Use of Locomotive Horns at Highway-Rail Grade Crossings, 47614-47667 [06-6912]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 159 (Thursday, August 17, 2006)]
[Rules and Regulations]
[Pages 47614-47667]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6912]



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Part IV





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. 71, No. 159 / Thursday, August 17, 2006 / 
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. 17]
RIN 2130-AB73


Use of Locomotive Horns at Highway-Rail Grade Crossings

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to petitions for reconsideration of 
FRA's April 27, 2005 final rule that required that the locomotive horn 
be sounded while trains approach and enter public highway-rail grade 
crossings. This document amends and clarifies the final rule, in 
response to petitions for reconsideration and associated letters in 
support that have been submitted by interested parties, including the 
railroad industry, rail unions, and a manufacturer of traffic 
channelization devices.

DATES: The effective date is September 18, 2006.

FOR 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.
    On April 27, 2005, FRA published a Final Rule in the Federal 
Register (70 FR 21844). After the final rule was published, FRA 
received petitions for reconsideration and associated letters in 
support from the Association of American Railroads, Mr. James Adams of 
Placentia, California, GE Transportation-Rail, United Transportation 
Union, Brotherhood of Locomotive Engineers and Trainmen, BNSF Railway 
Company and Qwick Kurb, Inc. In addition, the Association of American 
Railroads submitted a petition for Emergency Order, which was 
subsequently denied.

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 highway-rail grade crossings, but 
gives FRA the authority to make reasonable exceptions.
    FRA's Final Rule on the Use of Locomotive Horns at Highway-Rail 
Grade Crossings (Final Rule) complied with the statutory mandate 
contained within section 20153 of title 49. As required by section 
20153(b) of title 49, the final rule requires locomotive horn sounding 
by trains that approach and enter public highway-rail grade crossings. 
(See rule Sec.  222.21.) However, as allowed by 49 U.S.C. 20153(c), the 
final rule contains exceptions for certain categories of rail 
operations and highway-rail grade crossings.
    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.
    Locomotive horn sounding is also not required within highway-rail 
grade crossing corridors that are equipped with supplementary safety 
measures (SSMs) at each public highway-rail grade crossing. In 
addition, locomotive horn sounding is not required within 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. 
These highway-rail grade crossing corridors have been deemed, by the 
Administrator, to constitute categories 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 
highway-rail 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. Until December 24, 
2005, the final rule

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allowed communities to establish Pre-Rule Quiet Zones, if the Quiet 
Zone Risk Index was at, or below, two times the Nationwide Significant 
Risk Threshold and there were no relevant collisions within the quiet 
zone since April 27, 2000. (See Sec.  222.41.) It should also be noted 
that the final rule allows communities to establish Pre-Rule Quiet 
Zones, 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 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 of title 49 prohibits FRA from entertaining single-
party petitions for waiver from the regulatory requirements issued 
under the authority of 49 U.S.C. 20153, unless FRA determines that this 
prohibition against single-party waiver petitions ``* * * is not likely 
to contribute significantly to public safety.'' Therefore, Sec.  222.15 
of the final rule, which governs the process for obtaining a waiver 
from the requirements of 49 CFR Part 222, requires joint filing of 
waiver petitions by the railroad and public authority, unless the 
Associate Administrator makes the determination that joint submission 
of an individual waiver petition would not be likely to significantly 
contribute to public safety.
    Section 222.55 of the final rule 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 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 and pedestrian grade crossings. Under the final 
rule amendments issued today, the sounding of locomotive audible 
warning devices at private and pedestrian crossings will be governed by 
this rule, if State law requires the sounding of locomotive audible 
warning devices at these crossings. (Sec. Sec.  222.25 and 222.27) 
However, routine locomotive horn sounding is prohibited at private and 
pedestrian grade crossings located within quiet zones, even if other 
locomotive audible warning devices must be sounded at these crossings 
per State and local law.
    Section 222.7 of the rule 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 State and local laws that govern 
locomotive horn use at public highway-rail grade crossings. Under the 
final rule amendments issued today, State and local laws that require 
the sounding of locomotive audible warning devices at public, private 
and pedestrian grade crossings will be preempted to the limited extent 
described in Sec. Sec.  222.21(e), 222.25 and 222.27 of the rule. 
However, as stated in Sec.  222.7(b), this rule does not preempt State 
and local laws governing the sounding of locomotive audible warning 
devices 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.
    Lastly, the final rule also complied 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 an Interim Final Rule on the Use of 
Locomotive Horns at Highway-rail Grade Crossings, which had the same 
force and effect as a final rule. After reviewing approximately 1,400 
comments on the interim final rule, FRA issued a final rule that 
granted additional relief to States and local communities and became 
effective on June 24, 2005. The final rule has therefore complied with 
49 U.S.C. 20153(j) because more than the required 365 days elapsed 
between issuance of the interim final rule on December 18, 2003 and the 
effective date of the rule on June 24, 2005.

3. Emergency Order 15

    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 Emergency Order did, however, permit the 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 Emergency Order are similar, but are not 
identical, to the supplementary safety measures contained in FRA's 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings (70 FR 21844).
    FRA has not yet rescinded Emergency Order 15. Therefore, FRA's 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings does not apply to public highway-rail grade crossings within 
the State of Florida that are currently subject to Emergency Order 15. 
On April 15, 2005, a public conference was held in Florida, at which 
FRA solicited comments on the appropriate excess risk estimate that 
should be applied to public highway-rail grade crossings that are 
currently subject to Emergency Order 15. While FRA intends to 
specifically address this issue in the near future, comments that have 
been received on this issue are still under consideration at this time.

4. Rule Changes

    This brief overview of the major amendments that have been made to 
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 amendments. Indeed, this 
full document should be read together with the previous documents 
issued in the proceeding. Inasmuch as the Final Rule, 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 these amendments should be read in conjunction with the Final 
Rule, 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

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positions and rationale remain those of FRA.

Summary of Changes to the Final Rule

     These amendments extend the compliance date of the time-
based locomotive horn sounding requirements until December 15, 2006. 
(See Sec.  222.21(b) for more information.)
     A ``good faith'' exception has been incorporated into the 
time-based locomotive horn sounding requirements for locomotive 
engineers who are unable to precisely estimate their time of arrival at 
upcoming grade crossings. (See Sec.  222.21(b)(2) for more 
information.)
     An exception has been added to the 15-second minimum 
locomotive horn sounding requirement for locomotives and trains that 
re-initiate movement after having stopped in close proximity to a 
public highway-rail grade crossing. (See Sec.  222.21(d) for more 
information.)
     These amendments expand the scope of the time-based 
locomotive horn sounding requirements to cover the sounding of any 
locomotive audible warning device (i.e., locomotive bells) at public 
highway-rail grade crossings. (See Sec.  222.21(e) for more 
information.)
     If State law requires the sounding of locomotive audible 
warning devices at private and/or pedestrian crossings, these 
amendments will require railroads to sound the locomotive audible 
warning device in a time-based manner. (See Sec. Sec.  222.25 and 
222.27 for more information.)
     An exception has been added to the locomotive horn 
sounding requirements for locomotives equipped with defective horns 
that are being moved for repair. (See Sec.  222.21(b)(2) for more 
information.)
     The notification requirements for Pre-Rule Quiet Zones and 
Pre-Rule Partial Quiet Zones have been streamlined by expanding the 
scope of the Notice of Intent requirement and removing the Notice of 
Detailed Plan requirement. (See Sec.  222.43 for more information.)
     These amendments extend the compliance date for the sound 
level testing of new locomotives until September 18, 2006. (See Sec.  
229.129(b) for more information.)
     These amendments provide clarification that locomotives 
used in rapid transit operations on the general railroad system are 
exempt from the locomotive horn sound level and testing requirements 
contained in 49 CFR 229.129. (See Sec.  229.129 for more information.)

Section-by-Section Analysis

Section 222.1 What is the purpose of this regulation?

    This section has not been revised.

Section 222.3 What areas does this regulation cover?

    This section has not been revised.

Section 222.5 What railroads does this regulation apply to?

    This section has not been revised.

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

    In its petition for reconsideration, the Association of American 
Railroads (AAR) noted that the Final Rule does not specifically address 
the preemptive effect of the Final Rule on State and local laws that 
effectively prohibit and/or restrict the sounding of locomotive horns 
for testing purposes. Asserting that the Final Rule should preempt such 
State and local laws, the AAR requested confirmation of FRA's position 
on this issue.
    FRA does not intend to preempt State and local noise ordinances 
that may have the effect of restricting the time period during which 
the locomotive horn may be sounded at locations other than grade 
crossings. FRA was directed to issue regulations that govern the 
sounding of locomotive horns at public highway-rail grade crossings, 
provided the interests of communities with pre-existing restrictions on 
locomotive horn sounding were taken into consideration. Given the 
nature of this statutory directive, FRA is reluctant to disturb 
longstanding State and local noise ordinances that may restrict 
locomotive horn sounding at locations other than grade crossing 
locations without additional information on the adverse impact of these 
ordinances on the ability of locomotive manufacturers and railroads to 
conduct locomotive horn testing in accordance with Sec.  229.129 of 
this part.
    Paragraph (b) of this section has been revised to reflect FRA's 
intent to refrain from preempting any State law, rule, regulation, or 
order governing the sounding of locomotive audible warning devices, 
including the locomotive horn, at any highway-rail grade crossing 
described in Sec.  222.3(c) of this part. Without this revision, FRA 
might have inadvertently preempted State law by requiring the sounding 
of the locomotive bell, at the highway-rail grade crossings described 
in Sec.  222.3(c) of this part, in accordance with this part.
    Paragraphs (c), (d), and (e) of this section have not been revised.

Section 222.9 Definitions

    FRA is making a minor revision to the definition of 
``channelization device'' in the Final Rule. FRA revised this 
definition in the Final Rule to prohibit the use of surface-mounted 
tubular markers and vertical panels within quiet zones as SSMs, where 
the surface-mounted tubular markers or vertical panels are not used in 
conjunction with a raised longitudinal channelizer. FRA did not, 
however, intend to prohibit the use of surface-mounted tubular markers 
or vertical panels, in conjunction with a raised longitudinal 
channelizer. FRA recognizes that the use of surface-mounted tubular 
markers and vertical panels, in conjunction with a raised longitudinal 
channelizer, can effectively reduce quiet zone risk.
    FRA is also correcting an inadvertent error in the preamble 
discussion of the definition of ``channelization device'' in the Final 
Rule. In that discussion, FRA stated that ``it would be highly 
advisable to use raised longitudinal channelizers that are at least 
four inches high.'' (See 70 FR 21854.) However, in its petition for 
reconsideration, Qwick Kurb, Inc. (``Qwick Kurb'') noted that FRA 
partially relied upon the results of state-sponsored tests on the 
efficacy of Qwick Kurb installations, which consist of three and one-
half inch high longitudinal channelizers with vertical elliptical 
markers attached, when determining that Qwick Kurb installations had an 
effectiveness rating of at least .75. Qwick Kurb also noted that Qwick 
Kurb installations were successfully tested by the Federal Highway 
Administration (FHWA) under FHWA's NCHRP 350 criteria as a crashworthy 
traffic control device.
    FRA notes that the regulatory text itself does not require use of 
raised longitudinal channelizers that are at least four inches high. 
Indeed, FRA never intended to discourage the use of raised longitudinal 
channelizers that are at least three and one-half inches high. Even 
though Qwick Kurb subsequently withdrew its objection to the preamble 
discussion of the definition of ``channelization device'' in the Final 
Rule, FRA recognizes that there may be some communities that have 
already purchased and installed raised longitudinal channelizers that 
are three and one-half inches in height. Therefore, FRA is clarifying 
that raised longitudinal channelizers of at least three and one-half 
inches in height, when affixed with vertical panels or tubular 
delineators, constitute acceptable channelization devices for

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purposes of this part. Lastly, FRA is removing all references to 
specific MUTCD sections from the definition of ``channelization 
device'', in recognition of the somewhat transitory nature of MUTCD 
section citations.
    A definition of ``locomotive audible warning device'' has been 
added to the Final Rule, in recognition of the expanded scope of the 
Final Rule with respect to the sounding of locomotive audible warning 
devices , as opposed to just locomotive horns, at public, private and 
pedestrian grade crossings.
    The definition of ``locomotive horn'' has been revised by adding a 
specific reference to locomotive horns used in rapid transit 
operations.
    The definition of ``MUTCD'' has been revised to correct an 
inadvertent typographical error.
    The definition of ``New Partial Quiet Zone'' has been revised to 
correct an inadvertent typographical error.
    The definition of ``pedestrian grade crossing'' has been revised in 
order to clarify that the requirements for pedestrian crossings 
contained within this part only apply to pedestrian grade crossings. 
Nonetheless, despite the limited scope of these requirements, the terms 
``pedestrian crossing'' and ``pedestrian grade crossing'' have been 
used interchangeably for purposes of this part.
    The definition of ``private highway-rail grade crossing'' has been 
revised to correct an inadvertent typographical error.
    Even though the definition of ``Pre-Rule Quiet Zone'' has not been 
revised, FRA is providing further clarification on the definition of 
this term. While reviewing Notices of Quiet Zone Continuation that have 
been submitted by public authorities seeking to continue locomotive 
horn restrictions in Pre-Rule Quiet Zones, it has come to FRA's 
attention that disagreements have arisen between public authorities and 
railroads on whether local ordinances that seem to prohibit locomotive 
horn sounding at certain highway-rail grade crossings have, in fact, 
been ``enforced or observed''. In these situations, the public 
authority and railroad must determine whether locomotive horns were 
routinely sounded at the grade crossings in question on October 9, 1996 
and December 18, 2003, despite locomotive horn sounding restrictions 
that were ostensibly imposed by State or local law. Railroad timetables 
that reflect locomotive horn sounding practices on October 9, 1996 and 
December 18, 2003 will provide dispositive proof on this issue.
    Even though the definition of ``quiet zone'' has not been revised, 
FRA is providing further clarification on the definition of this term. 
A quiet zone may only contain consecutive public highway-rail grade 
crossings located on a segment of a rail line. Therefore, a public 
authority may find it necessary to establish more than one quiet zone 
within the boundaries of a local community. For example, if there are 
two railroad tracks running through a local community that are not 
adjacent to each other and which do not share grade crossing warning 
system devices, a community that wishes to silence the locomotive horn 
at grade crossings along both tracks must create separate quiet zones 
for each railroad track or right-of-way. Also, if there is both a main 
line track and an industrial spur track within town limits, a community 
that wishes to silence the locomotive horn at grade crossings located 
on both tracks must create separate quiet zones for the main line track 
and the industrial spur track, unless the main line track and the 
industrial spur track share grade crossing warning system devices.

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

    This section has not been revised.

Section 222.13 Who is responsible for compliance?

    This section has not been revised.

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

    This section has not been revised.

Section 222.17 How can a State agency become a recognized State agency?

    This section has not been revised.

Section 222.21 When must a locomotive horn be used?

    This section has been revised in order to address the movement of 
locomotives with inoperative horns, extend the compliance date of 
paragraph (b) of this section by 120 days, provide a good-faith 
exception for locomotive engineers who sound the locomotive horn for 
more than 20 seconds when approaching public crossings, address the 
sounding of locomotive audible warning devices at public highway-rail 
grade crossings when required by State and local law and provide a 
limited exception to the minimum audible warning requirement for trains 
and locomotives that have stopped in close proximity to a public 
highway-rail grade crossing.
    Paragraph (a) of this section requires locomotive engineers to 
initiate locomotive horn sounding, in accordance with paragraph (b) of 
this section, and to continue sounding the locomotive horn until the 
lead locomotive blocks access to the crossing from all roadway 
approaches. FRA received a petition for reconsideration on this issue 
from James Adams, a resident of Placentia, California, who suggested 
that FRA require the locomotive engineer to sound only those locomotive 
horns which point in the direction of locomotive travel, in order to 
reduce unnecessary horn noise impacts from the sounding of locomotive 
horns that are pointed against the direction of travel. Most locomotive 
horns, particularly in freight service, are designed to provide warning 
in both directions of travel; and the engineer has no ability to select 
warning only in the forward direction. FRA will, however, continue 
research into more selective and effective means of providing audible 
warnings and may make further proposals in subsequent proceedings.
    Minor typographical revisions have been made in paragraph (a) of 
this section. Paragraph (b) of this section has been revised to provide 
an exception to the locomotive horn sounding requirements for 
locomotive engineers who discover that the locomotive horn on the lead 
locomotive has failed enroute. Should this situation occur, the 
locomotive must be moved for repair in accordance with Sec.  229.9 of 
this chapter. In addition, any movement of the locomotive with the 
inoperative horn over highway-rail grade crossings must be made in 
accordance with all applicable railroad operating rules.
    Paragraph (b) of this section has also been revised in response to 
petitions for reconsideration that were submitted by the AAR and the 
BNSF Railway Company (BNSF), as well as letters that were submitted by 
the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the 
United Transportation Union (UTU), which were submitted in support of 
certain provisions contained within the AAR's petition for 
reconsideration.
    In the AAR's petition for reconsideration, the AAR asserted that 
the current compliance date for the locomotive horn sounding 
requirements set forth in this paragraph would require a rapid 
transition from State law. The AAR asserted that such a transition 
would not be in the public interest, as locomotive engineers would be 
required to comply with time-based audible warning requirements without 
the benefit of training and/or properly placed whistle posts. 
Therefore, the AAR requested that FRA postpone the

[[Page 47618]]

compliance date of these requirements for one year.
    FRA notes that railroads have been aware of the time-based audible 
warning requirements of this section for some time, as FRA's Interim 
Final Rule on the Use of Locomotive Horns at Highway-Rail Grade 
Crossings, which was published on December 18, 2003, contained a 15-20 
second audible warning requirement. While FRA is aware of the fact that 
the AAR objected to the 15-20 second audible warning requirement in its 
comments on the Interim Final Rule, the 15-20 second audible warning 
requirement contained within the Final Rule should not have been a 
complete surprise to the railroad industry. Nonetheless, in the 
interest of railroad safety, FRA has added paragraph (b)(1) to this 
section, which delays the compliance date of the time-based audible 
warning requirement by 120 days from the date of publication of this 
Notice in order to give railroads additional time within which to 
adjust whistle posts and/or issue appropriate instructions to train 
crews. In the interim, railroads must either comply with the locomotive 
horn sounding requirements that were in effect immediately prior to 
June 24, 2005 (i.e., State law or, in the absence of State law, 
railroad operating rules) or this section.
    The AAR, BNSF, BLET, and UTU also indicated significant concerns 
that situations may arise in which engineers are unable to precisely 
estimate the point at which sounding of the horn should be initiated in 
order to meet the 15-20 second criterion of the final rule. The AAR, 
BLET and UTU suggest that a good faith exception be employed where 
circumstances make it difficult to estimate the time of arrival, citing 
concerns about liability. This could include cases where whistle boards 
are placed irregularly (confounding an engineer's attempt to begin a 
``countdown'' at a fixed point), where weather conditions make 
identification of landmarks difficult, where the train is accelerating 
or braking on approach to the crossing, and under other circumstances.
    In sum, AAR's petition appeared to focus on short and long audible 
warnings, while the BLET and the UTU expressed concern with respect to 
exceeding the 20-second audible warning requirement. On the other hand, 
BNSF expressed concern with the time-based nature of the locomotive 
horn sounding requirement and requested that the locomotive horn 
continue to be sounded from a fixed point of reference, such as a 
whistle post.
    FRA appreciates these concerns. FRA is also cognizant that 
previously existing State law requirements, and requirements of 
railroad operating rules have required distance-based use of the horn 
for many years, with attendant liability for non-compliance where 
collisions occur. However, FRA believes that adjustment to a time-based 
approach can, and should be readily accomplished, since locomotive 
engineers are required to be familiar with their territory and are 
accustomed to meeting these kinds of challenges. The time-based 
approach will allow the railroads to provide effective warning without 
incurring the animus of local communities associated with sounding the 
horn for a full quarter-mile when trains are operated a low speed. The 
time-based approach incorporates the strategy used by the locomotive 
engineer who ``took mercy'' on the community by exercising discretion, 
when operating a slow-moving train, to delay the onset of horn sounding 
at grade crossings.
    FRA believes that it is important that sufficient warning be 
provided to the motorist who needs time to recognize the audible 
signal, understand its message, initiate a reaction, and take 
appropriate action when approaching the crossing. Other standards for 
other active warning at highway-rail crossings call for at least 20 
seconds of advance warning (see 49 CFR 234.225), and it is typical for 
basic signal arrangements to provide 30 seconds' warning or more. At 
crossings equipped with active warning devices, the locomotive horn 
generally provides a last-minute, additional warning to the motorist of 
the impending arrival of a train. Thus, it appears quite necessary and 
appropriate to retain the minimum 15-second warning requirement, given 
the need for uniformity and the wide range of conditions on the roadway 
approach to highway-rail crossings (including road speeds as high as 55 
miles per hour).
    Nevertheless, FRA agrees that employees should err on the side of 
safety when there is any uncertainty. In a case where situational 
awareness is partially compromised, an employee should not hesitate to 
begin a horn sounding sequence because of fear that excessive warning 
might be provided. Accordingly, former paragraph (b)(1), which has been 
renumbered as paragraph (b)(2) of this section, has been amended to 
state explicitly that exceeding the maximum warning time up to a limit 
of 25 seconds will not constitute a violation of this section if the 
action is taken in good faith. This is intended to affirm the action of 
an employee who errs on the side of safety in a particular instance, 
and not to condone the actions of an engineer who willfully disregards 
the 20-second limitation for normal operations. FRA will also utilize 
enforcement discretion for cases in excess of 25 seconds where unusual 
circumstances provide a justification.
    Former paragraph (b)(2), which has been renumbered as paragraph 
(b)(3) of this section, has also been revised in order to correct a 
typographical error. Trains, locomotive consists (two or more 
locomotives traveling together without any train cars attached), and 
individual locomotives traveling at speeds in excess of 60 mph are 
prohibited from providing an advance warning more than one-quarter mile 
in advance of public grade crossings, even if this means that high-
speed trains, locomotive consists, and individual locomotives cannot 
provide an advance warning of at least 15 seconds in duration.
    Paragraph (c) of this section has not been revised.
    Paragraph (d) has been added to this section to address locomotive 
horn sounding when a train, locomotive consist, or individual 
locomotive has stopped in close proximity to a public highway-rail 
grade crossing. Trains and locomotives may stop in close proximity to 
public grade crossings during switching and/or commuter rail 
operations, especially when passenger stations are located in close 
proximity to public highway-rail grade crossings. In light of the low 
train speed associated with initiating train or locomotive movement 
from a complete stop, as well as FRA's intent to minimize local noise 
impacts where feasible, paragraph (d) will allow the locomotive 
engineer to sound the locomotive horn for less than 15 seconds before 
entering a public highway-rail grade crossing, when initiating movement 
from a complete stop in the close proximity of a public highway-rail 
grade crossing. Even though passenger stations located adjacent to 
public highway-rail grade crossings were the impetus for this revision, 
FRA notes that this limited exception may apply in other situations 
where trains have stopped in close proximity to public highway-rail 
grade crossings.
    FRA is refraining from providing an exact distance that would 
constitute ``close proximity'' as the length of time that it will take 
for a train to reach the crossing will vary greatly depending on the 
type and weight of the train. If a train is stopped at a location such 
that it will take less than fifteen seconds for it to occupy the 
crossing, it is deemed to be in close proximity.

[[Page 47619]]

    Paragraph (e) has also been added to this section, in response to a 
petition for reconsideration submitted by the AAR, in which the AAR 
requested that 49 CFR Part 222 be revised to preempt State laws that 
govern the sounding of all locomotive audible warning devices at public 
highway-rail grade crossings. Without such preemption, the AAR asserted 
that railroads would be required to initiate locomotive bell sounding 
at a location specified by State law, which may be inconsistent with 
the time-based locomotive horn sounding requirement set forth in this 
section.
    FRA is not exercising complete preemption of State laws on the 
sounding of locomotive audible warning devices at public highway-rail 
grade crossings. Complete preemption of State laws on this issue could 
inadvertently remove the valuable warning currently provided by 
locomotive audible warning devices other than the locomotive horn 
because the Final Rule does not require the sounding of locomotive 
audible warning devices, other than the locomotive horn, at public 
highway-rail grade crossings.
    FRA has, however, added this section to ensure that a consistent 
locomotive audible warning will be provided at public highway-rail 
grade crossings. Therefore, if State law requires the sounding of a 
locomotive audible warning device other than the locomotive horn at 
public highway-rail grade crossings, that locomotive audible warning 
device must be sounded in accordance with paragraphs (b) and (d) of 
this section. By exercising preemption in this limited manner, FRA 
hopes to alleviate any potential confusion on the part of the 
locomotive engineer who might otherwise have been forced to comply with 
distance-based locomotive bell sounding requirements, as well as time-
based locomotive horn sounding requirements, at the same public 
highway-rail grade crossing.

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

    Paragraph (a) of this section has not been revised.
    Paragraph (b) of this section has been revised to correct an 
inadvertent omission from the list of situations in which locomotive 
horn use at quiet zone crossings would be permissible. In the Final 
Rule, FRA stated that locomotive horn use would be permitted at a quiet 
zone crossing equipped with a wayside horn, in the event of a wayside 
horn malfunction. Similarly, the Final Rule states that locomotive horn 
use would be permitted at a quiet zone crossing when active grade 
crossing warning devices installed at the grade crossing are 
malfunctioning or out of service. As indicated by this list of 
potential scenarios, FRA has always intended to permit railroads to 
sound the locomotive horn at a quiet zone crossing whenever engineering 
improvements installed at the grade crossing become non-compliant. 
Therefore, FRA has added paragraph (b)(4) to this section to clarify 
that railroads are not required to comply with the general prohibition 
against routine locomotive horn sounding at a quiet zone crossing, when 
an SSM, modified SSM or engineering SSM installed at the quiet zone 
crossing fails to comply with the requirements set forth in appendix A 
of this part or the conditions contained within the Associate 
Administrator's decision to approve the quiet zone in accordance with 
section 222.39(b) of this part. The railroad should, however, attempt 
to contact the person responsible for monitoring quiet zone compliance 
with this part (as designated in the Notice of Quiet Zone 
Establishment), in order to inform the public authority of the non-
compliant condition of the quiet zone crossing.
    Paragraph (c) of this section has not been revised.

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

    This section has been revised in response to the AAR petition for 
reconsideration. In its petition for reconsideration, the AAR expressed 
support for FRA's decision to refrain from requiring locomotive horn 
sounding at every private highway-rail grade crossing. However, noting 
that some States require the sounding of a locomotive horn or the 
ringing of the locomotive bell at private highway-rail grade crossings, 
the AAR requested that FRA amend 49 CFR Part 222 by adding an explicit 
statement of FRA's intent to preempt State law, to the extent that 
State law requires the sounding of a locomotive audible warning device 
for a period of time or in a pattern different from the locomotive horn 
sounding requirements set forth in Sec.  222.21 of this part. After 
considering this request, as well as the potential for confusion that 
may result from requiring the locomotive engineer to provide a 
different audible warning at public highway-rail grade crossings than 
at private highway-rail grade crossings, FRA revised this section. 
Thus, if State law requires the sounding of locomotive audible warning 
devices at private highway-rail grade crossings, the locomotive audible 
warning device must be sounded in accordance with the locomotive horn 
sounding requirements set forth in Sec.  222.21 of this part as of 
December 15, 2006. However, in recognition of the fact that some 
locomotive audible warning devices (such as the locomotive bell) cannot 
be sounded in accordance with the locomotive horn sounding pattern 
required by Sec.  222.21(a) of this part (i.e., two long blasts, one 
short blast, and one long blast), locomotive audible warning devices 
other than the locomotive horn need only be sounded in accordance with 
the time-based locomotive horn sounding requirements set forth in 
Sec. Sec.  222.21(b) and (d) of this part.
    Paragraph (a) of this section has also been revised, in response to 
the AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that the permissive language in this 
provision could mislead public authorities into thinking that they are 
not required to address private highway-rail grade crossings when 
establishing their quiet zones. After considering this assertion, FRA 
noted that public authorities located in States that do not require 
locomotive horn sounding at private highway-rail grade crossings might 
erroneously assume that it will not be necessary to include and/or 
improve private highway-rail grade crossings located within the 
boundaries of their quiet zone. Therefore, FRA revised this paragraph 
in order to clarify that all private highway-rail grade crossings 
located within the boundaries of a quiet zone must be treated in 
accordance with this part.
    Paragraph (b)(1) of this section has been revised to clarify that 
all private highway-rail grade crossings that are located in New Quiet 
Zones or New Partial Quiet Zones must be evaluated by a diagnostic team 
and then equipped or treated in accordance with the diagnostic team 
recommendations, if the private highway-rail grade crossings allow 
access to the public or provide access to active industrial or 
commercial sites. Paragraph (b)(2) of this section has not been 
revised.
    Paragraph (c) of this section has also been revised to clarify that 
crossbucks and ``STOP'' signs must be installed at each approach to 
private highway-rail grade crossings that are located within quiet 
zones.

Section 222.27 How does this rule affect pedestrian grade crossings?

    This section has been revised in response to the AAR petition for 
reconsideration. In its petition for reconsideration, the AAR expressed

[[Page 47620]]

support for FRA's decision to refrain from requiring locomotive horn 
sounding at pedestrian grade crossings. However, after asserting that 
some States may require the sounding of a locomotive audible warning 
device at pedestrian grade crossings, the AAR requested that FRA amend 
49 CFR Part 222 by adding an explicit statement of FRA's intent to 
preempt State law, to the extent that State law requires the sounding 
of a locomotive audible warning device for a period of time or in a 
pattern different from the locomotive horn sounding requirements set 
forth in Sec.  222.21 of this part. After considering this request, as 
well as the potential for confusion that may result from requiring the 
locomotive engineer to provide a different audible warning at public 
highway-rail grade crossings than at pedestrian grade crossings, FRA 
revised this section. Therefore, if State law requires the sounding of 
a locomotive audible warning device at pedestrian grade crossings, the 
locomotive audible warning device must be sounded in accordance with 
the locomotive horn sounding requirements set forth in Sec.  222.21 of 
this part as of December 15, 2006. However, in recognition of the fact 
that some locomotive audible warning devices (such as the locomotive 
bell) cannot be sounded in accordance with the locomotive horn sounding 
pattern required by Sec.  222.21(a) of this part (i.e., two long 
blasts, one short blast, and one long blast), locomotive audible 
warning devices other than the locomotive horn need only be sounded in 
accordance with the time-based locomotive horn sounding requirements 
set forth in Sec. Sec.  222.21(b) and (d) of this part.
    Paragraph (a) of this section has also been revised, in response to 
the AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR expressed concern that the permissive language 
contained in paragraph (a) of this section could mislead public 
authorities into thinking that they are not required to address 
pedestrian crossings when establishing their quiet zones. After 
considering this assertion, FRA noted that public authorities located 
in States that do not require locomotive horn sounding at pedestrian 
grade crossings might erroneously assume that it will not be necessary 
to include and/or improve pedestrian grade crossings located within the 
boundaries of their quiet zone. Therefore, FRA revised this paragraph 
in order to clarify that all pedestrian grade crossings located within 
the boundaries of a quiet zone must be treated in accordance with this 
part.
    Paragraph (b) of this section has been revised to clarify that all 
pedestrian grade crossings that are located in New Quiet Zones or New 
Partial Quiet Zones must be evaluated by a diagnostic team and then 
equipped or treated in accordance with the diagnostic team 
recommendations, if the pedestrian grade crossings allow access to the 
public or provide access to active industrial or commercial sites.
    A minor typographical edit has been made to paragraph (c) of this 
section.
    Paragraph (d) of this section has also been revised in response to 
the AAR petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that paragraph (d) of this section 
requires the installation of signs at pedestrian crossings that could 
potentially be misleading. In light of the fact that partial quiet 
zones may be established in States that do not require locomotive horn 
sounding at pedestrian grade crossings, the AAR expressed concern that 
pedestrians encountering time-specific warning signs when the partial 
quiet zone is not in effect might assume that the locomotive horn will 
be sounded by approaching trains. After considering this issue, FRA 
agreed that the Final Rule's warning sign requirement could be 
misleading to pedestrians. Therefore, in order to minimize confusion, 
paragraphs (d)(2) and (d)(4) of this section have been revised to give 
public authorities the flexibility to install warning signs which 
advise pedestrians that train horns will not be sounded, but do not 
list the hours within which the partial quiet zone will be in effect. 
Thus, if State law does not require locomotive horn sounding at 
pedestrian grade crossings, signs that indicate that horns are not 
sounded would be appropriate. However, if State law requires locomotive 
horn sounding during non-quiet zone hours, then signs indicating that 
horns are not sounded between stated hours of the partial quiet zone 
would be appropriate. Paragraph (d) of this section has also been 
revised to clarify that advance warning signs must be installed on each 
approach to pedestrian grade crossings located within quiet zones.

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

    This section has not been revised.

Section 222.35 What are the minimum requirements for quiet zones?

    Minor typographical revisions have been made throughout this 
section.
    Paragraph (a)(1)(iii) has been added to this section to address the 
configuration of multiple New Quiet Zones and New Partial Quiet Zones 
along the same rail line within a single political jurisdiction. Even 
though FRA has refrained from establishing a minimum distance between 
neighboring quiet zones, there must be at least one public highway-rail 
grade crossing between New Quiet Zones and New Partial Quiet Zones 
located on the same rail line within a single political jurisdiction 
unless a New Quiet Zone or New Partial Quiet Zone is being added onto 
an existing quiet zone. While it is perfectly acceptable for a 
community to create two quiet zones (each at least one-half mile long) 
with a segment between them at which horns will sound, multiple New 
Quiet Zones and New Partial Quiet Zones cannot be established on the 
same rail line within the boundaries of a single political jurisdiction 
unless they are separated by at least one public highway-rail grade 
crossing.
    By establishing a single New Quiet Zone or New Partial Quiet Zone 
to incorporate all public highway-rail grade crossings at which routine 
locomotive horn sounding will be restricted or prohibited, the 
administrative burden associated with quiet zone establishment will be 
lessened. In addition, FRA perceives no safety-related rationale for 
dividing a multiple-crossing New Quiet Zone or New Partial Quiet Zone 
along a single rail line into fragmented quiet zones. Therefore, unless 
a New Quiet Zone or New Partial Quiet Zone is being added onto an 
existing quiet zone, New Quiet Zones and New Partial Quiet Zones 
created along the same rail line within a single political jurisdiction 
must be separated by at least one public highway-rail grade crossing.
    Paragraph (a)(2)(ii) of this section has been revised to correct an 
inadvertent restriction on the number of Pre-Rule Quiet Zones that can 
be combined. Under the revised language in paragraph (a)(2)(ii) of this 
section, public authorities can combine more than two adjacent Pre-Rule 
Quiet Zones or Pre-Rule Partial Quiet Zones.
    Paragraph (a)(3) of this section, which states that grade crossings 
on a segment of rail line that travels through more than one political 
jurisdiction may be included within a single quiet zone, has been 
revised. This paragraph has been revised in order to clarify that 
pedestrian crossings, located on the same segment of rail line as 
public highway-rail grade crossings, may also be included in multi-
jurisdictional quiet zones.
    Paragraph (b) of this section has not been revised.

[[Page 47621]]

    Paragraph (c) of this section has been revised in response to the 
AAR's petition for reconsideration. In its petition for 
reconsideration, the AAR asserted that paragraph (c) of this section 
requires the installation of signs at private highway-rail grade 
crossings that could potentially be misleading. In light of the fact 
that partial quiet zones may be established in States that do not 
require locomotive horn sounding at private highway-rail grade 
crossings, the AAR expressed concern that motorists encountering time-
specific warning signs when the partial quiet zone is not in effect 
might assume that the locomotive horn will be sounded by approaching 
trains. After considering this issue, FRA agreed that the Final Rule's 
warning sign requirement could be misleading to motorists. Therefore, 
in order to minimize confusion, paragraphs (c)(2) and (c)(4) of this 
section have been revised to give public authorities the flexibility to 
install warning signs which advise motorists that train horns will not 
be sounded, but do not list the hours within which the partial quiet 
zone will be in effect. Thus, if State law does not require locomotive 
horn sounding at private highway-rail grade crossings, signs that 
indicate that horns are not sounded would be appropriate. However, if 
State law requires locomotive horn sounding during non-quiet zone 
hours, then signs indicating that horns are not sounded between stated 
hours of the partial quiet zone would be appropriate. These warning 
signs must be installed on each approach to public and private highway-
rail grade crossings.
    Paragraph (c)(5) has been added to this section to clarify that FRA 
does not intend to require public authorities to install advance 
warning signs at highway-rail grade crossings that are equipped with 
wayside horns that conform to the requirements set forth in Sec.  
222.59 and Appendix E of this part, but are located within a quiet 
zone.
    Paragraph (d) of this section has not been revised. Minor 
typographical edits have, however, been made in paragraphs (e), (f), 
and (g) of this section.

Section 222.37 Who may establish a quiet zone?

    Paragraph (a) of this section addresses the situation that may 
occur if a proposed quiet zone includes public highway-rail grade 
crossings that are under the authority and control of more than one 
public authority. This scenario could occur if the proposed quiet zone 
contains county roads and State highways that intersect the railroad 
tracks at adjacent crossings. This scenario could also occur if the 
railroad tracks or the roadway run along the border between two 
neighboring communities.
    When faced with this scenario, paragraph (a) of this section states 
that both public authorities must agree to establishment of the quiet 
zone and must jointly, or by delegation, take such actions as are 
required to comply with this part. Therefore, if two neighboring 
communities are interested in quiet zone creation, the communities 
might want to consider working together to create a multi-
jurisdictional quiet zone. If the neighboring communities are not, 
however, interested in creating a single, multi-jurisdictional quiet 
zone, any shared highway-rail grade crossing (i.e., a highway-rail 
grade crossing that contains a roadway that runs along the border of 
the neighboring communities) can only be attributed to one quiet zone. 
Otherwise, the risk reduction credit associated with any safety 
improvements at the shared highway-rail grade crossing would be 
``double-counted'', if claimed by adjacent quiet zones.
    A minor typographical revision has been made to paragraph (a) of 
this section. However, paragraphs (b) and (c) of this section have not 
been revised.

Section 222.38 Can a quiet zone be created in the Chicago Region?

    This section has not been revised.

Section 222.39 How is a quiet zone established?

    Paragraph (a) of this section has not been revised.
    Minor typographical revisions have been made to paragraph (b) of 
this section. In addition, paragraph (b) of this section has been 
revised in response to the AAR's petition for reconsideration. In its 
petition, the AAR asserted that it may be unclear, in certain 
circumstances, as to what constitutes a pedestrian crossing. Therefore, 
the AAR recommended that the Final Rule be revised to require public 
authorities to indicate, in their quiet zone applications and 
notification packages, where pedestrian crossings are located. The AAR 
reasoned that this revision would eliminate any confusion as to where 
crossing signs must be located, in accordance with Sec.  222.27.
    Even though public authorities are required to identify pedestrian 
crossings in their quiet zone notification packages, in accordance with 
the requirements set forth in Sec.  222.43, FRA notes that it had 
inadvertently failed to require public authorities to identify or 
provide information on pedestrian grade crossings in their quiet zone 
applications. Therefore, paragraph (b) of this section has been revised 
to require public authorities to submit Grade Crossing Inventory Forms 
for each pedestrian grade crossing located within a proposed quiet 
zone, as well as information concerning present safety measures and 
proposed improvements at these crossings. FRA also inadvertently failed 
to require public authorities to provide information on current and 
proposed safety improvements at private highway-rail grade crossings. 
Therefore, paragraph (b) of this section has been revised to require 
public authorities to submit information on present safety measures and 
proposed improvements at private highway-rail grade crossings located 
within the proposed quiet zone. With respect to public highway-rail 
grade crossings, paragraph (b) of this section has been revised to 
require public authorities to provide detailed information about all 
safety improvements, as opposed to just SSMs and ASMs, that have been 
proposed for implementation. In making these revisions, FRA hopes to 
obtain better information as to the overall level of safety within the 
proposed quiet zone.
    Paragraph (b)(iv) of this section has been revised by inserting an 
explicit reference to the Notice of Intent requirement contained within 
Sec.  222.43 of this part. (An inadvertent omission of the State agency 
responsible for highway and road safety has also been corrected.) The 
public authority is required to provide a Notice of Intent, in 
accordance with Sec.  222.43 of this part, at least 60 days prior to 
the submission of its quiet zone application. All objections received 
from any railroad operating within the proposed quiet zone, the State 
agency responsible for grade crossing safety, and the State agency 
responsible for highway and road safety in response to the Notice of 
Intent must then be addressed by the public authority in the quiet zone 
application, in accordance with paragraph (b)(iv) of this section.
    Paragraph (b)(2) of this section addresses the inclusion of newly 
established public and private highway-rail grade crossings in quiet 
zones. Any proposed quiet zone that contains a newly established public 
highway-rail grade crossing must be established through public 
authority application, unless one or more SSMs will be implemented at 
every public highway-rail grade crossing within the proposed quiet zone 
in accordance with paragraph (a)(1) of this section. Quiet zones with 
newly established public highway-rail grade crossings cannot be 
established through comparison to

[[Page 47622]]

either the Nationwide Significant Risk Threshold or the Risk Index With 
Horns because the Quiet Zone Risk Index cannot be computed without 
historical vehicle and rail traffic counts for each public highway-rail 
grade crossing within the quiet zone.
    A minor typographical revision has been made in paragraph (b)(3) of 
this section. However, paragraph (b)(4) of this section has not been 
revised. Paragraph (c) of this section has also not been revised.

Section 222.41 How Does This Rule Affect Pre-Rule Quiet Zones and Pre-
Rule Partial Quiet Zones?

    Minor typographical revisions have been made in paragraphs (a) and 
(b) of this section.
    Paragraph (c) of this section has been revised in order to clarify 
the process that must be followed in order to continue existing 
locomotive horn sounding restrictions within a Pre-Rule Quiet Zone or 
Pre-Rule Partial Quiet Zone that will not be established by automatic 
approval. Paragraph (c)(1) has been added to this section to clarify 
that the public authority must provide a Notice of Quiet Zone 
Continuation, in accordance with Sec.  222.43 of this part, in order to 
retain existing locomotive horn sounding restrictions until June 24, 
2008. Paragraph (c)(2) of this section explains the process that must 
be followed, in order to continue existing locomotive horn sounding 
restrictions until June 24, 2010. Paragraph (c)(3) of this section 
explains the process that can be followed, in order to continue 
existing locomotive horn sounding restrictions until June 24, 2013, by 
providing a comprehensive State-wide implementation plan and funding 
commitment for the establishment of Pre-Rule Quiet Zones and Pre-Rule 
Partial Quiet Zones.
    Paragraph (c)(2) of this section has been revised to clarify the 
process for continuing existing locomotive horn sounding restrictions 
beyond June 24, 2008 without interruption. As stated in paragraph 
(c)(2)(i)(A) of this section, the public authority must mail a Notice 
of Intent, in accordance with Sec.  222.43 of this part, by February 
24, 2008. The mailing of the Notice of Intent, which will provide a 
brief explanation of the public authority's plans for implementing 
improvements within the quiet zone, will trigger a 60-day comment 
period, within which affected railroads, the State agency responsible 
for grade crossing safety, and the State agency responsible for highway 
and road safety can provide comments on the proposed improvements. This 
Notice of Intent replaces the Notice of Detailed Plan, which was 
previously required by the Final Rule.
    After the Notice of Intent has been mailed and the subsequent 60-
day comment period has run, paragraph (c)(2)(i)(B) requires the public 
authority to file a detailed plan with the FRA Associate Administrator 
by June 24, 2008. The detailed plan must include a detailed explanation 
of each safety improvement that will be implemented at public, private, 
and pedestrian crossings within the Pre-Rule Quiet Zone or Pre-Rule 
Partial Quiet Zone, in order to comply with Sec. Sec.  222.25, 222.27, 
222.35 and 222.39 of this part. (The public authority may also choose 
to explain additional safety improvements that will be implemented 
within the quiet zone, but are not being relied upon to achieve 
compliance with this part.) The detailed plan must also include a 
timetable for the implementation of these safety improvements.
    If the public authority plans to implement ASMs within the quiet 
zone, paragraph (c)(2)(ii) of this section (formerly paragraph (c)(4) 
of the Final Rule) advises the public authority to apply for FRA 
approval of the quiet zone by December 24, 2007, in order to ensure 
that FRA will have ample time within which to review the quiet zone 
application.
    Providing a Notice of Intent and filing a detailed plan in 
accordance with paragraph (c)(2) of this section will, however, only 
postpone routine locomotive horn sounding at public highway-rail grade 
crossings until June 24, 2010, unless the public authority establishes 
a Pre-Rule Quiet Zone or Pre-Rule Partial Quiet Zone in accordance with 
paragraph (c)(4) of this section. Paragraph (c)(2)(ii) in the Final 
Rule, which specifically addressed the establishment of Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones during the three-year period 
following June 24, 2005, has been removed. However, Pre-Rule Quiet 
Zones and Pre-Rule Partial Quiet Zones that have Quiet Zone Risk 
Indices that fall to a level at or below the Nationwide Significant 
Risk Threshold during this three-year period are now gov