Reflectorization of Rail Freight Rolling Stock, 144-191 [04-28407]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

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



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 224



Reflectorization of Rail Freight Rolling Stock; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 224

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


Reflectorization of Rail Freight Rolling Stock

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

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

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

A. Statutory Authority and Congressional Mandate

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

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

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

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

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

B. History of Railroad Car Conspicuity Issue

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

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

C. The Proposed Rule

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

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

D. Discussion of Comments

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

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

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

[[Page 149]]

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

Section-by-Section Analysis

Section 224.1 Purpose and Scope

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

Section 224.3 Applicability

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

[[Page 150]]

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

Section 224.5 Definitions

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

[[Page 151]]

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

Section 224.7 Waivers

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

Section 224.9 Responsibility for compliance

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

Section 224.11 Penalties

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

[[Page 152]]

minimum and maximum penalty amounts. Furthermore, a person may be 
subject to criminal penalties under 49 U.S.C. 21311 for knowingly and 
willfully falsifying reports required by these regulations.\4\ FRA 
believes that the inclusion of penalty provisions for failure to comply 
with the regulations is important in ensuring that compliance is 
achieved. This final rule includes a schedule of civil penalties as 
Appendix A to this part. Because the penalty schedule is a statement of 
agency policy, notice and comment was not required prior to its 
issuance. See 5 U.S.C. 553(b)(3)(A).
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    \4\ FRA notes that the criminal penalty provision was 
inadvertently omitted from Sec.  224.11 of the proposed rule. 
However, FRA has corrected this error and has incorporated the 
criminal penalty provision into this final rule, consistent with its 
statutory authority and the penalty provisions of FRA's other 
existing safety regulations.
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Section 224.13 Preemptive Effect

    This section, which has not changed from that proposed in the NPRM, 
informs the public as to FRA's intention regarding the preemptive 
effect of the final rule. While the presence or absence of such a 
section does not conclusively establish the preemptive effect of a 
final rule, it informs the public concerning the statutory provisions 
which govern the preemptive effect of the rule and FRA's intentions 
concerning preemption.
    This section points out that the preemptive effect of this rule is 
governed by 49 U.S.C. 20106 (``section 20106''). Section 20106 provides 
that all regulations prescribed by the Secretary relating to railroad 
safety preempt any State law, regulation, or order covering the same 
subject matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order, and that does not unreasonably burden 
interstate commerce. With the exception of a provision directed at an 
essentially local safety hazard that is not inconsistent with a Federal 
law, regulation, or order, and that does not unreasonably burden 
interstate commerce, section 20106 will preempt any State or local law 
or regulatory agency rule covering the same subject matter as this 
final rule.
    The Supreme Court has consistently interpreted section 20106 to 
confer on the Secretary the power to preempt not only State statutes, 
but State common law as well. See CSX Transp. v. Easterwood, 507 U.S. 
658, 664 (1993) (``[L]egal duties imposed on railroads by the common 
law fall within the scope of [the] broad phrases'' of section 20106.). 
See also Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344 (2000). The 
Court has further