Use of Locomotive Horns at Highway-Rail Grade Crossings, 21844-21920 [05-8285]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 80 (Wednesday, April 27, 2005)]
[Rules and Regulations]
[Pages 21844-21920]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8285]



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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

Federal Register / Vol. 70, No. 80 / Wednesday, April 27, 2005 / 
Rules and Regulations

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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

[[Page 21848]]

``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, constitut