46384 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

325(a) of the Communications Act of 

1934, as amended. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality with 

this information collection. 

Privacy Act Impact Assessment: No 

impact(s). 

Needs and Uses: On June 29, 2009, 

the Commission adopted a Report and 

Order, Amendment of Service and 

Eligibility Rules for FM Broadcast 

Translator Stations, MB Docket No. 07– 

172, FCC 09–59. In the Report and 

Order, the Commission adopted several 

rule changes that would allow AM 

stations to use FM translator stations to 

rebroadcast the AM signal. Therefore, 47 

CFR 74.1284 is one of the rules that was 

changed as a result of the Commission 

adopting FCC 09–59. 47 CFR 74.1284 

requires that the licensee of an FM 

translator station obtain prior consent to 

rebroadcast programs of any broadcast 

station or other FM translator. The 

licensee of the FM translator station 

must notify the Commission of the call 

letters of each station rebroadcast and 

must certify that written consent has 

been received from the licensee of that 

station. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–21518 Filed 9–8–09; 8:45 am] 

BILLING CODE 6712–01–S 

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: (202) 

493–6299); or Kathryn Shelton, Office of 

Chief Counsel, Mail Stop 10, FRA, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590 (telephone: (202) 493–6038). 

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 corridorwide 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 


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1The 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 highwayrail 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. 

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. 

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 countywide 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 preexisting 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, 


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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 crossing activations 

per accident 

(approximate) 

Post-ban crossing activations 

per accident 

(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 postban accident data (February 1985 

through December 1999) for FEC 


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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46387 

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 preban 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 postban 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 fourquadrant 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 bilingual 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 


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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 fourquadrant 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 HighwayRail 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 


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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. 

3A 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. 

4A 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). 

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

In the preamble to the interim final 

rule, FRA discussed the types of quiet 

zones (i.e., New Quiet Zone versus PreRule 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 highwayrail 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. 

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 


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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

Municipality Effective date Small city Large 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

Category Total 

(undiscounted) 

Small Cities ..................... $549,000 

Large Cities .................... 840,000 

Counties .......................... 6,104,000 

TOTAL COSTS PER CATEGORY FOR

PRIOR WHISTLE BAN JURISDICTIONS—Continued 

Category Total 

(undiscounted) 

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 


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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 HighwayRail 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 upto-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

Number County City 2000 Census 

population 

2006 

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 


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SMALL ENTITIES ALONG THE FEC LINE—Continued 

Number County City 2000 Census 

population 

2006 

Population 

Estimates 

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

Number Municipality County Effective date 

of whistle ban 

2000 

Census 

population 

2006 

Population 

Estimates 

1 ........................ City of Hypoluxo * ........................... Palm Beach .................................... 9/24/1984 2,015 2,596 

2 ........................ Village of Tequesta * ....................... Palm Beach .................................... 10/23/1984 5,273 5,942 

3 ........................ City of South Daytona .................... Volusia ............................................ 11/19/1984 13,177 13,541 

4 ........................ Town of Lantana * ........................... Palm Beach .................................... 1/7/1985 9,437 10,334 

5 ........................ City of New Smyrna Beach ............ Volusia ............................................ 1/7/1985 20,048 22,732 

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 Manors ..................... Broward ........................................... 8/12/1985 12,697 12,909 

10 ...................... City of Oakland Park ...................... Broward ........................................... 3/20/1986 30,966 42,384 

11 ...................... City of Fort Pierce ** ....................... St. Lucie .......................................... 6/28/1986 37,516 39,365 

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 Beach .................... Volusia ............................................ 10/9/1989 36,301 38,504 

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

Number Municipality County 

2000 

Census 

population 

2006 

Population 

estimates 

Estimated 

establishment 

costs 

(undiscounted) 

1 .................. City of South Daytona ........................ Volusia ................................................ 13,177 13,541 $61,000 

2 .................. City of New Smyrna Beach ................ Volusia ................................................ 20,048 22,732 93,000 

3 .................. City of Hallandale ............................... Broward .............................................. 34,282 39,372 70,000 

4 .................. City of Wilton Manors ......................... Broward .............................................. 12,697 12,909 61,000 

5 .................. City of Oakland Park .......................... Broward .............................................. 30,966 42,384 20,000 

6 .................. City of Sebastian ................................ Indian River ......................................... 16,181 20,255 61,000 


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SMALL ENTITIES MOST LIKELY TO BE AFFECTED BY THE FINAL REGULATION—Continued 

Number Municipality County 

2000 

Census 

population 

2006 

Population 

estimates 

Estimated 

establishment 

costs 

(undiscounted) 

7 .................. City of Ormond Beach ........................ Volusia ................................................ 36,301 38,504 61,000 

8 .................. City of Holly Hill .................................. Volusia ................................................ 12,119 13,325 61,000 

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 highwayrail 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 


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46394 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

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 

■ 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] 

■ 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] 

■ 2. Appendix G to Part 222 is 

redesignated as Appendix H to Part 222. 

§ 222.11 [Amended] 

■ 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. 

■ 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 


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