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

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.

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 highwayrail 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

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 145

1A 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.

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 highwayrail 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 

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

of this proceeding (Document No. FRA–

1999–6689–17).

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 costeffective 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 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 147

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 § 224.109. 

Specifically, commenters expressed 

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

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.

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 

§ 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 highwayrail grade crossings.

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 costeffective 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. 

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

§ 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 nongeneral-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, 

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

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 § 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 § 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 § 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 § 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 

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

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

4FRA notes that the criminal penalty provision 

was inadvertently omitted from § 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.

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).

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 

§ 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 § 224.103(e). Although FRA 

received no written comments in direct 

response to proposed § 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 

§ 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 § 224.7 of 

this final rule, the owner may file for a 

waiver from the requirements of 

§ 224.106. The waiver process is 

discussed in more detail in the analysis 

of § 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 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 153

5FRA 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.

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 § 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 § 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 § 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 § 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.

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 

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

6ASTM 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, 

§ 224.103 of this final rule reflects ASTM’s correct 

name, ASTM International.

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.

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 HelmholtzKohlrausch effect usually results in a Ushaped function of dominant 

wavelength, with the minimum 

brightness around the dominant 

wavelength for yellow. Id.

Although research relating to the 

Helmholtz-Kohlrausch effect dates back 

to at least 1955, in the late 1990’s 

several researchers specifically 

investigated whether the color of 

retroreflective material affected the 

materials’ ability to enhance 

conspicuity. For example, in 1996 two 

separate research teams performed field 

experiments to evaluate the effect of 

color on the perception of retroreflective 

materials. One study evaluated the 

effect of color on the perceived 

‘‘conspicuity’’ of retroreflective 

materials, and another study evaluated 

the effect of color on the perceived 

‘‘brightness’’ of retroreflective material. 

See James R. Sayer et al., The University 

of Michigan Transportation Research 

Institute, Effects of Retroreflective 

Marking Color on Pedestrian Detection 

Distance, Rpt. No. UMTRI–98–8 (Mar. 

1998) (citing The University of 

Michigan’s 1996 study by Schumann et 

al. and W.H. Venable and W.N. Hale’s 

1996 study titled Color and nighttime 

pedestrian safety markings). A copy of 

this 1998 study is in the docket of this 

proceeding (Document No. FRA–1999–

6689–113). Both the studies cited in the 

1998 study concluded that standard 

photometric measurements by 

themselves do not accurately predict the 

perception of colored retroreflective 

targets, particularly at nighttime, and 

that chromatic retroreflective stimuli 

were perceived to be brighter than 

photometrically matched achromatic 

stimuli. 

As detailed in the 1996 University of 

Michigan study, W.H. Venable and W. 

N. Hale, in their 1996 study performed 

a field experiment based on night 

conspicuity judgments of chromatic 

versus achromatic markings and 

calculated a color correction factor (Fc) 

as the ratio of the luminance of an 

achromatic marking (La) to the 

luminance of any equally conspicuous 

chromatic marking (Lc) (Fc = La/Lc). 

Their results followed a U-shaped 

function expected from the HelmholtzKohlrausch effect, with higher 

conspicuity values (i.e., higher color 

correction factors (Fc)) for red and blue, 

and the lowest value for yellow. 

Venable and Hale then mathematically 

derived Fc values for each color using 

two different methods: (1) Calculating Fc

as the color difference from black in 

uniform color space, and (2) calculating 

Fc as recommended in ASTM 

International’s Standard E–1501, 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 155

7Recognizing 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.

8FRA 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 § 224.105 below.

Standard Specification for Nighttime 

Photometric Performance of 

Retroreflective Pedestrian Markings for 

Visibility Enhancement (ASTM E–

1501).7 The two approaches resulted in 

almost identical Fc values (R2=.99) for 

the different colors and the comparison 

of the Venable and Hale’s calculated Fc

values using the recommendation from 

ASTM E–1501 demonstrated a relatively 

good fit (R2=.62). For a more detailed 

discussion of Venable and Hale’s 1996 

research, see document number FRA–

1999–6689–113 in the docket of this 

proceeding.

The University of Michigan’s 1996 

study analyzing the effect of color on 

perceived ‘‘brightness’’ of retroreflective 

materials (as opposed to the Venable 

and Hale study which focused on the 

effect of color on the perceived 

‘‘conspicuity’’ (i.e., detectability) of 

retroreflective materials) yielded results 

similar to Venable and Hale’s study. 

Specifically, using five chromatic 

stimuli and one achromatic stimulus, 

two levels of retroreflective power, two 

levels of area, and two levels of ambient 

illumination, Schumann employed 

magnitude estimation to gather 

subjective assessments of perceived 

brightness for colored retroreflective 

material. Similar to Venable and Hale’s 

methodology, Schumann 

mathematically derived Fc values for 

each color tested and then compared 

these mathematically derived Fc values 

with Fc values calculated as 

recommended in ASTM E–1501. As did 

Venable and Hale, Schumann reported a 

very high correlation between the 

calculated and experimentally obtained 

color correction factors (R2=0.94). 

Further, Schumann used the 

experimental color correction factors 

identified in Venable and Hale’s 1996 

study and arrived at similar results. 

In 1998 researchers at the University 

of Michigan Transportation Research 

Institute conducted a nighttime field 

study to assess the effects of color on the 

detection of retroreflective markings. 

See Document No. FRA–1999–6689–113 

in the docket of this proceeding. This 

field study again demonstrated that the 

color of retroreflective markings does 

affect the distance at which the 

markings can be detected. Specifically, 

the three chromatic retroreflective 

markings examined (red, yellow, and 

green) were detected at significantly 

farther distances, 7% to 10% farther 

than the achromatic (white) 

retroreflective markings and the study 

concluded that for white markings to be 

detected at the same distance as 

chromatic markings (e.g., red, yellow, or 

green markings), white markings would 

need to have a 26% to 44% higher SIA 

value than the yellow markings (or the 

white markings would need to be 

significantly larger than the yellow 

markings). In other words, the nighttime 

detection of colored retroreflectors 

cannot be predicted from photometric 

measurements alone; chromaticity must 

also be considered. Sayer et al.

(Document No. FRA–1999–6689–113 in 

the docket of this proceeding.) 

As detailed in the preamble to the 

NPRM, FRA’s own research regarding 

the effectiveness of freight car 

reflectorization yielded similar results. 

Specifically, FRA’s research 

consistently found that retroreflective 

patterns of yellow markings were the 

most effective in enhancing the 

visibility of freight cars. See Evaluation 

of Retroreflective Markings to Increase 

Rail Car Conspicuity, Project 

Memorandum, DOT–VNTSC–RR897–

PM–98–22, John A. Volpe National 

Transportation Systems Center (Oct. 

1998) (1998 Volpe Report). Accordingly, 

FRA continues to believe that yellow 

retroreflective sheeting is the best color 

choice for retroreflective material on the 

sides of freight rolling stock. 

Nonetheless, FRA recognizes that white 

retroreflective material can perform 

satisfactorily. See 1998 and 1999 Volpe 

Reports.

Accordingly, recognizing that many 

railroads and car owners have already 

begun voluntary reflectorization 

programs using white material and that 

white retroreflective material has been 

determined to be effective in increasing 

the visibility of rail cars, FRA has 

revised paragraph (b) in this section of 

the final rule to allow the use of either 

white or yellow retroreflective 

material.8

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 

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

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.

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 § 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° and 0.5° and 

light entrance angles of ¥4° and 30°

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/ft2 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 

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

In response to the minimum 

photometric performance requirements 

of the proposed rule, 3M recommended 

that the 30° entrance angle be increased 

to 40° 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° 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° 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° and 

90°, almost 17% have crossing angles 

between 30° and 59°, and only 4% have 

crossing angles less than 30°. 

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 

§ 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 

§ 224.103(a) through (c), freight rolling 

stock owners may, under § 224.15, 

request FRA approval to use alternative 

standards. As discussed in the analysis 

of § 224.15 above, any alternative 

standard utilized must result in an 

equivalent level of safety as the sheeting 

described in § 224.103(a) through (c) 

applied in accordance with this rule. 

Section 224.105 Sheeting Pattern, 

Dimensions and Quantity 

As proposed in the NPRM, § 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 § 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, § 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 

§ 224.106, and the discussion in this 

section will focus on the general 

requirements of § 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 § 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 

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

10See §§ 6.4 and 6.5 of ASTM E 1501 addressing 

Chromaticity Coordinates and Color Factor for 

Adjustment Calculations (Fc).

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 

§ 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 § 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 

§ 224.103 above, recognizing that a 

chromatic retroreflector may appear 

brighter than an achromatic 

retroreflector with the same luminance, 

ASTM E 1501 provides a widelyaccepted 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 § 224.103 is necessary 

to achieve the same level of 

retroreflection as the amount of yellow 

material FRA determined to be 

necessary.

Section 224.106 Location of 

Retroreflective Sheeting 

As noted in the discussion of 

§ 224.105 above, similar to proposed 

§ 224.105, § 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 

§ 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, § 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 § 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 

§ 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 § 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 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 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 § 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 § 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 verticallyoriented 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 nonreflectorized 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 nonreflectorized 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 hardto-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 verticallyoriented 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 

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

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 § 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 

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

§ 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 

§ 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 

§ 224.105, paragraph (a) of § 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) 

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

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 § 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 § 224.7 of this final rule, the owner 

of the freight car may file for a waiver 

from the minimum requirements of 

§ 224.105. The waiver process is 

discussed in more detail in the analysis 

of § 224.7 above.

Locomotives 

As proposed in the NPRM, paragraph 

(b) of § 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 § 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 

§ 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 § 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 

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

§ 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 costeffective 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 °F or above 100 °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 °F for eight or 

more months of the year, while in these 

same cities the average high temperature 

is below 50 °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 °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 °F, and even 

better, when applied at temperatures 

over 70 °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 

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

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 

§ 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 

§ 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 nonreflectorized 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 § 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 § 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 

§ 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, § 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, § 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 

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

§ 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 § 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 § 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 § 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 §§ 224.5 

and 224.107 of this final rule. 

Locomotives 

Newly constructed locomotives:

Paragraph (b)(1) of proposed § 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 § 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 nonreflectorized 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 

§ 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 § 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 ‘‘optout’’ 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 

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

11FRA 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 

§ 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.

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 

§ 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 § 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 § 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.

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. 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 167

12FRA notes that it has revised the grandfather 

provision of § 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 

§ 224.107(a)(3) for freight cars.

13FRA 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 ‘‘highintensity’’ material in order to achieve the 

effectiveness of one square foot of sheeting 

conforming to the minimum photometric 

performance requirements of this rule.

Accordingly, paragraph (b)(3) of 

§ 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 § 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 § 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).

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 § 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 

§ 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 § 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 § 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 § 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 

§ 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 § 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 § 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, § 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 § 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 

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

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 § 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 § 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 § 224.111 as proposed. Specifically, 

AAR noted that proposed 

§ 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 § 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 § 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 

§§ 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 tenyear period. FRA agrees with AAR’s 

concern in this regard and because FRA 

does not intend that § 224.111 take 

precedence over §§ 224.107(a)(3) and 

(b)(3), FRA has revised § 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 §§ 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 costeffectively 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 ‘‘runinto-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] 

1999–2002 Annual

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

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 169

TOTAL TWENTY-YEAR COSTS (NPV, 

7%)—Continued

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:

CFR section Respondent universe Total annual responses 

Average 

time per

response 

Total annual 

burden 

hours 

Total annual 

burden cost 

($) 

224.7—Waivers ........................................ 685 Railroads/Car Owners 10 petitions ........................ 1 hour ....... 20 740

224.15—Special Approval Procedures—

Petitions.

3 Manufacturers ................ 10 petitions ........................ 40 hours ... 400 20,560

—Public Comment ............................. 3 Manufacturers/Railroads 5 comments ....................... 1 hour ....... 5 185

224.107—Implementation Schedule: 

Freight Cars.

—Existing Freight Cars w/o 

Retroreflective Sheeting.

685 Railroads/Car Owners 400 Reports/Forms ............ 15 minutes 100 3,700

—Updated Reflectorization Compliance Reports.685 Railroads/Car Owners 400 Reports/Forms ............ 20 hours ... 8,000 296,000

—Failure Reports .............................. 685 Railroads/Car Owners 5 Failure Reports ............... 2 hours ..... 10 370

—Existing Cars with Retroreflective 

Sheeting.

685 Railroads/Car Owners 172 Reports/Forms ............ 20 hours ... 3,440 127,280

Implementation Schedule: Locomotives 

—Existing Locomotives w/o 

Retroreflective Sheeting.

685 Railroads/Car Owners 35 Reports/Forms .............. 15 minutes 9 333

—Updated Reflectorization Compliance Reports.685 Railroads/Car Owners 35 Reports/Forms .............. 3 hours ..... 105 3,885

—Failure Reports .............................. 685 Railroads/Car Owners 1 Failure Report ................ 2 hours ..... 2 74

—Existing Locomotives with 

Retroreflective Sheeting.

685 Railroads/Car Owners 617 Reports/Forms ............ 4 hours ..... 2,468 91,316

224.109—Inspection, Repair, Replacement—Freight Cars.AAR + 300 Car Shops ...... 240,000 Notifications ......... 10 minutes 40,000 1,560,000

—Locomotives: Records of Restriction.22,800 Locomotives .......... 4,560 records .................... 3 minutes .. 228 10,488

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 

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

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 § 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

■ 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. 

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

§ 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 highwayrail 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 highwayrail 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.

§ 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.

§ 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 § 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 § 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 nonhighway 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 § 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.

§ 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.

§ 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.

§ 224.11 Penalties. 

(a) Any person (including but not 

limited to a railroad; any manager, 

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

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.

§ 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.

§ 224.15 Special approval procedures. 

(a) General. The following procedures 

govern consideration and action upon 

requests for special approval of 

alternative standards under § 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 

§ 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 § 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

§ 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 § 224.15.

§ 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

Entrance angle 

Observation angle 

0.2 Degree 0.5 Degree 

Yellow White Yellow White 

¥4° .................................................................................................................. 400 600 100 160

30° .................................................................................................................... 220 350 45 75

(d) Certification. The characters 

‘‘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 § 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.

§ 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 § 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

Freight car or locomotive length 

Minimum area of 

retroreflective sheeting required (per car/

locomotive side)—

yellow sheeting (ft2) 

Minimum area of 

retroreflective sheeting required (per car/

locomotive side)—

white sheeting (ft2) 

Less than 50 ft ..................................................................................................................................... 3.5 4

50 ft. to 60 ft ........................................................................................................................................ 4 5

Over 60 ft. to 70 ft ............................................................................................................................... 4.5 5.5

Over 70 ft. to 80 ft ............................................................................................................................... 5 6

Over 80 ft. to 90 ft ............................................................................................................................... 5.5 7

Over 90 ft. to 100 ft1 ............................................................................................................................ 6 7.5

1Freight cars or locomotives over 100 ft. in length must be equipped with an additional one-half square foot of sheeting on each side for every 

additional 10 feet of length. 

§ 224.106 Location of retroreflective 

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

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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. 

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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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(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 

§ 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 

§ 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.

§ 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 

§ 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

§ 224.107(a)(2)(ii). 

(A) 1 (B)

(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 § 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

§ 224.107(b)(2)(ii). 

(A) 1 (B)

(percent) 

May 31, 2007 ............................ 40

May 31, 2008 ............................ 60

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1A 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.

TABLE 4 OF SUBPART B.—ALTERNATIVE SCHEDULE FOR APPLICATION

OF RETROREFLECTIVE MATERIAL TO

LOCOMOTIVES PER

§ 224.107(b)(2)(ii).—Continued

(A) 1 (B)

(percent) 

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 § 224.106(b) within five 

years of the effective date of this part 

and one hundred percent must be 

retrofitted pursuant to § 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.

§ 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 

§ 232.305 of this chapter. If at the time 

of inspection more than 20 percent of 

the amount of sheeting required under 

§ 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 § 229.27 of 

this chapter. If at the time of inspection 

more than 20 percent of the amount of 

sheeting required under § 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.

§ 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 § 224.107(a)(3) 

or 224.107(b)(3).

Appendix A to Part 224—Schedule of 

Civil Penalties 1

Subpart B—Application, Inspection, 

and Maintenance of Retroreflective 

Material

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

Section Violation

($) 

Willful

violation

($) 

§ 224.103 Characteristics of retroreflective sheeting: 

(a)–(d) Retroreflective sheeting applied does not meet the requirements of § 224.103 ................................................ 2,500 5,000

§ 224.105 Sheeting dimensions and quantity: 

Failure to apply minimum amount of retroreflective sheeting in accordance with Table 2 ............................................ 2,500 5,000

Applying retroreflective sheeting of wrong dimensions ................................................................................................... 2,500 5,000

§ 224.106 Location of retroreflective sheeting: 

(a), (b) Applying retroreflective sheeting in nonconforming pattern ................................................................................ 2,000 4,000

§ 224.107 Implementation schedule: 

(a)(1), (b)(1) Failure to apply retroreflective sheeting to new freight car or locomotive before equipment placed in 

service .......................................................................................................................................................................... 5,000 7,500

(a)(2), (b)(2), (b)(4) Failure to apply retroreflective sheeting to existing freight car or locomotive in accordance with 

minumum schedule of paragraphs (a)(2), (b)(2), or (b)(4) .......................................................................................... 5,000 7,500

§ 224.109 Inspection, repair, and replacement: 

(a) Failure to perform inspection ..................................................................................................................................... 5,000 7,500

Failure to properly notify car owner of defect ................................................................................................................. 2,500 5,000

Failure to retain written notification of defect for two years ............................................................................................ 1,500 2,500

Failure to repair defect after notification .......................................................................................................................... 5,000 7,500

(b) Failure to perform inspection ..................................................................................................................................... 5,000 7,500

Failure to repair defect .................................................................................................................................................... 5,000 7,500

Appendix B to Part 224—

Reflectorization Implementation 

Compliance Report 

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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] 

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