[Federal Register Volume 75, Number 127 (Friday, July 2, 2010)]
[Proposed Rules]
[Pages 38432-38441]
[FR Doc No: 2010-16153]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 127 / Friday, July 2, 2010 / Proposed
Rules

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 231

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

Railroad Safety Appliance Standards, Miscellaneous Revisions

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend the regulations related to safety
appliance arrangements on rail equipment in a manner that is expected
to 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 similar vehicles in lieu of the specific provisions currently
contained in part 231. It is anticipated that the proposed special
approval process will further railroad safety. It will allow FRA to
consider technological advancements and ergonomic design standards for
new car construction and ensure that modern rail equipment complies
with the applicable statutory and safety-critical regulatory
requirements related to safety appliances while providing the
flexibility to efficiently address safety appliance requirements on new
designs in the future for railroad cars, locomotives, tenders, or
similar vehicles.

DATES: (1) Written comments must be received by August 31, 2010.
Comments received after that date will be considered to the extent
possible without incurring additional delay or expense.
    (2) FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to August 31, 2010 one will be scheduled and
FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2008-0116 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal. Go
to http://www.regulations.gov. Follow the online instructions for
submitting comments.
    Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act section of this
document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Stephen J. Carullo, Railroad Safety
Specialist, Office of Safety, FRA, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone<PHONE_NUMBER><EMAIL_ADDRESS>or Stephen N. Gordon, Trial Attorney, Office of Chief Counsel, FRA,
1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590
(telephone<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

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 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 proposes to act
on AAR's request by amending 49 CFR part 231 to add sections 231.33 and
231.35 to the existing regulatory language. These new sections will
create a special approval process similar to what is found in parts 232
and 238. The proposed special approval process will enable 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 proposed sections 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 train service 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 train service employees were not safe. Employees regularly
controlled the speed of (and sometimes stopped) trains by using the
handbrakes. In many cases, this required train service 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 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 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 established the initial 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
NPRM

    The 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 car
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.
    Because modern designs often cannot be considered a car 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 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 car. 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.
    Together these factors can make compliance with the 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 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 non-voting
members), as well as ergonomics experts. The Task Force is developing
new industry standards for safety appliance arrangements on new car
construction. At this time, the Task Force has developed a base safety
appliance standard as well as industry safety appliance standards for
modern boxcars, covered hopper cars, and bulkhead flat cars, which FRA
expects 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 Task Force's new standards 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 proposing to
incorporate the standards into part

231 at this time. FRA prefers to utilize the process being proposed in
this NPRM to fully evaluate and assess the industry standards developed
by the Task Force to ensure that they are complete and enforceable.
Thus, FRA proposes to act on AAR's petition for rulemaking by
establishing a special approval process similar to that currently
contained in 49 CFR parts 232 and 238.
    Existing Sec.  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 special approval process being proposed for part 231
establishes a process for submitting, reviewing, and approving the use
of new standards as they are developed by the industry. It would also
allow for an industry representative to submit modifications of
industry-approved safety appliance standards for FRA's review and
approval. The proposed regulation closely follows the processes set
forth in Sec. Sec.  232.17, 238.21, and 238.230. FRA anticipates that
the proposed 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. Section-by-Section Analysis

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

    This proposed 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 its AAR Task Force, to create clear industry standards that
identify the appropriate safety appliance arrangements on railroad
cars, locomotives, tenders, or similar 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 Railroad Safety
Appliance Standards incorporating changes based on modern railcar
design, FRA expects that the proposed special approval process 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 car 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 AAR 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 proposed 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 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 contemplated by this proposed 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 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
ergonomic advancements with greater speed and efficiency.
    Proposed paragraph (b) establishes the process for submission of a
petition for special approval of an existing industry standard for new
car 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.
    Proposed paragraph (b)(2) sets forth the minimum requirements of
the petition for special approval of an existing industry safety
appliance standard. The petition must identify the type(s) of car to
which the standard 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 contained in the petition 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 Railroad Safety Appliance Standards encompassed in part
231 were promulgated to enforce specific statutory provisions, proposed
paragraph (b)(2) requires that the industry 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. Any such industry standard must provide at least the
equivalent level of safety as would otherwise be provided under FRA's
current regulations.

    Under proposed paragraph (b)(2), 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,
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.
    Finally, proposed paragraph (b)(2) requires 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.
    FRA requests comments concerning the information required in
proposed paragraph (b)(2). Specifically, FRA requests comments about
whether the information required in this paragraph is necessary and
sufficient to allow FRA to make an informed decision regarding a
petition for approval.
    Proposed paragraph (b)(3) 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.
    Proposed paragraph (c) sets up the service requirements for the
petition for special approval of an existing industry standard for new
car 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.
    Proposed 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.
    Proposed 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.
    Proposed 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.
    Proposed paragraph (f)(3) sets forth that a petition may be granted
where FRA determines 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 the requirements of Sec.
231.33 or that the existing industry safety appliance standard does not
provide at least an equivalent level of safety as the existing FRA
standard.
    In instances where FRA determines that further information is
required or that the petition may be amended in a reasonable manner to
comply with the requirements of Sec.  231.33 or to 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.
    Proposed paragraph (f)(5) provides that when a petition is granted,
it will go into effect 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. For example, if FRA were to approve a petition
on July 1, 2010, the industry standard would become effective on
January 1, 2012, for regulatory enforcement purposes. This will allow
the industry appropriate time to incorporate the standard, train
employees, and fit facilities to meet the new requirements. Also, a
copy of the approved industry safety appliance standard will be placed
in the related public docket by FRA where it can be accessed by all
interested parties.
    Proposed paragraph (f)(6) establishes the standard for reopening a
granted petition for special approval. A granted petition may be re-
opened 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 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 car type; or that further information is required to
make such a determination.
    Proposed 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 proposed section contains the proposed procedural requirements
for

modifying industry safety appliance standards that previously have been
approved by FRA. As in proposed 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 FRA
proposes disposing of the petition through the process laid out in
proposed Sec.  231.33(f). FRA expects that using the framework in
proposed 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 car type(s) prior to disposing of the petition for
modification.
    Proposed paragraph (a) provides that an industry representative may
seek modification of an existing industry safety appliance standard for
new car 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).
    Proposed paragraph (b) covers service of petitions for
modification. The procedures for service of petitions for modification
is the same as proposed in Sec.  231.33(c).
    Proposed 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).
    Proposed paragraph (d) provides for the same 60-day comment period
as proposed in Sec.  231.33(e).
    Proposed 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.
    Proposed 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.
    Proposed 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 DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies
and procedures. It is not considered a significant regulatory action
under section 3(f) of Executive Order 12866, 58 FR 51735 (September 30,
1993), 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). It merely seeks to add an alternative method of compliance
into the existing regulatory requirements contained in 49 CFR part 231.
The alternative method of compliance is expected to be in the form of a
special approval process that will allow FRA to accept new railcar
designs incorporating ergonomic design standards and technological
advancements. FRA anticipates that the implementation of the special
approval process in the railroad industry will generate a beneficial
effect on the National economy and will not have an economically
adverse impact of over $100 million per annum, as adjusted for
inflation.

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 proposed rule,
and certifies that this proposed 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. SBA's ``Size Standards'' may be altered by Federal agencies
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 proposed regulation. Consequently, this regulation could affect
a substantial number of small entities. However, FRA does not
anticipate that this regulation would impose a significant economic
impact on such entities.
    The proposed 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 proposed rule, if promulgated, 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 negligible. 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.
    FRA invites comments from all interested parties on this
Certification. FRA particularly encourages small entities that could
potentially be impacted by the proposed amendment to participate in the
public comment process by submitting comments on this assessment or
this rulemaking to the official U.S. Department of Transportation (DOT)
docket. A draft of the proposed rule has not been submitted to the
Small Business Administration (SBA) for formal review. However, FRA
will consider any comments submitted by the SBA in developing the final
rule.

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 NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
    However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970 (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. Commission of Indiana, 236
U.S. 439, 446, 35 S.Ct. 304, 305 (1915).
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under the former FRSA and the former SAA. Accordingly, FRA has
determined that preparation of a federalism summary impact statement
for this proposed 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 proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements,
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                Total
                                                             Total annual        Average time per       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 FRA..  5 Labor Groups/       15 statements.......  7 hours.............          105
                                    Public.
--Comments on Special Approval     728 Railroads/5       25 comments.........  6 hours.............          150
 Petitions.                         Labor 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 to  AAR.................  565 copies..........  2 hours.............        1,130
 RR Employee Representative/Other
 Parties.
--Statements of Interest to FRA..  5 Labor Groups/       15 statements.......  7 hours.............          105
                                    Public.
--Comments on Modification         728 Railroads/5       25 comments.........  6 hours.............          150
 Approval Petitions.                Labor 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.
    Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments
concerning: whether these information collection requirements are
necessary for the proper performance of the functions of FRA, including
whether the information has practical utility; the accuracy of FRA's
estimates of the burden of the information collection requirements; the
quality, utility, and clarity of the information to be collected; and
whether the burden of collection of information on those who are to
respond, including through the use of automated collection techniques
or other forms of information technology, may be minimized.
    For information or a copy of the paperwork package submitted to
OMB, contact Mr. Robert Brogan, FRA Office of Safety, Information
Clearance Officer, at<PHONE_NUMBER>, or Ms. Kimberly Toone, FRA Office
of Administration, Information Clearance Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
addresses<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    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 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
proposed amendment 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 proposed 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 proposed 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 environment.
* * * * *
    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
proposed 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 NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM is not a
``significant energy action'' within the meaning of Executive Order
13211.
I. Privacy Act
    FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000, 65 FR 19477-78, or
you may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.

List of Subjects in 49 CFR Part 231

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

Proposed Rule

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

PART 231--[AMENDED]

    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.

    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 similar 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;
    (iv) Addresses the specific number, dimension, location, and manner
of application of each safety appliance contained in the industry
standard;
    (v) Provides 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;
    (vi) Includes drawings, sketches, or other visual aids that provide
detailed information relating to the design, location, placement, and
attachment of the safety appliances; and
    (vii) Demonstrates the ergonomic suitability of the proposed
arrangements in normal use.
    (3) 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.
    (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 notice. FRA will publish a notice in the
Federal Register announcing the receipt of each petition received under
paragraph (b) of this section. The notice 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 website 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 of
the notice 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
the requirements of this section and that 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 the requirements of this section or that 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 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 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 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 car 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 car 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 similar vehicles after the
petition for special approval has been approved pursuant to 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 notice in the Federal Register
announcing the receipt of each petition received under paragraph (a) of
this section. The notice 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 of
the notice 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
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 car 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 June 29, 2010.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2010-16153 Filed 7-1-10; 8:45 am]
BILLING CODE 4910-06-P


	OFFICE OF PREVENTION, PESTICIDE

                                                                                AND TOXIC SUBSTANCES

  SEQ CHAPTER \h \r 1 MEMORANDUM

Date:  25-March-2009

SUBJECT:	Etoxazole

Amended Human Health Risk Assessment for Proposed Uses on Stone Fruits, Cucumber, Tomato, and Mint.

PC Code: 107091	DP Barcode:  D363386

Decision No.: 392380	Registration No.: 59639-138 and 59639-108

Petition No.: 8E7347	Regulatory Action: Section 3

Risk Assessment Type: Single Chemical Aggregate	Case No.:  None

TXR No.: None	CAS No.: 153233-91-1

MRID No.: None	40 CFR: 180.593

FROM:	Debra Rate, Ph.D., Biologist  SEQ CHAPTER \h \r 1

		Alternative Risk Integration and Assessment (ARIA)

		Risk Integration, Minor Use, and Emergency Response Branch (RIMUERB)

		Registration Division (RD; 7505P)

THROUGH:	William Cutchin, Acting Senior Branch Scientist

		ARIA/RIUMERB/RD (7505P)

				AND

John Redden, Team Leader

			ARIA/RIUMERB/RD (7505P)

TO:		Lara Nollen, Environmental Specialist

		Minor Use Team

		RIMUERB/RD (7505P)  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1

The risk assessment document, Human Health Risk Assessment for Proposed Uses on Stone Fruits, Cucumber, Tomato, and Mint (DP# 352616, D. Rate, 04/FEB/2009) has been amended to report the correct ground water numbers as provided by the Environment Fate and Effects Division (EFED) (DP Num: 352617, J. Meléndez, 19/DEC/2008).  This memorandum will address the changes to Section 5.1.9 and Table 5.1.9 in the previous human health risk assessment.  No other changes are required.

5.1.9	Drinking Water Residue Profile TC \l3 "5.1.9	Drinking Water Residue Profile

DP Num: 352617, J. Meléndez, 19/DEC/2008

 were incorporated in the Dietary Exposure Evaluation Model (DEEM-FCID™) into the food categories “water, direct, all sources” and “water, indirect, all sources.”

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Chemical	Acute (peak) Surface Water Concentration (ppb)1	Annual Average Surface Water Concentration (ppb) 1	Ground Water Concentration (ppb) 2

Etoxazole	6.07	0.618	0.00346

R-8	8.03	4.08	0.742

R-13	1.63	0.063	0.000644

Total	15.73	4.761	0.746

1.  FIRST

2.  SCI-GROW

Etoxazole	Amended Risk Assessment Document	DP Num: 363386

Page   PAGE  1  of   NUMPAGES  2


[Federal Register: September 28, 2010 (Volume 75, Number 187)]
[Notices]
[Page 59716-59717]
[DOCID:fr28se10-70]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9207-8; Docket ID No. EPA-HQ-ORD-2010-0633]

Draft Toxicological Review of Urea: In Support of Summary
Information on the Integrated Risk Information System (IRIS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of public comment period and listening session.

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SUMMARY: EPA is announcing a 60-day public comment period and a public
listening session for the external review draft human health assessment
titled, ``Toxicological Review of Urea: In Support of Summary
Information on the Integrated Risk Information System (IRIS)'' [EPA/
635/R-10/005]. The draft assessment was prepared by the National Center
for Environmental Assessment (NCEA) within the EPA Office of Research
and Development (ORD). EPA is releasing this draft assessment solely
for the purpose of pre-dissemination peer review under applicable
information quality guidelines. This draft assessment has not been
formally disseminated by EPA. It does not represent and should not be
construed to represent any Agency policy or determination. After public
review and comment, an EPA contractor will convene an expert panel for
independent external peer review of this draft assessment. The public
comment period and external peer review meeting are separate processes
that provide opportunities for all interested parties to comment on the
assessment. The external peer review meeting will be scheduled at a
later date and announced in the Federal Register. Public comments
submitted during the public comment period will be provided to the
external peer reviewers before the panel meeting and considered by EPA
in the disposition of public comments. Public comments received after
the public comment period closes will not be submitted to the external
peer reviewers and will only be considered by EPA if time permits.
    The listening session will be held on November 16, 2010, during the
public comment period for this draft assessment. The purpose of the
listening session is to allow all interested parties to present
scientific and technical comments on draft IRIS health assessments to
EPA and other interested parties attending the listening session. EPA
welcomes the comments that will be provided to the Agency by the
listening session participants. The comments will be considered by the
Agency as it revises the draft assessment after the independent
external peer review. If listening session participants would like EPA
to share their comments with the external peer reviewers, they should
also submit written comments during the public comment period using the
detailed and established procedures described in the SUPPLEMENTARY
INFORMATION section of this notice.

DATES: The public comment period begins September 28, 2010, and ends
November 29, 2010. Comments should be in writing and must be received
by EPA by November 29, 2010.
    The listening session on the draft assessment for urea will be held
on November 16, 2010, beginning at 9 a.m. and ending at 4 p.m., Eastern
Daylight Time. To present at the listening session, indicate in your
registration that you want to make oral comments at the session and
provide the length of your presentation. To attend the listening
session, register by November 9, 2010, via e-mail at
<EMAIL_ADDRESS>(subject line: Urea Listening Session), by phone:
703-750-3000, ext. 545, or toll free at 1-800-2-VERSAR (ask for Kathy
Coon, the Urea Listening Session Coordinator), or by faxing a
registration request to<PHONE_NUMBER> (please reference the ``Urea
Listening Session'' and include your name, title, affiliation, full
address and contact information). When you register, please indicate if
you will need audio-visual equipment (e.g., laptop computer and slide
projector). In general, each presentation should be no more than 30
minutes. If, however, there are more requests for presentations than
the allotted time allows, then the time limit for each presentation
will be adjusted. A copy of the agenda for the listening session will
be available at the meeting. If no speakers have registered by November
9, 2010, the listening session will be cancelled, and EPA will notify
those registered of the cancellation.

ADDRESSES: The draft ``Toxicological Review of Urea: In Support of
Summary Information on the Integrated Risk Information System (IRIS)''
is available primarily via the Internet on the NCEA home page under the
Recent Additions and Publications menus at http://www.epa.gov/ncea. A
limited number of paper copies are available from the Information
Management Team (Address: Information Management Team, National Center
for Environmental Assessment (Mail Code: 8601P), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>). If you request a
paper copy, please provide your name, mailing address, and the draft
assessment title.
    Comments may be submitted electronically via http://
www.regulations.gov, by e-mail, by mail, by facsimile, or by hand
delivery/courier. Please follow the detailed instructions provided in
the SUPPLEMENTARY INFORMATION section of this notice.
    The listening session on the draft urea assessment will be held at
the EPA offices at Potomac Yard (North Building), Rm. 7100, 2733 South
Crystal Drive, Arlington, Virginia 22202. Please note that to gain
entrance to this EPA building to attend the meeting, you must have
photo identification and must register at the guard's desk in the
lobby. The guard will retain your photo identification and will provide
you with a visitor's badge. At the guard's desk, you should provide the
name Christine Ross and the telephone number<PHONE_NUMBER> to the guard
on duty. The guard will contact Ms. Ross who will meet you in the
reception area to escort you to the meeting room. When you leave the
building, please return your visitor's badge to the guard and you will
receive your photo identification.
    A teleconference line will also be available for registered
attendees/speakers. The teleconference number is<PHONE_NUMBER>, and the
access code is<PHONE_NUMBER>, followed by the pound sign ().
The teleconference line will be activated at 8:45 a.m., and you will be
asked to identify yourself and your affiliation at the beginning of the
call.
    Information on Services for Individuals with Disabilities: EPA
welcomes public attendance at the urea listening session and will make
every effort to accommodate persons with disabilities. For information
on access or services for individuals with disabilities, please contact
Christine Ross by phone at<PHONE_NUMBER> or by e-mail at
<EMAIL_ADDRESS>To request accommodation for a
disability, please contact Ms. Ross, preferably at least 10 days prior
to the meeting, to give EPA as much time as possible to process your
request.
    Additional Information: For information on the docket,
www.regulations.gov, or the public comment period, please contact the
Office of Environmental Information (OEI) Docket (Mail Code: 2822T),
U.S.

Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>;
or e-mail<EMAIL_ADDRESS>    For information on the public listening session, please contact
Christine Ross, IRIS Staff, National Center for Environmental
Assessment (Mail Code: 8601P), U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone: 703-
347-8592; facsimile:<PHONE_NUMBER>; or e-mail:
<EMAIL_ADDRESS>    For information on the draft assessment, please contact Amanda
Persad, National Center for Environmental Assessment, Mail Code: B-243-
01, U.S. Environmental Protection Agency, Research Triangle Park, NC
27711; telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>; or e-mail:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Information About IRIS

    EPA's IRIS is a human health assessment program that evaluates
quantitative and qualitative risk information on effects that may
result from exposure to chemical substances found in the environment.
Through the IRIS Program, EPA provides the highest quality science-
based human health assessments to support the Agency's regulatory
activities. The IRIS database contains information for more than 540
chemical substances that can be used to support the first two steps
(hazard identification and dose-response evaluation) of the risk
assessment process. When supported by available data, IRIS provides
oral reference doses (RfDs) and inhalation reference concentrations
(RfCs) for chronic noncancer health effects and cancer assessments.
Combined with specific exposure information, government and private
entities use IRIS to help characterize public health risks of chemical
substances in a site-specific situation and thereby support risk
management decisions designed to protect public health.

II. How to Submit Comments to the Docket at http://www.regulations.gov

    Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2010-
0633, by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Facsimile:<PHONE_NUMBER>.
     Mail: Office of Environmental Information (OEI) Docket
(Mail Code: 2822T), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460. The telephone number is
202-566-1752. If you provide comments by mail, please submit one
unbound original with pages numbered consecutively, and three copies of
the comments. For attachments, provide an index, number pages
consecutively with the comments, and submit an unbound original and
three copies.
     Hand Delivery: The OEI Docket is located in the EPA
Headquarters Docket Center, EPA West Building, Room 3334, 1301
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>. Deliveries are only accepted during the
docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information. If you provide comments by
hand delivery, please submit one unbound original with pages numbered
consecutively, and three copies of the comments. For attachments,
provide an index, number pages consecutively with the comments, and
submit an unbound original and three copies.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-ORD-
2010-0633. Please ensure that your comments are submitted within the
specified comment period. Comments received after the closing date will
be marked ``late,'' and may only be considered if time permits. It is
EPA's policy to include all comments it receives in the public docket
without change and to make the comments available online at http://
www.regulations.gov, including any personal information provided,
unless comments include information claimed to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Do not submit information that you consider to be CBI or
otherwise protected through http://www.regulations.gov or e-mail. The
http://www.regulations.gov Web site is an ``anonymous access'' system,
which means that EPA will not know your identity or contact information
unless you provide it in the body of your comments. If you send e-mail
comments directly to EPA without going through http://
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comments that are placed in the public
docket and made available on the Internet. If you submit electronic
comments, EPA recommends that you include your name and other contact
information in the body of your comments and with any disk or CD-ROM
you submit. If EPA cannot read your comments due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comments. Electronic files should avoid the use
of special characters and any form of encryption and be free of any
defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at the OEI Docket in the
EPA Headquarters Docket Center.

    Dated: September 20, 2010.
Rebecca Clark,
Acting Director, National Center for Environmental Assessment.
[FR Doc. 2010-24305 Filed 9-27-10; 8:45 am]
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