49 C.F.R. § 229.129

Locomotive horn

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(a) Each lead locomotive shall be equipped with a locomotive horn that produces a minimum sound level of 96 dB(A) and a maximum sound level of 110 dB(A) at 100 feet forward of the locomotive in its direction of travel. The locomotive horn shall be arranged so that it can be conveniently operated from the engineer's usual position during operation of the locomotive.

(b)(1) Each locomotive built on or after September 18, 2006 shall be tested in accordance with this section to ensure that the horn installed on such locomotive is in compliance with paragraph (a) of this section. Locomotives built on or after September 18, 2006 may, however, be tested in accordance with an acceptance sampling scheme such that there is a probability of .05 or less of rejecting a lot with a proportion of defectives equal to an AQL of 1% or less, as set forth in 7 CFR part 43.

(2) Each locomotive built before September 18, 2006 shall be tested in accordance with this section before June 24, 2010 to ensure that the horn installed on such locomotive is in compliance with paragraph (a) of this section.

(3) Each remanufactured locomotive, as determined pursuant to § 229.5 of this part, shall be tested in accordance with this section to ensure that the horn installed on such locomotive is in compliance with paragraph (a).

(4)(i) Except as provided in paragraph (b)(4)(ii) of this section, each locomotive equipped with a replacement locomotive horn shall be tested, in accordance with paragraph (c) of this section, before the next two annual tests required by § 229.27 of this part are completed.

(ii) Locomotives that have already been tested individually or through acceptance sampling, in accordance with paragraphs (b)(1), (b)(2), or (b)(3) of this section, shall not be required to undergo sound level testing when equipped with a replacement locomotive horn, provided the replacement locomotive horn is of the same model as the locomotive horn that was replaced and the mounting location and type of mounting are the same.

(1) A properly calibrated sound level meter shall be used that, at a minimum, complies with the requirements of International Electrotechnical Commission (IEC) Standard 61672-1 (2002-05) for a Class 2 instrument.

(2) An acoustic calibrator shall be used that, at a minimum, complies with the requirements of IEC standard 60942 (1997-11) for a Class 2 instrument.

(3) The manufacturer's instructions pertaining to mounting and orienting the microphone; positioning of the observer; and periodic factory recalibration shall be followed.

(4) A microphone windscreen shall be used and tripods or similar microphone mountings shall be used that minimize interference with the sound being measured.

(5) The test site shall be free of large reflective structures, such as barriers, hills, billboards, tractor trailers or other large vehicles, locomotives or rail cars on adjacent tracks, bridges or buildings, within 200 feet to the front and sides of the locomotive. The locomotive shall be positioned on straight, level track.

(6) Measurements shall be taken only when ambient air temperature is between 32 degrees and 104 degrees Fahrenheit inclusively; relative humidity is between 20 percent and 95 percent inclusively; wind velocity is not more than 12 miles per hour and there is no precipitation.

(7) With the exception of cab-mounted or low-mounted horns, the microphone shall be located 100 feet forward of the front knuckle of the locomotive, 15 feet above the top of the rail, at an angle no greater than 20 degrees from the center line of the track, and oriented with respect to the sound source according to the manufacturer's recommendations. For cab-mounted and low-mounted horns, the microphone shall be located 100 feet forward of the front knuckle of the locomotive, four feet above the top of the rail, at an angle no greater than 20 degrees from the center line of the track, and oriented with respect to the sound source according to the manufacturer's recommendations. The observer shall not stand between the microphone and the horn.

(8) Background noise shall be minimal: the sound level at the test site immediately before and after each horn sounding event shall be at least 10 dB(A) below the level measured during the horn sounding.

(9) Measurement procedures. The sound level meter shall be set for A-weighting with slow exponential response and shall be calibrated with the acoustic calibrator immediately before and after compliance tests. Any change in the before and after calibration levels shall be less than 0.5 dB. After the output from the locomotive horn system has reached a stable level, the A-weighted equivalent sound level (slow response) for a 10-second duration (LAeq, 10s) shall be obtained either directly using an integrating-averaging sound level meter, or recorded once per second and calculated indirectly. The arithmetic-average of a series of at least six such 10-second duration readings shall be used to determine compliance. The standard deviation of the readings shall be less than 1.5 dB.

(10) Written reports of locomotive horn testing required by this part shall be made and shall reflect horn type; the date, place, and manner of testing; and sound level measurements. These reports, which shall be signed by the person who performs the test, shall be retained by the railroad, at a location of its choice, until a subsequent locomotive horn test is completed and shall be made available, upon request, to FRA as provided by 49 U.S.C. 20107.

(d) This section does not apply to locomotives of rapid transit operations which are otherwise subject to this part.

[71 FR 47666, Aug. 17, 2006]

Notes of Decisions

Cited in 25 cases (1 in the last 5 years), 1993–2025 · leading case: Tufariello v. Long Island Rail Road, 364 F. Supp. 2d 252 (E.D.N.Y 2005).

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Tufariello v. Long Island Rail Road, 364 F. Supp. 2d 252 (E.D.N.Y 2005). · cites it 12× “See 49 C.F.R. § 229.129 . Although tests were conducted in the Richmond Hill and Morris Park Yards, defendant concedes that no testing was conducted at the Patchogue Yard.”

Vito Tufariello v. Long Island R.R. Co., Docket No. 05-1945-Cv, 458 F.3d 80 (2d Cir. 2006). · cites it 2× “The district court relied on this line of cases in concluding that 49 C.F.R. § 229.129 , which establishes minimum sound levels for warning devices on trains, “ ‘substantially subsume[s]’ ” the subject matter of the decibel level of horns and thus precludes Tufariello’s FELA…”

Willard Rushing & Patricia Rushing v. Kansas City S. Ry. Co., 185 F.3d 496 (5th Cir. 1999). · cites it 2× “See 49 C.F.R. 229.129. From this regulation and the fact that KCS allegedly sounds its whistles only as required for safety reasons (at grade crossings and before backing up), KCS contends that the nuisance claim is preempted.”

United Transp. Union v. Foster, 205 F.3d 851 (5th Cir. 2000). · cites it 2× “See 49 C.F.R. § 229.129 . 18 . We agree with the district court that the “locality exception” applies only to local concerns, not state-wide hazards.”

Philip J. Frank v. Delta Airlines Inc., Delta Airlines Inc., 314 F.3d 195 (5th Cir. 2002). “This court concluded in both Rushing and Foster that an FRSA regulation covering the sound capacity of audible signaling devices, 49 C.F.R. § 229.129 , does not “cover” or “substantially subsume” the subject matter of when such devices are sounded.”

Carter v. Nat'l R.R. Passenger, 63 F. Supp. 3d 1118 (N.D. Cal. 2014). · cites it 2× “First, Defendants reject Plaintiffs’ reliance on 49 C.F.R. § 229.129 , which sets a minimal decibel level for locomotive horns at 96dB(A) at 100 feet forward of the locomotive in the direction of travel.”

Michael Ryder v. Union Pac. R.R. Com, 945 F.3d 194 (5th Cir. 2019). “As to horn volume, it is undisputed that 49 C.F.R. § 229.129 (a) creates a federal standard of care by setting “a minimum sound level of 96 dB(A) .”

Marsh v. Norfolk S., Inc., 243 F. Supp. 3d 557 (M.D. Penn. 2017). · cites it 2× “; (l) Norfolk Southern acted negligently, carelessly and recklessly when it failed to ensure that the train’s locomotive horn produced a minimum sound level of 96 dB(a) at 100 feet forward of the locomotive in its direction of travel, pursuant to 49 C.F.R. § 229.129 ; (m)…”

Civil City of South Bend, Ind. v. Conrail, 880 F. Supp. 595 (N.D. Ind. 1995). · cites it 5× “49 C.F.R. § 229.129 Conrail next contends, relying on Norfolk S.”

Boyd v. Nat'l R.R. Passenger Corp., 446 Mass. 540 (Mass. 2006). “The FRA has set the minimum train whistle volume at ninety-six decibels, see 49 C.F.R. § 229.129 (2005), so that it can be heard by a motorist who may be more than 1,300 feet away from a train.”

S. Pac. Transp. Co. v. Pub. Util. Comm'n of the State of Oregon, & Its Members, 9 F.3d 807 (9th Cir. 1993). “5 49 C.F.R. § 229.129 . We do not agree. As an initial matter, we note that the issue is not whether the Oregon statute and regulations implicate safety concerns or noise pollution concerns.”

Eubanks v. Norfolk S. Ry. Co., 875 F. Supp. 2d 893 (N.D. Ind. 2012). · cites it 2× “Because federal regulation *902 specifically addresses the design of the intersection and the sounding of the horn, no state law requirement can be imposed on the railroad to signal differently when approaching an intersection with a train already passing through it.”

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