The Federal Railroad Administration's Train Horn Rule
The Federal Railroad Administration’s
Train Horn Rule
Updated March 31, 2008
David Randall Peterman
Analyst in Transportation Policy
Resources, Science, and Industry Division
The Federal Railroad Administration’s Train Horn Rule
Numerous communities across the United States imposed bans on the sounding
of train whistles at highway-rail grade crossings beginning in the late 1970s to
address complaints and concerns of nearby residents about noise from train whistles.
In 1990, a Federal Railroad Administration (FRA) study of train whistle bans in
Florida showed a positive correlation between nighttime whistle bans and the number
of accidents at highway-rail crossings. In 1994, partially in response to the FRA
study, Congress enacted the Swift Rail Development Act (P.L. 103-440), which
directed the FRA to issue a regulation on the sounding of train horns at
Reducing the number of accidents and injuries at rail grade-crossings has been
a federal concern for decades. Accidents at highway-rail grade-crossings are one of
the leading causes of railroad-related deaths and injuries, accounting for nearly 40%
of railroad-related deaths. In 2006, there were 365 grade-crossing fatalities.
On June 24, 2005, FRA’s Rule on the Use of Locomotive Horns at
Highway-Rail Grade Crossings took effect. The rule requires that locomotive horns
be sounded at all public highway-rail grade crossings, except where there is no
significant risk to persons, where supplementary safety measures fully compensate
for the absence of the warning provided by the horn, or where sounding the horn as
a warning is not practical. The train horn rule is intended to promote public safety
at grade crossings, while giving communities an option to protect individuals and
businesses located near grade crossings from the sounding of train horns. FRA has
exempted the Chicago region from the rule, pending a re-analysis of grade crossing
accident data for that area. The new rule preempts all state and local laws dealing
with bans on the sounding of locomotive horns at crossings (“whistle bans”),
affecting roughly 2,000 bans in 260 localities. Communities that qualify under one
of the exceptions may create “quiet zones” in which the sounding of locomotive
horns is banned (except in an emergency); in some cases, these new quiet zones may
not require any safety improvements by the community, but in other cases
communities will have to provide safety improvements in order to establish a quiet
zone. As of March 2008, FRA had received 302 notifications from communities that
had established, or intended to establish, a quiet zone.
This train horn rule was a contentious issue in part because of its preemption of
existing whistle bans and because of concern on the part of communities over what
are viewed as stringent requirements for establishing quiet zones. Many local
governments objected to the rule as creating an unfunded mandate. Federal Highway
Administration grants (under Section 130 of Title 23 of the U.S. Code) to states to
reduce the risks of accidents at grade crossings have exceeded $4.1 billion since
1974, and grade-crossing safety improvements are an eligible expense under several
other federal programs. Federal transportation programs for which grade-crossing
safety improvements are an eligible expense provide billions of dollars annually to
states. Selection of projects for this funding is generally made by state highway
administrations, subject to federal approval. This report will be updated as warranted.
In troduction ......................................................1
FRA’s Train Horn Rule.............................................5
Requirements for Establishing Quiet Zones.............................5
Converting Existing Whistle Bans into Quiet Zones...................7
Impacts of the Rule................................................8
Estimated Monetary Costs and Benefits............................8
Impact on Existing Whistle Ban Crossings..........................9
Effectiveness of Train Horns in Alerting Motorists...................11
Preemption of Local Decision-Making............................12
Costs of Preserving/Establishing Quiet Zones.......................12
Federal Funding for Grade Crossing Safety Improvements.............13
The Role of Motorists in Grade Crossing Accidents..................17
List of Tables
Table 1. Sources of Federal Funding for Grade Crossing
The Federal Railroad Administration’s
Train Horn Rule
On June 24, 2005, 11 years after Congress directed the Federal Railroad
Administration (FRA) to issue a regulation on the sounding of train horns at grade
crossings, FRA’s Rule on the Use of Locomotive Horns at Highway-Rail Grade
Crossings1 (“the Rule”) took effect.2 The Rule required that locomotive horns be3
sounded at all public highway-rail grade crossings, except where there is no
significant risk to persons, where supplementary safety measures fully compensate
for the absence of the warning provided by the horn, or where sounding the horn as
a warning is not practical. The Rule is intended to promote public safety at grade
crossings, while giving communities an option to protect individuals and businesses
located near grade crossings from the sounding of train horns. It implemented a
congressional mandate in Title III, Section 302, of P.L. 103-440 (codified as 40
U.S.C. 20153). FRA has exempted the Chicago region from the Rule, pending a re-4
analysis of grade crossing accident data for that area. The Chicago area includes
45% of the nationwide population FRA estimated to be potentially affected should
pre-existing bans on sounding train horns at road crossings (“whistle bans”) be
eliminated as a result of this regulation.
The Rule preempted roughly 2,000 existing state and local whistle bans.5 The
Rule allows communities to establish “quiet zones” where the sounding of
locomotive horns can be banned, provided that the risk of grade crossing collisions
is below a certain level or that the community provides safety measures that
compensate for the absence of the warning provided by the train horn. Communities
with whistle bans in place prior to October 1996 may automatically qualify as quiet
zones under certain circumstances. If pre-existing whistle ban crossings do not
1 49 CFR 222. The rule also amends 49 CFR 229.
2 Congress directed that there should be a one-year gap between publication of the final rule
and its taking effect. FRA published the Interim Final Rule on December 18, 2003 (68
Federal Register 70586), and published a revised Final Rule on April 22, 2005 (70 Federal
Register 21844)(amendments and clarifications to the Final Rule were published on August
17, 2006; 71 Federal Register 47614). FRA considered that publication of the Interim Final
Rule on December 18, 2003 started the clock on the one-year delay in the Final Rule taking
effect, so that the Rule could take effect 60 days after its publication on April 22, 2005.
3 Intersections where a public highway and a railway cross at the same level.
4 49 CFR 222.3(c). Chicago-area officials disputed FRA’s statistical approach to establish
the level of risk at grade crossings.
5 70 Federal Register 21882.
automatically qualify as quiet zones, communities may still maintain their whistle
ban for up to five years while bringing those crossings into compliance with the
requirements of the Rule.6 Thus, in some cases communities may establish quiet
zones without making any safety improvements; in other cases, communities will be
required to make safety improvements to grade crossings in order to establish a quiet
In writing the Rule, FRA attempted to balance safety (the reduction in risk of
accidents and injuries from having trains sound horns at each grade crossing) with
the quality of life of the millions of citizens living near train tracks who are disturbed
by train horns. The House Transportation and Infrastructure Committee’s
Subcommittee on Railroads held a hearing on rail grade crossing safety at which the
Rule was examined on July 21, 2005. At that hearing Subcommittee members
questioned the effective date of the Rule and the effectiveness of sounding train horns
as a grade crossing safety measure, among other issues.
Cities grow up around transportation nodes, and for nearly a century the most
important form of transportation in this nation was the railroad. Consequently, many
if not most urban areas in the nation are traversed by railroad tracks, with trains
rolling through day and night.
There are approximately 250,000 highway-rail at-grade crossings where
motorists drive over railroad tracks (more generally referred to as ‘grade crossings’).
Around 153,000 of these involve public highways; the rest involve private roads.7
Collisions at these intersections are responsible for a significant percentage of the
injuries and deaths associated with the railroad industry (40% of all railroad-related
deaths in 2006). The vast majority of injuries and deaths resulting from these
collisions are experienced by motorists.
Reducing the number of injuries and deaths resulting from grade crossing
collisions has been a federal concern for decades. Congress has provided more than
$4.1 billion since 1974 specifically for grants to states to reduce the risks of incidents8
at grade crossings hazards, and reducing risks at grade crossings is also an eligible
6 The description of the Rule in this report is a summary for information purposes. Please
refer to the language of the Rule itself for authoritative purposes.
7 68 Federal Register 70587.
8 68 Federal Register 70605. This funding came from the Federal Highway Administration
“Section 130” program. Although highway-rail grade crossing safety improvements are an
eligible expense under several federal highway programs, most of the federal money spent
for that purpose has come from the Section 130 program that is dedicated to that purpose.
“In fact, the primary reason that a separate grade crossing safety improvement program was
begun in 1973 was that highway safety, and especially crossing safety, received limited
priority for available highway dollars.” Statement of Edward R. Hamberger, President and
Chief Executive Officer, Association of American Railroads, submitted to the U.S. House
expense under several other federal highway funding programs. This funding has
resulted in the installation of around 30,000 active warning devices at grade
crossings, and the closing of many other crossings, since 1974.9
Both the number and rate of incidents and deaths at grade crossings have
declined significantly over time. Between 1994 and 2003 the number of annual
highway-rail grade crossing incidents fell from 4,892 to 2,909 (-41%), and the annual
number of deaths in these incidents fell from 626 to 325 (-48%).10 These decreases
have occurred in spite of growing rates of both train and auto traffic. According to
the Inspector General of the Department of Transportation, the primary sources for
the reduction in grade crossing collisions in the past decade have been the permanent
closing of about 41,000 grade crossings and the installation of active warning signals
(flashing lights and automatic gates) at about 4,000 grade crossings.11 In 2004, the
trend of decreasing deaths from grade crossing collisions stopped; in 2004 there were
372 deaths, in 2005 358 deaths, and in 2006 369 deaths. Preliminary figures for 2007
indicate there were 339 deaths, an 8% decline from 2006.12
Consolidation of the railroad industry since the 1980s has led to a reduction in
the size of the national rail network, and heavier use of the remaining network,
“resulting in more train movements through those communities where main lines
continue to be operated.”13 This trend, combined with growing sensitivity on the part
of communities toward noise levels in the environment, resulted in a number of
communities banning the sounding of train horns at intersections.14 The sounding of
train horns at grade crossings is an important safety measure. The horn provides
motorists approaching an intersection with information about “the proximity, speed,
and direction” of an oncoming train.15 Studies by the FRA and others have found
that the sounding of train horns at intersections reduces the risk of grade crossing
of Representatives, Committee on Transportation and Infrastructure, Subcommittee on
Railroads, Hearing on Grade Crossing Safety, July 21, 2005, p. 11-12.
9 Joseph H. Boardman, Administrator, Federal Railroad Administration, United States
Department of Transportation, Testimony before the Subcommittee on Railroads,
Committee on Transportation and Infrastructure, United States House of Representatives,
July 21, 2005, p. 17.
10 Office of the Inspector General, United States Department of Transportation, Audit of the
Highway-Rail Grade Crossing Safety Program, MH-2004-065, June 16, 2004, p. 2. The
audit notes that FRA’s statistics still do not include all rail transit grade crossing collisions
and deaths, as called for in an earlier audit.
11 Kenneth M. Mead, Inspector General, Department of Transportation, Testimony before
the Subcommittee on Railroads, Committee on Transportation and Infrastructure, United
States House of Representatives, July 21, 2005, CC-2005-060, p. 1.
12 Figures from a query of Section 2.08 (Highway-Rail Crossing Accident Trends), FRA
Office of Safety Analysis [http://safetydata.fra.dot.gov/officeofsafety/].
13 68 Federal Register 70594.
15 68 Federal Register 70589.
accidents, and that banning the sounding of horns at grade crossings increases the
risk of accidents.16
In 1984 the State of Florida authorized local communities to ban the sounding
of horns by intrastate railroads17 at night at intersections equipped with flashing lights
and bells, crossing gates, and signs warning motorists that trains’ horns would not be
sounded at night. By 1989, Florida communities had banned the night-time use of
train horns at 511 of 600 eligible intersections.18 A 1990 FRA study found that there
were almost three times as many collisions after the bans were established, while the
daytime collision rates were virtually unchanged.19 FRA concluded that banning the
sounding of train horns at grade crossings created a safety risk. The agency issued
an emergency order in 1991 ending train horn bans in Florida; in the two years after
that order, night-time collision rates dropped to near pre-ban levels.20
The Florida study led FRA to do a similar nationwide study. That study,
published in 1995, identified 2,122 public grade crossings where train horn bans had
been in place some time between 1988 and 1994 (not counting the 511 crossings in
the Florida study) and concluded that crossings with train horn bans “averaged 84%
more collisions than similar crossings with no bans.”21
In response to the evidence of increased risk of injuries and death from bans on
the use of train horns at intersections, Congress mandated that FRA regulate the use
of train horns at intersections, requiring their use except in certain situations at FRA’s
discretion.22 FRA’s Final Rule on the Use of Locomotive Horns at Highway-Rail
Grade Crossings implemented that congressional mandate.
16 68 Federal Register 70588. As discussed below, the National Transportation Safety Board
has concerns about the audibility of train horns inside closed vehicles with other active
sources of noise, but the Board supports the use of horns as a safety warning (68 Federal
17 The ban affected Florida East Coast Railway, an intrastate rail carrier, but not CSX, a
national rail carrier.
18 68 Federal Register 70588.
20 68 Federal Register 70588.
21 68 Federal Register 70589. The study was updated in 2000, with similar conclusions.
22 P.L. 103-440, Section 302.
FRA’s Train Horn Rule
FRA describes the Rule as “a safety rule that implements as well as minimizes
the potential negative impacts of a Congressional mandate to blow train whistles and
horns at all public crossings.”23 It requires that locomotive horns be sounded at
public highway-rail grade crossings, while providing exceptions to this requirement.
The regulation preempts any state and local “train whistle” bans.
The Rule also provides options for communities to establish quiet zones
(whistle ban areas) where the sounding of train horns can be banned at grade
crossings. The options are intended to balance the risk of removing one safety
measure (the sounding of the train horn) by adding other safety measures. However,
under some circumstances communities can ban the sounding of train horns at grade
crossings without additional safety improvements, where adequate safety features are
already in place or where the risk of accidents is below one of the thresholds
established in the regulation.
Communities with existing whistle bans can continue the bans, though the
communities may have to make safety improvements to do so. A transition period
is provided to give them time to make improvements that may be needed to qualify
for quiet zone status.24 During the transition period the community can maintain the
existing ban on sounding horns at those crossings.
FRA faced numerous challenges in writing this Rule. Eleven years elapsed
between the time Congress mandated the creation of the train horn rule and the
publication of the Rule in its final form. FRA received 4,800 comments during the
rule-making process. This Rule has been a contentious one in part because it
preempts roughly 2,000 existing state and local bans on the sounding of locomotive
horns at public highway-rail grade crossings,25 and in some cases may require26
communities to spend tens or hundreds of thousands of dollars, or more, on safety
measures in order to maintain their whistle bans or to create new ones.
Requirements for Establishing Quiet Zones
Congress mandated the sounding of train horns at highway-rail grade crossings
because communities had begun to establish whistle bans, while several studies had
shown that the horn is an effective safety measure in preventing accidents and deaths.
In implementing the law requiring the sounding of train horns at crossings, while
23 68 Federal Register 70658.
24 The length of the transition period depends on when the whistle ban was established; five
years for bans established before October 19, 1996, and one year for bans established after
that date but before December 18, 2003.
25 FRA, Interim Final Rule for the Use of Locomotive Horns at Highway-Rail Grade
Crossings: Final Environmental Impact Statement, December 5, 2003, p. 1-6.
26 Based on FRA’s estimates of the costs of the various additional safety measures; 70
Federal Register 21885.
providing exceptions to that requirement, FRA sought “to ensure that quiet zones,
while providing for quiet at grade crossings, also continue to provide the level of
safety for motorists and rail employees and passengers that existed before the quiet
zones were first established, or in the alternative, the level of safety provided by the
average gated public crossing where locomotive horns are routinely sounded.”27
Thus, the Rule is intended to provide a method to establish a national average level
of risk at grade crossings and the level of risk at a crossing or a corridor, and to
compensate for risk above the national average that may be created by silencing train
horns at grade crossings by providing supplementary or additional safety measures.
As specified in the Rule the minimum requirement for a quiet zone is that every
public highway-rail grade crossing in the proposed quiet zone corridor must have
flashing lights and gates that control traffic over the crossing. From that basis, there
are three alternatives available to communities wanting to establish a quiet zone:
Measures (SSMs) specified in the Rule at each public crossing in the quiet
2. If the accident risk (Risk Index) for the quiet zone is less than, or equal to, the
nationwide average risk of accidents at grade crossings equipped with flashing
lights and automatic gates where train horns are sounded (Nationwide Significant
Risk Threshold), the community can establish a quiet zone without implementing
additional safety measures. If the Risk Index of the proposed quiet zone is above
the Nationwide Significant Risk Threshold, the community may implement29
additional safety measures at crossings sufficient to reduce the Risk Index for
the zone to the threshold level or below; or
3. The community can implement safety measures that reduce the Risk Index for
the quiet zone to less than, or equal to, the level of the Risk Index With Horns
(i.e., the risk that would exist if train horns were sounded at every public
highway-rail grade crossing in the proposed quiet zone).
27 70 Federal Register 21871.
28 Supplementary Safety Measures, as defined in the Rule, are engineering measures that
physically reduce the risk of motorists being involved in a collision with a train at a grade
crossing. Some of these measures eliminate the risk: closing the crossing to highway traffic
for the period of the whistle ban (if the ban is 24 hours a day, this requires permanent
closure of the crossing); or completely separating the highway from the railway (grade
separation). Other measures seek to make it more difficult for motorists to drive around a
lowered gate blocking the approach lane(s) to the crossing: either conversion of the highway
crossing to a one-way street with gates that block the approach lanes to the crossing;
installation of a four-quadrant gate system (one in which a gate blocks both approach and
departure lanes from the crossing; or installation of a median that prevents a motorist from
swerving out of the approach lane that is blocked by a lowered gate. The estimated costs
for these SSMs range from hundreds of thousands to millions of dollars.
29 “Additional safety measures” may be SSMs or Alternative Safety Measures (ASMs).
Alternative safety measures include a systematic and measurable program of monitoring a
crossing and enforcing traffic laws there; a public education and awareness campaign about
the risks of grade crossings and relevant traffic laws; photo enforcement; modified SSMs
(SSMs that don’t fully comply with the SSM requirements).
FRA notes that the first and third measures, which may require communities to
implement additional safety measures, may be more expensive initially, but provide
more certainty. Quiet zones which are qualified by the second measure (comparison
to the Nationwide Significant Risk Threshold) must be reviewed each year. The
Nationwide Significant Risk Threshold will be recalculated each year. A quiet zone
that qualified by having a risk less than the nationwide threshold may fall out of
compliance if the threshold declines, forcing the community to implement additional
Communities may qualify a proposed quiet zone in two ways. The quiet zone
may automatically qualify if it meets the first or third condition listed above. If the
community qualifies a quiet zone under the second condition, that qualification
requires the review and approval of the FRA.
Converting Existing Whistle Bans into Quiet Zones
FRA provides special provisions for communities that had whistle bans in place
as of the publication of the interim final Rule. FRA created two classes of pre-
existing whistle bans: bans that were created before Congress directed FRA to take
the needs of communities with pre-existing whistle bans into account (i.e., before
October 9, 1996), and bans that were created after October 9, 1996 but before the
publication of the interim final Rule (December 18, 2003).
Communities that had whistle bans in place as of October 9, 1996 may keep
their whistle bans in place for five years.31 After five years, the quiet zone must be
in compliance with the requirements of the Rule (the period to bring a quiet zone into
compliance may be extended to eight years if a state agency is involved in the
creation of the quiet zone). During this transition period, the community can
continue to ban the sounding of train horns at grade crossings.
Whistle bans in place as of October 9, 1996 may automatically qualify as quiet
zones, and the community may continue to ban the sounding of train horns without
providing additional safety improvements, if
!Each public crossing in the quiet zone already has one or more
!The Risk Index of the quiet zone is less than or equal to the
Nationwide Significant Risk Threshold; or
!If the Quiet Zone Risk Index is higher than the National Significant
Risk Threshold, but less than double that threshold, and there has not
30 The first update to the Nationwide Significant Risk Threshold, which was not completed
until almost two years after the Final Rule, resulted in an increase in the Threshold. Federal
Railroad Administration, Department of Transportation, “Notice of Adjustment of the
Nationwide Significant Risk Threshold,” 72 Federal Register 14850 (March 29, 2007).
31 October 9, 1996 was the date of passage of P.L. 104-264, which amended the mandate of
P.L. 103-440 to direct FRA to take into account the interests of communities with whistle
been a relevant collision at any of the public crossings in the
proposed quiet zone in the preceding five years.
Whistle bans in place as of October 9, 1996 that do not meet any of those
criteria will require additional safety measures. Communities may get their pre-
existing whistle bans approved by FRA as quiet zones, and the communities may
continue to ban the sounding of train horns, if
!The relevant authority commits to equip every public crossing in the
quiet zone with one or more SSMs as of 2013; or
!The relevant authority submits a plan to implement some
combination of SSMs, ASMs, and/or traffic control devices that
reduces the Risk Index of the proposed quiet zone to (a) the level of
risk that would exist if train horns were still being sounded or (b) the
level of the Nationwide Significant Risk Threshold.
Whistle bans established after October 9, 1996, but by December 18, 2003 (the
publication date of the Interim Final Rule), could be approved by FRA as quiet
zones, and the community could continue to ban the sounding of train horns, under
the same conditions as whistle bans established as of October 9, 1996, except that
those communities were allowed to maintain their existing whistle ban for only one
year (i.e., only until summer 2006). After that, the community must have provided
any safety improvements required to comply with the requirements for a quiet zone.32
Impacts of the Rule
Estimated Monetary Costs and Benefits
FRA estimated that the costs to communities of implementing the Rule over 20
years (excluding the Chicago area) would be $41 million, compared to projected
benefits (excluding the Chicago area) over 20 years estimated at $57 million.33 FRA
asserts that the costs may be overstated, since some communities might have made
the same sorts of improvements in the absence of the Rule, and the benefits may be
understated, since the estimated value does not include reduction in freight and
passenger train delays due to collisions avoided.
The Chicago Area Transportation Study’s Council of Mayors asserted that FRA
underestimated the cost of implementing the Rule. They noted that FRA’s initial
estimate of the costs of preserving the existing whistle bans in the Chicago area was
$2-4 million; after protests from Chicago-area officials about this estimate, FRA
raised it to a range of $12-16 million. The Council of Mayors argued this estimate
32 Only 11 such Intermediate Quiet Zones were approved after the Rule was implemented,
of which 4 were able to meet the requirements to continue after the one-year deadline (one
other got a waiver). Conversation with Miriam Kloeppel, Federal Railroad Administration,
December 1, 2006.
33 68 Federal Register 21882-83.
was still too low.34 FRA responded that its initial cost estimate for the Chicago
region was based on an nationwide average cost for improvements per crossing. To
produce its revised estimate, FRA used costs provided by the Illinois Commerce
Commission.35 FRA produced a third estimate of costs for the Chicago area, based
on comments from Chicago-area authorities. This third estimate produced a range
of costs of $22-$26 million. FRA cautioned that the estimate was likely in excess of
AAR commented that FRA’s estimates of the costs of the safety improvements
that might be required to preserve whistle bans had caused “a great deal of
consternation” in the rule-making process, and asserted that it was “impossible for
FRA to estimate with any accuracy the costs at a particular crossing or set of
Impact on Existing Whistle Ban Crossings
FRA estimated that 66% of the approximately 2,000 whistle ban crossings could
qualify for conversion to quiet zones without any improvements, while the remaining
34% would require supplementary or alternative safety measures to maintain their
existing ban.38 The Chicago area, which is currently exempt from the Rule,
represents roughly 385 of the approximately 2,000 existing whistle bans.39 In
testimony before the House Transportation and Infrastructure Committee’s
Subcommittee on Railroads on July 21, 2005, FRA noted that more than 220 quiet
zone applications had been received under the Rule, which had gone into effect less
than a month before.40
34 Letter from John Kravcik, Vice Chair, Chicago Area Transportation Study Council of
Mayors Executive Committee, to Kenneth M. Mead, Inspector General, United States
Department of Transportation, October 5, 2004, p. 3. Available from the Docket
Management System, Docket #6439.
35 Letter from Betty Monro, Acting Administrator, Federal Railroad Administration, United
States Department of Transportation, to the Honorable J. Dennis Hastert, Speaker of the
United States House of Representatives, November 19, 2004. Available from the Docket
Management System, Docket #6439.
37 Comments of the Association of American Railroads before the Federal Railroad
Administration on the Use of Locomotive Horns at Highway-Rail Grade Crossings, April
38 FEIS, Table 4-6: Crossing Improvements to Maintain Pre-Rule Quiet Zones.
39 68 Federal Register 70613.
40 Testimony of Joseph H. Boardman, Administrator, Federal Railroad Administration,
United States Department of Transportation, before the Subcommittee on Railroads of the
Committee on Transportation and Infrastructure, United States House of Representatives,
July 21, 2005, p. 8. As of March 14, 2008, FRA had received 302 notifications from
communities that had established, or intended to establish, quiet zones, more than half of
which were in four states: Wisconsin (63), Minnesota (38), Massachusetts (28), and Virginia
FRA estimated that the Rule, requiring the sounding of train horns at all public
grade crossings (with some exceptions), would prevent 95 accidents, 8 deaths, and
45 injuries over a 20-year period.41 To put those numbers in context, in 2004, the
year before the Rule took effect, there were a total of 3,075 grade crossing accidents,
resulting in 372 deaths and 1,090 injuries; of that total, 2,527 accidents involved
motor vehicles at public crossings, resulting in 257 deaths and 918 injuries.42 FRA
asserted that the safety benefit could increase if more communities than estimated
chose to adopt supplementary or alternative safety measures in order to create quiet
zones. In the context of perhaps 6,000-7,000 deaths from grade crossing accidents
over the next twenty years, a reduction of 8 deaths may appear small to some.
However, the thrust of this Rule is not primarily to establish a new safety
standard. FRA noted that, prior to the publication of the Rule, train horns were
already being sounded at more than 98% of public grade crossings; thus the Rule
formalized an already prevailing industry standard.43 The majority of the text of the
Rule deals with allowing exceptions to the requirement that train horns be sounded
at all public grade crossings, particularly with the establishment of quiet zones, and
limiting the risk created by those exceptions. FRA has noted that the purpose of
requiring additional safety measures for quiet zones was to compensate for the
increased accident risk caused by not sounding locomotive horns, and that the result
might be neutral in its impact on the risk level of those crossings.44
On the other hand, the Association of American Railroads (AAR) asserted that
the exceptions allowed by the Rule could increase the risk of grade crossing accidents
in some locations. If the risk of an accident in a proposed quiet zone is greater than
the risk when horns are sounded at that crossing, but less than the Nationwide
Significant Risk Threshold, the quiet zone can be approved even through its creation
would increase the risk of accidents at that crossing. AAR also noted that risks at
some crossings may be increased because communities are allowed to create quiet
zone corridors encompassing multiple grade crossings as long as the overall risk level
for all the crossings are below the Nationwide Significant Risk Threshold, even
though the risk of grade crossing accidents at an individual crossing or crossings in
the corridor may increase. Further, AAR argued that risk is increased because
communities are given three years to implement safety improvements in a quiet zone
should it become apparent that the risk level in the zone is too high.45
41 70 Federal Register 21883.
42 Data from a query under Section 5.11(“Hwy/Rail Incidents Summary Table”) at FRA’s
Office of Safety Analysis website [http://safetydata.fra.dot.gov/officeofsafety/].
43 68 Federal Register 70594.
44 68 Federal Register 70605.
45 [Transcript of] Oral Comments of Michael J. Rush, Associate General Counsel,
Association of American Railroads, Before the Federal Railroad Administration, Hearing
on the Use of Locomotive Horns at Highway-Rail Grade Crossings, pp. 2-3.
FRA responded that individuals and organizations in whistle ban areas have
made choices based on the existence of that ban, and Congress directed the agency
to consider the interests of communities with whistle bans. The agency noted that
the Rule attempts to balance the competing concerns of safety (from sounding train
horns at crossings) and a community’s desire for quiet (from silencing train horns at
crossings), and noted “the grace periods provided under the rule (five and eight years)
maintain community quiet well ahead of community actions that would otherwise
warrant that result.”46
FRA estimated that prior to the issuance of the regulation 9.4 million people
were affected by train horn noise, and the agency estimated that the Rule would
eliminate the existing noise impact on 3.4 million of these people by reducing the
loudness of train horns, reducing the amount of time they are sounded, and by leading
to the establishment of quiet zones.47 On the other hand, assuming a worst-case
situation in which no quiet zones were established after the Rule took effect (i.e., all
existing whistle bans were eliminated), FRA estimated that 445,611 persons would
experience increased noise levels due to train horns sounding at all public highway-
rail grade crossings. Of that number, 46% of those people live in one state (Illinois),
and 34% of the total live in a single county (Cook County, Illinois).48
FRA asserts that the Rule will reduce existing train horn noise levels over time
through limiting the maximum sound level for train horns to 110 decibels and
limiting the duration of sounding horns at grade crossings to no more than 15-20
seconds. Prior to the Rule, locomotive horns did not have a maximum noise level;
many operated at 111 decibels. Also, prior to the Rule, the standard industry practice
was for locomotive engineers to begin sounding the train horn one-quarter mile from
the intersection. If a train was going less than 45 miles per hour, as trains often do
in heavily-populated areas with numerous grade crossings, the train horn would have
been sounded for longer than 20 seconds.
Several issues contributed to the protracted rule-making process for this
regulation, some of which may continue to be of interest to Congress.
Effectiveness of Train Horns in Alerting Motorists
An issue raised in the July 21, 2005 House hearing was whether train horns were
loud enough to be effective under contemporary circumstances. The National
Transportation Safety Board (NTSB) testified concerning a study of the audibility of
train horns NTSB had conducted in 1998. They tested the sound level inside 13
46 68 Federal Register 70600.
47 FRA, Train Horn Rule Final Environmental Impact Statement, p. 4-3.
48 Ibid., p. 4-9 to 4-10.
passenger and emergency vehicles of various types located 100 feet from a
locomotive horn. The sound level of the horn outside the vehicles was 96 decibels.
Inside the vehicles, with windows closed and engines idling, NTSB found that the
sound of the train horn was less than 10 decibels above the ambient sound level, not
loud enough to alert the drivers to the presence of the horn. When the fans in the
vehicles were turned on, the horn was not audible at all in seven of the vehicles, and
the sound of the horn was less than 10 decibels above the ambient sound level in all
the remaining vehicles. Nevertheless, NTSB noted, sounding train horns is an
important element of grade crossing safety, and should be done unless effective
substitutes are in place.49
In the Rule, FRA set the permissible sound level of train horns, at a distance 100
feet ahead of the horn, at a range of 96-110 decibels. FRA asserted that analysis
indicated a 95% likelihood that a train horn set to emit 108 decibels at a range of 100
feet would be heard by a motorist approaching a grade crossing.50
Preemption of Local Decision-Making
Many local governments assert that the Rule is an unfair preemption of their
authority.51 Many claim that the basic responsibility for deciding under what
circumstances to establish a whistle ban should reside with local government. FRA
acknowledged that whistle bans established prior to the Rule reflected a policy choice
made by the local community in weighing the risks of grade crossing accidents with
the quality of life of residents. FRA observed that it was mandated by Congress to
require the sounding of train horns at intersections to promote public safety, and that
the regulations minimize the potential negative impacts of that mandate.
Costs of Preserving/Establishing Quiet Zones
FRA estimated the costs to pre-existing whistle ban crossings (excluding the
Chicago area) of converting to quiet zones at around $20 million over 20 years (this52
is a subset of the $40 million total cost estimate discussed above). FRA’s cost
estimate for whistle ban crossings in the Chicago area, as noted above, is in the range
of $22-26 million.
Local governments have objected to the Rule as creating an unfunded mandate.
The National League of Cities noted that there is no source of federal funding
49 Mark V. Rosenker, Acting Chairman, National Transportation Safety Board, Testimony
before the Subcommittee on Railroads, Committee on Transportation and Infrastructure,
United States House of Representatives, July 21, 2005, p. 2-3.
50 70 Federal Register 21880.
51 National League of Cities, Letter to the Federal Railroad Administration regarding the
Interim Final Rule on the Use of Locomotive Horns at Highway-Rail Grade Crossings, April
52 70 Federal Register 21882: Total Twenty Year Costs chart. $20 million is the sum of the
costs for “Pre-Rule Quiet Zones — Nationwide, Excluding Chicago” and “Intermediate
dedicated to helping communities comply with the requirements of the Rule, and that
if a community is unable to fund safety upgrades that may be required to maintain an
existing whistle ban, that ban will be terminated.53 FRA noted that the Rule does not
require communities to implement additional safety requirements at highway-rail
grade crossings. Communities may be required to implement safety improvements
if they choose to establish quiet zones, but the Rule does not require communities to
establish quiet zones
The Association of American Railroads (AAR) asserts that reducing risk at
public highway-rail grade crossings is considered a benefit primarily to the highway
user, and thus is the responsibility of the highway user (though AAR also asserts that
railroads invest considerable sums to maintain and inspect grade crossings).54
Federal Funding for Grade Crossing Safety Improvements
Federal funding is available to reduce the risk of grade crossing accidents. The
primary source of this funding is Federal Highway Administration (FHWA) grant
programs. Some programs are intended specifically to reduce hazards at railway-
highway grade crossings; in other programs, reducing grade crossing hazards is one
of the eligible uses of funding. See Table 1 for a list of potential federal funding
However, FRA asserts that federal funding is not likely to be available for
improvements to establish quiet zones, because “it is unlikely that most
improvements undertaken under this Rule would withstand the priority ranking55
requirement for safety projects under Federal-aid highway programs.” Federal
grade crossing risk reduction funding “is subject to strict requirements for ranking56
the priority of projects on a State-wide basis.” This ranking requirement
“recommends crossing safety improvements that yield the greatest accident reduction
benefits based on consideration of predicted accidents and casualties at crossings, the
cost and effectiveness of warning device options, and the budget limit.”57 The agency
notes that establishing a quiet zone may produce little or no improvement in the level
of safety at grade crossings, since any safety improvements provided are
compensating for the increase in risk from banning the sounding of train horns.
53 Ibid., p. 2.
54 Edward R. Hamberger, President and Chief Executive Officer, Association of American
Railroads, Testimony before the Subcommittee on Railroads, Committee on Transportation
and Infrastructure, United States House of Representatives, July 21, 2005, p. 13-14. Mr.
Hamberger quoted from a Supreme Court decision, an Interstate Commerce Commission
report, and the Code of Federal Regulations: 23 CFR 646.210(b)(1) “Projects for grade
crossing improvements are deemed to be of no ascertainable net benefit to the railroads and
there shall be no required railroad share of the costs.”
55 68 Federal Register 70605.
56 68 Federal Register 70605.
57 United States Department of Transportation, Rail-Highway Crossing Resource Allocation
Procedure User’s Guide, 3rd edition, August 1987, p. 1.
Consequently, the result of the improvements may be “approximately neutral with
respect to safety.”58
Table 1. Sources of Federal Funding
for Grade Crossing Safety Improvements
P r ogram DO TAdmini stration Authorization Di st ri but i o n Not e s
Railway-HighwayAt 23 USC 130. At least
CrossingsFormula50% of funding to be used
(“Section 130”)grants tofor protective devices at
Program FHWA $220 states crossings.
The $220 million for the
Crossings Program is a
takedown from this
Highway Safety$1,256 (FY07)Formulaprogram. Grade-crossing
Improvement$1,276 (FY08)grants tosafety improvements are
Program (HSIP)FHWA$1,296 (FY09)statesone of many eligible uses.
Surface$6,370 (FY07)FormulaGrade crossing safety
Transportation $6,473 (FY08)grants toimprovements are one of
Program (STP)FHWA$6,577 (FY09)statesmany eligible uses.
Crossing HazardOnly crossings on
Elimination in$10 (FY07)Discretionaryfederally-designated high-
High-Speed Rail$13 (FY08)grants tospeed rail corridors are
CorridorsFRA$14 (FY09)applicantseligible for funding.
National Highway System
road crossings are
eligible. In addition,
$6,111 (FY07)Formulastates can transfer up to
National Highway$6,208 (FY08)grants to50% of their NHS funds
System (NHS)FHWA$6,307 (FY09)statesto STP.
Interstate$5,039 (FY07)FormulaStates can transfer up to
Maintenance$5,119 (FY08)grants to50% of their IM funds to
Program (IM)FHWA$5,199 (FY09)statesSTP.
$4,320 (FY07)FormulaStates can transfer up to
$4,388 (FY08)grants to50% of their Bridge
Bridge ProgramFHWA$4,457 (FY09)statesProgram funds to STP.
States can transfer some
Congestionof their CMAQ funds to
Mitigation andSTP. Only projects in air
Air Quality$1,721 (FY07)Discretionaryquality non-attainment or
Improvement$1,749 (FY08)grants tomaintenance areas are
Program (CMAQ)FHWA$1,777 (FY09)applicantseligible.
58 68 Federal Register 70605.
FRA noted that the automatic warning gates which are required for new quiet
zones under this Rule “were in most cases installed with primarily Federal funds.”59
“Thus prior Federal funding has already assisted local governments to some extent”
in establishing quiet zones.60 FRA also noted that in FY2000, in addition to the $155
million in federal funding dedicated to Section 130 grade crossing safety, there was
an additional $368 million in federal highway safety funding that could have been
used for grade crossing improvements; of that amount, states used $21 million
(6%).61 “Clearly this is an area where States can be encouraged to change the mix of
safety projects advanced using this funding to accommodate more grade crossing
As noted in Table 1, states can also use their federal Surface Transportation
Program (STP) funds for engineering improvements to improve the safety of grade
crossings, and if the crossings are on roads in the National Highway System, the
states can use their National Highway System program funds also. Since states can
also transfer funds into their STP from several other federal-aid highway programs,
as noted in the table, the STP could be a significant source of funding for these
improvements. But states typically have many highway projects competing for STP
funds. STP projects are prioritized by metropolitan planning organizations and state
departments of transportation, and projects have to be in the state’s statewide
transportation improvement program or a metropolitan planning organization’s
transportation improvement program to be eligible for federal funding. These plans
typically include far more projects than can be funded with current resources. Thus,
to receive funding, a grade crossing improvement project would have to be high on
the state’s prioritized list of transportation projects in its transportation improvement
plan, or on a metropolitan planning organization’s transportation improvement plan
(otherwise, the project could be in the transportation improvement plan, but so far
down the list of projects that it might not receive funding for years, if ever).63
Members of Congress can also direct funds to specific transportation projects, but
those projects must be in a transportation improvement plan before they receive
Some parties argue that federal funding should not be provided for establishing
quiet zones, because establishing a quiet zone is a quality of life improvement, not64
a safety improvement. Some observers have criticized FRA’s Rule on the grounds
that it would reduce safety overall. They fear the Rule will lead states to divert
funding for mitigating risk at grade crossings away from higher-risk crossings to fund
59 68 Federal Register 70606.
63 For example, in the surface transportation reauthorization legislation, SAFETEA-LU (P.L.
highway grade crossings, totaling tens of millions of dollars, in the High Priority Projects
section (Section 1702).
64 68 Federal Register 70605.
improvements required to maintain existing whistle bans at lower-risk crossings.65
They assert that this process would tend to divert resources from improving those
crossings in rural areas where active safety technologies (such as warning lights and
gates) have not yet been installed, to crossings in urban areas which already have
warning lights and gates but which may have to implement additional safety
measures to preserve whistle bans. As noted above, FRA asserts that the
requirements of the federal grade crossing safety grant program should limit that
diversion. However, it is possible that individual Members of Congress may respond
to the demands of their constituents by seeking legislation to direct funds to the
creation of quiet zones.
Several railroad industry participants commented that if a community insisted
that railroads stop sounding locomotive horns at grade crossings — a long-
established industry safety measure — then the community should be liable for any
accidents that may result due to the prohibition of that safety practice. Many
community representatives, noting that the Interim Final Rule provided a liability
exemption for railroads,66 expressed concern about that exemption leading to an
increase in liability on the part of communities establishing quiet zones, and argued
that FRA should also exempt communities from liability, or at least include a
statement that the existing liability structure for grade crossing accidents would not
be changed by the regulation.
FRA asserted that the Rule would establish a federal standard of care, displacing
a variety of state and local standards of care that have been applied in grade crossing
accident cases, and would benefit both communities and railroads by providing a
clear standard. FRA noted that the standard of care applied to the issue of sounding
locomotive horns at grade crossings in duly established quiet zones, and that there
could be factors other than the presence or absence of an audible warning signal that
contribute to collisions at grade crossings. FRA asserted its reluctance to interfere
with the existing liability structure. FRA noted that states have the power to exempt
their local communities from lawsuits through the application of sovereign immunity,
and that some states have chosen to do so.67
Another liability-related issue raised by many communities was concern that
railroads would require communities to transfer liability entirely to the community
as a prerequisite for improvements required to establish a quiet zone. Communities
urged FRA to include language in the Rule that would expressly forbid this tactic.
Conversely, as noted above some in the railroad industry urged FRA to require public
65 Letter from John Kravcik, Vice-Chicago Area Transportation Study Council Of Mayors
Executive Committee, op. cit.
66 While allowing communities to ban the sounding of locomotive horns in established quiet
zones, the Rule allows railroad engineers to sound locomotive horns even in quiet zones, in
case of emergency. The Rule exempts railroad engineers from liability for failing to sound
a locomotive horn in an emergency situation.
67 70 Federal Register 21846.
authorities to indemnify railroads against any increased liability arising from the
establishment of quiet zones. FRA declined to add language either way, asserting
that “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.”68 To the communities’ concern that
railroads would require indemnification agreements as a prerequisite to establishing
quiet zones, FRA asserted that state and local governments would in many cases be
able to make the safety improvements needed to establish quiet zones with little or
no cooperation from the railroads.69
The Role of Motorists in Grade Crossing Accidents
A DOT IG Office analysis of public highway-rail grade crossing incident reports
indicated that 94% of the accidents, and 87% of the resulting fatalities, during the
period 1994-2003 were due to risky behavior or poor judgement on the part of
motorists (i.e., “motorists failed to stop at grade crossings or drove around activated
automatic gates”).70 More than half (51%) of the public grade crossing accidents
occurred at crossings equipped with automatic or active warning devices (i.e.,
flashing lights and/or and gates).71 In light of this, FRA received many comments
arguing that residents of communities should not be subject to the noise of train
horns in an effort to protect irresponsible people from the consequences of their
actions. FRA asserted that “it is appropriate to protect even the unwise from the
consequences of their misdeeds where those consequences are especially severe —
and where society as a whole may bear the burden of those consequences.”72 The
agency also noted that grade crossing accidents caused by irresponsible drivers often
harm innocent victims: passengers in those drivers’ cars, railroad employees and
passengers, other drivers, and people living nearby.
68 70 Federal Register 21847.
70 Office of the Inspector General, United States Department of Transportation, Audit of the
Highway-Rail Grade Crossing Safety Program, MH-2004-065, June 16, 2004, p. 5.
71 Ibid., p. 4.
72 68 Federal Register 70594.