[Federal Register: January 13, 2000 (Volume 65, Number 9)] [Proposed Rules] [Page 2229-2270] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr13ja00-35] [[Page 2229]] Part II Department of Transportation _______________________________________________________________________ Federal Railroad Administration _______________________________________________________________________ 49 CFR Parts 222 and 229 Use of Locomotive Horns at Highway-Rail Grade Crossings; Proposed Rule [[Page 2230]] DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 222 and 229 [Docket No. FRA-1999-6439, Notice No. 1] RIN 2130-AA71 Use of Locomotive Horns at Highway-Rail Grade Crossings AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: FRA is proposing rules to require that a locomotive horn be sounded while a train is approaching and entering a public highway-rail crossing. The proposed 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 supplementary safety measures fully compensate for the absence of the warning provided by the horn. This rule is required by law. DATES: Written Comments: Comments must be received by May 26, 2000. Comments received after that date will be considered to the extent possible without incurring additional expense or delay. Public Hearings: FRA will hold public hearings to receive oral comments from interested parties. The dates and specific location of hearings will be announced in a subsequent Federal Register document and on FRA's web site at http://fra.dot.gov. Cities in which hearings will be held are listed in ADDRESSES section below. ADDRESSES: Written Comments: Anyone wishing to file a comment should identify the FRA docket and notice numbers (Docket No. FRA-1999-6439, Notice No.1). Comments should be sent to the Docket Management System, U.S. Department of Transportation, room PL-401, 400 Seventh Street, S.W., Washington, D.C. 20590-0001. Written comments will be available for public review during regular business hours at the above address and through the Internet at http://dms.dot.gov. Public Hearings: Public hearings will be held in the following cities: Los Angeles, California; Washington, D.C.; Ft. Lauderdale, Florida; Chicago, Illinois; South Bend, Indiana; Berea, Ohio; Pendleton, Oregon; and Boston, Massachusetts. The specific location and date of each hearing will be announced in a subsequent Federal Register document and on FRA's web site at http://fra.dot.gov. FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120 Vermont Avenue, N.W., Washington, D.C. 20590 (telephone: 202-493-6299); or Mark Tessler, Office of Chief Counsel, FRA, 1120 Vermont Avenue, N.W., Washington, D.C. 20590 (telephone: 202-493-6038). SUPPLEMENTARY INFORMATION: Background Approximately 4,000 times per year, a train and highway vehicle collide at one of this country's 262,000 public and private highway- rail grade crossings. Of those crossings, more than 158,000 are public at-grade crossings--those crossings in which a public road crosses railroad tracks at grade. During the years 1994 through 1998, there were 21,242 grade crossing collisions in the United States. These collisions one of the greatest cause of death associated with railroading, resulting in more than 400 deaths each year. For example, in the 1994-1998 period, 2,574 people died in these collisions. Another 8,308 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 eleven times more likely to result in a fatality, and five and a half times more likely to result in a disabling injury. 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 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. A. Who Is at Risk in a Grade Crossing Collision? Many people have argued 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 strongly agrees that drivers who unlawfully enter grade crossings should be fined by local police, but death or serious injury is simply not a just penalty. Overlooked in this emotional debate are the many innocent victims of crossing collisions, including blameless 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. Two hundred railroad passengers were also injured and two died. In Bourbonnais, Illinois, earlier this year, eleven innocent 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 [[Page 2231]] 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 innocent 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. B. 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. Sec. 351.03(4)(a) (1984). After enactment of this Florida law, many local jurisdictions passed whistle ban ordinances. 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 was 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 [[Page 2232]] 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. Day time collision rates were not increasing at the very same crossings that had whistle bans at night. If population was a factor, then the day time 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 night time 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. C. 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 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. The study also did not include crossings on small, short line 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. 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 has 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 are shown in Table 2. It is interesting to note that the mean train speed (train speed is positively correlated with fatalities) varies by type of collision. Please note that the number of fatalities shown for category ``hit by second train'' are included in the other categories (97 fatalities). Table 2.--Type of Collision ---------------------------------------------------------------------------------- Mean train Type of collision Injuries Fatalities speed ---------------------------------------------------------------------------------- Motor vehicle struck train......... 51 8 15.5 Train struck motor vehicle......... 224 89 25.4 Hit by second train................ 11 5 28.5 ---------------------------------------------------------------------------------- The driver was killed in the collision in 42 instances (5.3% 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%). 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%) at whistle-ban crossings the driver was moving over the crossing. Additionally, in almost every collision (97%), 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% 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. Collisions occurred on every railroad with crossings subject to whistle bans, and in 25 of the 27 states where bans were in effect. 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. [[Page 2233]] 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 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 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 supplementary safety measures 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 whistle ban docket. Another result of the outreach effort was the identification of 664 additional crossings that were 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. Recently, FRA updated its analysis of the safety at whistle ban crossings, expanding it to include data for all the Chicago area crossings as well as for a few other newly identified locations. BILLING CODE 4910-06-P [[Page 2234]]TP13JA00.000 BILLING CODE 4910-06-C 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, such as ``crossbucks'' or other signs). 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. 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 was 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. FRA will use 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 believes that 62 percent is appropriate because it represents the elevated risk associated with crossings with automatic gates and flashing lights, which are the only category of crossings that will be eligible for ``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 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. 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 [[Page 2235]] 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 judgement 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 show 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 has been 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 highways with relatively low traffic levels. FRA 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, 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 indicates that the smallest increase in collision frequency is associated with whistle bans at passive crossings, logic suggests 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. The conclusions drawn from the 1995 Nationwide Study and its recent update have helped determine the requirements of this rule. FRA appreciates the assistance and cooperation of the many organizations and individuals who contributed to this effort by reporting whistle ban locations, compiling data, researching ordinances, and sharing their concerns, ideas, and opinions. D. Congressional Action After reviewing FRA's Florida study, Congress addressed the issue. On November 2, 1994, Congress passed the Swift Rail Development Act, Public Law 103-440 (``Act'') which added section 20153 to title 49 of the United States Code. The Act requires the use of locomotive horns at grade crossings, but gives FRA the authority to make reasonable exceptions. Section 20153 of title 49 of the United States Code states as follows: ``Sec. 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'' 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 a supplementary safety measure. The following do not, individually or in combination, constitute supplementary safety measures 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, supplementary safety measures fully compensate for the [[Page 2236]] 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 supplementary safety measures 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 supplementary safety measures, 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 supplementary safety measures meeting the requirements of subsection (c)(1) of this section following successful demonstration of those measures. ``(f) SPECIFIC RULES.--The Secretary may, by regulation, provide that the following crossings over railroad lines shall be subject, in whole or in part, to the regulations required under this section: ``(1) Private highway-rail grade crossings. ``(2) Pedestrian crossings. ``(3) Crossings utilized primarily by nonmotorized vehicles and other special vehicles. ``(g) ISSUANCE.--The Secretary shall issue regulations required by this section pertaining to categories of highway-rail grade crossings that in the judgment of the Secretary pose the greatest safety hazard to rail and highway users not later than 24 months following the date of enactment of this section. The Secretary shall issue regulations pertaining to any other categories of crossings not later than 48 months following the date of enactment of this section. ``(h) IMPACT OF REGULATIONS.--The Secretary shall include in regulations prescribed under this section a concise statement of the impact of such regulations with respect to the operation of section 20106 of this title (national uniformity of regulation). ``(i) REGULATIONS.--In issuing regulations under this section, the Secretary-- ``(1) Shall take into account the interest of communities that-- (A) Have in effect restrictions on the sounding of a locomotive horn at highway-rail grade crossings; or (B) Have not been subject to the routine (as defined by the Secretary) sounding of a locomotive horn at highway-rail grade crossings; ``(2) Shall work in partnership with affected communities to provide technical assistance and shall provide a reasonable amount of time for local communities to install supplementary safety measures, 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.'' The last two subsections of section 20153 were added on October 9, 1996 when section 20153 was amended by Public Law 104-264. E. Rulemaking When conducting a rulemaking, FRA must follow the Administrative Procedure Act (5 U.S.C. 553 et seq.) (APA). The APA generally requires that FRA allow all interested parties to review and comment on any proposed rule. Thus, by this notice, FRA is providing the public an opportunity to study the proposed rule and comment on it. Based on comments and testimony provided in response to this notice, FRA will, after the close of the comment period, determine what action to take. There are two ways for you to share with FRA your opinions, experience or information about locomotive horns. First, the FRA can receive letters and other written remarks or reports. FRA places all of these comments in one place, the rulemaking docket. Please include the docket number on all comments submitted in response to this notice. The docket number for this rulemaking is ``Docket Number FRA-1999-6439.'' All written comments are placed in the docket, including scientific and technical reports on which FRA substantially relied when preparing the proposed rule. For example, the docket for this rulemaking includes, among many documents, copies of FRA's Florida and nationwide whistle ban studies. The public is free to inspect the rulemaking docket during regular business hours at the address listed above. Additionally, all documents in the docket are now available online at http://dms.dot.gov. The second way to make a comment on this rulemaking is to attend one of the scheduled public hearings. The hearings will provide interested parties an opportunity for an oral presentation. FRA will have a court reporter record each public hearing and will place a copy of the transcript of each hearing into the docket. FRA will review all written comments and testimony provided in the public hearings. F. Comments Received by FRA Because of the great interest in this subject throughout various areas of the country, FRA has been involved in an extensive outreach program to inform those communities which presently have whistle bans of one type or another in effect. FRA staff has attended a large number of meetings with local officials and citizens. FRA has also held a number of public meetings to discuss the issues and to receive information from the public. FRA broke from tradition and established a public docket before formal initiation of rulemaking proceedings in order to enable citizens and local officials to comment on how FRA might implement the Act and to provide insight to FRA. Establishment of the docket also enabled members of the public to learn what other interested parties thought about this subject. The vast majority of commenters were in favor of quiet zones in their communities. A number were in favor of the use of four-quadrant gates at affected crossings, while one person favored the less expensive articulated gates rather than four-quadrant gates. Some commenters indicated how they [[Page 2237]] think the Act should be amended. Of course, new legislative enactments are beyond the scope of this rulemaking, and FRA must implement the law as it now reads. Some commenters expressed the belief that state and localities were best suited to make the decisions regarding exemptions from the requirement that trains sound horns at crossings. A representative of the City of Portland, Maine wants the Act amended to empower the appropriate transportation agency for each state to grant local municipalities exemptions, since these officials ``are better able to properly assess the merits of any local community request for such a waiver.'' Examples of such exemptions that would be appropriate, according to this official, would be cases where the crossings are adequately protected, train speeds are no more than 30 miles per hour and vehicle speed is 35 miles per hour or less. This commenter also stated that all crossings which are flagged by the train crews or where the train crew activates the crossing signal should be exempt from locomotive horns. Similarly, the Maine Department of Transportation believes that ``the State's regulatory process should be retained under any rules proposed * * *.'' The state requests that an exception under the Act be granted to those states which, either by an adjudicatory process or by rulemaking, permit train whistling to be discontinued. The Chairman of the Board of Selectmen of the town of Acton, Massachusetts expressed strong opposition to the return of locomotive horns, and urged that FRA issue regulations ``so that each state could make its own determination as to the appropriate level of safety devices needed at each grade crossing.'' Similarly, a Wisconsin state representative requests that FRA ``empower states with the available expertise, such as Wisconsin's Office of the Commissioner of Railroads, to make their own rules. The states, better than the federal government, know the local conditions and have contact with the citizens who are represented directly in the State Legislature.'' This same legislator closed his comment by stating that ``I hope this letter reaches a human being who will read it and I hope it will go to a deliberative body who truly cares about the true needs of our citizens.'' FRA wishes to assure the writer, and the public generally, that indeed we do care about the needs of our citizens. In addition to the citizens who may be disturbed by locomotive horns, we are concerned about the safety of the driver of a car at a grade crossing, the driver's innocent passengers, members of train crews, as well as nearby residents who may be injured by collisions at crossings. The intent of this rule is to help provide for safe grade crossings without unduly burdening nearby residents. A number of commenters felt that costs associated with alternative safety measures should be borne by parties other than the local or state government. A Massachusetts state senator stated that FRA should require the railroad to assume the costs associated with two crossings in his town. An organization of bed and breakfast owners in Vicksburg, Mississippi objected to what they described as ``intense noise'' from local trains. The group urged that FRA ``adopt a liberal policy permitting alternative grade crossing safety devices that would eliminate the need for the train horns.'' The group added, ``Of course, a financial assistance program to accomplish these alternatives is also essential.'' The Town of Ashland, Massachusetts argues that the railroad's cost of doing business should not be transferred to the town and taxpayers. ``Responsibility for this [measures to minimize disruption caused by these crossings] must be put squarely on the operators of the railroad. * * *'' Two commenters have raised the issue as to whether rural and urban areas should be treated in the same manner. One commenter stated that ``the Act no doubt should apply in full force to rural sections of America, but such provisions are quite out of line with the logical treatment of those areas of the land where the population is far heavier.'' Another commenter urged FRA to establish maximum decibel levels for locomotive horns which ``should be considerably lower in urban areas than in sparsely populated rural areas.'' Various commenters have proposed that specific provisions be contained in FRA's regulations. One commenter proposes that the regulation be waived for any crossing within 300 yards of a residence. Many commenters expressed the view that many communities with present whistle bans have excellent safety records and therefore sounding of locomotive horns will only disrupt residents' lives with no real impact on safety. The city attorney for Bellevue, Iowa indicated that the railroad tracks run down the center of a main street in the city. He points out that slow train speed, locomotives equipped with ditch lights, stop signs at crossings, and the sounding of the locomotive bell all have contributed to only 5 collisions, one injury, and no fatalities in almost 7 years of train traffic averaging 8 trains a day. He claims that locomotive horns along the 15 crossings in town will have a minimal affect on safety, but will have a maximum effect on the quality of life of most of Bellevue's residents. Similarly, the mayor of Batavia, Illinois indicated that because the city has a good rail safety record, the ``whistle blowing standards that have been set forth in this Act are not necessitated and would cause unnecessary discomfort to our constituency.'' These commenters, along with others, recommend that a community's safety record be a factor in determining whether locomotive horns need to be sounded. FRA 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 Transportation Study conducted by the Council of Mayors states that it represents over 200 cities and villages with over 4 million residents outside of Chicago. The study authors recommended that FRA's regulations include provisions for: (1) Accident reduction programs tailored to the magnitude and type of accident experience at individual crossings; (2) recognition of the effectiveness of enhanced enforcement of existing rail safety laws and public education programs; (3) use of less costly physical barriers such as flexible median delineator tubes and articulated railroad crossing gates; (4) use of strobe lights and more visible paint schemes on locomotives and cab car fronts and reflective delineators on the sides of railroad cars; and (5) exemptions from locomotive horns if a community or subregion's accident experience is under a specified threshold. These proposals were echoed by 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, emphasized the large number of rail lines, large number of daily train movements and high volume of pedestrian and motor vehicle movements over area grade crossings. The Conference pointed out that the citizens have grown to rely on locomotive horns in cases of impending danger, not for warning of the routine approach of a train. The Conference indicates a downward trend in grade crossing collisions over the past ten years, and attributes a significant portion of that decline to stepped-up law enforcement efforts by municipalities and more focused public [[Page 2238]] awareness programs. Rather than providing for engineering improvements to decrease collisions at crossings, the Conference recommends that a community or subregion be exempt from both locomotive horn soundings and the requirement to install supplementary safety measures if the area's collision experience is under a specified threshold. The Conference states support for aggressive enforcement and education programs as well as less costly physical barriers such as flexible median delineator tube. The Conference is also in favor of a state- level oversight mechanism, rather than federal oversight, ``given the already close working relationship that must exist between state highway and rail-related agencies.'' FRA particularly appreciates the efforts of 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. In the Chicago region, Rep. Henry Hyde of Illinois chaired a public meeting attended by the FRA Administrator, with participation by other Members of Congress and a number of public witnesses. Rep. William Lipinski also convened a district meeting with the Administrator in attendance that permitted a full airing of community concerns. These Chicago-area forums called attention to the large number of commuter and freight trains that would be required to sound horns along rail lines where many of the engineering concepts embodied in E.O. 15 would be difficult or impossible to implement, without substantial revision. Representatives from DuPage County proposed the concept of aggregating and abating risk by corridor rather than by crossing, a concept embodied in this proposal. Concerns were raised by an association of local governments regarding the identification of crossings currently impacted by informal bans on train horns, and those concerns led to an extensive data collection effort to complete the identification of impacted communities and re-analyze the accident data in light of this new information. Although most witnesses opposed any rulemaking in this area, a DuPage County citizen group formed to promote highway-rail crossing safety supported the use of train horns. Senior FRA staff members also joined Rep. Tim Roemer and officials from the State Department of Transportation in meetings with city officials and citizens from South Bend and Mishawaka, Indiana, to consider the implications of the forthcoming rulemaking on those communities, where whistle bans are in place over most crossings. Concern was expressed that residents along the railroad would have to ``pay the price'' for violation of warning systems by individual motorists. Serious crashes had occurred along the Conrail line that bisects these cities, and options were reviewed for making improvements that might offset the train horn. Cost was identified as a critical issue for the local governments. The office of Senator Edward Kennedy convened a meeting involving FRA senior staff early in the agency's outreach effort that was attended by several elected officials, who expressed concern over the prospective rulemaking. Senior FRA staff members attended separate district meetings in Massachusetts convened by Rep. Martin Meehan and Rep. John Tierney. These congressional districts are significantly impacted by scheduled commuter service. Residents and officials called attention to the generally good safety record at local crossings and the incompatibility of train horns with the quiet of their communities. Concern was also expressed regarding the public health effects of loud train horns and the cost of supplementary safety measures. Citizens and officials involved in several of these contacts expressed concern that the proposed rule would impose ``unfunded mandates'' on local communities. Without exception, the offices of Members of Congress and Senators contacting FRA in this proceeding have expressed that FRA seek flexible solutions and allow ample time for communities with existing whistle bans to adjust to any new requirements. Additional issues raised in the course of these contacts, briefings for congressional staff, and other communications are set forth elsewhere in this preamble, including the section-by-section analysis. In-Vehicle Warning Systems FRA periodically receives suggestions from the public that electronic devices should be installed on motor vehicles to warn of approaching trains, thereby eliminating the need for locomotive horns. Over the long term, systems may be deployed that permit broadcast notifications to motorists warning of the passage of trains over highway-rail crossings. If these systems are sufficiently reliable and use is widespread, sounding of the train horn may be discontinued. This type of warning may be achieved through integration of Intelligent Transportation Systems (ITS) deployed for highway use, together with elements of Positive Train Control (PTC) systems that will govern train movements and provide accurate data concerning location, direction of movement and velocity (or that may function on the train to notify information systems through location-specific interfaces). Such systems will not be widely deployed for some time, but a clearly delineated ``user service'' (Number 30) has been established within the architecture of the Intelligent Transportation Systems program as a venue for research and planning. FRA's PTC Working Group (a part of the Railroad Safety Advisory Committee) has also identified this as a possible auxiliary function for PTC. In the interim, FRA expects progress toward in-vehicle warning for priority vehicles such as school buses, emergency vehicles and the like. Concepts for ``proximity warning'' have been evaluated with Department of Transportation funding at the Transportation Technology Center, and field operational tests were conducted in 1998. The State of Illinois is demonstrating a priority vehicle system in the Chicago metropolitan area. A commercial vendor is offering a radar system for private motor vehicles that is designed to detect a train's approach, assuming the lead locomotive to be equipped with a radar unit. FRA will continue to work with the Federal Highway Administration and other transportation bodies to identify promising strategies for priority vehicle warning system. Consideration has also been given to transmitting train proximity warnings through new generations of car radios equipped to receive such transmissions, sound audible warnings, and display text messages. This Emergency Radio Data System (ERDS) is used in several European countries and is proposed for demonstration in the U.S. as part of ITS development. This approach would use consumer electronics as the in- vehicle platform. Successful in-vehicle systems will need to meet several criteria in order to be candidates for wide-scale application to all passenger motor vehicles: 1. Systems must be fail-safe; or they must be shown to be so highly reliable that their utility as a warning system exceeds the loss of safety associated with inappropriate reliance on the system when in the failure mode. 2. Systems must be affordable for the vehicle owner, as well as the railroad charged [[Page 2239]] with equipping locomotives. 3. False alarms must be infrequent, or the system will lack credibility and may be subject to being defeated (if false alarms produce annoyance). Clearly, before train horns could be silenced, essentially all trains and motor vehicles would need to be equipped with the in-vehicle warning system. With respect to private motor vehicles, such a feature is most likely to be implemented as part of a multi-function ITS package. Although Intelligent Transportation Systems offer significant promise for enhancing rail safety and perhaps entirely replacing the function currently served by the train horn, this alternative is not available as a realistic option on a community-by-community basis at the present time. G. Proposed Rule FRA has reviewed information obtained through our ``outreach'' efforts, comments submitted to the public docket and other unsolicited comments sent to the agency by concerned citizens, communities, and legislators. FRA has considered that information and has attempted, within the statutory framework established by Congress, to accommodate many of the legitimate concerns expressed. We anticipate that many constructive comments will result from public analysis of this proposal and that the proposed rule may be changed as a result of the public input. In drafting this proposed rule, FRA has attempted to reconcile Congress' two, somewhat conflicting, directives. The first directive, which is unambiguous, is that ``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.'' This directive does not allow any discretion as to issuance of the regulation requiring the sounding of horns. The Secretary, and by delegation, the Federal Railroad Administrator, must require that horns are sounded at every public grade crossing. The second directive, however, is entirely discretionary. The Secretary ``may'' exempt from the requirement to sound the locomotive horn certain categories of rail operations or categories of crossings. While exceptions may be crafted, they are not required. This proposed rule, which does contain provisions for such exceptions, is essentially a rule which reduces the impact of the Congressional locomotive horn mandate. It provides communities with the ability to reduce the impact of locomotive horns within their jurisdictions. The basis of this proposed rule is the determination by Congress that locomotive horns provide a measure of safety at highway-rail grade crossings beyond that provided by the conventional stationary grade crossing warning systems of crossing gates and flashing lights. Because of the added safety benefits afforded by locomotive horns, they must be sounded unless an effective substitute is provided. The proposed rule is crafted to detail when and how locomotive horns must be sounded. For the first time, FRA proposes limits to the sound level of locomotive horns to provide some relief to the surrounding population while still ensuring that the sound level is high enough to provide the required warning to the motorist. The rule requires that horns be sounded at every public highway- rail crossing. FRA has provided an exception to this requirement for crossings within a designated ``quiet zone.'' If all crossings within that zone are equipped with approved supplementary safety measures in addition to conventional gates and flashing lights, locomotive horns will not need to be sounded (subject to the rule requirements). The rule further provides that if a community wishes to establish a quiet zone, but it can not, for some reason, fully comply with the rule's requirements for supplementary safety measures at every crossing within the zone, it may apply to the FRA with its proposed program of safety measures. FRA will evaluate the community proposal to determine if the safety measures will compensate for the lack of a locomotive horn. Finally, the rule provides a very limited exception to the requirement that supplementary or alternative safety measures must be in place if locomotive horns are to be silenced. As required in section ``j'' of the Act, any regulations issued pursuant to the Act shall not take effect for one year following the date of publication of the final rule. As a result, the regulation's requirements to sound the locomotive horn (absent establishment of a quiet zone) will not be effective until one year after publication of the final rule. The one year period, in addition to the period between publication of this proposed rule and the final rule, will enable communities to assess options and plan for those actions deemed best for that particular community. FRA anticipates that during the one year between final rule publication and its effective date, communities will wish to initiate the administrative process involved in establishing quiet zones so that, if desired, they can have quiet zones in place on the anniversary of the rule publication. Therefore, FRA anticipates that for administrative purposes only, the final rule will have an effective date 60 days after publication. The final rule, of course, would not impose any requirement for the sounding of locomotive horns before one year after final rule publication. FRA requests comments on this proposal. Section-By-Section Analysis Section 229.129 Audible Warning Device As noted earlier, FRA has a rule at, 49 CFR 229.129, which requires that each lead locomotive be provided with an audible warning device. That provision currently requires that the warning device produce a minimum sound level of 96 dB(A) at 100 feet forward of the locomotive in its direction of travel. Over the past few years FRA has received many complaints regarding the loudness of various locomotive horns. While the regulation appropriately required a minimum sound level in order to assure the horn's effectiveness, it did not restrict the maximum sound level of a locomotive horn. This section would correct that situation and would establish a maximum sound level that an audible warning device may produce. (Proposed language for this section can be found at the end of this document following proposed regulatory language for new Part 222.) This section would also revise the directionality requirements of the regulation. It would establish a maximum sound level to the side of the locomotive in order to reduce the horn's effect on the surrounding community. FRA is faced with the task of balancing the need for an effective warning to the motorist while minimizing the horn's intrusion into the surrounding community. There are a number of factors which influence the ability of a motorist to hear a train horn. These include: The sound spectrum level (intensity at each frequency) of the horn, distance from the horn, ambient noise spectrum level in the motor vehicle, the acoustic insertion loss of the vehicle (sound reflected and absorbed by the vehicle which does not enter the vehicle interior), and the characteristics of the grade crossing. The human ear is only sensitive to sounds between 20 and 20,000 hertz (Hz), and is most sensitive in the range between 500 and 5,000 Hz. Hearing sensitivity declines sharply for higher and lower frequencies. As distance from a sound source increases, the effective intensity of the sound [[Page 2240]] decreases by approximately 7.5 dB for every doubling of the distance. For instance, if the calibrated intensity of the train horn at 100 feet is 100 dB(A), then at 200 feet it is 92.5 dB(A). Ambient noise in the vehicle can reduce the motorist's ability to hear the train horn through masking. Masking would be strongest when the frequency of the noise is at the same frequency of the train horn. In general, this means that the spectrum level of the horn inside the vehicle must exceed that of ambient noise for the horn to be heard. Determining the required minimum level and the required maximum level for the train horn requires a balance between effectiveness as a safety warning and mitigation of undesirable community noise impacts. In the past, some mitigation of noise impacts has occurred through exercise of discretion by locomotive engineers who have sought to limit community impacts by ``going easy'' on the air horn control. A Federal mandate to use this warning device will inevitably change accepted practice. Although engineers have undoubtedly sought to exercise good judgment in this regard, whether this exercise of discretion has been uniformly benign is not known and not determinable using existing data. Recent installation on some newer locomotives of electronic controls for operation of horns may have resulted in the maximum intended sound levels routinely under all circumstances. Again, whether this automation of the horn function has improved safety cannot be determined from available data. Although highway-rail crossing safety has continued to improve during this period despite increased exposure, many other variables (such as improved education and awareness programs, strengthened law enforcement, equipping of locomotives with alerting lights, installation of warning devices at high-risk crossings, and crossing closures) are likely responsible for most of this improvement. Even the maximum sound level available from the horn has varied widely among segments of the locomotive and cab car fleets. FRA is aware that a major commuter authority sets the output of the horns on at least a portion of its commuter equipment at the minimum allowed (96 dB(A) at 100 feet, ``plus or minus'' 4 dB(A) for actual field testing). By contrast, many freight locomotives have horns that deliver as much as 114 dB(A) at 100 feet in front of the locomotive. Locomotive horns that proved highly effective in the warm climate through which the Florida East Coast Railway operates (where many motorists may have driven with open vehicle windows in mild nighttime hours) have apparently been set at about 104 dB(A), but it may not be reasonable to expect similar effectiveness at this level under other conditions. FRA is particularly concerned that railroads not be required to reduce horn levels across the board to accommodate local community sensitivities, if that will result in reduced horn effectiveness at the majority of crossings that are not located in tightly-developed noise-sensitive areas. The Volpe National Transportation Systems Center (Volpe Center) has been studying train horn issues for FRA in support of this rulemaking. Based upon field data collection and analysis the Volpe Center has suggested that, for peak safety effectiveness, train horns should be set at approximately 111-114 dB(A). This range takes into consideration the need to provide adequate advance warning to as many motorists as practical. This would include a high percentage of motorists stopped, or approaching at low speed, crossings with automated warning devices. Behavioral science suggests that these motorists may have an expectation that a train is nearing the crossing. Under these circumstances, the train horn can be very effective because the motorist is listening for an auditory cue. Even if the ``insertion loss'' associated with closed vehicle windows and sound insulation is in the range of 18 to 45 dB(A), and despite some degree of background noise associated with the vehicle's engine and other interfering noise, the train horn should add significant value in these cases. Preliminary analysis by the Volpe Center appears to indicate that under most circumstances of crossing configuration and train speed, a train horn set in the range of 104-105 dB(A) at 100 feet in front of the locomotive may provide a sufficient auditory cue to alert the motorist who pauses at a crossing with active warning systems that the arrival of the train is imminent. The greater challenge is presented by passively signed crossings. Although FRA does not propose to allow banning of train horn use at passively signed crossings and crossings with only flashing lights, the train horn will nevertheless remain an important warning system at those crossings. Reducing the allowed sound level by setting a maximum in this proceeding could thus lead to a net reduction in safety. At passively signed crossings, overall risk to the public is generally less because of fewer conflicting movements of trains and vehicles. However, the risk to any given motorist seeking to use the crossing during the period a train is approaching is much higher. Motorists seeking to act wisely by yielding to the train are entitled to fair warning of the train's approach. Even with all lights (headlight and ``ditch'' lights) functioning, a train is sometimes difficult to pick out against the visual background. Further, due to such factors as buildings, mature stands of trees, track curvature, and the angle of motorists' approach, sight distances at many crossings do not permit a long preview of the train's approach. A sufficiently loud auditory warning will tell the motorist that a train is approaching and from what direction (within about 10 degrees for a person of good hearing in both ears under optimum circumstances). This will give the motorist more opportunity to sight the oncoming train at the first opportunity, evaluate its rate of approach, and make a safe decision. The challenge at passively signed crossings is to provide warning sufficiently early to affect motorist behavior. This is more difficult, because the motorist approaching the crossing in most cases (except where an enforced STOP sign is present) will not stop and may not slow down except as required by unevenness of the road surface. The motorist's decision point is thus farther away from the crossing and (in the typical case) from the train horn. According to the Volpe Center, a vehicle traveling at 30 miles per hour may have interior noise level in the range of 21 to 63 dB(A) from its engine and typical road noise. A loud sound system playing music or other programming will add to this background noise. Depending upon the train horn harmonics, the Volpe Center estimates that a horn sound level in the range of 111- 114 dB(A) may be sufficient to warn most motorists at passive crossings for all conventional train speeds, despite the fact that the horn sound as inserted into the vehicle must exceed the background noise by a larger margin than at crossings with automated warning devices in order to seize the motorists' attention. However, reducing the train horn level from that range is expected to result in a rather rapid fall-off of effectiveness at passively signed crossings. The result will be that the horn will be effective only at lower combined closing speeds for the vehicle and train approaching the crossing, leaving motorists without effective warning under a larger number of real-life scenarios. Community impacts are also highly sensitive to train horn levels-- but in the opposite direction. Volpe Center calculations suggest, for instance, that just reducing train horn levels from 114 [[Page 2241]] dB(A) to 111 dB(A) would almost double the number of train movements permitted before a common 24-hour measure of acceptable community noise levels (Ldn=65 dB(A)) is exceeded at any given distance from the railroad right-of-way. This measure of acceptable community noise levels was developed to evaluate noise from frequent transportation movements (aircraft overflights, transit vehicle passes), in connection with public investments in new transportation facilities and equipment. FRA has grave reservations concerning whether such a standard could be appropriately applied to evaluate the acceptability of short-duration warning sounds necessary for safety in an existing transportation system. Train horn noise has been excepted from Environmental Protection Administration limits on railroad noise emissions because of these kinds of differences. Nevertheless, FRA recognizes the importance of imposing no greater noise impacts on local communities than may be necessary for safety. Accordingly, as discussed below FRA will be conducting an environmental assessment in parallel with this rulemaking and utilizing the results of that effort in preparing a final rule. FRA does not propose to conclude this rulemaking without setting a maximum level for the train horn. Although FRA is skeptical, based on noise readings taken in locomotive cabs, that train horns have been set at levels exceeding approximately 114 dB(A)--a level that does not appear excessive given the safety needs involved--FRA does recognize that the mandate to use the horn implicates a responsibility to set a maximum level. For purposes of this proposed rule, therefore, FRA is proposing two specific options, with a third concept suggested for comment. Under both options the minimum level would remain at 96 dB(A). However, in order to avoid significant loss of warning effectiveness, field tests would not include the current ``plus or minus'' allowance for error. Tests in the field would be required to demonstrate a sound level of at least 96 dB(A) at 100 feet in front of the locomotive and to comply with a specified maximum level. To avoid non-representative results caused by environmental extremes, testing would be required to be conducted within a range of temperature of 36 and 95 degrees Fahrenheit with relative humidity between 20 and 90 percent. Both temperature and humidity affect the propagation of sound waves. Options for maximum level. Under the first option, the maximum permissible train horn sound level would not exceed 104 dB(A), which is believed to be sufficient in most circumstances to provide adequate warning at crossings using automated warning devices (where the motorist makes a decision while at rest near the crossing, expecting the train to arrive). Under the second option, the train horn could be set at up to 111 dB(A), which is in the range where the horn is believed to be effective under many circumstances at passively signed crossings (where the motor vehicle is in motion at the decision point and the motorist have been provided no contemporaneous reason to expect to see a train). As soon as they are completed, FRA will place in the docket Volpe Center studies providing information pertinent to this analysis. Variable level option. FRA notes that one possible approach to addressing this issue is a variable horn level. Under this approach, train horns would be required to be capable of sounding within a low range (e.g., 96-104 dB(A)) approaching any crossing with active warning devices and within a higher range (e.g., 104-111 dB(A)) at any crossing not equipped with automated warning systems. FRA notes concern that this could place an additional burden on the locomotive engineer and that sounding the horn in this pattern would not be feasible where crossings are closely spaced and are not uniformly treated with automated warning devices. Accordingly, at a minimum simplified procedures requiring the engineer to take the safe course would be required in these circumstances. Commenters are asked to evaluate this approach as a third option. Directionality. Under current regulations, some locomotive horns have been placed near the center of the locomotive in order to reduce crew noise exposure. Although providing at least 96 dB(A) at 100 feet in front of the locomotive, these arrangements have sometimes led to higher sound levels at right angles to the locomotive than to the front or rear. This has resulted from obstructions such as diesel exhaust stacks and air conditioning units causing the horn noise to disperse. FRA believes that this approach is not necessary for crew safety and is inconsistent with the responsibility of the transportation company to limit community noise impacts. Accordingly, the proposed rule would require that the sound levels at 90 degrees and 100 feet from the center of the locomotive not exceed the value 100 feet in front of the locomotive. FRA also requests comment whether this community exposure should be measured at 90 degrees from the horn placement location, rather than the center of the locomotive. Crew safety concerns. FRA does not expect locomotive crew exposure to be a limiting factor in this rulemaking. In a 1996 Report to Congress entitled Locomotive Crashworthiness and Cab Working Conditions, FRA described the results of a survey of cab noise levels and the literature dealing with occupational hearing loss. The report found noise exposure for most locomotive assignments to fall within acceptable levels and noted that cabs of new locomotives are exceptionally quiet because they provide an environment that is isolated from the locomotive structure and temperature controlled (permitting windows to remain closed). However, the report identified the need to improve FRA's noise exposure standard for locomotive cabs and to adopt a hearing conservation approach to this area of occupational safety and health. A working group of the Railroad Safety Advisory Committee is currently pursuing these improvements, and comments from within that working group have prompted the suggestion noted above for a variable sound level for the horn. Depending upon the circumstances under which the low sound level might be selected by the locomotive engineer, having this option available could reduce the overall noise dose to which crew members are subjected during any duty tour. In any event, FRA expects that continued improvements in locomotive design, use of personal hearing protection, and other initiatives now under study should permit further reduction in occupational noise exposure over the coming years. Costs. FRA recognizes that varying the loudness of the locomotive horn by adapting to a new maximum level, providing for a variable level, or relocating a horn to avoid excessive levels to the ``field'' could result in costs to the railroads. FRA requests comment on the extent of the costs involved and the optimum means of achieving any necessary retrofit of locomotives, including the period that should be allowed to accomplish this work. Section 222.3 Application The requirements contained in this part apply to all railroads, both passenger and freight, which operate on the general railroad system of transportation, i.e., the network of standard gage railroads over which the interchange of goods and passengers throughout the nation is possible. This part does not apply to exclusively freight railroads that operate only on track which is not part of the general [[Page 2242]] system of transportation. This part also does not apply to rapid transit operations within an urban area that are not connected to the general railroad system of transportation. In other recent rulemakings, FRA has discussed the basis for its exercise of jurisdiction over ``scenic'' or ``tourist'' railroads. FRA has declined to exercise jurisdiction over insular scenic or tourist railroads i.e., passenger railroads operating inside an installation so that the operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of the public-- except a business guest, licensee of the railroad or an affiliated entity, or a trespasser--would be affected the operation. FRA has determined that the presence of certain characteristics will prevent the railroad from being considered insular and thus will result in FRA's exercise of jurisdiction over that railroad. The presence of one of the following characteristics will trigger the assertion of FRA regulatory jurisdiction: (1) A public highway-rail crossing that is in use; (2) an at-grade rail crossing that is in use; (3) a bridge over a public road or waters used for commercial navigation; or (4) a common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad. Inasmuch as this proposed rule is directed at locomotive horn use at public highway-rail grade crossings, the rule will thus apply to every tourist or scenic railroad crossing a public highway rail grade crossing, whether or not the railroad is part of the general railroad system of transportation. The language of this proposed section reflects that result. FRA recognizes that additional public grade crossings may be found on plant railroads and freight railroads which are not part of the general railroad system of transportation. Operations on these railroads are typically low speed with small numbers of rail cars permitting relatively short stopping distances. Additionally, these operations typically also involve roadway crossings with relatively low speed vehicular traffic. These reasons, together with the historical basis for not asserting jurisdiction in these cases, leads FRA to propose not to exercise jurisdiction over public and private crossings at such plant and private railroads. FRA does, of course, retain the statutory right to assert jurisdiction in this area and will do so if circumstances so warrant. As in all aspects of this proposed rule, FRA invites comments on the jurisdictional determinations proposed in this notice. Section (f) of the Act explicitly gives discretion to the Secretary on the question of whether to subject private highway-rail crossings, pedestrian crossings, and crossings utilized primarily by nonmotorized vehicles and other special vehicles to this regulation. At this time, FRA is proposing to exercise its jurisdiction in a limited manner regarding these crossings. Although 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. FRA will, however, permit the establishment of quiet zones on rail line segments which include private crossings. To do otherwise would undermine a major purpose of the Act. While we believe that, absent compensating warning or protective devices, sounding of locomotive horns provides a safer highway-rail crossing, it may be sufficient that the locomotive bell, rather than horn, be rung prior to entering a pedestrian or other non-highway crossing. At such crossings, pedestrians, horse-drawn vehicles, bicycles, and equestrians enter the crossing at a significantly slower speed than motor vehicles, are not enclosed as in an automobile or truck, and do not face the same distractions as those confronting motorists. FRA therefore proposes to decline to exercise jurisdiction over the use of locomotive horns at such crossings. Section 222.5 Preemptive Effect This section provides notice that pursuant to 49 U.S.C. 20106, issuance of these regulations preempts any State law, rule, 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 Federal law or regulation and does not unreasonably burden interstate commerce. Accordingly, all existing local ordinances and state statutes relating to whistle bans or to the sounding of locomotive horns at public highway-rail crossings will be preempted by this regulation unless such ordinances or laws fall within the exception contained within 49 U.S.C. Sec. 20106. This rule, however, does not confer authority on localities to establish quiet zones if state law does not otherwise permit such actions. Section 222.7 Definitions This proposed rule uses various terms which are not widely understood or which, for purposes of this rulemaking, have very specific definitions. This section defines the following terms: ``Barrier curb'' means a highway curb designed to discourage a motor vehicle from leaving the roadway. FRA proposes to define such curb as a curb more than six inches, measured from the surface of the roadway. As with mountable curbs and channelization devices, additional design requirements are left to the standard specifications used by the governmental entity constructing the engineering improvements. ``Channelization device'' means one of a continuous series of highly visible obstacles placed between opposing highway lanes designed to alert or guide traffic around an obstacle or to direct traffic in a particular direction. Channelization devices must be at least 2.5 feet high and placed a maximum of seven feet apart. ``Effectiveness rate'' means the effectiveness of a supplementary safety measure in reducing the probability of a collision at a highway- rail grade crossing. (Effectiveness is indicated by a number between zero and one which represents the reduction of the probability of a collision as a result of the installation of a supplementary safety measure when compared to the same crossing equipped with conventional automated warning systems of flashing lights, gates and bells. Zero effectiveness means that the supplementary safety measure provides no reduction in the probability of a collision (there is no effectiveness) while an effectiveness rating of one means that the supplementary safety measure is totally effective in reducing collisions. Measurements between zero and one reflect the percentage by which the supplementary safety measure reduces the probability of a collision. Thus, a supplementary safety measure with an effectiveness of .37 reduces the probability of a collision by 37 percent). ``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 in the railroad industry. Specifications concerning audible warning devices on locomotives other than steam locomotives are contained in 49 CFR 229.129. `'Median'' means an ``island'' or the portion of a divided highway separating [[Page 2243]] the travel ways for traffic in opposite directions. A median is bounded by mountable or barrier curbs. ``Mountable curb'' means a highway curb designed to permit a motor vehicle to leave a roadway when required. It is a curb not more than six inches high measured from the roadway surface, with a well rounded top edge. Additional design specifications are determined by the standard traffic design specifications used by the governmental entity constructing the mountable curb. ``Positive train control territory'' means, for purposes of this part, a line of railroad on which railroad operations are governed by a train control system which is capable of determining the position of the train in relation to a highway-rail grade crossing and capable of computing the time of arrival of the train at the crossing which results in the automatic operation of the locomotive horn or the automatic prompting of the locomotive engineer such that the horn is sounded at a predetermined time prior to the locomotive's arrival at the crossing. `'Public highway-rail grade crossing'' means a location where a public highway, road, or street, including associated sidewalks or pathways, crosses one or more active railroad tracks at grade. Public highway-rail grade crossing, also referred to in this part as ``highway-rail crossings'', ``public grade crossing'', and ``grade crossing'', includes pedestrian walkways or other pathways when associated or part of a larger public highway, road or street crossing. ``Quiet zone''means a segment of a rail line within which is situated one or a number of consecutive highway-rail crossings at which locomotive horns are not routinely sounded. ``Railroad'' means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including (i) 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 (ii) 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. ``Supplementary safety measure'' 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 and that is determined by the Administrator to be an effective substitute for the locomotive horn in the prevention of highway-rail casualties. ``Whistle board'' means a post or sign directed toward oncoming trains and bearing the letter ``W'' or equivalent symbol, erected at a distance from a grade crossing, which indicates to the locomotive engineer that the locomotive horn should be sounded beginning at that point. Section 22.9 Penalties. This provision provides civil penalties for violations of requirements of this regulation. Any person or railroad who violates or causes a violation is subject to a civil penalty of up to $11,000. Penalties may be assessed against individuals only for willful violations. Penalties of up to $22,000 can be assessed for violations caused by gross negligence, or where a pattern of violations has created a risk or was the cause of death or injury to any person. 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. Section 222.11 Petitions for Waivers This section explains the process for requesting a waiver from a provision of this regulation. FRA has historically entertained waiver petitions from parties affected by 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 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 the 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 Sec. 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 the Federal Railroad Administrator) the authority to waive in whole or part any requirement of Sec. 20153 (with certain limited exceptions) if it is determined not to contribute significantly to public safety. FRA thus proposes 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 proposes to require 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. [[Page 2244]] 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 uses will not be diminished. The Administrator may grant the waiver subject to any necessary conditions required to maintain public safety. Subpart B--Use of Locomotive Horns Section 222.21 When To Use Locomotive Horns Paragraph (a) of this section would require that, except as provided elsewhere in this part, a locomotive horn on the lead locomotive of a train, or the lead locomotive of a consist of locomotives, or on an individual locomotive must be sounded when the locomotive or lead car is approaching and passes through each public highway-rail crossing. The locomotive horn must be sounded with a series of two long, one short, and one long horn blasts to signify the locomotive's approach to a crossing. FRA is adopting the industry standard as the required indicator of the approach of a locomotive to a crossing. This paragraph also requires that the horn be blown at the location required in paragraph (b) and that the horn warning be repeated or prolonged until the locomotive or train occupies the crossing. The remaining paragraphs of this section address the specific location at which the sounding of the locomotive horn should be initiated. Establishment of this point is important both to provide adequate warning to the motorist and also to not unnecessarily impose the loud locomotive horn noise upon the surrounding community. In drafting paragraph (b), FRA has attempted to address the fact that various states have long established requirements governing the location at which the horn must be sounded. Although those requirements would be preempted by this rule, rather than require immediate wholesale changes of whistle boards and timetable instructions, FRA is not proposing to immediately change the practical effects of present state requirements, if any. However, if a railroad changes the maximum authorized track speed on a line of railroad approaching a grade crossing, the location where the locomotive engineer is required to sound the horn (as indicated by whistle board or other method) must then be adjusted to reflect the change. The adjustment at that time would be made irrespective of conflicting state law. This paragraph further establishes (within the 1/4 mile limitation contained in paragraph (e)) the location at which the locomotive horn should be sounded. If using whistle boards, the railroad must place them at a distance from the crossing equal to the distance traveled by a train in 20 seconds while operating at the maximum speed allowed for any train operating on the track in that direction of movement. Because a fixed location for sounding of a horn results in differing periods of warning depending on the speed of the train or locomotive, the location of a whistle board must therefore be dependent on the fastest train operating over that track. If a railroad decreases the maximum authorized speed of trains operating over a crossing, the whistle board must be moved closer to the crossing in order to provide 20 seconds of warning. Conversely, if the maximum authorized speed is increased, then the whistle board must be placed farther from the crossing to maintain the 20 second warning time. Paragraph (b) further provides that if the railroad uses methods or systems other than whistle boards to indicate when the horn should be sounded (such as positive train control systems), that system should ensure that the horn is sounded not less than 20, nor more than 24 seconds before the locomotive enters the grade crossing. Paragraph (c) addresses the situation in which a state does not have on the effective date of this rule, a specific requirement for placement of whistle boards or specific distance requirements for the sounding of a horn. In that case, a railroad must take the same actions as are required when it adjusts maximum authorized speed in paragraph (b) above; if using whistle boards, the railroad must (within the 1/4 mile limitation contained in paragraph (e)) place them at a distance from the crossing equal to the distance traveled by a train in 20 seconds while operating at the maximum speed allowed for any train operating on the track in that direction of movement. If the railroad uses methods or systems other than whistle boards to indicate when the horn should be sounded (such as positive train control systems), that system should ensure that the horn is sounded not less than 20 seconds, nor more than 24 seconds before the locomotive enters the grade crossing. These provisions, together with the definition of ``positive train control'' are based on the long held assumption that sounding the locomotive horn for 20 seconds before entering the grade crossing provides the optimum length of warning. Recent research, however, tends to indicate that 15 seconds of advance warning may be sufficient, especially where active warning systems are in place at the crossing. FRA requests comments on the proper length of time and under what circumstances locomotive horns should be sounded. Paragraph (d) provides that each railroad, irrespective of state law to the contrary, must promptly adjust the location of each whistle board to reflect changes in maximum authorized track speeds, except where all trains operating over that crossing are equipped to be responsive to a positive train control system. This paragraph mandates that if a railroad decreases the maximum authorized speed of trains operating over a crossing, the whistle board must be moved closer to the crossing. Conversely, if the maximum authorized speed is increased, then the whistle board must be placed farther from the crossing. Railroads must ensure that whistle boards are placed at a distance from each crossing equal to the distance traveled by a train in 20 seconds while operating at the maximum speed allowed for any train operating in that direction of movement. Paragraph (e) establishes a maximum distance of 1/4 mile before a crossing, over which a train horn may be sounded, regardless of train speed. Sound diminishes at a rate of approximately 7.5dB(A) for each doubling of distance. Thus, a locomotive horn registering 100dB(A) at 100 feet in front of the locomotive will have diminished to roughly 75 dB(A) at 1/4 mile (1,320 feet) in front of the locomotive. That distance is likely near the outer margin of utility in terms of alerting the motorist to oncoming trains at that particular crossing. Section 222.23 Emergency and Other Uses of Locomotive Horns Paragraph (a) of this section is meant to make clear that even at grade crossings subject to quiet zone conditions, locomotive engineers may sound the locomotive horn in emergency situations. Nothing in this part is intended to prevent an engineer from sounding 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. Establishment of a quiet zone does not prevent an engineer from sounding the horn in such situations, nor does it impose a legal duty to do so. Additionally, paragraph (b) provides [[Page 2245]] that nothing in this part restricts the use of the horn to announce the approach of the train to roadway workers in accordance with a program adopted under 49 CFR part 214. This regulation is not meant to restrict the use of the locomotive horn when active crossing 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). Subpart C--Exceptions To Use of the Locomotive Horn Section 222.31 Train Operations Which Do Not Require Sounding of Horns at Individual Crossings This section addresses the situation in which locomotive horns need not be sounded even though the crossing is not part of a quiet zone. Locomotive horns need not be sounded at individual highway-rail grade crossings at which the maximum authorized operating speed (as established by the railroad) for that segment of track is 15 miles per hour or less and 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. The primary purpose of this section is not the same as that of Sec. 222.35 (``Establishment of quiet zones''). Rather than silencing horns for the benefit of the surrounding community, this section will be used primarily at crossings located in industrial areas where substantial switching occurs, and would avoid unnecessary noise impacts on those railroad personnel working on the ground in very close proximity to the locomotive horn. 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 has considered whether railroad operations involving less frequent service and slow speeds, such as railroad operations typically associated with short lines and secondary lines, should also be categorically excluded from the requirement to sound locomotive horns based on the premise that they do not present a significant risk of loss of life or serious personal injury. Another factor which could be considered in addition to the above factors is the level of highway traffic over the crossing. While FRA is not proposing at this time to categorically exclude crossings based on these factors, FRA solicits comments, and specific suggestions as to the desirability of categorically excluding certain crossings based on a combination of the above factors or other characteristics of crossings that significantly affect risk. Inclusion of supporting data and analysis is encouraged. Section 222.33 Establishment of Quiet Zones Methods of Establishing a Quiet Zone This section addresses the manner in which quiet zones are established. A quiet zone is defined as a segment of rail line within which is situated one or a number of consecutive highway-rail crossings at which locomotive horns are not routinely sounded. The concept of quiet zones is crucial to understanding the intent and thrust of this proposed rule. While it would be possible to approve a ban on locomotive whistles on a case-by-case, or 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 well in advance of a grade crossing, the noise spill-over from a crossing not subject to a ban could still disrupt the community near a crossing where horns are banned. As a result, the concept of a quiet zone was developed, which would essentially fulfill the following purposes: ensure that a whistle ban 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. FRA proposes two different methods of establishing quiet zones, depending on local circumstances. In one method (provided for in Sec. 222.33(a)), every public grade crossing within the proposed quiet zone would have a supplementary safety measure applied to the crossing. These measures, which are listed in Appendix A, have been determined by FRA to be an effective substitute for the locomotive horn in the prevention of highway-rail grade crossing casualties. In other words, these measures each have an effectiveness rate which is at least equivalent to that of a locomotive horn. Because each highway-rail grade crossing would be upgraded from the standard flashing lights and automatic gates to a crossing with a supplementary safety measure, FRA's role would be minimal. The governmental entity establishing the quiet zone would only need to designate the extent of the quiet zone, install the supplementary safety measures, and comply with various notice and information requirements of Sec. 222.35(a). Another method (provided for in Sec. 222.33(b)) of establishing a quiet zone permits a governmental entity greater flexibility in using supplementary safety measures or other types of safety measures (alternative safety measures) to deal with problem crossings. While Appendix A lists those measures which FRA believes fully compensate for the lack of a locomotive horn, Appendix B includes all Appendix A measures and adds other safety measures whose success in compensating for the locomotive horn is dependent on the level of time and effort expended by the community. Such measures include public safety education and increased law enforcement programs. Using a combination of supplemental safety measures from Appendix A, alternative safety measures listed in Appendix B, and tailoring supplemental safety measures to unique circumstances at specific crossings, the governmental entity is provided with a greater level of flexibility than is available using only supplementary safety measures from Appendix A. Another major difference in this approach from the earlier method [[Page 2246]] is the manner in which risk is viewed. 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 supplementary and alternative safety measures on 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 for the lack of a horn, a quiet zone may be established. Because of the greater flexibility and the greater variation in possible risk reduction, FRA would take a much more active role in reviewing the approach of the governmental entity. Paragraph (b) of this section provides that a state or local government may apply to the FRA Associate Administrator for Safety for acceptance of a quiet zone, within which one or more safety measures identified in Appendix B (alone or together with supplementary measures identified in Appendix A), will be implemented. The application for acceptance must contain a commitment to implement the proposed safety measures within the proposed quiet zone. The applying entity must demonstrate through data and analysis that implementation of the proposed measures will effect a reduction in risk at public highway-rail crossings within the quiet zone sufficient to equal the reduction in risk that would have been achieved through the use the locomotive horn. It is important to note that, as required in paragraph (d) of this section, all public highway-rail crossings in a quiet zone, except for those exceptions contained in Sec. 222.31 and Appendix C, must be equipped with automatic gates and lights that conform to the standards contained in the Manual on Uniform Traffic Control Devices. Under paragraph (b)(2), the FRA Associate Administrator for Safety may take one of three actions in response to a state or local government application: (1) The quiet zone may be accepted as proposed; (2) the Associate Administrator may accept the proposed quiet zone under additional conditions designed to ensure that the safety measures fully compensate for the absence of the warning provided by the locomotive horn; or (3) the proposed quiet zone may be rejected if, in the Associate Administrator's judgment, the proposed safety measures do not fully compensate for the absence of the warning provided by the locomotive horn. Paragraph (c) addresses the categories of crossings which the Administrator has determined do not present a significant risk with respect to loss of life or serious personal injury if the locomotive horn
