[Federal Register: April 27, 2005 (Volume 70, Number 80)]
[Rules and Regulations]
[Page 21843-21920]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap05-25]
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Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 222 and 229
Use of Locomotive Horns at Highway-Rail Grade Crossings; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 222 and 229
[Docket No. FRA-1999-6439, Notice No. 16]
RIN 2130-AA71
Use of Locomotive Horns at Highway-Rail Grade Crossings
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: On December 18, 2003, FRA published an interim final rule that
required that the locomotive horn be sounded while trains approach and
enter public highway-rail grade crossings. The interim final rule
contained an exception to the above requirement in circumstances in
which there is not a significant risk of loss of life or serious
personal injury, use of the locomotive horn is impractical, or safety
measures fully compensate for the absence of the warning provided by
the locomotive horn. Communities that qualify for this exception may
create ``quiet zones'' within which locomotive horns would not be
routinely sounded. The final rule issued today amends certain
provisions of the interim final rule to facilitate the development of
quiet zones, while balancing the needs of railroads, States and local
communities.
DATES: The effective date is June 24, 2005. However, public authorities
may begin to provide quiet zone-related documentation to FRA and other
parties 30 days after April 27, 2005. This final rule supercedes the
interim final rule, which was published on December 18, 2003.
Therefore, the interim final rule will not take effect.
FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1120
Vermont Avenue, NW., Washington, DC 20590 (telephone: 202-493-6299); or
Kathryn Shelton, Office of Chief Counsel, FRA, 1120 Vermont Avenue,
NW., Washington, DC 20590 (telephone: 202-493-6038).
SUPPLEMENTARY INFORMATION:
1. Background
On January 13, 2000, FRA published a Notice of Proposed Rulemaking
(NPRM) in the Federal Register (65 FR 2230) addressing the use of
locomotive horns at public highway-rail grade crossings. This
rulemaking was mandated by Public Law 103-440, which added section
20153 to title 49 of the United States Code. The statute requires the
Secretary of Transportation (whose authority in this area has been
delegated to the Federal Railroad Administrator under 49 CFR 1.49) to
issue regulations that require the use of locomotive horns at public
grade crossings, but gives the Secretary the authority to make
reasonable exceptions.
In accordance with the Administrative Procedure Act (5 U.S.C. 553),
FRA solicited written comments from the public. By the close of the
comment period on May 26, 2000, approximately 3,000 comments had been
filed with this agency regarding the NPRM and the associated Draft
Environmental Impact Statement. As is FRA's practice, FRA held the
public docket open for late filed comments and considered them to the
extent possible.
Due to the substantial and wide-ranging public interest in the
NPRM, FRA conducted a series of public hearings throughout the United
States in which local citizens, local and State officials, Congressmen,
and Senators provided testimony. Twelve hearings were held (Washington,
DC; Fort Lauderdale, Florida; Pendleton, Oregon; San Bernadino,
California; Chicago, Illinois (four hearings were held in the greater
Chicago area); Berea, Ohio; South Bend, Indiana; Salem, Massachusetts;
and Madison, Wisconsin) at which more than 350 people testified.
On December 18, 2003, FRA published an Interim Final Rule in the
Federal Register (68 FR 70586). Even though FRA could have proceeded
directly to the final rule stage, FRA chose to issue an interim final
rule in order to give the public an opportunity to comment on changes
that had been made to the rule. FRA also held a public hearing in
Washington, DC on February 4, 2004. By the close of the extended
comment period, over 1,400 comments had been filed with the agency
regarding the Interim Final Rule. As is FRA's practice, FRA held the
public docket open for late-filed comments and considered them to the
extent possible. In order to avoid imposing inconsistent regulatory
standards for quiet zone creation and establishment, FRA extended the
effective date of the Interim Final Rule on November 22, 2004 (69 FR
67858) and on March 18, 2005 (70 FR 13117) so that the Interim Final
Rule would not take effect before the Final Rule was issued.
2. Statutory Mandate
On November 2, 1994, Congress passed Public Law 103-440 (``Act'')
which added section 20153 to title 49 of the United States Code
(``title 49''). Subsections (I) and (j) were added on October 9, 1996
when section 20153 was amended by Public Law 104-264. The Act requires
the use of locomotive horns at public grade crossings, but gives FRA
the authority to make reasonable exceptions.
Section 20153 of title 49 states as follows:
``Section 20153. Audible warning at highway-rail grade
crossings.
(a) Definitions.--As used in this section--
(1) the term ``highway-rail grade crossing'' includes any street
or highway crossing over a line of railroad at grade;
(2) the term ``locomotive horn'' refers to a train-borne audible
warning device meeting standards specified by the Secretary of
Transportation; and
(3) the term ``supplementary safety measure'' (SSM) refers to a
safety system or procedure, provided by the appropriate traffic
control authority or law enforcement authority responsible for
safety at the highway-rail grade crossing, that is determined by the
Secretary to be an effective substitute for the locomotive horn in
the prevention of highway-rail casualties. A traffic control
arrangement that prevents careless movement over the crossing (e.g.,
as where adequate median barriers prevent movement around crossing
gates extending over the full width of the lanes in the particular
direction of travel), and that conforms to the standards prescribed
by the Secretary under this subsection, shall be deemed to
constitute an SSM. The following do not, individually or in
combination, constitute SSMs within the meaning of this subsection:
standard traffic control devices or arrangements such as
reflectorized crossbucks, stop signs, flashing lights, flashing
lights with gates that do not completely block travel over the line
of railroad, or traffic signals.
(b) Requirement.--The Secretary of Transportation shall
prescribe regulations requiring that a locomotive horn shall be
sounded while each train is approaching and entering upon each
public highway-rail grade crossing.
(c) Exception.--(1) In issuing such regulations, the Secretary
may except from the requirement to sound the locomotive horn any
categories of rail operations or categories of highway-rail grade
crossings (by train speed or other factors specified by
regulation)--
(A) that the Secretary determines not to present a significant
risk with respect to loss of life or serious personal injury;
(B) for which use of the locomotive horn as a warning measure is
impractical; or
(C) for which, in the judgment of the Secretary, SSMs fully
compensate for the absence of the warning provided by the locomotive
horn.
(2) In order to provide for safety and the quiet of communities
affected by train operations, the Secretary may specify in such
regulations that any SSMs must be applied to all highway-rail grade
crossings within a specified distance along a railroad in order to
be excepted from the requirement of this section.
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(d) Application for Waiver or Exemption.--Notwithstanding any
other provision of this subchapter, the Secretary may not entertain
an application for waiver or exemption of the regulations issued
under this section unless such application shall have been submitted
jointly by the railroad carrier owning, or controlling operations
over, the crossing and by the appropriate traffic control authority
or law enforcement authority. The Secretary shall not grant any such
application unless, in the judgment of the Secretary, the
application demonstrates that the safety of highway users will not
be diminished.
(e) Development of Supplementary Safety Measures.--(1) In order
to promote the quiet of communities affected by rail operations and
the development of innovative safety measures at highway-rail grade
crossings, the Secretary may, in connection with demonstration of
proposed new SSMs, order railroad carriers operating over one or
more crossings to cease temporarily the sounding of locomotive horns
at such crossings. Any such measures shall have been subject to
testing and evaluation and deemed necessary by the Secretary prior
to actual use in lieu of the locomotive horn.
(2) The Secretary may include in regulations issued under this
subsection special procedures for approval of new SSMs meeting the
requirements of subsection (c)(1) of this section following
successful demonstration of those measures.
(f) Specific Rules.--The Secretary may, by regulation, provide
that the following crossings over railroad lines shall be subject,
in whole or in part, to the regulations required under this section:
(1) Private highway-rail grade crossings.
(2) Pedestrian crossings.
(3) Crossings utilized primarily by nonmotorized vehicles and
other special vehicles.
(g) Issuance.--The Secretary shall issue regulations required by
this section pertaining to categories of highway-rail grade
crossings that in the judgment of the Secretary pose the greatest
safety hazard to rail and highway users not later than 24 months
following the date of enactment of this section. The Secretary shall
issue regulations pertaining to any other categories of crossings
not later than 48 months following the date of enactment of this
section.
(h) Impact of Regulations.--The Secretary shall include in
regulations prescribed under this section a concise statement of the
impact of such regulations with respect to the operation of section
20106 of this title (national uniformity of regulation).
(I) Regulations.--In issuing regulations under this section, the
Secretary--
(1) shall take into account the interest of communities that--
(A) have in effect restrictions on the sounding of a locomotive
horn at highway-rail grade crossings; or
(B) have not been subject to the routine (as defined by the
Secretary) sounding of a locomotive horn at highway-rail grade
crossings;
(2) shall work in partnership with affected communities to
provide technical assistance and shall provide a reasonable amount
of time for local communities to install SSMs, taking into account
local safety initiatives (such as public awareness initiatives and
highway-rail grade crossing traffic law enforcement programs)
subject to such terms and conditions as the Secretary deems
necessary, to protect public safety; and
(3) may waive (in whole or in part) any requirement of this
section (other than a requirement of this subsection or subsection
(j)) that is not likely to contribute significantly to public
safety.
(j) Effective Date of Regulations.--Any regulations under this
section shall not take effect before the 365th day following the
date of publication of the final rule.''
This final rule complies with the statutory mandate contained
within section 20153 of title 49. The final rule retains the locomotive
horn sounding requirement for trains that approach and enter public
highway-rail grade crossings. (See rule Sec. 222.21.) However, the
rule contains exceptions for certain categories of rail operations and
highway-rail grade crossings, in accordance with 49 U.S.C. 20153(c)(1).
Section 222.33 of the rule provides that a railroad operating over a
public highway-rail grade crossing may, at its discretion, choose not
to sound the locomotive horn if the locomotive speed is 15 miles per
hour or less and the train crew or appropriately equipped flaggers
provide warning to motorists. FRA has determined that these limited
types of rail operations do not present a significant risk of loss of
life or serious personal injury. The rule also contains an exception
for highway-rail grade crossing corridors that are equipped with SSMs
at each public highway-rail grade crossing, in accordance with 49
U.S.C. 20143(c).
Highway-rail grade crossing corridors that have a Quiet Zone Risk
Index at or below the Nationwide Significant Risk Threshold or the Risk
Index With Horns have been deemed, by the Administrator, to constitute
a category of highway-rail grade crossings that do not present a
significant risk with respect to loss of life or serious personal
injury or that fully compensate for the absence of the warning provided
by the locomotive horn. Therefore, communities with grade crossing
corridors that meet either of these standards may silence the
locomotive horn within the crossing corridor, if all other applicable
quiet zone requirements have been met. (See Sec. 222.39.)
Section 20153(i) of title 49 requires FRA to ``take into account
the interest of communities that have in effect restrictions on the
sounding of a locomotive horn at highway-rail grade crossings''. FRA
has complied with this requirement in several ways. The rule allows
Pre-Rule Quiet Zone communities to continue to silence the locomotive
horn, without any additional safety improvements, if the Quiet Zone
Risk Index is at, or below, two times the Nationwide Significant Risk
Threshold and there have not been any relevant collisions within the
quiet zone during the five years preceding April 27, 2005. (See Sec.
222.41.) It should also be noted that Pre-Rule Quiet Zone communities
can continue to silence the locomotive horn, without any additional
safety improvements, if SSMs have been implemented at every public
grade crossing within the quiet zone or if the Quiet Zone Risk Index is
at, or below, the Nationwide Significant Risk Threshold.) Additionally,
the rule allows Pre-Rule Quiet Zone communities to take additional time
(up to eight years from the effective date of the interim final rule)
within which to implement safety improvements that will bring them into
compliance with the requirements of the rule. This ``grace period'' has
been included in the rule in order to comply with 49 U.S.C.
20153(i)(2), which requires FRA to provide ``a reasonable amount of
time for [pre-existing whistle ban] communities to install SSMs''.
Section 20153(d) of title 49 states that ``* * * the Secretary may
not entertain an application for waiver or exemption of the regulations
issued under this section unless such application shall have been
submitted jointly by the railroad carrier owning, or controlling
operations over, the crossing and by the appropriate traffic control
authority or law enforcement authority.'' Therefore, Sec. 222.15,
which governs the process for obtaining a waiver from the requirements
of the rule, requires joint filing of waiver petitions by the railroad
and public authority.
Section 222.55 addresses the manner in which new SSMs and ASMs are
demonstrated and approved for use. Paragraph (c) of this section, which
reflects the requirements contained within 49 U.S.C. 20153(e),
specifically provides that the Associate Administrator may order
railroad carriers operating over a crossing or crossings to temporarily
cease sounding the locomotive horn at the crossing(s) to demonstrate
proposed new SSMs and ASMs that have been subject to prior testing and
evaluation.
Section 20153(f) of title 49 explicitly gives discretion to the
Secretary as to whether private highway-rail grade crossings,
pedestrian crossings, and crossings utilized primarily by nonmotorized
and other special vehicles should be subject this regulation. FRA has
decided to refrain from exercising
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jurisdiction over crossings utilized primarily by nonmotorized and
other special vehicles in this final rule. FRA has, however, exercised
its jurisdiction, in a limited manner, over private grade and
pedestrian crossings. Locomotive horn use at private grade and
pedestrian crossings will be subject to the requirements of this rule,
if the private grade or pedestrian crossing is located within a quiet
zone. Sections 222.25 and 222.27 address the specific requirements that
pertain to private grade and pedestrian crossings within quiet zones.
Section 222.7 contains a concise statement of the rule's impact
with respect to 49 U.S.C. 20106 (national uniformity of regulation).
This statement of the rule's effect on State and local law, which was
required by 49 U.S.C. 20153(h), provides that the rule, when effective,
will preempt most State and local laws that govern locomotive horn use
at public highway-rail grade crossings. However, as stated in section
222.7(b), the rule will not preempt State and local laws governing
locomotive horn use at Chicago Region highway-rail grade crossings
where railroads were excused from sounding the locomotive horn by the
Illinois Commerce Commission, and where railroads did not sound the
horn, as of December 18, 2003. In addition, State and local laws that
govern routine locomotive horn use at private grade and pedestrian
crossings outside quiet zones will not be preempted.
Lastly, this rule complies with the statutory one-year delay
requirement. Section 20153(j) of title 49 prohibits any regulations
issued under its authority from becoming effective before the 365th day
following the date of publication of the final rule. On December 18,
2003, FRA published the interim final rule on the use of locomotive
horn at highway-rail grade crossings. Because the interim final rule
had the same force and effect as a final rule, FRA delayed the
effective date of the interim final rule for one year, in order to
comply with 49 U.S.C. 20153(j) and to give public authorities
sufficient time to prepare for quiet zone implementation before the
rule's locomotive horn sounding requirements took effect. After
reviewing approximately 1,400 comments on the interim final rule, FRA
is now issuing a final rule that grants additional relief to States and
local communities. The final rule will become effective on June 24,
2005 because the one-year statutory delay requirement was satisfied by
delaying the effective date of the interim final rule.
3. Liability
FRA received a number of comments on the liability implications of
the rule. The majority of these comments were concerned that the
interim final rule would shift liability onto the public authority that
creates a quiet zone. For example, Steve Stricker, Village
Administrator for Burr Ridge, Illinois and Chairperson of the DuPage
Mayors and Managers Conference, expressed concern at a February 2004
meeting about the potential municipal liability that may result from
quiet zone creation. Mr. Stricker urged FRA to include a clear
statement in the final rule that it will not change any federal or
state laws or court decisions on municipal liability. Similar
sentiments were expressed by John Kravcik, President of Western
Springs, Illinois. The Village of Cornwall-on-Hudson, New York
submitted comments expressing concern that by not addressing the
liability of local communities that create quiet zones, the interim
final rule shifted traditional railroad liability away from the party
profiting from the use of the tracks and onto local governments. The
City of Sacramento, California submitted comments suggesting that the
rule be revised to state that quiet zone establishment cannot be used
as the basis of a claim against a local government, provided the local
government established the quiet zone in accordance with the provisions
of the rule. Noting that the interim final rule exempts railroads from
liability, the Village of Hinsdale, Illinois recommended that the final
rule provide a similar exemption for public authorities or, in the
alternative, state that the existing liability structure will not
change. Along the same lines, Brian Krajewski, Mayor of Downers Grove,
Illinois asserted that the rule needs to acknowledge in no uncertain
terms that it is not intended to alter, in any way, the liabilities of
any party covered by it. The City of Placentia, California submitted
comments suggesting that the rule be revised to specify that it is
intended to provide protection from liability for silencing the train
horn to public authorities, as well as the railroad and train crew.
This final rule clearly covers the subject matter of locomotive
horn sounding at public grade crossings, as well as locomotive horn
sounding at private and pedestrian grade crossings that are located
within a quiet zone. Therefore, with the exception of State and local
laws governing locomotive horn sounding at the highway-rail grade
crossings described in section 222.3(c), this final rule preempts all
State and local laws that govern the sounding of locomotive horns at
grade crossings located within duly established quiet zones. As stated
in the interim final rule, FRA does not expect that future lawsuits
will not arise over accidents within quiet zones, as such lawsuits may
be due to factors other than the lack of an audible warning. However,
this final rule is intended to remove failure to sound the horn,
failure to require horn sounding, and prohibitions on sounding of the
horn, at grade crossings located within duly established quiet zones,
as potential causes of action. We expect that courts, following Norfolk
Southern v. Shanklin, 529 U.S. 344 (2000) and CSX v. Easterwood, 507
U.S. 658 (1993), will conclude that this regulation substantially
subsumes the subject matter of locomotive horn sounding at highway-rail
grade crossings, as well as at private grade and pedestrian crossings
that are located within a quiet zone. As a result, a federal standard
of care defined by this rule will replace the standard of care that
would otherwise apply at highway-rail grade crossings in each State,
with the exception of those highway-rail grade crossings described in
section 222.3(c). (Since the rule does not apply to the highway-rail
grade crossings described in section 222.3(c), the standard of care
required under State law will continue to apply at those crossings.)
Local governments and railroads will benefit equally from the federal
standard of care.
States also have the ability to assert sovereign immunity on behalf
of local units of government within their borders, and many states have
done so. It is not appropriate for the Federal government to
unnecessarily disturb decisions States have made about whether local
governments in their State should be immune from tort liability and FRA
will not do so here.
FRA also received comments from local communities who expressed
concern that railroads would require them to enter into indemnification
agreements, as a prerequisite to the installation of additional safety
measures at grade crossings that are located within a proposed quiet
zone. The City of Arlington, Texas submitted comments stating that
railroads may require municipalities to enter into indemnification
agreements, if the rule is not revised to address municipal liability
for quiet zone establishment. Therefore, the City of Arlington, Texas
suggested that the rule be revised to prohibit railroads from requiring
indemnification and hold harmless agreements as a condition of quiet
zone creation. The DuPage Mayors and
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Managers Conference also submitted comments recommending that the rule
be revised to prohibit railroads from requiring a transfer of liability
as a ``quid pro quo'' for safety improvement installation. The Village
of Wilmette, Illinois submitted comments asserting that, with respect
to SSMs, the rail carriers may require municipalities to agree to
whatever terms they demand concerning liability. The West Central
Municipal Conference and the Chicago Area Transportation Study
submitted comments recommending that the final rule include language
that prohibits railroads from requiring waivers of municipal immunity
as part of any agreement, contract, or lease between railroads and
municipalities.
On the other hand, FRA received comments from the railroad industry
suggesting that the rule be revised to require public authorities to
enter into indemnification agreements with railroads. The Fort Worth &
Western Railroad, New Orleans & Gulf Coast Railroad, and the Idaho
Northern & Pacific Railroad submitted comments recommending that the
final rule require local communities to assume any increased liability
that would result from quiet zone creation. The Fort Worth & Western
Railroad submitted additional comments asserting that public
authorities that establish a quiet zone should provide funding for any
increase in railroad liability insurance premiums that may result from
railroad operations within quiet zones. Caltrain submitted comments
asserting that the sponsoring public authority should be required to
indemnify railroads and hold them harmless from claims that arise
within the quiet zone.
FRA has refrained from adding language to the final rule that would
expressly prohibit the railroad industry from requiring public
authorities to enter into indemnification and hold harmless agreements,
as a condition of obtaining railroad consent to the installation of
grade crossing safety improvements within proposed quiet zones. The
provisions contained within, as well as the overall legality of,
indemnification and hold harmless agreements between railroads and
local communities are largely governed by State contract law and FRA
has been given no general charge to adjust these interests.
In fact, FRA is not persuaded that railroads will, in most cases,
enjoy significant power that could be used inappropriately in this
context. State and local governments retain authority to determine
appropriate traffic control devices and roadway improvements at
highway-rail grade crossings. In a number of cases, State agencies will
be able to order installation of automated warning systems, such as
four-quadrant gates, even on county and local roadways. Use of
channelization techniques may require little or no cooperation from the
railroad and, in many cases, photo enforcement can likely be
accomplished using existing interconnections between crossing warning
systems and traffic signals.
Further, in this context, railroads often can provide a unique
perspective related to crossing improvements. For particular
applications, railroads may be able to point out important public and
private benefits from employing basic traffic channelization in lieu of
more technically complex and maintenance-hungry four-quadrant gate
systems.
4. Partial Quiet Zones
Commenters requested clarification of the rule's effect on
crossings at which horns are silenced for a portion of the day
(typically during nighttime hours). The final rule thus addresses the
continuation and establishment of such ``partial quiet zones.''
Under the final rule, communities with Pre-Rule Partial Quiet Zones
(see Sec. 222.9 for the complete definition of ``Pre-Rule Partial
Quiet Zones'') must comply with Pre-Rule Quiet Zone standards, in order
to continue existing restrictions on the use of the locomotive horn.
However, Pre-Rule Partial Quiet Zones that do not qualify for automatic
approval under Sec. 222.41(a) will be given additional time within
which to come into compliance, provided the public authority complies
with the requirements set forth in Sec. Sec. 222.41(b) and 222.43.
Communities that wish to convert their pre-existing partial whistle
bans into 24-hour quiet zones will, however, be required to comply with
New Quiet Zone standards. (Please refer to the Section-by-Section
Analysis of Sec. 222.41 for further information about Pre-Rule Partial
Quiet Zone requirements.)
Communities that had partial whistle bans in place as of December
18, 2003 (the interim final rule publication date), but after October
9, 1996, may qualify for Intermediate Partial Quiet Zone status.
(Please refer to Sec. 222.9 for a definition of Intermediate Partial
Quiet Zones.) Intermediate Partial Quiet Zones may continue existing
restrictions on the use of the locomotive horn for one year. However,
Intermediate Partial Quiet Zones must comply with New Quiet Zone
standards by the end of the one-year grace period, in order to prevent
the resumption of routine locomotive horn sounding at public grade
crossings within the former quiet zone. (Please refer to the Section-
by-Section Analysis of Sec. 222.42 for further information about
Intermediate Partial Quiet Zone requirements.)
Communities that wish to create a New Partial Quiet Zone will be
required to comply with New Quiet Zone standards. Unless a waiver is
granted, all New Partial Quiet Zones must restrict locomotive horn
sounding between the hours of 10 p.m. and 7 a.m. This requirement will
ensure consistent application of locomotive horn restrictions within
New Partial Quiet Zones, which should minimize confusion for the
locomotive engineer.
5. Rule Changes
This brief overview of the changes that have been made in the Final
Rule is provided for the reader's convenience. Because this section
merely provides an overview, it should not be relied upon for a
comprehensive discussion of all final rule changes. Indeed, this full
document should be read together with the previous documents issued in
the proceeding. Inasmuch as the Interim Final Rule and Notice of
Proposed Rulemaking contained extensive discussion of both the
background of the issues involved in this rulemaking and the rationale
behind decisions relating to those issues, FRA emphasizes that this
Final Rule should be read in conjunction with the Interim Final Rule
and Notice of Proposed Rulemaking. Unless the positions and rationale
expressed in those documents have explicitly changed in the subsequent
rulemaking documents, the reader should understand that those positions
and rationale remain those of FRA.
Summary of Changes to the Interim Final Rule
The final rule clarifies FRA's position that it is not
intended to preempt administrative procedures required under State law
regarding grade crossing warning system modifications and
installations. (See Sec. 222.7 for more information.)
Surface-mounted tubular delineators have been removed from
the list of approved Supplementary Safety Measures (SSMs). Tubular
delineators may only be used as SSMs under the final rule if they have
been affixed to raised longitudinal channelizers. (See appendix A for
more information.)
The final rule provides a one-year grace period to comply
with New Quiet Zone standards for communities with pre-existing whistle
bans that were in effect on December 18, 2003, but were adopted after
October 9, 1996. These communities are considered
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``Intermediate'' Quiet Zones under the final rule. (See Sec. 222.42
for more information.)
The final rule addresses quiet zones that prohibit
sounding of horns during a portion of the day. These are referred to as
Partial Quiet Zones.
The final rule requires diagnostic team reviews of
pedestrian crossings that are located within proposed New Quiet Zones
and New Partial Quiet Zones. (See Sec. 222.27 for more information.)
The final rule requires quiet zone communities to retain
automatic bells at public highway-rail grade crossings that are subject
to pedestrian traffic. (See Sec. 222.35(d) for more information.)
The definition of ``public authority'' has been revised
under the final rule to include only those public entities who are
responsible for traffic control and law enforcement at public highway-
rail grade crossings. (See Sec. 222.9 for more information.)
The final rule extends ``recognized State agency'' status
to State agencies who wish to participate in the quiet zone development
process. (See Sec. 222.17 for more information.)
The final rule contains a 60-day comment period on quiet
zone applications. (See Sec. 222.39(b) for more information.)
The final rule requires public authorities to provide
notification of their intent to create a New Quiet Zone. During the 60-
day period after the Notice of Intent is mailed, comments may be
submitted to the public authority. (See Sec. 222.43(b) for more
information.)
The final rule provides quiet zone risk reduction credit
for certain pre-existing SSMs. (See appendix A for more information.)
The final rule provides quiet zone risk reduction credit
for pre-existing modified SSMs. (See appendix B for more information.)
The final rule contains a new category of ASMs that
addresses engineering improvements other than modified SSMs. (See
appendix B for more information.)
The minimum sound level for wayside horns has been reduced
to 92 dB(A). (See appendix E for more information.)
6. E.O. 15 Status
Emergency Order 15, issued in 1991, requires the Florida East Coast
Railway Company to sound locomotive horns at all public grade
crossings. The Emergency Order preempted State and local laws that
permitted nighttime bans on the use of locomotive horns. Amendments to
the Order did, however, permit establishment of quiet zones if
supplementary safety measures were implemented at every crossing within
a proposed quiet zone. The supplementary safety measures specified in
the Order, although similar, are not the same as those contained in
this final rule. FRA recognizes that the SSMs, and the conditions on
their implementation contained in this rule, provide communities
substantially greater flexibility in creating quiet zones than those in
the Order.
Therefore, the provisions of this final rule will apply to all
grade crossings within the State of Florida when E.O. 15 is rescinded.
FRA conducted a public conference on April 15, 2005, and solicited
comments on the appropriate excess risk estimate that should be applied
when routine use of the locomotive horn is prohibited at highway-rail
grade crossings that are currently subject to E.O. 15. FRA intends to
amend the final rule to specifically address this issue, after
considering comments and testimony provided at the public conference
from interested parties.
7. Chicago Regional Issues
The six-county Chicago Region is host to the largest rail terminal
in the United States, and it accounts for the biggest concentration of
``whistle bans'' and associated casualties in the nation. Chicago
communities and industries have grown up with, and around this
extensive rail network, while the entire Chicago metropolitan area has
benefitted from an extensive commuter rail system established by the
State and funded by the State, region, and Federal government. As
stated in the interim final rule, the unique aspects of locomotive horn
sounding at public grade crossings within the Chicago Region have
contributed to the need for different treatment for those crossings
that have been subject to pre-existing whistle bans.
Excess Risk Estimate for Gated Crossings Subject to Existing Whistle
Bans in the Chicago Region
In the interim final rule, FRA explained at some length why the
agency had decided to apply an excess risk estimate of 17.3% to Chicago
Region gated crossings. We noted that Chicago Region no-whistle gated
crossings have a statistical profile that is distinctly different from
gated whistle ban crossings in the rest of the Nation. We explained
that analysis conducted for FRA by a statistical firm, Westat, Inc.,
arrived at the 17.3% excess risk estimate for gated crossings in
contrast to a national excess risk figure of 66.8%, but that the
estimate for the Chicago Region was not statistically significant at
conventional levels. We further noted qualitative reasons why the lower
estimate appeared to make sense (e.g., discretionary selection by
railroads of crossings subject to no-whistle policies, high train
counts supporting strong motorist expectations concerning the presence
of a train, Metra's emphasis on locomotive conspicuity measures).
Commenters on the interim final rule have continued to question FRA's
position on this issue. Commenters outside the Chicago area seek the
benefit of their own regional estimates (which are not achievable given
the smaller number of relatively homogenous crossings available for
analysis), and commenters from Chicago claim that the lower estimate is
too high (and should be set at 0%, requiring no safety offset for loss
of the train horn as an auditory warning to the motorist).
In response to the IFR, the Village of Arlington Heights, City of
Chicago, Northwest Municipal Conference, Metropolitan Mayors Caucus,
and the Chicago Area Transportation Study (``Chicago Region
commenters'') submitted a study by TransInfo LLC and the University of
Illinois at Chicago (``TransInfo-UIC study''), which concluded that ``
* * * there is no reason to believe that in northeastern Illinois,
banning the sounding of horns increases the chance of collisions at
gated highway-rail crossings.'' The TransInfo-UIC study noted that the
17.3% excess risk estimate was not statistically significant at
conventional levels. Given this lack of significance, the TransInfo-UIC
study asserted `` * * * one must then accept the hypothesis of no
difference in the effects of a ban on horn soundings * * * '' Using the
same data set as FRA's contractor, Westat, Inc., TransInfo LLC and the
University of Illinois at Chicago developed alternative statistical
models. Their seemingly preferred model produced a -26.4% effectiveness
rate (compared to +17.3% from the Westat model) that was statistically
significant at the conventional 5% level. TransInfo-UIC also raised
questions about possible collinearity in the Westat model.
FRA provided the TransInfo/UIC study to its contractor, Westat, for
analysis. While acknowledging that its estimate lacks statistical
significance at conventional levels (a point made explicitly by Westat
in reporting its 2003 findings), Westat indicated that this does not
mean that one must accept the hypothesis of no difference in collision
rates between horn and no-horn crossings. Westat noted that ``[i]n a
statistical study, absence of evidence
[[Page 21849]]
against a hypothesis is not conclusive evidence for the hypothesis. * *
* The hypothesis may be true, or false, in the absence of evidence
against it, we simply do not know.'' After reviewing the TransInfo-UIC
seemingly preferred model, Westat found that it has biased residuals
and that it systematically underpredicts collisions for the Chicago
area ban crossings.
In 2004, Westat developed a model that tested the sensitivity of
the Westat 2003 model which was used to develop the interim final rule.
This 2004 model supports earlier findings and the FRA conclusion that
collision rates at gated crossings where train horns are not routinely
sounded in the Chicago area are higher than at gated crossings in the
rest of the nation (except Florida) where horns are routinely sounded.
Westat compared the TransInfo-UIC, Westat 2003, and Westat 2004
models and found that the two Westat models are superior for estimating
the effect of train horns at gated crossings in Chicago. Both Westat
models fit the data better and avoid the biased residuals found in the
TransInfo-UIC model. Since there is some evidence of numerical
instability in the Westat 2004 model, Westat prefers the Westat 2003
model. Westat also tested the Westat 2003 model for collinearity and
found that (1) since approximately 76 percent of the effect of the no-
horn parameter was independent of the other model parameters, there was
no confirmation of collinearity, (2) although there was evidence of
some possible collinearity among some of the parameters, there was no
such evidence pertaining to the no-horn parameter, and (3) the test
statistic for assessing an adverse effect of collinearity for the no-
horn parameter was well below the threshold for collinearity, therefore
collinearity did not pose a serious threat to estimated effectiveness
of train horns. As a result, Westat concluded that its 2003 model
provided the best representation of excess risk among the models
applied. FRA analysts agreed that the TransInfo-UIC model did not
perform suitably to explain crossing risk in the region. Westat further
concluded that the sample size for the Chicago area is not large enough
to derive consistent statistical results across different statistical
models.
Detailed comments by Chicago jurisdictions further questioned the
interim final rule's statistical basis. For example, the Metropolitan
Mayors Caucus, acting in concert with the City of Chicago and the
Chicago Area Transportation Study (CATS), stated that, ``The FRA's data
quality and model use is inappropriate for setting policy.'' The Mayors
Caucus filing (FRA-1999-6439-3770) called attention to direction
provided in February 2002 by the Office of Management and Budget to
develop and implement data quality standards. The commenters
specifically questioned the quality of the National Highway-Rail
Crossing Inventory, which is maintained by FRA on behalf of States,
railroads and other users. The Inventory was used to generate risk
estimates for use in the Westat and TransInfo-UIC studies.\1\
---------------------------------------------------------------------------
\1\ This criticism was repeated in an October 5, 2004, letter
from the CATS Council of Mayors Executive Committee to the
Department of Transportation's Inspector General and in a January
26, 2005, letter from eleven Members of Congress from Illinois to
the Director, Office of Management and Budget. These documents are
filed in the public docket of this proceeding as Document nos. FRA-
1999-6439-3918 and FRA-1999-6439-3922, respectively.
---------------------------------------------------------------------------
FRA recognizes that, in a voluntarily-populated database that
provides information for over 149,000 public at-grade crossings, there
are individual errors. For instance, in conducting additional review of
Chicago Region crossings equipped with flashing lights only, FRA
recently determined that several of them have been upgraded by the
addition of gates. State authorities and railroads apparently had not
reported the improvements to FRA's contractor. This is the typical type
of problem encountered when a significant minority of records are
simply out of date.
The commenters suggest that FRA ``correct the data'' before
undertaking further analysis. FRA meets regularly with railroads and
with State agencies responsible for highway-rail crossing safety. FRA
strongly encourages submissions from these parties, which typically
have more recent data available for their own purposes. The U.S.
Department of Transportation has four times sent legislation to the
Congress that would have made regular updating of the inventory
mandatory on both the State agencies (which are generally recipients of
substantial Federal-aid highway funds) and the railroads. The first
such legislation was transmitted on July 26, 1999. The Congress has not
taken final action on this legislation, although a virtually identical
provision was included in S. 1402, the Federal Railroad Safety
Improvement Act, which passed the Senate on November 25, 2003, but
failed of final passage with the adjournment of the 108th Congress in
December of 2004. Short of mandatory reporting, FRA has no practical
means of re-creating the national inventory in a manner acceptable to
Chicago Region commenters in this proceeding.
FRA is required by law to issue a final rule requiring use of the
train horn. The agency is not required to provide exceptions to use of
the train horn, except to the extent that it is useful to take into
consideration the interests of communities with pre-existing bans.
Nevertheless, FRA has aggressively sought from the beginning of this
effort--including before enactment of any requirement to consider the
interests of pre-rule ban communities--to craft suitable exceptions.
Providing for quiet zones is a goal embraced by virtually all
commenters in this proceeding, and in order to do it fairly and
effectively, FRA must utilize the best data available.
FRA has proceeded with development of this rulemaking with the
belief, founded on daily use of Inventory information for a variety of
purposes, that while some of the data are older than would be desired,
there are not patterns in the inventory that would create biased
results as between train horn crossings and whistle ban crossings or in
any regional analysis. In making their data quality argument, the
Chicago Region commenters do not allege specific bias or suggest a
reason why there could be such a bias. If FRA cannot rely upon the
Inventory data for purposes of this rulemaking, then FRA would lack a
rational basis for permitting any exceptions to the statutory command
that train horns sound at highway-rail grade crossings. Nevertheless,
FRA agrees that, when dealing with a comparative safety performance
difference as small as the one at issue for gated crossings in the
Chicago Region, and given the poor results for statistical significance
and model fit for the various approaches, it is wise to explore whether
there may be any differences in the characteristics of the Inventory
data that might inadvertently introduce bias into the analysis.
FRA had noted during the 10-year pendency of this rulemaking that
much of the data for the Chicago area and the balance of Illinois was
badly out of date. FRA encouraged the State to update the information,
and the State did make a major effort to update average annual daily
traffic in 2003. Because of the study period (1997 through 2001) and
the methodology used for retrieval of inventory information, however,
most of this updated information was not utilized in the Westat or
Transinfo-UIC analysis (i.e., the updates occurred late in the study
period or after its close). (The updated information has been used in
generating corridor risk estimates and is accessed by the quiet zone
web calculator.) FRA concurs that it is
[[Page 21850]]
prudent to inquire further into whether known data quality issues--
which themselves cannot be effectively addressed by FRA without
cooperation from other parties--have the potential to adversely affect
the Chicago Region analysis.
Therefore, FRA will arrange for an independent peer review of its
conclusion on this issue before issuing an amendment to this final rule
which will address Chicago Region crossings. FRA will respond to the
``peer review report'' and place a copy of its response in the public
docket.
Pending completion of this Chicago Region re-analysis, FRA is
excepting existing Chicago Region no whistle crossings from the
requirement to sound the train horn. It is FRA's intention to leave
those crossings--and those crossings alone--subject to existing
Illinois State Law pending further rulemaking. Existing no-whistle
excusals will stand, and railroads will remain free to sound the horn
where they elect to do so (as is the case today).
In doing so, FRA notes that the most active challenge made by the
Chicago authorities has to do with the 17.3% excess risk estimate for
gated crossings. FRA pointed out in the interim final rule that there
are an insufficient number of non-gated crossings in the region to
calculate a special excess risk rate for them. Nor, in the case of many
of the non-gated crossings, would all of the same considerations
presented by Chicago Region commenters apply (e.g., most of the non-
gated crossings are on tracks used by fewer trains, some are on lines
exclusively used for freight service). Nevertheless, FRA is including
those non-gated crossings in the temporary exclusion provided in this
final rule. The following considerations support this approach:
1. Some of the subject crossings are within logical pre-rule quiet
zones comprised principally of gated crossings. It is not reasonable to
ask public authorities to move forward with improvement of individual
crossings outside the context of planning for the corridor. Nor would
it in every case be cost effective, in comparison with a corridor
approach, to do so.
2. The total risk associated with these crossings is not high.
There are fewer than 10 non-gated crossings that would fall in pre-rule
quiet zones requiring some form of action to compensate for absence of
the train horn (based on current risk indices and relevant accidents in
the past 5 years). Several of these are on lines with moderate speeds
or very modest annual average daily traffic and have individual risk
indices below the NSRT. The Illinois Commerce Commission has been
aggressive in adding gates at the higher-risk crossings over the past
several years. There is no reason to believe that this will not
continue.
3. FRA expects to conclude further data analysis regarding the
Chicago Region gated crossings as soon as possible and to conclude any
necessary final rule amendment as quickly thereafter as feasible, given
the need for review and clearance of the amendment. Pre-rule quiet
zones are expected to be brought in full conformity with this final
rule within 5 to 8 years, depending upon actions taken by the State to
support local communities. The further delay associated with
temporarily excepting these non-gated crossings from the requirement to
sound the train horn will not be significant.
FRA does not perceive any reason to conduct an entire new series of
analyses for the balance of the Nation. Westat's results for the Nation
were statistically significant with good model fit. Given that whistle
bans outside of the Chicago Region involve inventory records from 24
States, FRA cannot conceive any condition under which the Inventory
records for whistle ban crossings would be of materially different
quality (currency and accuracy) than for train horn crossings.
FRA calls attention to the fact that two important sets of data
have not been effectively challenged as to their quality: Data
regarding highway-rail crossing incidents (which is filed under penalty
of law); and the identity of Chicago Region crossings (which has been
meticulously studied and agreed upon by the Illinois Commerce
Commission and FRA).
FRA further notes that there is likely no transportation safety
database that is free of imperfections. Use of imperfect data is
greatly to be preferred over disregarding of data. But it is important
not to rely excessively on data whose characteristics are poorly
understood. Chicago Region commenters in this rulemaking have
challenged FRA to take another look at the data, and FRA will do so.
Other Regional Claims
FRA also received comments from communities in Massachusetts and
Maryland requesting differential treatment under the final rule, based
on the characteristics of rail operations in the Northeast. Ledyard
McFadden of Beverly Farms, Massachusetts accused FRA of discriminatory
implementation of the rule, given the ``specific exception'' accorded
to the Chicago Region based on extensive and expensive statistical
analysis provided by that region. Noting that the Chicago Region was
afforded ``a much lower effectiveness rate than the rest of the
nation,'' the City of Cumberland, Maryland asserted that the
discrepancy should be resolved using accurate data or the rest of the
nation should also be accorded the lower excess risk estimate.
Massachusetts Congressman John Tierney submitted comments asserting
that a number of his constituents ``perceive discriminatory
implementation of the rule'' based on the rule's specific exception for
the greater Chicago area. Questioning why similar analysis was not
performed in the Northeast, particularly along the commuter-only rail
lines of Boston's North Shore, Congressman Tierney asserted that the
rule should not be implemented until adequate regional analyses have
been completed.
FRA is not able to provide for separate regional estimates of
excess risk. Statistically, there are sound reasons for assigning a
horn effectiveness rate to gated crossings in the Chicago area that is
lower than that for gated crossings in the rest of the country. Westat
estimated an effectiveness rate for gated crossings for the Chicago
Region of 17.3% and an effectiveness rate for gated crossings in the
rest of the nation (excluding Florida) of 66.8%. Associated with these
point estimates are 95% confidence intervals.\2\ Neither point estimate
is contained in the 95% confidence interval of the other. Based on
this, Westat noted ``the ban effect in the Chicago area is different
from the ban effect in the rest of the nation.'' Had the point estimate
for the Chicago Region been within the 95% confidence interval for the
rest of the nation (excluding Florida), there would have been some
reason to believe that the ban effect in the Chicago Region was not
necessarily different from that in the rest of the nation (excluding
Florida).
---------------------------------------------------------------------------
\2\ A 95% confidence interval for an estimate provides a range
over which we are highly confident the true value exists. If we
could sample the Chicago area and the rest of the nation many times
and compute corresponding confidence intervals, the true value would
be between the computed confidence intervals about 95% of the time.
---------------------------------------------------------------------------
Westat performed a statistical analysis at FRA's direction on no-
whistle crossings in Wisconsin and the Chicago Region. These regions
were selected for regional statistical analysis because (1) commenters
argued that safety performance at whistle ban crossings is different
than in the nation at large, (2) the statute provides a basis for
addressing their concerns, and (3) they contained a sufficiently large
number of no-whistle crossings that might support
[[Page 21851]]
comparison with national crossing data. Given the relatively low number
of whistle ban crossings in Northeast Massachusetts and Maryland, FRA
was not able to perform a regional statistical analysis of those
crossings that would yield reliable conclusions.
It is unusual for FRA to tailor a rule to the characteristics of
one or more regions of the country because of the statutory command
that ``[l]aws, regulations, and orders related to railroad safety * * *
shall be nationally uniform to the extent practicable.'' 49 U.S.C.
20106. In this case, FRA is authorized by statute to treat communities
with pre-existing quiet zones differently. Congress directed FRA, in
issuing this rule, to ``take into account the interest of communities
that (A) have in effect restrictions on the sounding of a locomotive
horn at highway-rail grade crossings; or (B) have not been subject to
the routine * * * sounding of a locomotive horn at highway-rail grade
crossings.'' 49 U.S.C. 20153(i)(1). FRA must, however, have a rational
basis for doing so. As discussed above and elsewhere in this Final Rule
and the Interim Final Rule, the Chicago region presented enough data
points for FRA to rationally distinguish safety behavior at no-whistle
highway-rail grade crossings in the Chicago region from those in the
rest of the country. The record does not contain sufficient data for
Northeast Massachusetts or Cumberland, Maryland to enable FRA to make
similar rational distinctions for them. Nor have whistle bans in
Massachusetts or Maryland been subject to discretionary selection
(i.e., there is no reason to believe that relatively safer crossings
were selected for inclusion in ban areas).
If a court should conclude that FRA lacks a rational basis for
treating the Chicago region differently than the rest of the nation,
the Chicago region would then be required to meet the national
standard. Such a ruling would not extend the benefit of the 17.3%
excess risk estimate to any other region.
FRA notes the possibility that the marginal effectiveness of the
train horn might be smaller in a situation such as Northeast
Massachusetts where the following conditions exist: Predominance of
commuter rail service (scheduled service, shorter trains), moderate
speed over crossings adjacent to stations, and absence of heavy freight
service on the rail lines. However, the Massachusetts Bay
Transportation Authority provides express, as well as local, service at
a number of crossings proximate to station locations that present
significant hazards. Although the small number of crossings and other
data points makes it impractical to derive special estimates for this
region, FRA remains open to dialogue regarding circumstances in
individual communities in the context of waiver proceedings.
This statutory exception (49 U.S.C. 20153(i)(1)) to the requirement
for national uniformity may be seen as consistent with the policy
behind the national uniformity requirement because, while it yields
varying requirements for communities in different circumstances, the
requirements for railroads are nationally uniform. The policy is aimed
at facilitating transportation over the general system of railroad
transportation by assuring that railroads face the same requirements
nationwide--put another way, the railroad system cannot function
efficiently if the rules for operation change across local or state
jurisdictions. Railroads are required nationwide to sound the train
horn at every highway-rail grade crossing except those in quiet zones.
The standards for railroad operations remain the same nationwide
without regard to regional variations in the standards local
governments must meet in order to establish quiet zones.
As noted in the interim final rule, FRA investigated a number of
options in addressing Chicago area issues. (See section 14 of the
preamble to the interim final rule, ``Chicago Regional Issues,'' 68 FR
70611.) FRA noted then, and reiterates here that the option of using
national averages for the entire Nation, including Chicago, would have
been employed by FRA if the Chicago Regional data were not available or
their use inappropriate. FRA could have rationally decided that the
limited significance of the Chicago Region statistical conclusions did
not require reliance on those conclusions. This would have resulted in
a fully functional and appropriate final rule consistent with the Act;
a rule FRA would not have hesitated issuing. However acceptable this
option was, it would have necessitated according little weight to a
sizable body of testimony from the Chicago Region together with
statistical analysis and qualitative knowledge of the Chicago Region's
unique characteristics.
Excess Risk Estimate for New Quiet Zones
Other commenters from the Chicago Region assert that the 17.3%
excess risk estimate attributed to gated crossings subject to whistle
bans in the Chicago Region should be applied to all public grade
crossings within the Chicago Region. Noting that gated crossings
subject to whistle bans are often located on the same rail lines as
other grade crossings not subject to existing whistle bans, the Town of
Riverside, Illinois and the City of Elmhurst, Illinois asserted that it
was illogical to suggest that motorists consciously exhibit riskier
behavior at one gated crossing over another. The Village of Northbrook,
Illinois asserted that differential treatment of public crossings
implies that drivers need the audible cue at some crossings, but not at
others, in order to achieve the same level of safety. However, drivers
in northeastern Illinois regularly cross multiple crossings and are not
cognizant of which crossings are subject to whistle bans and which are
not. The Village of Buffalo Grove asserted that different standards
should not apply to adjacent crossings along the same rail line, while
George Pradel, Mayor of Naperville, Illinois asserted that there is no
difference in motorist behavior at such crossings.
FRA is not persuaded by the suggestion that the lower estimate of
excess risk associated with gated no-whistle crossings in Chicago is
applicable to other crossings. As FRA explained in the interim final
rule, one of the most important explanatory factors supporting a
reduced estimate of excess risk for gated no-whistle crossings in
Chicago is discretionary selection. Railroads have determined that they
should sound the horn at a clear majority of crossings in the region
where the Illinois Commerce Commission excused use of the horn because
of the risk that the railroads perceive at those crossings. Factors
that drive such decisions may include accident history, reports of
``near hits'' by train crews, poor crossing geometry, poor sight
distances on one or more approach, absence of active law enforcement,
and other factors. It is, of course, possible that the excess risk
associated with silencing the train horn at other crossings in Chicago
may be less than the national average due to a variety of factors.
However, FRA has no principled basis for deriving such an estimate. FRA
notes that Illinois authorities have not seen fit to impose mandatory
train horn bans at these additional crossings, and FRA is unwilling to
do so except on the basis required of all New Quiet Zones nationwide.
Chicago Region Proposed Alternate Crossing Safety Program
The Village of Arlington Heights, City of Chicago, Northwest
Municipal Conference, Metropolitan Mayors Caucus, and the Chicago Area
[[Page 21852]]
Transportation Study (``Chicago Region commenters'') submitted comments
asserting that their whistle ban crossings should qualify for the
statutory exception from the rule's locomotive horn sounding
requirements found at 49 U.S.C. 20153(c)(1)(C). This exception can be
applied by FRA to those categories of highway-rail grade crossings that
do not present a significant risk with respect to loss of life or
serious personal injury. In support of their assertion, the Chicago
Region commenters submitted a study by TransInfo LLC and the University
of Illinois at Chicago (``UIC''), which concluded that ``* * * based on
FRA data, there is no reason to believe that in the Chicago Area
banning the sounding of horns increases the chance of collisions at
gated public highway-rail grade crossings.''
In the alternative, the Chicago Region commenters submitted a
Proposed Alternative Crossing Safety Program to FRA for consideration.
Under this proposed program, FRA would delegate its authority over
quiet zone development and implementation to ``an appropriate State
agency with railroad safety oversight responsibilities.'' While FRA
would monitor the effectiveness of the regional quiet zone program, the
State agency would establish acceptable safety thresholds, designate
quiet zone status, and enforce railroad compliance within quiet zones.
For example, the Chicago Region would establish a safety threshold for
quiet crossings of no more than three ``relevant'' collisions over a
five-year period. If this threshold was ever exceeded at a quiet
crossing, the State agency could immediately impose routine horn
sounding at the crossing.
As stated above, FRA provided the TransInfo/UIC study to its
contractor, Westat, Inc., a nationally respected statistical research
firm, for analysis. After reviewing the study, Westat concluded that
the model used by TransInfo/UIC produced biased estimates. Westat also
concluded that its original model, which estimated a 17.3% risk
increase at whistle ban crossings in the Chicago Region, constituted
the best estimate of excess risk available. Given this increase in
risk, FRA has not, as of this date, applied the statutory exception to
whistle ban crossings in the Chicago Region. However, FRA has excepted
pre-rule no-whistle crossings in the Region from the requirement to
sound the train horn pending further analysis.
In addition, FRA has not adopted the Proposed Alternative Crossing
Safety Program. FRA cannot delegate its statutory authority to
prescribe requirements for quiet zone development and implementation in
the wholesale manner recommended by the Chicago Region commenters. FRA
also finds the proposed safety threshold of no more than three
``relevant'' (as defined by the commenters) collisions over a five-year
period to be inadequate, particularly in light of the fact that the
Program would exclude collisions in which the driver intentionally
drives around or under activated gates from the definition of
``relevant collision.'' Aggressive motorist behavior is part of the
risk that this rule seeks to counter. It is simply not the case that a
motorist who would drive around or under a gate cannot be deterred.
Absent suicidal behavior (suicides are not included in FRA safety
data), motorists can often be persuaded by a warning that is urgent and
clearly associated with the imminent arrival of the train at the
crossing. To the extent that State policy overlooks this fact, it fails
to address the full range of risk addressed by this rulemaking.
Nonetheless, within the framework of a uniform national policy,
State agencies can make substantial contributions to the successful
implementation of quiet zones. In response to comments, FRA has added a
new provision to the final rule that provides a greater role for State
agencies in the quiet zone development process. This provision will
allow State agencies to submit applications for ``recognized State
agency'' status, under which the agency can choose to participate as a
partner throughout the quiet zone development process. FRA envisions
that ``recognized State agencies'' could serve as clearinghouses for
proposed quiet zones, by coordinating the quiet zone development
process, designating crossings that are eligible for Pre-Rule Quiet
Zone and Intermediate Quiet Zone status, and/or participating in
diagnostic team reviews of crossings. Therefore, FRA encourages State
agencies who, like the Illinois Commerce Commission, would like to take
a proactive role in the quiet zone development process to submit
applications for ``recognized State agency'' status.
Section-by-Section Analysis
Section 222.1 What Is the Purpose of This Regulation?
This section was not revised in the final rule. Noting that the
interim final rule already addressed private crossings, the AAR
submitted comments recommending the revision of this section to state
that the purpose of this rule is to provide for safety at highway-rail
grade crossings and pedestrian crossings. However, the final rule
addresses private and pedestrian crossings to the extent that they are
located within quiet zones. Given the limited number of private and
pedestrian crossings affected by the rule, FRA has not expanded the
scope of this section.
Section 222.3 What Areas Does This Regulation Cover?
Paragraph (a) of this section has not been revised. A new paragraph
(b) has been added to this section. In the course of drafting any rule,
and especially when drafting a rule of this complexity and one
involving a number of sometimes competing interests, FRA makes a number
of difficult decisions. In doing so, FRA makes every attempt to
construe and implement statutory requirements appropriately.
Accordingly, paragraph (b) has been added to this section to expressly
indicate the intent of FRA that the provisions of this part are
separate and severable from one another. If any provision is stayed or
determined to be invalid, it is the intent of FRA that the remaining
provisions shall continue in effect.
Due to the uncertainty associated with the excess risk estimate of
silencing the locomotive horn at highway-rail grade crossings in the
Chicago Region where horn sounding was excused by the Illinois Commerce
Commission and where railroads have implemented no-whistle policies,
paragraph (c) has been added to exclude those highway-rail grade
crossings from the scope of the final rule pending completion of the
Chicago Region data re-analysis discussed in ``Chicago Regional
Issues'' (Supplementary Information, section 7).
Section 222.5 What Railroads Does This Regulation Apply To?
This section describes the railroads to which this regulation
applies. The regulation applies to every railroad with a number of
listed exceptions. The regulation does not apply to (1) railroads
exclusively operating freight trains only on track which is not part of
the general railroad system of transportation; (2) passenger railroads
that operate only on track which is not part of the general railroad
system of transportation and that operate at a maximum speed of 15
miles per hour over public grade crossings; and (3) rapid transit
operations within an urban area that are not connected to the general
railroad system of transportation.
Paragraph (a) of this section was not revised in the final rule.
However,
[[Page 21853]]
paragraph (b) of this section was revised in response to comments
received from the Association of Railway Museums. Noting that the
interim final rule would require tourist and excursion railroads to
limit their operating speeds to 15 miles per hour over all railroad
trackage, the Association of Railway Museums recommended that the rule
be revised to exclude passenger railroads that operate on track which
is not part of the general railroad system of transportation and that
operate at a maximum speed of 15 mph over public grade crossings. The
Association of Railway Museums asserted that precedent for this
recommendation could be found in 49 CFR 229.125, which requires
operative auxiliary lights on each lead locomotive operating at a speed
greater than 20 mph over public grade crossings. After considering
these comments, FRA determined that passenger operations that operate
on track which is not part of the general railroad system of
transportation could be exempted from the rule's locomotive horn
sounding requirements, provided these operations are limited to 15 mph
over public highway-rail grade and pedestrian crossings. Therefore, FRA
has revised paragraph (b) accordingly.
Paragraph (c) of this section has not been revised. The California
Public Utilities Commission (``California PUC'') submitted comments
asserting that the rule should be revised to exclude rapid transit
operations that share highway-rail grade crossings with conventional
operations but do not share trackage. In its comments, the California
PUC noted that rapid transit operations exhibit different risk patterns
and hazards than conventional rail operations. For instance, rapid
transit operations feature shorter consist lengths, different overall
visibility profiles, and greater braking abilities. If the rule is
applied to rapid transit operations that share highway-rail grade
crossings with conventional operations, rapid transit operations would
be required to sound the horn more frequently at crossings and to use a
much louder horn than is being currently used. FRA notes that Sec.
229.129 continues to exclude all rapid transit operations from the
audible warning sound level requirements. Therefore, rapid transit
operations that share highway-rail grade crossings with conventional
operations will not be required to use louder horns to provide an
audible warning at public highway-rail grade crossings. However, rapid
transit operations that share highway-rail grade crossings with
conventional operations must file a waiver under Sec. 222.15 to obtain
relief from the application of Part 222. FRA may then grant relief,
depending on the underlying circumstances of each case.
New Jersey Transit Corporation (``NJ Transit'') also submitted
comments requesting clarification of the rule's applicability to light
rail systems that operate on the general railroad system pursuant to an
FRA-approved Temporal Separation Plan. NJ Transit urged FRA to exempt
these light rail operations from the application of the rule based on
the distinct nature of light rail equipment (i.e., light rail vehicles
weigh less than conventional rail equipment and have superior stopping
capabilities).
FRA also received comments from individuals in Riverton, New Jersey
who requested that the rule be revised to exempt light rail operations
from the scope of the rule. Mark Schneider submitted comments
requesting that the final rule be revised to exclude the light rail
operation in the historic town of Riverton, New Jersey, which, he
states, is one of five light rail operations in the nation that can
``stop on a dime.'' Catherine Wheelhouse, owner of the Thomas Margaret
Fine Art Gallery, submitted comments asserting that light rail
operations should be evaluated under a different set of criteria
because these operations consist of slower moving vehicles that provide
a very large area of visibility for the operator.
Given the unique characteristics of individual light rail
operations and the fact that freight operations over shared crossings
will generally sound the horn (creating motorist expectations that
should be considered in planning for safety), FRA has not provided an
exemption for all light rail operations in the final rule. However, FRA
would be willing to consider any waivers filed under Sec. 222.15, for
relief from the requirements of this part, on a case-by-case basis.
These requests can be considered within existing ``shared use'' dockets
and after consultation with the Federal Transit Administration and
State Safety Oversight agencies.
The Town of Manchester-by-the-Sea, Massachusetts also submitted
comments recommending that the exemption set forth in paragraph (c) be
expanded to cover commuter rail service. Noting that its commuter rail
service consists of short passenger trains, generally not longer than
seven or eight cars, the Town of Manchester-by-the-Sea asserted that
motorists are not tempted to ``beat'' the train to the crossing and are
willing to wait for it to travel through the crossing. The Town of
Manchester-by-the-Sea also drew similarities between commuter rail
service and rapid transit operations, as both types of rail service
operate in densely populated areas. FRA has not, however, revised
paragraph (c) to cover commuter rail service. Commuter rail service,
unlike rapid transit operations, operates on the general railroad
system of transportation, often over the same trackage over which
freight railroads operate. In addition, the equipment used in commuter
rail service carries substantial weight which, in turn, requires
significant stopping distances. Even though the commuter rail service
in Manchester-by-the-Sea may entirely consist of short passenger
trains, the longer stopping distances associated with conventional
commuter rail operations necessitate advance warning of their impending
arrival at grade crossings, absent additional safety measures that
mitigate existing risk.
Section 222.7 What Is This Regulation's Effect on State and Local Laws
and Ordinances?
This section contains a statement of FRA's intent regarding the
preemptive effect of this final rule. While the presence or absence of
such a section does not conclusively establish the preemptive effect of
a final rule, it provides information to the public about the statutory
provisions that govern the preemptive effect of the rule and FRA's
position on this issue.
Paragraph (a) has been revised in the final rule to provide
clarification as to the preemptive effect of the rule on State laws
governing the sounding of the locomotive horn at public highway-rail
grade crossings. 49 U.S.C. 20106 states that all regulations prescribed
by the Secretary relating to railroad safety preempt any State law,
regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
hazard that is not incompatible with a Federal law, regulation, or
order and that does not unreasonably burden interstate commerce.
However, the highway-rail grade crossings described in Sec. 222.3(c)
are exempt from the scope of the final rule. Therefore, except as
provided in paragraph (b) of this section, this final rule shall
preempt any State statutory or common law, local ordinance or State or
local regulatory agency rule governing locomotive horn use at public
highway-rail grade crossings. As for the highway-rail grade crossings
described in Sec. 222.3(c), paragraph (b) states that the final rule
will not have any preemptive effect on State laws, rules, regulations,
or orders governing the sounding of the locomotive horn at those
crossings. Note that this statement of non-preemptive effect applies
only to those Chicago
[[Page 21854]]
Region highway-rail grade crossings described in Sec. 222.3(c). Thus,
it does not apply to every highway-rail grade crossing in the Chicago
Region.
Paragraph (c) states that the final rule preempts any State
statutory or common law, local ordinance or State or local regulatory
agency rule governing locomotive horn use at private and pedestrian
grade crossings that are located within a duly established quiet zone.
This paragraph has been revised in the final rule to include a
reference to the rule's preemptive effect over State and local laws
governing locomotive horn use at pedestrian grade crossings within
quiet zones.
Paragraph (d) states that the final rule will not preempt State law
regarding use of SSMs and ASMs as traffic control measures. However,
with the exception of SSMs and ASMs implemented at the highway-rail
grade crossings described in Sec. 222.3(c), the final rule will
preempt State law governing the sounding of the locomotive horn at
highway-rail grade crossings equipped with SSMs and/or ASMs. Since the
highway-rail grade crossings described in Sec. 222.3(c) are exempt
from the scope of the final rule, the final rule will not preempt State
law governing the sounding of the locomotive horn at those crossings.
Paragraph (e), which expresses FRA's intent to refrain from
preempting State law concerning administrative procedures that must be
followed regarding the installation or modification of engineering
improvements at highway-rail grade crossings, has been added to the
final rule in response to comments requesting clarification of the role
of State agencies that have jurisdiction over highway-rail grade
crossing safety. For example, while requesting clarification of the
rule's effect on the role of State agencies, the Oregon Department of
Transportation noted that signal and median installations within the
state of Oregon must be approved by the Oregon Department of
Transportation's Rail Division. Along the same vein, the Missouri
Department of Transportation stated that whenever highway-rail grade
crossings are modified, the Missouri Department of Transportation is
required to review and approve plans and issue administrative orders.
Noting that State law gives it exclusive jurisdiction over the terms of
installation, operation, maintenance, use and protection of each
crossing, the California Public Utilities Commission asserted that the
interim final rule was sufficiently vague that some localities might
assume that they could bypass state agencies, such as the California
Public Utilities Commission, that are empowered with exclusive
authority over grade crossing design and modification. The Township of
Montclair, New Jersey also submitted comments requesting clarification
of the State's role during the quiet zone development process. After
reviewing these comments, FRA has revised the final rule by
specifically stating, in paragraph (e), that the rule does not preempt
State law concerning administrative procedures for the installation or
modification of highway-rail grade crossing improvements.
Section 222.9 Definitions
The definitions of ``Administrator'', ``Alternative safety measures
(ASMs)'', and ``Associate Administrator'' have not been revised in the
final rule.
``Channelization device'' means a traffic separation system made up
of a raised longitudinal channelizer, with vertical panels or tubular
delineators attached, that is placed between opposing highway lanes
designed to alert or guide traffic around an obstacle or to direct
traffic in a particular direction. ``Tubular markers'' and ``vertical
panels'' as described in sections 6F.57 and 6F.58, respectively, of the
Manual on Uniform Traffic Control Devices (``MUTCD'') issued by the
Federal Highway Administration, are acceptable channelization devices
for purposes of this part. Additional design specifications are
determined by the standard traffic design specifications used by the
governmental entity constructing the channelization device. However,
FRA notes that it would be highly advisable to use raised longitudinal
channelizers that are at least four inches high.
FRA revised the definition of channelization device in the final
rule to reflect the fact that tubular markers and vertical panels must
now be attached to raised curbing, in order to qualify as an SSM. Even
though the interim final rule allowed the use of tubular markers and
vertical panels that were directly affixed to the pavement as
Supplementary Safety Measures, FRA received a number of negative
comments about the effectiveness and high maintenance burden associated
with the use of this type of roadway treatment. After considering these
comments, FRA has removed surface-mounted channelization devices from
the list of approved SSMs. Therefore, the rule has been revised by
restricting the definition of channelization devices to include only
those raised longitudinal channelizers that are equipped with vertical
panels or tubular delineators.
``Chicago Region'' means the following six counties in the State of
Illinois: Cook, DuPage, Lake, Kane, McHenry and Will.
The definition of ``Crossing Corridor Risk Index'' was not revised
in the final rule. The definition of ``Diagnostic team'' was also not
revised in the final rule. The California PUC submitted comments
recommending that the definition of ``diagnostic team'' be revised to
state that State agencies with jurisdiction over grade crossings must
be included in any diagnostic team. However, FRA did not revise the
definition of ``diagnostic team'' to mandate the inclusion of State
agencies with jurisdiction over grade crossings because no funding for
diagnostic team activities has been provided.
``Effectiveness rate'' means a number between zero and one which
represents the reduction of the likelihood of a collision at a public
highway-rail grade crossing as a result of the installation of an SSM
or ASM when compared to the same crossing equipped with conventional
active warning systems of flashing lights and gates. Zero effectiveness
means that the SSM or ASM provides no reduction in the probability of a
collision, while an effectiveness rating of one means that the SSM or
ASM is totally effective in eliminating collision risk. Measurements
between zero and one reflect the percentage by which the SSM or ASM
reduces the probability of a collision. This definition has been
revised in the final rule to correct a typographical error.
The definitions of ``FRA'' and ``Grade Crossing Inventory Form''
have not been revised in the final rule.
``Intermediate Partial Quiet Zone'' means a segment of a rail line
within which is situated one or a number of consecutive public highway-
rail grade crossings at which State statutes or local ordinances
restricted the routine sounding of locomotive horns for a specified
period of time during the evening or nighttime hours, or at which
locomotive horns did not sound due to formal or informal agreements
between the community and the railroad or railroads for a specified
period of time during the evening and/or nighttime hours, and at which
such statutes, ordinances or agreements were in place and enforced or
observed as of December 18, 2003, but not as of October 9, 1996.
``Intermediate Quiet Zone'' means a segment of a rail line within
which is situated one or a number of consecutive public highway-rail
grade crossings at which State statutes or local ordinances restricted
the routine sounding of
[[Page 21855]]
locomotive horns, or at which locomotive horns did not sound due to
formal or informal agreements between the community and the railroad or
railroads, and at which such statutes, ordinances or agreements were in
place and enforced or observed as of December 18, 2003, but not as of
October 9, 1996.
The definitions of ``Locomotive'', ``Locomotive horn'', ``Median'',
``MUTCD'', and ``Nationwide Significant Risk Threshold'' have not been
revised in the final rule.
``New Partial Quiet Zone'' means a segment of a rail line within
which is situated one or a number of consecutive public highway-rail
crossings at which locomotive horns are not routinely sounded between
the hours of 10 p.m. and 7 a.m., but are routinely sounded during the
remaining portion of the day, and which does not qualify as a Pre-Rule
Partial Quiet Zone. This definition contains a uniform period for the
routine silencing of the locomotive horn, which was included in
response to comments submitted by the Florida East Coast Railway
asserting that different time periods for partial quiet zones would
cause operational confusion and make compliance difficult.
``New Quiet Zone'' means a segment of a rail line within which is
situated one or a number of consecutive public highway-rail grade
crossings at which routine sounding of locomotive horns is restricted
pursuant to this part and which does not qualify as either a Pre-Rule
Quiet Zone or Intermediate Quiet Zone.
``Non-traversable curb'' means a highway curb designed to
discourage a motor vehicle from leaving the roadway. Non-traversable
curbs, which are used at locations where highway speeds do not exceed
40 miles per hour, are at least six inches high. Additional design
specifications are determined by the standard traffic design
specifications used by the governmental entity constructing the curb.
FRA revised this definition in the final rule to correct a
typographical error and to remove the maximum height requirement
contained within the interim final rule. The interim final rule defined
non-traversable curbs as being more than six inches, but no more than
nine inches high. As noted by SEH, Inc., this definition would exclude
the standard six-inch curb frequently used by governmental entities.
Therefore, FRA has revised the definition to include the standard six-
inch curbs that are frequently used by governmental entities.
``Partial Quiet Zone'' means a segment of a rail line within which
is situated one or a number of consecutive public highway-rail grade
crossings at which locomotive horns are not routinely sounded for a
specified period of time during the evening and/or nighttime hours.
``Pedestrian crossing'' means, for purposes of this part, a
separate designated sidewalk or pathway where pedestrians, but not
vehicles, cross railroad tracks. Sidewalk crossings contiguous with, or
separate but adjacent to, public highway-rail grade crossings, are
presumed to be part of the public highway-rail grade crossing and are
not considered pedestrian crossings for purposes of this rule.
The definition for ``Power-out indicator'' has not been revised in
the final rule.
``Pre-existing Modified Supplementary Safety Measure'' (Pre-
existing Modified SSM) means a safety system or procedure that is
listed in appendix A to this Part, but is not fully compliant with the
standards set forth therein, which was installed before December 18,
2003 by the appropriate traffic control or law enforcement authority
responsible for safety at the highway-rail grade crossing. The
calculation of risk reduction credit for pre-existing modified SSMs is
addressed in appendix B of this part.
``Pre-existing Supplementary Safety Measure'' (Pre-existing SSM)
means a safety system or procedure established in accordance with this
part before December 18, 2003 which was provided by the appropriate
traffic control or law enforcement authority responsible for safety at
the highway-rail grade crossing. These safety measures must fully
comply with the SSM requirements set forth in appendix A. The
calculation of risk reduction credit for qualifying pre-existing SSMs
is addressed in appendix A of this part.
``Pre-Rule Partial Quiet Zone'' means a segment of a rail line
within which is situated one or a number of consecutive public highway-
rail crossings at which State statutes or local ordinances restricted
horns for a specified period of time during the evening and/or
nighttime hours, or at which locomotive horns did not sound due to
formal or informal agreements between the community and the railroad or
railroads for a specified period of time during the evening and/or
nighttime hours, and at which such statutes, ordinances or agreements
were in place and enforced or observed as of October 9, 1996 and on
December 18, 2003.
The definition of Pre-Rule Partial Quiet Zone specifically includes
partial whistle bans enforced or observed as of the date of passage of
Public Law 104-264, which amended 49 U.S.C. 20153 to require the
Secretary to take into account the interest of communities that ``have
in effect'' restrictions on the sounding of the locomotive horn at
highway-rail grade crossings or have not been subject to the routine
sounding of a locomotive horn at highway-rail grade crossings. FRA
reads the statute as requiring FRA to be particularly solicitous of
communities that had restrictions in effect at the time of the 1996
ordinance.
The definitions of ``Pre-Rule Quiet Zone'' and ``Private highway-
rail grade crossing'' have not been revised in the final rule.
``Public authority'' means the public entity responsible for
traffic control or law enforcement at the public highway-rail grade or
pedestrian crossing. The definition of this term has been revised to
more accurately reflect the statutory definition provided in 49 U.S.C.
20153. In making this revision, FRA is responding to comments submitted
by the American Association of Railroads (``AAR'') which asserted that,
under the definition provided in the interim final rule, multiple
entities could qualify for public authority status over a set of
crossings. For example, a county police department could have
jurisdiction over the same set of crossings that fall under the
jurisdiction of a State highway agency. Under such a scenario, the
county police department and the State highway agency would qualify for
``public authority'' status. By narrowing scope of the definition, FRA
is attempting to minimize the number of circumstances in which there
may be multiple entities that can qualify for public authority status
over a single set of crossings. While the definition refers to the
entity ``responsible for traffic control or law enforcement'' at the
public crossing, FRA does not contemplate that the local police
department will be the entity creating a quiet zone. Instead, the
public entity having control over that law enforcement agency would be
the more appropriate entity. Thus, if city police patrol the crossing,
the city government, rather than the actual city police department,
would be the appropriate entity.
``Public highway-rail grade crossing'' means, for purposes of this
part, a location where a public highway, road, or street, including
associated sidewalks or pathways, crosses one or more railroad tracks
at grade. If a public authority maintains the roadway on both sides of
the crossing, the crossing
[[Page 21856]]
is considered a public crossing for purposes of this part.
The definition of public highway-rail grade crossing has been
revised in the final rule. The Florida Department of Transportation
submitted comments asserting that the definition of public highway-rail
grade crossing in the interim final rule is inconsistent with the
definition of public road provided in Title 23 of the United States
Code. Noting that grade crossings owned and maintained on one side by a
private entity are generally considered to be private crossings, the
AAR also submitted comments expressing concern that the definition
provided by the interim final rule would include a number of crossings
that are currently considered private crossings. As a result, the
interim final rule would require routine horn sounding at many
crossings where horns are not currently sounded. After considering
these comments, FRA revised the definition of public highway-rail grade
crossing to reflect the generally-accepted industry standard of having
a public roadway on both sides of the crossing.
The definition of ``Quiet Zone'' has not been revised in the final
rule.
``Quiet Zone Risk Index'' means a measure of risk to the motoring
public which reflects the Crossing Corridor Risk Index for a quiet
zone, after adjustment to account for increased risk due to lack of
locomotive horn use at the crossings within the quiet zone (if horns
are presently sounded at the crossings) and reduced risk due to
implementation, if any, of SSMs and ASMs with the quiet zone.
The calculation of the Quiet Zone Risk Index, which is explained in
appendix D of this part, does not differ for partial quiet zones. FRA
calculates risk on a 24-hour basis for all quiet zones, even if
restrictions on locomotive horn use have only been imposed during the
nighttime hours.
The definition of ``Railroad'' has not been revised in the final
rule.
``Recognized State agency'' means, for purposes of this part, a
State agency, responsible for highway-rail grade crossing safety or
highway and road safety, that has applied for and been approved by FRA
as a participant in the quiet zone development process.
``Relevant collision'' means a collision at a highway-rail grade
crossing between a train and a motor vehicle, excluding the following:
A collision resulting from an activation failure of an active grade
crossing warning system; a collision in which there is no driver in the
motor vehicle; or a collision in which the highway vehicle struck the
side of the train beyond the fourth locomotive unit or rail car. For
purposes of Pre-Rule Partial Quiet Zones, a relevant collision shall
not include collisions that occur during the time period within which
the locomotive horn is routinely sounded.
A specific exception has been added to the definition of ``relevant
collision'' for Pre-Rule Partial Quiet Zones. This exception has been
added to the final rule to ensure that only those relevant collisions
which occur during periods when the locomotive horn is silenced will be
considered for purposes of Sec. 222.41(b).
FRA received comments from Metra recommending that the definition
of ``relevant collision'' be revised to exclude collisions that were
deemed intentional on the part of the driver and collisions caused by
driver impairment due to consumption of alcohol or controlled
substances. The City of Cumberland, Maryland also submitted comments
recommending that the definition of ``relevant collision'' be revised
to exclude collisions in which the driver was under the influence of
drugs or alcohol and collisions in which the driver committed suicide.
However, FRA did not revise the definition of ``relevant collision'' to
exclude these types of collisions because primary cause determinations
for highway-rail grade crossing collisions are matters that are best
left for resolution by the courts.
Lastly, the AAR submitted comments recommending that the definition
of ``relevant collision'' be revised to include collisions at highway-
rail grade crossings between a train and a pedestrian. While collisions
between trains and pedestrians have been included in the overall
calculation of grade crossing risk, FRA has not revised the definition
of ``relevant collisions'' to include collisions between trains and
pedestrians because pedestrian collisions are not relevant on the
direct issue of motorist decision-making.
``Risk Index With Horns'' means a measure of risk to the motoring
public when locomotive horns are routinely sounded at every public
highway-rail grade crossing within a quiet zone. In Pre-Rule Quiet
Zones and Pre-Rule Partial Quiet Zones, the Risk Index With Horns is
determined by adjusting the Crossing Corridor Risk Index to account for
the decreased risk that would result if locomotive horns were routinely
sounded at each public highway-rail grade crossing.
The definitions of ``Supplementary safety measure (SSM)'',
``Waiver'', and ``Wayside horn'' have not been revised in the final
rule.
Section 222.11 What Are the Penalties for Failure To Comply With This
Regulation?
This section has been revised in the final rule to reflect the May
2004 inflation adjustment of FRA's maximum and minimum civil monetary
penalties. Under the final rule issued on May 28, 2004 (69 FR 30591),
FRA increased its minimum civil penalty from $500 to $550 and its
maximum civil penalty where a grossly negligent violation or pattern of
repeated violations has created an imminent hazard of death or injury
or has actually caused death of injury from $22,000 to $27,000.
Section 222.13 Who Is Responsible for Compliance?
This section has not been revised in the final rule.
Section 222.15 How Does One Obtain a Waiver of a Provision of This
Regulation?
The California PUC submitted comments recommending that the rule be
revised to require that any petition for waiver must come before the
State agency responsible for grade crossings. The California PUC
asserted that, at the very least, the State agency responsible for
crossing safety should be a party to the waiver proceeding and should
be given an opportunity to address the petition. However, FRA notes
that the waiver procedures set forth in 49 CFR part 211 require
publication notice of the waiver petition in the Federal Register and
the public, including State agencies, is encouraged to submit comments
on the waiver petition before FRA issues a decision.
The National League of Cities submitted comments recommending that
the scope of this section be expanded to include multi-jurisdictional
quiet zones. By expanding this section to include multi-jurisdictional
quiet zone disputes, FRA would make the final decision with respect to
whether quiet zone status should be granted or denied in those
instances in which an individual jurisdiction is in opposition to a
proposed multi-jurisdictional quiet zone. However, FRA is unwilling to
allow the waiver process to be used by one jurisdiction to impose its
proposed quiet zone and all resultant responsibilities upon its
neighbor. Therefore, the changes requested by the National League of
Cities will not be made.
This section has been revised, however, to conform to the statutory
requirements of Sec. Sec. 20153(d) and 201553(I)(3). Accordingly,
paragraph (b)
[[Page 21857]]
has been revised to require that in the event the railroad and public
authority cannot reach agreement to file a joint petition, the filing
party, in addition to specifying in its petition the steps it has taken
in an attempt to reach agreement with the other party, must also
explain why applying the requirement for a jointly filed submission
under paragraph (a) would not be likely to contribute significantly to
public safety. If the Associate Administrator determines that applying
the requirement for a jointly filed submission to that particular
petition would not be likely to significantly contribute to public
safety, the Associate Administrator shall waive the requirement for a
joint submission and accept the petition for consideration.
Paragraphs (c) and (d) of this section have not been revised in the
final rule.
Section 222.17 How Can a State Agency Become a Recognized State Agency?
This section sets forth the procedure that shall be followed by a
State agency responsible for highway-rail grade crossing safety and/or
highway and road safety in order to become a recognized State agency.
Even though the specific functions of a recognized State agency are
subject to agreement between the State agency and FRA, FRA envisions
that a recognized State agency could act as a quiet zone clearinghouse
by providing guidance on appropriate SSM selection, ensuring that
proposed grade crossing improvements comply with FRA regulations and
State administrative rules, securing all necessary State administrative
approvals, and ensuring that all required public authority notification
packages comply with FRA regulations. FRA does not, however, plan to
delegate any authority to approve quiet zone applications or to
establish acceptable risk thresholds within quiet zones. Nor does FRA
intend to allow recognized State agencies to prevent public authorities
from creating quiet zones, if the proposed quiet zone qualifies under
this rule and all applicable State laws and regulations.
FRA has added this section to the final rule in response to
comments submitted by State agencies who suggested the need for a
larger role in the quiet zone development process. Asserting that the
State's role was virtually non-existent under the interim final rule,
the Minnesota Department of Transportation submitted comments
expressing concern that the interim final rule would allow communities
to bypass the considerable expertise of State agencies charged with
improving grade crossing safety. The North Carolina Department of
Transportation recommended that State departments of transportation
serve as clearinghouses for quiet zone requests, so that State agencies
could be involved in safety evaluations for each proposed quiet zone.
Other State agencies submitted comments requesting a more expansive
role during the quiet zone development process. The Ohio Public
Utilities Commission and the California Public Utilities Commission
submitted comments recommending that all proposed quiet zones be
reviewed and approved by State grade crossing regulatory agencies.
Similarly, the Ohio Rail Association submitted comments recommending
that the final rule extend to States the power to determine what
oversight and safety standards need to be applied when communities seek
quiet zones. FRA also received a Proposed Alternative Crossing Program
from the Chicago Region, under which FRA would delegate the authority
to implement and manage quiet zone development to an appropriate State
agency with railroad safety oversight responsibilities.
After considering these comments, FRA decided to create a process
by which State agencies who are interested in having a greater role in
quiet zone development can provide assistance to FRA throughout the
quiet zone development process. As suggested by the North Carolina
Department of Transportation, recognized State agencies could serve as
clearinghouses for proposed quiet zones by coordinating quiet zone
creation and verifying local compliance with all applicable FRA
regulations and State laws and administrative rules. However, as stated
above, FRA does not plan to delegate any authority to approve quiet
zone applications or to establish acceptable quiet zone risk
thresholds.
Paragraph (a) provides that a State agency responsible for highway-
rail grade crossing safety and/or highway and road safety may become a
recognized State agency by submitting an application to the Associate
Administrator. This application must contain a detailed description of
the State agency's proposed scope of involvement in the quiet zone
development process, contact information for the person(s) who will be
made available to discuss the State agency application with FRA, and a
statement from State agency counsel affirming that the State agency is
authorized to undertake the responsibilities proposed.
Paragraph (b) provides that FRA will approve the State agency
application if the proposed scope of involvement will, in the Associate
Administrator's judgment, facilitate safe and effective quiet zone
development. However, the Associate Administrator reserves the right to
impose additional conditions as may be necessary to ensure effective
coordination between the State agency and FRA during the quiet zone
development process.
Section 222.21 When Must a Locomotive Horn Be Used?
Paragraph (a) of this section establishes the duty to sound the
locomotive horn when approaching a public highway-rail grade crossing.
The locomotive horn shall be sounded when the lead locomotive or cab
car is approaching a public highway-rail grade crossing. This paragraph
also requires the sounding of the locomotive horn in a pattern of two
long, one short, and one long blast, which shall be initiated at the
location specified in paragraph (b) of this section. The locomotive
horn sounding pattern shall be repeated or prolonged until the
locomotive or train occupies the crossing. However, the horn sounding
pattern may be varied as necessary where crossings are spaced closely
together.
FRA revised this paragraph in response to comments received from
the AAR which noted an inconsistency in the locomotive horn sounding
requirements imposed by the first two sentences in the interim final
rule. The first sentence of this paragraph originally required the
sounding of the locomotive horn when the locomotive or lead car
approached and passed through a public grade crossing. However, the
second sentence in the interim final rule required that the sounding of
the locomotive horn be repeated or prolonged until the locomotive or
train occupied the public grade crossing. For the sake of consistency,
FRA revised the first sentence of this paragraph to address the
initiation of locomotive horn sounding, so that only the second
sentence of this paragraph refers to the duration of the locomotive
horn sounding requirement.
Paragraph (b) of this section addresses the time interval within
which the locomotive horn shall sound in advance of the public highway-
rail grade crossing. Under the interim final rule, this paragraph (b)
required that the locomotive horn shall begin sounding at least 15
seconds, but no more than 20 seconds, before the locomotive enters a
public highway rail grade crossing. The paragraph also stated that in
no event
[[Page 21858]]
shall a locomotive horn be sounded more than one-quarter mile in
advance of the crossing.
FRA received comments on this paragraph from the North Carolina
Department of Transportation and the AAR. North Carolina noted that a
train operating at a speed of 80 mph would only be able to sound its
horn for 11 seconds prior to its arrival at a public grade crossing. On
the other hand, the AAR noted that a train operating at a speed less
than 45 mph would sound its horn for more than 20 seconds, if horn
sounding was initiated one-quarter mile from the public crossing.
As a result of the comments received, FRA revised this paragraph.
New paragraph (b)(1) provides that, subject to paragraph (b)(2), the
locomotive horn shall begin sounding at least 15 seconds, but no more
than 20 seconds, before the locomotive enters a public highway-rail
grade crossing. Paragraph (b)(2) addresses locomotives traveling at
speeds more than 45 mph. That paragraph states that locomotives
traveling at speeds in excess of 45 mph shall not begin sounding the
horn more than one-quarter mile in advance of a public grade crossing,
even if the advance warning provided by the locomotive will be less
than 15 seconds in duration. Research has shown that the effect of a
locomotive horn sounded at a distance greater than \1/4\ mile from a
grade crossing is attenuated to the extent that it does not provide
adequate warning to the motorist. There is thus no need to sound the
horn beyond this point. Eliminating the extra distance over which the
horn is sounded will reduce its noise impact on nearby residences and
businesses without affecting safety at grade crossings.
The Brotherhood of Locomotive Engineers and Trainmen submitted
comments reiterating the importance of retaining whistle posts in their
current locations to help locomotive engineers gauge their distance
from upcoming public crossings. Asserting that the location of upcoming
grade crossings can often only be determined in reference to permanent
whistle boards, the Metropolitan Transit Authority submitted comments
asserting that it would be virtually impossible for locomotive
engineers to comply with the rule, given the range of speeds over which
trains are operated. Although FRA has not received many comments from
locomotive engineers and their representatives asserting that there may
be substantial difficulties in complying with the time-based horn
sounding requirements contained within this rule, FRA encourages
railroads to retain present whistle boards as an aid to their
locomotive engineers.
Paragraph (c), which has been added to the final rule, reiterates
the fact that the highway-rail grade crossings described in Sec.
222.3(c) have been excluded from the scope of the final rule. Since the
horn sounding requirements established by this section will not apply,
locomotive horn sounding at these crossings will continue to be
governed by State and local law.
Section 222.23 How Does This Regulation Affect Sounding of a Horn
During an Emergency or Other Situations?
This section addresses the situations in which the locomotive horn
may be sounded within a quiet zone. Paragraph (a)(1) is intended to
make clear that a locomotive engineer may sound the locomotive horn in
emergency situations. Notwithstanding any other provision of the rule,
a locomotive engineer may sound the locomotive horn to provide a
warning to vehicle operators, pedestrians, trespassers or crews on
other trains in an emergency situation if, in the engineer's sole
judgment, such action is appropriate in order to prevent imminent
injury, death, or property damage. Thus, establishment of a quiet zone
shall not prevent the locomotive engineer from using his or her
discretion to sound the locomotive horn in emergency situations.
The AAR submitted comments on the interim final rule recommending
that this paragraph be revised to specifically state that sounding of
the locomotive horn to warn animals constitutes an emergency situation
that would justify horn sounding within a quiet zone. FRA agrees that
sounding the locomotive horn to warn animals that are trespassing on,
or near the track, constitutes an emergency situation that justifies
horn sounding within a quiet zone. Therefore, the rule has been revised
accordingly.
Paragraph (a)(2) is intended to clarify that while the rule does
not preclude the sounding of the locomotive horn in emergency
situations, the rule also does not impose a legal duty to do so. FRA
received a number of comments from communities throughout the country
who were concerned that the limited scope of this provision does not
shield public authorities from liability for silencing the routine use
of the locomotive horn within quiet zones. For example, the Village of
Hinsdale, Illinois asserted that the interim final rule exempts
railroads from liability and recommended that the final rule be revised
to provide the same coverage for public authorities. Along the same
lines, the City of Placentia, California submitted comments suggesting
that the final rule be revised to specify that it is intended to
provide protection from liability for silencing the train horn to
public authorities, as well as the railroad and train crew. The City of
Placentia also recommended that this protection from liability extend
to incidents involving both motor vehicles and pedestrians. The Village
of Cornwall-on-Hudson, New York submitted comments asserting that by
not addressing the liability of local communities that create quiet
zones, the interim final rule shifts traditional railroad liability
away from the party that is profiting from the use of the tracks and
onto local governments. The City of Sacramento, California submitted
comments recommending that the final rule be revised to state that the
establishment of a quiet zone cannot be the basis of a claim against a
local entity, provided the local entity established the quiet zone in
accordance with the rule. Along the same lines, the Town of Riverside,
Illinois submitted comments suggesting that the final rule contain a
clear statement that it is not intended to create any new liability for
municipalities. The City of West University Place, Texas submitted
comments suggesting that the final rule be revised by including broad
language that eliminates liability--either civil or criminal--for
public and private organizations and individuals who participate in
quiet zone establishment.
As stated in the interim final rule, FRA intends to protect from
liability the locomotive engineer who, in accordance with this rule and
railroad operating rules that were established in response to the
creation of a quiet zone, does not sound the locomotive horn. As for
the public authority that creates a quiet zone in accordance with this
part, FRA expects that the courts will apply the standard of care set
by this rule, inasmuch as any quiet zone established in accordance with
this part will have been established in accordance with federal law and
FRA's intention to preempt State law is expressly stated. This rule, in
effect, establishes the standard of care for the creation of quiet
zones and the sounding of train horns, providing reassurance both to
railroads and communities that no plaintiff will prevail on the basis
that an audible warning has been withheld. Further, this rulemaking
does nothing to undermine the sovereign immunity of State and local
governments, where they have asserted it.
[[Page 21859]]
Paragraph (b) of this section addresses situations involving
warning system malfunctions, in which use of the locomotive horn within
a quiet zone shall be allowed. These situations include instances in
which active grade crossing warning devices have malfunctioned and use
of the locomotive horn is required by Sec. Sec. 234.105, 234.106, or
234.107 of title 49, Code of Federal Regulations. These situations also
include instances in which a grade warning system is temporarily out of
service for inspection, testing, or maintenance purposes. The final
rule includes a third category of warning system malfunction, which
consists of wayside horn malfunctions, the occurrence of which shall
also exempt locomotive horn use within a quiet zone.
Paragraph (c) permits use of the locomotive horn, within a quiet
zone, to announce the approach of a train to roadway workers in
accordance with a program adopted under part 214 of this Chapter, or
where otherwise required by railroad operating rule.
Section 222.25 How Does This Rule Affect Private Highway-Rail Grade
Crossings?
This section clarifies the manner in which this rule affects
private crossings. (Section 20153(f) of title 49 explicitly gives
discretion to the Secretary on the question of whether private highway-
rail grade crossings should be subject to the rule's locomotive horn
sounding requirements.) FRA has determined that exercising its
jurisdiction in a limited manner over these crossings is the
appropriate course of action.
This section specifically states that this rule does not require
the routine sounding of locomotive horns at private highway-rail grade
crossings. Although FRA has jurisdiction over locomotive horn use at
private crossings based on 49 U.S.C. 20103 and 20153, it is not
exercising that jurisdiction at this time, except as to the use of
horns at private crossings within quiet zones.
Paragraph (a) has not been revised in the final rule. However,
paragraph (b) has been revised to require the public authority to
provide an opportunity to the State agency responsible for grade
crossing safety and all affected railroads to participate in diagnostic
team reviews of private crossings located within New Quiet Zones and
New Partial Quiet Zones. FRA is making this revision in response to
comments requesting a greater role for State agencies and affected
railroads in the quiet zone establishment process. For example, the
Florida East Coast Railway expressed concern that the interim final
rule would entitle a local community to establish a quiet zone without
railroad input because the importance of receiving such input during
the planning process cannot be overlooked. The Fort Worth & Western
Railroad, New Orleans & Gulf Coast Railroad, and the Idaho Northern &
Pacific Railroad submitted comments recommending that the interim final
rule be revised to establish a proactive review process by railroads on
the potential impacts of proposed quiet zones. The Southern California
Regional Rail Authority commented that the final rule should require
diagnostic team reviews of every grade crossing within a proposed quiet
zone or diagnostic team reviews of every grade crossing that will be
treated with an SSM that will need to be connected to the grade
crossing warning system. (Please see the Section-by-Section discussion
of Sec. 222.17 for a summary of the comments requesting a greater role
for State agencies.) After considering these comments, FRA revised the
rule by providing greater opportunity for railroads to provide input
during the quiet zone development process. The revision of paragraph
(b) reflects this approach, as public authorities are now required to
provide an opportunity for State agencies and railroads to participate
in diagnostic team reviews of private crossings.
Paragraph (b)(1) retains the requirement contained within the
interim final rule that private highway-rail grade crossings located
within New Quiet Zones which allow access to the public, or access to
active industrial or commercial sites, may be included in a quiet zone
only if a diagnostic team evaluates the crossing to determine whether
the institution of a quiet zone will significantly increase risk at the
private crossing. The scope of this requirement has, however, been
expanded in the final rule to include New Partial Quiet Zones.
Paragraph (b)(2) states that the public authority shall provide the
State agency responsible for grade crossing safety and all affected
railroads an opportunity to participate in the diagnostic team review
of private crossings. This new requirement should ensure that the State
agency and all affected railroads are given an opportunity to express
their views and provide useful information for the public authority to
consider. As stated in paragraph (a), the private crossing must then be
equipped or treated in accordance with the recommendations of the
diagnostic team.
This rule does not specify the financial responsibility of parties
for safety improvements at private crossings. Responsibility will be
determined under normal principles of property law and based upon
whatever contracts and cooperative agreements that may have been
entered into by the parties. It is, however, expected that the public
authority seeking to establish a quiet zone would assume responsibility
for funding any necessary improvements, the private crossing owner
would agree to the installation of any necessary improvements, and the
railroad would assume practical responsibility for maintenance of any
automated warning systems at the crossing.
Paragraph (c) of this section establishes requirements for the
installation of signage at private crossings located within quiet
zones. Paragraph (c)(1) states that every private crossing within a New
Quiet Zone or New Partial Quiet Zone shall, at a minimum, be equipped
with crossbucks and ``STOP'' signs, which are compliant with MUTCD
standards unless otherwise prescribed by State law, together with
advance warning signs that comply with Sec. 222.35(c). However, even
if State law prescribes use of a private crossing sign that is not
MUTCD-compliant, the private crossing sign must indicate to the
motorist that a stop is required. Paragraph (c)(2) provides a period of
three years from the effective date of the final rule for the
installation of such signs at private crossings located within Pre-Rule
Quiet Zones and Pre-Rule Partial Quiet Zones.
Paragraph (c) has been revised in response to comments submitted by
the Association of American Railroads. Under the interim final rule,
crossbucks and ``STOP'' signs that were installed at private crossings
within quiet zones were required to conform to the MUTCD. However, the
Association of American Railroads noted in its comments that some
railroads use stop signs and crossbucks that have been incorporated
into a ``private railroad crossing'' sign, which does not comply with
all aspects of the MUTCD. Furthermore, the Association of American
Railroads asserted that the State of California mandates use of a
specific private railroad crossing sign. Therefore, the interim final
rule would require railroads to replace signs that have been widely
used for years. In an attempt to reduce the regulatory burdens
associated with this rule, FRA has revised this paragraph to allow
railroads and public authorities to continue to use crossbucks and
``STOP'' signs that are not fully compliant with MUTCD standards, if
prescribed by State law.
[[Page 21860]]
Section 222.27 How Does This Rule Affect Pedestrian Crossings?
This section has been added to the final rule in order to address
pedestrian crossings located within quiet zones. (Section 20153(f) of
title 49 explicitly gives discretion to the Secretary on the question
of whether pedestrian crossings should be subject to the rule's
locomotive horn sounding requirements.) FRA has determined that
exercising its jurisdiction in a limited manner of these crossings is
the appropriate course of action. Although FRA has jurisdiction over
locomotive horn use at pedestrian crossings based on 49 U.S.C. 20103
and 20153, it is not exercising that jurisdiction at this time except
as to the use of horns at pedestrian crossings within quiet zones.
The AAR submitted comments warning that the failure of the interim
final rule to address pedestrian crossings and pedestrian accidents was
a major gap in the regulatory scheme. Noting that, in the absence of
the warning provided by the locomotive horn, the only warning a
pedestrian may have of an approaching train is the sound of the train
itself and visual observation, the AAR recommended that the final rule
require public authorities that want to create New Quiet Zones that
encompass pedestrian crossings to demonstrate that they have addressed
the effect that the quiet zone would have on pedestrian traffic.
It is imperative that the establishment of a quiet zone shall not
result in a significant increase in risk at pedestrian crossings
located within the quiet zone. Therefore, FRA is addressing pedestrian
crossings in a manner similar to the approach recommended by the AAR.
Paragraph (a) of this section provides that pedestrian crossings may be
included in a quiet zone. Paragraph (b) of this section requires public
authorities to address pedestrian safety issues when establishing New
Quiet Zones and New Partial Quiet Zones that contain pedestrian
crossings. Public authorities that want to establish a New Quiet Zone
or New Partial Quiet Zone that contains pedestrian crossings will be
required to conduct diagnostic team reviews of the pedestrian crossings
and treat them in accordance with the diagnostic team recommendations.
Paragraph (c) states that the public authority is required to provide
an opportunity for the State agency responsible for grade crossing
safety and all affected railroads to participate in diagnostic team
reviews of pedestrian crossings. This will ensure that the State agency
and all affected railroads are given an opportunity to express their
views and provide useful information for the public authority to
consider.
Paragraph (d), which has been added to the final rule, requires the
installation of signs at pedestrian crossings located within quiet
zones that advise pedestrians that train horns are not sounded at the
crossing. Noting that the interim final rule failed to require specific
warnings for pedestrians within quiet zones, the Southern California
Regional Rail Authority and Caltrain submitted comments recommending
that the rule be revised to require the posting of warning signs at
locations within quiet zones where pedestrians can access the railroad
right-of-way. After considering these comments, in combination with the
comments of the AAR which have been described above, FRA added
paragraph (d) to the final rule to provide an additional warning to
pedestrians at pedestrian crossings located within quiet zones.
Paragraph (d)(1) requires that each pedestrian crossing within a
New Quiet Zone shall be equipped with a sign that advises the
pedestrian that train horns are not sounded at the crossing. FRA
recommends use of the W10-9 ``NO TRAIN HORN'' sign within New Quiet
Zones. However, any sign used shall conform to the standards contained
in the MUTCD.