[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Rules and Regulations]
[Pages 23714-23728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10015]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 231

[Docket No. FRA-2008-0116, Notice No. 2]
RIN 2130-AB97


Railroad Safety Appliance Standards

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

ACTION: Final rule.

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SUMMARY: FRA is amending the regulations related to safety appliance 
arrangements on railroad equipment. The amendments will promote the 
safe placement and securement of safety appliances on modern rail 
equipment by establishing a process for the review and approval of 
existing industry standards. This process will permit railroad industry 
representatives to submit requests for the approval of existing 
industry standards relating to the safety appliance arrangements on 
newly constructed railroad cars, locomotives, tenders, or other rail 
vehicles in lieu of the specific provisions currently contained in part 
231. It is anticipated that this special approval process will further 
railroad safety by allowing FRA to consider technological advancements 
and ergonomic design standards for new

[[Page 23715]]

car construction and ensuring that modern rail equipment complies with 
the applicable statutory and safety-critical regulatory requirements 
related to safety appliances while also providing the flexibility to 
efficiently address safety appliance requirements on new designs in the 
future for railroad cars, locomotives, tenders, or other rail vehicles.

DATES:  Effective Date: This final rule is effective June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Stephen J. Carullo, Railroad Safety 
Specialist, Office of Safety, FRA, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone 202-493-6480), [email protected] 
or Stephen N. Gordon, Trial Attorney, Office of Chief Counsel, FRA, 
1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 
(telephone 202-493-6001), [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General
II. Statutory and Regulatory History
III. FRA's Approach to the Railroad Safety Appliance Standards in 
This Final Rule
IV. Response to Public Comment
V. Section-by-Section Analysis
VI. Regulatory Impact
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. General

    The Association of American Railroads (AAR) submitted a petition to 
amend 49 CFR part 231 on March 28, 2006. The AAR petition requested 
that FRA adopt new Federal railroad safety appliance standards to 
incorporate changes in railcar design that have occurred since the 
safety appliance regulations were promulgated in their current form. 
FRA is acting on AAR's request by amending 49 CFR part 231 to add 
sections 231.33 and 231.35 to the existing regulations. These new 
sections establish a special approval process similar to what is found 
in parts 232 and 238. The special approval process enables the railroad 
industry to submit new rail equipment designs to FRA for approval with 
respect to the placement and securement of safety appliances on the 
designs. FRA anticipates that the special approval process will have 
multiple benefits, including allowing for greater flexibility within 
the railroad industry and increasing rail safety by incorporating 
modern ergonomic design standards and technological advancements in 
construction.

II. Statutory and Regulatory History

    The Railroad Safety Appliance Standards set forth in 49 CFR part 
231 arose out of an extended legislative and regulatory effort, 
beginning in the 19th century, to improve the safety of railroad 
employees and the public. As railroads rapidly began to grow and 
develop following the Civil War, it became increasingly apparent that 
new measures were needed to protect railroad employees who were 
directly involved in the movement of trains. Most vehicles did not have 
adequate safety mechanisms and many of the practices and procedures 
used by railroad employees were not safe. For example, employees 
regularly controlled the speed of (and sometimes stopped) trains by 
using the handbrakes. In many cases, this required employees to perch 
themselves on top of freight cars while the cars were moving at high 
rates of speed over rough track. Additionally, use of the ``link and 
pin'' coupler, which was the standard method for coupling railcars, 
required employees to go between the ends of railcars to operate or 
adjust the coupler. These practices and others of like type led to 
excessive numbers of deaths and injuries among train service employees 
during the expansion of the railroad system following the Civil War. 
Indeed, during the eight (8) years prior to the passage of the first 
Safety Appliance Act in 1893, the number of employees killed or injured 
was equal to the total number of people employed by the railroad in a 
single year.
    The rate at which railroad employees were killed or injured during 
this time frame spurred efforts to increase workplace safety in at 
least two areas related to appliances on railroad cars, locomotives, 
tenders, and other rail vehicles. New technologies such as power brakes 
and automatic couplers were pursued, but also there were increased 
calls for regulation. Between 1890 and 1892, Congress responded with 
the introduction of seventeen (17) bills designed to promote the safety 
of employees and travelers on the railroad. Ultimately, the first 
Safety Appliance Act was passed by Congress and signed into law on 
March 2, 1893. Among other things, the first Safety Appliance Act 
required the use of power brakes on all trains engaged in interstate 
commerce as well as requiring all railcars engaged in interstate 
commerce to be equipped with automatic couplers, drawbars, and 
handholds. In 1903, Congress passed the second Safety Appliance Act, 
which extended the requirements of the first Act to any rail equipment 
operated by a railroad engaged in interstate commerce. Finally, in 1910 
the third Safety Appliance Act was passed requiring that all rail 
vehicles be equipped with hand brakes, sill steps, and, where 
appropriate, running boards, ladders, and roof handholds. The third 
Safety Appliance Act also directed the Interstate Commerce Commission 
(ICC) to designate the number, dimensions, locations, and manner of 
application of the various safety appliances identified in the Act.
    The ICC complied with this mandate by issuing its order of March 
13, 1911. The March 13, 1911 order first established the Federal 
railroad safety appliance standards. This order, as amended, designated 
the number, dimensions, location, and manner of application for safety 
appliances on box cars, hopper cars, gondola cars, tank cars, flat 
cars, cabooses, and locomotives. It also contained a catch-all section 
for ``cars of special construction'' that were not specifically covered 
in the order. In many ways, the March 13, 1911 order continues to serve 
as the basis for the present day regulations found in part 231. Indeed, 
although FRA supplanted the ICC as the agency responsible for 
promulgating and enforcing railroad safety programs in 1966, see 
Department of Transportation Act of 1966, 49 U.S.C. 103, the general 
framework established by the order of March 13, 1911 is still in 
existence today.

III. FRA's Approach to the Railroad Safety Appliance Standards in This 
Final Rule

    The Federal railroad safety appliance standards encompassed in part 
231 serve the purpose of increasing railroad safety by identifying the 
applicable safety appliance requirements for various individual railcar 
types. See e.g. 49 CFR 231.1, box and other house cars built or placed 
into service before October 1, 1966. While these regulations continue 
to serve their purpose, FRA recognizes the railroad industry has 
evolved over time. The industry has created and continues to create new 
railcar types to satisfy the demands for transporting freight as well 
as passengers on the present-day railroad. Many of the modern railcar 
types that are presently being built to handle railroad traffic do not 
fit neatly within any of the specific car body types identified in the 
existing regulations and ambiguities sometimes arise regarding the 
placement of safety appliances on these car types.

[[Page 23716]]

    Because modern designs often cannot be considered a railcar type 
that is explicitly listed in part 231, they are typically treated as 
cars of special construction. See 49 CFR 231.18. The ``cars of special 
construction'' provision does not identify specific guidelines that can 
be used by the railroad industry to assist it in the construction and 
maintenance of the safety appliances on modern railcar designs. 
Instead, Sec.  231.18 directs the industry to use the requirements, as 
nearly as possible, of the nearest approximate car type. Problems arise 
because modern designs are often combinations of multiple car types, 
and the design of any particular car may appear to be one type or 
another depending on the position of the individual viewing the car. As 
an example, a bulkhead flat car appears to be a box car when viewed 
from the A-end or B-end of the car, but appears to be a flat car when 
viewed from either side. As a result, the industry is forced to use 
bits and pieces from multiple sections of part 231 in an effort to 
ensure compliance with the Federal railroad safety appliance standards 
on bulkhead flatcars and other modern rail equipment.
    Another problem for modern railcar designs is that part 231 defines 
the location of many safety appliances by reference to the side or end 
of the railcar. While this worked well for the car types that were in 
existence when the ICC issued its March 13, 1911 order, it often is 
difficult to define exactly what parts on modern railcars constitute 
the side or end. This results in ambiguity regarding what is the 
appropriate location for certain safety appliances, such as handholds 
and sill steps.
    Moreover, the requirements in part 231 sometimes allow for spatial 
relationships between safety appliances that can result in the 
placement of appliances in less than optimal locations to ensure the 
safety of a person working in and around the railcar. For example, in 
Sec.  231.21, Tank cars without underframes, the center of the tread of 
the sill step can be up to 18 inches from the end of the car while the 
outside edge of the horizontal side handhold over the sill step can be 
up 12 inches from the end of the car. Consequently, a car built using 
these requirements may be compliant with the regulation even though the 
sill step and horizontal handhold are not aligned in a manner that 
maximizes the safety of a person working in and around the car.
    Together these factors can make compliance with the Federal 
railroad safety appliance standards difficult and inefficient when 
dealing with modern railcar designs. In addition, the current 
regulations do not contemplate advancements in the design of such 
vehicles. This means that the current regulations can operate to 
preclude the application of technological innovations and modern 
ergonomic design principles that would increase the safety of persons 
who work on and around rail equipment and use safety appliances on a 
regular basis.
    The AAR Safety Appliance Task Force (Task Force) consists of 
representatives from the Class I railroads, labor unions, car builders, 
and government (FRA and Transport Canada participate as a non-voting 
members), as well as ergonomics experts. The Task Force was created by 
AAR's Equipment Engineering Committee to develop new industry standards 
for safety appliance arrangements that could be used to reduce the 
differences of opinion that can arise in the interpretation of the 
Federal safety appliance standards contained in part 231. The Task 
Force has drafted a base safety appliance standard as well as industry 
safety appliance standards for modern boxcars, covered hopper cars, and 
bulkhead flat cars. These industry safety appliance standards have been 
adopted by AAR's Equipment Engineering Committee, and FRA expects them 
to serve as the core safety appliance criteria that can be used to 
guide the safety appliance arrangements on railcars that are more 
specialized in design. The industry safety appliance standards 
developed by the Task Force incorporate ergonomic design principles 
that increase the safety and comfort for persons working on and around 
safety appliance apparatuses. For example, the Task Force standards 
establish minimum foot clearance guidelines for end platforms that 
allow for wider and stiffer sill steps to support a person's weight.
    The AAR petition to amend part 231 requested that FRA adopt these 
new industry standards and amend its regulations to recognize changes 
in railcar design since the safety appliance regulations were 
promulgated in their current form. Because the standards submitted by 
AAR in connection with its petition require some modification before 
they can be approved and adopted by FRA, FRA is not incorporating the 
standards into part 231 at this time. FRA prefers to utilize the 
process being established in this final rule to fully evaluate and 
assess the industry safety appliance standards developed by AAR through 
the Task Force to ensure that they are complete and enforceable. Thus, 
FRA is acting on AAR's petition for rulemaking by establishing a 
special approval process similar to that currently contained in 49 CFR 
parts 232 and 238.
    Section 232.17 allows railroads to adopt an alternative standard 
for single car air brake tests and use new brake system technology 
where the alternative standard or new technology is shown to provide at 
least the equivalent level of safety. Similarly, Sec.  238.21 allows 
railroads to adopt alternative standards related to passenger equipment 
safety in a wide range of areas such as performance criteria for 
flammability and smoke emission characteristics, fuel tank design and 
positioning, single car air brake testing, and suspension system 
design, where the alternative standards or new technologies are 
demonstrated to provide at least the equivalent level of safety. 
Section 238.230 borrows the process set out in Sec.  238.21. It allows 
a recognized representative of the railroads to request special 
approval of industry-wide alternative standards relating to the safety 
appliance arrangements on any passenger car type considered to be a car 
of special construction.
    The final rule closely follows the processes set forth in 
Sec. Sec.  232.17, 238.21, and 238.230. The special approval process 
for part 231 establishes a process for submitting, reviewing, and 
approving the use of industry safety appliance standards once they have 
been developed by the industry. The process will also allow for an 
industry representative to submit modifications of industry-approved 
safety appliance standards for FRA's review and approval. Once an 
existing industry safety appliance standard or modification to an 
existing industry safety appliance standard is approved by FRA, it will 
become applicable to the industry for the purposes of new railcar 
construction. FRA expects that this amendment to part 231 will benefit 
railroad safety by: (1) Allowing FRA to take into account technological 
advancements and ergonomic design standards for new car construction, 
(2) ensuring that modern railcar designs comply with applicable 
statutory and safety-critical regulatory requirements related to safety 
appliances, and (3) providing flexibility to efficiently address safety 
appliance requirements on new railcar and locomotive designs in the 
future.

IV. Response to Public Comment

General Comments

    In response to its Notice of Proposed Rulemaking (NPRM), FRA 
received a total of four comments representing seven different 
organizations, including one government entity. There seems to

[[Page 23717]]

be general support among various sectors of the railroad industry for 
FRA to update the Federal railroad safety standards in part 231. AAR 
commented that it is ``pleased that FRA has made this proposal'' and 
notes that modernization of the safety appliance standards is long 
overdue. Trinity Rail (Trinity), a railcar manufacturer, commented that 
it is very much in favor of the amendments that FRA has proposed to 
part 231. Additionally, the Brotherhood of Locomotive Engineers and 
Trainmen (BLET), the Transportation Communications Union, the Transport 
Workers Union (TWU), and the United Transportation Union (UTU) (who 
filed comments jointly and will be collectively referred to as Labor) 
also agree with the concept of adding a special approval process to 
part 231 to address the placement and securement of safety appliances 
on new rail car designs.
    The United States Transportation Command (USTRANSCOM), however, on 
behalf of the Department of Defense (DOD), has provided a number of 
objections to the proposed rule. Many of the objections are not 
directed at the special approval process that was proposed but were 
concerns relating to the outcomes that USTRANSCOM expects to occur once 
FRA begins to consider industry petitions in the course of the special 
approval process. FRA will address each of these comments, which it 
believes are based on a fundamental misunderstanding the proposed 
special approval process, below.
    First, USTRANSCOM argues that the proposed rule requires additional 
safety appliances on TTX Company (TTX) flat cars that will make it 
difficult for the military to use commercially-owned cars in the future 
for transportation of tanks and other military equipment. It contends 
that commercially-owned TTX flat cars have proven to be safe and any 
``speculative, limited increase in safety'' that would be achieved by 
modifying the safety appliance arrangements on such cars is not 
justifiable at the expense of national defense. This rulemaking is not 
the appropriate forum to address USTRANSCOM's arguments related to 
commercially-owned TTX flat cars. The comments are beyond the scope of 
this rulemaking, as USTRANSCOM is commenting on an industry safety 
appliance standard that is not even being considered in the present 
rulemaking. At this time, FRA merely seeks to establish a process for 
consideration of standards that have received final approval from 
industry (i.e., existing industry safety appliance standards) prior to 
being submitted to FRA. If AAR submits a standard negatively affecting 
the military's use of commercially-owned TTX flat cars through the 
special approval process that is being established in this rulemaking, 
then FRA expects that USTRANSCOM will submit comments on the industry 
standard as an interested party, and FRA will give those comments the 
appropriate attention at that time.
    Second, USTRANSCOM argues that the proposed rule is inconsistent 
with 49 U.S.C. 301, which requires the Secretary to exercise leadership 
in transportation matters that affect national defense, and 49 U.S.C. 
302, which requires the Secretary to consider the needs of national 
defense in establishing policies for transportation. FRA does not view 
this rulemaking as impeding compliance with sections 301 and 302. Under 
the special approval process, FRA would continue to take into account 
the needs of the DOD in determining whether to grant, deny, or send a 
petition back for further consideration. However, in light of 
USTRANSCOM's comment, FRA has decided to add language in Sec.  
231.33(f)(3) of this final rule explicitly stating that FRA will 
consider applicable Federal statutes in determining whether to grant, 
deny, or send a petition back for further consideration. Similarly, FRA 
is adding language to Sec. Sec.  231.33(f)(6) and 231.35(f)(3), 
allowing a petition that has been granted to be re-opened where there 
is a showing that approval of the industry standard violates an 
applicable Federal statute.
    Third, USTRANSCOM contends that the special approval process would 
conflict with 49 U.S.C. 5501, which seeks to promote ``a National 
Intermodal System that is economically efficient and environmentally 
sound, provides the foundation for the United States to compete in the 
global economy, and will move individuals and property in an energy 
efficient way.'' FRA disagrees and does not view the special approval 
process being established as being in conflict with Sec.  5501. 
Instead, FRA envisions that the special approval process will further 
the stated policy goals of the law by encouraging petitions that factor 
in concepts of innovation, productivity, growth, and accountability. 
See 49 U.S.C. 5501(b)(6). Indeed, as stated in the NPRM, FRA expects 
the special approval process to increase economic efficiency by 
increasing flexibility within the railroad industry and incorporating 
technological advancements in new railcar construction. Nonetheless, 
FRA has added language to Sec. Sec.  231.33(f)(3), 231.33(f)(6), and 
231.35(f)(3) that explicitly states that FRA will factor applicable 
Federal statutes into its decision-making process while reviewing 
petitions that have been submitted before it.
    Fourth, USTRANSCOM asserts that the NPRM is inconsistent with 49 
U.S.C. 103(j)(2), which directs the Administrator of the FRA to develop 
a preliminary national rail plan within one year of the enactment of 
the Passenger Rail Investment and Improvement Act of 2008. FRA fails to 
understand the basis for this comment, as FRA already prepared its 
Preliminary National Rail Plan and delivered it to Congress on October 
16, 2009. However, USTRANSCOM's comments again seem to focus on Task 
Force's rejection of DOD's contention that commercially-owned TTX flat 
cars could not be efficiently converted to military use under the draft 
industry safety appliance standard. On this point FRA notes, as 
explained above, that such an assertion is outside the scope of the 
rulemaking because FRA has not formally reviewed, much less granted any 
petitions for special approval of existing industry safety appliance 
standards at this time.
    Fifth, USTRANSCOM contends that the ad hoc process proposed by FRA 
allows mode-specific associations to establish modal rules and fails to 
consider outside concerns, including those of the DOD. This comment 
totally misconstrues the special approval process as laid out in the 
NPRM and as amended in this final rule. The special approval process 
merely allows a railroad industry representative to submit petitions 
for special approval of an existing industry safety appliance standard; 
however, FRA retains authority to grant, deny, or send a petition back 
to the industry representative for further consideration. At all times, 
FRA retains ultimate control over whether a petition is granted, 
including the authority to impose conditions necessary for approval. 
Additionally, FRA does not understand USTRANSCOM's argument that the 
special approval process fails to consider the concerns of the DOD or 
other outside entities in light the specific language contained in 
Sec. Sec.  231.33(e) and 231.35(d) that provides 60 days for any 
interested party to comment on a petition for special approval or a 
petition for modification. FRA believes that allowing comments from 
interested parties, such as DOD, helps to ensure that FRA will be able 
to adequately consider outside concerns that a petitioner may fail to 
raise and provides the ability to assess those outside concerns in 
determining the

[[Page 23718]]

appropriate disposition of a submitted petition.
    Finally, USTRANSCOM asserts that FRA has adopted AAR's proposal 
regarding commercially-owned TTX flat cars without any independent 
Federal government deliberation, testing, or verification, and that 
FRA's reliance on the AAR and its Task Force constitutes the 
inappropriate use of an advisory committee under the Federal Advisory 
Committee Act (FACA), 5 U.S.C. app. As an initial matter, as noted 
above, FRA has not adopted any industry safety appliance standards for 
new railcar construction. Moreover, any discussion of the bases for the 
purported granting or denying of a petition for approval that has not 
even been submitted to FRA is beyond the scope of this rulemaking. 
Notwithstanding this statement, FRA will exercise its own judgment in 
determining whether a petition complies with all applicable Federal 
statutes, whether the petition complies with each of the requirements 
established in Sec.  231.33, and whether the existing industry safety 
appliance standard provides at least an equivalent level of safety as 
the existing FRA standards prior to granting, denying, or sending a 
petition back to the industry representative for further consideration.
    FRA additionally notes that the FACA is inapplicable to AAR and its 
Task Force within the context of this rule. In order for a task force 
to be treated as an ``advisory committee'' it must be--
    (A) Established by statute or reorganization plan, or
    (B) Established or utilized by the President, or
    (C) Established or utilized by one or more agencies, in the 
interest of obtaining advice or recommendations for the President or 
one or more agencies or officers of the Federal Government * * *

5 U.S.C. app. 3(2). While USTRANSCOM does not provide a rationale for 
arguing that the Task Force is an advisory committee that does not 
comply with the FACA, FRA assumes that USTRANSCOM is not arguing that 
the Task Force meets the definition of advisory committee under section 
3(2)(A) or (B). Instead, FRA understands USTRANSCOM's argument to be 
that the Task Force was either established by FRA or utilized by FRA in 
a manner that brings the Task Force within the terms of the FACA. As 
explained in detail below, the only correct determination is that FRA 
neither established nor utilizes the Task Force within the meaning of 
the FACA.
    An advisory committee is ``established'' by an agency only where 
the agency has actually formed the committee. See Byrd v. U.S. EPA, 174 
F.3d 239, 245 (D.C. Cir. 1999). The Task Force was established by AAR's 
Equipment Engineering Committee to develop an industry safety appliance 
standard that reduced the differences of opinion that sometimes arise 
in interpreting the Federal safety appliance standards in part 231. The 
Task Force develops industry safety appliance standards which are then 
submitted to the AAR Equipment Engineering Committee, which votes on 
whether to adopt the industry standard. FRA agreed to participate in 
the Task Force as a non-voting member, provided that an ergonomics 
expert, labor representatives, and Transport Canada were invited to 
participate along with the railroads, private car owners, and railcar 
builders. However, FRA does not control participation on the Task Force 
and does not compensate its participants. Based on these factors, it 
simply cannot be said that FRA established the Task Force such that it 
would be considered an advisory committee under FACA. Therefore, the 
critical factor is whether the Task Force is ``utilized'' by FRA within 
the framework established by the special approval process.
    While the term ``utilized'' appears upon first impression to have 
broad effect such that it would encompass virtually any consultation 
between a government agency and an outside party, the Supreme Court has 
construed the term narrowly to prevent sweeping interpretations that 
extend beyond the intent of Congress. See Public Citizen v. U.S. DOJ, 
491 U.S. 440, 459 (1989). The primary purpose of the FACA ``was to 
enhance public accountability of advisory committees established by the 
Executive Branch and to reduce wasteful expenditures on them.'' 491 
U.S. at 459. The Supreme Court has noted that Congress added the term 
``utilized'' to the FACA in an apparent attempt to clarify that the 
statute applies ``to advisory committees established by the Federal 
government in a generous sense of that term,'' meaning that the use of 
the term ``utilize'' in the FACA was merely to ensure that quasi-public 
agencies established for public agencies were included within the terms 
of the statute rather than capturing only those committees established 
by such public agencies. See 491 U.S. at 462. As a result, courts 
interpreting ``utilize'' have enforced a stringent standard, stressing 
that the term ``denot[es] something along the lines of actual 
management or control of the advisory committee.'' See Washington Legal 
Foundation v. U.S. Sentencing Comm'n, 17 F.3d 1446, 1450 (DC Cir. 
1994).
    When considered in this light, it becomes clear that the special 
approval process does not ``utilize'' the AAR, the Task Force, or any 
other group as an advisory committee within the terms of the FACA. The 
Task Force is chaired by a person chosen by AAR. It does not have a set 
membership and the number of attendees has fluctuated over time, but it 
regularly includes representatives from the railroads, private car 
owners, car builders, labor unions, an ergonomics expert, Transport 
Canada, and FRA. At the first meeting of the Task Force in June 2002, 
there were seven participants, which did not include any labor 
representatives or Transport Canada. At the September/October 2008 
meeting, there were 22 participants. The most recent meeting held in 
January 2011 had 16 attendees. Over the time of the Task Force's 
existence, FRA has made up a small percentage of the participants. Two 
employees in FRA's Motive Power & Equipment Division regularly attend 
the Task Force meetings. FRA's two employees provide input concerning 
the FRA's safety appliance standards, but, as noted above, they do not 
vote on matters before the Task Force. FRA recognizes that, by 
participating in the Task Force, it can exercise some influence over 
the Task Force's determinations; however, at least one United States 
Circuit Court of Appeals has noted that ``influence is not control.'' 
Washington Legal Foundation, 17 F.3d at 1451. FRA does not set the Task 
Force agenda, and the Task Force drafts industry safety appliance 
standards without any formal assurances from FRA that the industry 
safety standards will be granted by the agency when included in a 
petition for approval.
    Moreover, it is important to recognize that the industry safety 
appliance standards created by the Task Force are merely draft 
standards until approved by the AAR Equipment Engineering Committee. 
FRA does not regularly participate in AAR Equipment Engineering 
Committee meetings. As a result, FRA's influence, as it is, on the 
development of industry safety appliance standards is one step removed 
from the actual stage where AAR adopts industry safety appliance 
standards. It is only once AAR formally adopts an industry safety 
appliance standard that it becomes existing such that the standard can 
be included in a petition for special approval under the process that 
this final rule is creating.

[[Page 23719]]

Comments Related to 49 CFR 231.33

    Paragraph (a) establishes the general framework for the special 
approval process. It provides that the procedures laid out in the 
rulemaking will be applicable to petitions for special approval of 
existing industry safety appliance standards for new construction of 
railcars, locomotives, tenders, and other vehicles. AAR notes that 
under certain circumstances equipment owners may want to convert 
existing equipment to the FRA-approved industry safety appliance 
standard even though the equipment was built prior to FRA's granting of 
the petition for special approval. It presumes that there would be no 
prohibition against converting the existing equipment to the new 
industry standards once the new standards have been approved; however, 
AAR contends that such conversion should be voluntary. AAR reads too 
much into the NPRM. This rule does not propose to allow existing 
railroad equipment to be converted to an FRA-approved industry safety 
appliance standard. The special approval process applies only to new 
construction that occurs after the petition covering the specific car 
type has been granted by FRA. However, manufacturers and railroads may 
avail themselves of the waiver process currently in place, where 
necessary, if they wish to convert applicable existing equipment to an 
existing industry safety appliance standard upon FRA's approval. 
Because FRA believes that the waiver process provides an adequate 
vehicle for applying FRA-approved industry standards to existing 
railcars on a case-by-case, fact-specific basis, FRA has decided not to 
extend the rule to cover existing equipment.
    FRA received a number of comments related to paragraph (b). In 
paragraph (b)(2), FRA sets forth the minimum requirements for a 
petition for special approval of an existing industry safety appliance 
standard. FRA envisioned that this paragraph would include each of the 
elements that would be necessary to allow it to make an informed 
decision on a petition for special approval. As a result, it requested 
comment regarding whether the information required in this paragraph is 
necessary and sufficient to allow FRA to make an informed decision. In 
response, FRA received comments from Trinity, Labor, and AAR. Trinity 
and Labor found that the minimum requirements were both necessary and 
sufficient, with Labor specifically noting its agreement with the 
requirement to demonstrate ``the ergonomic suitability of the proposed 
arrangements in normal use.''
    AAR did not provide comment about the specific minimum 
requirements; however, it did raise an issue with the wording of the 
paragraph. Specifically, AAR notes that the proposed paragraph would 
require the standard to contain supporting data and analysis. AAR 
contends that such information should be included in the supporting 
analysis, but that it would be unusual for the actual industry standard 
to contain the supporting analysis. FRA agrees with AAR's point and has 
reordered paragraph (b) to clarify that the supporting data or analysis 
may be submitted in the petition, but separate from the actual industry 
safety appliance standard. As a result, paragraph (b)(2) has been split 
into multiple paragraphs.
    The new paragraph (b)(2) provides that the petition must contain an 
industry-wide standard that identifies the type of the equipment to 
which the standard is applicable; ensures as nearly as possible that 
the standard requires the same complement of safety appliances as the 
nearest approximate car type(s); complies with all of the statutory 
requirements in 49 U.S.C. 20301 and 20302; and addresses the specific 
number, dimension, location, and manner of attachment for each safety 
appliance in the industry standard.
    Proposed paragraphs (b)(2)(v)-(vii) have been renumbered as 
paragraphs (b)(3)-(5). Paragraph (b)(3) requires the petition for 
special approval to contain appropriate dates or analysis, or both, 
that will allow FRA to determine if the industry safety appliance 
standard will provide at least an equivalent level of safety. Paragraph 
(b)(4) requires that the petition include visual aids, such as drawings 
or sketches, that provide detailed information about the design, 
location, placement, and attachment of safety appliances under the 
industry standard. Finally, paragraph (b)(5) requires a demonstration 
that the safety appliance arrangements are ergonomically suitable. 
Revising proposed paragraph (b)(2) in this manner ensures that the FRA 
is provided with the information that it deems necessary, while 
allowing the industry safety appliance standards to remain uncluttered 
with information that is not traditionally found in the Federal 
railroad safety appliance standards.
    Labor supports the requirement in paragraph (b)(6)--which was 
formerly proposed paragraph (b)(3)--that the petitioner serve the 
petition upon the designated representatives of the employees affected. 
It states that serving a copy of the petition on the President of each 
Union representing the affected employees would be a satisfactory 
application of this requirement. FRA considers the person named as the 
designated labor representative to be an internal decision for each 
union. Once the final rule becomes effective, each union may designate 
the individual that it deems appropriate.
    AAR suggests that paragraph (b)(6) be deleted. It argues that FRA 
does not normally require service on labor unions. It contends that the 
only instance where FRA has required service upon labor unions is with 
respect to the rulemaking requiring certification of conductors. AAR 
argues that, unlike with conductor certification, this rulemaking will 
not directly affect employees and there will be numerous labor 
organizations upon which AAR would potentially have to serve notice. 
Instead of requiring service upon the labor unions responsible for the 
equipment's operation, inspection, testing, and maintenance under part 
231, AAR contends that FRA can rely merely on the standard practice of 
notifying interested parties through the publication of notices in the 
Federal Register. AAR further suggests that FRA could set up a special 
approval docket through http://www.regulations.gov, which would enable 
interested parties to sign up and be notified of any actions with 
respect to the specific docket.
    FRA disagrees with AAR's contention that paragraph (b)(6) should be 
deleted. First, providing service of the petition upon the designated 
labor representative and other interested parties ensures that those 
persons and/or organizations that have an interest in the petition will 
have an adequate opportunity to review and comment on the petition 
prior to FRA issuing its decision. Second, in contradistinction from 
AAR's argument, it is FRA's view that the overriding purpose of 
establishing this special approval process is to enhance the safety of 
those employees who use safety appliances on regular basis in the 
performance of their duties. As a result, FRA considers notification to 
the applicable labor representatives particularly important to 
achieving a special approval process that considers all relevant 
comments. Third, FRA would note that there were only four labor unions 
that provided comments to the subject NPRM, three of which, the UTU, 
BLET, and TWU, actively participate in the Task Force. In light of 
this, FRA does not expect that there will be a substantial number of 
labor organizations or other interested parties that will require 
notification for each petition. Finally, FRA would note that the 
special approval processes

[[Page 23720]]

established in parts 232 and 238 similarly require that a petitioner 
serve a copy of the petition on the designated representative of the 
employees. See 49 CFR 232.17(d)(2)(i) and 238.21(b)(4) and (c)(3). To 
FRA's knowledge, these provisions have not created a significant 
hardship for railroads in pursuing special approval of alternative 
standards for braking systems or passenger equipment. Given these 
factors, FRA has decided not to remove paragraph (b)(6) in this final 
rule.
    For the same reasons as identified above, AAR argues that paragraph 
(c)(2) should be deleted. Additionally, with respect to proposed 
paragraph (c)(2)(iii), AAR states that ``FRA does not maintain service 
lists'' and questions the means by which a petitioner will know if an 
individual has filed a statement of interest. This requirement is no 
different than that which is found in Sec.  232.17(d), which was 
promulgated in 2001, after going through the Rail Safety Advisory 
Committee Process. See 66 FR 4104, 4198 (January 17, 2001). To FRA's 
knowledge this requirement has not presented any difficulties with 
respect to the special approval process in Sec.  232.17, and FRA does 
not expect that the requirement will present a significant hardship 
with respect to the special approval process being established in part 
231.
    Labor is concerned that FRA allows for a petition to be returned to 
the petitioner for amendment in paragraph (f)(3)(iii). It believes that 
such a petition should be denied with the reasons for the denial 
identified. Labor contends that allowing for amendment will complicate 
the approval process. Moreover, Labor suggests that returning the 
petition effectively results in negotiating with the petitioner rather 
than restarting the process which appears to be counterproductive and 
potentially confusing. Labor states that ``this third option for 
approval also appears to require all of the same elements as re-filing 
an amended petition and appears to offer no significant advantage over 
a restart of the petition process.''
    In FRA's view, returning the petition for further consideration, as 
provided for in paragraph (f)(3)(iii), may in some cases be more 
efficient than denying a petition outright. In FRA's experience with 
other filings, many times a filing party will substantially comply with 
the requirements, yet be deficient in some minimal way. It is FRA's 
belief that, in such circumstances, it is better to work with the 
filing party to resolve the inadequacies without denying the petition 
outright and requiring a party to re-submit a new petition. Moreover, 
given that petitions will be able to be identified by their docket 
number, FRA does not believe that returning petitions for further 
consideration will foster confusion.
    In paragraph (f)(5), FRA proposed that, if a petition is granted, 
it shall go into effect on January 1st, not less than one year from the 
date of approval and not more than two years from the date of approval. 
FRA received numerous comments on this provision. Taking into account 
these comments, it has decided to amend paragraph (f)(5) to allow FRA 
to tailor the effective date based on the information before it at the 
time that it decides to grant a petition.
    AAR provides that it ``opposes a general prohibition on compliance 
with new standards immediately upon FRA approval.'' It believes that 
under most circumstances manufacturers will be able to immediately 
transition to an FRA-approved industry safety appliance standard 
without adversely affecting safety. As a result, it requests that 
``[e]quipment may be built to the new standard immediately upon FRA's 
written notice granting the petition, unless FRA provides otherwise in 
its written notice.''
    Labor similarly suggests that FRA-approved industry safety 
appliance standards should become effective immediately, or at least as 
soon as reasonably possible, because it feels that the safety appliance 
arrangements provided for in granted petitions will be superior to the 
current arrangements provided for in part 231. Labor additionally 
argues that the effective date should be flexible. This would allow it 
to be adjusted where it is determined that a new design offers safety 
improvements.
    Trinity contends that it is necessary for a manufacturer to have 
some lead time before an FRA-approved industry safety appliance 
standard becomes effective, but suggests revising paragraph (f)(5) to 
provide greater flexibility. It believes that lead time is necessary 
for design activity, production planning and the procurement of 
material. Additionally, Trinity argues that scheduling could be 
affected by many factors that are beyond the control of the car 
builder. As a result, it states that there may be times where it is 
almost impossible to make a change-over precisely on January 1st of any 
given year. Trinity also contends that car builders may not have any 
control over delayed material shipments, weather conditions, equipment 
break downs and customer requested schedule changes. To allow for these 
variables, Trinity suggests that the proposed rule be modified to allow 
for a three month window prior to the January 1st mandatory 
incorporation date of an approved petition where the change-over can 
take place. Trinity states that because the built date is always 
stenciled on the car, the determination as to whether a car is in 
compliance with an approved petition can easily be ascertained. Trinity 
contends that its proposal would result in earlier compliance with an 
approved petition and give car builders some flexibility.
    FRA is mindful of the fact that lead time is often necessary for 
design activity, production planning, and the procurement of material, 
as noted by Trinity. Indeed, this is why FRA initially proposed that 
once a petition is granted it would have an effective date of January 
1st, not less than one year and not more than two years from the date 
of FRA's written notice granting the petition. However, there seems to 
be a consensus among the commenters that in many cases the industry 
safety appliance standards contained in a granted petition should be 
able to be implemented much more expediently. As a result, FRA is 
amending paragraph (f)(5) to allow FRA to establish the effective date 
in its written notice granting a petition. In such cases, where FRA 
establishes the effective date in writing, FRA's decision will be based 
on the materials presented in the petition and after fully considering 
any comments received. This will allow FRA to tailor the effective date 
to fit with the lead time if any is necessary for design activity, 
production planning, or the procurement of material. In the event that 
FRA does not specify an effective date, the effective date will fall 
back to January 1st, not less than one year and not more than two years 
from the date of FRA's written notice granting the petition.

Comments Related to 49 CFR 231.35

    Paragraph (b) requires that each petition for modification be 
served upon the designated representatives of employees responsible for 
the operation, inspection, testing, and maintenance of equipment that 
is the subject of the petition. Labor requests that FRA continue to 
require that any petitions for modification be shared in a formal 
manner with the representatives of the employees impacted by the 
petition. Labor suggests that all parties involved in the process 
should collaborate and that, when the need arises to file a petition 
for approval or a petition for modification, the first consideration of 
all of the parties involved should be to file a joint petition that 
includes representatives of the employees that work on the affected 
equipment. In its

[[Page 23721]]

view, collaboration at the basic levels is much more productive than 
the traditional processes, such as filing waiver petitions without any 
type of prior notification to the employees or other interested 
parties. FRA views collaboration between all interested parties 
favorably. Indeed, one of the recognized benefits of the Task Force is 
that it receives input from not only railroads, but also private car 
owners, car builders, and labor representatives. As a result, FRA 
welcomes petitions filed jointly by representative of the railroads and 
labor. However, FRA does not think that it would be appropriate to 
mandate collaboration or the joint filing of petitions, which could 
result in unnecessary stagnation and delay. Paragraph (b) ensures that 
designated labor representatives will be served with a copy of a 
petition for modification and provides 60 days to comment on any such 
petition. In FRA's view, this is an adequate method to ensure that 
labor representatives have an opportunity to provide any relevant 
information that they deem appropriate.
    Paragraph (f)(1) establishes an effective date for modified 
industry safety appliance standards that are approved by FRA. Under 
this paragraph, a modified industry standard will become effective 15 
days after the 60-day comment period unless a commenter or FRA objects 
to the petition for modification. Trinity believes it is not clear 
whether paragraph (f)(1) only applies to modifications of petitions 
already approved under Sec.  231.33 or whether Sec.  231.35 applies to 
all petitions, including those for new car types. FRA believes that the 
paragraph clearly applies only to modifications under Sec.  231.35, and 
this paragraph is not applicable to new petitions that have not been 
granted approval under Sec.  231.33.
    Additionally, while Trinity believes that it may be appropriate to 
allow for modifications to go into effect 15 days after the 60-day 
comment period for simple modifications (e.g., relocating handholds), 
the abbreviated period prior to the effective date will not provide 
sufficient time to convert production for more extensive modifications 
because such changes may require ordering substantial new material or 
the fabrication of new major railcar assemblies. FRA proposed an 
abbreviated transition period for an unopposed modification because it 
envisions in most instances that this provision will be used to address 
minor adjustments that become apparent in the course of using the 
subject rail equipment. In the event that a petition for modification 
requests major changes that would require a greater time period to 
transition into the modification, FRA expects that the petition for 
modification will make FRA aware of the potential for delays in 
implementation. Otherwise, upon reviewing the petition, either an 
interested party or FRA may object to the petition for modification 
based on the grounds that insufficient time exists to transition to the 
modified standard, then the timeline for disposition of the 
modification would revert back to that established by Sec.  
231.33(f)(5). FRA views these safeguards as adequate protection against 
a modified requirement becoming effective prior to there being the 
capabilities to incorporate the modification.
    AAR also submitted similar comments on paragraph (f)(1). It 
contends that allowing a modified industry standard to go into effect 
15 days after the close of the 60-day comment period ignores that a 
transition period may be needed before the manufacturer can build to 
the modified standard. It suggests that the transition period for 
modification be similar to that used for new industry standards 
approved by FRA. At the outset, FRA finds AAR's comment strange in 
light of its comments with respect to Sec.  231.33(f)(5), suggesting 
that FRA require that newly approved industry standards become 
effective immediately. As noted in the previous paragraph, FRA 
envisions the modification process to be used for minor changes. As a 
result, FRA believes that some minimal transition time is necessary, 
but expects that most changes can easily be accomplished in the time 
period specified in Sec.  231.35(f)(1).

V. Section-by-Section Analysis

Section 231.33 Procedure for Special Approval of Existing Industry 
Safety Appliance Standards

    This section establishes a process through which a representative 
of the railroad industry may petition FRA for special approval of an 
existing industry safety appliance standard. FRA anticipates that this 
special approval process will minimize uncertainty in vehicle design 
and maintenance by allowing the industry, through AAR's Safety 
Appliance Task Force, to create clear industry standards that identify 
the appropriate safety appliance arrangements on railroad cars, 
locomotives, tenders, or other rail vehicles. This should lessen the 
extensive reliance on Sec.  231.18, cars of special construction, under 
which much of the modern rail equipment presently is built. While AAR's 
petition for rulemaking requests that FRA adopt new Federal railroad 
safety appliance standards incorporating changes based on modern 
railcar design, FRA expects that the special approval process contained 
in this final rule will better serve the goal of adapting to changes in 
modern railcar design while also facilitating compliance with statutory 
and safety-critical regulatory requirements.
    FRA recognizes that a necessary adjunct to developing industry 
standards for new railcar types that would otherwise fall under Sec.  
231.18 is to update the standards for cars that are already covered 
under part 231. The core criteria in these standard car types can then 
be used as guidelines for other types of cars with more specialized 
designs. It is FRA's understanding that the industry standards 
developed by the Task Force include a new base industry safety 
appliance standard as well as standards for modern boxcars and covered 
hopper cars, each of which is specifically covered in part 231. It is 
anticipated that AAR will petition, through the special approval 
process, to have the industry standards for these car types approved by 
FRA since such standards must be approved by FRA prior to going into 
effect. The use of industry safety appliance standards for new car 
construction related to these car types will ensure consistency in the 
application of FRA-approved industry standards when applied to other 
types of rail equipment while also serving as the building blocks 
towards recognizing safer, more efficient designs.
    The regulatory relief provided by this section will allow FRA to 
review existing industry safety appliance standards created by the 
railroad industry to ensure that the standards will provide at least an 
equivalent level of safety as the existing FRA standards. The public 
will be given notice of and opportunity to comment on any changes to 
existing regulations that are contained in a special approval petition 
before FRA acts on the petition in accordance with the Administrative 
Procedure Act. See 5 U.S.C. 553(b). Where FRA determines that a 
petition complies with all applicable Federal statutes and the 
requirements of this section and the existing industry safety appliance 
standard provides an equivalent level of safety to existing FRA 
standards, FRA may grant approval to the industry standard for use in 
new car construction. FRA expects that the special approval process 
will allow the rail industry to incorporate new railcar designs as well 
as technological and

[[Page 23722]]

ergonomic advancements with greater speed and efficiency.
    Paragraph (a) states that the procedures laid out in this section 
govern the method considering and handling any petition for special 
approval of an existing industry safety appliance standard. Although 
there were no comments, FRA has made a minor change to this paragraph 
by replacing the phrase ``similar vehicles'' with the phrase ``other 
vehicles.'' FRA believes that the phrase ``similar vehicles'' could be 
interpreted as unnecessarily limiting the scope of the amendment to 
rail equipment that is similar to railroad cars, locomotives, and 
tenders. As a result, it has revised the text to better reflect the 
scope of rail equipment that is covered by this amendment to part 231.
    Paragraph (b) establishes the process for submission of a petition 
for special approval of an existing industry standard for new railcar 
construction. Petitions will only be accepted from an industry 
representative and must contain standard(s) that will be enforced 
industry-wide. Each petition for special approval must include the 
name, title, address, and telephone number of the primary person to be 
contacted with regard to review of the petition.
    In the NPRM, FRA specifically requested comments on whether the 
information required is necessary and sufficient to allow FRA to make 
an informed decision regarding a petition for approval. While the 
comments received indicated that the information requested is necessary 
and sufficient, AAR pointed out that the paragraph was structured in a 
manner that required supporting data and analysis to be included in the 
industry safety appliance standard. AAR noted that it would be unusual 
to require the actual industry safety appliance standard to contain 
supporting information. FRA agrees and has revised this paragraph to 
clarify that supporting information need not be included in the actual 
industry standard as long as the information is provided in the 
petition for approval submitted to FRA.
    Paragraphs (b)(2) sets the minimum requirements for an existing 
industry safety appliance standard that is submitted as part of a 
petition for special approval. The industry safety appliance standard 
must identify the type(s) of railcar to which it would be applicable as 
well as the section or sections within the safety appliance regulations 
that the existing industry standard would act as an alternative to for 
new car construction. The standard must, as nearly as possible, based 
upon the design of the equipment, provide for the same complement of 
handholds, sill steps, ladders, hand or parking brakes, running boards, 
and other safety appliances as are required for a piece of equipment of 
the nearest approximate type(s) already identified in part 231. Because 
the Federal railroad safety appliance standards encompassed in part 231 
were promulgated to enforce specific statutory provisions, paragraph 
(b)(2) requires that the industry safety appliance standard comply with 
the requirements contained at 49 U.S.C. 20301 and 20302. The specific 
number, dimension, location, and manner of application of each safety 
appliance also must be contained in the industry standard in the 
petition. Under paragraph (b)(3), the industry representative 
submitting the petition also must include sufficient information 
through data or analysis, or both, for FRA to consider in making its 
determination of whether the existing industry standard will provide 
the requisite level of safety. This would include identifying where the 
industry standard deviates from the existing FRA regulation and 
providing an explanation for any such deviation. Additionally, pursuant 
to paragraph (b)(4), drawings, sketches, or other visual aids that 
provide detailed information relating to the design, location, 
placement, and attachment of the safety appliances must be included in 
the petition to assist FRA in its decision making process. Paragraph 
(b)(5) requires the petition to include a demonstration of the 
ergonomic suitability of the proposed arrangements in normal use. Given 
that the AAR Task Force regularly includes at least one ergonomic 
expert, FRA expects that such factors will be considered during the 
development process of the industry standards that are being submitted 
for approval. Finally, paragraph (b)(6) requires that the petitioner 
include a statement affirming that a copy of the petition has been 
served on the designated labor representatives of the employees 
responsible for the equipment's operation, inspection, testing, and 
maintenance under part 231. The statement must include a list of the 
names and addresses of each person served.
    Paragraph (c) sets up the service requirements for the petition for 
special approval of an existing industry standard for new railcar 
construction. The petitioner is required to submit the petition to 
FRA's Docket Clerk. The petitioner is also required to serve a copy of 
the petition on the appropriate labor representatives and the 
organizations or bodies to which the special approval pertains or that 
issued the industry standard that is proposed in the petition. The 
petitioner also must serve any other person who, at least 30 days, but 
not more than 5 years prior to the filing of the petition, has filed 
with FRA a current statement of interest in reviewing special approvals 
under the particular requirement of part 231. Any such statement of 
interest shall reference the specific section(s) of part 231 in which 
the person has an interest. FRA will post any such statement of 
interest that complies with the regulation in the docket to ensure that 
each statement is accessible to the public.
    Paragraph (d) provides that FRA will publish a notice in the 
Federal Register announcing the receipt of each petition for special 
approval an existing industry standard for new car construction.
    Paragraph (e) establishes a 60-day comment period from the date of 
publication of the notice in the Federal Register concerning a 
petition. Due to the nature of the special approval process and the 
fact that the industry standards, if approved, will have an industry-
wide effect, FRA seeks to provide sufficient time for all interested 
parties to comment prior to making its decision disposing of a 
petition. All comments must set forth the specific basis upon which the 
comments are made and contain a concise statement of the interest of 
the commenter in the proceeding.
    Paragraph (f) sets up the process for disposing of petitions for 
special approval. Under this paragraph, FRA may grant the petition, 
deny the petition, or return it for additional consideration. Normally, 
FRA will act on a petition within 90 days of the close of the comment 
period related to the petition; however, if the petition is neither 
granted nor denied within the 90-day period, then it will remain 
pending unless withdrawn by the petitioner.
    Paragraph (f)(3) sets forth that a petition may be granted where 
FRA determines that the petition complies with all applicable Federal 
statutes, that the petition complies with the requirements of Sec.  
231.33, and that the existing industry safety appliance standard 
provides at least an equivalent level of safety to existing FRA 
standards. Alternatively, a petition will be denied where FRA 
determines that it does not comply with an applicable Federal statute, 
it does not comply with the requirements established in Sec.  231.33, 
or the existing industry safety appliance standard does not provide at 
least an equivalent level of safety as the existing FRA standard.

[[Page 23723]]

    In instances where FRA determines that further information is 
required or that the petition may be amended in a reasonable manner to 
comply with an applicable Federal statute, comply with the requirements 
of Sec.  231.33, or ensure that the existing industry standard provides 
an equivalent level of safety to existing FRA standards; the petition 
may be returned to the petitioner. In such circumstances, FRA will 
provide written notice to the petitioner of the item(s) requiring 
additional consideration. The petitioner is provided with 60 days from 
the date of FRA's written notice of return for additional consideration 
to reply. The petitioner's reply must address the item(s) identified by 
FRA in the written notice of the return of the petition for additional 
consideration as well as complying with the submission requirements of 
Sec.  231.33(b) and the service requirements in Sec.  231.33(c). If 
petitioner fails to submit a response within the prescribed time 
period, the petition will be deemed withdrawn, unless good cause is 
shown.
    Paragraph (f)(5) provides that when a petition is granted, the 
effective date may be specified in FRA's written notice granting the 
petition. If no date is specified in FRA's written notice granting the 
petition, the existing safety appliance will become effective on 
January 1st, not less than one (1) year and not more than two (2) years 
from the date of FRA's written notice granting the petition. FRA 
decided to amend this paragraph based on the comments received, which 
uniformly indicated that a lead time of not less than one year would in 
many cases be unnecessary. As a result, FRA will retain authority to 
establish an effective date based on the information contained in the 
petition for approval and the comments received from other parties. 
However, FRA is mindful of the fact that the industry will need 
appropriate time to incorporate the standard, train employees, and fit 
facilities to meet the new requirements.
    Paragraph (f)(6) establishes the standard for reopening a granted 
petition for special approval. A granted petition may be reopened only 
where there is a showing of good cause. Good cause requires the 
submission of subsequent evidence that was not previously considered. 
The subsequent evidence must demonstrate that a granted petition fails 
to comply with an applicable Federal statute; that the petition fails 
to comply with the requirements of Sec.  231.33; that the existing 
industry safety appliance standard does not provide at least an 
equivalent level of safety as the corresponding FRA regulation for the 
nearest railcar type; or that further information is required to make 
such a determination.
    Paragraph (g) provides that any industry standard approved pursuant 
to Sec.  231.33 will be enforced against any person, as defined in 49 
CFR 209.3, who violates any provision of the approved standard or 
causes the violation of any such provision. Civil penalties associated 
with the failure to follow an approved industry safety appliance 
standard will be assessed under part 231 by using the applicable defect 
code contained in Appendix A.

Section 231.35 Procedure for Modification of an Approved Industry 
Safety Appliance Standard

    This section contains the procedural requirements for modifying 
existing industry safety appliance standards that previously have been 
approved by FRA. As in Sec.  231.33, FRA believes that notice to the 
public and an opportunity to comment is necessary under the 
Administrative Procedure Act. If the petition for modification is minor 
and there is no objection to the petition for modification by FRA or 
any other interested party, the modified industry safety appliance 
standard will automatically become effective fifteen (15) days after 
the close of the comment period. In those circumstances where FRA or 
any other interested party objects to the modification petition, the 
petition will be handled through the special approval process laid out 
in Sec.  231.33(f). FRA expects that using the framework in Sec.  
231.33(f) will allow for a more thorough review by the agency to ensure 
that the proposed modification provides at least an equivalent level of 
safety as the corresponding FRA regulation for the nearest railcar 
type(s) prior to disposing of the petition for modification.
    Paragraph (a) provides that an industry representative may seek 
modification of an existing industry safety appliance standard for new 
railcar construction after it has been approved under Sec.  231.33. Any 
such petition for modification must include each of the elements 
identified in Sec.  231.33(b).
    Paragraph (b) covers service of petitions for modification. The 
procedures for service of petitions for modification is the same as in 
Sec.  231.33(c).
    Paragraph (c) provides that FRA will publish a notice in the 
Federal Register announcing the receipt of each petition for 
modification received under Sec.  231.35(a).
    Paragraph (d) provides for the same 60-day comment period as in 
Sec.  231.33(e).
    Paragraph (e) establishes the process for FRA review of petitions 
for modification. It is expected that FRA will review the petition for 
modification during the 60-day comment period. In instances where FRA 
has an objection to the requested modification, it will provide written 
notification to the party requesting the modification detailing FRA's 
objection.
    Paragraph (f) sets up the procedure for FRA's disposition of 
petitions for modification. A modification proposed in a petition for 
modification will become effective fifteen (15) days after the close of 
the 60-day comment period if FRA does not receive any comments 
objecting to the requested modification or if FRA does not issue a 
written objection to the requested modification. If an objection to the 
requested modification is raised by either an interested party or FRA, 
the requested modification will be treated as a petition for special 
approval of an existing industry safety appliance standard and 
disposition of the petition will fall under the procedures provided in 
Sec.  231.33(f). Similarly, a petition for modification that has been 
granted may be re-opened where good cause is shown, as discussed above.
    Paragraph (g) provides that any modification of an industry 
standard approved by FRA under Sec.  231.35 will be enforced against 
any person, as defined in 49 CFR 209.3, who violates any provision of 
the approved standard or causes the violation of any such provision. As 
with Sec.  231.33, civil penalties will be assessed using the 
applicable defect code contained in appendix A to part 231.

V. Regulatory Impact

A. Executive Order 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures. It is not considered a significant regulatory 
action under either section 3(f) of Executive Order 12866, 58 FR 51735 
(September 30, 1993), or Executive Order 13563, 76 FR 3821 (January 18, 
2011), and, therefore, was not reviewed by the Office of Management and 
Budget. This rule is not significant under the Regulatory Policies and 
Procedures of the Department of Transportation. 44 FR 11034 (February 
26, 1979). FRA has prepared and placed in the docket a Regulatory 
Evaluation. Since this rule merely establishes a process for seeking

[[Page 23724]]

special approval to use an industry standard instead of the existing 
regulatory requirements for cars of special construction contained in 
49 CFR part 231, the costs associated with this rule are nominal. Since 
a special approval process will allow FRA to accept new railcar designs 
incorporating ergonomic design standards and technological advancements 
without detriment to safety, the benefits would likely exceed the 
costs.

B. Regulatory Flexibility Determination

    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. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), FRA has prepared and placed in the docket a Certification 
Statement that assesses the small entity impact of this rule, and 
certifies that this final rule is not expected to have a significant 
economic impact on a substantial number of small entities. Document 
inspection and copying facilities are available at the DOT Central 
Docket Management Facility located in Room W12-140 on the Ground level 
of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Docket material is also available for inspection electronically 
through the Federal eRulemaking Portal at http://www.regulations.gov. 
Photocopies may also be obtained by submitting a written request to the 
FRA Docket Clerk at the Office of Chief Counsel, RCC-10, Mail Stop 10, 
Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590; please refer to Docket No. FRA-2008-0116.
    The U.S. Small Business Administration (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.'' ``Small 
entity'' is defined in the Act as a small business that is 
independently owned and operated and is not dominant in its field of 
operation. Federal agencies may use different ``Size Standards'' after 
consultation with SBA and in conjunction with public comment. Pursuant 
to that authority, FRA has published a final policy that formally 
establishes ``small entities'' as railroads which meet the line haulage 
revenue requirements of a Class III railroad. The revenue requirements 
are currently $20 million or less in annual operating revenue. The $20 
million limit (which is adjusted by applying the railroad revenue 
deflator adjustment) is based on the Surface Transportation Board's 
threshold for a Class III railroad carrier. FRA uses the same revenue 
dollar limit to determine whether a railroad or shipper or contractor 
is a small entity.
    There are approximately 700 small railroads that could be affected 
by the regulation. Consequently, this regulation could affect a 
substantial number of small entities. However, FRA does not anticipate 
that this regulation, which establishes a permissive process that 
allows for FRA approval of industry standards, would impose a 
significant economic impact on such entities.
    The final rule would also apply to governmental jurisdictions or 
transit authorities that provide commuter rail service--none of which 
is small for purposes of the SBA (i.e., no entity serves a locality 
with a population less than 50,000). These entities also receive 
Federal transportation funds. Intercity rail service providers Amtrak 
and the Alaska Railroad Corporation would also be subject to this rule, 
but they are not small entities and likewise receive Federal 
transportation funds.
    The final rule will not have a significant economic impact on a 
substantial number of small entities, as there are no direct costs to 
small entities. Small entities will not be responsible for preparing 
the petitions for special approval. Furthermore, FRA does not believe 
there will not be any significant costs to implementing any approved 
industry standard as any such standard will likely be a repositioning 
of existing safety appliances and will only be applicable to newly 
manufactured units. FRA believes that these construction costs, if any, 
will be low. Moreover, few small entities purchase newly manufactured 
equipment; generally, these operators acquire used equipment from 
larger railroads. Accordingly, FRA does not consider this impact of 
this proposal to be significant for small entities.

C. Federalism

    Executive Order 13132, 64 FR 43255 (August 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, the agency 
consults with 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 final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. The 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, the final 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 
(former FRSA), repealed and recodified at 49 U.S.C 20106, and the 
former Safety Appliance Acts (former SAA), repealed and recodified at 
49 U.S.C. 20301-20304, 20306. See Public Law 103-272 (July 5, 1994). 
The former FRSA 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 ``local safety or security 
hazard'' exception to section 20106. Moreover, the former SAA has been 
interpreted by the Supreme Court as totally preempting the field ``of 
equipping cars with appliances intended for the protection of 
employees.'' See Southern Ry. Co. v. R.R. Comm'n of Ind., 236 U.S. 439, 
446, 35 S.Ct. 304, 305 (1915).
    In sum, FRA has analyzed this final rule in accordance with the 
principles

[[Page 23725]]

and criteria contained in Executive Order 13132. As explained above, 
FRA has determined that this rule has no federalism implications, other 
than the possible preemption of State laws under the former FRSA and 
the former SAA. Accordingly, FRA has determined that preparation of a 
federalism summary impact statement for this rule is not required.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979, Public Law 96-39 (July 26, 1979), 
prohibits Federal agencies from engaging in any standards or related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. Legitimate domestic objectives, such as safety, are 
not considered unnecessary obstacles. The statute also requires 
consideration of international standards and where appropriate, that 
they be the basis for U.S. standards. This rulemaking is purely 
domestic in nature and is not expected to affect trade opportunities 
for U.S. firms doing business overseas or for foreign firms doing 
business in the United States.

E. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                             Total annual       Average time per   Total annual
          CFR Section            Respondent  universe         responses             response       burden hours
----------------------------------------------------------------------------------------------------------------
231.33--Special Approval        AAR...................  5 petitions..........  160 hours........             800
 Petitions of an Existing
 Industry Safety Appliance
 Standard for New Car
 Construction.
--Statement Affirming Copy of   AAR...................  5 statements.........  30 minutes.......               3
 Special Approval Petition Has
 Been Served on RR Employee
 Representatives.
--Special Approval Petition     AAR...................  565 copies...........  2 hours..........           1,130
 Copies to RR Employee
 Representative/Other Parties.
--Statements of Interest to     5 Labor Groups/Public.  15 statements........  7 hours..........             105
 FRA.
--Comments on Special Approval  728 Railroads/5 Labor   25 comments..........  6 hours..........             150
 Petitions.                      Groups/Public.
--Disposition of Petitions:     AAR/5 Labor Groups/     1 hearing............  8 hours..........               8
 Hearings.                       Public.
--Disposition of Petitions:     AAR...................  1 document...........  3 hours..........               3
 Further Information Needed.
----------------------------------------------------------------------------------------------------------------
231.35--Petitions for           AAR...................  5 petitions..........  160 hours........             800
 Modification of an Approved
 Existing Industry Safety
 Appliance Standard for New
 Car Construction.
--Statement Affirming Copy of   AAR...................  5 statements.........  30 minutes.......               3
 Modification Petition Has
 Been Served on RR Employee
 Representatives.
--Modification Petition Copies  AAR...................  565 copies...........  2 hours..........           1,130
 to RR Employee Representative/
 Other Parties.
--Statements of Interest to     5 Labor Groups/Public.  15 statements........  7 hours..........             105
 FRA.
--Comments on Modification      728 Railroads/5 Labor   25 comments..........  6 hours..........             150
 Approval Petitions.             Groups/Public.
--Disposition of Petitions:     AAR...................  1 document...........  3 hours..........               3
 Further Information Needed.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, FRA 
Office of Safety, Information Clearance Officer, at 202-493-6292, or 
Ms. Kimberly Toone, FRA Office of Administration, Information Clearance 
Officer, at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via e-mail to the Office of Management and Budget at the following 
address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 
1995, Public Law 104-4 (March 22, 1995), 2 U.S.C. 1531, each Federal 
agency ``shall, unless otherwise prohibited by law, assess the effects 
of Federal regulatory actions on State, local, and Tribal governments, 
and the private sector (other than to the extent that such regulations 
incorporate requirements specifically set forth in law).'' Section 
204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal agency to 
develop an effective process to permit timely input by elected officers 
(or their designees) of State, local, and Tribal governments on a 
``significant

[[Page 23726]]

intergovernmental mandate.'' A ``significant intergovernmental 
mandate'' under the Act is any provision in a Federal agency regulation 
that would impose an enforceable duty upon State, local, and Tribal 
governments in the aggregate of $100 million (adjusted annually for 
inflation) (currently $140.8 million) in any one year. Section 203 of 
the Act, 2 U.S.C. 1533, which supplements section 204(a), provides 
that, before establishing any regulatory requirements that might 
significantly or uniquely affect small governments, the agency shall 
have developed a plan, which, among other things, must provide for 
notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity for these small governments to 
provide input in the development of regulatory proposals. The final 
rule does not contain any Federal intergovernmental or private sector 
mandates. Therefore, the requirements of Title II of the Unfunded 
Mandates Reform Act of 1995 do not apply.

G. Environmental Assessment

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures), 64 FR 28545 
(May 26, 1999), as required by the National Environmental Policy Act, 
42 U.S.C. 4321 et seq., other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this final 
rule is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 
1999). Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environ- ment. * 
* *
    The following classes of FRA actions are categorically excluded: 
* * *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

H. Energy Impact

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

I. Privacy Act

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

List of Subjects in 49 CFR Part 231

    Penalties, Railroad safety, Railroad safety appliances, Special 
approval process.

    For the reasons discussed in the preamble, FRA amends part 231 of 
subtitle B, chapter II of title 49 of the Code of Federal Regulations 
as follows:

PART 231--[AMENDED]

0
1. The authority citation for part 231 continues to read as follows:

    Authority:  49 U.S.C. 20102-20103, 20107, 20131, 20301-20303, 
21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Add Sec. Sec.  231.33 and 231.35 to read as follows:


Sec.  231.33  Procedure for special approval of existing industry 
safety appliance standards.

    (a) General. The following procedures govern the submission, 
consideration and handling of any petition for special approval of an 
existing industry safety appliance standard for new construction of 
railroad cars, locomotives, tenders, or other rail vehicles.
    (b) Submission. An industry representative may submit a petition 
for special approval of an existing industry safety appliance standard 
for new construction. A petition for special approval of an industry 
standard for safety appliances shall include the following:
    (1) The name, title, address, and telephone number of the primary 
individual to be contacted with regard to review of the petition.
    (2) An existing industry-wide standard that, at a minimum:
    (i) Identifies the type(s) of equipment to which the standard would 
be applicable and the section or sections within the safety appliance 
regulations that the existing industry standard would operate as an 
alternative to for new car construction;
    (ii) Ensures, as nearly as possible, based upon the design of the 
equipment, that the standard provides for the same complement of 
handholds, sill steps, ladders, hand or parking brakes, running boards, 
and other safety appliances as are required for a piece of equipment of 
the nearest approximate type(s) already identified in this part;
    (iii) Complies with all statutory requirements relating to safety 
appliances contained at 49 U.S.C. 20301 and 20302; and
    (iv) Addresses the specific number, dimension, location, and manner 
of application of each safety appliance contained in the industry 
standard;
    (3) Appropriate data or analysis, or both, for FRA to consider in 
determining whether the existing industry standard will provide at 
least an equivalent level of safety;
    (4) Drawings, sketches, or other visual aids that provide detailed 
information relating to the design, location, placement, and attachment 
of the safety appliances;
    (5) A demonstration of the ergonomic suitability of the proposed 
arrangements in normal use; and
    (6) A statement affirming that the petitioner has served a copy of 
the petition on designated representatives of the employees responsible 
for the equipment's operation, inspection, testing, and maintenance 
under this part, together with a list of the names and addresses of the 
persons served.

[[Page 23727]]

    (c) Service. (1) Each petition for special approval under paragraph 
(b) of this section shall be submitted to the FRA Docket Clerk, West 
Building Third Floor, Office of Chief Counsel, 1200 New Jersey Avenue, 
SE., Washington, DC 20590.
    (2) Service of each petition for special approval of an existing 
industry safety appliance standard under paragraph (b) of this section 
shall be made on the following:
    (i) Designated representatives of the employees responsible for the 
equipment's operation, inspection, testing, and maintenance under this 
part;
    (ii) Any organizations or bodies that either issued the standard to 
which the special approval pertains or issued the industry standard 
that is proposed in the petition; and
    (iii) Any other person who has filed with FRA a current statement 
of interest in reviewing special approvals under the particular 
requirement of this part at least 30 days but not more than 5 years 
prior to the filing of the petition. If filed, a statement of interest 
shall be filed with the FRA Docket Clerk, West Building Third Floor, 
Office of Chief Counsel, 1200 New Jersey Avenue, SE., Washington, DC 
20590, and shall reference the specific section(s) of this part in 
which the person has an interest. A statement of interest that properly 
references the specific section(s) in which the person has an interest 
will be posted in the docket to ensure that each statement is 
accessible to the public.
    (d) Federal Register document. FRA will publish a document in the 
Federal Register announcing the receipt of each petition received under 
paragraph (b) of this section. The document will identify the public 
docket number in the Federal eRulemaking Portal (FeP) where the 
contents of each petition can be accessed and reviewed. The FeP can be 
accessed 24 hours a day, seven days a week, via the Internet at the 
docket's Web site at http://www.regulations.gov. All documents in the 
FeP are available for inspection and copying on the Web site or are 
available for examination at the DOT Docket Management Facility, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, during regular business hours (9 a.m.-5 p.m.).
    (e) Comment. Not later than 60 days from the date of publication in 
the Federal Register concerning a petition received pursuant to 
paragraph (b) of this section, any person may comment on the petition. 
Any such comment shall:
    (1) Set forth specifically the basis upon which it is made and 
contain a concise statement of the interest of the commenter in the 
proceeding; and
    (2) Be submitted by mail or hand-delivery to the Docket Clerk, DOT 
Docket Management Facility, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, or electronically 
via the Internet at http://www.regulations.gov. Any comments or 
information sent directly to FRA will be immediately provided to the 
DOT FeP for inclusion in the public docket related to the petition. All 
comments should identify the appropriate docket number for the petition 
to which they are commenting.
    (f) Disposition of petitions. (1) FRA will conduct a hearing on a 
petition in accordance with the procedures provided in Sec.  211.25 of 
this chapter, if necessary.
    (2) FRA will normally act on a petition within 90 days of the close 
of the comment period related to the petition. If the petition is 
neither granted nor denied within that timeframe, the petition will 
remain pending unless withdrawn by the petitioner.
    (3) A petition may be:
    (i) Granted where it is determined that the petition complies with 
all applicable Federal statutes, that the petition complies with the 
requirements of this section, and the existing industry safety 
appliance standard provides at least an equivalent level of safety as 
the existing FRA standards;
    (ii) Denied where it is determined that the petition does not 
comply with an applicable Federal statute, the petition does not comply 
with the requirements of this section, or the existing industry safety 
appliance standard does not provide at least an equivalent level of 
safety as the existing FRA standards; or
    (iii) Returned to the petitioner for additional consideration where 
it is determined that further information is required or that the 
petition may be amended in a reasonable manner to comply with all 
applicable Federal statutes, that petition may be amended to comply 
with the requirements of this section, or to ensure that the existing 
industry standard provides at least an equivalent level of safety as 
the existing FRA standards. Where the petition is returned to the 
petitioner, FRA will provide written notice to the petitioner of the 
item(s) identified by FRA as requiring additional consideration. 
Petitioner shall reply within 60 days from the date of FRA's written 
notice of return for additional consideration or the petition will be 
deemed withdrawn, unless good cause is shown. Petitioner's reply shall:
    (A) Address the item(s) raised by FRA in the written notice of the 
return of the petition for additional consideration;
    (B) Comply with the submission requirements of paragraph (b) of 
this section; and
    (C) Comply with the service requirements in paragraph (c) of this 
section.
    (4) When FRA grants or denies a petition, or returns a petition for 
additional consideration, written notice will be sent to the petitioner 
and other interested parties.
    (5) If a petition is granted, it shall go into effect on the date 
specified in FRA's written notice granting the petition. If no date is 
specified in FRA's written notice granting the petition, the effective 
date shall begin on January 1st, not less than one (1) year and not 
more than two (2) years from the date of FRA's written notice granting 
the petition. FRA will place a copy of the approved industry safety 
appliance standard in the related public docket where it can be 
accessed by all interested parties.
    (6) A petition, once approved, may be re-opened upon good cause 
shown. Good cause exists where subsequent evidence demonstrates that an 
approved petition does not comply with an applicable Federal statute; 
that the approved petition does not comply with the requirements of 
this section; that the existing industry safety appliance standard does 
not provide at least an equivalent level of safety as the corresponding 
FRA regulation for the nearest railcar type(s); or that further 
information is required to make such a determination. When a petition 
is re-opened for good cause shown, it shall return to pending status 
and shall not be considered approved or denied.
    (g) Enforcement. Any industry standard approved pursuant to this 
section will be enforced against any person, as defined at 49 CFR 
209.3, who violates any provision of the approved standard or causes 
the violation of any such provision. Civil penalties will be assessed 
under this part by using the applicable defect code contained in 
appendix A to this part.


Sec.  231.35  Procedure for modification of an approved industry safety 
appliance standard for new railcar construction.

    (a) Petitions for modification of an approved industry safety 
appliance standard. An industry representative may seek modification of 
an existing industry safety appliance standard for new construction of 
railroad cars, locomotives, tenders, or other rail vehicles after the 
petition for special approval has been approved pursuant to

[[Page 23728]]

Sec.  231.33. The petition for modification shall include each of the 
elements identified in Sec.  231.33(b).
    (b) Service. (1) Each petition for modification of an approved 
industry standard under paragraph (a) of this section shall be 
submitted to the FRA Docket Clerk, West Building Third Floor, Office of 
Chief Counsel, 1200 New Jersey Avenue, SE., Washington, DC 20590.
    (2) Service of each petition for modification of an existing 
industry safety appliance standard under paragraph (a) of this section 
shall be made on the following:
    (i) Designated representatives of the employees responsible for the 
equipment's operation, inspection, testing, and maintenance under this 
part;
    (ii) Any organizations or bodies that either issued the standard 
incorporated in the section(s) of the rule to which the modification 
pertains or issued the industry standard that is proposed in the 
petition for modification; and
    (iii) Any other person who has filed with FRA a current statement 
of interest in reviewing special approvals under the particular 
requirement of this part at least 30 days but not more than 5 years 
prior to the filing of the petition. If filed, a statement of interest 
shall be filed with FRA's Associate Administrator for Safety and shall 
reference the specific section(s) of this part in which the person has 
an interest.
    (c) Federal Register document. Upon receipt of a petition for 
modification, FRA will publish a document in the Federal Register 
announcing the receipt of each petition received under paragraph (a) of 
this section. The document will identify the public docket number in 
the Federal eRulemaking Portal (FeP) where the contents of each 
petition can be accessed and reviewed. The FeP can be accessed 24 hours 
a day, seven days a week, via the Internet at the docket's Web site at 
http://www.regulations.gov. All documents in the FeP are available for 
inspection and copying on the Web site or are available for examination 
at the DOT Docket Management Facility, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, during 
regular business hours (9 a.m.-5 p.m.).
    (d) Comment. Not later than 60 days from the date of publication in 
the Federal Register concerning a petition for modification under 
paragraph (a) of this section, any person may comment on the petition. 
Any such comment shall:
    (1) Set forth specifically the basis upon which it is made, and 
contain a concise statement of the interest of the commenter in the 
proceeding; and
    (2) Be submitted by mail or hand-delivery to the Docket Clerk, DOT 
Docket Management Facility, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, or electronically 
via the Internet at http://www.regulations.gov. Any comments or 
information sent directly to FRA will be immediately provided to the 
DOT FeP for inclusion in the public docket related to the petition. All 
comments should identify the appropriate docket number for the petition 
to which they are commenting.
    (e) FRA Review. During the 60 days provided for public comment, FRA 
will review the petition. If FRA objects to the requested modification, 
written notification will be provided within this 60-day period to the 
party requesting the modification detailing FRA's objection.
    (f) Disposition of petitions for modification. (1) If no comment 
objecting to the requested modification is received during the 60-day 
comment period, provided by paragraph (d) of this section, or if FRA 
does not issue a written objection to the requested modification, the 
modification will become effective fifteen (15) days after the close of 
the 60-day comment period.
    (2) If an objection is raised by an interested party, during the 
60-day comment period, or if FRA issues a written objection to the 
requested modification, the requested modification will be treated as a 
petition for special approval of an existing industry safety appliance 
standard and handled in accordance with the procedures provided in 
Sec.  231.33(f).
    (3) A petition for modification, once approved, may be re-opened 
upon good cause shown. Good cause exists where subsequent evidence 
demonstrates that an approved petition does not comply with the an 
applicable Federal statute, that an approved petition does not comply 
with the requirements of this section; that the existing industry 
safety appliance standard does not provide at least an equivalent level 
of safety as the corresponding FRA regulation for the nearest railcar 
type(s); or that further information is required to make such a 
determination. When a petition is re-opened for good cause shown, it 
shall return to pending status and shall not be considered approved or 
denied.
    (g) Enforcement. Any modification of an industry standard approved 
pursuant to this section will be enforced against any person, as 
defined at 49 CFR 209.3, who violates any provision of the approved 
standard or causes the violation of any such provision. Civil penalties 
will be assessed under this part by using the applicable defect code 
contained in appendix A to this part.

    Issued in Washington, DC, on April 20, 2011.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2011-10015 Filed 4-27-11; 8:45 am]
BILLING CODE 4910-06-P