[Federal Register: September 9, 2009 (Volume 74, Number 173)]
[Rules and Regulations]
[Page 46384-46394]
[DOCID:fr09se09-28]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-1999-6439, Notice No. 21]

49 CFR Part 222

Excess Risk Estimate for Highway-Rail Grade Crossings Along the
Florida East Coast Railway Line

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the regulations regarding the use of
locomotive horns at public highway-rail grade crossings by establishing
an excess risk estimate of 90.9 percent for public highway-rail grade
crossings along the Florida East Coast Railway Company (FEC) line. When
this final rule is effective, public authorities will be permitted to
establish New Quiet Zones along the FEC line, in accordance with the
existing regulations, through application of the excess risk estimate
provided herein.

DATES: The effective date is November 9, 2009. However, public
authorities may begin to provide quiet zone-related documentation to
FRA and other parties 30 days after September 9, 2009.

FOR FURTHER INFORMATION CONTACT: Ronald Ries, Office of Safety, Mail
Stop 25, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590
(telephone:<PHONE_NUMBER>); or Kathryn Shelton, Office of Chief
Counsel, Mail Stop 10, FRA, 1200 New Jersey Avenue, SE., Washington, DC
20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I. Background

    On July 26, 1991, FRA issued Emergency Order No. 15 (EO 15), which
requires FEC trains to sound train borne audible warning devices when
approaching public highway-rail grade crossings. This Emergency Order
preempts a Florida statute that became effective on July 1, 1984. The
Florida statute authorized counties and municipalities to ban the use
of train horns and whistles between the hours of 10 p.m. and 6 a.m. by
FEC trains approaching public highway-rail grade crossings that were
equipped with flashing lights, bells, crossing gates, and highway signs
indicating train horns and whistles would not be sounded at night.
    Amendments to EO 15, issued on August 31, 1993, permitted Florida
communities to obtain relief from the EO through the implementation of
alternative remedial measures on a crossing-by-crossing basis, provided
the alternative remedial measures have been certified by the Florida
Department of Transportation (FDOT) as being fully compliant with all
relevant performance specifications. However, FRA's final rule on the
Use of Locomotive Horns at Highway-Rail Grade Crossings (49 CFR Part
222) issued on April 27, 2005, provides communities substantially
greater flexibility in establishing quiet zones than that allowed to
communities covered by EO 15. The final rule allows public authorities
in the rest of the nation (with the exception of certain highway-rail
grade crossings located in the six-county Chicago Region) to prohibit
routine sounding of the locomotive horn at highway-rail grade crossings
through the selective implementation of various grade crossing
improvements on a corridor-wide basis, as opposed to implementing grade
crossing improvements at each quiet zone crossing.
    As early as January 13, 2000, when FRA issued a Notice of Proposed
Rulemaking (NPRM) in this proceeding, FRA proposed to apply a higher
excess risk estimate to FEC public crossings than other public highway-
rail grade crossings nationwide, based on FRA's analysis of the pre-ban
and post-ban collision data associated with FEC public crossings. Since
FRA's analysis of collision data at public highway-rail grade crossings
nationwide did not include collision data associated with FEC public
crossings that were subject to nighttime whistle bans, FRA also
solicited public comment as to what extent the pre-ban and post-ban
collision data associated with FEC public crossings may be relevant to
public highway-rail grade crossings located in other areas.
    Shortly thereafter, FRA conducted a public hearing on March 28,
2000 in Fort Lauderdale, Florida, during which FRA noted that it was
grappling with the issue of whether or not a differential requirement
for mitigating crossing risk should be instituted for FEC public
crossings and solicited comments on this issue. After the March 28,
2000 public hearing, FRA received comments from a number of Florida
cities, including Boca Raton, Palm Beach Gardens, and West Palm Beach,
who urged FRA to make its proposed regulation applicable to FEC
crossings and allow the Federal regulation to supersede EO 15. FRA
addressed these comments in the preamble to its Interim Final Rule on
the Use of Locomotive Horns at Highway-Rail Grade Crossings (Interim
Final Rule) and expressed its intent to rescind EO 15 and make the
Federal regulation applicable to all highway-rail grade crossings
within the State of Florida. However, FRA further stated that it would
first need to resolve the issue of whether a regional estimate as to
the effect of silencing the train horn should be applied to EO 15
crossings.
    In an effort to re-examine the post-ban accident rate increases
that occurred at FEC crossings subject to nighttime whistle bans, FRA
conducted a public conference in Florida on April 15, 2005. At the
conference, FRA again solicited comments on the appropriate excess risk
estimate that should be applied by public authorities who wish to
establish Federal quiet zones along the FEC line. Oral comments were
provided at the public conference by representatives of nine
organizations, including the United Transportation Union (UTU), the
Brotherhood of Locomotive Engineers and Trainmen (BLET), the
Brotherhood of Railroad Signalmen (BRS), FEC, PVB Consulting, Inc., the
Broward County Metropolitan Planning Organization, the City of
Hollywood, Florida, the City of Palm Beach Gardens, Florida, and FDOT.
    The City of Hollywood, Florida expressed interest in establishing a

Federal quiet zone, noting that it has been working closely with the
Tri-Rail Authority and FDOT to implement a four-quadrant gate system
that appears to provide a level of safety comparable to that provided
by routine sounding of the locomotive horn. In line with its previously
submitted comments on FRA's proposed and final regulation, the City of
Hollywood expressed its support of a rule that would strike a balance
between quality of life concerns, while maintaining the current level
of safety provided by routine sounding of the train horn.
    The Broward County Metropolitan Planning Organization asserted that
about ten percent of the State's population resides in Broward County
(which contains a number of public highway-rail grade crossings along
the FEC line) and that there are projections of an additional million
residents over the next 20 to 25 years. The UTU also noted that the FEC
highway-rail grade crossings at issue are located in an urban setting
with a high number of tourists and non-English speaking immigrants. Due
to international recognition of the locomotive horn as a universal
signal of an approaching train, the UTU argued that the locomotive horn
may be the sole device that could effectively warn pedestrians who
access the FEC right-of-way of the impending arrival of the train,
especially at night. Accordingly, the UTU urged FRA to retain the 195-
percent excess risk estimate \1\ that was derived from FRA's prior
analysis on the effect of routine sounding of the locomotive horn at
public highway-rail grade crossings along the FEC line.
---------------------------------------------------------------------------

    \1\ The excess risk estimate is a figure that represents the
amount by which collision frequency has been estimated to increase
when routine sounding of the locomotive horn at public highway-rail
grade crossings is restricted. When FRA conducted a study on the
effect of nighttime whistle bans on the accident rate at public
highway-rail grade crossings along the FEC line, FRA found that the
nighttime accident rate at impacted FEC crossings increased 195
percent after nighttime whistle bans were imposed. This 195-percent
increase in the nighttime accident rate at impacted FEC crossings is
the 195-percent excess risk estimate that the UTU representative has
urged FRA to apply to all public highway-rail grade crossings along
the FEC line.
---------------------------------------------------------------------------

    Echoing its previously submitted comments on FRA's regulation, the
BRS asserted that the data shows that grade crossing accidents increase
when locomotive horn sounding is eliminated. Accordingly, the BRS
stated that people who are unfamiliar with railroad operations are the
people who really need the last-minute audible warning of approaching
trains that is provided by the locomotive horn. As follow-up to its
previously submitted statement on FRA's regulation, during which a BLET
representative noted that train crews are also placed at risk when
accidents occur at highway-rail grade crossings, the BLET pointed out
that none of the alternative safety measures and supplemental safety
measures allowed under 49 CFR part 222 will lessen the traumatic stress
syndrome that is often experienced by locomotive engineers after a
grade crossing accident.
    PVB Consulting, Inc. argued that the root cause of the 195-percent
increase in the nighttime accident rate at impacted FEC grade crossings
during the five-year period that followed the enactment of nighttime
whistle bans in Florida was the absence of education, engineering, and
enforcement initiatives. PVB Consulting noted that a more aggressive
program should have been undertaken to educate area citizens of the
pros and cons of nighttime whistle bans, combined with increased police
presence and crossing cameras at impacted crossings. Asserting that the
provisions of this part will facilitate the use of education,
engineering and enforcement initiatives at quiet zone crossings, PVB
Consulting stated that the nationwide excess risk estimate of 66.8
percent should be applied to gated public highway-rail grade crossings
along the FEC line.
    The City of Palm Beach Gardens and the Broward County Metropolitan
Planning Organization expressed interest in establishing city-wide or
county-wide excess risk estimates, which would be based on available
demographic data. However, FRA indicated that it would be difficult to
calculate reliable city-wide or county-wide excess risk estimates that
would have an acceptable level of statistical significance due to the
small number of crossings that would be subject to analysis.
    FDOT and FEC also provided oral and written comments, which will be
discussed in more detail below.

A. FDOT

    FDOT submitted two sets of written comments to FRA after FRA's
April 15, 2005 public conference dated August 17, 2005 and January 13,
2006, respectively. In its written comments, FDOT asserted that local
communities in the State of Florida should have the opportunity to
exercise their right to designate a Federal quiet zone based on the
same nationwide standard that is currently applied to other local
communities. In support of this assertion, FDOT quoted FRA reports that
referenced a similar increase in the accident rate (200 percent) after
whistle bans were implemented in Oregon. However, FDOT noted that
Oregon communities who wish to establish quiet zones are permitted to
use the nationwide 66.8-percent excess risk estimate when calculating
the increase in risk that may result from prohibiting routine
locomotive horn use at grade crossings located within proposed quiet
zone corridors. FDOT further noted that FRA had proposed to apply an
even lower excess risk estimate (17.3 percent) to certain gated
highway-rail grade crossings in the Chicago Region. Thus, FDOT
requested that FRA permit local communities in Florida that are located
on the FEC line to take advantage of the nationwide 66.8-percent excess
risk estimate that is currently applied to public highway-rail grade
crossings that are proposed for inclusion in a Federal quiet zone.
    FRA notes that while there may have been some similarities between
the regional whistle ban experience in Oregon and Florida, the Oregon
and Florida whistle ban experience differ widely in scope. Local
whistle bans in Oregon affected 26 highway-rail grade crossings located
in two cities, which experienced two pre-ban collisions and nine post-
ban collisions. In contrast, as of December 31, 1989, local whistle ban
ordinances in Florida affected 511 highway-rail grade crossings, at
which 39 pre-ban collisions and 115 post-ban collisions occurred.
    In FRA's interim final rule, FRA proposed to apply an excess risk
estimate of 17.3 percent to gated highway-rail grade crossings in the
Chicago Region that were subject to pre-existing locomotive horn
sounding restrictions. This proposal was derived from FRA's analysis of
the effect of locomotive horn use at these crossings. FRA's analysis
indicated that gated crossings in the Chicago Region that had been
subject to pre-existing locomotive horn sounding restrictions (which
accounted for the biggest concentration of ``whistle bans'' in the
country prior to the issuance of FRA's Final Rule on the Use of
Locomotive Horns at Highway-Rail Grade Crossings) had a statistical
profile that was distinctly different from gated crossings in the rest
of the nation that were subject to local whistle bans. FRA notes that a
number of unique factors may have contributed to this result, including
the discretionary compliance by railroads with local no-whistle
policies.
    FDOT also asserts that FRA's analysis of the Florida whistle ban
experience was flawed because FRA failed to consider utilization of the
affected rail corridor(s) by the railroad. As reflected in FRA's Report
on Florida's Train Whistle Ban issued in October 1995,

FRA compared the accident data on the basis of Accidents per Crossing
Month. FDOT asserts that this approach is flawed because it does not
measure the true opportunity for an incident to occur. FDOT asserts
that the true opportunity for grade crossing accidents to occur should
be normalized using the number of trains that operated over the subject
grade crossing (which could be reflected by grade crossing activation
rates), as opposed to measuring the accident rate as a unit of time.
    FRA acknowledges that train traffic volume could have an impact on
the accident rate at specific highway-rail grade crossings. However,
any potential impact would necessarily depend on highway traffic
patterns as well. Obviously, for a grade crossing accident to occur,
train and highway traffic must be present at the crossing at the same
time. However, FRA focused its analysis on comparisons between the
number of nighttime accidents reported at FEC crossings subject to
nighttime whistle bans with the number of accidents associated with two
control groups, in order to determine the impact of nighttime whistle
bans at those crossings.
    Assuming that the number of trains operating along the FEC line
remained constant during the study period, FDOT also noted a large
differential between pre-ban accident rates at FEC grade crossings that
were subject to nighttime whistle bans and corresponding pre-ban
accident rates at FEC grade crossings that remained unaffected by
nighttime whistle bans, when analyzed in relation to the number of
crossing activations per accident. In light of this data, which has
been presented below, FDOT asserts that there must be a measurable,
causal element that has not yet been thoroughly considered in previous
analyses on this issue:

------------------------------------------------------------------------
                                            Pre-ban          Post-ban
                                            crossing         crossing
                                        activations per  activations per
                                            accident         accident
                                         (approximate)    (approximate)
------------------------------------------------------------------------
FEC w/Ban.............................          289,000           96,000
FEC No Ban............................          135,000          162,000
CSX No Ban............................           40,000           62,000
------------------------------------------------------------------------

    Despite FDOT's objection to the method used by FRA to calculate
crossing accident rates, FDOT's comparison of the pre-ban and post-ban
accident rates at FEC crossings that were subject to nighttime whistle
bans seems to reinforce FRA's earlier findings that the risk level at
FEC highway-rail grade crossings subject to nighttime whistle bans
deteriorated significantly after routine locomotive horn sounding
practices were discontinued. According to calculations provided by
FDOT, there was approximately one accident for every 289,000 crossing
activations at FEC grade crossings that would later be impacted by
nighttime whistle bans. During the five-year period following
implementation of nighttime whistle bans, however, there was
approximately one accident for every 96,000 crossing activations at FEC
grade crossings subject to nighttime whistle bans.
    FRA disagrees with the conclusion that the data presented by FDOT
must be interpreted as being indicative of a measurable element that
has not yet been thoroughly considered by previous analyses on this
issue. Even though accident rates associated with FEC grade crossings
that were subject to nighttime whistle bans may differ from accident
rates associated with FEC grade crossings that were not impacted by
nighttime whistle bans when evaluated in relation to the number of
crossing activations per accident, this result is potentially
misleading. As noted above, any potential impact associated with train
traffic volume must be evaluated in light of highway traffic patterns
at the specific highway-rail grade crossings at issue before any
conclusion should be drawn as to the existence of a measurable element
that has not yet been thoroughly considered by previous analyses on
this issue.
    FDOT also asserts that FRA's Final Report on Florida's Train
Whistle Ban (``1995 FRA Report'') issued in September 1995, does not
provide sufficient background information to support the pre-ban and
post-ban accident rates associated with FEC crossings subject to
nighttime whistle bans. In particular, FDOT notes that the 1995 FRA
Report does not explain how the ``Number of Crossing Months'' value was
calculated for these crossings.
    FRA disagrees with this assertion. In Appendix C to the 1995 FRA
Report, FRA provided an explanation of how the ``Number of Crossing
Months'' value was calculated for FEC crossings that were subject to
nighttime whistle bans. An explanation was also provided on page 9 of
the Second Edition of FRA's Report on Florida's Train Whistle Ban
(``1992 FRA Report'') issued in September 1992. As stated in these
reports, the ``Number of Crossing Months'' value was calculated by
multiplying the number of crossings impacted by each local ordinance by
the number of months during which the local ordinance was in effect and
then totaling the results for all FEC crossings that were subject to
nighttime whistle bans. FRA provided background information on the data
used to calculate the effect of nighttime whistle bans, so that
interested parties could review, verify and comment upon FRA's
findings.
    FDOT also asserts that the pre-ban and post-ban accident rates for
FEC crossings that were subject to nighttime whistle bans should not
have been calculated using the same ``Number of Crossing Months''
value. FRA acknowledges that different ``Number of Crossing Months''
values were used to calculate the pre-ban and post-ban accident rates
associated with FEC No Ban and CSX crossings. However, FRA purposefully
used the same ``Number of Crossing Months'' value when evaluating pre-
ban and post-ban accident rates for FEC crossings subject to nighttime
whistle bans. As stated above, the ``Number of Crossing Months'' value
for FEC crossings subject to nighttime whistle bans was calculated by
multiplying the number of crossings impacted by each local ordinance
times the number of months during which the local ordinance was in
effect and then totaling the results for all crossings that were
subject to nighttime whistle bans. For example, there was only one
month of post-ordinance accident data available for crossings in Holly
Hill, Florida because the applicable whistle ban ordinance did not take
effect until November 4, 1989. Therefore, researchers used only one
month of pre-ordinance data (October 1989) in their analysis. In
contrast, FRA compared 59 months of pre-ban accident data (February
1980 through December 1984) with 59 months of post-ban accident data
(February 1985 through December 1999) for FEC

highway-rail grade crossings located in Lantana and New Smyrna Beach.
Since the variables used to calculate this ``Number of Crossing
Months'' value would not change when evaluating pre-ban or post-ban
accident totals associated with FEC crossings that were subject to
nighttime whistle bans, FRA used the same ``Number of Crossing Months''
value to calculate pre-ban and post-ban accident rates for these
highway-rail grade crossings.
    In contrast, the FEC No Ban and CSX crossings that were studied
were not subject to nighttime whistle bans. Therefore, FRA calculated
the ``Number of Crossing Months'' value by multiplying the number of
crossings under consideration times the number of months in either the
pre-ban or post-ban study period. Since these variables would
necessarily change when evaluating pre-ban or post-ban accident data,
FRA used different ``Number of Crossing Months'' values to calculate
pre-ban and post-ban accident rates for the FEC No Ban and CSX
crossings that were studied.
    FDOT notes the exemplary collision history associated with five
improved highway-rail grade crossings in Broward, Palm Beach and Dade
counties (counties that also contain FEC grade crossings). Four of
these grade crossings have undivided approaches and are equipped with
four-quadrant gate systems. The remaining grade crossing, which is
equipped with four-quadrant gates and medians, constituted the only
official quiet zone within the State of Florida on the date on which
FDOT's comments were filed. FDOT asserts that there have not been any
vehicle-train collisions at any of these improved highway-rail grade
crossings since the installation of four-quadrant gate systems.
    FDOT also provides an accident history summary for 27 CSX grade
crossings located in the Palm Beach, Broward, and Dade counties, which
have been improved through engineering improvements since 1995. These
engineering improvements include six-inch barrier curbs and four-
quadrant gate systems. Applying FDOT's accident rate analysis discussed
above, FDOT compared the accident rate for the 27 improved grade
crossings to pre-ban and post-ban accident rates for 224 CSX crossings
that were comparable to the FEC crossings that were subject to
nighttime whistle bans. FDOT concluded that the estimated accident rate
for the 27 improved grade crossings (one accident for every 174,000
crossing activations) is much lower than the estimated pre-ban and
post-ban accident rates for the 224 CSX crossings that were comparable
to the FEC crossings that were subject to nighttime whistle bans. This
would seem to indicate that engineering improvements, such as four-
quadrant gate systems and non-traversable curbs, installed at
comparable grade crossings along the FEC line could compensate for an
increase in risk caused by the absence of warning provided by the
locomotive horn.
    In its second set of written comments dated January 13, 2006, FDOT
provided additional information about the significant changes that have
occurred since EO 15 was issued, which have improved safety at grade
crossings within the State of Florida. FDOT notes that there has been
expanded use of bi-lingual and tri-lingual signs and rail awareness
campaigns to provide information about highway-rail grade crossing
hazards via literature, television, and radio media, as well as rail
crossing safety placards and slogans on bus, transit and commuter rail
terminals. In addition, numerous engineering design improvements in the
area of highway-rail grade crossing safety have been implemented,
including the installation of median treatments and the increased use
of constant warning time devices that are interconnected with traffic
control devices. As of January 13, 2006, FDOT asserted that active
highway-rail grade crossing warning devices had been installed at over
71 percent of public highway-rail grade crossings within the State of
Florida and that there were an increasing number of four-quadrant gate
systems. An automated video monitoring and surveillance system has also
been installed at the McNab Road quiet zone crossing, which allows the
system to collect real-time data on vehicle flow, crossing usage, and
train volume for use by the railroad and regional roadway
transportation authorities.

B. FEC

    FEC is a regional, Class II railroad that, as of October 12, 2005,
operated over approximately 719 highway-rail grade crossings along
Florida's east coast. FEC asserts that it operates through some of the
most heavily populated communities in the country and intersects some
of the most heavily traveled roadways in Florida. In response to the
FRA public conference that was held on April 15, 2005, FEC submitted
two sets of written comments, dated April 15, 2005 and October 12,
2005. In these comments, FEC requested that FRA retain the current 195
percent excess risk estimate for public FEC highway-rail grade
crossings.
    In support of this request, FEC notes that the risks when
locomotive horns are silenced at public FEC grade crossings have been
separately studied, analyzed, and reviewed in-depth. As a result of
these studies, FRA has consistently found that the imposition of
nighttime whistle bans at public FEC highway-rail grade crossings
resulted in at least a 195-percent increase in the nighttime accident
rate at these crossings. In fact, the nationwide 66.8-percent excess
risk estimate was derived from studies of nationwide grade crossing
data that excluded collision information related to FEC crossings.
Asserting that the 66.8-percent nationwide excess risk estimate is
simply not applicable to public FEC highway-rail grade crossings, FEC
argues that the 195-percent excess risk estimate should continue to
apply to ensure that the substitution of supplementary (or alternative)
safety measures at certain crossings within a proposed quiet zone will
adequately compensate for the increased risk that results from the lack
of routine locomotive horn use.
    In its written comments dated October 12, 2005, FEC asserts that
FDOT is questioning the results of the FRA studies on Florida's Train
Whistle Ban without sufficient explanation and without full, supporting
data. Although FEC noted FDOT's contentions that certain recalculations
are needed and further considerations should be undertaken by FRA in
view of the fact that Florida has 14 operating railroads, FEC asserts
that FDOT summarily concluded its comments by asking that the 66.8-
percent nationwide excess risk estimate be applied to all highway-rail
grade crossings within the State of Florida, without providing any
evidence that this estimate would be appropriate for public FEC
highway-rail grade crossings.
    FRA remains confident that its prior analysis of the effect of
nighttime whistle bans produced a statistically significant estimate of
the effect of prohibiting routine nighttime locomotive horn use at
public FEC highway-rail grade crossings during the mid-1980s to early
1990s. However, FRA is also cognizant of the fact that engineering
improvements have had a recognizable effect on grade crossing safety at
public highway-rail grade crossings throughout the State of Florida. As
noted by FDOT in its written comments, grade crossing accident rates
have significantly declined at ``improved'' CSX highway-rail grade
crossings in Palm Beach, Broward, and Dade counties after engineering
improvements such as four-quadrant

gate systems and non-traversable curbs have been implemented. Thus, it
would appear that the supplementary safety measures identified in
Appendix A to 49 CFR Part 222 would provide a comparable increase in
safety upon implementation at comparable FEC crossings. The difficulty
presented by this proceeding is determining comparability. FRA has once
again attempted to determine local conditions in order to establish
comparability as much as possible.

II. Calculation of the 90.9-Percent Excess Risk Estimate for Public
Highway-Rail Grade Crossings Along the FEC Line

    In addition to the increased nighttime accident rate at gated FEC
grade crossings that were subject to nighttime whistle bans, FRA's
analysis indicated that there was a 67-percent increase in nighttime
accident rates at 224 comparable CSX highway-rail grade crossings that
were not subject to nighttime whistle bans. These CSX grade crossings
were carefully screened, so that the characteristics of these CSX grade
crossings would closely match FEC grade crossings that were subject to
nighttime whistle bans during the study period. FRA's analysis also
indicated that there was a 23-percent increase in nighttime accident
rates at 89 public FEC highway-rail grade crossings that were not
subject to nighttime whistle bans (``FEC No Ban'' grade crossings).
Upon further review of the accident data, FRA has determined that these
nighttime accident rate increases are particularly relevant to the
determination of the excess risk estimate that should be applied to
public highway-rail crossings along the FEC line. It appears reasonable
to conclude that there would have been an increase in the nighttime
accident rate at FEC grade crossings subject to nighttime whistle bans
similar to that experienced at the CSX and FEC No Ban grade crossings,
regardless of the change in locomotive horn sounding practices.
Operating under this premise, FRA calculated the average nighttime
accident rate increases for the group of 313 CSX and FEC grade
crossings that were not subject to nighttime whistle bans per the
following formula:

Average Rate Increase = ((89 FEC No Ban Grade Crossings * 23%
increase in their accident rate) + (224 Comparable CSX Grade
Crossings * 67% increase in their accident rate))/313 Total CSX and
FEC No Ban Crossings

Accordingly, the average nighttime accident rate increase for the group
of 313 public highway-rail grade crossings, comprised of comparable CSX
grade crossings and FEC No Ban grade crossings was 54.5 percent during
the post-ban study period.

    These distinct nighttime accident rate increases, which occurred
during the post-ban study period at the 224 comparable CSX grade
crossings and 89 FEC No Ban grade crossings, were not incorporated into
FRA's calculation of the 195-percent nighttime accident rate increase
at FEC grade crossings that were subject to nighttime whistle bans.
Therefore, FRA has revised its previous estimate of the impact of
nighttime whistle bans during the post-ban period on FEC grade
crossings that were subject to nighttime whistle bans by ``backing
out'' any effect related to a generalized increase in general crossing
risk in the region. As discussed above, the comparison sets chosen were
FEC No Ban grade crossings and comparable CSX grade crossings, and the
study period and selection criteria were the same as for the FEC grade
crossings that were subject to nighttime whistle bans. It was observed
that collisions at FEC grade crossings subject to nighttime whistle
bans increased 195 percent during the post-ban study period (from a
constructive value of 100, representing the total of pre-ban accidents,
to 295, the sum of the prior level and the increase), while FEC No Ban
grade crossings and comparable CSX grade crossings in the control group
increased 54.5 percent (from a constructive base value of 100,
representing the total of prior accidents, to 154.5). The percentage of
increase required to achieve 295 from the 154.5 base for the control
group is approximately 90.9 percent (e.g., .909 * 154.5 = 140.441, and
140.441 + 154.5 = 294.941). Thus, FRA concludes that a good measure of
the increase in collision risk from silencing the train horn in the
region is on the order of 90.9 percent.
    FRA is aware that many changes have occurred in the region since
the period in question. These include engineering improvements,
demographic changes, increases in road traffic levels, and likely some
improvements in public education and awareness related to crossing
safety. Many of these changes apply to FEC crossings that are currently
subject to EO 15 and to crossings not so affected. There is no
particular reason to believe, however, that--as to the differential
risk involved--the 90.9 percent estimate would not be valid.
    FRA is cognizant of the fact that the FEC bans were nighttime-only
bans and that 24-hour quiet zones may be sought in the future. FRA has
no body of information that would permit it to apply a different excess
risk estimate in connection with 24-hour bans. Engineering improvements
are the principal means used by communities under Part 222 to achieve
risk reduction and quality for quiet zones. So far as FRA is aware,
engineering improvements are equally effective regardless of time of
day. Indeed, communities along the FEC line will benefit in terms of
qualifying for quiet zones for many locations where lengthy medians and
other arrangements are in place. Improvements that have been made in
the interim on the CSX/Tri-Rail corridor, including simple four-
quadrant gate arrangements, show how success can be fully achieved.
Although FRA might speculate that 24-hour effects are less dramatic
(e.g., because motorists expect the horn to sound, and it does not
sound for a portion of the day), FRA has no empirical basis to do this.
To the extent that we err, we err in favor of the safety objectives
behind the legislation giving rise to FRA's regulation on the Use of
Locomotive Horns at Highway-Rail Grade Crossings.

III. Rescission of FRA Emergency Order No. 15

    On the effective date of this final rule, EO 15 will be rescinded
and the provisions of this part will apply to highway-rail grade
crossings along the FEC line. Therefore, locomotive horn sounding will
continue to be required at all public highway-rail grade crossings
along the FEC line that are not located within Federal quiet zones. In
addition, as of the effective date of this final rule, locomotive horn
sounding at public highway-rail grade crossings along the FEC line will
have to be conducted in accordance with the requirements contained in
section 222.21 of this part.
    As discussed in the preamble to the interim final rule, FEC
submitted comments noting that FRA's proposed regulation did not
address its intended effect on pre-existing restrictions on the
sounding of locomotive horns at highway-rail grade crossings that
remain on the books. While FEC explained that it assumed that all local
ordinances preempted by EO 15 would remain null and void when FRA's
regulation on the Use of Locomotive Horns at Highway-Rail Grade
Crossings is made applicable to all highway-rail grade crossings within
the State of Florida, FEC requested that FRA specifically address the
status of impacted crossings in the final rule so as to avoid any
confusion among former whistle ban jurisdictions.
    Unlike EO 15, the provisions contained within this part only have a
limited preemptive effect on State laws governing the use of locomotive
audible

warning devices other than the locomotive horn at public highway-rail
grade crossings. As reflected in section 222.21(e) of this part, FRA
regulations do not require the sounding of locomotive audible warning
devices other than the locomotive horn at public highway-rail grade
crossings. However, if State law requires the sounding of a locomotive
audible warning device other than the locomotive horn at public
highway-rail grade crossings, then the requirements contained in
subsections (b) and (d) of section 222.21 of this part will apply to
the sounding of the locomotive audible warning device.
    In addition, as of the effective date of this final rule, the
provisions contained within this part will have limited preemptive
effect on State laws governing the use of train borne audible warnings
at private highway-rail grade crossings, as well as pedestrian grade
crossings. For example, section 222.45 prohibits routine locomotive
horn sounding at private highway-rail grade crossings and pedestrian
grade crossings located within duly established Federal quiet zones.
FRA regulations do not, however, require the sounding of locomotive
audible warning devices at private highway-rail grade crossings or
pedestrian grade crossings. Only if State law requires the sounding of
locomotive audible warning devices at private highway-rail grade
crossings or pedestrian grade crossings will the requirements set forth
in this part apply.\2\
---------------------------------------------------------------------------

    \2\ If State law requires locomotive horn sounding at private
highway-rail grade crossings or pedestrian grade crossings, the
requirements contained in section 222.21 of this part will apply.
However, if State law requires the sounding of a locomotive audible
warning device other than the locomotive horn at private highway-
rail grade crossings or pedestrian grade crossings, then the
requirements of subsections (b) and (d) of section 222.21 of this
part will apply to the sounding of that locomotive audible warning
device.
---------------------------------------------------------------------------

    In the preamble to the interim final rule, FRA discussed the types
of quiet zones (i.e., New Quiet Zone versus Pre-Rule Quiet Zone) that
could be established by public authorities seeking to restrict routine
locomotive horn sounding at highway-rail grade crossings which are
currently subject to EO 15. As stated in the preamble, since the
authorizing Florida statute and related local ordinances that imposed
nighttime whistle bans at certain FEC crossings were not enforced or
observed on October 9, 1996, and no quiet zones containing FEC
crossings had been established as of that date pursuant to the
procedures set forth in the EO 15 amendments, public authorities who
wish to establish Federal quiet zones that include highway-rail grade
crossings currently subject to EO 15 will not be able to qualify for
Pre-Rule Quiet Zone status. Therefore, any public authority seeking to
establish a Federal quiet zone that contains any highway-rail grade
crossing currently subject to EO 15 will need to comply with the
requirements for New Quiet Zones (or New Partial Quiet Zones) contained
in 49 CFR Part 222.
    On or after the effective date of this final rule, public
authorities will, however, be authorized to implement wayside horns at
public highway-rail grade crossings equipped with flashing lights and
gates, pursuant to the requirements contained within this part, as an
alternative to the audible warning provided by routine sounding of the
locomotive horn.\3\ FRA acknowledges that, when EO 15 was issued, FRA
was not prepared to endorse the implementation of wayside horns at
highway-rail grade crossings along the FEC line as an acceptable
substitute for routine sounding of the locomotive horn. However,
subsequent to the issuance of EO 15, a number of studies were conducted
on the effectiveness of wayside horn installations, the results of
which indicated that the use of wayside horns at highway-rail grade
crossings equipped with flashing lights and gates has merit under
certain well-defined conditions.\4\ In addition to a significant
reduction in noise impacts on the surrounding community when compared
to routine locomotive horn sounding practices, these studies revealed
that the implementation of wayside horn systems at highway-rail grade
crossings equipped with active warning devices does not appear to
degrade safety after routine locomotive horn sounding practices have
been discontinued. FRA also notes that, in its comments on the NPRM and
interim final rule, FDOT expressed support for the use of wayside horns
in certain instances where it is impossible or impracticable to install
supplementary safety measures. While FRA does not agree that the use of
wayside horns should be limited to situations where the implementation
of supplementary safety measures would be impractical or impossible,
based on the results of studies that evaluated the effectiveness of
wayside horn installations, the provisions of part 222 which address
the implementation of wayside horn systems will apply to highway-rail
grade crossings along the FEC line as of the effective date of this
final rule.
---------------------------------------------------------------------------

    \3\ A wayside horn system typically consists of horns mounted on
poles that are placed at the highway-rail grade crossing. A horn is
directed towards each direction of oncoming vehicular traffic. The
system is activated by the same track circuits used to detect the
train's approach for purposes of other automated warning devices at
the crossing (flashing lights and gates) and produces an audible
warning similar to warning provided by an approaching train.
    \4\ A detailed discussion of the studies that were conducted on
the effectiveness of wayside horn system installations can be found
in FRA's Interim Final Rule on the Use of Locomotive Horns at
Highway-Rail Grade Crossings (68 FR 70586, 70607-70609).
---------------------------------------------------------------------------

IV. Section-By-Section Analysis

Appendix G--Excess Risk Estimates for Public Highway-Rail Grade
Crossings

    Appendix G has been added to this part to establish a 90.9-percent
excess risk estimate for public highway-rail grade crossings that are
located along the FEC line. The excess risk estimate is a figure that
represents the amount by which collision frequency has been estimated
to increase when routine locomotive horn sounding is restricted at
public highway-rail grade crossings. Please refer to the previous
section titled, ``Calculation of the 90.9-Percent Excess Risk Estimate
for Public Highway-Rail Grade Crossings Along the FEC Line'', for more
information about the calculations that were used to derive the excess
risk estimate for public highway-rail grade crossings located along the
FEC line.
    Appendix G only provides an excess risk estimate for public FEC
crossings that are equipped with flashing lights and gates. FRA has not
provided excess risk estimates for passive FEC crossings or public FEC
crossings that are only equipped with flashing lights because public
authorities will only be permitted to establish New Quiet Zones (or New
Partial Quiet Zones) on the FEC line. As stated in section 222.35(b),
all public highway-rail grade crossings located in New Quiet Zones or
New Partial Quiet Zones must be equipped with active grade crossing
warning devices comprising both flashing lights and gates.
    Public authorities who are interested in establishing a New Quiet
Zone (or New Partial Quiet Zone) on the FEC line are advised to use
FRA's Quiet Zone Calculator, which can be accessed from FRA's Web site
at http://www.fra.dot.gov. FRA's Quiet Zone Calculator will
automatically apply the 90.9-percent excess risk estimate to public
highway-rail grade crossings along the FEC line. The calculator can be
used as a tool by public authorities for determining which combination
of Supplementary Safety Measures and Alternative Safety Measures (if
any) will be necessary to reduce their Quiet Zone Risk Index to an
acceptable level for quiet zone establishment (i.e., the Nationwide
Significant Risk Threshold

or the Risk Index With Horns). Please refer to Appendix C of this part
for a detailed guide to the establishment of quiet zones under this
part.

Appendix H--Schedule of Civil Penalties

    The former Appendix G to this part has been redesignated as
Appendix H. No other revisions have been made to this Appendix.

V. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated and determined not to be a
``significant regulatory action'', as defined in section 3(f) of
Executive Order 12866, nor a ``significant regulation'' under the
Regulatory Policies and Procedures order issued by DOT (44 FR 11034).
FRA has determined that this final rule will have a minimal cost impact
with positive net benefits. Under this final rule, locomotive horn
sounding will continue to be required at public grade crossings along
the FEC line, unless the public authority decides to include the public
grade crossing within a Federal quiet zone. Due to the voluntary nature
of quiet zone establishment, Florida cities and counties will establish
quiet zones only if the quiet zone benefits exceed the costs. FRA
estimates that this rule will potentially affect the 72 governmental
jurisdictions (cities, counties, towns, townships, villages, etc.) that
are located along the FEC line. Of these 72 jurisdictions, the
municipalities most likely to be affected are the 15 cities and seven
counties listed below that had whistle bans during the 1980s and early
1990s, who may wish to re-impose restrictions on routine locomotive
horn sounding at grade crossings through the establishment of Federal
quiet zones.

                                  Consolidated Prior Whistle Ban Jurisdictions
----------------------------------------------------------------------------------------------------------------
                                                                          Small      Large
                     Municipality                       Effective date     city       city      County    Total
----------------------------------------------------------------------------------------------------------------
Dade County...........................................       7/29/1984                                1
City of Hollywood.....................................      11/11/1984                     1
City of Daytona Beach.................................      11/12/1984                     1
City of South Daytona.................................      11/19/1984          1
City of New Smyrna Beach..............................        1/7/1985          1
Martin County.........................................       1/21/1985                                1
City of Fort Lauderdale...............................        3/4/1985                     1
City of Hallandale....................................        7/1/1985          1
City of Wilton Manors.................................       8/12/1985          1
City of Pompano Beach.................................        9/9/1985                     1
City of Deerfield Beach...............................      11/27/1985                     1
City of Oakland Park..................................       3/20/1986          1
Indian River County...................................       2/25/1987                                1
City of Port Orange...................................        6/4/1988                     1
St. Lucie County......................................        8/1/1988                                1
St. Johns County......................................       9/27/1988                                1
Palm Beach County.....................................       3/25/1989                                1
City of Sebastian.....................................       7/14/1989          1
City of Ormond Beach..................................       10/9/1989          1
City of Holly Hill....................................       11/4/1989          1
Brevard County........................................      11/27/1989                                1
City of Edgewater.....................................       1/29/1990          1
                                                       ---------------------------------------------------------
    Subtotal..........................................                          9          6          7       22
                                                       ---------------------------------------------------------
        Percentage....................................                        41%        27%        32%     100%
----------------------------------------------------------------------------------------------------------------
Note 1: Cities that were later covered under a county whistle ban ordinance are not listed here.
Note 2: A small city is one that has a population of less than 50,000 people (according to the SBA).
Source: FRA Report ``Florida's Train Whistle Ban'' (October 1995); U.S. Census Bureau.

    FRA sampled three out of the 9 small cities (33 percent), two out
of the six large cities (33 percent), and three out of the seven
counties (43 percent) on the FEC line that had whistle bans during the
1980s and early 1990s. Thus, the total sample analyzed was a 36-percent
sample (8/22 = 36%). These sampled jurisdictions were selected on the
basis of being representative of the jurisdictions contained within
each category of prior whistle ban jurisdictions. Based on a 36-percent
sample of prior whistle ban jurisdictions along the FEC line, the
average total cost of this final rule over 20 years for the 15 cities
and seven counties that had whistle bans during the 1980s and early
1990s and may wish to re-impose restrictions on routine locomotive horn
sounding is estimated to be about $7.5 million or $6.3 million in
present value cost (in 2008 dollars, 7 percent discount rate). The
table below shows a breakdown of these total costs by category.

      Total Costs per Category for Prior Whistle Ban Jurisdictions
------------------------------------------------------------------------
                                                             Total
                       Category                          (undiscounted)
------------------------------------------------------------------------
Small Cities.........................................           $549,000
Large Cities.........................................            840,000
Counties.............................................          6,104,000
                                                      ------------------
    Grand Total Costs................................          7,493,000
------------------------------------------------------------------------

    These costs will only be incurred if the local government believes
the quiet zone benefits exceed the costs. As stated above, locomotive
horn sounding will continue to be required at public grade crossings
along the FEC line. However, this final rule will allow local
governments along the FEC line to impose restrictions on locomotive
horn

sounding at grade crossings, provided measures are taken to compensate
for any excess risk associated with the locomotive horn sounding
restrictions. Thus, the impact of this final rule is expected to be
similar to that found in the analysis for new quiet zones that FRA
conducted for the final rule titled, ``Use of Locomotive Horns at
Highway-Rail Grade Crossings'', which was issued on April 27, 2005 (70
FR 21844). Because new quiet zone establishment requirements were
designed to ensure that safety levels would be maintained and
communities establish quiet zones only to the extent that they believe
benefits from doing so will exceed costs, that analysis concluded that
the rule would be cost beneficial. That argument applies to this rule
as well.
    Order DOT 2100.5 prescribes policies and procedures for
simplification, analysis, and review of regulations. If the expected
cost impact is so minimal that a proposed or final rule does not
warrant a full evaluation, this order permits that a statement to that
effect and the basis for it to be included in the preamble if a full
regulatory evaluation of the cost and benefits is not prepared. Such a
determination has been made for this final rule. Thus, a full
regulatory evaluation was not prepared. FRA has, therefore, determined
that this final rule is not a ``significant regulatory action'' as
defined in section 3(f) of Executive Order 12866, and is not a
``significant regulation'' as defined in DOT's Regulatory Policies and
Procedures.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed and final rules to assess their impact on
small entities, unless the agency certifies that the rule will have a
significant economic impact on a substantial number of small entities.
The Regulatory Flexibility Act covers a wide range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
    The Small Business Administration (SBA) stipulates that
governmental jurisdictions, which include cities, counties, towns,
townships, villages, school districts, or special districts, with
populations of less than 50,000 people, are small entities. (5 U.S.C.
601) Among the 66 governmental jurisdictions along the FEC line that
would potentially be impacted by this final rule, data from the 2000
U.S. Census indicates that 49 jurisdictions had populations of less
than 50,000 people, while 17 jurisdictions had populations of greater
than 50,000 people.
    Approximately 74 percent (49/66 = 74%) of the potentially affected
governmental jurisdictions along the FEC line would be considered small
entities under SBA criteria, based on data from the 2000 U.S. Census.
For comparison purposes, data from the 2006 Population Estimates
(source: U.S. Census Bureau) is also shown in the next table. Even
though data from the 2000 U.S. Census reflects actual population
counts, the estimated population figures contained in the 2006
Population Estimates are more up-to-date. (The next U.S. Census survey
that will provide an actual population count will not be conducted
until 2010.) The 49 small entities with known population counts that
could be impacted by this final rule are listed in the table below:

                                        Small Entities Along the FEC Line
----------------------------------------------------------------------------------------------------------------
                                                                                2006
            Number                      County                     City             2000 Census     Population
                                                                                population       Estimates
----------------------------------------------------------------------------------------------------------------
1............................  Brevard.................  Cocoa..................          16,412          16,743
2............................  Brevard.................  Malabar................           2,622           2,743
3............................  Brevard.................  Mims...................           9,147             ???
4............................  Brevard.................  Rockledge..............          20,170          24,290
5............................  Brevard.................  Titusville.............          40,670          44,027
6............................  Broward.................  Dania..................          20,061          28,802
7............................  Broward.................  Hallandale.............          34,282          39,372
8............................  Broward.................  Oakland Park...........          30,966          42,384
9............................  Broward.................  Wilton Manors..........          12,697          12,909
10...........................  Dade....................  Coral Gables...........          42,249          42,794
11...........................  Dade....................  Cutler Ridge...........          24,781             ???
12...........................  Dade....................  El Portal..............           2,505           2,399
13...........................  Dade....................  Florida City...........           7,843           9,445
14...........................  Dade....................  Goulds.................           7,453             ???
15...........................  Dade....................  Homestead..............          31,909          53,767
16...........................  Dade....................  Medley.................           1,098           1,050
17...........................  Dade....................  Miami Shores...........          10,380           9,882
18...........................  Dade....................  Perrine (East).........           7,079           7,477
19...........................  Dade....................  Perrine (West).........           8,600           9,084
20...........................  Dade....................  North Miami Beach......          40,786          39,030
21...........................  Flagler.................  Bunnell................           2,122           1,706
22...........................  Indian River............  Sebastian..............          16,181          20,255
23...........................  Indian River............  Vero Beach.............          17,705          16,939
24...........................  Martin..................  Hobe Sound.............          11,376             ???
25...........................  Martin..................  Port Salerno...........          10,141             ???
26...........................  Martin..................  Sewalls Point..........           1,946           2,024
27...........................  Martin..................  Stuart.................          14,633          16,155
28...........................  Palm Beach..............  Belle Glade............          14,906          15,233
29...........................  Palm Beach..............  Belle Glade Camp.......           1,141             ???
30...........................  Palm Beach..............  Hypoluxo...............           2,015           2,596
31...........................  Palm Beach..............  Jupiter................          39,328          48,847
32...........................  Palm Beach..............  Lake Park..............           8,721           8,893
33...........................  Palm Beach..............  Lake Worth.............          35,133          35,980
34...........................  Palm Beach..............  Lantana................           9,437          10,334
35...........................  Palm Beach..............  Mangonia Park..........           1,283           1,262
36...........................  Palm Beach..............  Pahokee................           5,985           6,581

37...........................  Palm Beach..............  Palm Beach Gardens.....          35,058          48,914
38...........................  Palm Beach..............  Riviera Beach..........          29,884          35,846
39...........................  Palm Beach..............  South Bay..............           3,859           4,554
40...........................  Palm Beach..............  Tequesta...............           5,273           5,942
41...........................  St. Johns...............  St. Augustine..........          11,592          12,064
42...........................  St. Lucie...............  Fort Pierce............          37,516          39,365
43...........................  Volusia.................  Edgewater..............          18,668          21,486
44...........................  Volusia.................  Holly Hill.............          12,119          13,325
45...........................  Volusia.................  New Smyrna Beach.......          20,048          22,732
46...........................  Volusia.................  Oak Hill...............           1,378           1,575
47...........................  Volusia.................  Ormond Beach...........          36,301          38,504
48...........................  Volusia.................  Port Orange............          45,823          54,851
49...........................  Volusia.................  South Daytona..........          13,177          13,541
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau.

    Seventeen of these small entity jurisdictions had whistle bans in
place during the 1980s and early 1990s. These seventeen jurisdictions,
which are most likely to be affected by this final rule, are shown
below:

                                   Small Entity FEC Whistle Ban Jurisdictions
----------------------------------------------------------------------------------------------------------------
                                                                                2006
         Number              Municipality           County        Effective date   2000  Census     Population
                                                                  of whistle ban    population       Estimates
----------------------------------------------------------------------------------------------------------------
1.......................  City of Hypoluxo *  Palm Beach........       9/24/1984           2,015           2,596
2.......................  Village of          Palm Beach........      10/23/1984           5,273           5,942
                           Tequesta *.
3.......................  City of South       Volusia...........      11/19/1984          13,177          13,541
                           Daytona.
4.......................  Town of Lantana *.  Palm Beach........        1/7/1985           9,437          10,334
5.......................  City of New Smyrna  Volusia...........        1/7/1985          20,048          22,732
                           Beach.
6.......................  Town of Jupiter *.  Palm Beach........       1/29/1985          39,328          48,847
7.......................  City of Lake Worth  Palm Beach........       2/15/1985          35,133          35,980
                           *.
8.......................  City of Hallandale  Broward...........        7/1/1985          34,282          39,372
9.......................  City of Wilton      Broward...........       8/12/1985          12,697          12,909
                           Manors.
10......................  City of Oakland     Broward...........       3/20/1986          30,966          42,384
                           Park.
11......................  City of Fort        St. Lucie.........       6/28/1986          37,516          39,365
                           Pierce **.
12......................  Town of Malabar     Brevard...........       4/13/1988           2,622           2,743
                           ***.
13......................  City of Titusville  Brevard...........       5/20/1988          40,670          44,027
                           ***.
14......................  City of Sebastian.  Indian River......       7/14/1989          16,181          20,255
15......................  City of Ormond      Volusia...........       10/9/1989          36,301          38,504
                           Beach.
16......................  City of Holly Hill  Volusia...........       11/4/1989          12,119          13,325
17......................  City of Edgewater.  Volusia...........       1/29/1990          18,668          21,486
----------------------------------------------------------------------------------------------------------------
* These cities were later covered under the Palm Beach County Ordinance (effective date of 3/25/89).
** These cities were later covered under the St. Lucie County Ordinance (effective date of 3/1/88).
*** These cities were later covered under the Brevard County Ordinance (effective date of 11/27/89).
Source: FRA Report ``Florida's Train Whistle Ban'' (October 1995); U.S. Census Bureau.

    By the end of 1989, eight of these small entity whistle ban
jurisdictions became part of county-wide whistle ban ordinances (as
indicated in the table above). As these county-wide whistle ban
ordinances cover governmental jurisdictions that have populations of
more than 50,000 people, eight of the previously determined small
entity whistle ban jurisdictions were removed from FRA's list of small
entities that are most likely to be affected by this final rule. Thus,
this rule will most likely affect nine small entities (17 - 8 = 9).
These nine small entities along with the estimated cost associated with
implementing upgrades are shown below.

                        Small Entities Most Likely To Be Affected by The Final Regulation
----------------------------------------------------------------------------------------------------------------
                                                                                Estimated
                                                                         2000         2006       establishment
            Number                 Municipality         County          Census     Population        costs
                                                                      population   estimates     (undiscounted)
----------------------------------------------------------------------------------------------------------------
1.............................  City of South      Volusia.........       13,177       13,541            $61,000
                                 Daytona.
2.............................  City of New        Volusia.........       20,048       22,732             93,000
                                 Smyrna Beach.
3.............................  City of            Broward.........       34,282       39,372             70,000
                                 Hallandale.
4.............................  City of Wilton     Broward.........       12,697       12,909             61,000
                                 Manors.
5.............................  City of Oakland    Broward.........       30,966       42,384             20,000
                                 Park.
6.............................  City of Sebastian  Indian River....       16,181       20,255             61,000

7.............................  City of Ormond     Volusia.........       36,301       38,504             61,000
                                 Beach.
8.............................  City of Holly      Volusia.........       12,119       13,325             61,000
                                 Hill.
9.............................  City of Edgewater  Volusia.........       18,668       21,486             61,000
----------------------------------------------------------------------------------------------------------------
Source: FRA Report ``Florida's Train Whistle Ban'' (October 1995); U.S. Census Bureau.

    The impact on these small entity jurisdictions will vary depending
on whether they would have to implement additional safety measures to
establish quiet zones and the type(s) of safety measures that may be
appropriate for implementation. In addition, these small entity
jurisdictions will need to decide whether to implement such measures or
continue to allow the locomotive horns to be sounded. The impact of
these decisions will also vary depending on the number of crossings in
quiet zones, the population density of the community neighborhoods that
immediately surround the affected grade crossings, and train traffic
volume over the affected crossings. Even though this final rule will
allow public authorities to establish Federal quiet zones that include
grade crossings along the FEC line, the establishment of quiet zones is
optional, so small entities will establish quiet zones only if the
quiet zone benefits exceed the costs. Thus, FRA certifies that this
final rule is not expected to have a significant economic impact on a
substantial number of small entities.

C. Paperwork Reduction Act

    There are no information collection requirements or burden per se
associated with this final rule. However, once this final rule goes
into effect, public authorities will be permitted to establish New
Quiet Zones along the FEC line in accordance with 49 CFR 222.
Presently, the entire information collection burden associated with
Part 222 is approved under FRA OMB No. 2130-0560. FRA intends to revise
this presently approved collection to account for any changes in burden
caused by this rulemaking and to request re-approval from OMB once this
final rule takes effect.

D. Environmental Impact

    FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (``FRA's
Procedures'') (64 FR 28545, May 26, 1999) as required by the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental
statutes, Executive Orders, and related regulatory requirements. FRA
has determined that this final rule is not a major FRA action
(requiring the preparation of an environmental impact statement or
environmental assessment) because it is categorically excluded from
detailed environmental review pursuant to section 4(c)(20) of FRA's
Procedures. In accordance with section 4(c) and (e) of FRA's
Procedures, the agency has further concluded that no extraordinary
circumstances exist with respect to this final rule that might trigger
the need for a more detailed environmental review. As a result, FRA
finds that this final rule is not a major Federal action significantly
affecting the quality of the human environment.

E. Federalism Implications

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``E.O. 13132''). E.O.
13132, which was issued on August 4, 1999, requires each agency that
promulgates ``any regulation that has federalism implications, that
imposes substantial direct compliance costs on State and local
governments, and that is not required by statute'' to consult with
State and local officials early in the process of developing the
proposed regulation; and in a separately identified portion of the
preamble to the regulation, to provide to the Director of the Office of
Management and Budget ``a federalism summary impact statement, which
consists of a description of the extent of the agency's prior
consultation with State and local officials, a summary of the nature of
their concerns and the agency's position supporting the need to issue
the regulation, and a statement of the extent to which the concerns of
State and local officials have been met * * *.''
    FRA has complied with E.O. 13132 in issuing this final rule. Even
though this final rule does not impose substantial direct compliance
costs on State and local governments, FRA consulted extensively with
State and local officials prior to the issuance of the NPRM. In
addition, FRA has taken very seriously the concerns and views expressed
by State and local officials as expressed in written comments, as well
as testimony provided at the April 15, 2005 public conference, on the
appropriate excess risk estimate that should be applied to public
highway-rail grade crossings along the FEC line.
    FRA received comments and written testimony on the appropriate
excess risk estimate that should be applied to public highway-rail
grade crossings along the FEC line from the Broward County Metropolitan
Planning Organization, the City of Hollywood, Florida, the City of Palm
Beach Gardens, Florida, and FDOT. While local jurisdictions expressed
interest in establishing Federal quiet zones along the FEC line, the
desire to balance quality of life concerns with the need to maintain
the current level of safety provided by routine sounding of the
locomotive horn, especially within densely populated areas, was also
raised. As for the specific issue of the appropriate excess risk
estimate that should be applied to public highway-rail grade crossings
along the FEC line, FDOT urged FRA to apply the nationwide excess risk
estimate of 66.8 percent to these crossings. FDOT also took issue with
FRA's prior analysis on the effect of nighttime whistle bans on
accident rates at public highway-rail grade crossings along the FEC
line, which indicated a 195-percent increase in the accident rate at
these crossings after nighttime whistle bans were imposed. An
explanation of FRA's response to these concerns is provided in the
Supplementary Information section of the preamble to this final rule.
    Under 49 U.S.C. 20153, the Department was required to issue rules
requiring locomotive horns to be sounded at every public highway-rail
grade crossing. The statute also makes clear that the Federal
government must take a leading role in establishing the framework for
providing exceptions to the requirement that horns sound at every
public highway-rail grade crossing. Through issuance of FRA's final
rule on the Use of Locomotive

Horns at Highway-Rail Grade Crossings on August 17, 2006 (71 FR 47614),
FRA established a nationwide framework for the establishment of Federal
quiet zones within which routine locomotive horn sounding practices at
grade crossings can be restricted and/or prohibited. However, FRA's
final rule on the Use of Locomotive Horns at Highway-Rail Grade
Crossings did not apply to highway-rail grade crossings along the FEC
line. Through issuance of this final rule, governmental jurisdictions
within the State of Florida will be permitted to establish Federal
quiet zones that include grade crossings located along the FEC line,
pursuant to the procedures set forth in FRA's final rule on the Use of
Locomotive Horns at Highway-Rail Grade Crossings.
    Due to the voluntary nature of quiet zone establishment, any direct
compliance costs that will be borne by State and local governments will
be optional in nature. Accordingly, FRA has determined that this final
rule will not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.

F. Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $141,300,000 or more
(adjusted annually for inflation) in any 1 year, and before
promulgating any final rule for which a general notice of proposed
rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector.
    This final rule will not result in the expenditure of more than
$141,300,000 (adjusted annually for inflation) by the public sector in
any one year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking that: (1)(i) Is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
This final rule has been evaluated in accordance with Executive Order
13211. FRA has determined that this final rule, which is not a
significant regulatory action under Executive Order 12866, will not
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, this regulatory action is not a ``significant
energy action'' within the meaning of Executive Order 13211.

H. Privacy Act Statement

    Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document), if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit www.regulations.gov.

List of Subjects in 49 CFR Part 222

    Administrative practice and procedure, Penalties, Railroad safety,
Reporting and recordkeeping requirements.

The Rule

0
In consideration of the foregoing, FRA is amending part 222 of chapter
II, subtitle B of title 49, Code of Federal Regulations, as follows:

PART 222--[AMENDED]

0
1. The authority citation for part 222 continues to read as follows:

    Authority:  28 U.S.C. 2461, note; 49 U.S.C. 20103, 20107, 20153,
21301, 21304; and 49 CFR 1.49.

Appendix G to Part 222 [Redesignated as Appendix H]

0
2. Appendix G to Part 222 is redesignated as Appendix H to Part 222.

Sec.  222.11  [Amended]

0
3. Section 222.11 is amended by removing the reference ``Appendix G to
this part'' and by adding the reference ``Appendix H to this part'' in
its place.

0
4. A new Appendix G to Part 222 is added to read as follows:

Appendix G to Part 222--Excess Risk Estimates for Public Highway-Rail
Grade Crossings

                  Ban Effects/Train Horn Effectiveness
                             [Summary table]
------------------------------------------------------------------------
               Warning type                     Excess risk estimate
------------------------------------------------------------------------
Nation (Except Florida East Coast Railway and Chicago Region Crossings)
------------------------------------------------------------------------
Passive...................................  74.9.
Flashers only.............................  30.9.
Flashers with gates.......................  66.8.
------------------------------------------------------------------------
Florida East Coast Railway Crossings
------------------------------------------------------------------------
Flashers with gates.......................  90.9.
------------------------------------------------------------------------
Chicago Region Crossings
------------------------------------------------------------------------
Passive...................................  To be determined.
Flashers only.............................  To be determined.
Flashers with gates.......................  To be determined.
------------------------------------------------------------------------

    Note One:  The warning type column reflects primary warning
device types. FRA is aware that a variety of arrangements are in
place at individual crossings.

    Note Two:  The ``excess risk estimate'' is a figure that
represents the amount by which collision frequency has been
estimated to increase when routine locomotive horn sounding is
restricted at public highway-rail grade crossings.

    Issued in Washington, DC, on August 28, 2009.
Karen J. Rae,
Deputy Administrator, Federal Railroad Administration.
[FR Doc. E9-21380 Filed 9-8-09; 8:45 am]

BILLING CODE 4910-06-P