Proposed Federal Rule

The ability of municipalities to adopt and enforce bans on the use of locomotive horns at highway-rail grade crossings is back in the news. The long anticipated notice of proposed rulemaking and proposed rule on the use of train horns at highway-rail crossings was published by the Federal Railroad Administration (FRA) earlier this year.-1

The proposed rule requires that train horns be sounded at every public highway-rail grade crossing unless the crossing is located within a "quiet-zone" and is equipped with approved supplementary safety measures spelled out in the rule.

The final rule, once it takes effect, will preempt any local ordinances banning the sounding of train horns at crossings. At least twenty-seven municipalities in Wisconsin have adopted bans on the use of train horns at highway-rail crossings.-2 This month’s comment summarizes the proposed federal rule on train horns, discusses whether and for how long existing municipal horn bans can continue to be enforced and explains how local officials can submit comments about the proposed rule to the FRA.

According to a FRA-prepared Fact Sheet on the proposed rule, the sounding of locomotive horns or whistles in advance of highway-rail grade crossings has been used as a universal safety measure by railroads since the late 1800s. The manner in which horns have been sounded (two longs, one short and one long) was standardized in 1938.

Since that time, municipalities across the U.S., including many in Wisconsin, have established "whistle bans" by local ordinance or through agreements with particular railroads. Typically, municipal governing bodies established such bans to address citizens’ complaints and concerns about the noise and frequency of train whistles.

Congress enacted legislation addressing the train whistle issue in 1994. The Swift Rail Development Act-3 (the Swift Act) directed the Secretary of Transportation to prescribe regulations requiring that a locomotive horn be sounded whenever a train approaches and enters upon a public highway-rail grade crossing. The Swift Act was enacted partially in response t a study conducted by the FRA which indicated a significant increase in the train-car collision rate at highway-rail grade crossings in Florida communities where whistle bans were in effect.

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See page 2229 of the Federal Register, January 13, 2000 (Volume 65, Number 9)

This figure is based on information obtained from the state Office of the Commissioner of Railroads and municipal ordinances on file at the League.

Pub. L. No. 103-440 (codified as amended in 49 U.S. C. Sec. 20153).

 

 

Under the Swift Act, the Transportation Secretary was to have issued the train horn regulations by November 2, 1996. Because of strong public opposition to the legislation in some locations around the country where train whistle bans had been in effect for many years, the FRA didn’t initiate formal rulemaking on this issue until just recently when it published a Notice of Rulemaking in the January 13, 2000 issue of the Federal Register. During the intervening six years, the FRA engaged in an extensive outreach program to inform communities with whistle bans of the Swift Act’s requirements. FRA staff attended meetings with local officials and citizens and received information and comments form the public on the train whistle issue.

The proposed rule requires that locomotive horns be sounded while a train is approaching and entering any public highway-rail grade crossing, unless a particular crossing is exempt from this requirement under the rule. Under the proposed rule, crossings within designated "quiet zones" are exempt from the whistle-blowing requirement.

The bulk of the eighty-three page Notice of Proposed Rulemaking focuses on the establishment of quiet zones. A quiet zone is defined as a segment of rail line within which is situated one or a number of consecutive highway-rail crossings at which locomotive horns are not routinely sounded. The governmental entity establishing a quiet zone has the discretion to determine its length. However, the minimum length of a quiet zone is one-half mile. This is the case even if a quiet zone involves only one crossing. All public highway-rail crossings in a quiet zone, except for certain limited exceptions, must be equipped with standard automatic gates and flashing lights.

Under the proposed rule, municipalities-4 have two options for establishing quiet zones. Under the first option, a municipality may establish a quiet zone by installing a "supplemental safety measure" at every crossing in the quiet zone. Supplemental safety measures are actions determined by the FRA to be as effective as a locomotive horn in the prevention of highway-rail grade crossing collisions. The proposed rule lists the following supplemental safety measures approved by the FRA:

Temporary Closure of a Public Highway-Rail Grade Crossing. This measure requires that the crossing be closed to vehicular and pedestrian traffic during whistle ban periods. The crossing must be closed for the same hours each day and may only be closed during one period each 24-hours (e.g. night-time closure).

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4. The proposed rule contemplates that local governments, in addition to a state, can establish quiet zones as long as the local government has sufficient authority to do so. In my opinion cities and villages in Wisconsin have sufficient authority to establish quiet zones under their statutory home rule powers, secs. 62.11(5) (cities) and 61.34(1) (villages), Stats.

 

 

Four Quadrant Gate System. This measure involves the installation of gates at a crossing to fully block highway traffic from entering the crossing when the gates are lowered. This system includes at least one gate for each direction of traffic on each approach. It is designed to prevent a motorist from entering the oncoming lane of traffic to get around a lowered gate in the motorist’s lane of traffic.

Medians or Channelization Devices at Gated Crossings. Under this supplemental safety measure, opposing traffic lanes on both highway approaches to a crossing must be separated by either: (a) medians bounded by barrier curbs, or (b) medians bounded by mountable curbs if quipped with channelization devices. Such medians must extend at least 100 feet from the gate, unless there is an intersection within the distance. If so, the median or channelization device must extend 60 feet from the gate. Again, this measure is designated to prevent a motorist from using the oncoming traffic lane to drive around a lowered gate to cross the tracks

One-way Street With Gate. This measure consists of paired one-way streets with gates installed so that all approaching highway lanes are completely blocked.

Use of Photo-Enforcement Technology. This approach involves the use of an automated means of gathering photographic or video evidence of violations of traffic laws relating to highway-rail crossings. The FRA would consider this to be an effective supplementary safety measure only if there is sufficient support by law enforcement and the courts. Before this approach can be used, the FRA would require that state law authorize use of photographic evidence both to bring charges against a vehicle owner who attempts to circumvent a crossing gate and sustain the burden of proof that a traffic law violation has occurred.

The proposed rule also requires that the photo enforcement system have a means to reliably detect violations and photo or video equipment deployed to capture images sufficient to convict violators under state law. However, the proposed rule would not require that every crossing be equipped with cameras for continual monitoring. Rather, the FRA believe the goal of deterrence may be accomplished y moving the video among several crossing locations, as long as the motorist perceives that a violation will lead to sanctions. Each location, therefore, must appear identical to the motorist, whether or not the video equipment is actually within the housing.

A municipality establishing a quiet zone under the first option would need to designate the extent of the quiet zone, install the supplementary safety measures, and comply with various notice and information requirements imposed by the proposed rule. This latter requirement involves providing written notice of the quiet zone designation to all railroads operating over crossings within the quiet zone, the highway or traffic control authority and law enforcement authority having control over vehicular traffic at the crossings, the state department of transportation, and the FRA Associate Administrator for Safety. Under this method, the FRA’s involvement is minimal.

The other method for establishing a quiet zone provided for in the proposed rule allows a municipality greater flexibility in using supplementary safety measures or other types of safety measures, referred to as "alternative safety measures," to deal with problem crossings but involves greater oversight by the FRA. Under this option, a municipality may establish a quiet zone by installing or adopting a combination of the supplemental safety measures described above and alternative safety measures within the quiet zone. Under this more flexible approach, risk is viewed in terms of the quiet zone as a whole, rather than at each individual grade crossing. The FRA would consider a quiet zone that does not have a supplemental safety measure at every crossing as long as implementation of the proposed supplementary and alternative safety measures within the quiet zone as a whole cause a reduction in risk to compensate for the lack of a locomotive horn.

The following alternative safety measures may be included in a municipal proposal for acceptance by the FRA for creation of a quiet zone:

Variations of Approved Supplemental Safety Measures.

Long-term, Programmatic Law Enforcement Efforts and Initiative. This safety measure involves community and law enforcement officials committed to a systematic and measurable crossing monitoring and traffic law enforcement program at the highway rail grade crossings within the quiet zone.

Public Education Efforts and Initiative. This approach is a program of public education and awareness directed at motorists, pedestrians, and residents near the railroad to emphasize the risks associated with highway-rail crossings and applicable requirements of state and local traffic laws at those crossings.

The downside for municipalities considering this second method for establishing a quiet

zone is that they will have to contend with greater oversight by the FRA. Indeed, a municipality must apply to the FRA for acceptance of a quiet zone within which one or more alternative safety measures will be implemented. The application for acceptance must contain a commitment to implement the proposed safety measures within the proposed quiet zone. In addition, the applying municipality must demonstrate through data and analysis that implementation of the proposed safety measures will effect a reduction in risk at highway-rail crossings within the quiet zone sufficient to equal the reduction in risk that would have been achieved through the use of locomotive horns. The proposed rule specifies that manner in which a municipality must show the reduction in risk resulting from its proposed alternative safety measure.

The final rule on the use of locomotive horns will be effective one year after it is published in the Federal Register. The one year delay was mandated by Congress to allow municipalities time to establish quiet zones and implement supplemental safety measures and alternative safety measures at crossings within proposed quiet zones.

The proposed federal rule provides that municipalities which, as of October 9, 1996, have either enacted ordinances restricting the sounding of train whistles or entered into agreements with railroads restricting the use of locomotive horns at crossings may continue those restrictions for a period of up to three years from the date of the publication of the final rule in the Federal Register. This grace period is designed to provide municipalities with sufficient time to create a quiet zone or zones and implement supplementary safety measures at affected crossings.

Municipalities with pre-existing restrictions on locomotive horns as of October 9, 1996 that fail to create quiet zones within two years after the final rule is published must initiate or increase both grade crossing safety public awareness initiatives and crossing traffic law enforcement programs in an effort to offset the lack of supplementary safety measures at affected crossings. If such safety and enforcement programs are not initiated or increased in a manner approved by the FRA, locomotive horns must be sounded at such crossings.

The FRA will be accepting written comments from local officials, citizens and other interested persons regarding the proposed rule on the use of locomotive horns at highway-rail crossings until May 26, 2000. Anyone wishing to file a comment must refer to the FRA docket and notice numbers, which are: Docket No. FRA-1999-6439, Notice No. 1. Comments should be sent to: Docket Management System, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, S.W., Washington, D.C. 20590-0001.

The League will be submitting comments on the proposed rule later this spring. Local officials are encouraged to contact the League either by e-mail witynski@lwm-info.org or telephone (800-991-5502) with thoughts, experiences or concerns about train whistle bans in general and the impact of the proposed rules on communities in particular. It is anticipated that the League’s comments will focus on the steps municipalities must follow to create a quiet zone and the expenses associated with installing the approved supplementary safety measures at crossings.

Local officials interested in learning the details about how quiet zones can be established in their communities should obtain a copy of the proposed rule. Copies are available from the League or on the Internet at <frwebgate.access.gpo.gov>.

Editors Note:  This was retyped by Kelly.  Thanks Alot