Monday, January 3, 2005

Part II

Department of Transportation Federal Railroad Administration

49 CFR Part 224 Reflectorization of Rail Freight Rolling Stock; Final Rule

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DEPARTMENT OF TRANSPORTATION As noted in the NPRM, approximately signal (because the locomotive has 4,000 times each year, a train and a already cleared the crossing) or visual Federal Railroad Administration highway vehicle collide at a highway- stimuli alerting the driver to a train rail grade crossing in the United States. traveling through the crossing, the 49 CFR Part 224 Approximately 23% of all highway-rail driver may fail to perceive the train in grade crossing accidents involve motor time to stop. This condition is further [Docket No. FRA–1999–6689, Notice No. 4] vehicles running into trains occupying exacerbated when a train is stopped on RIN 2130–AB41 grade crossings (‘‘RIT’’ accidents). Many a crossing. of these RIT accidents occur during There is currently no requirement for Reflectorization of Rail Freight Rolling nighttime conditions (dawn, dusk, and lighting or reflective markings on freight Stock darkness) and involve a highway rolling stock. However, as explained in vehicle striking a train behind the first the NPRM, reflectorization has become AGENCY: Federal Railroad two units of the consist. This suggests an indispensable tool for enhancing Administration (FRA), Department of that a contributing factor to many RIT visibility in virtually all other modes of Transportation (DOT). accidents is the difficulty motorists have transportation, including air, highway, ACTION: Final rule. in seeing a train consist at a crossing in maritime, and pedestrian travel. For time to stop their vehicles before example, airplanes and motor vehicles SUMMARY: FRA is issuing this final rule reaching the crossing, particularly are equipped with high brightness to mandate the reflectorization of freight during periods of limited visibility, such retroreflective material at key locations rolling stock (freight cars and as dawn, dusk, darkness, or during on the exterior surfaces to increase their locomotives) to enhance the visibility of adverse weather conditions. conspicuity. Microprismatic corner cube trains in order to reduce the number and retroreflectors (which have the ability to As explained in the NPRM, the severity of accidents at highway-rail direct light rays back to the light source) physical characteristics of trains, in grade crossings in which train visibility are typically used on roadway signs that combination with the characteristics of is a contributing factor. This rule warn of construction or other hazardous grade crossings (e.g., grade crossing establishes a schedule for the conditions. Federal regulations require configuration, type of warning devices application of retroreflective material retroreflective materials on the sides at a crossing, rural background and prescribes standards for the and rear of large trucks to increase their construction, performance, application, environment with low level ambient conspicuity and to aid motorists in inspection, and maintenance of the light, or visually complex urban judging their proximity to these material. background environment, etc.), and the vehicles. Even regulations addressing inherent limitations of human eyesight, DATES: Effective Date: March 4, 2005. bicycle safety have specific often make it difficult for motorists to requirements on the use of reflective The incorporation by reference of a detect a train’s presence on highway-rail certain publication listed in the rule is materials. Lifesaving marine equipment, grade crossings, particularly during such as life vests and rafts, require approved by the Director of the Federal periods of limited visibility. Freight Register as of March 4, 2005. reflectorization; and to enhance the trains lack conspicuity in different conspicuity of pedestrians, especially at FOR FURTHER INFORMATION CONTACT: Dr. environmental settings. For example, night, retroreflective material has been Tom Blankenship, Mechanical Engineer, trains are typically painted a dark color incorporated into clothing and similar Office of Safety, FRA, 1120 Vermont and are often covered with dirt and items. Ave., NW., Mailstop 25, Washington, grime which are inherent in the railroad The everyday use of reflectors DC 20590 (telephone: 202–493–6446); environment. With the exception of indicates their acceptance to delineate Mary Plache, Industry Economist, Office locomotives, trains are usually potential hazards and obstructions in a of Safety, FRA, 1120 Vermont Ave., unlighted and are not equipped with vehicle’s path of travel. Research NW., Mailstop 25, Washington, DC reflective devices. Similarly, a large specific to the railroad industry has 20590 (telephone: 202–493–6297); or percentage of crossings are not lighted. demonstrated that reflective materials Lucinda Henriksen, Trial Attorney, Consequently, much of the light from an can increase the conspicuity of freight Office of Chief Counsel, FRA, 1120 approaching motor vehicle’s headlights cars, thereby enhancing motorists’ Vermont Ave., NW., Mailstop 10, is absorbed by the freight cars, instead ability to detect the presence of trains in Washington, DC 20590 (telephone: 202– of being reflected back toward the highway-rail grade crossings. Reflective 493–6038). motorist. In addition, the large size of material on rail equipment increases SUPPLEMENTARY INFORMATION: freight cars also makes them difficult to visibility inexpensively, and does not detect. For instance, even if a motorist require a power source to produce light, Background is looking for a train, if the locomotive but returns light produced from another On November 6, 2003, FRA published has already passed, it is difficult to source (i.e., an approaching a notice of proposed rulemaking detect the freight cars because the cars automobile’s headlights). This greater (NPRM) proposing to require often encompass the motorist’s entire visibility can help drivers avoid some retroreflective material on the sides of field of view and have the tendency to accidents and reduce the severity of freight rolling stock (freight cars and ‘‘blend’’ into the background other accidents that are unavoidable. locomotives) to enhance the visibility of environment, especially at night. Also, Accordingly, FRA, as the Federal agency trains. 68 FR 62942. The NPRM because most drivers involved in grade responsible for ensuring that America’s represented a partial solution to a safety crossing accidents are familiar with the railroads are safe for the traveling problem that has long concerned FRA— crossings and with roadway features at public, and in direct response to a the need to reduce the incidence and the crossings, the drivers become Congressional mandate, is issuing this severity of collisions between motor habituated (or preconditioned) to the final rule requiring the application of vehicles and trains at highway-rail grade crossings. Based on previous driving reflective material on the sides of crossings throughout the United States, experiences and conditioning, a driver certain rail cars and locomotives to especially during conditions of darkness may not expect a train to be occupying enhance the visibility of trains in order or reduced visibility. a crossing, and without a clear auditory to reduce the number and severity of

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accidents at highway-rail grade 1994, Public Law 103–440 (‘‘Act’’). The also noted in the NPRM, the issue of rail crossings where train visibility is a Act added section 20148 to title 49 of car ‘‘conspicuity’’ is not a new concept. contributing factor. the United States Code. Section 20148 Research dating back to the early 1950’s required the Secretary, and by A. Statutory Authority and identified the potential viability of rail delegation, FRA, to conduct a review of Congressional Mandate car conspicuity materials such as the Department of Transportation’s luminous sources (lights on rail cars), FRA has broad statutory authority to (‘‘Department’’) rules with respect to the self-luminous sources (phosphorescent), regulate all areas of railroad safety. The visibility of railroad cars and mandated and reflective sources. By the 1970’s, Federal Railroad Safety Act of 1970 that if the review established that researchers had generally concluded (Safety Act) (formerly 45 U.S.C. 421, 431 enhanced railroad car visibility would that although luminous and reflective et seq., now found primarily in chapter likely improve safety in a cost-effective sources both proved effective in 201 of Title 49) grants the Secretary of manner, the Secretary initiate a enhancing the visibility of trains, Transportation (‘‘Secretary’’) rulemaking rulemaking proceeding to ‘‘prescribe reflectors provided conspicuity at a authority over all areas of railroad safety regulations requiring enhanced greater distance and field of vision. (49 U.S.C. 20103(a)) and confers all visibility standards for newly Although the general consensus of powers necessary to detect and penalize manufactured and remanufactured historical research was that reflective violations of any rail safety law. This railroad cars.’’ Section 20148 materials could increase the conspicuity authority was subsequently delegated to specifically directed the Secretary to of objects to which they are attached, the FRA Administrator (49 CFR 1.49). examine the use of reflectors. Section previous generations of reflective (Until July 5, 1994, the Federal railroad 20148 reads as follows: safety statutes existed as separate acts materials did not reflect enough light to found primarily in Title 45 of the (a) REVIEW OF RULES.—The Secretary of be effective in the railroad environment United States Code. On that date, all of Transportation shall conduct a review of the and lacked the durability to survive the Department of Transportation’s rules with harsh railroad operating environment. the acts were repealed, and their respect to railroad car visibility. As part of provisions were recodified into Title this review, the Secretary shall collect FRA first evaluated the use of 49.) relevant data from operational experience by reflective material on rail rolling stock The term ‘‘railroad’’ is defined in the railroads having enhanced visibility in the early 1980s and supported a Safety Act to include measures in service. study completed in 1982 on the (b) REGULATIONS.—If the review all forms of non-highway ground potential use of reflectorization to conducted under subsection (a) establishes transportation that runs on rails or reduce nighttime accidents at highway- electromagnetic guideways, * * * other than that enhanced railroad car visibility would rail intersections. The study concluded rapid transit operations within an urban area likely improve safety in a cost-effective manner, the Secretary shall initiate a that although the use of reflective that are not connected to the general railroad material enhanced the visibility of system of transportation. rulemaking proceeding to prescribe regulations requiring enhanced visibility trains, the reflective material was not 49 U.S.C. 20102. This definition makes standards for newly manufactured and durable enough to withstand the harsh clear that FRA has jurisdiction over (1) remanufactured railroad cars. In such railroad environment. It was decided rapid transit operations within an urban proceeding the Secretary shall consider, at a that rulemaking action was not area that are connected to the general minimum— warranted at that time. railroad system of transportation, and (1) visibility of railroad cars from the perspective of nonrailroad traffic; Since 1982, however, improvements (2) all freight, intercity, passenger, and in the brightness, durability, and commuter rail passenger operations (2) whether certain railroad car paint colors should be prohibited or required; adhesive properties of reflective regardless of their connection to the (3) the use of reflective materials; material have been achieved. general railroad system of transportation (4) the visibility of lettering on railroad Specifically, a new material— or their status as a common carrier cars; microprismatic retroreflective engaged in interstate commerce. FRA (5) the effect of any enhanced visibility material—was developed. Because of has issued a policy statement describing measures on the health and safety of train the technological advances in reflective how it determines whether particular crew members; and materials and the creation of rail passenger operations are subject to (6) the cost/benefit ratio of any new microprismatic retroreflective material, FRA’s jurisdiction (65 FR 42529 (July regulations. FRA renewed its research efforts in the 2,2000)); the policy statement can be (c) EXCLUSIONS.—In prescribing early 1990s. By 1999, FRA’s research found in Appendix A to 49 CFR parts regulations under subsection (b), the Secretary may exclude from any specific had led to the conclusion that the 209 and 211. visibility requirement any category of trains Pursuant to its statutory authority, durability and adhesive properties of or railroad operations if the Secretary the new microprismatic retroreflective FRA promulgates and enforces a determines that such an exclusion is in the comprehensive regulatory program to material could provide adequate public interest and is consistent with railroad luminance intensity levels which could address railroad track, signal systems, safety. railroad communications, rolling stock, be sustained for up to 10 years with rear-end marking devices, safety glazing, B. History of Railroad Car Conspicuity minimum maintenance. See Safety of railroad accident/incident reporting, Issue Highway-Railroad Grade Crossings: locational requirements for dispatching As explained in the NPRM, the term Freight Car Reflectorization, DOT/FRA/ of U.S. rail operations, safety integration ‘‘conspicuity,’’ as applied to rail car ORD–98/11, John A. Volpe National plans governing railroad consolidations, visibility, refers to the characteristics of Transportation Systems Center (Jan. 1 merger and acquisitions of control, a rail car in its roadway setting to 1999) (1999 Volpe Report). A copy of operating practices, passenger train command the attention of approaching the 1999 Volpe Report is in the docket emergency preparedness, alcohol and motorists and be recognizable to drug testing, locomotive engineer reasonably prudent motorists at 1 A more detailed description of FRA’s studies of freight car reflectorization can be found in the certification, and workplace safety. sufficient distance to allow the NPRM (See 68 FR 62946—62949) and, where In 1994 Congress passed the Federal motorists to reduce their vehicles’ speed relevant, the Section-by-Section analysis that Railroad Safety Authorization Act of and take action to avoid collisions. As follows in this preamble.

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of this proceeding (Document No. FRA– a uniform, nationwide freight car FRA proposed to require that 1999–6689–17). reflectorization program would far retroreflective sheeting be applied to In order to provide an opportunity for outweigh the costs of such a program. new freight rolling stock at the time of all interested parties to share their FRA published the results of its construction, and to existing stock when views, concerns, and experiences with Preliminary Analysis in the Federal such stock was being repainted, rebuilt, regard to rail car reflectorization, Register on October 26, 2001. See 66 FR or undergoing other periodic subsequent to the publication of the 54326. A copy of the Preliminary maintenance. 1999 Volpe Report, in July 1999 FRA Analysis is in the docket of this The proposed rule contained specific hosted a workshop on reflectorization of proceeding (Document No. FRA–1999– color, construction, placement, and rail rolling stock. Representatives from 6689–25). performance requirements for the the railroad industry, reflector Because of the rail industry’s required retroreflective sheeting and manufacturing and supply companies, continued interest in the issue of rail car also set forth a schedule for the the National Transportation Safety reflectorization, FRA met with members application, inspection, and Board and the National Highway Traffic of the regulated community on March maintenance of the sheeting. Safety Administration (NHTSA), as well 24, 2003, to again listen to their Specifically, the proposed rule provided as other interested parties participated comments and concerns regarding that retroreflective sheeting must meet in the workshop. During the workshop, reflectorization. During this meeting, the color and performance discussion focused on the potential participants again raised important requirements, except for the effectiveness of rail car reflectorization considerations regarding many practical photometric performance requirements, under a variety of circumstances (e.g., aspects of a potential reflectorization of American Society of Testing and the potential effectiveness of reflectors program (e.g., a feasible schedule for the Measurements’ (ASTM) Standard D during the nighttime versus the application of reflectors to rail cars, 4956–01, Standard Specification for daytime, at passively protected what types of reflective material would Retroreflective Sheeting for Traffic crossings versus actively protected be required, reflector cleaning and Control, for yellow sheeting. The crossings), as well as more practical maintenance responsibilities, and when proposed rule set forth the minimum aspects of any rail car reflectorization and where reflectors would be applied photometric performance requirements program (e.g., maintenance and cleaning to cars). (i.e., the minimum ‘‘specific intensity requirements, when and where reflector After careful review and per unit area’’ or ‘‘SIA’’) that FRA installation would occur, and the costs consideration of all the relevant determined were necessary to ensure involved in installing and maintaining research and data, and the comments that the yellow retroreflective sheeting the reflectors). A copy of the transcript submitted in this proceeding, FRA would be sufficiently bright enough to of this workshop is included in the concluded that reflectorization of rail attract the attention of approaching docket of this proceeding (Document freight rolling stock is a feasible method motorists early enough in the approach No. FRA–1999–6689–7). of enhancing rail car visibility that path so that the drivers would have time Recognizing that part of the review would improve safety in a cost-effective to react to avoid collisions. FRA mandated by Congress included manner. Accordingly, FRA issued an proposed to require yellow collecting relevant data from operational NPRM on November 6, 2003, proposing retroreflective material, in part, because experience by railroads having to require the use of reflective material the spectral measurement of the color enhanced visibility measures in service, on the sides of certain rail cars and (approximately 550 nm) is within the on January 14, 2000, FRA established a locomotives. peak sensitivity range of the human public docket (Docket No. FRA–1999– Subsequent to issuance of the NPRM, visual system, and accordingly, it is one 6689) to provide all interested parties FRA held a public hearing in of the most easily detectable colors with a central location to both send and Washington, DC on January 27, 2004. under varying ambient light and other review relevant information concerning Approximately 30 individuals environmental conditions (e.g., railcar conspicuity and to the provide a representing various organizations and darkness, fog, haze, etc.). The venue to gather and disseminate businesses involved in the railroad and performance requirements of the information on the issues. The docket in reflector manufacturing industry proposed rule were based on the this proceeding contains several participated in the hearing and their material as it is initially applied. In submissions from FRA, as well as comments will be discussed in more other words, FRA proposed to require comments from members of the public, detail below. specific color, type, size, and placement local and state governments, reflective requirements in order to ensure that C. The Proposed Rule material manufacturing and supply sufficient reflectivity would be retained companies, members of the railroad Generally, the proposed rule required over time, despite the harsh railroad industry, and the regulated community. that all freight cars and locomotives that operating environment. Comments submitted in response to the operate over a public or private highway Although, as proposed, the specific NPRM will be discussed in more detail rail grade crossing in the United States amount and placement of retroreflective below. in revenue or work train service be sheeting the rule would require on Because FRA’s research concluded equipped with retroreflective sheeting various types of freight rolling stock that reflectorization could enhance rail on both sides. The proposed rule depended on the size of the freight car car visibility, FRA conducted a contemplated that conforming or locomotive, as well as the car type, preliminary cost-benefit analysis retroreflective sheeting would be the proposed rule generally required a (‘‘Preliminary Analysis’’) to determine applied to freight cars on a fleet basis so vertical pattern of retoreflective material whether reflectorization would provide that each segment of the freight car fleet in 4x36 inch (one square foot) and 4x18 a cost effective method of reducing the would be brought into compliance inch (one-half a square foot) strips along number of collisions at highway-rail within ten years, and each segment of the entire side of freight cars and grade crossings and the casualties and the locomotive fleet would be brought locomotives, with strips of sheeting to property damages which result from into compliance within five years. To be located as close to each end of the car those collisions. The Preliminary ensure the most efficient and cost- as practicable and at equidistant Analysis concluded that the benefits of effective implementation of the rule, intervals of not more than 10 feet. In

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other words, the proposed rule required Association of County Engineers. organizations and businesses involved four square feet of retroreflective Several of these commenters also in the trucking industry. Most of these material on each side of the typical 50- provided verbal testimony at the commenters pointed to the prevalence foot freight car, and for cars longer than January 2004 hearing and a few of unlighted, passively protected 50 feet, one additional square foot of additional organizations (the American highway-rail grade crossings in rural material for each additional ten feet in Railway Car Institute (ARC) and communities and the particular length. With certain exceptions, the Wheeler Decal Corporation) also vulnerability of these types of crossings proposed rule generally required that participated in the hearing. The to RIT accidents. These commenters retroreflective sheeting be applied as following discussion provides an also noted the success of reflectorization close as practicable to 42 inches above overview of the written and verbal in the trucking industry, and some of the top of the rail to minimize the comments FRA received in response to them recommended a more aggressive degradation of the material due to dirt the NPRM. More detailed discussions of implementation schedule than the 10- and grime accumulation. FRA proposed specific comments and how FRA has year period FRA proposed for the to require the placement of at least one chosen to address these comments in reflectorization of freight cars. reflector every 10 feet, because roadway the final rule can be found in the A few railroad industry participants lanes in the United States are typically relevant Section-by-Section analysis expressed more reserved support for 10 to 12 feet wide; thus, applying portion of this preamble. FRA’s overall goal of increasing rail car retroreflective sheeting at least every ten The majority of comments submitted visibility by requiring retroeflective feet along the sides of freight cars were in favor of reflectorization. Several markings on the sides of rail cars, but increased the likelihood of at least one individual members of the public these commenters, including CP and reflector being in the sight path of an voiced strong support for a nationwide TTX, raised important practical approaching motorist. The relatively reflectorization program. For example, considerations related to the large-sized reflectors of 4x18 inches and one commenter submitted a February implementation of a nationwide rail car 4x36 inches (one-half square foot and 2004 newspaper article which described reflectorization program (e.g., a feasible one square foot, respectively) were an accident in which a man was killed schedule for the application of reflectors proposed to minimize the degradation when he drove directly into the side of to rail cars, reflector maintenance rate of individual strips of a train occupying a grade crossing in his requirements, a viable standard pattern retroreflective sheeting. lane of travel. Apparently, the driver did of application of retroreflective material Recognizing that the conspicuity not see the train at all, as witnesses at to various car types, and the treatment issues surrounding locomotives differ the scene reported that he did not even of cars already equipped with reflective from the issues surrounding freight cars, apply his vehicle’s brakes before material pursuant to existing voluntary the proposed rule provided a more striking the train. Other commenters rail car reflectorization programs). Other flexible approach to the reflectorization related stories of personal tragedy in members of the railroad industry, of locomotives, specifying only that a which loved ones were killed as a result including AAR, NAFCA, and RSI, minimum amount of retroreflective of accidents involving motor vehicles expressed their opposition to a Federal material (corresponding to the amount running into trains occupying grade requirement to reflectorize freight of material required on similarly-sized crossings. One commenter wrote of her rolling stock citing cost concerns and freight cars) was to be equally father who ran into the side of a grain concerns similar to those expressed by distributed between both sides of train occupying a crossing. This CP and TTX regarding the practicalities locomotives in a pattern recognizable to commenter explained that other drivers of implementing such a program. In motorists. who witnessed the crash reported that addition, AAR, as the organization that they did not see the train, and that if it sets uniform interchange rules on behalf D. Discussion of Comments was not for the loud crash of her father’s of the railroad industry, submitted a FRA received approximately 40 car, they too would have run into the proposed industry standard for written comments in response to the train. Another commenter wrote of her reflective markings. In its comments, NPRM, including comments from 16-year old son who, in late 2003, was AAR indicated that it developed this members of the railroad industry, trade killed early one evening when the car he proposed industry standard in organizations, local governments, was riding in ran into the side of a train conjunction with private car owners and reflective material manufacturing and occupying a grade crossing. FRA freight car builders. Although FRA supply companies, a manufacturer of a remains deeply sympathetic for the appreciates the efforts of AAR and the photo luminescent material, as well as losses suffered by these commenters. As other industry members who developed members of the general public. explained in the NPRM, the goal of this the proposed industry standard in Specifically, comments were received rulemaking is to reduce the number of response to the NPRM, because the from the following organizations: The such tragedies by reducing RIT proposed standard does not meet the Association of American Railroads accidents. In doing so, the law requires minimum performance requirements (AAR), the Railway Supply Institute, that Federal regulations be based on an FRA has determined are necessary for Inc. (RSI), the North America Freight analysis of all relevant evidence and an effective freight rolling stock Car Association (NAFCA), Canadian data. Accordingly, this preamble focuses reflectorization program, FRA is unable National Railway Company (CN), 3M, on the technical and economic aspects to adopt the standard as currently Avery Dennison, TTX Company (TTX), of rail car reflectorization. FRA, written. However, FRA encourages AAR the American Petroleum Institute (API), however, has paid careful attention to to continue to work with the industry to Selecto-Flash, Inc., Canadian Pacific the advice of those whose tragic modify the proposed industry standard Railway Company (CP), Railway personal experiences have led them to to comply with the requirements of this Technology Consulting Associates, the support a nationwide rail car final rule. American Association of Private reflectorization program. A few railroad industry commenters Railroad Car Owners, Inc. (AAPRCO), Other commenters expressing support also expressed concern regarding the the American Trucking Association, for a nationwide freight car inspection and maintenance Truckload Carriers Association, Availvs reflectorization program included local requirements of proposed § 224.109. Corporation, and the National and state governments, as well as Specifically, commenters expressed

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concern regarding FRA’s proposed 20 accordingly the proposed rule exceeded high incident crossings, make percent maintenance threshold, and the Congress’s direction to FRA. FRA notes, improvements to those crossings, or use of the undefined term ‘‘damaged’’ however, that section 20148 was work to close those crossings. RSI demonstrating when maintenance enacted in 1994, in the midst of FRA’s expressed the view that installation of would be required. Additionally, reflectorizaton research program, but grade crossing warning devices, commenters expressed concern before FRA had reached any additional street lighting at crossings, or regarding when and where maintenance conclusions as to the potential efficacy adding stop signs at little used crossings of reflective material would take place of a federal rail car reflectorization (all crossing improvements that could under the proposed rule, and a few of program. Congress’s clear intent in be made with Section 130 funds) would these commenters questioned the enacting section 20148 was that after provide increased levels of safety.3 efficacy and practicality of FRA’s reviewing the issue of potential Further, RSI asserted that equipping proposal to require the replacement of enhanced visibility standards for freight cars with reflectorized tape will retroreflective material on rail cars every railroad cars (specifically the potential not stop drivers from entering highway- 10 years. use of reflective materials), FRA follow rail grade crossings. Although the majority of comments through by, at a minimum, requiring FRA agrees with RSI that the FRA received in response to the NPRM application of reflectors to new and installation of warning devices, addressed issues related to the remanufactured equipment if that was installation of additional illumination reflectorization of freight cars, a few found to be cost-effective. Further, prior and warning signs at crossings, and railroad industry participants expressed to the enactment of section 20148, FRA even the closing of certain crossings, are concern regarding FRA’s proposed had the authority and the responsibility highly effective grade crossing safety requirements applicable to locomotives. to issue standards, as necessary, improvements. As explained in the For example, AAR suggested that given covering all areas of railroad safety (49 NPRM, FRA recognizes the existence of the conspicuity issues surrounding U.S.C. 20103); and nothing in the 1994 numerous methods other than locomotives and the fact that most enactment narrowed that authority. reflectorization for reducing the locomotives are already reflectorized Accordingly, FRA is proceeding in occurrences of RIT accidents (e.g., the with company names and logos, FRA accordance with its preexisting elimination of highway-rail grade should not specify a specific pattern of authority to address public safety. FRA crossings, installation and upgrading of application of reflective material on is confident that it is acting in a manner crossing traffic control and warning locomotives. AAR also expressed consistent with Congressional guidance. devices, crossing illumination, audible concern regarding FRA’s proposed FRA also notes that limiting this final train warning devices, crossbuck schedule for the reflectorization of rule to the narrow scope of the 1994 reflectorization). FRA believes that each locomotives and, along with CN, mandate would fall far short of the of these methods, used alone and in suggested that the locomotive purpose underlying the policy concern combination, is a viable method for grandfathering provision of proposed on which the mandate was based. mitigating collision risk at highway-rail § 224.107(b)(3) was too narrow. Because rail cars may remain in service grade crossings. FRA notes, however, AAR also expressed the view that for four or even five decades, while the that local opposition to closing FRA’s proposed rule exceeded most optimistic estimates of the product crossings and the associated expenses Congress’s direction in 49 U.S.C. 20148. life of current retroreflective materials with constructing grade separations or First, AAR asserted that Congress are less than two decades, to reflectorize other alternatives to crossings often envisioned the issuance of a only new rail equipment and to have render these methods impractical, if not reflectorization requirement only if the not even minimal maintenance impossible. In addition, the expenses requirement were cost-effective. FRA standards, would not achieve the associated with installing crossing agrees with this assertion, and notes enhanced visibility of rail cars Congress warning devices or upgrading existing that, as detailed in the NPRM, the contemplated in section 20148. FRA has devices often render these solutions cost proposed rule was based on a adopted a strategy that addresses the prohibitive. Accordingly, FRA Preliminary Analysis of costs and safety need underscored by Congress continues to believe that the benefits that demonstrated that the without unduly burdening the industry reflectorization of freight rolling stock is benefits of a nationwide rail equipment with the principal concerns that have an additional, feasible, and cost- reflectorization program would far been raised in the past with respect to effective tool for reducing and outweigh the costs of such a program. mitigating grade crossing accidents that See 66 FR 54326 or Document No. FRA– a federal regulation requiring rail car provides unique safety benefits not 1999–6689–25 in the docket of this reflectorization (e.g., requirement for obtainable with other grade crossing proceeding. Taking into consideration washing of reflectors, concerns over warning devices and safety measures. comments received in response to the increased liability). RSI, an international trade association For example, traffic control devices, NPRM and the Preliminary Analysis, of the rail supply industry, expressed whether active (e.g., flashing lights and FRA has conducted a final Regulatory the opinion that there are better gates at crossings) or passive (e.g., signs Analysis of this final rule and has again concluded that the benefits to be gained alternatives to improving safety at and pavements markings), only provide from implementation of the final rule far highway-rail grade crossings than a warning to the motorist that a train outweigh the costs of implementing the mandating the reflectorizing of freight may be present. The signal delivered by rule. A more detailed discussion of rolling stock. In particular, RSI reflective material on the sides of rail FRA’s Regulatory Evaluation is found in recommended that FRA work with the cars is clear and indicates to the Regulatory Impact and Notices railroad industry, the Federal Highway approaching motorists the actual Administration, and the States, through presence and current movement of a Section below. 2 AAR also asserted that Congress did the Section 130 program, to identify train in or through a crossing. not contemplate either a retrofit 2 ‘‘Section 130 program’’ refers to the program 3 It is important to note, however, that Section requirement (except in the case of authorized by 23 U.S.C. 130 which provides States 130 funds can only be spent on public grade rebuilt freight cars) or an ongoing with Federal funding to eliminate hazards at public crossing improvements. The funds are not available maintenance requirement, and highway-rail grade crossings. for private rail crossings. See 23 U.S.C. 130.

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FRA recognizes, as did one stock owners and railroads to apply installation that is not part of the commenter in comments submitted to retroreflective material to freight rolling general railroad system of the docket prior to publication of the stock, and to periodically inspect and transportation, (2) rapid transit NPRM, that reflectorization is only a maintain that material in order to operations within an urban area that are partial solution. This commenter achieve cost-effective mitigation of not connected to the general system of recognized the limits of any program collision risk at highway-rail grade transportation, and (3) locomotives or designed to enhance the visibility of crossings. Paragraph (c) explains that passenger cars used exclusively in trains, including reflectorization, and the rule establishes a schedule for the passenger service. explained that ‘‘[t]he most visible train application of retroreflective material to As explained in the preamble to the is only as safe as the motor vehicle rail freight rolling stock and prescribes NPRM, FRA recognizes that both public driver who encounters it.’’ FRA strongly standards for the application, and private grade crossings may be agrees with this statement and inspection, and maintenance of found on plant railroads and freight recognizes that reflectorization will retroreflective material to rail freight railroads that are not part of the general provide only a partial solution to the rolling stock for the purpose of railroad system of transportation. safety issues surrounding highway-rail enhancing its detectability at highway- Because these operations typically grade crossings. FRA recognizes, and rail grade crossings. involve low speed vehicular traffic and feels it worthy of emphasis (as we did Although FRA believes that this the rail operations themselves are in the NPRM), that nothing in this final section as proposed in the NPRM made typically low speed with a small rule relieves motorists from the clear the agency’s intent for the rule to number of rail cars permitting relatively responsibility to be alert at highway-rail encompass the entire subject matter of short stopping distances, it is not clear grade crossings and use due diligence in freight car reflectorization and that that reflectorization would be helpful in operating motor vehicles safely, even additional duties related to these areas. These reasons, together with during times of limited visibility. reflectorization of freight rolling stock FRA’s historical basis for not making its The remaining comments submitted (e.g., cleaning of the material) could not regulations applicable to plant and non- by various members of the railroad be imposed on freight rolling stock general-system freight railroads, have industry reflected a near consensus on owners, the AAR expressed concern in led FRA to exclude such plant and three general issues. First, commenters its comments that ‘‘there could be private railroads from this rule. FRA expressed the view that white, not confusion later as to whether railroads does, of course, retain the statutory right yellow, was the best color choice for or private car owners are obliged to to assert jurisdiction in this area and retroreflective material on the sides of clean dirt and grime from freight cars.’’ will do so if circumstances warrant. rail cars. Second, commenters expressed Accordingly, in this final rule, FRA has As proposed in the NPRM and the view that FRA’s proposed vertical revised paragraph (b) of this section to adopted in this final rule, paragraph (c) pattern of retroreflective sheeting on the specifically state that not only are provides that the rule will not apply to sides of freight cars was impracticable, freight rolling stock owners under no locomotives and passenger cars used and that a more flexible approach was duty to ‘‘install, maintain, or repair ‘‘exclusively’’ in passenger service. FRA necessary. Third, commenters expressed reflective material,’’ except as required decided to exclude locomotives and the view that the installation of by the rule, but freight rolling stock passenger cars used exclusively in retroreflective material on rail cars owners are also under no duty to clean passenger service from this rule because the conspicuity issues attendant to pursuant to the rule should not be tied the material. For further discussion of passenger service are significantly to the single car air brake test. These dirt and grime on cars, please refer to different from those of freight service. comments are discussed below in the discussion of the term ‘‘obscured’’ in For example, the highway-rail grade connection with the applicable § 224.5. As explained in the preamble to the crossings through which passenger provisions of the final rule. NPRM, this final rule will not restrict trains operate are typically better Section-by-Section Analysis freight rolling stock owners from protected than crossings used applying retroreflective material to exclusively in freight service, many Section 224.1 Purpose and Scope freight rolling stock on an accelerated passenger cars have bright stainless steel This section contains a formal schedule, nor will this rule restrict exteriors or are painted contrasting light statement of the final rule’s purpose and freight rolling stock owners from colors and are maintained in a much scope. As explained in the preamble to applying additional retroreflective cleaner condition than freight cars, and the NPRM, FRA intends that this rule material. As also explained in the passenger cars typically have inside cover all aspects of reflectorization of NPRM, freight rolling stock owners, lights which are visible through side freight rolling stock, including but not however, are under no duty to install, windows that run the entire length of limited to, the size, color, placement, maintain, or repair reflective material the cars. Although this final rule does and performance standards of the except as specified in this rule. not require the application of reflective retroreflective material, as well as the material to locomotives and passenger schedule for the application, inspection, Section 224.3 Applicability cars used exclusively in passenger and maintenance of the material. This section, which has not changed service, FRA may do so in a future Paragraph (a) states that the final rule from that proposed in the NPRM, rulemaking if it proves a cost-effective is intended to reduce highway-rail grade establishes that this final rule applies, method of mitigating collision risk at crossing accidents, deaths, injuries, and with certain exceptions, to all freight highway-rail grade crossings. property damage resulting from those cars and locomotives that operate over One commenter, AAPRCO, expressed accidents by enhancing the conspicuity a public or private highway-rail grade concern regarding the word of rail freight rolling stock in order to crossing and are used for revenue or ‘‘exclusively’’ in paragraph (c). increase its detectability by motor work train service. This section AAPRCO explained that its members are vehicle operators at night and under specifically excludes certain operations owners of privately owned passenger conditions of poor visibility. Paragraph and equipment from the rule. These cars and vintage locomotives, which (b) explains that the final rule include: (1) Freight railroads that generally run on Amtrak in passenger establishes the duties of freight rolling operate only on track inside an service. AAPRCO further explained,

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however, that these cars are also new term, ‘‘unqualified retroreflective or hidden to the point where all occasionally moved in freight service; sheeting,’’ which is used in § 224.107 of incoming light is blocked. typically dead-head moves to a new this final rule. As explained in the NPRM, the location or to another carrier where the First, the definition of ‘‘flat car’’ has definition of ‘‘obscured’’ was intended cars may again be used in passenger been modified to make it clear that to reflect FRA’s understanding that the service, or a switching move from one spine cars, articulated, and multi-unit harsh railroad operating environment passenger carrier to a storage location. intermodal cars are included within this inevitably results in dirt accumulating AAPRCO expressed concern that the definition. on the sides of freight rolling stock. The term ‘‘exclusively’’ in paragraph (c) of Second, the definition of ‘‘freight standards for retroreflective material set this section would cause the rule to rolling stock owner’’ has been modified forth in this final rule take into account apply to these cars and locomotives slightly to make it clear that the term is this ordinary accumulation. For when they are occasionally moved in intended to refer to not only lessors of example, FRA understands that the freight service. Further, AAPRCO freight rolling stock, but to lessees of sides of coal cars will accumulate coal explained that they do not believe ‘‘that freight rolling stock as well. As dust and other dirt over time due to the FRA intends for such moves to convert explained in the NPRM, FRA recognizes nature of normal railroad operations. An a passenger car or locomotive into that the majority of domestically-owned accumulation of coal dust or other dirt, freight rolling stock’’ for purposes of the freight cars are privately owned. even if it significantly darkens and rule. AAPRCO is correct. FRA does not Because private freight car owners often dirties the retroreflective material, will intend that these types of moves would contract with others to maintain their not cause the material to be ‘‘obscured’’ convert the equipment into freight cars and may not even see their cars on for purposes of this rule. The standards rolling stock subject to the rule. a regular basis, this definition proposed in this rule account for the However, FRA believes § 224.3, as contemplates that anyone who controls effects of accumulations of dirt and proposed, is clear in this regard. Section the maintenance or use of freight cars by grime inherent in the railroad operating 224.3 states that, with certain contractual agreements or otherwise, environment, the aging of the reflective material, and other adverse effects of the exceptions, the rule applies to ‘‘railroad will also be responsible for compliance operating environment (e.g., harsh freight cars and locomotives that operate with this part in conjunction with the weather conditions). FRA believes that over a * * * grade crossing and are actual owners of the cars. used for revenue or work train service.’’ reflective material meeting the Third, the definition of the term As proposed in the NPRM and adopted requirements of this rule when initially ‘‘obscured’’ has been modified slightly in this final rule, ‘‘railroad freight car’’ applied will still provide adequate for clarity in response to a commenter’s is defined consistent with 49 CFR 215.5, reflectivity throughout the express concern. ‘‘Obscured’’ was which provides that a railroad freight manufacturers’ stated useful life despite defined in the NPRM to mean car is ‘‘a car designed to carry freight, inevitable accumulations of dirt. ‘‘concealed or hidden (i.e., covered up, or railroad personnel, by rail,’’ Fourth, the definition of ‘‘work train’’ as where a layer of paint or dense including, for example, box cars, has been revised to make it clear that chemical residue blocks incoming gondola cars, or tank cars. The the term, for purposes of this rule, refers passenger cars described by AAPRCO light).’’ Specifically excluded from the to non-revenue generating trains used in would not fall within the rule’s proposed definition were ordinary the maintenance and upkeep of the definition of ‘‘railroad freight car’’ and accumulations of dirt, grime, or ice railroad. accordingly, would not be subject to the resulting from the normal railroad In its comments to the NPRM, AAR rule’s requirements. Further, as operating environment. One commenter, noted that the term ‘‘damaged’’ was not proposed in the NPRM and adopted in NAFCA, pointed out an incongruity defined and, therefore, it was unclear this final rule, ‘‘locomotive’’ is generally between FRA’s proposed definition of what FRA meant by the term in defined consistent with 49 CFR 229.5, the term ‘‘obscured’’ in the text of the proposed § 224.109. NAFCA similarly but specifically limited to locomotives proposed rule and FRA’s explanation of noted that the term ‘‘damaged’’ in the used in the transportation of freight or the term in the preamble. Specifically, proposed rule was undefined and, thus, the operation of a work train. in the preamble to the NPRM, FRA ‘‘highly subjective.’’ Accordingly, both Accordingly, unless an AAPRCO explained that the term ‘‘obscured’’ was NAFCA and AAR suggested that FRA member’s locomotive is pulling freight intended to refer to situations where delete the term ‘‘damaged’’ from the or providing power to a work train, their ‘‘retroreflective material is covered with inspection standards of § 224.109. FRA locomotives will not be subject to this paint (e.g., graffiti), a dense chemical agrees that the undefined term rule. residue (e.g., product spilled from a tank ‘‘damaged’’ in the proposed rule needed car), or any other foreign substance, clarification. Accordingly, in this final Section 224.5 Definitions other than dirt or grime, which rule, FRA has included a definition for This section defines various terms, effectively blocks all incoming light.’’ 68 the term ‘‘damaged.’’ Section 224.104 which for purposes of this rulemaking, FR 62952 (emphasis added). In its defines ‘‘damaged’’ to mean ‘‘scratched, have very specific meanings. This final comments, NAFCA expressed the view broken, chipped, peeled, or rule retains each of the definitions that ‘‘[t]he test for replacement should delaminated.’’ This definition is proposed in the NPRM, with minor be as objective as possible, and intended to be consistent with the term revisions to three of the proposed ultimately should turn on whether the ‘‘obscured,’’ but recognizes the physical definitions (‘‘flat car,’’ ‘‘obscured,’’ and strip is in a condition that ‘effectively reality that retroreflective sheeting ‘‘work train’’). In addition, FRA has blocks all incoming light’, a test used by could be damaged to the extent that it added two definitions to those proposed FRA to explain the purpose of the is no longer effective, but still not be in order to clarify requirements of this definition of ‘obscured’.’’ FRA agrees ‘‘obscured’’ as defined in this rule. final rule. First, in response to several with this comment and accordingly, in FRA has added one additional new commenters’ concerns regarding the this final rule, we have revised the term: ‘‘unqualified retroreflective term ‘‘damaged’’ in proposed section definition of ‘‘obscured’’ to reflect that sheeting.’’ In this final rule ‘‘unqualified 224.109, FRA has added a definition of in order for material to be ‘‘obscured’’ retroreflective sheeting’’ is defined as that term. Second, FRA has defined a under this rule, it has to be concealed ‘‘engineering grade sheeting, super

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engineering grade sheeting (enclosed use of these definitions (i.e., whether the duties in the same manner as the lens), or high intensity type sheeting proposed definitions were adequate to manufacturer. (ASTM Type I, II, III, or IV Sheeting) as identify car types for purposes of the Paragraph (b) states that any person described in ASTM International rule or whether commenters had other performing any function or task Standard D 4956–01a, Standard definitions that they would prefer). required by this part will be deemed to Specification for Retroreflective Because FRA received no comments in have consented to FRA inspection of the Sheeting for Traffic Control. A more response to this request, FRA has person’s facilities and records to the detailed discussion of this new term can adopted the definitions substantially as extent necessary to ensure that the be found in the analysis of § 224.107 proposed. function or task is being performed in below. accordance with the requirements of As defined in the NPRM, ‘‘freight Section 224.7 Waivers this part. This provision is intended to rolling stock’’ means any locomotive This section, which has not changed put freight rolling stock owners, subject to 49 CFR part 229 used to haul from that proposed in the NPRM, railroads, manufacturers, and or switch freight cars in revenue or work explains the process for requesting a contractors, performing functions or train service and any railroad freight car waiver from a provision of this rule. tasks required by this part, on notice subject to 49 CFR part 215, including a Requests for such waivers may be filed that they are consenting to FRA’s car stenciled MW pursuant to § 215.305. by any party affected by the final rule. inspection for rail safety purposes of FRA specifically requested comments as In reviewing such requests, FRA that portion of their facilities and to what other types of rail equipment conducts investigations to determine if records relevant to the function or task (other than locomotives subject to 49 a deviation from the general regulatory required by this part. Pursuant to 49 CFR part 229) are used to haul freight criteria is in the public interest and is U.S.C. 20107, FRA has the statutory cars and the feasibility of reflectorizing consistent with railroad safety. The authority to inspect any facilities and such equipment. FRA also specifically rules governing the FRA waiver process relevant records pertaining to the requested comments as to the utility and are found in 49 CFR part 211. performance of functions or tasks feasibility of equipping specialized Section 224.9 Responsibility for required under this part, and this maintenance of way equipment with compliance provision is merely intended to make reflective material. Although FRA that authority clear to all persons received no comments in response to This section, which has not changed performing such tasks or functions. the first question regarding other types from that proposed in the NPRM, Section 224.11 Penalties of rail equipment used to haul freight contains the general compliance cars, the AAR responded to FRA’s requirements. Paragraph (a) states that This section identifies the penalties second question regarding the utility of freight rolling stock owners (as defined that FRA may impose upon any person equipping specialized maintenance of in § 224.5), railroads, and (with respect who violates any requirement of this way equipment with reflective material. to certification of material) part. These penalties are authorized by AAR responded by saying that manufacturers of retroreflective 49 U.S.C. 21301, 21302, and 21304. The specialized maintenance of way material, are primarily responsible for penalty provision parallels penalty vehicles should not be subject to any compliance with the rule. The provisions included in numerous other reflectorization rule. Specifically, AAR responsibility of manufacturers is safety regulations issued by FRA and noted that none of the approximately discussed in more detail in the analysis has been adopted in this final rule 700 collisions in the accident pool of § 224.103(a) below. substantially as proposed. As explained identified in FRA’s Regulatory Paragraph (a) also clarifies FRA’s in the NPRM, essentially, any person Evaluation involved specialized position that the requirements who violates any requirement of this maintenance of way equipment and that contained in the rule are applicable to part or causes the violation of any such trains with maintenance of way cars any ‘‘person’’ (as defined in the rule) requirement will be subject to a civil typically consist of only a few units. that performs any function or task penalty. As also explained in the NPRM, Thus, AAR reasoned that FRA’s stated required by the proposed rule. Although civil penalties may be assessed against safety justification for proposing to various sections of the rule address the individuals only for willful violations require reflective material on freight duties of freight rolling stock owners, and each day a violation continues will rolling stock (i.e., reducing the number railroads, and manufacturers of constitute a separate offense. As and severity of grade crossing accidents retroreflective material, FRA intends proposed in the NPRM, the minimum where motor vehicles run into trains that any person who performs any civil penalty was $500 per violation, after the first two units of the consist) action on behalf of any of these parties and the maximum civil penalty for a was inapplicable to specialized or any person who performs any action grossly negligent violation or a pattern maintenance of way vehicles. FRA covered by the rule is required to of repeated violations that creates an agrees with AAR’s rationale in this perform that action in the same manner imminent hazard of death or injury to regard, and accordingly we have as required of the freight rolling stock persons, or causes death or injury, was retained the definition of freight rolling owner, railroad, or manufacturer, or be $22,000. Since the date of publication of stock as proposed. subject to FRA enforcement action. For the NPRM, however, to comply with the In order to ensure that the example, employees or agents of freight Federal Civil Penalties Inflation requirements of this part would be rolling stock owners, or railroad Adjustment Act of 1990 (Pub. L. 101– practicable for each type of freight car contractors who perform duties covered 410) (28 U.S.C. 2461, note) and the Debt to which they would apply, FRA by this final rule would be required to Collection Improvement Act of 1996 proposed definitions in the NPRM for perform those duties in the same (Pub. L. 103–134, 110 Stat. 1321–373), ‘‘railroad freight car,’’ ‘‘flat car,’’ and manner as required of a freight rolling FRA has adjusted the minimum and ‘‘tank car’’ and then proposed specific stock owner or railroad. Likewise, maximum civil penalties applicable to patterns of reflector markings for each employees or agents of manufacturers of each of the agency’s regulations to $550 type of car based on the typical physical retroreflective sheeting being and $27,000, respectively. 69 FR 30591 configuration of each car type. FRA manufactured pursuant to this part (May 28, 2004). Accordingly, this final specifically requested comments on the would be required to perform those rule incorporates these revised

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minimum and maximum penalty Co. v. Shanklin, 529 U.S. 344 (2000). FRA approval of alternative standards amounts. Furthermore, a person may be The Court has further held that Federal under § 224.103(e). Although FRA subject to criminal penalties under 49 regulations under the Federal Railroad received no written comments in direct U.S.C. 21311 for knowingly and Safety Act will preempt common law response to proposed § 224.15, at the willfully falsifying reports required by where the regulations ‘‘substantially January 2004 hearing one commenter, these regulations.4 FRA believes that the subsume’’ the subject matter of the an association of industry participants inclusion of penalty provisions for relevant State law. Easterwood, 507 U.S. (particularly car builders), expressed the failure to comply with the regulations is at 664. view that the proposed rule’s ‘‘special important in ensuring that compliance As is evident in the language of approval procedures’’ were too is achieved. This final rule includes a § 224.1 as proposed and as incorporated ‘‘cumbersome and lengthy.’’ This schedule of civil penalties as Appendix in this final rule, FRA intends this final commenter further stated that ‘‘[a] A to this part. Because the penalty rule to cover the subject matter of negative determination could prevent a schedule is a statement of agency standards for the use of retroreflective car design from being built. If we can’t policy, notice and comment was not materials on freight rolling stock and the apply the markers the way the rule required prior to its issuance. See 5 specific duties of freight rolling stock requires, we may not be able to build U.S.C. 553(b)(3)(A). owners in this regard. FRA intends this the car.’’ (Hearing transcript, pp. 65–66). part to preempt any State law, rule, or Section 224.13 Preemptive Effect This commenter, however, appears to regulation, or common law theory of have misconstrued the intent of This section, which has not changed liability that might attempt to impose a § 224.15. As explained in the preamble from that proposed in the NPRM, duty on freight rolling stock owners to the NPRM, FRA anticipates informs the public as to FRA’s intention pertaining to the reflectorization of continued technological improvements regarding the preemptive effect of the freight rolling stock that is not and product advances in the field of final rule. While the presence or specifically set forth in this part. For reflective and luminescent materials. absence of such a section does not example, FRA intends to preempt any Accordingly, FRA intends this section conclusively establish the preemptive State law or common law theory of to provide a relatively quick approval effect of a final rule, it informs the liability which might attempt to impose process to allow the incorporation of public concerning the statutory a duty on freight rolling stock owners to new technology into the standards of provisions which govern the preemptive apply additional retroreflective material this part, thereby making the technology effect of the rule and FRA’s intentions other than that specified in this part, to available to all car owners and railroads concerning preemption. apply retroreflective material on a while maintaining the same level of This section points out that the different schedule than that specified in safety originally contemplated. FRA preemptive effect of this rule is this part, or to inspect or maintain does not intend that this section provide governed by 49 U.S.C. 20106 (‘‘section retroreflective material on a more a procedure for the approval of 20106’’). Section 20106 provides that all frequent basis than that specified in this alternative reflectorization patterns. regulations prescribed by the Secretary part. Inference of any duties not Although FRA believes that the relating to railroad safety preempt any specifically set forth in this part may reflectorization patterns set forth in this State law, regulation, or order covering cause the costs of the rule to outweigh final rule are flexible enough to ensure the same subject matter, except a the safety benefits of the rule in direct that reflectors can be applied to almost provision necessary to eliminate or conflict with the Congressional mandate any freight car or locomotive type, reduce an essentially local safety hazard of 49 U.S.C. 20148 (requiring that FRA should it be necessary for a freight that is not incompatible with a Federal initiate a rulemaking proceeding rolling stock owner to apply law, regulation, or order, and that does prescribing regulations requiring retroreflective material in a pattern that not unreasonably burden interstate enhanced visibility standards for does not conform with the requirements commerce. With the exception of a railroad cars if such regulations would of this final rule, pursuant to § 224.7 of provision directed at an essentially local likely improve safety in a cost-effective this final rule, the owner may file for a safety hazard that is not inconsistent manner). waiver from the requirements of with a Federal law, regulation, or order, In response to the NPRM, RSI § 224.106. The waiver process is and that does not unreasonably burden specifically requested that FRA discussed in more detail in the analysis interstate commerce, section 20106 will expressly state in the preamble to the of § 224.7 above. preempt any State or local law or final rule that FRA could not envision regulatory agency rule covering the any set of circumstances where an Another commenter specifically same subject matter as this final rule. additional State requirement could be requested that the proposed rule be The Supreme Court has consistently justified under the local hazard modified to be ‘‘technologically neutral’’ interpreted section 20106 to confer on exception contained in section 20106. and be a performance standard that does the Secretary the power to preempt not Although FRA cannot envision any set not discriminate based on the specific only State statutes, but State common of circumstances where an additional technology employed. This commenter, law as well. See CSX Transp. v. State requirement could be justified Availvs Corporation, a manufacturer of Easterwood, 507 U.S. 658, 664 (1993) under the local hazard exception, FRA photo luminescent material, asserted (‘‘[L]egal duties imposed on railroads by cannot anticipate every possible factual that its ‘‘state-of-the-art photo the common law fall within the scope scenario that could exist. Also, it is luminescent material * * * works as of [the] broad phrases’’ of section important to note that although FRA can well as, or better than, any 20106.). See also Norfolk Southern Ry. express its intention regarding retroreflective material’’ in enhancing preemption, the courts will make the the visibility of rail equipment. Availvs 4 FRA notes that the criminal penalty provision final determination of preemption. noted that the company has previously was inadvertently omitted from § 224.11 of the demonstrated its product to FRA and proposed rule. However, FRA has corrected this Section 224.15 Special Approval that in 2003 the product was error and has incorporated the criminal penalty Procedures provision into this final rule, consistent with its ‘‘satisfactorily tested’’ by the American statutory authority and the penalty provisions of This section contains the procedures Society for Testing and Materials. FRA’s other existing safety regulations. to be followed when seeking to obtain Because FRA does not currently have

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enough data to determine whether motorist in estimating the distance he or individual cells that are cut open along Availvs’s product would meet the same she is from the train, and (5) aid the the edge of a piece of sheeting could be performance standards contemplated in motorist in estimating the speed and affected by water penetration.’’ Further, this final rule, FRA cannot revise the direction of the train’s motion. FRA 3M explained that the open, exposed proposed rule to provide for the use of believes that the retroreflective sheeting edge of the sheeting does not affect the material other than the specified required in this subpart B, applied and durability or performance of the retroreflective material. However, FRA inspected in conformance with this part, sheeting as a whole and that air encourages Availvs to take advantage of effectively achieves these objectives. encapsulated sheeting (i.e., sheeting with exposed cut edges) is routinely the special approval process of § 224.15 Section 224.103 Characteristics of used on traffic signs and vehicles to provide FRA the opportunity to Retroreflective Sheeting determine whether Availvs’s product without edge sealing and is warranted would provide at least an equivalent This section sets forth the for up to 12 years. Although 3M level of safety as the retroreflective construction, color, and performance acknowledged that historically, many material mandated in this final rule. standards for the retroreflective sheeting years ago, edge sealing was sometimes FRA believes the procedures set forth required by § 224.101. As was proposed used, 3M indicated that given the in § 224.15 will speed the process for in the NPRM, paragraph (a) of this current construction and durability of taking advantage of new technologies section in the final rule states that retroreflective material, it is no longer over that which is currently available retroreflective sheeting must be necessary, and accordingly, the through the waiver process. However, in constructed of a smooth, flat, company no longer manufactures, order to provide an opportunity for all transparent exterior film with markets, or recommends edge sealing. interested parties to provide input for microprismatic elements embedded or In light of 3M’s comments and absent use by FRA in its decision making suspended beneath the film so as to conclusive evidence establishing that process, as required by the form a non-exposed retroreflective edge sealing is necessary to maintain the Administrative Procedure Act, 5 U.S.C. optical system. integrity of air encapsulated 553 et seq. (APA), FRA believes that any As proposed in the NPRM, paragraph retroreflective sheeting, in this final rule special approval provision must, at a (a) of this section also required that air FRA is not mandating that air minimum, provide proper notice to the encapsulated sheeting be sealed around encapsulated retroreflective sheeting be public of any significant change or all edges. This proposed requirement edge sealed. As explained in detail in was based on FRA’s understanding that action being considered by the agency the NPRM, the construction, color, and air encapsulated sheeting that is not with regard to the existing regulations. performance standards set forth in this Paragraph (b) sets forth the sealed on all edges allows water to seep rule are designed to ensure that substantive and procedural between the layers of the product and retroreflective material applied pursuant requirements for petitions for special over time, due to the normal railroad to this rule is durable enough to approval of alternative standards; operating environment, this water will withstand the harsh railroad operating paragraphs (c) and (d) provide freeze and expand, causing layers of the environment and maintain sufficient opportunity for notice and public sheeting to peel. One commenter, Avery levels of reflectivity throughout the comment on any petition for special Dennison, a manufacturer of useful life of the material. FRA notes, approval of an alternative standard retroreflective sheeting already in however, that it is the responsibility of received by FRA; and paragraph (e) common use in the railroad industry, the retroreflective material manufacturer describes the process FRA will follow in expressed agreement with FRA’s and the customer to determine the acting on any such petitions. proposal to require edge sealing of air suitability of particular materials for use encapsulated sheeting. Specifically, on rail car sides. FRA recognizes that Subpart B—Application, Inspection, Avery Dennison explained that ‘‘the many freight rolling stock owners and Maintenance of Retroreflective typical welds used to enclose individual already have extensive experience using Material cells are very thin, and inadequate for various types of reflective materials on Section 224.101 General Requirements the demands placed on exposed edges.’’ the sides of their equipment in specific Other commenters, however, including service environments. FRA recognizes This section contains the general 3M, another manufacturer of reflective that these owners understand the harsh requirement that all rail freight rolling materials already commonly used on conditions associated with railroad stock subject to this part be equipped railroad equipment, and the AAR, operations that may affect the with retroreflective sheeting conforming expressed the view that edge sealing performance of the retroreflective to the requirements of this rule and the should not be required on ‘‘enclosed material, particularly the power sheeting be applied, inspected, and lens sheeting.’’ 5 3M explained that washing of equipment or the extensive maintained in accordance with subpart ‘‘[r]etroflective sheeting that exposure of the equipment to various B or in accordance with an alternative incorporates air between laminations harsh chemicals. Accordingly, freight standard approved under § 224.15. As contains internal seals that * * * rolling stock owners electing to apply explained in the preamble to the NPRM, prevent the penetration of water’’ and air encapsulated sheeting conforming to this general requirement reflects FRA’s that ‘‘[o]nly the small portions of the requirements of this rule may wish understanding that motorists need to be to consider specifying that the material given as much visual information as 5 FRA notes that 3M refers specifically to be edge sealed in order to limit possible to correctly decide whether a ‘‘enclosed lens sheeting’’ in its comments. FRA maintenance costs. hazard (e.g., a train) exists in a vehicle’s understands that the term ‘‘enclosed lens sheeting’’ As originally proposed, paragraphs (b) typically refers to ‘‘glass bead’’ type sheeting and path. Specifically, devices intended to FRA notes that no glass bead type sheeting and (c) of this section generally required make a train conspicuous should: (1) currently being manufactured is capable of meeting that the retroreflective sheeting meet the Tell the motorist that something is the photometric performance requirements of FRA’s color and performance requirements, there, (2) tell the motorist that what he proposed specification. However, from the except for the photometric remainder of 3M’s comments specifically referring or she sees is a train, (3) tell the motorist to ‘‘[r]etroreflective sheeting that incorporates air requirements, of the American Society whether the train is on or about to cross between laminations,’’ FRA assumes that 3M is of Testing and Measurements’ (ASTM) a road in the vehicle’s path, (4) aid the referring to air encapsulated sheeting. Standard D 4956–01, Standard

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Specification for Retroreflective sheeting already in use in the railroad saturation) increases. The Helmholtz- Sheeting for Traffic Control.6 Although environment commented that many Kohlrausch effect usually results in a U- FRA has retained these general railroads with existing voluntary shaped function of dominant requirements in this final rule, the reflectorization programs have long wavelength, with the minimum agency has revised both paragraphs (b) been using white material, and the AAR brightness around the dominant and (c) in response to comments indicated that yellow retroreflective wavelength for yellow. Id. received and to ensure clarity. material is more expensive than white Although research relating to the In paragraph (b) of this section, the material. Specifically, AAR indicated Helmholtz-Kohlrausch effect dates back NPRM proposed to require that that 3M informed one of their members to at least 1955, in the late 1990’s retroreflective sheeting applied that yellow material would cost 27% several researchers specifically pursuant to this rule be yellow as more than white. Accordingly, AAR investigated whether the color of specified by the chromaticity expressed the view that it did not make retroreflective material affected the coordinates of ASTM standard D 4956– sense to require car owners to spend materials’ ability to enhance 01. As detailed in the NPRM, FRA more money for less reflectivity. FRA conspicuity. For example, in 1996 two proposed to require yellow agrees with AAR that freight rolling separate research teams performed field retroreflective material because the stock owners should not be required to experiments to evaluate the effect of spectral measurement of the color pay more money for yellow material color on the perception of retroreflective (approximately 550 nm) is within the than white material, but based on materials. One study evaluated the peak sensitivity range of the human information provided to FRA from effect of color on the perceived visual system and accordingly, it is one various retroreflective material ‘‘conspicuity’’ of retroreflective of the most easily detectable colors manufacturers, FRA understands that materials, and another study evaluated under varying ambient light and other the costs to the end-users of both white the effect of color on the perceived environmental conditions (e.g., and yellow retroreflective material are ‘‘brightness’’ of retroreflective material. darkness, fog, haze, etc.). In addition, exactly the same. See James R. Sayer et al., The University the color yellow minimizes the risk of Contrary to the views expressed by of Michigan Transportation Research motorist confusion with the colors of these previous commenters, however, Institute, Effects of Retroreflective other roadway hazards (e.g., red and prior to FRA’s publication of the NPRM, Marking Color on Pedestrian Detection white reflectors on trucks) and is not a 3M submitted comments to the docket Distance, Rpt. No. UMTRI–98–8 (Mar. color prevalent in most background recommending, in part, the use of a 1998) (citing The University of environments. high-contrast colored corner cube Michigan’s 1996 study by Schumann et FRA received a number of comments retroreflective material with a spectral al. and W.H. Venable and W.N. Hale’s suggesting that white, not yellow, was measurement within the peak 1996 study titled Color and nighttime the best color choice for retroreflective sensitivity of the human visual system pedestrian safety markings). A copy of material on the sides of rail cars. (e.g., yellow/green). In these comments, this 1998 study is in the docket of this Generally, commenters expressed the 3M explained that the high-contrast proceeding (Document No. FRA–1999– view that white is ‘‘brighter’’ and more color would aid nighttime visibility. 6689–113). Both the studies cited in the reflective than yellow and therefore As discussed in detail in the NPRM, 1998 study concluded that standard would be the most effective in retroreflective material is rated in terms photometric measurements by increasing the conspicuity of rail cars. of the reflected light per unit area as themselves do not accurately predict the For example, AAR reasoned that ‘‘[i]t contrasted with the light striking it perception of colored retroreflective would seem that reflectivity should be (‘‘specific intensity per unit area’’ or targets, particularly at nighttime, and the criterion since the goal is to alert the ‘‘SIA’’). Although FRA acknowledges that chromatic retroreflective stimuli motorist that there is something ahead that the SIA of white retroreflective were perceived to be brighter than and the most reflective material [white material is greater than that of the photometrically matched achromatic material] would have the greatest yellow material contemplated in the stimuli. chance of achieving that objective.’’ NPRM, research has consistently shown As detailed in the 1996 University of Another commenter, Mr. James R. Nimz, that an object’s perceived brightness is Michigan study, W.H. Venable and W. County Engineer for Seneca County, modified by color information. N. Hale, in their 1996 study performed Ohio, commented that white will Generally, research addressing the a field experiment based on night always appear the brightest of all color effects of the color of retroreflective conspicuity judgments of chromatic groups; accordingly, to maximize the material on the brightness of the versus achromatic markings and effectiveness of the retroreflective material has proven that chromatic calculated a color correction factor (Fc) sheeting, Mr. Nimz recommended the markings (red, orange, yellow, green, as the ratio of the luminance of an use of white material. Selecto-Flash, blue) will appear brighter than achromatic marking (La) to the Inc., another manufacturer of reflective photometrically matched achromatic luminance of any equally conspicuous (white) markings in similar chromatic marking (Lc) (Fc = La/Lc). 6 ASTM has recently revised this standard and environmental conditions. This effect is Their results followed a U-shaped assigned it a new designation of D 4956–01a. known as the Helmholtz-Kohlrausch function expected from the Helmholtz- Although the designation of the standard has changed, no substantive changes were made that effect. Josef Schumann et al., The Kohlrausch effect, with higher would affect the performance of the material as University of Michigan Transportation conspicuity values (i.e., higher color contemplated by this rule. Accordingly, this final Research Institute, Brightness of Colored correction factors (Fc)) for red and blue, rule incorporates the latest version of the standard Retroreflective Materials, Rpt. No. and the lowest value for yellow. (D 4956–01a). Also, FRA notes that ASTM’s full name was changed from ‘‘American Society of UMTRI–96–33 (Nov. 1996) (citing a Venable and Hale then mathematically Testing and Measurements’’ to ‘‘ASTM 1955 study by A. Chapanis and R.M. derived Fc values for each color using International’’ in 2001. FRA, however, erroneously Halsey). A copy of this 1996 study is in two different methods: (1) Calculating Fc referred to ASTM International by its historical the docket of this proceeding (Document as the color difference from black in name, ‘‘American Society of Testing and Measurements’’ in the proposed rule. Accordingly, No. FRA–1999–6689–112). The uniform color space, and (2) calculating § 224.103 of this final rule reflects ASTM’s correct Helmholtz-Kohlrausch effect increases Fc as recommended in ASTM name, ASTM International. as excitation purity (i.e., color International’s Standard E–1501,

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Standard Specification for Nighttime than the achromatic (white) fluorescent pigments is substantially Photometric Performance of retroreflective markings and the study less than the typical ten-year reflector Retroreflective Pedestrian Markings for concluded that for white markings to be product guarantee, the agency proposed Visibility Enhancement (ASTM E– detected at the same distance as not to require the application of 1501).7 The two approaches resulted in chromatic markings (e.g., red, yellow, or retroreflective material with fluorescent 2 almost identical Fc values (R =.99) for green markings), white markings would properties. In its comments, however, the different colors and the comparison need to have a 26% to 44% higher SIA 3M, pointed out that its fluorescent of the Venable and Hale’s calculated Fc value than the yellow markings (or the yellow sheeting typically used on traffic values using the recommendation from white markings would need to be signs is warranted for a full ten years. ASTM E–1501 demonstrated a relatively significantly larger than the yellow Further, 3M explained that the duration good fit (R2=.62). For a more detailed markings). In other words, the nighttime of fluorescent pigments is affected by discussion of Venable and Hale’s 1996 detection of colored retroreflectors the direction of the fluorescent research, see document number FRA– cannot be predicted from photometric material’s exposure (presumably due to 1999–6689–113 in the docket of this measurements alone; chromaticity must ultraviolet rays from the sun) and proceeding. also be considered. Sayer et al. reasoned that because rail cars do not The University of Michigan’s 1996 (Document No. FRA–1999–6689–113 in always face the same direction, the study analyzing the effect of color on the docket of this proceeding.) expected life of fluorescent yellow perceived ‘‘brightness’’ of retroreflective As detailed in the preamble to the pigments would exceed the expected materials (as opposed to the Venable NPRM, FRA’s own research regarding durability of the markings. Accordingly, and Hale study which focused on the the effectiveness of freight car 3M recommended that FRA require the effect of color on the perceived reflectorization yielded similar results. use of fluorescent retroreflective ‘‘conspicuity’’ (i.e., detectability) of Specifically, FRA’s research material. Avery Dennison, on the other retroreflective materials) yielded results consistently found that retroreflective hand, commented that because similar to Venable and Hale’s study. patterns of yellow markings were the fluorescent objects absorb ultraviolet Specifically, using five chromatic most effective in enhancing the light from the sun and then re-emit stimuli and one achromatic stimulus, visibility of freight cars. See Evaluation longer wavelength light, fluorescent two levels of retroreflective power, two of Retroreflective Markings to Increase colors are most effective in increasing levels of area, and two levels of ambient Rail Car Conspicuity, Project daytime conspicuity. However, Avery illumination, Schumann employed Memorandum, DOT–VNTSC–RR897– Dennison noted that since the sun does magnitude estimation to gather PM–98–22, John A. Volpe National not emit ultraviolet light at night, subjective assessments of perceived Transportation Systems Center (Oct. fluorescence stops. Accordingly, Avery brightness for colored retroreflective 1998) (1998 Volpe Report). Accordingly, Dennison reasoned that because the material. Similar to Venable and Hale’s FRA continues to believe that yellow stated purpose of the rulemaking is to methodology, Schumann retroreflective sheeting is the best color increase nighttime conspicuity, mathematically derived Fc values for choice for retroreflective material on the fluorescent colors would add no value each color tested and then compared sides of freight rolling stock. to the application. Further, Avery these mathematically derived Fc values Nonetheless, FRA recognizes that white Dennison explained that fluorescent with Fc values calculated as retroreflective material can perform colors are specified by their recommended in ASTM E–1501. As did satisfactorily. See 1998 and 1999 Volpe exceptionally high daytime luminance Venable and Hale, Schumann reported a Reports. factors (Y%) and that such a very high correlation between the Accordingly, recognizing that many specification would eliminate the use of calculated and experimentally obtained railroads and car owners have already metalized prismatic materials. Further, color correction factors (R2=0.94). begun voluntary reflectorization Avery Dennison commented that if Further, Schumann used the programs using white material and that metalized prismatic materials were experimental color correction factors white retroreflective material has been eliminated from suitability under this identified in Venable and Hale’s 1996 determined to be effective in increasing rule, this would only allow two current study and arrived at similar results. the visibility of rail cars, FRA has conspicuity tape manufacturers to In 1998 researchers at the University revised paragraph (b) in this section of supply the market. FRA agrees with of Michigan Transportation Research the final rule to allow the use of either Avery Dennison on this point, and Institute conducted a nighttime field white or yellow retroreflective accordingly, this final rule does not study to assess the effects of color on the material.8 require fluorescent retroreflective detection of retroreflective markings. In the NPRM, FRA specifically noted material. However, as noted in the See Document No. FRA–1999–6689–113 that its own research determined that preamble to the NPRM, if a fluorescent in the docket of this proceeding. This fluorescent yellow retroreflective retroreflective material meets all of the field study again demonstrated that the material had the highest SIA value of all requirements of this part, its use is color of retroreflective markings does materials tested and that fluorescent acceptable. affect the distance at which the yellow material could be detected from markings can be detected. Specifically, a farther distance than any other Although in its comments to the the three chromatic retroreflective material tested. However, based on our NPRM, Avery Dennison expressed markings examined (red, yellow, and understanding that the duration of general agreement with FRA’s proposal green) were detected at significantly to require yellow retroreflective farther distances, 7% to 10% farther 8 FRA notes, however, that because chromatic material, Avery Dennison noted one markings (e.g., yellow markings) generally appear ambiguity in the proposed color brighter and more detectable than similarly-sized 7 Recognizing that a chromatic retroreflector may achromatic markings (i.e., white markings), if white requirement. Specifically, Avery appear brighter than an achromatic retroreflector material is applied to rail cars under this rule, it is Dennison pointed out that ASTM with the same luminance, ASTM E–1501 provides necessary to apply a greater quantity of the material standard D 4956–01 contains three a widely-accepted methodology for calculating to achieve the same effectiveness as a smaller yellow color standards, all referencing color correction factors which effectively account quantity of yellow material. This ‘‘color correction for the perceived difference in brightness between factor’’ is discussed in more detail in the discussion the same chromaticity coordinates, but chromatic and achromatic retroreflective markings. of § 224.105 below. with three different daytime luminance

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factors (i.e., Tables 5, 9, and 11 of the on this ASTM standard (version D durable material than it would be to ASTM standard). Avery Dennison 4956–01). install less durable material but be explained that based on the As proposed, however, these required to regularly test its chromaticity coordinates specified in performance requirements contained a performance relative to a performance the ASTM standard, if FRA does not certain amount of unintended standard. specify a minimum daytime luminance ambiguity. Specifically, ASTM standard Table 1 of the final rule, as it did in factor, retroreflective sheeting that D 4956–01a identifies nine ‘‘Types’’ of the proposed rule, sets forth the specific appeared brown could meet the stated retroreflective sheeting. As explicitly minimum photometric performance color requirement. Accordingly, Avery stated in the ASTM standard, ‘‘Type requirements for retroreflective sheeting Dennison recommended that FRA adopt designation is provided as a means for under this part. In addition, because the a minimum daytime luminance factor differentiating functional performance.’’ final rule permits the use of either (Y%) of 12 for yellow sheeting. ‘‘Types’’ are determined by yellow or white material (as opposed to Although FRA now recognizes this conformance to the standard’s the proposed rule which contemplated retroreflectance, color, and durability the use of only white material), FRA has ambiguity in the color requirement of requirements. Each ‘‘Type’’ designated inserted the minimum photometric the proposed rule, in this final rule FRA by ASTM must conform to certain performance requirements (i.e., has modified the performance minimum performance standards. That minimum SIA) in Table 1 specific to requirements contained in paragraph (c) is, each ‘‘Type’’ must meet certain white material.9 Specifically, Table 1 to specify that retroreflective sheeting performance standards (i.e., sets forth the minimum photometric applied pursuant to this rule must meet retroreflective photometric performance, performance requirements (i.e., the performance requirements (except flexibility, adhesion, impact resistance, minimum required SIA) for both yellow for the minimum photometric accelerated weathering, shrinkage, and white retroreflective material at performance requirements) of Type V resistance to fungus, and specular gloss observation angles of 0.2° and 0.5° and Sheeting as defined in ASTM standard performance standards). Because no light entrance angles of ¥4° and 30° D 4956–01a. One of the performance ‘‘Type’’ was specified in the based on typical grade crossing requirements of Type V Sheeting is performance requirements of paragraph configurations and the standards set meeting an assigned daytime luminance (c) of proposed § 224.103, it was forth in ASTM D 4956–01a. These factor. Specifically, Table 11 of the impossible for the retroreflective minimum photometric performance ASTM standard sets forth the required material manufacturing industry to requirements for white material, like the Y% for Type V Sheeting; the Y% for determine which performance standards requirements applicable to yellow yellow Type V sheeting is 12, and the specified in the ASTM standard FRA material proposed in the NPRM, were Y% for white Type V sheeting is 15. intended to apply. developed to ensure that the Accordingly, although FRA agrees with In this final rule, FRA has clarified retroreflective material would perform Avery Dennison’s comment regarding these performance requirements by above the minimum detection threshold the necessity of including a daytime stating that retroreflective sheeting must of 45 cd/fc/ft2 identified in the 1999 luminance factor to ensure that only conform to all the performance Volpe Report as necessary to enable appropriately high-contrast colored requirements, except the minimum most motorists to detect a train in time sheeting meets the performance photometric performance requirements, to avoid a collision. As explained in the requirements of the rule, FRA has for Type V Sheeting as defined in ASTM NPRM, FRA recognizes that in the real achieved this by specifying that sheeting standard D 4956–01a. Type V Sheeting, world railroad operating environment, must meet the requirements for Type V defined in the ASTM standard as ‘‘super the effective SIA of retroreflective Sheeting as defined in ASTM standard high-intensity retroreflective sheeting,’’ materials depends on various factors D 4956–01a. is typically used for delineators. For (e.g., grade crossing configurations and example, Federal regulations requiring angles, ambient light conditions, vehicle Paragraph (c), as it did in the NPRM, retroreflective material on the sides and headlight type and lens cleanliness, contains the performance standards for rear of large trucks require weather, and the presence and working retroreflective sheeting applied under retroreflective sheeting meeting the condition of illumination and other this part. This paragraph, however, has performance requirements of Type V warning devices). FRA also recognizes been modified slightly, consistent with Sheeting. Although FRA did not specify that the effectiveness of the FRA’s decision to allow the use of either ‘‘Type V’’ sheeting in the proposed rule, retroreflective material may be reduced yellow or white retroreflective material FRA believes doing so now is consistent because of dirt and grime which and to clarify the performance with the proposed rule because, given inevitably accumulate on rail cars. requirements. As discussed above and the photometric performance Accordingly, as in the proposed rule, explained in detail in the NPRM, this requirements contained in the NPRM, the minimum photometric performance paragraph was intended to require that the other ASTM-defined ‘‘Types’’ of requirements of this final rule take into retroreflective sheeting applied in sheeting that could meet the proposed account these varying factors. accordance with the rule meet all the performance requirements would not be Specifically, as explained in the NPRM, performance requirements, except for appropriate for the intended function of in determining these minimum the minimum photometric performance delineators on rail car sides. requirements, of ASTM standard 4956– As explained in the NPRM, because 9 In the NPRM, FRA specifically requested 01. The ASTM standard has been FRA is requiring that retroreflective comments regarding these minimum photometric chosen as the basis for the FRA sheeting meet the requirements of performance requirements for white material. 68 FR specification because FRA understands 62955. Because FRA received no substantive ASTM D 4956–01a for Type V Sheeting comments regarding these requirements, FRA has it to be the specification that only as initially applied and is not adopted them substantially as proposed in this final manufacturers of retroreflective sheeting requiring specific minimum reflectivity rule. FRA has, however, corrected one inadvertent are following in their current for vehicles in service, FRA believes error in the requirements as previously published. manufacturing process. NHTSA’s rule In the NPRM, FRA erroneously referred to an that highly durable sheeting meeting the observation angle of 0.53 for white material. FRA requiring reflectorization of large truck performance tests of the ASTM standard has corrected this error to maintain consistency trailers (49 CFR 571.108) is also based is required. It is less costly to install with ASTM standard D 4956–01a in this final rule.

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photometric performance requirements, in the NPRM. Specifically, Section 224.105 Sheeting Pattern, FRA extrapolated test data detailed in manufacturers of retroreflective sheeting Dimensions and Quantity the 1999 Volpe Report out ten years, the are responsible for compliance with the As proposed in the NPRM, § 224.105 manufacturer’s stated useful life of the construction, color, and performance made the amount and placement of material. This extrapolation requirements of the retroreflective retroreflective sheeting required under demonstrated that the forecasted SIA sheeting used to comply with this rule. this part dependent on the size of the levels remained well above the Accordingly, as it did in the NPRM, this car or locomotive, as well as the car minimum detection level established in paragraph requires that manufacturers type. Proposed § 224.105 also set forth the 1999 Volpe Report. In addition, who are providing retroreflective specific patterns for the application of although the primary degradation in the sheeting to the railroad industry certify retroreflective material to various types SIA of the material occurs during the their products’ compliance with of freight cars, as well as locomotives. first two years as a result of ultra-violet § 224.103. Specifically, paragraph (d) This section of the final rule, however, light exposure, after which the material requires that the characters ‘‘FRA–224’’ no longer sets forth specific placement maintains a relatively consistent be permanently stamped, etched, patterns for freight cars and intensity throughout its useful life, FRA molded, or printed, in characters at least locomotives. Instead, this section now forecasted SIA degradation of the 3 mm high, with each set of characters describes the general standards for the material due to dirt and grime spaced no more than four inches apart, pattern of retroreflective material accumulation exponentially. on each piece of retroreflective sheeting application for rail cars, dimensions of Accordingly, FRA’s analysis manufactured. FRA received only two individual pieces of retroreflective substantially overestimates the sheeting, and the minimum quantity of degradation rate of the material, and comments regarding the proposed retroreflective sheeting required on each even with this overestimation, the certification requirement, both from side of a freight car or locomotive. A expected SIA values for 10 years remain manufacturers of retroreflective new section, § 224.106, sets forth the well above the minimum detection level sheeting. First, 3M suggested that the more specific patterns, applicable to identified in the 1999 Volpe Report. integrity of the self-certification system In response to the minimum proposed needed improvement and both freight cars and locomotives, that photometric performance requirements urged FRA to require manufacturers to FRA is requiring in this final rule. of the proposed rule, 3M recommended demonstrate compliance with the ISO Accordingly, discussion of the specific that the 30° entrance angle be increased 9000 Quality Systems Standard or a patterns of application required for to 40° and the minimum photometric technically equivalent standard. Avery freight cars and locomotives will be performance requirements be revised Dennison, on the other hand, expressed discussed in the analysis of new accordingly. Specifically, 3M the view that the certification § 224.106, and the discussion in this questioned whether the 4% of crossings requirement, as proposed in the NPRM, section will focus on the general FRA identified with crossing angles of was adequate. In support of its position, requirements of § 224.105 as adopted in less than 30° assume that drivers view Avery Dennison noted that the proposed this final rule. trains while they are on the road that self-certification requirement of an As contemplated by the proposed crosses the track (e.g., driving on a road indelible ‘‘FRA–224’’ mark is identical rule, this section of the final rule perpendicular to the tracks). 3M pointed to the self-certification requirement in specifies that, with certain exceptions, out that drivers are often on a roadway the Federal Motor Vehicle Safety individual reflectors applied pursuant parallel to railroad tracks and, given the Standards requiring retroreflective to this part must be 4 inches wide and narrow entrance angularity of the sheeting on large trucks and trailers (49 18 or 36 inches long (one-half a square proposed photometric requirements, 3M CFR 571.108). FRA notes that the foot or one square foot, respectively). expressed the view that drivers often manufacturer self-certification system FRA has retained this general requirement for relatively large-sized would not have enough time after proposed was modeled after the system reflectors in order to minimize the turning off a parallel roadway to react to utilized in the trucking industry. Also, degradation rate of individual strips of conspicuity markings on railcars FRA notes that the same retroreflective retroreflective sheeting. Section 224.105 passing on the track. Avery Dennison, material manufacturers who supply of this final rule also provides that on the other hand, commented that if a material to the trucking industry will be retroreflective sheeting must be applied driver were traveling on a roadway the suppliers pursuant to this rule. along the length of freight car and parallel to the tracks, the driver would Accordingly, FRA believes that the ° locomotive sides and that the amount of have to make a 90 turn, requiring system of self-certification, as proposed, retroreflective material required to be braking, in order to cross the tracks. is sufficient. Accordingly, Avery Dennison applied is, in part, dependent on the concluded that the proposed entrance Paragraph (e) of this section, which length of the car or locomotive. Table 2 angle requirements were sufficient. has not changed from that proposed in of this section mandates a minimum As explained in the NPRM, FRA’s the NPRM, recognizes that although the square footage of sheeting on each car Grade Crossing Inventory demonstrates rule generally requires application of side, based on the car size and the that approximately 80% of all crossings retroreflective sheeting meeting the sheeting color. If a car owner or railroad have crossing angles between 60° and specific construction, color, and chooses to apply yellow retroreflective 90°, almost 17% have crossing angles performance requirements of material, the amount of material between 30° and 59°, and only 4% have § 224.103(a) through (c), freight rolling required is consistent with the crossing angles less than 30°. stock owners may, under § 224.15, minimum amounts proposed to be Accordingly, the requirements of Table request FRA approval to use alternative required on ‘‘cars of special 1 ensure that the retroreflectors will standards. As discussed in the analysis construction’’ in § 224.105(a)(4) of the perform above the minimum detection of § 224.15 above, any alternative proposed rule. As discussed in the threshold for the average motor vehicle standard utilized must result in an NPRM, although the optimum at approximately 96% of all crossings. equivalent level of safety as the sheeting configuration of retroreflectors Paragraph (d) of this section retains described in § 224.103(a) through (c) identified in the 1999 Volpe Report the certification requirement proposed applied in accordance with this rule. required slightly less retroreflective

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material, this configuration assumed in the reflective material manufacturing cars, and ‘‘cars of special construction,’’ that the material would be periodically industry for decades. Based on the color retroreflective sheeting be applied washed. Volpe found that periodic correction factors reported by a vertically in 4x36 inch and 4x18 inch washing of the retroreflectors could sampling of retroreflective material strips along the car sides, with the recover the intensity of the prismatic manufacturers already routinely bottom edge of each strip as close as material to nearly original levels. supplying retroreflective material to the practicable to 42 inches above the top of However, because of practical concerns railroad industry and the methodology the rail. Further, paragraph (a)(1) expressed by many members of the of ASTM E 1501, FRA determined that proposed to require that either a railroad industry (e.g., increased labor approximately 24% more white minimum of one 4x36 inch (one square costs, environmental wastewater, and retroreflective material meeting the foot) strip of retroreflective material or water usage issues), FRA is not minimum photometric performance two 4x18 inch strips, directly above the requiring the periodic cleaning of the requirements of § 224.103 is necessary other, be applied vertically as close to retroreflective sheeting. Instead, in order to achieve the same level of each end of the car as practicable and to compensate for the lack of cleaning, retroreflection as the amount of yellow that a minimum of one 4x18 inch strip FRA is requiring approximately 30% material FRA determined to be be applied vertically at equal intervals more material (about 1 square foot on necessary. of 10 feet or less between the car ends. each side of most typically-sized freight Paragraphs (a)(2) and (3) of proposed Section 224.106 Location of rolling stock), thereby lowering the level § 224.105 followed the same basic Retroreflective Sheeting of luminance needed. pattern as paragraph (a)(1), but As noted in the discussion of As noted in the discussion of attempted to account for the § 224.103 above, if a car owner or § 224.105 above, similar to proposed configurational differences between railroad chooses to apply white § 224.105, § 224.106 of this final rule various types of freight cars. Proposed retroreflective material for purposes of sets forth specific patterns for the paragraph (a)(2) addressed tank cars, meeting the enhanced visibility application of retroreflective material to while paragraph (a)(3) addressed flat standards of this final rule, the owner various types of freight cars, as well as cars. Paragraph (a)(2) proposed to must apply a greater quantity of the locomotives. The proposed rule (in require that on tank cars, retroreflective material in order to achieve the same § 224.105) generally required a vertical sheeting be applied vertically along the effectiveness as the smaller quantity of pattern of retroreflective sheeting on the car sides and centered on the horizontal yellow material required by this rule. As sides of freight cars, with strips of centerline of the tank, or as near as also noted above in the discussion of the sheeting to be located as close to each practicable. Further, proposed color requirement of § 224.103, although end of the car as practicable and at paragraph (a)(2) provided that if it was white material has a higher SIA than equidistant intervals of not more than not practicable to safely apply the yellow material, and presumably would 10 feet. FRA proposed to require that sheeting centered on the horizontal be brighter and more reflective than retroreflective sheeting be applied at centerline of the tank, the sheeting yellow material, because an object’s least every 10 feet along the sides of could be applied vertically with its top perceived brightness is modified by freight cars because roadway lanes in edge no lower than 70 inches above the color information, yellow is actually the United States are typically 10 to 12 top of the rail. Similar to the pattern more detectable, particularly at night feet wide and accordingly, having at proposed in paragraph (a)(1), paragraph and during other conditions of limited least one reflector every 10 feet (a)(2) proposed to require a minimum of visibility. See Schumann et al. and increases the likelihood of a reflector one 4x36 inch (one square foot) strip of Sayer et al. (Document Nos. FRA–1999– being in the sight path of an retroreflective material or two 4x18 inch 6689–112 and –113 in the docket of this approaching motorist. Recognizing that strips, directly above each other, be proceeding). the conspicuity issues surrounding applied vertically as close to each end As noted in the discussion of locomotives differ from the issues of the tank as practicable and that a § 224.103 above, recognizing that a surrounding freight cars, § 224.105 of minimum of one 4x18 inch strip be chromatic retroreflector may appear the proposed rule provided a more applied vertically at equal intervals of brighter than an achromatic flexible approach to the reflectorization 10 feet or less between each end of the retroreflector with the same luminance, of locomotives, specifying only that a tank. The intent of this proposed ASTM E 1501 provides a widely- minimum amount of retroreflective configuration of reflective material on accepted methodology for calculating material was to be equally distributed tank cars was that the retroreflective color correction factors which between both sides of locomotives in a sheeting would be centered, as effectively account for the perceived pattern recognizable to motorists. practicable, on the outermost curved areas of the tank, thereby reflecting the differences in brightness and Railroad Freight Cars conspicuity between chromatic and most light. achromatic retroreflective markings. As proposed in the NPRM, paragraph Recognizing the limited surface area Based on the chromaticity coordinates (a) of § 224.105 set forth a specific of the sides of a typical flat car, of their specific product colors and the pattern of application for railroad freight paragraph (a)(3) of proposed § 224.105 cars generally (e.g., box cars, gondola methodology of ASTM E 1501,10 required a minimum of two 4x18 inch cars, and other similarly configured manufacturers of retroreflective sheeting strips, one next to the other, be applied cars), tank cars, flat cars, and ‘‘cars of calculate color correction factors vertically as close to each end of the car special construction.’’ Specifically, as specific to their product colors. As a as practicable, with the bottom edge of proposed, paragraph (a) explained that result, manufacturer-specific tables of each strip no lower than 30 inches the amount of retroreflective sheeting color correction factors for above the top of the rail, as practicable. required to be applied to freight cars retroreflective traffic control products Consistent with the application pattern under this part is dependent on the that compensate for color have existed for other freight cars, paragraph (a)(3) length of the car, measured from endsill further proposed to require that a 10 See §§ 6.4 and 6.5 of ASTM E 1501 addressing to endsill, exclusive of the draft gear. minimum of one 4x18 inch strip be Chromaticity Coordinates and Color Factor for Paragraph (a)(1) proposed to require that applied to the sides of flat cars vertically Adjustment Calculations (Fc). on freight cars other than tank cars, flat at equal intervals of ten feet or less, with

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the bottom edges of each strip no lower increases the likelihood that the reflectorized rail car would be a non- than 42 inches above the top of the rail, maximum available light from vehicle reflectorized rail car. Thus, if a motorist as practicable. Because the surface area headlights will enter the retroreflective perceives a reflectorized rail car in his of the sides of a typical flat car is material and be returned to the motorist or her lane of travel, the motorist must between 4 and 18 inches in height, when the road is not level. react differently than if he or she paragraph (a)(3) provided that if vertical A few commenters, including the perceives a truck with no trailing traffic, application of 4x18 inch strips was not AAR and CN, expressed the view that not only because trains are generally feasible, sheeting could be applied FRA’s rationale underlying the longer than trucks and pass through vertically in three 4x6 inch strips placed proposed vertical pattern is flawed intersections slower than trucks, but horizontally along the side sill of the because the ability of motorists to also because of the likelihood of hard- cars. distinguish between trucks and rail to-detect trailing traffic. Accordingly, Paragraph (a)(4) of proposed § 224.105 rolling stock is not a real concern. For FRA continues to believe it important recognized that not all freight cars example, CN noted that grade crossing that any rail car reflectorization pattern would fit the standard configurations signage and other crossing warning minimize, to the extent possible, the contemplated in paragraphs (a)(1) devices indicate the closeness of a potential for motorist confusion through (a)(3) and proposed a more railroad crossing to a driver. These cues, between trains and trucks. However, flexible pattern for these ‘‘cars of special along with the ‘‘presence of any sort of even disregarding the issue of potential construction.’’ FRA estimated that the object ahead,’’ CN reasoned, ‘‘should be motorist confusion between patterns proposed for typical freight enough for a prudent driver to take the reflectorized rail cars and reflectorized cars, tank cars, and flat cars would be necessary precautions.’’ FRA notes, trucks, because research has shown that impractical to apply to approximately however, that the prevalence of a vertically-oriented pattern spacing 1% of the fleet due to their unique unlighted, passively-protected crossings retroreflective material over the length physical configurations. Specifically, throughout the United States often of rail car sides is one of the most easily based on the length of a ‘‘car of special makes grade crossing signage and detectable patterns of retroreflective construction,’’ this paragraph proposed similar warning devices difficult for material and because a vertically- to require a specific amount of motorists to detect, especially during oriented pattern ensures that the retroreflective material be applied to conditions of limited visibility. maximum available light from vehicle these cars in a pattern conforming ‘‘as AAR asserted that the fact that there headlights will enter the retroreflective close as practicable’’ to the standard is considerable traffic on the rails that material and be returned to an patterns proposed in paragraphs (a)(1) must have reflectorized material approaching motorist, FRA continues to through (a)(3). meeting highway specifications further believe that a vertical reflectorization The intent of the specific patterns undermines FRA’s conclusion that it is pattern is the most effective in specified in proposed § 224.105(a) was important for motorists to be able to increasing the visibility of freight cars. to maximize the effectiveness of the distinguish between trucks and trains in retroreflective material, allow their path of travel. Further, AAR FRA recognizes, however, that AAR retroreflectorization of a variety of asserted that regardless of whether a and several commenting railroads, many freight car types with the same generally motorist perceives a truck or a train of which already have successful recognizable pattern, and also to ahead in his or her path of travel, the voluntary freight car reflectorization minimize the degradation rate of the motorist must react the same way—i.e., programs in place, noted significant material. Specifically, as detailed in the the motorist must determine whether practical difficulties with the vertical NPRM, FRA proposed to require a there is any trailing traffic. Accordingly, pattern FRA proposed. In particular, vertical pattern of retroreflective AAR expressed the view that if a FRA received a multitude of comments material for several reasons. First, FRA’s motorist mistakes railroad rolling stock asserting that the proposed vertical own research indicated that either a for a truck, or vice versa, the mistake ‘‘striping’’ pattern was impracticable for pattern that outlined the shape of the should be of no consequence. the majority of freight cars that would rail equipment, or a vertically-oriented In these comments, however, AAR be subject to the rule and that the pattern that spaced retroreflective does not consider the fact that any proposed rule did not provide enough material uniformly over a large area of trailing traffic following a truck would flexibility as to where retroreflectors the equipment’s side was most effective more than likely be another could be applied pursuant to the rule. in increasing the visibility of the reflectorized highway vehicle, or at For example, CP, which has had a equipment. Second, a vertically- least, a highway vehicle equipped with voluntary reflectorization program in oriented pattern contrasts with the headlights and taillights; thus, any place for several years, commented that horizontally-oriented pattern of the traffic trailing a truck would be easily although it had no objection to FRA’s retroreflective material required for detected by an approaching motorist. If proposed square footage requirements, truck trailers, thereby reducing the a motorist perceives a truck in his or her any reflectorization standard ‘‘should likelihood that motorists will confuse a path, but no traffic trailing the truck, he provide sufficient latitude for train in a grade crossing with a truck or she may only need to slow the application to various car types, trailer. Third, because not all vehicle to avoid a collision, since trucks particularly when applying [reflective approaches to grade crossings are level are generally shorter than trains, material] to existing cars where existing (‘‘humped crossings’’), to the extent that normally move through intersections stencil requirements have to be taken a motor vehicle’s headlights are aimed faster than trains, and usually do not into account.’’ More specifically, away from the retroreflective material, have any hard-to-detect trailing traffic. comments submitted by various less light will reach the retroreflective However, given the prevalence of non- members of the railroad industry material if it is applied horizontally; reflectorized rail cars, and the 10-year consistently expressed the view that therefore, less light will be returned to implementation period for FRA’s proposed pattern of vertical the driver, and a train in a crossing will reflectorization of rail freight rolling striping posed three major problems. be more difficult to detect. Accordingly, stock contemplated by the proposed First, commenters asserted that given FRA reasoned that orienting the rule and adopted in this final rule, it is the physical configurations of many retroreflective material vertically highly likely that any traffic trailing a freight cars, it would be physically

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impossible to apply material in the TTX did recognize FRA’s attempt to AAR also asserted that on many cars, proposed pattern on the majority of account for the physical configurations safety appliances would interfere with freight cars that would be subject to the of ‘‘odd-shaped’’ cars by providing for the proposed vertical striping pattern rule. Second, these commenters asserted ‘‘cars of special construction’’ (i.e., not and that in many cases, the proposed that FRA’s proposed pattern would typically-shaped freight cars, tank cars, vertical striping pattern would require interfere with reporting marks and other or flat cars) in proposed paragraph (a)(4) that a retroreflective strip be placed stencils on freight cars, as well as bolts, of this section. However, TTX expressed under a safety appliance (such as a rivets and other discontinuous surfaces the view that the proposed requirement handhold, grab iron, or ladder), which on the face of freight cars. Third, these that the retroreflective pattern on these would interfere with the visibility of the commenters asserted that on many cars, ‘‘cars of special construction’’ conform reflectorized material. In addition, AAR safety appliances would obscure or as close as practicable to the standard asserted that maintenance of safety otherwise interfere with the proposed patterns proposed for typical freight cars appliances in close proximity to striping pattern. presented additional problems in that it reflectorized material could cause At the January hearing, TTX, an would require an owner’s maintenance damage to the reflectorized material and owner of one of the nation’s largest and repair personnel to exercise their that FRA’s proposed vertical striping fleets of railcars, stated that in most judgment in the field as to what pattern did not account for potential cases, and particularly with regard to reflector configuration would conform damage caused by employees flat cars, it would be ‘‘physically ‘‘as close as practicable’’ to FRA’s stated inadvertently kicking and scraping impossible’’ to comply with FRA’s standards. TTX expressed concern that, reflectorized material as they get on and proposed reflectorization pattern. given the wide variety of existing car off a safety appliance. Specifically, TTX noted that none of its types and physical configurations, along Commenters suggested a far more ‘‘conventional’’ flatcar fleet has sides with the varying car markings, stencils, flexible approach in the application of high enough to accommodate reflectors and appurtenances on each different car retroreflective material to the sides of at 42 inches from the top of the rail; that type, it would be impossible to ensure rail cars. For example, at the January none of its conventional flatcars could that every physical variation of these hearing, TTX suggested that car owners accommodate vertical reflectors at the ‘‘cars of special construction’’ was simply be required to equip their cars ends; and that because of existing car equipped with retroreflectors in a with a certain amount of retroreflective markings, fasteners, and other standardized way, conforming as close sheeting in a generally uniform way, appurtenances, few of its conventional as practicable to FRA’s stated standards. taking into account the particular flatcars could accommodate evenly Finally, TTX expressed concern that existing structure of the car. RSI spaced reflectors. Further, TTX noted many cars have insufficient unoccupied recommended that FRA allow vertical, that the same problems are even more side surface area to meet even FRA’s horizontal, or a combination of both pronounced with some of its specialized minimum square footage requirements patterns; CP, CN, and AAR pieces of equipment (e.g., centerbeam for retroreflective sheeting, much less recommended a horizontal pattern on cars, bulkhead flatcars, and heavy duty the specific location requirements. most car types; and API recommended flatcars) which have ‘‘extremely narrow a spacing of 8–12 feet between sills and almost no space at the ends.’’ At the January hearing, a reflectors. Many commenters also In its comments, TTX asserted that FRA representative of ARC (an organization endorsed AAR’s proposed industry should not issue a rule requiring the of suppliers, particularly rail car standard and suggested that FRA reflectorization of flat cars that nearly builders) expressed concerns similar to incorporate the standard in any final all flat cars could not meet. TTX TTX’s, but regarding boxcars. rule on reflectorization. asserted that ‘‘[i]f there is a rule Specifically, ARC expressed the view Although, based on its extensive designed specifically for flatcars, it that even on a typical boxcar, given the research efforts, FRA continues to should recognize the universal low stenciling required by AAR Standard believe that a vertically-oriented height of the cars, the fact that they have S910–98, there is little room for placing reflective pattern, uniformly spread very little surface area for affixing the vertical reflectors without interfering along the length of car sides, is the most reflectors, and the fact that they have with the car’s stenciling. Other effective in increasing the visibility of little vertical space at the ends.’’ commenters noted that the corner posts rail cars, FRA recognizes the practical In response to TTX’s particular of railcars are typically less than four concerns expressed by commenters and concerns regarding the proposed pattern inches wide; thus, it would be that in many cases, a vertical pattern of of retroreflective sheeting on flat cars, impossible to apply four-inch wide retroreflective material along the sides FRA notes several points worthy of retroreflective markings at the extreme of freight cars is not feasible. FRA also clarification. First, in paragraph (a)(3) of ends of many railcars. API, along with recognizes that research has also shown proposed § 224.105, FRA specifically ARC, echoed TTX’s concern regarding that generally, a reflectorized freight car recognized the limited surface height of the proposed rule’s requirement for is significantly more detectable than an the sides of typical flat cars and evenly spaced reflectors. Specifically, unreflectorized car, whether the provided that if vertical application of API explained that if no more than 10 reflective material is applied retroreflective sheeting was not feasible feet is allowed between strips of horizontally or vertically, or whether on a particular car, sheeting could be reflective sheeting, the reflective the reflective material is yellow or applied in 4x6 inch strips placed markings will interfere with car stencils. white. See 1998 and 1999 Volpe horizontally along the side sills. In RSI noted that placement of Reports. In addition, in the proposed addition, proposed paragraph (a)(3) of retroreflective sheeting, as proposed, rule, FRA did not intend that freight this section required that retroreflective may require the restenciling of many cars would have to be restenciled in sheeting be applied no lower than 30 or cars, adding significantly to the cost of order for retroreflective material to be 42 inches above the top of the rail, ‘‘as application. AAR expressed similar applied. FRA also based the proposed practicable.’’ In other words, FRA comments and provided drawings rule on the belief that the pattern intended to provide the flexibility showing how FRA’s proposed vertical proposed for typical freight cars, tank necessary to accommodate flat cars with application pattern would purportedly cars, and flat cars would be practical to narrow side sills. interfere with existing car stenciling. apply to approximately 99% of the

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freight car fleet. Comments received in may apply two 4x9 inch strips of accordance with NAFCA’s suggestion to response to the NPRM, however, sheeting, one on either side of the avoid applying the sheeting in the ‘‘drip indicate that this belief is inaccurate. stenciling, as practicable. path’’ of the tank. Specifically, NAFCA Accordingly, in this final rule, FRA has Similar to paragraph (a) of proposed explained that ‘‘[i]t is inevitable that revised the required retroreflective § 224.105, paragraph (a) of § 224.106 of materials loaded into tank cars will material placement patterns applicable this final rule sets forth the specific experience some spillage onto the sides to freight cars to alleviate the practical pattern of application for railroad freight of the car during the loading process’’ concerns noted by several commenters. cars generally (e.g., box cars, gondola and that ‘‘accumulated residue from Section 224.106 of this final rule also cars, and other similarly configured spillage on the exterior of the cars may specifically invites the industry to cars), tank cars, flat cars, and ‘‘cars of make it difficult for [retroreflective revise the industry standard proposed special construction.’’ As applied to sheeting] to adhere’’ and the sheeting by AAR to meet the performance freight cars, other than flat cars and tank would quickly become obscured by requirements of this final rule. Absent cars, paragraph (a)(1) provides for either loading spillage. Accordingly, FRA has the industry’s development and FRA’s a vertical or horizontal pattern of revised the required pattern of acceptance of an industry standard for retroreflective material along the length retroreflective sheeting to be applied to the reflectorization of freight cars and of the car sides, with the bottom edge of freight cars to specifically state that locomotives, § 224.106 of this final rule the sheeting as close as practicable to 42 sheeting shall not be applied in the sets forth specific patterns for the inches from the top of the rail. Although spillage area directly beneath the application of retroreflective material to FRA recognizes that the physical manway used to load and unload the various types of freight cars, as well as configuration of some freight cars will tank. not allow for the placement of locomotives. Paragraph (a)(3) addresses flat cars Generally, in this final rule FRA has retroreflective sheeting at, or very near (defined to include spine cars, revised three basic aspects of the to, 42 inches from the top of the rail, in articulated and multi-unit articulated patterns contemplated in proposed order to minimize the degradation of the cars) and provides for a horizontal § 224.105. First, FRA has revised the material and maximize the material’s pattern of retroreflective material along required patterns to provide for effectiveness, paragraph (a)(1) provides the length of flat cars’ side sills, with the flexibility in applying the sheeting that retroreflective sheeting shall not be bottom edge of the sheeting no lower around existing and required stenciling applied below the side sill or above 72 than the bottom of the side sill and the and markings, around appurtenances inches from the top of the rail. which may obscure the visibility of the Paragraphs (a)(1)(i) and (ii) also mandate top edge of the sheeting no higher than sheeting, and around discontinuous that at least one 4x36 inch strip of the top of the car deck or floor. Similar surfaces that may prevent the sheeting retroreflective sheeting, or its equivalent to paragraphs (a)(1) and (2) of this from adhering to car sides. Second, FRA (one square foot), be applied to car sides section, paragraph (a)(3) requires that at has revised the required patterns, where as close as practicable to each end of the least one square foot of retroreflective appropriate, to provide for either car, and at least one 4x18 inch strip, or sheeting be applied as close to each end vertical or horizontal placement of its equivalent (one-half a square foot), of the car, as practicable, and at least retroreflective sheeting. Third, FRA has must be placed at least every 12 feet. one-half a square foot of sheeting be eliminated the need for equidistant Paragraph (a)(2) addresses tank cars applied at least every 12 feet between spacing of no more than 10 feet between and remains substantially the same as the two end strips. Recognizing the strips of retroreflective sheeting. originally proposed. Specifically, limited surface area of the sides of a Specifically, paragraph (a) of paragraph (a)(2) requires that on tank typical flat car, paragraph (a)(3) § 224.106 of this final rule provides that cars, retroreflective sheeting shall be provides that the one square foot of retroreflective sheeting must be located applied vertically along the car sides material at each car end may be applied clear of appurtenances and devices such and centered on the horizontal in two 4x18 inch strips, one above the as ladders and other safety appliances or centerline of the tank, or as near as other, or if the side sill is less than eight attachments that may obscure its practicable. If it is not practicable to inches wide, the two 4x18 inch strips visibility. Paragraph (a) also provides safely apply the sheeting centered on may be applied one next to the other. that retroreflective sheeting need not be the horizontal centerline of the tank, the Paragraph (a)(3) has been revised from applied over existing or required car sheet may be applied vertically with its that originally proposed for flat cars, in stencils or markings, nor must the top edge no lower than the horizontal response to AAR’s and TTX’s comments sheeting be applied to discontinuous centerline of the tank. Similar to the specific to auto rack cars. In its surfaces such as bolts, rivets, door pattern proposed in (a)(1), paragraph comments, AAR explained that a typical hinges, or other irregularly shaped areas (a)(2) requires a minimum of one 4x36 auto rack car is nothing more than a that may prevent the sheeting from inch (one square foot) strip of conventional flatcar to which a separate adhering to the car sides. To retroreflective material or two 4x18 inch rack has been attached. Further, TTX accommodate cars with limited strips, directly above each other, be explained that although it owns almost unoccupied surface space suitable for applied vertically as close to each end 50,000 flat cars to which racks are attaching reflectors, paragraph (a) of the tank as practicable, and at least attached, the company owns only a few specifically provides that 4x18 inch and one 4x18 inch strip (one-half a square of the actual racks; railroads own the 4x36 inch strips of sheeting may be foot) must be placed at least every 12 majority of racks. Accordingly, TTX separated into either two 4x9 inch feet between the two end strips. noted that if FRA wants the reflectors to strips, or four 4x9 inch strips, and As explained in the NPRM, the intent be attached to the rack structure (which applied on either side of the interfering of this configuration is that the is higher than the flat car structure and appurtenances, discontinuous surfaces, retroreflective sheeting will be centered, closer to FRA’s preferred height above or car markings or stencils. In other as practicable, on the outermost curved top of rail of 42 inches), FRA ‘‘would words, for example, if there is not area of the tank, thereby reflecting the have to order the rack owner to be sufficient room to apply a 4x18 inch most light. The placement pattern has responsible.’’ FRA recognizes TTX’s reflector on the side of a car without been revised from that originally concern in this regard, and the agency covering existing stenciling, a car owner proposed for tank cars, however, in has accordingly revised paragraph (a)(3)

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of this section to provide that if a car cars; locomotives are often painted reflective material distribution patterns has a separate rack structure, brighter colors than freight cars; that either outline the shape of rail retroreflective sheeting may be applied locomotives owned by major railroads equipment, or that space the material to the flat car portion only in and used in road service are cleaned on over a large area of the equipment sides, accordance with the requirements of a more frequent basis; and company are the most effective in increasing rail this section. FRA notes, however, that if logos are often displayed on the sides of equipment visibility thereby enabling a a flat car and rack attachment are owned locomotives in reflective materials. In motorist to distinguish a piece of rail by the same freight rolling stock owner, addition, locomotives are equipped with equipment in his or her path from other to minimize the likely degradation of light sources on the front and ‘‘ditch’’ potential obstacles. In addition, FRA the retroreflective material on the car lights on the sides. However, in modern notes that the reflectorized logos and (and therefore the likely maintenance railroad operations, locomotives are symbols commonly found on costs), it may be advisable to apply often embedded in train consists locomotives are often applied so high on retroreflective material as close to 42 providing ‘‘distributed power’’ to the the locomotive sides that light from the inches above the top of the rail as consists. In these instances, however, headlights of approaching motor practicable. locomotives are typically operated vehicles will, in most instances, not Paragraph (a)(4), which is without their front or side lights even reach the material; thus, the substantially unchanged from the illuminated, and accordingly present reflectorized logos and symbols will be proposed rule, addresses ‘‘cars of the same conspicuity issues attendant to ineffective in aiding approaching special construction.’’ Specifically, this freight cars. Consequently, based on the motorists to detect the presence of the paragraph requires that based on the rationale that some pattern of locomotive. Accordingly, FRA length of a ‘‘car of special construction,’’ retroreflective material recognizable to continues to believe that for reflective the car be equipped with the minimum motorists is necessary to facilitate material to effectively increase the amount of retroreflective sheeting as motorists’ recognition of locomotives in visibility of locomotives to approaching specified in § 224.105, applied in a grade crossings, in paragraph (b) of motorists, it is necessary to spread the pattern conforming as close as proposed § 224.105, FRA proposed to reflective material along the length of practicable to the standard patterns allow any pattern of reflectorization on the locomotive sides, at a reasonable specified in paragraphs (a)(1) through locomotives that divided the amount of height. Thus, in this final rule, although (a)(3). Both AAR and TTX expressed retroreflective sheeting equally between FRA has removed the proposed concern that some rail cars, regardless of both sides of a locomotive, provided a language requiring the pattern of their physical shape, may not have certain minimum amount of sheeting retroreflective material application on sufficient unoccupied surface area to was applied to each locomotive side, locomotive sides be a ‘‘pattern accommodate the minimum reflector and provided that the sheeting was recognizable to motorists,’’ FRA has area required under this rule. applied in a ‘‘pattern recognizable to retained the general requirement that Accordingly, both AAR and TTX motorists.’’ Paragraph (b)(3) of proposed retroreflective material be spread along recommended that these ‘‘cars of special § 224.105 further provided that the length of locomotive sides, and FRA construction’’ that cannot accommodate application of material horizontally has further required that the material be the minimum square footage of sheeting along the sill or side walkway of a applied as close as practicable to 42 required by the rule be equipped with locomotive would be considered a inches above the top of the rail. FRA at least three reflectors on each car side, ‘‘pattern recognizable to motorists.’’ notes that most locomotives already each no less than 4x18 inches. FRA, In response to this proposal, AAR reflectorized in the course of voluntary however, does not believe that creating commented that the requirement that reflectorization programs are equipped a blanket rule allowing certain freight retroreflective material be applied to with not only reflectorized logos and cars to be equipped with three strips of locomotives in a ‘‘pattern recognizable symbols, but also with reflective retroreflective sheeting amounting to to motorists’’ was ‘‘too vague to be material applied along the length of the one and a half square feet of material is meaningful.’’ Further, citing the fact that locomotive sides at platform height, an effective way of increasing the railroads already typically reflectorize exactly the pattern contemplated by this conspicuity of freight cars. FRA notes, their locomotives with names and final rule. however, that if a freight car has symbols, AAR noted that requiring insufficient unoccupied surface area to retroreflective sheeting to be uniformly Section 224.107 Implementation accommodate the minimum reflector applied along locomotive sides ‘‘would Schedule area required under this rule, pursuant mean that reflective material would As proposed in the NPRM, this to § 224.7 of this final rule, the owner have to be used in addition to the names section required that all freight cars of the freight car may file for a waiver and symbols depicted on the subject to this part be equipped with from the minimum requirements of locomotives, rather than as part of the retroreflective sheeting conforming to § 224.105. The waiver process is names and symbols.’’ Accordingly, AAR this part within ten years of the effective discussed in more detail in the analysis recommended that both of these date of the final rule, and similarly, that of § 224.7 above. proposed criteria be deleted and that all locomotives subject to this part be FRA merely require that a minimum equipped within five years. Generally, Locomotives amount of retroreflective sheeting be FRA proposed that retroreflective As proposed in the NPRM, paragraph equally distributed between the sides of sheeting be applied to new freight (b) of § 224.105 addressed the locomotives. rolling stock at the time of construction reflectorization pattern of locomotives. Paragraph (b) of proposed § 224.103 and to existing stock when such stock As explained in the NPRM, FRA reflected FRA’s understanding that an was being repainted, rebuilt, or recognizes that the conspicuity issues effective pattern of locomotive undergoing other periodic maintenance. surrounding locomotives differ from the reflectorization requires that the As an alternative to this schedule, FRA issues surrounding freight cars. For approximate length of the locomotive be proposed a more flexible approach of example, the physical configuration of defined by the reflective material. As allowing freight car owners to designate, locomotives is obviously quite different detailed in the NPRM, research has in individualized implementation plans, from the configuration of most freight consistently demonstrated that a schedule for the reflectorization of

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their freight car fleets, provided they the effective date of the rule, whichever throughout the United States at which meet certain milestones designed to occurred first. FRA proposed this the SCABT is routinely performed at ensure that the entire fleet of ‘‘default’’ schedule of retroreflective outdoor or unheated locations in domestically owned freight cars would sheeting application in an attempt to temperatures above or below these be equipped with retroreflective achieve the most efficient and cost- minimum and maximum recommended sheeting within ten years. effective implementation of the rule. temperatures. For example, the AAR Although the majority of commenters FRA reasoned that by providing for the notes that in Bangor, Maine; did not express disagreement with application of retroreflective sheeting Minneapolis, Minnesota; and North FRA’s general proposal to implement a when cars are out of service for Platte, Nebraska, the average low reflectorization requirement over a 10- regularly scheduled maintenance, the temperature is below 50 °F for eight or year period, a few commenters entire U.S. fleet of freight cars could be more months of the year, while in these expressed the view that the five-year reflectorized well within the ten-year same cities the average high temperature implementation period proposed for the implementation period and would not is below 50 °F for at least four months. reflectorization of locomotives and the be required to incur any additional Similarly, CP noted that almost 3,000 ten-year implementation period downtime outside of the normal (43%) of all SCABTs performed in 2003 proposed for the reflectorization of maintenance cycle for the purpose of in the company’s St. Paul service area freight cars was too long. One reflectorization. were performed when monthly average commenter, noting that the trucking Paragraph (a)(2)(ii) of this section in temperatures, both high and low, were industry implemented a reflectorization the proposed rule provided that a freight below 50 °F. Accordingly, CP concluded requirement in only two to three years, car owner could elect not to follow the that given the temperature constraints, asserted that the proposed five- and ten- default schedule of paragraph (a)(2)(i), if ‘‘it would often be impossible to apply year implementation periods were the owner submitted a Fleet [retroreflective] material at a repair ‘‘unnecessarily long’’ and that during Reflectorization Implementation Plan track’’ and instead, cars would have to the implementation period, because (FRIP) to FRA within 60 days of the be sent to a repair facility. At the some rail cars will be equipped with final rule’s effective date. As proposed, January hearing, Mr. James Hart, a reflectors while others will not be, ‘‘[i]t the FRIP was required to (1) set forth the representative of ARC, testified that is likely that some drivers will mistake car numbers constituting the fleet ARC’s member companies have had unmarked cars in the crossing as a gap subject to this part; (2) indicate when several years of experience in applying in the train.’’ Although FRA the identified cars were scheduled to be reflective material to new rail cars understands the concerns of this reflectorized; (3) contain an affirmation (presumably because of the various commenter, FRA believes that, given the that at least 20% of the total fleet would voluntary reflectorization programs unique characteristics of the railroad be equipped with conforming already underway in the rail industry). industry, the five- and ten-year retroreflective sheeting within 24 Based on these years of experience, Mr. implementation periods are necessary to months after the effective date of the Hart indicated that Institute members cost-effectively reflectorize the entire final rule; and (4) contain an affirmation have determined that reflective material fleet of freight rolling stock subject to that not less than an additional ten adheres best when applied in this rule. Accordingly, in this final rule, percent of the total fleet would be temperatures of at least 60 °F, and even FRA has retained the general completed annually thereafter for the better, when applied at temperatures requirement that all freight cars subject duration of the 10-year implementation over 70 °F. to this rule be equipped with period. Absent identification of a car in retroreflective sheeting within ten years, a FRIP, the proposed rule intended to At the January hearing, NAFCA also and that all locomotives subject to this require that conforming retroreflective expressed the view that the single car part be equipped within five years. sheeting be applied to that car at the air brake test is not the appropriate time time of its first SCABT after the effective for the initial application of Railroad Freight Cars date of the final rule. retroreflective material to freight cars. Newly constructed cars: Paragraph Although a few commenters Specifically, NAFCA commented that (a)(1) of proposed § 224.107 required addressed FRA’s proposal to require the ‘‘the body surface condition, that retroreflective sheeting be applied application of reflectors when a freight temperature, and preparation to newly manufactured rail cars at the car is being repainted or rebuilt, most environment on railroad repair or RIP time of the cars’ construction. This commenters expressed the view that the tracks is not optimal, potentially proposed requirement was intended to initial installation of reflectors should resulting in reduced life of the reflective ensure that newly manufactured rail not be required at the time of the material,’’ and therefore leading to cars are equipped with the proper SCABT. These commenters noted that at increased costs for the car owner. Mr. retroreflective material before being least one retroreflective material Hart, of ARC, echoed NAFCA’s concerns placed in service. In this final rule, FRA manufacturer recommends against the by explaining that the cleanliness of the has clarified this intent by specifying in application of retroreflective material to surface to which one applies paragraph (a)(1) of this section that rail cars under conditions of extreme retroreflective material is critical. Mr. retroreflective sheeting must be applied temperature. Specifically, 3M’s Hart explained that various surfaces to newly manufactured cars before the ‘‘Application Instructions for 3M (e.g., aluminum cars versus steel cars, cars are placed in service. Diamond Grade Conspicuity Markings etc.) have different preparation Existing cars without retroreflective on Rail Cars’’ notes that retroreflective requirements. For example, Mr. Hart sheeting: Paragraph (a)(2)(i) of proposed material should not be applied when air explained that in applying reflective § 224.107 required that retroreflective and application surface temperatures materials to freight cars with aluminum sheeting be applied to existing are below 45 °F or above 100 °F. surfaces, the outside surface must be unreflectorized freight cars when either Accordingly, several commenters noted etched with acid to remove the outer (1) the car was being repainted or that this temperature restriction would coating enabling the material to adhere rebuilt, or (2) the car underwent its first be a major obstacle in applying the to the car sides. Mr. Hart further single car air brake test (SCABT) retroreflective material at the time of the explained that ‘‘application techniques (required under 49 CFR 232.305) after SCABT in the many locations and skills must be acquired’’ and that if

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the material is not applied properly, it existing non-reflectorized freight cars implementation period, 100% of all will not appropriately adhere to the when, after May 31, 2005, the cars are domestically-owned freight cars would surface. In its comments, AAR also (1) repainted or rebuilt, or (2) within be equipped with retroreflective noted that because FRA’s proposed rule nine months after the car first undergoes sheeting. In other words, as proposed, provided for approval of alternative a SCABT as prescribed by 49 CFR even if a car owner had reflectorized standards, it would be ‘‘impossible’’ for 232.305, whichever occurs first. FRA 70% of its car fleet by the end of year SCABT facilities to be equipped to believes that most every freight car will three, by the end of year four, the car install retroreflective material pursuant be taken out of service at some time at owner would need to reflectorize at to the variety of reflectorization least once every nine months for either least another 10% of its fleet, and by the programs that could be in place. regularly scheduled maintenance or end of year five, the car owner would As an alternative to requiring that other necessary repairs. Allowing nine need to reflectorize at least another 10% retroreflective material be installed at months after the SCABT to apply of its fleet. In this scenario, because the the time of the SCABT, several retroreflective material allows car car owner reflectorized ahead of commenters, including AAR, CP, and owners and railroads to apply schedule in the first three years, to CN, recommended a more flexible retroreflective material while a car is out comply with the proposed schedule, the schedule whereby all owners of freight of service for these other reasons (and owner would have to complete the cars would be required to install the while the car is at an appropriate repair reflectorization of its entire freight car retroreflective material on their freight facility), thereby eliminating the need to fleet by the end of year six. This was not car fleets in accordance with the take a car out of service for the FRA’s intent. Accordingly, FRA has schedule FRA proposed for FRIPs. particular purpose of applying revised the schedule for application for These commenters further suggested retroreflective material. retroreflective material pursuant to this that all freight car owners be required to In paragraph (a)(2)(ii) of § 224.107 of alternative schedule by setting forth a report annually to FRA the status of this final rule FRA has retained the more general requirement that car their compliance with the FRIP proposed rule’s more flexible option of owners meet certain minimum schedule, not report in advance which allowing freight car owners to percentage milestones each year cars were planned to be reflectorized in throughout the 10-year implementation effectively ‘‘opt-out’’ of the default each particular year as the proposed period. For example, § 224.107(a)(2)(ii) schedule of § 224.107(a)(2)(i) and rule would require. Specifically, AAR of this final rule requires that as of May develop and implement their own asserted that allowing all car owners to 31, 2007 (approximately two years after schedule for reflectorization, provided reflectorize their freight car fleets in the effective date of this rule), owners certain milestones are met. In response accordance with the proposed FRIP reflectorizing their freight car fleets to the concerns expressed by several schedule and report compliance pursuant to this alternative schedule commenters regarding the proposed annually would yield several must have reflectorized at least 20% of information to be required in FRIPs, advantages over the system proposed in their total fleet; by May 31, 2008 however, FRA has streamlined the the NPRM. For example, AAR asserted (approximately three years after the that such a program would enable car reporting requirements for car owners effective date of this rule), owners must owners to (1) take weather conditions who elect to follow this alternative and have reflectorized at least 30% of their into account in scheduling cars for provided additional time from that total fleet; by May 31, 2009 reflectorization; (2) account for the proposed for car owners to develop and (approximately four years after the planned retirement of freight cars and submit to FRA their individualized effective date of this rule), owners must scheduled repainting; and (3) have reflectorization plans. Specifically, in have reflectorized at least 40% of their sufficient flexibility to change which this final rule paragraph (a)(2)(ii) of total fleet, until at the end of the 10-year cars would be reflectorized in a given § 224.107 provides that a freight car implementation period (i.e., May 31, year. owner may elect not to follow paragraph 2015), 100% of the entire domestically Although FRA continues to believe (a)(2)(i)’s schedule if, by July 1, 2005, owned freight car fleet is equipped with that the schedule set forth in the owner submits to FRA an initial retroreflective material in accordance § 224.107(a)(2)(i) of the proposed rule is Reflectorization Implementation with the rule. the most efficient and cost-effective Compliance Report (Compliance If a freight car owner elects the method of implementing a nationwide Report). The Compliance Report must, procedures of paragraph (a)(2)(ii) and reflectorization program, FRA at a minimum, (1) indicate how many submits a Compliance Report to FRA, recognizes the practical issues freight cars subject to the final rule are the owner is thereafter responsible for commenters raised regarding in the owner’s fleet at the time the meeting the percentage requirements of application of retroreflective material to Compliance Report is being prepared, paragraph (a)(2)(ii) (Table 3) and the rail cars at the time of the SCABT. FRA, and (2) contain the owner’s certification owner is responsible for submitting an however, does not believe that requiring that all freight cars in the identified fleet updated Compliance Report to FRA by all freight car owners to develop and will be equipped with the appropriate July 1st of each year throughout the 10- implement individualized retroreflective sheeting in conformance year implementation period. In keeping reflectorization plans would be an with the schedule set forth in Table 3 of with the requirements of the Paperwork efficient method of implementing a the rule. Although FRA intends the Reduction Act and the Government nationwide reflectorization program. schedule in Table 3 of this final rule to Paperwork Elimination Act, FRA Accordingly, FRA has revised the be consistent with that of the proposed anticipates providing car owners with proposed ‘‘default’’ schedule of rule, FRA has revised the language the option of submitting Compliance § 224.107(a)(2)(i) to allow car owners slightly to clarify FRA’s intent. As Reports to FRA electronically. and railroads a certain amount of proposed, § 224.107(a)(2)(ii) required If an owner fails to meet any of the flexibility as to when to apply that after the initial two years of the minimum milestones set forth in Table retroreflective material to existing non- implementation period, at least an 3 of this final rule, the car owner must reflectorized freight cars. Specifically, additional 10% of each owner’s freight report the failure in writing to FRA’s this final rule requires that car fleet be reflectorized each year, until Associate Administrator for Safety. retroreflective sheeting be applied to upon expiration of the 10-year Thereafter, the owner will be required to

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comply with the schedule set forth in bead encapsulated type retroreflective date of the final rule, would effectively paragraph (a)(2)(i) and the owner must sheeting, or any other reflective material require that the entire locomotive fleet take any additional action necessary to that is not retroreflective, would have to be equipped within two years. AAR, bring cars under his or her ownership or be brought into compliance with this citing the fact that FRA’s stated safety control into compliance. In other words, part in accordance with § 224.107(a)(2). justification for requiring if an owner fails to meet the minimum Because FRA received no comments reflectorization rests on the number of milestones set forth in Table 3 of this directly related to this proposed freight grade crossing accidents involving final rule, once this failure is identified, car grandfathering provision, FRA has motor vehicles striking trains after the the owner will be required to equip each retained this provision substantially as first two units of train consists (i.e., of the freight cars in the fleet subject to proposed. The term ‘‘unqualified motor vehicles striking freight cars, not this rule with retroreflective sheeting retroreflective sheeting’’ is discussed in locomotives), asserted that ‘‘[t]here is no within nine months of the cars’ next more detail in the analysis of §§ 224.5 safety justification for requiring SCABT (as required by and 224.107 of this final rule. locomotives to be reflectorized within § 224.107(a)(2)(i)) occurring after the Locomotives two years when freight car owners are end of the reporting period in which the given ten years.’’ Accordingly, AAR failure occurred. The car owner, Newly constructed locomotives: recommended that FRA require 40 however, remains responsible for Paragraph (b)(1) of proposed § 224.107 percent of an owner’s locomotive fleet ensuring that each freight car in his or required that retroreflective sheeting be be equipped with retroreflective her fleet subject to this rule is equipped applied to newly manufactured sheeting within the first two years with retroreflective sheeting conforming locomotives at the time of the following the effective date of the final to this rule by the end of the 10-year locomotives’ construction. This rule and 20 percent annually for the implementation period (i.e., by May 31, proposed requirement was intended to following three years. 2015). ensure that newly manufactured locomotives are equipped with the As indicated by FRA’s discussion of Existing cars already equipped with proper retroreflective material before proposed § 224.107 in the NPRM (68 FR retroreflective sheeting as of publication being placed in service. In this final 62960), FRA’s intent in the proposed date of final rule: Recognizing the rule, we have clarified this intent by rule was to ensure that the entire fleet voluntary efforts already underway by specifying in paragraph (b)(1) of this of domestically-owned locomotives many railroads and car owners to section that retroreflective sheeting subject to this rule would be equipped reflectorize their freight car fleets, must be applied to newly manufactured with conforming retroreflective sheeting paragraph (a)(3) of proposed § 224.107 locomotives before the locomotives are within five years of the effective date of provided that freight cars equipped with placed in service. the final rule. For practical reasons, at least one square foot of retroreflective Existing locomotives without however, FRA proposed to require that material, uniformly distributed over the retroreflective sheeting: Paragraph (b)(2) retroreflective sheeting be applied to length of each car side, will be proposed to require that retroreflective locomotives at the time of the biennial considered in compliance with this rule sheeting be applied to existing inspection (e.g., locomotives are already for ten years from the effective date of unreflectorized locomotives (i.e., out of service for the inspection and the final rule, provided that the sheeting locomotives that, as of the date of located at an appropriate facility where was not engineering grade, super publication of the final rule, are not application of retroreflective sheeting is engineering grade (enclosed lens), or equipped with at least one square foot feasible). FRA, however, is not opposed glass bead encapsulated type sheeting. of retroreflective sheeting on each side) to allowing locomotive owners As explained in the NPRM, FRA no later than the first biennial flexibility in deciding when to apply proposed a minimum requirement of inspection performed pursuant to 49 retroreflective material to existing non- one square foot of retroreflective CFR 229.29 occurring after the effective reflectorized locomotives, provided sheeting per car side under this section date of the final rule. Similar to the owners inform FRA of their plan and because based on the information schedule FRA proposed for the agree to meet certain milestones provided to FRA to date, it appears that application of retroreflective material to designed to ensure that the entire one square foot per side is the minimum freight cars, FRA proposed this domestically-owned locomotive fleet amount currently utilized in existing ‘‘default’’ schedule for locomotives in will be equipped with retroreflective voluntary reflectorization programs. If an attempt to achieve the most efficient material within five years. Accordingly, these car owners were required to and cost-effective implementation of a although this final rule retains the replace the retroreflective materials that nationwide reflectorization program. ‘‘default’’ schedule of proposed they voluntarily installed to improve FRA reasoned that by providing for the § 224.107(b)(2) (requiring that safety, it would have the effect of application of retroreflective sheeting retroreflective sheeting be applied to penalizing owners that demonstrated an when a locomotive is already out of existing non-reflectorized locomotives extra level of safety consciousness. This service for the required biennial at the time of the first biennial would have the unintended effect of inspection, the entire U.S. locomotive inspection after the effective date of the discouraging car owners from exploring fleet could be reflectorized well within rule), paragraph (b)(2)(ii) of § 224.107 in innovative approaches to improving the five-year implementation period and this final rule has been revised in a safety. As also explained in the NPRM, that locomotives would not incur any similar manner to paragraph (a)(2)(ii)’s FRA proposed to exclude all additional out of service time for the freight car provision. Specifically, engineering grade and glass bead purpose of reflectorization. paragraph (b)(2)(ii) provides that encapsulated type retroreflective In response to the proposed schedule locomotive owners may effectively ‘‘opt- sheeting because such sheeting does not for the reflectorization of locomotives, out’’ of the default schedule of meet the minimum photometric AAR noted that FRA’s proposal to paragraph (b)(2)(i) and develop and performance requirements of § 224.103. require existing non-reflectorized implement their own schedule for Accordingly, as proposed, freight cars locomotives to be equipped with reflectorization of their locomotive fleet, already equipped with engineering retroreflective material at the first provided certain milestones are met. grade, super engineering grade, or glass biennial inspection after the effective Paragraph (b)(2)(ii) now provides that a

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locomotive owner may elect not to rule with retroreflective sheeting at the material.11 Specifically, CN noted that follow paragraph (b)(2)(i)’s schedule, if locomotive’s next biennial inspection its fleet of locomotives in service in the by July 1, 2005, the owner submits to performed pursuant to 49 CFR 229.29 United States, both new and recently FRA a Compliance Report that, at a occurring after the end of the reporting repainted, is equipped with yellow minimum, (1) indicates how many period in which the failure occurred. stripes of ‘‘high-intensity grade’’ locomotives subject to the final rule are The locomotive owner, however, retroreflective material, approximately in the owner’s fleet at the time the remains responsible for ensuring that six inches wide, along the entire length Compliance Report is being prepared, each freight car in his or her fleet of the locomotive side sills. Further, CN and (2) contains the owner’s subject to this rule is equipped with noted that on a typical seventy foot certification that all locomotives in the retroreflective sheeting conforming to locomotive, this equates to identified fleet will be equipped with this rule by the end of the five-year approximately 32–35 square feet of retroreflective sheeting in conformance implementation period (i.e., by May 31, retroreflective material per side. CN with the schedule set forth in Table 4 of 2010). questioned FRA’s rationale for the rule. Table 4 requires that as of May Existing locomotives already excluding locomotives equipped with 31, 2007 (approximately two years after equipped with retroreflective sheeting as over 30 times the amount of required the effective date of this rule), of the publication date of the final rule: material from the grandfathering locomotive owners choosing to apply Again, recognizing the voluntary efforts provision merely because the material is retroreflective material pursuant to this already underway by many locomotive a different grade than that contemplated alternative schedule must have owners to reflectorize their locomotive by FRA’s proposal. Accordingly, CN reflectorized at least 40% of their total fleets, paragraph (b)(3) of proposed recommended that the proposed rule’s locomotive fleet; by May 31, 2008 § 224.107 provided that locomotives grandfathering provision for (approximately three years after the equipped with at least one square foot locomotives be revised to include effective date of this rule), owners must of retroreflective sheeting, uniformly locomotives with ‘‘large areas of have reflectorized 60% of their total distributed over the length of each reflective material of lower grade spread locomotive fleet; by May 31, 2009 locomotive side, would be considered in along the entire length’’ of the (approximately four years after the compliance with this rule for five years locomotive. effective date of this rule), locomotive from the effective date of the final rule, As explained above, FRA proposed to owners must have reflectorized 80% of provided that the sheeting was not exclude all engineering grade and glass their total locomotive fleet, until at the engineering grade, super engineering bead encapsulated type retroreflective end of the five-year implementation grade (enclosed lens), or glass bead sheeting from the grandfathering period (i.e., by May 31, 2010), 100% of encapsulated type sheeting. As provision because the sheeting does not the entire domestically-owned explained in the NPRM, FRA proposed meet the minimum photometric locomotive fleet is equipped with a minimum requirement of one square performance requirements of the retroreflective material in accordance foot of retroreflective sheeting per proposed rule. As detailed in the NPRM, with the rule. locomotive side because based on the however, FRA notes that research has If a locomotive owner elects the information provided to FRA to date, it consistently demonstrated that the procedures of paragraph (b)(2)(ii) and appears that one square foot per side is larger the reflector area, the smaller the submits a Compliance Report to FRA, the minimum amount currently utilized required SIA of the reflector. In other the owner is thereafter responsible for in existing voluntary reflectorization words, a larger amount of less-reflective compliance with the plan and the owner programs. If these locomotive owners material (material with a lower SIA) can is responsible for submitting an updated were required to replace the be just as effective as a smaller amount Compliance Report to FRA by July 1st retroreflective materials that they of more-reflective material (material of each year thereafter for the duration voluntarily installed to improve safety, with a higher SIA). Based on the of the five-year implementation period. it would have the effect of penalizing photometric performance requirements In keeping with the requirements of the owners that demonstrated an extra level of engineering grade and glass bead Paperwork Reduction Act and the of safety consciousness and encapsulated type retroreflective Government Paperwork Elimination discouraging these owners from sheeting set forth in ASTM standard D Act, FRA anticipates providing exploring innovative approaches to 4956–01a, FRA estimates that locomotive owners with the option of improving safety in the future. As also approximately three square feet of these submitting Compliance Reports to FRA explained in the NPRM, FRA proposed types of sheeting are necessary to electronically. to exclude all engineering grade and achieve the effectiveness of one square If a locomotive owner fails to meet glass bead encapsulated type foot of sheeting conforming to the any of the minimum milestones set forth retroreflective sheeting because such minimum photometric performance in Table 4 of this final rule, the sheeting does not meet the minimum requirements of this final rule. locomotive owner must report the photometric performance requirements failure in writing to FRA’s Associate of § 224.103. Accordingly, as proposed, 11 FRA notes that the term ‘‘diamond-grade’’ is a Administrator for Safety. Thereafter, the locomotives already equipped with brand name referring to particular retroreflective owner will be required to comply with engineering grade, super engineering products manufactured by 3M. FRA understands that ‘‘diamond-grade’’ is not a generic term referring the schedule set forth in paragraph grade, or glass bead encapsulated type to specific ASTM sheeting ‘‘Types,’’ nor is (b)(2)(i) and the owner must take any retroreflective sheeting, or any other ‘‘diamond-grade’’ an accurate shorthand for the additional action necessary to bring reflective material that is not group of three categories of retroreflective sheeting locomotives under his or her ownership retroreflective, would have to be that FRA specifically proposed to exclude from the locomotive grandfathering provision of or control into compliance. In other brought into compliance with this part § 224.107(b)(2) (i.e., engineering grade, super words, if an owner fails to meet any of in accordance with § 224.107(a)(2). engineering grade, or glass bead encapsulated the minimum milestones set forth in A few commenters, including AAR sheeting). Nonetheless, FRA interprets AAR’s and Table 4 of this final rule, once this and CN, expressed the view that FRA’s DN’s comments as asserting that FRA’s proposal to specifically exclude engineering grade, super failure is identified, the owner will be proposed locomotive grandfathering engineering grade, and glass bead encapsulated required to equip each of the provision was too limited because it sheeting from the locomotive grandfathering locomotives in the fleet subject to this only encompassed ‘‘diamond-grade’’ provision as too narrow.

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Accordingly, paragraph (b)(3) of Section 224.109 Inspection, Repair, not appropriate to require that § 224.107 of this final rule has been and Replacement maintenance be performed on the revised to provide that locomotives As it did in the NPRM, this section of retroreflective material at the SCABT. equipped with at least three square feet the final rule sets forth the requirements Accordingly, AAR recommended that of ‘‘unqualified retroreflective sheeting’’ for the periodic inspection and car owners be afforded nine months will be considered in compliance with maintenance of retroreflective material after the SCABT in which to perform this rule through May 31, 2015 on freight rolling stock. Paragraph (a) of any necessary maintenance on (approximately ten years from the proposed § 224.109 required that retroreflective material. NAFCA, on the effective date of the final rule).12 As retroreflective sheeting on freight cars other hand, asserted that car owners discussed in the analysis of § 224.5 subject to this part be visually inspected should be allowed at least 12 months above, the term ‘‘unqualified for presence and condition whenever a after the SCABT to correct any retroreflective sheeting’’ has been car underwent a single car air brake test identified deficiencies in retroreflective defined to include all engineering grade required under 49 CFR 232.305. material. In support of its and glass bead encapsulated type Likewise, paragraph (b) of proposed recommendation, NAFCA noted that retroreflective material (i.e., the material § 224.109 required that retroreflective private car operators (shippers) typically obligate themselves to acquire and ship FRA previously excluded from the sheeting on locomotives subject to this commodities as much as a year in FRA’s proposed locomotive part be visually inspected for presence advance. NAFCA also noted that unlike grandfathering provision), as well as and condition whenever the locomotive the typical railroads, private car ‘‘high-intensity’’ type sheeting as underwent an annual inspection required under 49 CFR 229.27. Both operators seldom size excess capacity described in ASTM standard D 4956– into their fleets. Notwithstanding 01a (i.e., ASTM Type I, II, III, or IV).13 paragraphs (a) and (b) proposed that, if, upon inspection, more than 20 percent NAFCA’s comments, as explained in the Although this final rule requires that of the amount of sheeting required on discussion of § 224.107 above, FRA most railroads equip all their either side of the car or locomotive believes that almost every freight car locomotives subject to this rule with under § 224.105 is found to be will be taken out of service at least once conforming retroreflective sheeting ‘‘damaged, obscured, or missing,’’ that every nine months for either regularly within five years of the effective date of ‘‘damaged, obscured, or missing’’ scheduled maintenance or other the rule, paragraph (b)(4) of § 224.107, sheeting must be replaced. necessary repairs. Allowing nine which has not changed from that A few commenters, including AAR, months after the SCABT to repair or proposed in the NPRM, provides that NAFCA, and RSI, noted that the term replace any retroreflective material certain small railroads may take an ‘‘damaged’’ was not defined in the requiring maintenance under this rule additional five years to bring their proposed rule. These commenters allows car owners and railroads to apply locomotive fleets into compliance with indicated that FRA’s intent in including the material while a car is out of service the rule. Specifically, paragraph (b)(4) the undefined term ‘‘damaged’’ as a for these other reasons (and while the provides that railroads with fewer than maintenance standard in § 224.109 was car is at an appropriate repair facility), 400,000 annual employee work hours unclear and that the term itself only therefore eliminating the need to take a that do not share locomotive power with added confusion to the inspection car out of service for the particular a railroad with 400,000 or more annual requirement. Accordingly, these purpose of repairing or replacing employee work hours may take up to commenters recommended that the term retroreflective material in need of ten years to bring their locomotive fleets ‘‘damaged’’ be deleted from the rule. maintenance. Accordingly, § 224.109 of into compliance with the rule. This FRA recognizes the concerns of these this final rule retains the proposed alternate compliance date is intended to commenters regarding the undefined rule’s requirement that retroreflective apply only to a limited number of small term. Nonetheless, FRA believes that the sheeting on freight cars be visually inspected for presence and condition railroads whose operations would term ‘‘damaged’’ is necessary to whenever a car undergoes a SCABT. justify the continued use of accurately describe a situation in which FRA has revised this section to require unreflectorized locomotives (i.e., those maintenance of retroreflective material the railroad or contractor performing the small railroad operations that do not would be required. Accordingly, as SCABT to inspect the car for presence typically involve locomotives providing discussed in the analysis of § 224.5 and condition of the required ‘‘distributed power’’ or otherwise above, FRA has included a definition for the term ‘‘damaged’’ in this final rule. retroreflective material. If the inspecting moving unilluminated in the middle of railroad or contractor determines that train consists). Commenters also noted that there may be circumstances in which maintenance is necessary under this retroreflective material is damaged or rule, the railroad or contractor is 12 FRA notes that it has revised the grandfather required to promptly notify the car provision of § 224.107(b)(3) to provide that obscured, but the material can be locomotives grandfathered under the final rule will repaired instead of replaced. FRA agrees owner of the missing, damaged, or be considerred in compliance with the rule for ten with commenters on this point, and the obscured sheeting, and car owners are years, consistent with the grandfather provision of agency has accordingly revised afforded nine months from the date they § 224.107(a)(3) for freight cars. are notified of the defective condition of 13 FRA notes that the proposed rule did not § 224.109 to allow for the repair or specifically exclude ‘‘high-intensity’’ type replacement, as appropriate, of material the material to properly repair or retroreflective sheeting (ASTM Type IV sheeting), requiring maintenance. replace the material. but because high-intensity type sheeting, like all Several commenters also expressed A few commenters also asserted that engineering grade sheeting and glass bead encapsulated type sheeting, will not meet the the view that although it is appropriate the 20% maintenance threshold of minimum photometric performance standards of to require that retroreflective material be proposed § 224.109 was impractical and this rule, it is necessary for locomotives to be inspected at the SCABT, for the same arbitrary. These commenters suggested equipped with more than one square foot of ‘‘high- reasons that it is not appropriate to that a 50% maintenance threshold intensity’’ material in order to achieve the effectiveness of one square foot of sheeting require the installation of retroreflective would be more appropriate. For conforming to the minimum photometric material at the SCABT (detailed in the example, RSI commented that the 20 performance requirements of this rule. discussion of § 224.107 above), it is also percent standard ‘‘is too hard to judge

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in a railroad environment’’ and NAFCA FRA’s cost analysis. * * * Different cars accidents involved a motor vehicle commented that the 20 percent may require different technologies to striking the side of a train that was maintenance threshold ‘‘may result in a remove the tape adding to the costs occupying the crossing (known as ‘‘run- greater degree of car reflectorization associated with the NPRM.’’ As into-train’’ or RIT accidents). than is necessary to accomplish the proposed and as noted in § 224.107 of There are currently no requirements purpose’’ of the rule. Further, AAR, in this final rule, it is not necessary to for lighting or for reflective markings on its comments, noted that at the January remove old reflective material when the sides of freight cars. Research, 2004 hearing, a representative of FRA applying new retroreflective material however, has established that reflectors stated that in order to account for the pursuant to this part, thus the costs for on the sides of rail cars can make trains effects of dirt and damage, the proposed the re-application of material after the more visible to motorists. Reflective rule required twice the amount of initial ten-year implementation of this tape increases the conspicuity of freight material than research demonstrated rule will be no greater than the original cars so motorists can identify them and was necessary to provide adequate application. better judge their speed and distance. reflectorization. (See Hearing AAR, however, noted one ambiguity This greater visibility will help drivers Transcript, p. 124). FRA realizes, in § 224.111 as proposed. Specifically, avoid some accidents and reduce the however, that the hearing officer AAR noted that proposed severity of other accidents that are inadvertently misstated the exact § 224.107(a)(3) provided that a car with unavoidable. technical requirements of the rule in complying retroreflective sheeting The primary source of societal this regard. As noted in the discussion would be considered in compliance benefits from freight car reflectorization of § 224.106 above and detailed in the with this rule for ten years and would result from the avoidance of a NPRM (68 FR at 62956), FRA’s proposed similarly, proposed § 224.107(b)(3) portion of the fatalities, injuries, and rule required only approximately 30% provided that locomotives already property damage that result from RIT more material (about 1 additional square equipped with reflectorization material accidents. Benefits were calculated in foot on each side of most typically-sized meeting FRA’s grandfathering terms of the decline in the probability freight rolling stock). By requiring 30% requirements would be considered in of certain accidents. These calculations more retroreflective material than compliance with this rule for five years. were based on 1999–2002 RIT accidents necessary, if less than 20% of that AAR noted, however, that because as reported in the FRA’s Rail Accident/ material is damaged, obscured, or proposed § 224.111 provided that Incident Reporting System (‘‘RAIRS’’) missing, the remaining reflective retroreflective sheeting must be replaced database. The FRA specifically used material could still provide sufficient ten years after the date of initial recent data to account for changes in reflectivity, even if further damage installation, the section could be read as crossing characteristics, including the occurred before maintenance was taking precedence over proposed upgrading of crossing warning devices. performed on the material. If §§ 224.107(a)(3) and (b)(3), thereby The following table shows the number maintenance was not performed until requiring the application of of accidents, fatalities, and injuries 50% of the retroreflective material is retroreflective material to freight rolling resulting from the applicable RIT damaged, obscured, or missing, it would stock already equipped with reflective accidents: be necessary to repair or replace the sheeting as of the effective date of the material immediately or else the final rule prior to the expiration of a ten- REFLECTORIZATION BENEFIT POOL reflective material would fail to meet year period. FRA agrees with AAR’s [RIT accident subset] even the minimum performance concern in this regard and because FRA requirements of this rule. Accordingly, Annual does not intend that § 224.111 take 1999–2002 Average this final rule retains the proposed 20% precedence over §§ 224.107(a)(3) and maintenance threshold. (b)(3), FRA has revised § 224.111 to Accidents ...... 782 195.5 Section 224.111 Renewal make clear that the effective date of the Fatalities: ...... 85 21.25 final rule will be considered the initial Injuries ...... 348 87 As proposed in the NPRM, this date of installation for freight cars and section of the final rule requires that all The table below presents the retroreflective sheeting required under locomotives covered by §§ 224.107(a)(3) and (b)(3). estimated twenty-year monetary costs this part be replaced with new associated with complying with the conforming sheeting, regardless of its Regulatory Impact and Notices requirements contained in this final condition, no later than ten years after rule, at a discount rate of 7%. In the date of initial installation. As A. Executive Order 12866 and DOT Regulatory Policies and Procedures addition to the costs associated with explained in the NPRM, this 10-year reflectorizing the fleet of freight railcars, The FRA has conducted a Regulatory renewal period is based on most the FRA has included the costs Analysis of this final rule in accordance manufacturers’ stated useful life of associated with reflectorizing the retroreflective material. As noted in the with Executive Order 12866. This approximately 20% of the locomotive NPRM, however, FRA will monitor the document estimates the costs and fleet that has not already been treated retroreflective qualities of various fleet consequences of the rule as well as its with reflective materials. segments over time and may extend the anticipated economic and safety ten-year interval, if warranted. One benefits. A copy of this document has TOTAL TWENTY-YEAR COSTS (NPV, commenter, RSI, responded to the been placed in the docket for this 7%) proposed renewal period by expressing rulemaking. Following is a summary of the view that given the typical 50-year the findings. life of a freight car, it is not practical to The FRA’s analysis examines the Installation on new or re- painted railcars ...... $52,862,702 require the replacement of the tape potential for reflective material to cost- Maintenance on preexisting every ten years. Specifically, RSI effectively reduce fatalities and injuries reflectorized railcars ...... 1,995,895 asserted that ‘‘[t]he cost of removing the due to motorists not seeing trains. Over Maintenance on newly old tape, preparing the surface, and the past ten years, an average of 23 reflectorized cars ...... 3,539,885 replacing the tape was not included in percent of reported grade crossing Reapplication on older cars .. 14,762,187

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TOTAL TWENTY-YEAR COSTS (NPV, model consisting of an analysis of the the resultant casualties and property 7%)—Continued statistical probability of different damages. potential severities of hazard or injury Installation and maintenance B. Regulatory Flexibility Act of 1980 and and based on both laboratory Executive Order 13272 on locomotive fleet ...... 1,375,161 experiments and data from FRA’s The Regulatory Flexibility Act of 1980 Total Costs ...... 74,535,830 RAIRS database, and (3) previous studies analyzing the effectiveness of (5 U.S.C. 601–612) requires a review of final rules to assess their impact on Taking into consideration the reflective materials on large trucks. The FRA estimates the twenty-year small entities unless the Secretary material, installation, and maintenance certifies that a final rule will not have costs, FRA’s analysis determines that discounted benefits of a railcar reflectorization program (discounted at a significant economic impact on a over a 20-year period, the discounted substantial number of small entities. cost to reflectorize the entire freight a rate of 7%), in terms of avoided casualties and property damage, to be in FRA has conducted a regulatory railroad fleet would be about $74.5 flexibility analysis of this final rule’s million. the range of $202 million, $151 million, or $220 million, depending on the impact on small entities, and the The FRA recognizes that the method employed. In addition, the assessment has been placed in the effectiveness of retroreflectors and, public docket for this proceeding. FRA’s therefore, the benefits to be gained from twenty-year discounted benefits of reflectorizing the 20% of the locomotive analysis concluded that this final rule their use, will vary by circumstances would not have a significant economic (e.g. nighttime versus daytime fleet that is not already reflectorized is approximately $837,749.53. impact on a substantial number of small conditions, clear versus cloudy weather, entities, and accordingly, FRA certifies presence of other warning devices at the that this rule will not have a significant TOTAL TWENTY-YEAR SAFETY crossings, train speed and length, etc.). economic impact on a substantial Thus, the forecasting of the benefits that BENEFITS MONETIZED (NPV, 7%) number of small entities. would likely result from reflectorization requires the exercise of judgment and Grade Crossing Expert Ben- C. Paperwork Reduction Act of 1995 necessarily includes subjective efits ...... $202,072,296 The information collection elements. Accordingly, the FRA Signal Detection Theory ...... 151,422,826 requirements in this final rule have been employed three completely separate NHTSA Study...... 223,137,643 submitted for approval to the Office of approaches to the estimation of benefits. Management and Budget (OMB) under Benefit estimates were based on varying Accordingly, the FRA concludes that the Paperwork Reduction Act of 1995, effectiveness rates derived from (1) the reflectorization of railroad freight 44 U.S.C. 3501 et seq. The sections that Subjective estimates of reflector equipment is a cost-effective way to contain the new information collection effectiveness by internal FRA grade reduce the number of accidents at requirements and the estimated time to crossing experts, (2) a signal detection highway-rail grade crossings as well as fulfill each requirement are as follows:

Average Total annual Total annual CFR section Respondent universe Total annual responses time per burden burden cost response hours ($)

224.7—Waivers ...... 685 Railroads/Car Owners 10 petitions ...... 1 hour ...... 20 740 224.15—Special Approval Procedures— 3 Manufacturers ...... 10 petitions ...... 40 hours ... 400 20,560 Petitions. —Public Comment ...... 3 Manufacturers/Railroads 5 comments ...... 1 hour ...... 5 185 224.107—Implementation Schedule: Freight Cars. —Existing Freight Cars w/o 685 Railroads/Car Owners 400 Reports/Forms ...... 15 minutes 100 3,700 Retroreflective Sheeting. —Updated Reflectorization Compli- 685 Railroads/Car Owners 400 Reports/Forms ...... 20 hours ... 8,000 296,000 ance Reports. —Failure Reports ...... 685 Railroads/Car Owners 5 Failure Reports ...... 2 hours ..... 10 370 —Existing Cars with Retroreflective 685 Railroads/Car Owners 172 Reports/Forms ...... 20 hours ... 3,440 127,280 Sheeting. Implementation Schedule: Locomotives —Existing Locomotives w/o 685 Railroads/Car Owners 35 Reports/Forms ...... 15 minutes 9 333 Retroreflective Sheeting. —Updated Reflectorization Compli- 685 Railroads/Car Owners 35 Reports/Forms ...... 3 hours ..... 105 3,885 ance Reports. —Failure Reports ...... 685 Railroads/Car Owners 1 Failure Report ...... 2 hours ..... 2 74 —Existing Locomotives with 685 Railroads/Car Owners 617 Reports/Forms ...... 4 hours ..... 2,468 91,316 Retroreflective Sheeting. 224.109—Inspection, Repair, Replace- AAR + 300 Car Shops ...... 240,000 Notifications ...... 10 minutes 40,000 1,560,000 ment—Freight Cars. —Locomotives: Records of Restric- 22,800 Locomotives ...... 4,560 records ...... 3 minutes .. 228 10,488 tion.

All estimates include the time for reviewing the information. For OMB is required to make a decision reviewing instructions; searching information or a copy of the paperwork concerning the collection of information existing data sources; gathering or package submitted to OMB, contact requirements contained in this interim maintaining the needed data; and Robert Brogan at 202–493–6292. final rule between 30 and 60 days after

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publication of this document in the 26, 1999) as required by the National G. Energy Impact Federal Register. Environmental Policy Act (42 U.S.C. Executive Order 13211 requires FRA cannot impose a penalty on 4321 et seq.), other environmental Federal agencies to prepare a Statement persons for violating information statutes, Executive Orders, and related of Energy Effects for any ‘‘significant collection requirements which do not regulatory requirements. FRA has energy action.’’ 66 FR 28355, May 22, display a current OMB control number, determined that this final rule is not a 2001. Under the Executive Order, a if required. FRA intends to obtain major FRA action (requiring the ‘‘significant energy action’’ is defined as current OMB control numbers for any preparation of an environmental impact any action by an agency (normally new information collection statement or environmental assessment) published in the Federal Register) that requirements resulting from this because it is categorically excluded from promulgates or is expected to lead to the rulemaking action prior to the effective detailed environmental review pursuant promulgation of a final rule or date of this final rule. The OMB control to section 4(c) of FRA’s Procedures. 64 regulation, including notices of inquiry, number, when assigned, will be FR 28547, May 26, 1999. Section 4(c) of advance notices of proposed announced by separate notice in the FRA’s Procedures identifies twenty rulemaking, and notices of proposed Federal Register. classes of FRA actions that are rulemaking: (1)(i) That is a significant D. Federalism Implications categorically excluded from the regulatory action under Executive Order Executive Order 13132, entitled requirements for conducting a detailed 12866 or any successor order, and (ii) ‘‘Federalism,’’ issued on August 4, 1999, environmental review. FRA further that is likely to have a significant requires that each agency ‘‘in a considered this final rule in accordance adverse effect on the supply, separately identified portion of the with section 4(c) and (e) of FRA’s distribution, or use of energy; or (2) that preamble to the regulation as it is to be Procedures to determine if extraordinary is designated by the Administrator of issued in the Federal Register, provide circumstances exist with respect to this the Office of Information and Regulatory to the Director of the Office of final rule that might trigger the need for Affairs as a significant energy action. Management and Budget a federalism a more detailed environmental review. FRA has evaluated this final rule in summary impact statement, which After conducting this review, FRA has accordance with Executive Order 13211. consists of a description of the extent of determined that extraordinary FRA has determined that this final rule the agency’s prior consultation with circumstances do not exist that might is not likely to have a significant State and local officials, a summary of trigger the need for a more detailed adverse effect on the supply, the nature of their concerns and the environmental review. As a result, FRA distribution, or use of energy. agency’s position supporting the need to finds that this regulation is not a major Consequently, FRA has determined that issue the regulation, and a statement of Federal action significantly affecting the this regulatory action is not a the extent to which the concerns of quality of the human environment. ‘‘significant energy action’’ within the State and local officials have been met.’’ meaning of Executive Order 13211. F. Unfunded Mandates Reform Act of FRA believes it is in compliance with H. Privacy Act Executive Order 13132. This final rule 1995 will not have a substantial effect on the Anyone is able to search the Pursuant to Section 201 of the electronic form of all comments States, on the relationship between the Unfunded Mandates Reform Act of 1995 national government and the States, or received into any of our dockets by the (Pub. L. 104–4, 2 U.S.C. 1531), each name of the individual submitting the on the distribution of power and Federal agency ‘‘shall, unless otherwise responsibilities among the various comment (or signing the comment, if prohibited by law, assess the effects of submitted on behalf of an association, levels of government. This final rule Federal regulatory actions on State, will not have federalism implications business, labor union, etc.). You may local, and tribal governments, and the review DOT’s complete Privacy Act that impose substantial direct private sector (other than to the extent compliance costs on State and local Statement in the Federal Register that such regulations incorporate published on April 11, 2000 (Volume governments. requirements specifically set forth in In addition, FRA notes that the public 65, Number 70; Pages 19477–78) or you law).’’ Section 202 of the Act (2 U.S.C. docket in this proceeding has been open may visit http://dms.dot.gov. 1532) further requires that ‘‘before for over four years. Virtually all promulgating any general notice of List of Subjects in 49 CFR Part 224 comments received from State and local proposed rulemaking that is likely to Incorporation by reference, Penalties, governments support a federal result in the promulgation of any rule Railroad locomotive safety, Railroad reflectorization requirement. Under 49 U.S.C. 20106, issuance of that includes any Federal mandate that safety, and Reporting and recordkeeping this regulation preempts any State law, may result in the expenditure by State, requirements. rule, regulation, order, or standard local, and tribal governments, in the The Rule covering the same subject matter, except aggregate, or by the private sector, of I a provision to eliminate or reduce an $120,700,000 or more (as adjusted for In consideration of the foregoing, FRA essentially local safety hazard, that is inflation) in any 1 year, and before amends chapter II, subtitle B, of title 49, not incompatible with Federal law or promulgating any final rule for which a Code of Federal Regulations to add part regulation and does not unreasonably general notice of proposed rulemaking 224 as follows: burden interstate commerce. (See was published, the agency shall prepare a written statement’’ detailing the effect PART 224—REFLECTORIZATION OF discussion in the section-by-section RAIL FREIGHT ROLLING STOCK analysis of § 224.13). on State, local, and tribal governments and the private sector. This proposed Subpart A—General E. Environmental Impact rule will not result in the expenditure, Sec. FRA has evaluated this final rule in in the aggregate, of $120,700,000 or 224.1 Purpose and scope. accordance with its ‘‘Procedures for more in any one year, and thus 222.3 Applicability. Considering Environmental Impacts’’ preparation of such a statement is not 224.5 Definitions. (FRA’s Procedures) (64 FR 28545, May required. 224.7 Waivers.

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224.9 Responsibility for compliance. a public or private highway-rail grade Railroad means all forms of non- 224.11 Penalties. crossing and are used for revenue or highway ground transportation that run 224.13 Preemptive effect. work train service, except: on rails or electromagnetic guideways, 224.15 Special approval procedures. (a) Freight rolling stock that operates including high speed ground Subpart B—Application, Inspection, and only on track inside an installation that transportation systems that connect Maintenance of Retroreflective Material is not part of the general railroad system metropolitan areas, without regard to 224.101 General requirements. of transportation; whether they use new technologies not 224.103 Characteristics of retroreflective (b) Rapid transit operations in an associated with traditional railroads. sheeting. urban area that are not connected to the Railroad freight car has the meaning 224.105 Sheeting dimensions and quantity. general railroad system of assigned by § 215.5 of this chapter. 224.106 Location of retroreflective sheeting. transportation; or Tank car means a rail car, the body 224.107 Implementation schedule. (c) Locomotives and passenger cars of which consists of a tank for 224.109 Inspection, repair, and used exclusively in passenger service. transporting liquids. replacement. Unqualified retroreflective sheeting 224.111 Renewal. § 224.5 Definitions. means engineering grade sheeting, super Appendix A to Part 224—Schedule of Civil Administrator means the engineering grade sheeting (enclosed Penalties. Administrator of the Federal Railroad lens) or high-intensity type sheeting Appendix B to Part 224—Reflectorization Administration or the Administrator’s Implementation Compliance Report. (ASTM Type I, II, III, or IV Sheeting) as delegate. described in ASTM International Authority: 49 U.S.C. 20103, 20107, 20148 Associate Administrator means the Standard D–4956–01a, ‘‘Standard and 21301; 28 U.S.C. 2461; and 49 CFR 1.49. Associate Administrator for Safety, Specification for Retroreflective Federal Railroad Administration, or the Subpart A—General Sheeting for Traffic Control.’’ Associate Administrator’s delegate. Work train means a non-revenue § 224.1 Purpose and scope. Damaged means scratched, broken, service train used for the maintenance chipped, peeled, or delaminated. and upkeep service of the railroad. (a) The purpose of this part is to Flat car means a car having a flat floor reduce highway-rail grade crossing or deck on the underframe with no § 224.7 Waivers. accidents and deaths, injuries, and sides, ends or roof (including spine cars, (a) Any person subject to a property damage resulting from those articulated and mult-unit intermodal accidents, by enhancing the conspicuity requirement of this part may petition cars). the Administrator for a waiver of of rail freight rolling stock so as to Freight rolling stock means: compliance with such requirement. The increase its detectability by motor (1) Any locomotive subject to part 229 filing of such a petition does not affect vehicle operators at night and under of this chapter used to haul or switch that person’s responsibility for conditions of poor visibility. freight cars (whether in revenue or work compliance with that requirement while (b) In order to achieve cost-effective train service); and mitigation of collision risk at highway- the petition is being considered. (2) Any railroad freight car subject to (b) Each petition for waiver under this rail grade crossings, this part establishes part 215 of this chapter (including a car section shall be filed in the manner and the duties of freight rolling stock owners stenciled MW pursuant to § 215.305). contain the information required by part (including those who manage Freight rolling stock owner means any 211 of this chapter. maintenance of freight rolling stock, person who owns freight rolling stock, (c) If the Administrator finds that a supply freight rolling stock for is a lessee of freight rolling stock, waiver of compliance is in the public transportation, or offer freight rolling manages the maintenance or use of interest and is consistent with railroad stock in transportation) and railroads to freight rolling stock on behalf of an safety, the Administrator may grant the progressively apply retroreflective owner or one or more lessors or lessees, waiver subject to any conditions that the material to freight rolling stock, and to or otherwise controls the maintenance Administrator deems necessary. periodically inspect and maintain that or use of freight rolling stock. material. Freight rolling stock owners, Locomotive has the meaning assigned § 224.9 Responsibility for compliance. however, are under no duty to install, by § 229.5 of this chapter, but for (a) Freight rolling stock owners, clean or otherwise maintain, or repair purposes of this part applies only to a railroads, and (with respect to reflective material except as specified in locomotive used in the transportation of certification of material) manufacturers this part. freight or the operation of a work train. of retroreflective material, are primarily (c) This part establishes a schedule for Obscured means concealed or hidden responsible for compliance with this the application of retroreflective (i.e., covered up, as where a layer of part. However, any person that performs material to rail freight rolling stock and paint or dense chemical residue blocks any function or task required by this prescribes standards for the application, all incoming light); this term does not part (including any employee, agent, or inspection, and maintenance of refer to ordinary accumulations of dirt, contractor of the aforementioned), must retroreflective material to rail freight grime, or ice resulting from the normal perform that function in accordance rolling stock for the purpose of railroad operating environment. with this part. enhancing its detectability at highway- Person means an entity of any type (b) Any person performing any rail grade crossings. This part does not covered under 1 U.S.C. 1, including but function or task required by this part restrict a freight rolling stock owner or not limited to the following: A railroad; shall be deemed to have consented to railroad from applying retroreflective a manager, supervisor, official, or other FRA inspection of the person’s facilities material to freight rolling stock for other employee or agent of a railroad; any and records to the extent necessary to purposes if not inconsistent with the owner, manufacturer, lessor, or lessee of determine whether the function or task recognizable pattern required by this railroad equipment, track or facilities; is being performed in accordance with part. any independent contractor providing the requirements of this part. goods or services to a railroad; and any § 224.3 Applicability. employee of such an owner, § 224.11 Penalties. This part applies to all railroad freight manufacturer, lessor, lessee, or (a) Any person (including but not cars and locomotives that operate over independent contractor. limited to a railroad; any manager,

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supervisor, official, or other employee Docket Clerk, Office of Chief Counsel, and a copy of the notice is placed in the or agent of a railroad; any owner, Federal Railroad Administration, RCC– electronic docket of the proceeding. manufacturer, lessor, or lessee of 10, Mail Stop 10, 1120 Vermont Ave., railroad equipment, track, or facilities; NW., Washington, DC 20590. Subpart B—Application, Inspection, and any employee of such owner, (c) Notice. FRA will publish a notice and Maintenance of Retroreflective manufacturer, lessor, lessee, or in the Federal Register concerning each Material petition under paragraph (b) of this independent contractor) who violates § 224.101 General requirements. any requirement of this part or causes section. the violation of any such requirement is (d) Public comment. FRA will provide All rail freight rolling stock subject to subject to a civil penalty of at least $550, a period of not less than 30 days from this part shall be equipped with but not more than $11,000 per violation, the date of publication of the notice in retroreflective sheeting that conforms to except that: Penalties may be assessed the Federal Register during which any the requirements of this part. against individuals only for willful person may comment on the petition. Notwithstanding any other provision of violations, and, where a grossly (1) Each comment shall set forth this chapter, the application, inspection, negligent violation or a pattern of specifically the basis upon which it is and maintenance of that sheeting shall repeated violations has created an made, and contain a concise statement be conducted in accordance with this imminent hazard of death or injury to of the interest of the commenter in the subpart or in accordance with an persons, or has caused death or injury, proceeding. alternative standard providing at least (2) Each comment shall be submitted a penalty not to exceed $27,000 per an equivalent level of safety after special to the DOT Central Docket Management violation may be assessed. Each day a approval of FRA under § 224.15. System, Nassif Building, Room Pl–401, violation continues shall constitute a 400 Seventh Street, SW., Washington, § 224.103 Characteristics of retroreflective separate offense. Appendix A to this DC 20590, and shall contain the sheeting. part contains a schedule of civil penalty assigned docket number which appears amounts used in connection with this (a) Construction. Retroreflective in the Federal Register for that part. sheeting applied pursuant to this part proceeding. Such submission may be in (b) Any person who knowingly and shall consist of a smooth, flat, written or electronic form consistent willfully falsifies a record or report transparent exterior film with with the standards and requirements required by this part is subject to microprismatic retroreflective elements established by the Central Docket criminal penalties under 49 U.S.C. embedded in or suspended beneath the Management System and posted on its 21311. film so as to form a non-exposed Web site at http://dms.dot.gov. retroreflective optical system. (3) In the event FRA determines that § 224.13 Preemptive effect. (b) Color. Retroreflective sheeting it requires additional information to Under 49 U.S.C. 20106, issuance of applied pursuant to this part shall be this part preempts any State law, rule, appropriately consider the petition, FRA will conduct a hearing on the petition yellow or white as specified by the regulation, or order covering the same chromaticity coordinates of ASTM subject matter, except an additional or in accordance with the procedures provided in § 211.25 of this chapter. International’s Standard D 4956–01a, more stringent law, rule, regulation, or ‘‘Standard Specification for order that is necessary to eliminate or (e) Disposition of petitions. (1) If FRA finds that the petition complies with the Retroreflective Sheeting for Traffic reduce an essentially local safety Control.’’ The Director of the Federal hazard; that is not incompatible with a requirements of this section and that the proposed alternative standard is Register approves the incorporation by law, rule, regulation, or order of the reference of this standard in this section United States Government; and that acceptable or changes are justified, or both, the petition will be granted, in accordance with 5 U.S.C. 552(a) and does not unreasonably burden interstate 1 CFR part 51. You may obtain a copy commerce. normally within 90 days of its receipt. The Associate Administrator may of the incorporated standard from § 224.15 Special approval procedures. determine the applicability of other ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West (a) General. The following procedures technical requirements of this part when Conshohocken, PA 19428–2959. You govern consideration and action upon rendering a decision on the petition. If may inspect a copy of the incorporated requests for special approval of the petition is neither granted nor standard at the Federal Railroad alternative standards under § 224.103(e). denied within 90 days, the petition Administration, Docket Clerk, 1120 (b) Petitions. (1) Each petition for remains pending for decision. FRA may Vermont Ave., NW., Suite 7000, or at special approval of an alternative attach special conditions to the approval the National Archives and Records standard shall contain— of the petition. Following the approval (i) The name, title, address, and of a petition, FRA may reopen Administration (NARA). For telephone number of the primary person consideration of the petition for cause information on the availability of this to be contacted with regard to the stated. material at NARA, call 202–741–6030, (2) If FRA finds that the petition does or go to http://www.archives.gov/ petition; _ _ _ _ (ii) The alternative proposed, in not comply with the requirements of federal register/code of federal _ detail, to be substituted for the this section, or that the proposed regulations/ibr locations.html. particular requirements of this part; and alternative standard is not acceptable or (c) Performance. Retroreflective (iii) Appropriate data and analysis that the proposed changes are not sheeting applied pursuant to this part establishing that the alternative will justified, or both, the petition will be shall meet the requirements of ASTM D provide at least an equivalent level of denied, normally within 90 days of its 4956–01a, for Type V Sheeting, except safety and meet the requirements of receipt. for the photometric requirements, and § 224.103(e). (3) When FRA grants or denies a shall, as initially applied, meet the (2) Three copies of each petition for petition, or reopens consideration of a minimum photometric performance special approval of an alternative petition, written notice is sent to the requirements specified in Table 1 of this standard shall be submitted to the petitioner and other interested parties subpart.

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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° ...... 400 600 100 160 30° ...... 220 350 45 75

(d) Certification. The characters shall provide data and analysis sheeting applied under this part shall be ‘‘FRA–224’’, constituting the sufficient to establish that the applied in strips 4 inches wide and 18 manufacturer’s certification that the technology will result in conspicuity or 36 inches long, unless otherwise retroreflective sheeting conforms to the and durability at least equal to sheeting specified. The amount of retroreflective requirements of paragraphs (a) through described in paragraphs (a) through (c) sheeting to be applied to each car or (c) of this section, shall appear at least of this section applied in accordance locomotive subject to this part is once on the exposed surface of each with this part and will present a dependent on the length of the car or piece of sheeting in the final recognizable visual target that is locomotive and the color of the application. The characters shall be a suitably consistent with freight rolling sheeting. For purposes of this part, the minimum of three millimeters high, and stock equipped with retroreflective length of a railroad freight car or shall be permanently stamped, etched, sheeting that meets the technical locomotive is measured from endsill to molded, or printed within the product requirements of this part to provide the endsill, exclusive of the coupler and and each certification shall be spaced no intended warning to motorists. more than four inches apart. draft gear. Each side of a railroad freight (e) Alternative standards. Upon § 224.105 Sheeting dimensions and car subject to this part, including each petition by a freight rolling stock owner quantity. unit of multi-unit cars, and each side of or railroad under § 224.15, the Associate Retroreflective sheeting shall be a locomotive subject to this part must be Administrator may approve an applied along the length of each railroad equipped with at least the minimum alternative technology as providing freight car and locomotive side as amount of retroreflective sheeting equivalent safety. Any such petition described in § 224.106. Retroreflective 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 sheet- retroreflective sheet- Freight car or locomotive length ing required (per car/ ing required (per car/ locomotive side)— locomotive side)— yellow sheeting (ft2) white sheeting (ft2)

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 ft1 ...... 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.

§ 224.106 Location of retroreflective devices such as ladders and other safety four 4x9 inch strips, and applied on sheeting. appliances, pipes, or other attachments either side of the appurtenance, (a) Railroad freight cars. The that may obscure its visibility. discontinuous surface, or car markings retroreflective sheeting shall be applied Retroreflective sheeting need not be or stencils. along the length of each railroad freight applied to discontinuous surfaces such (1) General rule. On railroad freight car side in the manner provided by a as bolts, rivets, door hinges, or other cars other than flat cars and tank cars, uniform industry standard approved by irregularly shaped areas that may retroreflective sheeting shall be applied the Associate Administrator that prevent the sheeting from adhering to in either a vertical or horizontal pattern provides for distribution of material the car sides. In addition, retroreflective along the length of the car sides, with along the length of each car and as close sheeting need not be applied over the bottom edge of the sheeting as close as practicable to 42 inches above the top existing or required car stencils and as practicable to 42 inches above the top of rail. In the event such an industry markings. If necessary to avoid of rail. Retroreflective sheeting shall not standard is not proffered, or is not appurtenances, discontinuous surfaces, be applied below the side sill. approved by the Associate or existing or required car markings or (i) Vertical application. If Administrator, the criteria set forth in stencils, a 4x18 inch strip of retroreflective sheeting is applied in a this subpart shall apply. Retroreflective retroreflective sheeting may be vertical pattern, at least one 4x36 inch sheeting applied under this part must be separated into two 4x9 inch strips, or a strip or two 4x18 inch strips, one above located clear of appurtenances and 4x36 inch strip may be separated into the other, shall be applied as close to

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each end of the car as practicable. minimum of one 4x18 inch strip shall be applied at least every 12 feet. See Between these two vertical end strips, a Figures 1, 2, and 3. BILLING CODE 4910–06–P

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(ii) Horizontal application. If inch strips, one above the other, shall be strips, a minimum of one 4x18 inch retroreflective sheeting is applied in a applied as close to each end of the car strip shall be applied at least every 12 horizontal pattern, at least two 4x18 as practicable. Between these two end feet. See Figures 4, 5, and 6.

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(2) Tank cars. On tank cars, be applied vertically with its top edge strip shall be applied at least every 12 retroreflective sheeting shall be applied no higher than the horizontal centerline feet. Retroreflective sheeting applied vertically to each car side and centered of the tank. A minimum of either one under this part shall not be located in on the horizontal centerline of the tank, 4x36 inch strip or two 4x18 inch strips, the spillage area directly beneath the or as near as practicable. If it is not one above the other, shall be applied as manway used to load and unload the practicable to safely apply the sheeting close to each end of the car as tank. See Figures 7 and 8. centered vertically about the horizontal practicable. Between these two end centerline of the tank, the sheeting may strips, a minimum of one 4x18 inch

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(3) Flat cars. On flat cars, strips, one above the other, shall be Between the two end strips, a minimum retroreflective sheeting shall be applied applied as close to each end of the car of one 4x18 inch strip shall be applied in a horizontal pattern along the length as practicable. If the side sill is less than at least every 12 feet. See Figure 4. If a of the side sill with the bottom edge of 8 inches wide, the two 4x18 inch strips car has a separate rack structure, the sheeting no lower than the bottom may be applied one next to the other, retroreflective sheeting may be applied of the side sill and the top edge of the dividing the strips into nine inch to the flatcar portion only in accordance sheeting no higher than the top of the segments as necessary in accordance with the requirements of this section. car deck or floor. At least two 4x18 inch with paragraph (a) of this section.

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BILLING CODE 4910–06–C

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(4) Cars of special construction. This part for Reflectorization Implementation is equipped on each side with at least paragraph applies to any car the design Compliance Report form. one square foot of retroreflective of which is not compatible with the sheeting, uniformly distributed over the patterns of application otherwise TABLE 3 OF SUBPART B.—ALTER- length of each side, that car shall be provided in this section. Retroreflective NATIVE SCHEDULE FOR APPLICATION considered in compliance with this part sheeting shall conform as closely as OF RETROREFLECTIVE MATERIAL TO through May 31, 2015, provided the practicable to the requirements of FREIGHT CARS PER sheeting is not unqualified paragraphs (a)(1) through (a)(3) of this § 224.107(a)(2)(ii). retroreflective sheeting, and provided section and shall have the minimum the freight rolling stock owner files a amount of sheeting described in completed Reflectorization 1 (B) § 224.105 distributed along the length of (A) (percent) Implementation Compliance Report each car side. with FRA no later than July 1, 2005, (b) Locomotives: Locomotives subject May 31, 2007 ...... 20 identifying the cars already so to this part shall be equipped with at May 31, 2008 ...... 30 equipped. See Appendix B of this part least the minimum amounts of May 31, 2009 ...... 40 for Reflectorization Implementation May 31, 2010 ...... 50 retroreflective sheeting required by May 31, 2011 ...... 60 Compliance Report form. § 224.105 spaced as uniformly as May 31, 2012 ...... 70 (b) Locomotives. Except as provided practicable along the length of the May 31, 2013 ...... 80 in paragraph (b)(4) of this section, all locomotive sides as close as practicable May 31, 2014 ...... 90 locomotives subject to this part must be to 42 inches from the top of the rail. May 31, 2015 ...... 100 equipped with conforming retroreflective sheeting by May 31, 2010. § 224.107 Implementation schedule. 1 Column (A) indicates the date by which the minimum percentage of an owner’s freight If a locomotive already has reflective (a) Railroad freight cars. All railroad cars specified in column (B) must be equipped material applied that does not meet the freight cars subject to this part must be with retroreflective sheeting conforming to this standards of this part, it is not necessary equipped with retroreflective sheeting part. to remove the material unless its conforming to this part by May 31, 2015. (A) Thereafter, the designated fleet placement interferes with the placement If a car already has reflective material shall be equipped with retroreflective of the sheeting required by this part. applied that does not meet the standards sheeting according to the schedule (1) New locomotives. Retroreflective of this part, it is not necessary to remove specified in Table 3 of this subpart; sheeting conforming to this part must be the material unless its placement (B) No later than July 1, 2007, the applied to all locomotives constructed interferes with the placement of the freight rolling stock owner shall submit after May 31, 2005, before the sheeting required by this part. to FRA an updated Reflectorization locomotives are placed in service. (1) New cars. Retroreflective sheeting Implementation Compliance Report (2) Existing locomotives without conforming to this part must be applied showing which cars of the fleet subject retroreflective sheeting. (i) If as of to all cars constructed after May 31, to this part were equipped with January 3, 2005 a locomotive subject to 2005, before the cars are placed in retroreflective sheeting as required by this part is not equipped with the service. this part during the initial 24-month minimum amount of retroreflective (2) Existing cars without implementation period. Thereafter, sheeting specified in paragraph (b)(3) of retroreflective sheeting. updated Reflectorization this section, retroreflective sheeting (i) If, as of January 3, 2005, a car Implementation Compliance Reports conforming to this part must be applied subject to this part is not equipped on shall be submitted annually, no later to the locomotive not later than the first each side with at least one square foot than July 1 of each year, for the duration biennial inspection performed pursuant of retroreflective sheeting as specified in of the 10-year implementation period. to § 229.29 of this chapter occurring paragraph (a)(3) of this section, See Appendix B of this part. after May 31, 2005. retroreflective sheeting conforming to (C) If, following the conclusion of the (ii) A freight rolling stock owner may this part must be applied to the car at initial 24-month period or any 12-month elect not to follow the schedule in the earliest of the following two period thereafter, the percentage paragraph (b)(2)(i) of this section, if not occasions occurring after May 31, 2005 requirements of this section have not later than July 1, 2005, the freight or in accordance with paragraph been met— rolling stock owner submits to FRA a (a)(2)(ii) of this section: (1) The freight rolling stock owner Reflectorization Implementation (A) When the car is repainted or shall be considered in violation of this Compliance Report certifying that the rebuilt; or part; locomotives in the owner’s fleet subject (B) Within nine months (270 calendar (2) The freight rolling stock owner to this part will be equipped with days) after the car first undergoes a shall, within 60 days after the close of retroreflective sheeting as required by single car air brake test as prescribed by the period, report the failure in writing this part in accordance with the § 232.305 of this chapter. to the Associate Administrator; schedule specified in Table 4 of this (ii) A freight rolling stock owner may (3) The requirements of paragraph subpart. See Appendix B of this part. elect not to follow the schedule in (a)(2)(i) of this section shall apply to all paragraph (a)(2)(i) of this section if, not railroad freight cars subject to this part TABLE 4 OF SUBPART B.—ALTER- later than July 1, 2005, the freight in the freight rolling stock owner’s fleet; NATIVE SCHEDULE FOR APPLICATION rolling stock owner submits to FRA a and OF RETROREFLECTIVE MATERIAL TO completed Reflectorization (4) The fleet owner shall take such LOCOMOTIVES PER Implementation Compliance Report additional action as may be necessary to certifying that the cars in the owner’s achieve future compliance. § 224.107(b)(2)(ii). fleet subject to this part will be (D) Cars to be retired shall be 1 (B) equipped with retroreflective sheeting included in the fleet total until they are (A) (percent) as required by this part in accordance retired. with the schedule specified in Table 3 (3) Existing cars with retroreflective May 31, 2007 ...... 40 of this subpart. See Appendix B of this sheeting. If as of January 3, 2005, a car May 31, 2008 ...... 60

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TABLE 4 OF SUBPART B.—ALTER- each side with at least one square foot damaged, obscured, or missing, the NATIVE SCHEDULE FOR APPLICATION of retroreflective sheeting, that inspecting railroad or contractor shall OF RETROREFLECTIVE MATERIAL TO locomotive shall be considered in promptly notify the car owner of the LOCOMOTIVES PER compliance with this part through May damaged, obscured, or missing sheeting. § 224.107(b)(2)(ii).—Continued 31, 2015, provided the existing material The inspecting railroad or contractor is not unqualified retroreflective shall retain a written or electronic copy sheeting, and provided the freight of each such notification made for at 1 (B) (A) (percent) rolling stock owner files a least two years from the date of the Reflectorization Implementation notice and shall make these records May 31, 2009 ...... 80 Compliance Report with FRA no later available for inspection and copying by May 31, 2010 ...... 100 than July 1, 2005, identifying the the FRA upon request. Any car owner 1 Column (A) indicates the date by which the locomotives already so equipped. See notified of a defect under this section minimum percentage of an owner’s loco- Appendix B of this part. If, as of January shall have nine months (270 calendar motives specified in column (B) must be 3, 2005, a locomotive is equipped with equipped with retroreflective sheeting con- days) from the date of notification to forming to this part. unqualified retroreflective sheeting, the repair or replace the damaged, obscured, locomotive will be considered in or missing sheeting. (A) Thereafter, the designated compliance with this part through May (b) Locomotives. Retroreflective locomotive fleet shall be equipped with 31, 2015, provided the locomotive is sheeting must be visually inspected for retroreflective sheeting according to the equipped with a minimum of 3 square presence and condition when the requirements of this paragraph (b)(2)(ii); feet of retroreflective material on each locomotive receives the annual (B) No later than July 1, 2007, the side and provided the freight rolling inspection required under § 229.27 of freight rolling stock owner shall submit stock owner files a Reflectorization this chapter. If at the time of inspection to FRA an updated Reflectorization Implementation Compliance Report Implementation Compliance Report with FRA no later than July 1, 2005, more than 20 percent of the amount of showing which locomotives of the fleet identifying the locomotives already so sheeting required under § 224.105 on subject to this part were equipped with equipped. See Appendix B of this part. either side of a locomotive is damaged, retroreflective sheeting as required by (4) Each railroad that has fewer than obscured, or missing, that damaged, this part during the initial 24 month 400,000 annual employee work hours, obscured, or missing sheeting must be implementation period. Thereafter, and does not share locomotive power repaired or replaced. If conditions at the updated Reflectorization with another railroad with 400,000 or time of inspection are such that Implementation Compliance Reports more annual employee work hours, may adequate repairs cannot be made, shall be submitted annually, no later bring its locomotive fleet into replacement material can not be than July 1 of each year, for the duration compliance according to the following applied, or if sufficient replacement of the 5-year implementation period. schedule: fifty percent of the railroad’s material is not available, such See Appendix B of this part. locomotives must be retrofitted application may be completed at the (C) If, following the conclusion of the pursuant to § 224.106(b) within five next forward location where conditions initial 24-month period or any 12-month years of the effective date of this part permit, provided a record of the defect period thereafter, the percentage and one hundred percent must be is maintained in the locomotive cab or requirements of this section have not retrofitted pursuant to § 224.106(b) in a secure and accessible electronic been met— within 10 years of the effective date of database to which FRA is provided (1) The freight rolling stock owner this part. If a railroad with fewer than access on request. shall be considered in violation of this 400,000 annual employee work hours § 224.111 Renewal. part; shares locomotive power with a railroad (2) The freight rolling stock owner with 400,000 or more annual employee Regardless of condition, shall, within 60 days after the close of work hours, the smaller railroad must retroreflective sheeting required under the period, report the failure in writing comply with the requirements of this part must be replaced with new to the Associate Administrator; paragraphs (b)(2) and (3) of this section. sheeting no later than ten years after the (3) The requirements of paragraph date of initial installation. For purposes (b)(2)(i) of this section shall apply to all § 224.109 Inspection, repair, and of this section, May 31, 2005 shall be replacement. locomotives subject to this part in the considered the initial date of freight rolling stock owner’s fleet; and (a) Railroad freight cars. installation for freight cars and (4) The fleet owner shall take such Retroreflective sheeting on railroad locomotives covered by § 224.107(a)(3) additional action as may be necessary to freight cars subject to this part must be or 224.107(b)(3). achieve future compliance. visually inspected for presence and (D) Locomotives to be retired shall be condition whenever a car undergoes a Appendix A to Part 224—Schedule of included in the fleet total until they are single car air brake test required under Civil Penalties 1 retired. § 232.305 of this chapter. If at the time (3) Existing locomotives with of inspection more than 20 percent of Subpart B—Application, Inspection, retroreflective sheeting. If as of January the amount of sheeting required under and Maintenance of Retroreflective 3, 2005, a locomotive is equipped on § 224.105 on either side of a car is Material

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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Willful Section Violation violation ($) ($)

§ 224.103 Characteristics of retroreflective sheeting: (a)–(d) Retroreflective sheeting applied does not meet the requirements of § 224.103 ...... 2,500 5,000 § 224.105 Sheeting dimensions and quantity: Failure to apply minimum amount of retroreflective sheeting in accordance with Table 2 ...... 2,500 5,000 Applying retroreflective sheeting of wrong dimensions ...... 2,500 5,000 § 224.106 Location of retroreflective sheeting: (a), (b) Applying retroreflective sheeting in nonconforming pattern ...... 2,000 4,000 § 224.107 Implementation schedule: (a)(1), (b)(1) Failure to apply retroreflective sheeting to new freight car or locomotive before equipment placed in service ...... 5,000 7,500 (a)(2), (b)(2), (b)(4) Failure to apply retroreflective sheeting to existing freight car or locomotive in accordance with minumum schedule of paragraphs (a)(2), (b)(2), or (b)(4) ...... 5,000 7,500 § 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 defect for two years ...... 1,500 2,500 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

Appendix B to Part 224— Reflectorization Implementation Compliance Report

BILLING CODE 4910–06–P

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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

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