at least \1/2\ mile in length, although
Pre-Rule Quiet Zones may continue unchanged. Except for certain
exceptions listed in the rule, each public crossing within a New Quiet
Zone must at a minimum be equipped with flashing lights, gates, and
signs warning of the absence of locomotive horns. Each public crossing
within a Pre-Rule Quiet Zones may retain, but must not downgrade the
warning systems in place.
[sbull] This rule does not cover horn use at private crossings
outside of quiet zones. Their use will continue to be governed by State
and local laws and private agreements. However, if a private crossing
is within a quiet zone, horn use is restricted at that crossing.
[sbull] The rule provides for two types of quiet zones--Pre-Rule
Quiet Zones (consecutive crossings where horns were silenced by State
or local law or by formal or informal agreement, and which were in
existence as of October 9, 1996 and on December 18, 2003, and New Quiet
Zones (quiet zones established under the terms of this rule and which
do not qualify as Pre-Rule Quiet Zones).
[sbull] A quiet zone may be established using SSMs, or in certain
cases, ASMs, in two ways: (a) By designation by a public authority
(which is the public entity responsible for safety and maintenance of
the roadway crossing the railroad tracks at a public highway-rail grade
crossing); or (b) by application to FRA.
[sbull] A quiet zone may be designated if (a) supplementary safety
measures are applied to every public grade crossing within the quiet
zone; (b) the Quiet Zone Risk Index is at, or below, the Nationwide
Significant Risk Threshold; or (c) supplementary safety measurers are
instituted which reduce the Quiet Zone Risk Index to a level at, or
below, the Nationwide Significant Risk Threshold, or to the risk level
which would exist if locomotive horns sounded at all crossings within
the quiet zone. The public authority has discretion as to how the Quiet
Zone Risk Index is reduced, and may choose the type of SSM to be
applied and the crossings at which they are to be applied in complying
with either (a), (b), or (c).
[sbull] If a public authority, for whatever reason, cannot comply
with the requirements of quiet zone designation, it may apply to FRA
for approval to establish a quiet zone using a combination of SSMs, or
ASMs (which includes modified SSMs). As in quiet zone designation, the
public authority has discretion as to which SSMs or ASMS to apply and
where they are to be applied. However, in this case, the public
authority's proposal is reviewed by FRA. If FRA determines that the
safety improvements will compensate for the absence of the locomotive
horn or that the safety improvements will reduce risk to a level at, or
below the Nationwide Significant Risk Threshold, a quiet zone may be
established.
[sbull] A Pre-Rule Quiet Zone will be considered approved and may
remain in effect if the quiet zone could qualify for quiet zone
designation if it were a New Quiet Zone based on having a Quiet Zone
Risk Index at, or below, the Nationwide Significant Risk Threshold or
if there haven't been any relevant collisions at the public crossings
within the quiet zone for the past 5 years and the Quiet Zone Risk
Index was less than twice the Nationwide Significant Risk Threshold.
[sbull] If a Pre-Rule Quiet Zone cannot comply with the
requirements for a quiet zone designation as discussed above, the
existing horn restrictions may continue on an interim basis. The
restrictions may continue for five years if within, three years after
publication of this rule, the public authority files with FRA a
detailed plan for maintaining the Pre-Rule Quiet Zone (or establishing
a New Quiet Zone). Horn restrictions may continue for an additional
three years beyond the five-year period if the appropriate State agency
provides FRA with a comprehensive statewide implementation plan and
physical improvements are made within the quiet zone, or in a quiet
zone elsewhere within the State, within three years and four years
after publication respectively.
[sbull] FRA will annually review every quiet zone established by
comparing the Quiet Zone Risk Index to the Nationwide Significant Risk
Threshold. If the Quiet Zone Risk Index as last calculated by FRA is
at, or above, twice the Nationwide Significant Risk Threshold, or if
the Quiet Zone Risk Index is above the Nationwide Significant Risk
Threshold, but is lower than twice the Nationwide Significant Risk
Threshold and a relevant collision occurred at a crossing within the
quiet zone within the preceding five calendar years, the quiet zone
will terminate six months after the date of receipt of notification
from FRA of the Nationwide Significant Risk Threshold level, unless the
public authority files plans to implement SSMs or ASMs within six
months and implements such SSMs or ASMs within three years.
[sbull] Wayside horns may be installed within a quiet zone if the
public authority determines that it is appropriate to do so. Wayside
horns may also be used outside of quiet zones in lieu of locomotive
horns at crossings equipped with automatic flashing lights and gates.
(Wayside horns have not yet been classified by FHWA as traffic control
devices. If FHWA does classify them as traffic control devices, the
wayside horn must also be approved in the Manual on Uniform Traffic
Control Devices (MUTCD) or FHWA must approve experimentations pursuant
to section 1A.10 of the MUTCD.)
9. Overview of the Interim Final Rule: Principles, Strategies, and
Major Outcomes
A. Usefulness of the Train Horn
This rulemaking was mandated by law, but its impetus derives from a
clearly defined safety need. A majority of the States and all railroads
have mandated use of the train horn to provide an audible warning at
highway-rail crossings. FRA research and analysis, both prior to
institution of this rulemaking and during its pendency, has confirmed
the beneficial safety impact of the train horn. The National
Transportation Safety Board (NTSB) has also supported the need for this
warning to motorists.
FRA understands the point made by commenters that the horn cannot
be relied on to prevent every accident, and the data confirm that.
Nevertheless, the horn is one cue that is often available to the
motorist at the decision point; and it should not be withheld absent
serious thought about the consequences. There are some circumstances
(e.g., restricted view) in which the train horn may be the best, and
most convincing, warning to the motorist. Each year a good portion of
the accidents at crossings occur when motorists are not convinced by
even flashing warning lights and downed gates, and they drive around
the gates and are struck by the train they neither saw nor heard. The
train horn, which announces that there is, in fact, a train coming now
(not switching cars down the track somewhere out of danger) may often
be the most effective warning.
FRA understands the sense of frustration among law-abiding citizens
who feel that they should not be burdened by train horn noise (or the
cost of alternatives) because other citizens violate traffic laws at
highway-rail crossings equipped with flashing lights and gates. FRA is
a strong proponent of law enforcement at
[[Page 70594]]
highway-rail crossings. However, the statute clearly contemplates that
motorists will be given the additional, often final warning that the
train horn provides (or that other safety measures will be instituted),
even where warning systems employing flashing lights and gates are
present. Further, as a matter of policy, FRA believes that it is
appropriate to protect even the unwise from the consequences of their
misdeeds where those consequences are especially severe--and where
society as a whole may bear the burden of those consequences.
As noted elsewhere in this preamble, victims of collisions at
highway-rail crossings are not limited to reckless or intoxicated
drivers. Indeed, in many cases victims are innocent passengers who have
had no control whatsoever over the driver's behavior.
Even though collisions at highway-rail crossings are far more
severe in their consequences than the average highway accident, most
victims survive. Many incur substantial medical bills and require
extended rehabilitation. Costs are borne by the general public through
health and disability insurance arrangements, and through higher costs
of goods and services provided by employers who must extend sick leave
and other benefits. In this regard, many costs associated with
casualties that occur in whistle ban jurisdictions are in effect hidden
taxes on persons outside those communities over which these costs are
spread. From an economic standpoint, the community enjoys its quiet
and, unless measures have been taken to compensate for the silencing of
the horn, someone else pays for most of it.
Finally, there can be victims on the trains and in the general
community, as well. Collisions between trucks and heavy trains can
cause the injury or even death of train crew members. Some collisions
at crossings cause trains to derail (the risk is significant when a
heavy truck is involved), and cars containing hazardous materials are
found in a high percentage of trains. Release of hazardous materials in
a community can result in evacuations, property damage and even injury
or death. When the collision involves a passenger train, the potential
exists for harm to passengers, as well as crew members. Commenters were
correct in noting that such events are rare, but the potential for
catastrophic event is real; and an important role for safety regulation
is to anticipate and mitigate these sorts of risks.
In summary, we all have a stake in preventing collisions at
highway-rail crossings; and there is no practical way to transfer all
costs to the driver who fails to obey the law, even if that were a
desirable thing.
In general, these principles appear to be accepted outside of
whistle ban jurisdictions. Train horns continue to sound today at over
98 percent of public highway-rail crossings, and over 9 million
Americans living and working along rail lines are incidentally exposed
to the ``noise'' from this source. Most communities and residents
appear to tolerate these interruptions reasonably well.
B. Incompatibility of Horn Noise With Community Needs
However, two general trends appear to have converged in a manner
that is antithetical to community acceptance of train horn noise under
certain conditions. First, as a Nation we are becoming more sensitive
to disruptive sources of noise in our environment. This reflects
success in building quieter communities and in engineering noise out of
daily life (through zoning, building codes, better design of motor
vehicles, etc.). Second, as a result of the consolidation of the
national rail system since the 1970s, rail traffic has been
concentrated on fewer lines, resulting in more train movements through
those communities where main lines continue to be operated.
Particularly when the train horn is sounded, the number of train
movements is clearly a significant factor in the ``noise load''
imparted to the community.
For various reasons, there has been a growth in the number of
ordinances and arrangements under which train horns are silenced
(``whistle bans''). Further, in many communities where State law
currently does not permit whistle bans, relief from the noise
associated with train horns is being actively sought by residents and
their elected representatives. Fear of losing existing bans, and the
desire to silence train horns in some areas without existing bans, have
combined to create significant public interest in this proceeding.
The situation of existing whistle ban communities is particularly
vexing, because public and private planning decisions have been made
with the assumption that horns will be banned. Commenters in the
Chicago Region \2\ also called attention to the conflict between sound
urban planning, which promotes construction of high density housing
near a commuter railroad stations, and very frequent use of the train
horn on the extremely active rail lines in that region.
---------------------------------------------------------------------------
\2\ The Chicago area, or Chicago Region, is comprised of 6
counties: Cook, DuPage, Lake, Kane, McHenry, and Will.
---------------------------------------------------------------------------
Unfortunately, there is no known strategy for providing audible
warning to motorists without also spreading unwanted noise into
communities. (The wayside horn can reduce the amount of unwanted noise,
but not eliminate it entirely.) Future research may permit refinement
of the multi-frequency pattern of contemporary train horns, but FRA has
no present information that suggests a means of providing a clearly
identifiable and urgent signal in a motor vehicle using a sound that is
pleasing to nearby residents.
C. Crafting Exceptions to Use of the Train Horn
The statute provides direction for adjusting the competing
interests of safety and community quiet. Although the statute says
unequivocally, ``The Secretary of Transportation shall prescribe
regulations requiring that a locomotive horn shall be sounded while
each train is approaching and entering upon each public highway-rail
grade crossing,'' most of the language of the statute has the effect of
explaining how exceptions might be crafted. The statute continues:
(1) In issuing such regulations, the Secretary may except from the
requirement to sound the locomotive horn any categories of rail
operations or categories of highway-rail grade crossings (by train
speed or other factors specified by regulation)--
(A) that the Secretary determines not to present a significant risk
with respect to loss of life or serious personal injury;
(B) for which use of the locomotive horn as a warning measure is
impractical; or
(C) for which, in the judgment of the Secretary, SSMs fully
compensate for the absence of the warning provided by the locomotive
horn.
The last of these exceptions--substitution of supplementary (or
alternative) safety measures--was at the heart of the NPRM and remains
the best means of reconciling safety and community quiet. As explained
below, this interim final rule seeks to make the list of other safety
measures as flexible and cost effective as possible.
The second exception, which refers to a determination of
impracticability, is a criterion of limited application. It is
impractical to provide effective warning by sounding the horn if it is
necessary to back a mile-long train over a crossing (so the crossing
needs to be flagged), and it is impractical to provide a warning of
suitable duration prior to the train's arrival in the case of a 110 mph
passenger train (so active warning
[[Page 70595]]
devices and a ``sealed corridor'' strategy are strongly recommended,
whether or not the horn is used). But in most other scenarios, the
train horn will serve its purpose if sounded. Some commenters invited
FRA to consider the cost of SSMs as a test of impracticability, but
that is really a policy or political objection, not one going to the
practicability of sounding the train horn and thereby alerting the
motorist. FRA believes that the suggested reading of ``impractical'' is
not appropriate and would result in an enormous increase in safety risk
by permitting train horns to be banned routinely without the need to
take compensating measures.
The first exception, absence of ``significant risk with respect to
loss of life or serious personal injury,'' was relied upon in the NPRM
only with respect to very limited circumstances (but comments were
solicited regarding other options). As a result of testimony and
written comments received from the public, including elected and
appointed representatives of State and local governments, FRA has
reviewed in some detail whether this criterion should be given greater
effect in the final rule. The statute clearly does not require the
exclusion of all risk, and FRA agrees that it is best to interpret and
implement this exception, if possible, in a manner that is not in
conflict with the general approach taken by the Congress and the
Department of Transportation (DOT) with respect to other safety laws
and regulations addressing public safety.
In general, DOT and other Executive Branch departments and agencies
must consider costs and benefits before issuing regulations. This is
true even where statutes have mandated that rules on particular topics
be issued, because in most cases the Congress has left the means of
implementation to the agencies. The present rulemaking involves a much
more specific mandate than typically embodied in safety legislation.
Nevertheless, FRA did consider costs and benefits in crafting the
proposed rule (and found that, overall, investments in safety systems
used as a substitute for the horn would be recovered). However, in the
NPRM, FRA did not focus sharply on the costs and benefits for those
communities where the underlying risk of a casualty-producing collision
is comparatively low. Some commenters in areas with existing bans
responded with the criticism to the effect that, while some other
community might recover its costs, for the particular community the
existing risk at crossings is very low and no expenditure is warranted.
In this interim final rule FRA has sought to afford greater
recognition to situations where the risk of serious injury is low. In
so doing, FRA has been conscious of the need to ensure public funds are
expended on improvements that have significant value in holding down
casualty risk. FRA has also been conscious of the fact that there may
be, at least in the short term, an ``opportunity cost'' associated with
the decision to spend scarce tax dollars on SSMs in order to maintain
community quiet, rather than other uses. (In acknowledging this point,
FRA notes that this is not a zero sum exercise because the avoidance of
accident consequences is an economic benefit to the community.)
FRA recognizes that there is no way to achieve what would be
perceived as perfect justice for communities in this proceeding, any
more than it is possible to eliminate all risk to persons. However, FRA
has concluded that the risk assessment method selected for this
proceeding should--
[sbull] Permit exceptions to use of the train horn based on absence
of significant risk, in most cases avoiding expenditures that would not
be recovered through accident and casualty reduction;
[sbull] Require use of the train horn where risk is clearly
significant, unless SSMs and ASMs are implemented to abate the excess
risk associated with silencing the train horn; and
[sbull] Respond to changes in rail operations and communities as
data becomes available to update the relevant computations.
The particular means chosen by FRA to identify significant risk is
the creation of a risk index by which prospective quiet zones can be
rated in relation to one another and in relation to selected criteria.
The method (which is more fully explained below) is applicable to quiet
zones created both where there are existing bans and elsewhere. In
considering how to approach this problem, FRA elected to start with the
current Accident Prediction Formula (APF), which uses data elements
available from the national inventory of highway-rail crossings and the
FRA Railroad Accident-Incident Reporting System. The APF was developed
by the Volpe National Transportation Systems Center for FRA and the
Federal Highway Administration, and it is maintained in current form to
support initial identification of crossings that are candidates for
safety improvements using Federal funds. Many States use this formula
or similar formulas to rank crossings for this purpose.
The strength of the formula is in its ability to combine
empirically-derived insights about risk, based on common
characteristics of crossings and the accident history of the individual
crossings under study. As such, it is reasonably successful in
predicting where accidents will occur. As with any model of this type
designed to study relatively rare events, the model is more successful
in predicting results for a group of crossings with at least some
similar characteristics (e.g., several crossings in a proposed quiet
zone) than for a single crossing.
Risk is defined as the product of probability (frequency) and
severity (consequences), so the APF prediction of the likely number of
accidents by itself is not enough. However, the suite of APF tools
includes calculations that permit estimations of the likelihood that a
predicted accident will result in injury or death to one or more
persons. FRA has taken advantage of these tools to estimate the likely
frequency of relevant (casualty-producing) collisions. To determine the
likely number of injuries and fatalities in predicted accidents, FRA
has employed the averages from historical accidents. In order to
combine the consequences of non-fatal and fatal injury, FRA has used
relational values derived from cost-benefit practice (in which the
avoidance of a fatality is assigned a societal value based on
established government guidelines, and both less serious and more
serious non-fatal casualties are then assigned a value proportional to
the value of avoiding a fatality). The result is a risk index value for
each crossing.
From the inception of this rulemaking (indeed, beginning with the
issuance of Emergency Order 15 in 1991), FRA has sought to address the
issue of quiet zones (contiguous rail corridors of reasonable length
having one or more crossings) rather than individual crossings. FRA has
noted that a crossing-by-crossing approach would not serve community
interests, given the distance over which the horn must be sounded and
given the proximity of crossings in most communities. Corridor planning
permits risk reduction to be taken at the lowest possible cost, and it
encourages consolidation of crossings through closure of redundant or
very hazardous crossings. Further, locomotive engineers have
increasingly demanding jobs and should not be distracted by the task of
picking out individual crossings along their route where the horn must
or must not be used. There were no comments in this proceeding that
effectively questioned this rationale, and there was substantial
support for it.
[[Page 70596]]
As a result, FRA has adhered to the corridor approach in this
interim final rule, so use of the risk index is specified to be at the
corridor (quiet zone) level. The basic logic of the method is as
follows:
[sbull] Estimate the probability of injuries or fatalities at each
crossing using the APF formulas;
[sbull] Aggregate the risk from all crossings in the proposed quiet
zone; and
[sbull] Divide the risk by the number of crossings,
[sbull] Yielding a risk estimate for the proposed quiet zone.
This approach must be adjusted if the proposed quiet zone was not
subject to an historical whistle ban, since the effect of silencing the
train horn would be to drive up risk. As more fully explained below,
with limited exceptions the adjustments necessarily rely on national
averages of train horn effectiveness.
This risk index approach permits an objective comparison of the
situations in various communities, taking into account the actual
accident experience to date. FRA is aware that there are limitations to
the method. For instance, (i) the APF does not take into consideration
every possible factor relevant to risk, (ii) data driving the
predictions are largely from the great majority of crossings where the
horn is used, (iii) a significant component of risk inherent in the
formula outputs is not as relevant to evaluation of train horn risk
(i.e., pedestrian casualties), and (iv) adjustments to the index based
on excess risk associated with silencing the horn will understate risk
in some cases and overstate risk in other cases. However, FRA is not
aware of a more useful methodology for evaluating comparative risks at
grade crossings, and none of the limitations appears to substantially
vitiate its value for this purpose.
In examining options for this interim final rule, FRA applied this
methodology to known whistle ban crossings, grouping them by railroad
and political jurisdiction pairs, with some segmentation to recognize
that more than one rail line was present or that operational
characteristics of the railroad changed markedly (e.g., at a junction).
As reported in more detail below, the results show that there are
material differences in corridor risk among the existing ``whistle ban
jurisdictions'' (on an average per-crossing basis).
FRA then performed the same calculation for all train horn
crossings in the nation that are equipped with flashing lights and
gates and derived an average for those crossings, which is referred to
in this rule as the Nationwide Significant Risk Threshold. This measure
provides a statistical tipping point by which crossings nationwide can
be compared to determine the significance of the risk present. FRA's
rationale for selecting this threshold as a basis of comparison was
that if certain proposed quiet zones pose less risk (even when adjusted
for the absence of the train horn) than the average corridor where the
train horn is sounded, then the risk of not sounding the train horn in
those locations might reasonably be characterized as insignificant.
During the public comment cycle, FRA also heard repeatedly from
existing whistle ban communities where, it was reported, there had been
no accidents for many years (or none likely attributable to the absence
of an audible warning). FRA recognized that, since highway-rail
crossing accidents are rare events, the absence of accidents within a
period of a few years might say little about underlying risk. At the
same time, FRA was aware that some communities have made a real effort
to stress law enforcement and public awareness; and it seemed desirable
to provide some additional flexibility to communities that have not
experienced a recent accident of the kind relevant to the circumstances
addressed in this rulemaking. So FRA posited that it should be
reasonable to subject accident-free existing whistle ban jurisdictions
to a test that might be a multiple of the Nationwide Significant Risk
Threshold (NSRT). A multiple of two was selected for analysis.
In order to determine the implications of this methodology,
including the two proposed thresholds, FRA applied the risk index
method to existing whistle ban jurisdictions (WBJs) retrospectively.
Employing accident data for 1990 through 1994 and grade crossing
inventory information as of January 1, 1995, FRA categorized these WBJs
by Crossing Corridor Risk Indices (CCRI) relative to the two
thresholds: (1) CCRI less than NSRT, (2) CCRI greater than the NSRT
with relevant collisions between 1990 and 1994, (3) CCRI between the
product of one and two times the NSRT and no relevant collisions
between 1990 and 1994, (4) CCRI greater than the product of two times
the NSRT and no relevant collisions between 1990 and 1994. FRA posited
that jurisdictions above the relevant thresholds (i.e., those above the
Nationwide Significant Risk Threshold with relevant collisions in the
preceding five years, or with no relevant collisions but above twice
the Nationwide Significant Risk Threshold) would be required to make
investments to abate risk, while those below would not. To simulate the
safety impacts of this approach, FRA analyzed the effect based on an
artificial rule issuance date of January 1, 1995, with an effective
date of January 1, 1996. FRA then analyzed actual collision history for
the crossings in each category for the period 1996 through 2000.
The results (reported in detail below and on the FRA Web site) were
then compared with the Nationwide Significant Risk Threshold and a
value equal to two times the Nationwide Significant Risk Threshold
(2xNSRT) (determined as of January 1, 1996) to evaluate the
distribution of potential quiet zones derived from existing bans. FRA
posited that jurisdictions above the relevant thresholds (i.e., those
above the Nationwide Significant Risk Threshold with relevant
collisions in the preceding five years, or with no relevant collisions
but above twice the Nationwide Significant Risk Threshold) would be
required to make investments in SSMs or ASMs in order to abate excess
risk, while those below the thresholds would not.
The analysis effectively validated the risk assessment method,
demonstrating that for the subject period it would have focused public
resources on whistle ban corridors where the investments would have
been well spent (with resulting reductions in injuries and fatalities).
It showed that in the five-year period that would have followed
implementation of the rule, as of January 1, 1996, 69 percent of the
casualties resulting from the relevant collisions that occurred at
whistle ban crossings would have occurred in quiet zones that initially
would have had to make safety improvements to retain the whistle bans
(see table below). Those safety improvements would have substantially
mitigated the casualties at those crossings.
By the end of the five-year period, the communities where 24
collisions resulting in 16 casualties occurred would have had to
implement safety measures to reduce their corridor crossing risk
indexes to permissible levels in order to retain their whistle bans. By
the end of this five-year period, only 32 percent of the relevant
collisions and 21 percent of the casualties would have occurred in
communities that would not have had to implement safety measures.
Injuries resulting from collisions involving trains traveling at
speeds of 25 mph or less are on average moderate compared to the
critical nature of injuries that tend to result when train speeds are
higher. By the end of the
[[Page 70597]]
five-year period, only seven percent of the more severe casualties
would have occurred in communities that would not have had to implement
safety measures.
The following table presents the distribution of crossings,
collisions, and resulting casualties. The first data column presents
the number of crossings that would have fallen into each quiet zone
category on January 1, 1995. The second data column presents the number
of relevant collisions (those that FRA believes could have been
prevented by sounding the train horn) that occurred in the five-year
period that would have followed implementation of the rule. The next
two columns present the resulting casualties (fatalities and injuries
combined).
As is more fully developed below, the CCRI refers to the Crossing
Corridor Risk Index (the average risk for crossings in a potential
quiet zone) and the NSRT refers to the Nationwide Significant Risk
Threshold (which is the average risk at gated train horn crossings).
----------------------------------------------------------------------------------------------------------------
January 1995 January 1, 1996 through December 31, 2000
---------------------------------------------------------------
Casualties
excluding
Crossings in Relevant Casualties injuries where
WBJs collisions max train
speed < 25 mph
----------------------------------------------------------------------------------------------------------------
CCRI NSRT with relevant collisions.. 865 208 109 94
(36%) (59%) (64%) (78%)
CCRI 2 * NSRT (no collisions 2000- 72 10 8 8
2005).......................................... (3%) (3%) (5%) (7%)
CCRI Between NSRT & 2 * NSRT (no collisions 2000- 236 24 16 10
2005).......................................... (10%) (7%) (9%) (8%)
CCRI < NSRT..................................... 1,242 113 36 9
(51%) (32%) (21%) (7%)
----------------=================
----------------------------------------------------------------------------------------------------------------
Therefore, FRA concluded that use of a methodology that compares
the known risk in a current or prospective quiet zone to the average
risk level at crossings across the nation where train horns are sounded
(the Nationwide Significant Risk Threshold) provides a very rational
basis for determining where silencing the train horn presents a
significant risk. Moreover, FRA concluded that considering an existing
whistle ban's actual accident history in that methodology (by making
greater allowances for accident-free jurisdictions) provides an even
better approximation of risk than does simple reliance on comparing the
quiet zone's projected risk level with the Nationwide Significant Risk
Threshold.
Subsequent to completion of this validation effort, FRA determined
that a number of the crossings previously identified as being in ``no
whistle'' status in the Chicago Region should, in fact, be removed from
that list based on elections (largely by freight railroads) to sound
the horn. FRA has not repeated this analysis with the smaller data set
because (1) its purpose was to determine the usefulness of the method
to sort corridors with greater risk from those with lesser risk and (2)
whether train horns are sounded at the crossings in question is not
critical to the analysis (particularly since the counter measures
involved are equally useful at both categories of crossings).
D. Alternatives Considered
FRA considered several other alternatives in determining how to
craft exceptions to train horn use. In reviewing the comments on the
NPRM and Draft Environmental Impact Statement, FRA identified five
additional alternatives for determining where train horns must sound.
All of these alternatives involve the same basic environmental effects
and benefits of this interim final rule: wherever the train horn
sounds, the noise impacts and safety benefits will be the same;
wherever the train horn is silenced, the benefits in terms of noise
reduction will be the same and the same safety risks will be presented
unless compensated by the addition of gates and lights, SSMs, or ASMs.
Upon examination, FRA concluded that these alternatives are not
reasonable options given the agency's purpose and need for the action
and dismissed them from further consideration. These alternatives are
described below.
No Exceptions
This alternative would implement the non-discretionary command of
the statute by requiring trains horns to be sounded at all public
highway-rail grade crossings. This would be what the statute would
require if FRA were unable to devise a workable means of providing for
quiet zones that satisfies the statute. FRA would set a maximum sound
level for locomotive horns. Changes from the NPRM provisions related to
the actual sounding of the horn and maximum sound levels could be
accommodated within this option.
Advantages: This option has the advantage of simplicity. It would
result in a high level of safety at highway-rail crossings, and the
costs of administration would be negligible.
Disadvantages: This approach is not responsive to the statutory
command to consider the interests of communities with existing train
horn bans because FRA can devise a regulatory regime permitting
communities to reduce noise by substituting other safety measures for
the sounding of train horns and this option fails to address the issue.
Aside from the statutory command, providing a means for communities to
quiet train horns has been urged on FRA by the great majority of
commenters and their elected representatives (including many who
supported the proposed rule as a good means of achieving community
quiet and safety). It is simply untenable to say that the final rule
should provide no alternative to a high noise load for communities on
rail lines with high train counts. Taking this course would also create
unnecessary conflict between commuter rail service and the communities
served, potentially compromising this important element of a balanced
transportation system in many major metropolitan areas.
Had this alternative not been eliminated on statutory grounds, the
environmental effects of this alternative
[[Page 70598]]
would not require separate analysis. Analysis of the effects of the
``no action'' alternative shows the effect of sounding train horns at
highway-rail grade crossings across the Nation and the effects of
permitting the continuation of existing train horn bans. This
alternative would differ only in the elimination of the existing train
horn bans, resulting in the known effects of sounding the train horn in
those locations as well, including the known safety benefits flowing
from sounding the train horn.
Make the NPRM Final
The Notice of Proposed Rulemaking required trains horns to be
sounded at all public grade crossings; set a maximum sound level for
locomotive horns; and provided an opportunity for any community to
establish a quiet zone where all public grade crossings are equipped
with gates and lights and data and analysis show that implementation
will reduce risk in the quiet zone to sufficiently compensate for the
absence of the horn sounding: by implementing one or more Supplementary
Safety Measures (SSM) at each crossing (does not require FRA approval);
or by implementing a combination of SSMs or Alternative Safety Measures
(ASM) at some or all crossings within a proposed quiet zone with FRA
approval. Communities with present whistle bans would have up to three
years in which to implement SSMs and ASMs. Crossings with track speeds
of 15 mph or less at which people bearing flags warn motorists of the
passage of a train would not need SSMs.
Advantages: Pursuing this option would serve the interest of safety
and community quiet. It would be less complex than the option selected.
Disadvantages: FRA found this option to be unacceptable because it
insufficiently tailored the rule's burdens according to risk and would
be unresponsive to hundreds of commenters who strongly urged
improvements in the rule before its adoption. Many of those commenters
live in or represent communities where the train horn is not now
sounded, so being unresponsive to them would arguably be unresponsive
to the statutory direction to take into account the interest of those
communities. FRA agrees with those commenters that the proposed rule
offered insufficient time for implementation and would have made the
situation particularly difficult for public authorities and railroads
in regions where impacts would be most substantial. FRA agrees with the
tenor of many comments that the proposed rule would have required
compensation for loss of the train horn even where risk is very low (or
would be projected to be low even after the horn was silenced). The
result of maintaining that requirement would have been poor cost-
benefit tradeoffs for many communities. Staying with the literal text
of the NPRM would also have missed opportunities for refinement of
SSMs/ASMs and would not have captured noise reductions associated with
the shift from distance- to time-based horn use.
The environmental effects of the NPRM were analyzed thoroughly in
the DEIS and taken into account by the FRA in framing the proposed
action represented by the interim final rule, which is a logical
outgrowth of the NPRM.
Grandfather All Whistle Bans Existing as of 10/9/96
This alternative would allow communities that had whistle bans in
effect on October 9, 1996 to retain those bans as long as the level of
risk does not increase. Risk would be calculated using the APF for the
entire whistle ban corridor. FRA would essentially be accepting the
level of risk the community itself has determined to be acceptable--and
would hold the community to that same level of risk. If a whistle ban
community exceeded its risk threshold, it would have three years to
implement changes (e.g. install SSMs) sufficient to reduce risk to
below its risk threshold. Changes related to use of train horns,
including the maximum sound level, could be accommodated within this
option.
Advantages: This approach would have avoided conflict with current
whistle ban communities and, in theory, might have capped the negative
safety impacts of bans. As under the proposed rule, New Quiet Zones
would be instituted without any loss of safety.
Disadvantages: This option was rejected for the following reasons,
any one of which is independently sufficient: It is unresponsive to the
purpose of the statute to the extent excess risk associated with
existing bans would be allowed to continue unabated; it does not
directly take into account predicted accident severity, and therefore
does not truly consider risk (frequency times severity); the
Administrator could not have made the statutorily required
determination that these exceptions would not ``present a significant
risk with respect to loss of life or serious personal injury;'' it
would not provide a uniform level of safety across the Nation; it did
not afford New Quiet Zones the same exceptions allowed for Pre-Rule
Quiet Zones, thus undermining uniformity of application and requiring
local authorities to expend funds on improvements for which the safety
pay-back could not be reasonably assured at the system level; it would
permit communities with bans to transfer costs to the society at large
through insurance, public health and welfare programs, and court
judgments; and administration of the approach is not technically
feasible. FRA noted that factors other than silencing the train horn
would typically be responsible for the growth in calculated risk in the
subject communities (e.g., increase in motor vehicle traffic as a
result of residential or commercial development in an adjoining
jurisdiction; growth in rail traffic). It did not seem sensible to
permit excess risk to continue, provided nothing changes in a
community, while requiring new increments of risk in other communities
to be addressed without regard to whether the current level of risk is
excessive (i.e., FRA realized that this option did not address the
right question).
The environmental effects of this option were not analyzed further
because this was not a reasonable option to pursue.
Grandfather All Whistle Bans Existing as of 10/9/96--Combine Collision-
Free Exemption With Severity-Weighted Single Threshold
This very complex option was a precursor to the path taken in the
interim final rule. It took a much different approach to Pre-Rule and
New Quiet Zones. It would allow communities with whistle bans in effect
on October 9, 1996 to retain those for the first 5 years following
publication of the interim final rule. Thereafter such communities
could retain bans as long as: there have been no collisions within the
past 5 calendar years or risk has not increased above a pre-established
threshold calculated using the APF for the past 5 years; and at least
flashing lights and gates have been provided at all such crossings. The
option included a severity element in the risk computation for the
threshold. A corridor risk index and national threshold would be used,
as in the interim final rule. The option provided further flexibility
for retaining whistle bans during the transition period as follows: A
State Department of Transportation (or other authorized state-level
body) could request extended implementation beyond the 5-year period on
the basis that the State is assisting local jurisdictions in
implementing quiet zones and requires additional time due to funding
and/or administrative constraints. The following would apply: Each
project
[[Page 70599]]
must be the subject of a filing with FRA (i.e., the rule otherwise
applies as revised); actual implementation of initial projects will
begin not later than year four; consistent with efficient completion of
required work and corridor-related safety considerations, improvements
will be implemented at the most hazardous crossings first (where risk
reduction opportunities are greatest) and then proceed to less
hazardous crossings; no less than 25 percent of identified excess risk
must be abated by the end of year five, 50 percent by the end of year
six, 75 percent by the end of year seven, and 100 percent by the end of
year eight; and this relief will expire eight years following
publication of the interim final rule (seven years from the effective
date). If a community exceeded the severity threshold in any annual
review thereafter, actions would be taken as necessary to fall back
below the threshold within a three-year period or the train horn would
be required to sound; or actions sufficient to compensate for the loss
of the train horn would have to be taken. Communities establishing New
Quiet Zones would be required to follow the standards set forth in the
NPRM (and would not be able to take advantage of low baseline risk,
even after adjustment for loss of the train horn).
Advantages: This option would take into consideration the interests
of communities with existing bans in a manner similar to interim final
rule, except flashing lights and gates would be required where not
present. It would set a requirement of flashing lights and gates for
all crossings where the train horn is silenced, enhancing safety. It
would also avoid any negative flow of safety benefits related to
toleration of new unabated risk in New Quiet Zones.
Disadvantages: FRA rejected this option principally because it did
not afford New Quiet Zones the same exceptions allowed for Pre-Rule
Quiet Zones, thus undermining uniformity of application and requiring
local authorities to expend funds on improvements for which the safety
pay-back could not be reasonably assured at the system level. Further,
FRA noted that the costs of flashing lights and gates in existing ban
areas would be substantial, in some cases potentially resulting in loss
of quiet zone status (with resulting disruption of settled
expectations) due to financial inability of communities. Again, in many
cases costs might not be fully recovered through safety benefits. FRA
also discarded the rigid implementation schedule for Pre-Rule Quiet
Zones on the ground it could not be effectively policed in an
environment where local authorities would find it necessary to move to
a large extent on their own schedules (albeit in some cases with State
assistance). FRA also concluded that excepting Pre-Rule Quiet Zones
from the requirement to make safety improvements solely on the basis of
no accident history (with necessarily limited exposure) could not be
supported as based on sound safety analysis (and opted, instead, for a
limited exception based on both accident history and underlying
estimated risk).
This option was rejected as unreasonable and its environmental
effects would be very similar to the proposed action.
Require Horns or SSMs at Highest Risk Crossings Within Each State
This alternative would have required that train horns be sounded at
all grade crossings except those where (1) maximum train speed is 15
mph or less and flaggers are provided or (2) a whistle ban permitted
under the rule is in effect. Existing whistle bans could continue
provided high risk crossings are addressed within three years. New
whistle bans could be created only if crossings within them were
equipped with gates and lights. No whistle ban could include a grade
crossing categorized as high risk, except crossings within existing
whistle bans that are remedied within three years. High risk crossings
are those with an APF greater than or equal to .05 (i.e., a five
percent chance of an accident occurring at that crossing in the next 12
months). Where train horns are now sounded, the crossing's APF would be
increased by 44 percent to account for the absence of the train horn.
Within one year of the rule's issuance, any community with an existing
whistle ban would have to certify that it has reviewed FRA data on
effectiveness of horns, whistle ban effects, and relative merits of
SSMs and consulted with affected railroads and state officials about
possible safety improvements. Any community imposing a new whistle ban
must first provide the same certification. Communities with existing
whistle bans may continue to include crossings lacking gates and lights
unless and until the crossing has an APF of .05 or more. Once a whistle
ban is in effect, any crossing that reaches an APF of .05 must be
remedied within two years.
Advantages: This option was viewed as attractive because it would
have mandated safety improvements at very high risk crossings within a
relatively short time and provided categorical relief for crossings
deemed relatively low risk. It defined risk uniformly for all crossings
and all jurisdictions. It is relatively simple. It defined significant
risk very clearly: equal to or greater than one predicted collision
every 20 years. It captured a high percentage of predicted casualties,
i.e., it would have addressed a high proportion of the risk presented
by whistle bans.
Disadvantages: This option was rejected because: it does not
directly take into account predicted accident severity, and therefore
does not truly consider risk (frequency times severity); it does not
permit sufficient flexibility to reduce risk within a quiet zone by
dealing with crossings other than ones with the highest APF values and,
therefore, does not adequately take into account the interest of
communities with existing whistle bans; and it is not in harmony with
the corridor improvement concept underlying the proposed rule. The
statute addresses all crossings, not merely the most hazardous. The
option focuses more on absolute risk rather than compensation for loss
of the train horn (the focus of the law). A crossing-by-crossing
approach to horn use would abandon the corridor approach to crossing
safety improvements advocated by the U.S. DOT for many years (including
eliminating the incentive for consolidation of redundant crossings),
and it could result in very uneven results in terms of community quiet,
depending on local implementation. The option could result in a
patchwork of ban areas, adding to burden on locomotive engineers to
pick out, crossing by crossing, where the horn must be sounded. This
option could be more costly per unit of risk reduced because the
community is required to take risk reduction at specified crossings
rather than where means and need best correspond (e.g., foreclosing the
option of putting in medians at two moderate-risk crossings for a total
cost of $40,000 rather than installing four-quadrant gates at one
higher risk crossing for an incremental cost of $75,000-$150,000, even
though the resulting risk reduction is the same).
This alternative was not considered reasonable. If the
environmental effects of this option were to be considered, the noise
impact of sounding a train horn at a crossing would be the same as it
would be for the preferred option and the safety benefits of sounding
the train horn or fully compensating for the absence of the train horn
would be the same as for the preferred option.
After considering all of these alternatives, FRA settled on the
risk-based methodology adopted in this interim final rule. FRA believes
this
[[Page 70600]]
methodology best embodies Congress' intent, i.e., to permit exceptions
to the use of the train horn only where doing so demonstrably does not
present a significant risk, or where the significant risk has been
compensated for by other means.
E. Implementing the Interim Final Rule
FRA is aware that this interim final rule has the disadvantage of
some degree of complexity. Designing corridor improvements that meet
community needs and the criteria set forth in this rule will be hard
work. In this case, FRA has sought to provide some relief from the
burdens perceived in the NPRM by marrying a conceptually simple notion
(the probability that a vehicle occupant will be injured or killed)
with a risk assessment method that is fully accessible only to those
with some statistical skills who work hard to understand it.
Maintaining a current inventory of affected crossings will also require
significant attention to detail.
In taking this course, however, FRA has also recognized its
obligation to prepare user-friendly tools for use by local planners.
These tools are now available for beta testing on FRA's Web site, and
FRA has also provided the results of the preliminary calculations for
communities with existing bans based on existing inventory data (as
well as the assumption that the community will elect to include all
crossings in a New Quiet Zone).
In FRA's experience, State and local government personnel such as
city managers and county engineers are extremely capable professionals
who are very unlikely to be daunted by the preparations required under
this rule. Further, FRA crossing safety managers in each of FRA's eight
regions will be available to work with communities and ``walk them
through'' the necessary analysis, as well as participate in diagnostic
teams established by State and local governments to evaluate options
for safety improvements where they are required. No community will have
to ``go it alone,'' because FRA will provide technical assistance.
Finally, FRA has provided a substantial extension of time for
communities with existing whistle bans to convert their corridors into
quiet zones without intervening disruption caused by the train horn. In
response to the statute's direction to ``take into account the interest
of communities'' with existing bans, the proposed rule would have
allowed a maximum of three years from issuance for implementation, with
the third year available to communities that had implemented some form
of education or enforcement program. This interim final rule, by
contrast, allows five years from its publication (four years from the
effective date of the requirement to use the train horn) for
implementation by individual communities. Communities had complained
that the requirements of State and local budget cycles required more
time for planning and securing funding. Further, it was noted that
engineering improvements may require substantial lead time and that
railroads may have limited staffing in relation to a compressed
schedule for installing new warning systems in a number of communities
on their lines. FRA agrees that an extended schedule is warranted.
Further, FRA has recognized that some States (notably Illinois and
Wisconsin) have large numbers of whistle bans and that some exist in
communities of concern with respect to environmental justice. In
situations such as this, it may be imperative for some Federal funds to
be allocated by sources for which engineering improvements are eligible
(e.g., the Surface Transportation Program and the National Highway
System program). These allocations would be made by the State
departments of transportation based on plans developed through the
metropolitan planning organizations, a process that can require several
years. Because of competition for uses of these funds, a State may not
be able to allocate Federal funds for these purposes in a single fiscal
period. Similar considerations would presumably apply to distribution
of any funds made available from State sources. Accordingly, in order
to create an incentive for State participation in meeting these needs
(through allocation of Federal or State funds), FRA has allowed a full
eight years for communities with existing whistle bans to complete
quiet zone improvements if (i) the State steps forward with a plan to
provide assistance, and (ii) actual improvements in at least one
community within the State are effected before the end of the fourth
year.
FRA is acutely aware that this extended implementation cycle could
be subject to abuse. Accordingly, FRA has included in the rule
procedures to ensure that good faith progress is made toward completion
of improvements that communities promise to undertake. Where that does
not occur, FRA will notify the railroad to sound the train horn as the
rule requires.
F. Existing Bans and New Quiet Zones
FRA has endeavored to fashion a final rule that establishes as much
parity as possible between communities with existing whistle bans and
those that wish to establish them in the future, while recognizing
legitimate differences. The rule puts both types of communities on the
same footing, as follows:
[sbull] The rule starts from the premise that after a certain time
the train horn will sound unless an appropriate exception is satisfied,
regardless of prior practice.
[sbull] Both the ``haves'' and the ``have nots'' may establish
quiet zones by implementing SSMs and ASMs sufficient to compensate for
loss of the train horn; and both may take their risk reduction at the
corridor level, normally without making improvements at every crossing.
[sbull] The rule allows establishment of quiet zones even without
SSMs and ASMs if--
(I) In the case of an existing whistle ban corridor, risk is shown
to be at, or below the Nationwide Significant Risk Threshold or be
below twice that level and the corridor has had no relevant collisions
during the preceding five years; or
(ii) In the case of a New Quiet Zone, risk (after adjustment to
account for silencing the train horn) is shown to be at or below the
Nationwide Significant Risk Threshold.
[sbull] If a community avoids expenditures related to creation of a
quiet zone because it falls below the Nationwide Significant Risk
Threshold and risk increases to above the threshold, the community is
required to compensate for that increase in risk within a period of
three years, or the railroad will be required to sound the train horn.
[sbull] All communities are subject to the same filing and
inventory maintenance requirements.
Some differences in approach to existing whistle ban jurisdictions
and New Quiet Zones have been necessary, as well. We have already said
that existing whistle ban jurisdictions are different, as a practical
matter, because public and private planners (e.g., zoning officials,
citizens purchasing residences, businesses locating shops) have made
choices in reliance on the belief that the train horns will not sound.
The statute enjoins us to take their interests into consideration, and
the grace periods provided under the rule (five and eight years)
maintain community quiet well ahead of community actions that would
otherwise warrant that result.
The fact that existing whistle ban jurisdictions have known
accident records under circumstances where the horn is not sounded also
permits some additional latitude. FRA has noted significant variation
in the outcomes where whistle bans have been enacted
[[Page 70601]]
or observed. Although some of this variation is the result of limited
exposure to rare events, some of it likely reflects the existence of
circumstances that are different in the communities (nighttime vs. 24-
hour bans, strong or weak law enforcement, generally good sight lines
or poor ones, etc.). Over time, the presence or absence of such factors
will be revealed in the accident rate. An important feature of the
interim final rule creates an exception for existing whistle ban
communities with no recent horn-relevant accidents but with risk levels
that are above the Nationwide Significant Risk Threshold but below a
value equal to two times that threshold. This exception remains until
the community experiences a horn-relevant accident, after which it is
judged by the same standards as other communities (with a 3-year grace
period if it elects to adopt SSMs or ASMs).
The issue of whether flashing lights and gates should be required
as a baseline condition for a quiet zone has similar characteristics.
In the NPRM, FRA specified that all crossings in any quiet zone should
have flashing lights and gates based on the following practical
considerations:
[sbull] At passively signed crossings, the motorist is expected to
``yield'' to oncoming trains. But the only warning of a train's
approach is provided by the train itself, including the headlight and
auxiliary alerting lights, and the train horn (if used).
[sbull] Because of obstacles in the ``sight triangle,'' track
curvature, angle of intersection, or adverse weather, there are some
circumstances where only the horn may be effective in aiding the
motorist's decision.
[sbull] It is unfair to place a burden on the motorist to yield
without providing the best available information to inform the
decision.
[sbull] Crossings equipped with flashing lights but no gates are
similarly situated, except that the motorist is expected to stop but
under most State laws may proceed if ``safe'' to do so. In many cases
motorists are left with ambiguous information regarding the appropriate
response.
Accordingly, FRA continues to be convinced that, with respect to
quiet zones where the train horn is silenced for the first time,
flashing lights and gates should be provided at all public crossings.
Motorists using such crossings will for the first time be deprived of
auditory warnings, which would place them at significant peril if no
additional warnings are provided.
However, FRA recognizes that a significant number of whistle ban
crossings exist today, particularly in the State of Wisconsin, where
only passive signage or only flashing lights are provided. There is now
risk data specific to those situations. Further, the statute asks us to
give ``special consideration to the needs'' of communities where these
crossings are located, and public and private planners have made
decisions in reliance on the status quo. Finally, FRA will have
achieved the principal safety objective of this rulemaking if
significant risk to persons associated with the absence of the train
horn has been abated.
Accordingly, FRA has determined that it is appropriate to allow
conversion of existing whistle ban corridors into Pre-Rule Quiet Zones
without requiring that flashing lights and gates be provided at all
crossings. FRA has further provided that, where the proposed Pre-Rule
Quiet Zone exceeds the relevant risk threshold (making it necessary to
compensate for absence of the train horn), the community may credit the
risk reduction associated with installation of flashing lights and
gates toward the required effort. In many cases this will not result in
all crossings being so equipped, but it will encourage use of the most
important single safety improvement available in the highway-rail
crossing toolbox.
G. Requirements for the Train Horn and Its Use
On the effective date of that portion of this rule which mandates
use of the train horn, State laws concerning use of the train horn at
highway-rail crossings will be preempted. This rule will also require
the modification of railroad operating rules that are in conflict with
it. FRA already has in place a rule that sets a minimum horn loudness
of 96 dB(A) at 100 feet in front of the train. The method for
conducting that test, a possible maximum level for the horn, and the
manner in which the horn is sounded have been issues in this
rulemaking. In approaching this complex of issues FRA has tried to
balance several considerations, specifically--
[sbull] The need to make it possible for motorists to be warned
within their vehicles, with windows closed, at a point on their
approach to the crossing where the information is useful; and
[sbull] The need to limit dispersal of horn noise into the
community (other than at the crossing and its approaches) to the extent
feasible.
Although FRA can foresee the possibility of further refinements in
these decisions over the next few years as information becomes
available, the comments received in this rulemaking, coupled with
further research conducted in response to those comments, have provided
a good foundation for resolving these issues.
The first group of issues has to do with the horn itself. FRA had
hoped to describe engineering characteristics of the horn that would
mitigate the dispersal of noise into the community (in railroad
parlance, ``to the field''). This issue has been presented primarily
due to the relocation of horns to the center of the locomotive roof, a
choice made by railroads to reduce crew occupational noise exposure. At
FRA's technical conference on acoustical issues, the major railroads
arranged a presentation by a recognized expert who described a ``shadow
effect'' produced by the locomotive profile that results in
misleadingly low sound level readings at the location specified in
FRA's current test procedure. The point of calling attention to this
was to emphasize that in terms of actual dispersal of noise the noise
levels to the field do not, in fact, exceed those to the front (as
might be suggested by readings taken just 100 feet directly in front of
the locomotive at only four feet above the track). The overall lesson
FRA was asked to take from the presentation is that while center-
mounted horns are not louder to the field than to the front, neither
can they be made highly directional.
A secondary lesson from this presentation and a subsequent field
study is that, by testing the horn at roof height (which under the
noise models actually is more proportional to the noise received at the
crossing), it may be possible to ``turn down'' some roof mounted horns.
As a result, FRA adopts a new test procedure in this interim final rule
that retains the 100 foot distance but places the sound level meter
receptor at roof height (i.e., out of the locomotive's ``shadow'').
Another objective of this rulemaking has been to set a maximum
sound level for the horn. The NPRM proposed consideration of two
values--104 dB(A) (which was seen as more appropriate for actively
signed crossings) and 111 dB(A) (which was viewed as more appropriate
for passively signed crossings). Although FRA's general rationale was
reasonably well received by some commenters, many others appeared
convinced that train horns are too loud and should be significantly
reduced in volume. FRA has continued to evaluate the issues identified
in research referred to in the NPRM, including refined analysis using
signal detection theory, and is persuaded that a maximum value of 110
dB(A) should be sufficient to alert motorists in most situations,
[[Page 70602]]
including a small margin of error associated with test instrumentation
and setup. Accordingly, the interim final rule requires that railroads
progressively test their locomotives and reduce the air pressure (or
alter the aperture) on all horns to produce a maximum volume of no more
than 110 dB(A) as measured 100 feet in front of the locomotive at roof
height. FRA expects that most freight railroads and Amtrak, whose
locomotives operate over a variety of highway-rail crossings across the
Nation, will set their horns near the maximum allowed to provide
effective warning at passively signed crossings. FRA expects that
commuter authorities which operate primarily over crossings with
flashing lights and gates may set horns in the lower portion of the
allowed range. This overall process, by enforcing a maximum below the
known sound level of some center-mounted horns, may modestly reduce
noise in some communities.
It should be noted that FRA did not find it possible to do as the
NTSB suggested in its comments to the docket, which was to ``select a
sound level that will maximize safety at all highway-rail grade
crossings.'' To reach every driver with the horn (including each driver
with a stereo turned up to maximum volume under all conditions of
traffic conditions, pavement surface, weather, etc.) would require a
volume so great that the effects on communities and crew members would
be clearly unacceptable. However, in selecting the maximum level FRA
has taken into consideration the NTSB's findings from its study of
passive crossings. Further, FRA has completed additional work on sound
detectability that suggests more favorable results at actively signed
crossings where the driver has a heightened awareness of the possible
presence of a train and where a very high signal-to-noise value should
not be required. Dissemination of NTSB and FRA studies should put
railroads in a favorable posture to determine horn loudness appropriate
to their operating conditions, achieving the lion's share of the
potential risk reduction.\3\ Further, our heightened understanding of
the limitations of the train horn should help clarify the need to
implement of active warning systems where they are not already provided
as funding becomes available.
---------------------------------------------------------------------------
\3\ The NTSB's Passive Crossing Study has been construed by some
as an attack on the safety value of the train horn because it cited
examples of situations at passively signed crossings in which the
horn's signal-to-noise ratio likely did not meet a pre-established
criterion. Neither the NTSB's report nor its comments in this docket
question whether the horn is effective in preventing some accidents.
Rather, the NTSB has ventured the conclusion that certain accidents
have occurred at passively signed crossings where the horn did not
provide a sufficient warning given the background noise and other
factors. FRA's position in this rulemaking is consistent with this
conclusion.
---------------------------------------------------------------------------
The final issue concerns the manner in which the horn is sounded.
The actual pattern of ``two long, a short and a long'' is well
established, and FRA finds no reason to alter it. It is necessary to
sustain the warning provided by the horn through a period of 15 to 20
seconds prior to arrival of the train at the crossing in order to reach
motorists situated at various points on the roadway under varying
angles of intersection and differing vehicle and train speeds. It is
not possible to just give a ``toot,'' as suggested by some, and still
provide the unmistakable and persuasive warning needed to deter risky
motorist behavior.
FRA did note in the NPRM, however, that the traditional practice of
requiring that the horn be sounded approximately one-quarter mile
before the crossing is excessive when train speeds are well under about
45 miles per hour. Accordingly, FRA proposed that it might be possible
to use a time-rather than distance-based criterion. Representatives of
the Brotherhood of Locomotive Engineers (BLE) seized upon this
suggestion in their testimony, affirming that this could be
accomplished. Accordingly, the interim final rule requires that the
horn must begin to be sounded between 15 and 20 seconds prior to the
arrival of the train on the crossing and while the lead locomotive is
moving over the crossing, but for a distance no greater than one-
quarter mile (1,320 feet). This time-based approach should reduce
unwanted noise without compromising the usefulness of the warning
provided. Sounding the horn over a distance greater than one-quarter
mile would add no value, since the loss of volume associated with the
distance involved would almost certainly prevent any effective warning.
FRA expects that railroads will leave existing whistle boards in place
to assist engineers in estimating where to begin sounding the horn,
given the speed of the train approaching the particular crossing.
H. Post-NPRM Ban Impact Studies
Following publication of the NPRM, various commenters indicated
they had more accurate data and information regarding which crossings
are subject to whistle bans. The Wisconsin Rail Commissioner, the Maine
DOT, and the City of Chicago DOT provided a sufficient amount of new
data with respect to affected crossings to warrant a revision to the
FRA ``Updated Analysis of Train Whistle Bans'' (January 2000). Chicago
area commenters (Hafeez and Laffey) also performed an independent study
of the effects of whistle bans in the Chicago Region and concluded that
whistle bans do not affect accident frequency in the Chicago Region.
Commenters from Wisconsin indicated that there were a significant
number of whistle ban crossings in Wisconsin that did not have active
warning devices but had good safety records.
FRA therefore contracted with Westat, Inc., a nationally respected
statistical research firm. The purpose of the Westat Inc., contract was
to: (1) Revise the 2000 FRA analysis of whistle bans to reflect the
more accurate data received post publication of the NPRM, (2) obtain
independent, expert review regarding FRA's methodology, and if
necessary, recommendations as to ways to improve it; and (3) evaluate
the points raised by representatives from the Chicago Region and the
State of Wisconsin by performing regional studies of the effects of
whistle bans in the two areas.
Westat--2002
In the initial effort, Westat, Inc., utilized the same study period
as FRA's update (1992-1996) (Zador, Paul L., April 1, 2002). The
methodology employed was a refinement on FRA's stratified method
comparing accident histories of crossings with similar predicted risk.
Westat concluded that on a nationwide basis (excluding Florida),
adverse whistle ban effects were statistically significant at levels
well below the conventional significance level of 5 percent, regardless
of warning device class. All three classifications of warning devices
experienced a higher accident rate in whistle ban areas as follows
(National data excluding Florida only and excluding Florida and the
Chicago Region):
------------------------------------------------------------------------
Percent difference
-------------------------
Warning device class (with (excluding
Chicago) Chicago)
------------------------------------------------------------------------
Passive....................................... 52.6 64.2
Flashing Lights............................... 43.2 69.1
Gates......................................... 44.4 57.6
------------------------------------------------------------------------
FRA had asked Westat to attempt regional analysis where the
crossings appeared to be sufficiently numerous to permit at least some
comparisons (i.e., Wisconsin and the Chicago Region). Data for
Wisconsin generally indicated an increase in accident risk for each
type of warning device with bans in place, whether the Wisconsin
whistle ban crossings were compared with other similar Wisconsin
crossings or with
[[Page 70603]]
similar crossings nationally. Westat found, that in Wisconsin, due to
the relatively small sample sizes, estimates for ban effects were not
statistically significant at the conventional 5 percent level, with one
exception. The accident rate for passively marked whistle ban crossings
in Wisconsin was 84 percent higher than for passively marked crossings
nationwide (excluding Florida and the Chicago Region) where train horns
were sounded. This result was statistically significant. However, model
fit was determined to be poor.
In reviewing the data for the Chicago Region, Westat found several
unexpected results. Comparisons of Chicago train horn and ``whistle
ban'' \4\ crossings within Chicago indicated higher accident rates at
crossings where the train horn was used, but the data did not fit the
model well (with the upper confidence limits for two of warning types
well into the positive range).
---------------------------------------------------------------------------
\4\ As noted below, this is really a misnomer. There are no
train horn bans in the Chicago Region, only exemptions that
railroads may utilize if they wish.
---------------------------------------------------------------------------
When Chicago Region ``whistle ban'' crossings were compared with
similar crossings in the Nation where train horns sound, results for
passive and flashing lights categories again showed lower accident
rates at ban crossings; however, estimates for the effects of no-
whistle policies were not statistically significant at the conventional
5 percent level. The accident rate for gated whistle ban crossings in
the Chicago Region was 34 percent higher than for gated crossings
nationwide (excluding Florida and the Chicago Region) where train horns
are sounded, and this result was statistically significant.
With respect to the gated crossing estimate for Chicago, Westat
stated that the weight of this evidence was weakened by the fact that
the model did not fit the data well. Specifically, in the Shapiro-Wilks
test for normality of deviance residuals, the normal hypothesis was
rejected for gates based on comparisons with the Continental U.S.,
Florida and Chicago Region Excluded.
Westat--2003 (Final Study)
FRA found the results of the 2002 Westat study appeared to
reinforce inferences FRA was deriving from other information related to
the Chicago picture that may explain the Chicago data. In particular,
FRA had noted that significant ``discretionary selection'' had occurred
in the Chicago Region with respect to the crossings at which ``no
whistle'' policies would be implemented. That is, horns were being
silenced primarily at crossings that were inherently safer than others.
Further, FRA noted that a growing body of information supported the
conclusion that several hundred crossings initially believed to be
impacted by a no-whistle policy either had never been in that status or
had not been for several years. (How this occurred is more fully
discussed under ``Chicago Region'' below.) Accordingly, FRA
commissioned Westat to do further work, resulting in the final study on
the impact of train horn bans (Zador, Paul H., June 2003). The design
for this study differed in three important respects from the earlier
work:
1. The set of Chicago Region ``no whistle'' crossings was corrected
to a much lower number based upon docket filings from the Illinois
Commerce Commission, the AAR and Metra.
2. The study period was brought forward to address the most recent
complete accident data contemporaneous with known crossing status
(1997-2001).
3. Rather than simply employing the previous FRA method with
refinements, Westat was asked to apply whatever statistical techniques
it thought appropriate to derive the most valid results.
FRA received the Westat final report in May of 2003. In an attempt
to determine the most meaningful explanation of the data, Westat
applied four distinct statistical methods, with certain variations
within the methods:
[sbull] The first method divided the crossings into two groups: one
group with whistle bans and the other without. FRA's basic Accident
Prediction Formula (APF) was applied to each crossing and then each
group was sorted by the results of the APF. Then each group was
stratified into ten categories with each stratum having the same
accident count for the 1997-2001 study period. Finally, using both
Poisson and Poisson-Normal regressions, the two groups were compared
and the effect of the whistle ban was estimated.
[sbull] The second method is the same as the first except six
strata were used instead of ten.
[sbull] The third method did not divide the data into two groups
and stratify them. Instead, a Poisson regression analysis was applied
to the entire data set. The regression included all the variables used
by the APF plus others including a \1/10\ flag for whistle bans. The
regression coefficient for the whistle ban was used to estimate the
effect.
[sbull] For the fourth method, a Poisson regression analysis was
applied to the entire data set in a manner similar to the third method
except the \1/10\ flag for whistle bans was not included. This
regression yielded a revised version of the APF. Then, the crossings
were divided into two groups (with and without whistle bans), and each
group was divided into ten strata using the revised version of the APF.
Finally, using Poisson-Normal regressions, the two groups were compared
and the effect of the whistle ban was estimated.
On a nation-wide basis, the third method produced the most precise
estimates for the effect of the whistle ban, so FRA has selected this
method as the basis for its evaluation.
Once again, all three classifications of warning devices
experienced a higher accident rate in whistle ban areas as follows
(National data excluding Florida only and excluding Florida and the
Chicago Region):
------------------------------------------------------------------------
Percent difference
-------------------------
Warning device class (with (excluding
Chicago) Chicago)
------------------------------------------------------------------------
Passive....................................... 71.6 74.9
Flashing Lights............................... 21.7 30.9
Gates......................................... 43.4 66.8
------------------------------------------------------------------------
The results for the Nation without Chicago provided the most
reliable data. The results for passive and gated crossings were
statistically significant well below the conventional 5 percent level.
The model offered less confidence for crossings with flashing lights
(Prob [t] = 0.08), but the estimate is consistent with the
results of FRA studies for the earlier period and represents the best
information available regarding the effect of bans on the accident
rate. Accordingly, FRA has employed the results for the Nation
excluding Chicago as the national estimates of effectiveness for
crafting this interim final rule.
The 2003 Westat report also attempted to derive results for the
State of Wisconsin. Results differed substantially between intra-State
and Wisconsin-to-national comparisons, even though all values showed a
positive effect from the train horn and two of the three warning device
categories had significant results in each of the analyses. FRA sees no
basis for deviating from the national averages for the warning device
categories without a better qualitative understanding of any underlying
differences in risk profiles.
The Chicago Region results are briefly summarized here and then
discussed in full context and at greater length below. The no-whistle
crossing set provided to Westat included only 21 crossings with
flashing lights and 21 passively signed crossings. As Westat noted,
that is too few crossings from which to derive
[[Page 70604]]
statistically meaningful results, and none were determined. FRA will
apply the national estimates of ban-induced accident increases for
passive crossings and flashers-only crossings to the Chicago Region.
Westat's calculations for the Chicago Region once again showed a
negative effect from use of the train horn at gated crossings when only
Chicago Region crossings were included in the analysis, but results
were not statistically significant. For reasons more fully developed
below, this result was expected, since railroads in the Chicago Region
have been free to select which exemptions to observe and which to
ignore.
However, Chicago gated no-whistle crossings experienced 17.3
percent more accidents when compared with the national gated crossings
where the train horn sounded. This result was not statistically
significant at the conventional 5 percent level, but it is more likely
than not that the value is positive (P [t] = 0.312).
Comparing this result with the national data, Westat noted that ``the
ban effect in the Chicago Region is significantly different from the
ban effect in the rest of the nation.'' Taking note of this finding and
other information discussed below, FRA will apply a 17.3 percent
estimate of ban-induced excess risk to gated crossings in Chicago
Region Pre-Rule Quiet Zones. FRA will apply the national average for
gated crossings (Chicago excluded) to New Quiet Zones in the Chicago
Region. The rationale for this decision is more fully developed below.
Ban Effects/Train Horn Effectiveness
[Summary Table]
----------------------------------------------------------------------------------------------------------------
Reduction required from
Effect of ban (includ. ban risk to retain Pre-
Warning type \1\ no-whistle policy) on Rule QZ (percent Comment
accident frequency reduction and factor)
(percent increase) \2\ \3\
----------------------------------------------------------------------------------------------------------------
Nation (Except Florida East Coast Ry./and Chicago Region)
----------------------------------------------------------------------------------------------------------------
Passive.............................. 74.9 43 (.43)
Flashers only........................ 30.9 27 (.27)
Flashers with gates.................. 66.8 40 (.40)
--------------------------------------
Chicago Region
----------------------------------------------------------------------------------------------------------------
Passive.............................. 74.9 43 (.43) From national avg.
Flashers only........................ 30.9 27 (.27) From national avg.
Flashers with gates.................. 17.3 15 (.15) Regional estimate.
--------------------------------------
Florida East Coast Railway (FEC) \4\
----------------------------------------------------------------------------------------------------------------
Flashers with gates.................. To be determined Not applicable Regional estimate
subject to review.
----------------------------------------------------------------------------------------------------------------
Table Notes:
\1\ These are the primary warning device types. FRA is aware that a variety of arrangements are in place at
individual crossings and will provide guidance for association of the various arrangements with these
benchmark values.
\2\ This is the amount by which accident frequency has been estimated to increase when the horn is silenced.
\3\ This is the reduction in collision frequency that must be achieved in order to restore crossings impacted by
a ban to the level they would experience if the horn sounded. To simplify, if 10 accidents of equal severity
were expected in a ban area with gated crossings, a reduction of .40 would be required--to a level of 6
accidents--in order to retain the Pre-Rule Quiet Zone (unless a smaller reduction in accidents would place the
Quiet Zone Risk Index below the NSRT). As a matter of technical practice, the factor is applied to the
crossing's risk index.
\4\ Crossings on the FEC are currently subject to Emergency Order No. 15. FRA had found an alarmingly large
increase in the accident rate when nighttime bans were imposed at crossings with flashing lights and gates.
10. Funding
A number of commenters expressed concern that the NPRM was silent
as to potential funding sources for implementation of the proposed
rule. Generally, commenters indicated that without additional funding
being made available, quiet zone implementation would be beyond the
financial reach of many communities. Several commenters suggested that
the Federal government should provide the funding necessary to
implement quiet zones, while other commenters suggested that the
operating railroads should provide the funding or that the costs should
be shared among some or all interested parties (including Federal,
State, and local governments, as well as railroads, shippers, and other
users of the rail system).
Several individuals and local governments, citing local budget
constraint concerns, suggested that if the Federal government is going
to require additional safety measures at highway-rail crossings, then
the Federal government should provide the funds for such measures. One
individual representing a group of Massachusetts families suggested
that the costs of safety at highway-rail crossings should not be the
sole burden of communities abutting the railroad, because the general
public uses highway-rail crossings. This individual suggested that the
NPRM effectively proposes a tax on innocent citizens to protect those
who willfully violate traffic laws by illegally proceeding around grade
crossing safety devices in attempts to ``beat the train.'' A few
individuals suggested that the costs of implementing quiet zones should
be shared among the Federal government, railroads and local
communities. One of these commenters further recommended that because
the rail system is a national resource, the resulting noise impacts are
a national issue. Accordingly, this commenter suggested that
communities disproportionately affected by railroad noise should not
have to provide a disproportionate amount of funding to solve the
problem of railroad noise. This commenter recommended the development
of a formula to effectively normalize the amount of funding communities
would be required to contribute to the implementation of quiet zones
within their jurisdictions, based on norms present throughout the
United States.
Other individuals commented that because the impact necessitating
the
[[Page 70605]]
proposed rule has resulted from railroad operations and the railroads
are the parties that profit from rail operations, any mitigation
measures should be the responsibility of the railroads themselves. In
addition, one local Sacramento, California business suggested that
implementation of quiet zones would result in lower insurance and
litigation costs for railroads, and thus, railroads should share in the
costs of implementation.
Although most local governments indicated that due to existing
budget constraints, implementation of quiet zones would be very
difficult without the allocation of additional Federal funds, some
local governments did provide ideas for alternative sources of funding.
For example, the City of Moorhead, Minnesota has set up a special
downtown taxing district to fund the safety measures necessary to
implement a quiet zone. The City of Miami Springs, Florida, proposed
imposing a user fee, similar to that of airlines, for both passenger
and freight rail traffic. Other local governments proposed imposing
local property taxes on railroad right-of-ways to help fund safety
improvements in order to implement quiet zones (a measure that would be
prohibited by 49 U.S.C. 11501 which bans discriminatory taxation of
railroads).
Two Colorado municipalities, the City of Brighton and the City of
Fort Collins, requested confirmation that quiet zone crossing safety
measures qualify for Federal Highway Administration (``FHWA'') funding.
Another Colorado municipality, the City of Winter Park, requested that
either new Federal funding for implementation of quiet zones be made
available or the current Federal crossing safety program be expanded to
include crossing improvements necessary to implement quiet zones.
Although every commenting State also expressed concern regarding
potential funding sources, citing a general lack of availability of
State funds, some States specifically recommended against allocating
Federal safety funds to finance the implementation of quiet zones under
the proposed rule. Specifically, both the North Carolina Department of
Transportation (``DOT'') and the Ohio Public Utilities Commission
(``OPUC'') indicated that the proposed rule is directed at quality of
life issues, not highway-rail grade crossing safety. Accordingly, each
agency strongly recommended against the use of Federal safety funds to
finance safety measures necessary to implement quiet zones. In its
comments, OPUC specifically expressed the belief that funding for
projects in connection with the establishment of quiet zones should not
come at the expense of the State's ongoing grade crossing safety
programs. OPUC stated that ``[g]rade crossing safety must not be
compromised at some crossings in exchange for relative peace and quiet
at a handful'' of other crossings. Thus, OPUC argued that funds already
committed to traditional grade crossing safety programs should not be
used to fund quiet zone projects. Likewise, the Illinois Commerce
Commission stated that the proposed rule would distort the State's
multi-year grade crossing safety enhancement planning process and force
the State to redirect needed funding from important safety projects to
what the agency described as ``Federally mandated noise suppression
projects.''
In addition, explaining that the cost of SSMs will be prohibitive
to many State DOTs and many communities, the North Dakota DOT suggested
that the proposed rule would increase demand for already limited
Federal safety funds if such funds are made available to finance the
installation of safety measures under the proposed rule. Accordingly,
the North Dakota DOT specifically recommended against the use of
Federal safety funds to implement quiet zones. The New York DOT, on the
other hand, requested that additional Federal safety funds be made
available to implement projects under the proposed rule.
Railroad industry participants expressed the view that railroads
should not be responsible for the costs of installing, maintaining, or
repairing, the additional safety measures required to implement quiet
zones under the proposed rule. These commenters suggested that funds be
made available through the relevant highway authorities or the FHWA.
One commenter, the American Public Transportation Association,
specifically requested that FRA address this issue in a joint
rulemaking with FHWA.
Despite the wishes of the commenters, Federal funds have neither
been authorized nor appropriated specifically for implementing this
rule. Indeed, 49 U.S.C. 20153(A)(3) specifically provides that SSMs are
``provided by the appropriate traffic control authority responsible for
safety at the highway-rail grade crossing * * *.'' While there are no
dedicated funds set aside for the costs incurred in developing and
implementing a quiet zone under this rule, there are several categories
of transportation funding available that may be used by States and
localities for this purpose. FRA wishes to emphasize that at the outset
that it is unlikely that most improvements undertaken under this rule
would withstand the priority ranking requirements for safety projects
under Federal-aid highway programs, since the improvements may be
approximately neutral with respect to safety (as compensation is made
for the additional risk associated with silencing the train horn).
However, those funds constitute only 10 percent of one of the two major
programs. Further transfer between the two programs may be possible.
Further detail on Federal-aid programs follows:
The Transportation Equity Act for the 21st Century (TEA-21) was
enacted June 9, 1998 as Public Law 105-178. TEA-21 authorizes the
Federal surface transportation programs for highways, highway safety,
and transit for the 6-year period 1998-2003. TEA-21 is the current
legislation that funds both the Surface Transportation Program and the
National Highway System Program. The Surface Transportation Program
consists of a 10 percent safety set-aside and the balance of the
program, which is intended for general transportation improvements off
the National Highway System.
The requirements for the Highway-Rail Grade Crossings and Hazard
Elimination Programs are defined in sections 130 and 152, respectively,
of Title 23, United States Code. Projects funded with ``Section 130''
funds (23 U.S.C. 130) are intended to reduce the number and severity of
train collisions with vehicles and pedestrians at highway-rail grade
crossings. Typical projects include active warning devices (e.g.
flashing lights and gates), signing and pavement markings,
illumination, crossing surface improvements, grade separations, sight
distance improvements, geometric improvements to roadway approaches,
and the closing and/or consolidation of crossings. All public grade
crossing safety improvements are eligible for funding under this
program, but obligation of funds is subject to strict requirements for
ranking the priority of projects on a State-wide basis. Although use of
section 130 funds for projects under this rule will be warranted only
where those improvements exceed the minimum targets for risk reduction
set by this rule and where the projects are legitimately ranked as top
priorities within the State, it is important to remember that the bulk
of the approximately $4.1 billion expended under the section 130
program since 1974 has been used to improve crossing safety on city and
county roads across the Nation, including in whistle ban jurisdictions.
Indeed, the automatic warning systems required by several States as a
predicate
[[Page 70606]]
for whistle bans---and which are required in this rule for New Quiet
Zones--were in most cases installed with primarily Federal funds. Thus
prior Federal funding has already assisted local governments to some
extent in preserving Pre-Rule Quiet Zones and creating New Quiet Zones.
``Section 152 funds'' (23 U.S.C. 152 (Hazard Elimination Program)
are intended to implement safety improvement projects to reduce the
number and severity of crashes at hazardous highway locations,
sections, and elements on any public road. Typical projects include
intersection improvements (channelization, traffic signals, and sight
distance); pavement and shoulder widening; guardrail and barrier
improvements; installation of crash cushions; modification of roadway
alignment; signing, pavement marking, and delineation; breakaway
utility poles and sign supports; pavement grooving and skid resistant
overlays; shoulder rumble strips; and minor structure replacements or
modifications. It is important to note that grade crossing improvements
can be funded under section 152 if they are identified in a State's
hazardous location survey.
The difference between the sum of the funding levels for sections
130 and 152 and the overall 10 percent safety set-aside in STP is in a
category called ``Optional Safety Funds'' and is eligible for use in
either section 130 or section 152. In FY 2000, there was a total of
$368 million available in Optional Safety Funds, but only $21 million
(or 6 percent) was used on section 130 grade crossing safety
enhancement. Clearly this is an area where States can be encouraged to
change the mix of safety projects advanced using this funding to
accommodate more grade crossing safety improvements.
It should be noted that 90 percent of the STP funds are available
for general use. Local Metropolitan Planning Organizations, working
with the State departments of transportation, help determine how those
funds should be allocated. As FRA was advised by commenters in this
proceeding, community transportation needs differ. Without question,
engineering improvements under this rule would constitute eligible
projects deserving of consideration for use of this 90 percent share.
Under section 1103(c) of TEA 21, an amount of $5,250,000 per year
was set aside from STP funds, and this funding is to be used for
projects on designated high speed passenger rail corridors. Should a
quiet zone be desired on a portion of such a designated high speed
corridor, such funds could be used as a part of the overall high speed
corridor improvement project. Given the relatively small amount of
funding available under section 1103(c), it is perhaps unlikely that
any quiet zone improvements would rise to the top of the list on any
such corridor. However, note that there is a strong compatibility
between the kind of safety improvements desired for high-speed rail
corridors (``sealed corridor'' treatments) and the supplementary safety
measures identified in this rule.
Transfers of funds from other categories into the STP are
permitted, and any such transfers are not subject to STP set-asides or
suballocations.
[sbull] Up to 50 percent of National Highway System (NHS)
apportionments may be transferred to the STP; indeed, up to 100 percent
of NHS funds may be transferred to STP if approved by the Secretary of
Transportation, and if sufficient notice and opportunity for public
comment is given.
[sbull] Up to 50 percent of Interstate Maintenance apportionments
may be transferred to STP.
[sbull] Up to 50 percent of Bridge Replacement funds may be
transferred to STP.
[sbull] Funds apportioned to the Congestion Mitigation and Air
Quality (CMAQ) Program may also be transferred to STP, subject to the
following conditions. Up to 50 percent of the amount by which the CMAQ
apportionment for the fiscal year exceeds the amount that would have
been apportioned to CMAQ for that fiscal year if the program had been
funded at $1.35 billion annually may be transferred to STP. Transferred
CMAQ funds may only be used in air quality non-attainment and
maintenance areas.
Finally, please note that, with respect to roadways on the National
Highway System, improvements would be eligible for funding out of the
NHS.
The subject matter of this regulatory proceeding is the use of the
train horn at highway-rail crossings, not the development of
appropriations requests. Accordingly, FRA neither endorses nor argues
against earmarked Federal funding for this purpose. FRA does note that,
in general, State and local governments have argued against categorical
transportation programs and in favor of broad block grants over which
recipients could exercise full control. As reflected above, to a large
extent that has become Federal policy. Whether any deviation from that
policy is warranted by the fiscal impacts claimed to be associated with
this rule is a matter for review in other forums. Accordingly, FRA's
principal response to those arguing for Federal funding has been to
ensure, to the extent practicable, that any expenses attributed to
establishing Quiet Zones are no greater than necessary to maintain
safety.
As this interim final rule was being drafted, the Congress and the
Administration were preparing to address the reauthorization of surface
transportation programs (extending or replacing TEA-21). That process
was being complicated by reduced revenues, confirming FRA's conviction
that this interim final rule should allow additional time for
implementation of the rule. Although it is possible that the program
structure outlined above may be reorganized significantly in new
legislation, FRA does not expect any resulting reduction in the
flexibility afforded to the States (working with local Metropolitan
Planning Organizations) to affect the utilization of Federal
transportation funds.
11. Liability
Several commenters noted that the NPRM was silent as to the issue
of liability when an accident occurs at a highway-rail grade crossing
within a quiet zone established in accordance with the rule. The New
Jersey Department of Transportation (``DOT'') explained that
consideration should be given to how liability issues presented by the
rulemaking will affect public safety. Several commenters suggested that
legislation was necessary to prohibit lawsuits by anyone injured while
circumventing highway-rail grade crossing safety devices within quiet
zones. The Massachusetts town of Manchester-by-the-Sea commented that
the NPRM appeared to be a paternalistic effort directed towards those
who willfully violate traffic laws and illegally proceed around grade
crossing safety devices. This commenter also expressed concern that
railroads may be reluctant to agree to implementation of quiet zones
under the rule for fear that it would increase their risk of liability
if an accident did occur at a crossing within a quiet zone where the
railroads did not routinely sound their locomotive horns. Manchester-
by-the-Sea suggested that when there is willful conduct by a motorist
or pedestrian that jeopardizes his life or those of others, e.g.,
proceeding through activated gate crossing devices, railroads and local
communities should not be subject to liability if an accident occurs.
Accordingly, the Town recommended that FRA work with Congress to codify
limits to the liability of railroads and communities when those who
willfully violate traffic or trespassing laws are injured at rail
crossings within a quiet zone. Similarly, a Wisconsin State
[[Page 70607]]
legislative representative suggested that local communities should not
be liable for accidents occurring at grade crossings within quiet zones
established under the rule.
The North Carolina DOT suggested that communities pursuing quiet
zones in their jurisdictions should enter into agreements with the
relevant State and operating railroads agreeing to hold harmless the
State and railroads for any accidents or injuries that occur as a
direct result of these quiet zones. This same commenter emphasized that
the communities implementing quiet zones should assume all of the risk
associated with the quiet zones.
Commenters from the railroad industry strongly advocated that
municipalities seeking the establishment of quiet zones under the rule
should assume liability for all accidents that occur at crossings
within the quiet zones. Citing the historical sounding of locomotive
horns as a safety feature of railroads for the past century, the
Florida East Coast Railway argued that if a community insists that it
cease the sounding of the locomotive horns when traveling through its
jurisdiction, then that community should be willing to accept the
liability associated with the decision. The American Public
Transportation Association projected that passage of a rule permitting
quiet zones as proposed in the NPRM would probably lead to increased
insurance premiums for railroads.
Another concern raised by several railroad industry participants,
as well as an individual locomotive engineer, was the fact that State
law often imposes liability on individual members of train crews and
their employers when a train does not sound its horn at a highway-rail
crossing and an accident occurs. These commenters contended that
nothing in the NPRM would remove liability from individual train crew
members or their employers for failure to sound the locomotive horn in
the event of an accident in a quiet zone established pursuant to the
rule. A representative of the Wisconsin Central System suggested that
the rule should clearly state that failure to sound the locomotive horn
in a FRA approved quiet zone could not serve as a basis for imposing
civil liability on either the train crew or the employing railroad.
FRA appreciates the legitimate concern of the commenters regarding
liability issues surrounding creation of quiet zones under this rule.
We note that the proposed rule would have had the effect of relieving
individual train crew members and their employers from liability for
failure to sound the locomotive horn. The proposed rule clearly
provides that establishment of a quiet zone created no legal duty to
sound the horn in emergency situations. Because the rule clearly
covered the subject matter of such a duty, it would have prevented
State laws imposing such a duty. FRA does not expect that lawsuits will
never arise over collisions which may occur at crossings within quiet
zones, nor should FRA attempt to prohibit such suits since the cause of
such collision may in fact be due to factors other than the lack of an
audible warning. However, this rule is intended to remove failure to
sound the horn as a cause of action in such lawsuits involving
crossings within a quiet zone. We expect that the courts will determine
liability issues based on the facts of each case and after reviewing
the nature of this rule and its Federal requirements.
We expect that courts, following Norfolk Southern v. Shanklin, 529
U.S. 344 (2000) and CSX v. Easterwood, 507 U.S. 658 (1993), will
conclude that this regulation substantially subsumes the subject matter
of whether trains must sound warning devices at highway-rail grade
crossings and, therefore, preempts state law on that subject.
FRA perceives no reason why establishment of quiet zones under this
rule should result in higher insurance premium costs for railroads. In
fact, a quiet zone under this rule should be evaluated as much less of
an underwriting risk than a current whistle ban.
12. Wayside Horn
During FRA's initial outreach process prior to issuing the NPRM,
several commenters asked whether placement of a wayside horn (a horn at
the crossing and directed at oncoming motorists) might be entertained
as a supplementary safety measure. FRA also received comments in the
docket and at the public hearings on this subject. It is apparent that
there is interest in using such a device as an alternative means of
providing an audible warning to the motorist of an approaching train.
A wayside horn system would typically consist of horns mounted on
poles that are placed at the crossing. A horn would be directed towards
each direction of oncoming vehicular traffic. The system would be
activated by the same track circuits used to detect the train's
approach for purposes of other automated warning devices at the
crossing (flashing lights and gates) and would produce a sound similar
to the horn signal given by an approaching train.
At FRA's direction, the Volpe National Transportation Systems
Center conducted an initial evaluation of two wayside horn
installations at Gering, Nebraska in 1995 (Field Evaluation of a
Wayside Horn at a Highway-Railroad Grade Crossing, Final Report, June
1998). This evaluation noted that use of the wayside horn in lieu of
the train horn reduced net community noise impacts. The evaluation also
showed a 52 percent reduction in the number of incidents in which
motorists continued to drive over the crossing after the warning
device's gate arms had started to descend as compared to the baseline
data collected with the train horn sounding. There was no significant
difference between train horns and wayside horns for motorists that
drove around lowered gates. While the report indicated improved driver
behavior with the wayside horn, the report also contains analysis that
suggests questions regarding the effectiveness of that particular
installation in alerting motorists that should be answered before
implementing wayside horns as a substitute for train-borne horns.
Further, this evaluation did not contain adequate data or analysis to
permit a determination of whether a wayside horn could fully substitute
for a train-borne audible warning and additional evaluations at other
sites should be performed. The NPRM suggested three questions related
to the effectiveness of the wayside horn:
1. Does the particular system provide the same quality of warning,
determined by loudness at appropriate frequencies, within the motor
vehicle while it is approaching the motorist's decision point?
2. As currently conceived, a single stationary horn cannot give the
motorist a cue as to the direction of approach of the train or trains.
To what extent does this lack of directionality detract from the
effectiveness of the warning? Can wayside installation design be
altered to compensate?
3. To what extent will the stationary horn suffer from the lack of
credibility sometimes associated with automated warning devices, due to
the fact that it is activated by the same means? Over what period of
time may this problem arise, if at all?
Since the installation of the original wayside horn system in
Gering, NE, several other communities have installed wayside horns.
These sites include: Ames, Iowa, Parsons, Kansas, Wichita, Kansas and
Richardson, Texas. Additionally, other communities have had temporary
test installations of the wayside horns.
This topic generated a number of comments from various parties.
Additionally, the departments of
[[Page 70608]]
transportation from Iowa, Nevada, Missouri and Florida all supported
the inclusion of wayside horns as substitutes for train horns. The
Brotherhood of Railway Signalmen (BRS) cited design flaws as an
impediment to the effectiveness of wayside horns. The BRS also stated
that if wayside horns were permitted by FRA, it would be imperative
that the track circuits be used to detect the train's approach. The BLE
stated that it felt that additional testing should be required before
acceptance of the wayside horn.
Generally, commenters voiced strong support for the inclusion of
wayside horns as a supplementary safety measure under the rule. States
and local governments in particular, with the exception of the
California Public Utilities Commission (CPUC), were in favor of
including wayside horns as a supplementary safety measure. In support
of their positions, these commenters cited the Volpe Center study and
an Iowa Department of Transportation study, both of which have shown
reductions in gate violation frequency with use of wayside horns. The
cities of Gering, Ames, and Wichita all supported inclusion of wayside
horns as a substitute for locomotive horns. They expressed the view
that there was great community support for wayside horns and felt that
safety was improved. Ames, Iowa wrote ``* * * it [wayside horn] has
tremendously improved the quality of life and safety for our
residents.'' It is noted that Ames has installed wayside horn systems
at three additional crossings. The city administrator for Gering,
Nebraska also wrote that he had never received so many unsolicited
``thank you'' calls and letters from citizens as he had over the
installation of wayside horns. These same commenters, along with at
least one representative of the railroad industry, also indicated that
they believed that wayside horns provide a more cost-effective
alternative to train horns, than some of the other supplementary safety
measures included in the NPRM. The Florida Department of Transportation
(``DOT'') suggested that wayside horns be used in instances where it is
impossible or impractical to install the supplemental safety measures
articulated in the NPRM. The Florida DOT, however, did not elaborate on
the rationale for limiting the use of wayside horns to situations where
the installation of the identified supplemental safety measures is
impractical or impossible.
The AAR suggested that there is more certainty regarding the
effectiveness of the wayside horn than there is for the non-engineering
measures included in the NPRM as alternative safety measures. In
support of its assertion, the AAR submitted a copy of its report
entitled Wayside Horn Sound Radiation and Motorist Audibility
Evaluation that found that the latest model of wayside horn was louder
than previous versions and concluded that wayside horns are a viable
alternative to locomotive horns for audible warnings at highway-rail
grade crossings. However, recognizing FRA's misgivings about the
wayside horn noted in the NPRM, the AAR suggested that if FRA could not
definitively determine the effectiveness of the wayside horn prior to
issuance of the final rule, FRA should permit use of the horns as
supplementary safety measures at grade crossings subject to two
conditions: (1) Concurrence of the railroads operating at the
crossings, and (2) demonstration of the efficacy of the horns at each
crossing at which they would be installed.
The CPUC, however, asserted that there is currently insufficient
evidence that the wayside horn can provide protection comparable to
locomotive horns and opposed the use of wayside horns as a
supplementary safety measure until further data on the effectiveness of
the horns is collected. Other commenters voicing opposition to the use
of wayside horns for the same reason included the BLE and the BRS.
In response to FRA's first specific question posed in the NPRM--
whether wayside horns provide the same quality of warning within the
motor vehicle as a locomotive horn while a train is approaching the
motorist's decision point--a few commenters suggested that the wayside
horn gives equal or greater audible warning. For example, the City of
Wichita, Kansas, suggested that a wayside horn provides a uniform
quality of warning within a motor vehicle because while wind,
neighboring buildings, houses, fences and trees all affect the quality
of warning of the locomotive horn on a motorist at a crossing, only
wind would have an effect on the quality and uniformity of the warning
of a wayside horn. Other commenters suggested that wayside horns
provide consistent decibel levels directed exactly where motorists are
driving (i.e., at the crossings, not down the tracks). The City of
Roseville, California, cited a local wayside horn test that showed
consistently higher audible warnings directed at the crossing, while
reducing the noise impact to the surrounding communities.
In response to FRA's second question--whether the lack of
directionality from a wayside horn detracts from the effectiveness of
the warning--commenters supporting the use of wayside horns generally
agreed that the apparent lack of directionality does not detract from
the effectiveness of these audible warnings. Wichita pointed out that
as motorists approach rail crossings they often hear train horns from
nearby crossings on different rail lines so it is not clear from which
direction the train is coming anyway. The Kansas DOT suggested that the
issue of direction is moot since wayside horns are used in combination
with other automated warning devices (i.e., gates, flashing lights) and
that when crossing gates are down, motorists are supposed to stop and
wait for the train to pass, regardless of the direction in which the
train is traveling. The Missouri Department of Economic Development
suggested that wayside horns would encourage motorists' compliance
because drivers cannot tell how far away from the crossing the train is
by the sound of the wayside horn.
Only one commenter responded directly to FRA's third question--
whether the wayside horn would suffer from the lack of credibility
sometimes associated with automated warning devices due to false
activations of the signal system. Wichita suggested that the annoyance
associated with a wayside horn sounding in connection with an active
warning system's false activation may cause earlier public reporting,
and thus quicker railroad response to the problem location.
Several additional studies have been conducted on the wayside horn
since the initial study in Gering, NE. Ames, Iowa. One study
(Evaluation of an Automated Horn Warning System at Three Highway-
Railroad Grade Crossings in Ames, Iowa, by Gent, Logan and Evans, 2003)
documented the reduced noise impact to the community, public acceptance
of the horn system through surveys of residents and motorist, and
locomotive engineer opinions that the system was safe or safer than the
locomotive horn (obtained through surveys). No data on actual driver
behavior at the crossings were collected in this study. This study did
not analytically address any of the three questions posed by the Volpe
study.
The Wayside Horn Sound Radiation and Approaching Motorists
Audibility Evaluation (Mike Fann and Associates, May 2000) examined the
sound levels and frequencies emitted by the wayside horn. This research
collected data that showed that system that was tested provided a sound
level of 98 dB at 100 feet from the wayside horn. The sound level that
was produced met FRA's regulation for a locomotive horn that
[[Page 70609]]
requires a minimum sound level of 96 dB at 100 feet from the front of
the locomotive. The study also measured the frequency content of the
wayside horn and using signal detection theory indicated that 99
percent of drivers with only a partial anticipation of a train event
should hear the warning. No data were collected on actual driver
behavior. This study provides information towards answering the first
question suggested by the Volpe study. The sound level measured for the
wayside horn meets FRA sound level requirement. Signal detection theory
and measurement of the frequencies contained in the wayside horn
indicate that the driver should be able to hear the wayside horn.
Neither the Ames nor Fann study addresses questions two and three
concerning directionality and credibility of the warning.
Texas Transportation Institute of Texas A&M University, was engaged
by a manufacturer of a wayside horn system to revisit one of the
crossings in Gering, NE to assess the level of driver compliance with
the warning system after approximately six years of operation. Video
data of driver behavior at the crossing was collected for 16 days.
Driver compliance with the warning devices was then analyzed in the
same manner as the 1995 Volpe study. The study, entitled A Safety
Evaluation of the RCL Automated Horn System (Roop, May 2000), showed
that after six years of operation of the wayside horn that driver
compliance with the automatic warning devices at the crossing (flashing
lights with gates) was slightly better than the baseline driver
behavior observed when the locomotive train horn was used. It should be
noted that there was a noticeable decrease in driver compliance with
the use of the wayside horn from 1995 to 2000. However, driver behavior
in 2000 with the wayside horn was still slightly better than the 1995
driver behavior with train horns. This research goes towards answering
question number three.
After review of the accumulated experience with the use of wayside
horns, FRA has determined that the use of wayside horns at crossings
equipped with automatic flashing lights and gates as a replacement for
train horns has merit under certain well-defined conditions. It has
been clearly shown that wayside horns significantly reduce the noise
footprint that a community would experience when compared to the
routine sounding of train horns. At locations where wayside horns have
been installed, community acceptance has been great and city officials
cite that there has been no decrease in safety at the crossings. TTI's
study that revisited the original Gering, NE study after six years of
wayside horn use indicates that the wayside horn at that location is
still as effective as the locomotive horns used during the baseline
period.
The Northwestern University Center for Public Safety evaluated the
effectiveness of the wayside horn at three crossings in Mundelein,
Illinois. The study, entitled, Evaluation of the Automated Wayside Horn
System in Mundelein, IL (Raub, Lucke, January 2003), utilized video
monitoring of driver behavior, sound level measurements and survey
instruments to: (1) Assess the impact of wayside horns on the behavior
of drivers; (2) measure loudness of train horns and the wayside horns
in neighborhoods; (3) obtain the opinions of locomotive engineers on
perceived changes in driver behavior; and (4) obtain the opinions of
residents on the differences between locomotive horns and wayside
horns. The Village of Mundelein, located 35 miles north of Chicago, has
40 to 50 trains per day passing through. A baseline of driver behavior
was collected for three months during which there were 10,382 gate
activations. There were 367 incidents of drivers disregarding the
active warning devices (flashing lights and gates) during this period.
Locomotive horn use was then discontinued, and the use of the wayside
horns was instituted. Data was not collected until four months had
passed to allow for the novelty effect of the wayside horns to pass.
Video data was then collected for three months during which there were
only 97 incidents observed during the 8,683 gate activations. The study
results indicated a 70 percent decrease in the number of times drivers
disregarded the warning devices. Additionally, noise levels in
residential and business areas located near the tracks decreased by 80
percent. As in the Ames, Iowa study, there was acceptance of the system
by both the public and locomotive engineers. Ten out of the 12
locomotive engineers surveyed felt that the wayside horn was as safe,
or safer, than the use of the locomotive horn. This study contributes
towards answering question 2 by providing additional data on the
effectiveness of wayside horns in reducing incidents of driver
disregard of the warning devices. While the study does not
quantitatively study question 2, it can be inferred from the data that
the lack of directionality does not contribute to an increase in
incidents of driver disregard of the warning devices.
The interim final rule issued today provides that wayside horns may
be used in lieu of locomotive horns at crossings equipped with
automatic flashing lights and gates. See Sec. 222.59. Although clearly
a wayside horn produces sound, because of its lower noise impact on the
surrounding community, it may be installed within a quiet zone if the
public authority determines that it is appropriate to do so. If used
within a quiet zone, the risk at a crossing equipped with wayside horns
will not be included in calculating the Quiet Zone Risk Index or
Crossing Corridor Risk Index. It also should be noted that wayside
horns have not yet been classified by FHWA as traffic control devices.
If FHWA does classify them as traffic control devices, the wayside horn
must also be approved in the Manual on Uniform Traffic Control Devices
(MUTCD) or FHWA must approve experimentations pursuant to section 1A.10
of the MUTCD.
13. Horn Sound Level and Directionality
Train horns are clearly a major source of unwanted noise in
communities through which active railroad lines pass. FRA included in
the NPRM provisions designed to limit the dispersal of horn noise into
the community where the sound does not serve its warning purpose. These
provisions were a maximum limit on horn sound output and a limit to
sound emanating to the side of the locomotive. FRA has a long history
of working with the railroad industry to improve locomotive cab working
conditions and has been sensitive in this rulemaking to balance the
need to reduce noise exposure to operating crews with community noise
concerns. With the release of the NPRM and accompanying Draft
Environmental Impact Statement, FRA gave needed consideration to the
mitigation of locomotive horn noise on communities.
The NPRM proposed limiting the horn sound emanating to the side of
the locomotive to no more than the sound measured to the front, and FRA
had anticipated that this might cause railroads to modify their horns
to reduce some of the unwanted noise. Many commenters supported these
provisions and strongly favored reducing maximum horn sound output
levels from the high levels in general use. The NPRM discussed a
maximum sound level from horns of 104dB(A) for crossings with active
warning devices and 111dB(A) for passively signed crossings.
Communities generally commented in favor of using the lower sound level
in all cases. On the other hand, the NTSB commented that there is a
need for high sound levels to
[[Page 70610]]
overcome vehicle noise and to provide adequate warning at passive
crossings where significant responsibility and discretion is left to
the driver. The BLE preferred a variable horn that would allow the
engineer to decide when the high horn level was needed.
Because this issue presented complex questions that were not likely
to be emphasized in testimony on the extensive NPRM, and because FRA
sought to put detailed questions to the railroad industry regarding the
horn, FRA held a Technical Conference on Locomotive Horns during the
comment period. The conference was attended by railroads, the AAR,
locomotive builders General Electric and General Motors, and other
industry representatives. In the conference, AAR made FRA aware that
the testing procedures set forth in 49 CFR 229.129 were causing a
misperception regarding center mounted horns. Because the existing
Sec. 229.129 requires measurement of horns 100 feet in front of the
locomotive and 4 feet above the rail, it was claimed that an acoustical
shadow is cast on the measurement device by the locomotive body when
center mounted horns are sounded. This acoustical shadow dissipates
quickly as one moves further away or to the side of the locomotive. It
was suggested that the testing procedures were giving the impression
that center mounted horns were louder to the side than to the front.
Conference participants complained that the proposal limiting the horn
sound emanating to the side of the locomotive would force them to
relocate horns onto the cab from the center of the locomotive, and
would increase crew noise exposure. The use of shrouds or shields had
been tried by railroads in attendance, and they did not consider them
practical. The technical conference also helped FRA understand the
railroads' strong commitment to remain using compressed air warning
device systems and the many difficulties involved in equipping and
maintaining horn systems.
After reviewing the results of the technical conference and
comments on the horn provisions, FRA decided to conduct further tests
to quantify the effects of horn placement and the influence of
variations in available air horn models. A series of stationary tests
were performed by the Volpe National Transportation Systems Center
(VNTSC) at the Transportation Test Center in Pueblo, Colorado from
April 10 to 12, 2001. The results of these tests showed that the shadow
effect is very pronounced at the measurement location specified in
existing Sec. 229.129. When the traditional cab roof horn location was
compared in these tests with the center of the locomotive body horn
location which is current practice, the difference in location produced
no meaningful change in community noise exposure nor in the warning
signal projected beyond the immediate shadow of the locomotive body.
Horns located on the locomotive nose produced less objectionable
community noise but also resulted in weaker warning signals and
resulted in higher noise levels in the engineer's cab. FRA learned that
Transport Canada recently sponsored moving tests of locomotive horns,
which showed meaningful differences in the effectiveness of the warning
signal provided by horns mounted on the cab roof versus those mounted
on the center of the locomotive body. The research indicated that horns
mounted at the front of the locomotive on the cab roof produced a more
effective warning signal. Because the results of the stationary tests
and the technical conference did not justify the provision for a
maximum sound limit to the side of the locomotive, it has been
eliminated from this interim final rule. However, because the Canadian
research indicates that horn location may be a factor in the
effectiveness of the warning signal, further research is needed before
any regulatory changes are made.
FRA has determined that by changing the measurement procedures in
Sec. 229.129, the effect of the shadow can be removed from horn
measurement. FRA believes that this simple change, with the additional
requirement of remaining below a maximum sound level, will have the
effect of normalizing the sound output of all horns. The interim final
rule requires that horns be measured at the familiar location, 100 feet
in front of the locomotive, however the sound level meter receptor is
to be mounted at 15 feet above the rail (i.e. out of the locomotive's
``shadow'').
FRA also continued to review and refine the signal detection theory
application previously developed by the FRA Office of Research and
Development and reported by the Volpe Center (Railroad Horn Systems
Research, USDOT FRA/VNTSC, January 1999) using newly gathered horn
measurement data. While lower sound levels would reduce community noise
impact, an understanding of the relationship between horn sound level
and its detection by motorists is needed to preserve the safety
function of the horn. The detectability model was applied to the most
critical safety condition at passive crossings where no other audible
or visual warning device is present and where vehicles typically are
approaching the crossing at speed. In this case the model suggests that
a high likelihood of detection will occur when the horn is producing
108dB(A) at the measurement location, 100 feet in front of the
locomotive and at 15 feet in height. FRA added a margin to this level
to account for variability in the sound level meters and other factors
and set the maximum level at 110dB(A). Although FRA employed the best
available tools and knowledge to arrive at this level, additional
research may, over time, suggest a different maximum level.
This interim final rule requires railroads to comply with the
maximum horn level of 110dB(A) using the new measurement procedures to
certify their locomotives. Compliance with the provision is required
for new locomotives upon the effective date of this rule which is one
year after the date of publication of this rule. Additionally, each
existing locomotive shall be tested within five years of this
publication date and when rebuilt as determined pursuant to 49 CFR
232.5. FRA also anticipates that whenever repairs or modifications are
performed to locomotives that affect the performance of the horn
system, the railroad will re-certify the locomotive horn to comply with
Sec. 229.129.
With the establishment of the maximum sound level for locomotive
horns, FRA has also eliminated a plus and minus tolerance in making
compliance measurements of horns. FRA anticipates that railroads will
set their horns to be somewhat louder than the minimum and quieter than
the maximum to account for the minor inaccuracies of the Type II sound
level meters currently available. While FRA currently uses Type II
sound level meters to test for compliance with part 229.129, FRA may
use Type I sound level meters in the future.
Considerable effort has been expended to establish and quantify
both the significant risk reduction from regular use of locomotive
horns and also the level of sound that needs to be delivered to be
detectable. FRA continues to study these issues and may revise these
requirements as new information becomes available.
FRA also gave serious consideration to the option of requiring a
two-level horn selectable by the locomotive engineer. This approach
might allow a lower sound level for actively signed crossings.
Historically, horns had been fitted with modulating valves that did
provide some latitude for adjustment of the sound level, and
communities exposed to today's automatic sequencing horns have
expressed
[[Page 70611]]
concern at the results. However, there are a variety of practical
considerations that FRA would need to consider that have not been fully
developed in this proceeding before any mandatory standard could be
issued (e.g., the difficulties created by passively- and actively-
signed crossings in close proximity to one another). FRA will continue
a dialogue with railroads and communities on this issue. The rule does
not foreclose this approach where it fits local conditions, and FRA
will encourage railroads using locomotives that are dedicated to
particular line segments to explore this option.
Steam Locomotives
FRA has elected not to address horn sound levels on steam
locomotives in the rulemaking. Steam locomotives constitute a small
fraction of the locomotive fleet and are mainly concentrated on tourist
and scenic railroad operations with infrequent service in a largely
rural area. Given the strained financial circumstances of many museum
and tourist operations, and the limited noise impact the small number
of steam locomotives have on local communities, FRA has not, at this
time, elected to apply the maximum sound level limits to steam
locomotives. It should be noted, however, that a railroad operating a
steam locomotive within a quiet zone must silence its steam whistle in
accordance with this rule.
14. Chicago Regional Issues
A. Introduction
The six-county Chicago Region is host to the largest rail terminal
area in the Nation, and it accounts for the biggest concentration of
``whistle bans'' and associated casualties. Chicago communities and
Chicago industries have grown up with and around the extensive rail
complex, and the metropolitan area has benefitted greatly from an
extensive commuter rail system established by the State and funded by
the State and region with Federal assistance. Chicago's Union Station
is also a major hub for Amtrak intercity service. The most voluminous
and many of the most spirited comments we received came from Chicago
Region organizations and residents who wished to maintain existing
whistle bans. The train horn issue has a unique history in the region
that has contributed to the need for different treatment with respect
to the impact of no-whistle policies at gated crossings. For these
reasons, we provide considerable detail on train horn issues in the
Chicago Region.
This section of the preamble describes the regulation of horn use
at the State level in Illinois, explores its implications for horn use
and safety at the Chicago regional level, reports the comments from
Chicago Region and State officials in this proceeding, discusses the
difficulties in obtaining reliable and consistent data on where Chicago
Region whistle bans were actually in effect at a given time and how FRA
has attempted to resolve those difficulties and data anomalies, and
explains the actions FRA has taken in the interim final rule to respond
to Chicago-area concerns.
B. Legislative and Administrative Actions in Illinois
The recent history of train horn use in the Region has been
reported to FRA as follows. Historically, the State of Illinois
tolerated local ordinances banning whistles, and it appears railroads
had observed them to a substantial extent. On July 29, 1988, Illinois
Public Act 85-1144 (625 ILCS 5/18c-7402) became effective, requiring
that the horn be sounded by registered rail carriers at all public
highway-rail crossings.\5\ Railroads complied, resulting in a
substantial public outcry and court action.
---------------------------------------------------------------------------
\5\ A copy of the Illinois code provision, and copies of major
Commission orders, have been placed in the docket of this
proceeding. This material was provided by the Commission at FRA
request.
---------------------------------------------------------------------------
The Illinois Commerce Commission (ICC) responded by excusing
(exempting) all registered carriers from sounding horns at all highway-
rail crossings which (i) were provided with automatic flashing light
signals, or flashing light signals and gates, and (ii) had experienced
less than three accidents involving a train and a vehicle within the
prior 5 years.\6\ In general, to qualify for being exempted, it appears
that the crossing was required to have had the same type of warning
system in place over the past 3 years. ICC Docket Nos. T88-0050 (orders
of August 31, 1988; September 8, 1988; and October 12, 1988) and T88-
0053 (orders of August 31, 1988; October 12, 1988; and January 25,
1989).
---------------------------------------------------------------------------
\6\ Three accidents at a single crossing within 5 years in a
very large multiple of the typical accident experience among public
crossings. Most individual crossings will not experience a single
accident over a 10-year or greater period.
---------------------------------------------------------------------------
Notably, the Northeast Illinois Regional Commuter Railroad
Corporation (Metra) was not a named party in the ICC proceedings. Metra
is not regulated as a registered carrier due to its status as a public
benefit corporation of the State of Illinois (and accordingly is also
not required to sound the horn at crossings under State law).
By contrast, Metra service operated by freight railroads as
contractors to Metra, and Metra service provided over lines controlled
by freight operators, has been subject to the State law and the
jurisdiction of the Commission. Under Docket No. T88-0050 the ICC
addressed crossings on the lines of Metra's freight partners. The
Commission initially found all crossings meeting the basic requirements
(active warning and fewer than 3 accidents in 5 years) to be
``reasonably and adequately protected'' with the exception of two
crossings.
The Commission further found 16 crossings ``adequately protected''
despite the occurrence of (in one case) up to 5 accidents in the
previous 5 years, stating that ``at least part of that finding is based
on a commitment by or on behalf of the named governmental units to
increase enforcement of State laws as they apply to motorists obeying
automatic flashing light signals and gates. * * * '' The Commission
went on to require reports referencing enforcement and awareness
programs at the 16 crossings, stating in effect that it expected to see
an increase in safety enforcement activity (Interim Order of August 31,
1988 at 3). Notations attached to the copy of this order provided by
the Commission indicated that, in addition to the said 16 crossings, 29
crossings were initially identified for exemption under this order. In
a subsequent interim order of September 8, 1988, the Chicago and
Northwestern was excused from sounding the horn at the Nagle Avenue
crossing, again based on a commitment for law enforcement and
education.
The final order in this docket provided by the Commission was dated
October 12, 1988. In this order the Commission revised its express
decisional criteria as to at least the Nagle Avenue crossing, stating
that certain of the accidents at that crossing ``were the result of
persons deliberately ignoring the flashing lights and driving their
automobiles around the gates.'' \7\ The commission also provided relief
for two named crossings where warning systems had been recently
upgraded (notwithstanding the previous accident history). The net
effect of these actions appeared to have left the majority of the
roughly 565 crossings on the Metra system subject to the requirement
that
[[Page 70612]]
the train horn sound (or left them unaddressed from the point of view
of State law due to Metra's unique self-governing status). However,
that may not have been the case, as FRA has not had the opportunity to
review the entire file of the proceeding; and inquiries to the
Commission to clarify this point were complicated by the passage of
time and turnover of rail leadership. As noted below, if that was the
case it was swiftly altered by proceedings in another docket.
---------------------------------------------------------------------------
\7\ This constitutes the leading cause of collisions sought to
be prevented by this rulemaking, although the horn also has value to
the motorist who has misunderstood the message sought to be conveyed
by the traffic control device, has stalled on the crossing and needs
to vacate the vehicle, or who is faced with an activation failure.
---------------------------------------------------------------------------
Highway-rail crossings off the Metra system were subject to ICC
Docket No. T-88-0053. The ICC initially entered an emergency order
excusing the sounding of the horn under the basic criteria previously
described (August 31, 1988). A total of 113 crossings with automated
warning devices were identified for continued sounding of the horn
based upon the occurrence of 3 or more accidents between June 1, 1983,
and June 1, 1988. On October 12, 1988, the Commission entered an
interim order carrying forth this pattern, but adding exemptions for
crossings that had experienced recent safety improvements. It appears
that the list of not excused crossings was reduced to 50, with another
9 crossings set for exemption upon completion of planned improvements.
The final order in ICC Docket No. T88-0053 was entered on January
25, 1989. It incorporated 2 crossings on a Soo Line Metra route
(previously omitted from T88-0050) which were identified as not
excused. The Commission order stated that Appendix 1 listed all
crossings where sounding the horn was not excused under both dockets
(T88-0050 and T88-0053). Appendix 1 \8\ was a list of 53 crossings said
to be ``not excused,'' 9 of which were to be excused upon completion of
improvements and one of which is separately marked as not excused under
docket T88-0050. Of the 53 crossings not excused, 23 were in the
Chicago Region. Accordingly, by early 1989 the great majority of
crossings in the Region were excused, but 23 with the highest number of
recent accidents remained not excused.
---------------------------------------------------------------------------
\8\ The attachment FRA received from the Commission did not bear
the docket caption, but the Manager of the Railroad Safety Section
of the Commission confirmed that FRA had received the correct item
and that the caption had been obscured during copying.
---------------------------------------------------------------------------
After its initial actions in the 1988-1989 period, the Commission
evidently adjusted the terms of the exemptions over time, but the basic
practice remained in place. In 1994, the Commission conducted a review
of the train horn issue under Docket No. T91-0082. The Commission's
order of February 24, 1994, summarized its actions to that point as
follows:
After hearings and by orders in those dockets the Commission
excused registered rail carriers from whistling at crossings under
the terms and conditions as set forth hereinabove; at additional
crossings where a review of the type of accident at a specific
crossing indicated that whistling would not have prevented the
accident and at other crossings where governmental authorities
agreed to increase their enforcement activities of existing statutes
governing rail crossings, increase safety programs/presentations to
the public regarding same, and report to the Commission at six month
intervals those enforcement/presentation activities for a period of
two (2) years.
The Commission went on to indicate that the present order was intended
to take into account the accident history since the initial orders, as
well as changes in crossing status. In reporting the findings of
hearings and letters in this docket, the Commission noted that a number
of Chicago-area railroads, including Norfolk Southern, Illinois
Central, CSX and Chicago Northwestern (for crossings outside its
suburban commuter territory) indicated that they would sound horns at
all crossings even if excused. Order at 3. Though most of the
communities participating in the proceeding sought exemptions for
crossings within their borders, the City of Chicago stated it had no
objection to use of the horn.
The Commission consolidated the previous dockets under the new
number, rescinded previous orders and entered findings that made
adjustments based on experience, including excusing use of the whistle
at additional crossings that were ``reasonably and sufficiently
protected.'' In one instance sounding the horn was excused at a
crossing were ``a driver ignored operating gates and was hit and
citations for violating the gates were issued to that driver. * * *''
Id. at 5. But the Commission indicated that carriers would be required
to sound the horn at new highway-rail crossings that had not been in
service for 5 years, even though equipped with automatic warning
systems.
The Commission was explicit in stating that the statute ``does not
give the Commission any authority to prohibit the sounding of such
whistle warnings. * * *'' Id. at 5. The order notes that, in fact, if
communities wanted carriers to sound the horn they could request that
they do so despite exemptions; but there is no suggestion that local
jurisdictions could require railroads to honor exemptions by running
silent. Attachment 1 to this July 1994 order listed 53 crossings at
which carriers were not excused under the new order (39 older crossings
and 14 new crossings). There is little overlap between the crossings in
this list and those specified as not excused in the commission order in
the previous docket.
The Commission subsequently entered an amendatory order in Docket
No. T91-0082 (dated July 20, 1994) making various adjustments to the
prior order. The major effect was to cut back the list of new crossings
with insufficient exposure to 4 from 14 (so that carriers were excused
at another 10 crossings).
The Commission actions of 1994, which were based on accident data
through June 1, 1991, apparently had the effect of excusing most of the
Metra system crossings operated or dispatched by contract carriers,
with the exception of 5 Soo Line crossings. However, 14 additional
Chicago Region crossings without commuter trains were not excused.
In its 1994 orders, the Commission was silent with respect to the
wisdom of continuing to excuse crossings with fewer than 3 accidents in
a specified 5-year window in the past. The movement in the pattern of
exemptions from 1988 to 1994 was significant. If the Commission
considered the possibility that (i) sounding the train horns may have
reduced the risk of collision in the period 1989-1991 for crossings
that had previously experienced 3 or more collisions within the
overlapping previous period and (ii) excusing compliance with the train
horn at those crossings might drive the risk back up, the record
available to FRA is silent with respect to such consideration.
C. Actual Practice Sounding Train Horns in the Chicago Region
It is clear that, particularly prior to 1994, ICC orders excusing
the use of the locomotive horn contained significant exceptions, and
certain exceptions (applicable to largely different crossings)
apparently continue to date. While the ongoing rationale for Commission
decisions is apparently not consonant with the principles later applied
in Federal legislation leading to this rulemaking, Commission orders
without question have tended to withhold relief from use of the horn
for a significant number of crossings that are very high risk. In some
cases, communities may have been stimulated to engage in enforcement or
education efforts in order to support exemptions.
It is also apparent that freight railroads have taken disparate
points of view with respect to exemptions, with
[[Page 70613]]
some electing to blow the horn at all crossings and others taking a
more selective approach.
Much of the highway-rail crossing safety exposure in the Chicago
Region is found on the Metro commuter rail network, which includes the
following:
[sbull] Lines over which Metra has operated service directly and
subject to its own rules throughout the period 1988 to date (the Rock
Island District, South Shore Line, Southwest Service, and the Electric
District);
[sbull] Lines on which Metra operates in effect as a tenant, with
the freight railroad imposing operating rules and providing dispatching
(Milwaukee District West and North lines (Soo Line) and the Heritage
Corridor (CN));
[sbull] New service established using Metra crews over Wisconsin
Central in 1996 (North Central Service); and
[sbull] Freight lines over which the freight railroads provide
Metra service as contract operators (UP North Line, UP Northwest Line,
Wisconsin Central North Central Service, and BNSF Aurora line service).
Most of these lines carry significant freight volumes, as well as
significant numbers of daily commuter trains.
Throughout the period Metra has enjoyed discretion with respect to
whether to sound the locomotive horn at crossings where it provides
service directly, and Metra's host railroads and contract freight
operators have also enjoyed significant latitude as a result of the ICC
exemption policy. Metra testimony and filings in this docket indicate
that 69 percent of the 565 public grade crossings on the Metra route
system were no-horn crossings as of spring 2000. It follows that Metra
trains sounded horns at about 175 crossings and did not sound the horn
at about 390 crossings during that time period, but the picture may
have been somewhat different during earlier periods. FRA concludes that
Metra and its contractor operators have exercised discretion in whether
to sound horns, even where exemptions from the State mandate existed,
based upon safety concerns and community quiet concerns. Given FRA's
knowledge of safety programs, FRA believes that Metra has likely tended
to emphasize safety where risk is known to be relatively high based on
factors such as crossing characteristics (angle of intersection,
complexity of the roadway geometry including nearby roadway
intersections, history of accidents, crew reports of near hits, and
other factors). According to the ICC, Metra has also utilized some
time-of-day partial bans to address infrequent train movements during
early morning hours. While freight railroads in the Chicago Region have
apparently run silent as commuter operators over crossings where horn
sounding was excused, they have been much more likely to use the horn
when operating freight trains for their own accounts.
D. Current Chicago Region Whistle Ban Status
Quite obviously, the fact that the ICC excused use of the horn does
not mean that trains are running silent over the crossing. The current
total number of crossings in no-whistle status in the Chicago Region is
apparently significantly smaller than the original 846 identified by
the AAR and others in the early 1990's. As of August 3, 2000, the ICC
was estimating only 23 no-whistle freight-only crossings, all on the
Indiana Harbor Belt, and 320 crossings used by passenger and freight
trains (Metra system), for a total of 343 no-whistle crossings. Of this
number, 13 were affected by bans only during part of the day (e.g.,
nighttime or off-peak), and the remainder were 24-hour bans.
Information provided by the AAR on October 24, 2000 indicated a
total of 28 no-whistle freight-only crossings in the Chicago Region and
227 no-whistle crossings on the Metra route system for a total of 255.
The AAR noted that ``none of these railroads operates at public
crossings in Chicago without sounding the whistle unless the crossings
are equipped with gates or trains operate at speeds under 10 m.p.h.''
At approximately the same time Metra informed FRA that 130 crossings on
their property were no-whistle crossings. Between the year 2000 and
2002 some of these crossings were reported in the inventory as being
closed or no longer public. When combined and checked against year 2002
inventory records some 304 Chicago Region crossings were considered no-
whistle based upon AAR and Metra sources.
In November of 2002, the ICC provided an updated listing of
crossings in the State of Illinois indicating current whistle status
(based on actual practice). It showed 278 no-whistle crossings in the
Chicago Region and, of those, 226 corresponded with the 304 provided by
AAR and Metra. FRA also learned of 29 additional quiet crossings in
some other suburban Chicago communities for a total of 385.
To the extent that the ICC and AAR may not have queried all
railroads, particularly smaller short line and regional railroads, a
few crossings may have been omitted from these counts. The AAR and ICC
filings are also notable in omitting lines directly operated by Metra,
which is an AAR member. However, it is clear from the AAR's filing, as
well as representations made by railroads to the Commission in 1994 and
recent lists provided by the Commission, that the horn has been sounded
at the vast preponderance of freight-only crossings in the Chicago
Region since at least the 1994 time period.
The following table summarizes the available data for the mid-2000
period, including both partial and 24-hour bans for the Chicago Region:
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA Updated No-whistle No-whistle No-whistle
Total Nationwide crossings per crossings per No-whistle crossings as of
Crossings in Study (Jan. 8/23/2000 CATS 10/24/2000 AAR crossings per 2002 (FRA
Region (2002) 2002) estimates letter ICC 11/19/2002 reconciliation)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commuter............................................... .............. .............. 320 227 .............. 347
Other.................................................. .............. .............. 23 28 .............. 38
Total.............................................. 1,671* 846** 343 255 278 385
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Current total from FRA inventory with adjustments for known closures.
** Based on early AAR survey and crossings identified during outreach largely prior to the NPRM.
FRA's reconciliation in effect adds no-whistle crossings on Metra's
home lines to the AAR estimates and the information from the ICC. AAR
had included the no-whistle crossings on Union Pacific, BNSF, and
Wisconsin Central property, but not on Metra owned and operated routes.
Again, it is possible that these counts omit a few no-whistle
crossings, possibly those on railroads not surveyed by the parties.
[[Page 70614]]
E. Community Reaction to the Proposed Rule
Testimony from public officials representing the Chicago Region was
reasonably consistent in content. The major Chicago Region groups
argued that the collision rate at grade crossings in the Chicago Region
is lower than the nation--even with whistle bans. They argued that
FRA's Inventory data were outdated, that the rule is too costly, and
that it would take much longer to implement than FRA had proposed to
allow. Chicago commenters also postulated that the Chicago area will be
the most impacted by the rule. The general conclusion suggested by most
of the commenters was that the Chicago Region (or Illinois as a whole)
should be excluded from the final rule and left to implement its own
programs, which are said to be better suited to local conditions. This
testimony was supported by State-level officials.
FRA is familiar with the efforts of the Illinois Commerce
Commission, the Illinois Department of Transportation, Metra, freight
railroads, and many counties and cities to improve safety at highway-
rail crossings in Illinois, and specifically in the Chicago Region.
These efforts are presently well led and well coordinated, and the
State contributes significant resources. Nevertheless, in the year
prior to the testimony on the proposed rule, Illinois led the Nation in
fatalities at highway-rail crossings. The State regularly places second
or third in that category, even though collisions and casualties
declined over the decade of the 1990s (as they did in the Nation).
This record is driven to a significant extent by the very heavy
exposure in the Chicago Region, where every weekday over a thousand
trains compete with millions of motor vehicles at almost 2,000 highway-
rail crossings. Collisions on major Chicago-area lines are more likely
to result in serious injuries or fatalities because of relatively high
train speeds associated with commuter service. FRA calls attention to
this issue not to be critical in any way, but rather to note the
importance of sustained effort by all responsible parties to meet this
continuing safety challenge.
FRA thoroughly reviewed all studies, testimony and comments
submitted by Chicago-area commenters, including the Speaker of the
House of Representatives, other Members of Congress, the Chicago Area
Transportation Study (CATS), Northwest Municipal Council (NWMC), Dupage
Mayors and Managers, and the City of Chicago, Department of
Transportation, among others. FRA also took official notice of
testimony before the Subcommittee on Ground Transportation of the
Committee on Transportation and Infrastructure, U.S. House of
Representatives, on July 18, 2000 (``Implementation of the Federal
Railroad Administration Grade-Crossing Whistle Ban Law,'' No. 106-101),
which focused heavily on the Chicago Region.
FRA endeavored to fairly evaluate the claim of special
circumstances, as well as to take the specific points into account in
relation to the National issue posed in this proceeding. What follows
is a discussion of FRA's findings, comparing FRA's data and
methodologies with those in submissions by Chicago-area groups. We also
discuss further the statistical analysis reported above with respect to
its significance for the final rule. We conclude that many comments
from the Chicago Region have valid application when tempered by other
available information, and we call attention to aspects of this rule
that reduce the impact of the rule at no-whistle gated crossings in the
region. As described above, FRA also developed a risk-based method for
excepting many communities from the train horn requirement. Moreover,
this interim final rule provides significantly more time for
implementation than did the NPRM.
F. Methodology/Inventory Data
As noted above, Chicago Region commenters generally viewed the
grade crossing safety record in the region as good. Many commenters
suggested that the train horn could not be an effective warning device
in the Chicago setting because of the number of train movements
(motorists would become inured to the warning). Thus, it was felt that
there was no difference in safety performance between crossings where
the horn is sounded and those where it is not sounded. (By contrast,
the ICC implicitly recognized the usefulness of the train horn but
argued more widespread use of the train horn would not be accepted by
the public and was not necessary given existing administrative
standards.) FRA has responded to the comments by thoroughly reviewing
the underlying data as well as conclusions derived from the data in the
NPRM.
To understand the controversy over Chicago data it is necessary to
recall several points regarding the Chicago Region at the outset.
First, virtually all of the crossings identified during public contacts
as of concern to Chicago residents with respect to termination of
existing horn exemptions are equipped with flashing lights and gates
(``gated crossings''). Second, as discussed above, the ICC required use
of the train horn at some of most hazardous crossings during at least
portions of the FRA study period; and, even when the Commission excused
use of the train horn, Metra and freight railroads often elected to use
the horn notwithstanding public opposition, if any.
It is also necessary to understand some basic information regarding
the data that FRA has available to work with. Accident/incident data
used in this rulemaking are reported to FRA by the railroads under
regulations having the force and effect of Federal law (49 CFR Part
225). The data are available on FRA's public Web site at the individual
crossing level, so local officials have the opportunity to call any
problems to the agency's attention. In general, FRA has every reason to
believe that these data are accurate, with the exception that a
recently-added field to identify the presence of a whistle ban appears
to be eliciting information of questionable quality (and FRA has not
relied on that field in this proceeding).
The characteristics of crossings (number of tracks, trains, motor
vehicle traffic, etc.) are determined by reference to the Department of
Transportation's national Inventory of highway-rail crossings, which is
maintained by FRA on behalf of all users. This is a voluntary data
collection effort, and the degree of cooperation in maintaining its
currency varies from year to year and among contributors. Substantially
all highway-rail crossings have been assigned Inventory numbers. Both
the State departments of transportation (for public crossings) and the
railroads (for public and private crossings) are requested to
contribute updates to the Inventory whenever circumstances change.
Since State departments of transportation receive Federal-aid highway
funds for crossing safety and other highway improvements, and since
under the ``section 130'' program States are required to maintain a
ranking of crossings by degree of hazard in order to plan allocation of
funds reserved for crossing safety purposes, it is reasonable to ask
the States to share data needed to analyze crossing risk at the
National level. It is also reasonable to ask railroads to provide these
data, since they have an interest in avoiding collisions at crossings,
as well as liability associated with such collisions. FRA has actively
promoted participation in maintaining the Inventory for the benefit of
all users.\9\
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\9\ In 1999, and again in 2002, the Department of Transportation
transmitted to the Congress draft legislation that would make
submission of current data to the Inventory mandatory for both
States and railroads.
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[[Page 70615]]
Some States, and some railroads, are more aggressive than others in
providing updated data for the Inventory. When FRA examined the
Inventory in the summer of the year 2000, FRA found that the average
age of the most recent Inventory updates for the State of Illinois was
nine years. Except as noted below, FRA's attempts to elicit more recent
information from State authorities during the pendency of this
proceeding have been largely unsuccessful.
Until recently, the Inventory did not contain a field for the
presence of a whistle ban, and FRA has not found notations in the
current inventory to be sufficiently complete or reliable. The issue of
which crossings have been subject to bans or exemptions during
particular periods of time has been resolved through two means. First,
in preparing the National Study relied upon in the NPRM, FRA relied to
a significant extent upon a survey conducted by the AAR (survey
information received in 1992) and on information received during
outreach in anticipation of this rulemaking.
Second, FRA has asked commenters in this proceeding to provide the
best information that they have available, including a direct request
to AAR to update its earlier survey of crossings (response received in
October of 2000).
Third, FRA has directly approached public authorities in the
Chicago Region asking for information. Finally, in the case of some
crossings for which the status was clearly questionable (both as to
whistle ban status and other data elements), FRA has reviewed railroad
documents and conducted site visits.
Given the discrepancies pointed out in the NPRM, FRA has sought to
obtain updated Inventory and ban information from the City of Chicago,
but that had not occurred more than two years after the requests were
made and as this interim final rule was being completed. (Attempting to
resolve this data problem has caused significant delay in this
rulemaking, as FRA has endeavored to use the best available and most
credible information in preparing this interim final rule. However,
given the policy choices FRA has made in this interim final rule, a
comprehensive resolution of the data problem has not proven necessary.)
Commenters on the NPRM questioned FRA's data, which FRA had
characterized as finding a significant effect from silencing the train
horn at gated crossings in the Chicago Region. Some of this criticism
was direct (challenging the relevant FRA data on gated crossings), and
other criticism was indirect (challenging data on passively signed and
flashers-only crossings that FRA had published to complete the public
record but had noted might be unreliable).
Most Chicago-area commenters were convinced that the whistle ban
grade crossing collision rate in Chicago is lower than the rate
throughout the rest of the nation, and many contended that the train
horn is wholly ineffective. In short, they doubted the conclusion
stated in FRA's Updated Analysis of Train Whistle Bans (January 2000)
that, on average, gated whistle ban crossings in the Chicago Region
experienced 58 percent more collisions than gated crossings with
similar predicted risk of a collision at which train horns sounded. Two
studies by associations of local governments, discussed below, seemed
to indicate different results.
As noted above in the discussion of the Westat reports, FRA
initially responded to the comments and analysis by contracting with
that statistical firm to regenerate the national study, using the best
available information for the study period 1992-1996, to maintain
comparability with the earlier work and to avoid what might be
temporary effects from the extensive publicity associated with this
rulemaking. FRA provided the best available information regarding the
status of crossings in Chicago during the study period, along with
other necessary data. Westat reviewed the prior FRA method (which it
found useful and appropriate), made some improvements in the method,
and computed national results which are reported above. With respect to
gated crossings in the Chicago Region, Westat found as follows:
For grade crossings with gates, the estimated effect of a whistle
ban depended on the comparison group in the Chicago area. * * *
Using the Continental U.S., Florida and Chicago area excluded, as
the comparison group, grade crossings with gates without a ban had a
significantly lower accident rate than grade crossings with a ban,
whereas using the Chicago area grade crossings with no ban for
comparison, there was no statistically significant effect associated
with a ban.
Zador, Paul L. at 6 (April 1, 2002).
Stated differently, during the study period Chicago Region gated
whistle ban crossings experienced an average of 34 percent more
accidents than similar crossings in the Nation where the train horn was
sounded. The results were statistically significant but as noted above
a further statistical test indicated poor model fit.
Accordingly, as FRA endeavored to bring together the various
sources of information and analysis in preparation of this interim
final rule, FRA made further inquiry into the distribution of ``no
whistle crossings'' with the conclusions recited above. FRA then
provided the corrected set to Westat for further analysis. Recognizing
that the current no-whistle status could not be assumed to be valid for
the earlier period, during which substantial ICC and railroad decision
making had no doubt resulted in major changes in status, FRA also
provided a more recent accident data set (1997-2001).
As noted above, the result was that, for gated crossings (by far
the largest component of the Chicago Region issue), it was determined
that no-whistle policies resulted in an increase of 17.3 percent in
accidents. This value was not supported by a very high level of
statistical confidence. Accordingly, FRA was left with three options:
1. Elect to determine that the Chicago analysis was inconclusive,
that the statute requires FRA to find that the train horn has been
fully compensated for, and that the logical alternative was to employ
national averages (with or without inclusion of the Chicago data).
2. Take note of the negative impact results yielded by the
comparison of Chicago train horn and Chicago no-whistle crossings, and
determine the impact of no-whistle policies in the Chicago Region to be
zero, at least for pre-rule no-whistle crossings; or
3. Note the Westat finding that the Chicago crossings are in fact
different in their characteristics and accept the most recent Westat
estimate (17.3 percent) of the effect of whistle bans on accident rates
at gated Chicago Region crossings, either for all quiet zones, or for
Pre-Rule Quiet Zones only.
The first option of using national averages for the entire Nation,
including Chicago, would have been employed by FRA if the Chicago
Regional data were not available or their use inappropriate. FRA could
have rationally decided that the limited significance of the Chicago
Region statistical conclusions did not require reliance on those
conclusions. This would have resulted in a fully functional and
appropriate interim final rule consistent with the Act; a rule FRA
would not have hesitated issuing. However acceptable this option was,
it would have necessitated according little weight to a sizable body of
testimony from the Chicago Region together with statistical analysis
and qualitative knowledge of the Chicago Region's unique
characteristics (discussed further below).
The second option would require FRA to ignore the reality of
discretionary selection and the strong evidence based on other national
data (memorialized in the statute giving rise to this rulemaking
[[Page 70616]]
as well as the laws of most States, including Illinois), that the train
horn can make a positive contribution at the margin. FRA believes this
option would not have been a rational choice.
FRA has chosen the third option, and has further determined that
the lower estimate of ban impacts should be applied only to crossings
in Pre-Rule Quiet Zones. The need to determine the impact of no-whistle
policies on accident rates derives from the statutory definition of
supplementary safety measures. The statute permits certain crossings to
be excepted from the requirement to sound the train horn, including
crossings ``for which, in the judgment of the Secretary, supplementary
safety measures fully compensate for the absence of the warning
provided by the locomotive horn [emphasis supplied].'' As delegate of
the Secretary, FRA makes this judgment in light of the following
considerations:
[sbull] Utilizing an estimate of approximately 17 percent, despite
the limited statistical significance of the estimate, takes advantage
of the best and most current analysis available and fully recognizes
the conclusion of the Westat report that the ``ban effect for gated
crossings was significantly different in the Chicago area. * * *''
[sbull] Not only was the input data set of no-whistle crossings for
the final Westat study much improved from the prior work, but the time
period of the study included the period when several Chicago-area
jurisdictions were making special efforts to address crossing risk,
particularly where no-whistle policies were in place. Reliance on the
lower estimate has the practical effect of rewarding effort already
expended, taking into account scores of comments by Chicago area
officials and residents as well as the ``interests'' of communities
wishing to retain existing no-whistle policies.
[sbull] The recent study takes into consideration other variables
that may have closed the risk gap in the region, particularly
completion of the retrofit of auxiliary alerting lights, as well as
special efforts made in the region (e.g., Metra's election to utilize
both low-mounted ``ditch lights'' and oscillating lights, rather than
just ditch lights).
[sbull] Use of the lower estimate is fully consistent with what FRA
understands regarding the application of no-whistle policies, i.e.,
[sbull] Discretionary selection has almost certainly occurred in
the region. Under current State law (which will be preempted by this
interim final rule), railroads have the latitude to sound the horn or
refrain from sounding the horn at individual crossings excepted from
train horn sounding.
[sbull] Following their interest in safety and limitation of
liability, overall railroads likely have elected to use the train horn
where risk is higher or have exacted responsive action from communities
to compensate for use of the train horn.
[sbull] The most extensive use of no-whistle policies has been made
on commuter lines where many trains are scheduled, train counts are
high, and motorists are thus more likely to expect a train. Although
the absolute effect of silencing the horn at these crossings is still a
matter of substantial concern given the high exposure at these
crossings, the proportional effect of silencing the train horn is lower
(again, because motorists are conditioned to believe the train will
come, most trains are very conspicuous with two forms of alerting
lights, and--on lines where commuter trains are predominant--motorist
tolerance of delays is reduced by the expectation that the train will
clear the crossing rapidly).
FRA believes that the combination of these various factors provides
a fully rational basis for selecting this option over the equally
rational first option and the unsupportable second option, described
above. FRA notes that the application of this lower effectiveness rate
for the train horn to pre-rule, no-whistle gated Chicago Region
crossings does not mean that the acceptable risk at those crossings
will be measured differently. To the contrary, those crossings will be
subject to the same Nationwide Significant Risk Threshold as all other
pre-rule, no-whistle crossings. The unique effectiveness rate, which
applies only at Chicago Region gated crossings, determines only the
amount of reduction that may be required to meet this national risk
standard. FRA believes that a reduced estimate of ban-induced accidents
at grade crossings is appropriate for existing (pre-rule) no-whistle
crossings. However, a reduced estimate would not be appropriate for
current crossings in the Chicago Region where the train horn presently
sounds, should those communities desire New Quiet Zones. Even on the
commuter rail network, the risk characteristics of those crossings may
be substantially different (e.g., more difficult geometry or sight
distances, less local commitment to enforcement, etc.) Indeed, the
comparisons between train horn and no-whistle crossings in the region
confirm that a reduced estimate at the 17 percent level would not be
appropriate for those crossings. Nor can FRA say that there is an
intermediate level which is well supported empirically or judgmentally.
Accordingly, FRA will apply the national estimate of ban impacts to New
Quiet Zones in the Chicago Region.
FRA recognizes the potential down side of qualifying Pre-Rule Quiet
Zones using a lower estimate of ban effects. It is possible that some
or all of the difference in performance has to do with factors that are
beyond the control of this interim final rule. For instance, the
extensive coverage of this rulemaking by the Chicago media will end as
the rule is implemented, and that may result in future motorist
behavior that is less favorable than in the past. Changes in local risk
to which railroads might previously have reacted by resuming use of the
train horn may become a source of concern, given the mandate of the
rule to run silent through Pre-Rule Quiet Zones that have been
qualified under the new procedures. Accordingly, FRA will monitor
results in the region and consider further action as indicated.
Note on Intra-Regional Comparisons
Commenters in the proceeding also asked FRA to compare Chicago ban
crossings to Chicago crossings where the train horn sounds, and FRA
charged Westat with including that element in its analysis. As noted
above, Westat reported that no statistically significant effect from
the train horn was found when Chicago Region gated crossings, where the
train horn sounds, are compared with the Chicago Region whistle ban
crossings. This is neither surprising nor in conflict with the
hypothesis that the train horn is useful. No accident prediction
formula can capture all factors present at individual crossings, and in
Illinois railroads have the latitude under law to sound the horn at
exempt crossings. It is logical to expect that railroads would as a
matter of discretion elect to sound the horn at crossings with very
high known accident potential (given factors such as roadway geometry,
accident history and observed motorist behavior), at least in those
cases where community objections to noise are not sufficiently
strenuous to convince them otherwise. Further, in those cases where the
railroads did not make this election and the accident counts rose
significantly, the ICC could eventually be expected to intervene.
Neither the railroads nor the ICC could be expected to go too far in
the direction of discretionary use of the train horn, however, given
vocal community objections.
The result has been, FRA believes, that the train horn is sounded
as a matter of discretion at many (but by no means all) of the very
riskiest crossings
[[Page 70617]]
in the region that may technically have been considered whistle ban
crossings due to an exemption from the State mandate to use the horn;
and, even though the risk is reduced by the train horn, these crossings
nevertheless remain among the riskiest in the region.\10\ This
discretionary selection has indeed had the effect of abating
significant risk in the region, but it follows from this discussion
that the resulting statistical pattern within the region does not in
any way call into question the potential for risk reduction at the
remaining crossings where the horn is silenced. To the contrary, FRA
anticipates that requiring that the train horn be sounded at remaining
whistle ban crossings in Chicago would reduce accident risk at those
crossings, on average, about 15 percent.\11\
---------------------------------------------------------------------------
\10\ Many of these very high risk train horn crossings would
also benefit substantially from safety improvements such as four-
quadrant gates, traffic channelization, or photo enforcement; and
public investments would be recovered through reduced loss of life
and injuries avoided. FRA will continue to encourage use of these
techniques wherever they may be useful. While that is not the
subject of this proceeding, the pendency of this proceeding has the
benefit of calling attention to these possibilities for risk
reduction that cannot be achieved using ``standard'' crossing safety
measures.
\11\ A 17.3 percent increase to a base amount yields a value of
117.3 percent (risk after implementation of a no-whistle policy).
Restoring use of the horn would reduce the risk to a level 100
percent of the prior level. Seventeen and three-tenths is 14.7
percent of 117, so restoring the inflated value to the base amount
is a 15 percent reduction to the no-whistle state, after rounding.
---------------------------------------------------------------------------
Studies Provided by Commenters
In response to the NPRM, CATS (Hafeez and Laffey) performed a
separate study of the effects of whistle bans in the Chicago area and
concluded that whistle bans have no effect on the collision frequency
in the Chicago area. Following receipt of the CATS study, FRA asked
Westat to review that report and provide an evaluation.
The CATS study used a statistical technique called Analysis of
Variance (ANOVA) to determine if grade crossings that had a whistle ban
experienced a higher collision rate in comparison to grade crossings
where train horns are routinely sounded. This method tested the
statistical significance of the effect of a whistle ban on collision
frequency using the interaction between device type and whistle ban.
Westat found that, besides warning device class, this method failed to
account for any of the other factors that are known to affect collision
rates, such as daily train and traffic frequencies, train speed, number
of highway lanes, and number of tracks. Furthermore, grade crossing
collisions are rare event that are not normally distributed, but rather
follow a Poisson distribution. The CATS study applied a technique
designed for use with normally distributed data that does not work well
for data that are not normally distributed. The result of applying this
model was residuals that were not normally distributed. According to
Westat, the omissions of factors known to affect collision rates
coupled with an improper technique rendered the model poor for the
purpose of analyzing the effect of whistle bans on collision rates.
Disagreements about methods notwithstanding, Hafeez and Laffey come
to essentially the same conclusion as the Westat analysis--i.e.,
Chicago Region no-whistle crossings may be safer on average than
Chicago Region train horn crossings, at least when only certain factors
are controlled in the analysis. As we have explained above, this is not
a surprising outcome when discretionary selection is considered.
Further, given the analytical methods used and the small data sets
available for analysis, it would be as easy for confounding variables
to mask any differences as it is alleged by commenters to be for such
variables to generate specious differences. Consider, for instance,
that most of the Chicago-area no-whistle crossings are on the commuter
rail network, while most of the train horn crossings are on lines used
exclusively or almost exclusively for freight. (Hafeez and Laffey also
used the same, inflated data set of no-whistle crossings that FRA had
used in its earlier analysis, which was the best available at the time.
It contained large numbers of freight-only crossings where the train
horn was likely sounded during much of the period.)
The Northwest Municipal Conference (NWMC) also filed comments in
this docket and attempted a statistical re-analysis of accident risk
within its territory using the FRA method as reported in the NPRM and
Nationwide studies. This analysis also compared local area train horn
crossings with exempt crossings where railroads have elected to run
silent. It concluded that train horn crossings are no safer than no-
whistle crossings, whether one compares all crossings or just gated
crossings. FRA determined that NWMC's analysis did not follow the FRA
procedure appropriately, particularly as to stratification of the
sample. Nevertheless, as noted above, FRA has determined that
comparisons, between Chicago train horn crossings and no-whistle
crossings, cannot properly evaluate train horn usefulness within the
context of the Chicago Region, since discretionary selection has likely
shifted a disproportionate number of the most hazardous exempt
crossings into the train horn category and other confounding variables
may apply.
The NWMC analysis concludes the whistle ban is likely a spurious
variable in the FRA analysis. It argues the factors used in the APF,
such as train and automobile traffic, account for current accident
levels rather than the whistle ban because the APF accounts for almost
80 percent of the variation in accidents. FRA's current approach
adjusts for these effects. It is based on a Poisson regression that
includes the factors used in the APF along with the whistle ban.
Implications of the Various Studies
This interim final rule endeavors to ensure that, to the extent
practicable, these decisions are made based on safety rather than
economic or political influence, with the important additional
difference that communities have the option of insisting that the horn
be silenced where supplementary or alternative safety measures are put
in place (or where no ``significant risk'' is determined for the
corridor).
Again, FRA is keenly aware of the hazard that a spurious variable
can confound statistical analysis and designed the stratified/matched
pair method used in the national studies specifically in an effort to
avoid that effect. FRA has also performed longitudinal studies, as
reflected in the Florida report and case studies embodied in the
Nationwide report. In every case where FRA has had sufficient valid
data points to draw meaningful conclusions, the effect of the train
horn has been confirmed, lending empirical confirmation of the
following: the judgment implicit in ICC exemption management (that
restoring use of the train horn can lower risk); human factors
research; State laws requiring use of the horn; the opinions of
railroad professionals who are exposed to motorist behavior on a daily
basis; and the assumptions Congress made in enacting the law that
required FRA to issue this rule.
In any event, FRA strongly agrees with the NWMC comment that it is
best to utilize a method that is responsive to demonstrable regional
differences, where possible; and the interim final rule follows this
pattern. The result is a significant reduction in effort that would
need to be expended to institute quiet zones in the Chicago Region.
In conclusion, the comments related to safety at gated crossings,
taken together with subsequent statistical analysis, support
reconciliation of FRA safety concerns with the strenuously
[[Page 70618]]
argued representations of the State and local jurisdictions that they
are actively promoting safety at highway-rail crossings. The bottom
line is that Chicago-area railroads and the ICC have acted to employ
the train horn at many of the most hazardous crossings, but it is very
probable (in FRA's judgment) that excess risk continues to be unabated
at many no-whistle crossings where the train horn is silenced. This
interim final rule offers the region automatic approval of the
demonstrably safest quiet zones and, for quiet zones exhibiting higher
degrees of risk, a mechanism for implementing supplementary and
alternative safety measures, over a longer period of time and at lower
cost than originally proposed, with the result that existing quiet can
be preserved and New Quiet Zones can be established with a reasonable
degree of confidence.
G. ``Chicago Anomaly''
In the NPRM at page 2234, FRA reported results of the Updated
Analysis of Train Whistle Bans, January 2000, which examined data for
the five year period from 1992 through 1996 (Updated Nationwide Study).
The most widely cited passage in that analysis reads as follows:
The updated analysis also indicated that whistle ban crossings
without gates, but equipped with flashing light signals and/or other
types of active warning devices, on average, experienced 119 percent
more collisions than similarly equipped crossings without whistle
bans. This finding made it clear that the train horn was highly
effective in deterring collisions at non-gated crossings equipped
only with flashing lights. The only exception to this finding was in
the Chicago area where collisions were 16 percent less frequent.
This is a puzzling anomaly. One possible explanation for this result
is that more than 200 crossings (approximately one third of the
crossings in Chicago) still included in the DOT/AAR National
Inventory have in all likelihood been closed. They would continue to
be included in the Inventory until reported closed by State or
railroad officials. (At this time submission of grade crossing
Inventory data to FRA is voluntary on the part of States and
railroads.) FRA believes this could contribute to the low collision
count for Chicago area crossings without gates. Collisions cannot
occur at crossings that have been closed. The retention of closed
crossings in the Inventory would, therefore, have the effect of
incorrectly reducing the calculated collision rate for the Chicago
area crossings.
The Nationwide study showed a similar unexpected result for passively
signed crossings in the Chicago Region.
Over three years after this analysis was published, FRA still has
not received a full update of the Inventory for the City of Chicago,
despite frequent requests. FRA did, however, test its thesis that the
data set is not suitable for analysis by checking crossing status
directly with railroads and through site visits to a representative
sample of crossings. The result is that, based on current conditions
many of the crossings identified in the Inventory have long since been
closed (over half of the passive crossings and almost a third of
flashers-only crossings) or the type of warning device has changed. It
is logical to assume that the remaining crossings have experienced
other changes since the last inventory records that may have further
confounded the analysis.
More importantly, when post-NPRM filings from the ICC, AAR and
Metra were examined and compared with declarations in the ICC
proceeding during the period 1988-1994, it became evident that there
likely were very few passively-signed and flashers-only crossings that
were in no-whistle status during the most of the study period 1992-
1996. Certainly there are very few today--too few to yield meaningful
comparative data towards a regional estimate.
As explained above, FRA finds no reason to apply estimates other
than the national averages to these categories of crossings. Since the
crossings equipped with flashing lights only or passive devices are
generally low-train-speed and single-track crossings, FRA knows of no
supportable reason why there should be a special effect in the Chicago
Region at those crossings. Indeed, since the ICC did not excuse use of
the train horn at passive crossings, it is likely that no bans have
been observed at those crossings during the period or--as suggested by
the AAR in its October 2000 filing--that this has occurred only at
crossings where train speeds were less than 10 mph, which is typical
only within yards and on track approaching industries. Accordingly,
National averages are appropriate for use under this interim final rule
for both passive crossings and flashers-only crossings.
H. Safety Trend Lines
Chicago-area and other Illinois respondents asked FRA to consider
the improving safety record at grade crossings before imposing a train
horn requirement. CATS noted that collisions at crossings in Northeast
Illinois had declined 59 percent since 1988. FRA recognizes that the
safety record at Chicago Region crossings has improved markedly during
the last several decades, and this is also true for the State of
Illinois and for the Nation as a whole. These gains have resulted from
expenditure of Federal and State funds on improved warning systems,
local and National public awareness efforts sponsored by a variety of
parties (including U.S. DOT and the States through Operation Lifesaver,
Inc.), improved engineering of highway-rail crossing and related
traffic control systems, installation of alerting lights on locomotives
and cab cars, general efforts devoted to improving highway safety
(e.g., seat belt campaigns, impaired driver campaigns, etc.), closure
of redundant crossings, and targeted law enforcement in some local
jurisdictions supported by a 1995 Illinois State law imposing a high
monetary penalty for disregarding warning systems at crossings. It is
also possible that freight railroads operating in Illinois have been
more aggressive in sounding the horn since the publication of FRA's
Florida and National studies (as they have been in other jurisdictions
where permitted to do so by repeal of bans or as a result of favorable
Federal court rulings).
As noted above, FRA has further updated its safety analysis to
capture developments in the period 1997-2001. The result is a much
lower estimate for current ban-induced risk at Chicago gated
crossings--the great majority of no-whistle crossings in the regions.
I. Accident-Free and Low Risk Jurisdictions
Chicago-area commenters, including the Northwest Municipal
Conference, were prominent among those arguing that extended periods of
safe outcomes at local crossings should be recognized. As explained
elsewhere in this preamble, the interim final rule provides a
conditional exclusion for existing whistle bans where all crossings in
the jurisdiction have been collision-free for the past 5 years,
provided the projected risk is below the product of two times the
Nationwide Significant Risk Threshold. The interim final rule employs a
risk-based approach that credits good safety results. In fact, some
existing whistle ban jurisdictions may be able to avoid additional
costs indefinitely provided their safety record stays within the
required parameters outlined in the interim final rule.
J. Impracticability
Many Chicago-area commenters were particularly strong in making the
point that several of the identified supplementary and alternative
safety measures would not work in their local communities. Although
many of these comments are discussed in other portions of this
preamble, it is appropriate to call attention to three safety
alternatives to the horn which were cited as impractical due to local
[[Page 70619]]
conditions in the Chicago area or in Illinois generally.
First, FRA was told that four-quadrant gate systems were not
permitted by the Illinois Commerce Commission. Since that testimony,
the MUTCD, which is issued by the Federal Highway Administration and
supported by a national committee of traffic control experts, has been
amended to specify criteria for four-quadrant gates as a standard
warning system at highway-rail crossings. This action signals the
acceptance of this safety system by professional traffic safety
experts. Further, the Illinois Department of Transportation has funded
installation of a large number of four-quadrant gates at crossings on
the designated high-speed rail corridor between Chicago and St. Louis
via Springfield, with ICC participation. The ICC has also stepped
forward to demonstrate a low-cost vehicle presence detection system for
use with four-quadrant gates. FRA believes that the Illinois Commerce
Commission will continue to respond appropriately to identified needs
for four-quadrant gate systems.
Second, FRA was told that photo enforcement is not authorized under
Illinois law at highway-rail crossings. Photo enforcement for red-light
running (and to a lesser extent for excessive speed) is becoming
standard practice in a growing number of jurisdictions nationwide.
After some initial difficulties related to program design and judicial
acceptance, a photo enforcement project in the Chicago Region is
continuing with the promise of positive results. There are currently
four crossings in the Chicago Region that are equipped with photo
enforcement (Downers Grove, Naperville, Wood Dale and Winfield each
have one crossing so equipped). The Naperville installation has been in
effect since July 2000. There has been an 87 percent reduction in
violations of the warning devices at the crossings, and there has been
a 98.5 percent conviction rate of the citations issued. The Wood Dale
installation, which has been in service since December 1999, showed a
47 percent reduction in violations as reported in September 2000. Both
the Downers Grove and Winfield systems are relatively recent but the
initial reports are favorable. The timetable set forth in this rule
allows ample time for results of the current demonstration to be
communicated to the legislature and for the legislature to authorize
photo enforcement.
Third, FRA heard from many jurisdictions in the Chicago Region that
median barriers would not work in their settings because of major
roadways that run parallel to rail lines, either on one side or on both
sides of the rail line. FRA has noted these circumstances in visits to
the communities, and FRA concurs that median barriers as specified for
supplementary safety measures in the NPRM will not work at many
locations. FRA has responded by making the requirements for
channelization more explicitly flexible in the appendix language
describing alternative safety measures. FRA has made it clear, for
instance, that channelization on one side of the rail line--or for a
shorter distance than the 60-100 feet nominally desired--could qualify
for a risk reduction credit. FRA has also recognized that at many
locations channelization is not feasible, and this has been taken into
consideration as the costs and benefits of the interim final rule have
been assessed.
Finally, FRA has taken seriously the concerns expressed with
respect to the cost associated with verifying risk reduction following
implementation of public education and enforcement programs. FRA has
joined forces with the ICC and local communities to implement the
Public Education and Enforcement Research Study (PEERS) program. This
education and outreach effort will be evaluated for effectiveness at
the community level and, if successful, could have potential for
application across the region. Although FRA cannot state specifically
how this approach might be integrated into this rule until results are
known, it does offer an additional possibility for achieving the safety
goals of the rulemaking at relatively low cost.
K. Costs
Chicago respondents testified that the cost of installing
Supplemental Safety Measures (SSMs) or implementing Alternative Safety
Measures (ASMs) that will permit the creation of quiet zones far
exceeds cost estimates developed by FRA and represents an unfunded
Federal mandate. The City of Chicago, Department of Transportation
commented the rule would force the installation of four-quadrant gates
at 237 crossings in the City. The Chicago Area Transportation Study
estimated that the cost to implement quiet zones in the CATS region
would be $200 million.
However, these arguments stem from the presumption that all
crossings within a quiet zone will need to be equipped with four-
quadrant gate systems. Other SSM's were dismissed by Chicago commenters
as impractical for a variety of reasons. CATS Council of Mayors
Executive Committee argued that the proposed safety measures are
unworkable.
To test these criticisms, FRA conducted a preliminary cost analysis
associated with implementation of quiet zones in several Chicago-area
communities. The site-specific analysis was conducted at 12 highway-
rail grade crossings in the communities of LaGrange, Western Springs
and Hinsdale, and in each instance employed a corridor approach.
The analysis revealed that in some cases, public education efforts
and increased enforcement of existing highway-rail crossing laws can be
used in place of engineering solutions. At crossings where engineering
improvements would be the most practical approach, the study found the
costs of implementing a variety of SSM's would be significantly less
than Chicago commenters estimated. Based upon the earlier estimates for
effects of no-whistle policies in the Chicago Region, it was estimated
that by utilizing the corridor risk reduction approach and utilizing
engineering improvements at selected crossings that the total
construction cost for these corridors would be $360,000 with an annual
maintenance cost of $37,000. This is much less than estimates received
from some commenters who erroneously assumed that four-quadrant gates
would be required at each crossing. Actual costs under this rule should
be even lower, since on many corridors, the required risk reduction of
15 percent can be taken at a single crossing.
In light of the greater flexibility of the interim final rule with
respect to existing whistle bans, and the menu of engineering options,
costs to convert existing whistle bans into quiet zones, or even create
New Quiet Zones will be significantly less than most Chicago commenters
estimated in responding to the NPRM. In instances where an existing
quiet zone falls below the Nationwide Significant Risk Threshold, the
only costs that would be incurred would be for maintenance of the
Inventory data and posting of ``No Train Horn'' signs at crossings.
FRA understands the concern of commenters that paying for SSMs or
ASMs where necessary to preserve or create a quiet zone may pose some
fiscal hardships for some communities. Although this rule will not cost
in excess of $100 million in any year, and thus is not subject to the
assessment requirements of the Unfunded Mandates Reform Act of 1995,
FRA has made every effort to limit the burdens that this rule imposes
and to concentrate those
[[Page 70620]]
burdens where the safety rationale is most compelling.
L. Time for Implementation
Chicago respondents also argued that the time frame proposed for
implementation of quiet zones was too short. The Illinois Commerce
Commission projected that it would take ten years to implement the
required safety measures. CATS Council of Mayors Executive Committee's
estimate was as long as 15 years. They argued that the time it would
take to do the work in more than 200 communities in the Chicago Region
alone would overburden the railroad industry, tax Federal resources
beyond their capacity to deliver, and be more of a burden than the
railroad construction industry could handle within the required time
frame. These arguments were generally based on the presumption that all
crossings would need to be equipped with four-quadrant gate systems.
Nevertheless, FRA gave careful consideration to this concern, and has
provided significant additional time to implement quiet zones while
also attempting to reduce the number of corridors for which
supplementary or alternative safety measures will be required.
15. E.O. 15 Status
Emergency Order 15, issued in 1991, requires the FEC to sound
locomotive horns at all public grade crossings. The Emergency Order
preempted state and local laws that permitted nighttime bans on the use
of locomotive horns. Amendments to the Order did, however, permit
establishment of quiet zones if supplementary safety measures were
implemented at every crossing within a proposed quiet zone. The
supplementary safety measures specified in the Order, although similar,
are not the same as those contained in this Interim Final Rule. The
SSMs and the conditions on their implementation contained in this rule,
provide communities substantially greater flexibility in creating quiet
zones than those in the Order. So as not to adversely affect Florida
communities along FEC tracks by imposing different standards for
establishing quiet zones than along other Florida rail lines or
elsewhere in the Nation, FRA will rescind E.O. on December 18, 2004,
the effective date of this rule. At that time, the provisions of this
rule will apply to all grade crossings within the State of Florida.
Some communities along the FEC (communities subject to E.O. 15) may
wish to establish New Quiet Zones following the effective date of this
rule. FRA is not at this time calculating the effect of silencing the
train horn along that corridor because information gathered in response
to the NPRM was not sufficient to make such estimate and because the
actual rate of increase experienced during the period studied prior to
issuance of E.O. 15 requires re-examination to determine whether it
remains valid in light of changed circumstances. FRA will determine
whether to apply a regional estimate as to the effect of silencing the
train horn at E.O. 15 crossings based on comments submitted in response
to this interim final rule or through supplementary fact finding prior
to the rescission of E.O. 15. FRA will issue the necessary finding well
before the effective date of this interim final rule.
16. Section-by-Section Analysis
Section 222.1 What Is the Purpose of This Regulation?
This section describes the purpose of this regulation--to provide
for safety at public highway rail grade crossings by regulating
locomotive horn use at those crossings. In addition to regulating
locomotive use at the crossings, the regulation provides an opportunity
for the cessation of routine use of the locomotive horn at those
crossings, while maintaining, at a minimum, the same level of safety as
exists when horns are used.
Section 222.3 What Areas Does This Regulation Cover?
This section describes the areas, or scope, of the regulation. The
regulation prescribes standards for sounding of locomotive horns when
locomotives approach and pass through public highway-rail grade
crossings. The regulation also addresses standards under which
locomotive horns are not sounded when locomotives approach and cross
public crossings. The regulation does not cover the use of horns at
private crossings except when those private crossings are within a
quiet zone. For a further discussion of private crossings, see Sec.
222.25.
Section 222.5 What Railroads Does This Regulation Apply To?
This section describes the railroads to which this regulation
applies. The regulation applies to every railroad with a number of
listed exceptions. The regulation does not apply to (1) railroads
exclusively operating freight trains only on track which is not part of
the general railroad system of transportation; (2) passenger railroads
that operate only on track which is not part of the general railroad
system of transportation and which operate at a maximum speed of 15
miles per hour; and (3) rapid transit operations within an urban area
that are not connected to the general railroad system of
transportation.
In the NPRM, FRA proposed to not apply the rule to plant railroads
and freight railroads which are not part of the general railroad system
of transportation. FRA noted that these operations are typically low
speed with small numbers of rail cars permitting relatively short
stopping distances. Additionally, these operations typically involve
roadway crossings with relatively low speed vehicular traffic. These
reasons, together with FRA's historical basis for not making its
regulations applicable to plant and non-general-system freight
railroads led FRA to propose not to apply the rule to such operations.
Since use of the locomotive horn is a matter within the scope of
railroad operating rules (see 49 CFR Part 217), maintaining reasonably
consistent policies of inclusion and exclusion appeared sensible.
Omitting plant railroads from the scope of the section is intended to
leave State authorities with continuing jurisdiction over the subject
matter of the appropriate audible warnings to be used by such
railroads.
In the NPRM, FRA also discussed its basis for proposing to make the
rule applicable to ``scenic'' or ``tourist'' railroads which are not
part of the general system of railroad transportation. FRA took the
position that since the rule deals directly with public grade
crossings, it should apply to all tourist and scenic railroads with
public grade crossings irrespective of whether they are part of the
general system of railroad transportation. FRA took a similar position
in its rule on grade crossing signal system safety, which applies to
tourist and excursion railroads outside of the general system if they
have attributes that make them non-insular, such as public grade
crossings. See 49 CFR 234.3(c). The Association of Railway Museums, in
opposing the inclusion of tourist and scenic railroads in what it
termed as ``a general system rulemaking,'' stated that ``[i]f the
operating characteristics which FRA has ascribed to plant and private
freight railroads are sufficient to justify different treatment under
the rule, they are certainly sufficient to justify different treatment
of tourist/historic railroads.'' The commenter pointed out that FRA is
required by statute to consider differences between tourist railroads
and general system railroads, whereas there is no similar statutory
requirement applicable to plant and ``private freight railroads.''
FRA believes that there are significant differences between
industrial railroads
[[Page 70621]]
and tourist railroads that warrant exclusion of the former and
inclusion of the latter in this rule. The primary and obvious
difference, of course, is the presence of passengers in tourist
operations, which increases the number of people at risk of injury in
highway-rail accidents. The operating environments are also quite
different, with tourist operations more likely to achieve higher speeds
and encounter higher speed highway traffic than plant railroads.
Moreover, FRA has historically not applied its rules to plant railroads
(see the discussion of FRA's policy on the exercise of its jurisdiction
in these circumstances, 49 CFR, part 209, appendix A) for reasons not
applicable to tourist operations. However, as a result of the comments,
FRA has reviewed this section and is persuaded that low speed passenger
service (i.e., at 15 miles per hour, or less) not on the general
railroad system does not constitute a significant risk. Low speed
service, together with relatively short trains, and comparatively light
passenger cars permit significantly shorter stopping distances than
fast, long, heavy freight trains. These conditions convinced FRA that
such operations do not require the sounding of locomotive horns at this
time. However, it should be noted that FRA may amend the rule in the
future to include plant railroads or tourist railroads in the event
that it determines that safety requires such action.
Paragraph (3) of this section addresses the extent to which rapid
transit operations are governed by this part. Under the Federal
railroad safety laws, FRA has jurisdiction over all railroads except
``rapid transit operations in an urban area that are not connected to
the general railroad system of transportation.'' 49 U.S.C. 20102. Like
the proposed rule, the interim final rule tracks the statutory
provision, excluding from the rule's reach only those rapid transit
operations not subject to FRA's jurisdiction, i.e., those not connected
to the general system. However, shortly after issuance of the proposed
rule, FRA issued an interpretive statement that explains what FRA
believes ``connected to the general railroad system'' means. Statement
of Agency Policy, 65 FR 42529 (2000); 49 CFR part 209, appendix A. FRA
made clear that a passenger operation, even if rapid transit in nature,
that shares the same track as a conventional railroad is subject to FRA
jurisdiction on all shared track. FRA also made clear that highway-rail
grade crossings traversed by a rapid transit operation and a
conventional railroad that share a corridor but do not share track were
sufficient connections to the general system to warrant FRA's exercise
of jurisdiction over the rapid transit operation at the point of
connection. 65 FR 42541. FRA pointed out that the rapid transit
operation would be expected to observe FRA's rules concerning grade
crossings that were then in effect, i.e., the rules on grade crossing
signals and ditch lights. Id. (FRA's proposed policy statement had made
this same point; see 64 FR 59058 (1999).) FRA's policy statement
explains the logic behind this determination:
Certain types of connections the general railroad system will cause
FRA to exercise jurisdiction over the rapid transit line to the
extent it is connected. FRA will exercise jurisdiction over the
portion of a rapid transit operation that is conducted as a part of
or over the lines of the general system. * * * [W]here transit
operations share highway-rail grade crossings with conventional
railroads, FRA expects both systems to observe its signal rules. For
example, FRA expects both railroads to observe the provision of its
rule on grade crossing signals that requires prompt reports of
warning system malfunctions. See 49 CFR part 234. FRA believes these
connections present sufficient intermingling of the rapid transit
and general system operations to pose significant hazards to one or
both operations and, in the case of highway-rail grade crossings, to
the motoring public. The safety of highway users of highway-rail
grade crossings can best be protected if they get the same signals
concerning the presence of any rail vehicles at the crossing and if
they can react the same way to all rail vehicles (65 FR 42545; 49
CFR part 209, app. A).
This same logic clearly applies to audible warnings at highway-rail
grade crossings: motorists are best protected if they receive the same
warnings concerning the presence of rail vehicles at a crossing
regardless of whether those vehicles are rapid transit or conventional
rail. In light of FRA's July 2000 interpretive guidance that considers
these crossings sufficient connections to warrant exercise of its
jurisdiction, this interim final rule, which uses the same relevant
language as the proposed rule, will apply to rapid transit operations
that share grade crossings with conventional railroads in a common
corridor, as well as to rapid transit operations that share track with
conventional railroads.
However, applying this rule to rapid transit operations may pose
certain problems. The horns in use on such rapid transit trains may not
be able to meet the standards for audible warning devices in 49 CFR
229.129. Accordingly, new subsection (d) to Sec. 222.129 excludes
rapid transit operations from the ``audible warning device''
requirements of that section, which governs the sound levels of
locomotive horns on general system railroads. FRA seeks comment on what
standards may be appropriate for the audible warning devices used by
rapid transit systems subject to part 222. Other impacts of applying
the rule would include the need to involve yet another entity in the
creation and enforcement of quiet zones. However, true quiet could not
be achieved without the involvement of all entities that operate trains
over those crossings.
Given the questions surrounding application of the rule in the
shared corridor context, FRA solicits comments on this issue. Should
FRA leave the applicability provisions of parts 222 and 229 as they
are, i.e., inclusive of rapid transit operations in shared corridors?
Or, should FRA amend the applicability provisions of part 222 and 229
to exclude rapid transit operations that share highway-rail grade
crossings with conventional operations but do not share trackage? If
so, how can the rule's central purpose of achieving adequate train horn
warnings at grade crossings be achieved, if those rapid transit
operations would not be subject to the mandate to sound their horns?
How would communities that have or wish to establish quiet zones
achieve their goals if the rapid transit operations operating over
shared corridors are not subject to the rule?
Section 222.7 What Is This Regulation's Effect on State and Local Laws
and Ordinances?
This section informs the public as to FRA's intention regarding the
preemptive effect of this interim final rule. While the presence or
absence of such a section does not conclusively establish the
preemptive effect of a final or interim final rule, it informs the
public concerning the statutory provisions which govern the preemptive
effect of the rule and FRA's intentions concerning preemption.
Paragraph (a) points out the preemptive provision contained in 49
U.S.C. 20106, which provides that all regulations prescribed by the
Secretary relating to railroad safety preempt any State law,
regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
hazard that is not incompatible with a Federal law, regulation or order
and that does not unreasonably burden interstate commerce. With the
exception of a provision directed at an essentially local safety hazard
that is not inconsistent with a Federal law, regulation or order and
that does not unreasonably burden interstate commerce, 49 U.S.C. 20106
[[Page 70622]]
will preempt any State statutory or common law, local ordinance or
State or local regulatory agency rule covering the same subject matter
as the regulations contained in this interim final rule. See Norfolk
Southern v. Shanklin, 529 U.S. 344 (2000) and CSX v. Easterwood, 507
U.S. 658 (1993).
Paragraph (b) makes clear the intention of FRA that by including
SSMs and ASMs in this regulation (or by approving additional SSMs or
ASMs subsequent to issuance of this interim final rule), FRA does not
intend to preempt State law regarding use of those measures for traffic
control. Individual States may, consistent with Federal Highway
Administration regulations and the MUTCD, continue to determine whether
specific SSMs or ASMs are appropriate for traffic control. State law
and local ordinances concerning sounding of train horns in relation to
the use of conventional crossing safety systems, SSMs and ASMs are,
however, preempted. Thus, if a specific engineering improvement is
approved as an SSM for purposes of this rule, and consistent with FHWA
regulations and the MUTCD, a State has the discretion whether to accept
its use for traffic control purposes. If a State decides that such SSM
cannot be used within the State, such decision is not meant to be
preempted by this rule--this interim final rule would not force State
acceptance of an SSM. However, any State law or regulation relating the
use of train horns to the SSM would be preempted by this rule.
The interim final rule published today permits localities to
establish quiet zones irrespective of any State law regarding sounding
of train horns or establishment of whistle bans and quiet zones. This
view differs from that which FRA stated in the preamble to the NPRM--
that the proposed rule ``does not confer authority on localities to
establish quiet zones if state law does not otherwise permit such
actions.'' Both the CPUC and the Florida Department of Transportation
expressed the view that the rule should allow States to impose more
stringent requirements for establishing quiet zones. Expressing an
opposite view, the mayor of Middleburg Heights, Ohio is in favor of
``empower[ing] the local elected officials to make the best decisions
for their community. Local officials on the scene are more capable of
judging any internal budgetary, safety or quality of life issues.'' The
representative of the Metropolitan Council of Governments, representing
two cities in Minnesota and two cities in North Dakota, points out that
because North Dakota currently prohibits quiet zones, the Council of
Governments wants the rule so as to be able to establish quiet zones.
Counsel for the League of Wisconsin Municipalities, representing all of
the cities and most of the villages in Wisconsin, stated that
municipalities in Wisconsin are granted broad home rule powers and thus
are concerned about the preemption of their authority to regulate the
use of train horns within their communities. Wisconsin State
Representative Miller expressed similar views. The County Commissioner
of Olmstead County, Minnesota, testified to his opposition to
additional preemption of State and local authority.
While the commenters representing local government may prefer to
have no regulation of their ability to institute quiet zones, the
decision as to the regulatory body has already been made by Congress.
The issue raised in the NPRM, however, is whether, despite issuance of
this rule, States may prohibit or permit localities to establish quiet
zones. FRA is rejecting the view posited in the NPRM that the rule does
not confer authority on localities to establish quiet zones if State
law does not otherwise permit such actions. A close review of the
statutory language leads to the conclusion that Congress intended that
local communities be the primary parties in establishing quiet zones as
long as this is done in accordance with Federal rules. Moreover, there
can be no doubt that such State laws would clearly be within the
subject matter covered by this rule, and would therefore be preempted.
Section 222.9 Definitions
This section defines various terms which are not widely understood
or which, for purposes of this rule, have very specific definitions.
This section defines the following terms:
``Administrator''
This definition makes clear that when the term ``Administrator'' is
used in the rule, it refers to the Administrator of the Federal
Railroad Administration. It also provides that the Administrator may
delegate authority under this rule to other Federal Railroad
Administration officials.
``Alternative safety measure''
This term was not included in the definition section of the NPRM.
It is included in this section because of its unique meaning within
this rule. The term ``alternative safety measure'' refers to a safety
system or procedure established in accordance with this rule and which
has been determined to be an effective substitute for the locomotive
horn in the prevention of highway-rail casualties at specific highway-
rail grade crossings. All ASMs and SSMs listed as approved in
appendices A and B have been approved by the Administrator. Section
222.55 addresses how new SSMs and ASMs are approved. Such new SSMs and
ASMs are approved by the Associate Administrator.
``Alternative safety measure'' should be read in conjunction with
the definition of an SSM. Both SSMs and ASMs are safety systems or
procedures determined to be an effective substitute for the locomotive
horn in the prevention of highway rail casualties at highway-rail grade
crossings. SSMs have been determined by the Administrator in appendix A
to be effective substitutes for the horn at any grade crossing to which
they are applied. Thus, the Administrator has determined that if, for
example, four-quadrant gates are appropriately installed at a grade
crossing, the warning and protections provided will at least equal that
provided by the locomotive horn. Because these safety measures will
compensate for the lack of the locomotive horn wherever they are used,
FRA has not required prior approval for their use at specific
locations. ASMs differ from SSMs in that they are capable of being an
effective substitute for the locomotive horn, but can only be
determined to be effective on a crossing-by-crossing basis. Because of
that limitation, use of such ASMs requires prior approval of the
Associate Administrator.
Appendix B lists ASMs currently accepted for the Associate
Administrator's review on an individual crossing-by-crossing basis.
``Associate Administrator'' means the Associate Administrator for
Safety of the Federal Railroad Administration. The term also includes
the Associate Administrator's delegate.
``Channelization device'' means one of a continuous series of
highly visible vertical markers placed between opposing highway lanes
designed to alert or guide traffic around an obstacle or to direct
traffic in a particular direction. This term was defined in more detail
in the NPRM--minimum height and distance requirements were listed.
Rather than dictating such detail to the community installing the
devices, the present definition states that design specifications are
determined by the standard design specifications used by the
governmental entity constructing the channelization device. However,
any channelization device used shall comply with the MUTCD and should
be in compliance with applicable guidelines of the American Association
of State Highway and Transportation Officials. The definition thus
makes
[[Page 70623]]
explicit that ``tubular markers'' and ``vertical panels'' as described
in sections 6F.57 and 6F.58, respectively, of the MUTCD, are acceptable
channelization devices for purposes of this part. This change is
consistent with a comment submitted by Winter Park, Colorado in which
the community requested more flexibility in the definition/design of
channelization devices.
``Crossing Corridor Risk Index'' is a number reflecting the
relative risk to motorists at grade crossings within a grade crossing
corridor in which locomotive horns are routinely sounded. This number
is derived by calculating the number of predicted collisions per year
at each public grade crossing within a corridor of crossings. A risk
index reflecting the predicted likelihood and severity of casualties
resulting from those collisions for each crossing is then calculated.
An average risk index for the entire group of crossings within the
corridor is then calculated (by summing the risk index for each
crossing and dividing the total by the number of crossings within the
corridor). This average risk is the Crossing Corridor Risk Index. It
reflects the present risk associated with a crossing corridor, before
the level of risk changes due to silencing of locomotive horns or
implementation of SSMs or ASMs. Details on determining the Crossing
Corridor Risk Index are provided in Appendix D of this part.
``Diagnostic team'' means a group of knowledgeable representatives
of parties in interest in a highway-rail grade crossing, organized by
the public authority responsible for, or funding improvements at, the
crossing, who, using crossing safety management principles, evaluate
conditions at a grade crossing to make determinations and
recommendations for the public authority concerning safety needs at
that crossing. A diagnostic team can consist of the local traffic or
highway engineer, and representatives of various parties including the
local public works department, the railroad whose tracks are crossed,
the State department of transportation, local law enforcement, and
emergency responders. The diagnostic team, ideally having
representatives of major interested parties, can evaluate a crossing
from many perspectives and can make recommendations as to the safety
needs at the crossing.
``Effectiveness rate'' is a number which indicates the
effectiveness of a safety measure in reducing the probability of a
collision at a public highway-rail grade crossing. Effectiveness rate
is defined as a number between zero and one which represents the
reduction of the probability of a collision at a public highway-rail
grade crossing as a result of the installation of a safety measure when
compared to the same crossing equipped only with conventional gates and
lights. An effectiveness rate of zero indicates that the safety measure
provides no reduction in the probability of collision. The safety
measure is not effective at all. At the other extreme, a safety measure
of one indicates that the safety measure is totally effective in
reducing collisions. Grade separation would fall into the latter
category--separating railroad tracks from the roadway is totally
effective in reducing grade crossing collisions. Values between zero
and one reflect the percentage by which the safety measure reduces the
probability of a collision. For example, if a safety measure has an
effectiveness rate of .75, it reduces the probability of a collision at
the crossing by 75 percent. Conversely, if a safety measure has only an
effectiveness rate of .05, it would reduce the probability of a
collision by only 5 percent.
The few comments FRA received on this topic were negative. The
Illinois Commerce Commission, while not objecting to the definition
itself or concept, complained that the ``ratios are arbitrary guesses
which have little empirical value.'' The CPUC similarly felt that there
are insufficient data to assign effectiveness rates. They stated that
instead ``[t]he effectiveness of an SSM * * * should be evaluated by
the applicant, the railroad, and the regulating state agency for each
individual crossing in a quiet zone.''
FRA recognizes that, to the extent effectiveness estimates have
been derived from limited data, they should not be treated as
sacrosanct. Further, individual crossing characteristics may be more or
less compatible with realizing the benefits of particular safety
measures. Accordingly, the concept of alternative safety measures is
incorporated into this rule with the expectation that diagnostic teams
will be able to estimate effectiveness with a higher degree of
refinement, working (as relevant) from the benchmark levels provided
for supplementary safety measures. The expertise available at the State
level will contribute to this process of refinement. On the other hand,
FRA is not comfortable with the idea of proceeding without benchmark
values. Far from being arbitrary guesses, the benchmark values take
into consideration and reflect substantial information available at the
national level, and they have been exposed to the scrutiny of public
comments in this proceeding. Since they are conservative in nature,
reliance upon them in the context of application of SSMs to all
crossings in a quiet zone should be entirely appropriate in virtually
every case. The individual judgments of local public authorities or
State level officials cannot be assumed, a priori, to be superior to
these benchmarks, particularly where the personnel involved have no
experience in the use of particular safety measures (many of which are
new to the realm of highway-rail crossing safety).\12\ Balancing these
concerns, FRA has attempted to craft a structure that fosters
consistency while inviting attention to project-specific considerations
and enabling the use of professional engineering judgment where
warranted.
---------------------------------------------------------------------------
\12\ See Report to Congress entitled North Carolina ``Sealed
Corridor'' Phase I U.S. DOT Assessment Report (FRA Office of
Railroad Development, September 2001), which describes most of the
pioneering work undertaken by the State of North Carolina and the
Norfolk Southern Railroad (with FRA funding assistance) in support
of the State's high-speed rail program.
---------------------------------------------------------------------------
``FRA'' means the Federal Railroad Administration.
``Grade Crossing Inventory Form'' means the U.S. DOT National
Highway-Rail Grade Crossing Inventory Form, FRA Form F6180.71. This
form is available through the FRA's Office of Safety, or on FRA's Web
site at http://www.fra.dot.gov.
``Locomotive'' means a piece of on-track equipment other than hi-
rail, specialized maintenance, or other similar equipment--(1) With one
or more propelling motors designed from moving other equipment; (2)
with one or more propelling motors designed to carry freight or
passenger traffic or both; or (3) without propelling motors but with
one or more control stands. This definition is being added as a result
of a suggestion from the AAR.
``Locomotive horn'' means a locomotive air horn, steam whistle, or
similar audible warning device mounted on a locomotive or control cab
car. The terms ``locomotive horn'', ``train whistle'', ``locomotive
whistle'', and ``train horn'' are used interchangeably by many people
to denote the audible warning device mounted on a locomotive or control
cab car.
``Median'' means the portion of a divided highway separating the
travel ways for traffic in opposite directions.
``MUTCD'' means the Manual on Uniform Traffic Control Devices
issued by the Federal Highway Administration.
``Nationwide Significant Risk Threshold'' means a number,
calculated on a nationwide basis, which reflects the average level of
risk at public
[[Page 70624]]
highway-rail grade crossings equipped with lights and gates and at
which locomotive horns are sounded. For purposes of this rule, a risk
level above the Nationwide Significant Risk Threshold represents a
significant risk with respect to loss of life or serious personal
injury. The Nationwide Significant Risk Threshold is calculated in
accordance with the procedures in Appendix D of this part. In
determining this risk threshold, FRA determines the average level of
risk at public highway-rail grade crossings equipped with lights and
gates and at which locomotive horns are sounded. This data pool in
essence provides the starting point for communities in establishing
quiet zones. Because every grade crossing in a New Quiet Zone must, at
a minimum, be equipped with conventional lights and gates, a community
will be able to determine the risk level associated with the crossings
within the proposed quiet zone.
``New Quiet Zone'' means a segment of rail line within which is
situated one, or a number of consecutive public highway-rail crossings
at which routine sounding of locomotive horns is restricted pursuant to
this part and which does not qualify as a Pre-Rule Quiet Zone.
``Non-traversable curb'' means a highway curb designed to
discourage a motor vehicle from leaving the roadway. FRA is not
specifying design details for such curbs beyond requiring, that they be
at least six inches but not more than nine inches high. Such curbs are
often combined with median islands at least two feet wide. If the curbs
are not equipped with reboundable, reflectorized vertical markers,
paint and reflective beads should be applied to the curb for night
visibility. Additional design specifications are determined by the
standard traffic design specifications used by the governmental agency
constructing the curb. The term ``non-traversable curb'' is replacing
the term ``barrier curb'' as proposed in the NPRM due to its greater
acceptance in the highway community. FRA has also deleted from the rule
the definition of ``mountable curb'' because that term is not being
used in the rule.
``Power-out indicator'' means a device which is capable of
indicating to trains approaching a grade crossing equipped with an
active warning system whether commercial electric power is activating
the warning system at that crossing. This term includes remote health
monitoring of grade crossing warning systems if such monitoring system
is equipped to indicate power status.
``Pre-Rule Quiet Zone'' means a segment of a rail line within which
is situated one, or a number of consecutive public or private highway-
rail crossings at which State statutes or local ordinances restricted
the routine sounding of locomotive horns, or at which locomotive horns
did not sound due to formal or informal agreements between the
community and the railroad or railroads, and such statutes, ordinances
or agreements were in place and enforced or observed as of October 9,
1996 and on December 18, 2003. As proposed, this definition includes
quiet zones enforced or observed as of the date of passage of Public
Law 104-264, which amended 49 U.S.C. 20153 to require the Secretary to
take into account the interest of communities that ``have in effect''
restrictions on the sounding of a locomotive horn at highway-rail grade
crossings or have not been subject to the routine sounding of a
locomotive horn at highway-rail grade crossings. FRA reads the statute
as requiring FRA to be particularly solicitous of communities that had
restrictions in effect at the time of the 1996 enactment. FRA has added
the requirement that the ordinance or agreement was observed or
enforced as of the date of publication of this interim final rule
because it would make little sense to reinstate a ban abandoned by the
community (or determined to be inconsistent with State law) and because
use of information from the more recent date will permit FRA to achieve
greater certainty as to the status of bans and eligibility for Pre-Rule
Quiet Zone status. In particular, FRA has noted some year-to-year
variability in the no-whistle policies observed in Illinois during the
1990s; and achieving certainty as to the status of individual line
segments has proven much more difficult than FRA anticipated in issuing
the proposed rule.
``Private highway-rail grade crossing'' means, for purposes of this
part, a highway-rail at grade crossing which is not a public highway-
rail grade crossing. When viewed in light of the definition of public
highway-rail grade crossings, a private crossing is a crossing where a
private roadway crosses one or more railroad tracks at grade, and at
which a public authority does not maintain the roadway on either side
of the crossing. References in this rule to ``private grade crossing''
or ``private crossing'' refer to a private highway-rail grade crossing.
``Public authority'' means the public entity responsible for safety
and maintenance of the roadway that crosses the railroad tracks at a
public highway-rail grade crossing. This term includes the traffic
control authority or law enforcement authority, or the governmental
jurisdiction having responsibility for motor vehicle safety at the
crossing.
``Public highway-rail grade crossing'' means, for purposes of this
part, a location where a public highway, road, or street, including
associated sidewalks or pathways, crosses one or more railroad tracks
at grade. In the event a public authority maintains the roadway on at
least one side of the crossing, the crossing is considered a public
crossing for purposes of this part. The second sentence of this
definition is often included in a definition of public grade crossing,
but was inadvertently omitted from the NPRM. References in this rule to
``public grade crossing'' or ``public crossing'' refer to a public
highway-rail grade crossing.
``Quiet Zone'' means a segment of a rail line, within which is
situated one or a number of consecutive public or private highway-rail
crossings at which locomotive horns are not routinely sounded. This
definition has been modified slightly from that proposed in the NPRM.
The phrase ``locomotive horns may not be routinely sounded'' has been
changed to ``locomotive horns are not routinely sounded'' to more
effectively indicate the non-permissive nature of the ban on routine
sounding of horns within the quiet zone. Additionally, ``private
crossings'' has been added to the definition in recognition that a
quiet zone may have a combination of both public and private crossings
at which routine horn use is prohibited.
``Quiet Zone Risk Index'' means a measure of risk to the motoring
public which reflects the Crossing Corridor Risk Index for a quiet
zone, after adjustment to account for (1) increased risk due to lack of
locomotive horn use at the crossings within the quiet zone (if horns
are presently sounded at the crossings), and (2) reduced risk due to
implementation, if any, of SSMs and ASMs within the quiet zone. The
Quiet Zone Risk Index is calculated in accordance with the procedures
in Appendix D of this part. The Quiet Zone Risk Index is thus a measure
of risk at crossings within the quiet zone after all adjustments to
risk have been made. This measure is necessary in comparing the risk
level to the Nationwide Significant Risk Threshold.
``Railroad'' means any form of non-highway ground transportation
that runs on rails or electromagnetic guideways and any entity
providing such transportation, including:
(1) Commuter or other short-haul railroad passenger service in a
metropolitan or suburban area and commuter railroad service that was
[[Page 70625]]
operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
``Relevant collision'' means a collision at a highway-rail grade
crossing between a train and a motor vehicle, excluding the following:
a collision resulting from an activation failure of an active grade
crossing warning system; a collision in which there is no driver in the
motor vehicle; or a collision where the highway vehicle struck the side
of the train beyond the fourth locomotive unit or rail car. The term
``relevant collision'' has been included in this rule to provide a
basis for reviewing the safety history at a crossing while ensuring
that collisions not relevant to the direct issue of motorist decision-
making are omitted from the analysis.
``Supplementary safety measure'' (SSM) means a safety system or
procedure established in accordance with this part which is provided by
the appropriate traffic control authority or law enforcement authority
responsible for safety at the highway-rail grade crossing, that is
determined by the Administrator to be an effective substitute for the
locomotive horn in the prevention of highway-rail casualties. Appendix
A to this part lists such supplementary safety measures.
``Waiver'' means a temporary or permanent modification of some or
all of the requirements of this part as they apply to a specific party
under a specific set of facts. Waiver does not refer to the process of
establishing quiet zones or approval of quiet zones in accordance with
the provisions of this part.
``Wayside horn'' means a stationary horn (or device designed to
produce a sound resembling a horn) located at a highway rail grade
crossing, designed to provide, upon the approach of a locomotive or
train, audible warning to oncoming motorists of the approach of a
train.
Section 222.11 What Are the Penalties for Failure To Comply With This
Regulation?
This section, which has not changed from that proposed in the NPRM,
identifies the civil penalties that FRA may impose upon any person,
including a railroad that violates any requirement of this part. The
penalty provision parallels penalty provisions included in many other
safety regulations issued by FRA. Essentially, any person who violates
any requirement of this part or causes the violation of any such
requirement will be subject to a civil penalty of at least $500 and not
more than $11,000 per violation. Civil penalties may be assessed
against individuals only for willful violations, and where a grossly
negligent violation or a pattern of repeated violations creates an
imminent hazard of death or injury to persons, or causes death or
injury, a penalty not to exceed $22,000 per violation may be assessed.
In addition, each day a violation continues will constitute a separate
offense. (Maximum penalties of $11,000 and $22,000 are required by the
Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub.L. 101-
410) (28 U.S.C. 2461 note), as amended by the Debt Collection
Improvement Act of 1996 (Pub.L. 104-134, 110 Stat. 1321-373) which
requires each agency to regularly adjust certain civil monetary
penalties in an effort to maintain their remedial impact and promote
compliance with the law.) Furthermore, a person may be subject to
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully
falsifying reports required by these regulations. FRA believes that the
inclusion of penalty provisions for failure to comply with the
regulations is important in ensuring that compliance is achieved. The
interim final rule includes a schedule of civil penalties as Appendix G
to this part. Because the penalty schedule is a statement of agency
policy, notice and comment was not required prior to its issuance. See
5 U.S.C. 553(b)(3)(A).
New Jersey DOT requested that FRA clarify this section ``to assure
one that the application of a safety measure such as an audible warning
device is not subject to civil or criminal penalties.'' While the
meaning of this comment is not clear, FRA intends that the routine
sounding of a locomotive horn in a quiet zone will subject the railroad
to civil penalties, as would not sounding the horn at a public crossing
outside of a quiet zone.
Section 222.13 Who Is Responsible for Compliance?
This section is intended to make clear that any person, including
but not limited to a railroad, contractor for a railroad, or a local or
State governmental entity that performs any function covered by this
part, must perform that function in accordance with this part.
Section 222.15 How Does One Obtain a Waiver of a Provision of This
Regulation?
This section governs the process for obtaining a waiver from a
provision of this regulation. There was confusion on the part of some
commenters regarding the meaning and purpose of waivers. Some
commenters incorrectly considered waivers to be synonymous with
exceptions from the requirement to sound the horn. In an effort to
further clarify this section, FRA has added ``waiver'' to the list of
defined terms in section 222.9. It is defined as ``a temporary or
permanent modification of some or all of the requirements of this part
as they apply to a specific party under a specific set of facts. Waiver
does not refer to the process of establishing quiet zones or approval
of quiet zones in accordance with the provisions of this part.''
FRA has historically entertained waiver petitions from parties
subject to an FRA regulation. In many instances, a regulation, or
specific section of a regulation, while appropriate for the general
regulated community, may be inappropriate when applied to a specific
entity. Circumstances may make application of the regulation to the
entity counter-productive; an extension of time to comply with a
regulatory provision may be needed; or technological advancements may
result in a portion of a regulation being inappropriate in a certain
situation. In such instances, FRA may grant a waiver from its
regulations. The rules governing FRA's waiver process are found in 49
CFR part 211. In summary, after a petition for a waiver is received by
FRA, a notice of the waiver request is published in the Federal
Register, an opportunity for public comment is provided, and an
opportunity for a hearing is afforded the petitioning or other
interested party. FRA, after reviewing information from the petitioning
party and others, will grant or deny the petition. In certain
circumstances, conditions may be imposed on the grant of a waiver if
FRA concludes that the conditions are necessary to assure safety or if
they are in the public interest. Because this regulation's affected
constituency is broader than most of FRA's rail safety regulations, the
waiver process is proposed to be somewhat different. Paragraphs (a) and
(b) address the aspects which are different than FRA's customary waiver
process. However, as paragraph (c) makes clear, once an application is
made pursuant to either paragraph (a) or (b), FRA's normal
[[Page 70626]]
waiver process, as specified in 49 CFR part 211, applies.
Paragraph (a) of this section addresses jointly submitted waiver
petitions as specified by 49 U.S.C. 20153(d). Such a petition must be
submitted by both any railroad whose tracks cross the highway and by
the appropriate traffic control authority or law enforcement authority
which has jurisdiction over the roadway crossing the railroad tracks.
Although section 20153(d) requires that a joint application be made
before a waiver of a provision of this regulation is granted, FRA, in
paragraph (b), addresses the situation that may occur if the two
parties can not reach agreement to file a joint petition. Section
20153(i)(3) gives the Secretary (and, by delegation, the Administrator)
the authority to waive in whole or part any requirement of section
20153 (with certain limited exceptions) if it is determined not to
contribute significantly to public safety. FRA thus has decided to
accept individually filed waiver applications (under certain
conditions) as well as jointly filed applications. In an effort to
encourage the traffic control authority and the railroad to agree on
the substance of the waiver request, FRA requires that the filing party
specify the steps it has taken in an attempt to reach agreement with
the other party. Additionally, the filing party must also provide the
other party with a copy of the petition filed with the FRA.
It is clear that FRA prefers that petitions for waiver reflect the
agreement of both entities controlling the two transportation modes at
the crossing. If agreement is not possible, however, FRA will entertain
a petition for waiver, but only after the two parties have attempted to
reach an agreement on the petition.
Paragraph (c) provides that each petition for a waiver must be
filed in the manner required by 49 CFR part 211.
Paragraph (d) provides that the Administrator may grant the waiver
if the Administrator finds that it is in the public interest and that
safety of highway and railroad users will not be diminished. The
Administrator may grant the waiver subject to any necessary conditions
required to maintain public safety.
Section 222.21 When Must a Locomotive Horn Be Used?
Paragraph (a) of this section addresses the duty to sound the
locomotive horn when approaching and passing through a public highway-
rail grade crossing. The locomotive horn shall be sounded when such
locomotive or lead car is approaching and passes through each public
highway-rail grade crossing. This paragraph also requires that sounding
of the horn be in the pattern of two long, one short, and one long
blast be initiated at the place specified in paragraph (b) of the
section and that the pattern be repeated or prolonged until the
locomotive or train occupies the crossing. This paragraph also states
that the pattern may be varied as necessary where crossings are spaced
closely together.
FRA proposed to adopt the industry standard pattern for sounding of
horns at grade crossings. FRA received a number of requests that we
define what ``long'' and ``short'' horn blasts are. The apparent intent
of the commenters is to ensure that the locomotive horn not be sounded
excessively when entering a grade crossing. It is clear that some
engineers at some times ``lean on the horn'' for longer periods than is
common in the industry. Despite this, the vast majority of engineers
apply the locomotive horn appropriately. Imposing strict time
requirements for the sound pattern would impose unrealistic limits on
engineers and add to their already full workload. The Florida East
Coast Railway recommended that the horn pattern be left up to the
individual railroad. While some locomotive horns can be preprogrammed
with specific horn sequences, FRA will not be requiring such horns, nor
has a need for them yet been shown. FRA is thus retaining the proposed
language of ``long'' and'short'' blasts. FRA is also leaving to the
railroad or individual engineer the decision as to how to vary the horn
pattern when crossings are spaced closely together. Such decisions have
been made by these parties for many years, and there has been no
showing that there is a need to alter those determinations.
Paragraph (b) of the NPRM addressed the location at which the
locomotive horn needs to begin being sounded. The basic premise of this
section as proposed in the NPRM was that the locomotive horn should be
sounded no less than 20, nor more than 24 seconds in advance of a grade
crossing, but in no event could the horn be sounded more than \1/4\
mile in advance of the crossing.
Research has shown that the effect of a locomotive horn sounded at
a distance greater than \1/4\ mile from a crossing is attenuated to the
extent that it does not provide warning to the motorist. The NPRM
relied on the presence of whistle boards to notify the engineer when to
sound the horn. Thus the proposal went into great detail regarding the
present location of whistle boards and adjusting the location of
whistle boards in the future. However, the BLE, representing the
majority of railroad engineers in the country, testified that engineers
did not need variably-placed whistle boards to indicate the proper
location at which to sound horns. The BLE testified that engineers
could provide a time-based warning if asked to do so. As a result, FRA
has revised paragraph (b) to simply provide a range of time between
which the locomotive horn must be sounded in advance of a grade
crossing, while retaining the outside limit of \1/4\ mile.
As noted above, FRA proposed that the horn be sounded at least 20,
but not more than 24 seconds, before the locomotive enters the
crossing. This proposal generated a number of comments, the majority of
which objected that the proposal required the horn to be sounded for an
excessive period of time. Missouri's Division of Motor Carrier and
Railroad Safety stated that the ``range of 20 to 24 seconds will be
difficult for engineers to determine when not traveling near maximum
authorized speed.'' The agency recommended a minimum of 15 seconds,
which provides, according to the agency, a 10 second margin. The
Commissioner of the City of Aventura, Florida stated that 20 seconds
may be acceptable during the day, but is unreasonable at night. The
Commissioner suggested 10 seconds of warning during nighttime hours.
The Florida East Railway said that it wasn't aware of technology to
enable a train moving at less than maximum authorized speed to properly
blow the horn within 20 to 24 seconds. The FEC recommended further
thought on the subject. The FEC further stated that if FEC train speed
is 60 miles per hour, the one-quarter mile limit only provides for 15
seconds warning rather than 20 to 24 seconds warning. The FEC is
correct, and as noted below, that is the desired result.
As a result of comments received and the results of its research on
this issue, FRA has revised the proposal to provide that the locomotive
horn be sounded at least 15 seconds, but no more than 20 seconds,
before the locomotive enters the crossing, but in no event shall a
locomotive horn sounded in accordance with paragraph (a) be sounded
more than one-quarter mile in advance of a public highway-rail grade
crossing. This provision as revised recognizes that establishing only a
set location at which horns must be sounded (as is the case under many
present State laws), has the potential to disrupt local communities
without affecting the warning provided to the motorist. Because a fixed
location for sounding of a horn results in differing periods of warning
depending on the speed of the train, FRA chose to
[[Page 70627]]
eliminate the traditional fixed point at which the locomotive horn
needs to be sounded. Rather, the length of time of the warning is the
operative factor as to when to begin sounding the horn. FRA is
providing the locomotive engineer a range of 15 to 20 seconds in
advance of the crossing in which to sound the horn. This provision will
prevent much unnecessary disruption to surrounding communities. Under
present law in many States, a train traveling at 15 miles per hour
would sound its horn for 60 seconds (over a full quarter mile) if
required to initiate the sounding one-quarter mile in advance of the
crossing. Under this rule, such a train traveling at 15 miles per hour
would sound its horn for 15 to 20 seconds, but would only sound it over
a distance of from 330 feet to 440 feet. Ample warning is provided the
motorist while preventing unnecessary noise among the surrounding
community. At the other end of the spectrum, a train traveling at 79
miles per hour travels more than four tenths of a mile in 20 seconds,
and thus would only sound its horn for less than 12 seconds under this
rule. It is clear that excessive horn noise would be generated if the
horn were to be sounded for a full 20 seconds, since the horn sound is
not effective as a warning beyond one-quarter mile. Thus, as proposed
in the NPRM, FRA is limiting the sounding of the horn to a maximum of
one-quarter mile in advance of a crossing, regardless of train speed.
Sound diminishes at a rate of approximately 7.5 dB(A) for each doubling
of distance. Thus, the sound from a locomotive horn registering
100dB(A) at 100 feet in front of the locomotive will have diminished to
roughly 75 dB(A) at one-quarter mile in front of the locomotive. That
distance is near the outer margin of utility in terms of alerting the
motorist to oncoming trains at that crossing.
Section 222.23 How Does This Regulation Affect Sounding of a Horn
During an Emergency or Other Situations?
Paragraph (a)(1) of this section is meant to make clear that a
locomotive engineer may sound the locomotive horn in emergency
situations. Notwithstanding any other provisions of the rule, a
locomotive engineer may sound the locomotive horn to provide a warning
to vehicle operators, pedestrians, trespassers or crews on other trains
in an emergency situation if, in the engineer's sole judgment, such
action is appropriate in order to prevent imminent injury, death or
property damage. Thus, establishment of a quiet zone and the limits
established on the length of time a horn may be sounded, are not
intended to prevent the engineer from using his or her discretion in
emergency situations. CPUC recommended that FRA add ``or at the
discretion of the locomotive engineer'' at the end of this paragraph
because it is claimed that the proposed language places a burden on the
engineer to prove that an emergency situation existed which would have
resulted in imminent injury, death or property damage. FRA agrees that
the engineer should not have the burden to prove that an emergency
existed. We believe the present language is sufficiently clear to
relieve the engineer of that burden. The BLE expressed ``complete
agreement'' with the proposed language, as does the Mayor of Boca
Raton, Florida. With the exception of minor proposed language change,
the AAR also agrees with the proposal.
The AAR suggested that the phrase ``[N]othing in this part'' be
replaced with ``A railroad shall not be prohibited or restricted from
using'' in paragraph (b). The AAR claims that ``FRA does not go far
enough in addressing the railroads' need to sound horns for purposes
other than to warn the public of trains approaching grade crossings or
to warn roadway workers. Locomotive engineers use horns in other
circumstances, such as when approaching passenger stations and to alert
railroad employees to the pending movement of a train. It would be
unsafe to prohibit the use of locomotive horns for such purposes.
Consequently, FRA should specifically prevent States and localities
from restricting railroads from sounding the locomotive horn for
railroad operating purposes.'' While the substance of AAR's proposal
has merit, the scope of this rulemaking is limited to locomotive horn
use at grade crossings. Extending the regulatory framework beyond this
limited area would require further rulemaking. To avoid
misunderstanding regarding the subject matter subsumed by the rule,
however, FRA has added the words, ``or where required for other
purposes under the railroad operating rules'' at the end of this
section.
This paragraph has been further changed slightly from the NPRM. The
phrase, ``including establishment of quiet-zones, or limits on the
length of time in which a horn may be sounded'' has been added to this
paragraph to make clear that nothing in the rule, including the
creation of quiet zones, or rules setting limits on where and when
horns are sounded, shall prevent an engineer from using the horn as a
warning in an emergency situation.
Paragraph (a)(2) is intended to make clear that while the rule does
not preclude the sounding of the locomotive horn in emergency
situations, the rule also does not impose a legal duty to sound the
locomotive horn in such situations. It is FRA's intent that this
section, and the rule as a whole, subsume the subject matter of
sounding the locomotive horn at public grade crossings, including the
sounding of locomotive horns within quiet zones during emergency and
non-emergency situations. Absent the paragraph, it is conceivable that
a railroad or engineer or both, could be found liable for damages
resulting from a collision with an automobile at a grade crossing under
the theory that the horn should have been sounded even though the
crossing is within a quiet zone. It is the intent of FRA, that once a
public authority creates a quiet zone pursuant to this part, the
railroad and locomotive crew are relieved from any legal duty to sound
the locomotive horn in an emergency situation. The rule's dual purpose
of ensuring safety and reducing train horn noise where safety can
reasonably be assured without horn use would be defeated if railroads
felt compelled to make liberal use of the train horn in quiet zones
merely to avoid being sued for not using it. Moreover, railroads and
their crews would be placed in an untenable legal position, being
prohibited from routine sounding of the horn but possibly being held
liable for not sounding the horn if a collision does occur in a quiet
zone and a plaintiff argues that the horn should have been sounded. Of
course, we are confident that railroads and their engineers, given
their very strong interest in avoiding crossings accidents, will err on
the side of caution in using their discretion to determine which
situations are truly emergencies warranting use of the horn.
In paragraph (b), the NPRM provided that nothing in this part
restricts the use of the locomotive horn to announce the approach of
the train to roadway workers in accordance with a program adopted under
part 214 of this Chapter or where active warning devices have
malfunctioned and use of the horn is required by either 49 CFR 234.105
(activation failure), 234.106 (partial activation), or 234.107 (false
activation). This makes clear that locomotive horns must still be
sounded in accordance with the listed regulations irrespective or the
existence of a quiet zone. Such provisions have been established to
provide warning to railroad employees working on and along the track
and to motorists when grade crossing warning
[[Page 70628]]
systems malfunction. The BRS expressed their support for this
paragraph, stating that it is ``imperative that this remain unchanged.
An important element of safety for roadway workers is the warning
conveyed by the engineer.'' With the exception of the additional
language pertaining to railroad operating rules discussed above, the
paragraph remains unchanged from the NPRM.
Section 222.25 How Does This Rule Affect Private Highway-Rail Grade
Crossings?
This section clarifies the manner in which this rule affects
private crossings. (Section (f) of the Act explicitly gives discretion
to the Secretary as to the question of whether to subject private
highway-rail grade crossings to the regulation.) FRA has determined
that exercising its jurisdiction in a limited manner regarding these
crossings is the appropriate course of action.
Although the subject of private crossings was discussed in the
preamble to the NPRM, a specific regulatory section was not included.
In an effort to clearly set out the manner in which the rule affects
private crossings, this new Sec. 222.25 is included in the rule.
Although only a relatively small number of commenters addressed the
issue of the rule's applicability to private crossings, the majority of
commenters suggested that the rule should apply to private crossings to
some extent. For example, both the Missouri Department of Economic
Development (MDED) and the CPUC recommended that the proposed rule
apply to private crossings in the same manner as public crossings. The
MDED explained that many private highway-rail grade crossings,
especially those in rural areas where trains usually travel at speeds
near the maximum authorized, have hardly any warnings indicating the
presence of the crossings. The CPUC explained that some private
crossings carry very high volumes of truck or employee automobile
traffic at particular times. The CPUC also pointed out that California
law on the use of locomotive horns at crossings applies to all
crossings, both public and private, and that no empirical data exists
that justifies reduced protection for private crossings in quiet zones.
Accordingly, the CPUC also recommended that entities seeking to
establish quiet zones should be required to provide notice of their
intent to all owners of private property within the proposed zone.
Similarly, the New York Department of Transportation explained that
almost half the grade crossings in New York are private, but many
function essentially as public crossings, with free access by anyone at
any time of the day. Accordingly, the New York DOT suggested that the
proposed rule apply to high-risk private crossings, as well as public
crossings. The agency suggested that the determination of whether a
private crossing was a high risk crossing could be based on a
calculation similar to the New Hampshire Index, an analysis of train
and highway volume. Alternatively, the agency suggested that a more
complex review considering additional factors such as highway and train
speed, as well as the type of railroad operations involved (e.g.,
intercity, commuter, freight, etc.) might be appropriate.
The UTU indicated it has ``a problem with not requiring improved
protection for private crossings in a quiet zone.'' The UTU expressed
the view ``that not to require a private crossing or crossings within
the quiet zone to be similarly equipped as a public crossing will allow
an unsafe condition to exist.'' Similarly, the CPUC is in favor of
``applying the standards to all railroads, public, private, plant,
because the motoring public cannot distinguish these categories.''
Although not recommending that the proposed rule apply to private
crossings in the same manner as public crossings, two local governments
suggested that to ensure private crossings in quiet zones are safe, the
rule should require advance warning signs advising users of the
crossings that train horns will not be sounded. In addition, these
commenters, the City of Moorhead, Minnesota, and the City of Fargo,
North Dakota, suggested that the provision of the proposed rule
addressing implementation of quiet zones, be revised to specifically
indicate that railroad operations in established quiet zones should
cease routine use of horns at private crossings, as well as public
crossings.
FRA understands the concern expressed by those commenters
recommending that private crossings be addressed in the same manner as
public crossings. FRA remains unconvinced that private crossings at
this time should be subject to Federally imposed mandatory sounding of
horns. In expressing this view in the NPRM, FRA stated that
``[A]lthough some private crossings experience heavy rail and motor
vehicle use, we do not have sufficient information as to present
practices, the number and type of such diverse crossings, and the
impacts of locomotive horns at such crossings. Thus, FRA will not at
this time require that the locomotive horn be sounded at private
highway-rail crossings. Whether horns must be sounded at such crossings
will remain subject to State law (if any) and agreements between the
railroad and the holder of crossing rights.'' As noted by the CPUC,
California State law requires use of horns at private crossings. We
note that FRA, by not applying this rule to private crossings which are
not in quiet zones, has left States free to require the sounding of
locomotive horns if it is determined by the appropriate State authority
that it is appropriate given the circumstances within that State.
Similarly, to the extent they are not constrained by Federal law
(within a quiet zone) or State law, railroads remain free to elect
whether to sound the horn at private crossings.
An FRA requirement to sound the horn at all private crossings would
in some respects have more impact than the requirement to sound the
horn at public crossings. By requiring the latter, Congress merely
Federalized what had been uniform practice throughout the United
States. Horns have sounded at public crossings for many decades
throughout the country, first by railroad rules, and later based on
State law. Horn use at private crossings, has, however, generally not
been regulated by the States (presumably because there was less need
for such requirement at private crossings), and horn use has thus been
left up to railroads. Thus, if FRA were to require horn use at each of
the more than 98,000 private crossings throughout the nation, the
environmental impact in terms of increased noise would be significant.
It is unclear at this time, based on the data available, if there would
be a corresponding increase in safety as a result. Therefore, other
than its effect on private crossings within quiet zones, the rule is
not meant to affect present State laws or orders, or private
contractual or other arrangements regarding the routine sounding of
locomotive horns at private highway-rail grade crossings. See Sec.
222.7.
FRA does agree that evaluation of the use of the train horn at
private crossings merits further study. Because private crossings are
generally not controlled by State transportation or regulatory
officials, the current national inventory does not provide details
regarding key data elements required to evaluate safety at individual
private crossings to the same extent possible at public crossings.
Clearly, further information is needed concerning the potential utility
of using train horns at private crossings and the collateral issues
such a policy might entail (including the effects on crew noise dose).
FRA will pursue these issues in the context of a forthcoming
[[Page 70629]]
review of safety at private highway-rail crossings.
There was also general agreement among commenters of the need to
consider safety at private crossings located within proposed quiet
zones. We agree. Although many private crossings do not present high
risk in comparison with active public crossings (e.g., entrances to
individual residences; lightly used agricultural crossings), other
private crossings may present considerable risk. In some cases,
railroads instruct crews to sound the horn at particular private
crossings where risk is perceived to be high; in other cases train
horns provide effective warning as an accident of geography (i.e.,
where the private crossing is sandwiched between two nearby public
crossings). Although, as noted, the statute does not mandate that FRA
require use of the train horn at private crossings, it is imperative
that actions to facilitate establishment of quiet zones not
significantly increase risk at these crossings, and that their presence
in the midst of public crossings not be allowed to defeat the purpose
of a quiet zone.
This section specifically states that this rule does not require
the routine sounding of locomotive horns at private highway-rail grade
crossings. Although FRA has jurisdiction over locomotive horn use at
private crossings based on both 49 U.S.C. 20153 and 49 U.S.C. 20103, it
has not exercised that jurisdiction at this time except as to the use
of horns at private crossings within quiet zones.
Paragraph (a) of this section provides that private highway-rail
grade crossings may be included in a quiet zone. To do otherwise would
defeat the purpose of such a quiet zone. Paragraph (b) provides that
private grade crossings which allow access to the public, or which
provide access to active industrial or commercial sites, may be
included in a quiet zone only if a diagnostic team evaluates the
crossing to determine whether the institution of the quiet zone will
significantly increase risk at the private crossing. The crossing must
then be equipped or treated in accord with the recommendations of such
team. A diagnostic team is composed of a group of knowledgeable
representatives of the parties of interest in a grade crossing.
Typically, the team would be composed of railroad personnel, public
safety or law enforcement representatives, and engineering personnel
for the public authority. In appendix F, FRA has set forth crossing
safety issues for the diagnostic team to consider. The diagnostic team,
using crossing safety management principles, should evaluate conditions
at the grade crossing to make determinations and recommendations
concerning safety needs at that crossing. The diagnostic team can
evaluate a crossing from many perspectives and can make recommendations
as to what improvements might be needed to compensate for the lack of a
train horn at the crossing. FRA will expect that the results of
diagnostic review will be reflected in the filings submitted under
Sec. 222.39, so that FRA can determine the appropriateness of the
proposed action.
The following options should be available if the diagnostic team
determines that the private crossing could experience increased
significant risk as a result of quiet zone implementation: (1) The
public authority ``adopts'' the crossing by agreement with the holder
or through condemnation and the crossing is then included in the
corridor-based risk-reduction program; (2) the crossing is closed; or
(3) safety improvements are implemented that address increased risk at
that crossing, as evaluated by the diagnostic team.
FRA does not believe it is necessary to specify a means of
resolving any differences within the diagnostic team. In the event of
disagreement, the contrasting views can be documented and included in
the public authority's submission to FRA. If necessary, FRA will
undertake additional fact finding before accepting or rejecting the
proposed course of action. FRA expects public authorities to make these
determinations in the first instance; FRA's role is to determine
whether these authorities have considered the grade crossing safety
issues set forth in the appendix and have stated an accurate and
reasonable basis for their determinations.
This rule does not specify the financial responsibility of parties
for safety improvements at private crossings. Responsibility will be
determined under normal principles of property law and based upon
whatever contracts and cooperative agreements may be entered into by
the parties. At private crossings, the holder of the right to cross has
normal common law obligations regarding the safe passage of employees
and guests; and the community as a whole has an interest in a quiet
environment. It is expected that the private crossing holder and the
public authority would cooperate to effect any necessary improvements,
with the railroad assuming practical responsibility for maintenance of
any automated warning systems at the crossing. (Allocation of expense
between the railroad and the crossing holder might be further
influenced by any existing contractual arrangements between them.) In
the case of a failure of parties to agree on new arrangements, the
public authority might elect to adopt the roadway (using condemnation
authority as necessary), in which case the crossing would be treated as
public in nature.
Paragraph (c) of this section establishes that the private
crossings within a quiet zone must at a minimum be equipped with
crossbucks and ``STOP'' signs conforming to MUTCD standards together
with advance warning signs in compliance with Sec. 222.35(c).
Section 222.33 Can Locomotive Horns Be Silenced at an Individual Public
Highway-Rail Grade Crossing Which Is Not Within a Quiet Zone?
This section addresses the situation in which locomotive horns need
not be sounded even though the crossing is not part of a quiet zone. A
railroad operating over an individual public highway-rail grade
crossing may, at its discretion, cease the sounding of locomotive horns
under certain conditions. Locomotive horns need not be sounded when the
locomotive speed is 15 miles per hour or less and train crewmembers or
properly equipped flaggers (as defined by 49 CFR 234.5) provide warning
to motorists. These limited types of rail operations do not present a
significant risk of loss of life or serious personal injury and thus,
under the Act, may be exempted from the requirement to sound the
locomotive horn. Locomotive horns will still be required to be sounded
if automatic warning systems have malfunctioned and the crossing is
being flagged pursuant to 49 CFR 234.105, 234.106, or 234.107. Horns
will still be required in these limited circumstances in order to
offset the temporary loss of the active warning which motorists have
presumably come to rely on.
This section is an exception to the requirement that silencing of
locomotive horns must include all crossings within a designated quiet
zone. This section permits a railroad, on its own initiative, to
silence its horns at individual crossings under certain circumstances
in which the safety risk is low. FRA anticipates that this section will
be used primarily at crossings located in industrial areas where
substantial switching occurs, and thus would avoid unnecessary noise
impacts on those railroad personnel working on the ground in very close
proximity to the locomotive horn. This section also has the potential
to reduce noise impacting residences and businesses near crossings
where railroad switching
[[Page 70630]]
occurs. This section recognizes that under the noted conditions, public
and railroad safety do not require the sounding of locomotive horns--a
railroad is thus free to eliminate them. Since the primary beneficiary
of this section is not nearby residences, the reasoning for the
establishment of quiet zones rather than individual quiet crossings
would not be applicable here. There is no additional burden placed on
an engineer in this situation since the flagger will generally be a
member of the train crew itself, and the engineer will not be placed in
the position of having to determine when horns must be silenced or
sounded as would be the case if horns could be silenced on an
individual crossing basis. Additionally, prevention of noise spill-over
from a crossing would not be a consideration in these situations.
FRA received a number of comments on the equivalent section in the
NPRM (Sec. 222.31). The representative of Miami Springs, Florida felt
that if train speed is less than 15 miles per hour, local authorities
can decide if an exemption for the horn is appropriate. The
representative did not think flaggers are needed in this situation. The
AAR recommended that the decision to flag be left to railroads. In
addition, this AAR representative pointed out that proposed Sec.
222.31 identified the threshold speed of 15 miles per hour as the
maximum authorized operating speed established by the railroad, not the
actual operating speed. This commenter suggested that the maximum
authorized speed is not the critical factor and recommended that the
maximum speed identified in Sec. 222.31 be revised to refer to actual
operating speed. FRA agrees with this suggestion and has changed this
provision accordingly. However, FRA will retain the requirement to flag
the crossing in the absence of the horn. To do otherwise would put the
traveling public at risk, in that the motorist could not be certain of
the warning to be provided at the crossing. If a train passes through
at 20 miles an hour, a horn would sound, but at 15 miles per hour a
horn would not sound. Only if actual warning is provided by the horn at
train speeds greater than 15 miles per hour and by a flagger at speeds
of 15 miles per hour or less would the motorist consistently receive
warning of the train's approach. The BLE provided the general comment
that the assumption on which proposed Sec. 221.31 is based, that slow
moving trains or less frequent train movements lead to a diminished
safety risk, must be carefully evaluated and must be supported by
substantial relevant data. We agree, however, that is a less
significant an issue in this case because flagging is required to
provide an alternative methods of warning. Further, careful review of
accident data shows that, even if the flagger's warning is not heeded,
the likely severity of a collision will be much lower than at higher
speeds.
Another railroad industry commenter, the Florida East Coast Railway
Company, stated that it interpreted proposed Sec. 222.31 as leaving it
to the discretion of railroads to decide whether to sound the
locomotive horn or not when the specified conditions are present. The
commenter is correct that if all the conditions are met under this
section, the railroad may, but is not required to forgo sounding the
horn. The reason for leaving significant discretion with the railroad
in this instance is that in many cases highly restricted sight
distances and complex traffic patterns may complicate the flagger's job
and make use of the horn virtually mandatory.
Section 222.35 What Are the Minimum Requirements for Quiet Zones?
This section details the minimum requirements for quiet zones
established in conformity with this part. It addresses the minimum
length of a quiet zone, minimum level of active warning to be provided,
and minimum type of signage required.
The requirements of this section appeared in the NPRM in proposed
Sec. 222.33, ``Establishment of quiet zones.'' Because of the breadth
of that proposed section, in this interim final rule, it has been
broken down into smaller sections for ease of use and reference. Thus,
this Sec. 222.35 addresses minimum physical requirements, Sec. 222.37
addresses who may establish a quiet zone, and Sec. 222.39 addresses
how a quiet zone is established.
In the NPRM, FRA discussed the rationale for requiring quiet zones
rather than permitting a ban on locomotive horns on a crossing-by
crossing basis. A quiet zone is defined in this rule as a segment of a
rail line, within which is situated one or a number of consecutive
public highway-rail crossings at which locomotive horns are not
routinely sounded. FRA believes that if locomotive horns are to be
prohibited along a segment of track, the underlying purpose of the
prohibition will not be served unless the prohibition is effective on a
corridor basis. Without a quiet zone, the sounding of horns may be
prohibited at one crossing, required at the next few crossings and then
prohibited at another crossing perhaps one-quarter mile down the
tracks. Because locomotive horns must be sounded in advance of the
crossing, the horn being sounded at one crossing will effectively
negate a large measure of the benefit of the prohibition elsewhere
along the rail line. Imposition of a horn prohibition on a corridor
basis will eliminate excessive and unnecessary workload demands on the
engineer, permitting greater attention to other locomotive operating
requirements. Without a zone prohibition, the engineer will be faced
with the need to constantly be aware of which crossings are, or are
not, subject to a prohibition.
Paragraph (a) addresses the length of quiet zones. Unlike the NPRM,
which required an across the board one-half mile length irrespective of
when the quiet zone was established, this Interim Final Rule provides
for a minimum length for New Quiet Zones and permits Pre-Rule Quiet
Zones to retain their length under specified conditions.
Paragraph (a)(1) provides that the minimum length of a New Quiet
Zone established under this part shall be one-half mile along the
length of railroad right-of-way. This is consistent with the NPRM,
which as stated, required that all quiet zones to be at least one-half
mile long. This provision did not generate a large number of comments;
however, the concept of a minimum length was generally supported. The
communities of Moorhead, Minnesota, Fargo, North Dakota, and Rocky
River, Ohio supported the one-half mile length. New Jersey Department
of Transportation pointed out that the purpose of a quiet zone and the
requirement for minimum length may not be met throughout the entire
length of a quiet zone ``because of stations, private grade crossings,
curves and points where the locomotive horn would routinely be sounded
regardless of its proximity to public grade crossings. * * * The
definition and minimum length of a quiet zone * * * may need additional
refinement regarding non-grade crossing safety points on the rail
segment.'' While New Jersey DOT's points are well taken, it remains a
local decision as to whether to implement a quiet zone. It is true that
sounding of locomotive horns at stations and around curves would not be
affected by this rule (although horn use at private crossings within
quiet zones is regulated by this rule (see Sec. 222.25)), but if a
community determines that it wishes to reduce train noise even if it
can not be totally eliminated, it may do so under this rule. The CPUC
recommended that minimum length not be codified in the rule, but should
be determined by the railroad and applicant and approved by the State
agency. The Illinois Commerce
[[Page 70631]]
Commission agrees with the one-half mile length but argues that it
should not be binding since shorter lengths may be appropriate. FRA
believes that establishment of a minimum length of one-half mile is
appropriate. It is, however, a local community decision as to whether
to establish a quiet zone and it is the community which, after weighing
the costs, can best determine where a quiet should be established. FRA
understands that there may be situations in which a quiet zone must,
for legitimate reasons, be shorter than one-half mile. In any such
situation, the community may apply for a waiver from this requirement
under the waiver provisions of Sec. 222.15, showing special
circumstances.
The Florida Department of Transportation recommended that FRA
establish a minimum distance between quiet zones because without a
specified distance between quiet zones, the actual separation may be as
short as 50-100 feet. The agency claimed that the lack of a specified
distance would violate the spirit of the one-half mile requirement.
While a short distance between quiet zones may not be ideal in that the
train horn may sound at a crossing within that distance, the horns will
still be silenced within the minimum one-half mile length, which should
provide relief to residents and businesses within that segment. FRA
expects that there will indeed be situations in which a number of quiet
zones are established in accordance with this section which will result
in some crossings not included in quiet zones created on both sides of
them. We anticipate that communities will calculate the Quiet Zone Risk
Index for a number of different combinations of crossings in order to
establish the right mix of crossings and anticipated costs. It is
perfectly acceptable for a community to create two quiet zones (each at
least one-half mile long) with a segment between them at which horns
will sound. FRA believes that such a decision on the local level best
reflects the needs and views of local residents and businesses. In such
a situation FRA will not substitute its judgment for that of the local
authorities.
Paragraph (a)(2) provides that the length of a Pre-Rule Quiet Zone
may continue unchanged from that which existed as of October 9, 1996.
FRA chose to exempt Pre-Rule Quiet Zones from the minimum one-half mile
requirement in order to fairly take into consideration the interests of
communities with existing whistle bans. While FRA does not believe
there are many Pre-Rule Quiet Zones less than one-half mile in length,
those that otherwise qualify to continue quiet zones under this rule
may retain the original length of the quiet zone. This provision will
prevent disruption in communities with established and effective
whistle bans. FRA has determined that the addition of any crossing to a
Pre-Rule Quiet Zone will end the grandfathered status of that quiet
zone. Such additional crossing will change the status of a Pre-Rule
Quiet Zone to a New Quiet Zone. To do otherwise would confer additional
benefits to those communities with existing whistle bans not
contemplated by the statutory directive to take into account existing
restrictions on the sounding of the horn. Additionally, the Pre-Rule
Quiet Zone has a safety record while horns did not sound, and
presumably the ban had been continued because it met certain safety
standards. There is no such safety record for the new crossing to be
added to the quiet zone. Therefore, because new and additional risk is
added by the new crossings added to the Pre-Rule Quiet Zone, risk needs
to be calculated for the entire quiet zone. The resulting quiet zone
must therefore comply with the requirements for New Quiet Zones and
thus must be at least one-half mile in length.
Paragraph (a)(2) further states that the deletion of any crossing
from a Pre-Rule Quiet Zone, with the exception of a grade separation or
crossing closure, must result in a quiet zone of at least one-half mile
in length in order to retain Pre-Rule Quiet Zone status. Of course, in
addition to not qualifying for Pre-Rule Quiet Zone status, the
resulting proposed quiet zone, if less than one-half mile, would also
not qualify for New Quiet Zone status.
Paragraph (a)(3) makes clear that a quiet zone may extend beyond
the boundaries of a political jurisdiction. This will permit the
establishment of quiet zones reflective of the needs of the nearby
residents and businesses rather than of artificial political
boundaries. A quiet zone may thus extend for its full appropriate
length, rather than being broken into two or three separate quiet
zones. Of course, if more than one public authority is involved due to
the fact that the quiet zone extends into more than one political
jurisdiction, the different public authorities must agree to the
establishment of the quiet zone, and must jointly, or by delegation
provided to one of the authorities, take necessary actions under this
rule. See Sec. 222.34(a).
Paragraph (b) addresses the need for the presence of active grade
crossing warning devices at crossings within quiet zones. Paragraph
(b)(1) addresses active warning devices at crossings within New Quiet
Zones. Each public highway-rail grade crossing in a New Quiet Zone must
be equipped, no later than the implementation date of the New Quiet
Zone, with active grade crossing warning devices comprising both
flashing lights and gates which control traffic over the crossing. Such
devices must conform to the standards contained in the MUTCD issued by
the Federal Highway Administration. As noted in the general discussion
above, flashing lights and gates alone provide an unambiguous warning
to the motorist of the arrival of the train. Removing the active
warning provided by the train horn without providing flashing lights
and gates would put the motorist in the position of relying exclusively
on visual sighting of the train to make a decision, which is
impractical under many circumstances (e.g., permanently or temporarily
obscured sight lines, compromised night vision, adverse weather and
other factors that create visual clutter).
Such warning devices shall be equipped with power-out indicators. A
power-out indicator is a device which is capable of indicating to
trains approaching a grade crossing equipped with an active warning
system whether commercial electric power is activating the warning
system at that crossing. Presence of such power-out indicator adds
another level of protection at the crossing in that it helps the
railroad know as soon as possible if electric power is out at the
crossing. While all crossing warning systems are equipped with back-up
battery power, it is essential that the railroad know as soon as
possible if the system is operating on reserve battery power rather
than commercial power in order to allow the railroad to take
appropriate action before the battery fails. (Of course, because all
grade crossing warning systems are designed on the ``fail-safe''
principle, if a warning system does lose all power, the gates will
descend across the roadway. However, no additional visible warning is
provided; and it is not uncommon for gates to be broken off by motor
vehicles under such circumstances, leaving the crossing a potential
trap for motorists subsequently seeking to cross.)
Paragraph (b)(2) addresses active warning devices at crossings
within Pre-Rule Quiet Zones. Such quiet zones must retain the grade
crossing safety warning devices which existed at the crossing as of the
date of publication of this rule. Such warning systems may be upgraded,
but in no event may the warning system be downgraded from that which
was in existence as of this date. This provision is consistent with the
statutory mandate that FRA take into
[[Page 70632]]
consideration the interest of communities which had existing horn
restrictions in place. Permitting quiet zones with crossings not
equipped with both flashing lights and gates, is appropriate since the
safety history, and thus the risk level, is known at such crossings.
For existing quiet zones, where the risk level without locomotive horns
can be determined, the risk level, rather than the equipment level,
will determine whether an existing quiet zone qualifies as a Pre-Rule
Quiet Zone. While this approach may strike one as inconsistent with the
approach of paragraph (b)(1), which requires both flashing lights and
gates, the determining distinction is the lack of non-horn safety
history at New Quiet Zones. In such circumstances, FRA is not willing
to permit elimination of the train horn when active warning systems are
absent. This distinction also further reflects the statutory mandate
that this rule take into account the interest of communities with
existing bans.
Paragraph (c) addresses the requirement for advance warning signs
at crossings within a quiet zone. Paragraph (c)(1) requires that each
highway approach to every public and private highway-rail grade
crossing within a Pre-Rule Quiet Zone or New Quiet Zone shall be
equipped with an advance warning sign which advises the motorist that
train horns are not sounded at the crossing. Such sign shall conform to
the standards contained in the MUTCD issued by the Federal Highway
Administration. Paragraph (2) provides a period of three years from
this date of publication for such signs to be installed at public and
private crossings in a Pre-Rule Quiet Zone. This three-year interval
tracks the period during which existing quiet zones may be continued
without the necessity of a commitment by the public authority to
continue the quiet zones as Pre-Rule Quiet Zones. Without this three-
year exception, those communities with existing quiet zones with no
advance warning signs would be forced to install such signs even if
they were to discontinue the quiet zones within that three-year grace
period. We note that, although we strongly encourage such signs
wherever use of locomotive horns are prohibited, lack of signs is only
being permitted for a short period of time, and only where they are not
already in use.
Paragraph (d) requires that all private grade crossings within a
quiet zone must be treated in accordance with this section and with
Sec. 222.25.
Section 222.37 Who May Establish a Quiet Zone?
This section addresses which entities may establish quiet zones. In
the NPRM, FRA proposed that a local political jurisdiction, in addition
to a State, have authority to establish a quiet zone. Additionally, in
the preamble to the NPRM, FRA stated that ``FRA does not intend that
the proposed rule confer authority on localities to establish quiet
zones if State law does not otherwise permit such actions. Local
political jurisdictions are creations of their respective states and
their powers are thus limited by their individual State law or
constitution.''
Understandably, this provision generated many comments from State
and local governments. Of those States commenting, the consistent view
was that States should have the primary role in establishing quiet
zones and in administering a quiet zone program. Florida DOT strongly
supported the view that a State agency should be the only governmental
entity to designate or apply for quiet zone approval, comparing that
process with the State agency's role in prioritizing grade crossing
projects and administering Federal funds. Florida DOT suggested that
there needs to be ``uniformity within a given State for the treatment
applied to the crossings to permit quiet zones' and thus the only way
to achieve this is for a State agency to be the only party to designate
or apply to the FRA for a quiet zone. New Jersey DOT similarly felt
that all designations and applications should come from a State agency
which would provide more consistent and systematic approach within each
State. The State also felt that having a single contact per State would
lessen the burden on FRA. Washington DOT also felt that it is simpler
to have one contact per State rather than have each community deal with
the issue individually. California DOT echoed these views and added the
suggestion that States should be free to provide more stringent
protections above the Federal floor. The State recommended that
references in the rule to ``state or local government'' should be
replaced with ``State agency.'' Missouri's Division of Motor Carrier
and Railroad Safety suggested that the State agency with regulatory
authority over grade crossings should process quiet zone applications,
thereby removing a burden on FRA. North Carolina Department of
Transportation (NCDOT) suggested that each State DOT serve as a
clearinghouse for quiet zone requests to FRA since these agencies have
already been charged with evaluating public crossing safety and thus
would be appropriately involved in safety evaluations for proposed
quiet zones.
Comments from local governments tended to support the view that
localities are in the best position to apply for quiet zones, however
some communities favored State agency involvement. Brighton, Colorado
expressed the view that local political subdivisions should establish
quiet zones. Carrollton, Texas favors local government's role, as does
Fort Collins, Colorado and Fargo, North Dakota. Chicago encourages
``FRA to allow state and local governments to agree to the most
appropriate procedure for managing quiet zone implementation and
maintenance.''
FRA notes that Congress, in mandating issuance of this rule,
established the criteria and parameters under which the rule would be
issued. Congress did not specifically provide a State role in managing
the quiet zone program,\13\ and FRA has not provided one either. Thus,
despite suggestions to the contrary, FRA will not delegate to
individual States any of its authority to manage this program. FRA did,
however, solicit suggestions as to which is the appropriate party to
establish quiet zones under the provisions of this rule. Commenters
claiming that State oversight would provide consistency and only State
agencies have the experience evaluating crossings from a safety
standpoint are accurate to some extent. However, this rule has been
crafted to provide a level of consistency while at the same time
providing a range of options for quiet zone implementation. The
``consistency'' is found within the boundaries of this rule.
Application of the same provisions throughout the State and nation will
provide the needed level of consistency, without unduly preventing
implementation of quiet zones under various situations. Similarly,
reliance on a State agency's expertise in grade crossing safety will be
helpful to public authorities in determining which among various
alternatives should be followed, but this expertise should not
determine which public body should make the ultimate decision. We
encourage the use of diagnostic teams (such teams are required if
specified categories of private crossings are proposed for inclusion in
a quiet zone (See Sec. 222.25)), but using diagnostic teams or others
with safety expertise should not affect who the ultimate decision
making authority should be. After reviewing public comments and
testimony, and
[[Page 70633]]
further review of Sec. 20153, FRA has determined that the public
entity with safety authority over the roadway that crosses the railroad
is the appropriate public body to determine whether quiet zones should
be established. As the authority over the roadway, that body is the
logical entity to make such decisions. That authority, as the public
entity responsible for safety and maintenance of the roadway (be it
State, city, county or township), already has the legal authority over
the roadway and therefore ostensibly has the necessary expertise or
judgment to make decisions regarding that roadway. To the extent a
State agency retains control over engineering decisions at highway-rail
crossings, nothing in this rule should be read to compromise that
authority. It is only the conditions under which the train horn will
sound or be silenced that is reserved for resolution under this rule.
---------------------------------------------------------------------------
\13\ By contrast, see 49 U.S.C. 20105 and 49 CFR part 212 (State
Safety Participation).
---------------------------------------------------------------------------
A review of section 20153 indicates a clear Congressional
preference that decision-makers be the ``traffic control authority or
law enforcement authority responsible for safety at the highway-rail
grade crossing.'' The statute refers to SSMs being provided by such
body. Similarly, in the event a waiver from the regulation is desired,
the statute requires that such application be from the traffic control
authority or law enforcement authority responsible for safety at the
highway-rail grade crossing. The statute also requires that FRA take
into account the interest of ``communities'' and that FRA ``work in
partnership with affected communities to provide technical assistance
and proved a reasonable amount of time for local communities to install
SSMs.'' Nowhere does the statute refer to State agencies. The focus of
the statute, and thus the focus of this rule is on the public bodies
that are the ``traffic control authority or law enforcement authority
responsible for safety at the highway-rail grade crossing.'' Yet States
do have an interest in this issue, and will of course play an important
role as the discussion of paragraph (b) below details.
There are many different roadways crossing railroad tracks. Some
are roads maintained by a small local jurisdiction, such as a town or
village, and some are State highways maintained by the State. We do not
expect, nor do we think it advisable, that a small political
jurisdiction, such as a township desiring a quiet zone, have authority
under this rule to determine what the State installs on its State
highway within the borders of that town or village. Therefore, we have
crafted this rule to provide that the political entity having safety
jurisdiction over the highway have the authority to implement quiet
zones involving those crossings.
FRA wishes to emphasize that it expects to participate in a broad
cooperative effort involving States, local public authorities, and
railroads that will identify the dimensions of potential quiet zones,
staff diagnostic teams, identify funding sources, and help resolve any
technical issues related to issues such as effectiveness rates for
proposed ASMs. In this context, the strong participation of State
departments of transportation and regulatory commissions will be
crucial to project success, particularly since in many States the
primary expertise for grade crossing safety issues resides at the State
level.
FRA appreciates the offers made by several State-level departments
and agencies to manage the implementation of this rule within their
States. Although FRA does recognize that these agencies will need to
play a strong role in implementation of the rule, FRA has not chosen to
grant to State governments final approval functions for several
reasons, any one of which is independently sufficient as a decisional
criterion.
First, the obvious objective of the statute is to create a uniform
and consistent pattern nationwide with respect to the conditions under
which use of the train horn will and will not occur. It would be
virtually impossible for FRA to ensure that a variety of State agencies
were consistently applying the regulation; in fact, the burden of doing
so could exceed the burden of administering the regulation directly.
Congress did not direct that the States play any specific role in this
regard.
Second, as a practical matter it is not clear that State agencies
are authorized to take on this duty; and the delays inherently involved
in obtaining this authority from legislatures could defeat the
expectations of communities seeking to preserve or establish quiet
zones.
Third, unlike many other situations where existing State programs
are incorporated into a new Federal effort, this is not a field where
State innovation has provided the model for Federal action. Although
certain States have distinguished themselves in providing for safety at
crossings by insisting on use of the train horn, and others have been
responsive to local concerns by providing exceptions to its use,
perhaps no more than one or two States has settled on an approach that
appears to adequately balance the two interests and provide a
foundation for a ready transition to functioning under this interim
final rule.\14\
---------------------------------------------------------------------------
\14\ This is not a criticism, but merely an observation. Until
the studies undertaken by FRA beginning in the 1990s, there was
insufficient data available to anyone to fairly evaluate the actual
impact of silencing the train horn. By the same token, supplementary
and alternative safety measures emerged as a credible alternative to
the train horn only as a result of innovation and research that
flowered in the 1990s as a result of broad partnerships at the State
and Federal levels, with strong participation by passenger and
freight railroads.
---------------------------------------------------------------------------
Paragraph (a) of this section provides that a public authority may
establish quiet zones which are consistent with the provisions of this
part. If a proposed quiet zone includes public grade crossings under
the authority and control of more than one public authority (such as a
county road and a State highway crossing the railroad tracks at
different crossings), both public authorities must agree to
establishment of the quiet zone, and must jointly, or by delegation
provided to one of the authorities, take such actions as are required
by this part. We anticipate that many quiet zones will encompass
roadways under the control of more than one political jurisdiction,
thereby requiring cooperation among the various jurisdictions in order
to establish a quiet zone. We recognize that under this scenario one
jurisdiction could prevent the establishment of a quiet zone, but the
alternative of one jurisdiction imposing its will on another in such
decisions is unacceptable. If a multi-jurisdictional quiet zone is
established, the various jurisdictions are free to make whatever
arrangements are administratively helpful to those entities. The
entities may, by agreement, delegate all decision-making and
administrative actions, such as notifications and official contact with
FRA, to one body. On the other hand, the entities may decide to act as
a group, with each entity being involved in each activity throughout
the application and implementation process. Thus, how, and to what
extent the entities organize, is left up to the individual
jurisdictions within the proposed quiet zone.
Paragraph (b) of this section provides that a public authority may
establish quiet zones irrespective of State laws covering the subject
matter of sounding or silencing locomotive horns at public highway-rail
grade crossings. It is unlikely that a State would attempt to restrict
a community's freedom to create a quiet zone after issuance of this
rule. However, were a State to impose such a restriction and be upheld
in doing so, the other provisions of this rule would be left intact.
This would mean that the mandate of Sec. 222.21 would go into
[[Page 70634]]
effect, but the community's authority to create an exemption to that
mandate would not. Nothing in this part, however, is meant to affect
any other applicable role of State agencies or the Federal Highway
Administration in decisions regarding funding or construction
priorities for grade crossing safety projects, selection of traffic
control devices, or engineering standards for roadways or traffic
control devices.
This section (along with Sec. 222.5 ``Preemption'') makes clear
that State laws covering the subject of locomotive horn use at public
highway-rail grade crossing are preempted by this rule and thus are of
no effect. State laws which establish minimum distances in advance of a
public crossing at which locomotive horns must be sounded are thus
preempted. Also preempted by this rule are State laws which establish
criteria for the prohibition of horn use at public crossings, as are
State laws which prohibit the creation of whistle ban crossings or
quiet zones. This paragraph also makes clear that the rule does not
affect the traditional role of State agencies, or the Federal Highway
Administration, in their role of funding and constructing grade
crossing safety projects, the selection of traffic control devices, or
engineering standards for roadways or traffic control devices.
Paragraph (c) of this section makes clear that State agencies may
provide administrative and technical services to public authorities by
advising them, acting on their behalf, or acting as a central contact
point in dealing with FRA, however, any public authority eligible to
establish a quiet zone under this part may do so.
Section 222.39 How Is a Quiet Zone Established?
This section addresses the manner in which a New Quiet Zone is
established. FRA chose to use a quiet zone as a basis for this rule.
While it would be possible to approve a locomotive horn ban on a
crossing-by-crossing basis, the desired result of less disruption to
the surrounding community by locomotive horn noise would be minimal.
Because a locomotive horn must be sounded in advance of a grade
crossing, the noise spill-over from a crossing not subject to a ban
could still disrupt the residents and businesses near a crossing where
horns are banned. As a result, the concept of a quiet zone was
developed, which is meant to fulfill the following purposes: ensure
that banning of locomotive horns would have the greatest impact in
terms of noise reduction; ease the added burden on locomotive crews of
the necessity of determining on a crossing-by-crossing basis whether or
not to sound the horn; and enable grade crossing safety initiatives to
be focused on specific areas within the quiet zone.
In the NPRM, FRA proposed two different methods of establishing
quiet zones, depending on local circumstances. In one method (set forth
in proposed Sec. 222.33(a)), every public grade crossing within the
proposed quiet zone would have an SSM applied to the crossing and the
governmental entity establishing the quiet zone would only need to
designate perimeters of the quiet zone, install the SSMs, and comply
with various notice and information requirements set forth in the rule.
The second proposed method (set forth in Sec. 222.33(b)) would provide
a governmental entity greater flexibility in using SSMs or ASMs to
address problem crossings. The second method would allow FRA to
consider a quiet zone that does not have a supplemental safety measure
at every crossing as long as implementation of the proposed SSMs and
ASMs in the quiet zone as a whole would cause a reduction in risk to
compensate for the lack of locomotive horn. Because the success of ASMs
in compensating for the lack of the locomotive horn is dependent on the
level of time and effort expended by the governmental entity, and
because estimates of effectiveness for ASMs will entail a degree of
judgment, FRA retained a review and approval function where the
governmental entity proposed less than using SSMs at every crossing.
Regardless of the method used, the proposed rule contemplated that
both State and local governments would have authority to establish
quiet zones. Some State commenters recommended that authority to
establish quiet zones should be limited to State agencies, and thus
recommended that FRA revise the language of Sec. 222.33 to remove all
references to local governments. The CPUC recommended that State
agencies retain the primary authority for review and approval of quiet
zones. The North Carolina Department of Transportation (NCDOT)
similarly expressed the view that it is essential that State
transportation agencies serve as clearinghouses for quiet zone
designations and applications to FRA since these agencies are the
administrators of the Section 130 Federal safety program. The NCDOT
further recommended that the criteria for establishment of quiet zones
should strongly encourage States to perform Traffic Separation Studies
in order to identify additional safety devices that may be required at
particular crossings. The NCDOT also recommended that FRA, along with
registered Professional Engineers, review the underlying diagnostic
process undertaken by the requesting agency when reviewing applications
to establish quiet zones.
The Oregon DOT expressed the belief that the establishment of quiet
zones should require more than just installing FRA pre-approved SSMs as
articulated in Sec. 222.33(a). The Oregon DOT suggested that some sort
of safety review should be required before quiet zones are designated.
The CPUC similarly agreed that States should review each crossing
proposed for inclusion in a quiet zone under proposed Sec. 222.33(a),
even if FRA requires no further review. The New Jersey DOT suggested
that any rule providing for quiet zones needs to address other non-
highway-rail crossings in areas near railroad stations, curves, or at
other points along rail lines where views may be obscured and the
locomotive horn would normally be sounded. While FRA does not require a
diagnostic team to review a proposed quiet zone (with the exception of
reviewing improvements to private crossings), we anticipate that in
most instances, such a team will be utilized. FRA is not requiring such
a review because, in the case of SSMs, such measures have already been
found to be effective in compensating for the lack of a horn. FRA
believes that a public authority will use the best talent available to
determine the appropriate manner of establishing a quiet zone.
Railroad industry commenters voiced strong disagreement with the
proposed rule in that it does not provide for railroad participation in
the process of establishing quiet zones. Specifically, the American
Short Line and Regional Railroad Association (ASLRRA) and the Florida
East Coast Railway Company (FEC) emphasized that including railroads in
the process of establishing quiet zones is a logical and practical
necessity. Both ASLRRA and FEC insisted that railroads must have the
right to review and respond to any request for a quiet zone that may
affect the railroads' operations. In support of its position, FEC cited
its previous experience with whistle bans established in Florida that
led to numerous lawsuits against the company. FRA notes that Florida's
whistle ban law, which led to imposition of FRA Emergency Order No. 15,
only required that crossings subject to the ban be equipped with gates
and flashing lights--it did not provide for the extensive set of
safeguards which are the subject of this rule. As discussed earlier,
collisions increased dramatically during the whistle ban period, which
naturally resulted in increased lawsuits.
[[Continued on page 70635]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 70635-70684]] Use of Locomotive Horns at Highway-Rail Grade Crossings
[[Continued from page 70634]]
[[Page 70635]]
This rule is crafted specifically to avoid such increased risk at
subject crossings. One local government commenter, however, expressed
concern over the potential inclusion of railroads in the process of
establishing quiet zones. This commenter emphasized the necessity of
communities being able to take unilateral action to implement quiet
zones.
FRA appreciates the role that railroads must play in establishing
quiet zones, from possible installation of four-quadrant gates to
providing information for the National Grade Crossing Inventory. We
also anticipate that, with or without use of diagnostic teams,
railroads will play an integral role with public authorities in
designing the most effective and most cost effective quiet zones.
Despite the clear need for railroad involvement, FRA does not intend
that railroads have a veto power over the establishment of quiet zones.
The decision to establish such zones resides with the public authority.
Once a public authority establishes a quiet zone under the terms of
this rule, the railroad is legally prohibited from routinely sounding
the locomotive horn at crossings within the quiet zone. As discussed
earlier, such prohibition preempts local ordinances and State laws
regarding sounding of locomotive horns at public crossings and private
crossings within quiet zones. We expect court decisions will reflect
that reality and will not hold the railroad liable based on a cause of
action of failure to sound a locomotive horn. Please see also Sec.
222.7 ``What is this regulations's effect on State and local laws and
ordinances?'' and Sec. 222.23 ``How does this regulation affect
sounding of a horn during any emergency or other situation?''
Other railroad industry commenters agreed with State commenters as
to the necessity of either limiting the authority to establish quiet
zones to State agencies, or at least mandating the inclusion of State
agencies in the process. The AAR voiced support for the position of
CPUC that only States should have the authority to establish quiet
zones. The BLE, on the other hand, felt that the language of Sec.
222.33 giving State and local governments the authority to establish
quiet zones was appropriate, but that the relevant State governmental
agency should always be included in the process in order to provide a
consistent and efficient approach. FRA continues to believe the best
approach, and the approach consistent with the statutory mandate,
requires that public authorities with safety authority over the roads
and highways within a quiet zone make the ultimate decision as to
establishment of quiet zones. FRA anticipates that public authorities
will work closely with State agencies with expertise in the area and
with State funding agencies, but, as in a public authority's
relationship with a railroad, the ultimate decision must be left to the
public authority.
In additional comments from railroad industry participants, the BRS
voiced general support for the two methods of establishing quiet zones
in proposed Sec. 222.33, but a representative of the Wisconsin Central
System expressed concern about FRA's ability to analyze and process
quiet zone petitions in a timely manner. In comments specifically
relevant to passenger operations, the National Railroad Passenger
Corporation (Amtrak) expressed concern about the exposure of train
passengers to the dangers of accidents at highway-rail grade crossings.
Amtrak suggested that communities seeking to establish quiet zones
should be required to provide for the re-routing of heavy commercial
motor vehicles away from crossings that appear to have dangerous
characteristics or that have a history of violations or accidents.
Amtrak also suggested that diagnostic teams reviewing crossings for
potential inclusion in quiet zones should focus on heavy truck traffic
because such vehicles pose the greatest risk of accidents. FRA
appreciates Amtrak's concerns, however, quiet zones will only be
established under this rule where there is compensation for the lack of
a locomotive horn. Specifically, the requirement that flashing lights
and gates be provided at each crossing in a New Quiet Zone, together
with other requirements of the rule, should limit any possibility that
this rule will adversely affect safety on Amtrak routes. (In fact, the
exposure provided to innovative safety measures during this rulemaking
and prior public outreach has already had a beneficial effect on
emerging corridors.) However, FRA does recognize the possibility that
passenger risk may be susceptible to special analysis as this rule is
revised in future years based on the results of research.
In this rule, FRA has retained the basic framework as proposed in
the NPRM, but has modified it in response to the many comments
pertaining to the perceived inflexibility of the proposal. The NPRM was
crafted in order to provide flexibility to the local communities. As
stated in the NPRM at page 2246, ``In this more flexible approach, risk
will be viewed in terms of the quiet zone as a whole, rather than at
each individual grade crossing. Thus, FRA would consider a quiet zone
under this approach that does not have a supplemental safety measure at
every crossing as long as implementation of the proposed SSMs and ASMs
on [sic] the quiet zone as a whole will cause a reduction in risk to
compensate for the lack of a locomotive horn. If the aggregate
reduction in predicted collision risk for the quiet zone as a whole is
sufficient to compensate fore the lack of a horn, a quiet zone may be
established.''
This interim final rule continues the concept of viewing risk on a
corridor-wide basis, however the rule includes measurements of risk
that reflect commenters' suggestions that FRA should give greater
weight to the safety history and circumstances locally. Thus, FRA will
permit quiet zones where risk has been addressed in one of three ways:
one is the reduction of risk by compensating for the lack of the
locomotive horn by implementation of SSMs at every crossing within a
quiet zone; second, by reducing the risk level within the quiet zone to
a level at least equal to the average risk level nationwide at
crossings equipped with flashing lights and gates and at which horns
are sounded; or third, by implementation of safety measures that will
cause the risk level within the quiet zone to fall to or below the risk
level which would exist if locomotive horns sounded at all crossings
within the quiet zone.
Paragraph (a)--Public Authority Designation
Paragraph (a) of this section addresses the situations in which the
public authority may designate a quiet zone without the need for formal
application to, or approval by, FRA. Paragraph (a)(1), which is similar
to proposed Sec. 222.33(a), provides that a quiet zone may be
established by implementing at every public highway-rail grade crossing
within the quiet zone one or more SSMs identified in Appendix A.
Because each of those SSMs have been determined to have an
effectiveness rate which is at least equivalent to that of a locomotive
horn, and there is an SSM at every public crossing, FRA can be assured
that there is compensation for the lack of a locomotive horn in the
quiet zone. FRA's role in this situation is thus minimal. The public
authority would only need to designate the extent of the quiet zone and
comply with the information and notice requirements of Sec. 222.43.
Paragraph (a)(2) permits quiet zones if the risk level is, or can
be made to be, no higher than a national standard of risk where train
horns are used. The section compares the risk level at
[[Page 70636]]
crossings within the quite zone to the average risk level on a
nationwide basis at crossings equipped with flashing lights and gates,
and at which locomotive horns are sounded. Thus, if the Quiet Zone Risk
Index is at, or below, the Nationwide Significant Risk Threshold, the
risk at crossings within the quiet zone would be at least equal to the
risk level at the average crossing where horns are sounded. Paragraph
(a)(2)(i) provides that a quiet zone may be established if the Quiet
Zone Risk Index is already at, or below, the Nationwide Significant
Risk Threshold. If so, there is no need to implement SSMs.
Paragraph (a)(2)(ii) provides that a quiet zone can be established
if SSMs are implemented which are sufficient to reduce the Quiet Zone
Risk Index to a level at, or below, the Nationwide Significant Risk
Threshold. Under this provision, there is no requirement to implement
SSMs at every public crossing within the quiet zone. The public
authority has discretion both as to which crossing or crossings will be
equipped with an SSM and which type of SSM to use. FRA will provide the
basic calculations to the public authority. Such information will be
available on FRA's Web site at http://www.fra.dot.gov. Additionally,
software and technical assistance will be available from FRA's Regional
Grade Crossing Managers. The general idea behind paragraph (a)(2) and
the Nationwide Significant Risk Threshold is that communities desiring
quiet zones should not be required to achieve a higher degree of safety
than the average level of risk at public crossings with lights and
gates where the horn is sounded. This can relieve some communities of
the need to make expensive improvements to eliminate risk below the
significant level.
Paragraph (a)(3) provides an additional manner of establishing
quiet zones by designation. A public authority may implement SSMs which
reduce the Quiet Zone Risk Index to a level at or below the risk level
which would exist if locomotives horns sounded at all public crossings
within the quiet zone. This permits quiet zones to exist even if the
level of risk will be above the national average for train horn
crossings as long as measures are taken to ensure risk in the quiet
zone does not increase when the horn is silenced. The quiet zone is
viewed in the aggregate to determine if there has been compensation for
the lack of the locomotive horn.
It is important to note that under any of the alternatives within
this section any additional safety measures must be SSMs as listed in
Appendix A. Because of this, FRA does not need to review the proposal.
The safety measures have already been reviewed individually by FRA in
determining their effectiveness rates and the risk levels have been
also been determined in accord with the Appendix D, ``Determining Risk
Levels.''.
Paragraph (b)--Public Authority Application to FRA
Paragraph (b) addresses the circumstances in which a quiet zone may
be established after application to, and approval by, FRA. This
paragraph is intended to provide greater flexibility to the public
authority to use ASMs, ASMs and SSMs at different crossings, and
variations of SSMs, such as a median shorter than is required when it
is used as an SSM. (An ``SSM'' which does not fully comply with the
requirements of Appendix A is considered to be an ASM.) This paragraph
is based on proposed Sec. 222.33(b). As in the proposal, not every
public crossing within a quiet zone necessarily needs to be treated
with an SSM or ASM. However, sufficient data must be submitted to the
Associate Administrator to demonstrate that implementation of the
measures will cause a reduction in the Quiet Zone Risk Index to, or
below either the risk level which would exist if locomotive horns
sounded at all crossings in the quiet zone or to a risk level at, or
below the Nationwide Significant Risk Threshold.
Paragraph (b)(1) provides that a public authority may apply to the
Associate Administrator for approval of a quiet zone that does not meet
the standards for public authority designation under paragraph (a). The
application must contain a proposal to implement one or more SSMs or
ASMs and must contain sufficient detail concerning the present and
proposed safety measures at the public and private crossings within the
proposed quiet zone. The paragraph also requires that the membership
and recommendations of a diagnostic team, if used, must be included in
the application. FRA is requiring that a diagnostic team be used only
when private grade crossings are to be included in a quiet zone,
although their use elsewhere is highly recommended. The public
authority must also commit to implement the proposed safety measures
and demonstrate through data and analysis that implementation of these
measures will reduce the Quite Zone Risk Index to, or below the risk
level which would exist if locomotive horns sounded at all crossings in
the quiet zone or to a risk level at, or below the Nationwide
Significant Risk Threshold.
Paragraph (b)(2) addresses approval by the Associate Administrator.
If, in the Associate Administrator's judgment, the public authority is
in compliance with paragraph (b)(1) and has satisfactorily demonstrated
that the SSMs and ASMs proposed by the public authority result in a
Quiet Zone Risk Index which is at or below the risk level which would
exist if locomotive horns sounded at all crossings in the quiet zone,
or is at, or below, the Nationwide Significant Risk Threshold, the
quiet zone will be approved. Because of the greater flexibility and the
greater variation in possible risk reduction, FRA's role is much
greater than when a public authority designates a quiet zone; thus, the
Associate Administrator may include in any decision of approval such
conditions as may be necessary to ensure that the proposed safety
improvements are effective. The Associate Administrator may also not
approve the quiet zone, in which case the reasoning behind the
rejection will be provided to the public authority. Sec. 222.57. A
decision disapproving a request for approval may be challenged by
filing a petition for reconsideration with the Associate Administrator.
The petitioner will have the opportunity for an informal hearing.
Proposed Sec. 222.33(c) and Proposed Appendix C--Quiet Zones in Which
SSMs or ASMs Are Not Necessary
Proposed Sec. 222.33(c) addressed the limited circumstances in
which a quiet zone could be established without the need for SSMs or
ASMs. The limited conditions under which such a quiet zone could be
established were proposed in Appendix C of the NPRM. FRA proposed five
criteria that must be met for a quiet zone to be established under
Sec. 222.339(c): (1) Train speed does not exceed 15 miles per hour;
(2) trains travel between traffic lanes of a public street or on an
essentially parallel course within 30 feet of the street; (3) signs are
posted at every grade crossing indicating that locomotive horns do not
sound; (4) unless the railroad is actually situated on the surface of
the public street, traffic on all crossing streets is controlled by
STOP signs or traffic lights which are interconnected with automatic
crossing warning devices; and (5) the locomotive bell is rung when
approaching and traveling through the crossing.
The Oregon Department of Transportation expressed strong
disagreement with FRA's inclusion in proposed Appendix C of slow moving
trains running within a street right-of-
[[Page 70637]]
way. The Oregon DOT claimed that although crossings where slow moving
trains run within a street right-of-way could qualify for a quiet zone,
such situations should not be globally exempt from the requirement to
sound the locomotive horn. The Town of Andover, Massachusetts,
recommended that the Appendix C criteria be expanded to take into
account the volume of traffic at a crossing and historical accident
data and safety measures in place at the crossing. Recognizing that
Appendix C as written would require that all five of the listed
conditions be present in order to establish a quiet zone, another local
government commenter, Jefferson Parish, Louisiana, suggested a more
flexible approach to identifying situations which should qualify as
quiet zones without any additional safety measures. Specifically,
Jefferson Parish explained that many residential areas are located
directly adjacent to railroad rights-of-way, with no intervening public
streets. Thus, even if crossings in these areas meet all of the
conditions listed in Appendix C except for close proximity to a public
street, these areas would never be able to qualify as quiet zones.
Jefferson Parish therefore suggested that either some flexibility be
allowed on the criterion pertaining to the distance of the track from a
parallel street, or to require that areas meet some percentage of the
criteria (e.g., four out of five) listed in Appendix C in order to be
designated a quiet zone with no additional safety measures necessary.
The Northern Indiana Commuter Transportation District recommends a
new categorical exclusion for an intersection of two streets, one of
which has railroad tracks, a highway speed limit of 25 miles per hour
and railroad speed limit of 15 with passive warnings. In support of
this exclusion, the Transportation District cited 17 ``non-serious''
accidents at its crossings during a recent eight year period. Given the
limited information regarding this type of operation, it would not be
appropriate to provide a categorical exclusion.
One commenter testifying at the Salem, Massachusetts, public
hearing, expressed the view that the Appendix should be eliminated in
its entirety. This commenter, a locomotive engineer, explained that
while some situations may exist which require no safety measures to
offset the lack of use of the locomotive horn, such situations are rare
and should be dealt with on an individual case-by-case basis after
local public hearings. This commenter also expressed concern regarding
the inclusion of crossings where the railroad and a highway run
parallel to each other with only a small distance separating the two.
This commenter explained that even if a train is operating at slow
speed, it is very difficult for a motorist driving parallel and close
to the track to see a train coming up from behind when the motorist is
at an intersection and about to turn and cross the track.
Several commenters, unable to determine whether specific crossings
in their communities would meet the requirements of Appendix C,
requested clarification of the listed criteria. Specifically, some
commenters were unclear as to whether all five of the conditions must
be present together or if the requirements must only be met
individually. In addition, one local government commenter specifically
requested clarification of the requirement that trains be traveling
between or parallel to traffic lanes of a public street, and what was
meant by the phrase ``railroad is actually situated on the surface of a
public street.''
One commenter, representing the City of Saint Paul, Minnesota,
expressed support for the inclusion of train speed as a factor in
Appendix C. The City of Saint Paul expressed the opinion that as
compared to fast moving trains, slow moving trains greatly reduce the
safety risk involved with train-auto collisions. However, this
commenter also noted that because slow moving trains take a longer time
to travel through the same amount of track as fast moving trains, slow
moving trains lead to greater noise disturbances if required to sound
their horns at every crossing.
Other commenters indicated that the NPRM's Appendix C required
revision or that the Appendix should be eliminated altogether. One
commenter speaking at the Salem, Massachusetts, public hearing
suggested that the criteria listed in Appendix C do not address safety.
Instead, this commenter suggested that the listed criteria address a
certain pattern of railroad and roadway coexistence, which pattern is
not exclusive of other safe conditions. This commenter suggested that
in lieu of the proposed Appendix C, FRA should adopt performance based
criteria which do not exempt single crossings, but instead exempt
collections of crossings within an area that already have a
demonstrated safety record. FRA notes that essentially performance
based criteria have in fact been adopted in response to public
comments.
The proposed language addressed a very specific, limited, situation
which, in FRA's judgment, was of inherently low risk. It was FRA's
judgment that such low risk crossings need not be required to have SSMs
or ASMs in order to silence the horn. Providing this exception to the
proposed rule was appropriate given the structure of the NPRM. However,
because the actions required of public authorities in creating quiet
zones under this interim final rule are based to a much greater extent
on risk at those crossings, there is no longer a need to retain this
proposed provision. Communities which would have likely qualified under
the proposed section will likely qualify for a quiet zone pursuant to
Sec. 222.39(a) (public authority designation) by being below the NSRT
and thus will not need to apply SSMs or ASMs to retain a quiet zone. If
a quiet zone meeting the conditions of the proposed section does not
qualify under Sec. 222.39(a), it is likely that certain conditions are
present which add to the risk level. In such unlikely circumstance, an
SSM or ASM might be appropriate, or the public authority may wish to
apply for a waiver.
Based on the above, and the comments calling into question its
provisions, FRA is deleting proposed Appendix C and is not carrying
forward to this interim final rule language of proposed Sec.
222.33(c).
Section 222.41 How Does This Rule Affect Pre-Rule Quiet Zones?
This section addresses the effect of this rule on Pre-Rule Quiet
Zones. A Pre-Rule Quiet Zone is a segment of a rail line within which
is situated one, or a number of consecutive public highway-rail grade
crossings at which State statutes or local ordinances restricted the
routine sounding of locomotive horns, or at which locomotive horns did
not sound due to formal or informal agreements between the community
and the railroad or railroads, and such statutes, ordinances or
agreements were in place and enforced or observed as of October 9, 1996
and on the date this rule was published.
In the NPRM, FRA proposed to provide communities with pre-existing
whistle bans with a three-year grace period for compliance with the
final rule. To take advantage of this three-year grace period, the NPRM
would require that these communities initiate or increase highway-rail
grade crossing safety public awareness initiatives and grade crossing
traffic law enforcement programs within two years after the date of
issuance of the final rule if no quiet zone was yet designated or
accepted for its jurisdiction in accordance with the rule.
FRA received numerous comments regarding its proposal from State
and local governments, as well as representatives of the railroad
industry.
[[Page 70638]]
Most local governments commented that the three-year grace period was
insufficient, citing lack of adequate funding and the costs involved
with installing the approved SSMs. Most local governments felt that it
would take 5-10 years to arrange funding and actually install the
approved SSMs. One Illinois municipality suggested that even with
adequate funding, bringing the State's quiet zones into compliance with
the rule could take up to 15 years.
On the other hand, the Washington Department of Transportation
suggested that a three-year grace period is too long and indicated that
communities with existing quiet zones should be able to comply with the
rule within one year of the issuance of the final rule. Several
railroad industry commenters also suggested that the three-year grace
period for communities with pre-existing whistle bans is excessive. The
United Transportation Union suggested a six-month grace period, while
the BRS recommended two years as an appropriate period.
Most State commenters emphasized the importance of grandfathering
existing quiet zones where substantial investment has already been made
by State transportation agencies, railroads, and affected communities.
The Illinois Commerce Commission suggested that all crossings in
communities with pre-existing whistle bans be grandfathered under the
rule until the responsible State oversight agency establishes a
recognized quiet zone for the area. Likewise, the Oregon DOT noted that
requiring a community with a pre-existing whistle ban to initiate or
increase both highway-rail grade crossing safety public awareness
initiatives and crossing traffic law enforcement programs, if no quiet
zone is designated or accepted under the final rule within two years,
imposes a new financial burden on the community. In particular, the
Oregon DOT questioned the efficacy of this requirement in situations
where a community has had a whistle ban in place for several years with
no reported accident history that would be impacted by the additional
initiatives or enforcement.
In its comments, the BLE recognized the past efforts and
investments of communities regarding the issue of locomotive horn
noise. However, citing concerns that crossings in localities with pre-
existing quiet zones which are grandfathered from the requirements of
the final rule could continue to exist without appropriate safety
measures, the BLE requested that the final rule explicitly state that
the provisions for termination of quiet zones set forth in Sec.
222.39(d) apply to crossings with pre-existing quiet zones.
The AAR was the only commenter to specifically oppose the blanket
grandfathering of pre-existing quiet zones for any period of time.
Specifically, the AAR recommended that FRA examine the crossings within
these pre-existing quiet zones to ensure that additional safety
measures are not needed. The AAR suggested a number of specific
prerequisites to the granting of quiet-zone status to communities where
locomotive horns have not historically been sounded. First, the AAR
suggested that all public crossings within pre-existing quiet-zones be
equipped with gates and lights, and signs warning of the existence of
the quiet zone should be placed at the approach to each crossing.
Second, the AAR recommended that notices of quiet zone implementation
or termination be published in the Federal Register. Third, reasoning
that the ability of a local community to institute a quiet zone has
historically been dependent on approval of the State, the AAR
recommended that only States be permitted to apply for quiet zone
status. Next, the AAR recommended that States have the burden of
demonstrating the safety of grade crossings, and diagnostic teams
should be used to analyze crossing issues before any quiet zone is
instituted. Finally, the AAR recommended that only crossings where
locomotive horns have not sounded for the previous five years should be
eligible for grandfathered status.
In comments specifically relevant to railroad operations and
highway-rail grade crossings within the State of Florida, the Florida
East Coast Railway Company (``FEC'') noted that the NPRM does not
address the pre-existing restrictions on the sounding of locomotive
horns that were preempted by Emergency Order No. 15 in 1991 which
required FEC to sound warning devices at grade crossings and required
that FEC revoke operating rules and bulletins to the contrary. In its
comments, FEC explained that it considers all local ordinances
preempted by Emergency Order No. 15 null and void and understands that
for purposes of the final rule, the subject crossings will not be
viewed as being within pre-existing quiet zones. FEC, however,
requested that FRA specifically address the status of the affected
crossings in the final rule so as to avoid any confusion among affected
jurisdictions. The status of such affected crossings is in fact
addressed in this rule. Florida crossings subject to Emergency Order
No. 15 do not fall within the definition of Pre-Rule Quite Zones
inasmuch as Florida State statutes and local ordinances permitting
whistle bans were not enforced or observed as of October 9, 1996,
having been preempted by the Emergency Order in 1991. Therefore, any
quiet zones to be established in Florida would need to qualify as New
Quiet Zones under this rule.
FRA recognizes the strong feelings associated with the issues
raised by this provision. As noted, some commenters recommended a
longer grandfathering period while others recommended substantially
shorter periods. FRA, after considering the comments, and reviewing the
statutory mandate that FRA take into account the interest of
communities that have in effect restrictions on the sounding of a
locomotive horn at highway-rail grade crossings, has determined that
extension of the grandfathering period is appropriate. FRA has also
considered that budgetary cycles and funding planning may require more
time than was proposed in the NPRM. As discussed further below, the
grandfathering period will extend from three to eight years from the
publication date of this rule in the Federal Register. The determining
factor as to how long within that period a community has will depend on
the actions taken by that community and the appropriate State agency.
FRA agrees with Oregon DOT and has crafted the rule in such a manner
that the public authority does not need to expend construction or
program funds (other than for planning and application purposes) until
it has determined, and has had approved when necessary, the actions to
be taken. FRA has also provided for State involvement to the extent
that if a public authority wishes to take advantage of the entire
eight-year grandfathered period, the plans of the public authority must
be part of a State-wide implementation plan. Thus, the appropriate
State agency will be involved in working with public authorities in
resolving planning and funding issues.
Paragraph (a) of Sec. 222.41 addresses Pre-Rule Quiet Zones which
qualify for automatic approval. A Pre-Rule Quiet Zone will be
considered to be automatically approved if (in addition to compliance
with Sec. Sec. 222.35 and 222.43) the quiet zone is in compliance with
one of a number of conditions. The quiet zone may remain in effect if
there are SSMs at every public highway-rail grade crossing within the
quiet zone (paragraph (a)(1)). Similarly, the quiet zone may continue
automatically if the Quiet Zone Risk Index as last published by FRA is
at, or below, the Nationwide
[[Page 70639]]
Significant Risk Threshold (paragraph (a)(2)). FRA has added this
provision in recognition of the many comments that emphasized the need
for FRA to look at the safety record at individual crossings and quiet
zones rather than impose a standard that required SSMs regardless of an
extremely good safety record. Comparing the Quiet Zone Risk Index to
the Nationwide Significant Risk Threshold does in fact address safety
history at crossings within the quiet zone because the accident history
is one component of the Quiet Zone Risk Index. That is why this
provision applies to both New Quiet Zones and Pre-Rule Quiet Zones.
While the preceding conditions permitting continuation of a quiet
zone essentially track the provisions for automatic approval for New
Quiet Zones, paragraph (a)(3) is unique to Pre-Rule Quiet Zones. A
quiet zone may be continued automatically if the Quiet Zone Risk Index
as last published by FRA is above the Nationwide Significant Risk
Threshold but is less than twice the Nationwide Significant Risk
Threshold and there have been no relevant collisions at any public
grade crossing within the quiet zone for the five years preceding the
date of publication of this rule.
This provision goes a step further in recognizing situations where
train horn bans have been in place for a considerable period with no
untoward effects. We accommodate such impressive facts by giving the
accident history greater weight than that the overall risk index. In
determining the risk level resulting from silencing horns in New Quiet
Zones, FRA can only project the safety implications from silencing the
horn--by definition there is no empirical evidence at those crossings
of the safety implications of silencing the horn. On the other hand,
Pre-Rule Quiet Zones present direct empirical evidence of the safety
effect of silencing the horn at those crossings within the quiet zone.
Thus, FRA includes paragraph (a)(3) in recognition that, although
statistically the quiet zone may present a higher safety risk (Quiet
Zone Risk Index is greater than the Nationwide Significant Risk
Threshold) due to risk factors such as traffic volume, experience shows
that, for whatever reason, the lack of a locomotive horn at those
crossings has not resulted in appreciably unsafe conditions. (Of
course, the occurrence of an accident will eliminate this special
exception.) Paragraph (b) addresses those Pre-Rule Quiet Zones which do
not qualify for automatic approval under paragraph (a). Paragraph
(b)(1) provides that a public authority may decide to continue Pre-Rule
Quiet Zones on an interim basis under the provisions of this paragraph.
It is important, however, to note that this paragraph only provides
interim authority to continue a quiet zone. Continuation of a quiet
zone beyond the periods specified in this paragraph will require
implementation of SSMs or ASMs as though the quiet zone is a New Quiet
Zone (in accord with Sec. 222.39 (``How is a quiet zone
established?'')).
Paragraph (b)(2) provides that a public authority may continue a
quiet zone for five years from the date of publication of this rule.
This period will ensure that the public authority has adequate time for
planning and implementation of SSMs or ASMs. The five-year extension
period is dependent on the public authority filing with the Associate
Administrator a detailed plan for establishing a quiet zone under this
part. If the quiet zone will require approval under Sec. 222.39(b),
the plan must include all the required elements of filings under that
paragraph together with a timetable for implementation of safety
improvements. The plan must be filed within three years of the date of
publication of this rule. FRA understands that, in some cases, plans
filed within this period will be contingent on funding arrangements
that may not be complete as of that date (particularly where State-
level participation has been requested). FRA is seeking a good faith
filing, which normally would be tendered by the executive head of the
relevant public authority or authorities involved.
Thus, the practical implication of this timetable is that a Pre-
Rule Quiet Zone may continue for three years from the date of
publication of this rule without any action taken by the public
authority. However, at the expiration of that three-year period
locomotive horns will resume sounding at all public crossings within
the former quiet zone unless the public authority has filed a plan for
completing the necessary improvements. Thereafter, if the public
authority wishes to establish a quiet zone, it will need to comply with
the requirements for New Quiet Zones contained in this rule.
Paragraph (b)(3) provides that if certain conditions are met,
locomotive horn restrictions may continue for three years beyond the
five-year period permitted in paragraph (b)(2). Before the expiration
of three years after publication, the appropriate State agency must
provide to the Associate Administrator a comprehensive State-wide
implementation plan and funding commitment for implementing
improvements at Pre-Rule Quiet Zones which do not qualify for automatic
approval. The improvements must, when implemented, enable the Pre-Rule
Quiet Zones to qualify for a quiet zone under this rule. Before the
expiration of four years after publication, physical improvements must
be initiated at least one of the crossings within the quiet zone, or
the State agency must have participated in quiet zone improvements in
one or more jurisdictions elsewhere in the State.
In summation, paragraph (b)(2) permits a quiet zone to be extended
for three years without any action taken by the public authority. If,
however, the public authority files a detailed plan for implementation
of SSMs or ASMs within that three-year period, the quiet zone will be
extended to five years to permit implementation of those plans.
Paragraph (b)(3) permits a quiet zone to be extended for an additional
three years (for a total of eight years) if the State files a
comprehensive State-wide implementation plan and funding commitment
within three years of publication of this rule, and if, within four
years of publication, improvements are made to a crossing within the
quiet zone, or to another crossing in another quiet zone elsewhere in
the State.
Paragraph (4) merely recommends that if the improvements planned by
the public authority require FRA approval under Sec. 222.39(b),
application for approval should be filed no later than thirty months
after publication of this rule. This will provide sufficient time for
FRA to review the proposal prior to the end of the three-year extension
period.
Section 222.43 What Notices and Other Information Are Required To
Establish a New Quiet Zone or To Continue a Pre-Rule Quiet Zone?
This section governs the type and timing of notification and
information that must be provided to various parties. The intent of
this section is to ensure that interested parties are made aware in a
timely manner of the establishment or continuation of quiet zones and,
if necessary, of their termination. This section also details the
information that must be provided to FRA. FRA received a small number
of comments regarding the notice and information requirements of the
proposed rule. Although most commenters acknowledged the necessity of
notification procedures ensuring that all interested parties are aware
of the existence of quiet zones, a few commenters suggested that the
specific notice and information requirements of the proposed rule would
be administratively burdensome and impractical. First, the BLE
[[Page 70640]]
expressed the opinion that a 14-day period between designation or FRA
approval of a quiet zone and actual implementation is insufficient. The
BLE recommended that this provision be modified to provide that a
railroad has an affirmative duty to notify each employee of the
establishment of a quiet zone via the railroad's usual means of
communication with its employees. FRA agrees with the BLE that 14 days
may not be sufficient and has therefore lengthened the 14 day period to
21 days. However, despite the BLE's request for a regulatory
requirement that railroads notify their employees of the establishment
of a quiet zone, FRA is confident that railroads will indeed so notify
their employees without the necessity of such a requirement, if for no
other reason, than the railroad would be in violation of this
regulation if horns were to routinely sound within quiet zone limits.
Other commenters explained that because FRA accepts updates to the
AAR Inventory only from States and railroads, the requirement for
designating entities to submit the Inventory Forms is impractical. The
Oregon Department of Transportation (``DOT'') explained that the State
does not have the staff or resources to update the Inventory as the
proposed rule would require. The Oregon DOT also questioned whether
railroads would be willing to expend their resources to update the
Inventory as proposed. The City of Fargo, North Dakota, and the City of
Moorhead, Minnesota, echoed the Oregon DOT's concern in this regard and
suggested three alternatives: (1) That communities be allowed to update
the Inventory for crossings within quiet zones, (2) that railroads be
required to update the Inventory when installing the safety measures
necessary to implement the quiet zone, or (3) that FRA incorporate the
information contained in the quiet zone notification into the
Inventory. FRA is aware of the problem associated with updating the
Inventory. However, an up-to-date Inventory is critical to the success
of any quiet zone program. FRA needs accurate up-to-date data upon
which to base its calculations of risk. FRA agrees in part with the
Cities of Fargo and Moorhead that communities should be allowed to
update the inventory and has addressed the issue in Sec. 222.49, ``Who
may file Grade Crossing Inventory Forms?''
Paragraph (a)(1) of this section provides that information
pertaining to the establishment or continuation of quiet zones must be
provided to: all railroads operating over the public highway-rail grade
crossings within the quiet zone; the highway or traffic control
authority or law enforcement authority having control over vehicular
traffic at crossings within the quiet zone; the landowner having
control over any private crossings within the quiet zone; the State
agency or agencies responsible for highway and railroad safety; and the
Associate Administrator. While it is likely that most of these parties
will be aware of the establishment of a quiet zone, this provision
ensures complete and timely notification. In order to ensure that all
parties have notice and sufficient time to prepare for the change at
the crossings, all notices required under this section must be provided
by certified mail, return receipt requested.
Paragraph (a)(2) requires that the notice shall specify the grade
crossings within the quiet zone, identified by both the U.S. DOT
National Highway-Rail Grade Crossing Inventory Number and street or
highway and the specific date upon which routine locomotive horn use at
grade crossings shall cease. With the exception of Pre-Rule Quiet Zones
continuing under Sec. 222.41, the cessation date shall not be earlier
than 21 days after mailing of the notification. Paragraph (a)(3)
details the requirement to reference the regulatory provision under
which the quiet zone is being established or continued. In those
instances in which the public authority is relying on risk calculations
provided by FRA, this paragraph requires that a copy of the FRA web
page containing the quiet zone data be included in the notice. In this
way, all parties will understand the basis for establishment or
continuation of the quiet zone.
Paragraph (b) addresses the requirement that Grade Crossing
Inventory Forms be filed with the Associate Administrator for each
public and private highway-rail grade crossing within the quiet zone.
This paragraph requires two Grade Crossing Inventory Forms for each
crossing. One must be dated within six months prior to designation or
FRA approval of the quiet zone. This filing will permit FRA to
calculate risk based on current grade crossing information, and thus
the public authority will be able to make planning decisions based on
accurate data. The second Grade Crossing Inventory Form must reflect
the SSMs and ASMs in place upon establishment of the quiet zone. This
paragraph also requires that the Associate Administrator be furnished
the name, title, and contact information of the public official
responsible for monitoring compliance with the requirements of the
regulation.
Paragraph (b)(5) requires each chief executive officer of each
public authority establishing or continuing a quiet zone under this
part, to certify that responsible officials of the public authority
have reviewed documentation prepared by or for FRA sufficient to make
an informed decision regarding the advisability of establishing the
quiet zone. This paragraph provides reference to the docket of this
proceeding and to FRA's web page for documents which may be of interest
to the chief executive or to the reviewing responsible officials. This
provision is included in recognition of the differing views as to the
efficacy of banning the routine use of locomotive horns at grade
crossings and of the fact that establishment of quiet zones is not
required by this rule, but is purely voluntary on the part of public
authorities.
Section 222.45 When Is a Railroad Required To Cease Routine Use of
Locomotive Horns at Crossings?
This section addresses the requirement imposed on a railroad to
cease routine use of the locomotive horn upon receipt of notice of
establishment of a quiet zone. After a railroad receives notification
from a public authority that a quiet zone is being established, the
railroad, upon the date specified by the public authority, shall cease
routine use of the locomotive horn at all public and private highway-
rail grade crossings identified by the public authority. After receipt
of such a notice, a railroad is prohibited from routine use of the
locomotive horn at the crossing after the date specified in the notice.
While the most extensive use of the horn in railroad operations is to
provide routine warning at highway-rail crossings, it has many other
purposes as an audible signal. As stated in Sec. 222.23(b), this
prohibition does not prevent a railroad from use of the horn for other
purposes, e.g., to warn railroad employees working near the track of an
approaching train, or to warn motorists of the approaching train in the
event of a grade crossing safety system malfunction. This is not an
all-inclusive list of the uses that this rule does not affect (e.g.,
use of horn to signal during switching operations; use of horn to alert
pedestrians entering stations or to communicate within crews while
leaving stations, etc.) Nor does this section prohibit emergency use of
the horn, which is expressly permitted by Sec. 222.23, and which is,
by definition, not routine.
The form of the notice which triggers the cessation of routine horn
use is specified in Sec. 222.43. Section 222.43 also requires that the
notice be mailed,
[[Page 70641]]
by certified mail, to every railroad operating over the grade crossing
subject to the New Quiet Zone.
Section 222.47 What Periodic Updates Are Required?
This section details the periodic updates required of public
authorities after a quiet zone is established. The NPRM, at proposed
Sec. 222.39(a), (b), and (c), contained provisions generally similar
to those in this section. However, rather than divide the section based
on SSMs and ASMs as was done in the NPRM, this section distinguishes
among quiet zones with SSMs at each public crossing (Sec.
222.39(a)(1)), and those quiet zones which do not have SSMs at each
public crossing (Sec. Sec. 222.39(a)(2) and 222.39(b)).
There were few comments on proposed periodic updates. The City of
Fargo, North Dakota commented that the periodic written affirmation
requirements of Sec. 222.39 are excessive. Fargo suggested that FRA's
reservation in Sec. 222.39(d) of the right to review at any time the
status of any quiet zone is sufficient to assure that the SSM and ASM
in place at crossings within the quiet zone fully compensate for the
absence of the warning provided by the locomotive horn under the
conditions then present at the crossings within the quiet zone.
Likewise, to limit the reporting burden of the requirement for periodic
quiet zone affirmations in the proposed rule, the City of Chicago,
Illinois, recommended that State agencies responsible for railroad
safety should be designated to monitor quiet zone grade crossing
accidents under their existing procedures. FRA does not agree that an
update every three or five years is burdensome. FRA needs to be
informed of the current status of the quiet zone and when viewed in
light of the safety interest and minimal inconvenience to the public
authority, periodic updates on the schedule proposed is being retained.
Paragraph (a) of this section governs periodic information updates
for quiet zones with SSMs at each public crossing (those quiet zones
established pursuant to Sec. Sec. 222.39(a)(1) and 222.41(a)(1)). This
section requires the public authority to provide to FRA updated
information every five years, with a six month window during which the
information must be filed. Thus, the rule states that the required
information must be filed between 4\1/2\ and 5 years after the initial
implementation notice required by Sec. 222.43 and every 4\1/2\ to 5
years thereafter. This section requires the public authority to affirm
in writing to the Associate Administrator that the SSMs implemented
within the quiet zone continue to conform to the requirements of
Appendix A of this part. This requirement merely ensures that the
original basis for establishment of the quiet zone continues to exist.
Copies of the affirmation must be sent to the same parties which
received the original notice of establishment of quiet zone (Sec.
222.43(a)): all railroads operating over the public highway-rail grade
crossings within the quiet zone; the highway or traffic control
authority or law enforcement authority having control over vehicular
traffic at the crossings within the quiet zone; the landowner having
control over any private crossings within the quiet zone; the State
agency responsible for highway and road safety; and FRA. The
affirmation and copies must be provided to the required parties by
certified mail, return receipt requested. In addition, the public
authority must file with the Associate Administrator an up-to-date,
accurate, and complete Grade Crossing Inventory Form for each public
and private highway-rail grade crossing within the quiet zone.
Paragraph (b) of this section governs periodic information updates
for quiet zones which do not have an SSM at each public crossing (those
quiet zones established pursuant to Sec. Sec. 222.39(a)(2) and (a)(3),
Sec. 222.39(b) and Sec. Sec. 222.41(a)(2) and (a)(3)). FRA is
providing for a shorter period between affirmations because of the
greater possibility that changed circumstances will affect either the
level of risk within zones where no SSMs or ASMs were necessary due to
low risk or the effectiveness of the safety measures put in place in
the quiet zone. Because the safety measures instituted at crossings
subject to the three-year affirmation cycle are dependent on local
circumstances and local effort, review on a more frequent basis is
appropriate. Thus, the period between updates for these quiet zones is
three years, rather than the five years for quiet zones provided in
paragraph (a). The required information must be filed with the
Associate Administrator between 2\1/2\ and 3 years after the initial
implementation notice required by Sec. 222.43 and every 2\1/2\ to 3
years thereafter. This section requires the public authority to affirm
in writing to the Associate Administrator that all SSMs and ASMs
implemented within the quiet zone continue to conform to the
requirements of Appendices A and B of this part, and the terms, if any,
of FRA's quiet zone approval. The method of notice and the parties to
which the copies of the affirmation must be sent mirror the
requirements in paragraph (a) above. As in paragraph (a), an up-to-
date, accurate, and complete Grade Crossing Inventory Form for each
public and private highway-rail grade crossing within the quiet zone is
required.
Section 222.49 Who May File Grade Crossing Inventory Forms?
This section addresses filing of Grade Crossing Inventory Forms.
The U.S. DOT National Highway-Rail Grade Crossing Inventory provides
the basic database by which FRA compiles information pertaining to
characteristics of both public and private highway-rail grade
crossings. The data collected includes information on the railroad
operating over the crossing, such as: the name of the railroad; maximum
authorized speed of trains which cross the roadway; type of warning
system at the crossing; train traffic at the crossing; type of railroad
signal system, if any, at the crossing; and the number of tracks
crossing the roadway. Similarly, the inventory contains information
about the roadway and motor vehicle traffic at the crossing, such as:
the type of road surface; number of lanes; and speed limit.
It is essential that the inventory be up-to-date, accurate and
complete in order that FRA's safety analyses are based on the best
data. While filing of Inventory Forms has been voluntary, this Interim
Final Rule requires the filing of such forms for each grade crossing
within a quiet zone.
Paragraph (a) of this section provides that if the State or
railroad do not file Grade Crossing Inventory Forms with the Associate
Administrator, in accordance with Sec. Sec. 222.43 and 222.47, the
public authority may do so. Those sections require that forms be filed
when a quiet zone is established (Sec. 222.43) and when periodic
updates are filed with the Associate Administrator (Sec. 222.47).
Providing the public authority with the authority to file Grade
Crossing Inventory Forms prevents the public authority from being
powerless if either the State or railroad fails to provide such needed
information due, for instance, to the workload issues identified by
commenters.
Paragraph (b) requires that, upon the request of the public
authority, the railroad owning the line of railroad that includes
public or private highway-rail grade crossings within the quiet zone,
or within the proposed quiet zone, shall provide sufficient current
information to the State and public authority regarding the grade
crossing and its operations to enable the State and public authority to
complete the Grade Crossing Inventory Form. FRA is requiring that
railroads
[[Page 70642]]
provide such information because it is information that, in many cases,
is known only by the railroad. For instance, maximum authorized speed,
track class, and type of railroad signal system at the crossing is not
public knowledge and is not information that would be readily available
to the public authority. FRA is declining in this rule to require the
State to provide such information, except to the extent the State is a
cooperating public authority in a quiet zone project (i.e., where a
State highway is involved). While it is of course desirable that a
State, and indeed, the railroad, cooperate in furnishing this important
data, information that would be provided by a State, such as roadway
type and traffic volume at the crossing, is readily available to the
public authority.
Section 222.51 Under What Conditions Will FRA Review and Terminate
Quiet Zone Status?
This provision is intended to ensure that quiet zones, while
providing for quiet at grade crossings, also continue to provide the
level of safety for motorists and rail employees and passengers that
existed before the quiet zones were first established, or in the
alternative, the level of safety reached by the average public grade
crossing where locomotive horns sound. In order to ensure this level of
safety, FRA will review safety data on at least an annual basis.
Paragraph (a) addresses FRA's annual risk reviews of New Quiet Zones,
while paragraph (b) addresses FRA's annual risk reviews of Pre-Rule
Quiet Zones. Paragraph (c) provides for a review of quiet zone status
at the initiative of FRA.
Paragraph (a)--New Quiet Zones
Paragraph (a) addresses annual reviews of risk levels at crossings
within New Quiet Zones. This paragraph provides that FRA will annually
calculate the Quiet Zone Risk Index for each New Quiet Zone established
based on risk comparison with the Nationwide Significant Risk Threshold
(Sec. 222.39(a)(2)) and quiet zones established based on application
to, and approval of, FRA and that reduce risk to a level at, or below,
the Nationwide Significant Risk Threshold (Sec. 222.39(b)(2)(ii)).
Routine annual risk reviews will not be conducted for quiet zones
established by having an SSM at every public crossing within the quiet
zone (Sec. 222.39(a)(1)) and quiet zones established based on the risk
level having been reduced to a level fully compensating for the absence
of the train horn (Sec. 222.39(a)(3) and (b)(2)(i)). Annual risk
reviews are not necessary for those quiet zones because the risk level
has been reduced to a level which fully compensates for the absence of
the horn. Any subsequent safety variations would be due to factors
other than absence of the horn.
Paragraph (a)(1) of this Sec. 222.51 provides that for those quiet
zones which are subject to annual risk reviews (those quiet zones
established pursuant to Sec. Sec. 222.39(a)(2) and 222.39(b)(2)(ii)),
FRA will notify each public authority of the Quiet Zone Risk Index for
the preceding calendar year. A Quiet Zone Risk Index above the
Nationwide Significant Risk Threshold signifies an unacceptable
increase in risk at crossings within the quiet zone.
Paragraph (a)(2) addresses the actions that need to be taken by a
public authority to retain a New Quiet Zone in the event the Quiet Zone
Risk Index is above the Nationwide Significant Risk Threshold.
Paragraph (a)(2)(i) provides that unless the public authority takes
certain specified actions to reduce the risk level, the quiet zone will
terminate six months after the public authority receives notice that
the Quiet Zone Risk Index is above the Nationwide Significant Risk
Threshold. If the public authority wishes to retain the quiet zone, it
must, within that six month period, provide to the Associate
Administrator a written commitment to lower the potential risk to the
traveling public at the crossings within the quiet zone, by reducing
the risk level to a level at, or below, the Nationwide Significant Risk
Threshold or to a level fully compensating for the absence of the train
horn. As part of this commitment, the public authority must provide a
discussion of the specific steps the authority plans to take to
increase safety at the crossings within the quiet zone. Taking these
actions will preserve the quiet zone for three years from the date of
FRA notification--sufficient time for the public authority to implement
safety measures at the quiet zone.
Paragraph (a)(2)(ii) provides that in addition to complying with
paragraph (a)(2)(i) (commitment and discussion of steps to be taken),
within three years after the public authority receives notification
from FRA that the Quiet Zone Risk Index exceeds the Nationwide
Significant Risk Threshold, the public authority must complete
implementation of SSMs or ASMs sufficient to reduce the Quiet Zone Risk
Index to a level at, or below, the Nationwide Significant Risk
Threshold, or to a level that fully compensates for the absence of the
train horn. The public authority must receive approval of the Associate
Administrator for continuation of the quiet zone. Procedures for such
approval process are those set forth in Sec. 222.39(b). FRA is only
requiring that the public authority reduce the risk index to either of
the two risk levels (Nationwide Significant Risk Threshold or the risk
level that fully compensates for the absence of the train horn).
However, there are long term benefits in reducing the risk to the level
that fully compensates for the absence of the train horn, rather than
reducing the risk level to a level at, or below, the Nationwide
Significant Risk Threshold. If the Quiet Zone Risk Index is reduced to
a level that fully compensates for the absence of the train horn, the
quiet zone will be considered to have been established pursuant to
Sec. 222.39(a)(3) and thus subsequent annual risk reviews will not be
conducted for that quiet zone. Annual risk reviews are not necessary
for those quiet zones because the risk level has been reduced to a
level which fully compensates for the absence of the horn. Any
subsequent safety variations would be due to factors other than absence
of the horn.
Paragraph (a)(2)(iii) provides that failure of the public authority
to comply with paragraph (a)(1) (commitment to lower the risk level)
shall result in the termination of the quiet zone six months after the
date of receipt of notification from FRA of the Quiet Zone Risk Index.
This paragraph also provides that failure of the public authority to
comply with paragraph (a)(2) (implementation of safety measures) shall
result in the termination of the quiet zone three years after the date
of receipt of notification from FRA of the Quiet Zone Risk Index.
Paragraph (b)--Pre-Rule Quiet Zones
Paragraph (b) of this section addresses annual reviews of risk
levels at crossings within Pre-Rule Quiet Zones. Certain categories of
Pre-Rule Quiet Zones are not subject to annual risk reviews, i.e.,
those Pre-Rule Quiet Zones which met the requirements for public
authority designation by implementing SSMs at each public grade
crossing within the quiet zone (Sec. 222.41(a)(1)). Annual risk
reviews are not necessary for those quiet zones because the risk level
has been reduced to a level which fully compensates for the absence of
the horn. Any subsequent safety variations would be due to factors
other than absence of the horn.
Paragraph (b)(1) provides that FRA will annually calculate the
Quiet Zone Risk Index for two types of Pre-Rule Quiet Zones: each Pre-
Rule Quiet Zone that qualified for automatic approval pursuant to Sec.
222.41(a)(2) (quiet zones
[[Page 70643]]
with a Quiet Zone Risk Index below the Nationwide Significant Risk
Threshold) and those that qualified for automatic approval pursuant to
Sec. 222.41(a)(3) (Pre-Rule Quiet Zones that originally qualified for
automatic approval because the Quiet Zone Risk Index was above the
Nationwide Significant Risk Threshold but was below twice the
Nationwide Significant Risk Threshold and no relevant collisions had
occurred within the five year qualifying period. Paragraph (b)(1) also
provides that FRA will notify each public authority of the Quiet Zone
Risk Index for the preceding calendar year for each such quiet zone in
its jurisdiction. In addition, FRA will notify each public authority if
a relevant collision occurred at a grade crossing within the quiet zone
during the preceding calendar year.
Paragraph (b)(2) addresses how the Quiet Zone Risk Index affects
Pre-Rule Quiet Zones which were approved under Sec. 222.41(a)(2)--
those quiet zones which qualified because their Quiet Zone Risk Index
was at, or below, the Nationwide Significant Risk Threshold. Paragraph
(b)(2)(i) provides that the quiet zone may continue if the Quiet Zone
Risk Index, as last calculated by FRA, continues to be at, or below,
the Nationwide Significant Risk Threshold.
Paragraph (b)(2)(ii) addresses the situation which occurs if the
annual risk review indicates that the Quiet Zone Risk Index is above
the Nationwide Significant Risk Threshold, but is less than twice the
Nationwide Significant Risk Threshold. In this situation, the quiet
zone may continue only if there have not been any relevant collisions
at public grade crossings within the quiet zone for five years
preceding the annual risk review. That is, a Pre-Rule Quiet Zone
initially established on the basis that the Quiet Zone Risk Index fell
below the NSRT may be continued without further action by the public
authority only if it would have initially qualified based on the no
relevant accident criterion and only if the quiet zone has been free of
relevant collisions thereafter.
Paragraph (b)(2)(iii) addresses the situation in which the
conditions for continuation of a quiet zone under (b)(2)(ii) do not
apply, resulting in the quiet zone will terminating six months after
receipt of notification from FRA of the Nationwide Significant Risk
Threshold. Explained differently, if the Quiet Zone Risk Index is at,
or above twice the Nationwide Significant Risk Threshold, the quiet
zone will terminate six months after receipt of FRA's notification.
Similarly, if the Quiet Zone Risk Index is above the Nationwide
Significant Risk Threshold but is lower than twice the Nationwide
Significant Risk Threshold and a relevant collision occurred at a
crossing within the quiet zone during the five years preceding the
annual risk review, the quiet zone will terminate six months after
receipt of FRA's notification.
Subsequent annual reviews of such quiet zones will be subject to
paragraph (3), i.e., the quiet zones will be considered to have been
established under Sec. 222.41(a)(3), which permits quiet zones if the
Quiet Zone Risk Index is above the Nationwide Significant Risk
Threshold but less than twice the Nationwide Significant Risk Threshold
and there have been no relevant collisions at any public grade crossing
within the quiet zone for the last five years. Paragraph (a)(2)(ii)
requires that the public authority must, within three years after FRA
notification, complete implementation of SSMs or ASMs sufficient to
reduce the Quite Zone Risk Index to a level at, or below, the
Nationwide Significant Risk Threshold or to a level that fully
compensates for the absence of the train horn. Of course, as in other
provisions of this rule, safety measures other than implementation of
SSMs at every public crossing require approval by the Associate
Administrator.
Rather than reducing the Quiet Zone Risk Index to a level at, or
below, the Nationwide Significant Risk Threshold, the public authority
may decide that it is more effective to reduce the risk level to a
level that fully compensates for the absence of the train horn. If this
action is taken, the quiet zone will be considered to have been
established pursuant to Sec. 222(a)(3) and subsequent annual risk
reviews will not be conducted, although the quiet zone, like all quiet
zones, is subject to reviews at the initiative of FRA. If either of the
actions specified by paragraph (b)(4) are not taken, the quiet zone
will terminate six months after the date of notification from FRA.
Paragraph (b)(3) governs annual risk reviews of risk levels at
crossings within quiet zones established under Sec. 222.41(a)(3)--
quiet zones which originally qualified for automatic approval because
the Quiet Zone Risk Index was below twice the Nationwide Significant
Risk Threshold and no relevant collisions had occurred within the five
year qualifying period. Paragraph (b)(3)(i) provides that a quiet zone
may continue unchanged if the Quiet Zone Risk Index as last calculated
by FRA remains below twice the Nationwide Significant Risk Threshold
and no relevant collisions occurred at a public grade crossing within
the quiet zone during the preceding calendar year. Thus, the quiet zone
may continue if the conditions which qualified the quiet zone in the
first place have remained essentially unchanged. Paragraph (b)(3)(ii)
addresses the situation in which conditions have changed. If the Quiet
Zone Risk Index as last calculated by FRA is above twice the Nationwide
Significant Risk Threshold, or if a relevant collision has occurred at
a public grade crossing within the quiet zone during the previous
calendar year, the quiet zone will terminate six months after the date
of notification from FRA, unless the public authority takes the actions
specified in paragraph (b)(4).
Paragraph (b)(4) addresses the actions that need to be taken by the
public authority to retain a quiet zone. This paragraph, which governs
Pre-Rule Quiet Zones, is similar to paragraph (a)(2) which governs such
situations involving New Quiet Zones. Paragraph (b)(4)(i) provides that
if the public authority wishes to retain the quiet zone, it must take
certain actions during the six month period following notification by
the FRA of the most recent Quiet Zone Risk Index. The public authority
must provide to the Associate Administrator a written commitment to
lower the potential risk to the traveling public at the crossings
within the quiet zone, by reducing the risk level to a level below the
Nationwide Significant Risk Threshold or to a level fully compensating
for the absence of the train horn. As part of this commitment, the
public authority must provide a discussion of the specific steps the
authority plans to take to increase safety at the crossings within the
quiet zone. Taking these actions will preserve the quiet zone for three
years from the date of FRA notification--sufficient time for the public
authority to implement safety measures at the quiet zone.
Paragraph (b)(4)(ii) requires that the public authority must,
within three years after FRA notification, complete implementation of
SSMs or ASMs sufficient to reduce the Quiet Zone Risk Index to a level
below the Nationwide Significant Risk Threshold or to a level that
fully compensates for the absence of the train horn. As in other
provisions of this rule, safety measures other than implementation of
SSMs at every public crossing require approval by the Associate
Administrator.
Paragraph (b)(4)(iii) provides that failure of the public authority
to comply with paragraph (a)(1) (commitment to lower the risk level)
shall result in the termination of the quiet zone six months after the
date of receipt of notification from FRA of the Quiet Zone Risk Index.
[[Page 70644]]
This paragraph also provides that failure of the public authority to
comply with paragraph (a)(2) (implementation of safety measures) shall
result in the termination of the quiet zone three years after the date
of receipt of notification from FRA.
Paragraph (c)--Review at FRA Initiative
Paragraph (c) provides that the Associate Administrator may, at any
time, review the status of any quiet zone. This section is included in
the rule to enable the Associate Administrator to deal with unforeseen
safety situations which may arise in the future. Under this provision,
if the Associate Administrator makes a preliminary determination that
safety systems and measures do not fully compensate for the absence of
the locomotive horn, or that there is significant risk with respect to
loss of life or serious personal injury, (e.g., if the collision
history in the quiet zone indicates that removal of the train horn has
resulted in a dramatically higher than expected increase in risk
similar to the FEC experience) he or she will provide a written notice
of that determination to the public authority and other parties
originally provided notice under Sec. 222.43. FRA appreciates the
comment of the MDEC which pointed out that the original language in
proposed Sec. 222.39(d) limited actual notice of such preliminary
determination to the public authority. MDEC commented that limiting
notice of FRA's preliminary determination to publication in the Federal
Register is insufficient. Accordingly, FRA has modified the
notification procedures to include notification of those parties
originally receiving notification of the establishment of the quiet
zone under Sec. 222.43.
The Associate Administrator will also publish a notice in the
Federal Register. The public authority and other interested parties
will have the opportunity to provide comments to the Associate
Administrator before any action is taken by the Associate
Administrator. After the comment period, the Associate Administrator
may require that additional safety measures be taken or that the quiet
zone be terminated. If the public authority wishes the decision to be
reconsidered, it may petition the Associate Administrator for
reconsideration under the provisions of Sec. 222.57(b). Upon the
filing of such a petition, the Associate Administrator will give the
petitioner an opportunity to submit additional materials and an
opportunity for an informal hearing. Although very unlikely, conditions
at any particular crossing or quiet zone could pose such an imminent
hazard that such a protracted process may be contrary to public safety.
Thus, paragraph (c) makes clear that the paragraph is not intended to
limit the Administrator's emergency order authority under 49 U.S.C.
20104 and 49 CFR part 211. That statutory authority provides the
Administrator authority to immediately issue emergency orders ``when an
unsafe condition or practice, or a combination of unsafe conditions and
practices, causes an emergency situation involving a hazard of death or
personal injury.''
Paragraph (d)--Public Authority Responsibility
Paragraph (d) provides that if a quiet zone is terminated under a
provision of this section, the public authority has the responsibility
to notify all parties listed in Sec. 222.43(a) of the termination. The
manner of such notification shall be in accordance with Sec.
222.43(a).
Paragraph (e)--Railroad Responsibility
Paragraph (e) provides that upon notification from either the
public authority, or from FRA, that the quiet zone is being terminated,
the railroads shall, within seven days, sound the locomotive horn when
approaching and passing through all public highway-rail crossings
within the former quiet zone.
Section 222.53 What Are the Requirements for Supplementary and
Alternative Safety Measures?
This section, through reference to Appendices A and B, lists
acceptable SSMs and ASMs. Paragraph (a) states that approved SSMs are
listed in Appendix A, while paragraph (b) states that Appendix B lists
those ASMs that may be included in a request for FRA approval of a
quiet zone under Sec. 222.39(b).
Paragraph (c) states that standard traffic control device
arrangements such as reflectorized crossbucks, STOP signs, flashing
lights, or flashing lights with gates that do not completely block
travel over the line of railroad, or traffic signals are not considered
SSMs or ASMs. This provision is consistent with the statutory
definition of an SSM (49 U.S.C. 20153(a)(3)).
Section 222.55 How Are New Supplementary Safety Measures Approved?
This section addresses the manner in which new SSMs are
demonstrated and approved for use. This section is similar to the
NPRM's proposed Sec. 222.43, with three exceptions. Paragraph (e) has
been revised to provide that when the Associate Administrator approves
the use of a new SSM, notice of that approval will be published in the
Federal Register. Paragraph (d) has been revised to provide that the
Associate Administrator may impose any conditions or limitation on use
of the SSMs which the Associate Administrator deems necessary in order
to provide the level of safety at least equivalent to that provided by
the locomotive horn. The standard of a level of safety ``at least
equivalent to that provided by the locomotive horn'' is more
appropriate and consistent with the rest of the rule than the former
standard of ``the highest level of safety.'' Paragraph (d) has also
been revised to provide that the Associate Administrator, rather than
approving a proposed safety measure as an SSM, may approve it as an
ASM.
Paragraph (b) provides that interested parties may demonstrate
proposed new SSMs or ASMs to determine if they are an effective
substitute for the locomotive horn in the prevention of highway-rail
grade crossing casualties. Paragraph (c) provides that the Associate
Administrator may order railroad carriers operating over a crossing or
crossings to temporarily cease the sounding of locomotive horns at such
crossings to demonstrate proposed new SSMs or ASMs. This paragraph
reflects statutory language and requires that proposed new SSMs (and
ASMs) have been subject to prior testing and evaluation before such an
order is issued. The Administrator's order to the railroads to
temporarily cease sounding of horns may contain any conditions or
limitations deemed necessary in order to provide the highest level of
safety. These provisions provide an opportunity for the testing and
introduction of new grade crossing safety technology which would
provide a sufficient level of safety to enable locomotive horns to be
silenced.
Paragraph (d) provides that upon the successful completion of a
demonstration of proposed SSMs or ASMs, interested parties may apply
for their approval. This section requires certain information to be
included in every application for approval.
Paragraphs (e) and (f) provide that if the Associate Administrator
is satisfied that the proposed SSM fully compensates for the absence of
the locomotive horn, its use as an SSM (with any conditions or
limitations deemed necessary) will be approved and it will be added to
Appendix A. Rather than approving the proposed safety measure as an
SSM, the Associate Administrator may approve it as an ASM. The
applicant is notified and a
[[Page 70645]]
notice of such approval is published in the Federal Register.
Paragraph (g) provides an opportunity to appeal a decision of the
Associate Administrator for Safety. The party applying for approval of
an SSM or ASM may appeal to the Administrator a decision by the
Associate Administrator rejecting a proposed SSM or ASM or the
conditions or limitations imposed on its use.
Section 222.57 Can Parties Seek Review of the Associate Administrator's
Actions?
This new section has been added to explicitly detail the right of
parties to seek review of the Associate Administrator's actions.
Paragraph (a) addresses decisions by the Associate Administrator
granting or denying approval of a new SSM or ASM under Sec. 222.55. A
public authority or other interested party may petition the
Administrator for review of a decision by the Associate Administrator
approving or denying such an application. This paragraph requires that
the petition be filed within 60 days of the decision to be reviewed.
The petition must specify the grounds for the requested relief, and be
served on all parties identified in Sec. 222.43(a) (all railroads
operating over the public highway-rail grade crossings within the quiet
zone, the highway or traffic control authority or law enforcement
authority having control over vehicular traffic at the crossings within
the quiet zone, the landowner having control over any private crossings
within the quiet zone, and the State agency responsible for highway and
road safety). Filing of a petition under this paragraph does not stay
the effectiveness of the action sought to be reviewed unless the
Administrator specifically provides otherwise and either gives notice
to the petitioner or publishes a notice in the Federal Register to that
effect. The Administrator may reaffirm, modify, or revoke the decision
of the Associate Administrator without further proceedings and shall
notify the petitioner and other interested parties in writing or by
publishing a notice in the Federal Register.
Paragraph (b) addresses reviews of decisions by the Associate
Administrator: denying an application for approval of a quiet zone;
requiring additional safety measures at crossings within a quiet zone;
or terminating a quiet zone. This paragraph provides that a public
authority may challenge a decision by the Associate Administrator in
the above situations by filing a petition for reconsideration with the
Associate Administrator. The petition must specify the grounds for the
requested relief, be filed within 60 days of the decision to be
reconsidered, and be served upon all parties identified in Sec. 222.43
(a). The Associate Administrator will then provide the petitioner an
opportunity to submit additional materials and an opportunity for an
informal hearing. Upon review of the additional materials and
completion of any hearing requested, the Associate Administrator will
issue a decision on the petition. This decision will be
administratively final.
Section 222.59 When May a Wayside Horn Be Used?
The effectiveness of wayside horns as compensating for the lack of
a locomotive horn has been addressed earlier in this notice. This
section addresses the circumstances in which wayside horns may be used
in lieu of the locomotive horn.
Paragraph (a) provides that a wayside horn conforming to the
requirements of Appendix E may be used in lieu of a locomotive horn at
any highway-rail grade crossing equipped with an active warning system
consisting of, at a minimum, flashing lights and gates. Thus,
installation of wayside horns are not limited to quiet zones, but may
be used at any grade crossing equipped with at least gates and lights.
Paragraph (b) addresses use of wayside horns within quiet zones.
Wayside horns conforming to the requirements of Appendix E may be
installed within a quiet zone. FRA is fully aware that in one sense,
the purpose of a quiet zone may be considered to be defeated if horns
still sound to indicate the approach of a train, irrespective of
whether the horn is stationary or is located on a locomotive. However,
the choice is left up to the public authority. That entity may find the
wayside horn, with a horn sounding in a less obtrusive manner, to be
preferable to installation of SSMs. The presence of a wayside horn will
be considered to be the same as a crossing treated with an SSM in
determining the length of a quiet zone. Thus, a crossing equipped with
a wayside horn may be in the middle of a one-half mile long quiet zone
without jeopardizing the establishment of the quiet zone. In those
situations in which the Quiet Zone Risk Index must be calculated, any
grade crossings equipped with a wayside horn shall not be included in
such calculations. The risk level will thus be determined by the
average risk level at the remaining crossings.
Appendices A and B
Appendix A lists those SSMs which FRA has determined effectively
compensate for the lack of a locomotive horn. Because each SSM in this
appendix fully compensates for the lack of a locomotive horn, a quiet
zone may be established without specific FRA approval. Appendix B lists
those ASMs which may compensate for the lack of a locomotive horn
depending on the extent of implementation of the safety measure.
Because of the many possible variations, FRA acceptance of the proposed
implementation plan is required. The introduction to Appendix A
discusses the issues and actions that State and local governments
should be aware of in determining how to proceed in implementing quiet
zones. It is meant to assist in the community's decision-making process
in determining whether to designate a quiet zone under Sec. 222.39(a)
or to apply for approval of a quiet zone under Sec. 222.39(b).
Appendix A
This Appendix lists those SSMs which FRA has determined effectively
compensate for the lack of a locomotive horn. Included in the
discussion of each SSM is an ``effectiveness'' figure for that measure.
That figure indicates the effectiveness of the SSM in reducing the
probability of a collision at a highway-rail grade crossing.
As discussed earlier, effectiveness rates are based on actual
experience showing how much each SSM has reduced the probability of a
collision. The issue of what should constitute an SSM or ASM generated
a number of comments to the NPRM. Generally, communities expressed
displeasure with the proposed list of SSMs. Railroads, however,
expressed general satisfaction with the suggested SSMs.
The majority of public comments focused on communities'
dissatisfaction with the proposed SSMs because they are thought to be:
(1) Prohibitively expensive to implement; (2) impracticable, unfeasible
or inapplicable to their particular community's street grid; and (3)
incompatible with the three-year implementation period proposed in the
NPRM. The cost of installation and maintenance is of particular concern
to communities. State Senator Patrick J. O'Malley of Illinois predicted
that the cost of installing SSMs will be ``enormous.'' Selectman
Attillio Paglia from the Town of Rawley, Massachusetts expressed
displeasure that local funds would have to be spent implementing
expensive SSMs instead of funding other local concerns such as
[[Page 70646]]
schools, libraries and police stations. The General Manager of Pioneer
Valley Railroad in Westfield, Massachusetts noted that while the SSMs
will be installed at the cost of the community, they will be maintained
by the railroads. A representative of BLAST (Beverly [Massachusetts]
Lobbying Against Sounding of Train Horns) recommends that any Federal
or State funding for new or improved crossings have a stipulation
requiring an SSM at each crossing.
Some communities were dissatisfied with the proposed list of SSMs
because the available options are claimed to be too limited, since, it
is argued, only one or two of the SSMs may be applicable to a
particular community. For example, State Representative Michael Festa
from the City of Melrose in Massachusetts noted that many of crossings
in his district are very busy commuting streets that are perpendicular,
which makes some SSMs unfeasible. Likewise, Councilman Doyle Slater of
LaGrand, Oregon noted that photo enforcement, one way streets,
nighttime closures and medians are not practical at many crossings.
Moreover, communities in Illinois, as expressed by the Commissioner of
Chicago's Department of Transportation, have fewer options to choose
from because many of the prescribed SSMs are not feasible or legal in
Illinois. Megan Swanson, a Planning Coordinator for the West Central
Municipal Conference, stated that only one way streets or closures were
applicable. An extreme case is that of the village of Hinsdale,
Illinois, where the President of the village, opined that no SSM is
possible within village limits. Illinois had particular problems with
the proposed SSMs because, as noted by the Village of Winfield, the
Illinois Commerce Commission (ICC) did not approve the use of four-
quadrant gates or photo enforcement at crossings, thereby further
limiting the options available to communities. See discussion under
``Chicago Region'' above for general responses to concerns related to
Illinois practice.
In the NPRM, and to an even greater extent in this Interim Final
Rule, FRA has provided flexibility to public authorities in the
selection of SSMs to be used at crossings within a community. There
are, of course, wide variations in costs between, for example, four
quadrant gates and medians. Because of those variations, and variations
in the ability of communities to pay for various improvements, and
physical limitations at certain crossings limiting options, FRA crafted
the NPRM and this Interim Final Rule to provide the greatest level of
flexibility to the community. The public authority is best suited to
determine which SSM is appropriate for a specific crossing. That body,
will, in addition to considering cost, consider other factors as well:
physical limitations at the crossing; aesthetics; maintenance costs;
and acceptance of a specific safety measure by the State.
FRA believes that providing public authorities with the choice of
implementing SSMs or alternative measures, the choice of which measures
to implement within those categories, and in many circumstances, the
choice of which crossing to improve in order to bring the quiet zone's
risk level into the acceptable range, provides an almost unlimited
range of choices and thus a vast range of potential costs. FRA notes
that the estimates of the cost of SSMs in the Chicago Region made by
various parties during the NPRM comment period were notably unrealistic
and were based on the most expensive scenario of four-quadrant gates at
every crossing and construction costs based on the invalid assumption
that each crossing would be upgraded from no warning system to four-
quadrant gates.
The AAR has emphatically stated its position that locomotive horns
should only be banned at crossing that have sufficient safety devices
to substitute for the audible warning. In the view of the AAR,
``engineering'' methods, such as four-quadrant gates and closures can
be effective substitutes for the sounding of horns, while the use of
``non-engineering'' SSMs like photo enforcement, programmed
enforcement, public awareness and education are not appropriate. The
AAR submits that these non-engineering measures do not provide
assurance that they sustain the same level of safety as a locomotive
horn. In contrast to the AAR's stance, METRA's chairman suggested that
non-engineering measures such as advanced train alert technology, grade
separation projects, stricter enforcement penalties, and public
awareness education projects are more effective and a less expensive
way to improve crossing safety than engineering methods. FRA has
considered AAR's view along with those comments supporting the use of
such non-engineering safety measures. Such safety measures are only
acceptable when they have resulted in documented reduction in traffic
law violation rates at crossings. In such cases, their efficacy in
reducing risk has been shown. Further monitoring of such reductions
will help to ensure that they remain effective. However, FRA agrees
that photo enforcement requires scrutiny on a location-specific basis
and has therefore moved photo enforcement to the category of
Alternative Safety Measures.
Several communities such as Arvada, Colorado; Brighton, Colorado;
Fort Collins, Colorado; Wichita, Kansas; Manchester by the Sea,
Massachusetts; Northfield, Minnesota; Roseville, California; and
Madison, Wisconsin suggested adding the following to the list of SSMs
in order to add flexibility and reduce installation costs: (1) Wayside
horns, (2) longer gates that cover the entire road, (3) placing
lighting on trains similar to that of emergency vehicles, and (4)
articulated gates. As noted elsewhere in this rule, wayside horns are
acceptable substitutes for the locomotive horn under the provisions of
Sec. 222.59. Long gates that cover the entire road are acceptable in
one-way street situations. See Appendix A. FRA is not at this time
aware of non-articulated gates that extend over two opposing lanes of
traffic, and it would not appear prudent to use such an arrangement in
most cases given the potential to entrap vehicles between the gates.
FRA has explored the use of articulated gates that would descend from a
single apparatus to block the approach to the crossing in the normal
direction of travel and continue down to block the exit lanes from the
crossing (on one or both sides). As stated in the NPRM, `` such
articulated gates appear to be particularly attractive for two-lane
roads where the highway-rail crossing is at a sufficient distance from
other intersections or obstructions that could cause traffic to back up
on the crossing. In principle, such gates should have the same
effectiveness as other four-quadrant gate arrangements.'' While use of
such gates has been studied, it is apparent that they have not yet
reached a stage of reliability such that they would be an acceptable
SSM. FRA will continue to monitor their development for future
acceptance as an SSM.
The use of longer gate arms has also been considered during the
rulemaking. Longer gate arms extend beyond the centerline of the
roadway and block a portion of the opposing lane of traffic. This
application differs from the long gate arms previously discussed which
extend completely across the roadway in that the longer gate arms do
not completely block the lane of a vehicle exiting from the crossing.
The opening that is left between the end of the gate arm and the curb
would allow room for a vehicle to exit the crossing without becoming
trapped on the crossing. The longer gate arms would make it more
difficult for a motorist to drive around the lowered gate arms. At this
time there have been few test installations of this technology, and FRA
does not feel that
[[Page 70647]]
there is enough experience with longer gate arms to include them as an
SSM at this time. FRA will continue to monitor their development for
future acceptance as an SSM. FRA is also aware of a manufacturer that
has developed a gate arm that telescopically extends beyond the
centerline and is equipped with a sensing mechanism which will stop the
extension if it encounters an obstacle. This technology has potential
to be considered as an SSM but has yet to be field tested. FRA will
also monitor this technology.
California PUC's Rail Safety and Carrier Division advised that each
crossing in a quiet zone should be equipped with ``Remote Health
Monitoring.'' Missouri's Division of Motor Carrier and Railroad Safety
stated that each SSM should have constant warning time with redundancy.
We note that the rule requires that all active grade crossing warning
devices in New Quiet Zones be equipped with power-out indicators
(defined to include remote health monitoring that includes reporting
exceptions to primary power status) and (with limited exceptions)
constant warning time devices. See Sec. 222.35(b).
FRA received a large number of comments addressing specific SSMs. A
brief summary of comments received follows.
Temporary Closure of a Public Highway-Rail Grade Crossing
Some communities expressed concern with the temporary closure. The
communities of Orlando Park and Wilmette, both in Illinois, viewed
closures as impractical or not feasible. Community representatives
argued that most crossings are major thoroughfares, and thus closing a
crossing would have a serious impact on traffic patterns. Jeffrey
Smelty, chairman of the Executive Committee of the Chicago Area
Transportation Studies Council of Mayors, stated that closures are a
``viable option only in a few instances of low volume roads.'' The
President of the Village of Northbrook claims that closing low volume
crossings would have little effect on collisions since the low volume
itself decreases the statistical risk of an accident. Two States, the
Kansas DOT and Missouri Division of Motor Carrier and Railroad Safety
commented that if a crossing can be temporarily closed part of the day,
then it should be able to be closed permanently. They were also
concerned with the potential for human error in closing and opening the
roadway. In contrast, the North Carolina DOT stated that overnight
closures should be given a preference in the rule because it would
entirely eliminate the need for horns to sound.
The AAR expressed concern regarding the potential confusion that
would occur if States and localities adopt different closure periods.
Different closure times would mean that engineers would have to know
each crossing's closing period, thus placing an extra burden on the
engineer. Therefore, the AAR recommended that the FRA establish uniform
closure periods for every day of the week. Additionally, the AAR
recommended that the FRA require barriers that cannot be moved by the
public and cannot be crossed by automobile or pedestrian traffic. A
comment by Wichita, Kansas took into account the possible side effects
of temporary closures. They noted that temporary closures may result in
drivers speeding to beat the closure time. They were also concerned
about the possibility of disrupting emergency vehicle service routes.
FRA does not view the temporary closure as a solution for every
crossing in every situation. Commenters are indeed correct that in some
situations temporary closures are impractical. However, temporary
closures can in some circumstances provide a legitimate alternative to
other SSMs. This alternative is but one among a number of choices
available to public authorities in developing quiet zones. FRA believes
that the MUTCD provides appropriate standards for barriers and that
train crews can become familiar with quiet zone time periods.
Four-Quadrant Gate System
Comments on the four-quadrant gate system (``4Q system'') centered
on its cost, potential for failure, and dangerousness. The FRA did
receive praise on this proposed SSM from some, including the Washington
Department of Transportation, which stated that the proposal
``indicated extensive thought and effort.'' Others had problems with
the 4Q system. The State of Illinois was particularly concerned with
the 4Q system because the ICC did not allow for their use at highway-
rail grade crossings. The ICC had concerns about safety regarding
trapped vehicles in the crossing. Also, the ICC believes that it will
take more time than the FRA estimates for vendors and railroads to
design, manufacture, and install the gates to meet all of the new
demand.
Many comments provided suggestions for improving the design of the
4Q system to make its overall functioning safer. The Florida Department
of Transportation recommended that median barriers of at least 100 feet
be required at crossings in addition to the gates. This overall
sentiment was echoed by the Missouri Division of Motor Carrier and
Railroad Safety, which objected to the term ``blocked crossing'' being
used to describe the 4Q system because the gates only ``greatly deter''
a driver and do not totally impede a vehicle or pedestrian from
crossing the gated tracks. The New Jersey Department of Transportation
suggested that all traffic signals within 200 feet be equipped with
preemption circuitry.
Most States and communities, like Moorhead, Minnesota, were
particularly concerned with the danger of a car getting trapped within
the gates on the tracks. Robert Guttman, a top official on the MBTA
Advisory Board believes that quadrant gates should be outfitted with a
safety mechanism to prevent vehicles from being trapped. Another safety
measure that communities would like to see is constant warning time
circuitry. The AAR points out, however, that this system may be
impractical at crossings with three or more tracks.
One of the most controversial issues centered on whether to have
the four-quadrant gates programmed to stay up or down during a failure
of the system. Concerned with safety, the North Carolina DOT clearly
stated that gates should always fail in the down position. This
position was supported by a study conducted in conjunction with Norfolk
Southern titled ``Exit Gate-Arm Fail-Safe Down Test.'' The data
provided evidence that fewer vehicles traveled through a failed
crossing when all the gates were in the down position than when one or
more of the gates were in the upright position. Communities and their
representatives disagree; for example, Illinois State Representative
Eileen Myins stated, ``What will they do when double gates malfunction,
and there is no way around them?'' Gate failure appears to be a
``particularly bothersome'' problem, as noted by Massachusetts State
Representative Michael Cahill: ``gates frequently malfunction in the
down position, resulting in motorists who leave their car, get on the
track, and wave motorists across the tracks because there is no train
approaching.'' Mayor William Scanlon of the city of Beverly in
Massachusetts also reports frequent incidents of failure where police
have had to direct traffic around the gates. Therefore, these
communities recommended that the gates fail in the upright position.
Another area of great concern with the four quadrant gate system
was the cost, which Orlando Park, Illinois describes as ``inordinately
expensive.'' A representative of Chicago referred to a
[[Page 70648]]
study done by the General Accounting Office, which stated that a single
system equipped with sensors to detect trapped cars could cost $1
million. The BRS disagrees, estimating that vehicle detection systems
can be installed for around $175,000.
Vehicle detection systems are used for a variety of purposes in
traffic control systems. They generally consist of inductive loops
buried just beneath the surface of the roadway to detect a metal mass
over the location. Their cost will vary depending upon the complexity
of the application. In pilot studies and high-speed rail applications,
costs of four-quadrant gate installations with complex vehicle presence
detection systems have approached $1 million; however, it appears that
much of this cost has resulted from attempts to make the circuitry
fully fail-safe in nature. Neither the MUTCD nor FRA regulations
require that vehicle presence detection function on a fail-safe or
closed circuit principle. Rather, in the context of a four-quadrant
gate system it appears that a reasonable design objective would be a
high degree of reliability in detecting a motor vehicle. FRA believes
that a typical installation should be feasible for costs in the range
of $175,000 to $250,000.
FRA wishes to emphasize that use of vehicle presence detection
makes sense only where there is reason to be concerned about storage on
the crossing due to cued traffic (normally as a result of nearby
intersections). For instance, the State of Florida has installed
several four-quadrant gate systems without vehicle presence detection
along the Tri-Rail commuter line in south Florida. Those installations
have functioned well. By contrast, FRA agrees that, at many Chicago
Region crossings with nearby traffic signals and heavy traffic volumes,
use of vehicle presence detection to keep the exit gate arms up until
all vehicles clear the track will be fully warranted. The question of
whether the exit gates should fail up or down has been resolved by
amendments to the MUTCD subsequent to the publication of the NPRM.
These amendments permit failure down only in the presence of remote
health monitoring.
The AAR objected to FRA's proposed requirement that gates must be
activated by use of constant warning time devices. The AAR stated that
``constant warning time devices are not always practical. For example,
constant warning time devices may be impractical where three or more
tracks are located close to each other. Thus, FRA should at most
require constant warning time devices where practical.'' FRA
acknowledges concerns about the use of constant warning time devices in
electrified territory and AAR's concerns about three track crossings.
Accordingly, FRA is requiring constant warning time devices where
reasonably practical.
Gates With Medians or Channelization Devices
In the NPRM, FRA proposed to require that gates with medians or
channelization devices be considered SSM if: opposing traffic lanes on
both highway approaches to the crossing are separated either by medians
bounded by barrier curbs or medians bounded by mountable curbs if
equipped with channelization devices. FRA proposed that such medians
must extend at least 100 feet from the gate, unless there is an
intersection within that distance. If so, the median must extend at
least 60 feet from the gate, with intersections with that 60 feet
closed or moved.
The median barrier option was given positive comments by some, and
constructive criticism by others. Communities commented that they can
be impracticable, expensive, unsafe, and that the required median
length is too long. Planning Coordinator of the West Central Municipal
Conference, Megan Swanson and Mayor Jeffrey Smelty pointed out that
median barriers are simply ``aesthetically displeasing'' or have
``aesthetic problems.'' Orlando Park, Illinois submitted that the
medians were ``inordinately expensive.''
Several commentaries focused on the possible safety hazards that
may arise when median barriers are installed. Mayor William Scanlon of
the City of Beverly noted that fire apparatus would be inhibited when
trying to pass vehicles near the grade crossing medians. The New Jersey
Department of Transportation offered a possible solution by suggesting
that mountable medians be installed to allow for emergency vehicle
access. The problem with mountable devices, as the Florida and North
Carolina DOTs point out, is that they can be ``high maintenance''
items, and may encourage drivers to drive over the median. Others, such
as LCI Energy of Ipswich, Massachusetts, were concerned about disabled
vehicles and the driver's ability to escape from the vehicle. Jefferson
Parish, Louisiana noted that medians may invite motorists to make
additional U-turns that they would not have otherwise made but for
their driveway being blocked. Another safety concern brought up by
David Bier of LaGrange, Illinois, is that installing barriers may
create a secondary problem of vehicles crashing into the medians.
The main body of commentary complained that median barriers are
simply impracticable. Many submissions, such as those from the Kansas
Department of Transportation; Chicago Department of Transportation;
Ipswich, Massachusetts; Edward Sirovy of the Dupage Railroad Safety
Council; Gene Shannon of the Metropolitan Council of Governments;
Wilmette, Illinois; Mayor Jeffrey Smelty; Peter Wells, City Attorney of
Pendleton, Oregon; and Joan Johnson of BLAST, noted that most of their
crossings are adjacent to a parallel highway intersection, making
barriers unusable, especially if the required distance remains 100
feet. These comments also noted that narrow roads would make
installation of median barriers impossible. Gene Shannon was
particularly concerned that motorists would be unable to access
businesses if a median was installed. Communities located in the north
said that medians were not an option because they would either prevent
snow from being plowed off the road, or be inadvertently destroyed by
the plow.
Another body of commentary focused on the required length of the
proposed medians. Most communities requested that the FRA shorten the
requirement so that the barriers could be installed at more locations.
But the Florida Department of Transportation requested that the medians
be mandated to be a fixed height of nine inches and a length of 200
feet, so that motorists would not drive around them. Of the commenters
that believed medians should be shorter, there was disagreement as to
whether the length should be set or decided on a crossing by crossing
basis. The Kansas Department of Transportation stated, ``We encourage
that the determination of the length of median be made as a crossing
specific engineering decision and that the 100-foot distance is only a
recommended practice.'' The Missouri Division of Motor Carriers
submitted that a shorter median may be just as effective as a longer
one, and that a State level diagnostic team should assess the
particular length of each median. In contrast, Illinois ICC recommended
that FRA avoid arbitrary criteria for the length and material of
medians.
FRA understands the point made by many commenters that median
length may be substantially constrained by roadway geometry. However,
safety at highway-rail crossings has already benefitted substantially
from use of median arrangements at many crossings, and there is no
reason not to fully exploit this technique in support of community
quiet. Accordingly, FRA continues its approval of shorter
channelization arrangements and, in the revised Appendix B, invites
local
[[Page 70649]]
authorities to provide estimates of effectiveness that are reasonable
considering the extent of deviation from the nominal requirements of
Appendix A.
FRA agrees with the Florida DOT that use of 200 foot medians will
often be recommended when practicable. However, FRA believes that the
prescribed minimums of 100 and 60 feet are consistent with the
designated effectiveness rate. A public authority that can show a
higher effectiveness rate for longer medians may bring in that estimate
for consideration under Appendix B.
FRA also understands the conflict to which traffic control
authorities may be subject with respect to the appearance of
channelization arrangements, but FRA does not believe that in the end
aesthetics should be countenanced as a bar to saving lives and
preventing serious personal injury. FRA believes that in many cases
local public authorities will utilize options such as using native
stone or decorative plantings to enhance the appearance of median
arrangements, as they have done in other settings. To the extent that
roadway width does not allow for these treatments, and to the extent
channelization devices such as flexible delineators are viewed as
unacceptable in a particular community, the incremental cost of
alternative arrangements should be evaluated as a cost of community
beautification rather than as a cost of this rule.
One Way Street With Gates
The use of one way streets with gates received sparse comments,
mostly directed to their applicability. Illinois ICC pointed out that
the one way street is rarely, if ever acceptable to local governments,
because it would cause major disruptions in traffic flow. The Missouri
Division of Motor Carrier and Railroad Safety and the Chicago
Department of Transportation noted that there is limited applicability
to most roads without violating traffic engineering practices. This
option is considered safe, however, as noted by the BRS, who strongly
support the option.
FRA notes that, despite the protestations of several commenters,
use of one-way streets in American cities and towns is quite
substantial and that, without further use of unidirectional traffic
flows, attention to engineering of existing locations would permit
credit to be taken for this SSM at very low cost. FRA further notes
that new one-way traffic patterns, if applied to residential and
industrial areas (not including retail commercial areas where economic
effects may be unacceptable), could be useful in designing a quiet zone
and might help to serve other public purposes, such as providing
additional on-street parking where current roadway width is a
constraint and addressing other local issues, such as addressing
particularly hazardous intersections for left turns.
Photo Enforcement
The comments regarding photo enforcement were generally negative.
Most commenters objected to this either because it is not permitted in
their State or because it is viewed as ineffective. California, Kansas
and New Jersey requested that the option be removed from the list
because of its ineffectiveness. Additionally, there were complaints
about the cost of photo enforcement.
A significant objection expressed by the Kansas DOT and the
Massachusetts Executive Office of Transportation and Construction, is
that photo enforcement simply does not provide a physical impediment to
driving around gates and does nothing to replace the audible warning
provided by a locomotive horn. While the deterrent effect is
recognized, it is argued that it is minimal because, as Nevada states,
``It does not provide a positive means of separating vehicles and
pedestrians from trains, as do other SSMs.'' The AAR strongly opposes
its use as an SSM, stating that ``[t]he proposed non-engineering
measures do not provide assurance that they can sustain the same level
of safety as a locomotive horn.'' Using a speeding car metaphor, Mayor
Alisi, trustee of Glencoe, pointed out that receiving a ticket is not a
deterrent. Wichita, Kansas categorized photo enforcement as an ``after
the fact safety measure.''
In contrast, the President of Traffipax, a supplier of photo
enforcement equipment, submitted that photo enforcement is very
effective, citing a 40 percent reduction in violation rates, even when
dummy cameras are installed along with real cameras. Another benefit
that he mentioned is that the photos provide a record of conditions and
history of violations at a given crossing. Supporting this view is Dan
Lauzon, first vice-chairman of the BLE Massachusetts Legislative Board,
who noted that motorists are ``angelic'' when they know they are being
watched by cameras.
Based on the comments and FRA's own review, photo enforcement has
been redesignated as an ASM rather than an SSM. FRA has been persuaded
that photo enforcement more appropriately belongs in the listing of
ASMs. Its non-engineering nature and need for regular monitoring drives
its inclusion as an ASM rather than the engineering solutions listed as
SSMs.
Another concern expressed with photo enforcement (irrespective as
to whether it is an ASM or ASM) is that it not currently accepted in
every State. The Missouri Division of Motor Carrier and Railroad Safety
noted that it is not permitted under present State law. The City
Attorney of Pendleton, Oregon believes that the State constitution may
have to be amended to permit photo enforcement. Although not every
State currently permits automated photo enforcement, the trend is
towards greater acceptance of such methods for other traffic
enforcement purposes. There is every reason to believe it can work in
the grade crossing law violation context, especially when supported by
public awareness efforts. It is true that some States will have to
change their laws in order to take advantage of this alternative. FRA
believes sufficient time has been built into the rule for that to
happen. It is important to note that use of photo enforcement, like
every SSM and ASM, is voluntary. Thus, if a State chooses not to
provide for its use within the State, other means for compensating for
the lack of a locomotive horn are available under this rule.
It is clear that the SSMs proposed in the NPRM do not receive
universal acceptance among the commenters. However, FRA remains
convinced that the proposed SSMs are sound safety strategies and
provide a range of realistic options from which communities can choose
to meet their own needs. The ability to vary SSMs, through the ASMs
allowed by Appendix B, provides additional flexibility for communities.
Effectiveness of Supplementary Safety Measures
The effectiveness (see definition of effectiveness rate in Sec.
222.9) figures discussed for each SSM are based on available empirical
data and experience with similar approaches. The effectiveness figures
used in Appendix A are subject to adjustment as research and
demonstration projects are completed and data is gathered and refined.
FRA is using these estimates as benchmark values to determine the
effectiveness of an individual SSM and the combined effectiveness of
all SSMs along a proposed quiet zone.
FRA's final study of train horn effectiveness indicated that
collision probabilities increase an average of 66.8 percent when horns
are silenced at crossings with flashing lights and gates. As such, the
SSM should have an effectiveness of at least .40 (reducing the
[[Page 70650]]
probability of a collision by at least 40 percent) in order to
compensate for this 66.8 percent increase. For example, if a select
group of 1,000 crossings is expected to have 100 collisions per year
with train horns being sounded, this same group of crossings would be
expected to have 167 collisions per year once the train horn is banned
if no other safety measures are implemented and other factors remain
unchanged. Conversely, if these same crossings were experiencing 167
collisions per year while the horn was banned, it would be expected
that this number would reduce to 100 once use of the horn is re-
instituted. This would equate to an effectiveness of 67/167, or .40.
FRA is aware this figure is an average, but it has the benefit of
reflecting the broadest range of exposure available to the agency. FRA
is willing to consider well founded arguments that train horn
effectiveness is heightened or reduced under specific circumstances.
However, any such argument would need to be grounded in sound data and
analysis. This could potentially create significant difficulty in
administration of the rule, since historic collision patterns over a
small number of crossings are not, by themselves, meaningful predictors
of future exposure.
Much of the data available today to evaluate the effectiveness of
SSMs reflect the reduction in violation rates, not collision rates.
(Collisions are rare, and determination of a collision rate reduction
for any one SSM requires long term data collection.) Only one study (in
Los Angeles) has contrasted collision rates with violation rates, and
out of necessity (until additional data are available), this finding is
used in these analyses. In the Los Angeles demonstration it was noted
that a carefully administered and well publicized program of photo
enforcement reduced violation rates by 92 percent, while collisions
were reduced by only 72 percent. This ratio, 72:92 or .78, is being
used to adjust violation rate reductions in order to estimate resultant
reductions in collision rates for law enforcement, education/awareness
and photo enforcement options described in Appendix B. Violations that
result in collisions constitute a small subset of all violations. It is
reasonable to infer that education and legal sanctions may lack
effectiveness for several segments of the population, including those
who do not become aware of the countermeasures (e.g., because they are
not residents of the area, do not follow public affairs in the media,
or are difficult to reach because they are not fluent in English or
other principal languages in which information is disseminated) and
those who are particularly inclined to violation of traffic laws. As
such, for law enforcement, education/awareness and photo enforcement
options the rate of violations must be reduced 78 percent in order to
determine the effectiveness value for the ASM.
In contrast, engineering improvements such as those described in
Appendix A appear to work in synergy with existing warning systems to
condition and modify motorist behavior, reducing both the number of
violations and the number of very close calls (violations within a few
seconds of the train's arrival). Four-quadrant gates installed to date,
for instance, appear to have been almost completely successful in
preventing collisions. Although we would not expect this
extraordinarily high level of success to be sustained over a broader
range of exposure, excellent results would be expected. Accordingly,
for engineering improvements contained in Appendix A, this rule adopts
estimates of success drawn from carefully monitored studies of
individual crossings.
1. Temporary Closure of a Public Highway-Rail Grade Crossing
This SSM has the advantage of obvious safety and thus will more
than compensate for the lack of a locomotive horn during the periods of
crossing closure. The required conditions for closure are intended to
ensure that vehicles are not able to enter the crossing. In order to
avoid driver confusion and uncertainty, the crossing must be closed
during the same hours every day and may only be closed during one
period each 24 hours. FRA believes that such consistency will avoid
unnecessary automobile-to-automobile collisions in addition to avoiding
collisions with trains. Activation and deactivation of the system is
the responsibility of the public authority responsible for maintenance
of the street or highway crossing the railroad. Responsibility for
activation and deactivation of the system may be contracted to another
party, however, the appropriate public authority shall remain fully
responsible for compliance with the requirements of this section. In
addition, the system must be tamper and vandal resistant to the same
extent as other traffic control devices.
Effectiveness: Because an effective closure system prevents vehicle
entrance onto the crossing, the probability of a collision with a train
at the crossing is zero during the period the crossing is closed.
Effectiveness would equal 1. However, traffic would need to be
redistributed among adjacent crossings or grade separations for the
purpose of estimating risk following the silencing of train horns,
unless the particular ``closure'' was accomplished by a grade
separation.
2. Four-Quadrant Gate System
A four-quadrant gate system involves the installation of gates at a
public highway-rail grade crossing to fully block highway traffic from
entering the crossing when the gates are lowered. This system includes
at least one gate for each direction of traffic on each approach. A
four quadrant gate system is meant to prevent a motorist from entering
the oncoming lane of traffic to avoid a fully lowered gate in the
motorist's lane of traffic. Because an additional gate would also be
fully lowered in the other lane of the road, the motorist would be
fully blocked from entering the crossing.
FRA is requiring that all four-quadrant gate systems conform to the
standards contained in Part 8, Section D.05 (``Four-Quadrant Gate
Systems'') of the MUTCD. These standards were added by FHWA to the
MUTCD subsequent to publication of the NPRM. Because four quadrant
gates would be used at crossing where horns are not sounded, FRA is
requiring the following in addition to the MUTCD requirements.
a. When a train is approaching, all highway approach and exit lanes
on both sides of the highway-rail crossing must be spanned by gates,
thus denying to the highway user the option of circumventing the
conventional approach lane gates by switching into the opposing
(oncoming) traffic lane in order to enter the crossing and cross the
tracks.
b. Crossing warning systems must be activated by use of constant
warning time devices unless existing conditions at the crossing would
prevent the proper operation of the constant warning time devices. FRA
has been made aware that constant warning devices may not work properly
under certain circumstance such as in electrified territory. If
conditions exist that would not allow constant warning time systems to
work as intended, other appropriate types of control circuitry may be
used. Constant warning time devices are not required to be added to
existing warning systems in Pre-Rule Quiet Zones. However, if warning
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems
are installed, constant warning time devices are required.
c. Crossing warning systems must be equipped with power-out
indicators. Power-out indicators are not required to be added to
existing warning systems in Pre-Rule Quiet Zones. However, if
[[Page 70651]]
warning systems in Pre-Rule Quiet Zones are upgraded, or new warning
systems are installed, power-out indicators are required.
d. The gap between the ends of the entrance and exit gates (on the
same side of the railroad tracks) when both are in the fully lowered,
or down, position must be less than two feet if no median is present.
If the highway approach is equipped with a median or a channelization
device between the approach and exit lanes, the lowered gates must
reach to within one foot of the median or channelization device,
measured horizontally across the road from the end of the lowered gate
to the median or channelization device or to a point over the edge of
the median or channelization device. The gate and the median top or
channelization device do not have to be at the same elevation.
e. ``Break-away'' channelization devices must be frequently
monitored to replace broken elements.
Additionally, FRA is recommending that new installations conform to
the following:
f. Gate timing should be established by a qualified traffic
engineer based on site specific determinations. Such determination
should consider the need for and timing of a delay in the descent of
the exit gates (following descent of the conventional entrance gates).
Factors to be considered may include available storage space between
the gates that is outside the fouling limits of the track(s) and the
possibility that traffic flows may be interrupted as a result of nearby
intersections. It should be noted that the MUTCD recommends that exit
gates should fail in the ``up'' position unless a traffic engineering
study indicates otherwise.
g. A determination should be made as to whether it is necessary to
provide vehicle presence detectors (VPDs) to open or keep open the exit
gates until all vehicles are clear of the crossing. VPDs should be
installed on one or both sides of the crossing and/or in the surface
between the rails closest to the field. Among the factors that should
be considered are the presence of intersecting roadways near the
crossing, the priority that the traffic crossing the railroad is given
at such intersections, the types of traffic control devices at those
intersections, and the presence and timing of traffic signal
preemption.
h. Highway approaches on one or both sides of the highway-rail
crossing may be provided with medians or channelization devices between
the opposing lanes. Medians should be defined by a non-traversable curb
or traversable curb, or by reflectorized channelization devices, or by
both. The installation of traffic channelization increases the
effectiveness of the four quadrant gates and should be considered when
looking at situations where it appears that motorists may be tempted to
circumvent the warning devices.
i. Remote monitoring (in addition to power-out indicators, which
are required) of the status of these crossing systems is preferable.
This is especially important in those areas in which qualified railroad
signal department personnel are not readily available.
Effectiveness:
FRA estimates effectiveness as follows:
Four-quadrant gates only, no presence detection: .82.
Four-quadrant gates only, with presence detection: .77.
Four-quadrant gates with medians of at least 60 feet (with or
without presence detection): .92.
The estimate of .82 for free-standing four-quadrant gates (no
medians and no presence detection) is a highly conservative figure
involving a discount from documented experience. As noted above, four-
quadrant gates installed in the United States thus far have been highly
successful. North Carolina Department of Transportation (NCDOT)
conducted a pilot study of a four quadrant gate system at the Sugar
Creek Road crossing in Charlotte, NC. Following installation of the
four quadrant gates, the number of violations fell by 86 percent.
Traffic channelization was added later to the four quadrant gates,
reducing violations to an even greater extent, by 97 percent. During
the test, the train horn was also sounding. To account for any
complementary effects of the train horn, FRA uses more conservative
effectiveness rates of 82 percent and 92 percent for four quadrant
gates without and with medians, respectively.
Four-quadrant gate installations undertaken thus far in the United
States have generally not employed vehicle presence detection (VPD).
However, some future installations will incorporate this feature to
ensure coordination with other traffic signals and for other purposes.
For instance, tight geometry may not allow for any storage space within
the gates should queuing of traffic at a STOP sign on one side of the
crossing prevent prompt clearance by a motor vehicle. In such cases,
leaving the exit gates in the raised position may be elected.
Installing VPD will cause exit gates to remain up indefinitely as one
or more vehicles pass over the crossing. Although providing VPD avoids
the scenario of ``entrapment'' (long feared by some in the railroad
community as a liability risk), it also allows the possibility that
some motorists will follow violators through the crossing in a steady
stream, defeating the intended warning. Accordingly, where traffic
channelization is not provided to prevent this pattern, we assume a
lower effectiveness rate. FRA estimates that four-quadrant gates with
presence detection, but without traffic channelization, would have an
effectiveness rate of approximately .77.
By contrast, where four-quadrant gates are supplemented by lengthy
traffic channelization to discourage the violation minded driver, the
use of presence detection should make little or no difference in the
safety effectiveness of the arrangement. The North Carolina
demonstration showed that, when the four-quadrant gate installation was
supplemented by medians (channelization devices) of at least 50 feet on
each highway approach, the crossing experienced a 97 percent drop in
violations. Again applying a discount to this illustration, FRA
estimates an effectiveness rate of .92 for four-quadrant gates with
traffic channelization of reasonable length.
It is important to re-emphasize that use of data regarding
violations to estimate collision risk itself involves some hazard that
effectiveness will be over- or under-estimated. FRA believes that the
likelihood is that these estimates for four-quadrant gates are
conservative, not only because of the excellent effectiveness of in-
service four-quadrant installations, but also because of the North
Carolina findings. In the North Carolina observations, as the number of
violations decreased, the average number of seconds prior to arrival of
the train also significantly increased (predicting that collisions
might fall off at a faster rate than violations). The effectiveness of
four-quadrant gates may thus be higher than the range stated above,
both with and without medians and with presence detection.
It is also true that a variety of applications for these systems
may result in a variety of effectiveness rates.
3. Gates With Medians or Channelization Devices
Keeping highway traffic on both highway approaches to a public
highway-rail grade crossing in the proper lane denies the highway user
the option of circumventing gates in the approach lanes by switching
into the opposing (oncoming) traffic lane in order to drive around a
lowered gate to cross the tracks.
[[Page 70652]]
FRA therefore is requiring that the following conditions be met.
a. Opposing traffic lanes on both highway approaches to the
crossing must be separated by either: (1) Medians bounded by non-
traversable curbs or (2) channelization devices.
b. Medians or channelization devices must extend at least 100 feet
from the gate arm, or if there is an intersection within 100 feet of
the gate, the median or channelization device must extend at least 60
feet from the gate arm. Driveways for private, residential properties
(up to four units) are not considered intersections in calculating the
required median length.
c. Intersections of two or more streets, or a street and an alley,
that are within 60 feet of the gate arm must be closed or relocated.
Driveways for private, residential properties (up to four units) within
60 feet of the gate arm are not considered to be intersections under
this part and need not be closed. However, consideration should be
given to taking steps to ensure that motorists exiting the driveways
are not able to move against the flow of traffic to circumvent the
purpose of the median and drive around lowered gates. This may be
accomplished by the posting of ``no left turn'' signs or other means of
notification. For the purpose of this part, driveways accessing
commercial properties are considered to be intersections and are not
allowed. It should be noted that if a public authority cannot comply
with this 60 feet requirement, it may apply to FRA for a quiet zone
under Sec. 222.39(b), ``Public authority application to FRA.'' During
the comment period FRA was made aware of many circumstances in which
roadways parallel to the tracks would not physically accommodate a 60
feet median. It was always FRA's intent to allow public authorities to
apply to FRA for consideration of SSMs that do not fully comply with
the provisions of Appendix A. There should be many circumstances in
which medians or traffic channelization of less that 60 feet in length
may sufficiently reduce risk in order to permit the creation of a quiet
zone. FRA will review such applications and give them due
consideration.
d. Crossing warning systems must be activated by use of constant
warning time devices unless existing conditions at the crossing would
prevent the proper operation of the constant warning time devices. FRA
has been made aware that constant warning devices may not work properly
under certain circumstances such as in electrified territory. If
conditions exist that would not allow constant warning time systems to
work as intended, other appropriate types of control circuitry may be
used. Constant warning time devices are not required to be added to
existing warning systems in Pre-Rule Quiet Zones. However, if warning
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems
are installed, constant warning time devices are required.
e. Crossing warning systems must be equipped with power-out
indicators. Power-out indicators are not required to be added to
existing warning systems in Pre-Rule Quiet Zones. However, if warning
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems
are installed, power-out indicators are required.
f. The gap between the lowered gate and the curb or channelization
device must be one foot or less, measured horizontally across the road
from the end of the lowered gate to the curb or channelization device
or to a point over the curb edge or channelization device. The gate and
the curb top or channelization device do not have to be at the same
elevation.
g. ``Break-away'' channelization devices must be frequently
monitored to replace broken elements.
Effectiveness:
FRA estimates that channelization devices have an effectiveness of
.75 and medians with non-traversable curbs with or without
channelization devices have an effectiveness of .80. The installation
of traffic channelization devices as part of North Carolina's ``Sealed
Corridor'' demonstration project provides empirical data upon which to
base an effectiveness rate. Traffic channelization devices were
installed at the Sugar Creek Road crossing in Charlotte, NC. Prior to
the traffic channelization devices being installed, the Norfolk
Southern Corporation and NCDOT counted the number of motorists going
around the crossing gates for twenty weeks. This data established a
baseline traffic violation rate. The number of violations were then
counted after installation of the channelization devices. Comparing the
number of violations before and after the grade crossing treatment
showed that violations decreased by 77 percent. As in the NPRM, FRA
discounts this rate slightly for the novelty effect that may occur
immediately following installation of the treatment and to account for
the added safety benefit of the horn which was sounding during the
study. FRA therefore assigns an effectiveness rate of 75 percent for
traffic channelization devices. FRA reasons that medians with non-
traversable curbs present a greater deterrence, and estimates their
effectiveness rate at 80 percent. This reasoning is supported by data
collected in Spokane County, WA where non-traversable medians reduced
violations at the University Road crossing by 92 percent. The unusual
physical and operating characteristics of the crossing are sufficiently
different from an average crossing that FRA believes that the
effectiveness rate in this study should be discounted when determining
an effectiveness rate for a national rule.
4. One Way Street With Gates
This installation consists of one way streets with gates installed
so that all approaching highway lanes are completely blocked. FRA is
requiring that the following conditions are met.
a. Gate arms on the approach side of the crossing should extend
across the road to within one foot of the far edge of the pavement. If
a gate is used on each side of the road, the gap between the ends of
the gates when both are in the lowered, or down, position should be no
more than two feet.
b. If only one gate is used, the edge of the road opposite the gate
mechanism must be configured with a non-traversable curb extending at
least 100 feet.
c. Crossing warning systems must be activated by use of constant
warning time devices unless existing conditions at the crossing would
prevent the proper operation of the constant warning time devices. FRA
has been made aware that constant warning devices may not work properly
under certain circumstance such as in electrified territory. If
conditions exist that would not allow constant warning time systems to
work as intended, other appropriate types of control circuitry may be
used. Constant warning time devices are not required to be added to
existing warning systems in Pre-Rule Quiet Zones. However, if warning
systems in Pre-Rule Quiet Zones are upgraded, or new warning systems
are installed, constant warning time devices are required.
d. Crossing warning systems must be equipped with power-out
indicators. Constant warning time devices are not required to be added
to existing warning systems in Pre-Rule Quiet Zones. However, if
warning systems in Pre-Rule Quiet Zones are upgraded, or new warning
systems are installed, constant warning time devices are required.
Effectiveness: FRA does not have an empirical data source for an
effectiveness rate for one way streets with gates. FRA reasons that as
this SSM will fully block approach lanes to the highway rail crossing,
it's effectiveness should be similar to other measures that physically
prevent a motorist from entering a crossing when
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the gates are activated. In this respect, one way streets with gates
functions like four quadrant gates without medians, and FRA estimates
an effectiveness rate of 82 percent.
Appendix B--Alternative Safety Measures
Introduction
Section 222.39(b) provides that a public authority may apply to FRA
for approval of a quiet zone that does not meet the standards for
public authority designation under Sec. 222.39(a). Under Sec.
222.39(b) a quiet zone application may be presented to FRA for
consideration. Public authority application provides two unique
benefits towards the creation of a quiet zone. The first benefit is the
ability to use SSMs that may not conform to all of the requirements in
Appendix A. FRA received many comments indicating that traffic
channelization would not be practical due to parallel roadways that
were closer than 60 feet. Under Appendix B, short traffic
channelization devices may be considered. The second benefit is the
ability to use programmed law enforcement, public education and
awareness programs and photo enforcement to reduce risk and to
compensate for the loss of the train horn. A public authority must
receive written FRA approval of its quiet zone application prior to the
silencing of train horns.
As with quiet zones created using the public authority designation
method, credit will be given for closing of public highway-rail grade
crossings. It will be necessary to adjust the baseline severity risk
index at other crossings by increasing traffic counts at neighboring
crossings as input data to the severity risk formula. If nearby grade
separations are expected to carry some or all of the traffic, it will
not be necessary. FRA Regional Managers for Grade Crossing Safety will
be available to assist in performing the required analysis.
Appendix B addresses two types of ASMs-modified SSMs and non-
engineering ASMs. Modified SSMs are SSMs that do no fully comply with
the provisions listed in Appendix A. Depending on the resulting
configuration, modified SSMs may still provide a substantial reduction
in risk and can contribute to the creation of quiet zones. Non-
engineering ASMs are programmed law enforcement, public education and
awareness programs; and photo enforcement efforts that may be used to
reduce risk in the creation of a quiet zone. It should be noted that if
non-engineering ASMs are proposed, the application must demon