Part II

[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

Federal Railroad Administration

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.

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

1. Usefulness of the Train Horn

2. Incompatibility of Horn Noise with Community Needs

3. Crafting Exceptions to the Use of the Train Horn

4. Alternatives Considered

5. Implementing the Interim Final Rule

6. Existing Bans and New Quiet Zones

7. Requirements for the Train Horn and its Use

8. Post-NPRM Ban Impact Studies 10. Funding 11. Liability 12. Wayside Horn 13. Horn Sound Level and Directionality 14. Chicago Regional Issues

1. Introduction

2. Legislative and Administrative Actions in Illinois

3. Actual Practice Sounding Train Horns in the Chicago Region

4. Current Chicago Region Whistle Ban Status

5. Community Reaction to the Proposed Rule

6. Methodology/inventory Data

7. ``Chicago Anomaly''

1. Safety Trend Lines

   I. Accident-free and Low Risk Jurisdictions

10. Impracticality

11. Costs

    L. Time for Implementation 15. E.O. 15 Status 16. Section-by-Section Analysis 17. Regulatory Impact

1. Executive Order 12866 and Dot Regulatory Policies and Procedures

2. Regulatory Flexibility Act

3. Paperwork Reduction Act

4. Environmental Impact

5. Federalism Implications

6. Compliance with the Unfunded Mandates Reform Act of 1995

7. 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

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   area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts; and Madison, Wisconsin) at which more than 350 people testified. The extent of public comment and testimony throughout the country is evidence of the wide-ranging public interest in this rulemaking.

   Because the vast majority of people reading this document will not have the benefit of having the NPRM at hand, a portion of the ``Background'' section which appeared in the proposed rule is being repeated here (with updated data, where appropriate) in order to provide the necessary perspective in which to view Congress' mandate and the resulting rule.

   Approximately 4,000 times per year, a train and a highway vehicle collide at one of this country's 251,000 public and private highway- rail grade crossings. Of those crossings, more than 153,000 are public at-grade crossings--those crossings in which a public road crosses railroad tracks at grade. During the years 1997 through 2001, there were 17,601 grade crossing collisions in the United States. These collisions are one of the greatest causes of death associated with railroading, resulting in more than 400 deaths each year. For example, in the 1997-2001 period, 2,140 people died in these collisions. Another 6,615 people were injured. Approximately 50 percent of collisions at highway-rail intersections occur at those intersections equipped with active warning devices such as bells, flashing lights, or gates (approximately 62,000 crossings).

   Compared to a collision between two highway vehicles, a collision with a train is forty times more likely to result in a fatality. The average freight locomotive weighs between 140 and 200 tons, compared to the average car weight of one to two tons. Many freight trains weigh in excess of ten thousand tons. Any highway vehicle, even a large truck, would be crushed when struck by a moving train. The laws of physics compound the likelihood that a motor vehicle will be crushed in a collision with a moving train. The train's weight, when combined with the likelihood that the train will not be able to stop to avoid a collision, results in the potential for severe injury or death in virtually every collision (it takes a one-hundred car train traveling 30 miles per hour approximately half a mile to stop--at 50 miles an hour that train's stopping distance increases to one and a third miles).

   FRA is responsible for ensuring that America's railroads are safe for both railroad employees and the public. FRA shares with the public the responsibility to confront the compelling facts surrounding grade crossing collisions.

   In 1990, as part of FRA's crossing safety program, the agency studied the impact of train whistle bans (i.e., State or local laws prohibiting the use of train horns or whistles at crossings) on safety in Florida. (In this document the terms ``whistle'' and ``horn'' are used interchangeably to refer to the air powered locomotive audible warning device required to be installed on locomotives by 49 CFR 229.129, and to steam whistles required to be installed on steam locomotives by 49 CFR 230.121. These terms do not refer to a locomotive bell, which has value as a warning to pedestrians but which is not designed to provide a warning over long distances.) FRA had previously recognized the locomotive horn's contribution to rail safety by requiring that lead locomotives be equipped with an audible warning device, 49 CFR 229.129, and exempting the use of whistles from Federal noise emission standards ``when operated for the purpose of safety.'' 49 CFR 210.3(b)(3). The Florida study, which is discussed below (and which has been filed in the docket), documented how failing to use locomotive horns can significantly increase the number of collisions.

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

   Many people, including a number of commenters to the NPRM, have expressed the view that highway drivers who disobey the law and try to beat a train through a crossing should not be protected at the expense of the peace and quiet of communities that parallel railroad tracks. FRA agrees that drivers who unlawfully enter grade crossings should be punished in accordance with appropriate traffic laws. However, strong public policy reasons argue in favor of reasonable measures to protect all who are put at risk at grade crossings, even drivers who disregard warning devices.

   Overlooked in this debate are the many innocent victims of crossing collisions, including automobile and railroad passengers and railroad crews who, despite performing their duties correctly, are usually unable to avoid the collisions. Nationally, from 1994 to 1998, eight railroad crewmembers died in collisions at highway-rail crossings, and 570 crewmembers were injured. A number of locomotive engineers have commented that they or their colleagues have had to deal with the trauma associated with helplessly watching people being killed beneath their trains. Two hundred railroad passengers were also injured and two died. In Bourbonnais, Illinois, in 1999, eleven passengers died in their sleeper car following a collision with a truck at a highway-rail crossing. In addition, since approximately one-half of all collisions occur at grade crossings that are not fully equipped with warning devices, some of the drivers involved in these collisions may have been unaware of the approaching train.

   Property owners living near railroad rights-of-way can also be at risk. For example, on December 1, 1992, in Hiebert, Alabama, a freight train collided with a lumber truck. Three locomotives and nine rail cars were derailed, releasing 10,000 gallons of sulfuric acid into a nearby water supply. Residents living near the derailment site had to be evacuated because of the chemical spill. Even where the locomotive consist is not derailed in the initial collision with the highway vehicle, application of the train's emergency brake can result in derailment and harm to persons and property along the right-of-way.

   Law-abiding motorists can also be endangered in crossing collisions. On March 17, 1993, an Amtrak train collided with a tanker truck in Fort Lauderdale, Florida. Five people died when 8,500 gallons of burning fuel from the tanker truck engulfed cars waiting behind the crossing gates.

   Highway passengers can also be victims. On December 14, 1995, in Ponchatoula, Louisiana, five people were killed when their truck was hit by an Amtrak train. Among the dead were three children who were passengers in the truck.

   In making a decision on the use of locomotive horns, all of the competing interests must be reasonably considered. Those whose interests will be affected by this rule include those who may be disturbed by the sounding of locomotive horns and all of those who may suffer in the event of a collision: pedestrians using the crossing, the motor vehicle driver and passengers, those in adjacent vehicles, train crews, and those living or working nearby.

   3. FRA's Study of the Florida Train Whistle Ban

   Effective July 1, 1984, Florida authorized local governments to ban the nighttime use of whistles by intrastate trains approaching highway- rail grade crossings equipped with flashing lights, bells, crossing gates, and highway signs that warned motorists that train whistles would not be sounded at night. Fla. Stat. section 351.03(4)(a) (1984). After enactment of this Florida law, many local jurisdictions passed whistle ban ordinances.

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   In August 1990, FRA issued a study of the effect of the Florida train whistle ban up to the end of 1989. The study compared the number of collisions at crossings subject to bans with four control groups. FRA was trying to determine the impact of the whistle bans and to eliminate other possible causes for any increase or decrease in collisions.

   Using the first control group, FRA compared collision records for time periods before and during the bans. FRA found there were almost three times more collisions after the whistle bans were established, a 195 percent increase. If collisions continued to occur at the same rate as before the bans began taking effect, it was estimated that 49 post- ban collisions would have been expected. However, 115 post-ban collisions occurred, leaving 66 crossing collisions statistically unexplained. Nineteen people died and 59 people were injured in the 115 crossing collisions. Proportionally, 11 of the fatalities and 34 of the injuries could be attributed to the 66 unexplained collisions.

   In the second control group, FRA found that the daytime collision rates remained virtually unchanged for the same highway-rail crossings where the whistle bans were in effect during nighttime hours.

   The third control group showed that nighttime collisions increased only 23 percent along the same rail line at crossings with no whistle ban.

   Finally, FRA compared the 1984 through 1989 accident record of the Florida East Coast Railway Company (FEC), which, because it was considered an ``intrastate'' carrier under Florida law, was required to comply with local whistle bans, with that of the parallel rail line of interstate carrier, CSX Transportation Company (CSX), which was not subject to the whistle ban law. By December 31, 1989, 511 of the FEC's 600 gate-equipped crossings were affected by whistle bans. Collision data from the same period were available for 224 similarly equipped CSX crossings in the six counties in which both railroads operate. As noted above, FRA found that FEC's nighttime collision rate increased 195 percent after whistle bans were imposed. At similarly equipped CSX crossings, the number of collisions increased 67 percent.

   On July 26, 1991, FRA issued an emergency order to end whistle bans in Florida. Notice of that emergency order (Emergency Order No. 15) was published in the Federal Register at 56 FR 36190. FRA is authorized to issue emergency orders where an unsafe condition or practice creates ``an emergency situation involving a hazard of death or injury.'' 49 U.S.C. 20104. FRA acted after updating its study with 1990 and initial 1991 collision records and finding that another twelve people had died and thirteen were injured in nighttime collisions at whistle ban crossings. During this time, a smaller study, conducted by the Public Utility Commission of Oregon, corroborated FRA's findings and led to the cessation of State efforts to initiate a whistle ban in Oregon.

   FRA's emergency order required that trains operated by the FEC sound their whistles when approaching public highway-rail grade crossings. This order preempted State and local laws that permitted the nighttime ban on the use of locomotive horns.

   Twenty communities in Florida petitioned for a review of the emergency order. During this review, FRA studied other potential causes for the collision increase. FRA's closer look at the issue strengthened the conclusion that whistle bans were the likely cause of the increase.

   For example, FRA subtracted collisions that whistles probably would not have prevented from the collision totals. Thirty-five collisions where the motor vehicle was stopped or stalled on the crossing were removed from the totals. Eighteen of these collisions occurred before and 17 were recorded during the bans. When these figures were excluded, the number of collisions in the pre-ban period changed from 39 to 21, and the number of collisions in the post-ban period decreased from 115 to 98. Collisions which whistles could have prevented, therefore, totaled 98 collisions as compared to 21 collisions in the pre-ban period; this represents a 367 percent increase, compared to the 195 percent increase initially calculated.

   Similarly, if collisions where the motor vehicle hit the side of the train were also excluded (nine in the pre-ban period and 26 in the post-ban period) as being unlikely to have been prevented by train whistles, the pre-ban collision count became 12 versus 72 in the whistle ban period. The increase in collisions caused by the lack of whistles then became 500 percent.

   FRA's data, however, showed that, before the ban, highway vehicles on average, struck the sides of trains at the 37th train car behind the locomotive. After the ban took effect, 26 vehicles struck trains, and on average, struck the twelfth train car behind the locomotive. This indicated that motor vehicles are more cautious at crossings if a locomotive horn is sounding nearby. Before the whistle bans, highway vehicles tended to hit the side of the train after the whistling locomotive had long passed through the crossing. After the ban took effect, highway traffic hit the train much closer to the now silent locomotive--at the 12th car. The number of motor vehicles hitting the sides of trains also increased nearly threefold after the ban was established.

   FRA also considered collisions involving double-tracked grade crossings where two trains might approach at the same time. Since a driver's view of the second train might be blocked, hearing the second train's whistle could be the only warning available to an impatient driver. FRA's Florida study found the number of second train collisions for the pre-ban period was zero, while four were reported for the period the bans were in effect.

   Several Florida communities asked whether train speed increased collisions. FRA research has well established, as discussed below, that train speed is not a factor in determining the likelihood of a traffic collision at highway-rail crossings equipped with active warning devices that include gates and flashing lights. Speed, however, is a factor in determining the severity of a collision.

   FRA also considered population growth in Florida, but found it was not a factor. Daytime collision rates were not increasing at the very same crossings that had whistle bans at night. If population was a factor, then the daytime numbers should have increased dramatically as well. FRA also reviewed the number of fatal highway collisions, and registered drivers and motor vehicles and found no increases that either paralleled or explained the rise in nighttime crossing collisions.

   In the first two years after July 1991, when FRA issued its emergency order prohibiting whistle bans in Florida, collision rates dropped dramatically to pre-ban levels. In the two years before the emergency order, there were 51 nighttime collisions. In the two years after, there were only 16. Daytime collisions dropped slightly from 34 collisions in the two years before the emergency order, to 31 in the following two years.

   4. FRA's Nationwide Study of Train Whistle Bans

   FRA's Florida study raised the concern that whistle bans could be increasing collisions in other locations. Given the wide difference between grade crossing conditions from one community to another, FRA did not assume that the Florida results would be true at every whistle ban crossing. FRA began a nationwide effort to locate grade

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   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.

   \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.

   Two thousand and four of the crossings were subject to 24-hour whistle bans. Another 118 grade crossings were subject to nighttime- only bans. The States with the largest number of whistle ban crossings were Illinois, Wisconsin, Kentucky, New York, and Minnesota. More than half of the crossings were on three railroads: CSX, Consolidated Rail Corporation (Conrail), and Soo Line. A report covering the nationwide study was issued in April 1995. FRA found that whistle ban crossings averaged 84 percent more collisions than similar crossings with no bans. There were 948 collisions at whistle ban crossings during the period studied. Sixty-two people died in those collisions and 308 were injured. Collisions occurred on every railroad with crossings subject to whistle bans, and in 25 of the 27 States where bans were in effect.

   Since the 1995 study, FRA continued to analyze relevant data. Over the period of 1992-1996, there were 793 collisions at 2,366 crossings subject to whistle bans. These collisions resulted in the fatalities and injuries displayed in Table 1, as well as more than $2 million in motor vehicle damages.

   Table 1.--Collision Injuries and Fatalities by Type of Person Involved

   Type of person involved

   Injuries Fatalities

   Motorist.......................................... 258

   56 Pedestrian........................................

   17

   41 Railroad employee.................................

   56

   0

   The types of collisions which took place at whistle ban crossings and the resulting casualties are shown in Table 2 (casualty figures in this table exclude casualties to railroad employees). It is interesting to note that the mean train speed (train speed is positively correlated with fatalities) varies by type of collision. Of the injuries and fatalities shown in Table 2, 11 injuries and 5 deaths occurred when the vehicle was hit by a second train.

   Table 2.--Type of Collision

   Mean Type of collision

   Injuries Fatalities train speed

   Motor vehicle struck train................ 51

   8 15.5 Train struck motor vehicle................ 224

   89 25.4

   The driver was killed in the collision in 42 instances (5.3 percent of collisions), the remaining 55 fatalities were either passengers or pedestrians. The driver passed standing vehicles to go over the crossing in 37 of the collisions (4.7 percent). The driver was more likely to be killed when moving over the crossing at the time of the collision (35 of the driver fatalities), rather than when the vehicle was stopped or stalled at the crossing, and in most of the collisions (69.9 percent) at whistle-ban crossings the driver was moving over the crossing. Additionally, in almost every collision (97 percent), a warning device (either active or passive) was located on the vehicle's side of the crossing. This supports the theory that the warning given by the train horn could deter the motorist from entering the crossing.

   Collisions which took place when the motorist was moving over the crossing were more likely to be fatal (72 percent of the fatalities). This type of collision was also more likely to result in injury with 209 of the 258 motorist injuries occurring under these circumstances. These are the types of collisions the proposed rule is designed to prevent. Motorists that fail to notice or heed the warning devices in place at a crossing may be deterred by the sound of a train horn. The motorist is also given information by the horn about the proximity, speed, and direction of the train.

   FRA's study indicated that the installation of automatic traffic gates at crossings with whistle bans was more than twice the national average. Forty percent of the whistle ban crossings had gates compared to 17 percent nationally.

   FRA found 831 crossings where whistle sounding had at one time been in effect, but where the practice had changed during the January 1988 through June 1994 study period. In 87 percent of the cases, bans were no longer in effect. A ``before-and-after'' analysis comparing collision rates showed an average of 38 percent fewer collisions when whistles were sounded indicating that resuming use of the whistles had a .38 effectiveness rate in reducing collisions. This finding paralleled the Florida experience.

   FRA also rated whistle ban grade crossings according to an ``Accident Prediction Formula.'' The formula predicts the statistical likelihood of having a collision at a given highway-rail grade crossing. The physical characteristics of each crossing were considered in the formula, including the number of tracks and highway lanes, types of warning devices, urban or rural location, and whether the roadway was paved. Also considered were operational aspects, such as, the number of highway vehicles, and the number, type, time of day, and maximum speed of trains using the crossing. The formula was developed using data from thousands of collisions spanning many years. FRA then ranked the 167,000 public crossings in the national inventory at that time in an identical manner. Both the whistle ban crossings and the national inventory crossings were then placed into one of ten groups ranging from low-risk to high-risk.

   FRA compared the number of collisions occurring within each of the ten groups of crossings, over a five year period from 1989 through 1993, and found that for nine out of the ten risk groups, the whistle ban crossings had significantly higher collision rates than the crossings with no whistle bans. On average, the risk of a collision was found to be 84 percent greater at crossings where train horns were silenced. Another way to interpret this difference would be to say that locomotive horns had a .46 effectiveness rate in reducing the rate of collisions.

   FRA was concerned about the higher risk disclosed by the nationwide study. From its vantage point, FRA was able to see the elevated risk associated with whistle bans, which might not be apparent to local communities. While

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   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

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   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.

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   ``(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

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   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

1. 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

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   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.

2. 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.

3. 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

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   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.

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   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 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 [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

1. 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.

2. 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.

3. 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.

4. 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]]

5. 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.

6. Methodology/Inventory Data

   As noted above, Chicago Region commenters generally viewed the grade crossing safety record in the region as good. Many commenters suggested that the train horn could not be an effective warning device in the Chicago setting because of the number of train movements (motorists would become inured to the warning). Thus, it was felt that there was no difference in safety performance between crossings where the horn is sounded and those where it is not sounded. (By contrast, the ICC implicitly recognized the usefulness of the train horn but argued more widespread use of the train horn would not be accepted by the public and was not necessary given existing administrative standards.) FRA has responded to the comments by thoroughly reviewing the underlying data as well as conclusions derived from the data in the NPRM.

   To understand the controversy over Chicago data it is necessary to recall several points regarding the Chicago Region at the outset. First, virtually all of the crossings identified during public contacts as of concern to Chicago residents with respect to termination of existing horn exemptions are equipped with flashing lights and gates (``gated crossings''). Second, as discussed above, the ICC required use of the train horn at some of most hazardous crossings during at least portions of the FRA study period; and, even when the Commission excused use of the train horn, Metra and freight railroads often elected to use the horn notwithstanding public opposition, if any.

   It is also necessary to understand some basic information regarding the data that FRA has available to work with. Accident/incident data used in this rulemaking are reported to FRA by the railroads under regulations having the force and effect of Federal law (49 CFR Part 225). The data are available on FRA's public Web site at the individual crossing level, so local officials have the opportunity to call any problems to the agency's attention. In general, FRA has every reason to believe that these data are accurate, with the exception that a recently-added field to identify the presence of a whistle ban appears to be eliciting information of questionable quality (and FRA has not relied on that field in this proceeding).

   The characteristics of crossings (number of tracks, trains, motor vehicle traffic, etc.) are determined by reference to the Department of Transportation's national Inventory of highway-rail crossings, which is maintained by FRA on behalf of all users. This is a voluntary data collection effort, and the degree of cooperation in maintaining its currency varies from year to year and among contributors. Substantially all highway-rail crossings have been assigned Inventory numbers. Both the State departments of transportation (for public crossings) and the railroads (for public and private crossings) are requested to contribute updates to the Inventory whenever circumstances change. Since State departments of transportation receive Federal-aid highway funds for crossing safety and other highway improvements, and since under the ``section 130'' program States are required to maintain a ranking of crossings by degree of hazard in order to plan allocation of funds reserved for crossing safety purposes, it is reasonable to ask the States to share data needed to analyze crossing risk at the National level. It is also reasonable to ask railroads to provide these data, since they have an interest in avoiding collisions at crossings, as well as liability associated with such collisions. FRA has actively promoted participation in maintaining the Inventory for the benefit of all users.\9\

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

   [[Page 70615]]

   Some States, and some railroads, are more aggressive than others in providing updated data for the Inventory. When FRA examined the Inventory in the summer of the year 2000, FRA found that the average age of the most recent Inventory updates for the State of Illinois was nine years. Except as noted below, FRA's attempts to elicit more recent information from State authorities during the pendency of this proceeding have been largely unsuccessful.

   Until recently, the Inventory did not contain a field for the presence of a whistle ban, and FRA has not found notations in the current inventory to be sufficiently complete or reliable. The issue of which crossings have been subject to bans or exemptions during particular periods of time has been resolved through two means. First, in preparing the National Study relied upon in the NPRM, FRA relied to a significant extent upon a survey conducted by the AAR (survey information received in 1992) and on information received during outreach in anticipation of this rulemaking.

   Second, FRA has asked commenters in this proceeding to provide the best information that they have available, including a direct request to AAR to update its earlier survey of crossings (response received in October of 2000).

   Third, FRA has directly approached public authorities in the Chicago Region asking for information. Finally, in the case of some crossings for which the status was clearly questionable (both as to whistle ban status and other data elements), FRA has reviewed railroad documents and conducted site visits.

   Given the discrepancies pointed out in the NPRM, FRA has sought to obtain updated Inventory and ban information from the City of Chicago, but that had not occurred more than two years after the requests were made and as this interim final rule was being completed. (Attempting to resolve this data problem has caused significant delay in this rulemaking, as FRA has endeavored to use the best available and most credible information in preparing this interim final rule. However, given the policy choices FRA has made in this interim final rule, a comprehensive resolution of the data problem has not proven necessary.)

   Commenters on the NPRM questioned FRA's data, which FRA had characterized as finding a significant effect from silencing the train horn at gated crossings in the Chicago Region. Some of this criticism was direct (challenging the relevant FRA data on gated crossings), and other criticism was indirect (challenging data on passively signed and flashers-only crossings that FRA had published to complete the public record but had noted might be unreliable).

   Most Chicago-area commenters were convinced that the whistle ban grade crossing collision rate in Chicago is lower than the rate throughout the rest of the nation, and many contended that the train horn is wholly ineffective. In short, they doubted the conclusion stated in FRA's Updated Analysis of Train Whistle Bans (January 2000) that, on average, gated whistle ban crossings in the Chicago Region experienced 58 percent more collisions than gated crossings with similar predicted risk of a collision at which train horns sounded. Two studies by associations of local governments, discussed below, seemed to indicate different results.

   As noted above in the discussion of the Westat reports, FRA initially responded to the comments and analysis by contracting with that statistical firm to regenerate the national study, using the best available information for the study period 1992-1996, to maintain comparability with the earlier work and to avoid what might be temporary effects from the extensive publicity associated with this rulemaking. FRA provided the best available information regarding the status of crossings in Chicago during the study period, along with other necessary data. Westat reviewed the prior FRA method (which it found useful and appropriate), made some improvements in the method, and computed national results which are reported above. With respect to gated crossings in the Chicago Region, Westat found as follows:

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

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

   Stated differently, during the study period Chicago Region gated whistle ban crossings experienced an average of 34 percent more accidents than similar crossings in the Nation where the train horn was sounded. The results were statistically significant but as noted above a further statistical test indicated poor model fit.

   Accordingly, as FRA endeavored to bring together the various sources of information and analysis in preparation of this interim final rule, FRA made further inquiry into the distribution of ``no whistle crossings'' with the conclusions recited above. FRA then provided the corrected set to Westat for further analysis. Recognizing that the current no-whistle status could not be assumed to be valid for the earlier period, during which substantial ICC and railroad decision making had no doubt resulted in major changes in status, FRA also provided a more recent accident data set (1997-2001).

   As noted above, the result was that, for gated crossings (by far the largest component of the Chicago Region issue), it was determined that no-whistle policies resulted in an increase of 17.3 percent in accidents. This value was not supported by a very high level of statistical confidence. Accordingly, FRA was left with three options:

   1. Elect to determine that the Chicago analysis was inconclusive, that the statute requires FRA to find that the train horn has been fully compensated for, and that the logical alternative was to employ national averages (with or without inclusion of the Chicago data).

   2. Take note of the negative impact results yielded by the comparison of Chicago train horn and Chicago no-whistle crossings, and determine the impact of no-whistle policies in the Chicago Region to be zero, at least for pre-rule no-whistle crossings; or

   3. Note the Westat finding that the Chicago crossings are in fact different in their characteristics and accept the most recent Westat estimate (17.3 percent) of the effect of whistle bans on accident rates at gated Chicago Region crossings, either for all quiet zones, or for Pre-Rule Quiet Zones only.

   The first option of using national averages for the entire Nation, including Chicago, would have been employed by FRA if the Chicago Regional data were not available or their use inappropriate. FRA could have rationally decided that the limited significance of the Chicago Region statistical conclusions did not require reliance on those conclusions. This would have resulted in a fully functional and appropriate interim final rule consistent with the Act; a rule FRA would not have hesitated issuing. However acceptable this option was, it would have necessitated according little weight to a sizable body of testimony from the Chicago Region together with statistical analysis and qualitative knowledge of the Chicago Region's unique characteristics (discussed further below).

   The second option would require FRA to ignore the reality of discretionary selection and the strong evidence based on other national data (memorialized in the statute giving rise to this rulemaking

   [[Page 70616]]

   as well as the laws of most States, including Illinois), that the train horn can make a positive contribution at the margin. FRA believes this option would not have been a rational choice.

   FRA has chosen the third option, and has further determined that the lower estimate of ban impacts should be applied only to crossings in Pre-Rule Quiet Zones. The need to determine the impact of no-whistle policies on accident rates derives from the statutory definition of supplementary safety measures. The statute permits certain crossings to be excepted from the requirement to sound the train horn, including crossings ``for which, in the judgment of the Secretary, supplementary safety measures fully compensate for the absence of the warning provided by the locomotive horn [emphasis supplied].'' As delegate of the Secretary, FRA makes this judgment in light of the following considerations:

   [sbull] Utilizing an estimate of approximately 17 percent, despite the limited statistical significance of the estimate, takes advantage of the best and most current analysis available and fully recognizes the conclusion of the Westat report that the ``ban effect for gated crossings was significantly different in the Chicago area. * * *''

   [sbull] Not only was the input data set of no-whistle crossings for the final Westat study much improved from the prior work, but the time period of the study included the period when several Chicago-area jurisdictions were making special efforts to address crossing risk, particularly where no-whistle policies were in place. Reliance on the lower estimate has the practical effect of rewarding effort already expended, taking into account scores of comments by Chicago area officials and residents as well as the ``interests'' of communities wishing to retain existing no-whistle policies.

   [sbull] The recent study takes into consideration other variables that may have closed the risk gap in the region, particularly completion of the retrofit of auxiliary alerting lights, as well as special efforts made in the region (e.g., Metra's election to utilize both low-mounted ``ditch lights'' and oscillating lights, rather than just ditch lights).

   [sbull] Use of the lower estimate is fully consistent with what FRA understands regarding the application of no-whistle policies, i.e.,

   [sbull] Discretionary selection has almost certainly occurred in the region. Under current State law (which will be preempted by this interim final rule), railroads have the latitude to sound the horn or refrain from sounding the horn at individual crossings excepted from train horn sounding.

   [sbull] Following their interest in safety and limitation of liability, overall railroads likely have elected to use the train horn where risk is higher or have exacted responsive action from communities to compensate for use of the train horn.

   [sbull] The most extensive use of no-whistle policies has been made on commuter lines where many trains are scheduled, train counts are high, and motorists are thus more likely to expect a train. Although the absolute effect of silencing the horn at these crossings is still a matter of substantial concern given the high exposure at these crossings, the proportional effect of silencing the train horn is lower (again, because motorists are conditioned to believe the train will come, most trains are very conspicuous with two forms of alerting lights, and--on lines where commuter trains are predominant--motorist tolerance of delays is reduced by the expectation that the train will clear the crossing rapidly).

   FRA believes that the combination of these various factors provides a fully rational basis for selecting this option over the equally rational first option and the unsupportable second option, described above. FRA notes that the application of this lower effectiveness rate for the train horn to pre-rule, no-whistle gated Chicago Region crossings does not mean that the acceptable risk at those crossings will be measured differently. To the contrary, those crossings will be subject to the same Nationwide Significant Risk Threshold as all other pre-rule, no-whistle crossings. The unique effectiveness rate, which applies only at Chicago Region gated crossings, determines only the amount of reduction that may be required to meet this national risk standard. FRA believes that a reduced estimate of ban-induced accidents at grade crossings is appropriate for existing (pre-rule) no-whistle crossings. However, a reduced estimate would not be appropriate for current crossings in the Chicago Region where the train horn presently sounds, should those communities desire New Quiet Zones. Even on the commuter rail network, the risk characteristics of those crossings may be substantially different (e.g., more difficult geometry or sight distances, less local commitment to enforcement, etc.) Indeed, the comparisons between train horn and no-whistle crossings in the region confirm that a reduced estimate at the 17 percent level would not be appropriate for those crossings. Nor can FRA say that there is an intermediate level which is well supported empirically or judgmentally. Accordingly, FRA will apply the national estimate of ban impacts to New Quiet Zones in the Chicago Region.

   FRA recognizes the potential down side of qualifying Pre-Rule Quiet Zones using a lower estimate of ban effects. It is possible that some or all of the difference in performance has to do with factors that are beyond the control of this interim final rule. For instance, the extensive coverage of this rulemaking by the Chicago media will end as the rule is implemented, and that may result in future motorist behavior that is less favorable than in the past. Changes in local risk to which railroads might previously have reacted by resuming use of the train horn may become a source of concern, given the mandate of the rule to run silent through Pre-Rule Quiet Zones that have been qualified under the new procedures. Accordingly, FRA will monitor results in the region and consider further action as indicated. Note on Intra-Regional Comparisons

   Commenters in the proceeding also asked FRA to compare Chicago ban crossings to Chicago crossings where the train horn sounds, and FRA charged Westat with including that element in its analysis. As noted above, Westat reported that no statistically significant effect from the train horn was found when Chicago Region gated crossings, where the train horn sounds, are compared with the Chicago Region whistle ban crossings. This is neither surprising nor in conflict with the hypothesis that the train horn is useful. No accident prediction formula can capture all factors present at individual crossings, and in Illinois railroads have the latitude under law to sound the horn at exempt crossings. It is logical to expect that railroads would as a matter of discretion elect to sound the horn at crossings with very high known accident potential (given factors such as roadway geometry, accident history and observed motorist behavior), at least in those cases where community objections to noise are not sufficiently strenuous to convince them otherwise. Further, in those cases where the railroads did not make this election and the accident counts rose significantly, the ICC could eventually be expected to intervene. Neither the railroads nor the ICC could be expected to go too far in the direction of discretionary use of the train horn, however, given vocal community objections.

   The result has been, FRA believes, that the train horn is sounded as a matter of discretion at many (but by no means all) of the very riskiest crossings

   [[Page 70617]]

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

   \10\ Many of these very high risk train horn crossings would also benefit substantially from safety improvements such as four- quadrant gates, traffic channelization, or photo enforcement; and public investments would be recovered through reduced loss of life and injuries avoided. FRA will continue to encourage use of these techniques wherever they may be useful. While that is not the subject of this proceeding, the pendency of this proceeding has the benefit of calling attention to these possibilities for risk reduction that cannot be achieved using ``standard'' crossing safety measures.

   \11\ A 17.3 percent increase to a base amount yields a value of 117.3 percent (risk after implementation of a no-whistle policy). Restoring use of the horn would reduce the risk to a level 100 percent of the prior level. Seventeen and three-tenths is 14.7 percent of 117, so restoring the inflated value to the base amount is a 15 percent reduction to the no-whistle state, after rounding.

   Studies Provided by Commenters

   In response to the NPRM, CATS (Hafeez and Laffey) performed a separate study of the effects of whistle bans in the Chicago area and concluded that whistle bans have no effect on the collision frequency in the Chicago area. Following receipt of the CATS study, FRA asked Westat to review that report and provide an evaluation.

   The CATS study used a statistical technique called Analysis of Variance (ANOVA) to determine if grade crossings that had a whistle ban experienced a higher collision rate in comparison to grade crossings where train horns are routinely sounded. This method tested the statistical significance of the effect of a whistle ban on collision frequency using the interaction between device type and whistle ban. Westat found that, besides warning device class, this method failed to account for any of the other factors that are known to affect collision rates, such as daily train and traffic frequencies, train speed, number of highway lanes, and number of tracks. Furthermore, grade crossing collisions are rare event that are not normally distributed, but rather follow a Poisson distribution. The CATS study applied a technique designed for use with normally distributed data that does not work well for data that are not normally distributed. The result of applying this model was residuals that were not normally distributed. According to Westat, the omissions of factors known to affect collision rates coupled with an improper technique rendered the model poor for the purpose of analyzing the effect of whistle bans on collision rates.

   Disagreements about methods notwithstanding, Hafeez and Laffey come to essentially the same conclusion as the Westat analysis--i.e., Chicago Region no-whistle crossings may be safer on average than Chicago Region train horn crossings, at least when only certain factors are controlled in the analysis. As we have explained above, this is not a surprising outcome when discretionary selection is considered.

   Further, given the analytical methods used and the small data sets available for analysis, it would be as easy for confounding variables to mask any differences as it is alleged by commenters to be for such variables to generate specious differences. Consider, for instance, that most of the Chicago-area no-whistle crossings are on the commuter rail network, while most of the train horn crossings are on lines used exclusively or almost exclusively for freight. (Hafeez and Laffey also used the same, inflated data set of no-whistle crossings that FRA had used in its earlier analysis, which was the best available at the time. It contained large numbers of freight-only crossings where the train horn was likely sounded during much of the period.)

   The Northwest Municipal Conference (NWMC) also filed comments in this docket and attempted a statistical re-analysis of accident risk within its territory using the FRA method as reported in the NPRM and Nationwide studies. This analysis also compared local area train horn crossings with exempt crossings where railroads have elected to run silent. It concluded that train horn crossings are no safer than no- whistle crossings, whether one compares all crossings or just gated crossings. FRA determined that NWMC's analysis did not follow the FRA procedure appropriately, particularly as to stratification of the sample. Nevertheless, as noted above, FRA has determined that comparisons, between Chicago train horn crossings and no-whistle crossings, cannot properly evaluate train horn usefulness within the context of the Chicago Region, since discretionary selection has likely shifted a disproportionate number of the most hazardous exempt crossings into the train horn category and other confounding variables may apply.

   The NWMC analysis concludes the whistle ban is likely a spurious variable in the FRA analysis. It argues the factors used in the APF, such as train and automobile traffic, account for current accident levels rather than the whistle ban because the APF accounts for almost 80 percent of the variation in accidents. FRA's current approach adjusts for these effects. It is based on a Poisson regression that includes the factors used in the APF along with the whistle ban. Implications of the Various Studies

   This interim final rule endeavors to ensure that, to the extent practicable, these decisions are made based on safety rather than economic or political influence, with the important additional difference that communities have the option of insisting that the horn be silenced where supplementary or alternative safety measures are put in place (or where no ``significant risk'' is determined for the corridor).

   Again, FRA is keenly aware of the hazard that a spurious variable can confound statistical analysis and designed the stratified/matched pair method used in the national studies specifically in an effort to avoid that effect. FRA has also performed longitudinal studies, as reflected in the Florida report and case studies embodied in the Nationwide report. In every case where FRA has had sufficient valid data points to draw meaningful conclusions, the effect of the train horn has been confirmed, lending empirical confirmation of the following: the judgment implicit in ICC exemption management (that restoring use of the train horn can lower risk); human factors research; State laws requiring use of the horn; the opinions of railroad professionals who are exposed to motorist behavior on a daily basis; and the assumptions Congress made in enacting the law that required FRA to issue this rule.

   In any event, FRA strongly agrees with the NWMC comment that it is best to utilize a method that is responsive to demonstrable regional differences, where possible; and the interim final rule follows this pattern. The result is a significant reduction in effort that would need to be expended to institute quiet zones in the Chicago Region.

   In conclusion, the comments related to safety at gated crossings, taken together with subsequent statistical analysis, support reconciliation of FRA safety concerns with the strenuously

   [[Page 70618]]

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

7. ``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.

8. 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.

10. 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.

11. 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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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

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    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]]

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    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

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    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-

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    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.

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    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

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    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

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    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,

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    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

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    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

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    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.

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    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

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    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

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    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

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    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

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    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

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    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

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    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.

    1. 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.

    2. 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.

    3. 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

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       warning systems in Pre-Rule Quiet Zones are upgraded, or new warning systems are installed, power-out indicators are required.

    4. 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.

    5. ``Break-away'' channelization devices must be frequently monitored to replace broken elements.

       Additionally, FRA is recommending that new installations conform to the following:

    6. 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.

    7. 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.

    8. 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.

    9. 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.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. ``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.

    1. 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.

    2. 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.

    3. 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.

    4. Crossing warning systems must be equipped with power-out indicators. Constant warning time devices are not required to be added to existing warning systems in Pre-Rule Quiet Zones. However, if warning systems in Pre-Rule Quiet Zones are upgraded, or new warning systems are installed, constant warning time devices are required.

       Effectiveness: FRA does not have an empirical data source for an effectiveness rate for one way streets with gates. FRA reasons that as this SSM will fully block approach lanes to the highway rail crossing, it's effectiveness should be similar to other measures that physically prevent a motorist from entering a crossing when

       [[Page 70653]]

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

       Appendix B--Alternative Safety Measures

       Introduction

       Section 222.39(b) provides that a public authority may apply to FRA for approval of a quiet zone that does not meet the standards for public authority designation under Sec. 222.39(a). Under Sec. 222.39(b) a quiet zone application may be presented to FRA for consideration. Public authority application provides two unique benefits towards the creation of a quiet zone. The first benefit is the ability to use SSMs that may not conform to all of the requirements in Appendix A. FRA received many comments indicating that traffic channelization would not be practical due to parallel roadways that were closer than 60 feet. Under Appendix B, short traffic channelization devices may be considered. The second benefit is the ability to use programmed law enforcement, public education and awareness programs and photo enforcement to reduce risk and to compensate for the loss of the train horn. A public authority must receive written FRA approval of its quiet zone application prior to the silencing of train horns.

       As with quiet zones created using the public authority designation method, credit will be given for closing of public highway-rail grade crossings. It will be necessary to adjust the baseline severity risk index at other crossings by increasing traffic counts at neighboring crossings as input data to the severity risk formula. If nearby grade separations are expected to carry some or all of the traffic, it will not be necessary. FRA Regional Managers for Grade Crossing Safety will be available to assist in performing the required analysis.

       Appendix B addresses two types of ASMs-modified SSMs and non- engineering ASMs. Modified SSMs are SSMs that do no fully comply with the provisions listed in Appendix A. Depending on the resulting configuration, modified SSMs may still provide a substantial reduction in risk and can contribute to the creation of quiet zones. Non- engineering ASMs are programmed law enforcement, public education and awareness programs; and photo enforcement efforts that may be used to reduce risk in the creation of a quiet zone. It should be noted that if non-engineering ASMs are proposed, the application must demonstrate their effectiveness through the collection and analysis of data collected at the crossings. Periodic monitoring will be required throughout the existence of the quiet zone in order to show that the ASM is still effective. The public authority must receive written FRA approval of the quiet zone application prior to the silencing of train horns. The public authority is strongly encouraged to submit the application to FRA for review and comment before the Appendix B treatments are initiated to ensure that the proposed modified SSMs and/ or non-engineering ASMs will meet with FRA's approval. If non- engineering ASMs are proposed, the public authority may wish to confirm with FRA that the sampling methods are appropriate. Submitting the application for review prior to implementation will enable FRA to provide comments to assist the public authority in developing a quiet zone plan that will be acceptable. Modified SSMs

    1. If there are unique circumstances pertaining to a specific crossing or number of crossings which prevent the SSMs from being fully compliant with all of the SSM requirements listed in Appendix A, those SSM requirements may be adjusted or revised. In that case, the SSM, as modified, will be treated as an ASM under this Appendix B, and not as a SSM under Appendix A, so that its safety effects may be evaluated. By using modified SSMs, a locality will be able to tailor the use and application of various SSM-types of applications to a specific set of circumstances (e.g. being able to use traffic channelization devices of less than 60 feet in length). Thus, a locality may propose a quiet zone that contains modified SSMs at a number of crossings, that due to specific circumstances, could not have been treated with an Appendix A SSM and would have to be omitted from the proposed quiet zone. FRA will review the proposed quiet zone, and will approve the proposal if it finds that the Quiet Zone Risk Index is reduced to the level that would be expected with sounding of the train horns or to the Nationwide Significant Risk Threshold.

    2. Estimates of effectiveness may be proposed based upon adjustments from the effectiveness levels provided in Appendix A or from actual field data derived from the crossing sites. The application should provide an estimate for the effectiveness of the proposed ASM and the rationale for the estimate. For example, in Appendix A the effectiveness of a 60 foot traffic channelization device is .75. A public authority may propose for consideration that an effectiveness rate of .60 for a traffic channelization device that is 45 feet in length would be appropriate. The specific crossing and applied mitigation measure will be assessed to determine the effectiveness of the modified SSM. FRA will continue to develop and make available effectiveness estimates and data from actual experience under the rule.

    3. The following engineering types of ASMs may be included in a proposal for approval by FRA for creation of a quiet zone. SSMs that are listed in Appendix A may be used for purposes of modified SSMs. If one or more of the requirements associated with an SSM as listed in Appendix A is revised or deleted, data or analysis supporting the revision or deletion must be provided to FRA for review. These SSMs include: (1) Temporary Closure of a Public Highway-Rail Grade Crossing, (2) Four-Quadrant Gate System, (3) Gates With Medians or Channelization Devices, and (4) One-Way Street With Gate(s). A discussion of these safety measures may be found in the discussion of Appendix A. Non-Engineering ASMs

       The following non-engineering ASMs may be used in the creation of a Quiet Zone. The method for determining the effectiveness of the non- engineering ASMs, the implementation of the quiet zone, subsequent monitoring requirements, and provision for dealing with an unacceptable effectiveness rate are provided in paragraph b.

       1. Programmed Enforcement: Community and law enforcement officials commit to a systematic and measurable crossing monitoring and traffic law enforcement program at the public highway-rail grade crossing, alone or in combination with the Public Education and Awareness option.

       Required:

    1. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s).

    2. A law enforcement effort must be defined, established and continued along with continual or regular monitoring.

       2. Public Education and Awareness: Conduct, alone or in combination with programmed law enforcement, a program of public education and awareness directed at motor vehicle drivers, pedestrians and residents near the railroad to emphasize the risks associated with public highway-rail grade crossings and applicable requirements of state and local traffic laws at those crossings.

       [[Page 70654]]

       Requirements:

    1. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s).

    2. A sustainable public education and awareness program must be defined, established and continued concurrent with continued monitoring. This program shall be provided and supported primarily through local resources. It is critical that programs proposed under this appendix represent valid new increments of effort generated from the local level where quiet zone benefits will accrue.

       3. Photo Enforcement: This alternative entails automated means of gathering valid photographic or video evidence of traffic law violations at a public highway-rail grade crossing together with follow-through by law enforcement and the judiciary.

       Required:

    1. State law authorizing use of photographic or video evidence both to bring charges and sustain the burden of proof that a violation of traffic laws concerning public highway-rail grade crossings has occurred, accompanied by commitment of administrative, law enforcement and judicial officers to enforce the law.

    2. Sanction includes sufficient minimum fine (e.g., $100 for a first offense, ``points'' toward license suspension or revocation) to deter violations.

    3. Means to reliably detect violations (e.g., loop detectors, video imaging technology).

    4. Photographic or video equipment deployed to capture images sufficient to document the violation (including the face of the driver, if required to charge or convict under state law).

       Note to d.: This does not require that each crossing be continually monitored. The objective of this option is deterrence, which may be accomplished by moving photo/video equipment among several crossing locations, as long as the motorist perceives the strong possibility that a violation will lead to sanctions. Each location must appear identical to the motorist, whether or not surveillance equipment is actually placed there at the particular time. Surveillance equipment should be in place and operating at each crossing at least 25 percent of each calendar quarter.

    5. Appropriate integration, testing and maintenance of the system to provide evidence supporting enforcement.

    6. Public awareness efforts designed to reinforce photo enforcement and alert motorists to the absence of train horns.

    7. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s).

    8. A law enforcement effort must be defined, established and continued along with continual or regular monitoring.

       The effectiveness of non-engineering ASMs will be determined as follows:

       1. The first step in assessing the effectiveness of an ASM is to establish quarterly (3 months) baseline violation rates for each of the crossings. A violation in this context refers to a motorist not complying with the automatic warning devices at the crossing (not stopping for the flashing lights and driving over the crossing after the gate arms have started to descend, or driving around the lowered gate arms). A violation does not have to result in a traffic citation for the violation to be considered. Violation data may be obtained by any method that can be shown to provide a statistically valid sample. This may include the use of video cameras, other technologies (e.g. inductive loops), or manual observations that capture driver behavior when the automatic warning devices are operating. In the event that data is not collected continuously during the quarter, sufficient detail must be provided in the application in order to validate that the methodology used results in a statistically valid sample. FRA recommends that at least a minimum of 600 samples (one sample equals one gate activation) be collected during the baseline and subsequent quarterly sample periods. The sampling methodology must take measures to avoid biases in their sampling technique. Potential sampling biases could include: sampling on certain days of the week but not others, sampling during certain times of the day but not others, sampling immediately after implementation of an ASM while the public is still going through an adjustment period, or applying one sample method for the baseline rate and another for the new rate. One possible approach to avoid sampling bias would be to break a three-month observation period into many time slots and then randomly selecting these slots for sampling. The baseline violation rate should be expressed as the number of violations per gate activations in order to normalize for unequal gate activations during subsequent data collection periods. The application should include enough detail on the method used to collect and assess the data to insure that the results will provide a statistically valid result. While not it is not mandatory, public authorities are encouraged to provide FRA with its sampling methodology for comment prior to actually collecting the data. This will enable FRA to provide comments to ensure that the sampling methodology is adequate.

       2. The ASM should then be initiated for each crossing in the proposed quiet zone that is to be treated with programmed enforcement or education. During this time frame, train horns are still being sounded. Train horns will not be silenced until the application has been formally approved by FRA.

       3. In the calendar quarter following initiation, a new violation rate should be determined (using the same methodology as in paragraph a) and compared to the baseline violation rate for each crossing treated with an ASM. The violation rate reduction for each crossing should then be determined by the following formula:

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

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

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

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

       5. Using the effectiveness rates for each crossing treated by an ASM, determine the Quiet Zone Risk Index. If and when the Quiet Zone Risk Index for the proposed the quiet zone has been reduced to either the risk level which would exist if locomotive horns sounded at all crossings in the quiet zone or to a risk level below the Nationwide Significant Risk Threshold, the public authority may apply to FRA for approval of the quiet zone. Upon receiving written approval of the quiet zone application, the public authority may then proceed with notifications and implementation of the quiet zone.

       6. Violation rates must be monitored for the next two calendar quarters and every second quarter thereafter. If after five years from the implementation of the quiet zone, the violation rate for any quarter has never exceeded the violation rate used to determine the effectiveness rate that was approved by FRA,

       [[Page 70655]]

       violation rates may be monitored for one quarter per year.

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

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

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

       Section 229.129 Audible Warning Device

       Paragraph (a) of this section requires that each lead locomotive be provided with an audible warning device that produces a minimum sound level of 96dB(A) and a maximum sound level of 110 dB(A) at 100 feet forward of the locomotive in its direction of travel. The device shall be arranged so that it can be conveniently operated from the engineer's usual position during operation of the locomotive. The phrase ``usual position during operation of the locomotive'' replaces ``normal position in the cab.'' This change, which was not proposed in the NPRM, will bring this section into conformity with the first sentence of Sec. 229.53 which refers to the location of the various brake gauges used by a locomotive engineer. FRA removed Sec. 229.53's reference to ``normal position in the cab'' in the final rule revising the regulations governing braking systems and equipment used in freight and other non-passenger railroad train operations. See 66 FR 4104, January 17, 2001. FRA, in its response to petitions for reconsideration, stated that the phrase, ``normal position in the cab'' is unnecessary and antiquated. FRA stated that ``FRA's intent when removing the language was to ensure that the gauges used by an engineer to aid in the control or braking of a train or locomotive were located so as to be read from the engineer's usual position when operating the locomotive, whether that be in the cab of the locomotive or elsewhere. FRA's intent when issuing the final rule was to accommodate and facilitate advanced technologies and designs.'' See 67 FR 17562, April 10, 2002. Because the rationale for the language change as it pertains to brake gauges applies equally well to the location of horn controls, FRA has modified Sec. 229.129 to be consistent with Sec. 229.53. Because this change was not proposed in the NPRM, interested parties are encouraged to provide comment on this aspect of the interim final rule. FRA will take into consideration comments when issuing the final rule.

       Paragraph (b) addresses the schedule of testing to determine if locomotive horns are in compliance with this section. Locomotives built on or after December 18, 2004, must be tested and brought into compliance with this section prior to being placed in service. Locomotives built before December 18, 2004, have five years from the date of this notice in which to be tested. Thus they must be tested and brought into compliance with this section by December 18, 2008. Additionally, horns must be tested and brought into compliance with this section whenever a locomotive is rebuilt (as determined in accordance with 49 CFR 232.50).

       Paragraph (c) specifies the testing requirements and measurement procedures. The paragraph also specifies that the railroad must maintain records sufficient to show the date, manner and result of locomotive horn testing conducted in compliance with this part.

       Paragraph (d) provides that this section of part 229 addressing audible warning devices does not apply to rapid transit operations which are otherwise subject to part 229. Rapid transit operations which are subject to part 222 solely because they share track or rail corridors at public highway-rail crossings with general system railroads are thus not subject to this section. While such operations are subject to all provisions of part 222, including the requirement to sound the horn at public rail grade crossings which they share with general system railroads, and to silence the horn within quiet zones which include such shared crossings, they are not subject to Sec. 229.129's requirements, including those regarding locomotive horn volume and testing.

       17. Regulatory Impact

1. Executive Order 12866 and DOT Regulatory Policies and Procedures

   FRA has conducted a Regulatory Evaluation of this Interim Final Rule in accordance with Executive Order 12866. A copy of this document has been placed in the docket for this rulemaking. Following is a summary of the findings.

   FRA identified 1,988 existing whistle ban or no-horn crossings that would qualify for inclusion in Pre-Rule Quiet Zones. FRA also identified 442 potential New Quiet Zone crossings. Using information available about the crossing characteristics and the number of persons that would be or currently are severely affected by the sounding of train horns, FRA estimated the costs and benefits of the actions that communities would take in response to this rule. FRA believes that many communities will take advantage of the many options available to establish quiet zones. FRA also estimated the costs associated with the maximum horn sound level requirements. Some existing whistle ban crossings may not be included in quiet zones.

   The table below presents estimated twenty-year monetary costs associated with complying with the requirements contained in the Interim Final Rule using a 7 percent discount rate. Given the high prevalence of existing whistle ban crossings in the Chicago Region \15\ and the significant level of interest commenters from this area have shown regarding this rulemaking, costs are presented separately from the rest of the nation where applicable.

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

   [[Page 70656]]

   Total Twenty-Year Costs (PV, 7%)

   Nationwide

   Chicago Rest of nation

   Maximum Horn Sound Level........................................ $2,902,478

   (\2\)

   (\2\) Relocations Due to Horn Noise \1\............................... 1,724,590

   $47,927 $1,676,663 Establish/Maintain Pre-Rule Quiet Zones......................... 15,275,946 4,008,013 11,267,933 Establish/Maintain New Quiet Zones.............................. 21,501,796

   (\2\)

   (\2\) FRA Administrative Costs........................................

   25,426

   (\2\)

   (\2\)

   \1\ Due to resumption of horn sounding. \2\ Not applicable.

   Total Twenty-Year Costs associated with implementation of this rule are estimated to be $41,430,236 (PV, 20 Years, 7%).

   In general there has been a downward trend in collisions at grade crossings nationwide due to the implementation of various private and public safety initiatives such as Operation Lifesaver and other public education and awareness campaigns. Costs presented in this analysis may be overstated to the extent that such initiatives would lead to the eventual implementation of some of the same or equivalent safety measures that this rule requires for the establishment of quiet zones. In such cases, this rule may be merely accelerating implementation and the rate of expenditures.

   The direct safety benefit of this interim final rule is the reduction in casualties that result from collisions between trains and highway users at public at-grade highway-rail crossings. Implementation of this rule will ensure that (1) locomotive horns are sounded to warn highway users of approaching trains; or (2) rail corridors where train horns do not sound will have a level of risk that is no higher than the average risk level at gated crossings nationwide where locomotive horns are sounded regularly; or (3) the effectiveness of horns is compensated for in rail corridors where train horns do not sound.

   FRA has reviewed trends in collision rates for whistle ban crossings going back to 1980 and believes that collision rates over the twenty-years that this analysis covers will be no higher than 4 percent. The following table presents anticipated twenty-year safety benefits expressed in monetary terms assuming that collisions decline at an average rate of 4 percent annually and using a 7 percent discount rate.

   Total Twenty-Year Safety Benefits Monetized (PV, 7%) [Declining collision rate (4% annual decline)]

   Casualties prevented

   Nationwide

   Chicago Rest of nation

   Cancellation of W-Bans.......................................... $6,102,371

   $291,582 $5,810,789 Pre-Rule Quiet Zones:........................................... 48,794,232 22,371,706 26,422,526 New Quiet Zones................................................. 21,976,553

   (\1\)

   (\1\)

   Total....................................................... 76,873,156

   (\1\)

   (\1\)

   \1\ Not applicable.

   In terms of collisions and casualties, over the next twenty years, FRA anticipates implementation of this rule will result in the prevention of 123 collisions, 13 fatalities, and 60 injuries.

   In addition to the prevention of casualties, FRA estimates that, over the next twenty years, this collision prevention will result in a reduction of approximately $400,000 in highway vehicle, railroad equipment, and track damage.

   This analysis covers the first twenty years of the rule and includes some compliance costs that will be incurred towards the end of the period. Unlike the benefits associated with costs incurred in the early years of the rule, much of the twenty-year stream of benefits associated with these costs is not captured in this analysis. Safety benefits are understated to the extent that many years of safety benefits resulting from safety measures implemented in out-years are not included.

   Some of the unquantified benefits of this interim final rule include reductions in freight and passenger train delays, both of which can be very significant when grade crossing collisions occur, and collision investigation efforts. Although these benefits are not quantified in this analysis, their monetary value is significant.

   Because such events are rare, FRA has not attempted to estimate the value of avoiding events in which a highway-rail collision results in a derailment, with harm to persons on the train or release of hazardous materials into the community.

   Maximum horn sound level requirements will limit community disruption by not allowing horns to be sounded any louder than necessary to provide motorists with adequate warning of a train's approach. The benefit in noise reduction due to this change in maximum horn loudness is not readily quantifiable.

   Another unquantified benefit of this rule is elimination of some locomotive horn noise disruption to some railroad employees and those who may reside near industrial areas served by railroads. Locomotive horns will no longer have to be sounded at individual highway-rail grade crossings at which the maximum authorized operating speed for that segment of track is 15 miles per hour or less and properly equipped flaggers (as defined in by 49 CFR 234.5, but who for purposes of this rule can also be crew members) provide warning to motorists. This rule will allow engineers, who were probably already exercising some level of discretion as to the duration and sound level of locomotive horn sounding, to stop sounding the horn under these circumstances at no additional cost.

   This analysis does not quantify the benefit of eliminating community disruption caused by the sounding of train horns, nor does it quantify costs from increased noise at crossings where

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   horns will sound where they were previously silent.

   In an effort to determine the costs to a community associated with the locomotive horn, FRA examined the effects of sounding of locomotive horns on property values. This effort was based on the assumption that property values reflect concerns of property owners that are often subjective and otherwise difficult to quantify. For a full discussion of the effects of sounding locomotive horns on property values, see Appendix A to the Regulatory Evaluation.

   Research shows that residential property markets are influenced by a variety of factors including structural features of the property, local fiscal conditions, and neighborhood characteristics. Hedonic housing price models treat a property as a bundle of characteristics, with each individual characteristic generating an influence on the price of the property. For example, additional structural characteristics such as bathrooms, bedrooms, interior or exterior square footage increase the value of residential properties. Likewise, neighborhood characteristics are expected to influence property prices. For example, homes that are in relatively close proximity to noxious activities such as hazardous waste sites, incinerators, etc. have been shown to have lower values, other things equal. Thus, a carefully designed hedonic model can be used to implicitly value locational attributes that have no explicit market price.

   The effects of the sounding of locomotive horns on property values have been studied recently in response to the NPRM. While initial results are available, unfortunately they are not conclusive. David E. Clark performed one study for the FRA, and Schwieterman and Baden of the Chaddick Institute performed the other. According to Clark, the study performed for FRA was ``just a first step in understanding how train whistles influence local property values.'' Schwieterman and Baden of the Chaddick Institute emphasize that their ``report is a preliminary assessment of a complex issue. Some of our findings are speculative in nature.'' Those who have studied the issue agree that further study is needed to reach a better understanding of the true effects of locomotive horn sounding on property values. Clark concluded that there is little indication that the decision of a railroad to ignore whistle bans (and thus sound the locomotive horn) had any permanent and appreciable influence on the housing values in the three communities analyzed. Clark offers two explanations for the lack of effect on property values. First, those buying property within the audible range of a highway-rail grade crossing likely consider the possibility that train whistles may be sounded at the crossing in the future. Second, the railroad's action generated dynamic changes in the composition of residents that served to mitigate the initial impact of the action. Residents most sensitive to the sounding of locomotive horns moved away and were replaced with those less sensitive to such sounding.

   The Chaddick Institute study evaluated the probable costs of the noise generated by locomotive horns at grade crossings in the Chicago area. The study concluded that the region would experience significant losses in property value from sounding of horns at crossings currently subject to whistle bans. The study also concluded that even if property values do not fall, homeowners that are forced to move away may incur other real economic costs. For the reasons discussed in Appendix A to the Regulatory Evaluation, FRA has concluded that it is not likely that the overall costs associated with sounding the horns where they are not currently sounded will be as high as the Chaddick Institute study concludes.

   Although there are airport and highway hedonic property value studies, FRA has not applied them to grade crossings for a number of reasons. The types of noise experienced by residents near highways and airports can be different from that experienced by residents near highway-rail grade crossings. Highways and airports where noise is an issue have higher daily volumes of motor vehicle and aircraft traffic than grade crossings with whistle bans. The noise produced by locomotive horns at crossings is also generally more intermittent than that produced at airports and highways.

   The effect of highways and airports on nearby property values can also be very different than that of highway-rail at-grade crossings on nearby property values. For instance, airports are a source of employment for residents in the community. Although airport employees may not desire to reside in properties immediately adjacent to airports, they probably want to reside relatively close by. Few highway users desire to reside in properties immediately adjacent to highways, however many probably want to reside close enough to have easy access to highways. Such situations may greatly influence the magnitude of difference between property values of residences immediately adjacent to highways and airports compared to property values of residences that are still very close to highways and airports yet not adjacent. Since there generally is no incentive to residing near highway-rail at-grade crossings (unless there happens to be a commuter rail station nearby) the difference in property values between residences immediately adjacent to grade crossings and those a little further away is probably not as great.

   Studies of airport and highway noise compare property values of residences adjacent to the source of noise to property values of residences that are near but not adjacent to the source of noise. To isolate the effect of the noise itself and thereby make these studies more relevant to the highway-rail grade crossing context, the effect of the incentive for residing nearby, versus adjacent to, would have to be removed from the studies of airport and highway noise. Given the differences in (1) types of noise produced by highway vehicles and aircraft versus locomotive horns and (2) effects of highways and airports on nearby property values versus effects of grade crossings on property values, FRA believes that results from hedonic studies of airport and highway noises on property values are not directly transferable to locomotive horn noise effects on property values.

   It is important to note that since this rule is permissive as to the establishment of quiet zones, communities will establish quiet zones to the extent that the perceived benefit of elimination of the train horn disruption coupled with the safety benefit of any safety enhancements exceeds the costs of compliance associated with the requirements for establishing New Quiet Zones.

   FRA is confident that the benefits in terms of lives saved and injuries prevented will exceed the costs imposed on society by this rule.

2. Regulatory Flexibility Act

   The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of final rules to assess their impact on small entities unless the Secretary certifies that a final rule will not have a significant economic impact on a substantial number of small entities. Data available to FRA indicates that this rule may have minimal economic impact on a substantial number of small entities (railroads) and possibly a significant economic impact on a few small entities (government jurisdictions and small businesses). However, there is no indication that this rule will have a significant economic impact on a substantial number of small entities. The Small Business Administration

   [[Page 70658]]

   (SBA) did not submit comments to the docket for this rulemaking in response to the Initial Regulatory Flexibility Assessment that accompanied the NPRM. FRA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

   FRA has performed a Regulatory Flexibility Assessment (RFA) on small entities that potentially can be affected by this interim final rule. The RFA is summarized in this preamble as required by the Regulatory Flexibility Act. The full RFA is included in the Regulatory Evaluation, which is available in the public docket of this proceeding.

   This is essentially a safety rule that implements as well as minimizes the potential negative impacts of a Congressional mandate to blow train whistles and horns at all public crossings. Some communities believe that the sounding of train whistles at every crossing is excessive and an infringement on community quality of life, and therefore have enacted ``whistle bans'' that prevent the trains from sounding their whistles entirely, or during particular times (usually at night). Some communities would like to establish ``quiet zones'' where train horns would not be routinely sounded, but are awaiting issuance of this rule to do so. FRA is concerned that with the increased risk at grade crossings where train whistles are not sounded, or another means of warning utilized, collisions and casualties may increase significantly. The rule contains low risk based provisions for communities to establish quiet zones. Some crossing corridors may already be at risk levels that are permissible under this rule and would not need to reduce risk levels any further to establish quiet zones. Otherwise, communities establishing Pre-Rule Quiet Zones may implement sufficient safety measures along whistle-ban corridors to reduce risk to permissible levels. In addition to having permissible risk levels, all crossings in New Quiet Zones will have to be equipped with gates and flashing lights. If a community elects to simply follow the mandate, horn sounding will resume and there will be a noise impact on small businesses that exist along crossings where horns are not currently routinely sounded. If a community elects to implement sufficient safety measures to comply with the requirements for establishing a quiet zone, then the governmental jurisdiction will be impacted by the cost of such program or system. To the extent that potential quiet zone crossing corridors already have average risk levels permissible under this rule, and, in the case of New Quiet Zones, every crossing is equipped with gates and flashing lights, communities will only incur administrative costs associated with establishing and maintaining quiet zones.

   The costs of implementing this interim final rule will predominately be on the governmental jurisdictions of communities some of which are ``small governmental jurisdictions.'' As defined by the SBA this term means governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than fifty thousand. The most significant impacts from this rule will be on about 260 governmental jurisdictions whose communities currently have either formal or informal whistle bans in place. FRA estimates that approximately 70 percent (i.e. 193 communities) of these governmental jurisdictions are considered to be small entities.

   FRA has recently published final a policy which establishes ``small entity'' as being railroads which meet the line haulage revenue requirements of a Class III railroad. As defined by 49 CFR 1201.1-1, Class III railroads are those railroads who have annual operating revenues of $20 million per year or less. Hazardous material shippers or contractors that meet this income level will also be considered as small entities. FRA is using this definition of small entity for this rulemaking. The RFA believes that approximately 640 small railroads would be minimally impacted by train horn sound level testing requirements contained in this rule. In addition, some small businesses that operate along or nearby rail lines that currently have whistle bans in place that potentially may not after the implementation of this rule, could be moderately impacted.

   Alternative options for complying with this rule include allowing the train whistle to be blown. This alternative has no direct costs associated with it for the governmental jurisdiction. Other alternatives include ``gates with median barriers'' which are estimated to cost $13,000 for a mountable curb with frangible delineators and ``Photo enforcement'' which is estimated to cost $28,000-$65,500 per crossing, and have annual maintenance costs of $6,600-$24,000 per crossing. Finally, FRA has not limited compliance to the lists provided in Appendix A or Appendix B of the rule. The rule provides for supplementary safety measures that might be unique or different. For such an alternative, an analysis would have to accompany the option that would demonstrate that the number of motorists that violate the crossing is equivalent of less than that of blowing the whistle. FRA intends to rely on the creativity of communities to formulate solutions which will work for that community.

   FRA does not know how many small businesses are located within a distance of the affected highway-rail crossings where the noise from the whistle blowing could be considered to be nuisance and bad for business. Concerns have been advanced by owners and operators of hotels, motels and some other establishments as a result of numerous town meetings and other outreach sessions in which FRA has participated during development of this rule. If supplementary safety measures are implemented to create a quiet zone then such small entities should not be impacted. FRA held 12 public hearings nationwide following issuance of the NPRM and requested comments to the docket from small businesses that feel they will be adversely impacted by the requirements contained in the NPRM. FRA received no comments in response.

3. Paperwork Reduction Act

   The information collection requirements in this interim final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows: BILLING CODE 4910-06-P

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   [GRAPHIC] [TIFF OMITTED] TR18DE03.002

   BILLING CODE 4910-06-C

   All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and

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   reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: whether these information collection requirements are necessary for the proper performance of the function of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Robert Brogan at 202-493-6292.

   FRA believes that soliciting public comment will promote its efforts to reduce the administrative and paperwork burdens associated with the collection of information mandated by Federal regulations. In summary, FRA reasons that comments received will advance three objectives: (i) Reduce reporting burdens; (ii) ensure that it organizes information collection requirements in a ``user friendly'' format to improve the use of such information; and (iii) accurately assess the resources expended to retrieve and produce information requested. See 44 U.S.C. 3501.

   Comments must be received no later than [60 days after the date of publication]. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Robert Brogan, Federal Railroad Administration, RRS-21, Mail Stop 17, 1120 Vermont Ave., NW., MS-17, Washington, DC 20590.

   OMB is required to make a decision concerning the collection of information requirements contained in this interim final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

   FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of a final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register.

4. Environmental Impact

   FRA has evaluated this interim final rule in accordance with its procedures for ensuring full consideration of the environmental impact of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and DOT Order 5610.1c. FRA has prepared a final environmental impact statement (FEIS) analyzing the environmental impacts associated with this rule. The FEIS is being issued concurrently with this interim final rule. The principal environmental effect and potentially significant impact of the interim final rule is reduced horn noise in aggregate at approximately 150,000 public at-grade crossings and additional horn noise at some crossings where whistle bans currently exist.

   The application of the requirement to provide an audible warning at existing whistle ban crossings has been substantially modified in the interim final rule. Provisions have been made that would qualify certain existing whistle bans for quiet zone status according to their risk levels. This is expected to result in the continued absence of train horns at many Pre-Rule Quiet Zones and would reduce the potential for additional horn noise impacts. Train horns will continue to be silenced at other Pre-Rule Quiet Zones through implementation of supplemental or alternative safety measures. Thus, additional horn noise impact is unlikely to approach the levels that would occur if horns were to sound where all whistle bans now exist.

   This rule contains provisions that would reduce existing train horn noise exposure over time. The provision limiting the distance for regular horn sounding would reduce the total amount of horn noise generated. This provision would reduce existing horn noise impacts by approximately 27 percent. The provision for a maximum horn sound level would reduce horn noise for some particularly loud locomotives and would reduce existing horn noise impacts by approximately 14 percent. It is estimated that the combined effect of these two provisions would reduce horn noise impacts by approximately 38 percent.

   Finally, the interim final rule contains provisions that would make it possible for the creation of quiet zones in many communities that are currently exposed to train horn noise. The potential benefit from these New Quiet Zones is indeterminate, as it is impossible to determine prospectively the number of New Quiet Zones and their establishment date; however, FRA's best estimate is that there will likely be approximately 107 New Quiet Zones.

   Copies of the FEIS are being distributed to organizations and individuals who filed comments on the Draft environmental impact statement. The FEIS is also available on FRA's Web site (http://www.fra.dot.gov), or from the FRA at the following address: Office of

   Safety, FRA, 1120 Vermont Avenue, NW, (Mail Stop 25), Washington, DC 20590.

5. Federalism Implications

   Executive Order 13132, entitled, ``Federalism,'' issued on August 4, 1999, requires that each agency ``in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a Federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. * * *''

   FRA has complied with E.O. 13132 in issuing this rule. FRA consulted extensively with State and local officials prior to issuance of the NPRM, and we have taken very seriously the concerns and views expressed by State and local officials as expressed in written comments and testimony at the various public hearings throughout the country. FRA staff provided briefings to many State and local officials and organizations during the comment period to encourage full public participation in this rulemaking. As discussed earlier in this preamble, because of the great interest in this subject throughout various areas of the country, FRA was involved in an extensive outreach program to inform communities which presently have whistle bans of the effect of the Act and the regulatory process. Since the passage of the Act, FRA headquarters and regional staff has met with a large number of local officials. FRA also held a number of public meetings to discuss the issues and to receive information from the public. In addition to local citizens, both local and State officials attended and participated in the public meetings. Additionally, FRA took the unusual step of establishing a public docket before formal initiation of rulemaking proceedings in order to

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   enable citizens and local officials to comment on how FRA might implement the Act and to provide insight to FRA. FRA received comments from representatives of Portland, Maine; Maine Department of Transportation; Acton, Massachusetts; Wisconsin's Office of the Commissioner of Railroads; a Wisconsin State representative; a Massachusetts State senator; the Town of Ashland, Massachusetts; Bellevue, Iowa; and the mayor of Batavia, Illinois.

   Since passage of the Act in 1994, FRA has consulted and briefed representatives of the American Association of State Highway and Transportation Officials (AASHTO), the National League of Cities, National Association of Regulatory Utility Commissioners, National Conference of State Legislatures, and others. Additionally we have provided extensive written information to all United States Senators and a large number of Representatives with the expectation that the information would be shared with interested local officials and constituents.

   Prior to issuance of the NPRM, FRA had been in close contact with, and has received many comments from Chicago area municipal groups representing suburban areas in which, for the most part, locomotive horns are not routinely sounded. The Chicago area Council of Mayors, which represents over 200 cities and villages with over 4 million residents outside of Chicago, provided valuable information to FRA as did the West Central Municipal Conference and the West Suburban Mass Transit District, both of suburban Chicago.

   Another association of suburban Chicago local governments, the DuPage [County] Mayors and Managers Conference, provided comments and information. Additionally, FRA officials met with many Members of Congress, who have invited FRA to their districts and have provided citizens and local officials with the opportunity to express their views on this rulemaking process. These exchanges, and others conducted directly through FRA's regional crossing managers, have been very valuable in identifying the need for flexibility in preparing the proposed rule.

   Under 49 U.S.C. 20106, issuance of this regulation preempts any State law, rule, regulation, order, or standard covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard, that is not incompatible with Federal law or regulation and does not unreasonably burden interstate commerce. For further discussion of the effect of this rule on State and local laws and ordinances, see Sec. 222.7 and its accompanying discussion.

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

6. Compliance With the Unfunded Mandates Reform Act of 1995

   Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104- 4) each Federal agency ``shall, unless otherwise prohibited by law, assess the effects of Federal Regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).'' Sec. 201. Section 202 of the Act further requires that ``before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement * * *'' detailing the effect on State, local and tribal governments and the private sector. The rule issued today will not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of a statement is not required.

7. Energy Impact

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

   18. Privacy Act Statement

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

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   List of Subjects

   49 CFR Part 222

   Administrative practice and procedure, Penalties, Railroad safety, Reporting and recordkeeping requirements.

   49 CFR Part 229

   Locomotives, Penalties, Railroad safety.

   0 In consideration of the foregoing, FRA is amending chapter II, subtitle B of title 49, Code of Federal Regulations as follows: 0 1. Part 222 is added to read as follows:

   PART 222--USE OF LOCOMOTIVE HORNS AT PUBLIC HIGHWAY-RAIL GRADE CROSSINGS

   Subpart A--General Sec. 222.1 What is the purpose of this regulation? 222.3 What areas does this regulation cover? 222.5 What railroads does this regulation apply to? 222.7 What is this regulation's effect on State and local laws and ordinances? 222.9 Definitions. 222.11 What are the penalties for failure to comply with this regulation? 222.13 Who is responsible for compliance? 222.15 How does one request a waiver of a provision of this regulation? Subpart B--Use of Locomotive Horns 222.21 When must a locomotive horn be used? 222.23 How does this regulation affect sounding of a horn during an emergency or other situations? 222.25 How does this rule affect private highway-rail grade crossings? Subpart C--Exceptions to the Use of the Locomotive Horn 222.31 [Reserved]

   Silenced Horns at Individual Crossings

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

   Silenced Horns at Groups of Crossings--Quiet Zones

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

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

   Subpart A--General

   Sec. 222.1 What is the purpose of this regulation?

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

   Sec. 222.3 What areas does this regulation cover?

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

   Sec. 222.5 What railroads does this regulation apply to?

   This part applies to all railroads except:

   (a) A railroad that exclusively operates freight trains only on track which is not part of the general railroad system of transportation;

   (b) Passenger railroads that operate only on track which is not part of the general railroad system of transportation and which operate at a maximum speed of 15 miles per hour; and

   (c) Rapid transit operations within an urban area that are not connected to the general railroad system of transportation. See 49 CFR part 209, appendix A for the definitive statement of the meaning of the preceding sentence.

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

   (a) Under 49 U.S.C. 20106, issuance of this part preempts any State law, rule, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local safety hazard; is not incompatible with a law, regulation, or order of the United States government; and does not unreasonably burden interstate commerce. However, except as provided in Sec. 222.25, this part does not cover the subject matter of the routine sounding of locomotive horns at private highway-rail grade crossings.

   (b) Inclusion of SSMs and ASMs in this part or approved subsequent to issuance of this part does not constitute federal preemption of State law regarding whether those measures may be used for traffic control. Individual states may continue to determine whether specific Supplementary Safety Measures (SSMs) or Alternative Safety Measures (ASMs) are appropriate traffic control measures for that State, consistent with Federal Highway Administration regulations and the Manual on Uniform Traffic Control Devices (MUTCD). However, inclusion of SSMs and ASMs in this part does constitute federal preemption of State law concerning the sounding of train horns in relation to the use of those measures.

   Sec. 222.9 Definitions.

   As used in this part--

   Administrator means the Administrator of the Federal Railroad Administration or the Administrator's delegate.

   Alternative safety measures (ASM) means a safety system or procedure, other than an SSM, established in accordance with this part which is provided by the appropriate traffic control authority or law enforcement authority and which, after individual review and analysis by the Associate Administrator, is determined to be an effective substitute for the locomotive horn in the prevention of highway-rail casualties at specific highway-rail grade crossings. Appendix B to this part lists such measures.

   Associate Administrator means the Associate Administrator for Safety of the Federal Railroad Administration or the Associate Administrator's delegate.

   Channelization device means one of a series of highly visible vertical markers placed between opposing highway lanes designed to alert or guide traffic around an obstacle or to direct traffic in a particular direction. ``Tubular markers'' and ``vertical panels'' as described in sections 6F.57 and 6F.58, respectively, of the MUTCD, are acceptable channelization devices for purposes of this part. Additional design

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   specifications are determined by the standard traffic design specifications used by the governmental entity constructing the channelization device.

   Crossing Corridor Risk Index means a number reflecting a measure of risk to the motoring public at public grade crossings along a rail corridor, calculated in accordance with the procedures in appendix D of this part, representing the average risk at each public crossing within the corridor. This risk level is determined by averaging among all public crossings within the corridor, the product of the number of predicted collisions per year and the predicted likelihood and severity of casualties resulting from those collisions at each public crossing within the corridor.

   Diagnostic team as used in this part, means a group of knowledgeable representatives of parties of interest in a highway-rail grade crossing, organized by the public authority responsible for that crossing, who, using crossing safety management principles, evaluate conditions at a grade crossing to make determinations or recommendations for the public authority concerning safety needs at that crossing.

   Effectiveness rate means a number between zero and one which represents the reduction of the likelihood of a collision at a public highway-rail grade crossing as a result of the installation of an SSM or ASM when compared to the same crossing equipped with conventional active warning systems of flashing lights and gates. Zero effectiveness means that the SSM or ASM provides no reduction in the probability of a collision, while an effectiveness rating of one means that the SSM or ASM is totally effective in reducing collisions. Measurements between zero and one reflect the percentage by which the SSM or ASM reduces the probability of a collision.

   FRA means the Federal Railroad Administration.

   Grade Crossing Inventory Form means the U.S. DOT National Highway- Rail Grade Crossing Inventory Form, FRA Form F6180.71. This form is available through the FRA's Office of Safety, or on FRA's Web site at http://www.fra.dot.gov.

   Locomotive means a piece of on-track equipment other than hi-rail, specialized maintenance, or other similar equipment--

   (1) With one or more propelling motors designed for moving other equipment;

   (2) With one or more propelling motors designed to carry freight or passenger traffic or both; or

   (3) Without propelling motors but with one or more control stands.

   Locomotive horn means a locomotive air horn, steam whistle, or similar audible warning device (see 49 CFR 229.129) mounted on a locomotive or control cab car. The terms ``locomotive horn'', ``train whistle'', ``locomotive whistle'', and ``train horn'' are used interchangeably in the railroad industry.

   Median means the portion of a divided highway separating the travel ways for traffic in opposite directions.

   MUTCD means the Manual on Traffic Control Devices published by the Federal Highway Administration.

   Nationwide Significant Risk Threshold means a number reflecting a measure of risk, calculated on a nationwide basis, which reflects the average level of risk to the motoring public at public highway-rail grade crossings equipped with flashing lights and gates and at which locomotive horns are sounded. For purposes of this rule, a risk level above the Nationwide Significant Risk Threshold represents a significant risk with respect to loss of life or serious personal injury. The Nationwide Significant Risk Threshold is calculated in accordance with the procedures in Appendix D of this part. Unless otherwise indicated, references in this part to the Nationwide Significant Risk Threshold reflect its level as last published by FRA.

   New Quiet Zone means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which routine sounding of locomotive horns is restricted pursuant to this part and which does not qualify as a Pre-Rule Quiet Zone.

   Non-traversable curb means a highway curb designed to discourage a motor vehicle from leaving the roadway. Such curb used where highway speeds do not exceed 40 miles per hour, is more than six inches but not more than nine inches high. If not equipped with reboundable, reflectorized vertical markers, paint and reflective beads should be applied to the curb for night visibility. Additional design specifications are determined by the standard traffic design specifications used by the governmental entity constructing the curb.

   Power-out indicator means a device which is capable of indicating to trains approaching a grade crossing equipped with an active warning system whether commercial electric power is activating the warning system at that crossing. This term includes remote health monitoring of grade crossing warning systems if such monitoring system is equipped to indicate power status.

   Pre-Rule Quiet Zone means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which State statutes or local ordinances restricted the routine sounding of locomotive horns, or at which locomotive horns did not sound due to formal or informal agreements between the community and the railroad or railroads, and at which such statutes, ordinances or agreements were in place and enforced or observed as of October 9, 1996 and on December 18, 2003.

   Private highway-rail crossing means, for purposes of this part, a highway-rail at grade crossing which is not a public highway-rail grade crossing.

   Public authority means the public entity responsible for safety and maintenance of the roadway crossing the railroad tracks at a public highway-rail grade crossing. This term includes the traffic control authority or law enforcement authority, or the governmental jurisdiction having responsibility for motor vehicle safety at the crossing.

   Public highway-rail grade crossing means, for purposes of this part, a location where a public highway, road, or street, including associated sidewalks or pathways, crosses one or more railroad tracks at grade. In the event a public authority maintains the roadway on at least one side of the crossing, the crossing is considered a public crossing for purposes of this part.

   Quiet zone means a segment of a rail line, within which is situated one or a number of consecutive public highway-rail crossings at which locomotive horns are not routinely sounded.

   Quiet Zone Risk Index means a measure of risk to the motoring public which reflects the Crossing Corridor Risk Index for a quiet zone, after adjustment to account for increased risk due to lack of locomotive horn use at the crossings within the quiet zone (if horns are presently sounded at the crossings), and reduced risk due to implementation, if any, of SSMs and ASMs within the quiet zone. The Quiet Zone Risk Index is calculated in accordance with the procedures in Appendix D of this part.

   Railroad means any form of non-highway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including:

   (1) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and

   [[Page 70666]]

   (2) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.

   Relevant collision means a collision at a highway-rail grade crossing between a train and a motor vehicle, excluding the following: a collision resulting from an activation failure of an active grade crossing warning system; a collision in which there is no driver in the motor vehicle; or a collision in which the highway vehicle struck the side of the train beyond the fourth locomotive unit or rail car.

   Supplementary safety measure (SSM) means a safety system or procedure established in accordance with this part which is provided by the appropriate traffic control authority or law enforcement authority responsible for safety at the highway-rail grade crossing, that is determined by the Associate Administrator to be an effective substitute for the locomotive horn in the prevention of highway-rail casualties. Appendix A to this part lists such SSMs.

   Waiver means a temporary or permanent modification of some or all of the requirements of this part as they apply to a specific party under a specific set of facts. Waiver does not refer to the process of establishing quiet zones or approval of quiet zones in accordance with the provisions of this part.

   Wayside horn means a stationary horn located at a highway rail grade crossing, designed to provide, upon the approach of a locomotive or train, audible warning to oncoming motorists of the approach of a train.

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

   Any person who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of least $500 and not more than $11,000 per violation, except that: penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $22,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Any person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. Appendix G contains a schedule of civil penalty amounts used in connection with this part.

   Sec. 222.13 Who is responsible for compliance?

   Any person, including but not limited to a railroad, contractor for a railroad, or a local or State governmental entity that performs any function covered by this part, must perform that function in accordance with this part.

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

   (a) Except as provided in paragraph (b), two parties must jointly file a petition (request) for a waiver. They are the railroad owning or controlling operations over the railroad tracks crossing the public highway-rail grade crossing and the public authority which has jurisdiction over the roadway crossing the railroad tracks.

   (b) If the railroad and the public authority cannot reach agreement to file a joint petition, either party may file a request for a waiver; however, the filing party must specify in its petition the steps it has taken in an attempt to reach agreement with the other party. The filing party must also provide the other party with a copy of the petition filed with FRA.

   (c) Each petition for waiver must be filed in accordance with 49 CFR part 211.

   (d) If the Administrator finds that a waiver of compliance with a provision of this part is in the public interest and consistent with the safety of highway and railroad users, the Administrator may grant the waiver subject to any conditions the Administrator deems necessary.

   Subpart B--Use of Locomotive Horns

   Sec. 222.21 When must a locomotive horn be used?

   (a) Except as provided in this part, the locomotive horn on the lead locomotive of a train, lite locomotive consist, individual locomotive, or lead cab car shall be sounded when such locomotive or lead car is approaching and passes through each public highway-rail grade crossing. Sounding of the locomotive horn with two long, one short, and one long blast shall be initiated at a location so as to be in accord with paragraph (b) of this section and shall be repeated or prolonged until the locomotive or train occupies the crossing. This pattern may be varied as necessary where crossings are spaced closely together.

   (b) The locomotive horn shall begin to be sounded at least 15 seconds, but no more than 20 seconds, before the locomotive enters the crossing, but in no event shall a locomotive horn sounded in accordance with paragraph (a) of this section be sounded more than one-quarter mile (1,320 feet) in advance of the nearest public highway-rail grade crossing.

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

   (a)(1) Notwithstanding any other provision of this part, a locomotive engineer may sound the locomotive horn to provide a warning to vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the locomotive engineer's sole judgment, such action is appropriate in order to prevent imminent injury, death or property damage.

   (2) Notwithstanding any other provision of this part, including provisions addressing the establishment of quiet zones, limits on the length of time in which a horn may be sounded, or installation of wayside horns within quiet zones, this part does not preclude the sounding of locomotive horns in emergency situations, nor does it impose a legal duty to sound the locomotive horn in such situations.

   (b) Nothing in this part restricts the use of the locomotive horn where active warning devices have malfunctioned and use of the horn is required by one of the following sections of this Chapter: Sec. Sec. 234.105; 234.106; or 234.107, or where warning systems are temporarily out of service during inspection, maintenance, or testing. Nothing in this part restricts the use of the locomotive horn for purposes other than highway-rail crossing safety (e.g., to announce the approach of the train to roadway workers in accordance with a program adopted under part 214 of this Chapter, or where required for other purposes under the railroad's operating rules).

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

   This rule does not require the routine sounding of locomotive horns at private highway-rail grade crossings. Except as specified in this section, this part is not meant to address the subject of private grade crossings and is not intended to affect present State or local laws or orders, or private contractual or other arrangements regarding the routine sounding of locomotive horns at private highway-rail grade crossings.

   (a) Private highway-rail grade crossings may be included in a quiet zone.

   (b) Private highway-rail grade crossings which are located in New

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   Quiet Zones and which allow access to the public, or which provide access to active industrial or commercial sites, may be included in a quiet zone only if a diagnostic team evaluates the crossing and the crossing is equipped or treated in accord with the recommendations of such diagnostic team.

   (c)(1) At a minimum, every private highway-rail grade crossing within a New Quiet Zone shall be marked by a crossbuck and a ``STOP'' sign, each of which shall conform to the standards contained in the MUTCD, and shall be equipped with advance warning signs in compliance with Sec. 222.35(c).

   (2) At a minimum, every private highway-rail grade crossing within a Pre-Rule Quiet Zone shall, by December 18, 2006, be marked by a crossbuck and a ``STOP'' sign, each of which shall conform to the standards contained in the MUTCD, and shall be equipped with advance warning signs in compliance with Sec. 222.35(c)

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

   Sec. 222.31 [Reserved]

   Silenced Horns at Individual Crossings

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

   (a) A railroad operating over an individual public highway-rail crossing, may, at its discretion, cease the sounding of the locomotive horn if the locomotive speed is 15 miles per hour or less and train crew members, or appropriately equipped flaggers, as defined in 49 CFR 234.5, flag the crossing to provide warning of approaching trains to motorists.

   (b) This section does not apply where active grade crossing warning devices have malfunctioned and use of the horn is required by 49 CFR 234.105, 234.106, or 234.107.

   Silenced Horns at Groups of Crossings--Quiet Zones

   Sec. 222.35 What are minimum requirements for quiet zones?

   The following requirements apply to quiet zones established in conformity with this part.

   (a) Minimum length. (1) The minimum length of a New Quiet Zone established under this part shall be one-half mile along the length of railroad right-of-way.

   (2) The length of a Pre-Rule Quiet Zone may continue unchanged from that which existed as of October 9, 1996. Because the addition of any crossing to a Pre-Rule Quiet Zone ends the grandfathered status of that quiet zone, the New Quiet Zone resulting from the addition of one or more crossings to a Pre-Rule Quiet Zone shall be at least one-half mile in length and shall comply with all requirements applicable to New Quiet Zones. The deletion of any crossing from a Pre-Rule Quiet Zone, with the exception of a grade separation or crossing closure, must result in a quiet zone of at least one-half mile in length in order to retain Pre-Rule Quiet Zone status.

   (3) A quiet zone may include highway-rail grade crossings on a segment of rail line crossing more than one political jurisdiction.

   (b) Active grade crossing warning devices. (1) Each public highway- rail grade crossing in a New Quiet Zone established under this subpart must be equipped, no later than the implementation date of the New Quiet Zone, with active grade crossing warning devices comprising both flashing lights and gates which control traffic over the crossing and that conform to the standards contained in the MUTCD. Such warning devices shall be equipped with constant warning time devices, if reasonably practical, and power-out indicators.

   (2) Pre-Rule Quiet Zones must retain, and may upgrade the grade crossing safety warning system which existed as of December 18, 2003. Any such upgrade shall include constant warning time devices, where reasonably practical, and power-out indicators. In no event may the grade crossing safety warning system which existed as of December 18, 2003, be downgraded. Risk reduction resulting from upgrading to flashing lights or gates may be credited in calculating the quiet zone's Quiet Zone Risk Index.

   (c) Advance warning signs. (1) Subject to paragraph (c)(2) of this section, each highway approach to every public and private highway-rail grade crossing within a Pre-Rule Quiet Zone or New Quiet Zone shall be equipped with an advance warning sign which advises the motorist that train horns are not sounded at the crossing. Such sign shall conform to the standards contained in the MUTCD issued by the Federal Highway Administration.

   (2) Each highway approach to every public and private highway-rail grade crossing in a Pre-Rule Quiet Zone shall be equipped with such advance warning signs described in paragraph (c)(1) of this section by December 18, 2006.

   (d) All private crossings within the quiet zone must be treated in accordance with this section and Sec. 222.25.

   (e) All public crossings within the quiet zone must be in compliance with requirements of the MUTCD.

   Sec. 222.37 Who may establish a quiet zone?

   (a) A public authority may establish quiet zones that are consistent with the provisions of this part. If a proposed quiet zone includes public grade crossings under the authority and control of more than one public authority (such as a county road and a State highway crossing the railroad tracks at different crossings), both public authorities must agree to establishment of the quiet zone, and must jointly, or by delegation provided to one of the authorities, take such actions as are required by this part.

   (b) A public authority may establish quiet zones irrespective of State laws covering the subject matter of sounding or silencing locomotive horns at public highway-rail grade crossings. Nothing in this part, however, is meant to affect any other applicable role of State agencies or the Federal Highway Administration in decisions regarding funding or construction priorities for grade crossing safety projects, selection of traffic control devices, or engineering standards for roadways or traffic control devices.

   (c) A State agency may provide administrative and technical services to public authorities by advising them, acting on their behalf, or acting as a central contact point in dealing with FRA; however, any public authority eligible to establish a quiet zone under this part may do so.

   Sec. 222.39 How is a quiet zone established?

   (a) Public authority designation. This paragraph (a) describes how a quiet zone may be designated by a public authority without the need for formal application to, and approval by FRA. If a public authority complies with either paragraph (a)(1), (2), or (3) of this section, and complies with the information and notification provisions of Sec. 222.43, a public authority may designate a quiet zone without the necessity for FRA review and approval.

   (1) A quiet zone may be established by implementing, at every public highway-rail grade crossing within the quiet zone, one or more SSMs identified in Appendix A of this part.

   (2) A quiet zone may be established if the Quiet Zone Risk Index is at, or below, the Nationwide Significant Risk Threshold, as follows:

   (i) If the Quiet Zone Risk Index is already at, or below, the Nationwide Significant Risk Threshold without being reduced by implementation of SSMs; or

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   (ii) If SSMs are implemented which are sufficient to reduce the Quiet Zone Risk Index to a level at, or below, the Nationwide Significant Risk Threshold.

   (3) A quiet zone may be established if SSMs are implemented which are sufficient to reduce the Quiet Zone Risk Index to a level at or below the risk level which would exist if locomotive horns sounded at all public crossings in the quiet zone.

   (b) Public authority application to FRA. (1) A public authority may apply to the Associate Administrator for approval of a quiet zone which does not meet the standards for public authority designation under paragraph (a) of this section, but in which it is proposed that one or more safety measures be implemented. Such proposed quiet zone may include only ASMs, or a combination of ASMs and SSMs at various crossings within the quiet zone. Note that an ``SSM'' which does not fully comply with the requirements for an SSM under Appendix A, is considered to be an ASM. The public authority's application must:

   (i) Contain an accurate, complete and current Grade Crossing Inventory Form for each public and private highway-rail grade crossing within the proposed quiet zone;

   (ii) Contain sufficient detail concerning the present safety measures at the public highway-rail grade crossings proposed to be included in the quiet zone to enable the Associate Administrator to evaluate their effectiveness;

   (iii) Contain detailed information as to which SSMs or ASMs are proposed to be implemented and at which public or private highway-rail grade crossings within the proposed quiet zone, including membership and recommendations of the diagnostic team, if any, which reviewed the proposed quiet zone;

   (iv) Contain a commitment to implement the proposed safety measures within the proposed quiet zone;

   (v) Demonstrate through data and analysis that the proposed implementation of these measures will cause a reduction in the Quiet Zone Risk Index to, or below, either the risk level which would exist if locomotive horns sounded at all crossings in the quiet zone or to a risk level at, or below, the Nationwide Significant Risk Threshold; and

   (vi) Be provided to the parties listed in Sec. 222.43(a)(1) in the manner specified in that section.

   (2)(i) The Associate Administrator will approve the quiet zone if, in the Associate Administrator's judgment, the public authority is in compliance with paragraph (b)(1) of this section and has satisfactorily demonstrated that the SSMs and ASMs proposed by the public authority result in a Quiet Zone Risk Index which is either:

   (A) At or below the risk level which would exist if locomotive horns sounded at all crossings in the quiet zone or

   (B) At, or below, the Nationwide Significant Risk Threshold.

   (ii) The Associate Administrator may include in any decision of approval such conditions as may be necessary to ensure that the proposed safety improvements are effective. If the Associate Administrator does not approve the quiet zone, the Associate Administrator describes in the decision the basis upon which the decision was made. A decision denying approval may be reviewed as provided in Sec. 222.57(b).

   (c) Appendix C contains guidance on how to create a quiet zone.

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

   (a) Pre-Rule Quiet Zones which qualify for automatic approval. A Pre-Rule Quiet Zone will be considered automatically approved and may remain in effect, subject to Sec. 222.51, if the Pre-Rule Quiet Zone is in compliance with Sec. 222.35 (minimum requirements for quiet zones) and Sec. 222.43 (notice and information requirements, with the exception of providing advance notice) and the Pre-Rule Quiet Zone:

   (1) Has at every public highway-rail grade crossing within the quiet zone, one or more SSMs identified in Appendix A of this part; or

   (2) The Quiet Zone Risk Index as last published by FRA is at, or below, the Nationwide Significant Risk Threshold; or

   (3) The Quiet Zone Risk Index as last published by FRA is above the Nationwide Significant Risk Threshold but less than twice the Nationwide Significant Risk Threshold and there have been no relevant collisions at any public grade crossing within the quiet zone for the five years preceding December 18, 2003.

   (b) Pre-Rule Quiet Zones which do not qualify for automatic approval. (1) If a Pre-Rule Quiet Zone does not qualify for automatic approval under paragraph (a) of this section, existing restrictions may, at the public authority's discretion, remain in place on an interim basis under the provisions of this paragraph (b) and upon compliance with Sec. 222.43 (notice and information requirements, with the exception of providing advance notice). Continuation of a quiet zone beyond the interim periods specified in this paragraph will require implementation of SSMs or ASMs in accord with Sec. 222.39.

   (2) In order to provide time for the public authority to plan for and implement quiet zones which are in compliance with the requirements of this part, a public authority may continue locomotive horn restrictions at Pre-Rule Quiet Zones which do not qualify for automatic approval for a period of five years from December 18, 2003, provided that, the public authority has, within three years of December 18, 2003, filed with the Associate Administrator a detailed plan for establishing a quiet zone under this part, including, in the case of a plan requiring approval under Sec. 222.39(b), all of the required elements of filings under that paragraph together with a timetable for implementation of safety improvements.

   (3) Locomotive horn restrictions may continue for an additional three years beyond the five year period permitted by paragraph (b)(2) of this section, if,

   (i) Prior to December 18, 2006, the appropriate State agency provides to the Associate Administrator: a comprehensive State-wide implementation plan and funding commitment for implementing improvements at Pre-Rule Quiet Zones which do not qualify for automatic approval under paragraph (a) of this section, which, when implemented, would enable them to qualify for a quiet zone under this part; and

   (ii) Prior to December 18, 2007, either physical improvements are initiated at a portion of the crossings within the quiet zone, or the appropriate State agency has participated in quiet zone improvements in one or more jurisdictions elsewhere within the State.

   (4) In the event that the safety improvements planned for the quiet zone require approval of FRA under Sec. 222.39(b), the public authority should apply for such approval prior to June 19, 2006, to assure that FRA has ample time in which to review such application prior to the end of the extension period.

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

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

   [[Page 70669]]

   or law enforcement authority having control over vehicular traffic at the crossings within the quiet zone; the landowner having control over any private crossings within the quiet zone; the State agency responsible for highway and road safety; and the Associate Administrator.

   (2)(i) Notice of the establishment of a quiet zone established under the provisions of Sec. 222.39 (New Quiet Zones) shall provide the date upon which routine locomotive horn use at grade crossings shall cease, but in no event shall the date be earlier than 21 days after the date of mailing of such written notification.

   (ii) Notice of the continuation of a quiet zone under Sec. Sec. 222.41(a) and (b) (Pre-Rule Quiet Zone) shall be served no later than December 18, 2004.

   (3) The notice shall list the grade crossings within the quiet zone, identified by both U.S. DOT National Highway-Rail Grade Crossing Inventory Number and street or highway name. The notice shall also include specific reference to the regulatory provision which provides the basis for establishment or continuation of the quiet zone, citing as appropriate, either Sec. 222.39(a)(1), 222.39(a)(2)(i), 222.39(a)(2)(ii), 222.39(a)(3), 222.39(b), or 222.41. Reference to Sec. Sec. 222.39(a)(1), (2), or (3) shall include a copy of the FRA web page containing the quiet zone data upon which the public authority relies. Reference to Sec. 222.39(b) shall include a copy of FRA's notification of approval. Reference to Sec. 222.41 shall include a statement as to how the quiet zone is in compliance with the requirements of that section and, if appropriate, shall include a copy of the FRA web page containing the quiet zone data upon which the public authority relies. The notice shall be accompanied by a certificate of service showing to whom and by what means the notice was provided.

   (b) The following must be submitted to the Associate Administrator together with the notification required in paragraph (a) of this section:

   (1) An accurate and complete Grade Crossing Inventory Form for each public and private highway-rail grade crossing within the quiet zone, dated within six months prior to designation or FRA approval of the quiet zone;

   (2) An accurate, complete and current Grade Crossing Inventory Form reflecting SSMs and ASMs in place upon establishment of the quiet zone. SSMs or ASMs that cannot be fully described on the Inventory Form shall be separately described;

   (3) The name and title of the person responsible for monitoring compliance with the requirements of this part and the manner in which that person can be contacted;

   (4) A list of all parties notified in accordance with paragraph (a) of this section, together with copies of the certificates of service showing to whom and by what means the notice was provided; and

   (5) A statement signed by the chief executive officer of each public authority establishing or continuing a quiet zone under this part, in which the official shall certify that responsible officials of the public authority have reviewed documentation prepared by or for FRA, and filed in Docket No. FRA-1999-6439, sufficient to make an informed decision regarding the advisability of establishing the quiet zone. FRA documents which may be of interest are found on FRA's Web site at http://www.fra.dot.gov.

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

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

   Sec. 222.47 What periodic updates are required?

   (a) Quiet zones with SSMs at each public crossing. This paragraph addresses quiet zones established pursuant to Sec. 222.39(a)(1) and Sec. 222.41(a)(1) (quiet zones with an SSM implemented at every public crossing within the quiet zone). Between 4\1/2\ and 5 years after the date of the original quiet zone implementation notice provided by the public authority to the FRA and relevant railroads under Sec. 222.43(a), and between 4\1/2\ and 5 years after the last affirmation under this section, the public authority must:

   (1) Affirm in writing to the Associate Administrator that the SSMs implemented within the quiet zone continue to conform to the requirements of Appendix A of this part. Copies of such affirmation must be provided to the parties identified in Sec. 222.43(a) by certified mail, return receipt requested; and

   (2) Provide to the Associate Administrator an up-to-date, accurate, and complete Grade Crossing Inventory Form for each public and private highway-rail grade crossing within the quiet zone.

   (b) Quiet zones which do not have a supplementary safety measure at each public crossing. This paragraph addresses quiet zones established pursuant to Sec. Sec. 222.39(a)(2) and (a)(3), Sec. 222.39(b) and Sec. Sec. 222.41(a)(2) and (a)(3) (quiet zones which do not have an SSM at every public crossing within the quiet zone). Between 2\1/2\ and 3 years after the date of the original quiet zone implementation notice provided by the public authority to the FRA and relevant railroads under Sec. 222.43(a), and between 2\1/2\ and 3 years after the last affirmation under this section, the public authority must:

   (1) Affirm in writing to the Associate Administrator that all SSMs and ASMs implemented within the quiet zone continue to conform to the requirements of Appendices A and B of this part or the terms of the Quiet Zone approval. Copies of such notification must be provided to the parties identified in Sec. 222.43(a)(1) by certified mail, return receipt requested; and

   (2) Must provide to the Associate Administrator an up-to-date, accurate, and complete Grade Crossing Inventory Form for each public and private highway-rail grade crossing within the quiet zone.

   Sec. 222.49 Who may file Grade Crossing Inventory Forms?

   (a) Grade Crossing Inventory Forms required to be filed with the Associate Administrator in accordance with Sec. Sec. 222.43 and 222.47 may be filed by the public authority if, for any reason, such forms are not timely submitted by the State and railroad.

   (b) Within 30 days after receipt of a written request of the public authority, the railroad owning the line of railroad that includes public or private highway rail grade crossings within the quiet zone or proposed quiet zone shall provide to the State and public authority sufficient current information regarding the grade crossing and the railroad's operations over the grade crossing to enable the State and public authority to complete the Grade Crossing Inventory Form.

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

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

   [[Page 70670]]

   pursuant to Sec. Sec. 222.39(a)(1) (quiet zones established by having an SSM at every public crossing within the quiet zone) and Sec. Sec. 222.39(a)(3) and (b)(2)(i) (quiet zones established based on the risk level having been reduced to a level fully compensating for the absence of the train horn by use of SSMs). FRA will notify each public authority of the Quiet Zone Risk Index for the preceding calendar year for each such quiet zone in its jurisdiction.

   (2) Actions to be taken by public authority to retain quiet zone. If the Quiet Zone Risk Index is above the Nationwide Significant Risk Threshold, the quiet zone will terminate six months from the date of receipt of notification from FRA that the Quiet Zone Risk Index exceeds the Nationwide Significant Risk Threshold, unless the public authority takes the following actions:

   (i) Within six months after the date of receipt of notification from FRA that the Quiet Zone Risk Index exceeds the Nationwide Significant Risk Threshold, provide to the Associate Administrator a written commitment to lower the potential risk to the traveling public at the crossings within the quiet zone to a level at, or below, the Nationwide Significant Risk Threshold or to a level fully compensating for the absence of the train horn. Included in the commitment statement shall be a discussion of the specific steps to be taken by the public authority to increase safety at the crossings within the quiet zone; and

   (ii) Within three years after the date of receipt of notification from FRA that the Quiet Zone Risk Index exceeds the Nationwide Significant Risk Threshold, complete implementation of SSMs or ASMs sufficient to reduce the Quiet Zone Risk Index to a level at, or below, the Nationwide Significant Risk Threshold, or to a level that fully compensates for the absence of the train horn, and receive approval from the Associate Administrator, under the procedures set forth in Sec. 222.39(b), for continuation of the quiet zone. If the Quiet Zone Risk Index is reduced to a level that fully compensates for the absence of the train horn, the quiet zone will be considered to have been established pursuant to Sec. 222.39(a)(3) and subsequent annual risk reviews will not be conducted for that quiet zone.

   (iii) Failure to comply with paragraph (a)(2)(i) of this section shall result in the termination of the quiet zone six months after the date of receipt of notification from FRA that the Quiet Zone Risk Index exceeds the Nationwide Significant Risk Threshold. Failure to comply with paragraph (a)(2)(ii) of this section shall result in the termination of the quiet zone three years after the date of receipt of notification from FRA that the Quiet Zone Risk Index exceeds the Nationwide Significant Risk Threshold.

   (b) Pre-Rule Quiet Zone--Annual risk review. (1) FRA will annually calculate the Quiet Zone Risk Index for each Pre-Rule Quiet Zone that qualified for automatic approval pursuant to Sec. Sec. 222.41(a)(2) and (a)(3). FRA will notify each public authority of the Quiet Zone Risk Index for the preceding calendar year for each such quiet zone in its jurisdiction. FRA will also notify each public authority if a relevant collision occurred at a grade crossing within the quiet zone during the preceding calendar year.

   (2) Pre-Rule Quiet Zone authorized under Sec. 222.41(a)(2). (i) If a Pre-Rule Quiet Zone originally qualified for automatic approval because the Quiet Zone Risk Index was at, or below, the Nationwide Significant Risk Threshold (Sec. 222.41(a)(2)), the quiet zone may continue unchanged if the Quiet Zone Risk Index as last calculated by FRA remains at, or below, the Nationwide Significant Risk Threshold.

   (ii) If the Quiet Zone Risk Index as last calculated by FRA is above the Nationwide Significant Risk Threshold, but is lower than twice the Nationwide Significant Risk Threshold and no relevant collisions have occurred at crossings within the quiet zone within the five years preceding the annual risk review, then the quiet zone may continue as though it originally received automatic approval pursuant to Sec. 222.41(a)(3).

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

   (3) Pre-Rule Quiet Zone authorized under Sec. 222.41(a)(3). (i) If a Pre-Rule Quiet Zone originally qualified for automatic approval because the Quiet Zone Risk Index was above the Nationwide Significant Risk Threshold but was below twice the Nationwide Significant Risk Threshold and no relevant collisions had occurred within the five year qualifying period (Sec. 222.41(a)(3)), the quiet zone may continue unchanged if the Quiet Zone Risk Index as last calculated by FRA remains below twice the Nationwide Significant Risk Threshold and no relevant collisions occurred at a public grade crossing within the quiet zone during the preceding calendar year.

   (ii) If the Quiet Zone Risk Index as last calculated by FRA is at, or above, twice the Nationwide Significant Risk Threshold, or if a relevant collision occurred at a public grade crossing within the quiet zone during the preceding calendar year, the quiet zone will terminate six months after the date of receipt of notification from FRA that the Quiet Zone Risk Index is at, or exceeds twice the Nationwide Significant Risk Threshold or that a relevant collision occurred at a crossing within the quiet zone, unless the public authority takes the actions specified in paragraph (b)(4) of this section.

   (4) Actions to be taken by the public authority to retain a quiet zone. (i) Within six months after the date of FRA notification, the public authority shall provide to the Associate Administrator a written commitment to lower the potential risk to the traveling public at the crossings within the quiet zone by reducing the Quiet Zone Risk Index to a level at, or below, the Nationwide Significant Risk Threshold or to a level that fully compensates for the absence of the train horn. Included in the commitment statement shall be a discussion of the specific steps to be taken by the public authority to increase safety at the public crossings within the quiet zone; and

   (ii) Within three years of the date of FRA notification, the public authority shall complete implementation of SSMs or ASMs sufficient to reduce the Quiet Zone Risk Index to a level at, or below, the Nationwide Significant Risk Threshold, or to a level that fully compensates for the absence of the train horn, and receive approval from the Associate Administrator, under the procedures set forth in Sec. 222.39(b), for continuation of the quiet zone. If the Quiet Zone Risk Index is reduced to a level that fully compensates for the absence of the train horn, the quiet zone will be considered to have been established pursuant to Sec. 222.39(a)(3) and subsequent annual risk reviews will not be conducted for that quiet zone.

   (iii) Failure to comply with paragraph (b)(4)(i) of this section shall result in the termination of the quiet zone six months after the date of receipt of notification from FRA. Failure to comply with paragraph (b)(4)(ii) of this section shall result in the termination of the quiet

   [[Page 70671]]

   zone three years after the date of receipt of notification from FRA.

   (c) Review at FRA's initiative. The Associate Administrator may, at any time, review the status of any quiet zone. If the Associate Administrator makes a preliminary determination that safety systems and measures do not fully compensate for the absence of the locomotive horn, or that there is a significant risk with respect to loss of life or serious personal injury, the Associate Administrator will provide written notice to the public authority and all parties listed in Sec. 222.43(a) and will publish notice of the determination in the Federal Register. After providing an opportunity for comment, the Associate Administrator may require that additional safety measures be taken or that the quiet zone be terminated. The Associate Administrator's decision may be challenged in accordance with Sec. 222.57(b). Nothing in this section is intended to limit the Administrator's emergency authority under 49 U.S.C. 20104 and 49 CFR part 211.

   (d) Notification of termination. In the event that a quiet zone is terminated under the provisions of this section, it shall be the responsibility of the public authority to notify all parties listed in Sec. 222.43(a) and in the manner specified in Sec. 222.43(a), of such termination.

   (e) Requirement to sound the locomotive horn. Upon receipt of notification pursuant to paragraph (d), or upon receipt of notification from FRA that the quiet zone is being terminated, railroads shall, within seven days, and in accordance with the provisions of this part, sound the locomotive horn when approaching and passing through every public highway-rail grade crossing within the former quiet zone.

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

   (a) Approved SSMs are listed in appendix A of this part.

   (b) Additional ASMs that may be included in a request for FRA approval of a quiet zone under Sec. 222.39(b) are listed in appendix B of this part.

   (c) The following do not, individually or in combination, constitute SSMs or ASMs: Standard traffic control device arrangements such as reflectorized crossbucks, STOP signs, flashing lights, or flashing lights with gates that do not completely block travel over the line of railroad, or traffic signals.

   Sec. 222.55 How are new supplementary or alternative safety measures approved?

   (a) The Associate Administrator may add new SSMs and standards to appendix A and new ASMs and standards to appendix B of this part when the Associate Administrator determines that such measures or standards are an effective substitute for the locomotive horn in the prevention of collisions and casualties at public highway-rail grade crossings.

   (b) Interested parties may apply for approval from the Associate Administrator to demonstrate proposed new SSMs or ASMs to determine whether they are effective substitutes for the locomotive horn in the prevention of collisions and casualties at public highway-rail grade crossings.

   (c) The Associate Administrator may, after notice and opportunity for comment, order railroad carriers operating over a public highway- rail grade crossing or crossings to temporarily cease the sounding of locomotive horns at such crossings to demonstrate proposed new SSMs or ASMs, provided that such proposed new SSMs or ASMs have been subject to prior testing and evaluation. In issuing such order, the Associate Administrator may impose any conditions or limitations on such use of the proposed new SSMs or ASMs which the Associate Administrator deems necessary in order to provide the level of safety at least equivalent to that provided by the locomotive horn.

   (d) Upon completion of a demonstration of proposed new SSMs or ASMs, interested parties may apply to the Associate Administrator for their approval. Applications for approval shall be in writing and shall include the following:

   (1) The name and address of the applicant;

   (2) A description and design of the proposed new SSM or ASM;

   (3) A description and results of the demonstration project in which the proposed SSMs or ASMs were tested;

   (4) Estimated costs of the proposed new SSM or ASM; and

   (5) Any other information deemed necessary.

   (e) If the Associate Administrator is satisfied that the proposed safety measure fully compensates for the absence of the warning provided by the locomotive horn, the Associate Administrator will approve its use as an SSM to be used in the same manner as the measures listed in Appendix A of this part, or the Associate Administrator, may approve its use as an ASM to be used in the same manner as the measures listed in Appendix B of this part. The Associate Administrator may impose any conditions or limitations on use of the SSMs or ASMs which the Associate Administrator deems necessary in order to provide the level of safety at least equivalent to that provided by the locomotive horn.

   (f) If the Associate Administrator approves a new SSM or ASM, the Associate Administrator will: notify the applicant, if any; publish notice of such action in the Federal Register; and add the measure to the list of approved SSMs or ASMs.

   (g) A public authority or other interested party may appeal to the Administrator from a decision by the Associate Administrator granting or denying an application for approval of a proposed SSM or ASM or the conditions or limitations imposed on its use in accordance with Sec. 222.57 .

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

   (a) A public authority or other interested party may petition the Administrator for review of any decision by the Associate Administrator granting or denying an application for approval of a new SSM or ASM under Sec. 222.55. The petition must be filed within 60 days of the decision to be reviewed, specify the grounds for the requested relief, and be served upon all parties identified in Sec. 222.43(a). Unless the Administrator specifically provides otherwise, and gives notice to the petitioner or publishes a notice in the Federal Register, the filing of a petition under this paragraph does not stay the effectiveness of the action sought to be reviewed. The Administrator may reaffirm, modify, or revoke the decision of the Associate Administrator without further proceedings and shall notify the petitioner and other interested parties in writing or by publishing a notice in the Federal Register.

   (b) A public authority may challenge a decision by the Associate Administrator to deny an application by that authority for approval of a quiet zone, or to require additional safety measures, or that a quiet zone be terminated, by filing a petition for reconsideration with the Associate Administrator. The petition must specify the grounds for the requested relief, be filed within 60 days of the decision to be reconsidered, and be served upon all parties identified in Sec. 222.43(a). Upon receipt of a timely and proper petition, the Associate Administrator will provide the petitioner an opportunity to submit additional materials and for an informal hearing. Upon review of the additional materials and completion of any hearing requested, the Associate Administrator shall issue a decision on the petition that will be administratively final.

   [[Page 70672]]

   Sec. 222.59 When may a wayside horn be used?

   (a) Notwithstanding any provisions in this part to the contrary:

   (1) A wayside horn conforming to the requirements of Appendix E of this part may be used in lieu of a locomotive horn at any highway-rail grade crossing equipped with an active warning system consisting of, at a minimum, flashing lights and gates; and

   (2) A wayside horn conforming to the requirements of Appendix E of this part may be installed within a quiet zone. For purposes of calculating the length of a quiet zone, the presence of a wayside horn at a highway-grade crossing within a quiet zone shall be considered in the same manner as a grade crossing treated with an SSM. A grade crossing equipped with a wayside horn shall not be considered in calculating the Quiet Zone Risk Index or Crossing Corridor Risk Index.

   (b) A public authority installing a wayside horn at a grade crossing within a quiet zone shall identify by both the U.S. DOT National Highway-Rail Grade Crossing Inventory Number and street or highway name the grade crossing equipped with such wayside horn in its notice to railroads and other parties required by Sec. 222.43.

   (c) A public authority installing a wayside horn at a grade crossing outside a quiet zone shall provide written notice to the Associate Administrator and to each railroad operating over the grade crossing that a wayside horn is being installed and the date on which the wayside horn will be operational. The grade crossing shall be identified by both the U.S. DOT National Highway-Rail Grade Crossing Inventory Number and street or highway name. The public authority shall provide notification of the operational date at least 21 days in advance.

   (d) A railroad operating over a grade crossing equipped with an operational wayside horn installed within a quiet zone pursuant to this section shall cease routine locomotive horn use at the grade crossing. A railroad operating over a grade crossing equipped with an operational wayside horn installed outside of a quiet zone may cease routine locomotive horn use by agreement with the public authority.

   Appendix A to Part 222--Approved Supplementary Safety Measures

   1. Temporary Closure of a Public Highway-Rail Grade Crossing: Close the crossing to highway traffic during designated quiet periods.

   Effectiveness: 1.0.

   Because an effective closure system prevents vehicle entrance onto the crossing, the probability of a collision with a train at the crossing is zero during the period the crossing is closed. Effectiveness would therefore equal 1. However, analysis should take into consideration that traffic would need to be redistributed among adjacent crossings or grade separations for the purpose of estimating risk following the silencing of train horns, unless the particular ``closure'' was accomplished by a grade separation.

   Required:

   1. The closure system must completely block highway traffic from entering the crossing.

   2. The crossing must be closed during the same hours every day.

   3. The crossing may only be closed during one period each 24- hours.

   4. Barricades and signs used for closure of the roadway shall conform to the standards contained in the MUTCD.

   5. Daily activation and deactivation of the system is the responsibility of the public authority responsible for maintenance of the street or highway crossing the railroad. The entity may provide for third party activation and deactivation; however, the public authority shall remain fully responsible for compliance with the requirements of this part.

   6. The system must be tamper and vandal resistant to the same extent as other traffic control devices.

      Recommended:

      Signs for alternate highway traffic routes should be erected in accordance with MUTCD and State and local standards and should inform pedestrians and motorists that the streets are closed, the period for which they are closed, and that alternate routes must be used.

      2. Four-Quadrant Gate System: Install gates at a crossing sufficient to fully block highway traffic from entering the crossing when the gates are lowered, including at least one gate for each direction of traffic on each approach.

      Effectiveness:

      Four-quadrant gates only, no presence detection: .82.

      Four-quadrant gates only, with presence detection: .77.

      Four-quadrant gates with traffic channelization of at least 60 feet (with or without presence detection): .92.

      Required:

      Four-quadrant gate systems shall conform to the standards for four-quadrant gates contained in the MUTCD, and shall in addition comply with the following:

   1. 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.

   2. 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.

   3. Crossing warning systems must be equipped with power-out indicators.

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

   4. 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.

   5. ``Break-away'' channelization devices must be frequently monitored to replace broken elements.

      Recommendations for new installations only:

   6. 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.

   7. A determination should be made as to whether it is necessary to provide vehicle presence detectors (VPDs) to open or keep open the exit gates until all vehicles are clear of the crossing. VPD should be installed on one or both sides of the crossing and/or in the surface between the rails closest to the field. Among the factors that should be considered are the presence of intersecting roadways near the crossing, the priority that the traffic crossing the railroad is given at such intersections, the types of traffic control devices at those intersections, and the presence and timing of traffic signal preemption.

   8. 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.

   9. Remote monitoring (in addition to power-out indicators, which are required) of the status of these crossing systems is preferable. This is especially important in those areas in which qualified railroad signal department personnel are not readily available.

      3. Gates with Medians or Channelization Devices: Install medians or channelization devices on both highway approaches to a public highway-rail grade crossing denying to the highway user the option of

      [[Page 70673]]

      circumventing the approach lane gates by switching into the opposing (oncoming) traffic lane in order to drive around lowered gates to cross the tracks.

      Effectiveness:

      Channelization devices--.75

      Non-traversable curbs with or without channelization devices--.80.

      Required:

   1. 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.

   2. 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.

   3. Intersections of two or more streets, or a street and an alley, that are within 60 feet of the gate arm must be closed or relocated. Driveways for private, residential properties (up to four units) within 60 feet of the gate arm are not considered to be intersections under this part and need not be closed. However, consideration should be given to taking steps to ensure that motorists exiting the driveways are not able to move against the flow of traffic to circumvent the purpose of the median and drive around lowered gates. This may be accomplished by the posting of ``no left turn'' signs or other means of notification. For the purpose of this part, driveways accessing commercial properties are considered to be intersections and are not allowed. It should be noted that if a public authority can not comply with the 60 feet or 100 feet requirement, it may apply to FRA for a quiet zone under Sec. 222.39(b), ``Public authority application to FRA.'' Such arrangement may qualify for a risk reduction credit in calculation of the Quiet Zone Risk Index. Similarly, if a public authority finds that it is feasible to only provide channelization on one approach to the crossing, it may also apply to FRA for approval under Sec. 222.39(b). Such an arrangement may also qualify for a risk reduction credit in calculation of the Quiet Zone Risk Index.

   4. 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.

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

   6. 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.

   7. ``Break-away'' channelization devices must be frequently monitored to replace broken elements

      4. One Way Street with Gate(s): Gate(s) must be installed such that all approaching highway lanes to the public highway-rail grade crossing are completely blocked.

      Effectiveness: .82.

      Required:

   1. Gate arms on the approach side of the crossing should extend across the road to within one foot of the far edge of the pavement. If a gate is used on each side of the road, the gap between the ends of the gates when both are in the lowered, or down, position must be no more than two feet.

   2. 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.

   3. 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.

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

      Appendix B to Part 222--Alternative Safety Measures

      Introduction

      A public authority seeking approval of a quiet zone under public authority application to FRA (Sec. 222.39(b)) may include in its proposal ASMs listed in this appendix. Credit will be given for closing of public highway-rail grade crossings provided the baseline severity risk index at other crossings is appropriately adjusted by increasing traffic counts at neighboring crossings as input data to the severity risk formula (except to the extent that nearby grade separations are expected to carry that traffic). FRA Regional Managers for Grade Crossing Safety can assist in performing the required analysis.

      Appendix B addresses two types of ASMs: Modified SSMs and non- engineering ASMs. Modified SSMs are SSMs that do not fully comply with the provisions listed in appendix A. Depending on the resulting configuration, non-compliant SSMs may still provide a substantial reduction in risk and can contribute to the creation of quiet zones. Non-engineering ASMs are programmed enforcement, public education and awareness, and photo enforcement that may be used to reduce risk in the creation of a quiet zone. The public authority must receive written FRA approval of the quiet zone application prior to the silencing of train horns. The public authority is strongly encouraged to submit the application to FRA for review and comment before the appendix B treatments are initiated to ensure that the proposed modified SSMs and/or non-engineering ASMs will meet with FRA's approval. If non-engineering ASMs are proposed, the public authority may wish to confirm with FRA that the sampling methods are appropriate.

      I. Modified SSMs

   1. If there are unique circumstances pertaining to a specific crossing or number of crossings which prevent SSMs from being fully compliant with all of the SSM requirements listed in Appendix A, those SSM requirements may be adjusted or revised. In that case, the SSM, as modified by the pubic authority, will be treated as an ASM under this Appendix B, and not as an SSM under Appendix A. FRA will review the safety effects of the modified SSMs and the proposed quiet zone, and will approve the proposal if it finds that the Quiet Zone Risk Index is reduced to the level that would be expected with the sounding of the train horns or to a level at, or below the Nationwide Significant Risk Threshold, whichever is greater.

   2. A public authority may provide estimates of effectiveness based upon adjustments from the effectiveness levels provided in Appendix A or from actual field data derived from the crossing sites. The specific crossing and applied mitigation measure will be assessed to determine the effectiveness of the modified SSM. FRA will continue to develop and make available effectiveness estimates and data from experience under the final rule.

   3. If one or more of the requirements associated with an SSM as listed in Appendix A is revised or deleted, data or analysis supporting the revision or deletion must be provided to FRA for review. The following engineering types of ASMs may be included in a proposal for approval by FRA for creation of a quiet zone: (1) Temporary Closure of a Public Highway-Rail Grade Crossing, (2) Four- Quadrant Gate System, (3) Gates With Medians or Channelization Devices, and (4) One-Way Street With Gate(s).

      II. Non-Engineering ASMs

1. The following non-engineering ASMs may be used in the creation of a Quiet Zone: (The method for determining the effectiveness of the non-engineering ASMs, the implementation of the quiet zone, subsequent monitoring requirements, and provision for dealing with an unacceptable effectiveness rate is provided in paragraph B.

   1. Programmed Enforcement: Community and law enforcement officials commit to a systematic and measurable crossing monitoring and traffic law enforcement program at the public highway-rail grade crossing, alone or in combination with the Public Education and Awareness ASM.

   Required:

   1. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s); and

   2. A law enforcement effort must be defined, established and continued along with continual or regular monitoring that

      [[Page 70674]]

      provides a statistically valid violation rate that indicates the effectiveness of the law enforcement effort.

      2. Public Education and Awareness: Conduct, alone or in combination with programmed law enforcement, a program of public education and awareness directed at motor vehicle drivers, pedestrians and residents near the railroad to emphasize the risks associated with public highway-rail grade crossings and applicable requirements of state and local traffic laws at those crossings.

      Requirements:

   1. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s); and

   2. A sustainable public education and awareness program must be defined, established and continued along with continual or regular monitoring that provides a statistically valid violation rate that indicates the effectiveness of the law enforcement effort. This program shall be provided and supported primarily through local resources.

      3. Photo Enforcement: This ASM entails automated means of gathering valid photographic or video evidence of traffic law violations at a public highway-rail grade crossing together with follow-through by law enforcement and the judiciary.

      Required:

   1. State law authorizing use of photographic or video evidence both to bring charges and sustain the burden of proof that a violation of traffic laws concerning public highway-rail grade crossings has occurred, accompanied by commitment of administrative, law enforcement and judicial officers to enforce the law;

   2. Sanction includes sufficient minimum fine (e.g., $100 for a first offense, ``points'' toward license suspension or revocation) to deter violations;

   3. Means to reliably detect violations (e.g., loop detectors, video imaging technology);

   4. Photographic or video equipment deployed to capture images sufficient to document the violation (including the face of the driver, if required to charge or convict under state law).

      Note: This does not require that each crossing be continually monitored. The objective of this option is deterrence, which may be accomplished by moving photo/video equipment among several crossing locations, as long as the motorist perceives the strong possibility that a violation will lead to sanctions. Each location must appear identical to the motorist, whether or not surveillance equipment is actually placed there at the particular time. Surveillance equipment should be in place and operating at each crossing at least 25 percent of each calendar quarter.

   5. Appropriate integration, testing and maintenance of the system to provide evidence supporting enforcement;

   6. Public awareness efforts designed to reinforce photo enforcement and alert motorists to the absence of train horns;

   7. Subject to audit, a statistically valid baseline violation rate must be established through automated or systematic manual monitoring or sampling at the subject crossing(s); and

   8. A law enforcement effort must be defined, established and continued along with continual or regular monitoring.

2. The effectiveness of an ASM will be determined as follows:

   1. Establish the quarterly (3 months) baseline violation rates for each crossing in the proposed quiet zone.

   1. A violation in this context refers to a motorist not complying with the automatic warning devices at the crossing (not stopping for the flashing lights and driving over the crossing after the gate arms have started to descend, or driving around the lowered gate arms). A violation does not have to result in a traffic citation for the violation to be considered.

   2. Violation data may be obtained by any method that can be shown to provide a statistically valid sample. This may include the use of video cameras, other technologies (e.g. inductive loops), or manual observations that capture driver behavior when the automatic warning devices are operating.

   3. If data is not collected continuously during the quarter, sufficient detail must be provided in the application in order to validate that the methodology used results in a statistically valid sample. FRA recommends that at least a minimum of 600 samples (one sample equals one gate activation) be collected during the baseline and subsequent quarterly sample periods.

   4. The sampling methodology must take measures to avoid biases in their sampling technique. Potential sampling biases could include: sampling on certain days of the week but not others; sampling during certain times of the day but not others; sampling immediately after implementation of an ASM while the public is still going through an adjustment period; or applying one sample method for the baseline rate and another for the new rate.

   5. The baseline violation rate should be expressed as the number of violations per gate activations in order to normalize for unequal gate activations during subsequent data collection periods.

   6. All subsequent quarterly violation rate calculations must use the same methodology as in this paragraph unless FRA authorizes another methodology.

   2. The ASM should then be initiated for each crossing. Train horns are still being sounded during this time period.

   3. In the calendar quarter following initiation of the ASM, determine a new quarterly violation rate using the same methodology as in paragraph (1) above.

   4. Determine the violation rate reduction for each crossing by the following formula:

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

   5. Determined the effectiveness rate of the ASM for each crossing by multiplying the violation rate reduction by .78.

   6. Using the effectiveness rates for each crossing treated by an ASM, determine the Quiet Zone Risk Index. If and when the Quiet Zone Risk Index for the proposed quiet zone has been reduced to either the risk level which would exist if locomotive horns sounded at all crossings in quiet zone or to a risk level below the Nationwide Significant Risk Threshold, the public authority may apply to FRA for approval of the quiet zone. Upon receiving written approval of the quiet zone application from FRA, the public authority may then proceed with notifications and implementation of the quiet zone.

   7. Violation rates must be monitored for the next two calendar quarters and every second quarter thereafter. If after five years from the implementation of the quiet zone, the violation rate for any quarter has never exceeded the violation rate that was used to determine the effectiveness rate that was approved by FRA, violation rates may be monitored for one quarter per year.

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

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

   Introduction

   This Guide to Establishing Quiet Zones (Guide) is divided into four sections in order to address the variety of methods and conditions that affect the establishment of quiet zones under this rule.

   Section I of the Guide provides an overview of the different ways in which a quiet zone may be established under this rule. This includes a brief discussion on the safety thresholds that must be attained in order for train horns to be silenced and the relative merits of each. It also includes the two general methods that may be used to reduce risk in the proposed quiet zone, and the different impacts that the methods have on the quiet zone implementation process.

   Section II of the Guide provides information on establishing New Quiet Zones. A New Quiet Zone is one at which train horns are currently being sounded at crossings. The Public Authority Designation and Public Authority Application to FRA methods will be discussed in depth.

   Section III of the Guide provides information on establishing Pre-Rule Quiet Zones. A Pre-Rule Quiet Zone is one where train horns were not routinely sounded as of October 9, 1996 and December 18, 2003. The differences between New and Pre-Rule Quiet Zones will be explained. Public Authority Designation and Public Authority Application to FRA methods also apply to Pre-Rule Quiet Zones.

   Section IV of the Guide deals with the required notifications that must be provided

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   by public authorities when establishing both New and continuing Pre- Rule Quiet Zones.

   Section V of the Guide provides examples of quiet zone implementation.

   Section I--Overview

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

1. Qualifying Conditions

   One of the following four conditions or scenarios must be met in order to show that the lack of the train horn does not present a significant risk, or that the significant risk has been compensated for by other means:

   1. One or more SSMs as identified in Appendix A are installed at each public crossing in the quiet zone; or

   2. The Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold without implementation of additional safety measures at any crossings in the quiet zone; or

   3. Additional safety measures are implemented at selected crossings resulting in the Quiet Zone Risk Index being reduced to a level equal to, or less than, the Nationwide Significant Risk Threshold; or

   4. Additional safety measures are taken at selected crossings resulting in the Quiet Zone Risk Index being reduced to at least the level of risk that would exist if train horns were sounded at every public crossing in the quiet zone.

   It is important to consider the implications of each approach before deciding which one to use. If a quiet zone is qualified based on reference to the Nationwide Significant Risk Threshold (i.e. the Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold--see the second and third scenarios above), then an annual review will be done by FRA to determine if the Quiet Zone Risk Index remains equal to, or less than, the Nationwide Significant Risk Threshold. Since the Nationwide Significant Risk Threshold and the Quiet Zone Risk Index may change from year to year, there is no guarantee that the quiet zone will remain qualified. The circumstances that cause the disqualification may not be subject to the control of the public authority. For example, an overall national improvement in safety at gated crossings may cause the Nationwide Significant Risk Threshold to fall. This may cause the Quiet Zone Risk Index to become greater than the Nationwide Significant Risk Threshold. If the quiet zone is no longer qualified, then the public authority will have to take additional measures, and may incur additional costs that might not have been budgeted, to once again lower the Quiet Zone Risk Index to at least the Nationwide Significant Risk Threshold in order to retain the quiet zone. Therefore, while the initial cost to implement a quiet zone under the second or third scenario may be lower than the other options, these scenarios also carry a degree of uncertainty about the quiet zone's continued existence.

   The use of the first or fourth scenarios reduces the risk level to at least the level that would exist if train horns were sounding in the quiet zone. These methods may have higher initial costs because more safety measures may be necessary in order to achieve the needed risk reduction. Despite the possibility of greater initial costs, there are several benefits to these methods. The installation of SSMs at every crossing will provide the greatest safety benefit of any of the methods that may be used to initiate a quiet zone. With both of these methods (first and fourth scenarios), the public authority will never need to be concerned about the Nationwide Significant Risk Threshold, annual reviews of the Quiet Zone Risk Index, or failing to be qualified because the Quiet Zone Risk Index is higher than the Nationwide Significant Risk Threshold. Public authorities are strongly encouraged to carefully consider both the pros and cons of all of the methods and to choose the method that will best meet the needs of its citizens by providing a safer and quieter community.

   For the purposes of this Guide, the term ``Risk Index with Horns'' is used to represent the level of risk that would exist if train horns were sounded at every public crossing in the proposed quiet zone. If a public authority decides that it would like to fully compensate for the lack of a train horn and not install SSMs at each public crossing in the quiet zone, it must reduce the Quiet Zone Risk Index to a level that is equal to, or less than, the Risk Index with Horns. The Risk Index with Horns is similar to the Nationwide Significant Risk Threshold in that both are targets that must be reached in order to establish a quiet zone under the rule. Quiet zones that are established by reducing the Quiet Zone Risk Index to at least the level of the Nationwide Significant Risk Threshold will be reviewed annually by FRA to determine if it still qualifies under the rule to retain the quiet zone. Quiet zones that are established by reducing the Quiet Zone Risk Index to at least the level of the Risk Index with Horns will not be subject to annual reviews.

   The use of FRA's web-based Quiet Zone Calculator is recommended to aid in the decision making process (http://www.fra.dot.gov/Content3.asp?P=1337 ). The Quiet Zone Calculator will allow the

   public authority to consider a variety of options in determining which SSMs make the most sense. It will also perform the necessary calculations used to determine the existing risk level and whether enough risk has been mitigated in order to create a quiet zone under this rule.

2. Risk Reduction Methods

   FRA has established two general methods to reduce risk in order to have a quiet zone qualify under this rule. The method chosen impacts the manner in which the quiet zone is implemented.

   1. Public Authority Designation (SSMs)--The Public Authority Designation method (Sec. 222.39(a)) involves the use of SSMs (see appendix A) at some or all crossings within the quiet zone. The use of only SSMs to reduce risk will allow a public authority to designate a quiet zone without approval from FRA. If the public authority installs SSM's at every crossing within the quiet zone, it need not demonstrate that they will reduce the risk sufficiently in order to qualify under the rule since FRA has already assessed the ability of the SSMs to reduce risk. However, if only SSMs are installed within the quiet zone, but not at every crossing, the public authority must calculate that sufficient risk reduction will be accomplished by the SSMs. Once the improvements are made, the public authority must make the required notifications, and the quiet zone may be implemented. FRA does not need to approve the plan as it has already assessed the ability of the SSMs to reduce risk.

   2. Public Authority Application to FRA (ASMs)--The Public Authority Application to FRA method (Sec. 222.39(b)) involves the use of ASMs (see appendix B). ASMs include both modified SSMs that do not fully comply with the provisions found in Appendix A (e.g. shorter than required traffic channelization devices), and non- engineering ASMs such as programmed law enforcement. If the use of ASMs (or a combination of ASMs, SSMs, and modified SSMs) is elected to reduce risk, then the public authority must apply to FRA for approval of the quiet zone. The application must contain sufficient data and analysis to confirm that the proposed ASMs do indeed provide the necessary risk reduction. FRA will review the application and will issue a formal approval if it determines that risk is reduced to a level that is necessary in order to comply with the rule. Once FRA approval has been received and the safety measures fully implemented, the public authority would then proceed to make the necessary notifications, and the quiet zone may be implemented. The use of non-engineering ASMs will require continued monitoring and analysis throughout the existence of the quiet zone to ensure that risk continues to be reduced.

   3. Calculating Risk Reduction--The following should be noted when calculating risk reductions in association with the establishment of a quiet zone. This information pertains to both New Quiet Zones and Pre-Rule Quiet Zones and to the Public Authority Designation and Public Authority Application to FRA methods.

   Crossing closures: If any public crossing within the quiet zone is proposed to be closed, include that crossing when calculating the Risk Index with Horns. Do not include the crossing to be closed when calculating the Quiet Zone Risk Index since the crossing will no longer exist. This will reflect the fact that the risk associated with the crossing has been eliminated entirely. However, be sure to increase the traffic counts at other crossings within the quiet zone and recalculate the risk indices for those crossings that will handle the traffic diverted from the closed crossing.

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

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

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

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

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

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

   Section II--New Quiet Zones

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

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

   The following steps are necessary when establishing a New Quiet Zone. This information pertains to both the Public Authority Designation and Public Authority Application to FRA methods.

   1. Determine all public and private at-grade crossings that will be included within the quiet zone. Also determine any existing grade-separated crossings that fall within the quiet zone. Each crossing must be identified by the US DOT Crossing Inventory number and street or highway name. If a crossing does not have a US DOT crossing number, then contact FRA's Office of Safety (202-493-6299) for assistance.

   2. Ensure that the quiet zone will be at least one-half mile in length. (Sec. 222.35(a)(1))

   3. A complete and accurate Grade Crossing Inventory Form must be on file with FRA for all crossings (public and private) within the quiet zone. These must be dated within six months prior to the designation of the quiet zone. An inspection of each crossing in the proposed quiet should be performed and the Grade Crossing Inventory Forms updated to reflect the current conditions at each crossing.

   4. Every public crossing within the quiet zone must be equipped with active warning devices comprising both flashing lights and gates. The warning devices must be equipped with power out indicators. Constant warning time circuitry is also required unless existing conditions would prevent the proper operation of the constant warning time circuitry. The plans for the quiet zone may be made assuming that flashing lights and gates are at all public crossings; however the quiet zone may not be implemented until all public crossings are actually equipped with the flashing lights and gates. (Sec. 222.35(b)(1))

   5. Private crossings must have cross-bucks and ``STOP'' signs on both approaches to the crossing. Private crossings with public access, industrial or commercial use must have a diagnostic team review and be treated according to the team's recommendations. (Sec. Sec. 222.25(b) and (c))

   6. Each highway approach to every public and private crossing must have an advanced warning sign (in accordance with the MUTCD) that advises motorists that train horns are not sounded at the crossing. (Sec. 222.35(c)(1) and 222.25(c)(2))

2. New Quiet Zones--Public Authority Designation

   Once again it should be remembered that all public crossings must be equipped with automatic warning devices consisting of flashing lights and gates in accordance with Sec. 222.35(b). In addition, one of the following conditions must be met in order for a public authority to designate a new quiet zone without FRA approval:

   [sbull] One or more SSMs as identified in Appendix A are installed at each public crossing in the quiet zone (Sec. 222.39(a)(1)); or

   [sbull] The Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold without SSMs installed at any crossings in the quiet zone (Sec. 222.39(a)(2)(i)); or

   [sbull] SSMS's are installed at selected crossings resulting in the Quiet Zone Risk Index being reduced to a level equal to, or less than, the Nationwide Significant Risk Threshold (Sec. 222.39(a)(2)(ii)); or

   [sbull] SSMS's are installed at selected crossings resulting in the Quiet Zone Risk Index being reduced to a level of risk that would exist if the horn were sounded at every crossing in the quiet zone (i.e. the Risk Index with Horns) (Sec. 222.39(a)(3)).

   Steps necessary to establish a New Quiet Zone using the Public Authority Application to FRA method:

   1. If one or more SSMs as identified in appendix A are installed at each public crossing in the quiet zone, the requirements for a public authority designation quiet zone have been met. It is not necessary for the same SSM to be used at each crossing. Once the necessary improvements have been installed, notifications may take place and the quiet zone implemented in accordance with the rule. If SSMs are not installed at each crossing, proceed on to Step 2 and use the risk reduction method.

   2. To begin, calculate the risk index for each public crossing within the quiet zone (See appendix D. FRA's web-based Quiet Zone Calculator may be used to do this calculation). If flashing lights and gates have to be installed at any public crossings, calculate the risk indices for such crossings as if lights and gates were installed. (Note: Flashing lights and gates must be installed prior to initiation of the quiet zone.) If the Inventory record does not reflect the actual conditions at the crossing, be sure to use the conditions that currently exist when calculating the risk index. Note: Private crossings are not included when computing the risk for the proposed quiet zone.

   3. The Crossing Corridor Risk Index is then calculated by averaging the risk index for each public crossing within the proposed quiet zone. Since train horns are routinely being sounded for crossings in the proposed quiet zone, this value is also the Risk Index with Horns.

   4. In order to calculate the initial Quiet Zone Risk Index, first adjust the risk index at each public crossing to account for the increased risk due to the absence of the train horn. The absence of the horn is reflected by an increased risk index of 66.8 percent at

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   gated crossings. (New Quiet Zones within the Chicago Region will reflect an increased risk index of 17.3 percent.) The initial Quiet Zone Risk Index is then calculated by averaging the increased risk index for each public crossing within the proposed quiet zone. At this point the Quiet Zone Risk Index will equal the Risk Index with Horns multiplied by 1.668.

   5. Compare the Quiet Zone Risk Index to the Nationwide Significant Risk Threshold. If the Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold, then the public authority may decide to designate a quiet zone and proceed with the notification process. With this approach, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the quiet zone is above the Nationwide Significant Risk Threshold, FRA will notify the Public Authority so that appropriate measures can be taken. (See Sec. 222.51(a).)

   6. If the Quiet Zone Risk Index is greater than the Nationwide Significant Risk Threshold, then select an appropriate SSM for a crossing. Reduce the inflated risk index calculated in Step 4 for that crossing by the effectiveness rate of the chosen SSM. (See appendix A for the effectiveness rates for the various SSMs.) Recalculate the Quiet Zone Risk Index by averaging the revised inflated risk index with the inflated risk indices for the other public crossings. If this new Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold, the quiet zone would qualify for public authority designation. If the Quiet Zone Risk Index is still higher than the Nationwide Significant Risk Threshold, treat another public crossing with an appropriate SSM and repeat the process until the Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold. Once this is obtained the quiet zone has qualified for the public authority designation method, and notification may take place once all the necessary improvements have been installed. With this approach, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the quiet zone is above the Nationwide Significant Risk Threshold, FRA will notify the public authority so that appropriate measures can be taken. (See Sec. 222.51(a).)

   7. If the public authority wishes to reduce the risk of the quiet zone to the level of risk that would exist if the horn were sounded at every crossing within the quiet zone, the public authority should calculate the initial Quiet Zone Risk Index as in Step 4. The objective is to now reduce the Quiet Zone Risk Index to the level of the Risk Index with Horns by adding SSMs at the crossings. The difference between the Quiet Zone Risk Index and the Risk Index with Horns is the amount of risk that will have to be reduced in order to fully compensate for lack of the train horn. The use of the Quiet Zone Calculator will aid in determining which SSMs may be used to reduce the risk sufficiently. Follow the procedure stated in Step 6, except that the Quiet Zone Risk Index must be equal to, or less than, the Risk Index with Horns instead of the Nationwide Significant Risk Threshold. Once this risk level is attained, the quiet zone has qualified for the public authority designation method, and notification may take place once all the necessary improvements have been installed. One important distinction with this option is that the public authority will never need to be concerned with the Nationwide Significant Risk Threshold or the Quiet Zone Risk Index. The rule's intent is to make the quiet zone as safe as if the train horns were sounding. If this is accomplished, the public authority may designate the crossings as a quiet zone and need not be concerned with possible fluctuations in the Nationwide Significant Risk Threshold or annual risk reviews.

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

   A public authority must apply to FRA for approval of a quiet zone under two conditions. First, if any of the SSMs selected for the quiet zone do not fully conform to the design standards set forth in appendix A. These are referred to as modified SSMs in appendix B. Second, when programmed law enforcement, public education and awareness programs, or photo enforcement is used to reduce risk in the quiet zone, these are referred to as non- engineering ASMs in appendix B. It should be remembered that non- engineering ASMs will require periodic monitoring as long as the quiet zone is in existence. Please see appendix B for detailed explanations of ASMs and the periodic monitoring of non-engineering ASMs.

   The public authority is strongly encouraged to submit the application to FRA for review and comment before the appendix B treatments are initiated. This will enable FRA to provide comments on the proposed modified SSMs or non-engineering ASMs to help guide the application process. If non-engineering ASMs are proposed, the public authority also may wish to confirm with FRA that the methodology it plans to use to determine the effectiveness rates of the proposed ASMs is appropriate. A quiet zone that utilizes a combination of SSMs from appendix A and ASMs from appendix B must make a Public Authority Application to FRA. A complete and thoroughly documented application will help to expedite the approval process.

   The following discussion is meant to provide guidance on the steps necessary to establish a new quiet zone using the Public Authority Application to FRA method. Once again it should be remembered that all public crossings must be equipped with automatic warning devices consisting of flashing lights and gates in accordance with Sec. 222.35(b).

   1. Gather the information previously mentioned in the section on ``Requirements for both Public Authority Designation and Public Authority Application.''

   2. Calculate the risk index for each public crossing as directed in Step 2--Public Authority Designation.

   3. Calculate the Crossing Corridor Risk Index, which is also the Risk Index with Horns, as directed in Step 3--Public Authority Designation.

   4. Calculate the initial Quiet Zone Risk Index as directed in Step 4--Public Authority Designation.

   5. Begin to reduce the Quiet Zone Risk Index through the use of ASMs and SSMs. Follow the procedure provided in Step 6--Public Authority Designation until the Quiet Zone Risk Index has been reduced to equal to, or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns. (Remember that the public authority may choose which level of risk reduction is the most appropriate for its community.) Effectiveness rates for ASMs should be provided as follows:

   1. Modified SSMs--Estimates of effectiveness for modified SSMs may be proposed based upon adjustments from the effectiveness rates provided in appendix A or from actual field data derived from the crossing sites. The application should provide an estimated effectiveness rate and the rationale for the estimate.

   2. Non-engineering ASMs--Effectiveness rates are to be calculated in accordance with the provisions of appendix B, paragraph 2(b).

   6. Once it has been determined through analysis that the Quiet Zone Risk Index has been reduced to equal to, or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns, the public authority may make application to FRA for a quiet zone under Sec. 222.39(b). FRA will review the application to determine the appropriateness of the proposed effectiveness rates, and whether or not the proposed application demonstrates that the quiet zone meets the requirements of the rule. When submitting the application to FRA for approval, the application must contain the following (Sec. 222.39(b)(1)):

   [sbull] Sufficient detail concerning the present safety measures at the public crossings within the proposed quiet zone. This includes current and accurate crossing inventory forms.

   [sbull] Detailed information on the SSMS's or ASM's that are proposed to be implemented and at which public crossings within the proposed quiet zone.

   [sbull] Membership and recommendations of the diagnostic team (if any) that reviewed the proposed quiet zone.

   [sbull] A commitment to implement the proposed safety measures.

   [sbull] Demonstrate through data and analysis that the proposed measures will reduce the Quiet Zone Risk Index to equal, to or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns.

   [sbull] A copy of the application must be provided to the parties listed under Required Notifications.

   7. Upon receiving written approval from FRA of the quiet zone application, the public authority may then proceed with notifications and implementation of the quiet zone. If the quiet zone is qualified by reducing the Quiet Zone Risk Index to at the least the level of the Nationwide Significant Risk Threshold, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk Index. If the Quiet Zone Risk Index for the quiet zone is above the Nationwide Significant Risk Threshold, FRA will notify the public

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

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

   Section III--Pre-Rule Quiet Zones

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

   Overview

   Pre-Rule Quiet Zones that do not meet the requirements for automatic approval (see discussion that follows) must meet the same requirements as New Quiet Zones as provided in Sec. 222.39. In other words, risk must be reduced through the use of SSMs or ASMs so that the Quiet Zone Risk Index for the quiet zone has been reduced to either the risk level which would exist if locomotive horns sounded at all crossings in the quiet zone (i.e. the Risk Index with Horns) or to a risk level equal to, or less than, the Nationwide Significant Risk Threshold. Pre-Rule Quiet Zones must meet these requirements by December 18, 2008 (Sec. 222.41(b)(2)). There are four differences in the requirements between Pre-Rule Quiet Zones and New Quiet Zones that must be noted.

   First, since train horns have not been routinely sounded in the Pre-Rule Quiet Zone, it is not necessary to increase the risk indices of the public crossings to reflect the additional risk caused by the lack of a train horn. Since the train horn has already been silenced, the added risk caused by the lack of a horn is reflected in the actual collision history at the crossings. Collision history is an important part in the calculation of the severity risk indices. In other words, the Quiet Zone Risk Index is calculated by averaging the existing risk index for each public crossing without the need to increase the risk index by 66.8 percent. For Pre-Rule Quiet Zones, the Crossing Corridor Risk Index and the initial Quiet Zone Risk Index have the same value.

   Second, since train horns have been silenced at the crossings, it will be necessary to mathematically determine what the risk level would have been at the crossings if train horns had been routinely sounded. These revised risk levels then will be used to calculate the Risk Index with Horns. This calculation is necessary to determine how much risk must be eliminated in order to compensate for the lack of the train horn. This will allow the public authority to have the choice to reduce the risk to at least the level of the Nationwide Significant Risk Threshold or to fully compensate for the lack of the train horn.

   To calculate the Risk Index with Horns, the first step is to divide the existing severity risk index for each crossing by the appropriate value as shown in Table 1. This process eliminates the risk that was caused by the absence of train horns. The table takes into account that the train horn has been found to produce different levels of effectiveness in preventing collisions depending on the type of warning device at the crossing. (Note: FRA's web based Quiet Zone Calculator will perform this computation automatically for pre- rule quiet zones.) The Risk Index with Horns is the average of the revised risk indices. The difference between the calculated Risk Index with Horns and the Quiet Zone Risk Index is the amount of risk that would have to be reduced in order to fully compensate for the lack of train horns.

   Table 1.--Risk Index Divisor Values

   Flashing Lights and Passive

   lights

   gates

   U.S. except Chicago.............................................

   1.749

   1.309

   1.668 Chicago Region..................................................

   N/A

   N/A

   1.173

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

   The third difference is that credit is given for the risk reduction that is brought about through the upgrading of the warning devices at public crossings (Sec. 222.35(b)(2)). For New Quiet Zones, all crossings must be equipped with automatic warning devices consisting of flashing lights and gates. Crossings without gates must have gates installed. The severity risk index for that crossing is then calculated to establish the risk index that is used in the Risk Index with Horns. The Risk Index with Horns is then increased by 66.8 percent to adjust for the lack of the train horn. The adjusted figure is the initial Quiet Zone Risk Index. There is no credit received for the risk reduction that is attributable to warning device upgrades.

   For Pre-Rule Quiet Zones, the Risk Index with Horns is calculated from the initial risk indices which use the warning devices that are currently installed. If a public authority elects to upgrade an existing warning device as part of its quiet zone plan, the accident prediction value for that crossing will be re- calculated based on the upgraded warning device. (Once again, FRA's web-based Quiet Zone Calculator can do the actual computation.) The new accident prediction value is then used in the severity risk index formula to determine the risk index for the crossing. This adjusted risk index is then used to compute the new Quiet Zone Risk Index. This computation allows the risk reduction attributed to the warning device upgrades to be used in establishing a quiet zone.

   The fourth difference is that pre-rule quiet zones have different minimum requirements under Sec. 222.35. A pre-rule quiet zone may be less than one-half mile in length if that was its length as of October 9, 1996. A pre-rule quiet zone does not have to have automatic warning devices consisting of flashing lights and gates at every public crossing (Sec. 222.32(b)(2)). The existing crossing safety warning systems in place as of December 18, 2003, may be retained but cannot be downgraded. It also is not necessary for the automatic warning devices to be equipped with constant warning time devices or power out indicators; however, when the warning devices are upgraded, constant warning time and power out indicators will be required if reasonably practical (Sec. 222.35(b)(2)). Advance warning signs that notify the motorist that train horns are not sounded and STOP signs and crossbucks at private crossings do not have to be installed until December 18, 2006, which allows three years to install the required signage.

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

   These following is necessary when establishing a Pre-Rule Quiet Zone. This information pertains to Automatic Approval, the Public Authority Designation and Public Authority Application to FRA methods.

   1. Determine all public and private at-grade crossings that will be included within the quiet zone. Also determine any existing grade separated crossings that fall within the quiet zone. Each crossing must be identified by the U.S. DOT Crossing Inventory number and street name. If a crossing does not have a U.S. DOT crossing number then contact FRA for assistance.

   2. Document the length of the quiet zone. It is not necessary that the quiet zone be at least one-half mile in length. Pre-Rule Quiet Zones may be shorter than one-half mile. However, the addition of a new crossing to a quiet zone nullifies its pre-rule status, and the resulting New Quiet Zone must be at least

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   one-half mile. The deletion of a crossing from a Pre-Rule Quiet Zone (except through closure or grade separation) must result in a quiet zone that is a least one half mile in length.

   3. A complete and accurate Grade Crossing Inventory Form must be on file with FRA for all crossings (public and private) within the quiet zone. These must be dated within six months prior to the designation of the quiet zone. An inspection of each crossing in the proposed quiet should be performed and the Grade Crossing Inventory Forms updated to reflect the current conditions at each crossing.

   4. Pre-Rule Quiet Zones must retain, and may upgrade, the existing grade crossing safety warning systems. Unlike New Quiet Zones, it is not necessary that every public crossing within a Pre- Rule Quiet Zone be equipped with active warning devices comprising both flashing lights and gates. Existing warning devices need not be equipped with power out indicators and constant warning time circuitry. If warning devices are upgraded to flashing lights, or flashing lights and gates, the upgraded equipment must include, as is required for New Quiet Zones, power out indicators and constant warning time devices (if reasonably practical).

   5. By December 18, 2006, private crossings must have cross-bucks and ``STOP'' signs on both approaches to the crossing. Private crossings with public access, industrial or commercial use must have a diagnostic team review and be treated according to the team's recommendations unless the quiet zone qualifies for automatic approval. A diagnostic team review of private crossings is not necessary for Pre-Rule Quiet Zones that qualify for Automatic Approval.

   6. By December 18, 2006, each highway approach to every public and private crossing must have an advanced warning sign (in accordance with the MUTCD) that advises motorists that train horns are not sounded at the crossing.

2. Pre-Rule Quiet Zones--Automatic Approval

   In order for a Pre-Rule Quiet Zone to be automatically approved as a quiet zone under this rule (Sec. 222.41(a)), one of the following conditions must be met:

   [sbull] One or more SSMs as identified in appendix A are installed at each public crossing in the quiet zone; or

   [sbull] The Quiet Zone Risk Index is equal, to or less, than the Nationwide Significant Risk Threshold; or

   [sbull] The Quiet Zone Risk Index is above the Nationwide Significant Risk Threshold but less than twice the Nationwide Significant Risk Threshold and there have been no relevant collisions at any public grade crossing within the quiet zone for the preceding five years.

   Additionally, it must be in compliance with the minimum requirements for quiet zones (Sec. 222.35) and the notification requirements in Sec. 222.43.

   The following discussion is meant to provide guidance on the steps necessary to determine if a Pre-Rule Quiet Zone qualifies for automatic approval.

   1. All of the items listed in Requirements for both Public Authority Designation and Public Authority Application--Pre-Rule Quiet Zones previously mentioned are to be accomplished. Remember that a Pre-Rule Quiet Zone may be less than one-half mile in length if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet Zone does not have to have automatic warning devices consisting of flashing lights and gates at every public crossing.

   2. If one or more SSMs as identified in Appendix A are installed at each public crossing in the quiet zone, the quiet zone qualifies and notification should take place. If the Pre-Rule Quiet Zone does not qualify by this step, proceed on to the next step.

   3. Calculate the risk index for each public crossing within the quiet zone (See appendix D). Be sure that the risk index is calculated using the formula appropriate for the type of warning device that is actually installed at the crossing. Unlike New Quiet Zones, it is not necessary to calculate the risk index using flashing lights and gates as the warning device. (FRA's web-based Quiet Zone Calculator may be used to simplify the calculation process). If the Inventory record does not reflect the actual conditions at the crossing, be sure to use the conditions that currently exist when calculating the risk index.

   4. The Quiet Zone Risk Index is then calculated by averaging the risk index for each public crossing within the proposed quiet zone. (Note: The initial Quiet Zone Risk Index and the Crossing Corridor Risk Index are the same for Pre-Rule Quiet Zones.)

   5. Compare the Quiet Zone Risk Index to the Nationwide Significant Risk Threshold. If the Quiet Zone Risk Index is equal to, or less than, the Nationwide Significant Risk Threshold, then the quiet zone qualifies for automatic approval, and the public authority may proceed with the notification process. With this approach, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index for the quiet zone is above the Nationwide Significant Risk Threshold, FRA will notify the public authority so that appropriate measures can be taken (See Sec. 222.51(b)(2)). If the pre-rule quiet zone does not qualify by this step, proceed on to the next step.

   6. If the Quiet Zone Risk Index is above the Nationwide Significant Risk Threshold but less than twice the Nationwide Significant Risk Threshold and there have been no relevant collisions at any public grade crossing within the quiet zone for the preceding five years, then the quiet zone qualifies for automatic approval, and the public authority may proceed with the notification process. Note: A relevant collision means a collision at a highway-rail grade crossing between a train and a motor vehicle, excluding the following: a collision resulting from an activation failure of an active grade crossing warning system; a collision in which there is no driver in the motor vehicle; or a collision where the highway vehicle struck the side of the train beyond the fourth locomotive unit or rail car. With this approach, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index for the quiet zone is above two times the Nationwide Significant Risk Threshold, or a relevant collision has occurred during the preceding year, FRA will notify the public authority so that appropriate measures can be taken (See Sec. 222.51(b)(3)).

   If the Pre-Rule Quiet Zone does not qualify for automatic approval, continuation of the quiet zone beyond the interim three year period will require implementation of SSMs or ASMs so that the Quiet Zone Risk Index for the quiet zone has been reduced to a risk level equal to, or below, either the risk level which would exist if locomotive horns sounded at all crossings in the quiet zone (i.e. the Risk Index with Horns) or the Nationwide Significant Risk Threshold. This is the same methodology used to create New Quiet Zones with the exception of the four differences previously noted. A review of the previous discussion on the two methods used to establish quiet zones may prove helpful in determining which would be the most beneficial to use for a particular Pre-Rule Quiet Zone.

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

   The following discussion is meant to provide guidance on the steps necessary to establish a Pre-Rule Quiet Zone using the Public Authority Designation method.

   1. All of the items listed in ``Requirements for both Public Authority Designation and Public Authority Application--Pre-Rule Quiet Zones'' previously mentioned are to be accomplished. Remember that a Pre-Rule Quiet Zone may be less than one-half mile in length if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet Zone does not have to have automatic warning devices consisting of flashing lights and gates at every public crossing.

   2. Calculate the risk index for each public crossing within the quiet zone as in Step 3--Pre-Rule Quiet Zones--Automatic Approval.

   3. The Crossing Corridor Risk Index is then calculated by averaging the risk index for each public crossing within the proposed quiet zone. Since train horns are not being sounded for crossings, this value is actually the initial Quiet Zone Risk Index.

   4. Calculate Risk Index with Horns by the following:

   1. For each public crossing, divide the risk index that was calculated in Step 2 by the appropriate value in Table 1. This produces the risk index that would have existed had the train horn been sounded.

   2. Average these reduced risk indices together. The resulting average is the Risk Index with Horns.

   5. Begin to reduce the Quiet Zone Risk Index through the use of SSMs or by upgrading existing warning devices. Follow the procedure provided in Step 6--Public Authority Designation until the Quiet Zone Risk Index has been reduced to a level equal to, or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns. A public authority may elect to upgrade an existing warning device as part of its Pre-Rule Quiet Zone plan. When upgrading a warning device, the accident

   [[Page 70680]]

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

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

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

   The following discussion is meant to provide guidance in the steps necessary to establish a Pre-Rule Quiet zone using the Public Authority Application to FRA method.

   1. All of the items listed in ``Requirements for both Public Authority Designation and Public Authority Application--Pre-Rule Quiet Zones'' previously mentioned are to be accomplished. Remember that a Pre-Rule Quiet Zone may be less than one-half mile in length if that was its length as of October 9, 1996. Also, a Pre-Rule Quiet Zone does not have to have automatic warning devices consisting of flashing lights and gates at every public crossing.

   2. Calculate the risk index for each public crossing within the quiet zone (See Appendix D. FRA's web-based Quiet Zone Calculator may be used to simplify the calculation process). If the Inventory record does not reflect the actual conditions at the crossing, be sure to use the conditions that currently exist when calculating the risk index.

   3. The Crossing Corridor Risk Index is then calculated by averaging the risk index for each public crossing within the proposed quiet zone. Since train horns are not being sounded for crossings, this value is actually the initial Quiet Zone Risk Index.

   4. Calculate Risk Index with Horns by the following:

   1. For each public crossing, divide its risk index that was calculated in Step 2 by the appropriate value in Table 1. This produces the risk index that would have existed had the train horn been sounded.

   2. Average these reduced risk indices together. The resulting average is the Risk Index with Horns.

      5. Begin to reduce the Quiet Zone Risk Index through the use of ASMs and/or SSMs. Follow the procedure the provided in Step 6-- Public Authority Designation until the Quiet Zone Risk Index has been reduced to a level equal to, or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns. A public authority may elect to upgrade an existing warning device as part of its Pre-Rule Quiet Zone plan. When upgrading a warning device, the accident prediction value for that crossing must be re- calculated for the new warning device. Determine the new risk index for the upgraded crossing by using the new accident prediction value in the severity risk index formula. (Remember that FRA's web-based quiet zone risk calculator will be able to do the actual computations.) This new risk index is then used to compute the new Quiet Zone Risk Index. Effectiveness rates for ASMs should be provided as follows:

   1. Modified SSMs--Estimates of effectiveness for modified SSMs may be proposed based upon adjustments from the benchmark levels provided in Appendix A or from actual field data derived from the crossing sites. The application should provide an estimated effectiveness rate and the rationale for the estimate.

   2. Non-engineering ASMs--Effectiveness rates are to be calculated in accordance with the provisions of appendix B, paragraph 2(b).

      6. Once it has been determined through analysis that the Quiet Zone Risk Index has been reduced to a level equal to, or less than, either the Nationwide Significant Risk Threshold or the Risk Index with Horns, the public authority may make application to FRA for a quiet zone under Sec. 222.39(b). FRA will review the application to determine the appropriateness of the proposed effectiveness rates, and whether or not the proposed application demonstrates that the quiet zone meets the requirements of the rule. When submitting the application to FRA for approval, it should be remembered that the application must contain the following (Sec. 222.39(b)(1)):

   1. Sufficient detail concerning the present safety measures at the public crossings within the proposed quiet zone. This includes current and accurate crossing inventory forms.

   2. Detailed information on the SSMS's, ASM's, or upgraded warning devices that are proposed to be implemented and at which public crossings within the proposed quiet zone.

   3. Membership and recommendations of the diagnostic team (if any) that reviewed the proposed quiet zone.

   4. A commitment to implement the proposed safety measures.

   5. Demonstrate through data and analysis that the proposed measures will reduce the Quiet Zone Risk Index to, or below, either the Nationwide Significant Risk Threshold or the Risk Index with Horns.

   6. A copy of the application must be provided to the parties listed under Required Notifications.

      7. Upon receiving written approval from FRA of the quiet zone application, the public authority may then proceed with notifications and implementation of the quiet zone. If the quiet zone is established by reducing the Quiet Zone Risk Index to a level equal to, or less than, the Nationwide Significant Risk Threshold, FRA will annually recalculate the Nationwide Significant Risk Threshold and the Quiet Zone Risk. If the Quiet Zone Risk Index for the quiet zone is above the Nationwide Significant Risk Threshold, FRA will notify the public authority so that appropriate measures can be taken (See Sec. 222.51(a)).

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

      Section IV--Required Notifications

1. The public authority responsible for the creation of a New Quiet Zone or the continuation of a Pre-Rule Quiet Zone, is required to provide notification to parties that will be affected by the quiet zone. The notification process is to ensure that interested parties are made aware in a timely manner of the establishment or continuation of quiet zones. Specific information is to be provided so that the crossings in the quiet zone can be identified. The method used to qualify or continue the quiet zone is to be given. The notification process also includes additional information that must be provided to FRA. Once the rule becomes effective, railroads will be obligated to sound train horns when approaching all public crossings unless notified in accordance with the rule that a New Quiet Zone has been established or that a Pre-Rule Quiet Zone is being continued.

   The time frames for the notification process is as follows:

   [sbull] New Quiet Zones--Notification of the establishment of a New Quiet Zone under Sec. 222.39 must be mailed at least 21 days before the routine sounding of train horns for public crossings is to cease (Sec. 222.43(a)(2)(i)). The routine use of train horns at public crossings will not cease unless the proper notification has been given.

   [sbull] Pre-Rule Quiet Zones--Notification of the continuation of a Pre-Rule Quiet Zone under Sec. 222.41 must be served no later than December 18, 2004 (Sec. 222.43(a)(2)(ii)). Failure to provide the required notice will result in the commencement of the sounding of train horns at public crossings on this date.

2. Parties To Be Notified

   The public authority that is implementing a New Quiet Zone or is continuing a Pre-Rule Quiet Zone must provide notification of the quiet zone by certified mail, return receipt requested, to the following (see Sec. 222.43(a)(1)):

   [sbull] All railroads operating over the crossings within the quiet zone.

   [sbull] The highway or traffic control authority, or law enforcement authority having control over vehicular traffic at crossings within the quiet zone.

   [sbull] The State agency responsible for highway and road safety.

   [sbull] All landowners owning a private crossing within the quiet zone.

   [sbull] The Associate Administrator.

3. Required Information

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

   [[Page 70681]]

   1. A list all grade crossings within the quiet zone by both the U.S. DOT crossing number and the street or highway name. This includes public, private and grade separated crossings.

   2. The specific date upon which routine use of the train horn will cease at crossings within the quiet zone. The date for New Quiet Zones shall be no earlier than 21 days after mailing of written notification.

   3. The notice should state which section contained in the rule is used as the basis for establishment or continuation of the quiet zone.

   4. Reference to Sec. 222.39(a)(1), (2), or (3) shall include a copy of the FRA web page containing the quiet zone data upon which the public authority relies.

   5. Reference to Sec. 222.39(b) shall include a copy of FRA's notification of approval.

   6. Reference to Sec. 222.41 shall include a statement as to how the quiet zone is in compliance with that section. If appropriate, it shall include a copy of the FRA web page containing the quiet zone data upon which the public authority relies.

   7. A certificate of service showing to whom and by what means the notice was provided.

4. In addition to the above required information, the notification to the Associate Administrator also must include the following (Sec. 222.43(b)):

   1. An accurate and complete Grade Crossing Inventory Form for each public and private highway-rail grade crossing within the quiet zone, dated within six months prior to designation or approval by FRA of the quiet zone. Copies of the inventory forms may be obtain on FRA Web site (http://www.fra.dot.gov).

   2. An accurate, complete and current Grade Crossing Inventory Form reflecting SSMs or ASMs in place upon establishment of the quiet zone. SSMs or ASMs that cannot be fully described on the Inventory form must be fully described in writing.

   3. The name and title of the person responsible for monitoring compliance with the requirements of this part, and the manner in which that person can be contacted.

   4. A list of all parties that received notification of the establishment or continuation of the quiet zone together with copies of the certificates of service showing to whom and by what means the notice was provided.

   5. A statement signed by the CEO of each public authority establishing or continuing a quiet zone that certifies that responsible officials of the public authority have reviewed documentation provided by FRA sufficient to make an informed decision regarding the advisability of establishing the quiet zone.

   Section V--Examples of Quiet Zone Implementations

   Example 1--New Quiet Zone

   A public authority wishes to create a New Quiet Zone over four public crossings. All of the crossings are equipped with flashing lights and gates, and the length of the quiet zone is 0.75 mile. There are no private crossings within the proposed zone.

   The tables that follow show the street name in the first column, and the existing risk index for each crossing with the horn sounding (``Crossing Risk Index w/Horns'') in the second. The third column, ``Crossing Risk Index w/o Horns'', is the risk index for each crossing after it has been inflated by 66.8% to account for the lack of train horns. The fourth column, ``SSM Eff'', is the effectiveness of the SSM at the crossing. A zero indicates that no SSM has been applied. The last column, ``Crossing Risk Index w/o Horns Plus SSM'', is the inflated risk index for the crossing after being reduced by the implementation of the SSM. At the bottom of the table are two values. The first is the Risk Index with Horns (``RIWH'') which represents the average initial amount of risk in the proposed quiet zone with the train horn sounding. The second is the Quiet Zone Risk Index (``QZRI'') and is the average risk in the proposed quiet zone taking into consideration the increased risk caused by the lack of train horns and reductions in risk attributable to the installation of SSMs. For this example it is assumed that the Nationwide Significant Risk Threshold is 15,424. In order for the proposed quiet zone to qualify under the rule, the Quiet Zone Risk Index must be reduced to at least either the Nationwide Significant Risk Threshold (15,424) or to the Risk Index with Horns.

   Table 1 shows the existing conditions in the proposed quiet zone. SSMs have not yet been installed. The Risk Index with Horns for the proposed quiet zone is 11,250. The Quiet Zone Risk Index without any SSMs is 18,765.

   Table 1

   Crossing risk Crossing risk Crossing risk

   index w/o Street

   index w/horns index w/o

   SSM EFF horns, plus horns

   SSM

   A...............................................

   12000

   20016

   0

   20016 B...............................................

   10000

   16680

   0

   16680 C...............................................

   8000

   13344

   0

   13344 D...............................................

   15000

   25020

   0

   25020 RIWH .............. .............. QZRI 11250 .............. .............. 18765

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

   Table 2

   Crossing risk

   Crossing risk Street

   Crossing risk index w/o

   SSM EFF

   index w/o index w/ horns horns

   horns plus SSM

   A...............................................

   12000

   20016

   0

   20016 B...............................................

   10000

   16680

   0

   16680 C...............................................

   8000

   13344

   0

   13344 D...............................................

   15000

   25020

   0.75

   6255 RIWH .............. .............. QZRI 11250 .............. .............. 14073.75

   [[Page 70682]]

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

   Table 3

   Crossing risk

   Crossing risk Street

   Crossing risk index w/o

   SSM EFF

   index w/o index w/horns horns

   horns plus SSM

   A...............................................

   12000

   20016

   0.75

   5004 B...............................................

   10000

   16680

   0

   16680 C...............................................

   8000

   13344

   0

   13344 D...............................................

   15000

   25020

   0.75

   6255 RIWH .............. .............. QZRI 11250 .............. .............. 10320.75

   Example 2--Pre-Rule Quiet Zone

   A public authority wishes to qualify a Pre-Rule Quiet Zone which did not meet the requirements for Automatic Approval because the Quiet Zone Risk Index is greater than twice the Nationwide Significant Risk Threshold. There are four public crossings in the Pre-Rule Quiet Zone. Three of the crossings are equipped with flashing lights and gates, and the fourth (Z Street) is passively signed with a STOP sign. The length of the quiet zone is 0.6 mile, and there are no private crossings within the proposed zone.

   The tables that follow are very similar to the tables in Example 1. The street name is shown in the first column, and the existing risk index for each crossing (``Crossing Risk Index w/o Horns'') in the second. This is a change from the first example because the risk is calculated without train horns sounding because of the existing ban on whistles. The third column, ``Crossing Risk Index w/ Horns'', is the risk index for each crossing after it has been adjusted to reflect what the risk would have been had train horns been sounding. This is mathematically done by dividing the existing risk index for the three gated crossing by 1.668. The risk at the passive crossing at Z Street is divided by 1.749. (See the above discussion in ``Pre- Rule Quiet Zones--Establishment Overview'' for more information.) The fourth column, ``SSM EFF'', is the effectiveness of the SSM at the crossing. A zero indicates that no SSM has been applied. The last column, ``Crossing Risk Index w/o Horns Plus SSM'', is the risk index without horns for the crossing after being reduced for the implementation of the SSM. At the bottom of the table are two values. The first is the Risk Index with Horns (RIWH) which represents the average initial amount of risk in the proposed quiet zone with the train horn sounding. The second is the Quiet Zone Risk Index (``QZRI'') and is the average risk in the proposed quiet zone taking into consideration the increased risk caused by the lack of train horns and reductions in risk attributable to the installation of SSMs. Once again it is assumed that the Nationwide Significant Risk Threshold is 15,424. The Quiet Zone Risk Index must be reduced to either the Nationwide Significant Risk Threshold (15,424) or to the Risk Index with Horns in order to qualify under the rule.

   Table 4 shows the existing conditions in the proposed quiet zone. SSMs have not yet been installed. The Risk Index with Horns for the proposed quiet zone is 18,705.83. The Quiet Zone Risk Index without any SSMs is 31,375. Since the Nationwide Significant Risk Threshold is less than the calculated Risk Index with Horns, the public authority's goal will be to reduce the risk to at least value of the Risk Index with Horns. This will qualify the Pre-Rule Quiet Zone under the rule.

   Table 4

   Crossing risk

   Crossing risk Street

   index w/o Crossing risk SSM EFF

   index w/o horns index w/horns

   horns plus SSM

   W...............................................

   35000

   20983.21

   0

   35000 X...............................................

   42000

   25179.86

   0

   42000 Y...............................................

   33500

   20083.93

   0

   33500 Z...............................................

   15000

   8576.33

   0

   15000 RIWH .............. .............. QZRI 18705.83 .............. ..............

   31375

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

   [[Page 70683]]

   Table 5

   Crossing risk

   Crossing risk Street

   index w/o Crossing risk SSM EFF

   index w/o horns index w/horns

   horns plus SSM

   W...............................................

   35000

   20983.21

   0

   35000 X...............................................

   42000

   25179.86

   0

   42000 Y...............................................

   33500

   20083.93

   0

   33500 Z...............................................

   7500

   8576.33

   0

   7500 RIWH .............. .............. QZRI 18705.83 .............. .............. 29500

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

   Table 6

   Crossing risk

   Crossing risk Street

   index w/o Crossing risk SSM EFF

   index w/o horns index w/horns

   horns plus SSM

   W...............................................

   35000

   20983.21

   0

   35000 X...............................................

   42000

   25179.86

   0.82

   7560 Y...............................................

   33500

   20083.93

   0

   33500 Z...............................................

   7500

   8576.33

   0

   7500 RIWH .............. .............. QZRI 18705.83 .............. .............. 20890

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

   Table 7

   Crossing risk

   Crossing risk Street

   index w/o Crossing risk SSM EFF

   index w/o horns index w/horns

   horns plus SSM

   W...............................................

   35000

   20983.21

   0.75

   8750 X...............................................

   42000

   25179.86

   0.82

   7560 Y...............................................

   33500

   20083.93

   0

   33500 Z...............................................

   7500

   8576.33

   0

   7500 RIWH .............. .............. QZRI 18705.83 .............. .............. 14327.5

   Appendix D to Part 222--Determining Risk Levels

   Introduction

   The Nationwide Significant Risk Threshold, the Crossing Corridor Risk Index, and the Quiet Zone Risk Index are all measures of collision risk at public highway-rail grade crossings that are weighted by the severity of the associated casualties. Each crossing can be assigned a risk index.

   The Nationwide Significant Risk Threshold represents the average severity weighted collision risk for all public highway-rail grade crossings equipped with lights and gates nationwide where train horns are routinely sounded. FRA developed this index to serve as a threshold of permissible risk for quiet zones established under this rule.

   The Crossing Corridor Risk Index represents the average severity weighted collision risk for all public highway-rail grade crossings along a defined rail corridor.

   The Quiet Zone Risk Index represents the average severity weighted collision risk for all public highway-rail grade crossings that are part of a quiet zone.

   The Prediction Formulas

   The Prediction Formulas were developed by DOT as a guide for allocating scarce traffic safety budgets at the State level. They allow users to rank candidate crossings for safety improvements by collision probability. There are three formulas, one for each warning device category: (1) automatic gates with flashing lights, (2) flashing lights with no gates, and (3) passive warning devices.

   The prediction formulas can be used to derive the following for each crossing:

   1. PC which is the predicted collisions.

   2. P(FC[bond]C) which is the probability of a fatal collision given that a collision occurs.

   3. P(CC[bond]C) which is the probability of a casualty collision given that a collision occurs.

   The following factors are the determinants of the number of predicted collisions per year:

   [sbull] Average annual daily traffic;

   [sbull] Total number of trains per day;

   [sbull] Number of highway lanes;

   [sbull] Number of main tracks;

   [[Page 70684]]

   [sbull] Maximum timetable train speed;

   [sbull] Whether the highway is paved or not;

   [sbull] Number of through trains per day during daylight hours.

   The resulting basic prediction is improved in two ways. It is enriched by the particular crossing's collision history for the previous five years and it is calibrated by resetting normalizing constants. The normalizing constants are reset so that the sum of the predicted accidents in each warning device group (passive, flashing lights, gates) for the top twenty percent most hazardous crossings exactly equals the number of accidents which occurred in a recent period for the top twenty percent of that group. This adjustment factor allows the formulas to stay current with collision trends. The calibration also corrects for errors such as data entry errors. The final output is the predicted number of collisions (PC).

   The severity formulas answer the question, ``What is the chance that a fatality (or casualty) will happen, given that a collision has occurred?'' The fatality formula calculates the probability of a fatal collision given that a collision occurs (i.e. the probability of a collision in which a fatality occurs) P(FC[bond]C). Similarly, the casualty formula calculates the probability of a casualty collision given that a collision occurs P(CC[bond]C). As casualties consist of both fatalities and injuries, the probability of a non-fatal injury collision is found by subtracting the probability of a fatal collision from the probability of a casualty collision. To convert the probability of a fatal or casualty collision to the number of expected fatal or casualty collisions, that probability is multiplied by the number of predicted collisions (PC).

   For the prediction and severity index formulas, please see the following DOT publications: Summary of the DOT Rail-Highway Crossings Resource Allocation Procedure--Revised, June 1987, and the Rail-Highway Crossing Resource Allocation Procedure: User's Guide, Third Edition, August 1987. Both documents are in the docket for this rulemaking and also available through the National Technical Information Service located in Springfield, Virginia 22161.

   Risk Index

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

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

   PC, P(CC[bond]C), and P(FC[bond]C) are direct outputs of the DOT prediction formulas.

   The average number of fatalities observed in fatal collisions and the average number of injuries in collisions involving injuries were calculated by FRA as follows.

   The highway-rail incident files from 1997 through 2001 were matched against a data file containing the list of whistle ban crossings in existence from January 1, 1997 through December 31, 2001 to identify two types of collisions involving trains and motor vehicles (1) those that occurred at crossings where a whistle ban was in place during the period, and (2) those that occurred at crossings equipped with automatic gates where a whistle ban was not in place. Certain records were excluded. These were incidents where the driver was not in the motor vehicle, or the motor vehicle struck the train beyond the 4th locomotive or rail car that entered the crossing. FRA believes that sounding the train horn would not be very effective at preventing such incidents.\1\

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

   Collisions in the group containing the gated crossings nationwide where horns are routinely sounded were then identified as either fatal, injury only, or no casualty. Collisions were identified as fatal if one or more deaths occurred, regardless of whether or not injuries were also sustained. Collisions were identified as injury only when injuries, but no fatalities resulted.

   The collisions (incidents) selected were summarized by year from 1997 through 2001 (see table below). The fatality rate for each year was calculated by dividing the number of fatalities (``Deaths'') by the number of fatal incidents (``Number''). The injury rates were calculated by dividing the number of injuries in injury only incidents (``Injured'') by the number of injury only incidents (``Number'').

   The following table lists the results. Note that the number of injuries in the sixth column includes only those injuries resulting from injury only incidents, it excludes any non-fatal injuries sustained in fatal incidents. Non-fatal injuries sustained in fatal incidents are not included in this table. The first line in the table presents information in summary form for the five-year period.

   Motor Vehicle Incidents at Non WB Gated Crossings

   Fatal incidents

   Injury incidents Total

   incidents Number Deaths

   Rate

   Number Injured

   Rate

   Total....................................................

   2,028

   255

   311 1.2196

   552

   739 1.3388

   2001.........................................................

   457

   70

   78 1.1143

   119

   156 1.3109 2000.........................................................

   430

   48

   56 1.1667

   109

   157 1.4404 1999.........................................................

   395

   43

   59 1.3721

   109

   144 1.3211 1998.........................................................

   353

   46

   57 1.2391

   105

   131 1.2476 1997.........................................................

   393

   48

   61 1.2708

   110

   151 1.3727

   The fatality rate and the injury rate for the five-year period appear in bold in the first line.

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

   [[Continued on page 70685]]

   From the Federal Register Online via GPO Access [wais.access.gpo.gov] ]

   [[pp. 70685-70687]] Use of Locomotive Horns at Highway-Rail Grade Crossings

   [[Continued from page 70684]]

   [[Page 70685]]

   a fraction of the value of avoiding a fatality. FRA rates collisions that occur at train speeds in excess of 25 mph as an AIS level 5 ($2,287,500) and injuries that result from collisions involving trains traveling under 25 mph as an AIS level 2 ($46,500). About half of grade crossing collisions occur at speeds greater than 25 mph. Therefore, FRA estimates that the value of preventing the average injury resulting from a grade crossing collision is $1,167,000 (the average of an AIS-5 injury and an AIS-2 injury.)

   Notice that the quantity [PC*P(FC[bond]C)] represents the expected number of fatal collisions. Similarly, {PC*[P(CC[bond]C)- P(FC[bond]C)]{time} represents the expected number of injury collisions. These are then multiplied by their respective average number of fatalities and injuries (from the table above) to develop the number of expected casualties. The final parts of the expressions attach the dollar values for these casualties.

   The Risk Index for a Crossing is the integer sum of the Predicted Cost of Fatalities and the Predicted Cost of Injuries.

   Nationwide Significant Risk Threshold

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

   The Nationwide Significant Risk Threshold rounds to 15,424. This value is recalculated annually.

   Crossing Corridor Risk Index

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

   Quiet Zone Risk Index

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

   Appendix E to Part 222--Requirements for Wayside Horns

   Minimum requirements for wayside horn use at highway-rail grade crossings:

   1. Highway-rail crossing must be equipped with constant warning time device, if reasonably practical, and power-out indicator;

   2. Horn system must be equipped with an indicator or other system to notify the locomotive engineer as to whether the wayside horn is operating as intended in sufficient time to enable the locomotive engineer to sound the locomotive horn for at least 15 seconds prior to arrival at the crossing in the event the wayside horn is not operating as intended;

   3. The railroad must adopt an operating rule, bulletin or special instruction requiring that the train horn be sounded if the wayside horn indicator is not visible approaching the crossing, or if this, or an equivalent system, does not indicate that the system is operating as intended;

   4. Horn system must provide a minimum of 96 and a maximum of 110 dB(A) when measured 100 feet from the horn in the direction it is installed;

   5. Horn system must sound at a minimum of 15 seconds prior to the train's arrival at the crossing and while the lead locomotive is traveling across the crossing. It is permissible for the horn system to begin to sound simultaneously with activation of the flashing lights or descent of the crossing arm; and

   6. Horn shall be directed toward approaching traffic.

   Appendix F to Part 222--Diagnostic Team Considerations

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

   This diagnostic team, using crossing safety management principles, should evaluate conditions at a grade crossing to make determinations and recommendations concerning safety needs at that crossing. The diagnostic team can evaluate a crossing from many perspectives and can make recommendations as to what safety measures authorized by this part might be utilized to compensate for the silencing of the train horns within the proposed quiet zone.

   All Crossings Within a Proposed Quiet Zone

   The diagnostic team should obtain and review the following information about each crossing within the proposed quiet zone:

   1. Current highway traffic volumes and percent of trucks;

   2. Posted speed limits on all highway approaches;

   3. Maximum allowable train speeds, both passenger and freight;

   4. Accident history for each crossing under consideration;

   5. School bus or transit bus use at the crossing; and

   6. Presence of U.S. DOT grade crossing inventory numbers clearly posted at each of the crossings in question.

   The diagnostic team should obtain all inventory information for each crossing, and should check while in the field to see that inventory information is up-to-date and accurate. Outdated inventory information should be updated as part of the quiet zone development process.

   When in the field, the diagnostic team should take note of the physical characteristics of each crossing, including the following items:

   [sbull] Can any of the crossings within the proposed quiet zone be closed, or consolidated with another adjacent crossing? Crossing elimination should always be the preferred alternative, and it should be explored for crossings within the proposed quiet zone.

   [sbull] What is the number of lanes on each highway approach? Note the pavement condition on each approach, as well as the condition of the crossing itself.

   [sbull] Is the grade crossing surface smooth, well graded and free draining?

   [sbull] Does the alignment of the railroad tracks at the crossing create any problems for road users on the crossing? Are the tracks in superelevation (are they banked on a curve?) and does this create a conflict with the vertical alignment of the crossing roadway?

   [sbull] Note the distance to the nearest intersection or traffic signal on each approach (if within 500 feet or so of the crossing, or if the signal or intersection is determined to have a potential impact on highway traffic at the crossing because of queuing or other special problems).

   [sbull] If there is a roadway that runs parallel to the railroad tracks, and it is within 100 feet of the railroad tracks when it crosses an intersecting road that crosses the tracks, the appropriate advance warning signs should be posted as shown in the MUTCD.

   [sbull] Is the posted highway speed (on each approach to the crossing) appropriate for the alignment of the roadway, and the configuration of the crossing?

   [sbull] Does the vertical alignment of the crossing create the potential for a ``hump crossing'' where long, low-clearance vehicles might get stuck on the crossing?

   [sbull] What are the grade crossing warning devices in place at each crossing? Flashing lights and gates are required for each public crossing in a New Quiet Zone. Are all required warning devices, signals, pavement markings and advance signing in place, visible and in good condition for both day and night time visibility?

   [sbull] What kind of train detection is in place at each crossing? Are these systems old or outmoded; are they in need of replacement, upgrading, or refurbishment?

   [sbull] Are there sidings or other tracks adjacent to the crossing that are often used to store railroad cars, locomotives, or other equipment that could obscure the vision of road users as they approach the crossings in the quiet zone? Clear visibility may help to reduce violation of automatic devices.

   [sbull] Are motorists currently violating the warning devices at any of the crossings at an excessive rate?

   [sbull] Do accident statistics for the corridor indicate any potential problems at any of the crossings?

   [[Page 70686]]

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

   Private Crossings Within a Proposed Quiet Zone

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

   [sbull] How often is the private crossing used?

   [sbull] What kind of signing or pavement markings are in place at the private crossing?

   [sbull] What types of vehicles use the private crossing?

   School buses Large trucks Hazmat carriers Farm equipment

   [sbull] What is the volume, speed and type of train traffic over the crossing?

   [sbull] Do passenger trains use the crossing?

   [sbull] Do approaching trains sound the horn at private crossings?

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

   [sbull] Are there any nearby crossings where train horns sound that might also provide some warning at the private crossing where no horns sound?

   [sbull] What are the approach (corner) sight distances?

   [sbull] What is the clearing sight distance for all approaches?

   [sbull] What are the private roadway approach grades?

   [sbull] What are the private roadway pavement surfaces?

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

   Willful Section

   Violation violation

   Subpart B--Use of Locomotive Horns Sec. 222.21 Use of locomotive horn:

   (a) Failure to sound horn at grade

   $5,000

   $7,500 crossing........................... Failure to sound horn in proper

   1,000

   3,000 pattern........................

   (b) Failure to sound horn at least

   5,000

   7,500 15 and no more than 20 seconds before crossing.................... Sounding horn more than \1/4\

   1,000

   4,000 mile in advance of crossing.... Sec. 222.33 Failure to sound horn when

   5,000

   7,500 conditions of Sec. 222.33 are not met Sec. 222.45 Sounding locomotive horn

   1,500

   5,000 at a grade crossing within a quiet zone Sec. 222.49 (b) Failure to provide

   2,500

   5,000 Grade Crossing Inventory Form information............................ Sec. 222.59 (c) Routine sounding

   5,000

   7,500 locomotive horn at a grade crossing equipped with wayside horn.............

   \1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $20,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

   PART 229--[AMENDED]

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

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

   0 3. Section 229.129 is revised to read as follows:

   Sec. 229.129 Audible warning device.

   (a) Each lead locomotive shall be provided with an audible warning device that produces a minimum sound level of 96dB(A) and a maximum sound level of 110 dB(A) at 100 feet forward of the locomotive in its direction of travel. The device shall be arranged so that it can be conveniently operated from the engineer's usual position during operation of the locomotive.

   (b)(1) Each locomotive built on or after December 18, 2004, shall be tested in accordance with this section to ensure that the horn installed on such locomotive is in compliance with paragraph (a) of this section.

   (2) Each locomotive built before December 18, 2004, shall be tested in accordance with this section before December 18, 2008, to ensure that the horn installed on such locomotive is in compliance with paragraph (a) of this section.

   (3) Each locomotive when rebuilt, as determined pursuant to 49 CFR 232.5, shall be tested in accordance with this section to ensure that the horn installed on such locomotive is in compliance with paragraph (a).

   (c) Testing of horn locomotive horn sound level shall be in accord with the following requirements:

   (1) A properly calibrated sound level meter shall be used that, at a minimum, complies with the requirements of International Electrotechnical Commission (IEC) Standard 61672-1 (2002-05) for a Class 2 instrument.

   (2) An acoustic calibrator shall be used that, at a minimum, complies with the requirements of IEC Standard 60942 (1997-11) for a Class 2 instrument.

   (3) The manufacturer's instructions pertaining to mounting and orienting the microphone; positioning of the observer; and periodic factory recalibration shall be followed.

   (4) A microphone windscreen shall be used and tripods or similar microphone mountings shall be used that minimize interference with the sound being measured.

   (5) The test site shall be free of large reflective structures, such as barriers, hills, billboards, tractor trailers or other large vehicles, locomotives or rail cars on adjacent tracks, bridges or buildings, within 400 feet in front of the locomotive and within 200 feet to the sides of the locomotive and microphone. The locomotive shall be positioned on straight, level track.

   (6) Measurements shall be taken only when ambient air temperature is between 36 degrees and 95 degrees Fahrenheit inclusively; relative humidity is between 20 percent and 95 percent inclusively; wind velocity is not more than 12 mile per hour and there is no precipitation.

   (7) The microphone shall be located 100 feet forward of the front knuckle of the locomotive, 15 feet above the top of rail, at the center line of the track, and oriented with respect to the sound source according to the manufacturer's recommendations. The observer shall not stand between the microphone and the horn.

   (8) Background noise shall be minimal: the sound level at the test site immediately before and after each horn sounding event shall be at least 10 dB(A) below the level measured during the horn sounding.

   (9) Measurement procedures. The sound level meter shall be set for A-weighting with slow exponential response and shall be calibrated with the acoustic calibrator immediately before and after compliance tests. Any change in the before and after calibration levels shall be less than 0.5 dB. After the output from the locomotive horn system has reached a stable level, the A-weighted equivalent sound level (slow response) for a 20 second duration (LAeq,20s) shall be obtained either directly using an integrating-averaging sound level meter, or recorded once per second and calculated indirectly . The arithmetic-average of a series of at least six such readings shall be used to determine compliance. The standard deviation of the readings shall be less than 1.5 dB.

   [[Page 70687]]

   (10) The railroad shall maintain, at a location of its choice, records sufficient to show the date, manner and result of locomotive horn testing conducted in compliance with this part.

   (d) This section does not apply to locomotives of rapid transit operations which are otherwise subject to this part.

   Appendix B to Part 229--[Amended]

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

   Willful Section

   Violation Violation

   * * * * * * * 229.129 Audible warning device:

   (a) Prescribed sound levels.........

   $2,500

   $5,000 Arrangement of device...........

   2,500

   5,000

   (b) (1), (ii) Testing...............

   2,500

   5,000

   (c) Test procedures.................

   2,500

   5,000 (c)(10) Records of tests................

   2,500

   5,000

   * * * * * * *

   Issued in Washington, DC, on December 5, 2003. Allan Rutter, Administrator.

   [FR Doc. 03-30606 Filed 12-17-03; 8:45 am]

   BILLING CODE 4910-06-P