Segment 2 Of 2     Previous Hearing Segment(1)

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Tuesday, July 18, 2000
House of Representatives, Subcommittee on Ground Transportation, Committee on Transportation and Infrastructure, Washington, D.C.

    The subcommittee met, pursuant to call, at 10 a.m., in room 2167, Rayburn House Office Building, Hon. Thomas E. Petri [chairman of the subcommittee] presiding.
    Mr. PETRI. The subcommittee will come to order.
    Today we are holding a hearing on the Federal Rail Administration's implementation of the grade-crossing whistle ban. This law dates back to November of 1994 with enactment of the Swift Rail Development Act by the FRA, and in response to information provided by the FRA that whistle bans resulted in increasing accidents at grade crossings, Congress required the FRA to issue regulations requiring trains to sound their horns at all public grade crossings. In certain instances where supplementary safety measures fully compensate for the absence of the warning provided by the train whistle, FRA is permitted to authorize not sounding the locomotive horn.
    Final regulations pertaining to the most hazardous categories of highway rail grade crossings were to be issued according to the legislation by November of 1996. Final regulations pertaining to all other categories of crossings were to be issued by November of 1998, but to date, the FRA has not issued final regulations. On January 13th of this year, however, the FRA issued proposed regulations that will be discussed at today's hearing.
    Since the whistle ban law was enacted, communities and other interested parties have raised a number of issues regarding how the law will be implemented. Specifically, many communities are concerned about noise levels from the sounding of the train whistles. This is particularly a problem in densely populated communities that have a large number of grade crossings. In certain areas of my State of Wisconsin, for example, there are many closely spaced crossings, so that trains would have to sound the horn continuously for several miles to comply with the proposed rule.
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    An additional concern is the cost to communities of installing the safety devices that would be required to establish a quiet zone. For some communities, the technologies the FRA has required in its proposed rule-making, such as four quadrant grades, pose a significant financial burden. Since this burden must be borne in many cases by very small communities and their property taxpayers, since that is the only source of revenue these communities have, it does pose a significant problem.
    In 1996, Congress passed an amendment to the whistle ban law that delayed the effectiveness of the FRA final rule to 1 year after its promulgation. Nonetheless, many communities have indicated that the time frame to achieve compliance in order to maintain a quiet zone is too compressed.
    Following opening statements by committee members, we will be hearing from a number of member witnesses this morning, including our Speaker, Mr. Dennis Hastert. We will also be hearing from the Association of American Railroads' President, Mr. Ed Hamberger, the Deputy Federal Rail Administrator, Mr. Jack Wells, and a number of local elected and appointed officials from communities on the front lines of the whistle ban issue.
    With that, I would like to yield to the ranking Democrat on the subcommittee, my colleague from West Virginia, Mr. Nick Rahall.
    Mr. RAHALL. Thank you, Mr. Chairman.
    Mr. Chairman, we have all seen them. People in automobiles and trucks playing a game of chicken with an oncoming train at a highway rail grade crossing. This is a game they do not always win. According to the Federal Railroad Administration study, ignoring train whistles or active warning devices left a grim legacy of 11,662 people killed or injured between 1994 and 1998. Perhaps one of the more astounding facts is that fully one-half of the collisions occurred at crossings equipped with devices such as bells, flashing lights or gates.
    The purpose of today's hearing is to examine what progress has been made in addressing this safety threat.
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    In 1994, Congress enacted a legislative directive requiring the use of locomotive horns at grade crossings with certain exceptions, such as situations where certain safety technologies are employed. Six years later, the FRA is still in the process of implementing this legislation with its proposed rule, adopting the concepts of quiet zones, commonly referred to as ''whistle bans,'' at crossings equipped with certain safety devices.
    Meanwhile, across the Nation, many units of State and local governments have already established whistle bans at various highway rail crossings, including locations not safeguarded by gates or warning lights.
    Not unexpectedly, FRA data shows that collisions in whistle ban areas are far more frequent, with one anomaly, the Chicago area. Our colleague and very good member of this committee, Mr. Lipinski, is with us this morning, the only one from the delegation—I am sorry, along with the Honorable Mrs. Biggert that is here. Mr. Lipinski, being on our committee, has brought this to our attention on an almost weekly basis.
    I would say to the gentleman from Illinois that the FRA calls the situation ''puzzling,'' but perhaps it is simply a tribute to the safety consciousness of your constituents.
    In any event, under the FRA proposed rule, one of the central issues that many communities will face is whether there are sufficient Federal and State resources available to equip highway rail grade crossings with the type of safety devices advocated by the regulation, or in the alternative, be constantly subjected to blasting horn sounds of potentially up to 110 decibels.
    I think we all agree that enhanced safety at these crossings must be advanced, and I look forward to hearing from today's witnesses.
    Mr. PETRI. Thank you. Statements from the Honorable Bud Shuster, chairman of the full committee, and ranking Democrat Mr. Oberstar, should they not appear, will be made part of the record.
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    Mr. PETRI. Do other members have opening statements?
    Mr. Lipinski.
    Mr. LIPINSKI. Mr. Chairman, I simply would like to express my sincere appreciation to both you and Congressman Rahall for holding this hearing today. This is a very important issue, really, for all communities throughout the United States. It is a monumental challenge for communities in northeastern Illinois because we are really the epicenter of the railroads in the United States.
    The Speaker, his staff, my staff and myself have worked continually since January on this particular challenge that we are facing in northeastern Illinois. There were a number of hearings held in the Chicago area, thanks to Administrator Molitoris, where the community had an opportunity to testify. We had really a staggering turnout at those four hearings. There were another eight hearings throughout the Nation.
    But as you can see, there were a total of 12, and four out of the 12 were right in the Chicago land area, so you can see how important this issue is to the Chicago land area.
    Speaker Hastert, Congresswoman Biggert, Congresswoman Schakowsky, Congressman Porter and myself and our staffs have met on a number of different occasions also with the Administrator and her staff. Everyone has been cooperative, everyone has been open, but there are modifications in the proposed rule that must be made if we are going to be able to accept this and handle this as far as financial resources and as far as having the manpower to upgrade what crossings will be needed.
    I look forward to everyone's testimony here today, and once again I sincerely thank you, Mr. Chairman, and you, Mr. Rahall, for holding this hearing. Thank you.
    Mr. PETRI. Thank you. Other opening statements?
    Mr. Bereuter.
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    Mr. BEREUTER. Mr. Chairman, I want to express my appreciation to you for holding this hearing.
    The number of trains crossing my district is extraordinary. We have the highest density of rail traffic in the United States.
    Many of our communities—in fact, most of them—were built as a result of the crossing of the Great Plains by the railroad and built on those railroads. The communities are bisected. My hometown, for example, 800 people, has 40 to 50 trains going through the city every day now. As Mayor Heckman of the city of Hickman said lately, given the decibel level of the new horns, ''That community has lived with train honking for a long time.'' but right now what is happening is it is actually stopping life as they know it in cities like Hickman today.
    I have written you, as you may recall, a few months ago, suggesting that in low-population States like my own, 1.6 million people, that also has the highest train traffic in the Nation, we have an inability to provide for overpasses or underpasses for our grade crossings in almost all of our communities, so I think there needs to be some kind of new program adjustment in the formula to assist communities and States with this major rail-crossing problem.
    In the absence, it is causing great disruption if communities with emergency services on one side of the tracks and also the disruption of 40 to 50 trains going through the community every day, night and day, and the decibel levels and the frequency of the trains passing through the community is creating a real problem for our communities.
    I hope we can address it here.
    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you. Other opening statements?
    Mr. LaHood.
    Mr. LAHOOD. Mr. Chairman, I too want to thank you and your staff for organizing this hearing today. I hope that as a result of the hearing and as a result of the testimony from particularly Members of Congress, including the Speaker and Senator Durbin and Representatives Biggert, Hyde and others, the FRA will realize what grave problems this proposed rule will have on any number of communities.
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    The notion—and I think we will hear this today—that a train in some communities could possibly be blowing its whistle 24 hours a day, I think belies belief; and I also think that it is something that average, ordinary citizens cannot even believe that the government is considering doing.
    I know that we will be hearing from people who have been more intimately involved in this. But this hearing is so important to shed light on what I believe is unworkable and a rule that just simply needs to be revised and changed before it can be put in place.
    I am trying to restrain myself from saying anything more than that, because I think some of these other members who have been intimately involved will have a lot more to say about it. But this is maybe one of the most important hearings our subcommittee has had because of, hopefully, the change that will be brought about, and enlightenment will come to the FRA and the proposed rule.
    I look forward to the testimony.
    Mr. PETRI. Thank you.
    I would like to ask unanimous consent that the letter from the Federal Rail Administration chief counsel, dated July 17th, 2000, to Mr. Lipinski and myself, be made part of the record, with the FRA testimony today. This letter represents FRA's official view of the degree to which existing whistle bans are preempted prior to the final FRA regulations taking effect.
    Without objection, it will be made part of the record.
    The first panel consists of our Speaker, the Honorable Dennis Hastert; Senator Richard Durbin, who may be delayed, if he is able to make it at all because there are a series of votes in the Senate; Chairman Henry Hyde; and the Honorable Judy Biggert. We welcome you and look forward to your testimony, Mr. Hyde.
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    Mr. HYDE. Thank you very much, Chairman Petri, and distinguished members of the Subcommittee. I do welcome this opportunity to join my colleagues in voicing a great degree of concern over the proposed FRA rule on the sounding of train whistles.
    I sincerely appreciate FRA's efforts to provide in its proposed rule a means for communities to maintain current restrictions on the sounding of the locomotive horn at highway-rail grade crossings. However, many of the supplemental safety measures listed in the current proposed rule that would allow for the creation of ''quiet zones'' are not compatible with numerous crossings in Illinois. The alternatives are also very expensive.
    The dilemma of saving lives by enhancing safety at these crossings and preserving quiet in a cost-effective manner may be interpreted by some as a dichotomy. However, a solution may be the FRA allowing for additional options in the final rule that acknowledges and honors investments already made by States in grade crossing protection.
    Illinois, for example, has invested approximately $40 million annually for the past 12 years in improving rail crossings and expects to spend $95 million this year. Illinois' program is working, it is successful, it is saving lives, and it is achieving all of this without the sounding of horns.
    I wholeheartedly support the idea of allowing crossings currently in quiet zones with a proven safety track record to be exempt from the Federal mandate. I say this knowing that the specific safety threshold would have to be decided. This exemption would not sacrifice safety or minimize our responsibilities to the public to improve safety at dangerous crossings. This exemption would allow the States to continue to build upon their successful program by allowing planned safety upgrades of crossings to proceed without interrupting or diverting State resources already committed to safety projects.
    The exemption would remain in effect as long as the safety threshold is maintained. The State agency responsible for overseeing the crossing safety program could submit a rail crossing report annually to the FRA to maintain quiet zone status.
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    Another alternative that I believe has great potential is the use of automated wayside horns. I first learned of this possible alternative to the constant and incessant blowing of train whistles at the FRA April field hearing held in my district. The village of Mundelein, Illinois, is about to go forward with a pilot project to test the automated wayside horns for effectiveness, a horn blowing at the crossing along with a blinking light accomplishes the goal of alerting approaching traffic that a train is coming.
    This method is less invasive on the whole community and the cost is much more manageable, at about $30,000 per crossing, rather than $250,000 to $300,000 for some of the options currently offered by FRA to communities to qualify for quiet zone status. I leave further reference to this project to my colleague and friend, Mr. Crane, in whose district Mundelein is located.
    I appreciate the opportunity to participate in this hearing on behalf of approximately 254,500 of my constituents who will be adversely affected if the horns are allowed to blow. It is my hope we can convince the FRA to incorporate some of these additional options into their final rule.
    I also hope we can work this through the regulatory process. But if this is not possible, I stand ready to work with my colleagues in pursuing a legislative remedy.
    Thank you very much.
    Mr. PETRI. Thank you, Mr. Hyde, and thank you for your specific suggestions. They are very constructive.
    The chairman of the full committee, Mr. Shuster, has arrived. I would like to recognize him for an opening statement.
    Mr. SHUSTER. Thank you very much. I am just very pleased to have all of you here today.
    When Congress passed, in 1994, legislation directing FRA to issue a final rule, we at that time were quite concerned about this issue. Well, the final rule has been issued and while it is well intended, I think it has very serious consequences, and indeed I think the whole concept of one-size-fits-all does not apply here nor should it apply here.
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    So we are very much interested in addressing this issue in a way that not only provides for safety, but also takes into consideration the very legitimate concerns expressed by the communities through their able Representatives who are before us right now.
    Thank you.
    Mr. PETRI. Mr. Filner, without objection, you have an opening statement.
    Mr. FILNER. I thank the chairman and I thank the chairman of the full committee for those remarks stressing flexibility, because it is imperative, Mr. Chairman, that rules that allow cities to create quiet zones, areas that are free of train whistles in the middle of the night, be quickly implemented.
    In my hometown of San Diego, 25,000 downtown residents, residents who moved back to downtown and are a testament to its revitalization, are being jolted awake in the middle of the night by trains traveling at the speeds of 5 or 10 miles an hour through the intersections with literally no traffic.
    The city's redevelopment efforts are in jeopardy not only because of the justifiably grumpy residents, but because the first-class hotels are forced to move guests who complain about train noise. This should not be an issue, because the City of San Diego has a train whistle ban, but the railroad involved is reluctant to observe the ban until the FRA rule is in place.
    So let's get that rule in place. We have waited 6 years, as I am sure my colleagues have noted.
    I realize that the task is not an easy one, because we have in fact reduced fatalities. We want that trend to continue, and we don't want any deaths due to lack of safety considerations. The people who live near those tracks agree, but they also don't want to be blasted out of bed in the middle of the night by a train horn, especially when there is no traffic around.
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    The FRA must pay attention to the difference between rural and urban areas. In downtown San Diego, the trains are only running at 5 to 10 miles an hour, so there is a lot of difference compared with areas where trains are running 50 to 60 miles an hour. There has to be a middle ground; there has to be flexibility. The FRA rule goes far in offering us a middle ground by offering us four practical ways to obtain a waiver on the requirement that whistles be blown at the intersections.
    I would encourage the FRA to also ensure that other methods that offer the same level of safety be quickly incorporated into the rule. Some of these crossing protections are well-known. Others are being tested. Still other methods may also be developed that allow safety but also quiet environment.
    If an intersection, for example, could be designed to accommodate only 50 rather than 100 feet of median strips, that should be permitted. If stationary horns or strobe lights installed directly over the intersection are shown to deter cars trying to cross a gated intersection, that should be permitted. As I mentioned in downtown San Diego's example, we must take into account the speed at which the trains travel through the area.
    We must have waivers which will allow our residents to get their sleep while protecting the safety of those also in the area. I encourage the FRA to explore flexibility in this regard and let's do it quickly. We have waited 6 years. Residents living near the track have been patient, but they deserve a quick resolution to this issue. They deserve a good night's sleep, and I would like the FRA to move as quickly as a bullet train, speeding the completion of this rule so that residential areas and our necessary train services can live together.
    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you.
    The senior member of the full committee, Mr. Oberstar, on the Democratic side, has arrived and without objection will be recognized to make an opening statement.
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    Mr. OBERSTAR. Thank you, Mr. Chairman. I want to compliment you and Chairman Shuster and Ranking Member Rahall for addressing this issue, holding this hearing, gathering the information and giving members a forum in which to discuss a subject that addresses a conflict between two valid and perhaps even equally important public rights. On the one hand, the public has a right to quiet. They have a right to a quiet domestic environment.
    On the other hand, people have a right to be safe and secure as they travel the public streets and highways. They have a right to be informed about near-at-hand threats to their safety.
    The issue of whether to sound train horns at rail-highway grade crossings in heavily populated areas offers a case of conflicting public policies, both aimed at promoting a public good.
    The situation has its roots in the very development of our Nation. The railroads opened the country to settlement. They opened the country to industry and commerce, homes grew up around the key rail stops around the country and along the railroad rights-of-way; as our cities and our towns matured, people came into conflict, often deadly conflict, with the railroad.
    Homes and businesses crowded around railroad rights-of-way. I know in many places in my district railroad tracks were often the only sign of civilization.
    Train whistles, horns, were used to reduce accidents at rail-highway grade crossings, as those came to be very serious matters.
    Cities fought back with prohibitions against these warning signals. The earliest ordinances that I have been able to uncover go back to 1910. But whistle bans proliferated in the two decades between 1950 and 1970, and yet that was the very time in which over 1,000 people a year were dying at rail grade crossings.
    We have made progress in reducing the death rate, and a combination of road closures and upgrading the level of protection at grade crossings has cut in half the annual loss of life. Still, we cannot ignore the reality that there are 264,000 railroad grade crossings across the country; nearly 160,000 of those are on public use highways. Several hundred people are killed each year and thousands more are injured.
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    Collisions between trains and motor vehicles are 11 times more likely to result in fatalities than collisions between motor vehicles. The laws of physics simply do not favor the automobile, nor do they allow trains to stop on a dime. At 50 miles an hour, a 100-car freight train needs 1–1/3 miles to stop.
    The issue of train horn safety and public discomfort came to a head after the State of Florida in 1984 enacted legislation to give local jurisdictions the right to enact nighttime whistle bans, along with bells and lights and crossing gates. Bans were allowed only on lines of railroads that operated exclusively within the State of Florida, but subsequent appraisal of Florida's experience found that the nighttime accident rate at those crossings where the whistle bans were in effect 195 percent. The daytime rate was unaffected.
    The Federal Railroad Administration issued an emergency order for the railroads in Florida to sound their whistles, and accidents went back to pre-whistle ban levels.
    Mr. Chairman, I have a few other thoughts to express on this subject, but I see the main witness for us today to lead off has arrived, our Speaker, and I will withhold further comment and ask unanimous consent to include my further statement in the record.
    Mr. PETRI. Without objection, your full statement will be included in the record.
    [The statement of Mr. Oberstar follows:]

    We are honored that the Speaker has chosen to grace this hearing and look forward to your remarks, sir.


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    Speaker HASTERT. Thank you, Chairman Petri. I look up to this esteemed dais and think of the time I sat here, not up on the top layer, but down here someplace. Again, my colleagues from the State of Illinois, Bill Lipinski, who—we have been working together diligently in a bipartisan way to try to find some answers to problems that are out there.
    Again, I just thank you, Mr. Chairman, for the opportunity to appear before the committee today and to comment on the impact of the FRA's proposed rule-making on the use of locomotive horns at highway-rail grade crossings. I appreciate the committee's recognition of the importance of this issue and thank you for holding the hearings.
    I come before you today as the Representative of the 14th District of Illinois which covers portions of six counties and contains approximately 18 percent of all public highways at grade crossings in the whole State of Illinois. On January 12th, 2000, the FRA published their proposed rule which will require all freight and passenger trains to sound the train's air horn when approaching and entering a public at-grade highway-rail crossing.
    There is currently no Federal law requiring horn sounding. However, many States, including Illinois currently, require trains to sound their horns at grade crossings unless specifically exempted by the Illinois Commerce Commission.
    The grade crossings in northeast Illinois that currently do not have air horns routinely sounded may have them sounded every time a train approaches at a grade crossing if the new regulations are put into place. This occurs up to 140 times a day at the region's busiest grade crossings, and approximately 4,200 times a day throughout my district.
    In fact, a single metro train would have continuously sounded its horn as it passed through 57 grade crossings from my district in Geneva, Illinois, until it reaches downtown Chicago, a distance of approximately 40 miles away. The impact of the FRA's rule on my constituents and the people of Illinois cannot be understated.
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    The action proposed by the FRA is not without precedent. I would like to call your attention to Illinois history with its mandatory whistles. A similar rule was debated and passed by the Illinois State legislature in 1988, which requires the same whistle-blowing regulations as the FRA. On August 24th, 1988, when the whistles began blowing, the Illinois Commerce Commission, the Illinois Department of Transportation, the City of Chicago, suburban mayors, radio stations, television stations, you name it, were swamped with a tidal wave of angry phone calls.
    This new law met with such intense public backlash that within 24 hours a Federal judge issued a court order to stop the whistles and develop a more practical measure. Unfortunately, it appears the FRA has not learned from the mistakes of the past.
    Railroads are a fact of life for every Illinoisan, and the history of rail safety in Illinois is a proud one. Illinois has a proven program of substantially improving rail-crossing safety at an annual average cost of approximately $40 million a year. In 1998 alone, the State of Illinois spent over $60 million on grade crossing improvements. In fact, between the Illinois Commerce Commission and the Illinois Department of Transportation, Illinois has invested hundreds of millions of dollars over the last years to install modern safety devices at grade crossings throughout the State.
    I am pleased to report to you that these investments in safety have paid off. In Illinois, collisions at public grade crossings have declined by 52 percent since 1989. In northeast Illinois, injuries have declined by 77 percent and fatalities have declined by 65 percent. The large rate of decline is more impressive when you consider between 1980 and 1999 train traffic and average vehicle miles traveled by motor vehicles have both increased by approximately 45 percent.
    It is important to realize in Illinois that Illinois will bear a majority of the burden of this rule. There are currently 899 whistle-ban crossings and over 4,000 whistle-exempt crossings throughout the State of Illinois. The Illinois Commerce Commission estimates that under the proposed rule, it would take a minimum of 10 years to complete the upgrades at all current whistle-ban and -exempt crossings throughout the State. This would leave hundreds of communities in our region without a whistle ban regardless of whether they have had an accident or not for years to come.
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    In my districts alone, we have 31 FRA-recognized whistle-ban crossings and 132 whistle-exempt crossings. Of the 31 crossings, only one has experienced a fatality in the last 10 years, and 112 of the 132 exempt crossings have not even had an accident in the last 10 years.
    As you know, some of the most dangerous grade crossings are ones equipped only with signs to alert motorists that are approaching a track, otherwise known as ''crossbucks,'' leaving a motorist to determine if a train is coming. Many of those crossings are precisely the ones that will not be upgraded with gates or lights if the current FRA rule goes into effect.
    Over the last 25 years the Illinois Commerce Commission has reduced the amount of cross buck crossings by 21 percent, but there are still numerous crossings which need upgrades. Because of this, I believe the FRA's proposed rule could significantly hamper this safety program in Illinois. My primary concern is that the proposed rule could actually have the unintended consequence of decreasing rail safety in the State of Illinois.
    Public pressure to shield highly populated communities from noise, such as what occurred in 1988, will undoubtedly overcome the need to upgrade the dangerous crossings in Illinois, many of which are in sparsely populated areas downstate. The ICC funds currently targeted at the most dangerous crossings will then be diverted to lower-risk crossings or crossings that may never have had an accident.
    The Illinois delegation has been working over the last several months on a bipartisan solution. Again, I salute my colleague, Bill Lipinski, in helping to craft a solution. This solution will allow crossings throughout the Nation to maintain their whistle bans if they have sufficient safety measures at the crossing. This compromise would also require individual States to devote additional resources to education and to public awareness programs. I believe this is a common-sense solution that has been crafted with the input of not only several State agencies, but the railroads as well.
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    I greatly appreciate the chance to offer my thoughts on this important issue. It is my opinion that the FRA's current proposal should not be finalized unless it is modified to take into account the concerns raised by those currently responsible for rail safety. With that, I look forward to continuing to work with my colleagues, the FRA, and the committee to come to a solution which benefits the entire Nation, but does not also divert resources away from these ongoing safety efforts.
    I guess, in conclusion, I would like to quote one of my constituents in West Chicago, Illinois, who in 1988 said, ''You know, I can't sleep. They blow the whistles all night long. They blow the whistles all day long. They blow the whistles on my way to work. I can't even read the newspaper. Who is going to pay my psychiatrist's bill?''.
    Thank you very much.
    Mr. PETRI. Thank you, Mr. Speaker. I believe I can assure you that this committee will work with you and the bipartisan leadership in making sure that we deal with this problem before the Congress adjourns.
    Speaker HASTERT. I have the greatest confidence in this committee. Thank you very much.

    Mr. PETRI. Ms. Biggert, you have been very patient. We thank you.
     Ms. BIGGERT. I was getting kind of lonely down here. Even as a new member, I am used to sitting on that side of the table and having nobody here.
    I do want to start by thanking Chairman Petri and Ranking Member Rahall and the members of this subcommittee for convening this important hearing. I appreciate the opportunity to testify with my Illinois colleagues on an issue that will so significantly impact the residents of our State.
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    My district, the 13th, includes the western and southwestern suburbs of Chicago. As a matter of fact, my district is sandwiched in between those of the Speaker and Congressman Hyde. According to FRA statistics, of all the counties in the United States, Cook and Du Page, both in my district, contain the largest number of residents who will be impacted by the new rule. Cook is number one and Du Page is number two.
    If the rule is implemented in its present form, every train that cuts across my district, from Aurora to Chicago, to Lockport to Chicago, and from New Lenox to Chicago, will be forced to blast its horn continuously from the start of the line to the end of the line.
    I have with me a train whistle. This is a little one. But just imagine what it would be like if I were to blow this train whistle every 2 or 3 seconds during the course of this hearing. It would be annoying and it would be disruptive, to say the least.
    Now, imagine if it were a 144 decibel air horn. Imagine that it is blown 70,000 times a day. Imagine what 1.6 million people in northeastern Illinois would have to live with, day in, day out, morning, noon and night, if the FRA's proposed train whistle rule is implemented.
    As the Speaker said, Illinois did experience firsthand how destructive the constant blast of a train horn can be to a community's quality of life. As one who lives less than 1 mile from a railroad crossing in Hinsdale, I well remember when the State implemented the law in 1988. It created such vehement public reaction that within 24 hours, a judge issued a restraining order against the railroads to stop the madness.
    As the Chicago Tribune put it, ''A measure intended to save lives has instead confused several railroads, annoyed thousands of Chicago area residents, sparked a lawsuit and dumped a hot potato into the lap of the Illinois Commerce Commission.'' Twelve years later this hot potato appears to have landed in the lap of the FRA, and the impact of its proposed rule will be even more severe because of the rapid growth and increased rail traffic experienced in this area.
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    Over 90 percent of Illinoisans impacted by the FRA's proposed rule live in the six counties of northeastern Illinois. This comes as no surprise, given that 45 percent of the Nation's 1,900 whistle-ban crossings are in Illinois.
    One death at a railroad crossing is too many deaths, particularly if it is a loved one or a friend. But while safety is paramount, I believe the FRA's proposed rule must also take into account personal responsibility and quality of life issues.
    We cannot legislate personal responsibility, although we did try in Illinois; and State Senator Kirk Dillard and I did sponsor and pass a law which requires a fine of $500 or 50 hours of community service for anyone who drives around a railroad gate that is down or, as a pedestrian, crosses when those gates are down.
    So Illinois has taken steps, as Speaker Hastert has testified. Despite the fact that train and vehicle traffic have increased significantly during the past two decades, collision injuries and fatalities have all declined during the same period.
    This progress is due in large part to the efforts of the Illinois Commerce Commission. Thanks to the ICC, safety and warning devices constantly are being upgraded throughout the State. Unfortunately, the FRA's train horn rule would preempt the rule of the ICC, undermining its protective efforts with a yet unproven one-size-fits-all Federal strategy.
    We in Illinois believe that we have a better answer. Under the Illinois delegation alternative, existing quiet zones may retain their status if there has not been an accident at that crossing in the last 5 years or if the crossing is equipped with lights and at least two gates and has an agreed upon safety threshold.
    An existing quiet zone that is not equipped with lights and at least two gates and has had less than two accidents in the last 5 years must be refitted with gates within 10 years. The State also must agree to fully fund or enhance existing public safety awareness programs and education. As for establishing future quiet zones, State and localities must be given more flexibility to accommodate local situations.
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    We also recommend that new technology, like wayside horns, and education and enforcement activities, must be allowed to play a more prominent role in the proposed rules.
    Again, I want to commend the chairman and members of this subcommittee for holding this hearing. Safety, quality of life and personal responsibility, we would be hard-pressed to find issues of greater importance to our constituents.
    Thanks you.
    Mr. PETRI. Thank you.
    Without objection, the statement by the Honorable Richard Durbin, Senator from Illinois, will be made part of this record should he be detained in the Senate by the votes that are occurring there.
    Are there any questions of this witness? If not, we thank you very much. Thank you for your patience.
    While the second panel is assembling, I would like to recognize our colleague Mr. LaTourette, for his opening statement.
    Mr. LATOURETTE. Mr. Chairman, I want to thank you for conducting this hearing today, as well as Ranking Member Rahall, and Mr. Oberstar and Chairman Shuster as well for having this hearing on the FRA's proposed quiet zone regulations.
    While from the first panel it is evident that Illinois has a big problem with train noise, and clearly the clout of the Illinois delegation has been made known here this morning with the Speaker and the heavyweight presence of Mr. Lipinski from Chicago as well, an outstanding member of this committee, I would also tell you, as we will find out quickly in the next panel, that few areas of the country were as impacted by the acquisition of Conrail's assets by the CSX and the Norfolk & Southern Railroads than greater Cleveland was.
    While we all recognize that more trains mean that the economy is humming and no one would ever advocate trading aesthetics for safety, to paraphrase a sort of shopworn phrase around here as we go through the prescription drug war, no one in this country should have to choose between a safe rail crossing and a good night's sleep.
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    In an ideal world, there would be no at-grade rail crossings, nor would there be people in our country that think it is a good idea, even when you have flashers and gates, that they would try to beat the train to get to the other side. However, in our world we have to face the stark reality that train-car accidents are 84 percent more likely to occur at crossings where the horns are not sounded.
    True, as well, is the fact that when the Conrail acquisition was being discussed before the Surface Transportation Board, while we all expected in our area there would be a slight increase in trains, no one expected the tripling or quadrupling of trains. I think in one community in northeastern Ohio, we have gone from 48 trains to 154 trains a day. The committee will hear today there are some communities in northeastern Ohio that because of the proximity of the grade crossings, so close to one another, that you have one continuous train blast from one end of town to the other, similar to the situation that the Speaker described.
    That is why my colleague from the west side of Cleveland, Congressman Kucinich, who is on the panel, and I have heard from so many of our constituents and why we have worked so hard. And we are thankful to this committee for T–21, because we were able to use a number of the funds in T–21 for grade crossing improvements and grade separations, but it is not enough.
    We will also hear from two of the outstanding mayors in our area today, Mayor Blomquist from Olmstead Falls and Mayor Coyne from Brook Park, about what they have had to encounter. As a matter of fact, we have heard so much from our constituents about train noise that I am reminded of the famous picture, ''Study in Black and Gray,'' Whistler's Mother. If we only heard from Whistler's mother, it would have been OK. But we have heard from Whistler's grandmother, Whistler's cousin, we have heard from everybody in northeastern Ohio.
    We need relief today, Mr. Chairman, and that is why I appreciate your having this hearing.
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    I want to commend the FRA and also Administrator Molitoris for listening to the folks around the country. She was kind enough to conduct a hearing in greater Cleveland and listen to what our folks had to say, and I want to thank her for proposing this rule.
    I hope that ideas that come from today's session will hasten the adoption of a rule that we can all live with, and also identify streams of funding for communities that want to upgrade their rail crossings, not only in quiet zones, but other areas that are suffering damages.
    I thank you for the time and yield back.
    Mr. PETRI. Thank you.
    The second panel consists of our colleague, Dennis Kucinich from Ohio, Tim Roemer from Indiana, Phil Crane from Illinois, and Bobby Rush from Chicago, Illinois, as well as our Minnesota colleague, Mr. Gutknecht.
    We begin with Mayor Kucinich.


    Mr. KUCINICH. Thank you very much, Chairman Petri. I want to express my appreciation to you and Ranking Member Rahall for the opportunity to testify in support of the Federal Rail Administration's rules to establish quiet zones.
    Before I begin with my testimony, I would also like to acknowledge the tremendous assistance that my district has been given by Chairman Shuster and by Ranking Member Oberstar of the full committee. I can say, without your help, much of the progress that we have been able to make in transportation issues in our area would not have been possible, and I want to acknowledge that publicly and tell you how much I appreciate it.
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    I also want to thank Mr. Lipinski for his counsel in helping to set up this panel and for enabling us to bring mayors from our communities whom you will be hearing from shortly.
    Finally, to let my colleague and good friend Steve LaTourette know how much I appreciate the chance to work with you on this issue, because you and I have been partners on this all along in working together for the people of northeast Ohio; and I am very grateful, Steve, for all of the assistance that you provided, and I really appreciate the chance to serve with you in this Congress.
    The daily onslaught of train horns is a very important issue to my constituents in northeastern Ohio. The acquisition of Conrail by Norfolk & Southern and CSX Corporation has significantly increased the number of trains in my district and their horns have become a serious disturbance in people's lives.
    Because of this negative impact on the quality of life, I am pleased to offer my support for the overall concept of this rule-making. The FRA should be commended for their initial attempt to ensure the safety and tranquility of those who live along railroad lines across the Nation.
    I want to echo the comments of Mr. LaTourette about how important Jolene Molitoris has been to this process. She has really worked very hard to be a presence in the district so she can see firsthand what is going on. I give her a lot of credit for that.
    My support, of course, for any kind of a rule would be contingent on strong mechanisms to ensure continued safety at grade crossings. I cannot emphasize enough the importance of continued train safety. Train noise is a serious concern; train safety is a matter of life and death. Collisions increased 84 percent when train horns were banned at grade crossings and no additional safety measures were installed. If we ban train horns, we need to ensure that we don't increase the number of collisions. Quiet zone regulations must protect our children and anything less is unacceptable.
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    There are concerns the FRA must still address. The rule-making should be expedited so that relief can be quickly brought to those who face train noise every single day and night. These train horns are a nuisance to many families, and they need relief now.
    I am also concerned with the costs of establishing a quiet zone. Early estimates suggest that the modifications at each intersection may be cost-prohibitive. Therefore, FRA must continue to look for supplemental safety measures that are affordable.
    I also encourage the FRA to approach Congress with a plan to offer additional funding these projects. The FRA should aggressively seek more safety device options to provide for maximum choice and flexibility for local communities. Examples of these, Mr. Chairman, I think would be noteworthy for this committee; and these are devices that I think deserve more investigation, and they could include warning light systems built into the roadway and stationary horn systems that dramatically reduce the noise impact on a community but still provide an audio warning.
    I know some of our towns have a series of crossings, and the train will start from the beginning of the town and blow the horn all the way through the town, and that is a real disturbance for people, especially at nighttime.
    So hopefully a quiet zone rule would permit us to balance the requirements of peace and quiet with the serious and overarching requirements of safety.
    In conclusion, I believe the FRA must continue forward and finalize this rule with all parties working together to assure adequate funding is made available.
    I once again want to thank the committee for holding this hearing, and I thank the FRA for their efforts to help deal with this quality of life issue.
    I also want to thank Mayor Blomquist from Olmstead Falls, Ohio, and Mayor Coyne, from Brook Park, Ohio, for being here today in Washington so that they will be able to offer this subcommittee their views as mayors on this important issue.
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    Again, Mr. Chairman, I am very grateful for this opportunity to testify, and I want to let you know that I appreciate the thoughtful consideration of the members of this committee on this issue of vital concern to the people I represent. I thank you.
    Mr. PETRI. Thank you, Representative Kucinich. Thank you for helping to organize the testimony today.
    Representative Rush.


    Mr. RUSH. Thank you, Chairman Petri. I really appreciate the opportunity to appear before this committee, and I want to join with my colleague, Mayor Kucinich, in congratulating this committee. Chairman Shuster, Ranking Member Oberstar, you, Mr. Subcommittee Chairman, Chairman Petri, and Ranking Member Rahall should all be commended for the work you have done on this particular issue.
    I want to commend my colleague and my friend from Illinois, Mr. Bill Lipinski, for his extraordinary leadership on this particular matter. He has been, in my estimation, a singular force in regards to bringing this issue to the forefront, certainly of the people of the State of Illinois.
    I want to also commend those aforementioned individuals for taking the time out to appear before a group of Chicago city aldermen a couple of months ago when they came to the Hill, and you all really made them feel important and you were very, very attentive to their concerns and their issues.
    Mr. Chairman, as you already know, on January 12, the FRA published a proposed rule requiring all passenger and freight passenger trains to sound an air horn when approaching and entering a public at-grade highway rail crossing. While I applaud the FRA's effort in moving forward a plan for reducing accidents and fatalities at railroad crossings, I do not think this proposed rule is in the best interests for the people of the State of Illinois.
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    Railroad safety is not a new issue for us in Illinois. Safety officials and other advocates have successfully put the appropriate measures in place to reduce the number of injuries and fatalities in Illinois. The numbers simply bear this out. Of the rail crossings in Illinois, 77 percent have gates, and all of the whistle ban rail crossings in northeast Illinois have gates. Illinois has invested hundreds of millions of dollars over the years to install modern safety devices at grade crossings throughout the State and will spend $95 million this year making improvements at crossings.
    So, Mr. Chairman and other members of the subcommittee, I come to you today to make a plea on behalf of the residents of Illinois, the people whose lives will be disrupted, whose peace and quiet and peace of mind will be lost if this rule is implemented as it stands today. Let us not railroad this new rule into effect, this rule which will in essence have train whistles blowing from one end of our State to another at any given point in time.
    Certainly FRA's proposal is well intended and I commend them for it, but the evidence shows proactive efforts in Illinois have netted results over the past few years. Neither I nor my fellow colleagues from Illinois can ignore the outstanding statistics showing a reduction in train crossing collisions and fatalities in our home State. We cannot ignore it. It is there. It is obvious. We cannot overlook the Chicago area transportation study which estimates nearly 2 million Illinois residents will be impacted by the proposed rule, with more than 1 million Illinois residents severely impacted by the same rule.
    In my district alone, close to 200,000 residents will be affected, adversely affected, by the FRA's proposed rule. The alternative to FRA's rules crafted by the Illinois delegation effectively, comprehensively, addresses Illinois' existing quiet zones through such measures as enhancing public safety awareness programs, extending the compliance period, and setting guidelines for safety thresholds, and I certainly support this alternative to the proposed rule, and I ask that the FRA pull the brakes and give careful consideration to our proposal before implementing this whistle ban law.
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    Mr. Chairman, I look forward in the future to working with both my fellow colleagues from Illinois and the FRA in crafting a workable plan. This is not a workable plan. This is going to create a horrendous problem for all of us in the State of Illinois.
    I thank you and yield back whatever time I have left.
    Mr. PETRI. Thank you. Representative Gutknecht.


    Mr. GUTKNECHT. Thank you, Mr. Chairman and members of the subcommittee. I want to thank you for allowing me to testify today. The district that I represent covers the southeastern corner of Minnesota and, like much of America, it is both rural and urban. It includes small agricultural communities, agribusiness and higher education communities such as Mankato and Winona, as well as Rochester with high technology and medicine.
    The proposed rules and related issues we are talking about today are important to the people that I represent. To begin with, I want to make four points.
    First, we must preserve a whistle free option for our communities. Second, we must have uniform noise standards, policies and procedures for all Federal agencies. Third, there must be enforcement of the standards, policies and procedures; and fourth, when the process is not working, there must be a place to turn to fix it without expensive and time-consuming court procedures to get results.
    Present procedures seem to favor deep pockets and frustrate our communities and neighbors. Let me say that railroads are important contributors to our prosperity, along with trucks, barges and airlines. They haul the goods for us. Approximately 40 percent of all U.S. freight is hauled by rail, 40 percent by truck and 20 percent by other modes. We need all of them to keep our economy growing.
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    First let's talk about the importance of the whistle free operations to the people of the First District of Minnesota. It is important because a sleepy regional railroad in order to survive wants to grow significantly by participating in new markets. The Dakota, Minnesota & Eastern Railroad, DM&E, presently operates a 1,100 mile rail system across South Dakota and southern Minnesota. The primary products that it ships today are agricultural and forestry products. They operate 316 miles of track in Minnesota. Half of it is in my Congressional district.
    In 1997, DM&E announced plans to expand its railroad into Wyoming's coal rich Powder River Basin. The project requires rebuilding the existing track, adding new passing sidings, new yards, new repair facilities. Their $1.3 billion proposal has been described as the largest expansion over the last half century. The project rebuilds 598 miles of existing line and adds more than 280 miles of new track. Train traffic would increase initially from the current level of three trains per day to perhaps as many as 37 trains per day when they complete the project. Average speeds would increase from 10 to 25 miles per hour now to 45 to 50 miles per hour on its completion.
    It is currently being reviewed by the U.S. Department of Transportation Surface Transportation Board for economic and environmental impacts. The DM&E has received preliminary economic approval. The STB is in the process of preparing environmental impact statements. The DM&E project will significantly change the characteristics of railroad-highway grade crossings along the rail corridor. A significant investment will be required to minimize safety concerns. The solutions will be a combination of grade separations, crossing signals, relocations and crossing closures.
    That brings me to the whistle free issues. There are 56 communities along the proposed upgrade. The railroad runs through the center of many of these communities and many have at grade crossings. All but four of the communities have signed agreements. In order to gain acceptance, whistle free provisions have been included in many of these community agreements, contingent upon the FRA standards, policies and procedures.
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    One city, Rochester, Minnesota, where I live, is home to the world famous Mayo Clinic. Hundreds of thousands of visitors come each year for medical care. Because the rail corridor runs within a few blocks of the medical campus and all nearby crossings are at grade level, any increase in the use of train whistles at all hours of the day or night would have a significant impact.
    Provisions for community negotiated whistle free corridors must be preserved. Mitigation needed for such corridors must provide adequate access to emergency service, minimize the travel disruptions, and must not be at the expense of local community taxpayers.
    Second, we must have uniform noise standards for all Federal agencies. Today there are at least two noise standards. There is one at 70 decibels for railroads. For government agencies such as housing, airports and other agencies, there is another at 65 decibels. We need to have one standard. It is not acceptable to have one Federal agency denying access to a HUD government program while another agency allows the project to proceed based upon a different standard.
    Third, there must be adequate enforcement of the standards, policies and procedures. An enforcement process must be provided to ensure that the negotiated agreements are implemented and lived up to. They need to be enforced without the burden of court action.
    Fourth, we must find a way that allows communities and citizens to register their complaints and address issues with the railroads that run through their neighborhoods and get a response. Today the railroads, their customers and their employees have explicit or implied contractual relationships. Communities and their citizens have no defined relationship or grievance process with the railroad companies. The issues we have talked about today cross jurisdictional boundaries. When highways cross railroads, where do we go? Is it the Surface Transportation Board, the Federal Railroad Administration, the Federal Highway Administration, or some other board or agency?
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    A final question that comes up again and again at many of my town hall meetings is important: Who pays? I believe that those who benefit should pay. The railroad, the shipper, the utility and the consumer benefit. It should not be community taxpayers that happen to live along an expanding line. They see no benefit, only costs. There are no easy solutions, but if flexibility and common sense prevail, acceptable solutions can be found.
    Thank you, Mr. Chairman, for allowing me to be here today and represent the folks of the First Congressional District of Minnesota. As one Member of Congress whose constituents are currently going through this, I stand ready to help with any necessary legislative corrections.
    I thank you very much, Mr. Chairman.
    The chairman. Thank you, Representative Gutknecht.
    Mr. Crane.

    Mr. CRANE. Thank you, Mr. Chairman. I appreciate this opportunity to appear before the Subcommittee on Ground Transportation to discuss a subject of great concern to many people in my Congressional district and in the Chicago metropolitan area. That subject is the rule proposed by the Federal Railroad Administration last January regarding the blowing of train whistles at highway-rail grade crossings.
    Mr. Chairman, there is no denying the importance of the problem that the rule seeks to address. Nationwide, over 2,500 people were killed and another 8,300 were injured in grade crossing accidents between 1994 and 1998. That is a lot of people who have died needlessly and, in some cases, without being in any way responsible for the accident. It is also a compelling reason why attention must still be paid to the issue of grade crossing safety, an issue that will become even more critical as we move into the era of high speed rail in America. But, that said, Mr. Chairman, the FRA's proposed rule leaves much to be desired.
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    However well-intentioned, it fails to recognize how different grade crossings are from one another, communities are from one another, states are from one another, and regions are from one another. Nor does it take into sufficient account how difficult and/or impractical it would be for many communities to implement the measures necessary to avoid the blowing of train whistles.
    In Illinois, for example, one-third of the grade crossing accidents and 40 percent of the fatalities associated with those accidents, occur in areas where there is relatively little train traffic. Yet, if the FRA's proposal were to take effect, those mainly rural areas where improvements are needed most would likely see expenditures for grade crossing safety shifted away to urban and suburban communities whose crossings had experienced few, if any, accidents.
    Not only that, but there is some question as to whether one of the safety options proposed by the FRA-namely, four quadrant gates-would contribute all that much to safety. There is good reason to believe that several other safety options, such as median strips and one-way streets, will not work, either due to the existence of roads running parallel to the tracks or to the absence of an alternative route within a reasonable distance.
    Furthermore, one likely consequence of the rule, more train whistle blowing in the absence of viable alternatives, is very much at odds with ongoing efforts to promote the use of mass transit by building residential units within easy walking distance of commuter rail lines. How many people will want to live in such a unit if they think that they will be tossing and turning to the sound of train whistles every night?
    With due respect to the conscientious public servants at the FRA who have labored for nearly 5 years on their proposal, it is an unrealistic, ''one size fits all'' approach to circumstances that best lend themselves to case-by-case solutions. We can--and should--do better.
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    Further consideration must be given to other alternatives to train whistle blowing, such as the installation of automated wayside horns which cost only 10 to 15 percent as much as four quadrant gates or photo enforcement procedures. Also the FRA should pay more attention to an idea that has been suggested by some of my Illinois colleagues and by others in the Chicago area.
    Put simply, what they have suggested, and what makes a lot of sense under the circumstances, is exempting from train whistle blowing requirements grade crossings that have been accident free for the past 5 years or feature warning lights, at least two gates and a safety record showing a minimum of accidents.
    Also, and wisely so in my opinion, their suggestion contemplates adding items, such as the installation of automated wayside horns, to the steps a community could take in order to qualify for quiet zone status.
    A train-motor vehicle crash is a tragedy. However, when a motorist is intent on beating a train through the crossing by ignoring gates that are down, lights flashing and bells ringing, will the blowing of a whistle deter this person? That motorist cannot deny knowledge that a train is approaching. We must balance the disruption to residents in urban areas to the blowing of train whistles at all hours of the day and night. Most fatal accidents which occur at rural crossings happen because the motorist truly had no warning that a train was approaching. That is an area where we must give priority to our limited resources and not divert or siphon away funding as a result of this rule.
    Let me conclude by noting that over 1 million people in the Chicago area live within a quarter of a mile of a train track and 2.5 million live within a half mile. Out of respect for their need to sleep and for the sake of local taxpayers who will otherwise bear the burden of a federal mandate that is not only unfunded, but in many ways impractical, I hope the FRA will take today's suggestions to heart and develop a rule that will save lives without compromising the quality of life in the Chicago area and elsewhere. If it so chooses, it will have done the nation a great service.
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    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you, Mr. Crane. Are there questions of this panel?
    If not, we very much appreciate your testimony, the specific comments and suggestions that you have made, and we look forward to working with you as this process unfolds.
    The next panel consists of the Deputy Administrator of the Federal Railroad Administration, the Honorable Jack Wells.


    Mr. WELLS. Thank you, Chairman Petri and other members of the Committee. It really is an honor and pleasure for me to appear before you in my first testimony before the committee on whose staff I served and where I have so many friends and warm memories.
    I realize that I come before you on a controversial matter, and I hope that I can be responsive to your concerns. I do want to highlight a few key issues in my testimony, and then I will be happy to answer whatever questions you may have.
    As you know, the proposed rule on locomotive horns that we issued in January was in response to a statutory mandate enacted in 1994. Before that statutory mandate, we had investigated the safety of whistle horn bans in Florida at the request of former Congressman William Lehman, then Chairman of the House Appropriations Subcommittee on Transportation. That investigation provided the first statistical indication that whistle bans increased accident rates.
    The results from Florida prompted us to look nationally at the effects of whistle bans, and in 1995 we issued a national study of train whistle bans. That study included both a time series and a stratified cross-sectional analysis, both of which indicated that accident rates rose between 60 and 80 percent when whistle bans were in place. We issued an updated version of that study in January which reached the same conclusion.
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    A sub-sample study focused on the Chicago area found that whistle bans in that area also resulted in about a 60 percent increase in accidents. In the meantime, the statutory mandate had been enacted and we began to consider how we should respond to it. We scheduled the first of what would eventually become hundreds of community meetings to discuss how to implement the statutory mandate. Because the statute had mentioned supplementary safety measures as an alternative to sounding locomotive horns, we began to gather data on the effectiveness of these supplementary safety measures, such as four-quadrant gates and median barriers. The work of the State of North Carolina with its sealed corridor program was particularly valuable.
    While we were developing our rules, several communities came to us and said, ''We don't want to wait until the rule comes out. We don't want to live with uncertainty for several years. We want to do what we need to do now to install supplementary safety measures so that we will not need to have horns blowing in our communities.''
    So we worked with those communities to figure out what they could do, how they could meet the statutory mandate in a way that was affordable for them and that maintained the livability of their communities. These communities came from all over the country, from Burlington, Vermont, and Louisville, Kentucky, from Fort Lauderdale, Florida, and Richardson, Texas, from Yakima and Spokane, Washington, and Covina, California and Westfield, New Jersey.
    We varied our strategies to suit each community's unique local circumstances. In Spokane County and Yakima, Washington, for example, we approved the use of shorter median barriers than the 60 to 100-foot barriers we proposed as a standard in our rule. In Richardson, Texas, the community is looking into a wayside horn as a quieter alternative to a locomotive mounted horn.
    In the rule itself we incorporate a considerable amount of flexibility. If communities want to take the simplest approach to establishing a quiet zone, they can simply install preapproved supplementary safety measures and inform us of what they are doing. If communities want more flexibility and lower costs, they can adopt a corridor approach in which we assess the overall safety of the corridor and figure out what we need to do to make the corridor as a whole as safe as it would be with a locomotive horn sounding.
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    Since four-quadrant gates and median barriers provide more safety than the locomotive horn does, a community can install, for example, four-quadrant gates at the one crossing with the heaviest traffic, median barriers at a couple of other crossings, and leave several other crossings in the corridor with ordinary gates and lights. The overall improvement in safety is the same as having the locomotive horn blowing, but not every crossing needs to be improved. Alternatively, a community doesn't have to install any engineering improvements if it develops a vigorous program of education and enforcement under the alternative safety measures part of our proposed rule. There are many ways to skin this cat.
    Moreover, this is just, of course, a proposed rule. We have received almost 3,000 comments and there are a lot of good ideas in those comments. I can assure you that there will be changes between the proposed rule and the final rule and those changes are likely to provide even more flexibility to communities, especially to communities that can demonstrate that they already have truly exemplary safety records. Fourteen States in 1998 had zero grade-crossing fatalities, including large States like New York, Pennsylvania, Virginia, and Kentucky. Last year, 12 States had zero fatalities. Five States haven't had a single grade-crossing fatality in 5 years. So we can do better. Some of the States have shown that we can do better.
    What does it take to do better? It is the three E's education, enforcement, and engineering. We need to keep up the effort of the last 3 decades to install more grade crossing gates and lights and more four-quadrant gates and median barriers. We need a coordinated community effort to educate everyone about the importance of grade-crossing safety and to get our police forces and judges to enforce the law vigorously.
    Today, many of FRA's grade-crossing safety specialists, and I mean literally today, are out at Salt Lake City at Operation Lifesaver's biannual international symposium exchanging ideas with State and area Operation Lifesaver coordinators about what works and what doesn't in improving grade-crossing safety. If all of the States can emulate what the best States are doing already, we won't need to have locomotive horns blowing in our communities.
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    One issue that has come up in the comments we have received is the validity of our estimates of the effect of whistle bans on safety. I don't want to get into a methodological debate about how these safety effects should be measured, but I think it is fair to say we need better data on our grade crossings, and we need better analyses of exactly what the effects of whistle bans are.
    I am satisfied that whistle bans do increase the accident rate, but it is important to have a more precise measure of this effect for regulatory purposes. So we are working with statistical consultants to improve the accuracy of our measures of these effects.
    I want to emphasize that FRA did not seek this issue out. We have consistently responded to mandates from Capitol Hill, first from Congressman Lehman, then from the Congress as a whole in the 1994 act. We knew that responding to this mandate would be controversial, so we organized hundreds of outreach sessions, conducted 12 public field hearings, and are reviewing almost 3,000 written comments in order to give everyone affected by this rule a chance to be heard.
    While we probably would not have undertaken this effort voluntarily, we do take mandates from the Congress seriously, and if you enact a statute directing us to do something, we will do it--perhaps not as fast as you direct, but eventually.
    We are moving forward vigorously to complete reviewing the comments, refine our analysis, and determine what changes to our proposed rule are appropriate. I urge you to give us the opportunity to produce the best rule we can, one that combines a serious effort to enhance grade crossing safety with appropriate flexibility for different communities' needs. If you then disagree with how we have balanced these objectives, I am sure you won't hesitate to communicate that message to us. I appreciate your attention and I would be happy to answer any questions you may have.
    Mr. PETRI. Thank you, Mr. Wells.
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    Mr. Rahall.
    Mr. RAHALL. Thank you, Mr. Chairman. Jack, I don't have any questions in regards to the subject of today's hearing, but in anticipation of next week's hearing on short line issues, I would like to make a request of you.
    Prior to that hearing, I would like to ask that the administration deliver to the subcommittee a copy of the so-called side agreement which DOT entered into with Treasury on the implementation of the Railroad Rehabilitation and Improvement Financing Program. As you know, this particular program has been the subject of keen interest by both the chairmen and ranking members of both the full committee and this subcommittee, and I for one and I believe Chairman Petri shares this sentiment and believes the FRA's final rule on this program violates both the letter and intent of the TEA–21 provision.
    To now learn from a report in the Traffic World publication that a secret side agreement has been negotiated certainly casts an even worse light on this issue. So I am not asking you to respond at this time, but I am simply asking that you take this message back, that we expect a copy of that agreement to be delivered to us prior to the July 25th hearing before this subcommittee.
    Mr. WELLS. I would do that. I would caution you not to believe everything you read in Traffic World. I will discuss that with the Secretary and get back to you.
    Mr. RAHALL. I am not saying I believe it. I am just asking to receive a copy of the agreement. Thank you.
    Mr. PETRI. Mr. LaTourette.
    Mr. LATOURETTE. Thank you, Mr. Chairman.
    Mr. Wells, as I listened to your testimony, you appeared to be describing a situation as if this rule was adopted in its form, this regulation, that a community, for instance, Brookpark, Ohio, that has seven grade crossings, could put quadrant gates at one, put a median strip, make a one-way street, and then just have crossbucks, lights and flashers at another, if it created the essence of a comprehensive safety plan for that community and that stretch of line.
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    That leads me to the question specifically about quiet zones that are contained within the regulation. There is a place, if you would look at the statute, Section 20153, and then compare them to the proposed regulation, the proposed rule that provides if a community wishes to establish a quiet zone that it cannot for some reason comply with the rules, requirements or supplementary safety measure at every crossing within the zone, it, meaning the community, may apply to the FRA with its proposed safety measures for possible relaxation of the horn sounding requirement. That seems to be what you were talking about, is that right?
    Mr. WELLS. That is right.
    Mr. LATOURETTE. OK. I guess I need to know, since that described sort of unilateral action by a community, how that then squared with Section 20153(D), that says notwithstanding any other provision of this subchapter, the Secretary may not entertain an application for waiver or exemption of the regulations issued under this section unless such application shall have been submitted jointly by the railroad carrier and by the appropriate traffic control authority or law enforcement.
    It appears in one part you are talking about a unilateral activity by the mayor or community, and in another, an entirely separate matter. Can you square that for me?
    Mr. WELLS. Well, what I talked about was not a waiver of the rule. What I talked about was part of the rule itself. Part of our rule is there are several different options for satisfying the requirements for a quiet zone. One of those options is using supplementary safety measures which we have already specified in the rule as satisfying the requirements of the rule, so a community can install those supplementary safety measures and they are automatically granted a quiet zone.
    The alternative approach is using our corridor approach, where we need to assess the current level of safety along that corridor, and then come up with a strategy of either supplementary safety measures or alternative safety measures, including enforcement efforts, and educational efforts, that jointly will improve the level of safety along that corridor to the same degree as blowing the locomotive horn would.
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    We don't consider that to be a waiver of the rule. That is part of the rule itself. So it doesn't require any coordination with the railroad that is involved on that corridor.
    Mr. LATOURETTE. When then would a community need to apply for a waiver? I mean, if you are saying that you look at 7 grade crossings, some will have this, you make a plan, I guess I am a little unclear. Maybe it is my own ignorance, but I am a little unclear when a waiver would come up?
    Mr. WELLS. I suppose a waiver would come in if the community felt it could not meet any of the supplementary or alternative safety measure approaches that we specify in the rule. I think we provide a great deal of flexibility in the rule, but I suppose if a community felt that they could not meet any of those approaches, then in that case they could come in and request a waiver.
    Mr. LATOURETTE. It is your belief that if this rule even modified slightly went into effect, that a community that had 7 grade crossings could come in with a plan featuring the three E's, education, enforcement and engineering, and have a better than even chance of having such a thing approved, as long as it satisfied who, you? Not you individually, but, FRA collectively?
    Mr. WELLS. That is right.
    Mr. LATOURETTE. Thank you very much. No further questions.
    Mr. PETRI. Mr. Oberstar.
    Mr. OBERSTAR. Thank you, Mr. Chairman. Jack, welcome back to the committee.
    Mr. WELLS. Thank you. It's good to be here.
    Mr. OBERSTAR. It is good to have you here, but it is a little odd having you on that side of the table rather than on this side.
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    Mr. WELLS. That's right.
    Mr. OBERSTAR. Congratulations on the splendid job you have done since your installation over at FRA.
    I wonder as you have reviewed the rulemaking which largely occurred before you got there,to see whether the calculations included the cost to the locomotive engineer and crew who have to live with the consequences of tragedies at rail grade crossings? Did those considerations enter into the rulemaking?
    Mr. WELLS. Well, of course it is very hard to quantify those effects. I've talked with a lot of locomotive engineers who have experienced grade-crossing accidents. In fact, I was involved in a trespasser fatality myself a couple of months ago. I was on the Amtrak train coming down from Philadelphia and the train hit a trespasser outside of the New Carrollton station in Prince George's county, and I certainly remember the sense of dread that I had when I heard that our train had hit somebody on the tracks. If I had been in the cab of that locomotive and had actually seen the person before he was hit by the train, that sense of dread would have been even stronger.
    We did not explicitly include any factor for the traumatic effects of grade-crossing accidents on the locomotive engineers. But one thing to keep in mind is that there are a considerable number of fatalities resulting from grade-crossing accidents that occur to people on the train--the Bourbonnais accident last year, for example, which involved 11 fatalities; the Portage, Indiana, accident, where a train hit a heavy steel truck and there were three passenger fatalities on the train; and the Doctortown, Georgia, accident where a conductor was killed on the train when it hit a heavy log truck. We recently had another grade-crossing accident where a locomotive engineer was killed when a log truck ran into the train.
    So grade-crossing accidents are dangerous not just to the psyches of the locomotive engineers, but to their lives as well. We did take those fatalities into account.
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    Mr. OBERSTAR. I am glad you are aware of it, because this is a calculation often missing in this discussion, a factor that is very real, leaving very painful memory, as well as loss of life to the locomotive crew.
    Now, we have heard the story about Chicago removing or imposing whistle bans and having a good outcome. Is it true? Have you at FRA actually analyzed those numbers? Are those Chicago numbers, are those FRA numbers, and are there actually fewer accidents at locations where a whistle ban has been in effect?
    Mr. WELLS. Well, we did find that effect in the update of our study that we published in January of this year, and we did find the numbers surprising, to say the least, because certainly all of our other studies had indicated that whistle bans increase accidents, yet we had—.
    Mr. OBERSTAR. It couldn't be just removing the whistle. That alone is not accounting for reduced fatalities. It would have to be other measures accompanying that.
    Mr. WELLS. We had two categories of cases, whistle-ban crossings that were equipped with flashing lights, but not gates, and whistle-ban crossings that were equipped only with crossbucks (passive crossings) where the data appeared to show that the whistle-ban crossings were actually safer than corresponding crossings that did not have whistle bans.
    We were a little suspicious of the data, and actually just last week we sent several of our staff in our Chicago regional office out to examine some of these whistle-ban crossings that had such a high level of safety.
    We looked at 50 percent of the crossings that had flashing lights-a whistle ban crossings with flashing lights-and 25 percent of the crossings that had whistle bans and crossbucks (passive crossings). We found that of the 43 flashing light crossings with whistle bans, 13 had been either abandoned or were in fact not even crossings at all, and of the 49 cross buck crossings that we visited, 34 were either abandoned or had no crossing.
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    So it appears to us that the reason why we were getting those results that those whistle-ban crossings had a high level of safety was because they were, a lot of them, closed, and there simply wasn't any traffic going over them. So this sort of reemphasizes the point I made earlier, that we need improved data on the nature of all of our crossings.
    We have a national database, a grade-crossing inventory, where we assign a unique inventory number to every grade crossing and information about the grade crossing is supposed to be submitted both by the railroad on train traffic volumes, for example, and by the States on motor vehicle traffic volumes and also on the physical condition of the crossing. In many cases those data have not been updated in 5 or 10 years, so that a lot of our data are obsolete.
    In the administration's rail safety bill that we submitted last year we included a provision to require both the States and the railroads to update the data on those grade crossings annually. I think it is clear that we can't do good analysis on the effect of whistle bans on grade crossing safety if we don't have up-to-date data on the nature of these grade crossings.
    Mr. OBERSTAR. That is very enlightening, very important. I will have further questions later, Mr. Chairman.
    Mr. PETRI. Mr. LaHood.
    Mr. LAHOOD. Mr. Wells, did you have anything to do with drafting this proposed rule?
    Mr. WELLS. I did not. I was still on the committee when the proposed rule was issued.
    Mr. LAHOOD If you were a committee staffer still on the committee, what would you think about it?
    Mr. WELLS. I would think the same as what I think about it now. I think it incorporates a substantial degree of flexibility for the communities involved, and it is, of course, as I say, only a proposed rule, and we are currently reviewing the almost 3,000 comments that we received, and to the extent we can incorporate additional flexibility while still achieving the safety objectives of the rulemaking, we will certainly do that.
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    Mr. LAHOOD You think it is a bit peculiar that a train would be blowing its whistle 24 hours a day going from Geneva to the City of Chicago?     Mr. WELLS. I think that would certainly adversely affect the livability of the community, and if I lived in that community, I would certainly want to do whatever I could to achieve a quiet zone in that community to prevent that from happening.
    Mr. LAHOOD. Do you think this proposed rule would mean that that would happen?
    Mr. WELLS. I think it provides a number of avenues to allow that to happen, yes, sir.
    Mr. LAHOOD. And so your response is that you do think it would be a bit peculiar and probably average ordinary people would think the Federal Government or somebody at the FRA or somebody in Congress had sort of lost a little bit of common sense to allow a train to go from one point to another point and blow its whistle for 24 hours?
    Mr. WELLS. I think certainly if that community was at all heavily populated with a number of people living near the train line that it would not make sense to have that horn blowing all the time. It would make more sense to take the actions needed to improve safety at those crossings so that a quiet zone could be established.
    Mr. LAHOOD I represent primarily a rural area, and if this rule were to be implemented, the vast majority of money would be spent in an area where they have had very few accidents, and if you look at the statistics, your own statistics, I think you would readily admit that the majority of accidents actually happen in more rural areas, areas that some of us represent. Would you agree with that?
    Mr. WELLS. I haven't actually looked at the statistics for rural areas versus urban areas, but yes, there are a considerable number in rural areas.
    Mr. LAHOOD. The truth is if you really want to upgrade crossings, you should upgrade them in areas where you have higher incidences of accidents, I believe.
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    Mr. WELLS. That is right.
    Mr. LAHOOD. If you look at some of the statistics I have looked at, I think those occurrences are probably more in rural areas than in this area that is under consideration now for this rule, where an enormous amount of money is going to be spent for areas where there have been very few accidents.
    Mr. WELLS. That may be. Those are issues that have to be resolved within each State of how they allocate their funds.
    Mr. LAHOOD. Have you looked at the Illinois plan, the so-called Illinois plan that was primarily drafted by Mr. Lipinski and the others?
    Mr. WELLS. I have.
    Mr. LAHOOD. Do you think that is a pretty fair compromise in terms of where you are in now and where maybe you would like to be?
    Mr. WELLS. As I say, we are under the constraints of the Administrative Procedure Act where we are reviewing the comments and are not really in a position to give our judgment on the validity of individual comments at this point. We need to look at all the comments and consider them together and decide what changes we should make in the proposed rule. So I guess I would beg off on making an evaluation of that particular proposal.
    Mr. LAHOOD. Can you tell me what your reaction is to the issues that have been raised by the members of Congress here that just previously testified at the table you are sitting at?
    Mr. WELLS. We are well aware that this a controversial issue. As I say, we have had a couple of hundred community meetings on this, we have had 12 public hearings, and we have gotten a lot of written comments. So the comments that were made by the Members of Congress who began the hearing were similar to the kinds of comments that we have heard at a lot of public meetings and public hearings already.
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    Mr. LAHOOD. Is it safe to say that the proposed rule that is currently under consideration probably will not look like the rule that once you weigh however, what did you say, 3,000 e-mails and letters, and then the testimony being offered here today, take the proposed rule will probably not look like the rule that is ultimately adopted?
    Mr. WELLS. I expect there will be some changes to the proposed rule. I think it is too early to assess how extensive those changes will be.
    Mr. LAHOOD. Well, is it true that your boss has purported the idea that this is something that she wants to have as sort of her legacy as she leaves the administration in a few months? I have read that and I have heard that. I just wonder if you could comment on that.
    Mr. WELLS. I think Jolene Molitoris has an extensive legacy at the Federal Railroad Administration, and I think the locomotive horn rule is actually a fairly minor part of that. I think the most important parts of her legacy are the collaborative approach to safety rulemaking and safety enforcement that she has established under the Railroad Safety Advisory Committee and the Safety Assurance and Compliance Program. I think those are the most important parts of her legacy.
    Mr. LAHOOD. So this is not a particularly big thing for her then?
    Mr. WELLS. Well, it is an important rulemaking, because it was mandated by the Congress.
    Mr. LAHOOD. It sounds like in the overall scheme of things of what you just said, there are a lot of other things she takes much greater pride in and this is not that great a deal?
    Mr. WELLS. I wouldn't characterize it that way. This is probably one of the five or so major rulemakings that we have under way at this point, along with the power brake rulemaking and the locomotive crash worthiness necessary rulemaking. We have several important rulemakings that we are working on now, and this is one of them.
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    Mr. LAHOOD. Do you have any idea when you might be making the decision about this?
    Mr. WELLS. We would like to be able to get a final rule out by the end of the year, but it is an elaborate process. We have a lot of comments to review. Even once we reach a decision within FRA about what approach we think we should take, it has to undergo review within the Office of the Secretary and at OMB. It is hard to predict how long those review processes will take. So it is difficult for us to predict how soon we will get a final rule out, but we will certainly make every effort to complete that by the end of the year.
    Mr. PETRI. There will be another round of questions.
    Mr. LAHOOD. Mr. Chairman, could I ask unanimous consent to have some questions entered into the record and then answered?
    Mr. PETRI. Of course, without objection.
    Mr. Lipinski.
    Mr. LIPINSKI. Thank you, Mr. Chairman. Welcome back, Jack. It is a pleasure to see you once again.
    Mr. WELLS. Thank you, Congressman.
    Mr. LIPINSKI. I want to say both you and certainly Administrator Molitoris have been very cooperative within the law in regards to this particular matter, and I appreciate that. I know the Speaker has expressed that to me on a number of occasions. Unfortunately, we still are not to the point where we can all agree upon everything, but hopefully eventually we will get there.
    Congressman LaHood asked you about when this proposed notice of rulemaking would be finalized, and you couldn't give him an answer. I was surprised to hear that just last week you were out in Chicago checking on these grade crossings that had whistle bans and coming to a conclusion that some of them had been abandoned. It would seem to me that before this rule was ever proposed, that kind of work really should have been done, because we have been maintaining all along that Chicago is an anomaly; where the whistle ban is in place, it hasn't increased accidents at all. Now, in my mind, at the last minute, you are coming on and saying that you checked it and it is because some of these things have been abandoned.
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    I would like to ultimately find out what you went out and checked, so I can also have people go out and check too, because at this late date, I would also like to do some investigating. So I would appreciate getting those crossings from you.
    Mr. WELLS. I have a list of the crossings and I would be happy to give it to you.
    Mr. LIPINSKI. Thank you very much.
    [The information follows:]

    [insert here]

    Mr. LIPINSKI. Also when you were talking about the crossings, you talked about the percentage of increase or decrease at whistle ban crossings. You talked about crossbuck crossings. What was the other crossing you talked about?
    Mr. WELLS. Crossings at which flashers are posted but not gates.
    Mr. LIPINSKI. OK. What about where you have two gate crossings at the present time and there is a whistle ban in place, such as exists in probably 80 percent of the crossings in northeastern Illinois; what are your figures on that?
    Mr. WELLS. As I recall for gated crossings, the whistle ban increases the accident rate by about 58 percent.
    Mr. LIPINSKI. Still 58 percent. What was the increase on the other two you just mentioned, the crossbuck and the flashing lights?
    Mr. WELLS. Using the data we had in the database, the accident rate actually was lower at the whistle-ban crossings when there were flashing lights and crossbucks. As I say, a lot of the whistle-ban crossings turned out to be closed or abandoned.
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    Mr. LIPINSKI. Could that also have anything to do with the fact that more than likely the flashing lights and the crossbucks are in rural areas where the traffic is considerably less than in a large metropolitan area such as the city of Chicago?
    Mr. WELLS. That could be a factor, yes.
    Mr. LIPINSKI. Has that been figured in at all into your calculations, the amount of traffic the crossings have?
    Mr. WELLS. In our calculation, we did a stratified analysis where we divided the crossings up into 10 different risk categories, and we compared the Chicago-area crossings, the Chicago-area whistle ban crossings, with the national crossings within any given risk category based on the predicted number of accidents, using our accident prediction formula. So we found that the whistle-ban crossings in most of those risk categories showed a higher accident rate than the non-whistle-ban crossings nationwide.
    Mr. LIPINSKI. Did you factor in there the amount of traffic that I mentioned?
    Mr. WELLS. That is right, the amount of traffic is one of the elements in calculating the risk at the crossing.
    Mr. LIPINSKI. OK. Let me stick for a moment on this. There has been some question whether or not the law that was passed would not permit two-gated crossings to be an accepted alternative. I am not saying the FRA is going to accept a two-gated crossing. I want to know from you, is it your interpretation of the law that two-gated crossings would not be an accepted alternative?
    Mr. WELLS. I would say the statute is a little ambiguous on that. The statute itself does not say anything about two-gated crossings, to the best of my recollection. I think there is some language in the report on the bill that refers to the purpose of the bill as trying to prevent people from driving around two-gated crossings, and the statute, of course, does refer to supplementary safety measures. So I think there is a suggestion there that the idea is to enhance safety beyond the level provided by two-gated crossings. But there are a variety of ways in which you can do that.
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    Certainly our supplementary safety measures involve engineering improvements, but our alternative safety measures involve things like education and enforcement, which do not involve any physical enhancement to the crossing, just education and enforcement of the people who go over the crossing.
    Mr. LIPINSKI. So, just to be perfectly clear on this, it will not be necessary for me to introduce another piece of legislation and try to get it passed into law before you have this notice of proposed rulemaking finalized, saying that if the FRA accepts in their rulemaking two-gated crossings to be a significant upgrade, you will not come back and tell us that the law inferred that you had to do more than just the two-gated crossings.
    Mr. WELLS. Well, I think the standard that applies, the standard we have used in the rule is a two-gated crossing with a locomotive horn blowing. The question we would look at is what level of safety that arrangement provides. That would be our target level of safety. Then we would try to figure out what can you do to achieve that target level of safety, and there may be ways of achieving that in ways other than engineering improvements—through educational improvements and enforcement improvements, for example. I don't think there is anything in the statute that requires any specific improvement beyond the level of safety—there is no specific reference to two-gated crossings in the statute. So I don't think we are particularly bound by the statute in our specific approach to how we do it.
    Mr. LIPINSKI. Let me put it this way, Jack. Let's go back to when I was the Ranking Member on the Railroad Subcommittee and you worked on the Railroad Subcommittee as the chief of staff over there, and I said to you, ''Now, Jack, we are faced with this dilemma over here. See, I want to make sure that everybody understands that you could get along with just two-gated crossings.'' .
    Jack, would you recommend to me putting in another piece of legislation to do that, or do you think that we are safe in accepting what the Deputy Administrator of the Federal Railroad Administration has just testified to?
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    Mr. WELLS. Well, I don't want to mislead you into believing that a two-gated crossing alone, with no additional effort—.
    Mr. LIPINSKI. Let me hold you right there. No; but if you were to determine in your wisdom that a two-gated crossing would be sufficient for safety, there is nothing in the law that was passed that said you couldn't make that determination?
    Mr. WELLS. That is correct.
    Mr. LIPINSKI. Thank you. That is enough questions for now, Mr. Chairman.
    Mr. PETRI. Thank you. Mr. Bereuter.
    Mr. BEREUTER. Thank you, Mr. Chairman. Mr. Lipinski, I think we better get on our legislator's cap as a result of the comments coming in.
    Mr. Wells, thank you very much for your appearance and responses to the question. I would say that although I was not on this committee when legislation was passed, that I think it is an example of a lack of attention to the diversity of this country and giving the regulators a very difficult task. This is the kind of issue that will catch public attention and keep it, and they will be unhappy with regulators and unhappy with Congress.
    I would like to ask you two very specific questions. First of all, I understand we received from the FRA a legal opinion from your chief counsel as of just yesterday in response to a question earlier posed this spring by the chairman and Ranking Member of the subcommittee. As I understand it, FRA says that no existing whistle bans are preempted right now, prior to the full effectiveness of the final FRA whistle ban rules, unless the bans were issued by local governments without any kind of delegation of authority by State government.
    So two questions in this area: Is this a correct summary of the FRA interpretation of the law; and, secondly, what plans does the FRA have to publicize and disseminate this information in order to bring about some uniformity of practice among the Nation's railways while the rulemaking is still pending? I do have a second question.
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    Mr. WELLS. The answer to the first question is yes, that is a correct summary of our Chief Counsel's opinion on the current state of the law. As to the second question, as to what plans we have to publicize that opinion, we just wrote the opinion yesterday, so we haven't really formulated plans to publicize it.
    Mr. BEREUTER. But you will.
    Mr. WELLS. I guess I don't have a good sense of how much misinformation there is about what the state of the law is.
    Mr. BEREUTER. I think it is considerable. I hope you will look at that as something you need to publicize.
    Mr. WELLS. Certainly, to the extent we find there is misinformation about the state of the law, we would make every effort to try to correct that.
    Mr. BEREUTER. Thank you. I would like to pursue a question that in part Mr. LaTourette focused on, but not exactly the same way. For the concept of quiet zones in the proposed FRA regulations, as compared with the language of the Federal statute itself, section 20153, the introduction of the proposed regulation, states that the proposed rule ''provides that if a community wishes to establish a quiet zone but it cannot for some reason comply with the rules/requirements for a supplementary safety measure at every crossing within the zone, it, the community, may apply to FRA with its proposed safety measures,'' for possible relaxation of the horn sounding requirement.
    This seems pretty clearly to be describing unilateral action by the local government. But if you turn to the statute, specifically section 20153(d), it says ''notwithstanding any other provision of this subchapter, the Secretary may not entertain an application for waiver or exemption of the regulations issued under this section unless such application shall have been submitted jointly by the railroad carrier and by the appropriate traffic control authority or law enforcement authority.''
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    How do you square the proposal to allow what I characterized as unilateral application for these quiet zones with the plain language of the law?
    Mr. WELLS. I think I will have to get back to you on that. I would need to read the proposed rule carefully and the statute carefully and discuss that with our Chief Counsel and give you a better answer.
    Mr. BEREUTER. All right. That would be appreciated I think by us.
    [The information follows:]


    Mr. BEREUTER. Another area I hope you will look at—.
    Mr. PETRI. I will keep the record open for 30 days for a response.
    Mr. BEREUTER. Well, I am wondering if in fact the carve-outs from the whistle sounding requirements promulgated by FRA as a part of the regulations themselves, whether or not they have the authority for those carve-outs under regulations. It seems like that the waiver of authority for FRA comes at the stage when you are issuing regulations, and I would like to present you a very specific question related to page 2243 to which I would also appreciate a response as to when your waiver authority does apply.
    You don't have enough information from me, right now I am giving, for you to address that for sure, but I would like to see if you could address that for this subcommittee.
    Mr. WELLS. Yes, I will.
    Mr. BEREUTER. Thank you, Mr. Chairman.
    Mr. PETRI. Thank you. Mr. Cummings.
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    Mr. CUMMINGS. Mr. Chairman, just looking at a statement by Mr. Kucinich, and in that statement he says examples of devices that deserve more investigation include warning light systems built into the roadway and stationary horn systems that dramatically reduce the noise impact on a community but still provide an audio warning. Can you comment on that, please?
    Mr. WELLS. We have done two studies of demonstration projects involving wayside horns. A wayside horn is a horn located at the grade crossing instead of being located on the locomotive itself, and because in the case of a locomotive horn you have to be able to hear the horn from a quarter mile away, the horn has to be louder so that people can hear the horn at the grade crossing. Since the wayside horn is located only 50 feet or so away from the motorist, the horn can be quieter and still provide the same level of warning as the horn located on the locomotive itself.
    So we had a study in Gering, Nebraska, and another study in Ames, Iowa, looking at the use of wayside horns. And normally, part of the wayside horn system is a strobe light that begins flashing when the wayside horn goes on, so that the locomotive engineer approaching the crossing can confirm that the wayside horn is, in fact, sounding because he can see the strobe light flashing. If he doesn't see the strobe light flashing, then he can blow the locomotive horn.
    Generally speaking, the results of those demonstration projects have been excellent. They have indicated that the wayside horn provides approximately the same level of safety as the locomotive horn does, and they have allowed a substantially lower noise volume than the locomotive horn does, so that people who live in those communities are very supportive of the wayside horn concept.
    At this point, we have a couple of other communities that have wayside horns in use and we are monitoring the progress of those efforts. The town of Mundelein, Illinois, is going to have a wayside horn demonstration project, and we will be tracking that as well. There are some detailed issues that need to be resolved, such as exactly what volume the wayside horn needs to be in order to provide the equivalent level of safety to a locomotive horn, that we are working on. But I think the wayside horn offers considerable promise as an additional supplementary or alternative safety measure to locomotive horns.
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    Mr. CUMMINGS. How soon do you expect that your pilots and your analysis will take, for you to come to some firm conclusions and perhaps make it a part of the process?
    Mr. WELLS. I would hope we would be able to say something about that in the final rule, but it is a little premature to make any commitments on that. But it is something that I think holds a lot of promise, and we will take a very close look at the work—at the results we have so far—to try to see whether we can resolve those detailed implementation issues that remain.
    Mr. CUMMINGS. Now, up in Chicago, there were actually fewer accidents at locations where the whistle was banned; is that correct?
    Mr. WELLS. Well, yes, the results indicated that. But as I commented to Congressman Oberstar a few minutes ago, it turned out that a number of those whistle ban crossings had in fact been closed. So we think the differential safety effect was attributable to the fact that a lot of those crossings were closed.
    Mr. CUMMINGS. My final question. The recent Inspector General's report on rail-highway grade-crossing safety recommended that DOT begin collecting better data from the States on how much Federal monies were being spent on grade-crossing projects.
    What is the status of that recommendation?
    Mr. WELLS. I would have to get back to you on that. I think that was a recommendation to the Federal Highway Administration which administers that program. I am not sure what the status of their response is to the Inspector General's report, but I will get that information and provide it to you.
    [The information follows:]

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    [insert here]

    Mr. CUMMINGS. Thank you very much, Mr. Chairman.
    Mr. PETRI. Thank you. A second round has been requested. Mr. Rahall?
    Mr. RAHALL. Thank you. Mr. Chairman, I yield my time to the gentleman from Illinois, Mr. Lipinski.
    Mr. LIPINSKI. Thank you, Mr. Rahall. Jack, back on my two gates, I have here in front of me subtitle 5 of Title 49, U.S. Code, section 20153. Would you or any member of your staff happen to have this?
    Mr. WELLS. I don't have it with me.
    Mr. LIPINSKI. I can read it to you. It would be probably easier—.
    Mr. WELLS. I have it now.
    Mr. LIPINSKI. That is a good staff man; give him a raise. Excuse me.
    20153, Audible Warnings at Highway Grade Crossings. If you read down through 1, 2, 3, you go through 3, maybe halfway or two-thirds of the way, it says, ''The following do not individually or in combination constitute supplementary safety measures within the meaning of this section: standard traffic control devices or arrangements such as reflected crossbucks, stop signs, flashing lights, flashing lights with gates that do not completely block travel over the line of railroad, or traffic signals.'' .
    You still give me the same answer you gave me before when you were on the Railroad Subcommittee and I was the Ranking Member about possible legislation?
    Mr. WELLS. I stand corrected. I misremembered the statute. I had said that the statute does not refer specifically to two-quadrant gates. In fact, as you point out, it does refer specifically to two-quadrant gates.
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    My answer would be that what the statute says is that two-quadrant gates alone do not constitute a supplementary safety measure that would allow the establishment of a quiet zone. What would be required for the establishment of a quiet zone would be two-quadrant gates in combination with something else. The something else could be either an engineering improvement, such as median barriers or photo enforcement, or it could be an alternative safety measure such as improved education and enforcement.
    Mr. LIPINSKI. So if I was going to and others were going to convince the Federal Railroad Administration that two-quadrant gates should be significant enough improvement in safety, and we convinced you of that, you still wouldn't be able to allow that underneath this law; correct?
    Mr. WELLS. Two-quadrant gates alone, that is right.
    Mr. LIPINSKI. So in order to be in a position to have, if we were persuasive enough with the Federal Railroad Administration, in order—when we convinced you of it—in order for you to allow that, we would have to pass a new law?
    Mr. WELLS. If you wanted to establish a situation where two-quadrant gates alone, without any further improvements, were sufficient for a quiet zone, I think you would have to amend the statute.
    Mr. LIPINSKI. It is part of our proposal, as you very well know, that two-quadrant gate crossings that haven't had any accidents in 5 years would be sufficient; there wouldn't need to be anything else done. That portion of our proposal would not be lawful.
    Mr. WELLS. I think there is—I would have to look over the statute, but I believe there is a provision in the statute that says that a quiet zone can be permitted where there is no safety impact associated with having the quiet zone. So I think the statute would allow us, if we found a situation where the community already had a near-zero accident record, a very high level of safety, to allow a quiet zone in that community, notwithstanding the fact that the grade crossing was equipped only with two-quadrant gates. I would have to check the language of the statute to confirm that, but that is my recollection.
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    Mr. LIPINSKI. Could you please check that and would you please get that information back to me as soon as possible?
    Mr. WELLS. I will do that. Yes.
    [The information follows:]

    [insert here]

    Mr. LIPINSKI. Jack, you also mentioned in your testimony education and enforcement, and it sounded to me like you were speaking of that very glowingly.
    Could you tell me what, in your mind or in the Federal Railroad Administration's mind, would constitute real strong education and enforcement?
    Mr. WELLS. Well, education and enforcement is a community effort. I think the key point in making education and enforcement a significant factor in reducing grade-crossing fatalities is getting the entire community together, including, of course, the legal community, the police force, and the judges.
    One good example is in Stark County, Ohio, which several years ago had the highest level of grade-crossing fatalities of any county in Ohio. And the county pulled together, it got corporations involved, it got the school system involved, it got community organizations involved, to make the whole issue of grade-crossing safety a priority for the entire community. Of course, it got the police force and the judges involved to achieve an enhanced level of enforcement of existing grade-crossing statutes.
    As a result, they dramatically reduced their level of grade-crossing fatalities, so they are now, as I understand it, one of the safest counties in the State of Ohio.
    So I think that is an example of the level of effort that is involved. As I said, our grade-crossing staff are out in Salt Lake City now, discussing some of these strategies with Operation Lifesaver State coordinators and area coordinators. I think it is important to have a very active Operation Lifesaver effort. A number of States, for example, not only have a State OLI coordinator, but area coordinators in various areas. I am not sure, for example, that the City of Chicago has an area coordinator for Operation Lifesaver. So I think that is an example of the kind of thing a community can do to upgrade its level of effort in the education and enforcement area.
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    Mr. LIPINSKI. Thank you. Jack, has the administration put any additional money into the budget, knowing that this rule was going to be implemented, in order to somewhat mitigate the expenses that local municipalities and States are going to have to undertake in order to upgrade, if necessary, their safety at grade crossings?
    Mr. WELLS. They have not put anything in the budget explicitly for that, but, of course, there is a considerable amount of funding in the Highway Trust Fund for which grade-crossing improvements are an eligible use. Some of those accounts, such as the section 130 account, are prioritized for safety purposes, and investments to achieve a quiet zone may not rank relatively high as a safety investment, as Congressman LaHood pointed out. Improvements in rural areas where you have only crossbucks may be a higher priority from a pure safety standpoint. But certainly within the Surface Transportation Program and the Revenue Aligned Budget Authority that supplements the funding in the Surface Transportation Program there is a considerable amount of funding that is not necessarily prioritized for any particular safety purpose that could be used for grade-crossing improvements.
    Mr. LIPINSKI. I don't recall any discussions, though, when we passed that piece of legislation, talking about this new rule coming into effect on train whistle blowing; so I was hoping that maybe the administration, being aware of that, would have put some additional money in, because as we heard numerous people say, this is going to be an enormous expense.
    Jack, thank you very much. Mr. Chairman, I appreciate your indulgence very much. Thank you.
    Mr. PETRI. I should note that Operation Lifesaver was unable to send a witness, but their statement will be included as part of the record.
    Are there additional questions?
    Mr. OBERSTAR. Yes.
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    Mr. PETRI. Mr. Oberstar.
    Mr. OBERSTAR. Thank you, Mr. Chairman. Jack, your testimony certainly underscores the wisdom of FRA raiding our committee to get superb talent. It is among the best agency witness testimony I have heard in my service on this committee: straightforward, factual, and candid.
    Mr. WELLS. I would like to thank my staff who drafted it for me.
    Mr. OBERSTAR. No, it is the give-and-take and the Q&A that I am talking about.
    I also want to, in response to a question raised earlier about the legacy of Administrator Molitoris, to say I think her legacy will be that of safety. As an early-on critic of the Administrator, I have subsequently seen her performance improve enormously. She has concentrated with a very high degree of effectiveness on making safety the principal priority of that agency. She has done a superb job.
    What percent of accidents at rail grade crossings is due to deliberate violation of lights or gates?
    Mr. WELLS. Something like 40 or 45 percent of grade-crossing fatalities take place at grade crossings that already are equipped with lights and gates. And while I don't think we have a good analysis of each and every one of those grade-crossing fatalities to assign a probable cause, I think it is fair to say that the vast majority of those grade-crossing fatalities have occurred because the motorist tried to drive around the gates.
    Mr. OBERSTAR. How many fatalities occur at two-quadrant gates?
    Mr. WELLS. Well, there are about 400 fatalities— grade-crossing fatalities—altogether; and, as I said, about 40 or 45 percent of those are at two-quadrant gate crossings, so that would be something on the order of 160 or 180 fatalities.
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    Mr. OBERSTAR. Even at the relatively higher standard of protection at grade crossings, two-quadrant gates, there are still one-third plus of violations of the safety measure present that, in fact, then result in fatalities.
    Mr. WELLS. Yes.
    Mr. OBERSTAR. There are devices that are less costly than four-quadrant gates, which are part of your recommendation, such as these plasticized or plastic fence-type devices that are now being used on steep highway grades to protect trucks that have an accident, have a breakdown or equipment failure, and run off the highway. These fence-type devices are of such strength, they can actually stop a runaway truck. They surely can stop a runaway car or deliberately violating the closed gate.
    Has the FRA tested the use of such devices as a means of preventing people from killing themselves?
    Mr. WELLS. We have certainly tested median barriers. Generally speaking, the median barriers fall into two categories. There are curb-mounted median barriers, where there is a curb and the median is mounted on top of the barrier. In that case, the curb represents more of an obstacle to a vehicle driving around the gates. And then there are non-curb barriers, where the barrier is more of a psychological barrier than a real physical barrier, because it is possible to drive through the barrier; but we find most people don't.
    So those median barriers, even though they don't physically prevent the driver from driving around the gates, still have a very high level of effectiveness. They reduce the accident rate by something on the order of 70 or 80 percent.
    There are also arrestor-net technologies which are not mounted in the median of the road, but are mounted in the same location as the grade-crossing gates themselves, and they are designed to prevent vehicles from driving directly through the grade-crossing gates. They come up from the street foundation and they are sort of like the arrestor net on an aircraft carrier. They physically prevent the vehicle from driving through the gate.
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    Mr. OBERSTAR. Those have been tested and—.
    Mr. WELLS. They have, yes.
    Mr. OBERSTAR. And you find them—.
    Mr. WELLS. I think it is somewhat uncertain how cost-effective they are, because I am not sure how many accidents take that form, of the vehicle literally trying to drive through the gate. There is a considerable expense to those arrester nets, and it is not clear how many accidents they would actually prevent.
    Mr. OBERSTAR. Certainly a lower-cost means of preventing a driver from going around a gate—without a four-quadrant gate—of going around the gate and challenging the train, to me has great appeal.
    Mr. WELLS. Right. Median barriers are very cost-effective. They are relatively inexpensive and do have a high effectiveness rate in preventing people from driving around gates. I think the greatest problem with median barriers is there are a number of communities that have highways laid out parallel to the railroad tracks; so that you often have a highway and a railroad track parallel to one another, and then a traffic intersection that may only be 25 feet from the grade crossing itself, so that you can't extend the median barrier very far away from the grade crossing because it would interfere with the traffic intersection. So in that situation, you would have to have a relatively short median barrier, and it is not clear whether the short median barrier would be as effective in preventing people from driving around the gates as a full-length 60-foot or 100-foot median barrier.
    Mr. OBERSTAR. I am sorry we are not going to resolve all of the issues and questions at the hearing, but just highlight them. But it seems to me there are means of assuring a higher level of safety while minimizing the noise impact on communities. I think very often—I am sure, Mr. Chairman, you have the same in rural parts of your district—there are small towns where I stay overnight, and the lonely sound of the train whistle at night is a very comforting sound. You are still in touch with civilization. But too frequently in an urbanized area, you want to be in touch with something else to douse that noise.
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    I think what you are looking for is balance, and with the wayside horn, flashing strobe lights, flexible median barrier, we can find a way to prevent people from killing themselves, is really what this is about.
    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you. Thank you, Mr. Wells. I do have a number of questions, but we have quite a few other panels and witnesses, and in order to keep things under control, I will keep the record open for 30 days and submit them in writing. We would appreciate a response.
    Mr. WELLS. Thank you. We will submit answers to those questions that I was not able to provide answers to directly.
    [The information follows:]

    [insert here]

    Mr. PETRI. Thank you very much.
    The next panel is Mr. Ed Hamberger, the President of the Association of American Railroads. We look forward to your summarizing your full written statement and submitting yourself to questions.


    Mr. HAMBERGER. Good afternoon, Mr. Chairman. Thank you for the opportunity to be here on behalf of the Association of American Railroads. We are pleased to have this opportunity to comment on the sounding of locomotive horns at highway-rail grade crossings. AAR members include all of the Class 1 freight railroads in the United States, numerous small freight railroads, and Amtrak. We operate more than 70 percent of the rail route mileage in the United States.
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    Grade-crossing safety is indeed an extremely important issue for railroads in general. Some 95 percent of all rail-related fatalities involve either grade-crossing accidents or trespassers. Grade-crossing accidents alone account for more than 400 fatalities annually. Beyond this, as Mr. Oberstar pointed out, the lives and well-being of our train and engine crews and operating employees are placed at risk by grade-crossing collisions.
    Working together, we all have made substantial progress in reducing the number of incidents and casualties. While it is still a major concern, I am pleased to be able to report to you that grade-crossing casualties have declined 42 percent since 1990.
    FRA studies do indicate that most grade-crossing incidents are attributable to driver inattentiveness, driver failure to yield the right-of-way, or simple errors in judgment in stopping and proceeding.
    There is no simple solution to grade-crossing safety. Not even introduction of active warning devices—lights, bells, and gates—prevents all accidents. In fact, almost half of all grade-crossing fatalities occur at crossings that are already equipped with active warning devices. By themselves, active warning devices do not solve the problem of driver error.
    The sounding of locomotive horns, however, does prevent grade-crossing accidents. Based on its studies, FRA has concluded that a whistle ban could result in as much as a 62 percent increase in collisions, even where the crossing is equipped with active warning devices. So there is ample justification for the congressional mandate for regulations requiring the sounding of locomotive horns.
    Simply put, fatalities would increase if States and localities had complete freedom to ban the sounding of the horn without taking additional measures. At the same time, the railroads recognize that locomotive horns are disruptive to the peace and quiet of the communities through which we operate. The FRA has also recognized this and has proposed alternative safety measures so communities could restrict their use in the future.
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    Let me just join many of you here who have paid compliments to FRA Administrator Jolene Molitoris, of course, to Jack, Associate Administrator George Gavalla, and Deputy Associate Administrator Grady Cothen for their efforts in reaching out and working not only with the railroads but with the communities to try to reach that balance that Mr. Oberstar was talking about.
    A number of communities already have such restrictions, and many of them have objected to the FRA's proposed engineering measures because of the expense involved. Recognizing their concern, earlier this year the AAR did send FRA and Congress a proposal that preserves existing whistle bans, provided certain prerequisites are met. Subsequently, Members of Congress have discussed with FRA other alternatives, based in part, we believe, on the AAR proposal. The AAR members are prepared to continue to explore regulatory alternatives with Congress, FRA, States and localities, in an effort to fashion a final rule that is both consistent with the safety objectives and minimizes the disruption to the communities that railroads serve.
    Thank you.
    Mr. PETRI. Thank you. Are there any questions? Mr. Rahall?
    Mr. RAHALL. Thank you, Ed, for your excellent summary of your testimony and your patience in being with us today.
    I think many people would agree that out of equity, the railroads should no longer be paying a 4.3 cents per gallon fuel tax for deficit reduction, which your industry has been doing for what, almost 7 years now, I guess. That is the good news.
    The bad news is that unless the law changed, it appears that this excise tax has no expiration date. At the same time, as you yourself noted today, deploying engineering measures as alternative to the locomotive horn is extremely expensive, and those expenses would be there to some degree, I would venture, even under your six-point alternative to the FRA proposal. Those costs, as you know, have traditionally been picked up by government; yet safeguarding highway-rail grade crossings, while certainly an issue of importance to highway safety, also involves railway safety as well.
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    So I guess you can see where I am going with this. Why not divert fuel taxes that the railroads are currently paying to bolster highway-rail grade-crossing safety efforts, especially if the Congress offers a date-certain repeal of the excise tax.
    Mr. HAMBERGER. I wasn't prepared for that question here today. I see Mr. Lipinski is on the panel. Thank you for bringing that up, because it really does raise a very important issue—the role the railroads play in paying for highway grade-crossing safety. We spend approximately $200 million a year on the installation and maintenance of automated grade-crossing devices around the country, so if new gates-and-lights are put in, we maintain it in perpetuity at our expense. Now, that is a major commitment of $200 million.
    But let me just draw to your attention a finding that DOT made, and this really was an issue that was kicking around for many years. Back in the thirties, there was a Supreme Court decision that indicated that grade-crossing safety was really a highway issue, and that finding was brought forward through ICC decisions, congressional hearings and DOT findings. In the Code of Federal Regulations, promulgated in the mid-seventies, the Department of Transportation found that, ''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.''
    So the fact of the matter is that while the whistles do disturb the communities through which we operate, we blow those whistles not for our benefit, we blow those whistles for the safety of the highway passengers, the highway users. So it is therefore quite properly a highway cost. Nonetheless, we do, despite the fact that there is no statutory mandate to do so, voluntarily pay the $200 million a year to maintain the systems, and in many cases around the country we have stepped forward and the railroads have put forth the 10 percent matching share or contributed to the 10 percent matching share that is required under the section 130 program.
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    Mr. RAHALL. I appreciate the response that you gave to my question, almost; but the bottom line, is it a quid pro quo? Do we exchange the— do we kick it in in exchange for a repeal of the expiration date?
    Mr. HAMBERGER. I think the 4.3 cents tax has to be looked at as a stand-alone issue. It was enacted in the early nineties to help reduce the deficit. We, along with the other modes, stepped forward and paid it. I am pleased to say the deficit is no longer around. In fact, I understand CBO today is raising its estimate of the surplus for fiscal year 2000 up to $80 billion. Our competitors in the other modes, while they pay it, it goes into their trust funds. Their trust fund pays for their right-of-way. It maintains their right-of-way.
    We don't expect, nor do we want Congress to establish, a trust fund to pay for our own right-of-way. We pay for own right-of-way, billions of dollars a year. We pay taxes on that right-of-way. So I would suggest to you that the two should not be related and that the 4.3 cents tax was enacted for a very specific public policy purpose. That public policy purpose has been achieved and it ought now to be removed.
    Mr. RAHALL. You still have three lifelines available; or is that your final answer?
    Mr. HAMBERGER. That is our policy position.
    Mr. RAHALL. Thank you, Mr. Chairman.
    Mr. PETRI. Thank you. Other questions? Mr. LaTourette?
    Mr. PETRI. Mr. Oberstar.
    Mr. OBERSTAR. Thank you, Mr. Chairman. Ed, thank you for your testimony and for the review of the history of the law on grade crossings and liability. I was the original coauthor, along with my then colleague, Arlan Stangeland of Minnesota, of the legislation to provide funding out of the Highway Trust Fund for railroad grade crossings. Initially, it was not out of the trust fund, it was appropriated dollars, and in subsequent years, the endeavor to use trust fund dollars became entirely appropriate, in light of the court ruling.
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    Railroads were there first, cars came later. Yet I think that with the available dollars, if we need more money to do this, we should increase the authorization for trust fund monies to provide that level of safety that is necessary. But with the available dollars, much of what the FRA has proposed in the way of safety measures at grade crossings can be done with existing law. Much of that can be done, and then reduce the amount of train horn noise impact on railroad neighbors.
    The proposal that you have for historic quiet zones would limit their application to those that have been in place for 5 years. What about those communities that didn't have the foresight or didn't have the experience record to impose a quiet zone? What would you do about those?
    Mr. HAMBERGER. The FRA rule does address that issue, and we support in general their thrust of having supplementary safety devices in place to take the place of the train horn sounding.
    Mr. OBERSTAR. You also suggest that communities—and I think it is very appropriate—should develop data on what you call comparative rates of compliance with highway laws and crossings. I think even FRA, in my exchange with Mr. Wells, doesn't have complete data. I should think that is a burden on small communities. It seems an entity larger than maybe the city of Chicago can do that, but even their numbers are somewhat suspect given the recent information we received this morning. So it seems to me that what you are suggesting is more a burden on communities than might be appropriate.
    Mr. HAMBERGER. Let me go back and take a look at that. The concept we are trying to get forward is there should be diagnostic teams, there should be permanent review—.
    Mr. OBERSTAR. I fully agree. It is just who should do it and pay the cost? I want to just be sure you are not passing this off on to someone who really can't afford it.
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    Thank you.
    Mr. PETRI. Any other questions? Mr. Lipinski?
    Mr. LIPINSKI. Thank you, Mr. Chairman. My first question, Ed—oh, welcome. It is a pleasure to see you here. My first question is who are the original eight teams of the All-America Football Conference? For the benefit of the rest of you, that is an inside joke.
    Mr. HAMBERGER. I remember the Titans was one.
    Mr. LIPINSKI. No, you were never too good at playing that one. Let's see if you can do better with some of the other questions I have.
    I take it, then, that the bill that I introduced that would give the railroads back their 4.3 cents at a specific date is still unacceptable to your association and to all the other railroads involved, even though what you tell me each year it is going to be repealed never gets repealed, and that money keeps going for deficit reduction, when I hear now we have, what, a $50 trillion budget surplus over the next 10 years? But you want to stick to your position and not allow us to upgrade railroad crossings for a few years for 4.3 cents?
    Mr. HAMBERGER. The way that I would prefer to state it is that our preferred option is to continue to work with the leadership of the House and Senate to try to repeal the onerous 4.3 cents tax immediately.
    Mr. LIPINSKI. If you were to work with myself and the Speaker, you could probably get a specific date to get your 4.3 cents back, and we could be doing all of this good for people across America and for the railroads also by upgrading rail crossings.
    Mr. HAMBERGER. That, I understand, is a very persuasive point of view. But we, on the other hand, are sticking to our point of view that we prefer to get it done immediately.
    Mr. LIPINSKI. Could you possibly stick to your point of view and not stick yourself in the way of the process?
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    Mr. HAMBERGER. Well, I don't know that we are sticking ourselves in the way of the process, other than affirmatively going out and pushing as hard as we can for repeal of the 4.3 cents tax.
    Mr. LIPINSKI. OK. We have spent enough time on it.
    Mr. HAMBERGER. I think we will be back on it.
    Mr. LIPINSKI. I am sure we will be.
    If this rule goes through as proposed, the railroads will have 2 to 3 years to upgrade the thousands of crossings across this Nation. Is it realistic to believe that you can do all the work that will be necessary with your manpower in 2 to 3 years?
    Mr. HAMBERGER. Assume that this rule went in as written with no grandfather clause or no special provisions for the historic quiet zones, and assuming that there were money available to do it, to address all of those grade crossings, we are not now staffed. We do not now have enough employees to accomplish the goal in the time frame outlined in the rule.
    We would obviously have to gear up and go out and hire people, but that would take time. So the short answer is probably not.
    Mr. LIPINSKI. Well, OK, if the rule was passed as is, without any modification, do you have a time frame that it would take you to do all of this work?
    Mr. HAMBERGER. I don't know that we have really sat down and addressed that. Let me do that for the record. I think we have been working on trying to come up with a proposal somewhere in the middle that would address some of the historic quiet zone issues. We have not really looked at that alternative very closely, so let me do that for you.
    Mr. LIPINSKI. Well, I have proposed to the Federal Railroad Administration that a much more realistic time frame would be a 10-year period. Do you have any comments on that proposal of mine?
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    Mr. HAMBERGER. I think the only comment I would make is somewhere between 2 and 3 and 10 there is probably a number. Ten, in just informal discussions that we have had at the working group level, seems to be a bit long. But I don't know—we do not have a formal position that says that it would be X years. So it is somewhere in—somewhere between 2 and 10 seems to be right.
    Mr. LIPINSKI. Would you say, though, that it would be critically important for us to have this information before a final rule was published?
    Mr. HAMBERGER. It seems to me that part of the entire process of the rulemaking that the FRA is going through would lead to a better understanding of how long that would take depending—pending the outcome of the historical zone discussion. But I will go back and address that with the technical working groups and get back to you.
    Mr. LIPINSKI. So the best I can get out of you at this particular time is that 2 to 3 years would not be sufficient time, but it is your opinion that perhaps 10 years might be too long a period of time?
    Mr. HAMBERGER. That was—when we, as I say, had informal discussions about your proposal, the working group seemed to think that that seemed a little long, but I do not have a specific time to give you.
    Mr. LIPINSKI. Do you have any time frame on when you might be able to give us a specific amount of time that would be necessary?
    Mr. HAMBERGER. In other words, just based on the rule as written?
    Mr. LIPINSKI. Correct. I mean, that is all we can go on at the present time.
    Mr. HAMBERGER. Within 30 days, let's say.
    Mr. LIPINSKI. Within 30 days you will let us know?
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    Mr. HAMBERGER. Yes, sir.
    Mr. LIPINSKI. Thank you.
    Thank you, Mr. Chairman.
    Mr. PETRI. I am going to submit some questions to you for response, and we will keep the record open for that.
    But I thought in fairness it might be worthwhile giving you an opportunity to respond to really the concern the industry has that is driving some of this whole issue, and that is the tort liability issue. And the fact that evidently, despite all kinds of precautions and so on, when actions do occur, railroads often get sued by individuals if they survive, or by their families if they do not. And if the whistle has not been blowing, courts have found that it then increases your legal liability.
    So even though you do not want to inconvenience the communities that you serve, you are driven by these decisions that increase your liability if you do not blow your whistle to fight some of these whistle ban ordinances. Could you discuss the situation? This may be a tort liability issue as much as it is a railroad issue.
    Mr. HAMBERGER. It clearly is, and one of the things that this kind of a regulation would do would be to provide a bright line test of where whistles should be blown and where whistles should not be blown. And what unfortunately happens on occasion is that the locomotive engineer is put in a situation of trying to, under great stress and with not much time to react, make a decision whether or not to blow the whistle or not. And, of course, then in hindsight before a jury, the railroad company can oftentimes be found liable for the action of its employees.
    So it is not only for a tort liability issue, but I would like to go back to the fact that the rule would make life much easier for our employees as well. And as long as whistle blowing improves safety, we think that there should be some sort of either whistle blowing or some supplemental safety measure to make sure that the locomotive engineers are not put in that kind of a situation. But it is a consistent problem for us in tort liability cases.
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    Mr. PETRI. Thank you.
    One other issue. Have there been any problems with the fact—of course, the railroads control their own right-of-way, and so communities need to submit proposals for changes and for putting devices in that right-of-way for sign-off by the railroads. There are delays there, so if we come in with a mandate and the railroads delay, we are imposing liability on the communities or inconveniencing the citizens, not the railroad. What can we do to ensure the railroads respond and do not delay the process if there is some mandate on communities?
    And secondly, if it is the communities that install the equipment and railroads that maintain the equipment, who is responsible when something goes wrong? Is it the community? Should they be held blameless because once they have installed it, it is the railroad's responsibility to maintain it? I mean, it seems to me there is a kind of a lawyer's dream here with different people doing different things and everyone being exposed in court.
    Mr. HAMBERGER. At risk of being reprimanded by the general counsel behind me, let me answer that off the top of my head. It is my understanding that the installation is generally done under contract by the railroad, by the Brotherhood of Railway Signalmen on a reimbursement basis. The maintenance and the operational liability rests with the railroad, and so it is our liability.
    As far as tort liability goes, all a quiet zone does is eliminate one cause of action, which is that the whistle did not blow, but there are still many other causes of action in tort law; whether the gates were operating properly, whether the lights were working, whether the line of sight was maintained properly. So there are still plenty of opportunities out there for tort lawyers to come after us. But it is our responsibility. I hope I said that correctly. How about that?
    Mr. PETRI. Very good. Thank you very much.
    Mr. HAMBERGER. I would like to take this opportunity, if I might, to thank on behalf of the industry and 11 railway unions, your leadership, Mr. Petri, Mr. Rahall, and, of course, Mr. Oberstar and Mr. Shuster in introducing 4844, the Railroad Retirement Act, which I believe will be acted upon tomorrow.
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    Mr. PETRI. That is the plan.
    The next panel consists of a number of local leaders and administrators. Led by Mr. Steve Nenonen, the city manager of Fond du Lac, Wisconsin; Mr. Thomas Coyne, who is mayor of Brook Park, Ohio; and Robert Blomquist, the mayor of Olmsted Falls, Ohio.
    Gentlemen, we welcome you and look forward to your testimony. We will begin with Mr. Nenonen.


    Mr. NENONEN. Thank you. My name is Stephen T. Nenonen. I reside at 1088 Woodcrest Drive, Fond du Lac, Wisconsin. I am the current city manager of the city of Fond du Lac. I wish to thank the Chairman, Congressman Petri and members of the committee for allowing me the opportunity to speak today on the impacts of the Swift Rail Development Act and in particular the rules related to the mandatory use of train horns in urban areas.
    In 1995, the City Council of the City of Fond du Lac passed a resolution objecting to these provisions of the Federal law that preempted local governing bodies from regulating the use of train horns within municipal boundaries. The city of Fond du Lac currently has 34 to 36 trains moving through the community each day. Although the city recently completed the closing of 14 street crossings with the abandonment and removal of the Brooke Street line, we still have 14 city crossings that run the entire length of the city that will be impacted by the mandatory horn-blowing requirements.
    The city of Fond du Lac has had a good working relationship with the Wisconsin Central Railroad. This relationship will be placed under great stress with the implementation of the new regulations mandating the blowing of horns at every crossing. A majority of the 41,000 residents and businesses will be impacted by the constant blowing of train horns all day and night through our community.
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    The proposed rules now being considered for implementation later this year do provide for an exemption to the mandatory train horn use at every crossing by the creation of quiet zones. These rules, although well-intended, provide two principal difficulties. The first is cost, and the second is timing.
    The current law places the burden of implementing the quiet zones at the feet of the local municipality. It will be the local municipality and not the Federal Government, not the State government, and not the railroad, that will pay the cost of this unfunded Federal mandate.
    In the city of Fond du Lac, these remaining 14 crossings will cost in excess of $1.3 million to meet the proposed standards and criteria for the quiet zone. Without Federal or State assistance, this cost will be directly applied to property tax increases.
    I would suggest that if the Federal mandate is to be implemented, Federal assistance to local communities is warranted. The financial burden is substantial, and it is inequitable.
    The second concern that we have is timing. The proposed rules would provide 1 to 2 years to implement the quiet zone exemption. If every municipality in the country has less than 2 years to purchase and install tens of thousands of gated crossing mechanisms, it is obvious that the current manufacturers are incapable of building and delivering such volumes of material. There must be a more reasonable time limit to comply with the quiet zone alternative.
    Your consideration of these concerns would be greatly appreciated. If you have any questions, I would be glad to respond to any of them. Once again, thank you for the opportunity to speak today.
    Mr. PETRI. Thank you. Mr. Coyne?
    Mr. COYNE. Thank you, Mr. Chairman. I would like to thank you and Chairman Shuster for the opportunity to be here this evening. I would be remiss if I certainly did not acknowledge the efforts of my Congressman Steven LaTourette, who has been most responsive to the concerns of the people of my city. I would also certainly as a Democrat be remiss in not applauding the benevolent suggestions of Congressmen Rahall and Lipinski from Chicago to try to get their railroad operators to come around to their way of thinking, and I hope you continue your effort.
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    Let me tell you a little bit about my city so that you understand that is not just a ''not in my backyard'' feeling on the part of our citizens. We were literally built by the GI Bill. There were 6,000 homes built in Brook Park between 1958 and 1966, most occupied by veterans of World War II, the Korean War and now the Vietnam War. We boasted one of the largest American Legion posts in the State of Ohio. Brook Park is the home to Ford Motor Company, two engine plants, two of the largest foundries in North America. We are a city of 8–1/2 square miles. Half of that is taken up by Ford, Cleveland Hopkins International Airport, the NASA Glenn Research Center which has the wind tunnels, so the combination of the noise between the airport, Ford Motor Company, and the Glenn Research Center certainly has not caused our people a great deal of concern. They have learned to live with that.
    I am also the home of one of the largest Catholic cemeteries in the United States, and while we have not heard complaints from the mausoleums and graves, we have certainly heard many complaints from many of Whistler's relatives, as my Congressman alluded to. But certainly people cannot even go and visit their loved ones who are buried there without hearing the rail noise.
    And we also—these people after the war worked in the steel mills, the auto plants, building trades. They were Teamsters. So the citizen of Brook Park are certainly not crybabies. They are people who have made sacrifices and are certainly hopeful to have peace in their own backyards.
    If you can appreciate since the breakup of Conrail, the once quiet neighborhoods of this community are decimated with the whistle and train noise. Our city is dissected through two residential areas the entire length of our community by CSX rail crossings. I have submitted drawings here to the committee, and if you can appreciate, we have eight of these crossings through primary residential areas. We have another three that border State Route 237. These lines service Ford Motor Company and a major General Motors plant which is less than 500 feet throughout the city. So literally at any given time throughout the day or night, as the Speaker alluded to in his district, these trains are consistent and constantly blowing through our community.
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    The only effective remedy for the citizens of our community were the quiet zones. There really is no other way short of a new technology—it may be laser technology that can signal us completely quietly—that the people ever have any resolve or peace in our neighborhood.
    And believe me, this issue is very, very important to them. Besides having the large industrial complexes that I talked about, we are also home to the IX Center, which is the largest convention center under one roof in the United States. And at the IX Center we hold some of the largest gun shows in the country, the Ohio gun collectors. In a recent home days that we had in our community—and I was reminded by many of my residents who have called with varying degrees of vulgarity over this year that a substantial number of my citizens are members of NRA, and while most of the time this would not give me grave concern, I was recently informed of what the real meaning in the Bill of Rights was, the right to bear arms. It was not necessarily to defend your house, but it was put there by our Founding Fathers to give our citizens the right, if they had quarrel with their government, to overthrow their government. I thought that is what elections were for until we had the constant sounding of these whistles.
    We need a remedy from the Congress of the United States. I am certainly very pleased to see that this is not an issue that is unique to Brook Park, Ohio, or the 19th Congressional District of the 11th Congressional District in Ohio. It is throughout the Midwest and throughout the country, and I am confident after hearing the testimony today and the concern of members of both parties of this panel that certainly there will be some remedy for our people, because certainly we need it.
    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you. Mr. Blomquist.
    Mr. BLOMQUIST. Thank you very much for allowing me the opportunity to come before the committee. And personally I am certainly heartened from everything I have heard from the Members here today, and I fully appreciate the breadth and the depth which you are examining these questions.
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    In the suburban communities of southwest Cuyahoga County, the goal is to create a corridor through the cities of Olmsted Falls, Berea, Brook Park, and Brooklyn, Ohio.
    The problems we have identified with our ability to achieve a quiet zone corridor in conjunction with our neighboring communities involve two fundamental issues. The first is identifying the supplementary safety measures which would be accepted by the FRA to be an acceptable substitute for locomotive horns.
    Although there is a threshold of statistical risk associated with each individual crossing, we feel that as the local jurisdiction, we should not only meet but exceed that measure, at least to the point that all the grade crossings in our corridor are consistent in quality.
    Our concern at this particular juncture is that there be allowances to the standards and available designs of quad gates and other measures which will meet both FRA rulemaking criteria and conform with Ohio Department of Transportation highway guidelines.
    All the grade crossings on rail line segment N293 are within 9/10 of a mile. They cross streets that are from the layout of the original village of Olmsted Falls and vary in character from a State highway to a county road to a 20-foot two-lane drive. The same applies at three grade crossings on rail line segment C061, which runs southwest to northeast and 1.4 miles through Olmsted Falls, joining at a juncture in the neighboring city of Berea, Ohio, to our east.
    Advance work has been accomplished locally with our State representatives and Congressmen, Messrs. Kucinich and LaTourette, coordinating efforts on defining the details of the tasks needed for the implementation of supplemental safety measures in our city.
    This brings us to the issue of bearing a responsibility of costs for implementing these measures. The proposed rulemaking for these measures places the fiscal burden squarely on the backs of local jurisdictions wishing to take advantage of the possibility of relief from newly acquired problems thrust upon the citizens of their communities.
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    With price tags of over $300,000 per crossing for quad gates and median barriers, my city is staring at an expense of possibly $2.1 million. This is almost 60 percent of our 1999 general fund revenues. Olmsted Falls is a small residential town of 9,000 people who pay some of the highest taxes in Cuyahoga County already. Last year we had $3.5 million in revenue, and 2.6 million of that went for labor for police protection, fire and other city services.
    Year to year we run a city with less than $800,000 in unrestricted funds, and at the end of that year we have between $50,000 to $80,000 left over. Olmstead Falls received the impact of an additional 54 trains a day on top of the 70 trains we already had prior to the Norfolk Southern/CSX acquisition of Conrail.
    The intrusion of noise from train horns, which now lasts through the day and night, disrupts the sense and sensibility of an entire town. Over 70 percent of our citizens live within 1/4 mile of a railroad crossing, enduring the noise of 110 trains every 24 hours.
    It seems unfair that in order to get relief from an action not of our causing, we must purchase peace and quiet at a price which in any 1 year would bankrupt a small city, especially since the criteria is not based solely on concern for safety of motorists in our community, but also for the safety of the operators of the railroads.
    Safety is a universal concern, and I do not begrudge the protection of anyone in my city for any purpose, but the sole burden for safety shouldn't be shouldered only by the local jurisdiction. I hope it is a priority of this distinguished panel to identify sources of funds for assisting local jurisdictions seeking relief. 4.3 cents sounded pretty good to me right now.
    Any assistance and priority to a demonstration project for implementing a quiet zone would be welcomed in Olmsted Falls, Ohio. As our tracks parallel our border with the neighboring city of Berea, a corridor in our physical jurisdiction would be a great benefit to residents of both cities.
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    The mayor of Berea, Ohio, the Honorable Joseph Biddlecomb, wishes that that point be especially noted and also sends his respects to the members of the subcommittee.
    I thank the committee for all the time, attention, and consideration on behalf of the residents of Olmsted Falls, Ohio.
    Mr. PETRI. Thank you, Mayor Blomquist. Mr. Lipinski.
    Mr. LIPINSKI. Thank you, Mr. Chairman.
    If all of you feel the same way about the 4.3 cent legislation, what I suggest that you do is contact the railroads that run through your cities and towns and villages and tell them that you are on board for taking the 4.3 cents of diesel fuel tax that now goes into deficit reduction and turning that over for a few years only to upgrading all grade crossings in this Nation. Railroads would be doing a great patriotic service to the citizens of this country, and helping themselves out, by the way, also, if they would agree to this legislation.
    I appreciate you coming here and testifying today. I know that this is a big problem for you. It is a very, very big problem for us in northeastern Illinois. And I believe that ultimately we will get some relief from this original notice of proposed rulemaking. Hopefully, it will be significant enough relief that we will all be able to work together, cooperate together and improve safety, and also improve peace and quiet for all our citizens.
    I do not have any questions, Mr. Chairman.
    Mr. PETRI. Thank you.
    Mr. LaTourette.
    Mr. LATOURETTE. Thank you, Mr. Chairman. And I want to thank Mayor Coyne and Mayor Blomquist for traveling all this way to come share their thoughts today.
    And just to both our mayor friends, the FRA testified a little earlier about photo enforcement and public awareness. They were calling it the three E's: Education, enforcement and engineering.
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    In either of your cities I wonder—I don't know if either of you have mayor's courts—how many tickets do you give out for running crossings, if that is an often-cited event by your police agencies, and if you have given any thought or planning to some of the photo enforcement that is available and beefing up enforcement for people that run lights.
    I know in other countries around the world, when someone runs a gate, they put them in jail. Here we go to ''Dewey, Cheatum & How'' in the Yellow Pages and try to find a trial lawyer to sue the railroad or make somebody aside than yourself responsible.
    Mr. COYNE. Congressman, I do have a mayor's court, I have a magistrate, because of some of the decisions that were made in our State. Because we are by Hopkins Airport, it is more often than you think. Mr. Milstein, who just passed away recently, some years ago his wife at the time was killed at the Engle Road crossing. He was rushing to the airport, and she was behind him and tried to cross with the gates.
    I would agree it is a combination of things. I think we have to have the proper gates, the photo enforcement and the education. So I think it is all three things, but as you know, I do not have to tell you, I don't think anyone envisioned the major problem with the breakup of Conrail was ever going to be the whistles. Everyone thought it would be something else. This is a major, major problem.
    Mr. BLOMQUIST. Yes, sir, we do not have a lot of tickets written for crossing illegally on the railroads. A lot of times our crossings are blocked, as you well know, but that is another question. However, in our city we looked, myself, members of the council, and as we understand the proposed rulemaking, a lot of our crossings we already have the two-quadrant gates. And we did take that to mean that those were insufficient, because if you look down how they kind of put things together, they said if you have a whistle ban, you automatically have to assume that your accident rate will go up directly 62 percent. So you have to go down the FRA's menu of mitigation measures. And, as we take it to mean, as you add those to the crossing, you will get various degrees of efficiency and protection, and you need to get back up to a certain value that you would have had had you not had a whistle ban.
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    That is all well and good, but in the column right next to those are the price tags for these options, and that is what becomes staggering, along with trying to modify and fit some of those options into the basic physical layout of your jurisdiction.
    Mr. LATOURETTE. Is that where that $2.1 million figure came from that you gave?
    Mr. BLOMQUIST. Right. Roughly they say 300,000, $325,000 to install quad gates. We have seven crossings. That is where I got that figure from.
    Mr. LATOURETTE. OK. Earlier when Mr. Wells was testifying, I think he talked about—how many crossings do you have in your city, Mayor?
    Mr. BLOMQUIST. We have seven.
    Mr. LATOURETTE. He talked about there appears to be some menu of options that may be under the FRA rulemaking where quad gates are one, and median is another, and just a couple of other gates at others. And so hopefully they will exhibit the flexibility that they advertised here and make it a possibility.
    Mayor Coyne—.
    Mr. BLOMQUIST. Well, sir, I am sorry to interrupt. I did not want to lose a thought, but certainly my thought was to things we heard earlier this morning about the redirection of very needed funds for safety enhancement to perhaps more rural areas of the State where accident rates are higher. You mentioned there were two studies done, one in Florida, that the FRA buys into those numbers, and then in the city of Chicago.
    In our city we have only had two accidents in the last 25 years, and one of those was not an accident, but a deliberate pedestrian interference with the train. And perhaps some thinking can be done to, if your accident rates are there, and you impose a quiet zone, and your accident rates do not go up, perhaps we could avoid a lot of expenditures. We do not need to make them.
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    Mr. LATOURETTE. As I understand the rulemaking, Mr. Wells is the expert, and maybe you can chat with him, but there are not only upgrades at certain crossings, but also a recognition of crossings where there haven't been any difficulties for years, and a proven safety record is taken into consideration.
    Mayor Coyne, you are known for a Democrat as being very thrifty and saving the city's money.
    Mr. COYNE. You are not making a comparison between you and I, are you?
    Mr. LATOURETTE. No, I won't make that comparison, but if this rulemaking were to go into effect, how much time would it take for to you make Brook Park shipshape if you were granted this authority today?
    Mr. COYNE. Thanks to your effort, not very long, because at a major crossing, because of your efforts, we will have the funding to put a grade crossing there. And, again, because of your efforts, we have funding that we can address certainly a substantial portion of the gated crossings.
    Now, as the gentleman testified here today—I don't recall who—about these plastic barriers that they could put in the intersection, as you know, all the communities in your district that are affected are getting inundated with these suppliers that have all of these wonderful ideas. I would agree with Mayor Blomquist, we were looking at 250- to 300,000 a crossing, and I had a group of people come to me and gave me an analysis that I could do most of my crossings for less than 100,000 if I use those. Now, are those acceptable? I don't know.
    So as long as we have the ability of several options, this could be relatively inexpensive, but I think for most of the cities that are affected, they are small cities that do not have the wherewithal. As long as they are liberal in their application of their rules, there is a lot of combination of the accident experience and those kinds of things, it could work quite easily. For the crossings that I have, because most of them affect either major industrial centers or the airport, I would feel most confident in installing the maximum because of the liability issue. That is basically my response.
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    Mr. LATOURETTE. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. PETRI. Thank you.
    Mr. Nenonen, as you know, in our area, much as in Illinois and several other areas in the country, we have 150-year-old now towns located along rivers with railroad tracks running right through the town and dozens of crossings. Trains are often running, doing switching operations or moving rolls of paper in and out all night long. And, frankly, some of these towns, Menasha is probably the biggest example, Little Chute, Fond du Lac, Oshkosh, this would fall on the local property taxpayer, relatively small base, otherwise people are going to have to move out of town or not sleep in town because the whistles will have to run continuously all night long unless something is done about this prospect.
    I have a couple of questions about your ideas about how to get out of this. One is shouldn't we be focusing not only on protecting crossings, but also limiting—eliminating crossings entirely? A number of programs in our area are trying to eliminate whole stretches of railroad, move them out of town or consolidate them. Does it make sense to give communities credit if crossings are eliminated, for example, or additional time, or some incentive to attempt to work with railroads to reduce the number of crossings either by eliminating duplicate rail or putting in separations, grade separation, which is ideal? Then there is no possibility you are not trying to protect the cross, you are just eliminating the possibility really of accidents.
    And secondly, as a Federal Government we have mandates in a different area, and this was Citizens With Disabilities Act, where there are lots—and States have similar laws where there are specific requirements, but they are allowed to be phased in; that is, you do not need to make a change until you are making an improvement to that facility, and then you are to do it up to the new standards. Does not that seem to offer prospects, especially in older towns where they do have long-term programs to upgrade different streets and improve them, to do this on a phased basis rather than attempting to do something which is impossible anyway, and that is to fix all of these problems in this area all at once? Could you comment on those, any of you, really?
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    Mr. COYNE. Mr. Chairman, first of all, do you think I could get the White Sox to stay in those communities where the trains are running constantly and we could close the gap in games with the Indians? That would be helpful if we could do that.
    In my instance, we could not abandon or close any crossings. Two of the major rails service Ford Motor Company, which is one of the largest employers in our county, and General Motors. The other set of tracks runs parallel to the airport, which provides a major resource for the Amtrak. So in my instance, we could not close crossings.
    We have, because of Congressman LaTourette and the kindness of this committee—were provided the funds to build a major grade separation on Snow Road, which is a main artery in the western part of our county. The other ones, we are going to have to gate those crossings, because, again, these are where the people travel to go to Ford, to go to General Motors, to go the IX Center, to go to Hopkins Airport. So that would not really apply.
    It would be nice in some instances when we are making major improvements that we could delay those until that time. That is a consideration that may affect my other communities. The other instances would not apply.
    Mr. PETRI. The grade separations are important not only for safety, but for fire protection and hospital and so forth. Trains going through town, and it happens frequently, affects the ability to provide safety in a lot of areas.
    Mr. COYNE. Actually this breakup, the Snow Road grade crossing, we had four firehouses for 22,000 people. Now we have three. This literally cut our city in half for fire and police protection. So the positive part of this breakup, we were able to secure the funds to do that, and we thank you for that.
    Mr. NENONEN. Congressman, I concur with some of your comments. In reverse order, phasing in is a good concept, and it has worked effectively with our program of handicapped ramp construction for sidewalks, for example. As we do repairs to intersections or streets, sidewalks or curbs, those sidewalk intersections are ramped as part of those improvements.
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    It takes time to cover the entire community, but we have substantially changed all the sidewalk ramping at intersections over time, and it is through a normal maintenance program. Unfortunately the law that is proposed now would not allow a phase-in because there would be almost immediate implementation of the regulations and the penalties for not obtaining the exemptions.
    In reference to the grade separation, that is one of the best solutions that you can have. It eliminates the conflict altogether. We have in Fond du Lac initiated a project on Johnson Street, which is State Highway 23, of building an overpass over not only the railroad, but the Fond du Lac River. That is approximately a $25 million project. It is difficult to expend that kind of money for every crossing, and you have to prioritize based upon volume and ability to pay.
    Certainly, the elimination or consolidation of rail is also an opportunity that eliminates the number of points of conflict. We have just this year closed the Brooke Street railroad line, which eliminated 14 crossings. We still have 14 crossings on the mainline. The City of Oshkosh has also successfully consolidated railroad lines, but, once again, that is a very time-consuming and a very expensive proposition. And Fond du Lac, an entire new railroad trestle had been constructed to do the consolidation on Brooke Street. Once again, that is not something that could be done in a short time frame which has been provided for in the law, and that is one of the issues that we have concern with.
    Mr. PETRI. We thank you all for your testimony, and I do hope that you and your associations continue—and colleagues, even though they couldn't be here today from back in Ohio or Wisconsin or Illinois, be willing to comment and give us your input as we work our way through this issue. We all are sensitive to the need for safety, but we are also wanting to be reasonable and practical and do something that actually improves the situation rather than creates maximum confusion, which is the potential here if we don't get this right. Thank you very much.
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    The final panel consists of Judith Rice, the commissioner of the Chicago Department of Transportation; Miguel d'Escoto the deputy chief of staff of the office of Chicago's mayor; Rita Mullins, mayor of the village of Palatine; and Joy Schaad, director of community liaison, Chicago Area Transit Study; and Richard Mathias, who is the chairman of the Illinois Commerce Commission.
    We welcome you all. You have been very patient. We look forward to your testimony, beginning with Commissioner Rice.

    Ms. RICE. Good afternoon. My name is Judith Rice. I am the commissioner of the Chicago Department of Transportation. I am here on behalf of Mayor Richard M. Daley to give testimony on the FRA's proposed train whistle-sounding rule. We appreciate the opportunity to speak to you today.
    Our thanks the Chairman Petri and the members of this committee for holding these hearings, especially Congressman William Lipinski, who, along with Speaker Hastert and others, has worked so hard to help Illinois with this proposed rule. CDOT's responsibility includes managing the interface of our extensive roadway and railroad systems. Public safety is the city's most important consideration.
    Chicago is the most dependent city in the Nation on railroad operations. Half of the Nation's rail freight is handled in the City of Chicago. We must ensure a safe and reliable rail crossing system. We pursue this objective in partnership with the Illinois Commerce Commission.
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    Illinois' rail safety awareness and grade crossing protection programs have proven to be very effective and have helped to dramatically reduce accidents in the City of Chicago and the metropolitan region. Between 1988 and 1999, the ICC invested $46.5 million to upgrade 96 grade crossings in the city of Chicago. During the same period, annual grade crossing collisions in the city declined by 67 percent. This occurred while train traffic increased significantly and while auto and truck traffic went up by 45 percent.
    While this is significant, more must be done. We welcome Federal programs that assist us in making grade crossings safer. However, we have carefully studied the FRA proposed rule and believe that it cannot be effectively implemented in Chicago without actually reducing safety at high-risk crossings. As proposed, the rule will, in fact, divert resources away from improvements at high-risk crossings to funding noise abatement efforts at crossings in residential areas. The public will demand it. The result will be increased safety risks.
    In addition to safety and quality of life issues which are further addressed in our written testimony, I would like to talk for a moment about the impracticality of implementing this rule in the proposed time frame and with the limited resources available.
    If the proposed rule goes into effect, four-quadrant gates will have to be installed to maintain whistle bans at most the 237 affected crossings within the city. We believe that this would be the only practical solution to the whistle-sounding problem. The long-term cost of community-based solutions and the uncertainty of their sustainability, along with the changing nature of traffic volumes, travel patterns and train volumes will necessitate engineered solutions. Using ICC unit cost estimates, we expect that this will cost up to $90 million for the city of Chicago. If Government Accounting Office estimates are used, the cost will be more than $200 million.
    It is relevant to note that the primary safety problem with railroad operations is not vehicular collisions, but accidents involving pedestrians and trespassers to railroad rights of way, a problem which this rulemaking does not even address. Given the magnitude of the effect of this proposed rule, effective implementation could not possibly take place within a 3-year time frame as proposed. An annual program of $30 million plus is huge, even for a city the size of Chicago.
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    Carried to the national level, we do not believe that there are enough qualified engineering resources to custom-design the necessary improvements at each of the thousands of crossings, much less carry out the construction. The ICC tells us it typically takes a minimum of 18 months to 2 years from the time the Commission issues an order to the completion of construction. An extraordinary circumstance would arise if hundreds of orders were issued for improvements. The work could not be done in that time frame.
    Other engineered solutions are of limited applicability. At best, it is estimated that median barriers would be practical at only 39 of the city rail crossings. What is more, there are very limited opportunities for conversions to one-way streets or actual street closures without violating good traffic engineering practices.
    We are very supportive of the efforts to enforce existing grade crossing restrictions and promote safety awareness. More can be done in this area, and we are working with Senator Durbin to identify areas of need and implement those improvements. However, it is unlikely that increased law enforcement and public awareness campaigns alone, as suggested by the rule, will be sufficient to provide us with any certainty that we will achieve permanent quiet zone designation.
    The city of Chicago is totally committed to improved safety at railroad grade crossings. I do not wish the concerns that we express here today about the practical problems of funding and implementation to be misconstrued an indifference to safety. It is not.
    We have joined with our other colleagues from Illinois to present testimony which in its totality provides this committee with a complete and accurate picture of all the issues associated with this proposed rulemaking. While we are submitting more detailed and comprehensive comments on the proposed rule in writing, our primary recommendation is that the rule be modified to provide a mechanism that allows the grandfathering of existing quiet zones under ICC oversight; modification of the rules to facilitate the establishments of new zones; and extended time frame to implement the requirements and financial support to implement the necessary and costly improvements.
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    Once again, thanks to this committee for our opportunity to comment. We welcome a chance to work with the Members of Congress and the FRA to forge a safety program that will truly serve the interests of the Chicago public.
    Mr. PETRI. Thank you, Commissioner.
    Mr. d'Escoto.
    Mr. D'ESCOTO. Good morning, Mr. Chairman. I would like to thank you today for giving me the opportunity to speak before you on this very important issue to Mayor Daley and the city of Chicago. As you may recall, I had the distinct pleasure of speaking with you in April when you, Congressman Oberstar and Congressman Rahall attended a meeting held by Congressman Lipinski on behalf of the Chicago City Council to discuss the issue of train whistles.
    My name is Miguel d'Escoto, deputy chief of staff to the mayor, Richard M. Daley, mayor of the city of Chicago. I am here with Commissioner Rice to express to you the city of Chicago's concerns with the Federal Railroad Administration's proposed rule on railroad horn-blowing. In order to realize our concerns regarding this rulemaking, it is important to understand Chicago's unique relationship and history with respect to the railroads.
    Chicago is not only the hub of America's freight transportation system, but the hub of American's railroad system. One-half of the Nation's freight passes through Chicago, and all Class I railroads, with the exception of the Kansas City Southern, pass through Chicago and have major yards within or adjacent to the city's boundaries.
    Over the past 150 years, the growth of the railroads have been concurrent with the growth of Chicago. With the possible exception of Lake Michigan and the Chicago River, the railroads have done more to shape the face of the city than any other feature.
    Chicago's neighborhoods grew up around Chicago's depots, yards and rail corridors, which in turn formed the boundaries of our neighborhoods and communities. The importance of the rail industry in relation to Chicago's past and future growth cannot be overstated or overlooked, and Chicago recognizes this. However, as the railroads and city work to maintain our independent interests, we continue to look for peaceful coexistence. This proposed rule makes that coexistence increasingly difficult. Therefore, the city of Chicago has many concerns about the proposed rule, given the significant negative impacts it will have on Chicago residents.
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    First, and most importantly, the proposed rule in its current form will severely impact the city's ability to continue a safety program that has proven results. The program that Illinois currently has in place has demonstrated that it works in promoting safety while at the same time providing a noise-free environment for Chicago residents.
    That is our challenge and our obligation to Chicago's residents, to keep railroad crossings safe yet noise-free. Even the FRA, who identifies Chicago as an anomaly, recognizes that Chicago's safety program is effective. However, if the city is forced to perform upgrades on all of its rail crossings over a very short period of time, our budget to address the most dangerous crossings will be crippled.
    Secondly, if this regulation goes into effect as written, Chicago will be overwhelmingly the most adversely affected city in the United States with approximately 237 whistle bans in jeopardy. Our Department of Transportation believes that the FRA's impact estimates are significantly underestimated. It is our belief that over 340,000 Chicago residents will be severely impacted by the noise generated by train whistles.
    Where will perhaps the biggest impacts take place? Low-income areas on the south side of the city where a significant amount of rail activity takes place, that is where it will happen. With rail traffic in Chicago on the rise, some communities on the south side will be subjected to the piercing sound of train whistles almost 100 times a day; 100 trains blowing whistles at one crossing all day almost every day. The mental stress and strain on our residents will be unimaginable.
    Areas like this, such as the one I just described in the Englewood area of Chicago, are areas that the city is committed to and in the process of revitalizing. Obviously, this proposed regulation will make our efforts nearly impossible because of the insufferable noise pollution concentrated in areas such as this.
    And high-traffic areas are not just limited to certain sections of Chicago. Without those bans in place, railroad and train engineers will be forced to blow train horns continuously mile after mile through neighborhood after neighborhood, section after section of the city. Crossings along many lines are located so closely together that the train engineers might as well tape the horn button down. There will simply be no break in the noise.
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    As Commissioner Rice has mentioned, we have been working closely with Speaker Hastert and Congressman Lipinski to find a reasonable solution for Chicago, Illinois, and the Nation. Taking in the concerns of the Federal Railroad Administration, the railroads and our communities, we believe that the ''Illinois proposal'' will accomplish the goals of maintaining safety while protecting the quality of life for our citizens.
    And before I close, I would like to echo Congressman Lipinski and invite the FRA to share with us the locations where they were earlier at this week in terms of checking some of these crossings, as we were not notified prior to them coming out and we were not able to join them on any such look. So we could check those crossings along with you, Congressman Lipinski.
    In closing, I would like to say I thank you, Mr. Chairman and Congressman Rahall, for your time and commitment to this issue, and I look forward to continuing our close work with Speaker Hastert, Congressman Lipinski and the transportation committee to enact the best solution possible. Thank you.
    Mr. PETRI. Thank you.
    Mayor Mullins.
    Ms. MULLINS. Thank you, Chairman Petri, members of the subcommittee, especially the three distinguished members of the Illinois delegation, Speaker Hastert, Congressman Lipinski and Congressman LaHood. I thank you very much for the opportunity to address the subcommittee today on this very important issue.
    My name is Rita Mullins, and I am here today the mayor of the village of Palatine, Illinois, a suburb northwest of the city of Chicago, and as president of the Northwest Municipal Conference. As mayor of Palatine, I represent nearly 70,000 residents, almost one-quarter of which would live within 1/2 mile of our railroad crossings.
    Palatine, where quality is a way of life, was incorporated 1866 around a train station, and we were proud to have built our community in harmony with the railroad. We host the second largest community ridership on the line. The Northwest Municipal conference is an association of 50 municipalities and suburban townships in the Chicago area, representing a population of more than 1.3 million people.
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    I have four brief points on this issue. The first point is that the goal of improving safety at the Nation's at-grade railroad crossings is foremost on the minds of local elected official in the Chicago area. When you live in a railroad hub of the United States, you grow up respecting the dangers a railroad crossing can pose. As mayor of a community with eight at-grade crossings, all with two gates, lights, and bells, this respect is accented by the responsibility to keep residents safe from harm.
    As a result, Mr. Chairman, the village of Palatine and local governments in the Chicago area have taken remarkable strides to improve safety at rail crossings. We have worked with the Illinois Commerce Commission to upgrade safety technology at crossings to state-of-the-art systems. We have increased man-hours from our police departments to more ardently enforce existing laws that punish those who choose to go around downed gates. And we have worked closely with Operation Lifesaver to education adults and children about the danger of taking lives into their own hands at the crossings.
    The second point that I would like to make, as elected officials we are being asked to strike a balance between enhancing safety and preserving residential quality of life. With more than 1.2 million residents living within a quarter mile of public grade crossings in northeast Illinois, it is no wonder why residents are so concerned. In some locations 150 or more train pass by their homes per day, 24 hours a day. My house is a half a block from the station and one block from two crossings.
    In 1988, the State of Illinois began requiring the sounding of train whistles at every crossing. While the State had safety in mind, in the wake of huge resident backlash and a subsequent restraining order on whistle-blowing, I believe Illinois acted responsibly by empowering the Illinois Commerce Commission to issue safety-oriented guidelines for voluntarily silencing horns.
    Since implementing this program we have seen nearly a 60 percent decline in grade crossing accidents in Illinois in the past 12 years. And if the FRA-proposed rule were to go into effect today, trains would be sounding their horns in Palatine, and the horn would remain sounding almost constantly for 20 miles to its destination in Chicago. This would happen on an average of 70 times per day, impacting hundreds of thousands of residents within blocks of the crossing, creating noise pollution.
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    My third point concerns conflicting Federal policies between different Federal agencies. In order to clean our air, reduce auto congestion and improve quality of life, several Federal agencies, including the EPA, HUD and the Federal Transit Administration, are encouraging transit-oriented development. The idea behind this type of development is to get people out of their cars and to bring residents closer to train stations so that they can use mass transportation and so that downtown revitalization can occur.
    At the same time, the proposed train rule in effect is discouraging the development community and our residents from locating around transit. Would you want to buy a $250,000 condo with the potential of having the noise equivalent of being in the United Center during a rock concert around the clock? That is 111 decibels.
    This brings me to my final point. What we are talking about here at the most fundamental level is an issue of Federal preemption. The State of Illinois and local governments have successfully developed a safety program tailored to unique conditions within the State. A one-size-fits-all solution to railroad crossing safety is not the best policy when nearly half the crossings targeted by the FRA in its proposed rule are in Illinois.
    The effect of the proposed rule will be to dismantle the successful safety program by preempting the Illinois Commerce Commission's authority. It is for these reasons that the mayors of the Northwest Municipal Conference suggest that the ''Illinois proposal'' supported by House Speaker Hastert and Congressman Lipinski be implemented as a substitute for the unworkable FRA rule.
    In Illinois, the three FRA proposals are not able to be implemented either because they are prohibited by the ICC or they are not cost-effective. And as a municipality, I am responsible for five things: fire, police, water, sewer and roads. I am unable to plant a rose bush next to the tracks, much less alone install median and gates. It seems to me that the FRA should be as concerned about the taxpaying homeowners as they are about the errant motorists.
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    I would like to thank you again, Mr. Chairman, for inviting me to address this subcommittee on this important matter, and I would be happy to answer any questions later.
    Mr. PETRI. Thank you, Madam Mayor. Ms. Schaad.
    Ms. SCHAAD. Thank you, Chairman Petri, members the committee, for hearing this important testimony today. And our special appreciation as well to Speaker Hastert, Congressman Lipinski and other members of the Illinois delegation who have taken extraordinary care to look into this issue in detail.
    I am Joy Schaad, the director of community liaison for the Chicago Area Transportation Study, or CATS. CATS is the MPO for the six counties of northeastern Illinois. CATS has submitted official comments on the difficulties and the impacts of the proposed rule, as well as some concerns about the state of the data and research underpinning the rule, but we are not going to go into that today. If you would like copies—in fact, since we have 30 days, we will go ahead and submit those to the committee.
    You have already heard quite a bit on the aspects of the difficulties and the costs of implementing the proposed rule, so I am not going to reiterate here, but I would like to give some other factors for clarification. You have heard this rule proposed as a $500 solution to a $2 problem, and it is not to say this is not an important problem, because that is not what anyone in Illinois believes. But the previous speakers have discussed the size of the solution, and I will put into perspective the size of the problem. I have got some helpers here to help me with some graphics we brought that I think illustrate the point.
    I don't know if you can see at that distance, the 9,000 at grade crossings in Illinois are shown in green on that map, and I don't think that the packets that we sent ahead made it to you. So you will get those shortly.
    The railroad crossings that are shown in red are the ones with the whistle bans. We have 2,000 at grade crossings in northeast Illinois, and 96 percent of the whistle bans that FRA has identified in Illinois are in the Chicagoland metropolitan area. FRA identified 9 percent of all of our crossings as having whistle bans. Illinois is a very railroad-intense area, and in northeast Illinois, we have 1,700 trains a day on those lines. So any proposed rule will impact a large number of the region's residents.
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    The second map there shows the 899 rail crossings with whistle bans in Illinois, with 866 of them in northeast Illinois shown with quarter-mile and half-mile circles around to show impact areas, so you can see on the major lines there are several areas where a train whistle would blow from one end of the county to the other.
    Northeast Illinois is also more intense in land development and travel activity than most of the U.S. Our average population density around grade crossings with whistle bans is about 9,000 people per square mile. The U.S. Census definition of urbanized area is 1,000 people per square mile, so not only is it a long way from rural, it is nine times over that standard. So it makes sense that there is that kind of concern.
    The tremendous number of trips made on our region's highway system, almost 20 million every day, is also ever-increasing. Therefore, it would not be surprising that Illinois has a more significant number of collisions at highway rail grade crossings than most States. You may have heard of Illinois as referred to as having the second or third worst rail crossing safety record in the U.S. However, when the statistics are normalized for the number of crossings and the rail and vehicular traffic over them, Illinois ranks as the 29th most dangerous according to FRA's annual report for 1998 of rail safety statistics, so in other words, Illinois is in the top half for safety, probably 20th or 21st.
    But let's look closer at the safety problem in Illinois. In northeast Illinois, 1,800, or 93 percent, of the public crossings have not had a fatal collision in the last 12 years. In those same 12 years, 70 percent of the public crossings, 1,352, have not had a vehicle-train collision at all. This begs the question: Is the situation getting worse, or is it pretty good and getting better?
    Well, looking at the next exhibit to show the trends, the long-term trend in Illinois since 1972 is a 77 percent decline in collisions at grade crossings. In the 12 years depicted on the graphic, the decline has been 59 percent, with a record low number of collisions of 177 in 1998 and 1999. This improvement is much more dramatic when the effect of increasing rail usage and vehicular traffic is considered.
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    Highway traffic has increased by almost 45 percent since 1980, and rail traffic has also gone up by about 45 percent since 1980, measured in revenue-ton miles. The combined effect of the rail and highway traffic is an almost doubling of exposure, yet we have reduced the incidents by 60 percent. I think this is a dramatic record that we can point to.
    But let's look closer at the instances of collisions caused by drivers consciously avoiding activated warning devices. This is the primary behavior which the proposed rule aims to prevent. We have a graphic on that as well.
    This bar chart that shows that the category of this type of driver behavior has had a dramatic reduction, a 60 percent decline since 1988, in percent of collisions which are caused by people driving around gates. Because the rate of collisions is also going down, it is more clear if you look at the raw numbers instead of percentages. The number of instances of this behavior being the cause of a collision has gone from 185, 12 years ago, to 30 in 1998. The charts show this is a consistent trend, this is not an anomaly; and the ICC is going to talk more about the efforts that have gone into improving our safety record this way.
    One last note for perspective: In 1995, 450 people lost their lives in vehicle-train collisions in the U.S., a horrible statistic. However, this rule is targeted at the 2.1 percent of collisions that occur at whistle-ban crossings. This entire rule addresses only those crossings. I want to point out for the record that I have a typographical error in the written materials previously submitted which indicate 2.1 percent of crossings, it is actually 1.7 percent of crossings in the U.S. that have whistle bans.
    The draft EIS for the proposed rule identifies the safety benefit as an average reduction of three fatalities and 39 injuries nationally per year. So of the 450 people who may have lost their life in a typical year, this rule is predicted to reduce that by three, because 98 percent of crossings are not addressed by this rule, and some of those are the most dangerous.
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    We in Illinois are not saying we should not take rail crossing safety seriously. We are saying, looking at the broader picture, you can find ways to improve crossing safety much more dramatically and more efficiently than this.
    Summing up, in the past 12 years, 70 percent of our crossings were collision free and 92 percent experienced no fatalities. Since we cannot grade separate every crossing, the ideal solution—and since collisions occur at a small number of crossings, we believe a targeted program based on upgrading high-risk crossings without gates by adding gates and by providing incremental improvements to other high-risk crossings already equipped with gates is the solution for Illinois. This is a program already being implemented by the ICC and IDOT with an annual investment of approximately $36 million statewide. The investment went up for this current year to over $100 million, and combined for that 12 years, it is a half-billion dollar investment in Illinois for rail safety.
    We urge your support for the Illinois delegation's proposal that the draft rule be significantly modified to grandfather in existing safe, quiet crossings, increase the flexibility of alternatives to whistles, ease the quantitative data and analytical procedures, the monitoring, the 16 weeks of baseline monitoring, increase the time allowed to install devices to up to 10 years, and provide supplemental funding. Bottom line: Permit Illinois to continue its own already proven effective program with as little disruption as possible.
    If time permits, I would like to make some comments on problems with median barriers, because that has come up quite a bit, and a little bit on the data and statistical problems underlying the rule.
    Mr. PETRI. Thank you. Mr. Mathias.

    Mr. MATHIAS. Thank you, Chairman Petri, Congressman Lipinski and members of this subcommittee. I am Richard Mathias, Chairman of the Illinois Commerce Commission, one of the State of Illinois agencies that is vitally concerned with enhancing railroad grade crossing safety. As you know, I filed formal comments with the committee and therefore will give you the Cliffs Note version of those comments.
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    I would note that the prior speakers, many of them from Illinois, have noted there has been a reduction in grade crossing accidents and deaths over the past several years. Illinois certainly has experienced that and that comes about through the efforts of a number of agencies, both State and Federal; and I would also note, in particular, the efforts of the FRA. We are most appreciative of their efforts.
    I would also note the prior speakers have commented upon the increased amount of appropriations and spending which have taken place in Illinois and other States. Congressman Lipinski and I were at a hearing in La Grange earlier this year, and he noted the substantial increase in funding, certainly in Illinois, as again in other States.
    I have a simple message, and that is this: As a result of implementing the proposed rule, we are concerned at the Commission that Illinois and other States may be requested to divert funds to meet a Federal mandate to upgrade crossings which are technologically safe, but which would be subject to the new whistle-blowing requirements.
    Furthermore, it would be expensive. Some have estimated that in order to cover this unfunded Federal mandate, it would cost several hundred million dollars to institute the reforms which are suggested.
    We are concerned that our data in Illinois show that the crossings which carry 2 percent of the traffic experience 33 percent of the accidents and 40 percent of the deaths—2 percent of the traffic, 33 percent of the accidents, and 40 percent of the deaths, and these grade crossings are almost universally grade crossings at which whistles are blown, but which are cross buck crossings. Those are the priority crossings in Illinois where we would like to spend a tremendous amount, or substantial amount, of money to upgrade those crossings.
    Our simple concern is this: If train horns begin to sound in highly populated areas, there will be such a public demand for the Commission in Illinois, as well as comparable commissions in other States, to shift its projects from safety to noise reduction, to shift its resources away from upgrading more dangerous rail crossings, and diversion of our grade crossing protection funds in Illinois, as well as similar funds in other States, will be made to what we believe are essentially noise suppression projects. We do not believe that this would be in the public interest.
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    We would also like to note that there have been a number of studies which have been mentioned today. One of the studies which we have conducted in Illinois—and these studies were done over the past several years—indicate the following as far as whistle-ban crossing accidents: Roughly 45 percent of the accidents at whistle-ban crossings are associated with traffic which is backed up on the crossing. The car simply couldn't get off the crossing because it was too congested—45 percent because of cars which are basically on the crossing.
    Another 40 percent of the accidents at whistle-ban crossings are incidents in which the drivers actually drove around the gates. They drove around the gates to beat the train. Obviously, when individuals make this type of a choice, this choice to ignore safety warnings, whistles are not necessary to tell them that a train is approaching.
    We recognize this is a serious subject. We also recognize the efforts of the FRA over a number of years to improve railroad safety around the country, as well as within the State of Illinois.
    As a fellow regulator, I understand the difficulty of formulating improved rail crossing safety rules that are both practical and effective. We at the Illinois Commerce Commission, as well as the others seated at the table and those you heard from earlier today, have similar goals of increasing and enhancing grade crossing safety. We would urge you to review these type of proposals. We would also urge the FRA to rethink and to modify these proposals along the lines of the suggestions which have been made by the Illinois congressional delegation led by Congressman Lipinski.
    As a fellow regulator, I pledge our support at the Illinois Commerce Commission to work with the FRA, as well as with Congressman Lipinski and others on your subcommittee, to see that a workable, effective solution is evolved.
    Thank you.
    Mr. PETRI. Thank you all for your testimony. I just maybe would like to ask a question of Chairman Mathias, and the others if they care to respond.
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    As I understand your testimony, and I think some of the others' as well, even though this may be well-meaning, the bottom line would be that this—if this were to be put into effect as currently conceived, it could actually cost lives, plus a lot of inconvenience, misallocate resources, rather than making the world a better place.
    Is that your testimony?
    Mr. MATHIAS. We believe there would be an unfortunate diversion of Grade Crossing Protection funds for basically noise-suppression projects.
    Mr. PETRI. So this could actually delay higher priority projects in order to conform with bureaucratic regulations, rather than with the needs, as determined by Illinois and local officials, where the problems exist?
    Mr. MATHIAS. Yes, Mr. Chairman, that is correct.
    Mr. PETRI. So this is, in effect, almost a mindless diversion of resources, rather than an improvement of the situation?
    Mr. MATHIAS. I don't know that I would say ''mindless diversion,'' but certainly a diversion of resources from areas in which we would prefer to spend the funds.
    Mr. PETRI. So this is why people groan when you say, I am from the Federal Government and I am here to help.
    Mr. Lipinski.
    Mr. LIPINSKI. Thank you, Mr. Petri.
    Commissioner Rice, you stated in the City of Chicago you have 237 crossings that would be affected by this rule.
    Ms. RICE. That is correct. We have 237 at-grade rail crossings in residential areas which would be impacted by this rule. However, we have over 400 at-grade rail crossings citywide.
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    Mr. LIPINSKI. Of the 237 grade crossings that would be affected by this legislation, how many of those do not have two gates?
    Ms. RICE. We have about 71 of those that don't have gates. The remainder do have gates.
    Mr. LIPINSKI. Seventy-one. What type of protection or warning devices do those have?
    Ms. RICE. Mostly crossbucks and whistles—I am sorry, flashing lights at the crossbucks.
    Mr. LIPINSKI. Are some of those in residential areas, or are all of those in industrial areas?
    Ms. RICE. Those are in residential areas.
    Mr. LIPINSKI. You say you have another 400, or have a total of 400 grade-level crossings in the city.
    Ms. RICE. There are a total of 407 at-grade crossings in the City.
    Mr. LIPINSKI. The difference between the 237 and the 407, that number in between, do any of them have gates, two gates at those crossings?
    Ms. RICE. Yes, some of those will have two gates.
    Mr. LIPINSKI. Do you know how many?
    Ms. RICE. 141 have gates.
    Mr. LIPINSKI. You say that the low side of the cost to the City of Chicago would be $30 million a year for a 3-year period of time, correct?
    Ms. RICE. That is correct. We estimate that installing medians would only be appropriate at about 39 of those at-grade crossings. The remainder, we would have to move to something tantamount to four-quadrant gates, with a cost of $90 million to the City of Chicago.
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    Mr. LIPINSKI. Why would the medians be a problem?
    Ms. RICE. I think Joy may have some more information on that, but very simply, from our perspective, the geometrics don't necessarily work at every intersection. As Deputy Administrator Wells testified, some of the at-grade crossings are parallel to a nearby roadway, so you could not extend the median barrier out far enough.
    Also you have to look at the width of the roadway to see how much traffic could get through that area. We have practical things, such as snow, in the City of Chicago.
    Mr. LIPINSKI. There is snow in Chicago?
    Ms. RICE. We have snow in Chicago. If you are putting in medians and they are covered by snow, if the motorist doesn't see them, the motorist is going to drive into them, plow them down. Who is going to maintain that and keep the medians viable?
    Ms. SCHAAD. I think you hit the high points. Even FRA, or at least one of original panelists, mentioned that the flexible paddles—sometimes called Kwik Curb, one brand name—are flexible enough that a car could go over them. But right now psychologically they don't do that.
    We are concerned with enough outcry about this kind of rule and about the aesthetic problems and other aspects of these, that people will start to drive over them. Once a few people do, then anybody might.
    On the length problems, not only parallel streets, but many of the sections between, like, Northwest Highway and the northwest line of the UP have parking lots in there. There are a lot of driveways. There is a lot of usage, important usage, of the property right at the crossing.
    We were surprised that FRA is even recommending going for 100 foot of length, when their own studies show that 30-foot median length is almost as effective. So there is some possibility of the third or fourth car trying to go around, but we are hopeful that if there are medians, that the length can be much reduced in the requirements.
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    On the median width problem, for a 10-inch concrete barrier median, AASHTO design standards would be a 3-foot minimum width; and then you have to have two 12-inch gutter flags, 5 feet of space is taken up. On a two-lane road or a four-lane road, you no longer have your minimum roadway width.
    Once you have to widen the crossing and the approach roadways, you may be purchasing right-of-way, doing utility relocation, sidewalk relocation, moving the railroad circuitry and often moving traffic signals at the adjacent roadway. So while it sounds like a low-cost option, we think when it is looked at, as close as you need to, to design a solution, that it will be extremely expensive.
    Mr. LIPINSKI. Thank you.
    OK, I know that in the suburban portion of my district, I have 146 crossings, and at 96 of those crossings there hasn't within an accident in over 10 years.
    Does the city have any idea—of your 407 crossings, do you have any statistics on what the accident rate has been at those 407?
    Ms. RICE. Yes, we do. Between the period of 1988 and 1999, our collisions have declined about 67 percent. Annual collisions declined from 46 to 15, injuries went from 26 to 8, and fatalities from 2 to 1. Again, this happened while train traffic increased by 35 percent and vehicular traffic increased by 45 percent.
    Mr. LIPINSKI. Thank you.
    Rita, in Palatine, what will upgrading your two-gated crossings to four-gated crossings cost the village of Palatine?
    Ms. MULLINS. We have been told it is anywhere from $350,000 to $400,000 per crossing, but I don't know. I have heard that the ICC has not ruled on that, that we are unable to do that because there has been some concern that a car, if we do put the four crossings—the four gates, a car may be stopped inside and unable to get out.
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    Mr. LIPINSKI. Well, I understand that.
    I have been a resident of Illinois my entire life, and it is a magnificent State. But if the Federal Government tells you it is going to do it, if you go into court, I am sure the Federal Government is going to win.
    Ms. MULLINS. I am looking at, we will have to take that money if we are told we have to do it. It will come from other safety measures we do within the Police Department; and I feel that is an undue burden to the citizens of Palatine.
    Mr. LIPINSKI. How many residents are in Palatine?
    Ms. MULLINS. Almost 70,000 now.
    Mr. LIPINSKI. You are saying it is going to cost you a figure between 3- and 400,000 per crossing?
    Ms. MULLINS. Yes, sir.
    Mr. LIPINSKI. You would have to do that in a 2- to 3-year period of time?
    Ms. MULLINS. Exactly. I don't know where the funds will come from. We are, in the State of Illinois, under tax caps.
    Mr. LIPINSKI. How many years do you have to go as mayor?
    Ms. MULLINS. I have been mayor for 12 years now, and I am up for reelection in April.
    Mr. LIPINSKI. April. OK. You might get under this before the full impact comes out.
    Do you have any idea what the accidents have been at these eight crossings in your village?
    Ms. MULLINS. Well, actually—and I am not quite sure of the accidents—we have one crossing that has had no train-car accidents; but it seems people want to go off into a ditch, so they have put that particular crossing as having nine accidents in the last 5 years.
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    Mr. LIPINSKI. What do you mean, go off into the ditch?
    Ms. MULLINS. They come around the corner and there is an accident there where they go off into a ditch. It is somehow—we have tried to put new markings and everything, but there has not been any train-car accident.
    So when you say ''accident,'' I hope everybody is on the same page. If a car has a fender bender—.
    Mr. LIPINSKI. I was really referring to trains and vehicles.
    Ms. MULLINS. Correct. Well, we have had, I believe, three in the station area, and those have been people going around down gates; and I believe in two of those the train horns were sounded, and it still happened.
    Mr. LIPINSKI. How long of a period of time was that?
    Ms. MULLINS. That is in the last 10 years.
    Mr. LIPINSKI. Do you have a figure on how many accidents occurred at all eight crossings in a 10-year period?
    Ms. MULLINS. As far as car and train, I believe it has only been the three.
    Mr. LIPINSKI. Three. Thank you.
    What have they estimated it is going to cost in the CATS area of responsibility, or jurisdiction, to upgrade, to go from two to four gates?
    Ms. SCHAAD. Well, we didn't assume that solution for all of the crossings. We assumed that four-quadrant gates would be part of a suite of engineering solutions, 10 percent of them going with four-quadrant gates; and once you do median barriers and close some crossings, and new gates on one-way streets, it would be $235 million.
    Mr. LIPINSKI. $235 million.
    Ms. SCHAAD. I would like to point out, both the unit costs the mayor is using and the unit cost that CATS is using are significantly higher than those FRA uses.
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    Mr. LIPINSKI. I am assuming that you used the highest cost and they used the lowest cost, so we—.
    Ms. SCHAAD. It is not just because we want to disagree with each other, but our area is not so typical as far as isolated crossings and easy installations. So many things are interconnected with the roadways and crossings nearby and so forth, that this is a cost estimate unit cost that we worked out with the empirical research from the Illinois Commerce Commission.
    Mr. LIPINSKI. Speaking of the Illinois Commerce Commission, you always do a fantastic job, I have to correct you, the meeting was in Western Springs, not in La Grange. I don't want to get my constituents upset; I want them to make sure I realize where I was at.
    What is it going to cost the entire State of Illinois to comply with this rule if it comes forward as is?
    Mr. MATHIAS. We do not have a definitive number, but the range is certainly several hundreds of millions of dollars. It is not an inexpensive program by any means.
    Again, you can look at each one of the mayors or representatives here and get a different number per grade crossing, and therefore it is a difficult number to estimate.
    The thing that is important to recognize is that in all of the proposals which have been made as far as enhancement, there is no silver bullet. There is no one type of grade crossing protection plan that is going to be universally accepted. They all have trade-offs. If they didn't, we in Illinois, and I am sure the other States across the country, would have already adopted many of these proposals and implemented many of the suggested changes already.
    Mr. LIPINSKI. Based upon conversations I have had with the Secretary of Transportation for Illinois, Curt Brown, and the Governor of Illinois, there are no plans, at least at the at the present time, for the State of Illinois to add any additional money specifically to their budget to comply with this rule. The financial burden will fall upon the local municipalities, whether it be my hometown, the City of Chicago, or Palatine or Western Springs or La Grange or anywhere else. Those are the people who are going to have to bear the financial burden.
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    I thank you all very much for your testimony.
    Mr. Chairman, I appreciate your indulgence.
    Mr. PETRI. Thank you. I would like to join in thanking you for your testimony. It has been very, very helpful. I look forward to working with Mr. Lipinski and with the Speaker and other concerned Members of Congress in coming up with something that will add to safety rather than to confusion.
    Thank you very much.
    [Whereupon, at 1:55 p.m., the subcommittee was adjourned.]

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