Transportation
NOVEMBER 2004
FRA Extends Effective Date of Locomotive Horn Rule
The Federal Railroad Administration (“FRA”)
recently extended the effective date of its interim
final rule on locomotive horn usage from December
18, 2004 until April 1, 2005. The FRA attributed the
extension to its need for more time to evaluate and
consider the substantial number of public comments
that it has received on its interim standards for
establishing “quiet zones” where railroads will be
prohibited from sounding their locomotive horns.
The FRA expects to issue a final rule on the subject
in January 2005 in order to give affected
communities and railroads sufficient time to prepare
for implementation of the new rules in April 2005.
BACKGROUND
On December 18, 2003, the FRA published an
Interim Final Rule on the Use of Locomotive Horns
at Highway-Rail Grade Crossings (the “Interim Final
Rule”). The Interim Final Rule requires locomotive
horn use at all public highway-rail grade crossings in
the U.S. except certain designated areas known as
“quiet zones” that have adequate safety measures in
place to compensate for state or local restrictions on
the use of locomotive horns at those locations. These
restrictions are sometimes referred to as
“whistlebans.” The Interim Final Rule establishes
separate requirements for the continuation of quiet
zones that have existed since October 1996 (“PreRule Quiet Zones”) and for the establishment of new
quiet zones (“New Quiet Zones”).
Under the Interim Final Rule, Pre-Rule Quiet Zones
generally (1) must have the same length as the area
covered by the “whistleban” that existed since
October 1996, (2) must retain and cannot downgrade
the warning systems in place at their grade crossings,
and (3) must have advance-warning signs advising
motorists that locomotive horns are not sounded at
the crossings in that area.
Pre-Rule Quiet Zones will be subject to automatic
FRA approval if they have Supplementary Safety
Measures (“SSMs”) such as a four-quadrant gate
system at every public crossing within the area and
they fall below certain risk threshold requirements
established by the FRA. If a Pre-Rule Quiet Zone
does not meet the automatic approval requirements,
the state or local authority with jurisdiction over the
area may continue to enforce the “whistleban” for
five years as long as it submits to the FRA (within
three years of the effective date of the rule) an
adequate plan for bringing the area into compliance
with the requirements for establishing a New Quiet
Zone.
Under the Interim Final Rule, New Quiet Zones
generally (1) must be at least one-half mile in length,
(2) must have active warning devices (including both
flashing lights and gates) at every public crossing,
and (3) must have advance-warning signs notifying
motorists that train horns are not sounded at the
crossings in that area. New Quiet Zones will be
subject to automatic FRA approval if they have
SSMs at every public crossing within the area and
they fall below certain risk threshold requirements
established by the FRA. As an alternative to
automatic approval, a state or local authority may
apply to the FRA for approval of a New Quiet Zone
that includes Alternative Safety Measures (“ASMs”)
such as photo enforcement programs.1
1 The various requirements applicable to the continuation of Pre-Rule Quiet Zones and the establishment of New Quiet
Zones are discussed in more detail in a January 2004 K&L Transportation Alert entitled “The Federal Railroad
Administration Issues an Interim Final Rule Governing the Use of Locomotive Horns at Highway-Rail Grade
Crossings” that is available on the K&L website.
Kirkpatrick & Lockhart LLP
POSTPONEMENT OF EFFECTIVE DATE
The Interim Final Rule was scheduled to become
effective as of December 18, 2004. In the Interim
Final Rule, the FRA announced that it would likely
issue a Final Rule in advance of the December 2004
effective date of the Interim Final Rule. FRA staff
members indicated privately earlier in the year that
the Final Rule would be issued in the fall of 2004
and most likely would contain only slight
modifications from the Interim Final Rule.
On November 22, 2004, the FRA announced that it
would be unable to issue the Final Rule before the
December 18, 2004 effective date of the Interim
Final Rule. The FRA attributed the delay to the
amount of time necessary to review and evaluate the
approximately 1,400 public comments that the
agency has received since last December in response
to the Interim Final Rule. As a result, the FRA has
postponed the effective date of the Interim Final Rule
until April 1, 2005. Any requirements imposed by
the Interim Final Rule that would have taken effect
before April 1, 2005 will not become effective until
April 1, 2005. For example, the due date for
submitting Pre-Rule Quiet Zone notification
packages to the FRA has been extended from
December 18, 2004 to April 1, 2005.
The provisions of the Interim Final Rule remain
subject to further modification under the terms of the
Final Rule, which the FRA now expects to issue in
January 2005. In order to address the concerns of
communities that have been awaiting issuance of the
Final Rule, the FRA indicated that provisions of the
Final Rule relating to administrative matters (such as
the earliest date for submitting quiet zone
applications and/or notification packages) will
become effective 30 days after publication of the
Final Rule. However, the provisions requiring
railroads to sound their locomotive horns when
approaching and entering public highway-rail grade
crossings will not take effect until April 1, 2005. The
FRA indicated in the extension anouncement that this
delay “should give communities additional time
within which to come into compliance with the
requirements of the final rule before routine
locomotive horn sounding is initiated at public grade
crossings within the area.”
SIGNIFICANCE
Although the FRA has announced that it needs more
time to evaluate the torrent of comments that it has
received in response to the Interim Final Rule, it has
not announced whether it expects the Final Rule to
contain any material changes from the Interim Final
Rule. FRA staff members have indicated that the
most significant of those comments involve
(1) requests by the railroads for greater involvement
in the process of establishing and maintaining quiet
zones, and (2) critiques of the FRA Quiet Zone
Calculator used to determine risk threshold levels.
There is a good possibility that any significant
changes between the Interim Final Rule and the Final
Rule will address those issues.
EDWARD J. FISHMAN
202.778.9456
efishman@kl.com
TRACIE D. SPEAR
202.778.9390
tspear@kl.com
FOR FURTHER INFORMATION, please consult one of the lawyers listed below:
Boston
Harrisburg
Pittsburgh
Washington
Jeffrey S. King
Carleton O. Strouss
Theodore A. McConnell
Kevin M. Sheys
Edward J. Fishman
Tracie D. Spear
Janie C. I. Sheng
Brendon P. Fowler
617.261.3179
717.231.4503
412.355.6566
202.778.9290
202.778.9456
202.778.9390
202.778.9855
202.778.9237
jking@kl.com
cstrouss@kl.com
tmcconnell@kl.com
ksheys@kl.com
efishman@kl.com
tspear@kl.com
jsheng@kl.com
bfowler@kl.com
The attorneys resident in all offices, unless otherwise indicated,
are not certified by the Texas Board of Legal Specialization.
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should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
© 2004 KIRKPATRICK & LOCKHART LLP.
ALL RIGHTS RESERVED.