We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1102; Directorate Identifier 2012-NM-062-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0045, dated March 21, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

EADS CASA has issued Airbus Military All Operator Letter 235-020, dated March 9, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Based on the service information, we estimate that this proposed AD would affect about 6 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,040, or $340 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

A. Background and Statutory Authority

The Consumer Product Safety Improvement Act of 2008, (CPSIA, Pub. L. 110-314), was enacted on August 14, 2008. Section 104(b) of the CPSIA, part of the Danny Keysar Child Product Safety Notification Act, requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts, and (2) promulgate consumer product safety standards for durable infant and toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. The term “durable infant or toddler product” is defined in section 104(f)(1) of the CPSIA as a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years. Bassinets and cradles are specifically identified in section 104(f)(2)(L) as a durable infant or toddler product.

In April 2010, the Commission issued a notice of proposed rulemaking (NPR) for bassinets and cradles. (75 FR 22303, April 28, 2010). Through ongoing consultation and assessment of the standard, both the ASTM standard and the Commission's proposals have evolved since publication of the April 2010 NPR, such that the Commission believes a supplemental notice and opportunity for the public to comment would be beneficial. Thus, in this document, the Commission is proposing a safety standard for bassinets and cradles in a supplemental notice of proposed rulemaking. Pursuant to Section 104(b)(1)(A), the Commission consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and members of the public in the development of this proposed standard, largely through the ASTM process. The proposed standard is based on the voluntary standard developed by ASTM International (formerly the American Society for Testing and Materials), ASTM F2194-12, “Standard Consumer Safety Specification for Bassinets and Cradles” (ASTM F2194-12), with additions and modifications to strengthen the standard. The ASTM standard is copyrighted but can be viewed as a read-only document, only during the comment period on this proposal, at: http://www.astm.org/cpsc.htm, by permission of ASTM.

ASTM F2194-12 defines a “bassinet/cradle” as a “small bed designed exclusively to provide sleeping accommodations for infants supported by free standing legs, a wheeled base, a rocking base, or which can swing relative to a stationary base” and provides that a bassinet/cradle is “intended to provide sleeping accommodations only for an infant up to approximately 5 months in age or when the child begins to push up on hands and knees, whichever comes first.” ASTM F2194-12 defines a “bassinet/cradle accessory” as “a supported sleep surface that attaches to a crib or play yard designed to convert the product into a bassinet/cradle intended to have a horizontal sleep surface while in a rest (non-rocking) position.” The Commission is proposing modifications to the scope and definition of a bassinet/cradle and bassinet/cradle accessory, as further discussed herein.

The voluntary standard for bassinets and cradles was first approved and published by ASTM in 2002, as ASTM 2194, Standard Consumer Safety Specification for Bassinets and Cradles. The standard has been revised a number of times since then. The Commission's April 2010 NPR assessed the effectiveness of ASTM F2194-07a ε 1 . Since publication of the 2010 NPR, the standard has been revised three times: In 2010, 2011, and, most recently, in 2012. The 2012 version, ASTM F2914-12, was approved on June 1, 2012. The 2012 voluntary standard contains requirements addressing a number of hazards. The requirements include:

1. Compliance with CPSC's regulations at 16 CFR part 1303 (ban of lead in paint), 16 CFR 1500.48 and 16 CFR 1500.49 (sharp points and sharp edges), and 16 CFR part 1501 (small parts), both before and after the product is tested according to the standard.

2. Exposed wood parts on bassinet/cradles, prior to testing, must be smooth and free of splinters.

3. Bassinets/cradles must not present scissoring, shearing, or pinching hazards.

4. Requirements and test method to prevent unintentional folding.

5. Requirements for the permanency of labels and warnings.

6. Prohibition against using wood screws in the assembly of any components that must be removed by the consumer in the normal disassembly of a bassinet/cradle.

7. Limits on how far a corner post assembly may extend.

8. Prohibition against containing an occupant restraint system when the product is used in the bassinet/cradle mode.

9. Performance requirements for the spacing of rigid sided bassinet/cradle components.

10. Performance requirements for the openings of mesh/fabric sided bassinet/cradles to prevent entrapment.

11. Performance requirements and test methods for static load and stability of the bassinet/cradle.

12. Requirements regarding the thickness and dimensions of the sleeping pad.

13. Requirements for the side height of the bassinet/cradle.

14. Requirements and test method for protective components of bassinet/cradle.

15. Fabric-sided enclosed openings requirement and test method involving a torso probe to protect against entrapment in bounded openings in the bassinet/cradle.

16. Performance requirements and test methods for the rock/swing feature of bassinets or cradles.

17. Marking, labeling, and instructional literature requirements.

The CPSC's Directorate for Epidemiology reports that there have been 335 incidents reported to the Commission regarding bassinets/cradles from November 2007 through December 2011. The data is drawn from the CPSC's “Early Warning System” (EWS), a pilot project initiated in 2007, which draws all data entered into the CPSC's epidemiology databases on a weekly basis. The 335 incidents involved 94 fatalities and 241 nonfatal incidents. (Because the number of emergency department-treated injuries associated with bassinets and cradles was insufficient to derive any reportable national estimates, injury estimates are not presented separately but are instead included within the category “nonfatal incidents.”).

A total of 94 bassinet-related fatalities have been reported from early November 2007 through December 2011. Eight of the 94 deaths are associated with the design aspects of the product. Three of these deaths were due to entrapment and/or hanging that resulted after an infant's body, but not head, slipped through the fabric covering and underlying structural components of a particular brand of convertible bassinets/bedside sleeper that was subsequently recalled for this defect. Two of these three infants were 6 months old, while the third infant was a 4-month-old. Three of the eight deaths are associated with problems dealing with the flatness of the mattress pads used in a bassinet accessory of a play yard. All three of these decedents were 5 months old or younger. One of the three decedents suffocated in the corner of the bassinet when he rolled into that position due to the unlevel mattress pad; the other two decedents were found face down in a dip in the center of the unlevel mattress pad. The rocking feature of a bassinet, which contributed to its non-level resting position, was associated with an additional suffocation death of a 1-month-old infant. The remaining fatality associated with the design of the product occurred when the bassinet bed fell off its stand and allowed the 3-month-old decedent to get pinned between the bassinet and a nearby dresser.

Eighty-two of the deaths were asphyxiations due to the presence of soft or extra bedding in the bassinet, prone placement of the infant, and/or the infant getting wedged between the side of the bassinet and an added mattress or pillow. All but two of the 82 decedents were 5 months old or younger in age; one infant was 7 months old and another was 8 months old. There were four fatalities with not enough information to allow the CPSC to determine the hazard scenario.

A total of 241 bassinet-related, nonfatal incidents were reported from November 2007 through December 2011. Fifty-two of these incidents reported an injury to an infant using the bassinet or cradle. The majority of the injuries (30 out of 52), were identified as resulting from falls out of the bassinets. Because 28 of the 30 falls were reported through the emergency department-treated injury surveillance system, little or no circumstantial information is available on how the fall occurred. However, the reports do indicate that 76 percent of the injured infants who fell out of bassinets were older than the ASTM-recommended maximum age limit of 5 months, with four infants as old as 9 months of age falling out of bassinets. All of the falls resulted in head and facial injuries.

Overall, there were six bassinet-related injuries that reportedly required hospitalization. Four of them, all serious head injuries, resulted from a fall out of the bassinet. One injury, a leg fracture, resulted from a caregiver unknowingly attempting to lift an infant out of the bassinet while the infant's leg was caught in a structural opening. The remaining hospitalized injury was due to a moldy bassinet pad that caused respiratory illness to the infant.

Two additional serious injuries were reported, but neither of these infants was hospitalized. There was a report of a second-degree burn suffered by an infant from the bassinet's overheated mobile and a report of an arm fracture from an infant's arm getting caught in the bassinet. The remaining injuries were limited mostly to contusions and abrasions.

The remaining 189 reports either indicated that no injury had occurred or provided no information about any injury. However, many of the descriptions indicated the potential for a serious injury or even death.

Based on the incident data, the Commission identified hazard patterns associated with bassinet and cradle incidents. The incidents were grouped into four broad categories:

• Product-related issues;

• Non-product-related issues;

• Recalled product-related issues; and

• Miscellaneous other issues.

(1) Product-related issues: The hazard scenarios in 209 of the 335 incidents (62 percent) reported were attributed to some sort of failure/defect or a potential design flaw in the product itself. This category includes five fatalities and 46 injuries, five of which involved hospitalization. Listed below are the reported problems, beginning with the most frequently reported concerns:

• Lack of structural integrity, which includes issues such as instability, loose hardware, collapse of the product, and loose wheels. This issue was reported in 64 (about 19 percent) of the incidents. One death is associated with this issue.

• Reports of infants falling or climbing out of bassinets/cradles. This category accounted for most of the bassinet-related injury reports that were received from emergency departments around the United States. While little product-/scenario-specific information was available in these reports, a majority indicated that the victims were over the ASTM-recommended upper age limit of 5 months. This issue was reported in 32 (about 10 percent) of the incidents.

• Problems with mattress flatness in bassinet attachments to play yards. Examples include mattresses that would not remain level horizontally because of poorly designed metal rods/other structures that are meant to be positioned underneath the mattress; lack of rigid mattress support; and failure of straps/hooks/bars designed to hold the bassinet attachment inside the play yard. This issue was reported in 31 (about 9 percent) of the incidents and was associated with three deaths.

• Problems with rocking bassinets and cradles, with locking or tilting issues that caused the infant to roll/press up against the side/corner of the product and posed a suffocation hazard. This issue was reported in 23 (about 7 percent) of the incidents, including one death.

• Problems with packaging of the product that resulted in broken/damaged products during delivery. This issue was reported in 19 (about 6 percent) of the incidents.

• Problems with bassinet mobiles, where components overheated, smoked, or sparked. This issue was reported in 13 (about 4 percent) of the incidents.

• Miscellaneous other product-related problems, ranging from a tear in the bassinet fabric, to odors, to product assembly/quality issues. Twenty-seven (about 8 percent) of the incidents reported these issues.

(2) Non-product-related issues: Eighty-three of the 335 reports (25 percent) were about incidents that involved no product defect or failure. This category consisted of 82 fatalities, most of which were associated with the use of soft/extra bedding or prone positioning. There was also one nonfatal injury incident that did not involve any product-related issues.

(3) Recalled product-related issues: There were 26 reports (8 percent) that involved recalled products. Some of the reports were received by CPSC staff prior to the recalls being published. There were three fatalities and two injuries due to entrapment and/or hanging of an infant between structural components of the bassinet. Most of the remaining reports were complaints or inquiries from consumers regarding a recalled product.

(4) Miscellaneous other issues: The remaining 17 (5 percent) incident reports were related to miscellaneous other or unspecified issues. Some of these reported concerns from consumers about perceived safety hazards; others described incidents with insufficient specificity for CPSC staff to identify the hazard scenario. There were four fatalities (unknown circumstances) and three injuries, including a hospitalized injury, reported in this category.

In summary, there are five product-related issues associated with incident deaths and/or significant injuries:

• Structural integrity/instability,

• Mattress flatness,

• Rocking,

• Falling or climbing out, and

• Entrapment in fabric sided products (recalled product-related).

There have been a total of five consumer-level recalls involving bassinets from October 2006 through June 2012.

One recall, involving 46,000 bassinets manufactured from July 2008 through May 2010, pertained to the latching system between the bassinet bed and the frame/stand. The latches that attach the bassinet bed onto the metal frame/stand could appear to be locked in place but still remain unlocked. This allowed the bassinet bed to become detached from the metal frame/stand, causing the bassinet bed to fall and the infant to be injured. There were seven incidents reported to CPSC and the manufacturer. One infant received a bruised cheek when the bassinet bed detached from the metal frame/stand and landed sideways on the floor with the infant inside. (The proposed Removable Bassinet Bed Attachment test, discussed in Sections F and G, would address this hazard.)

Another recall, conducted on February 16, 2011, involved all bassinets manufactured by the company before June 2010. The cross-bracing rails on the bassinet stands were misinstalled, and thus, were not fully locked into position, resulting in the bassinet collapsing, which caused the infant to fall to the floor or fall within the bassinet and suffer injuries. The manufacturer received 10 reports of incidents in which two infants received minor injuries as a result of the collapses, including bruises to the head and shoulder. Consumers were supplied with better instructions and guidance on how to install the cross-braces properly. This was a very design-specific hazard, and CPSC staff has not seen similar incidents from other manufacturers.

The third recall was conducted in December 2009 and involved five models that were bassinet accessories to play yards. This recall involved metal bars used to support the floorboard of the bassinet accessory that came out of the fabric sleeves and created an uneven sleeping surface, posing a risk of suffocation or positional asphyxiation. The manufacturer received no reports of injuries. (The proposed mattress flatness requirement, discussed in Sections F and G, would address this hazard.)

A fourth recall, conducted in May 2009 by the same manufacturer as in the third recall, also involved portable play yards. The convertible play yard included a bassinet accessory and changing station feature and was manufactured before December 1, 2008. This recall involved the play yard's rocking bassinet accessory that was tilting, even when secured by straps in the non-rocking mode, or that stayed tilted without returning to a level sleeping surface while in the rocking mode. These conditions could cause an infant to roll to the corner or side of the bassinet and become wedged in the corner or pressed against the side or bottom of the bassinet, posing a risk of suffocation or positional asphyxiation. The manufacturer and CPSC received 10 reports of infants rolling to one side, including six that had their faces pressed against the side or the bottom of the bassinet. One child reportedly was turning purple and was out of breath when discovered. No other injuries were reported. (The rock/swing angle test, proposed in the 2010 NPR and added to the ASTM standard in its 2012 iteration, would address this hazard.)

The fifth recall, conducted in September 2008, involved 3-in-1 and 4-in-1 convertible bassinets that contained metal bars covered by an adjustable fabric flap attached with Velcro®. The fabric was folded down when the bassinet was converted into a bedside sleeper position. If the Velcro® was not resecured properly when the flap is adjusted, an infant could slip through the opening and become entrapped in the metal bars and suffocate. CPSC learned that on August 21, 2008, a 6 1/2 -month-old girl died when she became entrapped and strangled between the bassinet's metal bars. This is the second strangulation death that the CPSC learned of involving the co-sleeper bassinets. On September 29, 2007, a 4-month-old girl became entrapped in the metal bars of the bassinet and died. (The fabric-sided openings test, proposed in the 2010 NPR and added to the ASTM standard in its 2012 iteration, would address this hazard.)

In April 2010, the Commission approved a proposed rule on bassinets/cradles that referenced the requirements specified in ASTM F2194-07a ε 1 as a mandatory standard for bassinets and cradles, with several modifications to further reduce injuries and deaths. The modifications and edits included the following:

• Updated warnings;

• Stability requirements;

• Performance requirements for fabric-sided products to address entrapment incidents;

• Performance requirements to limit the rocking/swinging angle to 20 degrees and the rest angle of certain rocking/swinging cradles to 5 degrees;

• Requirement to eliminate active restraints;

• Changes to scope and terminology; and

• Performance requirements specifying a mattress flatness angle of 5 degrees to address suffocation incidents on segmented mattresses.

Many of the changes proposed in the April 2010 NPR have been incorporated in some capacity into ASTM F2194-12. Other changes to ASTM F 2194-12 have come about in response to comments to the April 2010 NPR. The Commission proposes to revise two of the proposed changes to the 2010 NPR (involving hammocks and the mattress-flatness requirement), based on review of public comments, further testing and analysis, and discussions with the ASTM task group on bassinets.

The 2010 NPR proposed to prohibit bassinets with restraints that require action on the part of the caregiver to secure the restraint. A commenter requested that bassinets be allowed to have restraints and provided several reasons why they should be allowed. The primary reason that the Commission believes restraints should not be allowed in bassinets is that most bassinet uses do not require a restraint, so consumers have a strong motivation to avoid using restraints, if they are provided. When unused, restraints have been known to entrap and strangle children in similar products, like swings, handheld infant carriers, and bouncers. While none of the bassinet incidents was associated with restraint harness strangulation, this is probably due to the fact that restraints are rare on bassinets and not because they would not pose a hazard if they were present.

The 2012 version of F2194 contains a stronger requirement than that proposed in the April 2010 NPR that prohibits all restraints in bassinets. The Commission supports this change to the standard, and notes that it is more conservative than the restraints requirement proposed in the 2010 NPR.

The 2010 NPR proposed a stronger warning label to address suffocation hazards. The current ASTM standard for bassinets, F2194-12, includes an enhancement of the soft bedding warnings by: (1) Increasing the font size for the suffocation warning label to 0.4 inches or higher; and (2) adding emphasis by stating that “Infants have suffocated * * *,” rather than stating “Infants can suffocate * * *.”

The Commission's 2010 NPR proposed a maximum rock/swing angle of 20 degrees and a maximum rest angle of 5 degrees for rocking cradles. Several commenters recommended a maximum rock/swing angle of 20 degrees and a maximum rest angle of 7 degrees for rocking cradles. The 5-degree angle was based on the Australian standard for rocking cradles. In the Australian standard, the angle is measured with the CAMI infant dummy placed in the center of the cradle. The intent is to ensure that the rocking cradle returns to a level position and provides a flat sleeping surface for the infant. In ASTM F2194-12, the angle is measured with the CAMI dummy placed to one side of the cradle. The Commission believes that the placement of the CAMI to one side results in a more stringent requirement than the Australian standard. For this reason, a 7-degree rest angle is a reasonable and achievable requirement for bassinets that will address suffocation hazards associated with an angled sleep surface. Therefore, the Commission is not making any recommendations with respect to this issue.

The performance requirements for fabric-sided products included in F2194-12 to address entrapment incidents are the same as in the 2010 NPR, except for editorial changes made to clarify the requirement and test procedure.

The stability requirements are intended to ensure that the product does not tip over when pulled on by a 2-year-old male. The 2010 NPR clarified that the stability requirement applies to all manufacturer-recommended use positions, including the position where the locks are engaged to prevent rocking/swinging motion. ASTM incorporated this change in ASTM F2194-11; therefore, it is included in the latest version, ASTM F2194-12.

In response to the 2010 NPR, one commenter noted that because “bassinets provide an important tool for parents to monitor premature babies,” a target age range for infant occupants may be necessary to enhance the understanding of the developmental milestones used in the warnings. They also suggested that if there is “a size at which a bassinet becomes unsafe for a baby,” then that factor should be listed in the product's instructions and warnings.

The 2012 version of the ASTM standard includes a reference to the maximum recommended weight in the FALL HAZARD warning label. The Commission supports this addition to the standard.

The static load test is intended to ensure structural integrity even when a child three times the recommended (or 95th percentile) weight uses it. This has been modified following publication of the April 2010 NPR to also test play yard bassinet accessories at all four corners to ensure structural integrity of the product.

This requirement, which is intended to prevent falls, was added to F2194-12 in response to comments to the 2010 NPR. The side height requirement in F2914-12 requires that the bassinet/cradle side height be at least 7 1/2 ; inches from the top of the uncompressed mattress surface.

The Commission's 2010 NPR proposed to include infant hammocks in the scope of the standard. The voluntary standard for bassinets and cradles does not state explicitly whether infant hammocks are included within the scope of the standard. However, the Juvenile Products Manufacturers Association (JPMA) historically has certified some infant hammocks to the bassinet standard because there was not a separate standard for infant hammocks and other inclined sleep products. Including infant hammocks in the scope would effectively ban most infant hammocks currently on the market because, by their nature, they would be unable to meet the performance criteria in the bassinet standard addressing rest angle, segmented mattress flatness angle, and rock/swing angle.

Several comments were received regarding the inclusion of infant hammocks and other inclined sleeping products in the scope of the 2010 NPR. The comments were universally against such inclusion, asserting that this would effectively ban a product that has utility. The comments also opined that banning them might increase hazardous sleeping arrangements, causing consumers to resort to a substitute product such as a car seat or makeshift soft bedding to prop up an infant. The Commission agrees that alternative products or makeshift products would present additional hazards if consumers chose to use them instead of cribs, bassinets, or other common juvenile products intended for sleep.

An inclined sleeper differs from a bassinet in that it is intended to have an inclined sleep surface and it conforms to the contour of the occupant. Most hammocks have mattresses that are also inclined in a manner that elevates the head, as well as conforming to the body contours of the infant. They are also intended to allow swinging or bouncing motions. These special features, especially elevating the head, are sometimes intended to help prevent reflux. Features that allow head elevation, swinging, and bouncing motions distinguish these products from common bassinets and cradles, which generally have flat mattresses with solid or fabric-covered framed sides. The Commission believes that a separate standard targeted specifically to these products will more effectively address any hazards associated with them. Due to the significant progress in the development of a separate voluntary standard to address hammocks and inclined sleeping products, the Commission is not including them within the scope of this proposed rule.

In the 2010 NPR, a mattress flatness performance test for all types of bassinets and cradles was included. The performance requirement specified a mattress flatness angle of 5 degrees to address suffocation incidents on mattresses. The mattress flatness performance requirement that the Commission is proposing in this document only applies to segmented mattresses because the CPSC's review of the data showed that only segmented mattresses used in play yards were involved in incidents. In addition, the Commission determined that an angle of 10 degrees or less would still provide protection; allow for testing variances; and also address design and manufacturability concerns with segmented mattress pads. The Commission's new proposal has additional requirements for two-occupant bassinets. The test method now uses a rigid cylinder to simulate the infant, rather than a soft/deformable CAMI dummy. This change provides more consistent test results. The mattress flatness test is discussed in more detail in Section F.

The Commission believes that ASTM F2194-12 addresses many of the general hazards associated with durable nursery products, such as lead in paints, sharp edges/sharp points, small parts, wood part splinters, scissoring/shearing/pinching, openings/entrapments, warning labels, and toys. The standard also includes specific requirements for tip stability, unintentional folding of the product, and static load.

From the incident data and hazard patterns associated with bassinets and cradles (as discussed in Section C), the Commission identified six addressable hazards: (1) Suffocation due to the addition of soft bedding; (2) suffocation/positional asphyxia due to excess mattress pad angle; (3) entrapments in fabric-sided openings; (4) suffocation due to excess rock/swing angles; (5) misassembly of removable bassinet beds; and (6) falls and climb-outs. Following is an analysis of the adequacy of ASTM F2194-12 in addressing these hazards.

1. Suffocation Due to the Addition of Soft Bedding. The majority of the deaths associated with bassinets and cradles were asphyxiations due to the presence of soft or extra bedding in the bassinet, prone placement of the infant, and/or the infant getting wedged between the side of the bassinet and an added mattress or pillow.

As mentioned in Section E of this preamble, since publication of the 2010 NPR, ASTM F2194 has been revised to strengthen the suffocation warning. Specifically, ASTM F2194-12, includes an enhancement of the soft bedding warnings by: (1) Increasing the font size for the suffocation warning label to 0.4 inches or higher; and (2) adding emphasis by stating: “Infants have suffocated * * *,” rather than indicating: “Infants can suffocate * * *.”

The Commission supports the strengthening of the suffocation warning label as included in the latest revision of the ASTM voluntary standard and does not believe that there are additional requirements that can be put in place in the standard to address unsafe sleep environments and unsafe sleep practices. The Commission will continue information and education efforts, such as the Safe Sleep campaign, to address suffocation and other serious sleep hazards.

2. Suffocation/Positional Asphyxia Due to Excess Mattress Pad Angle. Bassinets that are commonly sold as accessories to play yards use the floor of the play yard (a segmented mattress pad) as the floor of the bassinet. Seams between segments of folding play yard bassinet accessory mattress pads have been known to create a valley shape in a bassinet sleeping surface in the crease between adjoining segments of the mattress.

An inclined sleeping surface (on a product not intended to provide a contour or other means to contain the child) can contribute to an infant rolling, increasing the likelihood that they will be found face down and become trapped in a significant V-shaped crease. When lying prone in a valley (or V-shaped crease), infants may have more difficulty keeping their airways unobstructed than they would on a flat surface because their faces are trapped in the juncture between adjacent surfaces. Their heads cannot rotate to the side as much as when the sleeping surface is flat. Immature head control and weak neck muscles may not allow them to free their airways. Thus, infant sleeping surfaces need to be as firm, flat, and level as possible because soft, uneven and non-level surfaces may create a higher risk of suffocation than a level surface.

The Commission has identified incidents associated with a sleeping surface (segmented mattress) that is not level or flat. The data include fatal and nonfatal incidents involving play yard attachment bassinets with insufficient mattress support.

In one in-depth investigation (IDI), the product was apparently assembled without two key structural support bars beneath the mattress pad of a bassinet accessory that was intended by the manufacturer to be mounted from the top rails of the play yard. The incident summary states:

In another IDI, the victim was in a bassinet accessory to a play yard that was also misassembled. The incident summary states:

A third fatality involved a victim with serious physical challenges who was placed face down to sleep (both of these are additional risk factors) and was found in a sagging bassinet accessory to a play yard. The incident report states:

In the fourth incident involving a fatality, a baby died in the corner of a tilted bassinet accessory on a play yard. A rod intended to be placed in a pocket at the end of the accessory was left out. When a clip on the corner of the bassinet came off for unknown reasons, the sleeping surface tilted downward, allowing the infant's head to become entrapped. While the incident was included in data used for the final rule briefing package for play yards, it is included here because the manner of death is related to a non-level, segmented mattress.

In addition to the fatal incidents, a nonfatal incident was found to be associated with the same hazard. In this incident, a child in a bassinet accessory of a play yard was observed rolling into seams on the sleep surface, but the child was not injured. The incident report states:

There is no requirement for mattress flatness in ASTM 2194. The 2010 NPR proposed a mattress flatness requirement that specified a 5-degree maximum tilt angle for segmented sleeping surfaces, like those found in play yard bassinet accessories. The ASTM subcommittee for bassinets believed that the 5-degree maximum angle was not achievable within the tolerances necessary to manufacture play yard bassinet accessories; accordingly, they considered alternative test methods and requirements for sleeping surface flatness in products with segmented mattresses.

In lieu of the 5 degrees proposed in the 2010 NPR for segmented mattresses, the ASTM subcommittee sent out to ballot a requirement that allowed up to 14 degrees on either side of a valley formed at a seam, with higher inclines possible if the sum of the two angles on either side of the valley did not exceed 28 degrees in total. The 14-degree angle was based on an extrapolation of angles formed by dimensions of average infant faces. By combining an infant's mandible width with dimensions of nasal protrusion, an isosceles triangle can be created that represents a cross-section of the volume of space beneath the nose. From this cross-section, one can extrapolate both the angle of the valley and the angle of the incline of the surface that would contact a prone infant's face. The angle resulting from the combination of the average facial dimensions is 15 degrees, from which the ASTM subcommittee subtracted a single degree for a factor of safety. This ASTM ballot item received many negative votes and was not approved for the standard.

The Commission is uncomfortable using the average infant facial dimension as the basis for this requirement. A product that has a 14-degree angle in the valley formed at the seam of the mattress would leave about one-half of the potential occupant population unprotected from suffocation. While the ASTM Committee used an angle resulting from the combination of average facial dimensions, the Commission generally recommends using the smallest users' anthropometrics for justifying requirements of this nature. If the facial measurements of the smallest (5th percentile) infants are used to form the isosceles triangle, the resulting valley is 158 degrees, which yields an 11-degree angle of sleep surface incline from the horizontal on each side. If a single degree is subtracted from this incline angle for a minor factor of safety, the requirement becomes a 10-degree maximum incline from the horizontal. In the Commission's proposed test, each seam of a folding bassinet sleeping surface is tested with a pass/fail criterion of 10 degrees maximum for either side of the valley formed by a weighted cylinder.

In August 2012, ASTM reballoted the mattress flatness test. Several modifications were made to the test procedure, and CPSC staff was involved throughout the development of this requirement. The actual test procedure that was reballotted by ASTM is identical to the Commission's recommendation. However, the test requirement (the pass/fail criteria) is different. In the test procedure, a measurement is taken on each side of each seam of the mattress (for a total of 6 or 8 measurements per bassinet). As mentioned, the Commission is proposing a test requirement of 10 degrees maximum for each measurement taken. Under the ASTM ballot, 10 degrees or less for all measurements would pass, more than 14 degrees for one or more measurements would fail, and any angle measurements between 10 and 14 degrees would require a two-step process where the test lab would take two additional measurements, average them, and then use 10 degrees as the final pass/fail delineator.

With regard to the test method itself, the 2010 NPR's method for testing flatness used a CAMI dummy to weight the surface prior to measuring the side angles of the valley formed in the sleeping surface. However, the CPSC and the ASTM subcommittee prefer a rigid cylinder to help increase the reliability of the test across test laboratories. This is because CAMI dummies tend to vary slightly with age because of the nature of their construction. CPSC staff tested a variety of cylinder diameters and lengths and found that small differences in the footprint of the test cylinder were not critical to differentiating hazardous from nonhazardous products. The most critical factor was the design of the mattress support structure. An exact replica of the human form is not necessary for this type of screening, and the benefits of using standardized, readily available test methods are appreciated by industry. As previously mentioned, the test procedure that the Commission is proposing is identical to what ASTM recently balloted.

3. Entrapments in fabric-sided openings. Three deaths associated with bassinets and cradles were due to entrapment and/or hanging that resulted after an infant's body, but not head, slipped through the fabric covering and underlying structural components of a particular brand of convertible bassinets/bedside sleepers of a particular brand of convertible bassinets/bedside sleepers. These incidents occurred in one manufacturer's bassinet that was recalled on August 28, 2008.

As discussed in Section E, since publication of the 2010 NPR, ASTM has revised the bassinet standard to include a fabric-sided enclosed openings test. The test, as added to the 2012 version of the standard, is very close to what was included in the 2010 NPR. Thus, the Commission is not recommending any further changes relating to this hazard.

4. Suffocation due to excess rock/swing angles. Bassinets and cradles with locking or tilting issues that caused the infant to roll/press up against the side/corner of the product pose a suffocation hazard. There have been several nonfatal incidents and one fatality associated with a rocking bassinet. In the fatal incident, a 1-month-old was found pressed up against the fabric side of a bassinet. It is not known whether the lock, which was designed to prevent rocking, was engaged properly, or wasn't functioning correctly.

As discussed in Section E, since publication of the Commission's 2010 NPR, ASTM has included a rock/swing angle requirement in its standard. The requirement specifies a maximum of 20 degrees for the swing angle and 7 degrees for the rest angle. The Commission believes that this requirement adequately addresses the hazard. Thus, the Commission is not proposing any further changes to the standard relating to this hazard.

5. False latching/stability of removable bassinet beds. The Commission is aware of several incidents involving bassinets beds that were designed to be removed from their stand, four of which have IDIs. During the incidents, the bed portion of the unit was not completely locked or properly attached to its stand. The bed portion of the unit appeared to be stable, giving the caregivers a false sense of security. For various reasons, the bed portion fell or tilted off of its stand. In one case, a 3-month-old infant was killed. The Commission was also informed by Health Canada of a second death. In email correspondence from Health Canada staff, the following was reported:

There have also been nonfatal incidents involving bassinet beds that tipped over or fell off their base/stand when they were not properly locked/latched to their base/stand, or the latch failed to engage as intended. In May 2012, there was a recall of 46,000 bassinets that could appear to latch to the stand when they actually had not latched. ( http://www.cpsc.gov/cpscpub/prerel/prhtml12/12173.html ).

The reason that removable bassinet designs need inherent stability (or obvious instability) is consumers will sometimes avoid activating lock or latch mechanisms if it appears that the bassinet bed is stable when placed on its stand/base. Consumers may do this because the locks or latches seem redundant or because they are worried about making noise when activating locks or latches around a sleeping infant. Locks and latches also accidentally may give feedback that they are locked when they are not. This constitutes a “false latching” situation. Because of these foreseeable use patterns, this requirement will make bassinets with a removable bed portion inherently stable or have visible indicators to show when the bassinet bed is not properly attached to the stand.

Commission staff has been actively involved in an ASTM task group that is currently developing requirements to address the hazards associated with bassinets with removable bed portions. To date, the language that the task group drafted has yet to be balloted. The Commission proposes adding a new requirement for the NPR, based on what the ASTM task group has developed to date. The proposed requirement allows multiple options to pass. These options will either ensure that the bed portion of the unit is inherently stable when it is placed on the stand unlatched, or it will give obvious feedback that the unit is not latched or stable. One option allows the unit to give an extreme appearance of instability by being tilted 20 degrees or more. The 20-degree minimum is twice the allowable deviation from horizontal that staff recommends for sleeping surface flatness. This angle was extrapolated from an IDI report involving a caregiver who noticed that a bassinet was tilted. From photographs of the incident product, the ASTM task group assigned to examine the problem estimated that the unit produced about a 17-degree angle, which they felt would be reasonable to round up to 20 degrees for the standard. A sleeping surface at 20 degrees from the horizontal seems severe enough that consumers would notice that it was not level. This proposed requirement is slightly less than the angle proposed to address similar hazards in the play yard standard ( i.e., 30 degrees from the horizontal), but the ASTM subcommittee reasoned that bassinets are different in structural design and materials and will appear to be misassembled more easily than the suspended and segmented mattress supports used in play yards.

In addition to the aforementioned options, a bassinet that has a removable bed would also pass the requirement if it has a visual indicator to alert a caregiver that the bassinet bed is not properly locked onto the stand. Or, the bassinet would also pass the requirement if it can pass the standard's stability test while in an unlocked position.

6. Falls and Climb-Outs. The majority of the nonfatal injuries (30 out of 52, or 58 percent) were identified as falls from the bassinets. Because 28 of the 30 falls were reported through the emergency department-treated injury surveillance system, little or no information is available on how the falls occurred. However, the reports do indicate that 76 percent of the injured infants who fell out of bassinets were older than the ASTM-recommended maximum age limit of 5 months, with four infants as old as 9 months of age. All of the falls resulted in head and facial injuries.

The Commission believes the new side height requirement in ASTM F2194-12, which requires a bassinet side to be at least 7.5 inches above the mattress surface, as well as the proposed removable bassinet requirements, will help address fall hazards.

In addition to the requirements for mattress flatness and removable bassinet bed attachments, the Commission is proposing changes to the scope of the standard and a revised test method for stability.

In order to clarify which products are covered under the scope of the proposed standard and to ensure more complete coverage of sleep products, the Commission is proposing the following with respect to the scope of the ASTM standard. The scope would encompass products with an incline of 10 degrees or less, but not products with a greater than 10-degree angle. This would include cradle swings within the scope, which, by definition, recline less than 10 degrees. The Commission proposes including products that can be supported by a stationary frame/standard, such as carriage attachments to strollers and Moses baskets, only when they are used with a stationary or rocking stand. (A Moses basket is a portable cradle, typically made from wicker or cloth, with no legs or a stand.) Finally, the Commission proposes to specify that the standard covers products primarily used to provide sleeping accommodations. This would expand the scope beyond products only used to provide sleeping accommodations. This would ensure, for example, that a bassinet sold with a toy mobile that is meant to entertain an infant who is lying in the bassinet would still fall within the scope of the standard.

During evaluations of the test methods for removable bassinet beds, Commission staff made comparisons of the stability of products weighted with the newborn CAMI dummy (7.45 lbs) as opposed to the infant CAMI dummy (17.4 lbs). ASTM F2194-12 contains a stability requirement that uses the heavier infant CAMI dummy. There is no rationale included in the ASTM standard for why the heavier dummy was specified in the stability requirement. Use of the newborn CAMI, which is readily available to test labs and represents the 50th percentile newborn, would result in a more conservative stability test. In addition, bassinets are intended for use with newborns. For these reasons, the Commission is proposing a revised test procedure for bassinet stability, which uses a newborn CAMI instead of an infant CAMI.

The Commission reviewed Canadian, European, and Australian standards for bassinets and/or cradles. Many of the requirements found in the 2012 ASTM standard can also be found in some of these international standards.

The European Standard, EN 1130-1: 1996, “Furniture—Cribs and Cradles for Domestic Use,” has several requirements not found in ASTM F2194-12. Most of these additional requirements address hazards associated with cribs intended for use with older children (in excess of the 5-month recommended maximum age for bassinets). Thus, they are not applicable to bassinets.

The scope of the European Standard, EN 12790-2009, “Child Use and Care Articles—Reclined Cradles,” includes inclined bassinets/cradles, car seat carriers, hammocks, and bouncers. Some of the general requirements could apply, but because the scope of the product is not the same, most of the requirements are not applicable to bassinets.

The Australian/New Zealand standard (AS/NZS 4385:1996) contains requirements for rocking and swinging angles that were used to develop some of the requirements in ASTM F2194. The ASTM rock/swing rest angle performance requirement, while based on AS/NZS 4385:1996, contains a more severe test method than that in AS/NZS 4385:1996, due to the placement of the CAMI dummy. This is discussed more fully in Section E.

The Canadian standard (SOR 86-962: 2010) includes requirements for cribs and non-full-size cribs. This standard does not distinguish between a bassinet and non-full-size cribs. As a result, many of the requirements are not applicable for this NPR. However, the Canadian standard was used to develop the ASTM requirement for bassinet side height.

The Commission believes that the current ASTM F2194-12 standard is the most comprehensive of the standards to address the incident hazards. There are some individual requirements in various foreign standards that are more stringent than ASTM; however, many of these requirements do not address the identified hazards in the incident data reported to the CPSC.

The proposed rule would create a new part 1218 titled, “Safety Standard for Bassinets and Cradles.” The proposal would establish ASTM F2194-12, “Standard Consumer Safety Specification for Bassinets and Cradles,” as a consumer product safety standard, but with certain changes. These proposed changes include a revision to an existing test method (the bassinet stability test method), two additional new requirements and associated test methods (for mattress flatness and removable bassinet bed attachments), and a revised scope and associated definitions or references to support these additions. They are detailed herein.

The Commission is proposing to revise the scope of ASTM F2194-12 and corresponding terminology to better define which products fall within or outside the scope of the standard. The current text of ASTM F2194-12 provides that the “consumer safety performance specification covers products intended to provide sleeping accommodations only for an infant up to approximately 5 months in age, or when the child begins to push up on hands and knees, whichever comes first.” The Commission is proposing to change the scope and definition of a “bassinet/cradle”—from products meant exclusively for sleeping—to those intended primarily for sleeping. This would ensure that a bassinet sold with a toy mobile that is meant to entertain an infant who is lying in the bassinet, for instance, would still fall within the scope of the standard.

The Commission is also proposing to amend the definitions of “bassinet/cradle” and “bassinet/cradle accessories” to specify that the sleeping surface of these products, while in a rest (non-rocking or swinging) position, is intended to be less than or equal to 10 degrees from horizontal. This change would complement the definition of “inclined sleeper” in the draft ASTM inclined sleeper standard, which defines the “inclined sleeper” as having more than a 10-degree sleep surface incline. Thus, the following are covered under the standard: Cradle swings with inclines less than or equal to 10 degrees from horizontal while in rest position; carriage baskets/bassinets that are removable from the stroller base, when the carriage basket/bassinet meets the definition of “bassinet/cradle” found in the standard; bassinet/cradle attachments to cribs or play yards, when in bassinet/cradle-use mode. The following would not fall under the scope of the bassinet/cradle standard: Products used in conjunction with an inclined infant swing or stroller and products that are intended to provide an inclined sleep surface (defined as greater than 10 degrees from horizontal while in the rest (non-rocking) position).

In order to address the hazard of suffocation/positional asphyxia due to an excess mattress pad angle, the Commission is recommending performance requirements and a test method for the minimum flatness of segmented mattress surfaces. This requirement applies only to segmented mattresses, such as those seen in a bassinet accessory to a play yard. The Commission recommends that the segmented mattresses commonly used in play yards shall not create an angle greater than 10 degrees when tested using a 17-pound cylinder to simulate the weight of a 6-month-old infant.

In order to address hazards associated with misassembly of removable bassinet bed and falls, the Commission is recommending performance requirements and a test method for products that have bassinet beds that attach to an elevated stand. The requirements apply to removable bassinet beds that are designed to separate from the stand/base without the use of tools. The Commission is proposing that if a removable bassinet bed is not properly attached or assembled to its base, it must meet one of the following requirements:

• The base/stand shall not support the bassinet ( i.e., the bassinet bed falls from the stand so that it is in contact with the floor); or

• The lock/latch shall automatically engage under the weight of the bassinet bed (without any other force or action); or

• The stand/base shall not be capable of supporting the bassinet bed within 20 degrees of horizontal; or

• The bassinet shall contain a visual indicator mechanism that shall be visible on both sides of the product; or

• The bassinet bed shall not tip over and shall retain the CAMI newborn dummy when subjected to the stability test outlined in the standard.

For the reasons described in the previous Section, the Commission is proposing a revised test procedure for bassinet stability that uses a newborn CAMI instead of an infant CAMI.

The Administrative Procedure Act (APA) generally requires that the effective date of the rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). To allow time for bassinets and cradles to come into compliance, the Commission proposes that the standard would become effective 6 months after publication of a final rule in the Federal Register . The Commission invites comment on how long it will take bassinet and cradle manufacturers to come into compliance with the rule.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires agencies to consider the impact of proposed rules on small entities, including small businesses. Section 603 of the RFA requires that the Commission prepare an initial regulatory flexibility analysis and make it available to the public for comment when the notice of proposed rulemaking is published. The initial regulatory flexibility analysis (IRFA) must describe the impact of the proposed rule on small entities and identify any alternatives that may reduce the impact. Specifically, the IRFA must contain:

• A description of, and where feasible, an estimate of the number of small entities to which the proposed rule will apply;

• A description of the reasons why action by the agency is being considered;

• A succinct statement of the objectives of, and legal basis for, the proposed rule;

• A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities subject to the requirements, and the type of professional skills necessary for the preparation of reports or records; and

• An identification, to the extent possible, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

In addition, the IRFA must contain a description of any significant alternatives to the proposed rule that would accomplish the stated objectives of the proposed rule and, at the same time, reduce the economic impact on small businesses.

Bassinets and cradles are typically produced and/or marketed by juvenile product manufacturers and distributors, or by furniture manufacturers and distributors, some of which have separate divisions for juvenile products. The Commission believes that there are currently at least 55 suppliers of bassinets and/or cradles to the U.S. market; 24 are domestic manufacturers, and 11 are domestic importers. An additional 14 domestic firms have unknown bassinet/cradle supply sources; three of those firms are retailers and nine specialize in bedding, some of which is sold with bassinets or cradles. There are also six foreign firms supplying the U.S. market: Five manufacturers and one importer who imports from foreign companies and distributes from outside of the United States.

Bassinets and cradles from 12 of the 55 firms have been certified as compliant by the JPMA, the major U.S. trade association that represents juvenile product manufacturers and importers. Firms supplying bassinets or cradles would be certified to the ASTM voluntary standard F2194-10, while firms supplying play yards with bassinet/cradle attachments would also have to meet F406-11b. Nine additional firms claim compliance with the relevant ASTM standard for at least some of their bassinets and cradles.

According to a 2005 survey conducted by the American Baby Group ( 2006 Baby Products Tracking Study ), 64 percent of new mothers own bassinets; 18 percent own cradles; and 39 percent own play yards with bassinet attachments. Approximately 50 percent of bassinets, 56 percent of cradles, and 18 percent of play yards were handed down or purchased second-hand. Thus, about 50 percent of bassinets, 44 percent of cradles, and 82 percent of play yards were acquired new. This suggests annual sales of about 1.3 million bassinets (.5 × .64 × 4.1 million births per year); 325,000 cradles (.44 × .18 × 4.1 million); and 1.3 million play yards with bassinet attachments (.82 × .39 × 4.1 million). This yields a total of approximately 3 million units sold per year that could be affected by the proposed bassinet/cradle standard.

The Danny Keysar Child Product Safety Notification Act, section 104 of the CPSIA, requires the CPSC to promulgate a mandatory standard for bassinets/cradles that is substantially the same as, or more stringent than, the voluntary standard. CPSC worked closely with ASTM to develop the new requirements and test procedures that have been added to the voluntary standard since 2010. These new requirements address several known hazard patterns that will help to reduce injuries and deaths in bassinets and cradles, and they have resulted in the current voluntary standard, F2194-12, upon which the proposed rule is based.

However, the Commission proposes adding two new requirements to F2194-12, as well as modifying the scope and the test CAMI dummy used in the existing stability test. The first new requirement would address suffocation and positional asphyxia hazards that have occurred as a result of problems with segmented mattress flatness in play yard bassinet accessories. The second would address the stability of bassinets with removable bassinet beds, particularly the attachment mechanisms. The Commission also proposes modifying the scope (and some of the terminology) to ensure that inclined sleepers (including infant hammocks) would no longer be covered under the bassinet/cradle standard, unless they recline to 10 degrees or less. The expanded scope would also include Moses baskets and stroller carriage accessories when used in conjunction with a stationary stand. These modifications would also help eliminate gaps in product coverage ( i.e., most products that may be used for infant sleep will be included under at least one durable nursery product standard). Finally, the Commission proposes that the CAMI newborn dummy be used for stability testing because it more closely resembles the characteristics of bassinet users than the CAMI infant dummy in F2194-12.

The Commission proposes adopting the voluntary ASTM standard for bassinets and cradles (F2194-12) with a new mattress flatness requirement, a new stability requirement for bassinets with removable beds, a revised scope, and a modified CAMI dummy for the existing stability requirement. Some of the more significant requirements of the current voluntary standard for bassinets and cradles (ASTM F2194-12) are listed below. The requirements that were added to the ASTM voluntary standard or modified since the 2010 NPR are italicized.

• Spacing of rigid-side components—intended to prevent child entrapment between both uniformly and non-uniformly spaced components, such as slats. This has been modified for clarity to remove duplicative test references.

• Openings for mesh/fabric—intended to prevent the entrapment of children's fingers and toes, as well as button ensnarement.

• Static load test—intended to ensure structural integrity even when a child three times the recommended (or 95th percentile) weight uses it. This has been modified to also test play yard bassinets in all four corners.

• Stability requirements—intended to ensure that the product does not tip over when pulled on by a 2-year-old male. ASTM adopted the revised test requirements included in the 2010 NPR (includes testing with locks/latches engaged).

• Sleeping pad thickness and dimensions—intended to minimize gaps and the possibility of suffocation due to excessive padding. F2194-12 allows thicker mattresses for rigid-sided products because a thicker mattress does not pose the same suffocation hazard when used in rigid-sided, rather than soft-sided, products.

• Tests of locking and latching mechanisms—these are intended to prevent unintentional folding while in use.

• Suffocation warning label—intended to help prevent soft bedding incidents. F2194-12 requires the warning to use a larger font than the 2010 NPR.

• Fabric-sided openings test—intended to prevent entrapments. This test was included in the 2010 NPR and has been adopted in F2194-12 with a few editorial changes.

• Rock/swing angle requirement—intended to address suffocation hazards that can occur when latch/lock problems and excessive rocking or swinging angles press children into the side of the bassinet/cradle. The 2010 NPR recommended a maximum rocking angle of 20 degrees and a maximum rest angle of 5 degrees. ASTM F2194-12 adopts the maximum deflection angle of 20 degrees, but includes a maximum rest angle of 7 degrees with a more severe test condition where the CAMI doll is positioned at the side, rather than the center, of the bassinet/cradle.

• Occupant restraints—intended to prevent incidents where unused restraints have entrapped and strangled children. The 2010 NPR proposed that only passive restraints be allowed. ASTM F2194-12 is even stricter, allowing no restraints to be used in a bassinet/cradle configuration.

• Side height requirement—intended to prevent falls. This requirement, which is new to F2194-12, arose from the comments to the 2010 NPR. A bassinet/cradle side height of 7 1/2 inches from the top of the uncompressed mattress is now required.

The Commission proposes modifying the scope, using the more appropriate infant CAMI dummy for stability testing, and adding new mattress flatness and attachment of removable bassinet bed requirements to ASTM F2194-12. As part of these changes, there would also be several new or revised definitions, including “bassinet/cradle,” “bassinet/cradle accessory,” and “bassinet bed.” Following is a discussion of the impact of each of these changes.

There are three major proposed changes to the scope of the bassinet/cradle standard:

1. Specification that it is to cover products primarily used to provide sleeping accommodations. This expands the scope beyond products only used to provide sleeping accommodations.

2. Products with an incline of 10 degrees or less would be included, while products with a greater than 10 degree incline would not. ASTM and CPSC have developed this demarcation across product standards to help ensure complete coverage of sleep products. This would include cradle swings which, by definition, recline less than 10 degrees from horizontal.

3. Specification that it includes products that can be supported by a stationary frame/stand. This would bring in carriage attachments to strollers and Moses baskets only when used with a stationary or rocking stand.

These scope changes may affect suppliers in several ways. First, they would provide additional clarity to suppliers regarding which products would be covered under what standards. Reduced confusion means less time reviewing, testing, and making necessary modifications. Second, “cradle swings,” defined by the infant swings standard, F2088-11a, as an infant swing intended for use by a child lying flat ( i.e., horizontal), would be covered under both the bassinet standard and the infant swings standard. The Commission believes that cradle swings currently on the market should be able to meet the proposed standard for bassinets without additional modifications. Third, Moses baskets and carriage attachments to strollers would now be subject to the bassinet/cradle standard when used in conjunction with a separate stand. However, this would apply only to Moses baskets and carriages that are produced and sold by the same company that makes the stand, and therefore, are intended to be used together. Firms that supply bassinet/cradle stands, as well as either Moses baskets or carriage attachments for strollers, would need to ensure that their Moses baskets and/or carriage attachments meet the bassinet/cradle standard when attached to the stand(s). This would likely require some redesign, most notably to meet the side height and stability requirements, and it would affect 10 known firms. Alternatively, they could stop supplying the stands.

Because bassinets and cradles are intended to be used by very young children, it is appropriate that the smaller newborn CAMI dummy be used for stability testing. The heavier (17.5 pound) infant CAMI currently used for stability testing in F2194-12 could make these products more stable when tested than they actually would be in a real-world situation. Based on preliminary Commission testing, it appears that most bassinet/cradles will be able to pass this revised test procedure without modification. However, at least one product failed stability testing with the newborn CAMI and passed with the infant CAMI. It is possible that a few products may require modifications to meet the revised stability test procedure. It is likely to affect only a few manufacturers, but it is unlikely to require product redesign. Affected firms would most likely increase the stability of their product by widening the structure, making the bassinet bed deeper, or making the base heavier. If meeting the modified requirement necessitates a change to the hard tools used to manufacture the bassinet, the cost could be more significant.

The Commission is proposing the addition of a mattress flatness requirement and test method to the standard, as well. The mattress flatness requirement is primarily aimed at incidents involving bassinet/play yard combination products that tend to use segmented mattresses. These incidents suggest that products with mattresses that have multiple seams could pose a suffocation hazard. Based on Commission testing, it appears that the play yard bassinet attachments of many suppliers (both compliant and noncompliant with F2194-10) would pass this requirement without any modifications. Those that do require modifications would need to increase the mattress support in their bassinets. This could be accomplished, for example, by retrofitting their play yard bassinets to use longer rods or a better-fitting mattress shell. The cost of such a retrofit is unknown and would likely vary from product to product; however, it should be less expensive than a product redesign. Based on this information, it appears that at least a few play yard bassinets may require modifications, which could include product redesign. However, it is believed that most firms would opt for the less expensive option of retrofitting their existing designs.

Finally, the Commission proposes adding a new requirement and test method to address the attachment of removable bassinet beds. There are several manufacturers with bassinet designs that allow for the bassinet bed to be removed from the stand easily ( i.e., without the use of tools) and used separately. In many cases, the bassinet bed sits securely on the stand without any attachment mechanism. In other cases, clips or locks may be used to ensure that the stand retains the bassinet bed during use. Incidents have arisen where the attachments have either failed or have not been used, rendering the bassinet bed unstable. Therefore, CPSC, in conjunction with an ASTM task group, has developed a requirement and test methods to address the potential instability of some removable bassinet beds when used with a stand.

There are several firms supplying bassinets with removable bassinet beds to the U.S. market. The majority will not need modifications to meet the proposed requirement. However, at least four firms will need to make changes to one or more of their bassinets. Essentially, the products will need to be modified so that they are either inherently stable (automatically lock or stable even without the locks) or obviously unstable (unsupportable or obviously tilted without locks or a visual indicator that locks not in use). There are numerous ways that firms could meet this new requirement if their product(s) required modification, including redesigning the product entirely. However, it seems likely that many firms would opt for less expensive alternatives, such as more sensitive locks that activate with little pressure ( i.e., with just the weight of the bassinet).

The Commission is in the process of implementing sections 14(a)(2) and 14(i)(2) of the Consumer Product Safety Act (CPSA), as amended by the CPSIA. Section 14(a)(2) of the CPSA requires every manufacturer of a children's product that is subject to a children's product safety rule to certify, based on third party testing, that the product complies with all applicable safety rules. Section 14(i)(2) of the CPSA requires the Commission to establish protocols and standards (i) for ensuring that a children's product is tested periodically and when there has been a material change in the product, (ii) for the testing of representative samples to ensure continued compliance, (iii) for verifying that a product tested by a conformity assessment body complies with applicable safety rules, and (iv) for safeguarding against the exercise of undue influence on a conformity assessment body by a manufacturer or private labeler.

Because bassinets/cradles will be subject to a mandatory standard, they will also be subject to the third party testing requirements of section 14(a)(2) of the CPSA when the mandatory standard and the notice of requirements become effective.

There are approximately 55 firms currently known to be marketing bassinets and/or cradles in the United States. Under U.S. Small Business Administration (SBA) guidelines, a manufacturer of bassinets or cradles is small if it has 500 or fewer employees, and importers and wholesalers are considered small if they have 100 or fewer employees. Based on these guidelines, 38 are small firms—19 domestic manufacturers, 8 domestic importers, and 11 firms with unknown supply sources (including 9 specializing in bedding). The remaining firms are five large domestic manufacturers, three large domestic importers, three large retailers with unknown supply sources, and six foreign firms. There may be additional unknown small bassinet/cradle suppliers operating in the U.S. market.

Small manufacturers. The expected impact of the proposed standard on small manufacturers will differ based on whether their bassinets/cradles are already compliant with F2194-10. Firms whose bassinets and cradles meet the requirements of F2194-10 are likely to continue to comply with the voluntary standard as new versions are published. In addition, they are likely to meet any new standard within 6 months because this is the amount of time JPMA allows for products in their certification program to shift to a new standard. Many of these firms are active in the ASTM standard development process, and compliance with the voluntary standard is part of an established business practice. Therefore, it is likely that firms supplying bassinets and cradles that comply with ASTM F2194-10 (which went into effect for JPMA certification purposes in November 2010) would also likely comply with F2194-12 by January 2013, even in the absence of a mandatory standard.

It is possible that the direct impact for manufacturers whose products are likely to meet the requirements of ASTM F2194-12 (10 of 19 firms) could be significant for one or more firms if they must redesign their bassinets to meet the proposed rule. While none of these manufacturers would be newly covered due to the proposed change in scope, seven would be affected by the mattress flatness requirement ( i.e., they produce play yards with bassinet attachments), and at least two (and possibly four) may be affected by the removable bassinet bed stability requirement. For the most part, the bassinets/cradles and bassinet cradle attachments supplied by these firms will be able to meet the staff-recommended changes to ASTM F2194-12, without modification. In cases where modifications are necessary, they would most likely opt to retrofit their products, rather than undertake an expensive redesign. However, it is possible that some products may require redesign, particularly to meet the new removable bassinet bed stability requirement; therefore, costs could be significant in some cases.

Meeting ASTM F2194-12's requirements could necessitate product redesign for at least some bassinets/cradles that are believed not to be compliant with F2194-10 (9 of 19 firms). Two of these firms produce either Moses baskets or carriage stroller attachments along with separate stands, and therefore, they are included only because of the proposed change in scope. (Since no Moses baskets or carriage attachments for strollers are currently tested to the ASTM bassinets/cradles standard, it is assumed that none would meet ASTM F2194-12 without modifications). The remaining seven firms could require redesign, regardless of the staff-recommended modifications. A redesign would be minor if most of the changes involve adding straps and fasteners or using different mesh or fabric, but it could be more significant if changes to the frame are required, including changes to side height. One manufacturer estimated that a complete play yard redesign, including engineering time, prototype development, tooling, and other incidental costs, would cost approximately $500,000. The Commission believes that a bassinet redesign would tend to be comparable. Consequently, the proposed rule could potentially have a significant direct impact on small manufacturers whose products do not conform to F2194-10. However, any direct impact might be mitigated if costs are treated as new product expenses that can be amortized.

It is possible that some firms supply bassinets/cradles that are compliant with F2194-10, even though they are not certified or marketed as compliant. The Commission has identified many such cases with other products. To the extent that some of these firms may supply compliant bassinets/cradles and have developed a pattern of compliance with the voluntary standard, the direct impact of the proposed standard will be less significant than described above. There are also two small firms with unknown supply sources, none of which appear to comply with F2194-10 (one is covered by the proposed rule due to the expanded scope). If these firms are manufacturers, they may also require redesign to meet the proposed standard.

In addition to the direct impact of the proposed standard described above, there are indirect impacts. These impacts are considered indirect because they do not arise directly as a consequence of the bassinet/cradle rule's requirements. Nonetheless, they could be significant. Once the rule becomes final and the notice of requirements is in effect, all manufacturers will be subject to the additional costs associated with the third party testing and certification requirements. This will include any physical and mechanical test requirements specified in the final rule; lead and phthalates testing is already required, and hence, not included here. 1

One manufacturer estimated that testing to the ASTM voluntary standard runs around $1,000 per model sample, although they noted that the costs could be lower for some models where the primary difference is fabric rather than structure. Testing overseas could potentially reduce some testing costs, but this may not always be practical.

On average, each small domestic manufacturer supplies eight different models of bassinets/cradles and/or play yards with bassinet/cradle accessories to the U.S. market annually. Therefore, if third party testing were conducted every year on a single sample for each model, third party testing costs for each manufacturer would be about $8,000 annually. Based on a review of firm revenues, the impact of third party testing to ASTM F2194-12 is unlikely to be significant if only one bassinet/cradle sample per model is required. However, if more than one sample would be needed to meet the testing requirements, third party testing costs could have a significant impact on a few of the small manufacturers.

As with manufacturers of compliant bassinets/cradles, the four small importers of bassinets/cradles currently in compliance with F2194-10 could experience significant direct impacts as a result of the proposed rule, if product redesign is necessary. In the absence of regulation, these firms would likely continue to comply with the voluntary standard as it evolves and likely the final mandatory standard as well. Any increase in production costs experienced by their suppliers may be passed on to them.

Importers of bassinets/cradles would need to find an alternate source if their existing supplier does not come into compliance with the requirements of the proposed rule, which may be the case with the four importers of bassinets/cradles believed not to be in compliance with F2194-10 (two of which are covered by the proposed rule due to the expanded scope). Some could respond to the rule by discontinuing the import of their noncompliant bassinets/cradles, possibly discontinuing the product line altogether. However, the impact of such a decision could be mitigated by replacing the noncompliant bassinets/cradles with compliant bassinets/cradles. Deciding to import an alternative product would be a reasonable and realistic way to offset any lost revenue.

As is the case with manufacturers, all importers will be subject to third party testing and certification requirements, and consequently, they will experience costs similar to those for manufacturers if their supplying foreign firm(s) does not perform third party testing. The resulting costs could have a significant impact on a few small importers who must perform the testing themselves if more than one sample per model were required.

Bedding Suppliers. There are nine known small firms specializing in the supply of bedding, including bedding for bassinets and cradles. Each firm sells basic bassinet or cradle shells, covered with their bassinet and cradle bedding. While it is clear that these firms do not manufacture the structural parts of the bassinets or cradles themselves, it is unclear whether they purchase them domestically or overseas. Regardless, these firms will be affected by the proposed rule in a manner similar to importers.

Because none of these firms is believed to supply bassinets or cradles in compliance with F2194-10, they would need to find an alternate source if their existing supplier does not come into compliance with the requirements of the proposed rule. Unlike most importers, however, they would not have the option of replacing a noncompliant bassinet/cradle with another product. While they could opt to sell the bedding without the associated bassinet/cradle, this is the standard method of sale, and it might make it more difficult to compete in the bassinet/cradle market.

As with manufacturers and importers, these firms will also be subject to third party testing and certification requirements, and they will experience costs similar to those for manufacturers if their supplying firm(s) does not perform third party testing. The resulting costs could have a significant impact on some of these small bassinet/cradle suppliers who must perform the testing themselves.

Under the Danny Keysar Child Product Safety Notification Act, section 104 of the CPSIA, one alternative that would reduce the impact on small entities is to make the voluntary standard mandatory with no modifications. Doing so would eliminate the impact on the six small firms that would be newly covered under the bassinet/cradle standard due to the proposed change in scope. These firms all supply Moses baskets or carriages, along with stationary stands; the Commission believes that these products require additional safety features when used for sleeping purposes. Adopting the voluntary standard without modifications could also reduce the impact on other small manufacturers and importers whose ASTM-compliant bassinets/cradles would require modifications due to the proposed changes. However, because of the severity of the incidents associated with instability and mattress tilt, the Commission does not recommend this alternative.

A second alternative would be to set an effective date later than the proposed 6 months that is generally considered sufficient time for suppliers to come into compliance with a proposed rule. Setting a later effective date would allow suppliers additional time to modify and/or develop compliant bassinets/cradles and spread the associated costs over a longer period of time.

The Commission invites comments describing the possible impact of this rule on manufacturers and importers, as well as comments containing other information describing how this rule will affect small businesses.

The Commission's regulations address whether we are required to prepare an environmental assessment or an environmental impact statement. If our rule has “little or no potential for affecting the human environment” it will be categorically exempted from this requirement. 16 CFR 1021.5(c)(1). The proposed rule falls within the categorical exemption.

This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In this document, pursuant to 44 U.S.C. 3507(a)(1)(D), we set forth:

• A title for the collection of information;

• A summary of the collection of information;

• A brief description of the need for the information and the proposed use of the information;

• A description of the likely respondents and proposed frequency of response to the collection of information;

• An estimate of the burden that shall result from the collection of information; and

• Notice that comments may be submitted to the OMB.

Title: Safety Standard for Bassinets and Cradles.

Description: The proposed rule would require each bassinet and cradle to comply with ASTM F 2194-12, “Standard Consumer Safety Specification for Bassinets and Cradles.” Sections 8 and 9 of ASTM F 2194-12 contain requirements for marking, labeling, and instructional literature. These requirements fall within the definition of “collection of information,” as defined in 44 U.S.C. 3502(3).

Description of Respondents: Persons who manufacture or import bassinets/cradles.

Estimated Burden: We estimate the burden of this collection of information as follows:

Our estimates are based on the following:

Section 8.1.1 of ASTM F 2194-12 requires that the name of the manufacturer, distributor, or seller and either the place of business (city, state, and mailing address, including zip code) or telephone number, or both, be marked clearly and legibly on each product and its retail package. Section 8.1.2 of ASTM F 2194-12 requires a code mark or other means that identifies the date (month and year, at a minimum) of manufacture.

There are 55 known entities supplying bassinets to the U.S. market. All 55 firms are assumed to use labels already on both their products and their packaging, but they might need to make some modifications to their existing labels. The estimated time required to make these modifications is about 1 hour per model. Each entity supplies an average of eight different models of bassinets; therefore, the estimated burden associated with labels is 1 hour per model × 55 entities × 5 models per entity = 275 hours. We estimate the hourly compensation for the time required to create and update labels is $27.55 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2012, Table 9, total compensation for all sales and office workers in goods-producing private industries: http://www.bls.gov/ncs/ ). Therefore, the estimated annual cost to industry associated with the labeling requirements is $7,576.25 ($27.55 per hour × 275 hours = $7,576.25). There are no operating, maintenance, or capital costs associated with the collection.

Section 9.1 of ASTM F2194-12 requires instructions to be supplied with the product. Bassinets and cradles are products that generally require assembly, and products sold without such information would not be able to compete successfully with products supplying this information. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the “normal course of their activities” are excluded from a burden estimate, where an agency demonstrates that the disclosure activities required to comply are “usual and customary.” Therefore, because we are unaware of bassinets or cradles that generally require some installation, but lack any instructions to the user about such installation, we tentatively estimate that there are no burden hours associated with section 9.1 of ASTM F2194-12 because any burden associated with supplying instructions with bassinets and cradles would be “usual and customary” and not within the definition of “burden” under the OMB's regulations.

Based on this analysis, the proposed standard for bassinets would impose a burden to industry of 275 hours at a cost of $7,576.25 annually.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. § 3507(d)), we have submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments regarding information collection by November 19, 2012, to the Office of Information and Regulatory Affairs, OMB (see the ADDRESSES section at the beginning of this notice).

Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:

• Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility;

• The accuracy of the CPSC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Ways to enhance the quality, utility, and clarity of the information to be collected;

• Ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and

• The estimated burden hours associated with label modification, including any alternative estimates.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury, unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules,” thus implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 104 of the CPSIA will invoke the preemptive effect of section 26(a) of the CPSA when it becomes effective.

Section 14(a) of the CPSA imposes the requirement that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Section 14(a)(2) of the CPSA requires that certification of children's products subject to a children's product safety rule be based on testing conducted by a CPSC-accepted third party conformity assessment body. Section 14(a)(3) of the CPSA requires the Commission to publish a notice of requirements (NOR) for the accreditation of third party conformity assessment bodies (or laboratories) to assess conformity with a children's product safety rule to which a children's product is subject. The proposed rule for 16 CFR part 1218, “Safety Standard for Bassinets and Cradles,” when issued as a final rule, will be a children's product safety rule that requires the issuance of an NOR.

On May 24, 2012, the Commission published in the Federal Register the proposed rule, Requirements Pertaining to Third Party Conformity Assessment Bodies, 77 FR 331086, which, when finalized, would establish the general requirements and criteria concerning testing laboratories. These include the requirements and procedures for CPSC acceptance of the accreditation of a laboratory to test children's products in support of the certification required by section 14(a)(2) of the CPSA. The proposed rule at 16 CFR part 1112, Requirements Pertaining to Third Party Conformity Assessment Bodies, lists the children's product safety rules for which the CPSC has published NORs for laboratories. In this document, the Commission is proposing to amend the list in 16 CFR part 1112, once that rule becomes final, to include the bassinet standard, once finalized, along with the other children's product safety rules for which the CPSC has issued NORs.

Laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test to the new standard for bassinets and cradles would be required to meet the third party conformity assessment body accreditation requirements in 16 CFR part 1112, Requirements Pertaining to Third Party Conformity Assessment Bodies, once that rule becomes final. When a laboratory meets the requirements as a CPSC-accepted third party conformity assessment body it can apply to the CPSC to have 16 CFR part 1218, Safety Standard for Bassinets and Cradles included in its scope of accreditation of CPSC safety rules listed for the laboratory on the CPSC Web site at www.cpsc.gov/labsearch.

The final NOR will base the CPSC laboratory accreditation requirements on the performance standard set forth in the final rule for the safety standard for bassinets and cradles and the test methods incorporated within that standard. The Commission may recognize limited circumstances in which the Commission will accept certification based on product testing conducted before the Commission's acceptance of accreditation of laboratories for testing bassinets and cradles (also known as retrospective testing) in the final NOR. The Commission seeks comments on any issues regarding the testing requirements of the proposed rule for bassinets and cradles and the accompanying proposed NOR.

This proposed rule is part of a rulemaking proceeding under section 104(b) of the CPSIA to issue a consumer product safety standard for bassinets and cradles. We invite all interested persons to submit comments on any aspect of the proposed rule. In particular, the Commission invites comments regarding the reliability of proposed 16 CFR 1218.2(b)(7)(ii)(C) (allowing the option of making the sleep surface of the bassinet bed at least 20 degrees off from a horizontal plane when the bassinet bed is in an unlocked position as a means of meeting the stability requirement) with respect to notifying consumers that the bassinet bed is dangerously unstable as opposed to intentionally designed to rest at an angle. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this notice.

For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations Chapter II as follows:

On September 10, 2012, the Coast Guard published a notice of proposed rulemaking (NPRM) (77 FR 55439) which proposes to revise certain Vessel Traffic Service (VTS) regulations in 33 CFR part 161. The proposed revisions include adding the Maritime Mobile Service Identifiers (MMSI) for Louisville and Los Angeles/Long Beach.

In the Regulatory Analysis of the NPRM, we said that we do not expect these revisions to result in additional costs to the public or industry (77 FR 55441). After publication of that NPRM, however, the Coast Guard realized that revising Table 161.12(c) for the purpose of adding an MMSI number for VTS Louisville and Los Angeles/Long Beach would impose Automatic Identification System (AIS) equipment costs for owners and operators of the vessel type identified in § 164.46(a)(3) and that operate in either of these two VTS areas. That action was not intended, and is the subject of a separate rulemaking project. 1

Although the Coast Guard highly encourages the use of AIS in U.S. navigable waters, it was not the Coast Guard's intention, through this proposed rulemaking, to apply the AIS carriage requirements that are set forth in § 164.46 to vessels operating within VTS Louisville and Los Angeles/Long Beach waters. Currently, under existing Part 161, Note 1 to Table 161.12(c), the AIS broadcast and carriage requirements set forth in §§ 161.21 and 164.46 apply to each VTS location identified in Table 161.12(c) that are denoted with an MMSI number. Because the addition of VTS Louisville's and Los Angeles/Long Beach MMSI numbers to Table 161.12(c) would inadvertently impose AIS carriage requirements to certain categories of vessels operating in these VTS areas, the Coast Guard is making a conforming correction to Note 1 to Table 161.12(c) by adding, at the end of Note 1, the words “except for Louisville and Los Angeles/Long Beach.”

The following correction is issued based on authority under 33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70119; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The proposed regulatory text of the notice of proposed rulemaking entitled “Vessel Traffic Service Updates, Including Establishment of Vessel Traffic Service Requirements for Port Arthur, TX and Expansion of VTS Special Operating Area in Puget Sound,” published September 10, 2012, is corrected as follows:

Table of Contents for Supplementary Information I. Executive Summary II. Statutory Background III. History of the U.S. DOT National Highway-Rail Crossing Inventory Program IV. Proposed Revisions to Inventory Guide and Inventory Form V. Section-by-Section Analysis VI. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Privacy Act I. Executive Summary

FRA is proposing amendments to 49 CFR Part 234 which would require railroads to submit information to the U.S. DOT National Highway-Rail Crossing Inventory (Crossing Inventory) about both public and private highway-rail crossings and pathway crossings over which they operate. These proposed amendments are intended to further FRA's efforts to improve existing data on the characteristics of the Nation's public, private, and pathway crossings and are intended to implement section 204(a) of the RSIA. Consistent with the statute, FRA is proposing to require that railroads submit initial reports to the Crossing Inventory, including current information about warning devices and signage, for each previously unreported and new public and private highway-rail crossing and pathway crossing, and that railroads periodically update that information, including the submission of updated ownership information after the sale of a crossing.

FRA has estimated the costs of this rule, evaluated over a 20-year period and using a discount rate of 7 percent. For the 20-year period analyzed, the estimated quantified cost that would be imposed on industry totals $2.1 million with a present value (PV, 7 percent) of $1.5 million. FRA considered the industry costs associated with requiring railroads to establish and maintain an inventory for all public and private highway-rail crossings and pathway crossings. Many railroads have already implemented components of the proposed rule. FRA estimates that as many as 50 percent of all highway-rail crossings are currently updated in the Crossing Inventory. The requirements that are expected to impose the largest burdens relate to the collection of recent information and to the periodic update of the inventory.

The table below presents the estimated costs associated with the proposed rulemaking.

FRA anticipates that this rulemaking will increase the accuracy, precision, completeness, and utility of railroad records and will improve the Crossing Inventory. This would allow FRA to identify highway-rail crossings and pathway crossings not currently recorded in the existing voluntary crossing inventory. FRA believes that such clarification in the inventory would help offset costs associated with the rulemaking by simplifying the reporting process. FRA conducted a break-even analysis of the rule and believes that potential benefits from the proposal would likely equal or exceed total costs.

The proposed rule is intended specifically to implement Section 204(a) of RSIA, Public Law 110-432, Division A, which was enacted October 16, 2008, and generally to increase safety at highway-rail crossings and pathway crossings. See 49 U.S.C. 20160. (National crossing inventory). Section 20160 of title 49 of the United States Code (Section 20160) requires the Secretary of Transportation (Secretary) to establish reporting requirements for railroad carriers related to public and private highway-rail grade crossings and pathway crossings. Specifically, Section 20160 mandates that the Secretary issue regulations requiring railroad carriers to report certain information, including current information about warning devices and signage, related to new and previously unreported public, private, and pathway crossings to the Crossing Inventory. In addition, Section 20160 mandates that the Secretary issue regulations requiring railroad carriers to periodically update certain information submitted to the Secretary about public, private, and pathway crossings through which they operate or public, private, and pathway crossings that are located on trackage over which they operate. In accordance with Section 20160, additional updates would also be required, pursuant to such regulations, whenever a railroad carrier sells all, or a portion of, a public, private, or pathway crossing. However, until these implementing regulations are issued, Section 20160 provides that the Secretary may enforce the Crossing Inventory policy, procedures, and instructions that were in effect on October 16, 2008. The Secretary delegated the responsibility for carrying out the mandates of Section 20160 to the FRA Administrator. 49 CFR 1.49(oo).

In August 1972, the U.S. Department of Transportation (DOT) submitted a Report to Congress entitled, “ Railroad- Highway Safety Part II: Recommendations for Resolving the Problem.” The primary goal of this report was to provide recommendations for actions that would lead to a significant reduction in accidents, fatalities, personal injuries, and property damage at highway-rail crossings. In this Report to Congress, DOT recommended the establishment of an information system consisting of a national database of all highway-rail crossings in the Nation. Although various local, State, and Federal agencies had collected and maintained information about highway-rail crossings, most information systems or databases were fragmented and incomplete because all information was submitted on a voluntary basis. However, site-specific information was needed to provide for a systematic approach for the planning and evaluation of highway-rail crossing safety improvement programs at both the State and Federal level.

Therefore, DOT recommended that the FRA: (1) Issue requirements for the railroads to assign and display identification numbers at all highway-rail crossings based on a uniform national standard to be prescribed by DOT, (2) arrange with the railroads to provide site-specific inventory data for all crossings on their respective lines, and (3) update the inventory periodically by following the procedures and standards established jointly by FRA and the Federal Highway Administration (FHWA) in conjunction with railroad and State representatives.

In accordance with these recommendations, the Crossing Inventory was developed in the early 1970s through the cooperative efforts of FHWA, FRA, the Association of American Railroads, individual States, and individual railroads. Each highway-rail crossing was surveyed—public and private, grade-separated and at-grade—and data was recorded on an inventory form. The resulting inventory contained data on the location of the crossing, the amount and type of highway and train traffic, traffic control devices, and other physical elements of the crossing.

As a result of these efforts, the Crossing Inventory has become a national database of highway-rail crossings, both at-grade and grade-separated, that is used by railroads, States, and others to obtain information about the physical and operating characteristics of individual crossings. The Crossing Inventory is intended to provide a uniform inventory database which can be merged with highway-rail crossing collision files and used to analyze information for planning and implementation of crossing improvement programs by public and private agencies responsible for highway-rail crossing safety, as well as the railroad industry and academia. However, in order for the Crossing Inventory to serve as an effective database, States and railroads need to exchange information with each other and promptly update the crossing data records as changes occur. Therefore, FRA has historically acted as a clearinghouse for the exchange of crossing data between these entities.

The Crossing Inventory receives information from individual railroads and States to form a composite record for each crossing. This composite record has many purposes, as it can be used to predict the likelihood of an accident at a specific crossing. Armed with this information, States, law enforcement organizations, the Federal Government, and others can focus their efforts on crossings that have a high risk of collisions and implement measures, such as improved warning systems, enhanced enforcement, and community awareness.

As with any information system from which decisions are made, the incorporation of accurate and timely data into the Crossing Inventory is key. If the data is suspect, then verification is usually required before resources may be committed. Verification requires additional resources and may delay the implementation of improvements that could reduce the probability of a collision. Therefore, an instructions and procedures manual (commonly referred to as the “Inventory Guide”) was issued and then revised over the years, as changes were made to the inventory form, in order to establish procedures for submitting data to the Crossing Inventory.

As part of this rulemaking, FRA proposes to make certain revisions to the existing Inventory Guide and to the existing Form FRA F 6180.71, which is used to report data to the Crossing Inventory (and is commonly referred to as the “Inventory Form”). The Inventory Guide and the Inventory Form have been placed in the docket for public review. For example, FRA proposes to require railroads to complete the entire Inventory Form for previously unreported and new public crossings, in order to satisfy the legislative intent of Section 20160 to improve the Crossing Inventory by obtaining critical data for public crossings. Most of the remaining changes proposed have, however, resulted from ongoing discussions with Crossing Inventory subject matter experts representing a wide array of crossing safety stakeholders over several years. Nonetheless, FRA seeks comments on the draft revised Inventory Form (Draft Inventory Form) and draft revised Inventory Guide (Draft Guide), both of which have been placed in the docket, from all interested parties.

FRA proposes to pare down the Inventory Guide to focus primarily on providing instructions for completing the Inventory Form. With respect to the Draft Guide, FRA specifically seeks comment on the following items:

• With respect to the Instructions provided in the Header of the Draft Inventory Form, FRA seeks comment on whether the proposed Instructions are helpful and should be retained. It should be noted, however, that FRA intends to remove the incorrect mailing address that is provided in the proposed Instructions.

• With respect to item C in the Header of the Draft Inventory Form, Reason for Update, FRA seeks comment on whether railroads and States should be given the option to select more than one reason for submitting data to the Crossing Inventory. With respect to this item, FRA also seeks comment on whether a separate category should be retained for crossings that are located on an abandoned segment of track since the abandoned status of the underlying track segment may not necessarily determine whether the crossing is still in use.

• With respect to item D in the Header of the Draft Inventory Form, DOT Crossing Inventory Number, FRA seeks comment on whether the current practice of allowing railroads to assign a single Inventory Number to a group of crossings in a railroad yard or an area belonging to a private company, a port, or a dock area should be retained.

• With respect to items 17 and 18 in Part I of the Draft Inventory Form, box 17 (Crossing Type) has been revised by removing the category for pedestrian crossings, in order to draw a clear distinction between public and private crossings. However, box 18 (Crossing Purpose) has been added to the Draft Inventory Form, so that railroads and States can identify highway-rail crossings, pedestrian crossings located within railway stations and other pedestrian/pathway crossings. FRA seeks comment on the proposed change to box 17, and the addition of box 18, on the Draft Inventory Form.

• With respect to item 4 in Part II of the Draft Inventory Form, Type and Number of Tracks, FRA seeks comment on the definitions provided for the various types of track listed, including the definition for “spur/lead” track. Are spur/lead tracks generally used for storage purposes?

• With respect to item 5 in Part II of the Draft Inventory Form, Train Detection, FRA seeks comment on whether it would be advisable to collect data on the number of tracks that are equipped with the various types of train detection.

• With respect to item 2D in Part III of the Draft Inventory Form, Advance Warning Signs, FRA seeks comment on whether the Inventory Form should reflect the actual number of signs posted at the crossing, as opposed to the number of posts or masts bearing advance warning signs.

• With respect to the various types of train-activated warning devices listed in item 3 in Part III of the Draft Inventory Form, FRA seeks comment on whether railroads should be required to submit interim updates to the Crossing Inventory after implementation of one or more of each type of warning device.

• With respect to item 3A in Part III of the Draft Inventory Form, Gate Arms, FRA seeks comment from all interested parties on whether States should be assigned the responsibility for updating this data field.

• With respect to item 3D in Part III of the Draft Inventory Form, Post-Mounted Flashing Light Assemblies, FRA seeks comment on whether the Inventory Form should be revised to reflect the presence of side lights that might also have been installed on the post-mounted flashing light assemblies for the benefit of highway users on an approaching parallel roadway.

• With respect to item 3F in Part III of the Draft Inventory Form, Original Installation Date of Current Active Warning Devices, FRA seeks comment from all interested parties on whether the Crossing Inventory should collect data on the installation date of active warning devices that will be installed after the effective date of any regulation that may be issued through this rulemaking effort.

• With respect to item 2 in Part V of the Draft Inventory Form, Functional Classification of Road at Crossing, FRA seeks comment on whether the “Local Access” functional classification code should be changed to “Local”, in order to be consistent with the official functional classification codes that are contained in the FHWA's Highway Performance Monitoring System (HPMS) Manual.

• With respect to item 10 in Part V of the Draft Inventory Form, Regularly used by Hazmat Vehicles, FRA seeks comment on how to define “regular use” of crossings by vehicles transporting hazardous materials in commerce.

• With respect to item 11 in Part V of the Draft Inventory Form, Regular Emergency Services Route, FRA seeks comment on how the term “regular emergency services route” should be defined.

FRA proposes to expand part 234 to include a new subpart F, entitled: Highway-Rail Crossing Inventory Reporting. For this reason, FRA proposes to revise paragraph (a) of this section by including a reference to the proposed Crossing Inventory reporting and updating requirements for railroads.

This section contains proposed definitions of terms used in this subpart, listed alphabetically. Additional explanation for some of the proposed definitions is provided below.

“Class I” would have the meaning assigned by regulations of the Surface Transportation Board (STB), which may be found at 49 CFR part 1201, General Instructions 1-1, Classification of carriers. To ensure that the definition of “Class I” as used in this proposed subpart incorporates any changes that the STB may make after the publication of this subpart, this definition would include any revision to the regulations as applied by the STB, which would include modifications in the class threshold based on revenue deflator adjustments.

Consistent with Section 20160's definition of “crossing”, “highway-rail crossing” would be defined to mean the location where one or more railroad tracks intersect with a public highway, road, street, or private roadway, including associated sidewalks and pathways, either at-grade or grade-separated. For purposes of the Crossing Inventory, railroad tracks that lie within the same pair of crossing warning devices will be considered a single highway-rail crossing. For example, an intersection of a roadway with three tracks ( e.g., two mainline and one spur) where the mainline tracks are equipped with flashing lights and the spur track is equipped with crossbucks would be considered, for purposes of the Crossing Inventory, two crossings with two separate crossing inventory numbers. One highway-rail crossing would consist of the mainline tracks that lie between the flashing lights, while the other highway-rail crossing would consist of the spur track which is equipped with crossbucks.

“Operating railroad” would be defined to mean any railroad that operates one or more trains through a highway-rail crossing or pathway crossing. Thus, for purposes of this subpart, a railroad would be considered an operating railroad even if the railroad does not own the highway-rail crossing or pathway crossing through which it travels, or the railroad is not responsible for maintaining the warning devices at the highway-rail or pathway crossing. As this definition implies, there may be multiple operating railroads for a single highway-rail crossing or pathway crossing.

Consistent with Section 20160, a “pathway crossing” would be defined to mean a pathway that has all of the following characteristics: (1) Is explicitly authorized by a public authority or an operating railroad; (2) is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others; (3) is not associated with a public highway, road, or street, or a private roadway; and (4) that crosses one or more railroad tracks either at grade or grade-separated. However, an area where pedestrians trespass, even routinely, is not considered to be a pathway crossing.

Pathways that are contiguous with, or separate but adjacent to, highway-rail crossings are presumed to be part of the highway-rail crossing and are not considered separate crossings. However, pathways that are located at least 25 feet from the location where a highway, road, or street intersects with one or more railroad tracks are generally considered to be separate pathway crossings. Accordingly, separate Inventory Numbers should be assigned to such crossings. (The proposed rule defines “Inventory Number” as “the number assigned to a highway-rail crossing or pathway crossing in the Crossing Inventory”).

“Primary operating railroad” would be defined to mean the operating railroad responsible for submitting data to, and/or updating data in, the Crossing Inventory for a particular highway-rail crossing or pathway crossing. Generally, the primary operating railroad would be the operating railroad that owns the highway-rail crossing (or pathway crossing) or maintains the warning devices at the highway-rail crossing (or pathway crossing). In the event that there is more than one operating railroad that owns the highway-rail crossing (or pathway crossing) or maintains the warning devices at the highway-rail crossing (or pathway crossing), the largest operating railroad with the most rail traffic over the crossing at issue should accept the primary operating railroad designation. Absent an agreement between or among operating railroads delineating each railroad's respective reporting and/or updating responsibilities pursuant to the requirements set forth in proposed § 234.405, FRA proposes to hold each operating railroad liable for the reporting and updating requirements set forth in this subpart.

“Private crossing” would be defined to mean a highway-rail crossing that is not a public crossing. Therefore, private crossings would include intersections of roadways and railroads that are not open to public travel or not maintained by a public authority. Typical types of private crossings include farm crossings, industrial plant crossings, and residential access crossings.

“Public crossing” would be defined to mean a highway-rail crossing where the roadway is under the jurisdiction of and maintained by a public authority and open to public travel. All roadway approaches must be under the jurisdiction of the public roadway authority and no roadway approach may be on private property. FRA acknowledges that this proposed definition contains different criteria for determining the public nature of a highway-rail crossing than the existing definition of “public highway-rail grade crossing”, contained in 49 CFR part 222 related to the use of locomotive horns and quiet zones. However, this proposed definition is consistent with the definition of the term “public grade crossing” in 23 CFR 924.3, which is widely used by States for Highway Safety Improvement Program planning and funding purposes. Based on the generally accepted usage of this definition by States, FRA believes it is logical to use this definition for Crossing Inventory reporting purposes as well.

With respect to crossings in States where a State agency (such as a State Department of Transportation, State Highway Department, Public Utility Commission, or State Commerce Commission) has been empowered to make determinations as to whether individual crossings are public or private, the determinations of that State agency will govern the public/private classification of highway-rail crossings in the State for purposes of the Crossing Inventory.

“Temporary crossing” would be defined to mean a highway-rail crossing created to serve a specific activity for a temporary time period not to exceed six months. For example, highway-rail crossings that provide access to construction sites would fall into this category. Given their temporary nature, Inventory Numbers are not assigned to temporary crossings and FRA is not proposing to require railroads to report such crossings to the Crossing Inventory.

Proposed paragraph (a) of this section would require use of the Inventory Form to submit data to the Crossing Inventory, in accordance with the requirements of proposed § 234.405. Prior to the effective date of this subpart, FRA will continue to accept hard copy submissions of the current Inventory Form from all railroads and States. However, as of the effective date of any final rule issued as a result of this rulemaking effort, FRA proposes to allow only Class II and Class III railroads, as well as States, to either use the Draft Inventory Form (a draft form has been placed in the docket for review and comment) or to submit data electronically to the Crossing Inventory. Proposed instructions for submitting hard copies of the Inventory Form can be found in the Draft Guide, while proposed instructions for submitting data electronically to the Crossing Inventory can be found in the draft Electronic Submission Instructions. The Draft Guide and the draft Electronic Submission Instructions have been placed in the public docket for this rulemaking. FRA seeks comment on the content of both of these documents.

As explained in the Draft Guide, FRA intends to discontinue use of the GX32 software program for submitting electronic data to the Crossing Inventory. FRA proposes to replace the GX32 software program with a secure web-based application. FRA also proposes to allow railroads and states to use multiple submission formats (.xml, .mdb, .xls, and .xlsx), in addition to the web-based application. (Please refer to the draft Electronic Submission Instructions that have been placed in the public docket for more information.) Since FRA proposes to require that Class I railroads submit crossing data to the Crossing Inventory electronically, Class I railroads would need to make the necessary adjustments to their existing electronic data systems in order to facilitate compatibility with the proposed electronic file formats and data specifications contained in the draft Electronic Submission Instructions. Therefore, FRA intends to hold a technical symposium during this NPRM's comment period for all interested parties, particularly those involved in the technical aspects of the actual electronic submission of data to the Crossing Inventory, to discuss the technical implications of using only these formats (.xml, .mdb, .xls, and .xlsx). FRA will publish a separate notice in the Federal Register providing the logistics of such a meeting once the details are finalized. The proposed changes include changes to the content of the form (new field and expanded codes) and to the specified type of file allowed for submission.

Proposed paragraph (b) of this section would require completion of the Inventory Form, in accordance with the instructions contained within the Draft Guide. As explained in the Draft Guide, one Inventory Form should be submitted to the Crossing Inventory for each public, private or pathway crossing. The Draft Guide contains exceptions to this general rule related to crossings located in railroad yards or areas belonging to private companies, ports, or dock areas and crossings located within railroad stations. Where there is more than one crossing in a railroad yard or a private railroad yard belonging to a private company, a port, or a dock area, the primary operating railroad may choose to submit one Inventory Form that would assign one Inventory Number to all (or a group) of the crossings within the private property limits. Alternatively, the primary operating railroad may submit one Inventory Form that would assign one Inventory Number to each individual crossing located within private property limits. (See Draft Guide discussion of item D in the Header of the Draft Inventory Form, DOT Crossing Inventory Number.) FRA believes this approach is consistent with current generally accepted practice in the industry, but seeks comment on whether this exception should be retained, as the decision to assign one Inventory Number to a group of crossings instead of a single crossing cannot be revised once the Inventory Number has been assigned.

The Draft Guide contains a similar exception for multiple pathway crossings that are contained within a railroad station. Therefore, the primary operating railroad may choose to submit one Inventory Form that would assign one Inventory Number to all (or a group) of the pathway crossings at a railway station. Alternately, the primary operating railroad may submit one Inventory Form that would assign one Inventory Number to each individual pathway crossing located within a railroad station. FRA also seeks comment on this proposed exception.

Paragraph (c) proposes to require Class I railroads to submit all crossing data to the Crossing Inventory electronically. Since most Class I railroads already submit crossing data to the Crossing Inventory electronically, FRA does not believe that this proposed requirement would be unduly burdensome. In accordance with paragraph (a) of this section, Class II and Class III railroads, as well as States, may choose to submit their crossing data to the Crossing Inventory electronically or submit hard copies of the Inventory Form. An explanation of the proposed file formats and data specifications can be found in the draft Electronic Submission Instructions, a copy of which has been placed in the docket for review and comment by all interested parties. FRA seeks comment as to whether additional railroads should be required to submit crossing data to the Crossing Inventory electronically.

As noted above, FRA intends to discontinue use of the GX32 software product, which currently allows States and railroads to submit revised data to the Crossing Inventory electronically through use of a computer disk or the Internet. FRA intends to discontinue use of the GX32 software and replace it with a secure web-based application that provides similar functionality, yet facilitates instantaneous updates to crossing data. Therefore, any pending changes using GX32 software would need to be submitted prior to implementation of the web-based system. FRA also intends to transition the official Crossing Inventory database to the new web-based application. Therefore, railroads that are currently using the GX32 software product to submit crossing data electronically to the Crossing Inventory or who are submitting data electronically via other means would be required to make adjustments to their existing electronic data systems to ensure such systems will work with the revised Crossing Inventory database. Accordingly, FRA seeks comment as to the feasibility of Class I railroads being able to make the necessary adjustments to their existing electronic data systems (or to develop new electronic data systems) that would allow for compliance with the draft Electronic Submission Instructions, as well as compliance with the timeframes proposed in § 234.405 for reporting previously unreported and new highway-rail crossings and pathway crossings.

As noted above, FRA intends to hold a technical symposium during this NPRM's comment period for all interested parties, particularly those involved in the actual electronic submission of data to the Crossing Inventory, to discuss the technical implications of using only certain specified submission formats (.xml, .mdb, .xls, and .xlsx). FRA will publish a separate notice in the Federal Register providing the logistics of such a meeting once the details are finalized.

Proposed paragraph (a) of this section would require the submission of data to the Crossing Inventory for previously unreported crossings. Specifically, proposed paragraph (a)(1) is intended to implement paragraph (a)(1) of Section 20160, which requires railroad carriers to report to the Secretary “current information, including information about warning devices and signage * * * concerning each previously unreported crossing through which it operates or with respect to the trackage over which it operates.” Proposed paragraph (a)(1) would require that each primary operating railroad submit a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory, in accordance with proposed § 234.403, for each previously unreported public, private, and pathway crossing through which it operates no later than six months after the effective date of any final rule implementing this requirement. This requirement would apply to previously unreported at-grade and grade-separated crossings, but would not apply to temporary crossings. For purposes of proposed paragraph (a) of this section, “previously unreported” crossings would be public, private, and pathway crossings that have not been reported to the Crossing Inventory as of the effective date of any final rule implementing this requirement.

Proposed paragraph (a)(1) would further require that the completed Inventory Form (or its electronic equivalent) reference the assigned Inventory Number for the crossing. If the primary operating railroad does not already have an Inventory Number that can be assigned to a previously unreported crossing, an Inventory Number will need to be obtained for the crossing. Instructions for obtaining an Inventory Number can be found in the Draft Guide. Once an Inventory Number has been placed on an Inventory Form (or its electronic equivalent) and submitted to the Crossing Inventory, the Inventory Number will be permanently assigned to the crossing.

Historically, since submission of crossing information to the Crossing Inventory was voluntary, the primary operating railroad would submit a partially completed copy of the Inventory Form to the applicable State authority, so that the State authority could provide the remaining data and submit the completed Inventory Form to the Crossing Inventory for processing. Given existing constraints on the scope of FRA's statutory authority, this NPRM does not propose to require States to submit crossing information to the Crossing Inventory. While FRA would encourage State agencies to participate fully in the submission of updated information to the Crossing Inventory, FRA has refrained from proposing regulatory language that would require railroads to submit copies of their Inventory Forms to the applicable State authorities for completion. However, this proposed rule would require railroads to complete data fields on the Inventory Form that have historically been completed by State authorities for each previously unreported public highway-rail at-grade crossing in order to satisfy the legislative intent of Section 20160 to improve the Crossing Inventory by obtaining critical data for public crossings. FRA expects that railroads will seek input from State authorities with respect to certain data fields. FRA seeks comment on this proposal.

Therefore, as stated in proposed paragraph (a) of this section, as well as the Draft Guide, railroads would be required to obtain Inventory Numbers from FRA and to assign a specific Inventory Number to each previously unreported public, private, or pathway crossing (unless the proposed exception for multiple crossings located in railroad yards, within railway stations, or areas belonging to private companies, ports, or dock areas would be applicable). Railroads would then be required to provide information for all of the data fields on the Inventory Form for each previously unreported public highway-rail at-grade crossing and to submit the completed Inventory Form (or its electronic equivalent) to the Crossing Inventory no later than six months after the effective date of any final rule that may be issued as a result of this rulemaking. In accordance with generally accepted practice, however, railroads would only be required to provide information for the data fields in the Header and Part I of the Draft Inventory Form for previously unreported private highway-rail crossings, pathway crossings, and grade-separated crossings. FRA has not historically collected data associated with Parts II-V of the Inventory Form for these crossings.

Proposed paragraph (a)(2) of this section would require operating railroads, other than the primary operating railroad, to confirm that a completed Inventory Form (or its electronic equivalent) was timely submitted to the Crossing Inventory in accordance with proposed paragraph (a)(1) of this section. If the operating railroad discovers that one or more previously unreported public, private or pathway crossings (except a temporary crossing) over which it operates was not timely reported to the Crossing Inventory, proposed paragraph (a)(2) of this section would require that the operating railroad provide written notification of the unreported crossing to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). This provision is being proposed in order to implement 49 U.S.C. 20160(a)(2), which requires railroad carriers to “ensure that the [current information, including information about warning devices and signage, concerning each previously unreported crossing] has been reported to the Secretary by another railroad carrier that operates through the crossing.”

At a minimum, the proposed written notification requirement contained in paragraph (a)(2) of this section would require operating railroads to provide the latitudinal and longitudinal coordinates for each previously unreported public, private, or pathway crossing for which a completed Inventory Form (or its electronic equivalent) was not timely submitted to the Crossing Inventory. While State agencies have historically submitted latitudinal and longitudinal coordinates to the Crossing Inventory, railroads provide this data to FRA for rail-equipment train accident reporting purposes. Therefore, FRA believes that this proposed requirement will not be unduly burdensome. FRA seeks comment on this proposal.

FRA proposes to hold each operating railroad liable, including the primary operating railroad, for each unreported public, private, and pathway crossing for which written notification was not timely provided to the FRA Associate Administrator, in accordance with proposed paragraph (a)(2) of this section. However, in order to facilitate compliance with this proposed requirement, FRA proposes to establish an automated FRA email notification system that would notify participating States and railroads whenever public, private, or pathway crossings are added to the Crossing Inventory. FRA seeks comment from all interested parties on whether this proposed notification system would be useful.

Proposed paragraph (a)(3) of this section would allow an entity other than the primary operating railroad to submit a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for one or more previously unreported public, private, or pathway crossings, in order to satisfy the proposed reporting requirements contained in paragraph (a)(1) of this section. This proposed provision is intended for use by State agencies with jurisdiction over the previously unreported crossings that may wish to submit crossing data to the Crossing Inventory on behalf of the primary operating railroad.

In the event that an entity other than the primary operating railroad would like to submit crossing data to the Crossing Inventory on behalf of the primary operating railroad, proposed paragraph (a)(3) of this section would require that the reporting entity and the primary operating railroad provide written notification to the Associate Administrator of the entity assuming reporting responsibility. Proposed paragraph (a)(3) of this section would further require that any such notification must contain positive identification of the locations that will be covered.

Proposed paragraph (a)(3) of this section is not, however, intended to allow the primary operating railroad to completely transfer its responsibility for timely compliance with the proposed reporting requirements of paragraph (a)(1) of this section to the reporting entity. Therefore, FRA reserves the right to hold the primary operating railroad, as well as the reporting entity liable, as appropriate, for failure to timely comply with the reporting requirements of paragraph (a)(1) of this section. Other operating railroads could potentially also be held liable for the failure to comply with the reporting requirements of paragraph (a)(1) of this section, if they fail to provide written notification of the unreported crossing in accordance with paragraph (a)(2) of this section.

Proposed paragraph (b) of this section would require the submission of data to the Crossing Inventory for new public and private highway-rail crossings and pathway crossings, including new grade-separated crossings. For purposes of this paragraph, “new” crossings would be public, private, and pathway crossings that were not in existence prior to the effective date of any final rule implementing this proposal. Proposed paragraph (b) of this section would not, however, apply to temporary crossings.

Proposed paragraph (b)(1) of this section would require that each primary operating railroad submit a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory for each new public, private, or pathway crossing (except a temporary crossing) through which it operates no later than six months after the crossing becomes operational. If the primary operating railroad does not already have an Inventory Number that can be assigned to the new crossing, an Inventory Number will need to be obtained for the crossing. Instructions for obtaining Inventory Numbers can be found in the Draft Guide. Once an Inventory Number has been assigned to the crossing, proposed paragraph (b)(1) of this section would require that the primary operating railroad submit a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory, in accordance with § 234.403, which references the assigned Inventory Number.

Paragraph (b)(1) of this section has been proposed to implement 49 U.S.C. 20160(a)(1), which states that “[n]ot later than * * * 6 months after a new crossing becomes operational, * * * each railroad carrier shall—(1) report to the Secretary of Transportation current information, including information about warning devices and signage, as specified by the Secretary, concerning each previously unreported crossing through which it operates or with respect to the trackage over which it operates.”

Proposed paragraph (b)(2) of this section would require operating railroads, other than the primary operating railroad, which operate through a new crossing for which a completed Inventory Form (or its electronic equivalent) has not been submitted to the Crossing Inventory within six months after the crossing becomes operational, to provide written notification of this oversight to the FRA Associate Administrator. This provision has been proposed in order to implement 49 U.S.C. 20160(a)(2), which states that, “[n]ot later than * * * 6 months after a new crossing becomes operational, * * * each railroad carrier shall—(2) ensure that the [current information, including information about warning devices and signage, concerning each previously unreported crossing] has been reported to the Secretary by another railroad carrier that operates through the crossing,”

At a minimum, the proposed written notification requirement contained in paragraph (b)(2) of this section would require railroads to provide the latitudinal and longitudinal coordinates for each new public, private, or pathway crossing that was not timely reported to the Crossing Inventory in accordance with paragraph (b)(1) of this section. While State agencies have historically submitted latitudinal and longitudinal coordinates to the Crossing Inventory, railroads provide this data to FRA for rail-equipment train accident reporting purposes. Therefore, FRA believes that this proposed requirement would not be unduly burdensome. FRA seeks comment on this proposal.

FRA proposes to hold each operating railroad, including the primary operating railroad, liable for each new public, private, and pathway crossing (including grade-separated crossings, but excluding temporary crossings) that was not timely reported to the Crossing Inventory, in accordance with paragraph (b)(1) of this section, unless the operating railroad provides written notification to the Associate Administrator of the unreported crossing. In order to facilitate compliance with this proposed requirement, FRA proposes to establish an automated FRA email notification system that would notify participating States and railroads whenever public, private, or pathway crossings are added to the Crossing Inventory. FRA seeks comment on this proposal.

Proposed paragraph (b)(3) of this section would allow multiple operating railroads to assume joint responsibility for submitting data to the Crossing Inventory for new public, private, or pathway crossings, in accordance with the Draft Guide. As stated in the Draft Guide, two or more railroads that have agreed to file their own separate inventory information for the same public, private, or pathway crossing would need to check the box labeled “Multiple Forms Filed” in Item no. 7 of Part I of the Draft Inventory Form, in order to notify FRA of their agreement.

Proposed paragraph (b)(4) of this section would allow an entity other than the primary operating railroad to submit a completed Inventory Form (or its electronic equivalent) to the Crossing Inventory, in order to satisfy the proposed reporting requirements contained in paragraph (b)(1) of this section. This proposed provision is intended for use by State agencies with jurisdiction over the new public, private, or pathway crossings that may wish to submit crossing data to the Crossing Inventory on behalf of the primary operating railroad.

In the event that an entity other than the primary operating railroad would like to submit crossing data to the Crossing Inventory on behalf of the primary operating railroad, proposed paragraph (b)(4) would require that the reporting entity and the primary operating railroad provide written notification to the Associate Administrator of the entity assuming reporting responsibility. Proposed paragraph (b)(4) of this section would further require that any such notification include positive identification of the locations that will be covered.

Proposed paragraph (b)(4) of this section is not, however, intended to allow the primary operating railroad to completely transfer its responsibility for timely compliance with the proposed reporting requirements of paragraph (b)(1) of this section to the reporting entity. Therefore, FRA reserves the right to hold the primary operating railroad and the reporting entity, as appropriate, liable for failure to timely comply with the reporting requirements of paragraph (b)(1) of this section. Other operating railroads might also be held liable if they fail to provide written notification of an unreported crossing in accordance with paragraph (b)(2) of this section.

Proposed paragraph (c) of this section would require that the primary operating railroad periodically submit up-to-date and accurate data to the Crossing Inventory for each public, private, and pathway crossing through which it operates, in accordance with the Draft Guide. Submission of these periodic updates would not, however, be required for temporary crossings, since FRA is not proposing to require the reporting of temporary crossings to the Crossing Inventory, or to require periodic updating for grade-separated crossings since changes in crossing characteristics do not appear to have a significant impact on existing risk levels at grade-separated crossings.

Proposed paragraph (c)(1) of this section sets forth a proposed timeframe within which the primary operating railroad would be required to submit updated crossing data for each public, private, and pathway crossing to the Crossing Inventory. This provision has been proposed in order to implement 49 U.S.C. 20160(b)(1)(A), which mandates that railroads periodically “report to the Secretary current information, including information about warning devices and signage, as specified by the Secretary, concerning each crossing through which it operates or with respect to the trackage over which it operates.”

Proposed paragraph (c)(1) would require that the primary operating railroad submit up-to-date and accurate crossing data for each public, private, and pathway crossing (other than a temporary crossing or a grade-separated crossing) through which it operates at least every three years from the date of the most recent railroad submission (or submission on behalf of a railroad) to the Crossing Inventory or within six months of the effective date of any final rule implementing this requirement, whichever occurs later.

Appendix B to the Draft Guide contains a proposed Crossing Inventory Responsibility Table that assigns responsibility for updating data fields on the proposed Inventory Form to the operating railroad and/or the applicable State agency. In accordance with paragraphs (a)(1) and (b)(1) of proposed § 234.405, railroads would be required to complete all of the data fields on the Inventory Form when initially reporting previously unreported and new public highway-rail at-grade crossings. However, a primary operating railroad would only be required to submit up-to-date and accurate information for the data fields on the Inventory Form that are assigned to the operating railroads by the Crossing Inventory Responsibility Table in Appendix B to the Draft Guide. (All remaining data fields on the Inventory Form would be updated by State authorities on a voluntary basis.) Similarly, even though the primary operating railroad would be required to submit up-to-date and accurate information for all of the data fields in the Header and Part I of the Draft Inventory Form for previously unreported private crossings, previously unreported pathway crossings, new private crossings, and new pathway crossings, the primary operating railroad would only be required to submit up-to-date and accurate information for the data fields in the Header and Part I of the Draft Inventory Form that are assigned to the operating railroad by the Crossing Inventory Responsibility Table in Appendix B to the Draft Guide. FRA seeks comment on the proposed assignment of responsibility for updating data fields on the Inventory Form.

If each applicable railroad-assigned data field in the Crossing Inventory is accurate and up-to-date when the periodic update becomes due, the primary operating railroad should simply update the information contained in the data fields in the Header portion of the Draft Inventory Form (or its electronic equivalent) for the affected crossing, in accordance with the Draft Guide.

Proposed paragraph (c)(2) of this section would require operating railroads, other than the primary operating railroad, that operate through any at-grade public, private, or pathway crossing (other than a temporary crossing or a grade-separated crossing) for which up-to-date and accurate information has not been submitted to the Crossing Inventory in accordance with paragraph (c)(1) of this section to provide written notification of this oversight to the Associate Administrator. This provision proposes to implement 49 U.S.C. 20160(b)(1)(B), which mandates that railroads periodically “ensure that [current information, including information about warning devices and signage] has been reported to the Secretary by another railroad carrier that operates through the crossing.”

As was the case with proposed paragraph (c)(1) of this section, FRA proposes to exercise the discretion granted to the Secretary to determine the intervals by which periodic updates must be submitted to the Crossing Inventory. Accordingly, the proposed written notification requirement contained in paragraph (c)(1) of this section would not take effect unless up-to-date and accurate information was not submitted to the Crossing Inventory for a public, private, or pathway crossing (other than a temporary crossing or a grade-separated crossing) at least three years from the date of the most recent railroad submission or within six months after the effective date of any final rule implementing this requirement, whichever occurs later.

At a minimum, the written notification that would be required by proposed paragraph (c)(2) of this section must include the Inventory Number for each public, private, or pathway crossing that has not been updated. FRA proposes to hold each operating railroad, including the primary operating railroad, liable for each Crossing Inventory record, for public, private, or pathway crossings (other than a temporary crossing or a grade-separated crossing) over which the railroad operates, that has not been updated in accordance with paragraph (c)(1) of this section, unless written notification of the outdated record is provided to the Associate Administrator by the operating railroad in accordance with proposed paragraph (c)(2) of this section. However, in order to facilitate compliance with this proposed requirement, FRA proposes to establish an automated FRA email notification system that would notify participating States and railroads whenever changes have been made to the Crossing Inventory data associated with certain specified public, private, or pathway crossings. FRA seeks comment on whether this proposed notification system would be useful.

Proposed paragraph (c)(3) of this section would allow two or more operating railroads to assume joint responsibility for submitting periodic updates to the Crossing Inventory in accordance with the Draft Guide. As stated in the Draft Guide, two or more operating railroads that have agreed to file their own separate inventory information for the same public, private, or pathway crossing would need to check the box labeled “Multiple Forms Filed” in Item no. 7 of Part I of the Draft Inventory Form, in order to notify FRA of their agreement.

Proposed paragraph (c)(4) of this section would allow an entity other than the primary operating railroad to submit up-to-date and accurate crossing data to the Crossing Inventory, in order to satisfy the proposed periodic updating requirements contained in paragraph (c)(1) of this section. In the event that an entity other than the primary operating railroad assumes responsibility for submitting the required updates for a particular crossing, proposed paragraph (c)(4) would require that the reporting entity and the primary operating railroad provide written notification to the FRA Associate Administrator of the entity assuming the periodic updating responsibility. This paragraph would further require that any such notification must contain positive identification of the locations that will be covered.

Proposed paragraph (c)(4) of this section is not, however, intended to allow the primary operating railroad to completely transfer its responsibility for timely compliance with the proposed periodic updating requirements in paragraph (c)(1) of this section. Therefore, FRA reserves the right to hold the primary operating railroad and the reporting entity, as appropriate, liable for failure to timely comply with the periodic updating requirements of paragraph (c)(1) of this section Other operating railroads might also be held liable if they fail to provide written notification of outdated Inventory records for public, private, or pathway crossings over which they operate, in accordance with paragraph (c)(2) of this section.

Paragraph (d) of this section contains proposed updating requirements related to the sale of a public, private, or pathway crossing. With respect to the sale of all or part of any public, private, or pathway crossing, proposed paragraph (d) of this section would require the selling railroad to submit an Inventory Form (or its electronic equivalent) that reflects the crossing sale to the Crossing Inventory. This proposed provision is intended to implement 49 U.S.C. 20160(b)(2), which requires that railroads that sell a crossing report to the Secretary, within three months of such sale, current information, concerning the change in ownership of the crossing or part of the crossing.

Accordingly, proposed paragraph (d) of this section would require the submission of updated crossing data to the Crossing Inventory, no later than three months after the date of sale, in accordance with proposed § 234.403 and the Draft Guide. Pursuant to the Draft Guide, the selling railroad would simply be required to update the Crossing Inventory by revising either the Primary Operating Railroad data field (item one in Part I of the Draft Inventory Form) or the Operating Railroad data field (item 8 in Part I of the Draft Inventory Form) to reflect the change in ownership. The selling railroad should not, however, attempt to close the crossing record in the Crossing Inventory, since the crossing will remain in use and its assigned Inventory Number will remain the same.

With respect to certain specified changes in crossing characteristics, involving crossing closure, change in crossing surface, or change in warning device at a public, private, or pathway crossing, proposed paragraph (e)(1) of this section would require that the primary operating railroad submit an Inventory Form (or its electronic equivalent), which reflects updated information in all applicable data fields, to the Crossing Inventory, in accordance with the Draft Guide and § 234.403 of this part, within three months after the implementation date of the change. For purposes of this provision, a “change in warning device” means a change in the type of warning device installed at the crossing, as opposed to the modification of an existing crossing warning device. Therefore, upgrades from crossbuck signs to crossbuck and STOP signs would be considered a “change in warning device” that would trigger the update requirements contained in this section. Another example of a “change in warning device” that would trigger the proposed updating requirements would be the addition of cantilevered lights to a crossing that is already equipped with post-mounted flashing lights. Other changes in warning devices that would trigger the proposed updating requirement would include the installation of a crossbuck, yield, or stop sign, flashing lights, conventional gates, and 4-quadrant gates at a grade crossing. FRA seeks comment on whether the 3-month period for reporting these changes in crossing characteristics should be shortened. Also, FRA seeks comment on whether this list of changes to crossing characteristics, which would trigger a requirement to submit updated data to the Crossing Inventory, adequately reflects the spectrum of significant changes to crossing characteristics that should be reported to the Crossing Inventory shortly after implementation, or whether this list of changes to crossing characteristics should be expanded to include significant changes to train counts and train speed as well, or other relevant factors.

Proposed paragraph (e)(2) of this section would allow an entity other than the primary operating railroad to submit updated crossing data to the Crossing Inventory, in order to satisfy the proposed reporting requirements contained in paragraph (e)(1) of this section. In the event that an entity other than the primary operating railroad assumes responsibility for submitting the required updates for a particular crossing to the Crossing Inventory, proposed paragraph (e)(2) of this section would require that the reporting entity and the primary operating railroad provide written notification to the Associate Administrator of the entity assuming the reporting responsibility. Proposed paragraph (e)(2) of this section would further require that any such notification contain positive identification of the location(s) that will be covered.

Proposed paragraph (e)(2) is not, however, intended to allow the primary operating railroad to completely transfer its responsibility for timely compliance with updating requirements of paragraph (e)(2) of this section. Therefore, FRA reserves the right to hold the primary operating railroad and the reporting entity liable for failure to timely submit updated crossing data to the Crossing Inventory in accordance with the proposed updating requirements of paragraph (e)(1) of this section.

Proposed § 234.407 sets forth the recordkeeping requirements for this subpart that would apply to each railroad subject to this subpart. Proposed paragraph (a) of this section would require each railroad to keep certain records pertaining to its compliance with this subpart. Records may be kept on paper or electronically in a manner that conforms with proposed § 234.409.

Proposed paragraph (b) of this section would require operating railroads, including the primary operating railroad, to keep either a duplicate copy of each Inventory Form that was submitted in hard copy to the Crossing Inventory, or a copy of the electronic confirmation received from FRA after new or updated crossing data has been electronically submitted to the Crossing Inventory.

Proposed paragraph (c) of this section would require that the railroad maintain a list of locations where a copy of any record required to be retained by this subpart is accessible for inspection and photocopying. Proposed paragraph (c) would further require that this list of locations be kept at the office where the railroad's reporting officer conducts his or her official business.

Proposed paragraph (d) of this section would require that each operating railroad retain for at least four years (from the date of submission to the Crossing Inventory) either a duplicate copy of the Inventory Form that was submitted in hard copy by the railroad to the Crossing Inventory or a copy of the email confirmation received from FRA after new or updated crossing data has been electronically submitted to the Crossing Inventory. Records required to be kept must be made available to FRA as provided by statute (49 U.S.C. 20107).

Proposed § 234.409 contains requirements that would apply to the electronic retention of records required by this subpart.

If a railroad chooses to conduct electronic recordkeeping of records required by this subpart, proposed paragraph (a)(1) of this section would require that the railroad adopt adequate security measures to limit employee access to its electronic data processing system and prescribe which employees will be allowed to create, modify, or delete data from the database.

Proposed paragraph (a)(2) of this section would require the railroad to have a terminal at the office where the railroad reporting officer conducts his or her official business and at each location designated by the railroad as having a copy of any record required to be retained by this subpart that is accessible for inspection and photocopying. In addition, proposed paragraph (a)(3) of this section would require the railroad to have a computer and a facsimile or printer connected to the computer to retrieve and produce records for immediate review.

Proposed paragraph (a)(4) of this section would require the railroad to designate someone who will be authorized to authenticate hard copies produced from the electronic format.

Proposed paragraph (a)(5) would require the railroad to make electronic documents available for FRA inspection during “normal business hours” which FRA interprets as the time, any day of the week, when railroads conduct their regular business transactions. Nevertheless, FRA would reserve the right to review and examine the documents prepared in accordance with this subpart at any reasonable time if situations warrant. In addition, in the event that an electronic record kept by the railroad pursuant to this subpart does not comply with the proposed requirements contained in paragraph (a) of this section, proposed paragraph (b) of this section would require that the record be kept on paper in accordance with the recordkeeping requirements contained in § 234.407. In short, each railroad electing to retain its records electronically would be required to ensure the integrity of the information and prevent possible tampering of data, thus ensuring the overall integrity of the inventory.

Appendix A to part 234 contains a schedule of civil penalties for use in connection with this part. FRA intends to revise the schedule of civil penalties when issuing the final rule to reflect revisions made to part 234. Because such penalty schedules are statements of agency policy, notice and comment are not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to submit suggestions to FRA describing the types of actions or omissions for each proposed regulatory section that would subject a person to the assessment of a civil penalty. Commenters are also invited to recommend what penalties may be appropriate, based upon the relative severity of each type of violation.

This proposed rule has been evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Order 12866 and 13563 and DOT policies and procedures. See 44 FR 11034; February 26, 1979. FRA has prepared and placed in the docket a Regulatory Evaluation addressing the economic impact of this proposed rule. As part of the regulatory evaluation, FRA has assessed quantitative estimates of the cost streams expected to result from the implementation of this proposed rule. For the 20-year period analyzed, the estimated quantified cost that would be imposed on industry totals $2.1 million with a present value (PV, 7 percent) of $1.5 million. FRA conducted a break-even analysis of the rule and believes that potential benefits from the proposal would likely equal or exceed total costs.

FRA considered the industry costs associated with requiring railroads to establish and maintain an inventory for all public and private highway-rail crossings and pathway crossings. Many railroads have already implemented components of the proposed rule. FRA estimates that as many as 50 percent of all highway-rail crossings currently have up-to-date information in the National Inventory. For more details on the costing, please see the Regulatory Evaluation found in the docket. The requirements that are expected to impose the largest burdens relate to the collection of recent information and to the periodic update of the inventory. The table below presents the estimated costs associated with the proposed rulemaking.

As part of the Regulatory Evaluation, FRA has explained what the likely benefits for this proposed rule would be, and provided a break-even analysis. The main benefit derived from the rule would be improved crossing inventory data. This more precise information would better enable FRA, railroads, and any other entity to accurately analyze pertinent data, detect trends, and if needed, initiate crossing-related safety initiatives. In this break-even analysis, FRA determined that if there were a decrease of 0.015 percent of crossing accidents over the twenty-year period the costs associated with the rule would break-even. In the last decade there were over 26,000 collisions at grade crossing, this break-even analysis expects that over a twenty-year period there would be at least 3 fewer incidents due to the proposed rule. FRA anticipates that this rulemaking will increase the precision, completeness, and utility of railroad records and will improve FRA's national crossing inventory. This would allow FRA to identify certain highway-rail crossings and pathway crossings that are not currently recorded in the existing voluntary crossing inventory. FRA believes that such clarification would help offset costs associated with the rulemaking by simplifying the reporting process. FRA believes the value of the anticipated benefits would justify the cost of implementing the proposed rule.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and Executive Order 13272 (67 FR 53461; August 16, 2002) require agency review of proposed and final rules to assess their impact on small entities. An agency must prepare an initial regulatory flexibility analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant impact on a substantial number of small entities. FRA has not determined whether this proposed rule would have a significant impact on a substantial number of small entities. Therefore, FRA is publishing this IRFA to aid the public in commenting on the potential small business impacts of the proposed requirements in this NPRM. FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of this NPRM. FRA will consider all comments received in the public comment process when making a final determination.

The proposed rule would apply to all railroads which own or maintain public and private highway-rail crossings (both at-grade and grade-separated) as well as pathway crossings. Based on information currently available, FRA estimates that Class III railroads own 28 percent of the total highway-rail crossings. However a number of the Class III railroads are owned by larger holding companies. FRA often treats these holding companies as Class I or Class II railroads as they have more resources than a Class III railroad. Excluding the 113 railroads that are owned by a holding company, the small entities own 17 percent of the total highway-rail crossings. FRA analysis estimates that the cost of the proposed rule would be $2.1 million with a present value (PV, 7 percent) of $1.5 million.

As calculated below, there are 569 Class III railroads that would be considered small for the purposes of this analysis. As explained above, FRA believes that 113 of these railroads should be excluded because they are part of large holding companies that do not meet the criteria established by the U.S. Small Business Administration (SBA) in determining small entities. Therefore there are 456 railroads that comprise around 17 percent of the total highway-rail crossings. All of these railroads would have to make some labor investment to meet the proposed requirements. As these railroads have less mileage, an indicator of fewer crossings, in their system than Class I and Class II railroads, FRA expects them to meet the proposed requirements at a lower overall cost. Thus, although numerous small entities in this sector would likely be impacted, the economic impact on them would likely not be significant. This IRFA is not intended to be a stand-alone document. In order to get a better understanding of the total costs for the railroad industry, which forms the basis for the estimates in this IRFA, or more cost detail on any specific requirement, please see the Regulatory Evaluation that FRA has placed in the docket for this rulemaking.

In accordance with the Regulatory Flexibility Act, an IFRA must contain:

(1) A description of the reasons why the action by the agency is being considered.

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.

(3) A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply.

(4) A description of the projected reporting, record keeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirements and the types of professional skills necessary for preparation of the report or record.

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

The goal of the U.S. DOT Highway-Rail Crossing Inventory is to provide information to all stakeholders in the rail industry (e.g., Federal Government, State Governments, Local Governments, all railroads, public) for the improvement of safety at highway-rail crossings. The improved and more accurate information will help to add to a general pool of information regarding accidents at crossings, which might be able to help prevent future accidents.

RSIA required that all railroads submit an inventory of all existing crossings to the FRA. Although the FRA currently has a national inventory, it has not been consistently updated. FRA believes that around 99 percent of the crossings that exist are currently in the database, but much of the information on each crossing needs to be updated, and numerous nonexistent crossings need to be removed from the database.

The FRA reviewed RSIA in order to determine the best, most cost efficient and beneficial way to issue the proposed rule. FRA anticipates that the proposed requirements will be accepted by the industry as being as unobtrusive as possible. A team in the FRA carried out a careful review of the mandates in RSIA to incorporate these requirements into these proposed Federal regulations.

The purpose of this rulemaking is to require railroads to submit information for public and private highway-rail crossings and pathway crossings. The proposed rule also sets forth regulations mandating the periodic update of the national crossing inventory. Any crossings that have been sold should also be updated in the inventory.

Section 204 of RSIA has a requirement for a National Crossing Inventory. Congress gave the Secretary of Transportation the authority to prescribe the regulations to implement Section 204. The task of creating the necessary regulation was delegated to the Administrator of the Federal Railroad Administration. This proposed regulation will be codified in Title 49 of the Code of Federal Regulations, Part 234.

The “universe” of the entities to be considered generally includes only those small entities that are reasonably expected to be directly regulated by this action. This proposed rule would affect all railroads that own or maintain public or private highway-rail crossings or pathway crossings.

“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under Section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) likewise includes within the definition of “small entities” not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operation. The SBA stipulates in its size standards that the largest a railroad business firm that is “for profit” may be and still be classified as a “small entity” is 1,500 employees for “Line Haul Operating Railroads” and 500 employees for “Switching and Terminal Establishments.” Additionally, 5 U.S.C. 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues; and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, codified at Appendix C to 49 CFR, part 209. The $20 million-limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. FRA is proposing to use this definition for this rulemaking. Any comments received pertinent to its use will be addressed in the final rule.

There are a total of 756 regulated railroads. FRA is excluding 150 railroads from the rulemaking because they do not own any crossings. There are 7 Class I railroads and 12 Class II railroads, all which are not considered to be small. There are a total of 29 commuter/passenger railroads, including Amtrak, with 19 that would be affected by this rule. However, all the affected commuter railroads are part of larger public transportation agencies that receive Federal funds and serve major jurisdictions with populations greater than 50,000.

The level of costs incurred by each railroad should generally vary in proportion to the number of crossings they maintain. For instance, railroads with fewer crossings should have lower overall costs associated with implementing the proposed standards. There are 710 Class III railroads, and of those railroads, only 569 are affected by the rule. However, 113 of these railroads are owned by large holding companies, and are therefore not considered to be small entities for the purposes of this analysis. Hence there are 456 railroads which would be considered to be small entities impacted by this proposed rule. The impact on these small railroads is discussed in the following section.

For a thorough presentation of cost estimates, please refer to the Regulatory Evaluation, which has been placed in the docket for this rulemaking.

For the purpose of this analysis, FRA broke Class III railroads into two categories. We considered any Class III railroad that had more than 40 crossings to be a Large Class III railroad and any Class III railroad with 40 or less crossings to be a Small Class III railroad. Crossing specialists in FRA's Office of Safety anticipate that the majority of the Large Class III railroads use FRA's web based program, to submit their inventories to the FRA. FRA assumes that the Large Class III railroads would continue to use a web-based program to input their crossing inventories into the national database. FRA believes that the Small Class III railroads would manually send their inventory forms, by either mail or email, to the FRA. FRA also estimates that 50 percent of all railroads in the industry are already in compliance with the proposed rule.

There are 240 Large Class III railroads that would be considered small entities. FRA estimates that each Large Class III railroads would initially task one person for approximately one week to review and update their inventory. Subsequently, FRA estimates that it would take one person two days to update a Large Class III railroads inventory every year. The initial cost associated with Large Class III railroads would be around $900 per railroad. The cost to periodically update their inventory is estimated to be about $350 per railroad. FRA believes that although the Large Class III railroads would be burdened by the proposed regulation, none of these small entities would be significantly impacted.

There are 216 Small Class III railroads that would be considered small entities. FRA estimates that each Small Class III railroad would initially need one person to work 8 hours to review and update each inventory. Subsequently, the periodic inventory update cost would be the same, requiring one person to work 8 hours each year. The initial cost associated with Small Class III railroads would be $173 per railroad. The cost to periodically update their inventory is $173 per railroad. Again, FRA believes that although all of the Small Class III railroads would be affected by the proposed regulation, none of these small entities would be significantly impacted.

In conclusion, FRA believes that both the Large Class III railroads and the Small Class III railroads, thus a substantial number of small entities (small railroads) would be impacted by the proposed regulation. However, FRA has found that these entities that are directly burdened by the regulation would not have an economic significant impact. FRA believes that the costs associated with the proposed rule are reasonable and would not cause any significant financial impact on their operations.

FRA is not aware of any relevant Federal rules that may duplicate, overlap or conflict with the proposed rule.

FRA invites all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the proposals in this NPRM. FRA will consider all comments received in the public comment process when making a determination.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects 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.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. This proposed rule would not have a substantial effect on the States or their political subdivisions; it would not impose any compliance costs; and it would not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

However, this proposed rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to section 20106.

In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under Federal railroad safety statutes, specifically 49 U.S.C. 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.

The information collection requirements in this proposed 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 are duly designated, and the estimated time to fulfill each requirement is as follows:

The HOS requirements for motorcoach operators have not been substantially revised in several decades. The FMCSA did not include changes to the motorcoach HOS requirements in its April 2003 final rule and subsequent revisions concerning HOS requirements for truck drivers because the Agency did not have enough data and information on motorcoach operations to form the basis of a rulemaking notice. Motorcoach operations differ significantly from trucking operations and the information upon which the Agency relied for its truck drivers' rule did not address the unique fatigue issues associated with the scheduling and operating practices of the motorcoach industry.

The current HOS rules for passenger-carrying operations allow up to 10 hours of driving time following 8 consecutive hours off duty. Driving is prohibited after the operator has accumulated 15 hours of on-duty time following 8 consecutive hours off duty (15-hour rule). The 15-hour window may be extended by off-duty periods, unlike the 14-hour window for drivers of property-carrying vehicles.

With regard to weekly limitations, drivers of passenger-carrying vehicles are subject to a 60- or 70-hour rule but, unlike drivers of property-carrying vehicles, they may not restart their calculations after 34 consecutive hours off duty. At this time, the Agency is moving toward developing a proposal to revise the regulations for hours-of-service for drivers of passenger-carrying CMVs.

The listening session is open to the public. Speakers' remarks will be limited to 5 minutes each. The public may submit material to the FMCSA staff at the session for inclusion in the public docket, FMCSA-2011-0373.

The Agency seeks data and answers relating to the following issues and questions. The comments sought below may be submitted in written form at the session and summarized verbally, if desired.

1. Driving Time. FMCSA is seeking additional studies or data that examine in greater detail the fatigue and safety differences associated with different driving times.

2. Duty Time/Driving Window. FMCSA is soliciting information on patterns of work for night drivers.

3. Time-On-Task (TOT) Function. The Agency seeks comment on whether its approach to estimating its TOT function is reasonable given the lack of good exposure data. The Agency is interested in any suggestions for improving its approach for estimating TOT effects, especially information on where it might obtain better data on exposure and other driver characteristics that would enable it to improve its estimation of how or whether crash risk varies over successive hours of daily driving.

4. Cumulative Fatigue. The Agency seeks comment on whether its methodology for evaluating cumulative fatigue and its impact on driving performance is reasonable. The Agency also welcomes further information on the effects of cumulative fatigue, particularly in the form of scientific studies or data that would allow better evaluation of cumulative fatigue and its impact on workplace safety, driver safety performance, and productivity.

FMCSA will webcast the listening session on the Internet. Specific information on how to participate via the Internet and the telephone access number will be on the FMCSA Web site at http://www.fmcsa.dot.gov/rules-regulations/topics/hos/HOS-Listening-Sessions.aspx .

FMCSA will docket the transcripts of the webcast and a separate transcription of the listening session that will be prepared by an official court reporter.