[Federal Register Volume 70, Number 1 (Monday, January 3, 2005)]
[Rules and Regulations]
[Pages 144-191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28407]



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 224



Reflectorization of Rail Freight Rolling Stock; Final Rule

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules 
and Regulations

[[Page 144]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 224

[Docket No. FRA-1999-6689, Notice No. 4]
RIN 2130-AB41


Reflectorization of Rail Freight Rolling Stock

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

ACTION: Final rule.

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SUMMARY: FRA is issuing this final rule to mandate the reflectorization 
of freight rolling stock (freight cars and locomotives) to enhance the 
visibility of trains in order to reduce the number and severity of 
accidents at highway-rail grade crossings in which train visibility is 
a contributing factor. This rule establishes a schedule for the 
application of retroreflective material and prescribes standards for 
the construction, performance, application, inspection, and maintenance 
of the material.

DATES: Effective Date: March 4, 2005. The incorporation by reference of 
a certain publication listed in the rule is approved by the Director of 
the Federal Register as of March 4, 2005.

FOR FURTHER INFORMATION CONTACT: Dr. Tom Blankenship, Mechanical 
Engineer, Office of Safety, FRA, 1120 Vermont Ave., NW., Mailstop 25, 
Washington, DC 20590 (telephone: 202-493-6446); Mary Plache, Industry 
Economist, Office of Safety, FRA, 1120 Vermont Ave., NW., Mailstop 25, 
Washington, DC 20590 (telephone: 202-493-6297); or Lucinda Henriksen, 
Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Ave., NW., 
Mailstop 10, Washington, DC 20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION:

Background

    On November 6, 2003, FRA published a notice of proposed rulemaking 
(NPRM) proposing to require retroreflective material on the sides of 
freight rolling stock (freight cars and locomotives) to enhance the 
visibility of trains. 68 FR 62942. The NPRM represented a partial 
solution to a safety problem that has long concerned FRA--the need to 
reduce the incidence and severity of collisions between motor vehicles 
and trains at highway-rail grade crossings throughout the United 
States, especially during conditions of darkness or reduced visibility.
    As noted in the NPRM, approximately 4,000 times each year, a train 
and a highway vehicle collide at a highway-rail grade crossing in the 
United States. Approximately 23% of all highway-rail grade crossing 
accidents involve motor vehicles running into trains occupying grade 
crossings (``RIT'' accidents). Many of these RIT accidents occur during 
nighttime conditions (dawn, dusk, and darkness) and involve a highway 
vehicle striking a train behind the first two units of the consist. 
This suggests that a contributing factor to many RIT accidents is the 
difficulty motorists have in seeing a train consist at a crossing in 
time to stop their vehicles before reaching the crossing, particularly 
during periods of limited visibility, such as dawn, dusk, darkness, or 
during adverse weather conditions.
    As explained in the NPRM, the physical characteristics of trains, 
in combination with the characteristics of grade crossings (e.g., grade 
crossing configuration, type of warning devices at a crossing, rural 
background environment with low level ambient light, or visually 
complex urban background environment, etc.), and the inherent 
limitations of human eyesight, often make it difficult for motorists to 
detect a train's presence on highway-rail grade crossings, particularly 
during periods of limited visibility. Freight trains lack conspicuity 
in different environmental settings. For example, trains are typically 
painted a dark color and are often covered with dirt and grime which 
are inherent in the railroad environment. With the exception of 
locomotives, trains are usually unlighted and are not equipped with 
reflective devices. Similarly, a large percentage of crossings are not 
lighted. Consequently, much of the light from an approaching motor 
vehicle's headlights is absorbed by the freight cars, instead of being 
reflected back toward the motorist. In addition, the large size of 
freight cars also makes them difficult to detect. For instance, even if 
a motorist is looking for a train, if the locomotive has already 
passed, it is difficult to detect the freight cars because the cars 
often encompass the motorist's entire field of view and have the 
tendency to ``blend'' into the background environment, especially at 
night. Also, because most drivers involved in grade crossing accidents 
are familiar with the crossings and with roadway features at the 
crossings, the drivers become habituated (or preconditioned) to the 
crossings. Based on previous driving experiences and conditioning, a 
driver may not expect a train to be occupying a crossing, and without a 
clear auditory signal (because the locomotive has already cleared the 
crossing) or visual stimuli alerting the driver to a train traveling 
through the crossing, the driver may fail to perceive the train in time 
to stop. This condition is further exacerbated when a train is stopped 
on a crossing.
    There is currently no requirement for lighting or reflective 
markings on freight rolling stock. However, as explained in the NPRM, 
reflectorization has become an indispensable tool for enhancing 
visibility in virtually all other modes of transportation, including 
air, highway, maritime, and pedestrian travel. For example, airplanes 
and motor vehicles are equipped with high brightness retroreflective 
material at key locations on the exterior surfaces to increase their 
conspicuity. Microprismatic corner cube retroreflectors (which have the 
ability to direct light rays back to the light source) are typically 
used on roadway signs that warn of construction or other hazardous 
conditions. Federal regulations require retroreflective materials on 
the sides and rear of large trucks to increase their conspicuity and to 
aid motorists in judging their proximity to these vehicles. Even 
regulations addressing bicycle safety have specific requirements on the 
use of reflective materials. Lifesaving marine equipment, such as life 
vests and rafts, require reflectorization; and to enhance the 
conspicuity of pedestrians, especially at night, retroreflective 
material has been incorporated into clothing and similar items.
    The everyday use of reflectors indicates their acceptance to 
delineate potential hazards and obstructions in a vehicle's path of 
travel. Research specific to the railroad industry has demonstrated 
that reflective materials can increase the conspicuity of freight cars, 
thereby enhancing motorists' ability to detect the presence of trains 
in highway-rail grade crossings. Reflective material on rail equipment 
increases visibility inexpensively, and does not require a power source 
to produce light, but returns light produced from another source (i.e., 
an approaching automobile's headlights). This greater visibility can 
help drivers avoid some accidents and reduce the severity of other 
accidents that are unavoidable. Accordingly, FRA, as the Federal agency 
responsible for ensuring that America's railroads are safe for the 
traveling public, and in direct response to a Congressional mandate, is 
issuing this final rule requiring the application of reflective 
material on the sides of certain rail cars and locomotives to enhance 
the visibility of trains in order to reduce the number and severity of

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accidents at highway-rail grade crossings where train visibility is a 
contributing factor.

A. Statutory Authority and Congressional Mandate

    FRA has broad statutory authority to regulate all areas of railroad 
safety. The Federal Railroad Safety Act of 1970 (Safety Act) (formerly 
45 U.S.C. 421, 431 et seq., now found primarily in chapter 201 of Title 
49) grants the Secretary of Transportation (``Secretary'') rulemaking 
authority over all areas of railroad safety (49 U.S.C. 20103(a)) and 
confers all powers necessary to detect and penalize violations of any 
rail safety law. This authority was subsequently delegated to the FRA 
Administrator (49 CFR 1.49). (Until July 5, 1994, the Federal railroad 
safety statutes existed as separate acts found primarily in Title 45 of 
the United States Code. On that date, all of the acts were repealed, 
and their provisions were recodified into Title 49.)

    The term ``railroad'' is defined in the Safety Act to include

all forms of non-highway ground transportation that runs on rails or 
electromagnetic guideways, * * * other than rapid transit operations 
within an urban area that are not connected to the general railroad 
system of transportation.

49 U.S.C. 20102. This definition makes clear that FRA has jurisdiction 
over (1) rapid transit operations within an urban area that are 
connected to the general railroad system of transportation, and (2) all 
freight, intercity, passenger, and commuter rail passenger operations 
regardless of their connection to the general railroad system of 
transportation or their status as a common carrier engaged in 
interstate commerce. FRA has issued a policy statement describing how 
it determines whether particular rail passenger operations are subject 
to FRA's jurisdiction (65 FR 42529 (July 2,2000)); the policy statement 
can be found in Appendix A to 49 CFR parts 209 and 211.
    Pursuant to its statutory authority, FRA promulgates and enforces a 
comprehensive regulatory program to address railroad track, signal 
systems, railroad communications, rolling stock, rear-end marking 
devices, safety glazing, railroad accident/incident reporting, 
locational requirements for dispatching of U.S. rail operations, safety 
integration plans governing railroad consolidations, merger and 
acquisitions of control, operating practices, passenger train emergency 
preparedness, alcohol and drug testing, locomotive engineer 
certification, and workplace safety.
    In 1994 Congress passed the Federal Railroad Safety Authorization 
Act of 1994, Public Law 103-440 (``Act''). The Act added section 20148 
to title 49 of the United States Code. Section 20148 required the 
Secretary, and by delegation, FRA, to conduct a review of the 
Department of Transportation's (``Department'') rules with respect to 
the visibility of railroad cars and mandated that if the review 
established that enhanced railroad car visibility would likely improve 
safety in a cost-effective manner, the Secretary initiate a rulemaking 
proceeding to ``prescribe regulations requiring enhanced visibility 
standards for newly manufactured and remanufactured railroad cars.'' 
Section 20148 specifically directed the Secretary to examine the use of 
reflectors. Section 20148 reads as follows:

    (a) REVIEW OF RULES.--The Secretary of Transportation shall 
conduct a review of the Department of Transportation's rules with 
respect to railroad car visibility. As part of this review, the 
Secretary shall collect relevant data from operational experience by 
railroads having enhanced visibility measures in service.
    (b) REGULATIONS.--If the review conducted under subsection (a) 
establishes that enhanced railroad car visibility would likely 
improve safety in a cost-effective manner, the Secretary shall 
initiate a rulemaking proceeding to prescribe regulations requiring 
enhanced visibility standards for newly manufactured and 
remanufactured railroad cars. In such proceeding the Secretary shall 
consider, at a minimum--
    (1) visibility of railroad cars from the perspective of 
nonrailroad traffic;
    (2) whether certain railroad car paint colors should be 
prohibited or required;
    (3) the use of reflective materials;
    (4) the visibility of lettering on railroad cars;
    (5) the effect of any enhanced visibility measures on the health 
and safety of train crew members; and
    (6) the cost/benefit ratio of any new regulations.
    (c) EXCLUSIONS.--In prescribing regulations under subsection 
(b), the Secretary may exclude from any specific visibility 
requirement any category of trains or railroad operations if the 
Secretary determines that such an exclusion is in the public 
interest and is consistent with railroad safety.

B. History of Railroad Car Conspicuity Issue

    As explained in the NPRM, the term ``conspicuity,'' as applied to 
rail car visibility, refers to the characteristics of a rail car in its 
roadway setting to command the attention of approaching motorists and 
be recognizable to reasonably prudent motorists at sufficient distance 
to allow the motorists to reduce their vehicles' speed and take action 
to avoid collisions. As also noted in the NPRM, the issue of rail car 
``conspicuity'' is not a new concept. Research dating back to the early 
1950's identified the potential viability of rail car conspicuity 
materials such as luminous sources (lights on rail cars), self-luminous 
sources (phosphorescent), and reflective sources. By the 1970's, 
researchers had generally concluded that although luminous and 
reflective sources both proved effective in enhancing the visibility of 
trains, reflectors provided conspicuity at a greater distance and field 
of vision. Although the general consensus of historical research was 
that reflective materials could increase the conspicuity of objects to 
which they are attached, previous generations of reflective materials 
did not reflect enough light to be effective in the railroad 
environment and lacked the durability to survive the harsh railroad 
operating environment.
    FRA first evaluated the use of reflective material on rail rolling 
stock in the early 1980s and supported a study completed in 1982 on the 
potential use of reflectorization to reduce nighttime accidents at 
highway-rail intersections. The study concluded that although the use 
of reflective material enhanced the visibility of trains, the 
reflective material was not durable enough to withstand the harsh 
railroad environment. It was decided that rulemaking action was not 
warranted at that time.
    Since 1982, however, improvements in the brightness, durability, 
and adhesive properties of reflective material have been achieved. 
Specifically, a new material--microprismatic retroreflective material--
was developed. Because of the technological advances in reflective 
materials and the creation of microprismatic retroreflective material, 
FRA renewed its research efforts in the early 1990s. By 1999, FRA's 
research had led to the conclusion that the durability and adhesive 
properties of the new microprismatic retroreflective material could 
provide adequate luminance intensity levels which could be sustained 
for up to 10 years with minimum maintenance. See Safety of Highway-
Railroad Grade Crossings: Freight Car Reflectorization, DOT/FRA/ORD-98/
11, John A. Volpe National Transportation Systems Center (Jan. 1999) 
(1999 Volpe Report).\1\ A copy of the 1999 Volpe Report is in the 
docket

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of this proceeding (Document No. FRA-1999-6689-17).
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    \1\ A more detailed description of FRA's studies of freight car 
reflectorization can be found in the NPRM (See 68 FR 62946--62949) 
and, where relevant, the Section-by-Section analysis that follows in 
this preamble.
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    In order to provide an opportunity for all interested parties to 
share their views, concerns, and experiences with regard to rail car 
reflectorization, subsequent to the publication of the 1999 Volpe 
Report, in July 1999 FRA hosted a workshop on reflectorization of rail 
rolling stock. Representatives from the railroad industry, reflector 
manufacturing and supply companies, the National Transportation Safety 
Board and the National Highway Traffic Safety Administration (NHTSA), 
as well as other interested parties participated in the workshop. 
During the workshop, discussion focused on the potential effectiveness 
of rail car reflectorization under a variety of circumstances (e.g., 
the potential effectiveness of reflectors during the nighttime versus 
the daytime, at passively protected crossings versus actively protected 
crossings), as well as more practical aspects of any rail car 
reflectorization program (e.g., maintenance and cleaning requirements, 
when and where reflector installation would occur, and the costs 
involved in installing and maintaining the reflectors). A copy of the 
transcript of this workshop is included in the docket of this 
proceeding (Document No. FRA-1999-6689-7).
    Recognizing that part of the review mandated by Congress included 
collecting relevant data from operational experience by railroads 
having enhanced visibility measures in service, on January 14, 2000, 
FRA established a public docket (Docket No. FRA-1999-6689) to provide 
all interested parties with a central location to both send and review 
relevant information concerning railcar conspicuity and to the provide 
a venue to gather and disseminate information on the issues. The docket 
in this proceeding contains several submissions from FRA, as well as 
comments from members of the public, local and state governments, 
reflective material manufacturing and supply companies, members of the 
railroad industry, and the regulated community. Comments submitted in 
response to the NPRM will be discussed in more detail below.
    Because FRA's research concluded that reflectorization could 
enhance rail car visibility, FRA conducted a preliminary cost-benefit 
analysis (``Preliminary Analysis'') to determine whether 
reflectorization would provide a cost effective method of reducing the 
number of collisions at highway-rail grade crossings and the casualties 
and property damages which result from those collisions. The 
Preliminary Analysis concluded that the benefits of a uniform, 
nationwide freight car reflectorization program would far outweigh the 
costs of such a program. FRA published the results of its Preliminary 
Analysis in the Federal Register on October 26, 2001. See 66 FR 54326. 
A copy of the Preliminary Analysis is in the docket of this proceeding 
(Document No. FRA-1999-6689-25).
    Because of the rail industry's continued interest in the issue of 
rail car reflectorization, FRA met with members of the regulated 
community on March 24, 2003, to again listen to their comments and 
concerns regarding reflectorization. During this meeting, participants 
again raised important considerations regarding many practical aspects 
of a potential reflectorization program (e.g., a feasible schedule for 
the application of reflectors to rail cars, what types of reflective 
material would be required, reflector cleaning and maintenance 
responsibilities, and when and where reflectors would be applied to 
cars).
    After careful review and consideration of all the relevant research 
and data, and the comments submitted in this proceeding, FRA concluded 
that reflectorization of rail freight rolling stock is a feasible 
method of enhancing rail car visibility that would improve safety in a 
cost-effective manner. Accordingly, FRA issued an NPRM on November 6, 
2003, proposing to require the use of reflective material on the sides 
of certain rail cars and locomotives.
    Subsequent to issuance of the NPRM, FRA held a public hearing in 
Washington, DC on January 27, 2004. Approximately 30 individuals 
representing various organizations and businesses involved in the 
railroad and reflector manufacturing industry participated in the 
hearing and their comments will be discussed in more detail below.

C. The Proposed Rule

    Generally, the proposed rule required that all freight cars and 
locomotives that operate over a public or private highway rail grade 
crossing in the United States in revenue or work train service be 
equipped with retroreflective sheeting on both sides. The proposed rule 
contemplated that conforming retroreflective sheeting would be applied 
to freight cars on a fleet basis so that each segment of the freight 
car fleet would be brought into compliance within ten years, and each 
segment of the locomotive fleet would be brought into compliance within 
five years. To ensure the most efficient and cost-effective 
implementation of the rule, FRA proposed to require that 
retroreflective sheeting be applied to new freight rolling stock at the 
time of construction, and to existing stock when such stock was being 
repainted, rebuilt, or undergoing other periodic maintenance.
    The proposed rule contained specific color, construction, 
placement, and performance requirements for the required 
retroreflective sheeting and also set forth a schedule for the 
application, inspection, and maintenance of the sheeting. Specifically, 
the proposed rule provided that retroreflective sheeting must meet the 
color and performance requirements, except for the photometric 
performance requirements, of American Society of Testing and 
Measurements' (ASTM) Standard D 4956-01, Standard Specification for 
Retroreflective Sheeting for Traffic Control, for yellow sheeting. The 
proposed rule set forth the minimum photometric performance 
requirements (i.e., the minimum ``specific intensity per unit area'' or 
``SIA'') that FRA determined were necessary to ensure that the yellow 
retroreflective sheeting would be sufficiently bright enough to attract 
the attention of approaching motorists early enough in the approach 
path so that the drivers would have time to react to avoid collisions. 
FRA proposed to require yellow retroreflective material, in part, 
because the spectral measurement of the color (approximately 550 nm) is 
within the peak sensitivity range of the human visual system, and 
accordingly, it is one of the most easily detectable colors under 
varying ambient light and other environmental conditions (e.g., 
darkness, fog, haze, etc.). The performance requirements of the 
proposed rule were based on the material as it is initially applied. In 
other words, FRA proposed to require specific color, type, size, and 
placement requirements in order to ensure that sufficient reflectivity 
would be retained over time, despite the harsh railroad operating 
environment.
    Although, as proposed, the specific amount and placement of 
retroreflective sheeting the rule would require on various types of 
freight rolling stock depended on the size of the freight car or 
locomotive, as well as the car type, the proposed rule generally 
required a vertical pattern of retoreflective material in 4x36 inch 
(one square foot) and 4x18 inch (one-half a square foot) strips along 
the entire side of freight cars and locomotives, with strips of 
sheeting to be located as close to each end of the car as practicable 
and at equidistant intervals of not more than 10 feet. In

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other words, the proposed rule required four square feet of 
retroreflective material on each side of the typical 50-foot freight 
car, and for cars longer than 50 feet, one additional square foot of 
material for each additional ten feet in length. With certain 
exceptions, the proposed rule generally required that retroreflective 
sheeting be applied as close as practicable to 42 inches above the top 
of the rail to minimize the degradation of the material due to dirt and 
grime accumulation. FRA proposed to require the placement of at least 
one reflector every 10 feet, because roadway lanes in the United States 
are typically 10 to 12 feet wide; thus, applying retroreflective 
sheeting at least every ten feet along the sides of freight cars 
increased the likelihood of at least one reflector being in the sight 
path of an approaching motorist. The relatively large-sized reflectors 
of 4x18 inches and 4x36 inches (one-half square foot and one square 
foot, respectively) were proposed to minimize the degradation rate of 
individual strips of retroreflective sheeting.
    Recognizing that the conspicuity issues surrounding locomotives 
differ from the issues surrounding freight cars, the proposed rule 
provided a more flexible approach to the reflectorization of 
locomotives, specifying only that a minimum amount of retroreflective 
material (corresponding to the amount of material required on 
similarly-sized freight cars) was to be equally distributed between 
both sides of locomotives in a pattern recognizable to motorists.

D. Discussion of Comments

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

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concern regarding FRA's proposed 20 percent maintenance threshold, and 
the use of the undefined term ``damaged'' demonstrating when 
maintenance would be required. Additionally, commenters expressed 
concern regarding when and where maintenance of reflective material 
would take place under the proposed rule, and a few of these commenters 
questioned the efficacy and practicality of FRA's proposal to require 
the replacement of retroreflective material on rail cars every 10 
years.
    Although the majority of comments FRA received in response to the 
NPRM addressed issues related to the reflectorization of freight cars, 
a few railroad industry participants expressed concern regarding FRA's 
proposed requirements applicable to locomotives. For example, AAR 
suggested that given the conspicuity issues surrounding locomotives and 
the fact that most locomotives are already reflectorized with company 
names and logos, FRA should not specify a specific pattern of 
application of reflective material on locomotives. AAR also expressed 
concern regarding FRA's proposed schedule for the reflectorization of 
locomotives and, along with CN, suggested that the locomotive 
grandfathering provision of proposed Sec.  224.107(b)(3) was too 
narrow.
    AAR also expressed the view that FRA's proposed rule exceeded 
Congress's direction in 49 U.S.C. 20148. First, AAR asserted that 
Congress envisioned the issuance of a reflectorization requirement only 
if the requirement were cost-effective. FRA agrees with this assertion, 
and notes that, as detailed in the NPRM, the proposed rule was based on 
a Preliminary Analysis of costs and benefits that demonstrated that the 
benefits of a nationwide rail equipment reflectorization program would 
far outweigh the costs of such a program. See 66 FR 54326 or Document 
No. FRA-1999-6689-25 in the docket of this proceeding. Taking into 
consideration comments received in response to the NPRM and the 
Preliminary Analysis, FRA has conducted a final Regulatory Analysis of 
this final rule and has again concluded that the benefits to be gained 
from implementation of the final rule far outweigh the costs of 
implementing the rule. A more detailed discussion of FRA's Regulatory 
Evaluation is found in the Regulatory Impact and Notices Section below.
    AAR also asserted that Congress did not contemplate either a 
retrofit requirement (except in the case of rebuilt freight cars) or an 
ongoing maintenance requirement, and accordingly the proposed rule 
exceeded Congress's direction to FRA. FRA notes, however, that section 
20148 was enacted in 1994, in the midst of FRA's reflectorizaton 
research program, but before FRA had reached any conclusions as to the 
potential efficacy of a federal rail car reflectorization program. 
Congress's clear intent in enacting section 20148 was that after 
reviewing the issue of potential enhanced visibility standards for 
railroad cars (specifically the potential use of reflective materials), 
FRA follow through by, at a minimum, requiring application of 
reflectors to new and remanufactured equipment if that was found to be 
cost-effective. Further, prior to the enactment of section 20148, FRA 
had the authority and the responsibility to issue standards, as 
necessary, covering all areas of railroad safety (49 U.S.C. 20103); and 
nothing in the 1994 enactment narrowed that authority. Accordingly, FRA 
is proceeding in accordance with its preexisting authority to address 
public safety. FRA is confident that it is acting in a manner 
consistent with Congressional guidance.
    FRA also notes that limiting this final rule to the narrow scope of 
the 1994 mandate would fall far short of the purpose underlying the 
policy concern on which the mandate was based. Because rail cars may 
remain in service for four or even five decades, while the most 
optimistic estimates of the product life of current retroreflective 
materials are less than two decades, to reflectorize only new rail 
equipment and to have not even minimal maintenance standards, would not 
achieve the enhanced visibility of rail cars Congress contemplated in 
section 20148. FRA has adopted a strategy that addresses the safety 
need underscored by Congress without unduly burdening the industry with 
the principal concerns that have been raised in the past with respect 
to a federal regulation requiring rail car reflectorization (e.g., 
requirement for washing of reflectors, concerns over increased 
liability).
    RSI, an international trade association of the rail supply 
industry, expressed the opinion that there are better alternatives to 
improving safety at highway-rail grade crossings than mandating the 
reflectorizing of freight rolling stock. In particular, RSI recommended 
that FRA work with the railroad industry, the Federal Highway 
Administration, and the States, through the Section 130 program,\2\ to 
identify high incident crossings, make improvements to those crossings, 
or work to close those crossings. RSI expressed the view that 
installation of grade crossing warning devices, additional street 
lighting at crossings, or adding stop signs at little used crossings 
(all crossing improvements that could be made with Section 130 funds) 
would provide increased levels of safety.\3\ Further, RSI asserted that 
equipping freight cars with reflectorized tape will not stop drivers 
from entering highway-rail grade crossings.
---------------------------------------------------------------------------

    \2\ ``Section 130 program'' refers to the program authorized by 
23 U.S.C. 130 which provides States with Federal funding to 
eliminate hazards at public highway-rail grade crossings.
    \3\ It is important to note, however, that Section 130 funds can 
only be spent on public grade crossing improvements. The funds are 
not available for private rail crossings. See 23 U.S.C. 130.
---------------------------------------------------------------------------

    FRA agrees with RSI that the installation of warning devices, 
installation of additional illumination and warning signs at crossings, 
and even the closing of certain crossings, are highly effective grade 
crossing safety improvements. As explained in the NPRM, FRA recognizes 
the existence of numerous methods other than reflectorization for 
reducing the occurrences of RIT accidents (e.g., the elimination of 
highway-rail grade crossings, installation and upgrading of crossing 
traffic control and warning devices, crossing illumination, audible 
train warning devices, crossbuck reflectorization). FRA believes that 
each of these methods, used alone and in combination, is a viable 
method for mitigating collision risk at highway-rail grade crossings. 
FRA notes, however, that local opposition to closing crossings and the 
associated expenses with constructing grade separations or other 
alternatives to crossings often render these methods impractical, if 
not impossible. In addition, the expenses associated with installing 
crossing warning devices or upgrading existing devices often render 
these solutions cost prohibitive. Accordingly, FRA continues to believe 
that the reflectorization of freight rolling stock is an additional, 
feasible, and cost-effective tool for reducing and mitigating grade 
crossing accidents that provides unique safety benefits not obtainable 
with other grade crossing warning devices and safety measures. For 
example, traffic control devices, whether active (e.g., flashing lights 
and gates at crossings) or passive (e.g., signs and pavements 
markings), only provide a warning to the motorist that a train may be 
present. The signal delivered by reflective material on the sides of 
rail cars is clear and indicates to approaching motorists the actual 
presence and current movement of a train in or through a crossing.

[[Page 149]]

    FRA recognizes, as did one commenter in comments submitted to the 
docket prior to publication of the NPRM, that reflectorization is only 
a partial solution. This commenter recognized the limits of any program 
designed to enhance the visibility of trains, including 
reflectorization, and explained that ``[t]he most visible train is only 
as safe as the motor vehicle driver who encounters it.'' FRA strongly 
agrees with this statement and recognizes that reflectorization will 
provide only a partial solution to the safety issues surrounding 
highway-rail grade crossings. FRA recognizes, and feels it worthy of 
emphasis (as we did in the NPRM), that nothing in this final rule 
relieves motorists from the responsibility to be alert at highway-rail 
grade crossings and use due diligence in operating motor vehicles 
safely, even during times of limited visibility.
    The remaining comments submitted by various members of the railroad 
industry reflected a near consensus on three general issues. First, 
commenters expressed the view that white, not yellow, was the best 
color choice for retroreflective material on the sides of rail cars. 
Second, commenters expressed the view that FRA's proposed vertical 
pattern of retroreflective sheeting on the sides of freight cars was 
impracticable, and that a more flexible approach was necessary. Third, 
commenters expressed the view that the installation of retroreflective 
material on rail cars pursuant to the rule should not be tied to the 
single car air brake test. These comments are discussed below in 
connection with the applicable provisions of the final rule.

Section-by-Section Analysis

Section 224.1 Purpose and Scope

    This section contains a formal statement of the final rule's 
purpose and scope. As explained in the preamble to the NPRM, FRA 
intends that this rule cover all aspects of reflectorization of freight 
rolling stock, including but not limited to, the size, color, 
placement, and performance standards of the retroreflective material, 
as well as the schedule for the application, inspection, and 
maintenance of the material.
    Paragraph (a) states that the final rule is intended to reduce 
highway-rail grade crossing accidents, deaths, injuries, and property 
damage resulting from those accidents by enhancing the conspicuity of 
rail freight rolling stock in order to increase its detectability by 
motor vehicle operators at night and under conditions of poor 
visibility. Paragraph (b) explains that the final rule establishes the 
duties of freight rolling stock owners and railroads to apply 
retroreflective material to freight rolling stock, and to periodically 
inspect and maintain that material in order to achieve cost-effective 
mitigation of collision risk at highway-rail grade crossings. Paragraph 
(c) explains that the rule establishes a schedule for the application 
of retroreflective material to rail freight rolling stock and 
prescribes standards for the application, inspection, and maintenance 
of retroreflective material to rail freight rolling stock for the 
purpose of enhancing its detectability at highway-rail grade crossings.
    Although FRA believes that this section as proposed in the NPRM 
made clear the agency's intent for the rule to encompass the entire 
subject matter of freight car reflectorization and that additional 
duties related to reflectorization of freight rolling stock (e.g., 
cleaning of the material) could not be imposed on freight rolling stock 
owners, the AAR expressed concern in its comments that ``there could be 
confusion later as to whether railroads or private car owners are 
obliged to clean dirt and grime from freight cars.'' Accordingly, in 
this final rule, FRA has revised paragraph (b) of this section to 
specifically state that not only are freight rolling stock owners under 
no duty to ``install, maintain, or repair reflective material,'' except 
as required by the rule, but freight rolling stock owners are also 
under no duty to clean the material. For further discussion of dirt and 
grime on cars, please refer to the discussion of the term ``obscured'' 
in Sec.  224.5.
    As explained in the preamble to the NPRM, this final rule will not 
restrict freight rolling stock owners from applying retroreflective 
material to freight rolling stock on an accelerated schedule, nor will 
this rule restrict freight rolling stock owners from applying 
additional retroreflective material. As also explained in the NPRM, 
freight rolling stock owners, however, are under no duty to install, 
maintain, or repair reflective material except as specified in this 
rule.

Section 224.3 Applicability

    This section, which has not changed from that proposed in the NPRM, 
establishes that this final rule applies, with certain exceptions, to 
all freight cars and locomotives that operate over a public or private 
highway-rail grade crossing and are used for revenue or work train 
service. This section specifically excludes certain operations and 
equipment from the rule. These include: (1) Freight railroads that 
operate only on track inside an installation that is not part of the 
general railroad system of transportation, (2) rapid transit operations 
within an urban area that are not connected to the general system of 
transportation, and (3) locomotives or passenger cars used exclusively 
in passenger service.
    As explained in the preamble to the NPRM, FRA recognizes that both 
public and private grade crossings may be found on plant railroads and 
freight railroads that are not part of the general railroad system of 
transportation. Because these operations typically involve low speed 
vehicular traffic and the rail operations themselves are typically low 
speed with a small number of rail cars permitting relatively short 
stopping distances, it is not clear that reflectorization would be 
helpful in these areas. These reasons, together with FRA's historical 
basis for not making its regulations applicable to plant and non-
general-system freight railroads, have led FRA to exclude such plant 
and private railroads from this rule. FRA does, of course, retain the 
statutory right to assert jurisdiction in this area and will do so if 
circumstances warrant.
    As proposed in the NPRM and adopted in this final rule, paragraph 
(c) provides that the rule will not apply to locomotives and passenger 
cars used ``exclusively'' in passenger service. FRA decided to exclude 
locomotives and passenger cars used exclusively in passenger service 
from this rule because the conspicuity issues attendant to passenger 
service are significantly different from those of freight service. For 
example, the highway-rail grade crossings through which passenger 
trains operate are typically better protected than crossings used 
exclusively in freight service, many passenger cars have bright 
stainless steel exteriors or are painted contrasting light colors and 
are maintained in a much cleaner condition than freight cars, and 
passenger cars typically have inside lights which are visible through 
side windows that run the entire length of the cars. Although this 
final rule does not require the application of reflective material to 
locomotives and passenger cars used exclusively in passenger service, 
FRA may do so in a future rulemaking if it proves a cost-effective 
method of mitigating collision risk at highway-rail grade crossings.
    One commenter, AAPRCO, expressed concern regarding the word 
``exclusively'' in paragraph (c). AAPRCO explained that its members are 
owners of privately owned passenger cars and vintage locomotives, which 
generally run on Amtrak in passenger service. AAPRCO further explained,

[[Page 150]]

however, that these cars are also occasionally moved in freight 
service; typically dead-head moves to a new location or to another 
carrier where the cars may again be used in passenger service, or a 
switching move from one passenger carrier to a storage location. AAPRCO 
expressed concern that the term ``exclusively'' in paragraph (c) of 
this section would cause the rule to apply to these cars and 
locomotives when they are occasionally moved in freight service. 
Further, AAPRCO explained that they do not believe ``that FRA intends 
for such moves to convert a passenger car or locomotive into freight 
rolling stock'' for purposes of the rule. AAPRCO is correct. FRA does 
not intend that these types of moves would convert the equipment into 
freight rolling stock subject to the rule. However, FRA believes Sec.  
224.3, as proposed, is clear in this regard. Section 224.3 states that, 
with certain exceptions, the rule applies to ``railroad freight cars 
and locomotives that operate over a * * * grade crossing and are used 
for revenue or work train service.'' As proposed in the NPRM and 
adopted in this final rule, ``railroad freight car'' is defined 
consistent with 49 CFR 215.5, which provides that a railroad freight 
car is ``a car designed to carry freight, or railroad personnel, by 
rail,'' including, for example, box cars, gondola cars, or tank cars. 
The passenger cars described by AAPRCO would not fall within the rule's 
definition of ``railroad freight car'' and accordingly, would not be 
subject to the rule's requirements. Further, as proposed in the NPRM 
and adopted in this final rule, ``locomotive'' is generally defined 
consistent with 49 CFR 229.5, but specifically limited to locomotives 
used in the transportation of freight or the operation of a work train. 
Accordingly, unless an AAPRCO member's locomotive is pulling freight or 
providing power to a work train, their locomotives will not be subject 
to this rule.

Section 224.5 Definitions

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

[[Page 151]]

engineering grade sheeting (enclosed lens), or high intensity type 
sheeting (ASTM Type I, II, III, or IV Sheeting) as described in ASTM 
International Standard D 4956-01a, Standard Specification for 
Retroreflective Sheeting for Traffic Control. A more detailed 
discussion of this new term can be found in the analysis of Sec.  
224.107 below.
    As defined in the NPRM, ``freight rolling stock'' means any 
locomotive subject to 49 CFR part 229 used to haul or switch freight 
cars in revenue or work train service and any railroad freight car 
subject to 49 CFR part 215, including a car stenciled MW pursuant to 
Sec.  215.305. FRA specifically requested comments as to what other 
types of rail equipment (other than locomotives subject to 49 CFR part 
229) are used to haul freight cars and the feasibility of 
reflectorizing such equipment. FRA also specifically requested comments 
as to the utility and feasibility of equipping specialized maintenance 
of way equipment with reflective material. Although FRA received no 
comments in response to the first question regarding other types of 
rail equipment used to haul freight cars, the AAR responded to FRA's 
second question regarding the utility of equipping specialized 
maintenance of way equipment with reflective material. AAR responded by 
saying that specialized maintenance of way vehicles should not be 
subject to any reflectorization rule. Specifically, AAR noted that none 
of the approximately 700 collisions in the accident pool identified in 
FRA's Regulatory Evaluation involved specialized maintenance of way 
equipment and that trains with maintenance of way cars typically 
consist of only a few units. Thus, AAR reasoned that FRA's stated 
safety justification for proposing to require reflective material on 
freight rolling stock (i.e., reducing the number and severity of grade 
crossing accidents where motor vehicles run into trains after the first 
two units of the consist) was inapplicable to specialized maintenance 
of way vehicles. FRA agrees with AAR's rationale in this regard, and 
accordingly we have retained the definition of freight rolling stock as 
proposed.
    In order to ensure that the requirements of this part would be 
practicable for each type of freight car to which they would apply, FRA 
proposed definitions in the NPRM for ``railroad freight car,'' ``flat 
car,'' and ``tank car'' and then proposed specific patterns of 
reflector markings for each type of car based on the typical physical 
configuration of each car type. FRA specifically requested comments on 
the use of these definitions (i.e., whether the proposed definitions 
were adequate to identify car types for purposes of the rule or whether 
commenters had other definitions that they would prefer). Because FRA 
received no comments in response to this request, FRA has adopted the 
definitions substantially as proposed.

Section 224.7 Waivers

    This section, which has not changed from that proposed in the NPRM, 
explains the process for requesting a waiver from a provision of this 
rule. Requests for such waivers may be filed by any party affected by 
the final rule. In reviewing such requests, FRA conducts investigations 
to determine if a deviation from the general regulatory criteria is in 
the public interest and is consistent with railroad safety. The rules 
governing the FRA waiver process are found in 49 CFR part 211.

Section 224.9 Responsibility for compliance

    This section, which has not changed from that proposed in the NPRM, 
contains the general compliance requirements. Paragraph (a) states that 
freight rolling stock owners (as defined in Sec.  224.5), railroads, 
and (with respect to certification of material) manufacturers of 
retroreflective material, are primarily responsible for compliance with 
the rule. The responsibility of manufacturers is discussed in more 
detail in the analysis of Sec.  224.103(a) below.
    Paragraph (a) also clarifies FRA's position that the requirements 
contained in the rule are applicable to any ``person'' (as defined in 
the rule) that performs any function or task required by the proposed 
rule. Although various sections of the rule address the duties of 
freight rolling stock owners, railroads, and manufacturers of 
retroreflective material, FRA intends that any person who performs any 
action on behalf of any of these parties or any person who performs any 
action covered by the rule is required to perform that action in the 
same manner as required of the freight rolling stock owner, railroad, 
or manufacturer, or be subject to FRA enforcement action. For example, 
employees or agents of freight rolling stock owners, or railroad 
contractors who perform duties covered by this final rule would be 
required to perform those duties in the same manner as required of a 
freight rolling stock owner or railroad. Likewise, employees or agents 
of manufacturers of retroreflective sheeting being manufactured 
pursuant to this part would be required to perform those duties in the 
same manner as the manufacturer.
    Paragraph (b) states that any person performing any function or 
task required by this part will be deemed to have consented to FRA 
inspection of the person's facilities and records to the extent 
necessary to ensure that the function or task is being performed in 
accordance with the requirements of this part. This provision is 
intended to put freight rolling stock owners, railroads, manufacturers, 
and contractors, performing functions or tasks required by this part, 
on notice that they are consenting to FRA's inspection for rail safety 
purposes of that portion of their facilities and records relevant to 
the function or task required by this part. Pursuant to 49 U.S.C. 
20107, FRA has the statutory authority to inspect any facilities and 
relevant records pertaining to the performance of functions or tasks 
required under this part, and this provision is merely intended to make 
that authority clear to all persons performing such tasks or functions.

Section 224.11 Penalties

    This section identifies the penalties that FRA may impose upon any 
person who violates any requirement of this part. These penalties are 
authorized by 49 U.S.C. 21301, 21302, and 21304. The penalty provision 
parallels penalty provisions included in numerous other safety 
regulations issued by FRA and has been adopted in this final rule 
substantially as proposed. As explained in the NPRM, essentially, any 
person who violates any requirement of this part or causes the 
violation of any such requirement will be subject to a civil penalty. 
As also explained in the NPRM, civil penalties may be assessed against 
individuals only for willful violations and each day a violation 
continues will constitute a separate offense. As proposed in the NPRM, 
the minimum civil penalty was $500 per violation, and the maximum civil 
penalty for a grossly negligent violation or a pattern of repeated 
violations that creates an imminent hazard of death or injury to 
persons, or causes death or injury, was $22,000. Since the date of 
publication of the NPRM, however, to comply with the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) (28 U.S.C. 
2461, note) and the Debt Collection Improvement Act of 1996 (Pub. L. 
103-134, 110 Stat. 1321-373), FRA has adjusted the minimum and maximum 
civil penalties applicable to each of the agency's regulations to $550 
and $27,000, respectively. 69 FR 30591 (May 28, 2004). Accordingly, 
this final rule incorporates these revised

[[Page 152]]

minimum and maximum penalty amounts. Furthermore, a person may be 
subject to criminal penalties under 49 U.S.C. 21311 for knowingly and 
willfully falsifying reports required by these regulations.\4\ FRA 
believes that the inclusion of penalty provisions for failure to comply 
with the regulations is important in ensuring that compliance is 
achieved. This final rule includes a schedule of civil penalties as 
Appendix A to this part. Because the penalty schedule is a statement of 
agency policy, notice and comment was not required prior to its 
issuance. See 5 U.S.C. 553(b)(3)(A).
---------------------------------------------------------------------------

    \4\ FRA notes that the criminal penalty provision was 
inadvertently omitted from Sec.  224.11 of the proposed rule. 
However, FRA has corrected this error and has incorporated the 
criminal penalty provision into this final rule, consistent with its 
statutory authority and the penalty provisions of FRA's other 
existing safety regulations.
---------------------------------------------------------------------------

Section 224.13 Preemptive Effect

    This section, which has not changed from that proposed in the NPRM, 
informs the public as to FRA's intention regarding the preemptive 
effect of the final rule. While the presence or absence of such a 
section does not conclusively establish the preemptive effect of a 
final rule, it informs the public concerning the statutory provisions 
which govern the preemptive effect of the rule and FRA's intentions 
concerning preemption.
    This section points out that the preemptive effect of this rule is 
governed by 49 U.S.C. 20106 (``section 20106''). Section 20106 provides 
that all regulations prescribed by the Secretary relating to railroad 
safety preempt any State law, regulation, or order covering the same 
subject matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order, and that does not unreasonably burden 
interstate commerce. With the exception of a provision directed at an 
essentially local safety hazard that is not inconsistent with a Federal 
law, regulation, or order, and that does not unreasonably burden 
interstate commerce, section 20106 will preempt any State or local law 
or regulatory agency rule covering the same subject matter as this 
final rule.
    The Supreme Court has consistently interpreted section 20106 to 
confer on the Secretary the power to preempt not only State statutes, 
but State common law as well. See CSX Transp. v. Easterwood, 507 U.S. 
658, 664 (1993) (``[L]egal duties imposed on railroads by the common 
law fall within the scope of [the] broad phrases'' of section 20106.). 
See also Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344 (2000). The 
Court has further held that Federal regulations under the Federal 
Railroad Safety Act will preempt common law where the regulations 
``substantially subsume'' the subject matter of the relevant State law. 
Easterwood, 507 U.S. at 664.
    As is evident in the language of Sec.  224.1 as proposed and as 
incorporated in this final rule, FRA intends this final rule to cover 
the subject matter of standards for the use of retroreflective 
materials on freight rolling stock and the specific duties of freight 
rolling stock owners in this regard. FRA intends this part to preempt 
any State law, rule, or regulation, or common law theory of liability 
that might attempt to impose a duty on freight rolling stock owners 
pertaining to the reflectorization of freight rolling stock that is not 
specifically set forth in this part. For example, FRA intends to 
preempt any State law or common law theory of liability which might 
attempt to impose a duty on freight rolling stock owners to apply 
additional retroreflective material other than that specified in this 
part, to apply retroreflective material on a different schedule than 
that specified in this part, or to inspect or maintain retroreflective 
material on a more frequent basis than that specified in this part. 
Inference of any duties not specifically set forth in this part may 
cause the costs of the rule to outweigh the safety benefits of the rule 
in direct conflict with the Congressional mandate of 49 U.S.C. 20148 
(requiring that FRA initiate a rulemaking proceeding prescribing 
regulations requiring enhanced visibility standards for railroad cars 
if such regulations would likely improve safety in a cost-effective 
manner).
    In response to the NPRM, RSI specifically requested that FRA 
expressly state in the preamble to the final rule that FRA could not 
envision any set of circumstances where an additional State requirement 
could be justified under the local hazard exception contained in 
section 20106. Although FRA cannot envision any set of circumstances 
where an additional State requirement could be justified under the 
local hazard exception, FRA cannot anticipate every possible factual 
scenario that could exist. Also, it is important to note that although 
FRA can express its intention regarding preemption, the courts will 
make the final determination of preemption.

Section 224.15 Special Approval Procedures

    This section contains the procedures to be followed when seeking to 
obtain FRA approval of alternative standards under Sec.  224.103(e). 
Although FRA received no written comments in direct response to 
proposed Sec.  224.15, at the January 2004 hearing one commenter, an 
association of industry participants (particularly car builders), 
expressed the view that the proposed rule's ``special approval 
procedures'' were too ``cumbersome and lengthy.'' This commenter 
further stated that ``[a] negative determination could prevent a car 
design from being built. If we can't apply the markers the way the rule 
requires, we may not be able to build the car.'' (Hearing transcript, 
pp. 65-66). This commenter, however, appears to have misconstrued the 
intent of Sec.  224.15. As explained in the preamble to the NPRM, FRA 
anticipates continued technological improvements and product advances 
in the field of reflective and luminescent materials. Accordingly, FRA 
intends this section to provide a relatively quick approval process to 
allow the incorporation of new technology into the standards of this 
part, thereby making the technology available to all car owners and 
railroads while maintaining the same level of safety originally 
contemplated. FRA does not intend that this section provide a procedure 
for the approval of alternative reflectorization patterns. Although FRA 
believes that the reflectorization patterns set forth in this final 
rule are flexible enough to ensure that reflectors can be applied to 
almost any freight car or locomotive type, should it be necessary for a 
freight rolling stock owner to apply retroreflective material in a 
pattern that does not conform with the requirements of this final rule, 
pursuant to Sec.  224.7 of this final rule, the owner may file for a 
waiver from the requirements of Sec.  224.106. The waiver process is 
discussed in more detail in the analysis of Sec.  224.7 above.
    Another commenter specifically requested that the proposed rule be 
modified to be ``technologically neutral'' and be a performance 
standard that does not discriminate based on the specific technology 
employed. This commenter, Availvs Corporation, a manufacturer of photo 
luminescent material, asserted that its ``state-of-the-art photo 
luminescent material * * * works as well as, or better than, any 
retroreflective material'' in enhancing the visibility of rail 
equipment. Availvs noted that the company has previously demonstrated 
its product to FRA and that in 2003 the product was ``satisfactorily 
tested'' by the American Society for Testing and Materials. Because FRA 
does not currently have

[[Page 153]]

enough data to determine whether Availvs's product would meet the same 
performance standards contemplated in this final rule, FRA cannot 
revise the proposed rule to provide for the use of material other than 
the specified retroreflective material. However, FRA encourages Availvs 
to take advantage of the special approval process of Sec.  224.15 to 
provide FRA the opportunity to determine whether Availvs's product 
would provide at least an equivalent level of safety as the 
retroreflective material mandated in this final rule.
    FRA believes the procedures set forth in Sec.  224.15 will speed 
the process for taking advantage of new technologies over that which is 
currently available through the waiver process. However, in order to 
provide an opportunity for all interested parties to provide input for 
use by FRA in its decision making process, as required by the 
Administrative Procedure Act, 5 U.S.C. 553 et seq. (APA), FRA believes 
that any special approval provision must, at a minimum, provide proper 
notice to the public of any significant change or action being 
considered by the agency with regard to the existing regulations.
    Paragraph (b) sets forth the substantive and procedural 
requirements for petitions for special approval of alternative 
standards; paragraphs (c) and (d) provide opportunity for notice and 
public comment on any petition for special approval of an alternative 
standard received by FRA; and paragraph (e) describes the process FRA 
will follow in acting on any such petitions.

Subpart B--Application, Inspection, and Maintenance of Retroreflective 
Material

Section 224.101 General Requirements

    This section contains the general requirement that all rail freight 
rolling stock subject to this part be equipped with retroreflective 
sheeting conforming to the requirements of this rule and the sheeting 
be applied, inspected, and maintained in accordance with subpart B or 
in accordance with an alternative standard approved under Sec.  224.15. 
As explained in the preamble to the NPRM, this general requirement 
reflects FRA's understanding that motorists need to be given as much 
visual information as possible to correctly decide whether a hazard 
(e.g., a train) exists in a vehicle's path. Specifically, devices 
intended to make a train conspicuous should: (1) Tell the motorist that 
something is there, (2) tell the motorist that what he or she sees is a 
train, (3) tell the motorist whether the train is on or about to cross 
a road in the vehicle's path, (4) aid the motorist in estimating the 
distance he or she is from the train, and (5) aid the motorist in 
estimating the speed and direction of the train's motion. FRA believes 
that the retroreflective sheeting required in this subpart B, applied 
and inspected in conformance with this part, effectively achieves these 
objectives.

Section 224.103 Characteristics of Retroreflective Sheeting

    This section sets forth the construction, color, and performance 
standards for the retroreflective sheeting required by Sec.  224.101. 
As was proposed in the NPRM, paragraph (a) of this section in the final 
rule states that retroreflective sheeting must be constructed of a 
smooth, flat, transparent exterior film with microprismatic elements 
embedded or suspended beneath the film so as to form a non-exposed 
retroreflective optical system.
    As proposed in the NPRM, paragraph (a) of this section also 
required that air encapsulated sheeting be sealed around all edges. 
This proposed requirement was based on FRA's understanding that air 
encapsulated sheeting that is not sealed on all edges allows water to 
seep between the layers of the product and over time, due to the normal 
railroad operating environment, this water will freeze and expand, 
causing layers of the sheeting to peel. One commenter, Avery Dennison, 
a manufacturer of retroreflective sheeting already in common use in the 
railroad industry, expressed agreement with FRA's proposal to require 
edge sealing of air encapsulated sheeting. Specifically, Avery Dennison 
explained that ``the typical welds used to enclose individual cells are 
very thin, and inadequate for the demands placed on exposed edges.'' 
Other commenters, however, including 3M, another manufacturer of 
reflective materials already commonly used on railroad equipment, and 
the AAR, expressed the view that edge sealing should not be required on 
``enclosed lens sheeting.'' \5\ 3M explained that ``[r]etroflective 
sheeting that incorporates air between laminations contains internal 
seals that * * * prevent the penetration of water'' and that ``[o]nly 
the small portions of individual cells that are cut open along the edge 
of a piece of sheeting could be affected by water penetration.'' 
Further, 3M explained that the open, exposed edge of the sheeting does 
not affect the durability or performance of the sheeting as a whole and 
that air encapsulated sheeting (i.e., sheeting with exposed cut edges) 
is routinely used on traffic signs and vehicles without edge sealing 
and is warranted for up to 12 years. Although 3M acknowledged that 
historically, many years ago, edge sealing was sometimes used, 3M 
indicated that given the current construction and durability of 
retroreflective material, it is no longer necessary, and accordingly, 
the company no longer manufactures, markets, or recommends edge 
sealing.
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    \5\ FRA notes that 3M refers specifically to ``enclosed lens 
sheeting'' in its comments. FRA understands that the term ``enclosed 
lens sheeting'' typically refers to ``glass bead'' type sheeting and 
FRA notes that no glass bead type sheeting currently being 
manufactured is capable of meeting the photometric performance 
requirements of FRA's proposed specification. However, from the 
remainder of 3M's comments specifically referring to 
``[r]etroreflective sheeting that incorporates air between 
laminations,'' FRA assumes that 3M is referring to air encapsulated 
sheeting.
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    In light of 3M's comments and absent conclusive evidence 
establishing that edge sealing is necessary to maintain the integrity 
of air encapsulated retroreflective sheeting, in this final rule FRA is 
not mandating that air encapsulated retroreflective sheeting be edge 
sealed. As explained in detail in the NPRM, the construction, color, 
and performance standards set forth in this rule are designed to ensure 
that retroreflective material applied pursuant to this rule is durable 
enough to withstand the harsh railroad operating environment and 
maintain sufficient levels of reflectivity throughout the useful life 
of the material. FRA notes, however, that it is the responsibility of 
the retroreflective material manufacturer and the customer to determine 
the suitability of particular materials for use on rail car sides. FRA 
recognizes that many freight rolling stock owners already have 
extensive experience using various types of reflective materials on the 
sides of their equipment in specific service environments. FRA 
recognizes that these owners understand the harsh conditions associated 
with railroad operations that may affect the performance of the 
retroreflective material, particularly the power washing of equipment 
or the extensive exposure of the equipment to various harsh chemicals. 
Accordingly, freight rolling stock owners electing to apply air 
encapsulated sheeting conforming to the requirements of this rule may 
wish to consider specifying that the material be edge sealed in order 
to limit maintenance costs.
    As originally proposed, paragraphs (b) and (c) of this section 
generally required that the retroreflective sheeting meet the color and 
performance requirements, except for the photometric requirements, of 
the American Society of Testing and Measurements' (ASTM) Standard D 
4956-01, Standard

[[Page 154]]

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

[[Page 155]]

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

[[Page 156]]

factors (i.e., Tables 5, 9, and 11 of the ASTM standard). Avery 
Dennison explained that based on the chromaticity coordinates specified 
in the ASTM standard, if FRA does not specify a minimum daytime 
luminance factor, retroreflective sheeting that appeared brown could 
meet the stated color requirement. Accordingly, Avery Dennison 
recommended that FRA adopt a minimum daytime luminance factor (Y%) of 
12 for yellow sheeting. Although FRA now recognizes this ambiguity in 
the color requirement of the proposed rule, in this final rule FRA has 
modified the performance requirements contained in paragraph (c) to 
specify that retroreflective sheeting applied pursuant to this rule 
must meet the performance requirements (except for the minimum 
photometric performance requirements) of Type V Sheeting as defined in 
ASTM standard D 4956-01a. One of the performance requirements of Type V 
Sheeting is meeting an assigned daytime luminance factor. Specifically, 
Table 11 of the ASTM standard sets forth the required Y% for Type V 
Sheeting; the Y% for yellow Type V sheeting is 12, and the Y% for white 
Type V sheeting is 15. Accordingly, although FRA agrees with Avery 
Dennison's comment regarding the necessity of including a daytime 
luminance factor to ensure that only appropriately high-contrast 
colored sheeting meets the performance requirements of the rule, FRA 
has achieved this by specifying that sheeting must meet the 
requirements for Type V Sheeting as defined in ASTM standard D 4956-
01a.
    Paragraph (c), as it did in the NPRM, contains the performance 
standards for retroreflective sheeting applied under this part. This 
paragraph, however, has been modified slightly, consistent with FRA's 
decision to allow the use of either yellow or white retroreflective 
material and to clarify the performance requirements. As discussed 
above and explained in detail in the NPRM, this paragraph was intended 
to require that retroreflective sheeting applied in accordance with the 
rule meet all the performance requirements, except for the minimum 
photometric performance requirements, of ASTM standard 4956-01. The 
ASTM standard has been chosen as the basis for the FRA specification 
because FRA understands it to be the specification that manufacturers 
of retroreflective sheeting are following in their current 
manufacturing process. NHTSA's rule requiring reflectorization of large 
truck trailers (49 CFR 571.108) is also based on this ASTM standard 
(version D 4956-01).
    As proposed, however, these performance requirements contained a 
certain amount of unintended ambiguity. Specifically, ASTM standard D 
4956-01a identifies nine ``Types'' of retroreflective sheeting. As 
explicitly stated in the ASTM standard, ``Type designation is provided 
as a means for differentiating functional performance.'' ``Types'' are 
determined by conformance to the standard's retroreflectance, color, 
and durability requirements. Each ``Type'' designated by ASTM must 
conform to certain minimum performance standards. That is, each 
``Type'' must meet certain performance standards (i.e., retroreflective 
photometric performance, flexibility, adhesion, impact resistance, 
accelerated weathering, shrinkage, resistance to fungus, and specular 
gloss performance standards). Because no ``Type'' was specified in the 
performance requirements of paragraph (c) of proposed Sec.  224.103, it 
was impossible for the retroreflective material manufacturing industry 
to determine which performance standards specified in the ASTM standard 
FRA intended to apply.
    In this final rule, FRA has clarified these performance 
requirements by stating that retroreflective sheeting must conform to 
all the performance requirements, except the minimum photometric 
performance requirements, for Type V Sheeting as defined in ASTM 
standard D 4956-01a. Type V Sheeting, defined in the ASTM standard as 
``super high-intensity retroreflective sheeting,'' is typically used 
for delineators. For example, Federal regulations requiring 
retroreflective material on the sides and rear of large trucks require 
retroreflective sheeting meeting the performance requirements of Type V 
Sheeting. Although FRA did not specify ``Type V'' sheeting in the 
proposed rule, FRA believes doing so now is consistent with the 
proposed rule because, given the photometric performance requirements 
contained in the NPRM, the other ASTM-defined ``Types'' of sheeting 
that could meet the proposed performance requirements would not be 
appropriate for the intended function of delineators on rail car sides.
    As explained in the NPRM, because FRA is requiring that 
retroreflective sheeting meet the requirements of ASTM D 4956-01a for 
Type V Sheeting only as initially applied and is not requiring specific 
minimum reflectivity for vehicles in service, FRA believes that highly 
durable sheeting meeting the performance tests of the ASTM standard is 
required. It is less costly to install durable material than it would 
be to install less durable material but be required to regularly test 
its performance relative to a performance standard.
    Table 1 of the final rule, as it did in the proposed rule, sets 
forth the specific minimum photometric performance requirements for 
retroreflective sheeting under this part. In addition, because the 
final rule permits the use of either yellow or white material (as 
opposed to the proposed rule which contemplated the use of only white 
material), FRA has inserted the minimum photometric performance 
requirements (i.e., minimum SIA) in Table 1 specific to white 
material.\9\ Specifically, Table 1 sets forth the minimum photometric 
performance requirements (i.e., minimum required SIA) for both yellow 
and white retroreflective material at observation angles of 0.2[deg] 
and 0.5[deg] and light entrance angles of -4[deg] and 30[deg] based on 
typical grade crossing configurations and the standards set forth in 
ASTM D 4956-01a. These minimum photometric performance requirements for 
white material, like the requirements applicable to yellow material 
proposed in the NPRM, were developed to ensure that the retroreflective 
material would perform above the minimum detection threshold of 45 cd/
fc/ft\2\ identified in the 1999 Volpe Report as necessary to enable 
most motorists to detect a train in time to avoid a collision. As 
explained in the NPRM, FRA recognizes that in the real world railroad 
operating environment, the effective SIA of retroreflective materials 
depends on various factors (e.g., grade crossing configurations and 
angles, ambient light conditions, vehicle headlight type and lens 
cleanliness, weather, and the presence and working condition of 
illumination and other warning devices). FRA also recognizes that the 
effectiveness of the retroreflective material may be reduced because of 
dirt and grime which inevitably accumulate on rail cars. Accordingly, 
as in the proposed rule, the minimum photometric performance 
requirements of this final rule take into account these varying 
factors. Specifically, as explained in the NPRM, in determining these 
minimum

[[Page 157]]

photometric performance requirements, FRA extrapolated test data 
detailed in the 1999 Volpe Report out ten years, the manufacturer's 
stated useful life of the material. This extrapolation demonstrated 
that the forecasted SIA levels remained well above the minimum 
detection level established in the 1999 Volpe Report. In addition, 
although the primary degradation in the SIA of the material occurs 
during the first two years as a result of ultra-violet light exposure, 
after which the material maintains a relatively consistent intensity 
throughout its useful life, FRA forecasted SIA degradation of the 
material due to dirt and grime accumulation exponentially. Accordingly, 
FRA's analysis substantially overestimates the degradation rate of the 
material, and even with this overestimation, the expected SIA values 
for 10 years remain well above the minimum detection level identified 
in the 1999 Volpe Report.
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    \9\ In the NPRM, FRA specifically requested comments regarding 
these minimum photometric performance requirements for white 
material. 68 FR 62955. Because FRA received no substantive comments 
regarding these requirements, FRA has adopted them substantially as 
proposed in this final rule. FRA has, however, corrected one 
inadvertent error in the requirements as previously published. In 
the NPRM, FRA erroneously referred to an observation angle of 0.53 
for white material. FRA has corrected this error to maintain 
consistency with ASTM standard D 4956-01a in this final rule.
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    In response to the minimum photometric performance requirements of 
the proposed rule, 3M recommended that the 30[deg] entrance angle be 
increased to 40[deg] and the minimum photometric performance 
requirements be revised accordingly. Specifically, 3M questioned 
whether the 4% of crossings FRA identified with crossing angles of less 
than 30[deg] assume that drivers view trains while they are on the road 
that crosses the track (e.g., driving on a road perpendicular to the 
tracks). 3M pointed out that drivers are often on a roadway parallel to 
railroad tracks and, given the narrow entrance angularity of the 
proposed photometric requirements, 3M expressed the view that drivers 
often would not have enough time after turning off a parallel roadway 
to react to conspicuity markings on railcars passing on the track. 
Avery Dennison, on the other hand, commented that if a driver were 
traveling on a roadway parallel to the tracks, the driver would have to 
make a 90[deg] turn, requiring braking, in order to cross the tracks. 
Accordingly, Avery Dennison concluded that the proposed entrance angle 
requirements were sufficient.
    As explained in the NPRM, FRA's Grade Crossing Inventory 
demonstrates that approximately 80% of all crossings have crossing 
angles between 60[deg] and 90[deg], almost 17% have crossing angles 
between 30[deg] and 59[deg], and only 4% have crossing angles less than 
30[deg]. Accordingly, the requirements of Table 1 ensure that the 
retroreflectors will perform above the minimum detection threshold for 
the average motor vehicle at approximately 96% of all crossings.
    Paragraph (d) of this section retains the certification requirement 
proposed in the NPRM. Specifically, manufacturers of retroreflective 
sheeting are responsible for compliance with the construction, color, 
and performance requirements of the retroreflective sheeting used to 
comply with this rule. Accordingly, as it did in the NPRM, this 
paragraph requires that manufacturers who are providing retroreflective 
sheeting to the railroad industry certify their products' compliance 
with Sec.  224.103. Specifically, paragraph (d) requires that the 
characters ``FRA-224'' be permanently stamped, etched, molded, or 
printed, in characters at least 3 mm high, with each set of characters 
spaced no more than four inches apart, on each piece of retroreflective 
sheeting manufactured. FRA received only two comments regarding the 
proposed certification requirement, both from manufacturers of 
retroreflective sheeting. First, 3M suggested that the integrity of the 
self-certification system proposed needed improvement and urged FRA to 
require manufacturers to demonstrate compliance with the ISO 9000 
Quality Systems Standard or a technically equivalent standard. Avery 
Dennison, on the other hand, expressed the view that the certification 
requirement, as proposed in the NPRM, was adequate. In support of its 
position, Avery Dennison noted that the proposed self-certification 
requirement of an indelible ``FRA-224'' mark is identical to the self-
certification requirement in the Federal Motor Vehicle Safety Standards 
requiring retroreflective sheeting on large trucks and trailers (49 CFR 
571.108). FRA notes that the manufacturer self-certification system 
proposed was modeled after the system utilized in the trucking 
industry. Also, FRA notes that the same retroreflective material 
manufacturers who supply material to the trucking industry will be the 
suppliers pursuant to this rule. Accordingly, FRA believes that the 
system of self-certification, as proposed, is sufficient.
    Paragraph (e) of this section, which has not changed from that 
proposed in the NPRM, recognizes that although the rule generally 
requires application of retroreflective sheeting meeting the specific 
construction, color, and performance requirements of Sec.  224.103(a) 
through (c), freight rolling stock owners may, under Sec.  224.15, 
request FRA approval to use alternative standards. As discussed in the 
analysis of Sec.  224.15 above, any alternative standard utilized must 
result in an equivalent level of safety as the sheeting described in 
Sec.  224.103(a) through (c) applied in accordance with this rule.

Section 224.105 Sheeting Pattern, Dimensions and Quantity

    As proposed in the NPRM, Sec.  224.105 made the amount and 
placement of retroreflective sheeting required under this part 
dependent on the size of the car or locomotive, as well as the car 
type. Proposed Sec.  224.105 also set forth specific patterns for the 
application of retroreflective material to various types of freight 
cars, as well as locomotives. This section of the final rule, however, 
no longer sets forth specific placement patterns for freight cars and 
locomotives. Instead, this section now describes the general standards 
for the pattern of retroreflective material application for rail cars, 
dimensions of individual pieces of retroreflective sheeting, and the 
minimum quantity of retroreflective sheeting required on each side of a 
freight car or locomotive. A new section, Sec.  224.106, sets forth the 
more specific patterns, applicable to both freight cars and 
locomotives, that FRA is requiring in this final rule. Accordingly, 
discussion of the specific patterns of application required for freight 
cars and locomotives will be discussed in the analysis of new Sec.  
224.106, and the discussion in this section will focus on the general 
requirements of Sec.  224.105 as adopted in this final rule.
    As contemplated by the proposed rule, this section of the final 
rule specifies that, with certain exceptions, individual reflectors 
applied pursuant to this part must be 4 inches wide and 18 or 36 inches 
long (one-half a square foot or one square foot, respectively). FRA has 
retained this general requirement for relatively large-sized reflectors 
in order to minimize the degradation rate of individual strips of 
retroreflective sheeting. Section 224.105 of this final rule also 
provides that retroreflective sheeting must be applied along the length 
of freight car and locomotive sides and that the amount of 
retroreflective material required to be applied is, in part, dependent 
on the length of the car or locomotive. Table 2 of this section 
mandates a minimum square footage of sheeting on each car side, based 
on the car size and the sheeting color. If a car owner or railroad 
chooses to apply yellow retroreflective material, the amount of 
material required is consistent with the minimum amounts proposed to be 
required on ``cars of special construction'' in Sec.  224.105(a)(4) of 
the proposed rule. As discussed in the NPRM, although the optimum 
configuration of retroreflectors identified in the 1999 Volpe Report 
required slightly less retroreflective

[[Page 158]]

material, this configuration assumed that the material would be 
periodically washed. Volpe found that periodic washing of the 
retroreflectors could recover the intensity of the prismatic material 
to nearly original levels. However, because of practical concerns 
expressed by many members of the railroad industry (e.g., increased 
labor costs, environmental wastewater, and water usage issues), FRA is 
not requiring the periodic cleaning of the retroreflective sheeting. 
Instead, in order to compensate for the lack of cleaning, FRA is 
requiring approximately 30% more material (about 1 square foot on each 
side of most typically-sized freight rolling stock), thereby lowering 
the level of luminance needed.
    As noted in the discussion of Sec.  224.103 above, if a car owner 
or railroad chooses to apply white retroreflective material for 
purposes of meeting the enhanced visibility standards of this final 
rule, the owner must apply a greater quantity of the material in order 
to achieve the same effectiveness as the smaller quantity of yellow 
material required by this rule. As also noted above in the discussion 
of the color requirement of Sec.  224.103, although white material has 
a higher SIA than yellow material, and presumably would be brighter and 
more reflective than yellow material, because an object's perceived 
brightness is modified by color information, yellow is actually more 
detectable, particularly at night and during other conditions of 
limited visibility. See Schumann et al. and Sayer et al. (Document Nos. 
FRA-1999-6689-112 and -113 in the docket of this proceeding).
    As noted in the discussion of Sec.  224.103 above, recognizing that 
a chromatic retroreflector may appear brighter than an achromatic 
retroreflector with the same luminance, ASTM E 1501 provides a widely-
accepted methodology for calculating color correction factors which 
effectively account for the perceived differences in brightness and 
conspicuity between chromatic and achromatic retroreflective markings. 
Based on the chromaticity coordinates of their specific product colors 
and the methodology of ASTM E 1501,\10\ manufacturers of 
retroreflective sheeting calculate color correction factors specific to 
their product colors. As a result, manufacturer-specific tables of 
color correction factors for retroreflective traffic control products 
that compensate for color have existed in the reflective material 
manufacturing industry for decades. Based on the color correction 
factors reported by a sampling of retroreflective material 
manufacturers already routinely supplying retroreflective material to 
the railroad industry and the methodology of ASTM E 1501, FRA 
determined that approximately 24% more white retroreflective material 
meeting the minimum photometric performance requirements of Sec.  
224.103 is necessary to achieve the same level of retroreflection as 
the amount of yellow material FRA determined to be necessary.
---------------------------------------------------------------------------

    \10\ See Sec. Sec.  6.4 and 6.5 of ASTM E 1501 addressing 
Chromaticity Coordinates and Color Factor for Adjustment 
Calculations (F<INF>c</INF>).
---------------------------------------------------------------------------

Section 224.106 Location of Retroreflective Sheeting

    As noted in the discussion of Sec.  224.105 above, similar to 
proposed Sec.  224.105, Sec.  224.106 of this final rule sets forth 
specific patterns for the application of retroreflective material to 
various types of freight cars, as well as locomotives. The proposed 
rule (in Sec.  224.105) generally required a vertical pattern of 
retroreflective sheeting on the sides of freight cars, with strips of 
sheeting to be located as close to each end of the car as practicable 
and at equidistant intervals of not more than 10 feet. FRA proposed to 
require that retroreflective sheeting be applied at least every 10 feet 
along the sides of freight cars because roadway lanes in the United 
States are typically 10 to 12 feet wide and accordingly, having at 
least one reflector every 10 feet increases the likelihood of a 
reflector being in the sight path of an approaching motorist. 
Recognizing that the conspicuity issues surrounding locomotives differ 
from the issues surrounding freight cars, Sec.  224.105 of the proposed 
rule provided a more flexible approach to the reflectorization of 
locomotives, specifying only that a minimum amount of retroreflective 
material was to be equally distributed between both sides of 
locomotives in a pattern recognizable to motorists.
Railroad Freight Cars
    As proposed in the NPRM, paragraph (a) of Sec.  224.105 set forth a 
specific pattern of application for railroad freight cars generally 
(e.g., box cars, gondola cars, and other similarly configured cars), 
tank cars, flat cars, and ``cars of special construction.'' 
Specifically, as proposed, paragraph (a) explained that the amount of 
retroreflective sheeting required to be applied to freight cars under 
this part is dependent on the length of the car, measured from endsill 
to endsill, exclusive of the draft gear. Paragraph (a)(1) proposed to 
require that on freight cars other than tank cars, flat cars, and 
``cars of special construction,'' retroreflective sheeting be applied 
vertically in 4x36 inch and 4x18 inch strips along the car sides, with 
the bottom edge of each strip as close as practicable to 42 inches 
above the top of the rail. Further, paragraph (a)(1) proposed to 
require that either a minimum of one 4x36 inch (one square foot) strip 
of retroreflective material or two 4x18 inch strips, directly above the 
other, be applied vertically as close to each end of the car as 
practicable and that a minimum of one 4x18 inch strip be applied 
vertically at equal intervals of 10 feet or less between the car ends.
    Paragraphs (a)(2) and (3) of proposed Sec.  224.105 followed the 
same basic pattern as paragraph (a)(1), but attempted to account for 
the configurational differences between various types of freight cars. 
Proposed paragraph (a)(2) addressed tank cars, while paragraph (a)(3) 
addressed flat cars. Paragraph (a)(2) proposed to require that on tank 
cars, retroreflective sheeting be applied vertically along the car 
sides and centered on the horizontal centerline of the tank, or as near 
as practicable. Further, proposed paragraph (a)(2) provided that if it 
was not practicable to safely apply the sheeting centered on the 
horizontal centerline of the tank, the sheeting could be applied 
vertically with its top edge no lower than 70 inches above the top of 
the rail. Similar to the pattern proposed in paragraph (a)(1), 
paragraph (a)(2) proposed to require a minimum of one 4x36 inch (one 
square foot) strip of retroreflective material or two 4x18 inch strips, 
directly above each other, be applied vertically as close to each end 
of the tank as practicable and that a minimum of one 4x18 inch strip be 
applied vertically at equal intervals of 10 feet or less between each 
end of the tank. The intent of this proposed configuration of 
reflective material on tank cars was that the retroreflective sheeting 
would be centered, as practicable, on the outermost curved areas of the 
tank, thereby reflecting the most light.
    Recognizing the limited surface area of the sides of a typical flat 
car, paragraph (a)(3) of proposed Sec.  224.105 required a minimum of 
two 4x18 inch strips, one next to the other, be applied vertically as 
close to each end of the car as practicable, with the bottom edge of 
each strip no lower than 30 inches above the top of the rail, as 
practicable. Consistent with the application pattern for other freight 
cars, paragraph (a)(3) further proposed to require that a minimum of 
one 4x18 inch strip be applied to the sides of flat cars vertically at 
equal intervals of ten feet or less, with

[[Page 159]]

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

[[Page 160]]

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

[[Page 161]]

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

[[Page 162]]

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

Section 224.107 Implementation Schedule

    As proposed in the NPRM, this section required that all freight 
cars subject to this part be equipped with retroreflective sheeting 
conforming to this part within ten years of the effective date of the 
final rule, and similarly, that all locomotives subject to this part be 
equipped within five years. Generally, FRA proposed that 
retroreflective sheeting be applied to new freight rolling stock at the 
time of construction and to existing stock when such stock was being 
repainted, rebuilt, or undergoing other periodic maintenance. As an 
alternative to this schedule, FRA proposed a more flexible approach of 
allowing freight car owners to designate, in individualized 
implementation plans, a schedule for the reflectorization of

[[Page 163]]

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

[[Page 164]]

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

[[Page 165]]

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

[[Page 166]]

locomotive owner may elect not to follow paragraph (b)(2)(i)'s 
schedule, if by July 1, 2005, the owner submits to FRA a Compliance 
Report that, at a minimum, (1) indicates how many locomotives subject 
to the final rule are in the owner's fleet at the time the Compliance 
Report is being prepared, and (2) contains the owner's certification 
that all locomotives in the identified fleet will be equipped with 
retroreflective sheeting in conformance with the schedule set forth in 
Table 4 of the rule. Table 4 requires that as of May 31, 2007 
(approximately two years after the effective date of this rule), 
locomotive owners choosing to apply retroreflective material pursuant 
to this alternative schedule must have reflectorized at least 40% of 
their total locomotive fleet; by May 31, 2008 (approximately three 
years after the effective date of this rule), owners must have 
reflectorized 60% of their total locomotive fleet; by May 31, 2009 
(approximately four years after the effective date of this rule), 
locomotive owners must have reflectorized 80% of their total locomotive 
fleet, until at the end of the five-year implementation period (i.e., 
by May 31, 2010), 100% of the entire domestically-owned locomotive 
fleet is equipped with retroreflective material in accordance with the 
rule.
    If a locomotive owner elects the procedures of paragraph (b)(2)(ii) 
and submits a Compliance Report to FRA, the owner is thereafter 
responsible for compliance with the plan and the owner is responsible 
for submitting an updated Compliance Report to FRA by July 1st of each 
year thereafter for the duration of the five-year implementation 
period. In keeping with the requirements of the Paperwork Reduction Act 
and the Government Paperwork Elimination Act, FRA anticipates providing 
locomotive owners with the option of submitting Compliance Reports to 
FRA electronically.
    If a locomotive owner fails to meet any of the minimum milestones 
set forth in Table 4 of this final rule, the locomotive owner must 
report the failure in writing to FRA's Associate Administrator for 
Safety. Thereafter, the owner will be required to comply with the 
schedule set forth in paragraph (b)(2)(i) and the owner must take any 
additional action necessary to bring locomotives under his or her 
ownership or control into compliance. In other words, if an owner fails 
to meet any of the minimum milestones set forth in Table 4 of this 
final rule, once this failure is identified, the owner will be required 
to equip each of the locomotives in the fleet subject to this rule with 
retroreflective sheeting at the locomotive's next biennial inspection 
performed pursuant to 49 CFR 229.29 occurring after the end of the 
reporting period in which the failure occurred. The locomotive owner, 
however, remains responsible for ensuring that each freight car in his 
or her fleet subject to this rule is equipped with retroreflective 
sheeting conforming to this rule by the end of the five-year 
implementation period (i.e., by May 31, 2010).
    Existing locomotives already equipped with retroreflective sheeting 
as of the publication date of the final rule: Again, recognizing the 
voluntary efforts already underway by many locomotive owners to 
reflectorize their locomotive fleets, paragraph (b)(3) of proposed 
Sec.  224.107 provided that locomotives equipped with at least one 
square foot of retroreflective sheeting, uniformly distributed over the 
length of each locomotive side, would be considered in compliance with 
this rule for five years from the effective date of the final rule, 
provided that the sheeting was not engineering grade, super engineering 
grade (enclosed lens), or glass bead encapsulated type sheeting. As 
explained in the NPRM, FRA proposed a minimum requirement of one square 
foot of retroreflective sheeting per locomotive side because based on 
the information provided to FRA to date, it appears that one square 
foot per side is the minimum amount currently utilized in existing 
voluntary reflectorization programs. If these locomotive owners were 
required to replace the retroreflective materials that they voluntarily 
installed to improve safety, it would have the effect of penalizing 
owners that demonstrated an extra level of safety consciousness and 
discouraging these owners from exploring innovative approaches to 
improving safety in the future. As also explained in the NPRM, FRA 
proposed to exclude all engineering grade and glass bead encapsulated 
type retroreflective sheeting because such sheeting does not meet the 
minimum photometric performance requirements of Sec.  224.103. 
Accordingly, as proposed, locomotives already equipped with engineering 
grade, super engineering grade, or glass bead encapsulated type 
retroreflective sheeting, or any other reflective material that is not 
retroreflective, would have to be brought into compliance with this 
part in accordance with Sec.  224.107(a)(2).
    A few commenters, including AAR and CN, expressed the view that 
FRA's proposed locomotive grandfathering provision was too limited 
because it only encompassed ``diamond-grade'' material.\11\ 
Specifically, CN noted that its fleet of locomotives in service in the 
United States, both new and recently repainted, is equipped with yellow 
stripes of ``high-intensity grade'' retroreflective material, 
approximately six inches wide, along the entire length of the 
locomotive side sills. Further, CN noted that on a typical seventy foot 
locomotive, this equates to approximately 32-35 square feet of 
retroreflective material per side. CN questioned FRA's rationale for 
excluding locomotives equipped with over 30 times the amount of 
required material from the grandfathering provision merely because the 
material is a different grade than that contemplated by FRA's proposal. 
Accordingly, CN recommended that the proposed rule's grandfathering 
provision for locomotives be revised to include locomotives with 
``large areas of reflective material of lower grade spread along the 
entire length'' of the locomotive.
---------------------------------------------------------------------------

    \11\ FRA notes that the term ``diamond-grade'' is a brand name 
referring to particular retroreflective products manufactured by 3M. 
FRA understands that ``diamond-grade'' is not a generic term 
referring to specific ASTM sheeting ``Types,'' nor is ``diamond-
grade'' an accurate shorthand for the group of three categories of 
retroreflective sheeting that FRA specifically proposed to exclude 
from the locomotive grandfathering provision of Sec.  224.107(b)(2) 
(i.e., engineering grade, super engineering grade, or glass bead 
encapsulated sheeting). Nonetheless, FRA interprets AAR's and DN's 
comments as asserting that FRA's proposal to specifically exclude 
engineering grade, super engineering grade, and glass bead 
encapsulated sheeting from the locomotive grandfathering provision 
as too narrow.
---------------------------------------------------------------------------

    As explained above, FRA proposed to exclude all engineering grade 
and glass bead encapsulated type retroreflective sheeting from the 
grandfathering provision because the sheeting does not meet the minimum 
photometric performance requirements of the proposed rule. As detailed 
in the NPRM, however, FRA notes that research has consistently 
demonstrated that the larger the reflector area, the smaller the 
required SIA of the reflector. In other words, a larger amount of less-
reflective material (material with a lower SIA) can be just as 
effective as a smaller amount of more-reflective material (material 
with a higher SIA). Based on the photometric performance requirements 
of engineering grade and glass bead encapsulated type retroreflective 
sheeting set forth in ASTM standard D 4956-01a, FRA estimates that 
approximately three square feet of these types of sheeting are 
necessary to achieve the effectiveness of one square foot of sheeting 
conforming to the minimum photometric performance requirements of this 
final rule.

[[Page 167]]

Accordingly, paragraph (b)(3) of Sec.  224.107 of this final rule has 
been revised to provide that locomotives equipped with at least three 
square feet of ``unqualified retroreflective sheeting'' will be 
considered in compliance with this rule through May 31, 2015 
(approximately ten years from the effective date of the final 
rule).\12\ As discussed in the analysis of Sec.  224.5 above, the term 
``unqualified retroreflective sheeting'' has been defined to include 
all engineering grade and glass bead encapsulated type retroreflective 
material (i.e., the material FRA previously excluded from the FRA's 
proposed locomotive grandfathering provision), as well as ``high-
intensity'' type sheeting as described in ASTM standard D 4956-01a 
(i.e., ASTM Type I, II, III, or IV).\13\
    Although this final rule requires that most railroads equip all 
their locomotives subject to this rule with conforming retroreflective 
sheeting within five years of the effective date of the rule, paragraph 
(b)(4) of Sec.  224.107, which has not changed from that proposed in 
the NPRM, provides that certain small railroads may take an additional 
five years to bring their locomotive fleets into compliance with the 
rule. Specifically, paragraph (b)(4) provides that railroads with fewer 
than 400,000 annual employee work hours that do not share locomotive 
power with a railroad with 400,000 or more annual employee work hours 
may take up to ten years to bring their locomotive fleets into 
compliance with the rule. This alternate compliance date is intended to 
apply only to a limited number of small railroads whose operations 
would justify the continued use of unreflectorized locomotives (i.e., 
those small railroad operations that do not typically involve 
locomotives providing ``distributed power'' or otherwise moving 
unilluminated in the middle of train consists).
---------------------------------------------------------------------------

    \12\ FRA notes that it has revised the grandfather provision of 
Sec.  224.107(b)(3) to provide that locomotives grandfathered under 
the final rule will be considerred in compliance with the rule for 
ten years, consistent with the grandfather provision of Sec.  
224.107(a)(3) for freight cars.
    \13\ FRA notes that the proposed rule did not specifically 
exclude ``high-intensity'' type retroreflective sheeting (ASTM Type 
IV sheeting), but because high-intensity type sheeting, like all 
engineering grade sheeting and glass bead encapsulated type 
sheeting, will not meet the minimum photometric performance 
standards of this rule, it is necessary for locomotives to be 
equipped with more than one square foot of ``high-intensity'' 
material in order to achieve the effectiveness of one square foot of 
sheeting conforming to the minimum photometric performance 
requirements of this rule.
---------------------------------------------------------------------------

Section 224.109 Inspection, Repair, and Replacement

    As it did in the NPRM, this section of the final rule sets forth 
the requirements for the periodic inspection and maintenance of 
retroreflective material on freight rolling stock. Paragraph (a) of 
proposed Sec.  224.109 required that retroreflective sheeting on 
freight cars subject to this part be visually inspected for presence 
and condition whenever a car underwent a single car air brake test 
required under 49 CFR 232.305. Likewise, paragraph (b) of proposed 
Sec.  224.109 required that retroreflective sheeting on locomotives 
subject to this part be visually inspected for presence and condition 
whenever the locomotive underwent an annual inspection required under 
49 CFR 229.27. Both paragraphs (a) and (b) proposed that, if, upon 
inspection, more than 20 percent of the amount of sheeting required on 
either side of the car or locomotive under Sec.  224.105 is found to be 
``damaged, obscured, or missing,'' that ``damaged, obscured, or 
missing'' sheeting must be replaced.
    A few commenters, including AAR, NAFCA, and RSI, noted that the 
term ``damaged'' was not defined in the proposed rule. These commenters 
indicated that FRA's intent in including the undefined term ``damaged'' 
as a maintenance standard in Sec.  224.109 was unclear and that the 
term itself only added confusion to the inspection requirement. 
Accordingly, these commenters recommended that the term ``damaged'' be 
deleted from the rule. FRA recognizes the concerns of these commenters 
regarding the undefined term. Nonetheless, FRA believes that the term 
``damaged'' is necessary to accurately describe a situation in which 
maintenance of retroreflective material would be required. Accordingly, 
as discussed in the analysis of Sec.  224.5 above, FRA has included a 
definition for the term ``damaged'' in this final rule.
    Commenters also noted that there may be circumstances in which 
retroreflective material is damaged or obscured, but the material can 
be repaired instead of replaced. FRA agrees with commenters on this 
point, and the agency has accordingly revised Sec.  224.109 to allow 
for the repair or replacement, as appropriate, of material requiring 
maintenance.
    Several commenters also expressed the view that although it is 
appropriate to require that retroreflective material be inspected at 
the SCABT, for the same reasons that it is not appropriate to require 
the installation of retroreflective material at the SCABT (detailed in 
the discussion of Sec.  224.107 above), it is also not appropriate to 
require that maintenance be performed on the retroreflective material 
at the SCABT. Accordingly, AAR recommended that car owners be afforded 
nine months after the SCABT in which to perform any necessary 
maintenance on retroreflective material. NAFCA, on the other hand, 
asserted that car owners should be allowed at least 12 months after the 
SCABT to correct any identified deficiencies in retroreflective 
material. In support of its recommendation, NAFCA noted that private 
car operators (shippers) typically obligate themselves to acquire and 
ship commodities as much as a year in advance. NAFCA also noted that 
unlike the typical railroads, private car operators seldom size excess 
capacity into their fleets. Notwithstanding NAFCA's comments, as 
explained in the discussion of Sec.  224.107 above, FRA believes that 
almost every freight car will be taken out of service at least once 
every nine months for either regularly scheduled maintenance or other 
necessary repairs. Allowing nine months after the SCABT to repair or 
replace any retroreflective material requiring maintenance under this 
rule allows car owners and railroads to apply the material while a car 
is out of service for these other reasons (and while the car is at an 
appropriate repair facility), therefore eliminating the need to take a 
car out of service for the particular purpose of repairing or replacing 
retroreflective material in need of maintenance. Accordingly, Sec.  
224.109 of this final rule retains the proposed rule's requirement that 
retroreflective sheeting on freight cars be visually inspected for 
presence and condition whenever a car undergoes a SCABT. FRA has 
revised this section to require the railroad or contractor performing 
the SCABT to inspect the car for presence and condition of the required 
retroreflective material. If the inspecting railroad or contractor 
determines that maintenance is necessary under this rule, the railroad 
or contractor is required to promptly notify the car owner of the 
missing, damaged, or obscured sheeting, and car owners are afforded 
nine months from the date they are notified of the defective condition 
of the material to properly repair or replace the material.
    A few commenters also asserted that the 20% maintenance threshold 
of proposed Sec.  224.109 was impractical and arbitrary. These 
commenters suggested that a 50% maintenance threshold would be more 
appropriate. For example, RSI commented that the 20 percent standard 
``is too hard to judge

[[Page 168]]

in a railroad environment'' and NAFCA commented that the 20 percent 
maintenance threshold ``may result in a greater degree of car 
reflectorization than is necessary to accomplish the purpose'' of the 
rule. Further, AAR, in its comments, noted that at the January 2004 
hearing, a representative of FRA stated that in order to account for 
the effects of dirt and damage, the proposed rule required twice the 
amount of material than research demonstrated was necessary to provide 
adequate reflectorization. (See Hearing Transcript, p. 124). FRA 
realizes, however, that the hearing officer inadvertently misstated the 
exact technical requirements of the rule in this regard. As noted in 
the discussion of Sec.  224.106 above and detailed in the NPRM (68 FR 
at 62956), FRA's proposed rule required only approximately 30% more 
material (about 1 additional square foot on each side of most 
typically-sized freight rolling stock). By requiring 30% more 
retroreflective material than necessary, if less than 20% of that 
material is damaged, obscured, or missing, the remaining reflective 
material could still provide sufficient reflectivity, even if further 
damage occurred before maintenance was performed on the material. If 
maintenance was not performed until 50% of the retroreflective material 
is damaged, obscured, or missing, it would be necessary to repair or 
replace the material immediately or else the reflective material would 
fail to meet even the minimum performance requirements of this rule. 
Accordingly, this final rule retains the proposed 20% maintenance 
threshold.

Section 224.111 Renewal

    As proposed in the NPRM, this section of the final rule requires 
that all retroreflective sheeting required under this part be replaced 
with new conforming sheeting, regardless of its condition, no later 
than ten years after the date of initial installation. As explained in 
the NPRM, this 10-year renewal period is based on most manufacturers' 
stated useful life of retroreflective material. As noted in the NPRM, 
however, FRA will monitor the retroreflective qualities of various 
fleet segments over time and may extend the ten-year interval, if 
warranted. One commenter, RSI, responded to the proposed renewal period 
by expressing the view that given the typical 50-year life of a freight 
car, it is not practical to require the replacement of the tape every 
ten years. Specifically, RSI asserted that ``[t]he cost of removing the 
old tape, preparing the surface, and replacing the tape was not 
included in FRA's cost analysis. * * * Different cars may require 
different technologies to remove the tape adding to the costs 
associated with the NPRM.'' As proposed and as noted in Sec.  224.107 
of this final rule, it is not necessary to remove old reflective 
material when applying new retroreflective material pursuant to this 
part, thus the costs for the re-application of material after the 
initial ten-year implementation of this rule will be no greater than 
the original application.
    AAR, however, noted one ambiguity in Sec.  224.111 as proposed. 
Specifically, AAR noted that proposed Sec.  224.107(a)(3) provided that 
a car with complying retroreflective sheeting would be considered in 
compliance with this rule for ten years and similarly, proposed Sec.  
224.107(b)(3) provided that locomotives already equipped with 
reflectorization material meeting FRA's grandfathering requirements 
would be considered in compliance with this rule for five years. AAR 
noted, however, that because proposed Sec.  224.111 provided that 
retroreflective sheeting must be replaced ten years after the date of 
initial installation, the section could be read as taking precedence 
over proposed Sec. Sec.  224.107(a)(3) and (b)(3), thereby requiring 
the application of retroreflective material to freight rolling stock 
already equipped with reflective sheeting as of the effective date of 
the final rule prior to the expiration of a ten-year period. FRA agrees 
with AAR's concern in this regard and because FRA does not intend that 
Sec.  224.111 take precedence over Sec. Sec.  224.107(a)(3) and (b)(3), 
FRA has revised Sec.  224.111 to make clear that the effective date of 
the final rule will be considered the initial date of installation for 
freight cars and locomotives covered by Sec. Sec.  224.107(a)(3) and 
(b)(3).

Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The FRA has conducted a Regulatory Analysis of this final rule in 
accordance with Executive Order 12866. This document estimates the 
costs and consequences of the rule as well as its anticipated economic 
and safety benefits. A copy of this document has been placed in the 
docket for this rulemaking. Following is a summary of the findings.
    The FRA's analysis examines the potential for reflective material 
to cost-effectively reduce fatalities and injuries due to motorists not 
seeing trains. Over the past ten years, an average of 23 percent of 
reported grade crossing accidents involved a motor vehicle striking the 
side of a train that was occupying the crossing (known as ``run-into-
train'' or RIT accidents).
    There are currently no requirements for lighting or for reflective 
markings on the sides of freight cars. Research, however, has 
established that reflectors on the sides of rail cars can make trains 
more visible to motorists. Reflective tape increases the conspicuity of 
freight cars so motorists can identify them and better judge their 
speed and distance. This greater visibility will help drivers avoid 
some accidents and reduce the severity of other accidents that are 
unavoidable.
    The primary source of societal benefits from freight car 
reflectorization would result from the avoidance of a portion of the 
fatalities, injuries, and property damage that result from RIT 
accidents. Benefits were calculated in terms of the decline in the 
probability of certain accidents. These calculations were based on 
1999-2002 RIT accidents as reported in the FRA's Rail Accident/Incident 
Reporting System (``RAIRS'') database. The FRA specifically used recent 
data to account for changes in crossing characteristics, including the 
upgrading of crossing warning devices. The following table shows the 
number of accidents, fatalities, and injuries resulting from the 
applicable RIT accidents:

                      Reflectorization Benefit Pool
                          [RIT accident subset]
------------------------------------------------------------------------
                                                                Annual
                                                 1999-2002     Average
------------------------------------------------------------------------
Accidents.....................................          782        195.5
Fatalities:...................................           85        21.25
Injuries......................................          348           87
------------------------------------------------------------------------

    The table below presents the estimated twenty-year monetary costs 
associated with complying with the requirements contained in this final 
rule, at a discount rate of 7%. In addition to the costs associated 
with reflectorizing the fleet of freight railcars, the FRA has included 
the costs associated with reflectorizing the approximately 20% of the 
locomotive fleet that has not already been treated with reflective 
materials.

                    Total Twenty-Year Costs (NPV, 7%)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Installation on new or repainted railcars...............     $52,862,702
Maintenance on preexisting reflectorized railcars.......       1,995,895
Maintenance on newly reflectorized cars.................       3,539,885
Reapplication on older cars.............................      14,762,187

[[Page 169]]

 
Installation and maintenance on locomotive fleet........       1,375,161
                                                         ---------------
    Total Costs.........................................      74,535,830
------------------------------------------------------------------------

    Taking into consideration the material, installation, and 
maintenance costs, FRA's analysis determines that over a 20-year 
period, the discounted cost to reflectorize the entire freight railroad 
fleet would be about $74.5 million.
    The FRA recognizes that the effectiveness of retroreflectors and, 
therefore, the benefits to be gained from their use, will vary by 
circumstances (e.g. nighttime versus daytime conditions, clear versus 
cloudy weather, presence of other warning devices at the crossings, 
train speed and length, etc.). Thus, the forecasting of the benefits 
that would likely result from reflectorization requires the exercise of 
judgment and necessarily includes subjective elements. Accordingly, the 
FRA employed three completely separate approaches to the estimation of 
benefits. Benefit estimates were based on varying effectiveness rates 
derived from (1) Subjective estimates of reflector effectiveness by 
internal FRA grade crossing experts, (2) a signal detection model 
consisting of an analysis of the statistical probability of different 
potential severities of hazard or injury and based on both laboratory 
experiments and data from FRA's RAIRS database, and (3) previous 
studies analyzing the effectiveness of reflective materials on large 
trucks. The FRA estimates the twenty-year discounted benefits of a 
railcar reflectorization program (discounted at a rate of 7%), in terms 
of avoided casualties and property damage, to be in the range of $202 
million, $151 million, or $220 million, depending on the method 
employed. In addition, the twenty-year discounted benefits of 
reflectorizing the 20% of the locomotive fleet that is not already 
reflectorized is approximately $837,749.53.

          Total Twenty-Year Safety Benefits Monetized (NPV, 7%)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Grade Crossing Expert Benefits..........................    $202,072,296
Signal Detection Theory.................................     151,422,826
NHTSA Study.............................................     223,137,643
------------------------------------------------------------------------

    Accordingly, the FRA concludes that the reflectorization of 
railroad freight equipment is a cost-effective way to reduce the number 
of accidents at highway-rail grade crossings as well as the resultant 
casualties and property damages.

B. Regulatory Flexibility Act of 1980 and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
a review of final rules to assess their impact on small entities unless 
the Secretary certifies that a final rule will not have a significant 
economic impact on a substantial number of small entities. FRA has 
conducted a regulatory flexibility analysis of this final rule's impact 
on small entities, and the assessment has been placed in the public 
docket for this proceeding. FRA's analysis concluded that this final 
rule would not have a significant economic impact on a substantial 
number of small entities, and accordingly, FRA certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

C. Paperwork Reduction Act of 1995

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                           Total        Total
                                    Respondent        Total annual    Average time per     annual       annual
          CFR section                universe          responses           response        burden    burden cost
                                                                                           hours         ($)
----------------------------------------------------------------------------------------------------------------
224.7--Waivers................  685 Railroads/Car  10 petitions.....  1 hour..........           20          740
                                 Owners.
224.15--Special Approval        3 Manufacturers..  10 petitions.....  40 hours........          400       20,560
 Procedures--Petitions.
    --Public Comment..........  3 Manufacturers/   5 comments.......  1 hour..........            5          185
                                 Railroads.
224.107--Implementation
 Schedule: Freight Cars.
    --Existing Freight Cars w/  685 Railroads/Car  400 Reports/Forms  15 minutes......          100        3,700
     o Retroreflective           Owners.
     Sheeting.
    --Updated Reflectorization  685 Railroads/Car  400 Reports/Forms  20 hours........        8,000      296,000
     Compliance Reports.         Owners.
    --Failure Reports.........  685 Railroads/Car  5 Failure Reports  2 hours.........           10          370
                                 Owners.
    --Existing Cars with        685 Railroads/Car  172 Reports/Forms  20 hours........        3,440      127,280
     Retroreflective Sheeting.   Owners.
Implementation Schedule:
 Locomotives
    --Existing Locomotives w/o  685 Railroads/Car  35 Reports/Forms.  15 minutes......            9          333
     Retroreflective Sheeting.   Owners.
    --Updated Reflectorization  685 Railroads/Car  35 Reports/Forms.  3 hours.........          105        3,885
     Compliance Reports.         Owners.
    --Failure Reports.........  685 Railroads/Car  1 Failure Report.  2 hours.........            2           74
                                 Owners.
    --Existing Locomotives      685 Railroads/Car  617 Reports/Forms  4 hours.........        2,468       91,316
     with Retroreflective        Owners.
     Sheeting.
224.109--Inspection, Repair,    AAR + 300 Car      240,000            10 minutes......       40,000    1,560,000
 Replacement--Freight Cars.      Shops.             Notifications.
    --Locomotives: Records of   22,800             4,560 records....  3 minutes.......          228       10,488
     Restriction.                Locomotives.
----------------------------------------------------------------------------------------------------------------

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

[[Page 170]]

publication of this document in the Federal Register.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    Executive Order 13132, entitled ``Federalism,'' issued on August 4, 
1999, requires that each agency ``in a separately identified portion of 
the preamble to the regulation as it is to be issued in the Federal 
Register, provide to the Director of the Office of Management and 
Budget a federalism summary impact statement, which consists of a 
description of the extent of the agency's prior consultation with State 
and local officials, a summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation, and a 
statement of the extent to which the concerns of State and local 
officials have been met.'' FRA believes it is in compliance with 
Executive Order 13132. This final rule will not have a substantial 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. This final 
rule will not have federalism implications that impose substantial 
direct compliance costs on State and local governments.
    In addition, FRA notes that the public docket in this proceeding 
has been open for over four years. Virtually all comments received from 
State and local governments support a federal reflectorization 
requirement.
    Under 49 U.S.C. 20106, issuance of this regulation preempts any 
State law, rule, regulation, order, or standard covering the same 
subject matter, except a provision to eliminate or reduce an 
essentially local safety hazard, that is not incompatible with Federal 
law or regulation and does not unreasonably burden interstate commerce. 
(See discussion in the section-by-section analysis of Sec.  224.13).

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c) of FRA's Procedures. 64 
FR 28547, May 26, 1999. Section 4(c) of FRA's Procedures identifies 
twenty classes of FRA actions that are categorically excluded from the 
requirements for conducting a detailed environmental review. FRA 
further considered this final rule in accordance with section 4(c) and 
(e) of FRA's Procedures to determine if extraordinary circumstances 
exist with respect to this final rule that might trigger the need for a 
more detailed environmental review. After conducting this review, FRA 
has determined that extraordinary circumstances do not exist that might 
trigger the need for a more detailed environmental review. As a result, 
FRA finds that this regulation is not a major Federal action 
significantly affecting the quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $120,700,000 or more (as 
adjusted for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
This proposed rule will not result in the expenditure, in the 
aggregate, of $120,700,000 or more in any one year, and thus 
preparation of such a statement is not required.

G. Energy Impact

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

H. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 224

    Incorporation by reference, Penalties, Railroad locomotive safety, 
Railroad safety, and Reporting and recordkeeping requirements.

The Rule

0
In consideration of the foregoing, FRA amends chapter II, subtitle B, 
of title 49, Code of Federal Regulations to add part 224 as follows:

PART 224--REFLECTORIZATION OF RAIL FREIGHT ROLLING STOCK

Subpart A--General
Sec.
224.1 Purpose and scope.
222.3 Applicability.
224.5 Definitions.
224.7 Waivers.

[[Page 171]]

224.9 Responsibility for compliance.
224.11 Penalties.
224.13 Preemptive effect.
224.15 Special approval procedures.
Subpart B--Application, Inspection, and Maintenance of Retroreflective 
Material
224.101 General requirements.
224.103 Characteristics of retroreflective sheeting.
224.105 Sheeting dimensions and quantity.
224.106 Location of retroreflective sheeting.
224.107 Implementation schedule.
224.109 Inspection, repair, and replacement.
224.111 Renewal.
Appendix A to Part 224--Schedule of Civil Penalties.
Appendix B to Part 224--Reflectorization Implementation Compliance 
Report.

    Authority: 49 U.S.C. 20103, 20107, 20148 and 21301; 28 U.S.C. 
2461; and 49 CFR 1.49.

Subpart A--General


Sec.  224.1  Purpose and scope.

    (a) The purpose of this part is to reduce highway-rail grade 
crossing accidents and deaths, injuries, and property damage resulting 
from those accidents, by enhancing the conspicuity of rail freight 
rolling stock so as to increase its detectability by motor vehicle 
operators at night and under conditions of poor visibility.
    (b) In order to achieve cost-effective mitigation of collision risk 
at highway-rail grade crossings, this part establishes the duties of 
freight rolling stock owners (including those who manage maintenance of 
freight rolling stock, supply freight rolling stock for transportation, 
or offer freight rolling stock in transportation) and railroads to 
progressively apply retroreflective material to freight rolling stock, 
and to periodically inspect and maintain that material. Freight rolling 
stock owners, however, are under no duty to install, clean or otherwise 
maintain, or repair reflective material except as specified in this 
part.
    (c) This part establishes a schedule for the application of 
retroreflective material to rail freight rolling stock and prescribes 
standards for the application, inspection, and maintenance of 
retroreflective material to rail freight rolling stock for the purpose 
of enhancing its detectability at highway-rail grade crossings. This 
part does not restrict a freight rolling stock owner or railroad from 
applying retroreflective material to freight rolling stock for other 
purposes if not inconsistent with the recognizable pattern required by 
this part.


Sec.  224.3  Applicability.

    This part applies to all railroad freight cars and locomotives that 
operate over a public or private highway-rail grade crossing and are 
used for revenue or work train service, except:
    (a) Freight rolling stock that operates only on track inside an 
installation that is not part of the general railroad system of 
transportation;
    (b) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation; or
    (c) Locomotives and passenger cars used exclusively in passenger 
service.


Sec.  224.5  Definitions.

    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Associate Administrator means the Associate Administrator for 
Safety, Federal Railroad Administration, or the Associate 
Administrator's delegate.
    Damaged means scratched, broken, chipped, peeled, or delaminated.
    Flat car means a car having a flat floor or deck on the underframe 
with no sides, ends or roof (including spine cars, articulated and 
mult-unit intermodal cars).
    Freight rolling stock means:
    (1) Any locomotive subject to part 229 of this chapter used to haul 
or switch freight cars (whether in revenue or work train service); and
    (2) Any railroad freight car subject to part 215 of this chapter 
(including a car stenciled MW pursuant to Sec.  215.305).
    Freight rolling stock owner means any person who owns freight 
rolling stock, is a lessee of freight rolling stock, manages the 
maintenance or use of freight rolling stock on behalf of an owner or 
one or more lessors or lessees, or otherwise controls the maintenance 
or use of freight rolling stock.
    Locomotive has the meaning assigned by Sec.  229.5 of this chapter, 
but for purposes of this part applies only to a locomotive used in the 
transportation of freight or the operation of a work train.
    Obscured means concealed or hidden (i.e., covered up, as where a 
layer of paint or dense chemical residue blocks all incoming light); 
this term does not refer to ordinary accumulations of dirt, grime, or 
ice resulting from the normal railroad operating environment.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: A railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such an owner, manufacturer, lessor, 
lessee, or independent contractor.
    Railroad means all forms of non-highway ground transportation that 
run on rails or electromagnetic guideways, including high speed ground 
transportation systems that connect metropolitan areas, without regard 
to whether they use new technologies not associated with traditional 
railroads.
    Railroad freight car has the meaning assigned by Sec.  215.5 of 
this chapter.
    Tank car means a rail car, the body of which consists of a tank for 
transporting liquids.
    Unqualified retroreflective sheeting means engineering grade 
sheeting, super engineering grade sheeting (enclosed lens) or high-
intensity type sheeting (ASTM Type I, II, III, or IV Sheeting) as 
described in ASTM International Standard D-4956-01a, ``Standard 
Specification for Retroreflective Sheeting for Traffic Control.''
    Work train means a non-revenue service train used for the 
maintenance and upkeep service of the railroad.


Sec.  224.7  Waivers.

    (a) Any person subject to a requirement of this part may petition 
the Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver under this section shall be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions that the 
Administrator deems necessary.


Sec.  224.9  Responsibility for compliance.

    (a) Freight rolling stock owners, railroads, and (with respect to 
certification of material) manufacturers of retroreflective material, 
are primarily responsible for compliance with this part. However, any 
person that performs any function or task required by this part 
(including any employee, agent, or contractor of the aforementioned), 
must perform that function in accordance with this part.
    (b) Any person performing any function or task required by this 
part shall be deemed to have consented to FRA inspection of the 
person's facilities and records to the extent necessary to determine 
whether the function or task is being performed in accordance with the 
requirements of this part.


Sec.  224.11  Penalties.

    (a) Any person (including but not limited to a railroad; any 
manager,

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supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; and any employee of such owner, manufacturer, lessor, 
lessee, or independent contractor) who violates any requirement of this 
part or causes the violation of any such requirement is subject to a 
civil penalty of at least $550, but not more than $11,000 per 
violation, except that: Penalties may be assessed against individuals 
only for willful violations, and, where a grossly negligent violation 
or a pattern of repeated violations has created an imminent hazard of 
death or injury to persons, or has caused death or injury, a penalty 
not to exceed $27,000 per violation may be assessed. Each day a 
violation continues shall constitute a separate offense. Appendix A to 
this part contains a schedule of civil penalty amounts used in 
connection with this part.
    (b) Any person who knowingly and willfully falsifies a record or 
report required by this part is subject to criminal penalties under 49 
U.S.C. 21311.


Sec.  224.13  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of this part preempts any State 
law, rule, regulation, or order covering the same subject matter, 
except an additional or more stringent law, rule, regulation, or order 
that is necessary to eliminate or reduce an essentially local safety 
hazard; that is not incompatible with a law, rule, regulation, or order 
of the United States Government; and that does not unreasonably burden 
interstate commerce.


Sec.  224.15  Special approval procedures.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of alternative standards 
under Sec.  224.103(e).
    (b) Petitions. (1) Each petition for special approval of an 
alternative standard shall contain--
    (i) The name, title, address, and telephone number of the primary 
person to be contacted with regard to the petition;
    (ii) The alternative proposed, in detail, to be substituted for the 
particular requirements of this part; and
    (iii) Appropriate data and analysis establishing that the 
alternative will provide at least an equivalent level of safety and 
meet the requirements of Sec.  224.103(e).
    (2) Three copies of each petition for special approval of an 
alternative standard shall be submitted to the Docket Clerk, Office of 
Chief Counsel, Federal Railroad Administration, RCC-10, Mail Stop 10, 
1120 Vermont Ave., NW., Washington, DC 20590.
    (c) Notice. FRA will publish a notice in the Federal Register 
concerning each petition under paragraph (b) of this section.
    (d) Public comment. FRA will provide a period of not less than 30 
days from the date of publication of the notice in the Federal Register 
during which any person may comment on the petition.
    (1) Each comment shall set forth specifically the basis upon which 
it is made, and contain a concise statement of the interest of the 
commenter in the proceeding.
    (2) Each comment shall be submitted to the DOT Central Docket 
Management System, Nassif Building, Room Pl-401, 400 Seventh Street, 
SW., Washington, DC 20590, and shall contain the assigned docket number 
which appears in the Federal Register for that proceeding. Such 
submission may be in written or electronic form consistent with the 
standards and requirements established by the Central Docket Management 
System and posted on its Web site at http://dms.dot.gov.
    (3) In the event FRA determines that it requires additional 
information to appropriately consider the petition, FRA will conduct a 
hearing on the petition in accordance with the procedures provided in 
Sec.  211.25 of this chapter.
    (e) Disposition of petitions. (1) If FRA finds that the petition 
complies with the requirements of this section and that the proposed 
alternative standard is acceptable or changes are justified, or both, 
the petition will be granted, normally within 90 days of its receipt. 
The Associate Administrator may determine the applicability of other 
technical requirements of this part when rendering a decision on the 
petition. If the petition is neither granted nor denied within 90 days, 
the petition remains pending for decision. FRA may attach special 
conditions to the approval of the petition. Following the approval of a 
petition, FRA may reopen consideration of the petition for cause 
stated.
    (2) If FRA finds that the petition does not comply with the 
requirements of this section, or that the proposed alternative standard 
is not acceptable or that the proposed changes are not justified, or 
both, the petition will be denied, normally within 90 days of its 
receipt.
    (3) When FRA grants or denies a petition, or reopens consideration 
of a petition, written notice is sent to the petitioner and other 
interested parties and a copy of the notice is placed in the electronic 
docket of the proceeding.

Subpart B--Application, Inspection, and Maintenance of 
Retroreflective Material


Sec.  224.101  General requirements.

    All rail freight rolling stock subject to this part shall be 
equipped with retroreflective sheeting that conforms to the 
requirements of this part. Notwithstanding any other provision of this 
chapter, the application, inspection, and maintenance of that sheeting 
shall be conducted in accordance with this subpart or in accordance 
with an alternative standard providing at least an equivalent level of 
safety after special approval of FRA under Sec.  224.15.


Sec.  224.103  Characteristics of retroreflective sheeting.

    (a) Construction. Retroreflective sheeting applied pursuant to this 
part shall consist of a smooth, flat, transparent exterior film with 
microprismatic retroreflective elements embedded in or suspended 
beneath the film so as to form a non-exposed retroreflective optical 
system.
    (b) Color. Retroreflective sheeting applied pursuant to this part 
shall be yellow or white as specified by the chromaticity coordinates 
of ASTM International's Standard D 4956-01a, ``Standard Specification 
for Retroreflective Sheeting for Traffic Control.'' The Director of the 
Federal Register approves the incorporation by reference of this 
standard in this section in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. You may obtain a copy of the incorporated standard from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959. You may inspect a copy of the incorporated standard at 
the Federal Railroad Administration, Docket Clerk, 1120 Vermont Ave., 
NW., Suite 7000, or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_ regulations/ibr-- locations.html.
    (c) Performance. Retroreflective sheeting applied pursuant to this 
part shall meet the requirements of ASTM D 4956-01a, for Type V 
Sheeting, except for the photometric requirements, and shall, as 
initially applied, meet the minimum photometric performance 
requirements specified in Table 1 of this subpart.

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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[deg].........................................             400             600             100             160
30[deg].........................................             220             350              45              75
----------------------------------------------------------------------------------------------------------------

    (d) Certification. The characters ``FRA-224'', constituting the 
manufacturer's certification that the retroreflective sheeting conforms 
to the requirements of paragraphs (a) through (c) of this section, 
shall appear at least once on the exposed surface of each piece of 
sheeting in the final application. The characters shall be a minimum of 
three millimeters high, and shall be permanently stamped, etched, 
molded, or printed within the product and each certification shall be 
spaced no more than four inches apart.
    (e) Alternative standards. Upon petition by a freight rolling stock 
owner or railroad under Sec.  224.15, the Associate Administrator may 
approve an alternative technology as providing equivalent safety. Any 
such petition shall provide data and analysis sufficient to establish 
that the technology will result in conspicuity and durability at least 
equal to sheeting described in paragraphs (a) through (c) of this 
section applied in accordance with this part and will present a 
recognizable visual target that is suitably consistent with freight 
rolling stock equipped with retroreflective sheeting that meets the 
technical requirements of this part to provide the intended warning to 
motorists.


Sec.  224.105  Sheeting dimensions and quantity.

    Retroreflective sheeting shall be applied along the length of each 
railroad freight car and locomotive side as described in Sec.  224.106. 
Retroreflective sheeting applied under this part shall be applied in 
strips 4 inches wide and 18 or 36 inches long, unless otherwise 
specified. The amount of retroreflective sheeting to be applied to each 
car or locomotive subject to this part is dependent on the length of 
the car or locomotive and the color of the sheeting. For purposes of 
this part, the length of a railroad freight car or locomotive is 
measured from endsill to endsill, exclusive of the coupler and draft 
gear. Each side of a railroad freight car subject to this part, 
including each unit of multi-unit cars, and each side of a locomotive 
subject to this part must be equipped with at least the minimum amount 
of retroreflective sheeting specified in Table 2 of this subpart.

 Table 2 of Subpart B.--Minimum Quantity Requirement for Retroreflective
                    Sheeting on Freight Rolling Stock
------------------------------------------------------------------------
                                  Minimum area of      Minimum area of
                                  retroreflective      retroreflective
   Freight car or locomotive     sheeting required    sheeting required
            length              (per car/locomotive  (per car/locomotive
                                   side)--yellow         side)--white
                                  sheeting (ft\2\)     sheeting (ft\2\)
------------------------------------------------------------------------
Less than 50 ft...............                  3.5                  4
50 ft. to 60 ft...............                  4                    5
Over 60 ft. to 70 ft..........                  4.5                  5.5
Over 70 ft. to 80 ft..........                  5                    6
Over 80 ft. to 90 ft..........                  5.5                  7
Over 90 ft. to 100 ft\1\......                  6                    7.5
------------------------------------------------------------------------
\1\ Freight cars or locomotives over 100 ft. in length must be equipped
  with an additional one-half square foot of sheeting on each side for
  every additional 10 feet of length.

Sec.  224.106  Location of retroreflective sheeting.

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

[[Page 174]]

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

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

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

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

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BILLING CODE 4910-06-C

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    (4) Cars of special construction. This paragraph applies to any car 
the design of which is not compatible with the patterns of application 
otherwise provided in this section. Retroreflective sheeting shall 
conform as closely as practicable to the requirements of paragraphs 
(a)(1) through (a)(3) of this section and shall have the minimum amount 
of sheeting described in Sec.  224.105 distributed along the length of 
each car side.
    (b) Locomotives: Locomotives subject to this part shall be equipped 
with at least the minimum amounts of retroreflective sheeting required 
by Sec.  224.105 spaced as uniformly as practicable along the length of 
the locomotive sides as close as practicable to 42 inches from the top 
of the rail.


Sec.  224.107  Implementation schedule.

    (a) Railroad freight cars. All railroad freight cars subject to 
this part must be equipped with retroreflective sheeting conforming to 
this part by May 31, 2015. If a car already has reflective material 
applied that does not meet the standards of this part, it is not 
necessary to remove the material unless its placement interferes with 
the placement of the sheeting required by this part.
    (1) New cars. Retroreflective sheeting conforming to this part must 
be applied to all cars constructed after May 31, 2005, before the cars 
are placed in service.
    (2) Existing cars without retroreflective sheeting.
    (i) If, as of January 3, 2005, a car subject to this part is not 
equipped on each side with at least one square foot of retroreflective 
sheeting as specified in paragraph (a)(3) of this section, 
retroreflective sheeting conforming to this part must be applied to the 
car at the earliest of the following two occasions occurring after May 
31, 2005 or in accordance with paragraph (a)(2)(ii) of this section:
    (A) When the car is repainted or rebuilt; or
    (B) Within nine months (270 calendar days) after the car first 
undergoes a single car air brake test as prescribed by Sec.  232.305 of 
this chapter.
    (ii) A freight rolling stock owner may elect not to follow the 
schedule in paragraph (a)(2)(i) of this section if, not later than July 
1, 2005, the freight rolling stock owner submits to FRA a completed 
Reflectorization Implementation Compliance Report certifying that the 
cars in the owner's fleet subject to this part will be equipped with 
retroreflective sheeting as required by this part in accordance with 
the schedule specified in Table 3 of this subpart. See Appendix B of 
this part for Reflectorization Implementation Compliance Report form.

     Table 3 of Subpart B.--Alternative Schedule for Application of
 Retroreflective Material to Freight Cars per Sec.   224.107(a)(2)(ii).
------------------------------------------------------------------------
                                                                 (B)
                          (A) \1\                             (percent)
------------------------------------------------------------------------
May 31, 2007...............................................           20
May 31, 2008...............................................           30
May 31, 2009...............................................           40
May 31, 2010...............................................           50
May 31, 2011...............................................           60
May 31, 2012...............................................           70
May 31, 2013...............................................           80
May 31, 2014...............................................           90
May 31, 2015...............................................          100
------------------------------------------------------------------------
\1\ Column (A) indicates the date by which the minimum percentage of an
  owner's freight cars specified in column (B) must be equipped with
  retroreflective sheeting conforming to this part.

    (A) Thereafter, the designated fleet shall be equipped with 
retroreflective sheeting according to the schedule specified in Table 3 
of this subpart;
    (B) No later than July 1, 2007, the freight rolling stock owner 
shall submit to FRA an updated Reflectorization Implementation 
Compliance Report showing which cars of the fleet subject to this part 
were equipped with retroreflective sheeting as required by this part 
during the initial 24-month implementation period. Thereafter, updated 
Reflectorization Implementation Compliance Reports shall be submitted 
annually, no later than July 1 of each year, for the duration of the 
10-year implementation period. See Appendix B of this part.
    (C) If, following the conclusion of the initial 24-month period or 
any 12-month period thereafter, the percentage requirements of this 
section have not been met--
    (1) The freight rolling stock owner shall be considered in 
violation of this part;
    (2) The freight rolling stock owner shall, within 60 days after the 
close of the period, report the failure in writing to the Associate 
Administrator;
    (3) The requirements of paragraph (a)(2)(i) of this section shall 
apply to all railroad freight cars subject to this part in the freight 
rolling stock owner's fleet; and
    (4) The fleet owner shall take such additional action as may be 
necessary to achieve future compliance.
    (D) Cars to be retired shall be included in the fleet total until 
they are retired.
    (3) Existing cars with retroreflective sheeting. If as of January 
3, 2005, a car is equipped on each side with at least one square foot 
of retroreflective sheeting, uniformly distributed over the length of 
each side, that car shall be considered in compliance with this part 
through May 31, 2015, provided the sheeting is not unqualified 
retroreflective sheeting, and provided the freight rolling stock owner 
files a completed Reflectorization Implementation Compliance Report 
with FRA no later than July 1, 2005, identifying the cars already so 
equipped. See Appendix B of this part for Reflectorization 
Implementation Compliance Report form.
    (b) Locomotives. Except as provided in paragraph (b)(4) of this 
section, all locomotives subject to this part must be equipped with 
conforming retroreflective sheeting by May 31, 2010. If a locomotive 
already has reflective material applied that does not meet the 
standards of this part, it is not necessary to remove the material 
unless its placement interferes with the placement of the sheeting 
required by this part.
    (1) New locomotives. Retroreflective sheeting conforming to this 
part must be applied to all locomotives constructed after May 31, 2005, 
before the locomotives are placed in service.
    (2) Existing locomotives without retroreflective sheeting. (i) If 
as of January 3, 2005 a locomotive subject to this part is not equipped 
with the minimum amount of retroreflective sheeting specified in 
paragraph (b)(3) of this section, retroreflective sheeting conforming 
to this part must be applied to the locomotive not later than the first 
biennial inspection performed pursuant to Sec.  229.29 of this chapter 
occurring after May 31, 2005.
    (ii) A freight rolling stock owner may elect not to follow the 
schedule in paragraph (b)(2)(i) of this section, if not later than July 
1, 2005, the freight rolling stock owner submits to FRA a 
Reflectorization Implementation Compliance Report certifying that the 
locomotives in the owner's fleet subject to this part will be equipped 
with retroreflective sheeting as required by this part in accordance 
with the schedule specified in Table 4 of this subpart. See Appendix B 
of this part.

     Table 4 of Subpart B.--Alternative Schedule for Application of
  Retroreflective Material to Locomotives per Sec.   224.107(b)(2)(ii).
------------------------------------------------------------------------
                                                                 (B)
                          (A) \1\                             (percent)
------------------------------------------------------------------------
May 31, 2007...............................................           40
May 31, 2008...............................................           60

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May 31, 2009...............................................           80
May 31, 2010...............................................          100
------------------------------------------------------------------------
\1\ Column (A) indicates the date by which the minimum percentage of an
  owner's locomotives specified in column (B) must be equipped with
  retroreflective sheeting conforming to this part.

    (A) Thereafter, the designated locomotive fleet shall be equipped 
with retroreflective sheeting according to the requirements of this 
paragraph (b)(2)(ii);
    (B) No later than July 1, 2007, the freight rolling stock owner 
shall submit to FRA an updated Reflectorization Implementation 
Compliance Report showing which locomotives of the fleet subject to 
this part were equipped with retroreflective sheeting as required by 
this part during the initial 24 month implementation period. 
Thereafter, updated Reflectorization Implementation Compliance Reports 
shall be submitted annually, no later than July 1 of each year, for the 
duration of the 5-year implementation period. See Appendix B of this 
part.
    (C) If, following the conclusion of the initial 24-month period or 
any 12-month period thereafter, the percentage requirements of this 
section have not been met--
    (1) The freight rolling stock owner shall be considered in 
violation of this part;
    (2) The freight rolling stock owner shall, within 60 days after the 
close of the period, report the failure in writing to the Associate 
Administrator;
    (3) The requirements of paragraph (b)(2)(i) of this section shall 
apply to all locomotives subject to this part in the freight rolling 
stock owner's fleet; and
    (4) The fleet owner shall take such additional action as may be 
necessary to achieve future compliance.
    (D) Locomotives to be retired shall be included in the fleet total 
until they are retired.
    (3) Existing locomotives with retroreflective sheeting. If as of 
January 3, 2005, a locomotive is equipped on each side with at least 
one square foot of retroreflective sheeting, that locomotive shall be 
considered in compliance with this part through May 31, 2015, provided 
the existing material is not unqualified retroreflective sheeting, and 
provided the freight rolling stock owner files a Reflectorization 
Implementation Compliance Report with FRA no later than July 1, 2005, 
identifying the locomotives already so equipped. See Appendix B of this 
part. If, as of January 3, 2005, a locomotive is equipped with 
unqualified retroreflective sheeting, the locomotive will be considered 
in compliance with this part through May 31, 2015, provided the 
locomotive is equipped with a minimum of 3 square feet of 
retroreflective material on each side and provided the freight rolling 
stock owner files a Reflectorization Implementation Compliance Report 
with FRA no later than July 1, 2005, identifying the locomotives 
already so equipped. See Appendix B of this part.
    (4) Each railroad that has fewer than 400,000 annual employee work 
hours, and does not share locomotive power with another railroad with 
400,000 or more annual employee work hours, may bring its locomotive 
fleet into compliance according to the following schedule: fifty 
percent of the railroad's locomotives must be retrofitted pursuant to 
Sec.  224.106(b) within five years of the effective date of this part 
and one hundred percent must be retrofitted pursuant to Sec.  
224.106(b) within 10 years of the effective date of this part. If a 
railroad with fewer than 400,000 annual employee work hours shares 
locomotive power with a railroad with 400,000 or more annual employee 
work hours, the smaller railroad must comply with the requirements of 
paragraphs (b)(2) and (3) of this section.


Sec.  224.109  Inspection, repair, and replacement.

    (a) Railroad freight cars. Retroreflective sheeting on railroad 
freight cars subject to this part must be visually inspected for 
presence and condition whenever a car undergoes a single car air brake 
test required under Sec.  232.305 of this chapter. If at the time of 
inspection more than 20 percent of the amount of sheeting required 
under Sec.  224.105 on either side of a car is damaged, obscured, or 
missing, the inspecting railroad or contractor shall promptly notify 
the car owner of the damaged, obscured, or missing sheeting. The 
inspecting railroad or contractor shall retain a written or electronic 
copy of each such notification made for at least two years from the 
date of the notice and shall make these records available for 
inspection and copying by the FRA upon request. Any car owner notified 
of a defect under this section shall have nine months (270 calendar 
days) from the date of notification to repair or replace the damaged, 
obscured, or missing sheeting.
    (b) Locomotives. Retroreflective sheeting must be visually 
inspected for presence and condition when the locomotive receives the 
annual inspection required under Sec.  229.27 of this chapter. If at 
the time of inspection more than 20 percent of the amount of sheeting 
required under Sec.  224.105 on either side of a locomotive is damaged, 
obscured, or missing, that damaged, obscured, or missing sheeting must 
be repaired or replaced. If conditions at the time of inspection are 
such that adequate repairs cannot be made, replacement material can not 
be applied, or if sufficient replacement material is not available, 
such application may be completed at the next forward location where 
conditions permit, provided a record of the defect is maintained in the 
locomotive cab or in a secure and accessible electronic database to 
which FRA is provided access on request.


Sec.  224.111  Renewal.

    Regardless of condition, retroreflective sheeting required under 
this part must be replaced with new sheeting no later than ten years 
after the date of initial installation. For purposes of this section, 
May 31, 2005 shall be considered the initial date of installation for 
freight cars and locomotives covered by Sec.  224.107(a)(3) or 
224.107(b)(3).

Appendix A to Part 224--Schedule of Civil Penalties \1\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

Subpart B--Application, Inspection, and Maintenance of 
Retroreflective Material

[[Page 188]]



 
------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
                                                    ($)          ($)
------------------------------------------------------------------------
Sec.   224.103 Characteristics of               ...........  ...........
 retroreflective sheeting:
(a)-(d) Retroreflective sheeting applied does         2,500        5,000
 not meet the requirements of Sec.   224.103..
Sec.   224.105 Sheeting dimensions and          ...........  ...........
 quantity:
Failure to apply minimum amount of                    2,500        5,000
 retroreflective sheeting in accordance with
 Table 2......................................
Applying retroreflective sheeting of wrong            2,500        5,000
 dimensions...................................
Sec.   224.106 Location of retroreflective      ...........  ...........
 sheeting:
(a), (b) Applying retroreflective sheeting in         2,000        4,000
 nonconforming pattern........................
Sec.   224.107 Implementation schedule:         ...........  ...........
(a)(1), (b)(1) Failure to apply                       5,000        7,500
 retroreflective sheeting to new freight car
 or locomotive before equipment placed in
 service......................................
(a)(2), (b)(2), (b)(4) Failure to apply               5,000        7,500
 retroreflective sheeting to existing freight
 car or locomotive in accordance with minumum
 schedule of paragraphs (a)(2), (b)(2), or
 (b)(4).......................................
Sec.   224.109 Inspection, repair, and
 replacement:
(a) Failure to perform inspection.............        5,000        7,500
Failure to properly notify car owner of defect        2,500        5,000
Failure to retain written notification of             1,500        2,500
 defect for two years.........................
Failure to repair defect after notification...        5,000        7,500
(b) Failure to perform inspection.............        5,000        7,500
Failure to repair defect......................        5,000        7,500
------------------------------------------------------------------------

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