[Federal Register: January 3, 2005 (Volume 70, Number 1)]
[Rules and Regulations]
[Page 143-191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ja05-13]
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Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 224
Reflectorization of Rail Freight Rolling Stock; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 224
[Docket No. FRA-1999-6689, Notice No. 4]
RIN 2130-AB41
Reflectorization of Rail Freight Rolling Stock
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FRA is issuing this final rule to mandate the reflectorization
of freight rolling stock (freight cars and locomotives) to enhance the
visibility of trains in order to reduce the number and severity of
accidents at highway-rail grade crossings in which train visibility is
a contributing factor. This rule establishes a schedule for the
application of retroreflective material and prescribes standards for
the construction, performance, application, inspection, and maintenance
of the material.
DATES: Effective Date: March 4, 2005. The incorporation by reference of
a certain publication listed in the rule is approved by the Director of
the Federal Register as of March 4, 2005.
FOR FURTHER INFORMATION CONTACT: Dr. Tom Blankenship, Mechanical
Engineer, Office of Safety, FRA, 1120 Vermont Ave., NW., Mailstop 25,
Washington, DC 20590 (telephone: 202-493-6446); Mary Plache, Industry
Economist, Office of Safety, FRA, 1120 Vermont Ave., NW., Mailstop 25,
Washington, DC 20590 (telephone: 202-493-6297); or Lucinda Henriksen,
Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Ave., NW.,
Mailstop 10, Washington, DC 20590 (telephone: 202-493-6038).
SUPPLEMENTARY INFORMATION:
Background
On November 6, 2003, FRA published a notice of proposed rulemaking
(NPRM) proposing to require retroreflective material on the sides of
freight rolling stock (freight cars and locomotives) to enhance the
visibility of trains. 68 FR 62942. The NPRM represented a partial
solution to a safety problem that has long concerned FRA--the need to
reduce the incidence and severity of collisions between motor vehicles
and trains at highway-rail grade crossings throughout the United
States, especially during conditions of darkness or reduced visibility.
As noted in the NPRM, approximately 4,000 times each year, a train
and a highway vehicle collide at a highway-rail grade crossing in the
United States. Approximately 23% of all highway-rail grade crossing
accidents involve motor vehicles running into trains occupying grade
crossings (``RIT'' accidents). Many of these RIT accidents occur during
nighttime conditions (dawn, dusk, and darkness) and involve a highway
vehicle striking a train behind the first two units of the consist.
This suggests that a contributing factor to many RIT accidents is the
difficulty motorists have in seeing a train consist at a crossing in
time to stop their vehicles before reaching the crossing, particularly
during periods of limited visibility, such as dawn, dusk, darkness, or
during adverse weather conditions.
As explained in the NPRM, the physical characteristics of trains,
in combination with the characteristics of grade crossings (e.g., grade
crossing configuration, type of warning devices at a crossing, rural
background environment with low level ambient light, or visually
complex urban background environment, etc.), and the inherent
limitations of human eyesight, often make it difficult for motorists to
detect a train's presence on highway-rail grade crossings, particularly
during periods of limited visibility. Freight trains lack conspicuity
in different environmental settings. For example, trains are typically
painted a dark color and are often covered with dirt and grime which
are inherent in the railroad environment. With the exception of
locomotives, trains are usually unlighted and are not equipped with
reflective devices. Similarly, a large percentage of crossings are not
lighted. Consequently, much of the light from an approaching motor
vehicle's headlights is absorbed by the freight cars, instead of being
reflected back toward the motorist. In addition, the large size of
freight cars also makes them difficult to detect. For instance, even if
a motorist is looking for a train, if the locomotive has already
passed, it is difficult to detect the freight cars because the cars
often encompass the motorist's entire field of view and have the
tendency to ``blend'' into the background environment, especially at
night. Also, because most drivers involved in grade crossing accidents
are familiar with the crossings and with roadway features at the
crossings, the drivers become habituated (or preconditioned) to the
crossings. Based on previous driving experiences and conditioning, a
driver may not expect a train to be occupying a crossing, and without a
clear auditory signal (because the locomotive has already cleared the
crossing) or visual stimuli alerting the driver to a train traveling
through the crossing, the driver may fail to perceive the train in time
to stop. This condition is further exacerbated when a train is stopped
on a crossing.
There is currently no requirement for lighting or reflective
markings on freight rolling stock. However, as explained in the NPRM,
reflectorization has become an indispensable tool for enhancing
visibility in virtually all other modes of transportation, including
air, highway, maritime, and pedestrian travel. For example, airplanes
and motor vehicles are equipped with high brightness retroreflective
material at key locations on the exterior surfaces to increase their
conspicuity. Microprismatic corner cube retroreflectors (which have the
ability to direct light rays back to the light source) are typically
used on roadway signs that warn of construction or other hazardous
conditions. Federal regulations require retroreflective materials on
the sides and rear of large trucks to increase their conspicuity and to
aid motorists in judging their proximity to these vehicles. Even
regulations addressing bicycle safety have specific requirements on the
use of reflective materials. Lifesaving marine equipment, such as life
vests and rafts, require reflectorization; and to enhance the
conspicuity of pedestrians, especially at night, retroreflective
material has been incorporated into clothing and similar items.
The everyday use of reflectors indicates their acceptance to
delineate potential hazards and obstructions in a vehicle's path of
travel. Research specific to the railroad industry has demonstrated
that reflective materials can increase the conspicuity of freight cars,
thereby enhancing motorists' ability to detect the presence of trains
in highway-rail grade crossings. Reflective material on rail equipment
increases visibility inexpensively, and does not require a power source
to produce light, but returns light produced from another source (i.e.,
an approaching automobile's headlights). This greater visibility can
help drivers avoid some accidents and reduce the severity of other
accidents that are unavoidable. Accordingly, FRA, as the Federal agency
responsible for ensuring that America's railroads are safe for the
traveling public, and in direct response to a Congressional mandate, is
issuing this final rule requiring the application of reflective
material on the sides of certain rail cars and locomotives to enhance
the visibility of trains in order to reduce the number and severity of
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accidents at highway-rail grade crossings where train visibility is a
contributing factor.
A. Statutory Authority and Congressional Mandate
FRA has broad statutory authority to regulate all areas of railroad
safety. The Federal Railroad Safety Act of 1970 (Safety Act) (formerly
45 U.S.C. 421, 431 et seq., now found primarily in chapter 201 of Title
49) grants the Secretary of Transportation (``Secretary'') rulemaking
authority over all areas of railroad safety (49 U.S.C. 20103(a)) and
confers all powers necessary to detect and penalize violations of any
rail safety law. This authority was subsequently delegated to the FRA
Administrator (49 CFR 1.49). (Until July 5, 1994, the Federal railroad
safety statutes existed as separate acts found primarily in Title 45 of
the United States Code. On that date, all of the acts were repealed,
and their provisions were recodified into Title 49.)
The term ``railroad'' is defined in the Safety Act to include
all forms of non-highway ground transportation that runs on rails or
electromagnetic guideways, * * * other than rapid transit operations
within an urban area that are not connected to the general railroad
system of transportation.
49 U.S.C. 20102. This definition makes clear that FRA has jurisdiction
over (1) rapid transit operations within an urban area that are
connected to the general railroad system of transportation, and (2) all
freight, intercity, passenger, and commuter rail passenger operations
regardless of their connection to the general railroad system of
transportation or their status as a common carrier engaged in
interstate commerce. FRA has issued a policy statement describing how
it determines whether particular rail passenger operations are subject
to FRA's jurisdiction (65 FR 42529 (July 2,2000)); the policy statement
can be found in Appendix A to 49 CFR parts 209 and 211.
Pursuant to its statutory authority, FRA promulgates and enforces a
comprehensive regulatory program to address railroad track, signal
systems, railroad communications, rolling stock, rear-end marking
devices, safety glazing, railroad accident/incident reporting,
locational requirements for dispatching of U.S. rail operations, safety
integration plans governing railroad consolidations, merger and
acquisitions of control, operating practices, passenger train emergency
preparedness, alcohol and drug testing, locomotive engineer
certification, and workplace safety.
In 1994 Congress passed the Federal Railroad Safety Authorization
Act of 1994, Public Law 103-440 (``Act''). The Act added section 20148
to title 49 of the United States Code. Section 20148 required the
Secretary, and by delegation, FRA, to conduct a review of the
Department of Transportation's (``Department'') rules with respect to
the visibility of railroad cars and mandated that if the review
established that enhanced railroad car visibility would likely improve
safety in a cost-effective manner, the Secretary initiate a rulemaking
proceeding to ``prescribe regulations requiring enhanced visibility
standards for newly manufactured and remanufactured railroad cars.''
Section 20148 specifically directed the Secretary to examine the use of
reflectors. Section 20148 reads as follows:
(a) REVIEW OF RULES.--The Secretary of Transportation shall
conduct a review of the Department of Transportation's rules with
respect to railroad car visibility. As part of this review, the
Secretary shall collect relevant data from operational experience by
railroads having enhanced visibility measures in service.
(b) REGULATIONS.--If the review conducted under subsection (a)
establishes that enhanced railroad car visibility would likely
improve safety in a cost-effective manner, the Secretary shall
initiate a rulemaking proceeding to prescribe regulations requiring
enhanced visibility standards for newly manufactured and
remanufactured railroad cars. In such proceeding the Secretary shall
consider, at a minimum--
(1) visibility of railroad cars from the perspective of
nonrailroad traffic;
(2) whether certain railroad car paint colors should be
prohibited or required;
(3) the use of reflective materials;
(4) the visibility of lettering on railroad cars;
(5) the effect of any enhanced visibility measures on the health
and safety of train crew members; and
(6) the cost/benefit ratio of any new regulations.
(c) EXCLUSIONS.--In prescribing regulations under subsection
(b), the Secretary may exclude from any specific visibility
requirement any category of trains or railroad operations if the
Secretary determines that such an exclusion is in the public
interest and is consistent with railroad safety.
B. History of Railroad Car Conspicuity Issue
As explained in the NPRM, the term ``conspicuity,'' as applied to
rail car visibility, refers to the characteristics of a rail car in its
roadway setting to command the attention of approaching motorists and
be recognizable to reasonably prudent motorists at sufficient distance
to allow the motorists to reduce their vehicles' speed and take action
to avoid collisions. As also noted in the NPRM, the issue of rail car
``conspicuity'' is not a new concept. Research dating back to the early
1950's identified the potential viability of rail car conspicuity
materials such as luminous sources (lights on rail cars), self-luminous
sources (phosphorescent), and reflective sources. By the 1970's,
researchers had generally concluded that although luminous and
reflective sources both proved effective in enhancing the visibility of
trains, reflectors provided conspicuity at a greater distance and field
of vision. Although the general consensus of historical research was
that reflective materials could increase the conspicuity of objects to
which they are attached, previous generations of reflective materials
did not reflect enough light to be effective in the railroad
environment and lacked the durability to survive the harsh railroad
operating environment.
FRA first evaluated the use of reflective material on rail rolling
stock in the early 1980s and supported a study completed in 1982 on the
potential use of reflectorization to reduce nighttime accidents at
highway-rail intersections. The study concluded that although the use
of reflective material enhanced the visibility of trains, the
reflective material was not durable enough to withstand the harsh
railroad environment. It was decided that rulemaking action was not
warranted at that time.
Since 1982, however, improvements in the brightness, durability,
and adhesive properties of reflective material have been achieved.
Specifically, a new material--microprismatic retroreflective material--
was developed. Because of the technological advances in reflective
materials and the creation of microprismatic retroreflective material,
FRA renewed its research efforts in the early 1990s. By 1999, FRA's
research had led to the conclusion that the durability and adhesive
properties of the new microprismatic retroreflective material could
provide adequate luminance intensity levels which could be sustained
for up to 10 years with minimum maintenance. See Safety of Highway-
Railroad Grade Crossings: Freight Car Reflectorization, DOT/FRA/ORD-98/
11, John A. Volpe National Transportation Systems Center (Jan. 1999)
(1999 Volpe Report).\1\ A copy of the 1999 Volpe Report is in the
docket
[[Page 146]]
of this proceeding (Document No. FRA-1999-6689-17).
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\1\ A more detailed description of FRA's studies of freight car
reflectorization can be found in the NPRM (See 68 FR 62946--62949)
and, where relevant, the Section-by-Section analysis that follows in
this preamble.
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In order to provide an opportunity for all interested parties to
share their views, concerns, and experiences with regard to rail car
reflectorization, subsequent to the publication of the 1999 Volpe
Report, in July 1999 FRA hosted a workshop on reflectorization of rail
rolling stock. Representatives from the railroad industry, reflector
manufacturing and supply companies, the National Transportation Safety
Board and the National Highway Traffic Safety Administration (NHTSA),
as well as other interested parties participated in the workshop.
During the workshop, discussion focused on the potential effectiveness
of rail car reflectorization under a variety of circumstances (e.g.,
the potential effectiveness of reflectors during the nighttime versus
the daytime, at passively protected crossings versus actively protected
crossings), as well as more practical aspects of any rail car
reflectorization program (e.g., maintenance and cleaning requirements,
when and where reflector installation would occur, and the costs
involved in installing and maintaining the reflectors). A copy of the
transcript of this workshop is included in the docket of this
proceeding (Document No. FRA-1999-6689-7).
Recognizing that part of the review mandated by Congress included
collecting relevant data from operational experience by railroads
having enhanced visibility measures in service, on January 14, 2000,
FRA established a public docket (Docket No. FRA-1999-6689) to provide
all interested parties with a central location to both send and review
relevant information concerning railcar conspicuity and to the provide
a venue to gather and disseminate information on the issues. The docket
in this proceeding contains several submissions from FRA, as well as
comments from members of the public, local and state governments,
reflective material manufacturing and supply companies, members of the
railroad industry, and the regulated community. Comments submitted in
response to the NPRM will be discussed in more detail below.
Because FRA's research concluded that reflectorization could
enhance rail car visibility, FRA conducted a preliminary cost-benefit
analysis (``Preliminary Analysis'') to determine whether
reflectorization would provide a cost effective method of reducing the
number of collisions at highway-rail grade crossings and the casualties
and property damages which result from those collisions. The
Preliminary Analysis concluded that the benefits of a uniform,
nationwide freight car reflectorization program would far outweigh the
costs of such a program. FRA published the results of its Preliminary
Analysis in the Federal Register on October 26, 2001. See 66 FR 54326.
A copy of the Preliminary Analysis is in the docket of this proceeding
(Document No. FRA-1999-6689-25).
Because of the rail industry's continued interest in the issue of
rail car reflectorization, FRA met with members of the regulated
community on March 24, 2003, to again listen to their comments and
concerns regarding reflectorization. During this meeting, participants
again raised important considerations regarding many practical aspects
of a potential reflectorization program (e.g., a feasible schedule for
the application of reflectors to rail cars, what types of reflective
material would be required, reflector cleaning and maintenance
responsibilities, and when and where reflectors would be applied to
cars).
After careful review and consideration of all the relevant research
and data, and the comments submitted in this proceeding, FRA concluded
that reflectorization of rail freight rolling stock is a feasible
method of enhancing rail car visibility that would improve safety in a
cost-effective manner. Accordingly, FRA issued an NPRM on November 6,
2003, proposing to require the use of reflective material on the sides
of certain rail cars and locomotives.
Subsequent to issuance of the NPRM, FRA held a public hearing in
Washington, DC on January 27, 2004. Approximately 30 individuals
representing various organizations and businesses involved in the
railroad and reflector manufacturing industry participated in the
hearing and their comments will be discussed in more detail below.
C. The Proposed Rule
Generally, the proposed rule required that all freight cars and
locomotives that operate over a public or private highway rail grade
crossing in the United States in revenue or work train service be
equipped with retroreflective sheeting on both sides. The proposed rule
contemplated that conforming retroreflective sheeting would be applied
to freight cars on a fleet basis so that each segment of the freight
car fleet would be brought into compliance within ten years, and each
segment of the locomotive fleet would be brought into compliance within
five years. To ensure the most efficient and cost-effective
implementation of the rule, FRA proposed to require that
retroreflective sheeting be applied to new freight rolling stock at the
time of construction, and to existing stock when such stock was being
repainted, rebuilt, or undergoing other periodic maintenance.
The proposed rule contained specific color, construction,
placement, and performance requirements for the required
retroreflective sheeting and also set forth a schedule for the
application, inspection, and maintenance of the sheeting. Specifically,
the proposed rule provided that retroreflective sheeting must meet the
color and performance requirements, except for the photometric
performance requirements, of American Society of Testing and
Measurements' (ASTM) Standard D 4956-01, Standard Specification for
Retroreflective Sheeting for Traffic Control, for yellow sheeting. The
proposed rule set forth the minimum photometric performance
requirements (i.e., the minimum ``specific intensity per unit area'' or
``SIA'') that FRA determined were necessary to ensure that the yellow
retroreflective sheeting would be sufficiently bright enough to attract
the attention of approaching motorists early enough in the approach
path so that the drivers would have time to react to avoid collisions.
FRA proposed to require yellow retroreflective material, in part,
because the spectral measurement of the color (approximately 550 nm) is
within the peak sensitivity range of the human visual system, and
accordingly, it is one of the most easily detectable colors under
varying ambient light and other environmental conditions (e.g.,
darkness, fog, haze, etc.). The performance requirements of the
proposed rule were based on the material as it is initially applied. In
other words, FRA proposed to require specific color, type, size, and
placement requirements in order to ensure that sufficient reflectivity
would be retained over time, despite the harsh railroad operating
environment.
Although, as proposed, the specific amount and placement of
retroreflective sheeting the rule would require on various types of
freight rolling stock depended on the size of the freight car or
locomotive, as well as the car type, the proposed rule generally
required a vertical pattern of retoreflective material in 4x36 inch
(one square foot) and 4x18 inch (one-half a square foot) strips along
the entire side of freight cars and locomotives, with strips of
sheeting to be located as close to each end of the car as practicable
and at equidistant intervals of not more than 10 feet. In
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other words, the proposed rule required four square feet of
retroreflective material on each side of the typical 50-foot freight
car, and for cars longer than 50 feet, one additional square foot of
material for each additional ten feet in length. With certain
exceptions, the proposed rule generally required that retroreflective
sheeting be applied as close as practicable to 42 inches above the top
of the rail to minimize the degradation of the material due to dirt and
grime accumulation. FRA proposed to require the placement of at least
one reflector every 10 feet, because roadway lanes in the United States
are typically 10 to 12 feet wide; thus, applying retroreflective
sheeting at least every ten feet along the sides of freight cars
increased the likelihood of at least one reflector being in the sight
path of an approaching motorist. The relatively large-sized reflectors
of 4x18 inches and 4x36 inches (one-half square foot and one square
foot, respectively) were proposed to minimize the degradation rate of
individual strips of retroreflective sheeting.
Recognizing that the conspicuity issues surrounding locomotives
differ from the issues surrounding freight cars, the proposed rule
provided a more flexible approach to the reflectorization of
locomotives, specifying only that a minimum amount of retroreflective
material (corresponding to the amount of material required on
similarly-sized freight cars) was to be equally distributed between
both sides of locomotives in a pattern recognizable to motorists.
D. Discussion of Comments
FRA received approximately 40 written comments in response to the
NPRM, including comments from members of the railroad industry, trade
organizations, local governments, reflective material manufacturing and
supply companies, a manufacturer of a photo luminescent material, as
well as members of the general public. Specifically, comments were
received from the following organizations: The Association of American
Railroads (AAR), the Railway Supply Institute, Inc. (RSI), the North
America Freight Car Association (NAFCA), Canadian National Railway
Company (CN), 3M, Avery Dennison, TTX Company (TTX), the American
Petroleum Institute (API), Selecto-Flash, Inc., Canadian Pacific
Railway Company (CP), Railway Technology Consulting Associates, the
American Association of Private Railroad Car Owners, Inc. (AAPRCO), the
American Trucking Association, Truckload Carriers Association, Availvs
Corporation, and the National Association of County Engineers. Several
of these commenters also provided verbal testimony at the January 2004
hearing and a few additional organizations (the American Railway Car
Institute (ARC) and Wheeler Decal Corporation) also participated in the
hearing. The following discussion provides an overview of the written
and verbal comments FRA received in response to the NPRM. More detailed
discussions of specific comments and how FRA has chosen to address
these comments in the final rule can be found in the relevant Section-
by-Section analysis portion of this preamble.
The majority of comments submitted were in favor of
reflectorization. Several individual members of the public voiced
strong support for a nationwide reflectorization program. For example,
one commenter submitted a February 2004 newspaper article which
described an accident in which a man was killed when he drove directly
into the side of a train occupying a grade crossing in his lane of
travel. Apparently, the driver did not see the train at all, as
witnesses at the scene reported that he did not even apply his
vehicle's brakes before striking the train. Other commenters related
stories of personal tragedy in which loved ones were killed as a result
of accidents involving motor vehicles running into trains occupying
grade crossings. One commenter wrote of her father who ran into the
side of a grain train occupying a crossing. This commenter explained
that other drivers who witnessed the crash reported that they did not
see the train, and that if it was not for the loud crash of her
father's car, they too would have run into the train. Another commenter
wrote of her 16-year old son who, in late 2003, was killed early one
evening when the car he was riding in ran into the side of a train
occupying a grade crossing. FRA remains deeply sympathetic for the
losses suffered by these commenters. As explained in the NPRM, the goal
of this rulemaking is to reduce the number of such tragedies by
reducing RIT accidents. In doing so, the law requires that Federal
regulations be based on an analysis of all relevant evidence and data.
Accordingly, this preamble focuses on the technical and economic
aspects of rail car reflectorization. FRA, however, has paid careful
attention to the advice of those whose tragic personal experiences have
led them to support a nationwide rail car reflectorization program.
Other commenters expressing support for a nationwide freight car
reflectorization program included local and state governments, as well
as organizations and businesses involved in the trucking industry. Most
of these commenters pointed to the prevalence of unlighted, passively
protected highway-rail grade crossings in rural communities and the
particular vulnerability of these types of crossings to RIT accidents.
These commenters also noted the success of reflectorization in the
trucking industry, and some of them recommended a more aggressive
implementation schedule than the 10-year period FRA proposed for the
reflectorization of freight cars.
A few railroad industry participants expressed more reserved
support for FRA's overall goal of increasing rail car visibility by
requiring retroeflective markings on the sides of rail cars, but these
commenters, including CP and TTX, raised important practical
considerations related to the implementation of a nationwide rail car
reflectorization program (e.g., a feasible schedule for the application
of reflectors to rail cars, reflector maintenance requirements, a
viable standard pattern of application of retroreflective material to
various car types, and the treatment of cars already equipped with
reflective material pursuant to existing voluntary rail car
reflectorization programs). Other members of the railroad industry,
including AAR, NAFCA, and RSI, expressed their opposition to a Federal
requirement to reflectorize freight rolling stock citing cost concerns
and concerns similar to those expressed by CP and TTX regarding the
practicalities of implementing such a program. In addition, AAR, as the
organization that sets uniform interchange rules on behalf of the
railroad industry, submitted a proposed industry standard for
reflective markings. In its comments, AAR indicated that it developed
this proposed industry standard in conjunction with private car owners
and freight car builders. Although FRA appreciates the efforts of AAR
and the other industry members who developed the proposed industry
standard in response to the NPRM, because the proposed standard does
not meet the minimum performance requirements FRA has determined are
necessary for an effective freight rolling stock reflectorization
program, FRA is unable to adopt the standard as currently written.
However, FRA encourages AAR to continue to work with the industry to
modify the proposed industry standard to comply with the requirements
of this final rule.
A few railroad industry commenters also expressed concern regarding
the inspection and maintenance requirements of proposed Sec. 224.109.
Specifically, commenters expressed
[[Page 148]]
concern regarding FRA's proposed 20 percent maintenance threshold, and
the use of the undefined term ``damaged'' demonstrating when
maintenance would be required. Additionally, commenters expressed
concern regarding when and where maintenance of reflective material
would take place under the proposed rule, and a few of these commenters
questioned the efficacy and practicality of FRA's proposal to require
the replacement of retroreflective material on rail cars every 10
years.
Although the majority of comments FRA received in response to the
NPRM addressed issues related to the reflectorization of freight cars,
a few railroad industry participants expressed concern regarding FRA's
proposed requirements applicable to locomotives. For example, AAR
suggested that given the conspicuity issues surrounding locomotives and
the fact that most locomotives are already reflectorized with company
names and logos, FRA should not specify a specific pattern of
application of reflective material on locomotives. AAR also expressed
concern regarding FRA's proposed schedule for the reflectorization of
locomotives and, along with CN, suggested that the locomotive
grandfathering provision of proposed Sec. 224.107(b)(3) was too
narrow.
AAR also expressed the view that FRA's proposed rule exceeded
Congress's direction in 49 U.S.C. 20148. First, AAR asserted that
Congress envisioned the issuance of a reflectorization requirement only
if the requirement were cost-effective. FRA agrees with this assertion,
and notes that, as detailed in the NPRM, the proposed rule was based on
a Preliminary Analysis of costs and benefits that demonstrated that the
benefits of a nationwide rail equipment reflectorization program would
far outweigh the costs of such a program. See 66 FR 54326 or Document
No. FRA-1999-6689-25 in the docket of this proceeding. Taking into
consideration comments received in response to the NPRM and the
Preliminary Analysis, FRA has conducted a final Regulatory Analysis of
this final rule and has again concluded that the benefits to be gained
from implementation of the final rule far outweigh the costs of
implementing the rule. A more detailed discussion of FRA's Regulatory
Evaluation is found in the Regulatory Impact and Notices Section below.
AAR also asserted that Congress did not contemplate either a
retrofit requirement (except in the case of rebuilt freight cars) or an
ongoing maintenance requirement, and accordingly the proposed rule
exceeded Congress's direction to FRA. FRA notes, however, that section
20148 was enacted in 1994, in the midst of FRA's reflectorizaton
research program, but before FRA had reached any conclusions as to the
potential efficacy of a federal rail car reflectorization program.
Congress's clear intent in enacting section 20148 was that after
reviewing the issue of potential enhanced visibility standards for
railroad cars (specifically the potential use of reflective materials),
FRA follow through by, at a minimum, requiring application of
reflectors to new and remanufactured equipment if that was found to be
cost-effective. Further, prior to the enactment of section 20148, FRA
had the authority and the responsibility to issue standards, as
necessary, covering all areas of railroad safety (49 U.S.C. 20103); and
nothing in the 1994 enactment narrowed that authority. Accordingly, FRA
is proceeding in accordance with its preexisting authority to address
public safety. FRA is confident that it is acting in a manner
consistent with Congressional guidance.
FRA also notes that limiting this final rule to the narrow scope of
the 1994 mandate would fall far short of the purpose underlying the
policy concern on which the mandate was based. Because rail cars may
remain in service for four or even five decades, while the most
optimistic estimates of the product life of current retroreflective
materials are less than two decades, to reflectorize only new rail
equipment and to have not even minimal maintenance standards, would not
achieve the enhanced visibility of rail cars Congress contemplated in
section 20148. FRA has adopted a strategy that addresses the safety
need underscored by Congress without unduly burdening the industry with
the principal concerns that have been raised in the past with respect
to a federal regulation requiring rail car reflectorization (e.g.,
requirement for washing of reflectors, concerns over increased
liability).
RSI, an international trade association of the rail supply
industry, expressed the opinion that there are better alternatives to
improving safety at highway-rail grade crossings than mandating the
reflectorizing of freight rolling stock. In particular, RSI recommended
that FRA work with the railroad industry, the Federal Highway
Administration, and the States, through the Section 130 program,\2\ to
identify high incident crossings, make improvements to those crossings,
or work to close those crossings. RSI expressed the view that
installation of grade crossing warning devices, additional street
lighting at crossings, or adding stop signs at little used crossings
(all crossing improvements that could be made with Section 130 funds)
would provide increased levels of safety.\3\ Further, RSI asserted that
equipping freight cars with reflectorized tape will not stop drivers
from entering highway-rail grade crossings.
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\2\ ``Section 130 program'' refers to the program authorized by
23 U.S.C. 130 which provides States with Federal funding to
eliminate hazards at public highway-rail grade crossings.
\3\ It is important to note, however, that Section 130 funds can
only be spent on public grade crossing improvements. The funds are
not available for private rail crossings. See 23 U.S.C. 130.
---------------------------------------------------------------------------
FRA agrees with RSI that the installation of warning devices,
installation of additional illumination and warning signs at crossings,
and even the closing of certain crossings, are highly effective grade
crossing safety improvements. As explained in the NPRM, FRA recognizes
the existence of numerous methods other than reflectorization for
reducing the occurrences of RIT accidents (e.g., the elimination of
highway-rail grade crossings, installation and upgrading of crossing
traffic control and warning devices, crossing illumination, audible
train warning devices, crossbuck reflectorization). FRA believes that
each of these methods, used alone and in combination, is a viable
method for mitigating collision risk at highway-rail grade crossings.
FRA notes, however, that local opposition to closing crossings and the
associated expenses with constructing grade separations or other
alternatives to crossings often render these methods impractical, if
not impossible. In addition, the expenses associated with installing
crossing warning devices or upgrading existing devices often render
these solutions cost prohibitive. Accordingly, FRA continues to believe
that the reflectorization of freight rolling stock is an additional,
feasible, and cost-effective tool for reducing and mitigating grade
crossing accidents that provides unique safety benefits not obtainable
with other grade crossing warning devices and safety measures. For
example, traffic control devices, whether active (e.g., flashing lights
and gates at crossings) or passive (e.g., signs and pavements
markings), only provide a warning to the motorist that a train may be
present. The signal delivered by reflective material on the sides of
rail cars is clear and indicates to approaching motorists the actual
presence and current movement of a train in or through a crossing.
[[Page 149]]
FRA recognizes, as did one commenter in comments submitted to the
docket prior to publication of the NPRM, that reflectorization is only
a partial solution. This commenter recognized the limits of any program
designed to enhance the visibility of trains, including
reflectorization, and explained that ``[t]he most visible train is only
as safe as the motor vehicle driver who encounters it.'' FRA strongly
agrees with this statement and recognizes that reflectorization will
provide only a partial solution to the safety issues surrounding
highway-rail grade crossings. FRA recognizes, and feels it worthy of
emphasis (as we did in the NPRM), that nothing in this final rule
relieves motorists from the responsibility to be alert at highway-rail
grade crossings and use due diligence in operating motor vehicles
safely, even during times of limited visibility.
The remaining comments submitted by various members of the railroad
industry reflected a near consensus on three general issues. First,
commenters expressed the view that white, not yellow, was the best
color choice for retroreflective material on the sides of rail cars.
Second, commenters expressed the view that FRA's proposed vertical
pattern of retroreflective sheeting on the sides of freight cars was
impracticable, and that a more flexible approach was necessary. Third,
commenters expressed the view that the installation of retroreflective
material on rail cars pursuant to the rule should not be tied to the
single car air brake test. These comments are discussed below in
connection with the applicable provisions of the final rule.
Section-by-Section Analysis
Section 224.1 Purpose and Scope
This section contains a formal statement of the final rule's
purpose and scope. As explained in the preamble to the NPRM, FRA
intends that this rule cover all aspects of reflectorization of freight
rolling stock, including but not limited to, the size, color,
placement, and performance standards of the retroreflective material,
as well as the schedule for the application, inspection, and
maintenance of the material.
Paragraph (a) states that the final rule is intended to reduce
highway-rail grade crossing accidents, deaths, injuries, and property
damage resulting from those accidents by enhancing the conspicuity of
rail freight rolling stock in order to increase its detectability by
motor vehicle operators at night and under conditions of poor
visibility. Paragraph (b) explains that the final rule establishes the
duties of freight rolling stock owners and railroads to apply
retroreflective material to freight rolling stock, and to periodically
inspect and maintain that material in order to achieve cost-effective
mitigation of collision risk at highway-rail grade crossings. Paragraph
(c) explains that the rule establishes a schedule for the application
of retroreflective material to rail freight rolling stock and
prescribes standards for the application, inspection, and maintenance
of retroreflective material to rail freight rolling stock for the
purpose of enhancing its detectability at highway-rail grade crossings.
Although FRA believes that this section as proposed in the NPRM
made clear the agency's intent for the rule to encompass the entire
subject matter of freight car reflectorization and that additional
duties related to reflectorization of freight rolling stock (e.g.,
cleaning of the material) could not be imposed on freight rolling stock
owners, the AAR expressed concern in its comments that ``there could be
confusion later as to whether railroads or private car owners are
obliged to clean dirt and grime from freight cars.'' Accordingly, in
this final rule, FRA has revised paragraph (b) of this section to
specifically state that not only are freight rolling stock owners under
no duty to ``install, maintain, or repair reflective material,'' except
as required by the rule, but freight rolling stock owners are also
under no duty to clean the material. For further discussion of dirt and
grime on cars, please refer to the discussion of the term ``obscured''
in Sec. 224.5.
As explained in the preamble to the NPRM, this final rule will not
restrict freight rolling stock owners from applying retroreflective
material to freight rolling stock on an accelerated schedule, nor will
this rule restrict freight rolling stock owners from applying
additional retroreflective material. As also explained in the NPRM,
freight rolling stock owners, however, are under no duty to install,
maintain, or repair reflective material except as specified in this
rule.
Section 224.3 Applicability
This section, which has not changed from that proposed in the NPRM,
establishes that this final rule applies, with certain exceptions, to
all freight cars and locomotives that operate over a public or private
highway-rail grade crossing and are used for revenue or work train
service. This section specifically excludes certain operations and
equipment from the rule. These include: (1) Freight railroads that
operate only on track inside an installation that is not part of the
general railroad system of transportation, (2) rapid transit operations
within an urban area that are not connected to the general system of
transportation, and (3) locomotives or passenger cars used exclusively
in passenger service.
As explained in the preamble to the NPRM, FRA recognizes that both
public and private grade crossings may be found on plant railroads and
freight railroads that are not part of the general railroad system of
transportation. Because these operations typically involve low speed
vehicular traffic and the rail operations themselves are typically low
speed with a small number of rail cars permitting relatively short
stopping distances, it is not clear that reflectorization would be
helpful in these areas. These reasons, together with FRA's historical
basis for not making its regulations applicable to plant and non-
general-system freight railroads, have led FRA to exclude such plant
and private railroads from this rule. FRA does, of course, retain the
statutory right to assert jurisdiction in this area and will do so if
circumstances warrant.
As proposed in the NPRM and adopted in this final rule, paragraph
(c) provides that the rule will not apply to locomotives and passenger
cars used ``exclusively'' in passenger service. FRA decided to exclude
locomotives and passenger cars used exclusively in passenger service
from this rule because the conspicuity issues attendant to passenger
service are significantly different from those of freight service. For
example, the highway-rail grade crossings through which passenger
trains operate are typically better protected than crossings used
exclusively in freight service, many passenger cars have bright
stainless steel exteriors or are painted contrasting light colors and
are maintained in a much cleaner condition than freight cars, and
passenger cars typically have inside lights which are visible through
side windows that run the entire length of the cars. Although this
final rule does not require the application of reflective material to
locomotives and passenger cars used exclusively in passenger service,
FRA may do so in a future rulemaking if it proves a cost-effective
method of mitigating collision risk at highway-rail grade crossings.
One commenter, AAPRCO, expressed concern regarding the word
``exclusively'' in paragraph (c). AAPRCO explained that its members are
owners of privately owned passenger cars and vintage locomotives, which
generally run on Amtrak in passenger service. AAPRCO further explained,
[[Page 150]]
however, that these cars are also occasionally moved in freight
service; typically dead-head moves to a new location or to another
carrier where the cars may again be used in passenger service, or a
switching move from one passenger carrier to a storage location. AAPRCO
expressed concern that the term ``exclusively'' in paragraph (c) of
this section would cause the rule to apply to these cars and
locomotives when they are occasionally moved in freight service.
Further, AAPRCO explained that they do not believe ``that FRA intends
for such moves to convert a passenger car or locomotive into freight
rolling stock'' for purposes of the rule. AAPRCO is correct. FRA does
not intend that these types of moves would convert the equipment into
freight rolling stock subject to the rule. However, FRA believes Sec.
224.3, as proposed, is clear in this regard. Section 224.3 states that,
with certain exceptions, the rule applies to ``railroad freight cars
and locomotives that operate over a * * * grade crossing and are used
for revenue or work train service.'' As proposed in the NPRM and
adopted in this final rule, ``railroad freight car'' is defined
consistent with 49 CFR 215.5, which provides that a railroad freight
car is ``a car designed to carry freight, or railroad personnel, by
rail,'' including, for example, box cars, gondola cars, or tank cars.
The passenger cars described by AAPRCO would not fall within the rule's
definition of ``railroad freight car'' and accordingly, would not be
subject to the rule's requirements. Further, as proposed in the NPRM
and adopted in this final rule, ``locomotive'' is generally defined
consistent with 49 CFR 229.5, but specifically limited to locomotives
used in the transportation of freight or the operation of a work train.
Accordingly, unless an AAPRCO member's locomotive is pulling freight or
providing power to a work train, their locomotives will not be subject
to this rule.
Section 224.5 Definitions
This section defines various terms, which for purposes of this
rulemaking, have very specific meanings. This final rule retains each
of the definitions proposed in the NPRM, with minor revisions to three
of the proposed definitions (``flat car,'' ``obscured,'' and ``work
train''). In addition, FRA has added two definitions to those proposed
in order to clarify requirements of this final rule. First, in response
to several commenters' concerns regarding the term ``damaged'' in
proposed section 224.109, FRA has added a definition of that term.
Second, FRA has defined a new term, ``unqualified retroreflective
sheeting,'' which is used in Sec. 224.107 of this final rule.
First, the definition of ``flat car'' has been modified to make it
clear that spine cars, articulated, and multi-unit intermodal cars are
included within this definition.
Second, the definition of ``freight rolling stock owner'' has been
modified slightly to make it clear that the term is intended to refer
to not only lessors of freight rolling stock, but to lessees of freight
rolling stock as well. As explained in the NPRM, FRA recognizes that
the majority of domestically-owned freight cars are privately owned.
Because private freight car owners often contract with others to
maintain their cars and may not even see their cars on a regular basis,
this definition contemplates that anyone who controls the maintenance
or use of freight cars by contractual agreements or otherwise, will
also be responsible for compliance with this part in conjunction with
the actual owners of the cars.
Third, the definition of the term ``obscured'' has been modified
slightly for clarity in response to a commenter's express concern.
``Obscured'' was defined in the NPRM to mean ``concealed or hidden
(i.e., covered up, as where a layer of paint or dense chemical residue
blocks incoming light).'' Specifically excluded from the proposed
definition were ordinary accumulations of dirt, grime, or ice resulting
from the normal railroad operating environment. One commenter, NAFCA,
pointed out an incongruity between FRA's proposed definition of the
term ``obscured'' in the text of the proposed rule and FRA's
explanation of the term in the preamble. Specifically, in the preamble
to the NPRM, FRA explained that the term ``obscured'' was intended to
refer to situations where ``retroreflective material is covered with
paint (e.g., graffiti), a dense chemical residue (e.g., product spilled
from a tank car), or any other foreign substance, other than dirt or
grime, which effectively blocks all incoming light.'' 68 FR 62952
(emphasis added). In its comments, NAFCA expressed the view that
``[t]he test for replacement should be as objective as possible, and
ultimately should turn on whether the strip is in a condition that
`effectively blocks all incoming light', a test used by FRA to explain
the purpose of the definition of `obscured'.'' FRA agrees with this
comment and accordingly, in this final rule, we have revised the
definition of ``obscured'' to reflect that in order for material to be
``obscured'' under this rule, it has to be concealed or hidden to the
point where all incoming light is blocked.
As explained in the NPRM, the definition of ``obscured'' was
intended to reflect FRA's understanding that the harsh railroad
operating environment inevitably results in dirt accumulating on the
sides of freight rolling stock. The standards for retroreflective
material set forth in this final rule take into account this ordinary
accumulation. For example, FRA understands that the sides of coal cars
will accumulate coal dust and other dirt over time due to the nature of
normal railroad operations. An accumulation of coal dust or other dirt,
even if it significantly darkens and dirties the retroreflective
material, will not cause the material to be ``obscured'' for purposes
of this rule. The standards proposed in this rule account for the
effects of accumulations of dirt and grime inherent in the railroad
operating environment, the aging of the reflective material, and other
adverse effects of the operating environment (e.g., harsh weather
conditions). FRA believes that reflective material meeting the
requirements of this rule when initially applied will still provide
adequate reflectivity throughout the manufacturers' stated useful life
despite inevitable accumulations of dirt.
Fourth, the definition of ``work train'' has been revised to make
it clear that the term, for purposes of this rule, refers to non-
revenue generating trains used in the maintenance and upkeep of the
railroad.
In its comments to the NPRM, AAR noted that the term ``damaged''
was not defined and, therefore, it was unclear what FRA meant by the
term in proposed Sec. 224.109. NAFCA similarly noted that the term
``damaged'' in the proposed rule was undefined and, thus, ``highly
subjective.'' Accordingly, both NAFCA and AAR suggested that FRA delete
the term ``damaged'' from the inspection standards of Sec. 224.109.
FRA agrees that the undefined term ``damaged'' in the proposed rule
needed clarification. Accordingly, in this final rule, FRA has included
a definition for the term ``damaged.'' Section 224.104 defines
``damaged'' to mean ``scratched, broken, chipped, peeled, or
delaminated.'' This definition is intended to be consistent with the
term ``obscured,'' but recognizes the physical reality that
retroreflective sheeting could be damaged to the extent that it is no
longer effective, but still not be ``obscured'' as defined in this
rule.
FRA has added one additional new term: ``unqualified
retroreflective sheeting.'' In this final rule ``unqualified
retroreflective sheeting'' is defined as ``engineering grade sheeting,
super
[[Page 151]]
engineering grade sheeting (enclosed lens), or high intensity type
sheeting (ASTM Type I, II, III, or IV Sheeting) as described in ASTM
International Standard D 4956-01a, Standard Specification for
Retroreflective Sheeting for Traffic Control. A more detailed
discussion of this new term can be found in the analysis of Sec.
224.107 below.
As defined in the NPRM, ``freight rolling stock'' means any
locomotive subject to 49 CFR part 229 used to haul or switch freight
cars in revenue or work train service and any railroad freight car
subject to 49 CFR part 215, including a car stenciled MW pursuant to
Sec. 215.305. FRA specifically requested comments as to what other
types of rail equipment (other than locomotives subject to 49 CFR part
229) are used to haul freight cars and the feasibility of
reflectorizing such equipment. FRA also specifically requested comments
as to the utility and feasibility of equipping specialized maintenance
of way equipment with reflective material. Although FRA received no
comments in response to the first question regarding other types of
rail equipment used to haul freight cars, the AAR responded to FRA's
second question regarding the utility of equipping specialized
maintenance of way equipment with reflective material. AAR responded by
saying that specialized maintenance of way vehicles should not be
subject to any reflectorization rule. Specifically, AAR noted that none
of the approximately 700 collisions in the accident pool identified in
FRA's Regulatory Evaluation involved specialized maintenance of way
equipment and that trains with maintenance of way cars typically
consist of only a few units. Thus, AAR reasoned that FRA's stated
safety justification for proposing to require reflective material on
freight rolling stock (i.e., reducing the number and severity of grade
crossing accidents where motor vehicles run into trains after the first
two units of the consist) was inapplicable to specialized maintenance
of way vehicles. FRA agrees with AAR's rationale in this regard, and
accordingly we have retained the definition of freight rolling stock as
proposed.
In order to ensure that the requirements of this part would be
practicable for each type of freight car to which they would apply, FRA
proposed definitions in the NPRM for ``railroad freight car,'' ``flat
car,'' and ``tank car'' and then proposed specific patterns of
reflector markings for each type of car based on the typical physical
configuration of each car type. FRA specifically requested comments on
the use of these definitions (i.e., whether the proposed definitions
were adequate to identify car types for purposes of the rule or whether
commenters had other definitions that they would prefer). Because FRA
received no comments in response to this request, FRA has adopted the
definitions substantially as proposed.
Section 224.7 Waivers
This section, which has not changed from that proposed in the NPRM,
explains the process for requesting a waiver from a provision of this
rule. Requests for such waivers may be filed by any party affected by
the final rule. In reviewing such requests, FRA conducts investigations
to determine if a deviation from the general regulatory criteria is in
the public interest and is consistent with railroad safety. The rules
governing the FRA waiver process are found in 49 CFR part 211.
Section 224.9 Responsibility for compliance
This section, which has not changed from that proposed in the NPRM,
contains the general compliance requirements. Paragraph (a) states that
freight rolling stock owners (as defined in Sec. 224.5), railroads,
and (with respect to certification of material) manufacturers of
retroreflective material, are primarily responsible for compliance with
the rule. The responsibility of manufacturers is discussed in more
detail in the analysis of Sec. 224.103(a) below.
Paragraph (a) also clarifies FRA's position that the requirements
contained in the rule are applicable to any ``person'' (as defined in
the rule) that performs any function or task required by the proposed
rule. Although various sections of the rule address the duties of
freight rolling stock owners, railroads, and manufacturers of
retroreflective material, FRA intends that any person who performs any
action on behalf of any of these parties or any person who performs any
action covered by the rule is required to perform that action in the
same manner as required of the freight rolling stock owner, railroad,
or manufacturer, or be subject to FRA enforcement action. For example,
employees or agents of freight rolling stock owners, or railroad
contractors who perform duties covered by this final rule would be
required to perform those duties in the same manner as required of a
freight rolling stock owner or railroad. Likewise, employees or agents
of manufacturers of retroreflective sheeting being manufactured
pursuant to this part would be required to perform those duties in the
same manner as the manufacturer.
Paragraph (b) states that any person performing any function or
task required by this part will be deemed to have consented to FRA
inspection of the person's facilities and records to the extent
necessary to ensure that the function or task is being performed in
accordance with the requirements of this part. This provision is
intended to put freight rolling stock owners, railroads, manufacturers,
and contractors, performing functions or tasks required by this part,
on notice that they are consenting to FRA's inspection for rail safety
purposes of that portion of their facilities and records relevant to
the function or task required by this part. Pursuant to 49 U.S.C.
20107, FRA has the statutory authority to inspect any facilities and
relevant records pertaining to the performance of functions or tasks
required under this part, and this provision is merely intended to make
that authority clear to all persons performing such tasks or functions.
Section 224.11 Penalties
This section identifies the penalties that FRA may impose upon any
person who violates any requirement of this part. These penalties are
authorized by 49 U.S.C. 21301, 21302, and 21304. The penalty provision
parallels penalty provisions included in numerous other safety
regulations issued by FRA and has been adopted in this final rule
substantially as proposed. As explained in the NPRM, essentially, any
person who violates any requirement of this part or causes the
violation of any such requirement will be subject to a civil penalty.
As also explained in the NPRM, civil penalties may be assessed against
individuals only for willful violations and each day a violation
continues will constitute a separate offense. As proposed in the NPRM,
the minimum civil penalty was $500 per violation, and the maximum civil
penalty for a grossly negligent violation or a pattern of repeated
violations that creates an imminent hazard of death or injury to
persons, or causes death or injury, was $22,000. Since the date of
publication of the NPRM, however, to comply with the Federal Civil
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) (28 U.S.C.
2461, note) and the Debt Collection Improvement Act of 1996 (Pub. L.
103-134, 110 Stat. 1321-373), FRA has adjusted the minimum and maximum
civil penalties applicable to each of the agency's regulations to $550
and $27,000, respectively. 69 FR 30591 (May 28, 2004). Accordingly,
this final rule incorporates these revised
[[Page 152]]
minimum and maximum penalty amounts. Furthermore, a person may be
subject to criminal penalties under 49 U.S.C. 21311 for knowingly and
willfully falsifying reports required by these regulations.\4\ FRA
believes that the inclusion of penalty provisions for failure to comply
with the regulations is important in ensuring that compliance is
achieved. This final rule includes a schedule of civil penalties as
Appendix A to this part. Because the penalty schedule is a statement of
agency policy, notice and comment was not required prior to its
issuance. See 5 U.S.C. 553(b)(3)(A).
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\4\ FRA notes that the criminal penalty provision was
inadvertently omitted from Sec. 224.11 of the proposed rule.
However, FRA has corrected this error and has incorporated the
criminal penalty provision into this final rule, consistent with its
statutory authority and the penalty provisions of FRA's other
existing safety regulations.
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Section 224.13 Preemptive Effect
This section, which has not changed from that proposed in the NPRM,
informs the public as to FRA's intention regarding the preemptive
effect of the final rule. While the presence or absence of such a
section does not conclusively establish the preemptive effect of a
final rule, it informs the public concerning the statutory provisions
which govern the preemptive effect of the rule and FRA's intentions
concerning preemption.
This section points out that the preemptive effect of this rule is
governed by 49 U.S.C. 20106 (``section 20106''). Section 20106 provides
that all regulations prescribed by the Secretary relating to railroad
safety preempt any State law, regulation, or order covering the same
subject matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard that is not incompatible with a Federal
law, regulation, or order, and that does not unreasonably burden
interstate commerce. With the exception of a provision directed at an
essentially local safety hazard that is not inconsistent with a Federal
law, regulation, or order, and that does not unreasonably burden
interstate commerce, section 20106 will preempt any State or local law
or regulatory agency rule covering the same subject matter as this
final rule.
The Supreme Court has consistently interpreted section 20106 to
confer on the Secretary the power to preempt not only State statutes,
but State common law as well. See CSX Transp. v. Easterwood, 507 U.S.
658, 664 (1993) (``[L]egal duties imposed on railroads by the common
law fall within the scope of [the] broad phrases'' of section 20106.).
See also Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344 (2000). The
Court has further held that Federal regulations under the Federal
Railroad Safety Act will preempt common law where the regulations
``substantially subsume'' the subject matter of the relevant State law.
Easterwood, 507 U.S. at 664.
As is evident in the language of Sec. 224.1 as proposed and as
incorporated in this final rule, FRA intends this final rule to cover
the subject matter of standards for the use of retroreflective
materials on freight rolling stock and the specific duties of freight
rolling stock owners in this regard. FRA intends this part to preempt
any State law, rule, or regulation, or common law theory of liability
that might attempt to impose a duty on freight rolling stock owners
pertaining to the reflectorization of freight rolling stock that is not
specifically set forth in this part. For example, FRA intends to
preempt any State law or common law theory of liability which might
attempt to impose a duty on freight rolling stock owners to apply
additional retroreflective material other than that specified in this
part, to apply retroreflective material on a different schedule than
that specified in this part, or to inspect or maintain retroreflective
material on a more frequent basis than that specified in this part.
Inference of any duties not specifically set forth in this part may
cause the costs of the rule to outweigh the safety benefits of the rule
in direct conflict with the Congressional mandate of 49 U.S.C. 20148
(requiring that FRA initiate a rulemaking proceeding prescribing
regulations requiring enhanced visibility standards for railroad cars
if such regulations would likely improve safety in a cost-effective
manner).
In response to the NPRM, RSI specifically requested that FRA
expressly state in the preamble to the final rule that FRA could not
envision any set of circumstances where an additional State requirement
could be justified under the local hazard exception contained in
section 20106. Although FRA cannot envision any set of circumstances
where an additional State requirement could be justified under the
local hazard exception, FRA cannot anticipate every possible factual
scenario that could exist. Also, it is important to note that although
FRA can express its intention regarding preemption, the courts will
make the final determination of preemption.
Section 224.15 Special Approval Procedures
This section contains the procedures to be followed when seeking to
obtain FRA approval of alternative standards under Sec. 224.103(e).
Although FRA received no written comments in direct response to
proposed Sec. 224.15, at the January 2004 hearing one commenter, an
association of industry participants (particularly car builders),
expressed the view that the proposed rule's ``special approval
procedures'' were too ``cumbersome and lengthy.'' This commenter
further stated that ``[a] negative determination could prevent a car
design from being built. If we can't apply the markers the way the rule
requires, we may not be able to build the car.'' (Hearing transcript,
pp. 65-66). This commenter, however, appears to have misconstrued the
intent of Sec. 224.15. As explained in the preamble to the NPRM, FRA
anticipates continued technological improvements and product advances
in the field of reflective and luminescent materials. Accordingly, FRA
intends this section to provide a relatively quick approval process to
allow the incorporation of new technology into the standards of this
part, thereby making the technology available to all car owners and
railroads while maintaining the same level of safety originally
contemplated. FRA does not intend that this section provide a procedure
for the approval of alternative reflectorization patterns. Although FRA
believes that the reflectorization patterns set forth in this final
rule are flexible enough to ensure that reflectors can be applied to
almost any freight car or locomotive type, should it be necessary for a
freight rolling stock owner to apply retroreflective material in a
pattern that does not conform with the requirements of this final rule,
pursuant to Sec. 224.7 of this final rule, the owner may file for a
waiver from the requirements of Sec. 224.106. The waiver process is
discussed in more detail in the analysis of Sec. 224.7 above.
Another commenter specifically requested that the proposed rule be
modified to be ``technologically neutral'' and be a performance
standard that does not discriminate based on the specific technology
employed. This commenter, Availvs Corporation, a manufacturer of photo
luminescent material, asserted that its ``state-of-the-art photo
luminescent material * * * works as well as, or better than, any
retroreflective material'' in enhancing the visibility of rail
equipment. Availvs noted that the company has previously demonstrated
its product to FRA and that in 2003 the product was ``satisfactorily
tested'' by the American Society for Testing and Materials. Because FRA
does not currently have
[[Page 153]]
enough data to determine whether Availvs's product would meet the same
performance standards contemplated in this final rule, FRA cannot
revise the proposed rule to provide for the use of material other than
the specified retroreflective material. However, FRA encourages Availvs
to take advantage of the special approval process of Sec. 224.15 to
provide FRA the opportunity to determine whether Availvs's product
would provide at least an equivalent level of safety as the
retroreflective material mandated in this final rule.
FRA believes the procedures set forth in Sec. 224.15 will speed
the process for taking advantage of new technologies over that which is
currently available through the waiver process. However, in order to
provide an opportunity for all interested parties to provide input for
use by FRA in its decision making process, as required by the
Administrative Procedure Act, 5 U.S.C. 553 et seq. (APA), FRA believes
that any special approval provision must, at a minimum, provide proper
notice to the public of any significant change or action being
considered by the agency with regard to the existing regulations.
Paragraph (b) sets forth the substantive and procedural
requirements for petitions for special approval of alternative
standards; paragraphs (c) and (d) provide opportunity for notice and
public comment on any petition for special approval of an alternative
standard received by FRA; and paragraph (e) describes the process FRA
will follow in acting on any such petitions.
Subpart B--Application, Inspection, and Maintenance of Retroreflective
Material
Section 224.101 General Requirements
This section contains the general requirement that all rail freight
rolling stock subject to this part be equipped with retroreflective
sheeting conforming to the requirements of this rule and the sheeting
be applied, inspected, and maintained in accordance with subpart B or
in accordance with an alternative standard approved under Sec. 224.15.
As explained in the preamble to the NPRM, this general requirement
reflects FRA's understanding that motorists need to be given as much
visual information as possible to correctly decide whether a hazard
(e.g., a train) exists in a vehicle's path. Specifically, devices
intended to make a train conspicuous should: (1) Tell the motorist that
something is there, (2) tell the motorist that what he or she sees is a
train, (3) tell the motorist whether the train is on or about to cross
a road in the vehicle's path, (4) aid the motorist in estimating the
distance he or she is from the train, and (5) aid the motorist in
estimating the speed and direction of the train's motion. FRA believes
that the retroreflective sheeting required in this subpart B, applied
and inspected in conformance with this part, effectively achieves these
objectives.
Section 224.103 Characteristics of Retroreflective Sheeting
This section sets forth the construction, color, and performance
standards for the retroreflective sheeting required by Sec. 224.101.
As was proposed in the NPRM, paragraph (a) of this section in the final
rule states that retroreflective sheeting must be constructed of a
smooth, flat, transparent exterior film with microprismatic elements
embedded or suspended beneath the film so as to form a non-exposed
retroreflective optical system.
As proposed in the NPRM, paragraph (a) of this section also
required that air encapsulated sheeting be sealed around all edges.
This proposed requirement was based on FRA's understanding that air
encapsulated sheeting that is not sealed on all edges allows water to
seep between the layers of the product and over time, due to the normal
railroad operating environment, this water will freeze and expand,
causing layers of the sheeting to peel. One commenter, Avery Dennison,
a manufacturer of retroreflective sheeting already in common use in the
railroad industry, expressed agreement with FRA's proposal to require
edge sealing of air encapsulated sheeting. Specifically, Avery Dennison
explained that ``the typical welds used to enclose individual cells are
very thin, and inadequate for the demands placed on exposed edges.''
Other commenters, however, including 3M, another manufacturer of
reflective materials already commonly used on railroad equipment, and
the AAR, expressed the view that edge sealing should not be required on
``enclosed lens sheeting.'' \5\ 3M explained that ``[r]etroflective
sheeting that incorporates air between laminations contains internal
seals that * * * prevent the penetration of water'' and that ``[o]nly
the small portions of individual cells that are cut open along the edge
of a piece of sheeting could be affected by water penetration.''
Further, 3M explained that the open, exposed edge of the sheeting does
not affect the durability or performance of the sheeting as a whole and
that air encapsulated sheeting (i.e., sheeting with exposed cut edges)
is routinely used on traffic signs and vehicles without edge sealing
and is warranted for up to 12 years. Although 3M acknowledged that
historically, many years ago, edge sealing was sometimes used, 3M
indicated that given the current construction and durability of
retroreflective material, it is no longer necessary, and accordingly,
the company no longer manufactures, markets, or recommends edge
sealing.
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\5\ FRA notes that 3M refers specifically to ``enclosed lens
sheeting'' in its comments. FRA understands that the term ``enclosed
lens sheeting'' typically refers to ``glass bead'' type sheeting and
FRA notes that no glass bead type sheeting currently being
manufactured is capable of meeting the photometric performance
requirements of FRA's proposed specification. However, from the
remainder of 3M's comments specifically referring to
``[r]etroreflective sheeting that incorporates air between
laminations,'' FRA assumes that 3M is referring to air encapsulated
sheeting.
---------------------------------------------------------------------------
In light of 3M's comments and absent conclusive evidence
establishing that edge sealing is necessary to maintain the integrity
of air encapsulated retroreflective sheeting, in this final rule FRA is
not mandating that air encapsulated retroreflective sheeting be edge
sealed. As explained in detail in the NPRM, the construction, color,
and performance standards set forth in this rule are designed to ensure
that retroreflective material applied pursuant to this rule is durable
enough to withstand the harsh railroad operating environment and
maintain sufficient levels of reflectivity throughout the useful life
of the material. FRA notes, however, that it is the responsibility of
the retroreflective material manufacturer and the customer to determine
the suitability of particular materials for use on rail car sides. FRA
recognizes that many freight rolling stock owners already have
extensive experience using various types of reflective materials on the
sides of their equipment in specific service environments. FRA
recognizes that these owners understand the harsh conditions associated
with railroad operations that may affect the performance of the
retroreflective material, particularly the power washing of equipment
or the extensive exposure of the equipment to various harsh chemicals.
Accordingly, freight rolling stock owners electing to apply air
encapsulated sheeting conforming to the requirements of this rule may
wish to consider specifying that the material be edge sealed in order
to limit maintenance costs.
As originally proposed, paragraphs (b) and (c) of this section
generally required that the retroreflective sheeting meet the color and
performance requirements, except for the photometric requirements, of
the American Society of Testing and Measurements' (ASTM) Standard D
4956-01, Standard
[[Page 154]]
Specification for Retroreflective Sheeting for Traffic Control.\6\
Although FRA has retained these general requirements in this final
rule, the agency has revised both paragraphs (b) and (c) in response to
comments received and to ensure clarity.
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\6\ ASTM has recently revised this standard and assigned it a
new designation of D 4956-01a. Although the designation of the
standard has changed, no substantive changes were made that would
affect the performance of the material as contemplated by this rule.
Accordingly, this final rule incorporates the latest version of the
standard (D 4956-01a). Also, FRA notes that ASTM's full name was
changed from ``American Society of Testing and Measurements'' to
``ASTM International'' in 2001. FRA, however, erroneously referred
to ASTM International by its historical name, ``American Society of
Testing and Measurements'' in the proposed rule. Accordingly, Sec.
224.103 of this final rule reflects ASTM's correct name, ASTM
International.
---------------------------------------------------------------------------
In paragraph (b) of this section, the NPRM proposed to require that
retroreflective sheeting applied pursuant to this rule be yellow as
specified by the chromaticity coordinates of ASTM standard D 4956-01.
As detailed in the NPRM, FRA proposed to require yellow retroreflective
material because the spectral measurement of the color (approximately
550 nm) is within the peak sensitivity range of the human visual system
and accordingly, it is one of the most easily detectable colors under
varying ambient light and other environmental conditions (e.g.,
darkness, fog, haze, etc.). In addition, the color yellow minimizes the
risk of motorist confusion with the colors of other roadway hazards
(e.g., red and white reflectors on trucks) and is not a color prevalent
in most background environments.
FRA received a number of comments suggesting that white, not
yellow, was the best color choice for retroreflective material on the
sides of rail cars. Generally, commenters expressed the view that white
is ``brighter'' and more reflective than yellow and therefore would be
the most effective in increasing the conspicuity of rail cars. For
example, AAR reasoned that ``[i]t would seem that reflectivity should
be the criterion since the goal is to alert the motorist that there is
something ahead and the most reflective material [white material] would
have the greatest chance of achieving that objective.'' Another
commenter, Mr. James R. Nimz, County Engineer for Seneca County, Ohio,
commented that white will always appear the brightest of all color
groups; accordingly, to maximize the effectiveness of the
retroreflective sheeting, Mr. Nimz recommended the use of white
material. Selecto-Flash, Inc., another manufacturer of reflective
sheeting already in use in the railroad environment commented that many
railroads with existing voluntary reflectorization programs have long
been using white material, and the AAR indicated that yellow
retroreflective material is more expensive than white material.
Specifically, AAR indicated that 3M informed one of their members that
yellow material would cost 27% more than white. Accordingly, AAR
expressed the view that it did not make sense to require car owners to
spend more money for less reflectivity. FRA agrees with AAR that
freight rolling stock owners should not be required to pay more money
for yellow material than white material, but based on information
provided to FRA from various retroreflective material manufacturers,
FRA understands that the costs to the end-users of both white and
yellow retroreflective material are exactly the same.
Contrary to the views expressed by these previous commenters,
however, prior to FRA's publication of the NPRM, 3M submitted comments
to the docket recommending, in part, the use of a high-contrast colored
corner cube retroreflective material with a spectral measurement within
the peak sensitivity of the human visual system (e.g., yellow/green).
In these comments, 3M explained that the high-contrast color would aid
nighttime visibility.
As discussed in detail in the NPRM, retroreflective material is
rated in terms of the reflected light per unit area as contrasted with
the light striking it (``specific intensity per unit area'' or
``SIA''). Although FRA acknowledges that the SIA of white
retroreflective material is greater than that of the yellow material
contemplated in the NPRM, research has consistently shown that an
object's perceived brightness is modified by color information.
Generally, research addressing the effects of the color of
retroreflective material on the brightness of the material has proven
that chromatic markings (red, orange, yellow, green, blue) will appear
brighter than photometrically matched achromatic (white) markings in
similar environmental conditions. This effect is known as the
Helmholtz-Kohlrausch effect. Josef Schumann et al., The University of
Michigan Transportation Research Institute, Brightness of Colored
Retroreflective Materials, Rpt. No. UMTRI-96-33 (Nov. 1996) (citing a
1955 study by A. Chapanis and R.M. Halsey). A copy of this 1996 study
is in the docket of this proceeding (Document No. FRA-1999-6689-112).
The Helmholtz-Kohlrausch effect increases as excitation purity (i.e.,
color saturation) increases. The Helmholtz-Kohlrausch effect usually
results in a U-shaped function of dominant wavelength, with the minimum
brightness around the dominant wavelength for yellow. Id.
Although research relating to the Helmholtz-Kohlrausch effect dates
back to at least 1955, in the late 1990's several researchers
specifically investigated whether the color of retroreflective material
affected the materials' ability to enhance conspicuity. For example, in
1996 two separate research teams performed field experiments to
evaluate the effect of color on the perception of retroreflective
materials. One study evaluated the effect of color on the perceived
``conspicuity'' of retroreflective materials, and another study
evaluated the effect of color on the perceived ``brightness'' of
retroreflective material. See James R. Sayer et al., The University of
Michigan Transportation Research Institute, Effects of Retroreflective
Marking Color on Pedestrian Detection Distance, Rpt. No. UMTRI-98-8
(Mar. 1998) (citing The University of Michigan's 1996 study by Schumann
et al. and W.H. Venable and W.N. Hale's 1996 study titled Color and
nighttime pedestrian safety markings). A copy of this 1998 study is in
the docket of this proceeding (Document No. FRA-1999-6689-113). Both
the studies cited in the 1998 study concluded that standard photometric
measurements by themselves do not accurately predict the perception of
colored retroreflective targets, particularly at nighttime, and that
chromatic retroreflective stimuli were perceived to be brighter than
photometrically matched achromatic stimuli.
As detailed in the 1996 University of Michigan study, W.H. Venable
and W. N. Hale, in their 1996 study performed a field experiment based
on night conspicuity judgments of chromatic versus achromatic markings
and calculated a color correction factor (Fc) as the ratio
of the luminance of an achromatic marking (La) to the
luminance of any equally conspicuous chromatic marking (Lc)
(Fc = La/Lc). Their results followed a
U-shaped function expected from the Helmholtz-Kohlrausch effect, with
higher conspicuity values (i.e., higher color correction factors
(Fc)) for red and blue, and the lowest value for yellow.
Venable and Hale then mathematically derived Fc values for
each color using two different methods: (1) Calculating Fc
as the color difference from black in uniform color space, and (2)
calculating Fc as recommended in ASTM International's
Standard E-1501,
[[Page 155]]
Standard Specification for Nighttime Photometric Performance of
Retroreflective Pedestrian Markings for Visibility Enhancement (ASTM E-
1501).\7\ The two approaches resulted in almost identical Fc
values (R2=.99) for the different colors and the comparison
of the Venable and Hale's calculated Fc values using the
recommendation from ASTM E-1501 demonstrated a relatively good fit
(R2=.62). For a more detailed discussion of Venable and
Hale's 1996 research, see document number FRA-1999-6689-113 in the
docket of this proceeding.
---------------------------------------------------------------------------
\7\ Recognizing that a chromatic retroreflector may appear
brighter than an achromatic retroreflector with the same luminance,
ASTM E-1501 provides a widely-accepted methodology for calculating
color correction factors which effectively account for the perceived
difference in brightness between chromatic and achromatic
retroreflective markings.
---------------------------------------------------------------------------
The University of Michigan's 1996 study analyzing the effect of
color on perceived ``brightness'' of retroreflective materials (as
opposed to the Venable and Hale study which focused on the effect of
color on the perceived ``conspicuity'' (i.e., detectability) of
retroreflective materials) yielded results similar to Venable and
Hale's study. Specifically, using five chromatic stimuli and one
achromatic stimulus, two levels of retroreflective power, two levels of
area, and two levels of ambient illumination, Schumann employed
magnitude estimation to gather subjective assessments of perceived
brightness for colored retroreflective material. Similar to Venable and
Hale's methodology, Schumann mathematically derived Fc
values for each color tested and then compared these mathematically
derived Fc values with Fc values calculated as
recommended in ASTM E-1501. As did Venable and Hale, Schumann reported
a very high correlation between the calculated and experimentally
obtained color correction factors (R2=0.94). Further,
Schumann used the experimental color correction factors identified in
Venable and Hale's 1996 study and arrived at similar results.
In 1998 researchers at the University of Michigan Transportation
Research Institute conducted a nighttime field study to assess the
effects of color on the detection of retroreflective markings. See
Document No. FRA-1999-6689-113 in the docket of this proceeding. This
field study again demonstrated that the color of retroreflective
markings does affect the distance at which the markings can be
detected. Specifically, the three chromatic retroreflective markings
examined (red, yellow, and green) were detected at significantly
farther distances, 7% to 10% farther than the achromatic (white)
retroreflective markings and the study concluded that for white
markings to be detected at the same distance as chromatic markings
(e.g., red, yellow, or green markings), white markings would need to
have a 26% to 44% higher SIA value than the yellow markings (or the
white markings would need to be significantly larger than the yellow
markings). In other words, the nighttime detection of colored
retroreflectors cannot be predicted from photometric measurements
alone; chromaticity must also be considered. Sayer et al. (Document No.
FRA-1999-6689-113 in the docket of this proceeding.)
As detailed in the preamble to the NPRM, FRA's own research
regarding the effectiveness of freight car reflectorization yielded
similar results. Specifically, FRA's research consistently found that
retroreflective patterns of yellow markings were the most effective in
enhancing the visibility of freight cars. See Evaluation of
Retroreflective Markings to Increase Rail Car Conspicuity, Project
Memorandum, DOT-VNTSC-RR897-PM-98-22, John A. Volpe National
Transportation Systems Center (Oct. 1998) (1998 Volpe Report).
Accordingly, FRA continues to believe that yellow retroreflective
sheeting is the best color choice for retroreflective material on the
sides of freight rolling stock. Nonetheless, FRA recognizes that white
retroreflective material can perform satisfactorily. See 1998 and 1999
Volpe Reports.
Accordingly, recognizing that many railroads and car owners have
already begun voluntary reflectorization programs using white material
and that white retroreflective material has been determined to be
effective in increasing the visibility of rail cars, FRA has revised
paragraph (b) in this section of the final rule to allow the use of
either white or yellow retroreflective material.\8\
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\8\ FRA notes, however, that because chromatic markings (e.g.,
yellow markings) generally appear brighter and more detectable than
similarly-sized achromatic markings (i.e., white markings), if white
material is applied to rail cars under this rule, it is necessary to
apply a greater quantity of the material to achieve the same
effectiveness as a smaller quantity of yellow material. This ``color
correction factor'' is discussed in more detail in the discussion of
Sec. 224.105 below.
---------------------------------------------------------------------------
In the NPRM, FRA specifically noted that its own research
determined that fluorescent yellow retroreflective material had the
highest SIA value of all materials tested and that fluorescent yellow
material could be detected from a farther distance than any other
material tested. However, based on our understanding that the duration
of fluorescent pigments is substantially less than the typical ten-year
reflector product guarantee, the agency proposed not to require the
application of retroreflective material with fluorescent properties. In
its comments, however, 3M, pointed out that its fluorescent yellow
sheeting typically used on traffic signs is warranted for a full ten
years. Further, 3M explained that the duration of fluorescent pigments
is affected by the direction of the fluorescent material's exposure
(presumably due to ultraviolet rays from the sun) and reasoned that
because rail cars do not always face the same direction, the expected
life of fluorescent yellow pigments would exceed the expected
durability of the markings. Accordingly, 3M recommended that FRA
require the use of fluorescent retroreflective material. Avery
Dennison, on the other hand, commented that because fluorescent objects
absorb ultraviolet light from the sun and then re-emit longer
wavelength light, fluorescent colors are most effective in increasing
daytime conspicuity. However, Avery Dennison noted that since the sun
does not emit ultraviolet light at night, fluorescence stops.
Accordingly, Avery Dennison reasoned that because the stated purpose of
the rulemaking is to increase nighttime conspicuity, fluorescent colors
would add no value to the application. Further, Avery Dennison
explained that fluorescent colors are specified by their exceptionally
high daytime luminance factors (Y%) and that such a specification would
eliminate the use of metalized prismatic materials. Further, Avery
Dennison commented that if metalized prismatic materials were
eliminated from suitability under this rule, this would only allow two
current conspicuity tape manufacturers to supply the market. FRA agrees
with Avery Dennison on this point, and accordingly, this final rule
does not require fluorescent retroreflective material. However, as
noted in the preamble to the NPRM, if a fluorescent retroreflective
material meets all of the requirements of this part, its use is
acceptable.
Although in its comments to the NPRM, Avery Dennison expressed
general agreement with FRA's proposal to require yellow retroreflective
material, Avery Dennison noted one ambiguity in the proposed color
requirement. Specifically, Avery Dennison pointed out that ASTM
standard D 4956-01 contains three yellow color standards, all
referencing the same chromaticity coordinates, but with three different
daytime luminance
[[Page 156]]
factors (i.e., Tables 5, 9, and 11 of the ASTM standard). Avery
Dennison explained that based on the chromaticity coordinates specified
in the ASTM standard, if FRA does not specify a minimum daytime
luminance factor, retroreflective sheeting that appeared brown could
meet the stated color requirement. Accordingly, Avery Dennison
recommended that FRA adopt a minimum daytime luminance factor (Y%) of
12 for yellow sheeting. Although FRA now recognizes this ambiguity in
the color requirement of the proposed rule, in this final rule FRA has
modified the performance requirements contained in paragraph (c) to
specify that retroreflective sheeting applied pursuant to this rule
must meet the performance requirements (except for the minimum
photometric performance requirements) of Type V Sheeting as defined in
ASTM standard D 4956-01a. One of the performance requirements of Type V
Sheeting is meeting an assigned daytime luminance factor. Specifically,
Table 11 of the ASTM standard sets forth the required Y% for Type V
Sheeting; the Y% for yellow Type V sheeting is 12, and the Y% for white
Type V sheeting is 15. Accordingly, although FRA agrees with Avery
Dennison's comment regarding the necessity of including a daytime
luminance factor to ensure that only appropriately high-contrast
colored sheeting meets the performance requirements of the rule, FRA
has achieved this by specifying that sheeting must meet the
requirements for Type V Sheeting as defined in ASTM standard D 4956-
01a.
Paragraph (c), as it did in the NPRM, contains the performance
standards for retroreflective sheeting applied under this part. This
paragraph, however, has been modified slightly, consistent with FRA's
decision to allow the use of either yellow or white retroreflective
material and to clarify the performance requirements. As discussed
above and explained in detail in the NPRM, this paragraph was intended
to require that retroreflective sheeting applied in accordance with the
rule meet all the performance requirements, except for the minimum
photometric performance requirements, of ASTM standard 4956-01. The
ASTM standard has been chosen as the basis for the FRA specification
because FRA understands it to be the specification that manufacturers
of retroreflective sheeting are following in their current
manufacturing process. NHTSA's rule requiring reflectorization of large
truck trailers (49 CFR 571.108) is also based on this ASTM standard
(version D 4956-01).
As proposed, however, these performance requirements contained a
certain amount of unintended ambiguity. Specifically, ASTM standard D
4956-01a identifies nine ``Types'' of retroreflective sheeting. As
explicitly stated in the ASTM standard, ``Type designation is provided
as a means for differentiating functional performance.'' ``Types'' are
determined by conformance to the standard's retroreflectance, color,
and durability requirements. Each ``Type'' designated by ASTM must
conform to certain minimum performance standards. That is, each
``Type'' must meet certain performance standards (i.e., retroreflective
photometric performance, flexibility, adhesion, impact resistance,
accelerated weathering, shrinkage, resistance to fungus, and specular
gloss performance standards). Because no ``Type'' was specified in the
performance requirements of paragraph (c) of proposed Sec. 224.103, it
was impossible for the retroreflective material manufacturing industry
to determine which performance standards specified in the ASTM standard
FRA intended to apply.
In this final rule, FRA has clarified these performance
requirements by stating that retroreflective sheeting must conform to
all the performance requirements, except the minimum photometric
performance requirements, for Type V Sheeting as defined in ASTM
standard D 4956-01a. Type V Sheeting, defined in the ASTM standard as
``super high-intensity retroreflective sheeting,'' is typically used
for delineators. For example, Federal regulations requiring
retroreflective material on the sides and rear of large trucks require
retroreflective sheeting meeting the performance requirements of Type V
Sheeting. Although FRA did not specify ``Type V'' sheeting in the
proposed rule, FRA believes doing so now is consistent with the
proposed rule because, given the photometric performance requirements
contained in the NPRM, the other ASTM-defined ``Types'' of sheeting
that could meet the proposed performance requirements would not be
appropriate for the intended function of delineators on rail car sides.
As explained in the NPRM, because FRA is requiring that
retroreflective sheeting meet the requirements of ASTM D 4956-01a for
Type V Sheeting only as initially applied and is not requiring specific
minimum reflectivity for vehicles in service, FRA believes that highly
durable sheeting meeting the performance tests of the ASTM standard is
required. It is less costly to install durable material than it would
be to install less durable material but be required to regularly test
its performance relative to a performance standard.
Table 1 of the final rule, as it did in the proposed rule, sets
forth the specific minimum photometric performance requirements for
retroreflective sheeting under this part. In addition, because the
final rule permits the use of either yellow or white material (as
opposed to the proposed rule which contemplated the use of only white
material), FRA has inserted the minimum photometric performance
requirements (i.e., minimum SIA) in Table 1 specific to white
material.\9\ Specifically, Table 1 sets forth the minimum photometric
performance requirements (i.e., minimum required SIA) for both yellow
and white retroreflective material at observation angles of 0.2[deg]
and 0.5[deg] and light entrance angles of -4[deg] and 30[deg] based on
typical grade crossing configurations and the standards set forth in
ASTM D 4956-01a. These minimum photometric performance requirements for
white material, like the requirements applicable to yellow material
proposed in the NPRM, were developed to ensure that the retroreflective
material would perform above the minimum detection threshold of 45 cd/
fc/ft\2\ identified in the 1999 Volpe Report as necessary to enable
most motorists to detect a train in time to avoid a collision. As
explained in the NPRM, FRA recognizes that in the real world railroad
operating environment, the effective SIA of retroreflective materials
depends on various factors (e.g., grade crossing configurations and
angles, ambient light conditions, vehicle headlight type and lens
cleanliness, weather, and the presence and working condition of
illumination and other warning devices). FRA also recognizes that the
effectiveness of the retroreflective material may be reduced because of
dirt and grime which inevitably accumulate on rail cars. Accordingly,
as in the proposed rule, the minimum photometric performance
requirements of this final rule take into account these varying
factors. Specifically, as explained in the NPRM, in determining these
minimum
[[Page 157]]
photometric performance requirements, FRA extrapolated test data
detailed in the 1999 Volpe Report out ten years, the manufacturer's
stated useful life of the material. This extrapolation demonstrated
that the forecasted SIA levels remained well above the minimum
detection level established in the 1999 Volpe Report. In addition,
although the primary degradation in the SIA of the material occurs
during the first two years as a result of ultra-violet light exposure,
after which the material maintains a relatively consistent intensity
throughout its useful life, FRA forecasted SIA degradation of the
material due to dirt and grime accumulation exponentially. Accordingly,
FRA's analysis substantially overestimates the degradation rate of the
material, and even with this overestimation, the expected SIA values
for 10 years remain well above the minimum detection level identified
in the 1999 Volpe Report.
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\9\ In the NPRM, FRA specifically requested comments regarding
these minimum photometric performance requirements for white
material. 68 FR 62955. Because FRA received no substantive comments
regarding these requirements, FRA has adopted them substantially as
proposed in this final rule. FRA has, however, corrected one
inadvertent error in the requirements as previously published. In
the NPRM, FRA erroneously referred to an observation angle of 0.53
for white material. FRA has corrected this error to maintain
consistency with ASTM standard D 4956-01a in this final rule.
---------------------------------------------------------------------------
In response to the minimum photometric performance requirements of
the proposed rule, 3M recommended that the 30[deg] entrance angle be
increased to 40[deg] and the minimum photometric performance
requirements be revised accordingly. Specifically, 3M questioned
whether the 4% of crossings FRA identified with crossing angles of less
than 30[deg] assume that drivers view trains while they are on the road
that crosses the track (e.g., driving on a road perpendicular to the
tracks). 3M pointed out that drivers are often on a roadway parallel to
railroad tracks and, given the narrow entrance angularity of the
proposed photometric requirements, 3M expressed the view that drivers
often would not have enough time after turning off a parallel roadway
to react to conspicuity markings on railcars passing on the track.
Avery Dennison, on the other hand, commented that if a driver were
traveling on a roadway parallel to the tracks, the driver would have to
make a 90[deg] turn, requiring braking, in order to cross the tracks.
Accordingly, Avery Dennison concluded that the proposed entrance angle
requirements were sufficient.
As explained in the NPRM, FRA's Grade Crossing Inventory
demonstrates that approximately 80% of all crossings have crossing
angles between 60[deg] and 90[deg], almost 17% have crossing angles
between 30[deg] and 59[deg], and only 4% have crossing angles less than
30[deg]. Accordingly, the requirements of Table 1 ensure that the
retroreflectors will perform above the minimum detection threshold for
the average motor vehicle at approximately 96% of all crossings.
Paragraph (d) of this section retains the certification requirement
proposed in the NPRM. Specifically, manufacturers of retroreflective
sheeting are responsible for compliance with the construction, color,
and performance requirements of the retroreflective sheeting used to
comply with this rule. Accordingly, as it did in the NPRM, this
paragraph requires that manufacturers who are providing retroreflective
sheeting to the railroad industry certify their products' compliance
with Sec. 224.103. Specifically, paragraph (d) requires that the
characters ``FRA-224'' be permanently stamped, etched, molded, or
printed, in characters at least 3 mm high, with each set of characters
spaced no more than four inches apart, on each piece of retroreflective
sheeting manufactured. FRA received only two comments regarding the
proposed certification requirement, both from manufacturers of
retroreflective sheeting. First, 3M suggested that the integrity of the
self-certification system proposed needed improvement and urged FRA to
require manufacturers to demonstrate compliance with the ISO 9000
Quality Systems Standard or a technically equivalent standard. Avery
Dennison, on the other hand, expressed the view that the certification
requirement, as proposed in the NPRM, was adequate. In support of its
position, Avery Dennison noted that the proposed self-certification
requirement of an indelible ``FRA-224'' mark is identical to the self-
certification requirement in the Federal Motor Vehicle Safety Standards
requiring retroreflective sheeting on large trucks and trailers (49 CFR
571.108). FRA notes that the manufacturer self-certification system
proposed was modeled after the system utilized in the trucking
industry. Also, FRA notes that the same retroreflective material
manufacturers who supply material to the trucking industry will be the
suppliers pursuant to this rule. Accordingly, FRA believes that the
system of self-certification, as proposed, is sufficient.
Paragraph (e) of this section, which has not changed from that
proposed in the NPRM, recognizes that although the rule generally
requires application of retroreflective sheeting meeting the specific
construction, color, and performance requirements of Sec. 224.103(a)
through (c), freight rolling stock owners may, under Sec. 224.15,
request FRA approval to use alternative standards. As discussed in the
analysis of Sec. 224.15 above, any alternative standard utilized must
result in an equivalent level of safety as the sheeting described in
Sec. 224.103(a) through (c) applied in accordance with this rule.
Section 224.105 Sheeting Pattern, Dimensions and Quantity
As proposed in the NPRM, Sec. 224.105 made the amount and
placement of retroreflective sheeting required under this part
dependent on the size of the car or locomotive, as well as the car
type. Proposed Sec. 224.105 also set forth specific patterns for the
application of retroreflective material to various types of freight
cars, as well as locomotives. This section of the final rule, however,
no longer sets forth specific placement patterns for freight cars and
locomotives. Instead, this section now describes the general standards
for the pattern of retroreflective material application for rail cars,
dimensions of individual pieces of retroreflective sheeting, and the
minimum quantity of retroreflective sheeting required on each side of a
freight car or locomotive. A new section, Sec. 224.106, sets forth the
more specific patterns, applicable to both freight cars and
locomotives, that FRA is requiring in this final rule. Accordingly,
discussion of the specific patterns of application required for freight
cars and locomotives will be discussed in the analysis of new Sec.
224.106, and the discussion in this section will focus on the general
requirements of Sec. 224.105 as adopted in this final rule.
As contemplated by the proposed rule, this section of the final
rule specifies that, with certain exceptions, individual reflectors
applied pursuant to this part must be 4 inches wide and 18 or 36 inches
long (one-half a square foot or one square foot, respectively). FRA has
retained this general requirement for relatively large-sized reflectors
in order to minimize the degradation rate of individual strips of
retroreflective sheeting. Section 224.105 of this final rule also
provides that retroreflective sheeting must be applied along the length
of freight car and locomotive sides and that the amount of
retroreflective material required to be applied is, in part, dependent
on the length of the car or locomotive. Table 2 of this section
mandates a minimum square footage of sheeting on each car side, based
on the car size and the sheeting color. If a car owner or railroad
chooses to apply yellow retroreflective material, the amount of
material required is consistent with the minimum amounts proposed to be
required on ``cars of special construction'' in Sec. 224.105(a)(4) of
the proposed rule. As discussed in the NPRM, although the optimum
configuration of retroreflectors identified in the 1999 Volpe Report
required slightly less retroreflective
[[Page 158]]
material, this configuration assumed that the material would be
periodically washed. Volpe found that periodic washing of the
retroreflectors could recover the intensity of the prismatic material
to nearly original levels. However, because of practical concerns
expressed by many members of the railroad industry (e.g., increased
labor costs, environmental wastewater, and water usage issues), FRA is
not requiring the periodic cleaning of the retroreflective sheeting.
Instead, in order to compensate for the lack of cleaning, FRA is
requiring approximately 30% more material (about 1 square foot on each
side of most typically-sized freight rolling stock), thereby lowering
the level of luminance needed.
As noted in the discussion of Sec. 224.103 above, if a car owner
or railroad chooses to apply white retroreflective material for
purposes of meeting the enhanced visibility standards of this final
rule, the owner must apply a greater quantity of the material in order
to achieve the same effectiveness as the smaller quantity of yellow
material required by this rule. As also noted above in the discussion
of the color requirement of Sec. 224.103, although white material has
a higher SIA than yellow material, and presumably would be brighter and
more reflective than yellow material, because an object's perceived
brightness is modified by color information, yellow is actually more
detectable, particularly at night and during other conditions of
limited visibility. See Schumann et al. and Sayer et al. (Document Nos.
FRA-1999-6689-112 and -113 in the docket of this proceeding).
As noted in the discussion of Sec. 224.103 above, recognizing that
a chromatic retroreflector may appear brighter than an achromatic
retroreflector with the same luminance, ASTM E 1501 provides a widely-
accepted methodology for calculating color correction factors which
effectively account for the perceived differences in brightness and
conspicuity between chromatic and achromatic retroreflective markings.
Based on the chromaticity coordinates of their specific product colors
and the methodology of ASTM E 1501,\10\ manufacturers of
retroreflective sheeting calculate color correction factors specific to
their product colors. As a result, manufacturer-specific tables of
color correction factors for retroreflective traffic control products
that compensate for color have existed in the reflective material
manufacturing industry for decades. Based on the color correction
factors reported by a sampling of retroreflective material
manufacturers already routinely supplying retroreflective material to
the railroad industry and the methodology of ASTM E 1501, FRA
determined that approximately 24% more white retroreflective material
meeting the minimum photometric performance requirements of Sec.
224.103 is necessary to achieve the same level of retroreflection as
the amount of yellow material FRA determined to be necessary.
---------------------------------------------------------------------------
\10\ See Sec. Sec. 6.4 and 6.5 of ASTM E 1501 addressing
Chromaticity Coordinates and Color Factor for Adjustment
Calculations (Fc).
---------------------------------------------------------------------------
Section 224.106 Location of Retroreflective Sheeting
As noted in the discussion of Sec. 224.105 above, similar to
proposed Sec. 224.105, Sec. 224.106 of this final rule sets forth
specific patterns for the application of retroreflective material to
various types of freight cars, as well as locomotives. The proposed
rule (in Sec. 224.105) generally required a vertical pattern of
retroreflective sheeting on the sides of freight cars, with strips of
sheeting to be located as close to each end of the car as practicable
and at equidistant intervals of not more than 10 feet. FRA proposed to
require that retroreflective sheeting be applied at least every 10 feet
along the sides of freight cars because roadway lanes in the United
States are typically 10 to 12 feet wide and accordingly, having at
least one reflector every 10 feet increases the likelihood of a
reflector being in the sight path of an approaching motorist.
Recognizing that the conspicuity issues surrounding locomotives differ
from the issues surrounding freight cars, Sec. 224.105 of the proposed
rule provided a more flexible approach to the reflectorization of
locomotives, specifying only that a minimum amount of retroreflective
material was to be equally distributed between both sides of
locomotives in a pattern recognizable to motorists.
Railroad Freight Cars
As proposed in the NPRM, paragraph (a) of Sec. 224.105 set forth a
specific pattern of application for railroad freight cars generally
(e.g., box cars, gondola cars, and other similarly configured cars),
tank cars, flat cars, and ``cars of special construction.''
Specifically, as proposed, paragraph (a) explained that the amount of
retroreflective sheeting required to be applied to freight cars under
this part is dependent on the length of the car, measured from endsill
to endsill, exclusive of the draft gear. Paragraph (a)(1) proposed to
require that on freight cars other than tank cars, flat cars, and
``cars of special construction,'' retroreflective sheeting be applied
vertically in 4x36 inch and 4x18 inch strips along the car sides, with
the bottom edge of each strip as close as practicable to 42 inches
above the top of the rail. Further, paragraph (a)(1) proposed to
require that either a minimum of one 4x36 inch (one square foot) strip
of retroreflective material or two 4x18 inch strips, directly above the
other, be applied vertically as close to each end of the car as
practicable and that a minimum of one 4x18 inch strip be applied
vertically at equal intervals of 10 feet or less between the car ends.
Paragraphs (a)(2) and (3) of proposed Sec. 224.105 followed the
same basic pattern as paragraph (a)(1), but attempted to account for
the configurational differences between various types of freight cars.
Proposed paragraph (a)(2) addressed tank cars, while paragraph (a)(3)
addressed flat cars. Paragraph (a)(2) proposed to require that on tank
cars, retroreflective sheeting be applied vertically along the car
sides and centered on the horizontal centerline of the tank, or as near
as practicable. Further, proposed paragraph (a)(2) provided that if it
was not practicable to safely apply the sheeting centered on the
horizontal centerline of the tank, the sheeting could be applied
vertically with its top edge no lower than 70 inches above the top of
the rail. Similar to the pattern proposed in paragraph (a)(1),
paragraph (a)(2) proposed to require a minimum of one 4x36 inch (one
square foot) strip of retroreflective material or two 4x18 inch strips,
directly above each other, be applied vertically as close to each end
of the tank as practicable and that a minimum of one 4x18 inch strip be
applied vertically at equal intervals of 10 feet or less between each
end of the tank. The intent of this proposed configuration of
reflective material on tank cars was that the retroreflective sheeting
would be centered, as practicable, on the outermost curved areas of the
tank, thereby reflecting the most light.
Recognizing the limited surface area of the sides of a typical flat
car, paragraph (a)(3) of proposed Sec. 224.105 required a minimum of
two 4x18 inch strips, one next to the other, be applied vertically as
close to each end of the car as practicable, with the bottom edge of
each strip no lower than 30 inches above the top of the rail, as
practicable. Consistent with the application pattern for other freight
cars, paragraph (a)(3) further proposed to require that a minimum of
one 4x18 inch strip be applied to the sides of flat cars vertically at
equal intervals of ten feet or less, with
[[Page 159]]
the bottom edges of each strip no lower than 42 inches above the top of
the rail, as practicable. Because the surface area of the sides of a
typical flat car is between 4 and 18 inches in height, paragraph (a)(3)
provided that if vertical application of 4x18 inch strips was not
feasible, sheeting could be applied vertically in three 4x6 inch strips
placed horizontally along the side sill of the cars.
Paragraph (a)(4) of proposed Sec. 224.105 recognized that not all
freight cars would fit the standard configurations contemplated in
paragraphs (a)(1) through (a)(3) and proposed a more flexible pattern
for these ``cars of special construction.'' FRA estimated that the
patterns proposed for typical freight cars, tank cars, and flat cars
would be impractical to apply to approximately 1% of the fleet due to
their unique physical configurations. Specifically, based on the length
of a ``car of special construction,'' this paragraph proposed to
require a specific amount of retroreflective material be applied to
these cars in a pattern conforming ``as close as practicable'' to the
standard patterns proposed in paragraphs (a)(1) through (a)(3).
The intent of the specific patterns specified in proposed Sec.
224.105(a) was to maximize the effectiveness of the retroreflective
material, allow retroreflectorization of a variety of freight car types
with the same generally recognizable pattern, and also to minimize the
degradation rate of the material. Specifically, as detailed in the
NPRM, FRA proposed to require a vertical pattern of retroreflective
material for several reasons. First, FRA's own research indicated that
either a pattern that outlined the shape of the rail equipment, or a
vertically-oriented pattern that spaced retroreflective material
uniformly over a large area of the equipment's side was most effective
in increasing the visibility of the equipment. Second, a vertically-
oriented pattern contrasts with the horizontally-oriented pattern of
the retroreflective material required for truck trailers, thereby
reducing the likelihood that motorists will confuse a train in a grade
crossing with a truck trailer. Third, because not all approaches to
grade crossings are level (``humped crossings''), to the extent that a
motor vehicle's headlights are aimed away from the retroreflective
material, less light will reach the retroreflective material if it is
applied horizontally; therefore, less light will be returned to the
driver, and a train in a crossing will be more difficult to detect.
Accordingly, FRA reasoned that orienting the retroreflective material
vertically increases the likelihood that the maximum available light
from vehicle headlights will enter the retroreflective material and be
returned to the motorist when the road is not level.
A few commenters, including the AAR and CN, expressed the view that
FRA's rationale underlying the proposed vertical pattern is flawed
because the ability of motorists to distinguish between trucks and rail
rolling stock is not a real concern. For example, CN noted that grade
crossing signage and other crossing warning devices indicate the
closeness of a railroad crossing to a driver. These cues, along with
the ``presence of any sort of object ahead,'' CN reasoned, ``should be
enough for a prudent driver to take the necessary precautions.'' FRA
notes, however, that the prevalence of unlighted, passively-protected
crossings throughout the United States often makes grade crossing
signage and similar warning devices difficult for motorists to detect,
especially during conditions of limited visibility.
AAR asserted that the fact that there is considerable traffic on
the rails that must have reflectorized material meeting highway
specifications further undermines FRA's conclusion that it is important
for motorists to be able to distinguish between trucks and trains in
their path of travel. Further, AAR asserted that regardless of whether
a motorist perceives a truck or a train ahead in his or her path of
travel, the motorist must react the same way--i.e., the motorist must
determine whether there is any trailing traffic. Accordingly, AAR
expressed the view that if a motorist mistakes railroad rolling stock
for a truck, or vice versa, the mistake should be of no consequence.
In these comments, however, AAR does not consider the fact that any
trailing traffic following a truck would more than likely be another
reflectorized highway vehicle, or at least, a highway vehicle equipped
with headlights and taillights; thus, any traffic trailing a truck
would be easily detected by an approaching motorist. If a motorist
perceives a truck in his or her path, but no traffic trailing the
truck, he or she may only need to slow the vehicle to avoid a
collision, since trucks are generally shorter than trains, normally
move through intersections faster than trains, and usually do not have
any hard-to-detect trailing traffic. However, given the prevalence of
non-reflectorized rail cars, and the 10-year implementation period for
reflectorization of rail freight rolling stock contemplated by the
proposed rule and adopted in this final rule, it is highly likely that
any traffic trailing a reflectorized rail car would be a non-
reflectorized rail car. Thus, if a motorist perceives a reflectorized
rail car in his or her lane of travel, the motorist must react
differently than if he or she perceives a truck with no trailing
traffic, not only because trains are generally longer than trucks and
pass through intersections slower than trucks, but also because of the
likelihood of hard-to-detect trailing traffic. Accordingly, FRA
continues to believe it important that any rail car reflectorization
pattern minimize, to the extent possible, the potential for motorist
confusion between trains and trucks. However, even disregarding the
issue of potential motorist confusion between reflectorized rail cars
and reflectorized trucks, because research has shown that a vertically-
oriented pattern spacing retroreflective material over the length of
rail car sides is one of the most easily detectable patterns of
retroreflective material and because a vertically-oriented pattern
ensures that the maximum available light from vehicle headlights will
enter the retroreflective material and be returned to an approaching
motorist, FRA continues to believe that a vertical reflectorization
pattern is the most effective in increasing the visibility of freight
cars.
FRA recognizes, however, that AAR and several commenting railroads,
many of which already have successful voluntary freight car
reflectorization programs in place, noted significant practical
difficulties with the vertical pattern FRA proposed. In particular, FRA
received a multitude of comments asserting that the proposed vertical
``striping'' pattern was impracticable for the majority of freight cars
that would be subject to the rule and that the proposed rule did not
provide enough flexibility as to where retroreflectors could be applied
pursuant to the rule. For example, CP, which has had a voluntary
reflectorization program in place for several years, commented that
although it had no objection to FRA's proposed square footage
requirements, any reflectorization standard ``should provide sufficient
latitude for application to various car types, particularly when
applying [reflective material] to existing cars where existing stencil
requirements have to be taken into account.'' More specifically,
comments submitted by various members of the railroad industry
consistently expressed the view that FRA's proposed pattern of vertical
striping posed three major problems. First, commenters asserted that
given the physical configurations of many freight cars, it would be
physically
[[Page 160]]
impossible to apply material in the proposed pattern on the majority of
freight cars that would be subject to the rule. Second, these
commenters asserted that FRA's proposed pattern would interfere with
reporting marks and other stencils on freight cars, as well as bolts,
rivets and other discontinuous surfaces on the face of freight cars.
Third, these commenters asserted that on many cars, safety appliances
would obscure or otherwise interfere with the proposed striping
pattern.
At the January hearing, TTX, an owner of one of the nation's
largest fleets of railcars, stated that in most cases, and particularly
with regard to flat cars, it would be ``physically impossible'' to
comply with FRA's proposed reflectorization pattern. Specifically, TTX
noted that none of its ``conventional'' flatcar fleet has sides high
enough to accommodate reflectors at 42 inches from the top of the rail;
that none of its conventional flatcars could accommodate vertical
reflectors at the ends; and that because of existing car markings,
fasteners, and other appurtenances, few of its conventional flatcars
could accommodate evenly spaced reflectors. Further, TTX noted that the
same problems are even more pronounced with some of its specialized
pieces of equipment (e.g., centerbeam cars, bulkhead flatcars, and
heavy duty flatcars) which have ``extremely narrow sills and almost no
space at the ends.'' In its comments, TTX asserted that FRA should not
issue a rule requiring the reflectorization of flat cars that nearly
all flat cars could not meet. TTX asserted that ``[i]f there is a rule
designed specifically for flatcars, it should recognize the universal
low height of the cars, the fact that they have very little surface
area for affixing the reflectors, and the fact that they have little
vertical space at the ends.''
In response to TTX's particular concerns regarding the proposed
pattern of retroreflective sheeting on flat cars, FRA notes several
points worthy of clarification. First, in paragraph (a)(3) of proposed
Sec. 224.105, FRA specifically recognized the limited surface height
of the sides of typical flat cars and provided that if vertical
application of retroreflective sheeting was not feasible on a
particular car, sheeting could be applied in 4x6 inch strips placed
horizontally along the side sills. In addition, proposed paragraph
(a)(3) of this section required that retroreflective sheeting be
applied no lower than 30 or 42 inches above the top of the rail, ``as
practicable.'' In other words, FRA intended to provide the flexibility
necessary to accommodate flat cars with narrow side sills.
TTX did recognize FRA's attempt to account for the physical
configurations of ``odd-shaped'' cars by providing for ``cars of
special construction'' (i.e., not typically-shaped freight cars, tank
cars, or flat cars) in proposed paragraph (a)(4) of this section.
However, TTX expressed the view that the proposed requirement that the
retroreflective pattern on these ``cars of special construction''
conform as close as practicable to the standard patterns proposed for
typical freight cars presented additional problems in that it would
require an owner's maintenance and repair personnel to exercise their
judgment in the field as to what reflector configuration would conform
``as close as practicable'' to FRA's stated standards. TTX expressed
concern that, given the wide variety of existing car types and physical
configurations, along with the varying car markings, stencils, and
appurtenances on each different car type, it would be impossible to
ensure that every physical variation of these ``cars of special
construction'' was equipped with retroreflectors in a standardized way,
conforming as close as practicable to FRA's stated standards. Finally,
TTX expressed concern that many cars have insufficient unoccupied side
surface area to meet even FRA's minimum square footage requirements for
retroreflective sheeting, much less the specific location requirements.
At the January hearing, a representative of ARC (an organization of
suppliers, particularly rail car builders) expressed concerns similar
to TTX's, but regarding boxcars. Specifically, ARC expressed the view
that even on a typical boxcar, given the stenciling required by AAR
Standard S910-98, there is little room for placing vertical reflectors
without interfering with the car's stenciling. Other commenters noted
that the corner posts of railcars are typically less than four inches
wide; thus, it would be impossible to apply four-inch wide
retroreflective markings at the extreme ends of many railcars. API,
along with ARC, echoed TTX's concern regarding the proposed rule's
requirement for evenly spaced reflectors. Specifically, API explained
that if no more than 10 feet is allowed between strips of reflective
sheeting, the reflective markings will interfere with car stencils. RSI
noted that placement of retroreflective sheeting, as proposed, may
require the restenciling of many cars, adding significantly to the cost
of application. AAR expressed similar comments and provided drawings
showing how FRA's proposed vertical application pattern would
purportedly interfere with existing car stenciling.
AAR also asserted that on many cars, safety appliances would
interfere with the proposed vertical striping pattern and that in many
cases, the proposed vertical striping pattern would require that a
retroreflective strip be placed under a safety appliance (such as a
handhold, grab iron, or ladder), which would interfere with the
visibility of the reflectorized material. In addition, AAR asserted
that maintenance of safety appliances in close proximity to
reflectorized material could cause damage to the reflectorized material
and that FRA's proposed vertical striping pattern did not account for
potential damage caused by employees inadvertently kicking and scraping
reflectorized material as they get on and off a safety appliance.
Commenters suggested a far more flexible approach in the
application of retroreflective material to the sides of rail cars. For
example, at the January hearing, TTX suggested that car owners simply
be required to equip their cars with a certain amount of
retroreflective sheeting in a generally uniform way, taking into
account the particular existing structure of the car. RSI recommended
that FRA allow vertical, horizontal, or a combination of both patterns;
CP, CN, and AAR recommended a horizontal pattern on most car types; and
API recommended a spacing of 8-12 feet between reflectors. Many
commenters also endorsed AAR's proposed industry standard and suggested
that FRA incorporate the standard in any final rule on
reflectorization.
Although, based on its extensive research efforts, FRA continues to
believe that a vertically-oriented reflective pattern, uniformly spread
along the length of car sides, is the most effective in increasing the
visibility of rail cars, FRA recognizes the practical concerns
expressed by commenters and that in many cases, a vertical pattern of
retroreflective material along the sides of freight cars is not
feasible. FRA also recognizes that research has also shown that
generally, a reflectorized freight car is significantly more detectable
than an unreflectorized car, whether the reflective material is applied
horizontally or vertically, or whether the reflective material is
yellow or white. See 1998 and 1999 Volpe Reports. In addition, in the
proposed rule, FRA did not intend that freight cars would have to be
restenciled in order for retroreflective material to be applied. FRA
also based the proposed rule on the belief that the pattern proposed
for typical freight cars, tank cars, and flat cars would be practical
to apply to approximately 99% of the
[[Page 161]]
freight car fleet. Comments received in response to the NPRM, however,
indicate that this belief is inaccurate. Accordingly, in this final
rule, FRA has revised the required retroreflective material placement
patterns applicable to freight cars to alleviate the practical concerns
noted by several commenters. Section 224.106 of this final rule also
specifically invites the industry to revise the industry standard
proposed by AAR to meet the performance requirements of this final
rule. Absent the industry's development and FRA's acceptance of an
industry standard for the reflectorization of freight cars and
locomotives, Sec. 224.106 of this final rule sets forth specific
patterns for the application of retroreflective material to various
types of freight cars, as well as locomotives.
Generally, in this final rule FRA has revised three basic aspects
of the patterns contemplated in proposed Sec. 224.105. First, FRA has
revised the required patterns to provide for flexibility in applying
the sheeting around existing and required stenciling and markings,
around appurtenances which may obscure the visibility of the sheeting,
and around discontinuous surfaces that may prevent the sheeting from
adhering to car sides. Second, FRA has revised the required patterns,
where appropriate, to provide for either vertical or horizontal
placement of retroreflective sheeting. Third, FRA has eliminated the
need for equidistant spacing of no more than 10 feet between strips of
retroreflective sheeting.
Specifically, paragraph (a) of Sec. 224.106 of this final rule
provides that retroreflective sheeting must be located clear of
appurtenances and devices such as ladders and other safety appliances
or attachments that may obscure its visibility. Paragraph (a) also
provides that retroreflective sheeting need not be applied over
existing or required car stencils or markings, nor must the sheeting be
applied to discontinuous surfaces such as bolts, rivets, door hinges,
or other irregularly shaped areas that may prevent the sheeting from
adhering to the car sides. To accommodate cars with limited unoccupied
surface space suitable for attaching reflectors, paragraph (a)
specifically provides that 4x18 inch and 4x36 inch strips of sheeting
may be separated into either two 4x9 inch strips, or four 4x9 inch
strips, and applied on either side of the interfering appurtenances,
discontinuous surfaces, or car markings or stencils. In other words,
for example, if there is not sufficient room to apply a 4x18 inch
reflector on the side of a car without covering existing stenciling, a
car owner may apply two 4x9 inch strips of sheeting, one on either side
of the stenciling, as practicable.
Similar to paragraph (a) of proposed Sec. 224.105, paragraph (a)
of Sec. 224.106 of this final rule sets forth the specific pattern of
application for railroad freight cars generally (e.g., box cars,
gondola cars, and other similarly configured cars), tank cars, flat
cars, and ``cars of special construction.'' As applied to freight cars,
other than flat cars and tank cars, paragraph (a)(1) provides for
either a vertical or horizontal pattern of retroreflective material
along the length of the car sides, with the bottom edge of the sheeting
as close as practicable to 42 inches from the top of the rail. Although
FRA recognizes that the physical configuration of some freight cars
will not allow for the placement of retroreflective sheeting at, or
very near to, 42 inches from the top of the rail, in order to minimize
the degradation of the material and maximize the material's
effectiveness, paragraph (a)(1) provides that retroreflective sheeting
shall not be applied below the side sill or above 72 inches from the
top of the rail. Paragraphs (a)(1)(i) and (ii) also mandate that at
least one 4x36 inch strip of retroreflective sheeting, or its
equivalent (one square foot), be applied to car sides as close as
practicable to each end of the car, and at least one 4x18 inch strip,
or its equivalent (one-half a square foot), must be placed at least
every 12 feet.
Paragraph (a)(2) addresses tank cars and remains substantially the
same as originally proposed. Specifically, paragraph (a)(2) requires
that on tank cars, retroreflective sheeting shall be applied vertically
along the car sides and centered on the horizontal centerline of the
tank, or as near as practicable. If it is not practicable to safely
apply the sheeting centered on the horizontal centerline of the tank,
the sheet may be applied vertically with its top edge no lower than the
horizontal centerline of the tank. Similar to the pattern proposed in
(a)(1), paragraph (a)(2) requires a minimum of one 4x36 inch (one
square foot) strip of retroreflective material or two 4x18 inch strips,
directly above each other, be applied vertically as close to each end
of the tank as practicable, and at least one 4x18 inch strip (one-half
a square foot) must be placed at least every 12 feet between the two
end strips.
As explained in the NPRM, the intent of this configuration is that
the retroreflective sheeting will be centered, as practicable, on the
outermost curved area of the tank, thereby reflecting the most light.
The placement pattern has been revised from that originally proposed
for tank cars, however, in accordance with NAFCA's suggestion to avoid
applying the sheeting in the ``drip path'' of the tank. Specifically,
NAFCA explained that ``[i]t is inevitable that materials loaded into
tank cars will experience some spillage onto the sides of the car
during the loading process'' and that ``accumulated residue from
spillage on the exterior of the cars may make it difficult for
[retroreflective sheeting] to adhere'' and the sheeting would quickly
become obscured by loading spillage. Accordingly, FRA has revised the
required pattern of retroreflective sheeting to be applied to freight
cars to specifically state that sheeting shall not be applied in the
spillage area directly beneath the manway used to load and unload the
tank.
Paragraph (a)(3) addresses flat cars (defined to include spine
cars, articulated and multi-unit articulated cars) and provides for a
horizontal pattern of retroreflective material along the length of flat
cars' side sills, with the bottom edge of the sheeting no lower than
the bottom of the side sill and the top edge of the sheeting no higher
than the top of the car deck or floor. Similar to paragraphs (a)(1) and
(2) of this section, paragraph (a)(3) requires that at least one square
foot of retroreflective sheeting be applied as close to each end of the
car, as practicable, and at least one-half a square foot of sheeting be
applied at least every 12 feet between the two end strips. Recognizing
the limited surface area of the sides of a typical flat car, paragraph
(a)(3) provides that the one square foot of material at each car end
may be applied in two 4x18 inch strips, one above the other, or if the
side sill is less than eight inches wide, the two 4x18 inch strips may
be applied one next to the other. Paragraph (a)(3) has been revised
from that originally proposed for flat cars, in response to AAR's and
TTX's comments specific to auto rack cars. In its comments, AAR
explained that a typical auto rack car is nothing more than a
conventional flatcar to which a separate rack has been attached.
Further, TTX explained that although it owns almost 50,000 flat cars to
which racks are attached, the company owns only a few of the actual
racks; railroads own the majority of racks. Accordingly, TTX noted that
if FRA wants the reflectors to be attached to the rack structure (which
is higher than the flat car structure and closer to FRA's preferred
height above top of rail of 42 inches), FRA ``would have to order the
rack owner to be responsible.'' FRA recognizes TTX's concern in this
regard, and the agency has accordingly revised paragraph (a)(3)
[[Page 162]]
of this section to provide that if a car has a separate rack structure,
retroreflective sheeting may be applied to the flat car portion only in
accordance with the requirements of this section. FRA notes, however,
that if a flat car and rack attachment are owned by the same freight
rolling stock owner, to minimize the likely degradation of the
retroreflective material on the car (and therefore the likely
maintenance costs), it may be advisable to apply retroreflective
material as close to 42 inches above the top of the rail as
practicable.
Paragraph (a)(4), which is substantially unchanged from the
proposed rule, addresses ``cars of special construction.''
Specifically, this paragraph requires that based on the length of a
``car of special construction,'' the car be equipped with the minimum
amount of retroreflective sheeting as specified in Sec. 224.105,
applied in a pattern conforming as close as practicable to the standard
patterns specified in paragraphs (a)(1) through (a)(3). Both AAR and
TTX expressed concern that some rail cars, regardless of their physical
shape, may not have sufficient unoccupied surface area to accommodate
the minimum reflector area required under this rule. Accordingly, both
AAR and TTX recommended that these ``cars of special construction''
that cannot accommodate the minimum square footage of sheeting required
by the rule be equipped with at least three reflectors on each car
side, each no less than 4x18 inches. FRA, however, does not believe
that creating a blanket rule allowing certain freight cars to be
equipped with three strips of retroreflective sheeting amounting to one
and a half square feet of material is an effective way of increasing
the conspicuity of freight cars. FRA notes, however, that if a freight
car has insufficient unoccupied surface area to accommodate the minimum
reflector area required under this rule, pursuant to Sec. 224.7 of
this final rule, the owner of the freight car may file for a waiver
from the minimum requirements of Sec. 224.105. The waiver process is
discussed in more detail in the analysis of Sec. 224.7 above.
Locomotives
As proposed in the NPRM, paragraph (b) of Sec. 224.105 addressed
the reflectorization pattern of locomotives. As explained in the NPRM,
FRA recognizes that the conspicuity issues surrounding locomotives
differ from the issues surrounding freight cars. For example, the
physical configuration of locomotives is obviously quite different from
the configuration of most freight cars; locomotives are often painted
brighter colors than freight cars; locomotives owned by major railroads
and used in road service are cleaned on a more frequent basis; and
company logos are often displayed on the sides of locomotives in
reflective materials. In addition, locomotives are equipped with light
sources on the front and ``ditch'' lights on the sides. However, in
modern railroad operations, locomotives are often embedded in train
consists providing ``distributed power'' to the consists. In these
instances, however, locomotives are typically operated without their
front or side lights illuminated, and accordingly present the same
conspicuity issues attendant to freight cars. Consequently, based on
the rationale that some pattern of retroreflective material
recognizable to motorists is necessary to facilitate motorists'
recognition of locomotives in grade crossings, in paragraph (b) of
proposed Sec. 224.105, FRA proposed to allow any pattern of
reflectorization on locomotives that divided the amount of
retroreflective sheeting equally between both sides of a locomotive,
provided a certain minimum amount of sheeting was applied to each
locomotive side, and provided that the sheeting was applied in a
``pattern recognizable to motorists.'' Paragraph (b)(3) of proposed
Sec. 224.105 further provided that application of material
horizontally along the sill or side walkway of a locomotive would be
considered a ``pattern recognizable to motorists.''
In response to this proposal, AAR commented that the requirement
that retroreflective material be applied to locomotives in a ``pattern
recognizable to motorists'' was ``too vague to be meaningful.''
Further, citing the fact that railroads already typically reflectorize
their locomotives with names and symbols, AAR noted that requiring
retroreflective sheeting to be uniformly applied along locomotive sides
``would mean that reflective material would have to be used in addition
to the names and symbols depicted on the locomotives, rather than as
part of the names and symbols.'' Accordingly, AAR recommended that both
of these proposed criteria be deleted and that FRA merely require that
a minimum amount of retroreflective sheeting be equally distributed
between the sides of locomotives.
Paragraph (b) of proposed Sec. 224.103 reflected FRA's
understanding that an effective pattern of locomotive reflectorization
requires that the approximate length of the locomotive be defined by
the reflective material. As detailed in the NPRM, research has
consistently demonstrated that reflective material distribution
patterns that either outline the shape of rail equipment, or that space
the material over a large area of the equipment sides, are the most
effective in increasing rail equipment visibility thereby enabling a
motorist to distinguish a piece of rail equipment in his or her path
from other potential obstacles. In addition, FRA notes that the
reflectorized logos and symbols commonly found on locomotives are often
applied so high on the locomotive sides that light from the headlights
of approaching motor vehicles will, in most instances, not even reach
the material; thus, the reflectorized logos and symbols will be
ineffective in aiding approaching motorists to detect the presence of
the locomotive. Accordingly, FRA continues to believe that for
reflective material to effectively increase the visibility of
locomotives to approaching motorists, it is necessary to spread the
reflective material along the length of the locomotive sides, at a
reasonable height. Thus, in this final rule, although FRA has removed
the proposed language requiring the pattern of retroreflective material
application on locomotive sides be a ``pattern recognizable to
motorists,'' FRA has retained the general requirement that
retroreflective material be spread along the length of locomotive
sides, and FRA has further required that the material be applied as
close as practicable to 42 inches above the top of the rail. FRA notes
that most locomotives already reflectorized in the course of voluntary
reflectorization programs are equipped with not only reflectorized
logos and symbols, but also with reflective material applied along the
length of the locomotive sides at platform height, exactly the pattern
contemplated by this final rule.
Section 224.107 Implementation Schedule
As proposed in the NPRM, this section required that all freight
cars subject to this part be equipped with retroreflective sheeting
conforming to this part within ten years of the effective date of the
final rule, and similarly, that all locomotives subject to this part be
equipped within five years. Generally, FRA proposed that
retroreflective sheeting be applied to new freight rolling stock at the
time of construction and to existing stock when such stock was being
repainted, rebuilt, or undergoing other periodic maintenance. As an
alternative to this schedule, FRA proposed a more flexible approach of
allowing freight car owners to designate, in individualized
implementation plans, a schedule for the reflectorization of
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their freight car fleets, provided they meet certain milestones
designed to ensure that the entire fleet of domestically owned freight
cars would be equipped with retroreflective sheeting within ten years.
Although the majority of commenters did not express disagreement
with FRA's general proposal to implement a reflectorization requirement
over a 10-year period, a few commenters expressed the view that the
five-year implementation period proposed for the reflectorization of
locomotives and the ten-year implementation period proposed for the
reflectorization of freight cars was too long. One commenter, noting
that the trucking industry implemented a reflectorization requirement
in only two to three years, asserted that the proposed five- and ten-
year implementation periods were ``unnecessarily long'' and that during
the implementation period, because some rail cars will be equipped with
reflectors while others will not be, ``[i]t is likely that some drivers
will mistake unmarked cars in the crossing as a gap in the train.''
Although FRA understands the concerns of this commenter, FRA believes
that, given the unique characteristics of the railroad industry, the
five- and ten-year implementation periods are necessary to cost-
effectively reflectorize the entire fleet of freight rolling stock
subject to this rule. Accordingly, in this final rule, FRA has retained
the general requirement that all freight cars subject to this rule be
equipped with retroreflective sheeting within ten years, and that all
locomotives subject to this part be equipped within five years.
Railroad Freight Cars
Newly constructed cars: Paragraph (a)(1) of proposed Sec. 224.107
required that retroreflective sheeting be applied to newly manufactured
rail cars at the time of the cars' construction. This proposed
requirement was intended to ensure that newly manufactured rail cars
are equipped with the proper retroreflective material before being
placed in service. In this final rule, FRA has clarified this intent by
specifying in paragraph (a)(1) of this section that retroreflective
sheeting must be applied to newly manufactured cars before the cars are
placed in service.
Existing cars without retroreflective sheeting: Paragraph (a)(2)(i)
of proposed Sec. 224.107 required that retroreflective sheeting be
applied to existing unreflectorized freight cars when either (1) the
car was being repainted or rebuilt, or (2) the car underwent its first
single car air brake test (SCABT) (required under 49 CFR 232.305) after
the effective date of the rule, whichever occurred first. FRA proposed
this ``default'' schedule of retroreflective sheeting application in an
attempt to achieve the most efficient and cost-effective implementation
of the rule. FRA reasoned that by providing for the application of
retroreflective sheeting when cars are out of service for regularly
scheduled maintenance, the entire U.S. fleet of freight cars could be
reflectorized well within the ten-year implementation period and would
not be required to incur any additional downtime outside of the normal
maintenance cycle for the purpose of reflectorization.
Paragraph (a)(2)(ii) of this section in the proposed rule provided
that a freight car owner could elect not to follow the default schedule
of paragraph (a)(2)(i), if the owner submitted a Fleet Reflectorization
Implementation Plan (FRIP) to FRA within 60 days of the final rule's
effective date. As proposed, the FRIP was required to (1) set forth the
car numbers constituting the fleet subject to this part; (2) indicate
when the identified cars were scheduled to be reflectorized; (3)
contain an affirmation that at least 20% of the total fleet would be
equipped with conforming retroreflective sheeting within 24 months
after the effective date of the final rule; and (4) contain an
affirmation that not less than an additional ten percent of the total
fleet would be completed annually thereafter for the duration of the
10-year implementation period. Absent identification of a car in a
FRIP, the proposed rule intended to require that conforming
retroreflective sheeting be applied to that car at the time of its
first SCABT after the effective date of the final rule.
Although a few commenters addressed FRA's proposal to require the
application of reflectors when a freight car is being repainted or
rebuilt, most commenters expressed the view that the initial
installation of reflectors should not be required at the time of the
SCABT. These commenters noted that at least one retroreflective
material manufacturer recommends against the application of
retroreflective material to rail cars under conditions of extreme
temperature. Specifically, 3M's ``Application Instructions for 3M
Diamond Grade Conspicuity Markings on Rail Cars'' notes that
retroreflective material should not be applied when air and application
surface temperatures are below 45 [deg]F or above 100 [deg]F.
Accordingly, several commenters noted that this temperature restriction
would be a major obstacle in applying the retroreflective material at
the time of the SCABT in the many locations throughout the United
States at which the SCABT is routinely performed at outdoor or unheated
locations in temperatures above or below these minimum and maximum
recommended temperatures. For example, the AAR notes that in Bangor,
Maine; Minneapolis, Minnesota; and North Platte, Nebraska, the average
low temperature is below 50 [deg]F for eight or more months of the
year, while in these same cities the average high temperature is below
50 [deg]F for at least four months. Similarly, CP noted that almost
3,000 (43%) of all SCABTs performed in 2003 in the company's St. Paul
service area were performed when monthly average temperatures, both
high and low, were below 50 [deg]F. Accordingly, CP concluded that
given the temperature constraints, ``it would often be impossible to
apply [retroreflective] material at a repair track'' and instead, cars
would have to be sent to a repair facility. At the January hearing, Mr.
James Hart, a representative of ARC, testified that ARC's member
companies have had several years of experience in applying reflective
material to new rail cars (presumably because of the various voluntary
reflectorization programs already underway in the rail industry). Based
on these years of experience, Mr. Hart indicated that Institute members
have determined that reflective material adheres best when applied in
temperatures of at least 60 [deg]F, and even better, when applied at
temperatures over 70 [deg]F.
At the January hearing, NAFCA also expressed the view that the
single car air brake test is not the appropriate time for the initial
application of retroreflective material to freight cars. Specifically,
NAFCA commented that ``the body surface condition, temperature, and
preparation environment on railroad repair or RIP tracks is not
optimal, potentially resulting in reduced life of the reflective
material,'' and therefore leading to increased costs for the car owner.
Mr. Hart, of ARC, echoed NAFCA's concerns by explaining that the
cleanliness of the surface to which one applies retroreflective
material is critical. Mr. Hart explained that various surfaces (e.g.,
aluminum cars versus steel cars, etc.) have different preparation
requirements. For example, Mr. Hart explained that in applying
reflective materials to freight cars with aluminum surfaces, the
outside surface must be etched with acid to remove the outer coating
enabling the material to adhere to the car sides. Mr. Hart further
explained that ``application techniques and skills must be acquired''
and that if
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the material is not applied properly, it will not appropriately adhere
to the surface. In its comments, AAR also noted that because FRA's
proposed rule provided for approval of alternative standards, it would
be ``impossible'' for SCABT facilities to be equipped to install
retroreflective material pursuant to the variety of reflectorization
programs that could be in place.
As an alternative to requiring that retroreflective material be
installed at the time of the SCABT, several commenters, including AAR,
CP, and CN, recommended a more flexible schedule whereby all owners of
freight cars would be required to install the retroreflective material
on their freight car fleets in accordance with the schedule FRA
proposed for FRIPs. These commenters further suggested that all freight
car owners be required to report annually to FRA the status of their
compliance with the FRIP schedule, not report in advance which cars
were planned to be reflectorized in each particular year as the
proposed rule would require. Specifically, AAR asserted that allowing
all car owners to reflectorize their freight car fleets in accordance
with the proposed FRIP schedule and report compliance annually would
yield several advantages over the system proposed in the NPRM. For
example, AAR asserted that such a program would enable car owners to
(1) take weather conditions into account in scheduling cars for
reflectorization; (2) account for the planned retirement of freight
cars and scheduled repainting; and (3) have sufficient flexibility to
change which cars would be reflectorized in a given year.
Although FRA continues to believe that the schedule set forth in
Sec. 224.107(a)(2)(i) of the proposed rule is the most efficient and
cost-effective method of implementing a nationwide reflectorization
program, FRA recognizes the practical issues commenters raised
regarding application of retroreflective material to rail cars at the
time of the SCABT. FRA, however, does not believe that requiring all
freight car owners to develop and implement individualized
reflectorization plans would be an efficient method of implementing a
nationwide reflectorization program. Accordingly, FRA has revised the
proposed ``default'' schedule of Sec. 224.107(a)(2)(i) to allow car
owners and railroads a certain amount of flexibility as to when to
apply retroreflective material to existing non-reflectorized freight
cars. Specifically, this final rule requires that retroreflective
sheeting be applied to existing non-reflectorized freight cars when,
after May 31, 2005, the cars are (1) repainted or rebuilt, or (2)
within nine months after the car first undergoes a SCABT as prescribed
by 49 CFR 232.305, whichever occurs first. FRA believes that most every
freight car will be taken out of service at some time at least once
every nine months for either regularly scheduled maintenance or other
necessary repairs. Allowing nine months after the SCABT to apply
retroreflective material allows car owners and railroads to apply
retroreflective material while a car is out of service for these other
reasons (and while the car is at an appropriate repair facility),
thereby eliminating the need to take a car out of service for the
particular purpose of applying retroreflective material.
In paragraph (a)(2)(ii) of Sec. 224.107 of this final rule FRA has
retained the proposed rule's more flexible option of allowing freight
car owners to effectively ``opt-out'' of the default schedule of Sec.
224.107(a)(2)(i) and develop and implement their own schedule for
reflectorization, provided certain milestones are met. In response to
the concerns expressed by several commenters regarding the proposed
information to be required in FRIPs, however, FRA has streamlined the
reporting requirements for car owners who elect to follow this
alternative and provided additional time from that proposed for car
owners to develop and submit to FRA their individualized
reflectorization plans. Specifically, in this final rule paragraph
(a)(2)(ii) of Sec. 224.107 provides that a freight car owner may elect
not to follow paragraph (a)(2)(i)'s schedule if, by July 1, 2005, the
owner submits to FRA an initial Reflectorization Implementation
Compliance Report (Compliance Report). The Compliance Report must, at a
minimum, (1) indicate how many freight cars subject to the final rule
are in the owner's fleet at the time the Compliance Report is being
prepared, and (2) contain the owner's certification that all freight
cars in the identified fleet will be equipped with the appropriate
retroreflective sheeting in conformance with the schedule set forth in
Table 3 of the rule. Although FRA intends the schedule in Table 3 of
this final rule to be consistent with that of the proposed rule, FRA
has revised the language slightly to clarify FRA's intent. As proposed,
Sec. 224.107(a)(2)(ii) required that after the initial two years of
the implementation period, at least an additional 10% of each owner's
freight car fleet be reflectorized each year, until upon expiration of
the 10-year implementation period, 100% of all domestically-owned
freight cars would be equipped with retroreflective sheeting. In other
words, as proposed, even if a car owner had reflectorized 70% of its
car fleet by the end of year three, by the end of year four, the car
owner would need to reflectorize at least another 10% of its fleet, and
by the end of year five, the car owner would need to reflectorize at
least another 10% of its fleet. In this scenario, because the car owner
reflectorized ahead of schedule in the first three years, to comply
with the proposed schedule, the owner would have to complete the
reflectorization of its entire freight car fleet by the end of year
six. This was not FRA's intent. Accordingly, FRA has revised the
schedule for application for retroreflective material pursuant to this
alternative schedule by setting forth a more general requirement that
car owners meet certain minimum percentage milestones each year
throughout the 10-year implementation period. For example, Sec.
224.107(a)(2)(ii) of this final rule requires that as of May 31, 2007
(approximately two years after the effective date of this rule), owners
reflectorizing their freight car fleets pursuant to this alternative
schedule must have reflectorized at least 20% of their total fleet; by
May 31, 2008 (approximately three years after the effective date of
this rule), owners must have reflectorized at least 30% of their total
fleet; by May 31, 2009 (approximately four years after the effective
date of this rule), owners must have reflectorized at least 40% of
their total fleet, until at the end of the 10-year implementation
period (i.e., May 31, 2015), 100% of the entire domestically owned
freight car fleet is equipped with retroreflective material in
accordance with the rule.
If a freight car owner elects the procedures of paragraph
(a)(2)(ii) and submits a Compliance Report to FRA, the owner is
thereafter responsible for meeting the percentage requirements of
paragraph (a)(2)(ii) (Table 3) and the owner is responsible for
submitting an updated Compliance Report to FRA by July 1st of each year
throughout the 10-year implementation period. In keeping with the
requirements of the Paperwork Reduction Act and the Government
Paperwork Elimination Act, FRA anticipates providing car owners with
the option of submitting Compliance Reports to FRA electronically.
If an owner fails to meet any of the minimum milestones set forth
in Table 3 of this final rule, the car owner must report the failure in
writing to FRA's Associate Administrator for Safety. Thereafter, the
owner will be required to
[[Page 165]]
comply with the schedule set forth in paragraph (a)(2)(i) and the owner
must take any additional action necessary to bring cars under his or
her ownership or control into compliance. In other words, if an owner
fails to meet the minimum milestones set forth in Table 3 of this final
rule, once this failure is identified, the owner will be required to
equip each of the freight cars in the fleet subject to this rule with
retroreflective sheeting within nine months of the cars' next SCABT (as
required by Sec. 224.107(a)(2)(i)) occurring after the end of the
reporting period in which the failure occurred. The car owner, however,
remains responsible for ensuring that each freight car in his or her
fleet subject to this rule is equipped with retroreflective sheeting
conforming to this rule by the end of the 10-year implementation period
(i.e., by May 31, 2015).
Existing cars already equipped with retroreflective sheeting as of
publication date of final rule: Recognizing the voluntary efforts
already underway by many railroads and car owners to reflectorize their
freight car fleets, paragraph (a)(3) of proposed Sec. 224.107 provided
that freight cars equipped with at least one square foot of
retroreflective material, uniformly distributed over the length of each
car side, will be considered in compliance with this rule for ten years
from the effective date of the final rule, provided that the sheeting
was not engineering grade, super engineering grade (enclosed lens), or
glass bead encapsulated type sheeting. As explained in the NPRM, FRA
proposed a minimum requirement of one square foot of retroreflective
sheeting per car side under this section because based on the
information provided to FRA to date, it appears that one square foot
per side is the minimum amount currently utilized in existing voluntary
reflectorization programs. If these car owners were required to replace
the retroreflective materials that they voluntarily installed to
improve safety, it would have the effect of penalizing owners that
demonstrated an extra level of safety consciousness. This would have
the unintended effect of discouraging car owners from exploring
innovative approaches to improving safety. As also explained in the
NPRM, FRA proposed to exclude all engineering grade and glass bead
encapsulated type retroreflective sheeting because such sheeting does
not meet the minimum photometric performance requirements of Sec.
224.103. Accordingly, as proposed, freight cars already equipped with
engineering grade, super engineering grade, or glass bead encapsulated
type retroreflective sheeting, or any other reflective material that is
not retroreflective, would have to be brought into compliance with this
part in accordance with Sec. 224.107(a)(2). Because FRA received no
comments directly related to this proposed freight car grandfathering
provision, FRA has retained this provision substantially as proposed.
The term ``unqualified retroreflective sheeting'' is discussed in more
detail in the analysis of Sec. Sec. 224.5 and 224.107 of this final
rule.
Locomotives
Newly constructed locomotives: Paragraph (b)(1) of proposed Sec.
224.107 required that retroreflective sheeting be applied to newly
manufactured locomotives at the time of the locomotives' construction.
This proposed requirement was intended to ensure that newly
manufactured locomotives are equipped with the proper retroreflective
material before being placed in service. In this final rule, we have
clarified this intent by specifying in paragraph (b)(1) of this section
that retroreflective sheeting must be applied to newly manufactured
locomotives before the locomotives are placed in service.
Existing locomotives without retroreflective sheeting: Paragraph
(b)(2) proposed to require that retroreflective sheeting be applied to
existing unreflectorized locomotives (i.e., locomotives that, as of the
date of publication of the final rule, are not equipped with at least
one square foot of retroreflective sheeting on each side) no later than
the first biennial inspection performed pursuant to 49 CFR 229.29
occurring after the effective date of the final rule. Similar to the
schedule FRA proposed for the application of retroreflective material
to freight cars, FRA proposed this ``default'' schedule for locomotives
in an attempt to achieve the most efficient and cost-effective
implementation of a nationwide reflectorization program. FRA reasoned
that by providing for the application of retroreflective sheeting when
a locomotive is already out of service for the required biennial
inspection, the entire U.S. locomotive fleet could be reflectorized
well within the five-year implementation period and that locomotives
would not incur any additional out of service time for the purpose of
reflectorization.
In response to the proposed schedule for the reflectorization of
locomotives, AAR noted that FRA's proposal to require existing non-
reflectorized locomotives to be equipped with retroreflective material
at the first biennial inspection after the effective date of the final
rule, would effectively require that the entire locomotive fleet be
equipped within two years. AAR, citing the fact that FRA's stated
safety justification for requiring reflectorization rests on the number
of grade crossing accidents involving motor vehicles striking trains
after the first two units of train consists (i.e., motor vehicles
striking freight cars, not locomotives), asserted that ``[t]here is no
safety justification for requiring locomotives to be reflectorized
within two years when freight car owners are given ten years.''
Accordingly, AAR recommended that FRA require 40 percent of an owner's
locomotive fleet be equipped with retroreflective sheeting within the
first two years following the effective date of the final rule and 20
percent annually for the following three years.
As indicated by FRA's discussion of proposed Sec. 224.107 in the
NPRM (68 FR 62960), FRA's intent in the proposed rule was to ensure
that the entire fleet of domestically-owned locomotives subject to this
rule would be equipped with conforming retroreflective sheeting within
five years of the effective date of the final rule. For practical
reasons, however, FRA proposed to require that retroreflective sheeting
be applied to locomotives at the time of the biennial inspection (e.g.,
locomotives are already out of service for the inspection and located
at an appropriate facility where application of retroreflective
sheeting is feasible). FRA, however, is not opposed to allowing
locomotive owners flexibility in deciding when to apply retroreflective
material to existing non-reflectorized locomotives, provided owners
inform FRA of their plan and agree to meet certain milestones designed
to ensure that the entire domestically-owned locomotive fleet will be
equipped with retroreflective material within five years. Accordingly,
although this final rule retains the ``default'' schedule of proposed
Sec. 224.107(b)(2) (requiring that retroreflective sheeting be applied
to existing non-reflectorized locomotives at the time of the first
biennial inspection after the effective date of the rule), paragraph
(b)(2)(ii) of Sec. 224.107 in this final rule has been revised in a
similar manner to paragraph (a)(2)(ii)'s freight car provision.
Specifically, paragraph (b)(2)(ii) provides that locomotive owners may
effectively ``opt-out'' of the default schedule of paragraph (b)(2)(i)
and develop and implement their own schedule for reflectorization of
their locomotive fleet, provided certain milestones are met. Paragraph
(b)(2)(ii) now provides that a
[[Page 166]]
locomotive owner may elect not to follow paragraph (b)(2)(i)'s
schedule, if by July 1, 2005, the owner submits to FRA a Compliance
Report that, at a minimum, (1) indicates how many locomotives subject
to the final rule are in the owner's fleet at the time the Compliance
Report is being prepared, and (2) contains the owner's certification
that all locomotives in the identified fleet will be equipped with
retroreflective sheeting in conformance with the schedule set forth in
Table 4 of the rule. Table 4 requires that as of May 31, 2007
(approximately two years after the effective date of this rule),
locomotive owners choosing to apply retroreflective material pursuant
to this alternative schedule must have reflectorized at least 40% of
their total locomotive fleet; by May 31, 2008 (approximately three
years after the effective date of this rule), owners must have
reflectorized 60% of their total locomotive fleet; by May 31, 2009
(approximately four years after the effective date of this rule),
locomotive owners must have reflectorized 80% of their total locomotive
fleet, until at the end of the five-year implementation period (i.e.,
by May 31, 2010), 100% of the entire domestically-owned locomotive
fleet is equipped with retroreflective material in accordance with the
rule.
If a locomotive owner elects the procedures of paragraph (b)(2)(ii)
and submits a Compliance Report to FRA, the owner is thereafter
responsible for compliance with the plan and the owner is responsible
for submitting an updated Compliance Report to FRA by July 1st of each
year thereafter for the duration of the five-year implementation
period. In keeping with the requirements of the Paperwork Reduction Act
and the Government Paperwork Elimination Act, FRA anticipates providing
locomotive owners with the option of submitting Compliance Reports to
FRA electronically.
If a locomotive owner fails to meet any of the minimum milestones
set forth in Table 4 of this final rule, the locomotive owner must
report the failure in writing to FRA's Associate Administrator for
Safety. Thereafter, the owner will be required to comply with the
schedule set forth in paragraph (b)(2)(i) and the owner must take any
additional action necessary to bring locomotives under his or her
ownership or control into compliance. In other words, if an owner fails
to meet any of the minimum milestones set forth in Table 4 of this
final rule, once this failure is identified, the owner will be required
to equip each of the locomotives in the fleet subject to this rule with
retroreflective sheeting at the locomotive's next biennial inspection
performed pursuant to 49 CFR 229.29 occurring after the end of the
reporting period in which the failure occurred. The locomotive owner,
however, remains responsible for ensuring that each freight car in his
or her fleet subject to this rule is equipped with retroreflective
sheeting conforming to this rule by the end of the five-year
implementation period (i.e., by May 31, 2010).
Existing locomotives already equipped with retroreflective sheeting
as of the publication date of the final rule: Again, recognizing the
voluntary efforts already underway by many locomotive owners to
reflectorize their locomotive fleets, paragraph (b)(3) of proposed
Sec. 224.107 provided that locomotives equipped with at least one
square foot of retroreflective sheeting, uniformly distributed over the
length of each locomotive side, would be considered in compliance with
this rule for five years from the effective date of the final rule,
provided that the sheeting was not engineering grade, super engineering
grade (enclosed lens), or glass bead encapsulated type sheeting. As
explained in the NPRM, FRA proposed a minimum requirement of one square
foot of retroreflective sheeting per locomotive side because based on
the information provided to FRA to date, it appears that one square
foot per side is the minimum amount currently utilized in existing
voluntary reflectorization programs. If these locomotive owners were
required to replace the retroreflective materials that they voluntarily
installed to improve safety, it would have the effect of penalizing
owners that demonstrated an extra level of safety consciousness and
discouraging these owners from exploring innovative approaches to
improving safety in the future. As also explained in the NPRM, FRA
proposed to exclude all engineering grade and glass bead encapsulated
type retroreflective sheeting because such sheeting does not meet the
minimum photometric performance requirements of Sec. 224.103.
Accordingly, as proposed, locomotives already equipped with engineering
grade, super engineering grade, or glass bead encapsulated type
retroreflective sheeting, or any other reflective material that is not
retroreflective, would have to be brought into compliance with this
part in accordance with Sec. 224.107(a)(2).
A few commenters, including AAR and CN, expressed the view that
FRA's proposed locomotive grandfathering provision was too limited
because it only encompassed ``diamond-grade'' material.\11\
Specifically, CN noted that its fleet of locomotives in service in the
United States, both new and recently repainted, is equipped with yellow
stripes of ``high-intensity grade'' retroreflective material,
approximately six inches wide, along the entire length of the
locomotive side sills. Further, CN noted that on a typical seventy foot
locomotive, this equates to approximately 32-35 square feet of
retroreflective material per side. CN questioned FRA's rationale for
excluding locomotives equipped with over 30 times the amount of
required material from the grandfathering provision merely because the
material is a different grade than that contemplated by FRA's proposal.
Accordingly, CN recommended that the proposed rule's grandfathering
provision for locomotives be revised to include locomotives with
``large areas of reflective material of lower grade spread along the
entire length'' of the locomotive.
---------------------------------------------------------------------------
\11\ FRA notes that the term ``diamond-grade'' is a brand name
referring to particular retroreflective products manufactured by 3M.
FRA understands that ``diamond-grade'' is not a generic term
referring to specific ASTM sheeting ``Types,'' nor is ``diamond-
grade'' an accurate shorthand for the group of three categories of
retroreflective sheeting that FRA specifically proposed to exclude
from the locomotive grandfathering provision of Sec. 224.107(b)(2)
(i.e., engineering grade, super engineering grade, or glass bead
encapsulated sheeting). Nonetheless, FRA interprets AAR's and DN's
comments as asserting that FRA's proposal to specifically exclude
engineering grade, super engineering grade, and glass bead
encapsulated sheeting from the locomotive grandfathering provision
as too narrow.
---------------------------------------------------------------------------
As explained above, FRA proposed to exclude all engineering grade
and glass bead encapsulated type retroreflective sheeting from the
grandfathering provision because the sheeting does not meet the minimum
photometric performance requirements of the proposed rule. As detailed
in the NPRM, however, FRA notes that research has consistently
demonstrated that the larger the reflector area, the smaller the
required SIA of the reflector. In other words, a larger amount of less-
reflective material (material with a lower SIA) can be just as
effective as a smaller amount of more-reflective material (material
with a higher SIA). Based on the photometric performance requirements
of engineering grade and glass bead encapsulated type retroreflective
sheeting set forth in ASTM standard D 4956-01a, FRA estimates that
approximately three square feet of these types of sheeting are
necessary to achieve the effectiveness of one square foot of sheeting
conforming to the minimum photometric performance requirements of this
final rule.
[[Page 167]]
Accordingly, paragraph (b)(3) of Sec. 224.107 of this final rule has
been revised to provide that locomotives equipped with at least three
square feet of ``unqualified retroreflective sheeting'' will be
considered in compliance with this rule through May 31, 2015
(approximately ten years from the effective date of the final
rule).\12\ As discussed in the analysis of Sec. 224.5 above, the term
``unqualified retroreflective sheeting'' has been defined to include
all engineering grade and glass bead encapsulated type retroreflective
material (i.e., the material FRA previously excluded from the FRA's
proposed locomotive grandfathering provision), as well as ``high-
intensity'' type sheeting as described in ASTM standard D 4956-01a
(i.e., ASTM Type I, II, III, or IV).\13\
Although this final rule requires that most railroads equip all
their locomotives subject to this rule with conforming retroreflective
sheeting within five years of the effective date of the rule, paragraph
(b)(4) of Sec. 224.107, which has not changed from that proposed in
the NPRM, provides that certain small railroads may take an additional
five years to bring their locomotive fleets into compliance with the
rule. Specifically, paragraph (b)(4) provides that railroads with fewer
than 400,000 annual employee work hours that do not share locomotive
power with a railroad with 400,000 or more annual employee work hours
may take up to ten years to bring their locomotive fleets into
compliance with the rule. This alternate compliance date is intended to
apply only to a limited number of small railroads whose operations
would justify the continued use of unreflectorized locomotives (i.e.,
those small railroad operations that do not typically involve
locomotives providing ``distributed power'' or otherwise moving
unilluminated in the middle of train consists).
---------------------------------------------------------------------------
\12\ FRA notes that it has revised the grandfather provision of
Sec. 224.107(b)(3) to provide that locomotives grandfathered under
the final rule will be considerred in compliance with the rule for
ten years, consistent with the grandfather provision of Sec.
224.107(a)(3) for freight cars.
\13\ FRA notes that the proposed rule did not specifically
exclude ``high-intensity'' type retroreflective sheeting (ASTM Type
IV sheeting), but because high-intensity type sheeting, like all
engineering grade sheeting and glass bead encapsulated type
sheeting, will not meet the minimum photometric performance
standards of this rule, it is necessary for locomotives to be
equipped with more than one square foot of ``high-intensity''
material in order to achieve the effectiveness of one square foot of
sheeting conforming to the minimum photometric performance
requirements of this rule.
---------------------------------------------------------------------------
Section 224.109 Inspection, Repair, and Replacement
As it did in the NPRM, this section of the final rule sets forth
the requirements for the periodic inspection and maintenance of
retroreflective material on freight rolling stock. Paragraph (a) of
proposed Sec. 224.109 required that retroreflective sheeting on
freight cars subject to this part be visually inspected for presence
and condition whenever a car underwent a single car air brake test
required under 49 CFR 232.305. Likewise, paragraph (b) of proposed
Sec. 224.109 required that retroreflective sheeting on locomotives
subject to this part be visually inspected for presence and condition
whenever the locomotive underwent an annual inspection required under
49 CFR 229.27. Both paragraphs (a) and (b) proposed that, if, upon
inspection, more than 20 percent of the amount of sheeting required on
either side of the car or locomotive under Sec. 224.105 is found to be
``damaged, obscured, or missing,'' that ``damaged, obscured, or
missing'' sheeting must be replaced.
A few commenters, including AAR, NAFCA, and RSI, noted that the
term ``damaged'' was not defined in the proposed rule. These commenters
indicated that FRA's intent in including the undefined term ``damaged''
as a maintenance standard in Sec. 224.109 was unclear and that the
term itself only added confusion to the inspection requirement.
Accordingly, these commenters recommended that the term ``damaged'' be
deleted from the rule. FRA recognizes the concerns of these commenters
regarding the undefined term. Nonetheless, FRA believes that the term
``damaged'' is necessary to accurately describe a situation in which
maintenance of retroreflective material would be required. Accordingly,
as discussed in the analysis of Sec. 224.5 above, FRA has included a
definition for the term ``damaged'' in this final rule.
Commenters also noted that there may be circumstances in which
retroreflective material is damaged or obscured, but the material can
be repaired instead of replaced. FRA agrees with commenters on this
point, and the agency has accordingly revised Sec. 224.109 to allow
for the repair or replacement, as appropriate, of material requiring
maintenance.
Several commenters also expressed the view that although it is
appropriate to require that retroreflective material be inspected at
the SCABT, for the same reasons that it is not appropriate to require
the installation of retroreflective material at the SCABT (detailed in
the discussion of Sec. 224.107 above), it is also not appropriate to
require that maintenance be performed on the retroreflective material
at the SCABT. Accordingly, AAR recommended that car owners be afforded
nine months after the SCABT in which to perform any necessary
maintenance on retroreflective material. NAFCA, on the other hand,
asserted that car owners should be allowed at least 12 months after the
SCABT to correct any identified deficiencies in retroreflective
material. In support of its recommendation, NAFCA noted that private
car operators (shippers) typically obligate themselves to acquire and
ship commodities as much as a year in advance. NAFCA also noted that
unlike the typical railroads, private car operators seldom size excess
capacity into their fleets. Notwithstanding NAFCA's comments, as
explained in the discussion of Sec. 224.107 above, FRA believes that
almost every freight car will be taken out of service at least once
every nine months for either regularly scheduled maintenance or other
necessary repairs. Allowing nine months after the SCABT to repair or
replace any retroreflective material requiring maintenance under this
rule allows car owners and railroads to apply the material while a car
is out of service for these other reasons (and while the car is at an
appropriate repair facility), therefore eliminating the need to take a
car out of service for the particular purpose of repairing or replacing
retroreflective material in need of maintenance. Accordingly, Sec.
224.109 of this final rule retains the proposed rule's requirement that
retroreflective sheeting on freight cars be visually inspected for
presence and condition whenever a car undergoes a SCABT. FRA has
revised this section to require the railroad or contractor performing
the SCABT to inspect the car for presence and condition of the required
retroreflective material. If the inspecting railroad or contractor
determines that maintenance is necessary under this rule, the railroad
or contractor is required to promptly notify the car owner of the
missing, damaged, or obscured sheeting, and car owners are afforded
nine months from the date they are notified of the defective condition
of the material to properly repair or replace the material.
A few commenters also asserted that the 20% maintenance threshold
of proposed Sec. 224.109 was impractical and arbitrary. These
commenters suggested that a 50% maintenance threshold would be more
appropriate. For example, RSI commented that the 20 percent standard
``is too hard to judge
[[Page 168]]
in a railroad environment'' and NAFCA commented that the 20 percent
maintenance threshold ``may result in a greater degree of car
reflectorization than is necessary to accomplish the purpose'' of the
rule. Further, AAR, in its comments, noted that at the January 2004
hearing, a representative of FRA stated that in order to account for
the effects of dirt and damage, the proposed rule required twice the
amount of material than research demonstrated was necessary to provide
adequate reflectorization. (See Hearing Transcript, p. 124). FRA
realizes, however, that the hearing officer inadvertently misstated the
exact technical requirements of the rule in this regard. As noted in
the discussion of Sec. 224.106 above and detailed in the NPRM (68 FR
at 62956), FRA's proposed rule required only approximately 30% more
material (about 1 additional square foot on each side of most
typically-sized freight rolling stock). By requiring 30% more
retroreflective material than necessary, if less than 20% of that
material is damaged, obscured, or missing, the remaining reflective
material could still provide sufficient reflectivity, even if further
damage occurred before maintenance was performed on the material. If
maintenance was not performed until 50% of the retroreflective material
is damaged, obscured, or missing, it would be necessary to repair or
replace the material immediately or else the reflective material would
fail to meet even the minimum performance requirements of this rule.
Accordingly, this final rule retains the proposed 20% maintenance
threshold.
Section 224.111 Renewal
As proposed in the NPRM, this section of the final rule requires
that all retroreflective sheeting required under this part be replaced
with new conforming sheeting, regardless of its condition, no later
than ten years after the date of initial installation. As explained in
the NPRM, this 10-year renewal period is based on most manufacturers'
stated useful life of retroreflective material. As noted in the NPRM,
however, FRA will monitor the retroreflective qualities of various
fleet segments over time and may extend the ten-year interval, if
warranted. One commenter, RSI, responded to the proposed renewal period
by expressing the view that given the typical 50-year life of a freight
car, it is not practical to require the replacement of the tape every
ten years. Specifically, RSI asserted that ``[t]he cost of removing the
old tape, preparing the surface, and replacing the tape was not
included in FRA's cost analysis. * * * Different cars may require
different technologies to remove the tape adding to the costs
associated with the NPRM.'' As proposed and as noted in Sec. 224.107
of this final rule, it is not necessary to remove old reflective
material when applying new retroreflective material pursuant to this
part, thus the costs for the re-application of material after the
initial ten-year implementation of this rule will be no greater than
the original application.
AAR, however, noted one ambiguity in Sec. 224.111 as proposed.
Specifically, AAR noted that proposed Sec. 224.107(a)(3) provided that
a car with complying retroreflective sheeting would be considered in
compliance with this rule for ten years and similarly, proposed Sec.
224.107(b)(3) provided that locomotives already equipped with
reflectorization material meeting FRA's grandfathering requirements
would be considered in compliance with this rule for five years. AAR
noted, however, that because proposed Sec. 224.111 provided that
retroreflective sheeting must be replaced ten years after the date of
initial installation, the section could be read as taking precedence
over proposed Sec. Sec. 224.107(a)(3) and (b)(3), thereby requiring
the application of retroreflective material to freight rolling stock
already equipped with reflective sheeting as of the effective date of
the final rule prior to the expiration of a ten-year period. FRA agrees
with AAR's concern in this regard and because FRA does not intend that
Sec. 224.111 take precedence over Sec. Sec. 224.107(a)(3) and (b)(3),
FRA has revised Sec. 224.111 to make clear that the effective date of
the final rule will be considered the initial date of installation for
freight cars and locomotives covered by Sec. Sec. 224.107(a)(3) and
(b)(3).
Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
The FRA has conducted a Regulatory Analysis of this final rule in
accordance with Executive Order 12866. This document estimates the
costs and consequences of the rule as well as its anticipated economic
and safety benefits. A copy of this document has been placed in the
docket for this rulemaking. Following is a summary of the findings.
The FRA's analysis examines the potential for reflective material
to cost-effectively reduce fatalities and injuries due to motorists not
seeing trains. Over the past ten years, an average of 23 percent of
reported grade crossing accidents involved a motor vehicle striking the
side of a train that was occupying the crossing (known as ``run-into-
train'' or RIT accidents).
There are currently no requirements for lighting or for reflective
markings on the sides of freight cars. Research, however, has
established that reflectors on the sides of rail cars can make trains
more visible to motorists. Reflective tape increases the conspicuity of
freight cars so motorists can identify them and better judge their
speed and distance. This greater visibility will help drivers avoid
some accidents and reduce the severity of other accidents that are
unavoidable.
The primary source of societal benefits from freight car
reflectorization would result from the avoidance of a portion of the
fatalities, injuries, and property damage that result from RIT
accidents. Benefits were calculated in terms of the decline in the
probability of certain accidents. These calculations were based on
1999-2002 RIT accidents as reported in the FRA's Rail Accident/Incident
Reporting System (``RAIRS'') database. The FRA specifically used recent
data to account for changes in crossing characteristics, including the
upgrading of crossing warning devices. The following table shows the
number of accidents, fatalities, and injuries resulting from the
applicable RIT accidents:
Reflectorization Benefit Pool
[RIT accident subset]
------------------------------------------------------------------------
Annual
1999-2002 Average
------------------------------------------------------------------------
Accidents..................................... 782 195.5
Fatalities:................................... 85 21.25
Injuries...................................... 348 87
------------------------------------------------------------------------
The table below presents the estimated twenty-year monetary costs
associated with complying with the requirements contained in this final
rule, at a discount rate of 7%. In addition to the costs associated
with reflectorizing the fleet of freight railcars, the FRA has included
the costs associated with reflectorizing the approximately 20% of the
locomotive fleet that has not already been treated with reflective
materials.
Total Twenty-Year Costs (NPV, 7%)
------------------------------------------------------------------------
------------------------------------------------------------------------
Installation on new or repainted railcars............... $52,862,702
Maintenance on preexisting reflectorized railcars....... 1,995,895
Maintenance on newly reflectorized cars................. 3,539,885
Reapplication on older cars............................. 14,762,187
[[Page 169]]
Installation and maintenance on locomotive fleet........ 1,375,161
---------------
Total Costs......................................... 74,535,830
------------------------------------------------------------------------
Taking into consideration the material, installation, and
maintenance costs, FRA's analysis determines that over a 20-year
period, the discounted cost to reflectorize the entire freight railroad
fleet would be about $74.5 million.
The FRA recognizes that the effectiveness of retroreflectors and,
therefore, the benefits to be gained from their use, will vary by
circumstances (e.g. nighttime versus daytime conditions, clear versus
cloudy weather, presence of other warning devices at the crossings,
train speed and length, etc.). Thus, the forecasting of the benefits
that would likely result from reflectorization requires the exercise of
judgment and necessarily includes subjective elements. Accordingly, the
FRA employed three completely separate approaches to the estimation of
benefits. Benefit estimates were based on varying effectiveness rates
derived from (1) Subjective estimates of reflector effectiveness by
internal FRA grade crossing experts, (2) a signal detection model
consisting of an analysis of the statistical probability of different
potential severities of hazard or injury and based on both laboratory
experiments and data from FRA's RAIRS database, and (3) previous
studies analyzing the effectiveness of reflective materials on large
trucks. The FRA estimates the twenty-year discounted benefits of a
railcar reflectorization program (discounted at a rate of 7%), in terms
of avoided casualties and property damage, to be in the range of $202
million, $151 million, or $220 million, depending on the method
employed. In addition, the twenty-year discounted benefits of
reflectorizing the 20% of the locomotive fleet that is not already
reflectorized is approximately $837,749.53.
Total Twenty-Year Safety Benefits Monetized (NPV, 7%)
------------------------------------------------------------------------
------------------------------------------------------------------------
Grade Crossing Expert Benefits.......................... $202,072,296
Signal Detection Theory................................. 151,422,826
NHTSA Study............................................. 223,137,643
------------------------------------------------------------------------
Accordingly, the FRA concludes that the reflectorization of
railroad freight equipment is a cost-effective way to reduce the number
of accidents at highway-rail grade crossings as well as the resultant
casualties and property damages.
B. Regulatory Flexibility Act of 1980 and Executive Order 13272
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
a review of final rules to assess their impact on small entities unless
the Secretary certifies that a final rule will not have a significant
economic impact on a substantial number of small entities. FRA has
conducted a regulatory flexibility analysis of this final rule's impact
on small entities, and the assessment has been placed in the public
docket for this proceeding. FRA's analysis concluded that this final
rule would not have a significant economic impact on a substantial
number of small entities, and accordingly, FRA certifies that this rule
will not have a significant economic impact on a substantial number of
small entities.
C. Paperwork Reduction Act of 1995
The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Total Total
Respondent Total annual Average time per annual annual
CFR section universe responses response burden burden cost
hours ($)
----------------------------------------------------------------------------------------------------------------
224.7--Waivers................ 685 Railroads/Car 10 petitions..... 1 hour.......... 20 740
Owners.
224.15--Special Approval 3 Manufacturers.. 10 petitions..... 40 hours........ 400 20,560
Procedures--Petitions.
--Public Comment.......... 3 Manufacturers/ 5 comments....... 1 hour.......... 5 185
Railroads.
224.107--Implementation
Schedule: Freight Cars.
--Existing Freight Cars w/ 685 Railroads/Car 400 Reports/Forms 15 minutes...... 100 3,700
o Retroreflective Owners.
Sheeting.
--Updated Reflectorization 685 Railroads/Car 400 Reports/Forms 20 hours........ 8,000 296,000
Compliance Reports. Owners.
--Failure Reports......... 685 Railroads/Car 5 Failure Reports 2 hours......... 10 370
Owners.
--Existing Cars with 685 Railroads/Car 172 Reports/Forms 20 hours........ 3,440 127,280
Retroreflective Sheeting. Owners.
Implementation Schedule:
Locomotives
--Existing Locomotives w/o 685 Railroads/Car 35 Reports/Forms. 15 minutes...... 9 333
Retroreflective Sheeting. Owners.
--Updated Reflectorization 685 Railroads/Car 35 Reports/Forms. 3 hours......... 105 3,885
Compliance Reports. Owners.
--Failure Reports......... 685 Railroads/Car 1 Failure Report. 2 hours......... 2 74
Owners.
--Existing Locomotives 685 Railroads/Car 617 Reports/Forms 4 hours......... 2,468 91,316
with Retroreflective Owners.
Sheeting.
224.109--Inspection, Repair, AAR + 300 Car 240,000 10 minutes...... 40,000 1,560,000
Replacement--Freight Cars. Shops. Notifications.
--Locomotives: Records of 22,800 4,560 records.... 3 minutes....... 228 10,488
Restriction. Locomotives.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292.
OMB is required to make a decision concerning the collection of
information requirements contained in this interim final rule between
30 and 60 days after
[[Page 170]]
publication of this document in the Federal Register.
FRA cannot impose a penalty on persons for violating information
collection requirements which do not display a current OMB control
number, if required. FRA intends to obtain current OMB control numbers
for any new information collection requirements resulting from this
rulemaking action prior to the effective date of this final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register.
D. 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 State and local
officials have been met.'' FRA believes it is in compliance with
Executive Order 13132. This final rule will not have a substantial
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This final
rule will not have federalism implications that impose substantial
direct compliance costs on State and local governments.
In addition, FRA notes that the public docket in this proceeding
has been open for over four years. Virtually all comments received from
State and local governments support a federal reflectorization
requirement.
Under 49 U.S.C. 20106, issuance of this regulation preempts any
State law, rule, regulation, order, or standard covering the same
subject matter, except a provision to eliminate or reduce an
essentially local safety hazard, that is not incompatible with Federal
law or regulation and does not unreasonably burden interstate commerce.
(See discussion in the section-by-section analysis of Sec. 224.13).
E. 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) of FRA's Procedures. 64
FR 28547, May 26, 1999. Section 4(c) of FRA's Procedures identifies
twenty classes of FRA actions that are categorically excluded from the
requirements for conducting a detailed environmental review. FRA
further considered this final rule in accordance with section 4(c) and
(e) of FRA's Procedures to determine if extraordinary circumstances
exist with respect to this final rule that might trigger the need for a
more detailed environmental review. After conducting this review, FRA
has determined that extraordinary circumstances do not exist 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.
F. 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 $120,700,000 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.
This proposed rule will not result in the expenditure, in the
aggregate, of $120,700,000 or more 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: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) that 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 final rule in
accordance with Executive Order 13211. FRA has determined that this
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.
H. 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 224
Incorporation by reference, Penalties, Railroad locomotive safety,
Railroad safety, and Reporting and recordkeeping requirements.
The Rule
0
In consideration of the foregoing, FRA amends chapter II, subtitle B,
of title 49, Code of Federal Regulations to add part 224 as follows:
PART 224--REFLECTORIZATION OF RAIL FREIGHT ROLLING STOCK
Subpart A--General
Sec.
224.1 Purpose and scope.
222.3 Applicability.
224.5 Definitions.
224.7 Waivers.
[[Page 171]]
224.9 Responsibility for compliance.
224.11 Penalties.
224.13 Preemptive effect.
224.15 Special approval procedures.
Subpart B--Application, Inspection, and Maintenance of Retroreflective
Material
224.101 General requirements.
224.103 Characteristics of retroreflective sheeting.
224.105 Sheeting dimensions and quantity.
224.106 Location of retroreflective sheeting.
224.107 Implementation schedule.
224.109 Inspection, repair, and replacement.
224.111 Renewal.
Appendix A to Part 224--Schedule of Civil Penalties.
Appendix B to Part 224--Reflectorization Implementation Compliance
Report.
Authority: 49 U.S.C. 20103, 20107, 20148 and 21301; 28 U.S.C.
2461; and 49 CFR 1.49.
Subpart A--General
Sec. 224.1 Purpose and scope.
(a) The purpose of this part is to reduce highway-rail grade
crossing accidents and deaths, injuries, and property damage resulting
from those accidents, by enhancing the conspicuity of rail freight
rolling stock so as to increase its detectability by motor vehicle
operators at night and under conditions of poor visibility.
(b) In order to achieve cost-effective mitigation of collision risk
at highway-rail grade crossings, this part establishes the duties of
freight rolling stock owners (including those who manage maintenance of
freight rolling stock, supply freight rolling stock for transportation,
or offer freight rolling stock in transportation) and railroads to
progressively apply retroreflective material to freight rolling stock,
and to periodically inspect and maintain that material. Freight rolling
stock owners, however, are under no duty to install, clean or otherwise
maintain, or repair reflective material except as specified in this
part.
(c) This part establishes a schedule for the application of
retroreflective material to rail freight rolling stock and prescribes
standards for the application, inspection, and maintenance of
retroreflective material to rail freight rolling stock for the purpose
of enhancing its detectability at highway-rail grade crossings. This
part does not restrict a freight rolling stock owner or railroad from
applying retroreflective material to freight rolling stock for other
purposes if not inconsistent with the recognizable pattern required by
this part.
Sec. 224.3 Applicability.
This part applies to all railroad freight cars and locomotives that
operate over a public or private highway-rail grade crossing and are
used for revenue or work train service, except:
(a) Freight rolling stock that operates only on track inside an
installation that is not part of the general railroad system of
transportation;
(b) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; or
(c) Locomotives and passenger cars used exclusively in passenger
service.
Sec. 224.5 Definitions.
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
Associate Administrator means the Associate Administrator for
Safety, Federal Railroad Administration, or the Associate
Administrator's delegate.
Damaged means scratched, broken, chipped, peeled, or delaminated.
Flat car means a car having a flat floor or deck on the underframe
with no sides, ends or roof (including spine cars, articulated and
mult-unit intermodal cars).
Freight rolling stock means:
(1) Any locomotive subject to part 229 of this chapter used to haul
or switch freight cars (whether in revenue or work train service); and
(2) Any railroad freight car subject to part 215 of this chapter
(including a car stenciled MW pursuant to Sec. 215.305).
Freight rolling stock owner means any person who owns freight
rolling stock, is a lessee of freight rolling stock, manages the
maintenance or use of freight rolling stock on behalf of an owner or
one or more lessors or lessees, or otherwise controls the maintenance
or use of freight rolling stock.
Locomotive has the meaning assigned by Sec. 229.5 of this chapter,
but for purposes of this part applies only to a locomotive used in the
transportation of freight or the operation of a work train.
Obscured means concealed or hidden (i.e., covered up, as where a
layer of paint or dense chemical residue blocks all incoming light);
this term does not refer to ordinary accumulations of dirt, grime, or
ice resulting from the normal railroad operating environment.
Person means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track or
facilities; any independent contractor providing goods or services to a
railroad; and any employee of such an owner, manufacturer, lessor,
lessee, or independent contractor.
Railroad means all forms of non-highway ground transportation that
run on rails or electromagnetic guideways, including high speed ground
transportation systems that connect metropolitan areas, without regard
to whether they use new technologies not associated with traditional
railroads.
Railroad freight car has the meaning assigned by Sec. 215.5 of
this chapter.
Tank car means a rail car, the body of which consists of a tank for
transporting liquids.
Unqualified retroreflective sheeting means engineering grade
sheeting, super engineering grade sheeting (enclosed lens) or high-
intensity type sheeting (ASTM Type I, II, III, or IV Sheeting) as
described in ASTM International Standard D-4956-01a, ``Standard
Specification for Retroreflective Sheeting for Traffic Control.''
Work train means a non-revenue service train used for the
maintenance and upkeep service of the railroad.
Sec. 224.7 Waivers.
(a) Any person subject to a requirement of this part may petition
the Administrator for a waiver of compliance with such requirement. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(b) Each petition for waiver under this section shall be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions that the
Administrator deems necessary.
Sec. 224.9 Responsibility for compliance.
(a) Freight rolling stock owners, railroads, and (with respect to
certification of material) manufacturers of retroreflective material,
are primarily responsible for compliance with this part. However, any
person that performs any function or task required by this part
(including any employee, agent, or contractor of the aforementioned),
must perform that function in accordance with this part.
(b) Any person performing any function or task required by this
part shall be deemed to have consented to FRA inspection of the
person's facilities and records to the extent necessary to determine
whether the function or task is being performed in accordance with the
requirements of this part.
Sec. 224.11 Penalties.
(a) Any person (including but not limited to a railroad; any
manager,
[[Page 172]]
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; and any employee of such owner, manufacturer, lessor,
lessee, or independent contractor) who violates any requirement of this
part or causes the violation of any such requirement is subject to a
civil penalty of at least $550, but not more than $11,000 per
violation, except that: Penalties may be assessed against individuals
only for willful violations, and, where a grossly negligent violation
or a pattern of repeated violations has created an imminent hazard of
death or injury to persons, or has caused death or injury, a penalty
not to exceed $27,000 per violation may be assessed. Each day a
violation continues shall constitute a separate offense. Appendix A to
this part contains a schedule of civil penalty amounts used in
connection with this part.
(b) Any person who knowingly and willfully falsifies a record or
report required by this part is subject to criminal penalties under 49
U.S.C. 21311.
Sec. 224.13 Preemptive effect.
Under 49 U.S.C. 20106, issuance of this part preempts any State
law, rule, regulation, or order covering the same subject matter,
except an additional or more stringent law, rule, regulation, or order
that is necessary to eliminate or reduce an essentially local safety
hazard; that is not incompatible with a law, rule, regulation, or order
of the United States Government; and that does not unreasonably burden
interstate commerce.
Sec. 224.15 Special approval procedures.
(a) General. The following procedures govern consideration and
action upon requests for special approval of alternative standards
under Sec. 224.103(e).
(b) Petitions. (1) Each petition for special approval of an
alternative standard shall contain--
(i) The name, title, address, and telephone number of the primary
person to be contacted with regard to the petition;
(ii) The alternative proposed, in detail, to be substituted for the
particular requirements of this part; and
(iii) Appropriate data and analysis establishing that the
alternative will provide at least an equivalent level of safety and
meet the requirements of Sec. 224.103(e).
(2) Three copies of each petition for special approval of an
alternative standard shall be submitted to the Docket Clerk, Office of
Chief Counsel, Federal Railroad Administration, RCC-10, Mail Stop 10,
1120 Vermont Ave., NW., Washington, DC 20590.
(c) Notice. FRA will publish a notice in the Federal Register
concerning each petition under paragraph (b) of this section.
(d) Public comment. FRA will provide a period of not less than 30
days from the date of publication of the notice in the Federal Register
during which any person may comment on the petition.
(1) Each comment shall set forth specifically the basis upon which
it is made, and contain a concise statement of the interest of the
commenter in the proceeding.
(2) Each comment shall be submitted to the DOT Central Docket
Management System, Nassif Building, Room Pl-401, 400 Seventh Street,
SW., Washington, DC 20590, and shall contain the assigned docket number
which appears in the Federal Register for that proceeding. Such
submission may be in written or electronic form consistent with the
standards and requirements established by the Central Docket Management
System and posted on its Web site at http://dms.dot.gov.
(3) In the event FRA determines that it requires additional
information to appropriately consider the petition, FRA will conduct a
hearing on the petition in accordance with the procedures provided in
Sec. 211.25 of this chapter.
(e) Disposition of petitions. (1) If FRA finds that the petition
complies with the requirements of this section and that the proposed
alternative standard is acceptable or changes are justified, or both,
the petition will be granted, normally within 90 days of its receipt.
The Associate Administrator may determine the applicability of other
technical requirements of this part when rendering a decision on the
petition. If the petition is neither granted nor denied within 90 days,
the petition remains pending for decision. FRA may attach special
conditions to the approval of the petition. Following the approval of a
petition, FRA may reopen consideration of the petition for cause
stated.
(2) If FRA finds that the petition does not comply with the
requirements of this section, or that the proposed alternative standard
is not acceptable or that the proposed changes are not justified, or
both, the petition will be denied, normally within 90 days of its
receipt.
(3) When FRA grants or denies a petition, or reopens consideration
of a petition, written notice is sent to the petitioner and other
interested parties and a copy of the notice is placed in the electronic
docket of the proceeding.
Subpart B--Application, Inspection, and Maintenance of
Retroreflective Material
Sec. 224.101 General requirements.
All rail freight rolling stock subject to this part shall be
equipped with retroreflective sheeting that conforms to the
requirements of this part. Notwithstanding any other provision of this
chapter, the application, inspection, and maintenance of that sheeting
shall be conducted in accordance with this subpart or in accordance
with an alternative standard providing at least an equivalent level of
safety after special approval of FRA under Sec. 224.15.
Sec. 224.103 Characteristics of retroreflective sheeting.
(a) Construction. Retroreflective sheeting applied pursuant to this
part shall consist of a smooth, flat, transparent exterior film with
microprismatic retroreflective elements embedded in or suspended
beneath the film so as to form a non-exposed retroreflective optical
system.
(b) Color. Retroreflective sheeting applied pursuant to this part
shall be yellow or white as specified by the chromaticity coordinates
of ASTM International's Standard D 4956-01a, ``Standard Specification
for Retroreflective Sheeting for Traffic Control.'' The Director of the
Federal Register approves the incorporation by reference of this
standard in this section in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. You may obtain a copy of the incorporated standard from ASTM
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken,
PA 19428-2959. You may inspect a copy of the incorporated standard at
the Federal Railroad Administration, Docket Clerk, 1120 Vermont Ave.,
NW., Suite 7000, or at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
call 202-741-6030, or go to http://www.archives.gov/ federal--register/
code--of--federal-- regulations/ibr-- locations.html.
(c) Performance. Retroreflective sheeting applied pursuant to this
part shall meet the requirements of ASTM D 4956-01a, for Type V
Sheeting, except for the photometric requirements, and shall, as
initially applied, meet the minimum photometric performance
requirements specified in Table 1 of this subpart.
[[Page 173]]
Table 1 of Subpart B.--Minimum Photometric Performance (Coefficient of Retroreflection (RA) in Candela/Lux/
Meter2) Requirement for Retroreflective Sheeting
----------------------------------------------------------------------------------------------------------------
Observation angle
---------------------------------------------------------------
Entrance angle 0.2 Degree 0.5 Degree
---------------------------------------------------------------
Yellow White Yellow White
----------------------------------------------------------------------------------------------------------------
-4[deg]......................................... 400 600 100 160
30[deg]......................................... 220 350 45 75
----------------------------------------------------------------------------------------------------------------
(d) Certification. The characters ``FRA-224'', constituting the
manufacturer's certification that the retroreflective sheeting conforms
to the requirements of paragraphs (a) through (c) of this section,
shall appear at least once on the exposed surface of each piece of
sheeting in the final application. The characters shall be a minimum of
three millimeters high, and shall be permanently stamped, etched,
molded, or printed within the product and each certification shall be
spaced no more than four inches apart.
(e) Alternative standards. Upon petition by a freight rolling stock
owner or railroad under Sec. 224.15, the Associate Administrator may
approve an alternative technology as providing equivalent safety. Any
such petition shall provide data and analysis sufficient to establish
that the technology will result in conspicuity and durability at least
equal to sheeting described in paragraphs (a) through (c) of this
section applied in accordance with this part and will present a
recognizable visual target that is suitably consistent with freight
rolling stock equipped with retroreflective sheeting that meets the
technical requirements of this part to provide the intended warning to
motorists.
Sec. 224.105 Sheeting dimensions and quantity.
Retroreflective sheeting shall be applied along the length of each
railroad freight car and locomotive side as described in Sec. 224.106.
Retroreflective sheeting applied under this part shall be applied in
strips 4 inches wide and 18 or 36 inches long, unless otherwise
specified. The amount of retroreflective sheeting to be applied to each
car or locomotive subject to this part is dependent on the length of
the car or locomotive and the color of the sheeting. For purposes of
this part, the length of a railroad freight car or locomotive is
measured from endsill to endsill, exclusive of the coupler and draft
gear. Each side of a railroad freight car subject to this part,
including each unit of multi-unit cars, and each side of a locomotive
subject to this part must be equipped with at least the minimum amount
of retroreflective sheeting specified in Table 2 of this subpart.
Table 2 of Subpart B.--Minimum Quantity Requirement for Retroreflective
Sheeting on Freight Rolling Stock
------------------------------------------------------------------------
Minimum area of Minimum area of
retroreflective retroreflective
Freight car or locomotive sheeting required sheeting required
length (per car/locomotive (per car/locomotive
side)--yellow side)--white
sheeting (ft\2\) sheeting (ft\2\)
------------------------------------------------------------------------
Less than 50 ft............... 3.5 4
50 ft. to 60 ft............... 4 5
Over 60 ft. to 70 ft.......... 4.5 5.5
Over 70 ft. to 80 ft.......... 5 6
Over 80 ft. to 90 ft.......... 5.5 7
Over 90 ft. to 100 ft\1\...... 6 7.5
------------------------------------------------------------------------
\1\ Freight cars or locomotives over 100 ft. in length must be equipped
with an additional one-half square foot of sheeting on each side for
every additional 10 feet of length.
Sec. 224.106 Location of retroreflective sheeting.
(a) Railroad freight cars. The retroreflective sheeting shall be
applied along the length of each railroad freight car side in the
manner provided by a uniform industry standard approved by the
Associate Administrator that provides for distribution of material
along the length of each car and as close as practicable to 42 inches
above the top of rail. In the event such an industry standard is not
proffered, or is not approved by the Associate Administrator, the
criteria set forth in this subpart shall apply. Retroreflective
sheeting applied under this part must be located clear of appurtenances
and devices such as ladders and other safety appliances, pipes, or
other attachments that may obscure its visibility. Retroreflective
sheeting need not be applied to discontinuous surfaces such as bolts,
rivets, door hinges, or other irregularly shaped areas that may prevent
the sheeting from adhering to the car sides. In addition,
retroreflective sheeting need not be applied over existing or required
car stencils and markings. If necessary to avoid appurtenances,
discontinuous surfaces, or existing or required car markings or
stencils, a 4x18 inch strip of retroreflective sheeting may be
separated into two 4x9 inch strips, or a 4x36 inch strip may be
separated into four 4x9 inch strips, and applied on either side of the
appurtenance, discontinuous surface, or car markings or stencils.
(1) General rule. On railroad freight cars other than flat cars and
tank cars, retroreflective sheeting shall be applied in either a
vertical or horizontal pattern along the length of the car sides, with
the bottom edge of the sheeting as close as practicable to 42 inches
above the top of rail. Retroreflective sheeting shall not be applied
below the side sill.
(i) Vertical application. If retroreflective sheeting is applied in
a vertical pattern, at least one 4x36 inch strip or two 4x18 inch
strips, one above the other, shall be applied as close to
[[Page 174]]
each end of the car as practicable. Between these two vertical end
strips, a minimum of one 4x18 inch strip shall be applied at least
every 12 feet. See Figures 1, 2, and 3.
BILLING CODE 4910-06-P
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(ii) Horizontal application. If retroreflective sheeting is applied
in a horizontal pattern, at least two 4x18 inch strips, one above the
other, shall be applied as close to each end of the car as practicable.
Between these two end strips, a minimum of one 4x18 inch strip shall be
applied at least every 12 feet. See Figures 4, 5, and 6.
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(2) Tank cars. On tank cars, retroreflective sheeting shall be
applied vertically to each car side and centered on the horizontal
centerline of the tank, or as near as practicable. If it is not
practicable to safely apply the sheeting centered vertically about the
horizontal centerline of the tank, the sheeting may be applied
vertically with its top edge no higher than the horizontal centerline
of the tank. A minimum of either one 4x36 inch strip or two 4x18 inch
strips, one above the other, shall be applied as close to each end of
the car as practicable. Between these two end strips, a minimum of one
4x18 inch strip shall be applied at least every 12 feet.
Retroreflective sheeting applied under this part shall not be located
in the spillage area directly beneath the manway used to load and
unload the tank. See Figures 7 and 8.
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(3) Flat cars. On flat cars, retroreflective sheeting shall be
applied in a horizontal pattern along the length of the side sill with
the bottom edge of the sheeting no lower than the bottom of the side
sill and the top edge of the sheeting no higher than the top of the car
deck or floor. At least two 4x18 inch strips, one above the other,
shall be applied as close to each end of the car as practicable. If the
side sill is less than 8 inches wide, the two 4x18 inch strips may be
applied one next to the other, dividing the strips into nine inch
segments as necessary in accordance with paragraph (a) of this section.
Between the two end strips, a minimum of one 4x18 inch strip shall be
applied at least every 12 feet. See Figure 4. If a car has a separate
rack structure, retroreflective sheeting may be applied to the flatcar
portion only in accordance with the requirements of this section.
[[Page 185]]
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BILLING CODE 4910-06-C
[[Page 186]]
(4) Cars of special construction. This paragraph applies to any car
the design of which is not compatible with the patterns of application
otherwise provided in this section. Retroreflective sheeting shall
conform as closely as practicable to the requirements of paragraphs
(a)(1) through (a)(3) of this section and shall have the minimum amount
of sheeting described in Sec. 224.105 distributed along the length of
each car side.
(b) Locomotives: Locomotives subject to this part shall be equipped
with at least the minimum amounts of retroreflective sheeting required
by Sec. 224.105 spaced as uniformly as practicable along the length of
the locomotive sides as close as practicable to 42 inches from the top
of the rail.
Sec. 224.107 Implementation schedule.
(a) Railroad freight cars. All railroad freight cars subject to
this part must be equipped with retroreflective sheeting conforming to
this part by May 31, 2015. If a car already has reflective material
applied that does not meet the standards of this part, it is not
necessary to remove the material unless its placement interferes with
the placement of the sheeting required by this part.
(1) New cars. Retroreflective sheeting conforming to this part must
be applied to all cars constructed after May 31, 2005, before the cars
are placed in service.
(2) Existing cars without retroreflective sheeting.
(i) If, as of January 3, 2005, a car subject to this part is not
equipped on each side with at least one square foot of retroreflective
sheeting as specified in paragraph (a)(3) of this section,
retroreflective sheeting conforming to this part must be applied to the
car at the earliest of the following two occasions occurring after May
31, 2005 or in accordance with paragraph (a)(2)(ii) of this section:
(A) When the car is repainted or rebuilt; or
(B) Within nine months (270 calendar days) after the car first
undergoes a single car air brake test as prescribed by Sec. 232.305 of
this chapter.
(ii) A freight rolling stock owner may elect not to follow the
schedule in paragraph (a)(2)(i) of this section if, not later than July
1, 2005, the freight rolling stock owner submits to FRA a completed
Reflectorization Implementation Compliance Report certifying that the
cars in the owner's fleet subject to this part will be equipped with
retroreflective sheeting as required by this part in accordance with
the schedule specified in Table 3 of this subpart. See Appendix B of
this part for Reflectorization Implementation Compliance Report form.
Table 3 of Subpart B.--Alternative Schedule for Application of
Retroreflective Material to Freight Cars per Sec. 224.107(a)(2)(ii).
------------------------------------------------------------------------
(B)
(A) \1\ (percent)
------------------------------------------------------------------------
May 31, 2007............................................... 20
May 31, 2008............................................... 30
May 31, 2009............................................... 40
May 31, 2010............................................... 50
May 31, 2011............................................... 60
May 31, 2012............................................... 70
May 31, 2013............................................... 80
May 31, 2014............................................... 90
May 31, 2015............................................... 100
------------------------------------------------------------------------
\1\ Column (A) indicates the date by which the minimum percentage of an
owner's freight cars specified in column (B) must be equipped with
retroreflective sheeting conforming to this part.
(A) Thereafter, the designated fleet shall be equipped with
retroreflective sheeting according to the schedule specified in Table 3
of this subpart;
(B) No later than July 1, 2007, the freight rolling stock owner
shall submit to FRA an updated Reflectorization Implementation
Compliance Report showing which cars of the fleet subject to this part
were equipped with retroreflective sheeting as required by this part
during the initial 24-month implementation period. Thereafter, updated
Reflectorization Implementation Compliance Reports shall be submitted
annually, no later than July 1 of each year, for the duration of the
10-year implementation period. See Appendix B of this part.
(C) If, following the conclusion of the initial 24-month period or
any 12-month period thereafter, the percentage requirements of this
section have not been met--
(1) The freight rolling stock owner shall be considered in
violation of this part;
(2) The freight rolling stock owner shall, within 60 days after the
close of the period, report the failure in writing to the Associate
Administrator;
(3) The requirements of paragraph (a)(2)(i) of this section shall
apply to all railroad freight cars subject to this part in the freight
rolling stock owner's fleet; and
(4) The fleet owner shall take such additional action as may be
necessary to achieve future compliance.
(D) Cars to be retired shall be included in the fleet total until
they are retired.
(3) Existing cars with retroreflective sheeting. If as of January
3, 2005, a car is equipped on each side with at least one square foot
of retroreflective sheeting, uniformly distributed over the length of
each side, that car shall be considered in compliance with this part
through May 31, 2015, provided the sheeting is not unqualified
retroreflective sheeting, and provided the freight rolling stock owner
files a completed Reflectorization Implementation Compliance Report
with FRA no later than July 1, 2005, identifying the cars already so
equipped. See Appendix B of this part for Reflectorization
Implementation Compliance Report form.
(b) Locomotives. Except as provided in paragraph (b)(4) of this
section, all locomotives subject to this part must be equipped with
conforming retroreflective sheeting by May 31, 2010. If a locomotive
already has reflective material applied that does not meet the
standards of this part, it is not necessary to remove the material
unless its placement interferes with the placement of the sheeting
required by this part.
(1) New locomotives. Retroreflective sheeting conforming to this
part must be applied to all locomotives constructed after May 31, 2005,
before the locomotives are placed in service.
(2) Existing locomotives without retroreflective sheeting. (i) If
as of January 3, 2005 a locomotive subject to this part is not equipped
with the minimum amount of retroreflective sheeting specified in
paragraph (b)(3) of this section, retroreflective sheeting conforming
to this part must be applied to the locomotive not later than the first
biennial inspection performed pursuant to Sec. 229.29 of this chapter
occurring after May 31, 2005.
(ii) A freight rolling stock owner may elect not to follow the
schedule in paragraph (b)(2)(i) of this section, if not later than July
1, 2005, the freight rolling stock owner submits to FRA a
Reflectorization Implementation Compliance Report certifying that the
locomotives in the owner's fleet subject to this part will be equipped
with retroreflective sheeting as required by this part in accordance
with the schedule specified in Table 4 of this subpart. See Appendix B
of this part.
Table 4 of Subpart B.--Alternative Schedule for Application of
Retroreflective Material to Locomotives per Sec. 224.107(b)(2)(ii).
------------------------------------------------------------------------
(B)
(A) \1\ (percent)
------------------------------------------------------------------------
May 31, 2007............................................... 40
May 31, 2008............................................... 60
[[Page 187]]
May 31, 2009............................................... 80
May 31, 2010............................................... 100
------------------------------------------------------------------------
\1\ Column (A) indicates the date by which the minimum percentage of an
owner's locomotives specified in column (B) must be equipped with
retroreflective sheeting conforming to this part.
(A) Thereafter, the designated locomotive fleet shall be equipped
with retroreflective sheeting according to the requirements of this
paragraph (b)(2)(ii);
(B) No later than July 1, 2007, the freight rolling stock owner
shall submit to FRA an updated Reflectorization Implementation
Compliance Report showing which locomotives of the fleet subject to
this part were equipped with retroreflective sheeting as required by
this part during the initial 24 month implementation period.
Thereafter, updated Reflectorization Implementation Compliance Reports
shall be submitted annually, no later than July 1 of each year, for the
duration of the 5-year implementation period. See Appendix B of this
part.
(C) If, following the conclusion of the initial 24-month period or
any 12-month period thereafter, the percentage requirements of this
section have not been met--
(1) The freight rolling stock owner shall be considered in
violation of this part;
(2) The freight rolling stock owner shall, within 60 days after the
close of the period, report the failure in writing to the Associate
Administrator;
(3) The requirements of paragraph (b)(2)(i) of this section shall
apply to all locomotives subject to this part in the freight rolling
stock owner's fleet; and
(4) The fleet owner shall take such additional action as may be
necessary to achieve future compliance.
(D) Locomotives to be retired shall be included in the fleet total
until they are retired.
(3) Existing locomotives with retroreflective sheeting. If as of
January 3, 2005, a locomotive is equipped on each side with at least
one square foot of retroreflective sheeting, that locomotive shall be
considered in compliance with this part through May 31, 2015, provided
the existing material is not unqualified retroreflective sheeting, and
provided the freight rolling stock owner files a Reflectorization
Implementation Compliance Report with FRA no later than July 1, 2005,
identifying the locomotives already so equipped. See Appendix B of this
part. If, as of January 3, 2005, a locomotive is equipped with
unqualified retroreflective sheeting, the locomotive will be considered
in compliance with this part through May 31, 2015, provided the
locomotive is equipped with a minimum of 3 square feet of
retroreflective material on each side and provided the freight rolling
stock owner files a Reflectorization Implementation Compliance Report
with FRA no later than July 1, 2005, identifying the locomotives
already so equipped. See Appendix B of this part.
(4) Each railroad that has fewer than 400,000 annual employee work
hours, and does not share locomotive power with another railroad with
400,000 or more annual employee work hours, may bring its locomotive
fleet into compliance according to the following schedule: fifty
percent of the railroad's locomotives must be retrofitted pursuant to
Sec. 224.106(b) within five years of the effective date of this part
and one hundred percent must be retrofitted pursuant to Sec.
224.106(b) within 10 years of the effective date of this part. If a
railroad with fewer than 400,000 annual employee work hours shares
locomotive power with a railroad with 400,000 or more annual employee
work hours, the smaller railroad must comply with the requirements of
paragraphs (b)(2) and (3) of this section.
Sec. 224.109 Inspection, repair, and replacement.
(a) Railroad freight cars. Retroreflective sheeting on railroad
freight cars subject to this part must be visually inspected for
presence and condition whenever a car undergoes a single car air brake
test required under Sec. 232.305 of this chapter. If at the time of
inspection more than 20 percent of the amount of sheeting required
under Sec. 224.105 on either side of a car is damaged, obscured, or
missing, the inspecting railroad or contractor shall promptly notify
the car owner of the damaged, obscured, or missing sheeting. The
inspecting railroad or contractor shall retain a written or electronic
copy of each such notification made for at least two years from the
date of the notice and shall make these records available for
inspection and copying by the FRA upon request. Any car owner notified
of a defect under this section shall have nine months (270 calendar
days) from the date of notification to repair or replace the damaged,
obscured, or missing sheeting.
(b) Locomotives. Retroreflective sheeting must be visually
inspected for presence and condition when the locomotive receives the
annual inspection required under Sec. 229.27 of this chapter. If at
the time of inspection more than 20 percent of the amount of sheeting
required under Sec. 224.105 on either side of a locomotive is damaged,
obscured, or missing, that damaged, obscured, or missing sheeting must
be repaired or replaced. If conditions at the time of inspection are
such that adequate repairs cannot be made, replacement material can not
be applied, or if sufficient replacement material is not available,
such application may be completed at the next forward location where
conditions permit, provided a record of the defect is maintained in the
locomotive cab or in a secure and accessible electronic database to
which FRA is provided access on request.
Sec. 224.111 Renewal.
Regardless of condition, retroreflective sheeting required under
this part must be replaced with new sheeting no later than ten years
after the date of initial installation. For purposes of this section,
May 31, 2005 shall be considered the initial date of installation for
freight cars and locomotives covered by Sec. 224.107(a)(3) or
224.107(b)(3).
Appendix A to Part 224--Schedule of Civil Penalties \1\
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\1\ A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $27,000 for any violation where circumstances
warrant. See 49 CFR part 209, Appendix A.
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Subpart B--Application, Inspection, and Maintenance of
Retroreflective Material
[[Page 188]]
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Willful
Section Violation violation
($) ($)
------------------------------------------------------------------------
Sec. 224.103 Characteristics of ........... ...........
retroreflective sheeting:
(a)-(d) Retroreflective sheeting applied does 2,500 5,000
not meet the requirements of Sec. 224.103..
Sec. 224.105 Sheeting dimensions and ........... ...........
quantity:
Failure to apply minimum amount of 2,500 5,000
retroreflective sheeting in accordance with
Table 2......................................
Applying retroreflective sheeting of wrong 2,500 5,000
dimensions...................................
Sec. 224.106 Location of retroreflective ........... ...........
sheeting:
(a), (b) Applying retroreflective sheeting in 2,000 4,000
nonconforming pattern........................
Sec. 224.107 Implementation schedule: ........... ...........
(a)(1), (b)(1) Failure to apply 5,000 7,500
retroreflective sheeting to new freight car
or locomotive before equipment placed in
service......................................
(a)(2), (b)(2), (b)(4) Failure to apply 5,000 7,500
retroreflective sheeting to existing freight
car or locomotive in accordance with minumum
schedule of paragraphs (a)(2), (b)(2), or
(b)(4).......................................
Sec. 224.109 Inspection, repair, and
replacement:
(a) Failure to perform inspection............. 5,000 7,500
Failure to properly notify car owner of defect 2,500 5,000
Failure to retain written notification of 1,500 2,500
defect for two years.........................
Failure to repair defect after notification... 5,000 7,500
(b) Failure to perform inspection............. 5,000 7,500
Failure to repair defect...................... 5,000 7,500
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Appendix B to Part 224--Reflectorization Implementation Compliance
Report
BILLING CODE 4910-06-P
[[Page 189]]
[GRAPHIC] [TIFF OMITTED] TR03JA05.009
[[Page 190]]
[GRAPHIC] [TIFF OMITTED] TR03JA05.010
[[Page 191]]
Issued in Washington, DC on December 22, 2004.
Betty Monro,
Acting Administrator, Federal Railroad Administration.
[FR Doc. 04-28407 Filed 12-30-04; 8:45 am]
BILLING CODE 4910-06-C