[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44790-44792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3871]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 222

[Docket No. FRA-2007-27285, Notice No. 1]
RIN 2130-AB86


Use of Locomotive Horns at Highway-Rail Grade Crossings; 
Technical Amendments to Appendix D

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

ACTION: Direct final rule.

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SUMMARY: This direct final rule makes technical amendments to appendix 
D of part 222 of the Code of Federal Regulations to update information 
contained in the appendix and direct the public to the most recent 
value of the Nationwide Significant Risk Threshold (NSRT). The 
amendments are intended to eliminate confusion regarding the data and 
calculations that will be used to determine the NSRT on an annual 
basis. Interested parties may submit written adverse comments or 
request an oral hearing on these amendments during the thirty (30) day 
period following publication of this direct final rule.

DATES: Effective Date: Unless FRA receives written adverse comment or a 
request for an oral hearing on this direct final rule, the effective 
date will be October 9, 2007.
    Written Comments: Comments or a request for an oral hearing must be 
received by September 10, 2007.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FRA-2007-27285 by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: (202) 493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: Room W12-140 on the West Building Ground 
Floor, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 
5 p.m., Monday through Friday, except Federal holidays.
     Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket name and docket number or Regulatory Identification Number (RIN) 
for this rulemaking. Note that all comments received will be posted 
without change to http://dms.dot.gov, including any personal 
information provided. Please see the Privacy Act heading later in this 
document for more information.
    Docket: For access to the docket to read comments received, go to 
http://dms.dot.gov at any time or go to Room W12-140 on the West 
Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Ronald Ries, Office of Safety, Mail 
Stop 25, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 
(telephone: (202) 493-6299); or Kathryn Shelton, Office of Chief 
Counsel, Mail Stop 10, FRA, 1120 Vermont Avenue, NW., Washington, DC 
20590 (telephone: (202) 493-6038).

SUPPLEMENTARY INFORMATION:

Background

    Appendix D of part 222 of title 49 of the Code of Federal 
Regulations was included in the interim final rule (68 FR 70586) in 
order to provide additional information about the calculations 
underlying various risk calculations discussed within the part. Even 
though a minor modification was made to appendix D when the final rule 
was issued (70 FR 21844, April 27, 2005), the appendix was not revised 
to reflect necessary variations in the data that would be used in 
future risk index calculations.

Changes to Appendix D

    FRA has determined that appendix D needs to be revised in order to 
eliminate confusion about the data that will be used in certain risk 
index calculations. As currently written, portions of appendix D 
contain specific numbers and dates that are required to be revised on 
an annual basis, in order to properly calculate the NSRT. For example, 
in paragraph (e) under the section titled ``Risk Index'', a specific 
value is listed for the total number of collisions identified over a 
five-year period. However, each year that the NSRT is recalculated, 
this number and the date range will need to change. Otherwise, the NSRT 
value will not accurately reflect current risk levels at gated 
crossings nationwide where train horns are routinely sounded. 
Therefore, FRA is revising appendix D by removing references to 
specific numbers and dates that will change from year to year and 
simply leaving the relevant formulas. (Actual numbers will be provided 
in annual Federal Register notices announcing FRA's recalculation of 
the NSRT value.) FRA believes these technical amendments will avoid any 
misunderstanding or confusion over how the NSRT is calculated.

Notice and Comment Procedures

    FRA has determined that these technical amendments to appendix D 
are nonsubstantive clarifications that will make the appendix more 
accurate, without changing the actual risk index calculations that were 
contained in the final rule. While FRA does not anticipate any adverse 
comment, interested parties may submit written adverse comments or 
request an oral hearing on these amendments during

[[Page 44791]]

the thirty (30) day period immediately following publication of this 
direct final rule.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034 
(Feb. 26, 1979)).

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
a review of proposed and final rules to assess their impact on small 
entities, unless the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Pursuant to Section 312 of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a final policy 
that formally establishes ``small entities'' as including railroads 
that meet the line-haulage revenue requirements of a Class III 
railroad. 49 CFR part 209, app. C. For other entities, the same dollar 
limit in revenues governs whether a railroad, contractor, or other 
respondent is a small entity. Id.
    FRA certifies that this direct final rule will have no significant 
economic impact on a substantial number of small entities. To the 
extent that this rule has any impact on small entities, the impact will 
not be significant.

Paperwork Reduction Act

    There are no new information collection requirements associated 
with this direct final rule. Therefore, no estimate of a public 
reporting burden is required.

Federalism Implications

    Executive Order 13132, entitled, ``Federalism,'' issued on August 
4, 1999, requires that each agency ``in a separately identified portion 
of the preamble to the regulation as it is to be issued in the Federal 
Register, 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 the State and local 
officials have been met * * *.'' This rulemaking action has been 
analyzed in accordance with the principles and criteria contained in 
Executive Order 13132. This rule will not have a substantial direct 
effect on States, on the relationship between the National Government 
and the States, or on the distribution of power and the 
responsibilities among the various levels of government, as specified 
in the Executive Order 13132. Accordingly, FRA has determined that this 
rule will not have sufficient federalism implications to warrant 
consultation with State and local officials or the preparation of a 
federalism assessment. Accordingly, a federalism assessment has not 
been prepared.

Environmental Impact

    FRA has evaluated this regulation 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 regulation 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. 
64 FR 28545, 28547, May 26, 1999. 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 regulation that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this regulation is not a major Federal action 
significantly affecting the quality of the human environment.

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 expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of [$120,800,000 or more (as 
adjusted 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. 
The direct final rule will not result in the expenditure, in the 
aggregate, of $120,800,000 or more in any one year, and thus 
preparation of such a statement is not required.

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) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this direct final rule in accordance with 
Executive Order 13211. FRA has determined that this direct final rule 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulatory action is not a ``significant energy action'' within 
the meaning of Executive Order 13211.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 222

    Use of locomotive horns, Railroad safety.

The Rule

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

[[Page 44792]]

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; 49 CFR 1.49.

0
2. Appendix D to Part 222 is amended by revising paragraphs (b) through 
(e) in the section titled ``RISK INDEX'' to read as follows:

Appendix D to Part 222--Determining Risk Levels

* * * * *

Risk Index

* * * * *
    (b) The average number of fatalities observed in fatal 
collisions and the average number of injuries in collisions 
involving injuries are calculated by FRA as described in paragraphs 
(c) through (e).
    (c) FRA will match the highway-rail incident files for the past 
five years against a data file containing the list of grade 
crossings where the train horn was not routinely sounded over that 
five-year period to identify two types of collisions involving 
trains and motor vehicles: (1) Those that occurred at crossings 
where the train horn was not routinely sounded during the period, 
and (2) those that occurred at crossings equipped with automatic 
gates where the train horn was routinely sounded. Certain records 
will be excluded, including records pertaining to incidents where 
the driver was not in the motor vehicle or where the motor vehicle 
struck the train beyond the fourth locomotive or rail car that 
entered the crossing. FRA believes that sounding the train horn 
would not be very effective at preventing such incidents.\1\
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    \1\ The data used to make these exclusions is contained in 
blocks 18--Position of Car Unit in Train; 19--Circumstance: Rail 
Equipment Struck/Struck by Highway User; 28--Number of Locomotive 
Units; and 29--Number of Cars on the current FRA Form 6180-57 
Highway-Rail Grade Crossing Accident/Incident Report.
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    (d) Collisions in the group containing the gated crossings 
nationwide where horns were routinely sounded will then be 
identified as fatal, injury only or no casualty. Collisions will be 
identified as fatal if one or more deaths occurred, regardless of 
whether injuries were also sustained. Collisions will be identified 
as injury only when injuries, but no fatalities, resulted.
    (e) The collisions (incidents) will be summarized by year for 
the five-year period preceding the year in which the risk index is 
being updated. The fatality rate for each year will be calculated by 
dividing the number of fatalities by the number of fatal incidents. 
The injury rate will be calculated by dividing the number of 
injuries in injury only incidents by the number of injury only 
incidents. FRA will publish updated fatality and injury rates on an 
annual basis in the Federal Register.
* * * * *

0
3. Appendix D to Part 222 is amended by revising the section titled, 
``Nationwide Significant Risk Threshold'' to read as follows:

Appendix D to Part 222--Determining Risk Levels

* * * * *

Nationwide Significant Risk Threshold

    The Nationwide Significant Risk Threshold is simply an average 
of the risk indexes for all of the gated public crossings nationwide 
where train horns are routinely sounded. This value will be 
recalculated annually and published in a notice in the Federal 
Register. For the most recent value of the Nationwide Significant 
Risk Threshold, please visit FRA's public Web site at http://www.fra.dot.gov.
* * * * *
0
4. Appendix D to Part 222 is amended by revising the section titled, 
``Crossing Corridor Risk Index'' to read as follows:

Appendix D to Part 222--Determining Risk Levels

* * * * *

Crossing Corridor Risk Index

    The Crossing Corridor Risk Index is the average of the risk 
indexes of all the public crossings in a defined rail corridor.
* * * * *

    Issued in Washington, DC on August 2, 2007.
Clifford C. Eby,
Federal Railroad Deputy Administrator.
[FR Doc. 07-3871 Filed 8-8-07; 8:45 am]
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