Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment; End-of-Train Devices

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 17, 2001 (Volume 66, Number 11)]
[Rules and Regulations]
[Page 4103-4152]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja01-10]

[[Page 4103]]

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Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Parts 229, 231, and 232

Brake System Safety Standards for Freight and Other Non-Passenger
Trains and Equipment; End-of-Train Devices; Final Rule

[[Page 4104]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229, 231, and 232

[FRA Docket No. PB-9; Notice No. 17]
RIN 2130-AB16

Brake System Safety Standards for Freight and Other Non-Passenger
Trains and Equipment; End-of-Train Devices

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final Rule.

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SUMMARY: FRA is issuing revisions to the regulations governing the
power braking systems and equipment used in freight and other non-
passenger railroad train operations. The revisions are designed to
achieve safety by better adapting the regulations to the needs of
contemporary railroad operations and facilitating the use of advanced
technologies. These revisions are being issued in order to comply with
Federal legislation, to respond to petitions for rulemaking, and to
address areas of concern derived from experience in the application of
existing standards governing these operations.

EFFECTIVE DATE: April 1, 2001. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of April 1, 2001.

ADDRESSES: Any petition for reconsideration should reference FRA Docket
No. PB-9, Notice 17, and be submitted in triplicate to FRA Docket
Clerk, Office of Chief Counsel, RCC-10, 1120 Vermont Avenue, Mail Stop
10, Washington, DC 20590.

FOR FURTHER INFORMATION, CONTACT: Leon Smith, Deputy Regional
Administrator--Region 3, FRA Office of Safety, RRS-14, 1120 Vermont
Avenue, Stop 25, Washington, DC 20590 (telephone 404-562-3800), or
Thomas Herrmann, Trial Attorney, Office of the Chief Counsel, RCC-10,
1120 Vermont Avenue, Stop 10, Washington, DC 20590 (telephone 202-493-
6053).

SUPPLEMENTARY INFORMATION:

I. Background

In 1992, Congress amended the Federal rail safety laws by adding
certain statutory mandates related to power brake safety. See 49 U.S.C.
20141. These amendments specifically address the revision of the power
brake regulations by adding a new subsection which states:

(r) POWER BRAKE SAFETY.--(1) The Secretary shall conduct a
review of the Department of Transportation's rules with respect to
railroad power brakes, and not later than December 31, 1993, shall
revise such rules based on such safety data as may be presented
during that review.
(2) In carrying out paragraph (1), the Secretary shall, where
applicable, prescribe standards regarding dynamic brake equipment. *
* *

Pub. L. 102-365, section 7; codified at 49 U.S.C. 20141, superseding
45 U.S.C. 431(r).

In response to the statutory mandate, the various recommendations
and petitions for rulemaking, and due to its own determination that the
power brake regulations were in need of revision, FRA published an
Advance Notice of Proposed Rulemaking (ANPRM) on December 31, 1992 (57
FR 62546), and conducted a series of public workshops in early 1993.
The ANPRM provided background information and presented questions on
various subjects including the following: the use and design of end-of-
train (EOT) telemetry devices; the air flow method of train brake
testing; the additional testing of train air brakes during extremely
cold weather; the training of employees to perform train brake tests
and inspections; computer-assisted braking systems; the operation of
dynamic brakes on locomotives; and other miscellaneous subjects
relating to conventional brake systems as well as information regarding
high speed passenger train brakes. The questions presented in the ANPRM
on the various topics were intended as fact-finding tools and were
meant to elicit the views of those persons outside FRA charged with
ensuring compliance with the power brake regulations on a day-to-day
basis.
Based on the comments and information received, FRA published a
Notice of Proposed Rulemaking (1994 NPRM) regarding revisions to the
power brake regulation. See 59 FR 47676 (September 16, 1994). In the
1994 NPRM, FRA proposed a comprehensive revision of the power brake
regulations which attempted to preserve the useful elements of the
current regulatory system in the framework of an entirely new document.
FRA attempted to delineate the requirements for conventional freight
braking systems from the more diverse systems for various categories of
passenger service. In developing the NPRM, FRA engaged in a systems
approach to the power brake regulations. FRA considered all aspects of
a railroad operation and the effects that the entire operation had on
the train and locomotive power braking systems. Therefore, the proposed
requirements not only addressed specific brake equipment and inspection
requirements, but also attempted to encompass other aspects of a
railroad's operation which directly affect the quality and performance
of the braking system, such as personnel qualifications; maintenance
requirements; written procedures governing operation, maintenance, and
inspection; record keeping requirements; and the development and
integration of new technologies.
Following publication of the 1994 NPRM in the Federal Register, FRA
held a series of public hearings in 1994 to allow interested parties
the opportunity to comment on specific issues addressed in the NPRM.
Public hearings were held in Chicago, Illinois on November 1-2; in
Newark, New Jersey on November 4; in Sacramento, California on November
9; and in Washington, DC on December 13-14, 1994. These hearings were
attended by numerous railroads, organizations representing railroads,
labor organizations, rail shippers, and State governmental agencies.
Due to the strong objections raised by a large number of commenters at
these public hearings, FRA announced by notice published on January 17,
1995 that it would defer action on the NPRM and permit the submission
of additional comments prior to making a determination as to how it
would proceed in this matter. See 60 FR 3375. Although the comment
period officially closed April 1, 1995, FRA continued to receive
comments on the NPRM as well as other suggested alternatives well into
October 1995.
Furthermore, beginning in mid-1995, FRA internally committed to the
process of establishing the Railroad Safety Advisory Committee (RSAC).
The determination to develop the RSAC was based on FRA's belief that
the continued use of ad hoc collaborative procedures for appropriate
rulemakings was not the most effective means of accomplishing its goal
of a more consensual regulatory program. FRA believed that the
establishment of an advisory committee to address railroad safety
issues would provide the best opportunity for creating a consensual
regulatory program to benefit the Administrator in the conduct of her
statutory responsibilities. FRA envisioned that the RSAC would allow
representatives from management, labor, FRA, and other interested
parties to cooperatively address safety problems by identifying the
best solutions based on agreed-upon facts, and, where regulation
appears necessary, by identifying regulatory options to implement these
solutions. The process of establishing the RSAC was not complete until
March 1, 1996, and on March 11, 1996, FRA published a notice

[[Page 4105]]

in the Federal Register that the Committee had been established. See 61
FR 9740.
In the interim, based on these considerations and after review of
all the comments submitted, FRA published a notice in the Federal
Register on February 21, 1996, stating that, in order to limit the
number of issues to be examined and developed in any one proceeding,
FRA would proceed with the revision of the power brake regulations via
three separate processes. See 61 FR 6611. In light of the testimony and
comments received on the 1994 NPRM, emphasizing the differences between
passenger and freight operations and the brake equipment utilized by
the two, FRA decided to separate passenger equipment power brake
standards from freight equipment power brake standards. As passenger
equipment power brake standards are a logical subset of passenger
equipment safety standards, it was determined that the passenger
equipment safety standards working group would assist FRA in developing
a second NPRM covering passenger equipment power brake standards. See
49 U.S.C. 20133(c). In addition, in the interest of public safety and
due to statutory as well as internal commitments, FRA determined that
it would separate the issues related to two-way EOTs from both the
passenger and freight issues, address them in a public regulatory
conference, and issue a final rule on the subject as soon as
practicable. A final rule on two-way EOTs was issued on December 27,
1996. See 62 FR 278 (January 2, 1997). Furthermore, it was announced
that a second NPRM covering freight equipment power brake standards
would be developed with the assistance of RSAC. At the Committee's
inaugural meeting on April 1-2, 1996, the RSAC officially accepted the
task of assisting FRA in development of revisions to the regulations
governing power brake systems for freight equipment. See 61 FR 29164.
Members of RSAC nominated individuals to be members of the Freight
Power Brake Working Group (Working Group) tasked with making
recommendations regarding revision of the power regulations applicable
to freight operations. The Working Group was comprised of thirty-one
voting members as well as a number of alternates and technical support
personnel. The following organizations were represented by a voting
member and/or an alternate on the Working Group:

Association of American Railroads (AAR)
The American Short Line Railroad Association (ASLRA)
Brotherhood of Locomotive Engineers (BLE)
The Burlington Northern and Santa Fe Railway Company (BNSF)
Canadian National Railroads (CN)
Canadian Pacific Rail Systems (CP)
Consolidated Rail Corporation (CR)
CSX Transportation, Incorporated (CSX)
Illinois Central Railroad Company (IC)
International Association of Machinists & Aerospace Workers (IAMAW)
National Transportation Safety Board (NTSB)(Advisor)
National Association of Regulatory Commissioners (NARUC)
California Public Utilities Commission (CAPUC)
Norfolk Southern Corporation (NS)
Railway Progress Institute (RPI)
Sheet Metal Workers International Association (SMWIA)
Southern Pacific Lines (SP)
Transportation Communications International Union/Brotherhood of
Railway Carmen (TCU/BRC)
Transport Workers Union of America (TWU)
Union Pacific Railroad Company (UP)
United Transportation Union (UTU)

The Working Group held seven multi-day sessions in which all
members of the working group were invited. These sessions were held on
the following dates:
May 15-17, 1996 in Washington D.C.;
June 11-13, 1996 in Chicago, Illinois;
July 31, 1996 in Chicago, Illinois;
August 21-23, 1996 in Annapolis, Maryland;
September 26-27, 1996 in Washington D.C.;
October 29-30, 1996 in Washington D.C.; and
December 4, 1996 in St. Louis, Missouri.
General minutes of each of these meetings are contained in FRA
Docket PB-9 and are available for public inspection during the times
and at the location noted previously. In addition to these meetings,
there were numerous meetings conducted by smaller task force groups
designated by the Working Group to further develop various issues. All
of these smaller task forces were made up of various members of the
Working Group or their representatives, with each task force being
represented by management, labor, FRA, and other interested parties.
The Working Group designated smaller task forces to address the
following issues: Dry air; dynamic brakes; periodic maintenance and
testing; electronically controlled locomotive brakes; and inspection
and testing requirements. These task forces were assigned the job of
developing the issues related to the broad topics, presenting reports
to the larger Working Group, and if possible making recommendations to
the Working Group for addressing the issues.
Although the Working Group discussed, debated, and attempted to
reach consensus on various issues related to freight power brakes,
consensus could not be reached. However, the working group in
conjunction with the various task forces developed a wealth of
information on various issues and further clarified the parties'
positions regarding how the issues could or should be addressed in any
regulation. The major cluster of issues, upon which resolution of many
of the other issues rested, were the requirements related to the
inspection and testing of brake equipment. The inspection and testing
task force met on numerous occasions and gathered and reviewed data,
and the labor and rail management representatives to the task force
drafted various proposals and options related to the inspection and
testing of freight brake equipment. The Working Group discussed the
proposals and investigated many of the costs and benefits related to
the various proposals as well as the safety implications; however, the
Working Group could not reach any type of consensus position.
Consequently, FRA declared that an impasse had been reached and
announced, at the December 4, 1996 meeting of the Working Group, that
FRA would proceed unilaterally with the drafting of the NPRM.
Subsequent to December 4, 1996, several members of the Working
Group, including representatives from both rail management and labor,
continued informal discussions of some of the issues related to the
inspection and testing of freight equipment. These representatives
informed FRA that a consensus proposal might be possible, provided that
the Working Group were permitted to continue deliberations.
Consequently, FRA agreed to reconvene the Working Group, and in April
1997 three additional meetings were conducted on the following dates:
April 2-3 in Kansas City, Missouri;
April 10-11 in Phoenix, Arizona; and
April 23 in Jacksonville, Florida.
Representatives of both rail management and rail labor presented
the Working Group with inspection and testing proposals for
consideration and review both before and during this period. Although
the proposals were discussed and deliberated, the Working Group was
once again unsuccessful in

[[Page 4106]]

reaching consensus on any of the freight power brake inspection and
testing issues. Consequently, by letter dated May 29, 1997, FRA
informed the members of the Working Group that FRA would be withdrawing
the freight power brake task from the Working Group at the next full
RSAC meeting on June 24, 1997. FRA provided this notice to avoid any
misunderstanding regarding the process by which the proposed rule would
be drafted. FRA also informed the members of the Working Group that it
would not invest further time in attempting to reach consensus unless
all other members of the Working Group jointly indicated that they have
reached consensus on a proposal and wanted to discuss it with FRA. FRA
noted that if that were to occur prior to June 24, 1997, it would
reconsider withdrawing the task from RSAC. As no consensus proposal was
presented to FRA prior to June 24, 1997, FRA withdrew the task from the
Working Group and informed the members of RSAC that FRA would proceed
independently in the drafting of a freight power brake NPRM.
FRA carefully considered the information, data, and proposals
developed by the Freight Power Brake Working Group as well as all the
oral and written comments offered by various parties regarding the 1994
NPRM on power brakes when developing a revised power brake NPRM. On
September 9, 1998, an NPRM (1998 NPRM) was published in the Federal
Register proposing brake system safety standards for freight trains and
equipment. See 63 FR 48294 (September 9, 1998).
As evidenced by the preceding discussion, FRA spent years
developing the 1998 proposed power brake regulations. During that time,
FRA instituted rulemakings to address passenger and commuter operations
and equipment and two-way end-of-train devices, and developed a channel
of communication to address tourist and excursion operational concerns.
Consequently, the 1998 proposal focused solely on freight and other
non-passenger operations. FRA did not, for the most part, attempt to
include provisions related to the inspection and maintenance of
locomotive braking systems or to the performance of other mechanical
inspections that are currently addressed by other parts of the
regulations. FRA believed that although those requirements are
interrelated to the inspection, testing, and maintenance of freight
power brakes, they are adequately addressed in other regulations and
would only add to the complexity of the proposal, causing confusion and
misunderstanding by members of the regulated community.
When developing the 1998 NPRM, FRA determined that the proposal
would closely track the existing requirements related to the
inspection, testing, and maintenance of the braking systems used in
freight operations. Although FRA recognized that the current regulatory
scheme tended to create incentives to ``overlook'' defects or fail to
conduct vigorous inspections, FRA also believed that the current
regulatory scheme is an effective and proven method of ensuring safety
and that many of the ``negative incentives'' could be greatly reduced
by strict and aggressive enforcement coupled with moderate revisions to
address specific concerns raised by interested parties. Furthermore,
representatives of both rail labor and rail management indicated that
if a consensus proposal could not be developed then FRA should proceed
on its own with developing a proposal which tracks the current
requirements, and that FRA should strictly enforce those requirements.
The 1998 NPRM proposed a moderate, although comprehensive, revision
of the existing requirements related to the inspection, testing, and
maintenance of brake equipment used in freight operations. The proposal
attempted to balance the concerns of rail labor and management and
increase the effectiveness of the regulation. In the 1998 NPRM, FRA
attempted to reorganize, update, and clarify the existing regulations
related to freight power brakes and eliminate potential loopholes
created by the existing regulatory language. Furthermore, completely
new requirements were proposed to address the qualifications of those
individuals conducting brake inspections and tests. FRA also proposed
requirements related to the movement of freight equipment with
defective or inoperative brakes which were consistent with existing
statutory requirements and other federal regulations addressing the
movement of defective freight equipment. The 1998 NPRM also attempted
to codify existing maintenance requirements related to the brake system
and its components and prevent unilateral changes to those provisions
by the very party to which they apply. Moreover, the proposal also
contained specific requirements related to dynamic brakes and
requirements aimed at increasing the quality of air introduced into
brake systems by yard air sources.
In addition to the above, the 1998 proposal also contained various
incentives to the railroads to encourage the performance of quality
brake inspections, particularly at locations where trains originate.
These included incentives to use qualified mechanical forces to conduct
brake system tests at major terminals where long-distance trains
originate in order to move these trains greater distances between brake
inspections than existing regulations permitted. Consequently, the 1998
proposal retained the basic inspection intervals and requirements
contained in the existing regulations and preserved the useful elements
of the existing system, but also proposed additions, clarifications,
and modifications that FRA believed would increase the safety,
effectiveness, and enforceability of the regulations.
Following publication of the 1998 NPRM, FRA held two public
hearings and a public technical conference to allow interested parties
the opportunity to comment on specific issues addressed in the NPRM.
The public hearings were held in Kansas City, Missouri on October 26
and in Washington, DC on November 13, 1998. The public technical
conference was conducted in Walnut Creek, California on November 23 and
24, 1998. The hearings and technical conference were attended by
numerous railroads, organizations representing railroads, labor
organizations, rail shippers, and State governmental agencies. During
the hearings and technical conference a vast amount of oral information
was presented, and a considerable number of issues were raised and
discussed in detail.
Subsequent to conducting these public hearings and technical
conference, FRA issued a notice extending the comment period on the
NPRM from January 15, 1999 to March 1, 1999. See 64 FR 3273. This
extension was provided based on the requests of several interested
parties for more time in which to develop their responses. At the
public hearings and technical conference conducted in relation to the
NPRM and in written comments submitted subsequent to the public
hearings and technical conference, concerns were raised regarding the
data discussed by FRA in the NPRM. The comments raised concerns
regarding FRA's collection of data related to FRA's inspection activity
and the number of conditions not in compliance with Federal regulations
found during that inspection activity. The comments and correspondence
received alleged that there were substantial problems with FRA's
database, that there had been substantial overreporting of the number
of units inspected, and that there had been a systematic deflation of
power brake defect ratios.

[[Page 4107]]

As the allegations and concerns raised were general in nature, FRA
believed it prudent and necessary to allow interested parties to fully
explain and discuss their concerns. Therefore, FRA conducted a public
meeting on May 27, 1999 to permit the exchange of information and
concerns regarding FRA's database and the information developed from
that database. See 64 FR 23816 (May 4, 1999). The purpose of the
meeting was to allow FRA to provide information regarding its internal
review of the data and address some of the concerns raised as well as
to allow interested parties to further develop and articulate the
issues and concerns they had with regard to the data gathered and
presented by FRA in the NPRM.
FRA has carefully considered all the information, data, and
proposals submitted in relation to FRA Docket PB-9 when developing this
final rule. This includes: the information, data and proposals
developed by the RSAC Freight Power Brake Working Group; all oral and
written comments submitted in relation to the 1994 NPRM on power
brakes; and all oral and written comments submitted regarding the 1998
NPRM on freight power brakes. In addition to the preceding information,
FRA's knowledge and experience with enforcing the existing power brake
regulations were also relied upon when developing this final rule.

II. Overview of Comments and General FRA Conclusions

The following discussions are grouped by major themes and issues
addressed in the 1998 NPRM and the oral and written comments submitted
in relation to that document. In each of the major issue areas, FRA has
attempted to outline the significant portions of the proposal, discuss
the comments received on the proposal and any alternative approach
recommended, and provide a general idea of how FRA has decided to
address the issues or approaches.

A. Accident/Incident History and Defective Equipment

The 1998 NPRM contained a detailed discussion regarding the
accident/incident data which FRA considered when developing the
proposal. In that discussion, FRA noted that it considers a variety of
factors in attempting to determine the relative condition of the
industry as it relates to the safety of train power brake systems. Two
of the factors considered when making this assessment are the number of
recent brake-related incidents and the amount of defective brake
equipment recently discovered operating over the railroad system, both
of which provide some indication as to the potential or likelihood of
future brake-related incidents. Due to concerns raised in both written
comments and at the public meeting conducted on May 27, 1999, regarding
the accident/incident data and power brake defect ratio data discussed
above, FRA believes it is necessary to further explain how these data
were used in developing this final rule.
1. Accident/Incident Data
In order to determine the potential quantifiable safety benefits to
be derived from the provisions proposed in the NPRM and either retained
or modified in this final rule, FRA conducted a review of all
accidents/incidents reported to FRA to determine which incidents/
accidents could potentially have been prevented had the provisions of
the rule been in place. For purposes of the NPRM, FRA identified a
brake-related incident as being an incident reported to FRA as being
caused by one of the following: brake rigging down or dragging; air
hose uncoupled or burst; broken brake pipe or connections; other brake
components damaged, worn, broken or disconnected; brake valve
malfunction (undesired emergency); brake valve malfunction (stuck
brake); hand brake broken or defective; hand brake linkage and/or
connections broken or defective. For purposes of the NPRM, FRA did not
consider brake pipe obstruction-related incidents because FRA believed
they had been fully considered at the time that FRA promulgated the
final rule relating to the use of two-way end-of-train devices.
In written comments and at the public meeting held in conjunction
with the NPRM, several labor representatives raised concerns regarding
FRA's reliance on accident/incident information which is essentially
reported to FRA by the railroads. These representatives contend that
railroads have an economic incentive to report accidents/incidents as
being due to human factors rather than to mechanical problems or
deficiencies. Thus, they contend that the potential safety benefits
identified by FRA in the NPRM are inaccurate and underestimated because
the data used to determine those benefits are developed by the
railroads. FRA tends to agree with the concerns raised by these
commenters and raised this concern in its discussion of the accident/
incident data in the NPRM.
In the NPRM, FRA acknowledged that the presented brake-related
incidents most likely did not accurately reflect the total number of
incidents that were potentially linked, in some part, to brake-related
causes and did not provide a complete picture of the costs associated
with the identified incidents. See 63 FR 48297. FRA recognized that the
information on most incidents is provided by the railroads which
generally identify the direct cause of an incident but may not
sufficiently identify all of the contributory causes in a manner to
permit FRA to conclude that the brake system played a part in the
incident. Thus, FRA acknowledged that there may be numerous incidents
which occurred in the industry which were at least partially due to
brake-related problems, but which were ultimately more closely linked
to human error or other mechanical problems and thus, were reported to
FRA under different cause codes. However, as it is extremely difficult
to identify those accidents/incidents that may have been in some part
related to a brake problem, FRA elected to include only those accidents
specifically identified as brake-related in its quantified safety
benefits and included other potential incidents as qualitative safety
benefits in the NPRM. FRA also recognized that the damage costs
provided to FRA by the railroads for the incidents identified in the
NPRM failed to consider all of the costs associated with an accident
such as: loss of lading; wreck clearance; track delay; environmental
clean-up; removal of damaged equipment; evacuations; or the impact on
local traffic patterns. See 63 FR 48297. Thus, for purposes of the
NPRM, the property damages reported by the railroads were multiplied by
a factor of 1.5625 in an effort to capture these non-reported damages.
See 63 FR 48297.
In calculating the potential quantifiable safety benefits to be
derived from this final rule, FRA has slightly expanded the criteria
for determining the accidents/incidents which are addressed by this
final rule. Thus, for purposes of this final rule the quantified safety
benefits include a percentage of certain types of accidents reported as
being due to human error or other than a brake-related mechanical
problem. The quantified safety benefits for this final rule also
include a percentage of those incidents which are considered brake pipe
obstruction-related. Although these accidents were considered in
relation to the two-way EOT final rule, FRA believes that this final
rule will prevent an additional percentage of those incidents that were
not captured by the two-way EOT final rule.
Table 1 below contains a compilation of the relevant incidents that
FRA

[[Page 4108]]

considers to be preventable that have been reported to FRA from 1994
through 1998. The incidents included in this table contain incidents
reported to FRA as being caused by one of the following: Brake rigging
down or dragging; air hose uncoupled or burst; broken brake pipe or
connections; other brake components damaged, worn, broken or
disconnected; brake valve malfunction (undesired emergency); brake
valve malfunction (stuck brake); hand brake broken or defective; hand
brake linkage and/or connections broken or defective. Table 1 also
contains incidents reported as being related to brake pipe obstructions
and certain brake-related human factor incidents which include: runaway
cuts of cars; train handling; and improper use of brakes. FRA believes
that various provisions of this final rule have the potential of
preventing a certain percentage of the incidents reported as being due
to these causes. However, in developing the cost/benefit analysis for
this final rule, FRA used a very conservative effectiveness rate of .2
for incidents with these reported causes. The Regulatory Impact
Analysis prepared in connection with this final rule provides a
detailed discussion of how certain human factor and brake pipe
obstruction incidents were utilized when evaluating this rule.
It should be noted that the damage costs noted in Table 1 for the
identified incidents are based on the damage to railroad property or
equipment. Thus, the damages presented fail to consider the costs
associated with the injuries and fatalities involved. These costs are
calculated in detail in the Regulatory Impact Analysis prepared in
connection with this final rule. The costs presented in Table 1 also do
not consider such things as: loss of lading; wreck clearance; track
delay; environmental clean-up; removal of damaged equipment;
evacuations; or the impact on local traffic patterns. Consequently, the
railroad property damages have been multiplied by a factor of 1.5625 in
an effort to capture some of these non-reported damages.\1\
---------------------------------------------------------------------------

\1\ AAR surveyed its members and reported that, on average,
these other costs constitute an additional 56.25 percent of the
reported damages.

Table 1.--Brake-Related Incidents
----------------------------------------------------------------------------------------------------------------
Number of
Year accidents Injuries Fatalities Damages \*\
----------------------------------------------------------------------------------------------------------------
1994............................................ 99 24 1 $11,414,346
1995............................................ 121 65 0 9,431,582
1996............................................ 112 44 3 20,637,986
1997............................................ 98 8 0 9,651,569
1998............................................ 121 3 0 10,791,626
---------------------------------------------------------------
Total..................................... 551 140 4 61,927,107
----------------------------------------------------------------------------------------------------------------
\*\ Increased by 56.25% to reflect unreported damages.

2. Use of Power Brake Defect Data
A second factor that is considered by FRA, to some extent, in
determining the relative condition of the industry in regard to the
safety of power brake equipment is the percentage of equipment found
with defective brakes during FRA inspections and special projects. As
noted in the preceding discussions, the method for calculating and
determining the percentage of equipment with defective brakes was a
contentious subject within the RSAC Power Brake Working Group prior to
the issuance of the NPRM and at the public hearings and meetings
conducted subsequent to the issuance of the NPRM. In the NPRM, FRA
provided a lengthy discussion regarding the data it had available
regarding power brake defect ratios and the limitations regarding the
use of such data. See 63 FR 48298. In that discussion, FRA explained
that data on brake defects is collected by FRA inspectors as they do
rail equipment inspections and during special projects conducted under
the Safety Assurance and Compliance Program (SACP). The NPRM made clear
that the data collected during these activities is not suitable for use
in any statistical analysis of brake defects.
In order to perform a statistically valid analysis, either all cars
and locomotives must be inspected (prohibitively expensive), or a
statistically valid sample must be collected. For the sample to be
valid for the purpose of statistical analysis, the sample must be
randomly selected so that it will represent the same characteristics as
the universe of data. Random samples have several unique
characteristics. They are unbiased, meaning that each unit has the same
chance of being selected. Random samples are independent, or the
selection of one unit has no influence on the selection of other units.
Most statistical methods depend on independence and lack of bias.
Without a randomized sample design there can be no dependable
statistical analysis, and no way to measure sampling error, no matter
how the data is modified. Random sampling ``statistically guarantees''
the accuracy of the results.
The sampling method used for regular FRA inspections is not random.
It is more of a combination between a judgement sample and an
opportunity sample. The opportunity sample basically just takes the
first sample population that comes along, while the judgement sample is
based on ``expert'' opinion. The sampling method used for SACP
inspections is also a judgement sample, where FRA is focusing its
inspections on a specific safety concern. This method is extremely
prone to bias, as FRA is typically investigating known problem areas.
Furthermore, some SACP inspections are joint inspections with labor.
Consequently, it is unknown whether the final reports reflect only FRA
defects, as many of the joint inspections had both AAR and FRA defects
recorded.
Neither the regular FRA inspections nor the SACP inspections were
designed for random data collection. Although both are very useful to
FRA, they were not designed for this purpose and the data should be
used carefully. FRA believes that data collected during routine
inspections are the most likely data to accurately reflect the
condition of the fleet. However, both FRA inspection data and SACP data
lack any measuring device, a defect is a defect and no distinction is
made between a critical defect versus a minor defect. Furthermore, the
estimated correlation coefficients between defects and

[[Page 4109]]

accidents were not found to be statistically significant. This does not
mean that defects cannot lead to collisions or derailments as the lack
of correlation could easily be a result of non-random sampling.
Therefore, the data collected both during routine FRA inspections and
under SACP cannot be used as a proxy for data collected by means of a
random sample for the purpose of statistical analysis. The sample is
not random, so no dependable statistical analysis may be performed.
Consequently, FRA did not and will not use the data regarding power
brake defects for the purpose of conducting any type of statistical
analysis.
In the NPRM, FRA provided brake defect ratio's for the years 1993
through 1997 based upon the data contained in its database. See 63 FR
48298, Table 2. The average brake defect ratio for this five year
period was 3.84 percent. The NPRM also noted that the available SACP
data (which focuses on known problem areas) indicated brake defect
ratios as high as 35 percent at some locations. FRA stated that the
SACP data in all likelihood indicates that there are localized areas of
concern and that some railroads have particular yards or operations
with persistent problems. The NPRM attempted to make clear that FRA
believes that brake defects are in all likelihood higher than that
indicated by FRA's database and that the reality of power brake defects
lies somewhere between the 3.84 percent represented in FRA's database
and the 35 percent found at certain locations. FRA noted that actual
power brake defect ratios are probably closer to the percentage
reflected in FRA's database because FRA examines almost \1/2\ million
freight cars and locomotives annually. Thus, contrary to the assertions
of certain commenters, FRA did not assert or contend that the power
brake defect ratios represented by its database were an accurate or
precise reflection as to the relative condition of the industry. In
fact, as evidenced by the preceding discussion, FRA attempted to point
out the limited usefulness of the data contained in its database.
Furthermore, review of the defect data submitted by the BRC at the
technical conference in Walnut Creek, California, as discussed below,
appears to support FRA's conclusions regarding power brake defect
ratios.
The NPRM made clear that the power brake defect ratios indicated in
FRA's database were specifically relied on only to calculate the cost
of the requirement to conduct retests on cars found with brakes that
are not applied during the performance of the various required brake
tests. Power brake defect ratios were not specifically relied on when
developing any provision contained in the NPRM or in this final rule.
Although power brake defect ratios were considered, they were not used
as the basis for any of the provisions proposed in the NPRM or
contained in this final rule. They were generally used to aid FRA in
identifying problem areas, which in turn helped FRA identify brake
issues and practices that needed to be addressed. For example, the
existence of high power brake defect ratios at a particular location or
on a particular railroad likely indicate the existence of certain
practices or procedures that create or contribute to the high defect
levels. As is evident from the discussions of the various requirements
contained in both the NPRM and in this final rule, FRA considered a
massive amount of information when developing this rule. These included
accident/incident data; information and data provided in relation to
the 1994 NPRM, the RSAC Power Brake Working Group, and the 1998 NPRM as
well as FRA's experience in the enforcement of existing regulations and
the expertise and knowledge of FRA's field inspectors.
Although the data regarding defect ratios contained in FRA's
database has limited usefulness in the context of developing a
regulation, the data is very useful to FRA in other ways. The data is
useful in measuring a railroad's general compliance level and aids in
identifying problem areas or locations. This information aids FRA in
allocating its inspections forces and permits FRA to focus its
enforcement on locations or issues which are in the greatest need of
such scrutiny. By focusing its enforcement in this manner FRA is able
to make the best use of its limited resources.
3. Discussion of Concerns Regarding FRA's Collection of Power Brake
Defect Data
Although the NPRM and the preceding discussion detail the
limitations of using the data collected by FRA regarding power brake
defects when developing a regulation, FRA believes that a more detailed
discussion of FRA's collection of power brake defect data is needed in
order to address the issues raised by various commenters subsequent to
the issuance of the NPRM. As noted above, FRA conducted a public
meeting on May 27, 1999 in order to address general concerns raised by
various parties regarding the accuracy of the brake defect data
presented in the NPRM and to provide interested parties the opportunity
to develop the issues they generally raised in oral and written
comments regarding that data. At this public meeting, representatives
of several labor organizations raised issues regarding the accuracy and
use of the power brake defect data complied by FRA. These commenters
generally allege that the method by which FRA collects defect data
results in the underreporting of defects which in turn results in a
systematic deflation of power brake defect ratios.
Specific issues raised at this public meeting and in subsequent
written comments include: the overreporting of units inspected during
FRA inspections; the calculation and deflation of the power brake
defect ratio; the inspection procedures used by FRA that tend to
exclude certain categories of power brake defects; potential
discrepancies in the input data relative to the activity codes from FRA
field inspection reports to FRA's database; the performance of power
brake inspections by FRA inspectors on cars that are not properly
charged or connected to a source of compressed air; FRA's reliance on
the railroads for the total number of cars inspected; and the wide
variance between FRA inspectors and FRA regions in the number of units
inspected, the number of defects reported, and the resulting defect
ratios.
In order to understand some of the issues raised, it is necessary
to understand how inspection data developed by an FRA inspector are
entered into FRA's database. FRA Motive Power & Equipment (MP&E)
inspectors conduct inspections of railroad freight equipment pursuant
to various parts of the Federal regulations contained in chapter 49 of
the Code of Federal Regulations. Principally, these include inspections
under the following: Part 215--Freight Car Safety Standards; part 229--
Locomotive Safety Standards; part 231--Safety Appliance Standards; and
part 232--Power Brakes and Drawbars. When performing an inspection
under each of these parts, an FRA inspector will fill out the
appropriate inspection form which indicates the number of units
inspected under each part as well as the number of defective conditions
found on those units. In the context of performing power brake
inspections under part 232, an inspection of a car means a unit count
of one. When this type of inspection is conducted, inspectors inspect
various brake-related car components such as: Foundation brake rigging,
air hoses, angle cocks, brake shoes, and, where possible, piston
travel. When an inspector performs an inspection of a brake test
required under part 232, the unit count for such a test

[[Page 4110]]

is the train consist, block of cars, or car being tested. For example,
when an inspector observes the performance of an initial terminal brake
test, the entire train would constitute one unit count.
Certain labor representatives raised various issues regarding FRA's
calculation of power brake defect ratios. Several of these concerns
involve the potential overreporting of the number of units inspected
which then results in the deflation of power brake defect ratios. One
concern addressed the practice of counting a single car or locomotive
as a unit count under each of the MP&E regulations that it is inspected
under. For example, a freight car could be considered a unit count
under part 215, part 231, and part 232 if an FRA inspector were to
inspect that freight car under each of those provisions. Thus, one
freight car could be represented as three unit counts. It is claimed
that this practice inflates the number of units inspected and thus,
deflates defect ratios. This concern would be valid if FRA were to
attempt to express a defect ratio for combined parts of the CFR. For
example, if FRA were to attempt to express an MP&E defect ratio (a
combination of parts 215, 229, 231, and 232) then the method by which
FRA collects data would result in an inflation of the number of units
inspected and the resulting defect ratio would be skewed. For purposes
of analysis, FRA's database is constructed so that defect ratios are
expressed only in terms of each separate part of the CFR. Therefore,
the power brake defect ratios discussed in the NPRM were calculated
based solely on the units inspected by FRA under the provisions
contained in part 232.
A second concern involves the potential of duplicate inspection
reports being submitted by different FRA inspectors when engaged in
team inspections. Certain labor representatives allege that FRA
inspectors are significantly inflating the number of power brake units
being inspected by submitting duplicate reports for the same inspection
activity when groups of FRA inspectors perform inspections at the same
location. In an effort to investigate this concern, FRA designed a
computer program to search for potentially duplicate inspection reports
submitted during the years of 1995 through 1998. Table 2 displays the
figures regarding power brake inspections conducted by FRA for the
years of 1995 through 1998 that is contained in FRA's database.

Table 2.--Power Brake Inspections and Defect Ratios: 1995 Through 1998*
----------------------------------------------------------------------------------------------------------------
All railroads Class I RRs
Calendar year Power brake Power brake power brake power brake
units defective units defect ratios defect ratios
----------------------------------------------------------------------------------------------------------------
1995...................................... 611,824 24,387 .03986 .0369
1996...................................... 646,140 28,795 .04456 .0419
1997...................................... 582,685 26,004 .04463 .045
1998...................................... 585,663 26,286 .04488 N/A
----------------------------------------------------------------------------------------------------------------
*Note: Class I Railroads Power Brake Defect Ratios column information comes from the Regulatory Impact Analysis
(RIA) for the 1998 NPRM on freight power brakes. No defect ratio was used in the report for calendar year 1998
because the RIA was finalized in August of 1998.

In order to identify potential duplicate reports the computer
program identified inspection reports in which two or more FRA
inspectors were in the same county, on the same day, on the same
railroad, and in which at least one unit-count code matched. Table 3
displays the results of this search, showing the number of potential
duplicate reports that were submitted from 1995 through 1998 and
showing the potential number of over reported units.

Table 3.--Potential Duplicate Power Brake Inspections 1995 Through 1998
----------------------------------------------------------------------------------------------------------------
Inspection
reports with Potential
Calendar year more than one Units duplicate units
matching unit (half of units)
----------------------------------------------------------------------------------------------------------------
1995...................................................... 39 1,965 983
1996...................................................... 154 12,646 6,323
1997...................................................... 342 19,482 9,741
1998...................................................... 182 8,692 4,346
----------------------------------------------------------------------------------------------------------------

Table 4 and Table 5 display the impact of the potential duplicate
reports on the calculation of power brake defect ratios. FRA believes
that the data contained in Tables 4 and Table 5 establish that the
impact of potential duplicate reports on the defect ratios presented in
the NPRM is insignificant when considered in the context of nationwide
data.

Table 4.--Revised Power Brake Data Considering Potential Duplicate Reports 1995 Through 1998
--------------------------------------------------------------------------------------------------------------------------------------------------------
Defect ratios
Power brake Potential Units minus after adjusting
Calendar year units duplicate units potential Defective units for potential
duplicate units duplicate units
--------------------------------------------------------------------------------------------------------------------------------------------------------
1995.......................................................... 611,824 983 610,841 24,387 .03992
1996.......................................................... 646,140 6,323 639,817 28,795 .04501
1997.......................................................... 582,685 9,741 572,944 26,004 .04539
1998.......................................................... 585,663 4,346 581,317 26,286 .04522
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 4111]]

Table 5.--Affect of Potential Duplicate Reports on Power Brake Defect Ratios 1995 Through 1998
----------------------------------------------------------------------------------------------------------------
Defect ratios
Calendar year before Defect ratios Difference
adjustment after adjustment
----------------------------------------------------------------------------------------------------------------
1995...................................................... .03986 .03992 .00006
1996...................................................... .04456 .04501 .00045
1997...................................................... .04463 .04539 .00076
1998...................................................... .04488 .04522 .00034
----------------------------------------------------------------------------------------------------------------

It should be noted that the numbers presented in Tables 3 through
Table 5 overstate the actual impact of potential duplicate inspection
reports. For the year 1998, FRA conducted an in-depth analysis of the
potential duplicate reports found by the computer program. The computer
program identified 393 potential duplicate inspection reports for the
year 1998. However, included in this grouping were unique inbound
inspection reports, outbound inspection reports and split inspection
reports. In addition, there were inspection reports from inspectors who
worked in the same county, but at different locations. Each of these
reports was removed from the 393 potentially duplicate inspection
reports identified by the computer program based on a report-by-report
analysis of each of the reports by FRA MP&E specialists. This analysis
left 182 potential duplicate reports for 1998, which were used to
calculate the figures presented in Tables 3 through 5 for 1998.
Although these tables note 182 potential duplicate inspection reports
involving 8,692 units (4,346 duplicates), a further analysis of the
reports by FRA found that only 54 of the inspection reports were
actually found to be duplicative. These 54 duplicate inspection reports
involved the over-reporting of just 3,073 units rather than the 4,346
units identified in Table 4. As an in-depth analysis was not performed
on the potential duplicate inspection reports identified by the
computer program for the years of 1995 through 1997, the figures
provided for those years in all likelihood greatly overstate the actual
number of duplicate claims submitted in each of those years. Thus, the
actual impact of duplicate inspection reports is even less than the
small percentages indicated in Table 5 above.
Although the impact of duplicate inspection reports is
insignificant, FRA believes that a brief discussion of how these
duplicate inspection reports happened is necessary in order to assure
interested parties that such occurrences are rare and that FRA has
taken steps to avoid these inaccuracies. In 1994, FRA had four
inspection forms for the Agency's five inspection disciplines. The
Operating Practices and Hazardous Materials disciplines shared the same
form. FRA also had a Quality Improvement Plan (QIP) daily activity
report form to help the Agency track resource allocations, including
the amount of time required to perform certain inspections. When ``team
inspections'' occurred, one inspector completed the inspection report
for the entire team. However, each inspector on the team was also
required to complete a separate QIP report to receive credit for the
inspection. On January 1, 1995, a newly developed single inspection
form (FRA 6180.96) for all disciplines became operational. Furthermore,
in May of 1995, FRA discontinued the collection of QIP-time data based
on FRA's conclusion that it had adequate information from previous QIP
reports regarding the time it takes to conduct various inspections. In
addition, the new inspection form incorporated many of the previous QIP
codes. In August 1995, FRA converted to a data collection system using
personal computers.
After conducting the analysis discussed above, it was determined
that 26 FRA MP&E inspectors inadvertently prepared all of the involved
duplicate inspection reports. Furthermore, FRA was not aware that the
new computer system did not filter out duplicate inspection reports.
After becoming aware of these problems based on reports from its field
personnel, FRA specifically addressed the issue of inspection reporting
at FRA's multi-regional conference conducted in 1998. At this
conference, FRA's Office of Safety management provided specific
guidance on preparing reports that would eliminate potential duplicate
reporting. During this same period, FRA also changed its computer
software to give inspectors credit for inspections while at the same
time preventing potential duplicate reporting. Furthermore, on March 5,
1999, FRA re-issued reporting procedures designed to prevent duplicate
inspection reports when team inspections are conducted. These
procedures were issued to all Federal and State inspection personnel
and to all FRA Regional Administrators and Deputy Regional
Administrators.
Subsequent to the public meeting conducted in May of 1999, FRA made
two modifications to the summary data produced by its database in order
to clarify the meaning of the data and to avoid misunderstanding by
outside parties. The first modification relates to safety appliance
inspections conducted under 49 CFR part 231. The summary data
previously contained the heading ``SA & PB (cars and locomotives).''
This heading may have caused some confusion because the heading
suggests that it applies to both safety appliance and power brake
inspections when in reality the data captured under this heading only
concerns safety appliance inspections under part 231. This heading has
been modified to read ``SA (cars and locomotives)'' to more accurately
reflect the information contained under this heading. FRA has also
modified the summary data by eliminating the calculation of an MP&E
defect ratio. As discussed above, FRA believes that the calculation of
a composite MP&E defect ratio is inappropriate based on the way FRA
collects the information contained in its database and would result in
a deflation of MP&E defect ratios. Therefore, defect ratios will only
be presented for each separate MP&E CFR part.
In response to the issue raised regarding FRA's practice of
conducting brake inspections under part 232 while cars are not
connected to a source of compressed air or not completely charged with
air, FRA has developed a separate reporting code for brake inspections
conducted in this manner. This reporting code will become effective in
mid-2000 and will indicate when brake inspections are conducted on cars
or trains that are not charged with compressed air. Although FRA agrees
that the most thorough brake inspection is performed when a car or
train is charged, a large majority of the brake components on a car can
be inspected for abnormalities without the actual application of the
air brakes. For example, cut-out air brakes, brake connection pins
missing, brake rigging down or dragging, brake shoes worn to the extent
that the backing plate comes in contact with the tread of the wheel,

[[Page 4112]]

angle cocks missing or broken, retainer valves broken or missing, and
air brake piping bent or broken can all be discovered regardless of
whether a car or train is charged with air. When FRA inspectors conduct
train air brake tests, they inspect all of the components noted above
as well as the operation of the train air brakes while under the
required air pressures. FRA has conducted inspections of brake
equipment in this manner for decades and will continue to conduct brake
inspections under part 232 on equipment that is both on and off a
source of compressed air. FRA believes that the addition of a code to
identify those inspections conducted while equipment is not connected
to a source of compressed air will provide a more accurate assessment
of defective brake system components.
Two other issues raised by various individuals at the May 27, 1999,
public meeting concerned FRA's reliance on railroads to determine the
number of cars inspected and the wide disparity between FRA inspectors
and regions with regard to the number of units inspected and defects
reported. FRA acknowledges that FRA inspectors frequently rely on
information provided by the railroad regarding car counts when
initially conducting an inspection, which is sometimes higher than the
actual number of cars being inspected. However, in most instances FRA
inspectors request a copy of the consist prior to finalizing their
inspection reports to ensure a proper unit count. FRA has issued
guidance to its inspectors to ensure that the unit counts on all
inspections are accurate.
Although FRA acknowledges that the number of brake inspections
conducted varies somewhat from inspector to inspector and from region
to region, FRA contends that these variances are the result of
competing priorities and varying workloads within each region. FRA
makes every effort to standardize its inspection activities by
providing substantial training to each of its inspectors. This training
is comprised of both classroom and on-the-job training. Classroom
training conducted at least once a year at the Regional or Multi-
Regional conferences, and through training provided by General
Electric, General Motors-EMD, and Westinghouse Air Brake Company. Many
regions also conduct discipline specific conferences with training on
new regulations and issues provided by various subject matter experts.
On-the-job training is provided through Regional Specialists and
journeyman inspectors. These individuals will work one-on-one with the
inspectors on the various types of inspections that the inspector is
required to conduct. FRA also frequently issues enforcement guidance to
its inspectors in the form of technical bulletins in order to ensure
consistent enforcement of the regulations.

4. Review of Defect Data Submitted by the Brotherhood of Railway Carmen
(BRC)

After issuance of the 1998 NPRM, FRA conducted a technical
conference in Walnut Creek, California, on November 23 and 24, 1998. At
this technical conference individuals representing the BRC submitted a
vast amount of data collected either by its members at various
locations or through joint labor and FRA inspection activities
conducted at various locations. The data provided by BRC
representatives addressed defective equipment found in various trains
at seven different locations across the country during various time
periods from October of 1997 to November of 1998. The BRC submitted
this data in order to establish that the power brake defect ratios
developed based on the information contained in FRA's database were
inaccurate.
FRA conducted an in-depth review of the data submitted by BRC
representatives. Although the BRC attempted to summarize the data for
many of the locations addressed, FRA's review of the data discovered
that the BRC's summaries counted defects that were not power brake
defects, failed to summarize all the data for all the trains covered by
the supporting documentation, and double counted some brake defects
when calculating the number of defective cars. It should also be noted
that approximately 80-90 percent of the defective conditions noted on
the supporting documentation merely listed the defective condition as
being ``brake shoes.'' This notation does not make clear whether the
defective brake shoe was defective under the federal regulations or
defective under AAR industry standards. However, in order to assess the
data in a manner that is most favorable to the party submitting the
data, FRA assumed that all defects noted as ``brake shoes'' were
defective under Federal requirements. In conducting its analysis of the
data submitted, FRA only considered power brake defects, whereas, BRC's
summary data appear to consider other mechanical and safety appliance
defects which are not the subject of this proceeding.
Table 6 contains a summary of FRA's in-depth analysis of the data
submitted. FRA's analysis determined that the data submitted by the BRC
establish a power brake defect ratio of approximately 4.96 percent,
which is less than 1 percent higher than the power brake defect ratios
developed based on the information contained in FRA's database for the
years of 1996 and 1997, discussed in the 1998 NPRM. See 63 FR 48298.
The analysis of the data submitted by the BRC indicates that some
locations and some trains have power brake defect ratios in excess of
11 and 12 percent, which is consistent with the findings made and
reported by FRA during various SACP inspections as noted in the
preceding discussion and in the 1998 NPRM.

Table 6.--Analysis of Defect Data Submitted by the BRC
----------------------------------------------------------------------------------------------------------------
Power brake
Location Total trains Total cars Cars with power defect ratio
inspected inspected brake defect (percent)
----------------------------------------------------------------------------------------------------------------
North Platte, Nebraska.................. 1,625 150,926 8,136 5.39
Hinkle Yard, Oregon..................... 151 13,455 425 3.15
Oak Island-Newark, New Jersey........... 13 618 72 11.65
Kansas City, Missouri................... 180 11,917 159 1.33
Clovis, Alliance, Temple Yards--Texas... 16 1,419 41 2.88
Sparks Yard--Sacramento, California..... 8 781 30 3.84
Various Locations, Mississippi.......... 4 296 37 12.5
-----------------------------------------------------------------------
Totals............................ 1,997 179,412 8,900 4.96
----------------------------------------------------------------------------------------------------------------

[[Page 4113]]

B. Inspection and Testing Requirements

As noted in the preceding discussions and in the 1998 NPRM, the
issues related to the inspection and testing of the brake equipment on
freight trains are some of the most complex and sensitive issues with
which FRA deals on a daily basis. Consequently, the requirements
related to the inspection and testing of freight power brakes must be
viewed as the foundation on which the rest of the requirement contained
in this final rule are based.
1. Brake Inspections--General
In the 1998 NPRM, FRA fully discussed the information and proposals
submitted in response to the 1994 NPRM, as well as the proposals
developed as part of the RSAC process. See 63 FR 48298-304 (September
9, 1998). Based on its review of that information and those proposals
and based upon its experience in the enforcement of the current power
brake regulations, FRA provided a detailed discussion as to why those
alternatives were not viable models upon which a revision of the
freight power brake requirements could be based. See 63 FR 48301-304.
Rather than reiterate those discussions, FRA refers interested parties
to the discussions contained in the 1998 NPRM noted above. In
developing the inspection requirements contained in the NPRM, FRA
determined that the proposed requirements should closely track the
existing inspection requirements and intervals as they have proven
themselves effective in ensuring the safety of railroad operations. FRA
believed that moderate modifications to the existing requirements were
necessary to ensure clarity, eliminate potential loopholes, incorporate
current best practices of the industry, and enhance enforcement while
providing some flexibility to the railroads to utilize new technologies
and recognize contemporary railroad operations.
The current regulations are primarily designed around the following
four different types of brake system inspections: Initial terminal;
1,000-mile; intermediate terminal; and brake pipe continuity check. See
49 CFR 232.12 and 232.13. These brake system inspections differ in
complexity and detail based on the location of the train or on some
event that affects the composition of the train. Each of the inspection
provisions details specific actions that are to be performed and
identifies the items that are to be observed by the person performing
the inspection.
The initial terminal inspection described in Sec. 232.12(c)-(j) is
intended to be a comprehensive inspection of the brake equipment and is
primarily required to be performed at the location where a train is
originally assembled. This inspection requires the performance of a
leakage test and an in-depth inspection of the brake equipment to
ensure that it is properly secure and does not bind or foul. Piston
travel must be checked during these inspections and must be adjusted to
a specified length if found not to be within a certain range of
movement. The brakes must also be inspected to ensure that they apply
and release in response to a specified brake pipe reduction and
increase. FRA recently issued enforcement guidance to its field
inspectors clarifying that both sides of a car must be observed
sometime during the inspection process in order to verify the condition
of the brake equipment as required when performing an initial terminal
inspection.
The current regulations require an intermediate brake inspection at
points not more than 1,000 miles apart. These inspections are far more
limited than the currently required initial terminal inspections in
that the railroad is required only to determine that brake pipe leakage
is not excessive, the brakes apply on each car, and the brake rigging
is secure and does not bind or foul. See 49 CFR 232.12(b). In the 1982
revisions to the power brake rules, FRA extended the distance between
these inspections from 500 miles to 1,000 miles.
The existing regulations also mandate the performance of an
intermediate terminal brake inspection on all cars added to a train
after it leaves its initial terminal, en route to its destination,
unless they have been previously given an initial terminal inspection.
This inspection requires the performance of a leakage test and
verification that the brakes on each car added to the train and the
rear car of the train apply and release. See 49 CFR 232.13(d).
Railroads are permitted to use a gauge or device at the rear of the
train to verify changes in brake pipe pressure in lieu of performing an
application and release on the rear car. The current regulations also
require that if cars that are given an intermediate terminal brake
inspection and have not previously been provided an initial terminal
inspection and are then added to a train, then the added cars must be
given an initial terminal inspection at the next location where
facilities are available for performing such an inspection.
The current regulations also require the performance of a brake
pipe continuity test whenever minor changes to a train consist occur.
This inspection requires that a brake pipe reduction be made and
verification that the brakes on the rear car apply and release.
Railroads are permitted to use a gauge or device at the rear of the
train to verify changes in brake pipe pressure in lieu of visually
verifying the rear car application and release. This inspection is to
be performed when a locomotive or caboose is changed, when one or more
consecutive cars are removed from the train, and when previously tested
cars are added to a train.
In the 1998 NPRM, FRA noted that in its opinion railroads have not
conducted the excellent initial terminal inspections that were
contemplated in 1982, when FRA extended the 500-mile inspection
interval to 1,000 miles. FRA also contended that many initial terminal
brake inspections are being performed by individuals who are not
sufficiently qualified or trained to perform the task. FRA recognized
that since 1982 new technology and improved equipment have been
developed that allow trains to operate for longer distances with fewer
defects. However, the key to achieving this improved capability is to
ensure the proper operation and condition of the equipment at the
location where the train is initially assembled.
Although FRA agreed that many of the initial terminal inspections
conducted by train crews are not of the quality anticipated in 1982
when the inspection interval was increased from 500 miles to 1,000
miles, FRA also conceded that properly trained and qualified train crew
personnel can perform certain brake inspections and have been
performing such inspections for many years. FRA stated that it did not
believe that a reversion to a 500-mile inspection interval restriction
on trains inspected by train crews, as sought by some commenters, would
adequately address the concerns regarding the safety of those trains
and would impose an economic burden on the railroads that could not be
justified. In FRA's view, two of the major factors in ensuring the
quality of brake inspections are the proper training of the persons
performing the inspections and adequate enforcement of the
requirements. Therefore, FRA proposed that the current 1,000-mile
inspection interval be retained but that general training requirements
for persons conducting brake inspections be established. The proposed
training requirements included general provisions requiring both
classroom and ``hands-on'' training, general testing requirements, and
annual refresher training provisions. FRA also proposed that various
training records be

[[Page 4114]]

maintained by the railroads in order for FRA to determine the basis for
a railroad's determination that a particular person is qualified to
perform a brake inspection, test, or repair. FRA believed that the
proposed general training and recordkeeping requirements would provide
some assurances that qualified people were conducting brake system
inspections and tests. (See discussion below titled ``Training and
Qualification of Personnel.'')
In addition to proposing general training requirements, FRA also
noted its intent to enhance and increase its enforcement activities
with regard to the performance of the brake inspections and tests
eventually finalized in this rule, particularly those performed by
train crews. FRA made clear that it would make a concerted effort to
focus on the qualifications of train crew members and would strictly
scrutinize the method and length of time spent by these individuals in
the performance of the required inspections. FRA also committed to
focus its inspection activities to ensure that train crews are provided
the proper equipment necessary to perform many of the required
inspections.
In addition to focusing its enforcement and to aid in that
initiative, FRA proposed various clarifications, modernizations, and
modifications of the current inspection requirements in order to close
what are perceived to be existing loopholes and to incorporate what FRA
believed to be the best practices existing in the industry while
updating the requirements to recognize existing technology. FRA
believed, and many representatives of rail labor and management agreed,
that the current inspection requirements are very good for the most
part and are sufficient to ensure a high level of safety, but that they
need to be strictly enforced, clarified, and updated to recognize
existing and new technology. Therefore, as noted above, FRA did not
propose an extensive revision of the basic brake inspection intervals
or requirements. Rather, FRA proposed a moderate revision of the
requirements, with the intent of tightening, expanding, or clarifying
those inspection or testing requirements that have created enforcement
problems or inconsistencies in the past. FRA recognized some of the
technological improvements made in the industry such as the use of two-
way EOTs during the brake tests and use of the air flow method of
qualifying train air brake systems. FRA also recognized that some
trains are capable of moving extended distances between inspections
provided that comprehensive inspections are performed at the locations
where the trains are originated. (See discussion below titled
``Extended Haul Trains.'')
In order to clarify the requirements regarding where and when
various brake inspections and tests were to be performed, FRA proposed
modification of the terminology related to the power brake inspection
and testing requirements contained in the current regulations, which is
generally based on the locations where the inspections and tests must
be performed (e.g., ``initial terminal'' and ``intermediate
terminal''). Instead, FRA proposed various ``classes'' of inspections
based on the duties and type of inspection required, such as: Class I;
Class IA; and Class II. This is similar to the approach taken by FRA in
the 1994 NPRM and in the final rule on passenger equipment safety
standards. See 64 FR 25682-83. FRA believed that this type of
classification system would avoid some of the confusion that currently
arises regarding when and where a certain brake inspection must be
performed.
Currently, the brake system inspection and testing requirements are
interspersed within Secs. 232.12 and 232.13 and are not clearly
delineated. Therefore, FRA proposed a reorganization of the major types
of brake inspections into separate and distinct sections in order to
provide the regulated community with a better understanding as to when
and where each inspection or test would be required. Although FRA
proposed a change in the terminology used to describe the various power
brake inspections and tests, the requirements of these inspections and
tests mirrored the current requirements and were not intended to change
or modify any of the voluminous case law that had been developed over
the years regarding the inspections. Consequently, FRA proposed four
different types of brake inspections that were to be performed by
freight railroads some time during the operation of the equipment. FRA
proposed the terms ``Class I,'' ``Class IA,'' ``Class II,'' and ``Class
III'' to identify the four major types of brake inspections required by
this proposal.
The proposed Class I brake test, currently known as the ``initial
terminal'' test, generally contained the requirements currently
contained in Sec. 232.12(a) and (c)-(j). See 63 FR 48362-63. The
requirements were reorganized to clearly delineate when and how the
inspection was to be performed based on current interpretations and
comments received since the 1994 NPRM. The requirements were also
modified to require written notification that the test was performed
and that the notification was to be retained in the train until it
reached its destination. The proposed revisions also acknowledged the
use of the air flow method for qualifying train brake systems and
permitted the use of end-of-train devices in the performance of the
test. The proposal also provided some latitude to trains received in
interchange that had a pre-tested car or solid block of cars added at
the interchange point or that were to be moved less than 20 miles after
being received in interchange by permitting these types of trains to
continue without the performance of a comprehensive Class I brake test.
The proposed Class IA brake test clarified the requirements for
performing 1,000-mile brake inspections currently contained in
Sec. 232.12(b). See 63 FR 48363. The proposal made clear that the most
restrictive car or block of cars in the train would determine when the
inspection was to be performed on the entire train. FRA also proposed
that railroads designate the locations where these inspections would be
conducted and did not permit a change in those designations without 30-
day notice to FRA or the occurrence of an emergency situation. The
proposed Class II and Class III brake tests essentially clarified the
intermediate terminal inspection requirements currently contained in
Sec. 232.13(c) and (d) regarding the performance of brake system
inspections when cars were added to the train en route or when the
train consist was slightly altered en route. See 63 FR 48364.
In addition to the modifications and clarifications proposed with
regard to the four major types of brake system inspections, FRA's
proposal also retained, with clarification and elaboration, the basic
inspection requirements related to transfer trains currently contained
at Sec. 232.13(e) as well as the requirements for performing brake
system inspections using yard air sources currently contained at
Sec. 232.12(i). See 63 FR 48365. The proposal also retained the
requirements related to the inspection and testing of locomotives when
used in double heading and helper service currently contained at
Sec. 232.15 and proposed additional inspection requirements of
locomotives when used in helper service or in distributed power
operations to ensure the proper functioning of the brakes on these
locomotives as these types of inspections are not adequately addressed
in the existing regulation. See 63 FR 48365. Furthermore, the proposal
recognized that trains, if properly inspected, could safely travel
greater

[[Page 4115]]

than 1,000 miles between brake inspections. (See discussion below
titled ``Extended Haul Trains.'')
FRA received numerous comments in response to the 1998 NPRM from
representatives of rail labor and rail management, various private car
owners, the NTSB, manufacturers of rail equipment, and one state public
utility commission relating to these proposed provisions. These
individuals and representatives submitted comments addressing the
qualifications of individuals conducting the proposed inspections, the
methods by which the proposed inspections are to be conducted, the
frequency with which the proposed inspections should be required, and
various other specific aspects of the language used in the proposed
inspection requirements.
Several labor representatives objected to the proposed change in
the names of the specific required inspections. These commenters
believe that the proposed new terminology of Class I, Class IA, Class
II, and Class III would result in a number of problems including
confusion among those individuals responsible for performing the
inspections as the existing terminology has been used for decades,
imposition of additional training costs on the railroads as workers
will need to be reeducated, and the risk of upsetting years of case law
dealing with the various inspections.
Certain labor representatives also objected to the language used in
connection to the proposed inspections that would permit a qualified
person to perform many of the required inspections. Various labor
organizations and their representatives reiterated their concerns that
such an approach would continue to allow untrained and unqualified
train crew personnel to perform the required inspections. These
commenters continued to assert that FRA should mandate that carmen, or
persons similarly trained and experienced, perform all of the required
brake inspections except for the cursory train line continuity
inspections covered by the proposed Class III brake test. It is their
belief that only carmen possess the necessary training, skill, and
experience to properly perform the other brake inspections contained in
the proposal. These commenters contend that FRA is ignoring the
commitment made by rail management in 1982, when the regulations were
revised to permit trains to travel up to 1,000 miles between brake
inspections, to conduct high quality inspections at a train's initial
terminal. They contend that the 1982 revisions were intended to require
that these brake inspections be performed only by carmen. Several labor
representatives also contend that since the railroads have failed to
live up to the commitment made in 1982, to conduct high quality initial
terminal inspections, that FRA should reconsider its proposals to
permit trains to travel 1,000 miles or more between brake inspections.
These commenters recommended that FRA reduce the inspection interval to
500 miles.
Conversely, representatives of rail management and private car
owners suggest that FRA failed to adequately consider the industry's
safety record in proposing the inspection requirements. Several of
these commenters recommended that FRA reconsider performance standards
similar to those provided by the AAR in response to the 1994 NPRM. See
63 FR 48300. These individuals assert that based upon the industry's
excellent safety record there is no need for the command and control
type of regulations proposed in the 1998 NPRM. Several railroad
representatives also commented that the proposed training requirements
for designating an individual as a qualified person are onerous and not
justified in light of the industry's safety record. They contend that
the industry's safety record is evidence of the sufficiency of the
training currently provided to its inspection forces. (See discussion
below regarding the ``Training and Qualification of Personnel.'')
Many railroad and private car owner representatives also contend
that there is no justification for continuance of the 1,000-mile
inspection requirement. They contend that if a car is properly
inspected at its point of origin it can be safely moved to destination
and that very few cars are found defective at 1000-mile inspections. As
support for these contentions, they cite to various studies, which
included: a 1994 study conducted by the Illinois Institute of
Technology Research Institute, which concluded that brake shoes could
last up to 4,000 miles; a 1993 study conducted by BNSF at Havre,
Montana, which found that less than \1/3\ of 1 percent of the cars
inspected at 1,000 miles had any kind of brake defect; and data
submitted in 1985 by the AAR related to cars operating 3,000 miles
between brake inspections. These commenters also rely on the fact that
Canada eliminated its intermediate brake inspection requirement in
1994. Consequently, these commenters contend that the 1,000-mile
inspection serves no useful purpose from a safety standpoint, creates
unnecessary delays, and should be eliminated.
Commenters representing certain labor organizations also
recommended that FRA establish step-by-step procedures for conducting
the proposed inspections which specifically include a requirement that
both sides of a train be given a walking inspection during both the set
and the release of the brakes. These commenters contend that the
language proposed in the 1998 NPRM regarding the inspection of both
sides of a train is unclear and creates uncertainty as to how a proper
inspection is to be conducted. They further recommend that roll-by
inspections of the brake release not be permitted and that a walking
inspection of the release be required. They also object to the proposed
requirement permitting the use of an end-of-train device in lieu of a
visual inspection of the pressure at the rear car in the train or in
lieu of a set and release on such car as such a practice does not
ensure actual application and release of that rear car.
Representatives of railroads and private car owners also believe
that FRA should clarify the method by which certain inspections are to
be performed. However, these commenters seek to clarify that both sides
of the equipment do not have to be inspected during either the
application or release of the brakes when conducting a Class I brake
test and that both sides of the equipment do not have to be inspected
when conducting Class IA brake tests. They contend that there is no
reason to observe both sides of the equipment during either the set or
release as long as the brake rigging and equipment is inspected to
ensure it is in proper condition prior to or at the same time that the
application or release of the brakes is conducted. If the brakes are
applied or released on one side of the equipment then, due to the
design of the equipment, the brakes on the other side of the equipment
will be similarly applied or released in virtually every instance.
Therefore, it is contended that there is no justification to require
observation of the set and release from each side of the equipment.
These commenters also contend that FRA needs to clarify that both sides
of the equipment do not need to be observed during the performance of a
Class IA inspection. They assert that such a requirement would be
contrary to the current 1,000-mile inspection requirements and would
increase the burden on railroads when conducting this inspection.
The CAPUC submitted comments on the proposed inspection
requirements recommending that each side of the car be inspected during
both the application and release of the brakes. This commenter also
recommend that FRA

[[Page 4116]]

require the proposed Class I brake tests to be performed by individuals
designated as ``qualified mechanical inspectors'' pursuant to the
proposal. The CAPUC believes that only these individuals possess
sufficient knowledge and ability to adequately perform the inspection.
The NTSB also submitted comments on the proposed inspection
requirements suggesting that FRA modify the requirements regarding the
pressure at which trains are tested to require that trains be tested at
the pressure at which they will be operated. The NTSB believes that
such a requirement would preclude attempts to qualify trains that have
excessive leakage by testing them at a pressure that is lower than the
train's operating pressure and thus, lower the amount of leakage that
exists on the train.
Some labor commenters again objected to FRA's inclusion of the air
flow method as an alternative to the leakage test when qualifying a
train's brake system. They contend that the air flow method disguises
serious leaks and allows greater leakage in a train's brake system than
the currently required leakage test. The AAR and other railroad
representatives endorsed the allowance of the air flow method as an
alternative to the leakage test for qualifying a train's brake system.
They believe that the air flow method is superior to the leakage test
and is an appropriate alternative for all trains, regardless of length,
provided the 15 psi brake pipe gradient is maintained.
Certain labor representatives expressed concern over the proposed
provision permitting yard air tests to be conducted at a pressure that
is lower than the operating pressure of the train. These commenters
suggested that such a practice could permit trains to depart with
excess leakage since the required leakage test would be performed at
the lower pressure and thus, mask the potential leakage of the train.
The AAR and some of its member railroads also expressed concern
regarding the proposed requirements related to the performance of brake
tests using yard air. These commenters objected to the requirement that
brake tests performed with yard air be performed at 80 psi. They
recommended that such test be permitted to be performed at 60 psi as
currently required because the proposal permits yard and transfer
trains to operate at such pressure and that to test at higher pressure
creates the potential for overcharge conditions. They also argue the
practical difficulties of an 80 psi requirement in that many older yard
plants and rental compressors are not capable of supplying 80 psi of
air pressure. These commenters further contend that FRA should permit
yard air to be connected to other than the front of the consist
provided that procedures are taken to prevent overcharge conditions.
The commenters also provided recommended language to clarify the
calibration requirements for devices and gauges used to conduct yard
air brake tests.
Several labor representatives also commented on the proposed
written notification requirement related to the performance of Class I
brake tests. These commenters supported the written notification
requirement and recommended that the information remain with the train
if the motive power is changed. One labor organization also recommended
that the proposed requirements related to the designation of 1,000-mile
inspections are insufficient. This commenter recommended that the
designation be filed with FRA and that the designations specifically
identify the trains that will be inspected at each location.
Representatives of rail management objected to the proposed requirement
that locomotive engineers be notified in writing by a person performing
the test as to the successful completion of a Class I brake test. These
commenters did not object to notifying the locomotive engineer of the
results of the test but believe that the notification could be provided
orally or electronically by a person with knowledge of the test as long
as the locomotive engineer made a record of the notification and
necessary information. These commenters also sought clarification of
the proposed requirements regarding the designation of locations where
1,000-mile inspections would be conducted. These commenters did not
object to the designation requirement provided that it is not required
on a train by train basis. They contend that to require that specific
trains have 1,000-mile inspections performed at specific locations
would create substantial burdens and would eliminate flexibility needed
to operate trains in a timely and efficient manner.
The AAR and other railroad commenters also raised concern over the
requirement that trains in captive service be required to receive a
Class I brake test every 3,000 miles. They recommended that a train of
this type that travels in excess of 3,000 miles between cycles be
permitted to complete its cycle prior to receiving a Class I brake
test. They contend that to require a Class I brake test on these types
of cycle trains on a 3,000 mile basis will require the reallocation of
manpower and equipment to locations not currently equipped to perform
such inspections.
Several railroad representatives also objected to the definition of
``solid block of cars'' contained in the proposal. This definition is
important because FRA proposed that if more than a solid block of cars
is removed from or added or a train, the entire train would have to
receive a Class I brake test. As the proposed definition limits a
``solid block of cars'' to a group of cars that are removed from only
one other train and that remain coupled together, these commenters
contend that the definition is much more restrictive than the current
interpretation of the language and would significantly increase the
need to perform Class I brake tests. These commenters contend that the
current interpretation of the language permits a ``solid block of
cars'' to be made up of cars from several different trains provided the
block of cars is added to a train as one unit without triggering the
requirement to perform a new initial terminal brake test on the entire
train. These commenters also noted that a literal reading of the
proposed provisions for when a Class I brake test would be required
does not allow a railroad to remove defective equipment without
triggering a Class I brake test on the entire train. They contend that
this authority needs to be recognized and is currently permitted.
FRA Conclusions. After consideration of the comments submitted and
based upon its experience in the enforcement of the current power brake
regulations, FRA continues to believe that the general approach to
brake inspections contained in the 1998 NPRM represents the most
effective method of ensuring the continued safety and proper operation
of brake systems currently used in the railroad industry without
creating an unnecessary burden to the railroads. Therefore, the final
rule is a moderate revision of the current inspection requirements,
similar to that proposed, with certain minor changes made to address
the comments and recommendations submitted on the NPRM.
The final rule adopts the proposed classifications identifying the
various types of brake inspections based on the duties and tasks that
are required to be performed. These include: Class I; Class IA; Class
II; and Class III brake tests. Contrary to the contentions of some
commenters, FRA does not believe that this classification of the brake
inspections in any way impacts previous case law regarding the various
inspections. Although the final rule changes the terminology used to
describe the various brake inspections,

[[Page 4117]]

the underlying inspection requirements have remained generally
consistent with the existing requirements, and the final rule is not
intended to change or modify any of the voluminous case law that has
developed over the years regarding the inspections. Furthermore, the
final rule retains the monikers that have traditionally been attached
to the various inspections so as to limit any confusion that may exist.
For example, the section containing the requirements for conducting
Class I brake tests is entitled, ``Class I brake test-initial terminal
inspection.'' FRA believes that the classifications proposed in the
NPRM and retained in this final rule clearly delineate what is required
at each inspection, better clarify when each inspection is to be
performed, and avoid the potential confusion caused by the terminology
used in the present regulations.
As discussed in detail in the 1998 NPRM, FRA continues to believe
that the performance standard recommended by the AAR in response to the
1994 NPRM and suggested again by some commenters does not provide a
viable method for establishing the frequency of brake inspections. See
63 FR 48301-02. The performance standard proposed by the AAR is based
upon the number of mechanically-caused accidents per million train
miles. Therefore, the standard is based upon the rate of occurrence of
accidents--accident history--rather than on a factor that could measure
a railroad's performance prior to an accident occurring. The suggested
performance standard would also be very difficult to calculate on a
railroad-by-railroad basis, and the standard itself is a very
subjective factor as many accidents are due to a variety of causes only
a part of which may be a mechanical or brake-related cause. Thus, the
determination of what constitutes a mechanically-caused accident would
be difficult if not impossible to make in some circumstances and would
be a determination made by the railroad; thus, opening the potential
for data manipulation. FRA also notes that the AAR's performance
standard contains certain provisions that are contrary to existing
statutory requirements regarding the movement of defective equipment.
The final rule retains the requirement to perform 1,000-mile brake
inspections as proposed with a few minor revisions discussed below and
in the section-by-section analysis of that section. Although FRA agrees
that many of the initial terminal brake inspections currently conducted
by train crews and other personnel are not of the quality anticipated
in 1982, when the inspection interval was increased from 500 miles to
1,000 miles, FRA continues to believe that properly trained and
qualified train crew personnel can perform most of the inspections
required by this final rule and have been performing such inspections
for many years. Furthermore, FRA continues to believe that a reversion
to a 500-mile inspection interval on trains inspected by train crews,
as suggested by some commenters, does not address the concerns
regarding the safety of these trains and would impose an economic
burden on the railroads that cannot be justified. Rather than simply
increasing the frequency at which inspections are performed, FRA
believes that the proper approach is to enhance the quality of the
inspections being performed in order to further improve safety. FRA
believes that the training and designation requirements contained in
this final rule will increase the quality of the brake inspections
being performed by ensuring that those individuals responsible for
conducting the inspections are provided adequate and continuing
training to properly perform the task. The final rule contains general
training provisions which include: classroom and experiential ``hands-
on'' training; general testing requirements; and periodic refresher
training. The final rule also mandates that training records be
maintained by the railroads in order for FRA to ascertain the basis for
a railroad's determination that a particular person is considered
qualified to perform the inspection or test he or she is assigned. FRA
believes these training requirements will provide the necessary
assurances that the people conducting the required inspections and
tests are qualified.
FRA recognizes that since 1982 new technologies and improved
equipment have been developed that allow trains to operate longer
distances with fewer defects. The data submitted by AAR, noted above,
appears to support this assertion, and FRA does not dispute the
potential capability of certain equipment to travel distances in excess
of 1,000 miles without becoming defective. However, the capability of
the equipment to travel extended distances is contingent on the
condition of the equipment when it begins operation and on the nature
of the operation in which it is to be engaged. FRA believes that in
order for brake equipment to travel extended distances between brake
inspections, the condition and planned operation of the equipment must
be thoroughly assessed at the beginning of a train's journey through
high quality inspections. As noted above, FRA believes that railroads
are not conducting high quality initial terminal inspections at many
locations because the railroads are utilizing employees who are not
sufficiently qualified or trained to perform the inspections.
Therefore, FRA believes that the 1,000-mile brake inspection interval
continues to be necessary and important to ensure the safe operation of
trains inspected by qualified personnel pursuant to this final rule.
Furthermore, no trains operated in the United States are currently
permitted to travel greater than 1,000 miles between brake inspections.
Consequently, FRA is not willing to permit trains to travel in excess
of 1,000 miles between brake inspections, except in the limited,
controlled situations where data on the equipment can be gathered. (See
discussion below titled ``Extended Haul Trains.'') FRA notes that
Canada eliminated intermediate inspections in 1994. However, Canada has
different inspection requirements than those contained in this final
rule and vastly different operating conditions and environments than
those prevalent on most American railroads, operating conditions and
environments that are more conducive to the inspection regimen imposed
by that country.
The final rule also generally retains the proposed provisions
detailing the items that must be inspected during the various
inspections and the minimum procedures for performing the inspections.
Contrary to the assertions of some commenters, FRA believes that the
proposed methods of inspection sufficiently detailed how the various
inspections were to be performed while providing flexibility for
railroads to conduct the inspections in a manner most conducive to
their operations. The methods of inspection proposed in the 1998 NPRM
incorporated current practices and technical guidance previously issued
by FRA. To require that all inspections be performed by walking the
train would impose a huge financial and operational burden on the
railroads and would ignore the various different methods by which
inspections are currently performed and have been performed for years.
FRA does not intend to mandate specific methods for how the various
inspections are to be performed. FRA believes that each railroad is in
the best position to determine the method of inspection that best suits
its operations at different locations. FRA has never mandated specific
step-by-step procedures for conducting brake inspections but

[[Page 4118]]

merely requires that, whichever method is used, it must ensure that all
of the components required to be inspected will be so inspected.
The proposed rule made clear that when performing a Class I brake
test of a train the inspector must take positions on each side of each
car in the train sometime during the inspection process. This provision
is retained in the final rule. This is intended to mean that at a
minimum both sides of the equipment must be inspected. The provision
does not require that both sides be observed during the application or
during the release of the brakes. However, at a minimum at least one
side of the car must be inspected while the brakes on the car are
applied or if the brakes do not apply, while an effort is made to apply
the brakes on the car. FRA continues to believe that if the various
brake components are inspected to ensure they are properly secure and
in proper condition then, due to the design of the equipment, if an
application or release is observed from one side it can be assumed that
in virtually every case there is an application or release of the brake
occurring on the other side of the equipment. The final rule also
retains the proposed requirement that the piston travel on each piece
of the equipment must be inspected while the brakes are applied.
Furthermore, the final rule retains the provision that permits a roll-
by inspection of the release of the brake but prohibits the roll-by
inspection from being considered an inspection of that side of the
equipment.
FRA also finds the comments of AAR and other railroad
representatives contending that both sides of the equipment should not
be required to be inspected at Class IA brake tests to be lacking. The
Class IA brake test basically incorporates the current 1,000-mile brake
inspection, which FRA believes requires an inspection of both sides of
the equipment during the inspection process. The current 1,000-mile
inspection requires that brake rigging be inspected to ensure it is
properly secure and does not bind or foul and that the brakes apply on
each car in the train. See 49 CFR 232.12(b). In order to make these
inspections properly, FRA believes that both sides of the equipment
must be observed sometime during the inspection process and, to FRA's
knowledge, railroads currently conduct these inspections in this
manner. Thus, the NPRM and the final rule merely clarify what is
required to be performed under the current regulations to properly
perform a 1,000-mile inspection. Therefore, contrary to the contentions
of certain commenters, retention of this current requirement does not
impose any additional burden on the railroads.
The final rule retains the provisions granting railroads the
ability to utilize the air flow method (AFM) to qualify a train's brake
system in lieu of the traditional leakage test. FRA believes that if a
train contains a locomotive equipped with 26L freight locomotive brake
equipment and the train is equipped with an EOT device, that train
should be allowed to be qualified using the AFM. The AFM of qualifying
train air brake systems has been allowed in Canada as an alternative to
the leakage test since 1984. In addition, several railroads in the
United States have been using the AFM since 1989 when FRA granted the
AAR's petition for a waiver of compliance to permit the AFM as an
alternative to the leakage test. FRA recognizes the concerns of several
labor organization commenters opposing the adoption of the AFM;
however, FRA believes these commenters' apprehension is based on their
unfamiliarity with the method. As FRA pointed out in the ANPRM, the
1994 NPRM, and the 1998 NPRM, the AFM is a much more comprehensive test
than the leakage test. See 57 FR 62551, 59 FR 47682-47683, 63 FR 48305-
06. The AFM tests the entire brake system just as it is used, with the
pressure-maintaining feature cut in. FRA believes the AFM is an
effective and reliable alternative method of qualifying train brakes.
In the 1998 NPRM, FRA expressed some concern regarding the use of the
AFM on short trains. However, based on consideration of the comments
received and FRA's experiences in observing the use of the AFM, FRA
agrees that the AFM should be permitted as an alternative on any train
provided the 15 psi gradient is maintained on the train.
The final rule changes some of the provisions related to the
conduct of brake tests utilizing yard air sources that were proposed in
the NPRM. Rather than requiring yard air tests to be performed at 80
psi as was proposed, the final rule reduces the required pressure to 60
psi at the end of the consist as is currently required. FRA recognizes
that many yard air sources and rental compressors are not capable of
producing 80 psi of air pressure. However, to address the concerns
raised regarding the inadequacy of conducting a leakage or air flow
test at this lower pressure, the final rule includes provisions to
require those tests to be conducted at the operating pressure of the
train. Thus, if the yard air is not capable of producing the pressure
that the final rule requires, then the leakage or air flow test is to
be conducted when the locomotives are attached. The final rule also
permits the yard air test device to be connected at other than the end
of the consist nearest the controlling locomotive, provided that the
railroad adopts and complies with written procedures to ensure that
overcharge conditions do not occur. Many yards across the country
currently conduct the test in this manner, and FRA believes it is
necessary to acknowledge the viability of these operations.
The final rule also modifies the notification requirement related
to Class I brake tests from that proposed in the NPRM. In the NPRM, FRA
proposed that the engineer be informed in writing of the successful
completion of the Class I brake test. The intent of this requirement
was to ensure that the locomotive engineer was adequately informed of
the results of the inspection; however, FRA recognizes that a
requirement to provide the information in writing ignores technological
advances and operational efficiencies. Consequently, the final rule
will permit the notification in whatever format the railroad deems
appropriate; provided that the notification contains the proper
information and a record of the notification and the requisite
information is maintained in the cab of the controlling locomotive. FRA
believes these changes are consistent with the intent and purpose of
the proposed requirement for written notification and ensure necessary
information is relayed to the operator of the train.
FRA also realizes that the proposed requirement for designating
locations where Class IA inspections will be performed was somewhat
unclear and may have caused confusion. The intent of the requirement
was to ensure that FRA was informed of those locations where a railroad
intends to perform Class IA brake inspections and that FRA had the
information with which to hold the railroad responsible for conducting
the inspections at those locations. FRA was not intending to require
that a railroad separately identify a specific Class IA inspection
location for each train it operates. Consequently, the final rule makes
clear that the designation required is for locations where such
inspections will be performed and permits deviance from those locations
only in emergency situations.
The final rule retains the proposed requirement that unit or cycle
trains receive a Class I brake test every 3,000 miles. FRA has added a
definition of ``unit train'' and ``cycle train'' to the final rule in
order to clarify the applicability of the requirement.

[[Page 4119]]

Historically, these trains operate for extended periods of time with
only a series of brake inspections similar to Class IA brake
inspections. FRA believes that the proposed 3,000-mile limitation is
appropriate as it represents the approximate distance that a train
would cover when traveling from coast to coast. In addition the 3,000
mile requirement is consistent with the interval for performing Class
IA brake tests and would equate to every third inspection being a Class
I brake test rather than a Class IA brake test. Furthermore, AAR does
not seek a moderate extension of a couple hundred miles so a few trains
could complete their cycle, but seeks to extend the distance to more
than 4,500 miles in many instances. FRA is not willing to modify the
proposed requirement to that extent and believes that the 3,000-mile
interval for these types of trains provides sufficient flexibility to
the railroads to perform periodic Class I brake tests on these trains
in a cost-efficient manner.
The definition of ``solid block of cars'' has been modified from
that proposed in the NPRM. Although FRA believes the definition it
proposed is consistent with current interpretations and enforcement of
the requirement, FRA agrees with some of the commenters that the
definition may have been too narrow and does not directly address FRA's
primary concern, the block of cars itself. FRA's primary concern is the
condition of the block of cars being added to the train especially when
the block of cars is made up of cars from more than one train. Thus,
the final rule will permit a solid block of cars to be added to a train
without triggering a requirement to perform a Class I brake test on the
entire train. However, depending on the make-up of that block of cars,
certain inspections will have to be performed on that block of cars at
the location where it is added to the train.
FRA believes that limits have to be placed on the addition of
blocks of cars being added to a train in order to ensure that cars are
being inspected in a timely manner and in accordance with the intent of
the regulations. Some commenters suggest that a block of cars should be
permitted to be added to a train with no inspection other than a
continuity test regardless of the number of different trains the cars
making up the block came from provided all the cars received a Class I
brake test at their point of origin. Other commenters suggest that any
number of blocks of cars should be permitted to be added to a train at
a single location. FRA believes that to accept either of these
positions would be tantamount to eliminating initial terminal and
intermediate inspections and would drastically reduce the safety of
freight trains being operated across the country. In FRA's view, both
of the positions noted above are merely means to circumvent inspections
and are akin to a practice known as ``block swapping'' in the
mechanical inspection context, a practice that FRA does not permit. In
FRA's opinion, the ability to add multiple blocks of cars to a train at
one location or add a single block of cars to a train that is composed
of cars from numerous different trains without inspecting the cars in
those blocks, would essentially allow railroads to assemble new trains
without performing any direct inspection of any of the cars in the
train. Furthermore, if cars are permitted to be moved in and out of
trains at will, the ability to track when and where Class IA brake
tests are to be performed on trains will be impossible.
Based on a review of the comments submitted, two other minor
modifications to the proposed inspection requirements have been made in
this final rule. The final rule contains an additional caveat that will
permit the removal of defective equipment at locations where other cars
are added or removed without triggering the requirement to perform a
Class I brake test on the entire train. FRA currently permits this
practice, and it is consistent with the requirements aimed at having
defective equipment repaired as quickly as possible. The final rule
also modifies the language used in the proposed provisions related to
the air pressure at which the brake tests are to be conducted based on
a comment submitted by the NTSB. The NTSB noted that the language used
by FRA in the NPRM to describe the air pressure settings for conducting
the required brake tests would permit some road trains to be tested at
a lower pressure than that at which the train would be operated. The
NTSB contends that although most road freight trains operate at 90 psi,
some road freight trains are operated at 100 psi and the proposal would
permit them to be tested at 90 psi. FRA agrees with NTSB's suggestion
that a trains brake system should be tested at the pressure at which
the train will operate and has modified the language of the final rule
accordingly.
2. Extended Haul Trains
In developing the provisions regarding extended haul trains
proposed in the 1998 NPRM, FRA relied on several basic beliefs
developed from the information and comments submitted and upon its
experience in enforcing the current regulations. FRA believed that if a
train was properly and thoroughly inspected, with as many defective
conditions being eliminated as possible, then the train would be
capable of traveling much more than 1,000 miles between brake
inspections. By this, FRA contended that not only must the brake system
be in quality condition but that the mechanical components of the
equipment must be in equally prime condition. FRA believed that as the
distance a train is allowed to travel increases, the mechanical
condition of the equipment is a key factor in ensuring the proper and
safe operation of the train brake system throughout the entire trip.
FRA also stated that the best place to ensure the proper conduct of
these inspections and to ensure that the train's brake system and
mechanical components are in the best condition possible is at a
train's point of origin (initial terminal).
In the 1994 NPRM, FRA proposed a set of requirements that had to be
met by a railroad in order to move a train up to 1,500 miles without
performing additional brake inspections. The requirements included such
features as low defect ratios, maintenance programs, and the
performance of quality brake and mechanical inspections at a train's
point of origin. See 59 FR 47735. In the 1998 NPRM, FRA agreed with
several commenters that some of the 1994 proposed requirements were
overly burdensome and were partially predicated on potentially
subjective standards. However, FRA continued to believe that many of
the inspection requirements and movement restrictions proposed in 1994
were valid conditions that should be met in order to operate trains for
extended distances between brake inspections. These included: the
performance of a quality, in-depth brake inspection by a highly
qualified inspector; the performance of a quality mechanical inspection
by a person qualified under 49 CFR 215.11; and a restriction on the
number of set-outs and pick-ups occurring en route. FRA also believed
that these extended haul trains had to be closely monitored to ensure
that both the brake system and mechanical components remain safely
intact throughout the train's journey.
In the 1998 NPRM, FRA proposed that certain designated trains be
permitted to move up to 1,500 miles between brake and mechanical
inspections provided the railroad met various inspection and monitoring
requirements. See 63 FR 48343, 48364-65. As no trains were currently
permitted to travel in excess of 1,000 miles between inspections, FRA
was not willing to propose more than

[[Page 4120]]

1,500 miles between such inspections until appropriate data is
developed that establish that equipment moved under the proposed
criteria remains in proper condition throughout the train's trip. FRA
believed that the proposed provision requiring the performance of an
inbound inspection at destination or at 1,500 miles and the requirement
that carriers maintain records of all defective conditions discovered
on these trains would create the bases for developing such data.
In order to ensure the accuracy of the data as well as ensure the
proper and safe operation of these extended haul trains, FRA also
proposed that the trains have 100 percent operative brakes and contain
no cars with mechanical defects at their initial terminal point and at
the time of departure from the 1,500-mile point, if moving an
additional 1,500 miles from that location between brake inspections.
FRA further proposed that these trains not conduct any pick-ups or set-
outs en route, except for the removal of defective equipment, in order
to minimize the disruptions made to the integrity of the train's brake
system and reduce mechanical damage that might occur during switching
operations. In addition, as there was no reliable tracking system
currently available to FRA to ensure that cars added to the train en
route have been inspected in accordance with the proposed requirements,
FRA believed that the number of cars added to these trains had to be
limited.
As noted earlier in the discussion, FRA believed that in order for
a train to be permitted to travel 1,500 miles between inspections, the
train must receive inspections that ensure the optimum condition of
both the brake system and the mechanical components at the location
where the train originates. In order to ensure that quality inspections
were performed, FRA proposed that they be performed by highly qualified
and experienced inspectors. As FRA intended that the proposed Class I
brake test performed on these trains at their initial terminal be as
in-depth and comprehensive as possible, FRA believed that the
inspections should be performed by individuals possessing the knowledge
not only to identify and detect a defective condition in all of the
brake equipment required to be inspected, but also to possess the basic
knowledge to recognize the interrelational workings of the equipment
and the ability to trouble-shoot and repair the equipment. Therefore,
FRA proposed the term ``qualified mechanical inspector'' to identify
and describe those individuals it believed would possess the necessary
knowledge and experience to perform the proposed Class I brake tests on
these extended haul trains.
In the 1998 NPRM, a ``qualified mechanical inspector'' was defined
as a person with training or instruction in the troubleshooting,
inspection, testing, maintenance, or repair of the specific train brake
systems the person is assigned responsibility and whose primary
responsibilities include work generally consistent with those
functions. (See Sec. 232.5 of the section-by-section analysis for a
more detailed discussion of ``qualified mechanical inspector.'') FRA
also proposed that these same highly qualified inspectors be the type
of individuals performing the proposed inbound inspection on these
extended haul trains in order to ensure that all defective conditions
are identified at the train's destination or 1,500-mile location.
Similarly, FRA proposed that all of the mechanical inspections required
to be performed on these trains be conducted by inspectors designated
pursuant to 49 CFR 215.11 in order to ensure that all mechanical
components are in proper condition prior to the train's departure.
The AAR and various private car owners submitted a number of
comments objecting to the proposed requirements regarding extended haul
trains contained in the 1998 NPRM. These commenters believe that the
1,500-mile limitation on the movement of these trains between brake
inspections is insufficient considering the restrictions placed on the
trains. They recommend that these trains be permitted to operate to its
destination or at a minimum be permitted 2,000 miles between brake
inspections. They contend that the 1,500-mile limitation results in
little or no benefit to the railroads because in order to take
advantage of the flexibility provided, railroads would have to
establish new facilities and add more manpower at 1,500-mile points to
conduct the more stringent inspections required at those locations.
They contend that a limitation at the 2,000-mile point would be
logically consistent with existing inspection requirements, based on
1,000-mile increments, and would allow a greater number of trains to
utilize the provisions because railroads could use existing facilities
and manpower. They recommend that FRA reconsider the estimates provided
regarding the benefits derived from the extended haul train provisions,
claiming that the benefits estimated in the NPRM's Regulatory Impact
Analysis are overstated. Several private car owners also suggested that
even if FRA were not to extend the proposed distance for the entire
industry, it should allow certain private car owners greater distances
due to their superior safety record and maintenance practices.
Many of these same commenters also object to the proposed
requirement that extended haul trains not be permitted to make any
pick-ups or set-outs en route. These commenters contend that this
restriction severely limits the actual flexibility of the proposal.
They assert that the prohibition on pick-ups and set-outs would
eliminate nearly one-half of the trains that could potentially be
operated under the proposed provisions. Several commenters also
objected to the proposed notification requirements for extended haul
trains. These commenters state that the proposed provision requiring
advance notification to FRA of the trains to be operated under the
extended haul provision would seriously limit the number of trains
utilizing the provisions as many trains are unscheduled with unknown
train symbols and would be excluded. They recommend that the
notification requirements be reduced in some manner to allow
unscheduled trains to be identified as extended haul trains. One
commenter also objects to the proposed requirement that extended haul
trains not depart their initial terminals with any part 215 defects
entrained. This commenter asserts that there was no rationale for this
restriction and that it merely creates an additional burden for
railroads.
Several rail labor representatives also object to the proposed
provisions permitting trains to be operated as extended haul trains;
however, these commenters oppose allowing any train to operate more
than 1,000 miles between brake inspections. These commenters contend
that when the distance between intermediate brake inspections was
increased in 1982, the railroads made a commitment to conduct quality
initial terminal brake inspections in exchange for the increased
mileage, but that has not occurred and FRA should not provide the
railroads with an increase in mileage when the previous agreement has
not been honored. They contend that the proposed extension would merely
allow defective equipment to be moved further distances without repair.
They further contend that the proposed increase in distance between
brake tests is not justified from a safety standpoint and, thus,
violates 49 U.S.C. 20302(d)(2), which permits a change in the existing
power brake regulations ``only for the purpose of achieving safety.''
These commenters oppose any extension in the distance between brake
inspections unless stringent

[[Page 4121]]

requirements are placed on the trains, one such requirement being that
carmen or similarly trained individuals perform all the inspections and
tests required to be performed on the trains. They also contend that
the proposed standard for revoking a railroad's ability to designate
extended haul trains is too high.
FRA Conclusions. FRA continues to believe that if a train is
properly and thoroughly inspected, with as many defective conditions
being eliminated as possible, then the train is capable of traveling
much greater than 1,000 miles between brake inspections. Therefore, the
final rule retains the provisions permitting railroads to designate
trains as extended haul trains and allowing such trains to be operated
up to 1,500 miles between brake inspections. Although FRA recognizes
that retention of the 1,500-mile limitation may limit the utility of
the provision on some railroads, FRA is not willing to increase the
proposed mileage restriction at this time. Currently, no train is
permitted to travel more than 1,000 miles without receiving an
intermediate brake inspection. Therefore, FRA does not believe it would
be prudent to immediately double or triple the currently allowed
distance without evaluating the safety and operational effects of an
incremental increase in the distance. Consequently, until sufficient
information and data are collected on trains operating under the
provisions proposed in the NPRM and retained in this final rule, FRA is
not willing to permit trains to travel the distances suggested by some
commenters without additional brake inspections. FRA continues to
believe that the requirement for performing inbound inspections and the
requirement to maintain records of all defective conditions discovered
on these trains provides the basis for developing the information and
data necessary to determine the viability of allowing greater distances
between brake inspections.
After consideration of the comments submitted, FRA agrees that the
benefits estimated in the NPRM in association with the extended haul
provisions may have been overstated. FRA realizes that the retention of
the 1,500-mile limitation may eliminate certain trains from being
operated pursuant to the extended haul provisions and reduce the
benefits estimated at the NPRM stage of the proceeding. (See detailed
discussion in the Regulatory Impact Analysis portion of the preamble
below.) However, in order to increase the viability of the extended
haul provisions, the final rule provides some flexibility for
designating extended haul trains and allows for the limited pick-up and
set-out of equipment.
Several commenters noted that the proposed provisions regarding the
advance designation of extended haul trains would prohibit certain
unscheduled trains from being operated as extended haul trains. In an
effort to provide some flexibility in this area, the final rule has
been modified to allow railroads to designate certain locations as
locations where extended haul trains will be initiated and requires
railroads to describe those trains that will be so operated rather than
requiring specific identification of every train. FRA believes this
modification will allow railroads to capture some of their unscheduled
trains by identifying the trains by the locations where they are
initiated.
The final rule will also permit extended haul trains to set out
cars at one location or to pick up cars, or both, at the same or
another location. This modification will provide railroads the
flexibility to set-out a block of cars at one location and pick up a
block of cars at another location. FRA believes that this limited
ability provides the railroads with some flexibility to move equipment
efficiently while minimizing the disruptions made to the train's brake
system and ensuring that cars added to such trains can be adequately
tracked and inspected. The final rule makes clear that any cars added
to extended haul trains must be inspected in the same manner as the
cars at the train's initial terminal. The final rule also makes clear
that any car removed from the train must be inspected in the same
manner as a car at the train's point of destination or 1,500-mile
location.
Certain commenters have portrayed the provisions related to
extended haul trains as merely being an extension of the current
intermediate inspection distances. FRA objects to such a
characterization. In FRA's view, the extended haul provisions contained
in the NPRM and retained in this final rule constitute a completely new
inspection regimen. The provisions related to the operation of extended
haul trains contain stringent inspection requirements, both brake and
mechanical, by highly qualified inspectors and establish stringent
requirements whenever cars are added to or removed from such trains.
The extended haul train requirements also contain a means to assess the
safety of such operations by requiring that records be maintained of
the defective conditions that develop on these trains while en route.
Consequently, FRA believes that the requirements related to extended
haul trains not only ensure the safe operation of the trains operated
under them, but actually increase the safety of such operations over
that which is provided in the current regulations.
3. Charging of Air Brake System
Present regulations for air brake testing basically require that
cars that have previously been tested in accordance with the
regulations either ``be kept charged until road motive power is
attached'' or be retested. See 49 CFR 232.12(i). The current
regulations also require the performance of an initial terminal brake
test ``where the train consist is changed other than by adding or
removing a solid block of cars, and the train brake system remains
charged. * * *'' See 49 CFR 232.12(a)(ii). Based on longstanding
administrative interpretation and practice, FRA currently presumes that
a brake system is no longer adequately charged if disconnected from the
charging device (supply of pressurized air) for more than two hours
before coupling or recoupling of locomotives; otherwise, retesting is
required.
In the 1994 NPRM, FRA proposed to permit trains to be removed from
a continuous source of compressed air for up to four hours without
requiring the re-performance of a comprehensive brake inspection. FRA
received very few comments that directly addressed the safety
implications of this proposal; thus, FRA proposed the four-hour time
limitation in the 1998 NPRM. In the 1998 NPRM, FRA agreed that its
longstanding administrative interpretation, that requires the retesting
of cars disconnected from a charging device for longer than two hours,
was established prior to the development of new equipment that has
greatly reduced leakage problems, such as welded brake piping and
fittings and ferrule-clamped air hoses. However, contrary to several
railroads' assertions, FRA did not believe that cars should be allowed
to be off air for extended periods of time without being retested. FRA
believed that the longer cars sit without air attached, the greater the
chances were that the integrity of the brake system would be
compromised. Consequently, based on today's equipment, operating
practices, and overriding safety concerns, FRA proposed that cars
should not be disconnected from a continuous supply of pressurized air
for longer than four hours without being retested. FRA also proposed
that the source of compressed air must be sufficient to maintain the
integrity of the brake system. Consequently, FRA proposed that the
source of compressed

[[Page 4122]]

air be maintained at a minimum level of 60 psi.
The AAR and several other parties commented that there is no reason
to assume that once a train is charged and tested and then left
standing without being provided with a source of compressed air that
the brake system would become defective. These commenters assert that
leaving equipment connected to a source of compressed air does nothing
to ensure proper performance of the brake system, does not prevent
vandalism, and does not prevent leakage due to adverse weather
conditions. These parties suggest that leakage on standing trains has
been greatly reduced through the use of welded brake piping and
fittings and ferrule-clamped air hoses. These commenters believe that
FRA's current interpretation of allowing trains to sit without air for
only two hours is from an era when this new equipment was not used.
They also contend that FRA's current interpretation and the proposed
four-hour limitation costs the industry money, fuel, and time and
creates pollution because trains must either be reinspected or left
with a locomotive attached and idling in order to avoid performing a
full Class I brake test. They further contend that the proposed four-
hour rule exposes employees to various safety hazards due to the
employees being required to perform inspections at locations that are
not designed or equipped for such activity.
The AAR recommends that the proposed four-hour limitation be
eliminated for the reasons noted above. They also noted that the
Canadian rules do not contain an off-air requirement and that in Canada
if cars are off air for any length of time, only a set-and-release
continuity test is required. As an alternative to eliminating the off-
air requirement completely, the AAR suggests that FRA adopt
requirements which would allow cars to be removed from a source of
compressed air for up to 48 hours without a car-by-car reinspection.
They recommend that cars only be required to receive a continuity test
when they have been off a source of compressed air for more than fours
hours but less than 48 hours and that no retesting occur if equipment
is off air for less than four hours.
Representatives of rail labor objected to the proposed increase in
the amount of time that equipment could be removed from a source of
compressed air. These commenters believe that the existing two-hour
limitation is reasonable. Most of these commenters expressed concern
for the integrity of the brake system if a consist were left standing
for longer than two hours. These concerns were aimed at the effect that
climate might have on the equipment and the increased possibility of
vandalism to the equipment if consists or equipment were left off air
for longer periods.
FRA Conclusions. The final rule retains the proposed requirement
that equipment removed from a source of compressed air for longer than
four hours be reinspected. FRA believes that this requirement is
necessary to ensure not only the integrity of the brake system on
equipment but to ensure that inspections are performed on equipment in
a timely and predictable manner. FRA tends to agree that the amount of
time equipment is left off a source of compressed air is not directly
related to the operation of the brake system on that equipment.
However, FRA does believe that in certain circumstances the length of
time that equipment is removed from a source of compressed air can
impact the integrity and operation of the brake system on a vehicle or
train. Particularly in cold weather situations where freeze-ups in
train brake systems can occur or in areas where the potential for
vandalism is high due to the location where equipment is left standing.
Moreover, FRA believes that the four-hour limitation is consistent with
the intent of the existing regulations and is intended to ensure that
equipment is regularly inspected.
The commenters objecting to the four-hour limitation proposed in
the NPRM and retained in this final rule have ignored the intent and
purpose of the existing two-hour allowance permitted by longstanding
administrative interpretation. As discussed above, the existing power
brake regulations, adopted by Congress in 1958, are based on the
premise that if a train or equipment does not remain charged the
equipment is to be retested. There is no provision in the existing
regulations for allowing equipment to be removed from a source of
compressed air for any length of time, such allowance was granted only
through administrative interpretation. The original intent of the
currently existing two-hour interpretation, which permits equipment to
remain off-air for up to two-hours without being retested, was to allow
trains to pick up or remove cars from their consists while en route
without requiring a retest of the entire train. The two-hour limit was
based on the amount of time it would take a train to make a switching
move while en route. Thus, the current application of the two-hour rule
to any and all equipment left off a source of compressed air is
somewhat counter to the original intent of the interpretation when it
was provided.
Although FRA recognizes that it has acquiesced and endorsed the
expansion of the two-hour rule to all equipment, FRA believes that the
underlying intent of the existing regulations must be recognized and
maintained. The doubling of the existing two-hour interpretation to
four hours is based on the fact that the average time needed for many
trains to perform the switching they conduct while en route has
increased. Thus, FRA's intent when proposing an expansion of the two-
hour rule was not to alter the basic tenet that equipment should be
retested when it is removed from a source of compressed air for any
lengthy period of time. FRA believes that the four-hour allowance
provided by this final rule gives the railroads flexibility to perform
switching operations while trains are en route and provides flexibility
to efficiently move cars from one train to another when necessary, yet
retains the concept that equipment be retested when left disconnected
from a source of compressed air for longer periods of time.
FRA further believes that a limitation on the amount of time that
equipment may be off air is necessary for ensuring that equipment is
inspected in a timely and predictable manner. If no time limit were
imposed or if 48 hours were permitted, as suggested by some commenters,
equipment could lawfully sit for days at various locations while en
route to its destination and be switched in and out of numerous trains
without ever being reinspected. Such an approach would drastically
reduce the number of times that the brake systems on such equipment
would ever be given a visual inspection from what is currently required
and, in FRA's view, would seriously degrade the safety of the trains
operating with such equipment in its consist. Furthermore, if equipment
were allowed to be off-air for an excessive amount of time, it would be
virtually impossible for FRA to ensure that equipment is being properly
retested as it would be extremely difficult for FRA to determine how
long a particular piece of equipment was disconnected from a source of
compressed air. In order to make such a determination, FRA would have
to maintain observation of the equipment for days at a time.
Consequently, the final rule retains the proposed four-hour limit on
the amount of time equipment can be disconnected from a source of
compressed air as it maintains current levels of safety and provides an
enforceable and verifiable time limit that FRA believes provides the
railroads

[[Page 4123]]

some additional benefit over what is currently required both in terms
of operational efficiency and cost savings.
4. Retesting of Brakes
In the 1998 NPRM, FRA attempted to clarify language contained in
the current regulation which requires that the brakes ``apply.'' See 49
CFR 232.12(b), 232.12(d), 232.13(d), and 232.13(e). The current
language has been misinterpreted by some to mean that if the piston
applies in response to a command from a controlling locomotive or yard
test device, and releases before the release signal is given, the brake
system on that car is in compliance with the regulation because the
brake simply applied. The intent of the regulation has always been that
the brakes apply and remain applied until the release signal is
initiated from the controlling locomotive or yard test device.
Therefore, clarifying language was added to the proposed inspection
requirements to eliminate all doubt as to what is required. In the 1998
NPRM, FRA made clear that the brakes on a car must remain applied until
the appropriate release signal is given. The proposal required that
cars with brakes that fail to remain applied either be removed from the
train or repaired in the train and retested, and the proposal provided
specific requirements for performing a retest on such equipment.
FRA recognized that some defective train air brake conditions found
when performing a train air brake test, which may cause insufficient
application of the brakes on a piece of equipment, are of such a nature
that they can be quickly repaired in the train. For example, a brake
connection pin might be missing, a slack adjuster might be
disconnected, or some other minor part of the brake system might be
defective. FRA realized that to mandate that equipment with these types
of obvious defective conditions be removed from the train would
potentially impose a tremendous burden on the railroads. Therefore, FRA
sought to provide some relief to railroads by permitting cars with
obvious brake defects to be repaired and retested while remaining in
the train. However, FRA also believed that some consistency and
guidance had to be provided regarding the performance of a retest on a
car's brake system. Consequently, FRA proposed that the retesting of a
car had to be conducted from the controlling locomotive or head end of
the consist if a car is repaired in a train. Furthermore, FRA proposed
that if a retest is conducted the brakes on the retested car must
remain applied for a minimum of five (5) minutes. The proposed five-
minute requirement was based on the leakage parameters established for
locomotives contained at Sec. 229.59(c).
The AAR and several other commenters object to the parameters
contained in the proposed retesting provisions. Specifically, these
commenters object to three of the requirements contained in the
proposed retest provision, these include: the requirement that only
cars with an obvious defect be retested, the requirement that the
brakes remain applied for five minutes, and the requirement that the
retest be conducted from the controlling locomotive or the head of the
consist. These commenters contend that there is no reason to limit the
retest provision to cars with readily identifiable defects. They claim
that there are a number of conditions which might cause a car's brakes
not to apply that are not readily identifiable thus, the retest may
identify the problem and allow it to be repaired, or the reason for a
no-set is unknown but the brakes operate properly upon being retested.
These commenters also believe that the proposed requirement to have
the brakes remain applied for five minutes is impractical and
unnecessary. They assert that it is only necessary to have the brakes
remain applied for the period of time it takes an inspector to perform
an inspection of the brakes and that it is impractical to require an
employee to watch each retested car for five minutes. They also contend
that FRA's reliance on the five-minute requirement related to the
testing of locomotive brake cylinder leakage contained in Sec. 229.59
is misplaced. They assert that there is no parallel between determining
the brake cylinder leakage on a locomotive and the testing of the
brakes on a freight car. One commenter suggests that a one-minute
application is a sufficient period to ensure the proper operation of a
car's brakes.
These commenters also object to the proposed requirement that the
retest be conducted from the controlling locomotive or the head end of
the consist. They contend that there is no safety hazard in performing
the test with a test device positioned at one end of the car being
retested. They assert that such a procedure would replicate the natural
gradient of the train and, thus, avoid the possibility of overcharging
the brake system, and would better facilitate retesting.
Representatives of rail labor generally supported the proposed
retest provisions. These commenters did assert that any retest should
be conducted from the head end of the consist or from the controlling
locomotive. They claim that to perform the test from other than that
location would provide no assurance that the brakes would apply in
response to a brake pipe reduction from the controlling locomotive.
FRA Conclusions. FRA agrees that the proposed provisions regarding
the retesting of cars may have been overly restrictive and is modifying
the final rule based on FRA's review of the comments and
recommendations submitted. The final rule has been modified to permit
the retesting of any car the brakes of which were found not to be
applied during a required inspection. FRA agrees that there are several
circumstances that could occur where the reason for the failure of the
brakes to apply is not readily apparent. FRA believes that permitting a
retest on any car found not applying will not adversely affect safety
since the car will be required to pass the retest in order to remain in
the train or be handled for necessary repair.
The final rule also modifies the proposed provision that requires a
retested car's brakes to remain applied for five minutes. FRA agrees
that its reliance on the five-minute requirement applicable to the
testing of locomotive brake cylinder leakage is not appropriate.
However, rather than insert a subjective requirement for how long the
brakes should remain applied, as suggested by some commenters, FRA
believes that a definite time period should be established to ensure
consistency in the performance of these retests. Thus, the final rule
requires that the brakes on a retested car remain applied for at least
three minutes. FRA believes that three minutes is consistent with the
amount of time that it would take an individual to conduct a complete
inspection of the retested car's brakes. The three minutes is based on
the generally accepted period of one and one-half minutes it would take
to perform a walking inspection on each side of an average size freight
car. Requiring the brakes to remain applied for a period of at least
three minutes also provides FRA with sufficient assurances that the
brakes are operating properly and will remain applied for the duration
of any brake application required during the train's journey.
The final rule also modifies the proposed requirement that the
retest be conducted from the controlling locomotive or the head of the
consist by permitting the retest to be conducted with a suitable test
device positioned at one end of the car or cars being retested. FRA
agrees that there is little or no safety rationale for requiring the
retest to be performed from the controlling locomotive or head of the
consist. Some

[[Page 4124]]

commenters argue that if the retest is not conducted from the
controlling locomotive, then there are no assurances that the brakes
will apply in response to a brake reduction from the controlling
locomotive. FRA finds that this argument ignores the various methods by
which cars may be tested and assembled when air brake tests are
conducted using yard air sources. FRA currently allows and this final
rule continues to allow cars to be tested with yard test plants and
allows such cars to be added to trains without requiring that each car
be inspected to ensure it operates in response to the controlling
locomotive.
One potential safety hazard with allowing cars to be retested with
a device at the car is the potential for injury to the employees
responsible for separating the train line between the charged cars. The
train line between the car being retested and the car it is coupled to
would have to be separated to perform the retest with a device. In many
cases this train line will be under pressure at the time of the
separation and could cause injury to the person separating the train
line if caution is not used. The final rule recognizes this potential
safety concern and requires that the compressed air in a car to be
retested must be depleted prior to separating the air hoses and
conducting the retest.

C. Movement of Equipment With Defective Brakes

The current regulations do not contain requirements pertaining to
the movement of equipment with defective power brakes. The movement of
equipment with these types of defects is currently controlled by a
specific statutory provision originally enacted in 1910, and later
amended which states:

(a) GENERAL.--A vehicle that is equipped in compliance with this
chapter whose equipment becomes defective or insecure nevertheless
may be moved when necessary to make repairs, without a penalty being
imposed under section 21302 of this title, from the place at which
the defect or insecurity was first discovered to the nearest
available place at which the repairs can be made--
(1) On the railroad line on which the defect or insecurity was
discovered; or
(2) At the option of a connecting railroad carrier, on the
railroad line of the connecting carrier, if not farther than the
place of repair described in clause (1) of this subsection.

49 U.S.C. 20303(a) (emphasis added).

Although there is no limit contained in 49 U.S.C. 20303 as to the
number of cars with defective equipment that may be hauled in a train,
FRA has a longstanding interpretation which requires that, at a
minimum, 85 percent of the cars in a train have operative brakes. FRA
bases this interpretation on another statutory requirement which
permits a railroad to use a train only if ``at least 50 percent of the
vehicles in the train are equipped with power or train brakes and the
engineer is using the power or train brakes on those vehicles and on
all other vehicles equipped with them that are associated with those
vehicles in a train.'' 49 U.S.C. 20302(a)(5)(B). As originally enacted
in 1903, section 20302 also granted the Interstate Commerce Commission
(ICC) the authority to increase this percentage, and in 1910 the ICC
issued an order increasing the minimum percentage to 85 percent. See 49
CFR 232.1, which codified the ICC order.
As virtually all freight cars are presently equipped with power
brakes and are operated on an associated train line, the statutory
requirement is in essence a requirement that 100 percent of the cars in
a train have operative power brakes, unless being hauled for repairs
pursuant to 49 U.S.C. 20303. Consequently, FRA currently requires that
equipment with defective or inoperative air brakes makeup no more than
15 percent of the train and that if it is necessary to move the
equipment from where the railroad first discovered it to be defective,
the defective equipment be moved no farther than the nearest place on
the railroad's line where the necessary repairs can be made or, at the
option of the receiving carrier, to a location that is no farther than
the location where the repairs could have been performed on the
delivering line.
In addition to the general requirements relating to the movement of
equipment with defective safety appliances, FRA currently requires 100-
percent operative brakes on a train departing its initial terminal. The
requirement for 100 percent at the initial terminal has been a standard
by which the railroad industry has operated for decades and one which
FRA and its predecessor agency, the Interstate Commerce Commission,
have endorsed since the adoption of the power brake regulations. The
requirement is founded on Congress' mandate that the ICC incorporate
into the federal rail safety regulations the AAR's rules, standards,
and instructions as of April 11, 1958, regarding the installation,
inspection, maintenance, and repair of train brakes. In 1958, Congress
amended a provision of the Safety Appliance Acts, then codified at 45
U.S.C. 9, by incorporating the inspection requirements of the AAR into
the statute and permitting their change only for the purpose of
achieving safety.\3\ Based on a review of the legislative history
surrounding that amendment, FRA believes it is clear that Congress
interpreted the AAR standards as requiring 100 percent operative brakes
on all trains prior to departure from an initial terminal. As the
current regulations regarding the performance of an initial terminal
inspection contained at 49 CFR 232.12(c)-(j) were basically an adoption
of the AAR inspection and testing standards as they existed in 1958,
FRA believes that the current regulations are intended and do require
100 percent operative brakes at initial terminals.
---------------------------------------------------------------------------

\3\ In 1994, Congress revised, recodified, and enacted without
substantive change, the federal railroad safety laws.
Simultaneously, the then existing general and permanent federal
railroad safety laws were repealed. 45 U.S.C. 9 of the Safety
Appliance Acts is currently codified at 49 U.S.C. 20301 and 20302.
The reference to the AAR rules, standards, and instructions was
removed during the recodification as executed. See Pub. L. 103-272
(July 5, 1994) and H.R. Rep. No. 103-180, at 94 (1993).
---------------------------------------------------------------------------

In developing the 1998 NPRM, FRA considered the various proposals
discussed in the RSAC Working Group and the numerous comments provided
subsequent to the issuance of the 1994 NPRM. A discussion of those
comments and proposals was provided in the 1998 NPRM and will not be
reiterated here. See 63 FR 48308-310. It is clear from that discussion
that many of the proposals received by FRA since the issuance of the
1994 NPRM were in direct conflict with various statutory requirements
related to the movement of equipment with defective brakes. As the RSAC
Working Group was unable to reach a consensus on the inspection,
testing, and maintenance requirements for freight train brake systems,
FRA was not willing or able to propose provisions regarding the
movement of equipment with defective brakes that would be contrary to
existing statutory mandates. The 1998 NPRM contained proposals
regarding the tagging of defective equipment, the placement of
defective equipment in a train, and a method for consistently
calculating the percentage of operative brakes on a train. Therefore,
in addition to being consistent with the statutory requirements, the
proposed requirements ensured the safe and proper movement of defective
equipment and clarified the duties imposed on a railroad when moving
such equipment.
FRA proposed that all cars or locomotives found with defective or
inoperative brake equipment be tagged as bad ordered with a designation
of the location where the necessary repairs

[[Page 4125]]

would be effectuated. FRA attempted to expressly clarify the
requirement that equipment with defective brakes not depart from, or be
moved beyond, a location where the necessary repairs to the equipment
could be performed. The 1998 proposal made clear that if a car or
locomotive is found with defective brakes during any of the proposed
brake inspections or while the piece of equipment is en route and the
location where the defective equipment is discovered is a place where
repairs of the type needed can be performed, then that car or
locomotive may not be moved from that location until the necessary
repairs are effectuated. However, if repairs to the defective condition
cannot be performed at the location where the defect is discovered, or
should have been discovered, the proposal made clear that the railroad
is permitted to move the equipment with the defective condition only to
the nearest location where the necessary repairs can be performed.
The preamble to the 1998 NPRM contained a lengthy discussion
regarding FRA's views as to what constitutes the nearest location where
the necessary repairs can be performed. See 63 FR 48309. In that
discussion, FRA noted that its previous proposals regarding the use of
mobile repair trucks and when locations serviced by those trucks would
be considered locations where necessary repairs could be effectuated
did not sufficiently address the issue and might lead to undesired
consequences. Rather than attempt to develop a standard applicable to
all situations, which FRA did not believe could be accomplished at the
time, FRA intended to approach the issue of what constitutes the
nearest location where necessary repairs could be made based on a case-
by-case analysis of each situation. FRA noted that in making these
determinations both the railroad as well as FRA's inspectors must
conduct a multi-factor analysis based on the facts of each case. In the
preamble, FRA provided a broad discussion, based on existing case law,
setting out general guidelines and factors that should be considered
when determining whether a particular location is a location where
necessary repairs can be made or whether a location is the nearest
location where the necessary repairs can be effectuated. See 63 FR
48309.
FRA also proposed continuation of the requirement to have 100
percent operative brakes on a train at its point of origin (initial
terminal). FRA noted that this has been a requirement in the railroad
industry for decades and that it was not only wise from a safety
standpoint, as it ensures the proper operation of a train's brake
system at least once during its life, but it also sets the proper tone
for what FRA expects to be accomplished at these locations.
Furthermore, requiring 100 percent operative brakes on a trains at its
inception provides the railroads with a margin for failure of some
brakes while the train is in transit (up to 15 percent) and tends to
ensure that defective equipment is being repaired in a timely fashion.
In addition, FRA stated that the 100-percent requirement is consistent
not only with Congress' understanding of the AAR inspection standards
that were adopted in 1958, but also with the intent of FRA, rail
management, and rail labor as to what was to occur at initial terminals
when the inspection interval was increased from 500 miles to 1,000
miles in 1982. At that time, carrier representatives committed to the
performance of quality initial terminal inspections in exchange for an
extension in the inspection interval, for which FRA intended to hold
them accountable. Moreover, FRA believed that retention of the 100-
percent requirement is consistent with the statutory requirements
regarding the movement of defective equipment because a majority of the
locations where trains are initiated have the capability of conducting
virtually any brake system repair, and thus, under 49 U.S.C. 20303(a)
the defective equipment may not be moved from those locations anyway.
In the preamble to the 1998 NPRM, FRA recognized that the 100-
percent requirement at points of origin tends to be somewhat burdensome
for some railroads at certain locations. See 63 FR 48309-10. However,
FRA noted that the number of locations where the requirement is quite
burdensome appears to be fairly low as FRA had made clear that
railroads are free to petition for a waiver of this requirement, but as
of the issuance of the NPRM no railroad had filed such a petition.
Although FRA recognized that the requirement creates somewhat illogical
scenarios at some locations, FRA was not willing to propose provisions
permitting trains to depart locations with less than 100 percent
operative brakes without fully considering the safety hazards or
potential abuses which may accompany such an approach. Therefore, FRA
sought comment from interested parties regarding the potential for
permitting very limited flexibility in moving defective equipment from
outlying initial terminals which lack the capability of effectuating
brake system repairs. FRA also discussed various alternative
approaches, with attendant restrictions, which might provide some
flexibility at these outlying locations and sought comment on those
approaches as well. See 63 FR 48310.
The AAR and several other railroad representative submitted a
number of comments on the proposed requirements regarding the movement
of defective equipment. The majority of the comments received from
these parties addressed the proposed requirements regarding 100 percent
operative brakes at a train's initial terminal, the identification of
locations where brake repairs should be required, and the tagging of
defective equipment.
These commenters recommend that FRA permit trains to operate from
any location with a minimum percentage of its brakes inoperative. At a
minimum, they recommend that this flexibility be provided at locations
where repairs can not be performed. They suggest adoption of a 95-
percent minimum operative brake requirement from such locations. They
contend that the 100-percent requirement at initial terminals is
outdated and does not take into consideration the numerous
technological improvements made to brake systems over the last several
decades. They also contend that it makes no sense to require 100-
percent operative brakes on trains originating at a location yet allow
a train originating at another location to pick-up defective equipment
at the same location and haul it to the same place that it could have
been hauled by the originating train. They further contend that the
100-percent requirement results in the unnecessary switching of cars
and exposes employees to greater safety risks than if the equipment
were permitted to depart in originating trains. Several commenters note
that Canada has permitted trains to operate to destination with 95
percent operative brakes since June of 1994 and has experienced no
compromise in safety. The AAR commented that railroads could live with
a 95-percent operative brake requirement out of initial terminals
provided that there were no mileage restrictions placed on the movement
of such defective equipment as discussed in the NPRM. See 63 FR 48310.
The ASLRA sought clarification as to the applicability of the 100-
percent requirement to transfer trains. They contend that the language
used in the NPRM suggests that all transfer trains must have 100-
percent operative brakes from their initial terminal which is not what
is required under the current regulations and would have a huge impact
on small railroads.
A number of railroad representatives also provided comments and

[[Page 4126]]

recommendations on how FRA addressed the issue of what constitutes a
location where brake repairs are required to be performed. These
commenters recommend that FRA clarify what constitutes the nearest
location where repairs can be made. These parties do not believe that
this determination should be left to the discretion of individual FRA
inspectors. They claim that such an approach creates inconsistent
enforcement from one region to another and makes it very difficult for
railroads to comply as FRA is continually second guessing their good
faith determinations.
The AAR and other commenters contend that Congress intended that
only fixed repair facilities be considered locations where brake system
repairs must be conducted and that such facilities provide safer
working conditions than those encountered when using a mobile repair
truck. They further contend that it is not in the public interest to
require repair trucks to make repairs at every location where they can
be moved. The AAR and several railroads recommend that FRA permit
railroads to designate repair locations to FRA and permit modification
of those designations each quarter.
The AAR and its member railroads also objected to some to the
proposed tagging requirements associated with the movement of equipment
with defective brakes. They objected to the requirement that any
automated tracking system be approved by FRA prior to its
implementation. These commenters suggested that such review and
approval process would be very time consuming and that FRA would not
easily grant the use of such systems. They also objected to the
proposed requirement that the tag or card be retained for 90 days,
contending that the requirement was merely to aid in FRA's enforcement
and served no other purpose.
The AAR also recommended that FRA modify the proposed requirement
regarding the placement of equipment with defective brakes. The AAR
contends that FRA should permit the use of multi-unit articulated
equipment provided that it has no more than two consecutive control
valves cut out or inoperative rather than the proposed limitation
prohibiting the use of such equipment with consecutive inoperative or
cut-out control valves. They contend this is the current practice of
many railroads in the United States and is currently allowed on trains
operated in Canada.
A number of rail labor representatives also provided comments on
the proposed provisions regarding the movement of equipment with
defective brakes. These commenters as well as the CAPUC support the
requirement that trains have 100-percent operative brakes at their
initial terminals. They believe that any flexibility granted to
railroads in this regard would reduce the incentive to conduct quality
inspections and would result in railroads eliminating even more
personnel at other outlying locations. These commenters also suggest
that any inability of railroads to conduct repairs at outlying
locations is due to their own actions in eliminating repair equipment
and personnel from these locations. They also contend that properly
equipped mobile repair trucks have the capability of conducting any
repair that would be required at virtually any of the outlying
locations operated by a railroad.
Several labor representatives also object to granting the railroads
the ability to designate locations where brake system repairs will be
conducted. They contend that this is merely an attempt by the railroads
to eliminate existing locations where repairs can be conducted. They
further object to the AAR's contention that only fixed repair
facilities should be considered in determining where brake system
repairs must be conducted. They claim that such an approach would lead
to the closure of even more fixed repair shops so that railroads could
further circumvent the requirement to make timely repairs at the
nearest location. They assert that allowing railroads to designate
locations where repairs will be made would violate 49 U.S.C. 20303(a)
which requires repairs to be conducted at the nearest location where
the necessary repairs can be made.
Parties representing rail labor generally support the proposed
tagging requirements for moving defective equipment but noted their
objection to the use of an automated tracking system. These commenters
believe that an automated tracking system reduces the awareness of
ground inspection forces as to the presence of defective equipment and
would not ensure proper handling of such equipment. The required tag
provides carmen and yard crews with the ability to visually identify
defective equipment and take appropriate action. Furthermore, it is
contended that automated tracking systems lack ready accessibility and
do not provide sufficient accountability or security to prevent
potential abuse by the railroads. Many of these commenters also
recommend that the tags be retained for a period of at least one year
rather than the proposed 90 days and that they be made available to FRA
immediately rather than within the proposed 15 days. Allowing railroads
15 days to produce the document would merely frustrate FRA enforcement
activity due to information delay.
Several labor commenters as well as the CAPUC also recommend that
FRA modify the proposed requirements regarding the person responsible
for making the determinations regarding the movement of defective brake
equipment. They suggest that the rule require the person to be a carman
or at a minimum a person meeting the proposed definition of a qualified
mechanical inspector. They contend that only these individuals have the
experience and knowledge to adequately assess the impact that a
defective piece of equipment might have on a train's operation.
Several labor representatives also raised concerns regarding the
proposed method for calculating the percentage of operative brakes.
These commenters along with the NTSB recommend that the proposed method
for calculating the percentage of operative brakes, based on the number
of cut-out control valves, be modified because a control valve can be
cut in but the brakes which it controls can be inoperative. Thus, the
proposed method does not provide an accurate count of the number of
defective brakes. Some labor representatives suggest that the
computation be based on car count as it provides a much more simple,
reliable, and enforceable method than the proposed control-valve
method. Certain labor representatives also object to the proposed list
of conditions that would not be considered an inoperative brake for
purposes of calculating the percentage of operative brakes. They
contend that cars containing any of the listed conditions should be
considered to have inoperative brakes.
FRA Conclusions. The final rule generally retains the requirements
regarding the movement of defective equipment proposed in the 1998 NPRM
with minor modification in response to the comments submitted. The
final rule modifies the language used in the proposed general
provisions to accurately reflect the language contained in the existing
statutory provisions pertaining to the movement of equipment with
defective brakes. The final rule replaces the term ``repair location''
with the phrase ``location where necessary repairs can be performed.''
FRA agrees that the proposed language could have been interpreted as
being somewhat contrary to the language used in the existing statute,
which was not FRA's intent.

[[Page 4127]]

The final rule also clarifies that the person required to make the
determinations regarding the safe movement of defective equipment is to
be a ``qualified person'' as defined in the final rule. The intent of
FRA when issuing the NPRM was to require the determinations to be made
by these individuals. FRA believes that the training requirements
contained in the final rule for designating a person qualified to
perform a specific task will ensure that the individual possesses the
appropriate knowledge and skills to perform the assigned task. The
determinations that are required to be made in the final rule are
currently made by individuals which FRA believes will be trained and
designated under the final rule as qualified persons.
The final rule also modifies the proposed method for calculating
the percentage of operative brakes. The final rule retains the general
method of calculating the percentage based on a control-valve basis.
FRA believes that basing the calculation on control valves provides a
much more accurate measurement than using a car basis because many
types of freight equipment in use today can have the brakes cut out on
a per-truck basis, and FRA expects this trend to continue as the
technology is applied to new equipment. Thus, the method retained in
this final rule more accurately reflects the true braking ability of a
train as a whole and recognizes existing technology. However, FRA
agrees with the comments of the NTSB and certain labor representatives
that the method proposed in the NPRM did not take into consideration
the possibility of a control valve being cut in when the brakes it
controls are inoperative. Consequently, the final rule clarifies that a
control valve will not be considered cut in if the brakes controlled by
that valve are inoperative.
The final rule also retains the proposed list of conditions that
are not to be considered inoperative power brakes for purposes of
calculating the percentage of operative brakes. Contrary to the
assertions of some commenters, the conditions listed do not render the
brakes inoperative nor are the listed conditions ones that are outside
the scope of the movement-for-repair provisions. Furthermore, many of
the listed conditions are of such a nature that if found, they would
constitute a violation under other provisions contained in the final
rule and separate penalties are provided.
The final rule also modifies the proposed requirement regarding the
placement of multi-unit articulated equipment with inoperative brakes.
The final rule requires that such equipment shall not be placed in a
train if it has more than two consecutive individual control valves cut
out or if the brakes controlled by the valve are inoperative. FRA
recognizes that the proposed requirement prohibiting the placement of
such equipment with consecutive control valves cut out is more
restrictive than current practice on many railroads. When proposing the
requirement in the NPRM, FRA believed that the current practice on most
railroads was to prohibit the placement of such equipment if it had
consecutive control valves cut-out. Based on the comments received, it
appears that the standard practice on most railroads prohibits
placement of this equipment only if more than two consecutive control
valves are cut-out. As it was FRA's intent to incorporate the current
practices of railroads with regard to the placement of this equipment,
the final rule has been modified accordingly.
The final rule retains FRA's position on the use of automated
tracking systems in lieu of the required tagging of defective
equipment. As an adequate automated system for tracking defective
equipment does not currently exist on most railroads, FRA is not
willing to permit the implementation of such a system without its
approval. Furthermore, FRA does not believe it is prudent, from a
safety perspective, to allow implementation of a tracking system for
which FRA would not have a prior opportunity to assess to ensure the
system's accessibility, security, and accuracy. Moreover, FRA agrees
that the physical tagging of defective equipment provides a railroad's
ground and operational forces the ability to visually locate and
identify defective equipment at the time they see it rather than
referring to an electronic database for such information. It should be
noted that FRA is not intending to discourage the development of a
viable automated tracking system, but believes that FRA must be
provided the ability to review and approve any such system prior to its
implementation. In fact, the final rule contains some new language
regarding FRA's oversight of any automated tracking system that is
approved by FRA to ensure the agency's ability to monitor such systems
and potentially prohibit the use of the system if it is found
deficient.
The final rule also retains the proposed requirement that a record
or copy of each tag removed from a defective piece of equipment be
retained for 90 days and made available to FRA within 15 days of
request. FRA does not believe that the proposed time frames need to be
expanded as suggested by some commenters. The provisions are identical
to those contained in part 215 regarding freight car defects, and they
have proven to be sufficient to meet the needs of FRA. FRA admits that
the record keeping requirements are intended to aid FRA in its
enforcement of the regulations. However, as the agency is able to
inspect and oversee only a small portion of the railroad operations
taking place across the country at any one time, the need for railroads
to maintain records is essential for FRA carry out its mission of
ensuring that all railroads are operating in the safest possible manner
and comply with those regulatory provisions designed to ensure that
safety.
After consideration of the comments provided, FRA believes it is
essential to further clarify to the regulated community its position
for determining whether a location is a place where brake repairs can
be made. FRA does not agree that railroads should be permitted to
unilaterally determine the locations FRA will consider capable of
making brake system repairs. History shows that many railroads and FRA
have widely different views on what should be considered a location
where brake repairs can and should be effectuated. Furthermore, it is
apparent to FRA that some railroads attempt to minimize or circumvent
the requirements for conducting repairs for convenience or efficiency.
However, FRA also recognizes that the emergence of mobile repair trucks
creates an ability to perform repairs that did not exist when Congress
enacted the statutory requirements related to the movement of defective
equipment. FRA acknowledges that every location where a mobile repair
truck is capable of making repairs should not be considered a location
where repairs must be conducted. However, FRA also disagrees with the
contentions of some commenters that Congress intended for only fixed
repair facilities to be considered when determining locations where
brake repairs are to be performed and that mobile repair trucks should
not be considered. FRA is aware of numerous locations where mobile
repair trucks are being used in lieu of a fixed facility or where a
fixed facility was eliminated and the same repairs, that were being
performed by the fixed facility, are now being performed at the same
location by a fully equipped repair truck. Thus, FRA believes that
locations where repair trucks are used in the same manner as a fixed
facility should be considered when determining where the necessary
repairs can be made.
As noted in the NPRM, the determination as to what constitutes the

[[Page 4128]]

nearest location where necessary repairs can be performed is an issue
that FRA has grappled with for decades. FRA continues to believe that
the determination must be made on a case-by-case basis after conducting
a multi-factor analysis. However, in an effort to better detail the
items that will be considered by FRA in making a determination, the
final rule contains general guidelines that FRA will consider when
determining whether a location is one where at least some brake system
repairs must be made. FRA would expect railroads to consider the
guidance contained in the final rule when making their decisions on
where equipment containing brake defects will be repaired. The guidance
contained in the final rule is based upon the voluminous case law that
establishes the guiding principles for determining whether a location
constitutes the nearest location where the necessary repairs can be
made, previous enforcement actions taken, and guidance provided by FRA
regarding identification of repair locations. The final rule guidance
incorporates the principles contained in the following discussion
previously set out in the NPRM.
In determining whether a particular location is a location where
necessary repairs can be made or whether a location is the nearest
repair location, the accessibility of the location and the ability to
safely make the repairs at that location are the two overriding factors
that must be considered in any analysis. These two factors have a
multitude of sub-factors which must be considered, such as: the type of
repair required; the safety of employees responsible for conducting the
repairs; the safety of employees responsible for getting the equipment
to or from a particular location; the switching operations necessary to
effectuate the move; the railroad's recent history and current practice
of making repairs (brake and non-brake) at a particular location; and
relevant weather conditions. Although the distance to a repair location
is a key factor, distance alone is not the determining factor
concerning whether a particular location is the nearest location for
purposes of effectuating repairs and must be considered in conjunction
with the factors noted above. Existing case law states that neither the
congestion of work at a particular location or convenience to the
railroad are to be considered when conducting this analysis.
Although FRA does not believe that railroads should be permitted to
unilaterally designate locations where brake system repair will be
conducted, FRA does believe that safety could be served and disputes
avoided if a railroad in cooperation with its employees could develop a
plan, subject to FRA's approval, which designates locations where brake
system repairs will be effectuated. FRA believes such a plan would have
to be consistent with the guidelines discussed above and contained in
this final rule and that such plans would have to be approved by FRA
prior to being implemented. Such a plan could serve safety well by
making clear to all where repairs are to be made and by assuring in
advance that the criteria set forth in the final rule are appropriately
applied. Consequently, the final rule permits railroads and
representatives of their employees to submit a joint proposal
containing a plan which designates locations where brake system repairs
will be conducted. The final rule makes clear that such proposals would
have to be approved by FRA prior to being implemented.
The final rule also retains the proposed and current requirement
that a train have 100-percent operative brakes when departing from a
location where an initial terminal brake test is required to be
performed on the train. This has been a requirement in the railroad
industry for decades, and FRA is not willing to provide an exception on
an industry-wide basis at this time. Contrary to the assertions made by
some commenters, FRA believes there is adequate justification for
retaining the 100-percent requirement. In the NPRM and in the preceding
discussion, FRA provided a number of reasons why it believes there is a
need for the 100-percent requirement and will not reiterate them here.
See 63 FR 48309. Some commenters suggested that FRA should permit any
and all trains that have 95-percent operative brakes to operate from
their points of origin to destination and that Canada currently allows
such operation. FRA believes that such an approach would be completely
contrary to, and would violate, the existing statutory mandate
regarding the movement of equipment with defective brakes. The existing
statutory provisions regarding the movement of equipment require that
such equipment be repaired at the nearest location where the necessary
repairs can be performed. See 49 U.S.C. 20303(a). Consequently, trains
that originate at or that operate through locations where the necessary
brake repairs can be effectuated clearly are required by the statute to
have 100-percent operative brakes prior to departing those locations
and may not haul a car with inoperative brakes under the statutory
hauling-for-repair provision.
Although FRA recognizes that the 100-percent requirement may be
somewhat burdensome for some railroads at certain locations, FRA
believes that the number of locations involved is relatively low and
should be handled on a case-by-case basis through the existing waiver
process. FRA agrees that many railroads have created their own problems
by eliminating repair facilities and personnel at many of the outlying
locations where the railroads now claim they lack the ability to make
appropriate repairs. Furthermore, FRA believes that the best method of
assessing the safety implications of permitting a location to operate
trains with less than 100-percent operative brakes is for the railroad
to provide information on how the railroad will handle the defective
equipment based on the specific needs and operating characteristics of
the railroad involved.
In the NPRM, FRA provided various approaches under which it would
potentially consider allowing a railroad to operate a train from their
initial terminal with less than 100-percent operative brakes. See 63 FR
48310. The methods suggested by FRA were rejected as being overly
burdensome by several commenters noted in the preceding discussion.
Therefore, FRA believes the burden falls on each railroad seeking
relief from the 100-percent requirement at certain outlying locations
to provide FRA with an operating plan that will ensure the safe
operation of such trains and provide for the timely and certain repair
of any defective equipment moved from those locations. Consequently,
FRA believes that there are a few existing locations that may be
candidates for receiving a waiver from the 100-percent requirement, and
FRA is willing to consider waivers for such locations, however; the
railroads applying for such waivers must be able to establish a true
need for the exemption and must be willing to provide alternative
operating procedures that ensure the safety of the trains being
operated from those locations.
The final rule also clarifies that the 100-percent operative brake
requirement is not intended to apply to transfer trains that originate
at location where the necessary brake repairs cannot be effectuated.
FRA agrees that the 100-percent requirement does not currently apply to
such trains, and it was not FRA's intention when issuing the NPRM to
extend its application to such trains. However, it should be noted that
if a transfer train originates at a location where repairs to the
equipment

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containing defective brakes can be effectuated, then the train would be
required to have 100-percent operative brakes prior to departing that
location.

D. Dynamic Brakes

The issue of dynamic brakes, and the extent to which FRA should
impose regulatory requirements governing their use, if at all, is one
which has prompted lengthy and animated debate among all affected
parties since the issuance of the ANPRM in December 1992. Coincident
with the drafting of the ANPRM, the Rail Safety Enforcement and Review
Act amended section 202 of the Federal Railroad Safety Act of 1970
(recodified at 49 U.S.C. 20141), and mandated, in part, that FRA,
``where applicable, prescribe regulations that establish standards on
dynamic braking equipment.'' This specific mandate is derived largely
from two NTSB recommendations to FRA concerning dynamic brakes
following the Southern Pacific Transportation Company (SP) accident at
San Bernardino, California on May 25, 1989.
In this accident, excessive tonnage and excessive speed cresting a
2.2-percent grade, complicated by the fact that the train crew had been
provided erroneous information regarding available and operative
dynamic brakes, led to a train that was out of control and was
ultimately unable to stop before derailing. While the NTSB determined
the primary cause of the accident to be the excessive weight of the
train as compared to that reported to the train crew, a secondary cause
was determined to be the fact that the engineer had far less operable
dynamic braking available for use than expected. The combination of
these two conditions likely led to flawed decision making by the train
crew in developing train handling strategies for negotiating the grade
safely. In its final report, the Safety Board issued the following
recommendations to the FRA regarding dynamic brakes:
1. Study, in conjunction with the AAR, the feasibility of
developing a positive method to indicate to the operating engineer in
the cab of the controlling locomotive unit the condition of the dynamic
brakes on all units in the train.
2. Revise regulations to require that if a locomotive unit is
equipped with dynamic brakes that the dynamic brakes function. NTSB
Recommendation R-90-24 (1990).
To reiterate the general explanation of the principles of dynamic
braking, as provided in the ANPRM (57 FR 62546), the 1994 NPRM (59 FR
47676), and the 1998 NPRM (63 FR 48311), dynamic brakes were developed
as a ``free'' by-product of the diesel-electric drive train. By
engaging the dynamic brake, the normally powered traction motors on
each axle are changed to generators, and the power generated is
dissipated through resistance grids. The effect is similar to that of
shifting an automobile to a lower gear when descending a steep grade.
The additional hardware needed to outfit a locomotive with dynamic
brakes includes the grids and the controls and switches.
The primary selling point of dynamic brakes has been the ability to
reduce freight car brake shoe wear. The dynamic brake is also useful in
controlling train slack in lieu of using the locomotive independent
brake. Furthermore, use of the dynamic brake in controlling train speed
in lieu of power braking, where the train brake is applied with the
locomotive under power, is a major factor in fuel savings. Due to these
benefits, railroads currently emphasize and encourage the use of
dynamic brakes as evidenced through examination of numerous carriers'
operating rules which dictate the use of dynamic braking as the
preferred method of slowing or controlling a train, or both, especially
in heavy-grade territory. Historically, dynamic brakes have been
applied to locomotives at the individual railroad's option, primarily
based on economic considerations. It is important to note that, at
present, the vast majority of new locomotives procured by the railroads
are equipped with dynamic brakes.
A wealth of information was gathered regarding the operation,
testing, and maintenance of dynamic brakes prior to the issuance of the
1998 NPRM. In the 1998 NPRM, FRA provided an in-depth discussion of the
various proposals and comments related to the operation and maintenance
of dynamic brakes as well as potential technologies for providing
information to the locomotive engineer regarding the operational status
of the dynamic brakes in a train consist. See 63 FR 48310-313. After
consideration of all the information submitted and developed, FRA
proposed a set of standards for dynamic brakes that it believed were
consistent with the statutory mandate, took into consideration NTSB
recommendations, promoted progressive improvements in dynamic brake
information systems through the phased introduction of technology,
while avoiding excessive regulation that might discourage the use of
dynamic brakes.
In the 1998 NPRM, FRA noted that RSAC Working Group and task force
deliberations provided no rationale to warrant a reconsideration of
FRA's stated position that dynamic brakes do not offer the technical
capability to serve as a primary train braking system since: (i) They
provide braking force only on powered locomotive axles and are
incapable of controlling in-train forces in the same manner as the
automatic braking system; (ii) they are effective only within a narrow
speed range and have no capability to actually stop a train; (iii) they
can fail without prior warning; and (iv) their failure mode is
characterized by loss of braking force (as opposed to the automatic
brake, which, properly employed, initiates an emergency brake
application upon loss of system integrity and therefore is failsafe).
Similarly, however, FRA asserted that the RSAC Working Group and task
force deliberations reinforced FRA's belief that dynamic brakes have
become, de facto, a second-order safety system where employed. Although
from the point of view of logical priorities, dynamic brakes ``back
up'' the automatic train brake system, in sequence of operational
procedures the priority is reversed. Stated differently, either the
proper functioning of these systems, or the provision of reliable
information concerning degraded functioning of these systems, should
prevent locomotive engineers from operating trains in a manner that
might make recovery through use of the automatic brake impossible.
In considering all of the information available, FRA concluded that
it was imperative for the locomotive engineer to be informed in writing
as to the operational status of the dynamic brakes on all locomotives
in the consist at the initial terminal or point of origin for a train
or at other locations where a locomotive engineer first takes charge of
a train. Therefore, FRA proposed that locomotive engineers be provided
this information at these locations. This proposed provision directly
addressed the foremost concern articulated by the NTSB following the
San Bernardino accident. FRA also proposed provisions requiring visible
identification of locomotive units with inoperative dynamic brakes. FRA
also agreed that when locomotives are equipped with dynamic brakes,
they should be in proper operating condition and be maintained on a
regular basis. Therefore, FRA proposed that defective dynamic brakes be
repaired within 30 days of being found defective or at the locomotive's
next periodic inspection. FRA recognized that these maintenance
requirements might be overly burdensome in some instances for railroads
(primarily short lines) that do not utilize dynamic brakes in their

[[Page 4130]]

respective operations, but yet own and operate locomotives equipped
with dynamic brakes. Consequently, FRA proposed provisions for
deactivating a locomotive's dynamic brakes without physically removing
the components.
In addition to the information and maintenance requirements, FRA
also proposed the development of operating rules and training programs
to ensure the proper and safe use of dynamic brakes. For example, FRA
proposed that railroads operating trains with brake systems that
include dynamic brakes, develop and implement written operating rules
governing safe train handling procedures for using these dynamic brakes
under all operating conditions that are tailored to the specific
equipment and territory of the railroad. The NPRM also proposed that
the railroads provide training to their locomotive engineers on the
prescribed operating rules, that at a minimum includes classroom,
hands-on, and annual refresher training. More importantly, FRA also
proposed a requirement that a railroad's operating rules be based on
the ability of friction brakes alone to safely stop the train under all
operating conditions. FRA believed that the establishment of these
comprehensive operating rules and training plans was the most effective
means by which to minimize the possibility of future incidents caused
by excessive reliance on dynamic brakes by a train crew.
In the ANPRM (57 FR 62555), the 1994 NPRM (59 FR 47687), and the
1998 NPRM (63 FR 48314), FRA requested comments from the industry on
possible methods of providing information regarding the status of
dynamic brakes to the engineer in the cab of the controlling
locomotive. The 1998 NPRM also contained a detailed discussion of
various technologies available for providing information on the status
of the dynamic brakes to the locomotive engineer. See 63 FR 48312-13.
Although FRA recognized that the technology for dynamic brake displays
with the ability to provide the type of information sought by FRA in
the 1994 NPRM was not readily available at the time the 1998 NPRM was
issued, several commenters suggested that the technology was under
development. Consequently, FRA was not ready or willing to require the
use of such indicators at that time. However, FRA noted that the
benefit of such an indicator would be to alert engineers that they have
diminished or excessive dynamic braking capabilities, thus permitting
the engineers to control the braking of their trains in the safest
possible manner. FRA indicated that it would continue to monitor the
development of the technology and consider its application to
locomotives used in the industry.
The AAR and its members, the NTSB, the CAPUC, and several
representatives of rail labor provided numerous comments on the
provisions related to dynamic brakes proposed in the 1998 NPRM. The AAR
contends that the proposed requirement to provide written notification
of the operational status of the dynamic brakes is overly burdensome.
They recommend that the information be permitted to be transmitted in
any manner, provided a record of the notification is maintained in the
cab of the controlling locomotive. They also suggest that the
notification only be required on an exception basis, when the dynamic
brakes are inoperative. Conversely, representatives of rail labor
contend that no locomotive with inoperative dynamic brakes should be
permitted to be dispatched from a location with mechanical facilities
capable of making the repairs. They further contend that if the
locomotive's dynamic brakes cannot be repaired at the train's point of
origin it should be allowed to be operated only as a trailing unit.
These commenters support the requirement that the locomotive engineer
be informed in writing as to the operational status of the dynamic
brakes on all units in the consist and recommend that the lead
locomotive of the consist be tagged to notify the engineer of the
presence of a defective unit.
The AAR also objects to the proposed requirement that defective
dynamic brakes be repaired within 30 days of being found defective. It
claims that due to the reliability of dynamic brake systems they should
be permitted to operate until the next periodic inspection. AAR asserts
that a shorter repair cycle will reduce motive power availability and
may result in shortages of motive power on some railroads. AAR also
requests clarification of the term ``ineffective'' dynamic brake. The
organization recommends that the term be eliminated, that the term
``inoperative'' dynamic brake be retained, and that a dynamic brake be
considered ``inoperative'' when it is no longer capable of providing
its designed retarding force on the train, similar to the proposed
definition of ``effective'' brake.
Representatives of rail labor contend that locomotives with
defective dynamic brakes should be required to be repaired within 15
days of being discovered. They contend that this is a more than
sufficient time period for railroads to arrange for alternative power
and get the locomotive to a location where it can be repaired. These
commenters also recommend that a record of the repairs made to a
locomotives dynamic brakes be retained for a period of one year rather
than the 92 days proposed in the NPRM. These commenters also recommend
that provisions be added to ensure that all dynamic brakes operate as
intended and that the equipment not be altered or cut back in any
manner.
The AAR also seeks clarification of the proposed training
requirements contending that they should not be included in this rule
unless FRA is willing to specify the knowledge, skills, and ability
criteria needed pursuant to part 240. They also contend that the
proposed requirement regarding the development of operating rules is
unclear and should be eliminated if not clarified. The BLE asserted
that the problem is not in the training of engineers on the use of
dynamic brakes but in the prohibition on the use of the automatic brake
in normal train operation, not just when the dynamic brakes fail. They
assert that locomotive engineers should be permitted to use the
automatic brake to control the train on a periodic basis to become
familiar with its operation.
The AAR also objects to the requirement to stencil locomotives
operating with deactivated dynamic brakes. The AAR asserts that
defacing such locomotives is unnecessary and that a less intrusive
means of identification should be used. The organization recommends
that a locomotive with a deactivated dynamic brake should be treated no
differently than a locomotive with an inoperative dynamic brake, in
that the locomotive engineer should be notified of its presence. The
AAR also recommends that railroads be permitted to use existing tags to
identify locomotives with inoperative dynamic brakes.
The AAR and several locomotive manufacturers provided comments on
the availability and use of dynamic brake indicators. These commenters
make clear that there is currently no easy method of providing the
available dynamic brake retarding force to the locomotive engineer.
They also contend that the technology does not exist to show dynamic
brake performance on distributed power units and that they should,
therefore, be excluded from any indicator requirements. These
commenters indicated that technology is not available to have most
existing locomotives retrofitted with an indicator of some sort. They
also assert that it is impossible to develop a device that will tell an
engineer whether the dynamic

[[Page 4131]]

brakes will operate prior to the engineer actually applying the brakes
due to the unknown risk of failure. The AAR also recommends that if FRA
adopts an indicator requirement then the proposed requirements related
to the notification of the locomotive engineer of dynamic brake status
and for repairing inoperative dynamic brakes should not be adopted
since real-time information will be available to the locomotive
engineer.
Numerous labor representatives, the NTSB, and the CAPUC contend
that the technology does exist, at least for new locomotives, to
provide locomotive engineers with real-time indicators of the operating
status of the dynamic brakes on trailing units. These commenters
believe that the information these indicators provide to an engineer is
extremely important and would allow engineers to control and operate
their trains in the safest manner possible. All of these commenters
appear to support a requirement to require these indicators in new
locomotives, and some recommend some sort of retrofit requirement for
existing equipment.
Several parties responded to FRA's request regarding technical
reasons for prohibiting a locomotive with inoperative dynamic brakes
from functioning as the lead or controlling locomotive in a locomotive
consist. The AAR responded that it found no technical reason to
prohibit such use, provided the locomotive has the ability to control
the dynamic brakes on trailing locomotives. The AAR contends that
railroads currently operate in this manner and will use a non-equipped
locomotive when the other locomotives in the consist are cabless.
Several labor representatives asserted that a locomotive with
inoperative dynamic brakes should not be permitted to operate as the
controlling locomotive regardless of whether it can operate the dynamic
brakes on trailing units. These commenters contend that the engineer is
better able to feel the dynamic brakes operate if the controlling unit
has operative dynamic brakes and that the engineer will at least know
whether that unit has operable dynamic brakes. The CAPUC cites similar
human factor reasons for contending that a locomotive with inoperative
dynamic brakes should not be used as a controlling unit. Several labor
representatives also contended that if a defective locomotive were in
the controlling position, then the speed of the train should be limited
to 30 mph and the train should not be permitted to operate over grades
of one percent or greater until a locomotive with operative dynamic
brakes is placed in the lead position.
The NTSB and the CAPUC recommend that FRA include a ``mile-per-
hour-overspeed-stop'' rule into the final rule to ensure that the speed
of a train does not exceed its braking capacity. Such a rule would
require a train that exceeds an established speed limit by a specified
amount to be placed in emergency. The NTSB recommends that the
overspeed limit be 5 mph or less over the designated speed limit. The
CAPUC claims that California uses a 5 mph rule but that the limit may
vary for different operations and should be established through
validated simulations that include brake fade and field tests and must
be related to a safe base speed. Both commenters contend that although
the overspeed rule is simple, it accomplishes a critical safety
function and reduces the chances of a runaway occurring as it removes
any discretion from the operator. The CAPUC also recommends that
railroads be required to validate their operating rules to ensure that
friction brakes alone are sufficient to stop a train on all grades
operated by the railroad. The CAPUC recommends that this be
accomplished through validated simulations and field test that take
into account brake heat-fade.
FRA Conclusions. The intent of the proposed requirement to notify
the locomotive engineer in writing as to the operational status of the
dynamic brakes on the locomotives in a train's consist was to ensure
that the engineer had timely information on the condition of the
locomotives so he could operate the train in the safest possible manner
based upon that information. Thus, the manner in which the information
is provided to the engineer is not a major concern to FRA, provided the
information is accurate and up-to-date. Therefore, the final rule will
allow railroads to provide locomotive engineers with the required
information by any means they deem appropriate. However, the final rule
will require that a written or electronic record of the information
provided be maintained in the cab of the controlling locomotive. This
will ensure that on-coming engineers will have the information provided
to the previous operator of the train. The final rule also clarifies
that the information is to be provided to the locomotive engineer at
the train's initial terminal and at other locations where an engineer
``first begins operation'' of the train rather than where the engineer
``takes charge of the train.'' This clarification is in response to
certain labor commenters to prevent possible misinterpretation or abuse
of the requirement.
The final rule retains the proposed requirement to repair
locomotives with inoperative dynamic brakes within 30 days of being
found inoperative or at the locomotive's next periodic inspection,
whichever occurs first. Due to the industry's reliance on these braking
systems, as noted in the discussion above, FRA continues to believe
they should be repaired as soon as possible after being found
inoperative. FRA believes that a period of 30 days provides the
railroads with sufficient time to get a locomotive to a location where
the dynamic brakes can be repaired and allows for the reallocation of
motive power when necessary so as to cause minimal disruption to a
railroad's operation. FRA is not willing decrease the time period
allowed to make repairs, as recommended by some commenters, because
such a reduction could jeopardize a railroad's access to available
motive power and could cause delay in the movement of freight which may
create safety hazards themselves.
The final rule also eliminates the use of the term ``ineffective''
dynamic brakes and uses the term ``inoperative'' dynamic brake to
include any dynamic brake that no longer provides its designed
retarding force on the train, for whatever reason. FRA agrees that the
use of only this term clarifies the applicability of the requirements
related to dynamic brakes and prevents potential misunderstandings. The
final rule also retains the proposed requirements related to the
tagging of a locomotive found with inoperative dynamic brakes. Contrary
to the comments of some parties, FRA does not believe that the tagging
provisions require the development of new tags. The rule would allow
the use of any type of tag, provided it is placed in a conspicuous
location and contains the required information. The final rule also
eliminates the requirement to stencil the outside of a locomotive
declared to have deactivated dynamic brakes. FRA agrees that defacing
the exterior of the locomotive is unnecessary and would do little to
inform the locomotive engineer of the presence of the locomotive. FRA
believes that the requirements to notify the locomotive engineer of the
operational status of the locomotives and to have the cab of the
locomotive clearly marked that the locomotive's dynamic brakes are
deactivated provide sufficient notice to the locomotive engineer as to
the status of that locomotive.
The final rule contains a requirement that an electronic or written
record of repairs made to a locomotive's dynamic brakes be maintained
and retained for a period of 92 days. Although this

[[Page 4132]]

requirement was not proposed in the NPRM, FRA believes these records
fall within the scope of the notice and are necessary to ensure that
necessary repairs are conducted on a locomotive's dynamic brakes in a
timely fashion. FRA also believes that such a record will provide a
railroad with information regarding the operation of the dynamic brakes
and will potentially permit railroads to identify a repeated problem
with a locomotive's dynamic brakes to prevent future reoccurrences and,
thus, increase the utilization of a locomotive's dynamic brakes.
The final rule also contains specific requirements related to the
use of a locomotive with inoperative or deactivated dynamic brakes as a
controlling locomotive. These requirements are based on FRA's review of
the comments submitted in response to FRA's request regarding the
positioning of such a locomotive made in the NPRM. See 63 FR 48314. FRA
tends to agree that there are no technical reasons why a locomotive
with inoperative dynamic brakes cannot function as the controlling
locomotive provided it can control the dynamic brakes on trailing units
in the locomotive consist. However, FRA also agrees that a locomotive
engineer loses the physical sensation of the operation of the dynamic
brakes when the unit where the engineer is riding loses dynamic brake
capability, which, if present, provides the engineer with at least some
assurance that the dynamic brakes on some of the units in the consist
are operating. Thus, in addition to requiring that locomotives with
inoperative or deactivated dynamic brakes have the capability of
controlling the dynamic brakes on trailing units when operating as the
controlling locomotive, the final rule also requires that such
locomotives also have the capability of displaying to the locomotive
engineer the deceleration rate of the train or the total train dynamic
brake retarding force. This requirement will ensure that locomotive
engineers have at least some information as to the operation of the
dynamic brakes in the locomotive consist they are controlling. FRA
intends that the information required by this provision be provided
either by a device known as an ``accelerometer'' or a similar device or
by a dynamic brake indicator capable of providing total train dynamic
brake retarding force to the locomotive engineer.
The final rule also contains provisions requiring new and rebuilt
locomotives to be equipped with some sort of dynamic brake indicator.
Although FRA agrees that the technology does not currently exist to
equip existing locomotives with dynamic brake indicators economically,
FRA does believe that the technology exists or is sufficiently
developed to provide new locomotives with the ability to test the
electrical integrity of the dynamic brakes at rest and to display the
total train dynamic brake retarding force at various speed increments
in the cab of the controlling locomotive. FRA recognizes that the
industry will require a little time to incorporate the existing
technology into new locomotives. Therefore, the requirements related to
dynamic brake indicators will only apply to locomotives ordered one and
one-half years after the issuance of this final rule and to locomotives
placed in service for the first time three years after the effective
date of the final rule. FRA also recognizes that not all locomotives
being rebuilt are designed, or have the capability of being redesigned,
to have the capability to display the total train dynamic brake
retarding force in the cab of the controlling locomotive. Thus, the
final rule allows rebuilt locomotives to be designed to display the
train deceleration rate (i.e., equipped with an accelerometer or
similar device as discussed above) in lieu of being equipped with the
dynamic brake indicator required on new locomotives. FRA believes that
the information provided by these indicators is extremely useful to an
engineer and will provide locomotive engineers with ready access to
real-time information on the operation of the dynamic brakes in a
locomotive consist and permit engineers to control and operate trains
in the safest manner possible.
FRA also acknowledges that the information provided by dynamic
brake indicators would eliminate the need to provide the locomotive
engineers with information regarding the operational status of the
dynamic brakes when the engineer first begins operation of a train. As
the indicators would provide real-time information to the engineer on
the operation of the dynamic brakes brake in the train consist, the
information received by the engine when beginning operation would be
unnecessary. Therefore, the final rule alleviates the need to inform
locomotive engineers of the status of the dynamic brakes when all of
the locomotives in the lead consist are equipped with dynamic brake
indicators required for new locomotives. FRA believes that this
allowance makes sense from a practical perspective but also provides
some incentive for railroads to equip existing equipment with such
indicators when the technology for doing so becomes economically
feasible. It should be noted that there is no requirement that the
dynamic brake status of distributed power units be provided in order to
eliminate the need to provide dynamic brake information to the
engineer. FRA agrees that the technology for transmitting that
information to the engineer is not currently available in a cost
effective and reliable manner.
The final rule retains the proposed provisions requiring railroads
to develop and implement written operating rules governing the use of
dynamic brakes and to incorporate training on those operating rules
into the locomotive engineer certification program pursuant to 49 CFR
part 240. Contrary to the assertions of some commenters, FRA does not
believe these requirements are unclear. FRA intends for each railroad
to develop appropriate operating rules regarding train handling
procedures when utilizing dynamic brakes that cover the equipment and
territory operated by the railroad. Many railroads already have these
procedures in place and already provide training to their employees
that adequately cover the requirements. FRA continues to believe that
training on proper train handling procedures is essential to ensuring
that locomotive engineers can properly handle their trains with or
without dynamic brakes and in the event that these brake systems fail
while the train is being operated. FRA also disagrees that the agency
should specify the knowledge, skill, and ability criteria that a
railroad must incorporate in its training program. FRA believes that
each railroad is in the best position to determine what these criteria
should be, given the railroad's equipment, physical characteristics and
operating rules, and what training is necessary to provide that
knowledge, skill, and ability to its employees.
The final rule also requires that the operating rules developed by
railroads include a ``miles-per-hour-overspeed-stop'' requirement that
requires a train to be immediately stopped if it exceeds the maximum
authorized speed by more than 5 mph when descending a grade of one
percent or greater. FRA agrees with both the NTSB and the CAPUC that
this requirement accomplishes a critical safety function and reduces
the potential for a runaway train as it establishes a clear rule for
stopping a train and removes any discretion from the operator to
continue operation of a train. FRA believes that the five-mph
limitation is a good base limitation that should be reduced if so
indicated by validated research and should be increased only with FRA
approval. Moreover, the operating rules of most

[[Page 4133]]

Class I railroads already include a five-mph-overspeed-stop provision;
thus, FRA's inclusion of the requirement in this final rule should
impose little or no burden on the operations of most railroads.

E. Training and Qualifications of Personnel

Currently, the regulations contain no specific training
requirements or standards for personnel who conduct brake system
inspections. The regulations merely require that a ``qualified person''
perform certain inspections or tasks. See 49 CFR 232.12(a).
Furthermore, the current regulations do not require that a railroad
maintain any type of records or information regarding the training or
instruction it provides to its employees to ensure that they are
capable of performing the brake inspections or tests for which they are
assigned responsibility. In several cases, FRA has found that a
railroad's list of ``qualified persons'' is merely a roster of all of
its operating and mechanical forces.
In the 1994 NPRM, FRA proposed a series of broad qualification
standards addressing various types of personnel engaged in the
inspection, testing, and maintenance of brake equipment. See 59 FR
47731-47732. These broad qualifications were separated into distinct
subgroups that identified various types of personnel based on the type
of work those individuals would be required to perform under the
proposal. These included supervisors, train crew members, mechanical
inspectors, and electronic inspectors. Although not proposed in the
rule text of the 1994 NPRM, the preamble contained various guidelines
regarding specific hours of classroom and ``hands-on'' training as well
as guidelines regard the level of experience each of these types of
employees would be required to possess or be provided. See 59 FR 47702-
47703. The proposal also contained various requirements regarding the
development and retention of records and information used by a railroad
in determining the qualifications of such employees. See 59 FR 47732.
In the 1998 NPRM, FRA acknowledged that many railroads continue to
improve the training they provide to individuals charged with
performing brake system inspections, tests, and maintenance; however,
FRA also acknowledged that it continued to believe that this training
could be greatly improved and enhanced. The agency noted that although
there had been a decline in the number of train incidents, derailments,
fatalities, and injuries over the previous ten years, FRA believed that
the number of these incidents could be further reduced if maintenance,
inspections, and tests of the brake system were performed by
individuals who have received proper training specifically targeting
the activities for which the individual is assigned responsibility. FRA
believed that one of the major factors in ensuring the quality of brake
inspections and the proper operation of that equipment is the adequate
training of those persons responsible for inspecting and maintaining
that equipment.
In the 1998 NPRM, FRA proposed broad performance-based training and
qualification requirements that would permit a railroad to develop
programs specifically tailored to the type of equipment it operates and
the employees designated by the railroad to perform the inspection,
testing, and maintenance duties required in this proposal. FRA agreed
that there is no reason for an individual who solely performs pre-
departure air brake tests and inspections to be as highly trained as a
carman since a carman performs many other duties which involve the
maintenance and repair of equipment in addition to brake inspections.
Therefore, FRA proposed training and qualification requirements which
permit a railroad to tailor its training programs to ensure the
capability of its employees to perform the tasks to which they are
assigned. FRA also made clear that the proposed training and
qualification requirements applied not only to railroad personnel but
also to the personnel of railroad contractors and personnel in plants
that build cars and locomotives that are responsible for brake system
inspections, maintenance, or tests covered by this part.
Contrary to the 1994 NPRM, FRA did not issue specific guidelines on
experience, classroom training, or ``hands-on'' training. FRA agreed
that many of the guidelines contained in the preamble to that proposal
were overly restrictive and might have impeded the implementation of
certain training protocols capable of achieving similar results with
less emphasis on solely the time spent in the training process.
Furthermore, the 1994 proposed guidelines failed to consider the
potentially narrow scope of training that might be required for some
employees, particularly some train crew personnel, that perform very
limited inspection functions on very limited types of equipment.
Consequently, although the training and qualification requirements
proposed in the 1998 NPRM continued to require that any training
provided include classroom and ``hands-on'' training as well as verbal
or written examinations and ``hands-on'' proficiency, they did not
mandate a specific number of hours that the training must encompass as
FRA realized that the time period should vary depending on the employee
or employees involved. The 1998 proposal also contained provisions for
conducting periodic refresher training and supervisor oversight of an
employee's performance once training is provided.
FRA believed that the recordkeeping and notification requirements
contained in the 1998 proposal were the cornerstone of the training and
qualification provisions. As FRA was not proposing specific training
curricula or specific experience thresholds, FRA believed that the
recordkeeping provisions were vital to ensuring that proper training
was being provided to railroad personnel. FRA intended the record
keeping requirements to provide the means by which FRA would judge the
effectiveness and appropriateness of a railroad's training and
qualification program. The proposed recordkeeping provisions also
provided FRA with the ability to independently assess whether the
training provided to a specific individual adequately addresses the
tasks that the individual is deemed capable of performing. Finally the
proposed training mandates seemed most likely to prevent railroads from
using insufficiently trained individuals to perform the necessary
inspections, tests, and maintenance required by the proposal.
In the 1998 NPRM, FRA proposed to require that railroads maintain
specific personnel qualification records for all personnel (including
their contractors' personnel) responsible for the inspection, testing,
and maintenance of train brake systems. FRA proposed that the records
contain detailed information regarding the training provided as well as
detailed information on the types of equipment the individual is
qualified to inspect, test, or maintain and the duties the individual
is qualified to perform. As an additional means of ensuring that only
properly qualified individuals are performing only those tasks for
which they are qualified, FRA proposed that railroads be required to
promptly notify personnel of changes in their qualification status and
specifically identify the date that the employee's qualification ends
unless refresher training is provided.
FRA recognized that some railroads would be forced to place a
greater emphasis on training and qualifications than they had in the
past, and as a result would incur additional costs. However, FRA
believed that the proposed rule

[[Page 4134]]

allowed railroads the flexibility to provide only the training that an
employee needs in order to perform a specific job. The 1998 proposed
rule did not require an employee who performs only brake inspections
while the train is en route (i.e., Class II brake tests) to receive the
intensive training needed for an employee who performs Class I brake
tests or one who is charged with the maintenance or repair of the
equipment. The training might be tailored to the specific needs of the
railroad. Across the industry as a whole, the 1998 proposal would not
have required extensive changes in the way most railroads currently
operate, but it would have required some railroads to invest more time
in the training of their personnel.
FRA recognized that the costs of the proposed training requirements
were fairly substantial; however, FRA believed that most Class I
railroads had already invested in training, routinely scheduled
training for their employees, and offered training to other interested
parties. On the other hand, FRA noted that most railroads did not
engage in the ``hands-on'' training and testing contained in the
proposal nor did most railroads maintain the records required in the
proposal. FRA noted that many Class I railroads have participated in
initiatives under the Safety Assurance and Compliance Program (SACP)
with FRA and labor and that many of the proposed training requirements
would already be met by those railroads that have completed the
training required under the SACP.
In the 1998 NPRM, FRA recognized that the proposed training
requirements would likely cause some impact to smaller railroads but
believed that the impact of the requirements on these smaller
operations would be somewhat reduced due to the training already
provided by the railroads and due to the nature of the operations
themselves. FRA noted that many smaller railroads, particularly Class
II railroads, send their employees to other railroads for training,
participate in ASLRA and FRA training, and have some form of on-the job
training. Furthermore, Class III railroad employees are not likely to
require extensive training on different types of brake equipment since
most of the equipment used by Class III railroads have only one type of
brake valve. Furthermore, the employees of these small railroads would
likely not be required to receive any training in the areas of EPIC
brakes, dynamic brakes, two-way EOT devices, or on some of the brake
tests and maintenance mandated in the proposal due to the limited
distances traveled by these trains, the low tonnages hauled, and
because many of the maintenance functions are contracted out to larger
railroads.
The AAR and its members, the ASLRA, and various private car owners
submitted numerous comments regarding the proposed training
requirements. Generally, these commenters believe that the significant
costs being imposed by the proposed training requirements are not
justified based on the industry's safety record over the last two
decades. They contend that the industry's safety record is evidence
that the current training provided by the railroads is sufficient. At a
minimum, these commenters recommend that railroads be provided three
years to implement any training requirements imposed. Such an approach
would be consistent with the proposed three-year refresher training
requirements and would prevent manpower shortages and ease the
financial impact.
Several railroad representatives recommend that railroads not be
responsible for the training of the contract personnel they employ as
was proposed. They contend that railroads do not maintain records of
the training or experience of these individuals and that the contractor
should bear the burden of training its own employees. These commenters
admit that railroads would work with contractors to help them train
their employees but that the contractor should be held responsible for
providing the necessary training. They assert that the contractor is in
the best position to determine the training needs of its employees and
that the proposed approach potentially intrudes and alters the
employment relationship of contractors and railroads.
Representatives of various railroads also object to some of the
administrative burdens imposed by the proposed training requirements.
They contend that the requirement to identify all tasks related to the
inspection, testing, and maintenance of brake systems and develop
procedures for performing each task, is overly burdensome and
unnecessary. They also object to the proposed requirement that the
railroad's Chief Mechanical or Chief Operating Officer sign a statement
for each employee attesting that the employee meets the minimum
requirements. They contend that the requirement would inhibit the use
of electronic records and that there is no benefit obtained by
requiring such a signature. These commenters further object to the
requirement that railroads implement formal internal audit programs,
contending that these programs would waste scarce resources and that
the effectiveness of a training program can be assessed through
efficiency tests, supervisory spot checks, and other less burdensome
methods.
The AAR also objects to the potential requirement that all existing
employees be completely retrained. The AAR recommends that existing
employees not be required to receive any new training because it is
unnecessary and there has been no showing that current training is
inadequate. They also suggest that there is no need for refresher
training of these employees unless a new brake system is introduced. At
a minimum, they recommend that the ``hands-on'' refresher training be
eliminated as virtually every railroad conducts periodic efficiency
testing or audits of its employees to ensure ``hands-on'' proficiency
of personnel. They also contend that refresher training should only be
required for those employees that repeatedly demonstrate a failure to
properly perform their required duties.
Several railroad representatives also object to the proposed
requirement that employees receive training and testing on each task
they will be required to perform and that they be trained and tested on
each type of equipment operated by the railroad. These commenters
contend that these proposed requirements would be cost-prohibitive and
time-consuming. They claim that it is impossible for a railroad to have
every type of vehicle it operates available to train all of its
employees. They recommend that the training be limited to the different
brake systems operated by the railroad and that the training be
required to impart the necessary skills and abilities to perform the
required tasks.
The AAR and the ASLRA also object to the proposed record keeping
provisions, claiming they are overly detailed and unnecessary. These
commenters recommend that the record keeping burdens be reduced and
that FRA should only require a list of qualified employees, the
training courses completed by an employee, and the date that training
was completed. They contend that each railroad is in the best position
to determine the level of detail that their records should contain and
that the level of detail proposed by FRA will have a significant cost
burden on railroads.
Representatives of rail labor reiterate that the need for any
training provisions could be greatly reduced if FRA would simply
require many of the proposed inspections and tests to be conducted by
qualified carmen. At a minimum, these commenters contend that any
training provisions must include a requirement

[[Page 4135]]

for FRA approval. They assert that any training program developed by a
railroad should be approved by FRA. Several labor representatives also
contend that the proposed training requirements fail to adequately
address supervisors charged with oversight and training instructors.
They believe that specific qualifications of both supervisors and
instructors should be included in any final rule developed. They
further contend that the proposed requirements do not include a dispute
resolution procedure which they believe is necessary to avoid potential
abuses by railroads when designating qualified employees. Certain labor
representatives recommend that the proposed language regarding the
training on new equipment needs to be clarified to ensure that the
training is provided before the new equipment is placed in service.
FRA Conclusions. FRA recognizes that there has been a significant
decline in the number of brake-related derailments and other train
accidents and incidents, and resulting property damage, fatalities, and
injuries over the last ten years; however, FRA continues to believe
these numbers can be even further reduced if the inspections and tests
of brake systems are performed by individuals who have received
training that specifically targets the activities which the individual
is assigned responsibility to perform. FRA's experience in enforcing
the existing power brake regulations supports the conclusion that the
better trained a person is on how to perform a brake inspection the
better that person can perform the inspection when required to do so.
Many FRA field inspectors have discovered equipment with brake
conditions having the potential of causing a derailment or accident
that are not identified by railroad personnel because those persons
responsible for finding the conditions are not sufficiently trained or
equipped to conduct the inspections they are required to perform. FRA's
field forces consistently find that the most comprehensive brake
inspections are performed by those individuals who have received
detailed training specifically related to the inspection being
performed and who conduct such inspections on a consistent basis. Based
on this experience, FRA believes that the training required in this
final rule will enhance the quality of brake inspections, which will
increase the discovery of brake conditions that have the potential of
causing a derailment or other accident. Because an increased number of
brake conditions having the potential of causing a derailment or other
accident will be discovered prior to being used in a train, FRA expects
that the training required by this rule will reduce the number of
incidents caused by brake-related problems.
Furthermore, as discussed in the 1998 NPRM, railroads continue to
consolidate mechanical work to fewer and fewer locations on their
systems. This trend places an increasing premium on the ability of
mechanical and operating forces to conduct meaningful inspections and
tests of the power brake system. Increases in train speeds and
increased pressure on operating personnel due to growing traffic
density will continue to make it critical for operating and mechanical
forces to discharge their duties with respect to the power brake system
both diligently and effectively even under the most optimistic of
scenarios. Technological change presents an additional reason for
placing a strong emphasis on the training and qualifications of
inspection personnel. Both operating and mechanical personnel are
confronted with an increasing variety of power brake arrangements and
features. Consequently, these trends and changes make the training
required in this final rule a necessity in order to ensure and enhance
the quality of brake inspections.
In addition to the safety benefits, both quantified and non-
quantified, there are certain operational benefits derived from the
training required by this final rule. This final rule allows an
increase in the distance some trains may travel between brake
inspections. These increases are premised on the condition that all of
the inspection functions performed on these trains are conducted by
highly trained and qualified personnel. The latitude provided to these
trains will result in fewer inspections per miles traveled and will
reduce the number of opportunities that exist for a serious defect to
be found before it could result in a train incident. It is imperative,
therefore, that each inspection performed on these trains be of
uniformly high quality. FRA believes that the training required by this
final rule is a key factor for ensuring such high quality inspections.
FRA also believes that certain non-quantifiable operational benefits
will be derived from the training required by this final rule,
particularly in the areas of equipment utilization, reduced train
delays, and repair costs.
FRA agrees that railroads have made significant improvements in the
quality of training provided to their employees but believes that this
training can be further improved. Furthermore, FRA believes that a
number of railroads participating in the SACP process have already
developed, or are in the process of developing, comprehensive training
programs that meet many of the requirements proposed in the NPRM.
Therefore, the final rule retains the basic structure and concepts that
were proposed in the NPRM regarding the training of individuals
responsible for conducting the inspections and tests required by the
final rule. The proposed training requirements have been slightly
revised in this final rule in order to clarify FRA's intent, to
recognize existing training, and to reduce any unnecessary burden that
may have been inadvertently created by the proposed requirements.
The final rule modifies the proposed provision that required a
railroad to provide training to the personnel of a contractor to the
railroad whom the railroad uses to perform the various tasks required
by the rule. The final rule makes clear that the contractor is
responsible for providing appropriate training to its employees. FRA
agrees that railroads should not bear the burden of training the
employees of a contractor. However, FRA notes that this change does not
relieve the railroad from potential civil penalties for, e.g., failure
to perform a proper Class I brake test, if the employees of a
contractor were found not to be qualified to perform the task for which
they are assigned responsibility. As a contractor's employees are
acting as an agent for the railroad when performing a task required by
this regulation, both the railroad and the contractor would remain
liable for potential civil penalties if the employees used to perform a
particular task were not trained and qualified in accordance with the
training requirements contained in this final rule.
The final rule retains the proposed requirement that railroads and
contractors identify the tasks related to the inspection, testing, and
maintenance of the brake system required to be performed by the
railroad or contractor and identify the skills and knowledge necessary
to perform each task. FRA believes that it is essential to developing a
comprehensive training program for a railroad or contractor to go
through the process of identifying the tasks they will be required to
perform and determining the skills and knowledge that must be provided
to perform those tasks. FRA believes that most railroads have already
engaged in this activity and would merely need to revise existing data
with changes made to existing requirements by this final rule. The
final rule eliminates the requirement to

[[Page 4136]]

develop written procedures for performing each task identified.
Although FRA believes that each railroad or contractor should and will
develop such procedures, FRA does not believe it is necessary to
require their development as FRA believes they will either be developed
in the required training curricula or are sufficiently detailed in the
regulation itself.
The final rule also clarifies that the required training is
intended to provide employees with the skills and knowledge necessary
to perform the tasks required by this final rule. FRA does not believe
it is necessary to train an employee on every different type of
equipment that a railroad operates or on each and every task an
employee will be required to perform. FRA's intent when issuing the
NPRM was to ensure that the training received by an employee provided
that individual with the knowledge and skills needed to perform the
tasks he or she was assigned on the various types of equipment the
railroad operated. Therefore, the final rule clarifies this intent by
specifically stating that the training curriculum, the examinations,
and the ``hands-on'' capability should address the skills and knowledge
needed to perform the various required tasks rather than focusing
strictly on the tasks themselves or on the specific types of equipment
operated by the railroad. The final rule also clarifies that the
training that an employee is required to receive need only address the
specific skills and knowledge related to the tasks that the person will
be required to perform under this part. Thus, a railroad or contractor
may tailor its training programs to the needs of each of its employees
based on the tasks that each of its employee will be required to
perform. FRA tends to agree with several commenters that there is no
reason for an individual who performs strictly brake inspections and
tests to be as highly trained as a carman since carmen perform many
other duties related to the maintenance and repair of equipment in
addition to brake inspections.
The final rule also clarifies that previous training and testing
received by an employee may be considered by the railroad. FRA did not
intend to require the complete retraining of every employee performing
a task required in this final rule. When proposing the training
requirements, FRA intended for railroads to incorporate existing
training regimens and curricula into the proposed training programs.
Therefore, in order to clarify this intent, the final rule contains a
specific provision which permits railroads to consider previous
training and testing received by an employee when determining whether
an employee is qualified to perform a particular task. However, the
final rule also makes clear that any previous training or testing
considered by a railroad or contractor must be documented as required
in the final rule. Thus, previous training or testing which has not
been properly documented cannot be considered. The final rule also
makes clear that employees must be trained on the specific regulatory
requirements contained in this final rule related to the tasks that the
employee will be required to perform. Therefore, all employees
performing tasks covered by this part will require at least some
training which covers the specific requirements detailed in this final
rule.
The final rule retains the proposed requirement regarding the
performance of periodic refresher training and testing. The final rule
retains the requirement that refresher training be provided at least
once every three years and that it include both classroom and
experiential ``hands-on'' training and testing. FRA continues to
believe that periodic refresher training is essential to ensuring the
continued ability of an employee to perform a particular task. FRA does
not intend for such training to be as lengthy or as formal as the
initial training originally provided, but believes that the training
should reemphasize key elements of various tasks and focus on items or
tasks that have been identified as being problematic or of poor quality
by the railroad, contractor, or its employees through the periodic
assessment of the training program. The final rule also makes clear
that a railroad or contractor may use efficiency testing to meet the
hands-on portion of the required refresher training provided such
testing is properly documented. FRA agrees that such testing provides
the necessary assurances that the individual continues to have the
knowledge and skills necessary to perform the task for which the
employee is being tested.
The final rule also modifies the proposed requirement that
railroads develop an internal audit process to evaluate the
effectiveness of their training. Although FRA agrees that a formal
audit process may not be necessary, FRA continues to believe that
railroads and contractors should periodically assess the effectiveness
of their training programs. However, rather than require a formal
internal audit, FRA believes that periodic assessments may be conducted
through a number of different means and each railroad or contractor may
have a need to conduct the assessment in a different manner. The final
rule requires that a railroad or contractor develop a plan to
periodically assess its training program and, as suggested by some
commenters, permits the use of efficiency tests or periodic review of
employee performance as methods for conducting such review. FRA agrees
that many railroads, due to their small size, are capable of assessing
the quality of the training their employees receive by conducting
periodic supervisory spot checks or efficiency tests of their
employees' performance.
The final rule also retains the record keeping requirements
proposed in the NPRM with slight modification for consistency with the
changes noted above regarding the application of the skills and
knowledge necessary to perform a particular task. FRA continues to
believe that the record keeping and designation requirements contained
in this final rule are the cornerstone of the training requirements.
Contrary to the views of some commenters, FRA believes that something
more than mere lists of qualified employees is needed. Because the rule
allows each railroad and contractor the flexibility to develop a
training program that best fits its operation and does not impose
specific curriculum or experience requirements, FRA continues to
believe it is vital for railroads and contractors to maintain detailed
records on the training they do provide. Such documentation will allow
FRA to judge the effectiveness of the training provided and will
provide FRA with the ability to independently assess whether the
training provided to a specific individual adequately addresses the
skills and knowledge required to perform the tasks that the person is
deemed qualified to perform. Moreover, requiring these records will
prevent railroads and contractors from circumventing the training
requirements and prevent them from attempting to utilize insufficiently
trained personnel to perform the inspections and tests required by this
rule.
The final rule makes clear that the required records may be
maintained either electronically or in writing. Many railroads
currently maintain their training records in an electronic format, and
FRA sees no reason not to permit such a practice if as the information
can be provided to FRA in a timely manner upon request. The proposed
provision requiring the railroad's chief mechanical or chief operating
officer to sign a statement regarding each employee's qualifications
has been modified in the final rule to merely require identification of
the person or persons

[[Page 4137]]

making the determination that the employee has completed the necessary
training. This modification will permit the information to be
maintained electronically and will still provide the accountability
which FRA intended by the provision in the NPRM. FRA believes it is
absolutely essential that those individuals making the determinations
regarding an employee's qualification be identified in order to ensure
the integrity of the training programs developed and prevent potential
abuses by a railroad or contractor.
FRA also objects to the portrayal by some commenters that the
records required to be maintained are overly burdensome. Virtually all
of the items required to be recorded are currently maintained by most
railroads in some fashion or another. Contrary to the concerns raised
by some commenters, the rule does not require that the contents of each
training program be maintained in each employee's file. Railroads are
free to develop whatever type of cross-referencing system they desire,
provided the contents of the training program are maintained in some
fashion and can be readily retrieved. Furthermore, railroads currently
maintain lists of individuals they deem to be qualified persons and
inform those individuals as to their status to perform particular
tasks. FRA believes this is a good practice and is necessary to ensure
that individual employees do not attempt to perform, or are not asked
to perform, tasks for which they have not been trained.
The final rule contains two provisions that were not specifically
included in the NPRM but which were intended by FRA to be covered by
the established training programs. The final rule requires that new
brake systems be added to training programs prior to their introduction
into revenue service. FRA believes this requirement is only logical and
makes sense. FRA believes that prior to the introduction of any new
brake system the employees responsible for inspecting and maintaining
the equipment need to be specifically trained on the systems in order
to adequately perform their required tasks. The final rule also
requires railroads that operate trains under conditions that require
their employees to set retaining valves to develop training programs
which specifically address the use of retainers and provide such
training to those employees responsible for using or setting retainers.
This provision has been added in response to an NTSB recommendation
which FRA supports. See NTSB Recommendation R-98-7.
FRA has not included provisions requiring FRA approval of the
training programs developed by railroads or contractors as suggested by
some commenters. FRA does not have the resources to implement such an
approval process and does not believe such approval is necessary, given
the records that will be required to be maintained. Furthermore, FRA
believes that such a process would slow the implementation of training
programs and, thus, slow the implementation of this final rule. An
approval process would also seriously impede the ability of a railroad
or contractor to make necessary and timely changes to its training
program, which is necessary to ensure its currency. The final rule also
does not contain a dispute-resolution provision regarding such
programs. FRA believes that such matters are within the province of
employee-employer relationships and are better addressed by established
processes. The final rule also does not specifically address the
training that must be provided to supervisors. Although some commenters
recommended specific requirements, FRA believes that supervisors are
sufficiently covered by the final rule requirements. FRA believes that
in order for a supervisor to properly exercise oversight of an
employee's work, the supervisor must be qualified to perform the tasks
for which they have oversight responsibilities.
FRA realizes that many railroads will need time to bring their
existing training programs up to the level required by this final rule.
FRA also recognizes that the cost of the proposed training requirements
is somewhat substantial and may prevent railroads from completing the
necessary training in a short period of time. Moreover, FRA recognizes
that railroads need time to provide the necessary training to their
employees without causing manpower shortages in their operations.
Therefore, the final rule allows railroads three years in which to
develop and complete the required training. This period is consistent
with the time requested by the AAR and other railroad commenters. It is
also consistent with the requirement to provide refresher training at
least every three years and will allow a railroad to have one-third of
its inspection forces receive the necessary refresher training each
year after the initial training is complete.

F. Air Source Requirements

In the 1998 NPRM, FRA again proposed a ban on the use of anti-
freeze chemicals in train air brake systems, reiterating the position
stated in the 1994 NPRM, in order to prevent untimely damage and wear
to brake system components. See 59 FR 47728. At that time, FRA had not
received any adverse comments on this issue in response to the 1994
NPRM, in which a similar requirement was proposed. Furthermore,
statements and discussions provided at various RSAC Working Group
meetings appeared to establish that both rail labor and rail management
representatives believed that such a provision would be acceptable.
Based on information gathered throughout the RSAC process, previous
comments by industry parties, and agency experience, FRA firmly
believes that the presence of moisture in the train air brake system
poses potential safety, operational, and maintenance issues that
require attention in this rulemaking. After completion of detailed,
instrumented testing on both locomotives and yard test plants performed
as part of the task force activities, FRA determined that locomotives
rarely contribute to moisture in the trainline. Consequently, FRA did
not propose that air dryers be installed on new locomotives, as was
proposed in the 1994 NPRM (59 FR 47729). A detailed discussion of the
testing conducted by the RSAC Working Group members and recommendations
regarding air dryers appears in the preamble of the 1998 NPRM. See 63
FR 48317-19.
In contrast, the results of the same testing clearly indicated to
FRA that yard air plants often provide unacceptably high levels of
moisture while charging the train air brake system due to the age of
the system, improper design, inadequate maintenance, or a combination
thereof. Working Group task force efforts also estimated that upwards
of 80 percent of train air brake systems are charged using yard/ground
air plants. However, FRA did not believe that simply requiring yard air
sources to be equipped with air dryers would solve or address the
problem. In order for air dryers to be effective on yard air sources,
the air dryers must be properly placed to sufficiently condition the
air source. FRA determined that many yard air sources are configured
such that a single air compressor services several branch lines used to
charge train air brake systems; therefore, multiple air dryers would be
required to eliminate the introduction of moisture into the brake
system. Consequently, FRA determined that requiring yard air sources to
be equipped with air dryers would impose a significant and unnecessary
cost burden on the railroads.

[[Page 4138]]

Based on its determination that air dryers would not provide a cost
effective or suitable solution, FRA considered other viable
alternatives. In the 1998 NPRM, FRA proposed that each railroad develop
and implement a system by which it would monitor all yard air sources
to ensure that the air sources operate as intended and do not introduce
contaminates into the brake system. FRA believed that the proposed
monitoring program provided a method by which the industry might
maximize the benefits to be realized through air dryer technology,
which all parties acknowledge has been proven to reduce the level of
moisture introduced into the trainline, at a cost that was commensurate
with the potential benefits. The proposed monitoring program required
railroads to take remedial action with respect to any yard air sources
that were found not operating as intended, and established a retention
requirement for records of the deficient units to facilitate the
tracking and resolution of continuing problem areas. FRA also proposed
that yard air reservoirs either be equipped with an operative automatic
drain system or be manually drained at least once each day that the
devices were used or when moisture was detected in the system. FRA
believed that these proposed provisions, in concert with assurances
that condensation is blown from the pipe or hose from which compressed
air is taken prior to connecting the yard air line or motive power to
the train, as currently prescribed in Sec. 232.11(d), would
significantly minimize the possibility of moisture being introduced
into the train air brake system.
In the 1998 NPRM, FRA noted the recent issuance of a final rule
mandating the incorporation of two-way end-of-train telemetry devices
(two-way EOTs) on a variety of freight trains, specifically those
operating at speeds of 30 mph or greater or in heavy grade territories.
See 62 FR 278. Two-way EOTs provide locomotive engineers with the
capability of initiating an emergency brake application that commences
at the rear of the train in the event of a blockage or separation in
the train's brake pipe that would prevent the pneumatic transmission of
the emergency brake application throughout the entire train. FRA noted
that the issuance of a final rule mandating the use of these devices
was significant particularly in the context of air source requirements
and air dryers. In the unlikely event that the proposed requirements
regarding air sources fail to sufficiently eliminate moisture from the
trainline, and a restriction or obstruction in the form of ice forms as
the result of the freezing of this moisture during cold weather
operations, the two-way EOT device becomes a first order safety device
and will initiate an emergency application of the brakes from the rear
of train. Therefore, many of the concerns associated with moisture in
the trainline freezing in cold weather operations have been alleviated
through the incorporation of this technology in most freight
operations, thus reducing the need or desire to specifically require
air dryers on air sources.
The AAR and its member railroads submitted various comments related
to the proposed air source requirements. Although various railroads had
previously indicated support for a requirement banning the use of
alcohol in train brake system and stated that their railroad no longer
used alcohol in its operation, they now object to the proposed
requirement prohibiting the use of the such chemicals. These commenters
now assert that there are instances in the industry where alcohol is
used to unfreeze frozen trainlines. They contend that railroads should
be permitted to continue this practice in order to move trains in
certain circumstances and that the need to use alcohol would be rare
but necessary. The AAR contends that the use of the term ``chemical''
is inappropriate, and, unless there is an alternative, the requirement
should be deleted. They contend that frozen trainlines are a reality
and railroads must be provided some method to deal with such
occurrences other than waiting for warm weather which could take
months.
These commenters also discussed the proposed requirements related
the development and implementation of monitoring plans for yard air
sources. The AAR contends that the railroads would need at least five
years to comply with the proposed requirements and would incur costs of
$41 million. These commenters object to the requirement for remedial
action when a yard air source is found to have the ``potential'' of
introducing contaminants into the equipment it services. They contend
that such remedial action should be required only if the yard air
source actually introduces such contaminants. These commenters also
object to the requirement for a detailed assessment of the remedial
actions taken as unnecessary and believe that the recordkeeping
requirements merely increase a railroad's administrative burden and are
merely included as enforcement traps.
Several representatives of rail labor and the NTSB support the
proposed prohibition on the use of alcohol and object to any allowance
of its use. Some labor representatives suggested that, if FRA were to
allow the use of alcohol, then it needed to reinstate the requirements
to perform periodic clean, oil, test, and stencilling (COT&S). These
commenters recommend that the prohibition be extended to any device
providing air to a train's brake system. The BRC again asserts that FRA
should require that locomotives and air sources be equipped with air
dryers, contending that they are the only way to ensure that moisture
is not introduced into a train's brake system. Labor representatives
also object to the proposed yard air monitoring plan requirements,
contending that the proposed requirements fail to specify the frequency
with which yard air sources are to be inspected. They recommend that
such inspections should be more frequent at locations in cold climates.
They also suggest that the monitoring plans should be subject to FRA
approval prior to implementation.
FRA Conclusions. The final rule retains the basic requirements
regarding yard air sources and cold weather operations that were
proposed in the 1998 NPRM. The final rule generally retains the
proposed requirement prohibiting the use of chemicals in a train air
brake system. However, FRA agrees that the proposed prohibition of all
chemicals may have been somewhat overbroad and contrary to FRA's actual
intent. In proposing the prohibition, FRA intended to eliminate the use
of chemicals, such as alcohol, which are known to degrade the rubber of
a train's brake system. FRA agrees that there are chemicals that are
currently available or that are in the process of being developed that
do not cause the problems associated with the use of alcohol. In fact,
FRA believes there are products currently available that do not degrade
a brake system's rubber components like alcohol does. FRA believes that
several railroads are currently testing or using these chemical
alternatives. Consequently, the final rule slightly modifies the
prohibition on the use of chemicals by imposing the prohibition on
chemicals that are known to degrade or harm brake system components,
such as alcohol.
The final rule also modifies some of the requirements related to
the proposed yard air source monitoring plans. FRA agrees that the
proposed requirements did not establish a frequency with which
inspections of yard air sources should be conducted. In proposing the
requirement, FRA hoped that various commenters would recommend
frequencies for conducting these

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inspections. This did not occur. FRA agrees that a set frequency needs
to be established that will ensure that yard air sources are inspected
in a timely manner during various climatic conditions. Therefore, the
final rule requires the that yard air sources be inspected at least
twice each calendar year and that two of the inspections be no less
than five months apart. FRA intends for this requirement to result in
yard air sources being inspected each year during two different
seasonal periods.
The final rule also clarifies that remedial action under the
monitoring plans is required only on those yard air sources that are
not operating as intended or that are found introducing contaminants
into brake systems. Thus, the final rule removes the word ``potential''
as FRA agrees that the proposed language was unclear and may have been
over-inclusive. The final rule also eliminates the requirement for
railroads to conduct a detailed assessment of the remedial actions
taken. FRA agrees that this requirement is unnecessary because
railroads will be conducting regular inspections of the yard air
sources on which they have conducted repairs or taken other remedial
action and will be able to determine if the repairs were effective
through those inspections. The final rule retains the other proposed
record keeping requirements related to yard air monitoring plans but
clarifies that the records may be maintained either electronically or
in writing. FRA continues to believe that these records are necessary
to ensure that railroads are properly conducting the required
inspections and are taking timely and appropriate remedial action when
a problem air source is detected.
The final rule does not contain provisions requiring FRA approval
of the yard air source monitoring plans prior to their implementation
as suggested by some commenters. FRA does not have the manpower or
resources to review and approve the plan of each railroad and does not
believe such approval is necessary given the specific requirements
contained in the final rule and the records that are required to be
maintained. The final rule also does not contain requirements regarding
the use of air dryers on either locomotives or yard air sources. For
the reasons noted in the discussion above and in the NPRM, FRA believes
that requiring the use of air dryers on either locomotives or yard air
sources would impose a significant cost burden on railroads and would
not necessarily address the problem sought to be resolved. See 63 FR
48317-19. It should be noted that FRA advocates the use of air dryers
when possible and agrees that they have proven effective in reducing
the level of moisture introduced into the brake system; however, FRA
believes that the railroad is in the best position to determine where
these devices will provide the greatest benefit based on the railroad's
operation.
FRA is somewhat skeptical of the AAR's contentions regarding both
the time and the cost necessary to implement the required yard air
source monitoring plans. FRA sees no reason why a railroad would need
five years to implement a plan to inspect each of its yard air sources
twice a year. These devices are used on a fairly regular, if not daily,
basis and should not be that difficult to inspect. Therefore, FRA
believes that railroads should easily be able to implement these
monitoring plans within the three years allowed under the applicable
date provided in this final rule.

G. Maintenance Requirements

Based on comments received in response to the 1994 NPRM,
deliberations of the RSAC Working Group and task force, and field
experience, FRA proposed a comprehensive set of maintenance
requirements which were intended to be a codification of current best
practices occurring within the industry. The preamble to the 1998 NPRM
contains a detailed discussion of the issues raised, discussed, and
considered prior to the issuance of the NPRM. See 63 FR 48320-22.
After consideration of all the information and comments submitted
prior to the issuance of the 1998 NPRM, FRA remained confident that the
``new'' repair track test and single car test, which have been used
industry-wide since January of 1992, are a much better and more
comprehensive method of detecting and eliminating defective brake
equipment and components than the old, time-based COT&S requirements.
FRA continued to believe that performance of the repair track and
single car test significantly reduces the number of defective
components and dramatically increases the reliability of brake
equipment. Accordingly, FRA proposed the incorporation of AAR
Interchange Rule 3 and Chart A into the 1998 NPRM, thus codifying the
repair track air test requirements per Chart A, such that a railroad
would be required to perform a repair track brake test on freight cars
in any of the following six circumstances: (i) When a freight car is
removed from a train due to an air brake related defect; (ii) when a
freight car has its brakes cut out when removed from a train or when
placed on a shop or repair track; (iii) when a freight car is on a
repair or shop track for any reason and has not received a repair track
brake test within the previous 12 month period; (iv) when a freight car
is found with missing or incomplete repair track brake test
information; (v) when the brake reservoir(s), the control valve
mounting gasket, and the pipe bracket stud are removed, repaired, or
replaced; or (vi) when a freight car is found with a wheel with a
built-up tread, a slid flat, or a thermal crack. FRA also proposed that
each freight car receive a repair track air test no less frequently
than every 5 years, and not less than 8 years from the date the car was
built or rebuilt. Similarly, it was proposed that the single car test
requirements of Chart A be codified, such that a railroad would perform
a single car test on a freight car when the service portion, the
emergency portion, or the pipe bracket or a combination of such
components is removed, repaired, or replaced.
In the 1998 NPRM, FRA recognized that circumstances arise where the
proposed repair track brake tests or single car tests could not always
be performed at the point where repairs can be made that necessitate
performance of the test. To address these circumstances, FRA proposed
that a car would be allowed to be moved to the next forward location
where the test could be performed after the necessary repairs were
conducted. FRA attempted to make clear that the inability to perform a
repair track brake test or a single car test did not constitute an
inability to effectuate the necessary repairs. At the same time,
however, FRA recognized rail labor's contention that some carriers
often attempt to circumvent the requirements for single car and repair
track testing through the elimination of repair tracks, by moving cars
to ``expediter'' tracks for repair, or simply by making the repairs in
the field. As a means to curtail these practices, FRA decided to impose
extensive tagging requirements on freight cars that, due to the nature
of the defective condition(s) detected, require a repair track brake
test or single car test but that are moved from the location where
repairs are performed prior to receiving the required test. As an
alternative to the tagging requirements, FRA proposed that railroads be
permitted to utilize an automated tracking system to monitor these cars
and ensure they receive the requisite tests provided the automated
system has been approved by FRA. FRA also proposed to require
stencilling of cars with the location and date of the last

[[Page 4140]]

repair track or single car test. Alternatively, FRA proposed that
railroads could utilize an electronic record keeping system to
accomplish this stencilling requirement, provided the system has been
approved by FRA. FRA believed that the proposed tagging and stencilling
requirements were necessary to ensure the timely performance of the
tests. Without such information, there would be virtually no way for
FRA to verify a railroad's compliance with the proposed repair track
and single car test requirements.
FRA also proposed various requirements related to the testing of
the devices used to perform the single car tests. Similar to the 1994
NPRM, the 1998 NPRM again proposed that single car testing devices be
tested at least once a day and receive routine maintenance at least
every 92 days. FRA also proposed that the mechanical and electronic
test devices be regularly calibrated.
In the 1998 NPRM, FRA determined that any changes to the AAR
standards incorporated into regulation should be reviewed and approved
by all affected parties, including FRA and rail labor. Consequently,
FRA proposed a special approval process, whereby the AAR would be
required to submit any proposed changes to the FRA. FRA would review
the proposed change to determine whether the change is ``safety-
critical.'' Such proposed changes include, but are not limited to the
following: (i) Any changes to Chart A, (ii) changes to established
maintenance intervals, and (iii) changes to UMLER reporting
requirements. If the proposed change was deemed by FRA to be ``non
safety-critical,'' FRA would permit the change to be implemented
immediately. If the proposed change was deemed ``safety-critical,'' FRA
would be required to publish a Federal Register notice, conduct a
public hearing if necessary, and act based on the information developed
and submitted in regard to these proceedings.
FRA proposed the special approval process in response to comments
from several railroads and manufacturers that FRA needed to devise some
sort of quick approval process in order to permit the industry to make
modifications to existing standards or equipment based on the
development of new technology. Thus, FRA attempted to propose an
approval process it believed would speed the process for taking
advantage of new technologies over that which is currently available
under the waiver process. However, in order to provide an opportunity
for all interested parties to provide input for use by FRA in its
decision-making process as required by the Administrative Procedure
Act, FRA determined that any special approval provision must, at a
minimum, provide proper notice to the public of any significant change
or action being considered by the agency with regard to existing
regulations.
The AAR, its members, and various private car owners and brake
manufacturers submitted numerous comments regarding the maintenance
requirements proposed in the NPRM. The commenters object to the
proposed incorporation of AAR's Rule 3, Chart A, and the incorporation
of specific AAR standards for performing single car and repair track
air brake tests. They contend that such incorporation would inhibit the
ability of the industry to develop and implement new rules and
procedures that would improve safety and hinder the ability of the
industry to implement changes that improve brake performance. They
contend that the current reference to AAR rules is sufficient and that
oversight by FRA is not necessary. The AAR notes that there have been
over 25 changes to the AAR maintenance requirements and test procedures
over the last ten years and that many of these may not have been
accomplished under the provisions proposed in the NPRM. The AAR also
notes that the single car and repair track standards cited in the NPRM
were changed in July of 1998 and were being revised again in 1999.
These commenters recommend that any provisions requiring FRA approval
of AAR standards should be eliminated. Alternatively, they recommend
that AAR be permitted to implement changes subject to FRA revocation
based on a finding that the change does not promote safety.
In addition to their general objections to any incorporation of AAR
maintenance standards, these commenters provide several recommendations
in the event that FRA should decide to retain the proposed
requirements. They recommend that FRA eliminate the requirement to
stencil equipment with the date of the last single car or repair track
air brake test and allow the industry to use the UMLER tracking system
to record and monitor such information. They believe that the industry
should be permitted to implement an automated or electronic tracking
system without prior FRA approval. They contend that the industry has
been using the UMLER system to track this information for years and it
has proven effective. They contend that the automated system currently
used is no less secure or capable of manipulation than a manual
stenciling requirement. They contend that there has been no evidence of
falsification on the part of railroads using the UMLER system and that
it should be permitted without FRA approval.
Several railroad representatives also object to the proposed
requirement for performing a repair track air brake test whenever a car
is removed from a train for a brake-related defect. They contend that
the way the provision is proposed it would require repair track air
brake tests whenever minor brake defects occur that have no relation to
the actual operation of the brakes. They recommend that the requirement
be tied to cars removed from trains for inoperative brakes as this is
the intent of AAR's Rule 3, Chart A. These commenters also object to
the proposed requirement to perform a set and release of the brakes and
to check piston travel when a car is on a shop or repair track. They
contend that AAR no longer requires this to be performed and assert
that the brake tests required in the proposal are sufficient to
determine piston travel and proper operation of the brakes. These
commenters also contend that there is no need to retain the bad order
tags required for moving equipment for testing because a record of the
repair is maintained for a year pursuant to AAR rules. They also
recommend that FRA should not require brake repairs at locations where
single car or repair track tests cannot be performed. They contend that
the test is necessary to determine the sufficiency of the repair. They
believe that the inability to conduct these test should be considered
an inability to conduct brake repairs.
The AAR and certain manufacturers of brake equipment also raise
concerns over the proposed requirements related to the testing and
calibration of devices used to perform single car and repair track air
tests. These commenters generally object to the inclusion of these
requirements in the proposal as they have always been part of AAR
standard S-486 and feel they do not belong in federal regulations.
These parties also contend that the proposed requirements regarding the
testing and calibration of single car test devices are more restrictive
than are currently required. The current existing industry requirements
for testing single car test devices are based on the date on which the
device is placed in service. Thus, the time for conducting the 92-day
test does not begin to run until the device is placed in service. They
contend that the ``in service'' date allows railroads flexibility in
having spare devices when

[[Page 4141]]

a primary device is being serviced as such a device is generally sent
to a special location for calibration and cleaning. At a minimum, they
recommend that the rule permit testing and calibration of single car
test devices based on the in-service date of the device rather than a
strict 92-day requirement.
Representatives of rail labor support the incorporation of AAR
standards and contend that AAR should not be allowed unilateral
discretion to change the incorporated standards. These commenters
assert that railroads do not currently follow existing AAR standards
and will not do so unless they are made part of a federal regulation.
These commenters recommend that FRA develop specific, detailed
maintenance requirements rather than reference AAR standards. They
further contend that all maintenance should be required to be performed
by a carman or at least by a QMI as defined in the NPRM. These
commenters object to any type of automated tracking system as it is
susceptible to abuse and manipulation by railroads.
Certain labor representatives provided specific comments on the
proposed requirements related to conducting single car and repair track
air brake tests. They recommend that FRA identify locations where
single car and repair track air brake tests can be performed to prevent
manipulation and circumvention of the requirements by railroads. These
commenters contend that only a carman or a QMI should be permitted to
perform a single car or repair track air brake test. They also contend
that, since periodic COT&S has been eliminated, the need to conduct
frequent repair track and single car tests is much greater in order to
ensure the proper operation of the brake equipment. They assert that
the intervals for conducting these tests need to be increased over
those proposed and recommend that each car receive a repair track air
brake every year and a single car test every four years.
FRA Conclusions. Although the final rule retains many of the
proposed maintenance requirements, several modifications have been made
in this final rule in response to comments received and based upon the
current best practices occurring within the industry. FRA agrees that
the proposed incorporation of AAR Rule 3, Chart A, is unnecessary as it
would remove the determination of when certain maintenance is performed
from the discretion of the railroads, and would make it difficult for
railroads to change the requirements related to the performance of that
maintenance. FRA believes that a railroad is in the best position to
determine when and where it will perform various maintenance on its
equipment and should not have its hands tied in this area by overly
prescriptive federal requirements. Furthermore, FRA's primary intent
when proposing incorporation of AAR Rule 3, Chart A, was to codify the
existing requirements for performing single car and repair track air
brake tests and eliminate the right of the industry to unilaterally
change the frequency and method of performing these tests. As the final
rule retains the requirements for when and how these tests are to be
completed and retains certain inspections that are to be performed when
equipment is on a shop or repair track, FRA believes that it is
unnecessary to incorporate every maintenance procedure covered in AAR's
Rule 3, Chart A. Consequently, the final rule does not incorporate
AAR's Rule 3, Chart A, and continues to allow railroads some
flexibility in determining appropriate maintenance practices.
Contrary to the assertions of some commenters, FRA continues to
believe that certain maintenance procedures are critical to ensuring
the safe and proper operation of the brake equipment on the nation's
fleet of freight cars. FRA does not believe that the determination of
what maintenance should be performed should be left solely to the
discretion of the railroads operating the equipment in all
circumstances. As periodic COT&S maintenance has been eliminated and
replaced with the performance of single car and repair track tests,
which FRA agrees is a better and more comprehensive method of detecting
defective brake equipment and components, FRA believes that specific
and determinable limits must be placed on the manner and frequency in
which these tests are performed. Therefore, the final rule retains the
proposed requirements regarding the performance of single car and
repair track tests.
FRA recognizes that the procedures for performing single car and
repair track tests proposed in the NPRM have been modified by the AAR
since the issuance of the proposal. As it is FRA's intent to
incorporate the most recent version of the single car and repair track
air brake test procedures, the final rule incorporates the test
procedures that were issued by the AAR in April of 1999. FRA recognizes
that the industry may find it necessary to modify the test procedures
from time to time in order to address new equipment or utilize new
technology. Thus, the final rule permits railroads to seek approval of
alternative procedures through the special approval process contained
in the final rule. The special approval process is intended to speed
FRA's consideration of a party's request to utilize an alternative
procedure from the one identified in the rule itself. FRA believes that
it is essential for FRA to approve any change made in the procedures
for conducting these safety-critical tests in order to prevent
unilateral changes and to ensure consistency in the method in which the
tests are performed.
It should be noted that the incorporated procedures for performing
single car and repair track air brake tests are the minimum
requirements for performing such tests. The special approval process is
required to be used only if the incorporated procedures are to be
changed in some manner. For instance, if the industry were to elect to
add a new test protocol to the incorporated procedures, there would be
no need to seek approval of such an addition as long as the procedures
contained in the incorporated standard are still maintained. This final
rule is not intended to prevent railroads from voluntarily adopting
additional or more stringent maintenance standards provided they are
consistent with the standards incorporated.
The final rule also modifies one of the proposed conditions for
when a repair track air brake test would be required to be performed.
FRA agrees that the proposed requirement to perform a repair track air
brake test on any car removed from a train for a brake-related defect
is overly restrictive and inconsistent with the requirements of AAR's
Rule 3, Chart A. FRA agrees that the proposed requirement would require
the performance of the test when minor brake system repairs are
conducted, which is not the intent of the AAR's rule. Therefore, the
final rule modifies the proposed condition to require the performance
of a repair track test on cars that have inoperative or cut-out air
brakes when removed from a train.
The final rule also modifies the proposed requirements regarding
the use of an automated tracking system in lieu of stenciling equipment
with the date and location of the last single car or repair track test
received. Since 1992, the industry has utilized the AAR's UMLER
reporting system to electronically track the performance of single car
and repair track air brake test as well as other repair information.
Based on the performance and use of this system over the last seven
years, FRA believes that the AAR's UMLER system has proven itself
effective for tracking the information required in this final rule and
ensuring the timely performance of single car and repair

[[Page 4142]]

track air brake tests. Furthermore, FRA continues to believe that the
information required to be tracked with regard to these tests is easily
maintained through an electronic medium. Moreover, FRA has found no
substantiated instances of railroads falsifying or altering the
information monitored and tracked by AAR's UMLER system. Thus, the
final rule permits railroad to utilize an electronic record keeping
system to track single car and repair track air brake tests without
obtaining prior FRA approval of the system. The final rule makes clear
that FRA will monitor the performance of such systems and retains the
right to revoke a railroad's authority to utilize the system if FRA
finds that it is not properly secure, inaccessible to FRA or a
railroad's employees, or fails to properly or adequately track and
monitor the equipment.
The final rule does not increase the proposed frequency at which
the single car or repair track air brake tests are to be performed as
recommended by some commenters. As noted above, the primary intent of
the proposed provisions was to codify the existing requirements
regarding the performance of single car and repair track air brake
tests and prevent any unilateral changes to those requirements. FRA
believes that the frequency at which these tests are currently required
to be performed under industry standards has proven to be sufficient
and a substantial economic burden would be imposed if the frequency
were increased. The final rule also retains the requirement that these
tests be conducted by a qualified person. FRA believes that the person
performing these tests must be specifically trained and tested on how
the test is to be performed and be able to determine the appropriate
actions that must be taken based on the results of the test. FRA does
not believe that the mere fact that a person is a carman or a QMI is
sufficient to consider that person qualified to perform single car or
repair track air brake tests. FRA believes that the training
requirements contained in this final rule ensure that a person deemed
qualified to perform these tests has been specifically trained and
tested on the performance of the tests prior to being considered
qualified.
The final rule also retains the proposed provisions permitting cars
to be moved from a location where necessary repairs are made to a
location where a single car or repair track air brake test can be
performed if it cannot be performed at the same location where the
repairs are conducted. FRA disagrees with the assertion that air brake
repairs should not be required at locations that lack the ability to
perform single car or repair track air brake tests. FRA believes that
position is not only contrary to the statutory mandates regarding the
movement of equipment with defective brakes but would open the door to
potential abuse by railroads. Furthermore, the operation of a car's
brake system can generally be tested after a repair without performing
a complete repair track air brake test. For the most part, single car
and repair track air brake tests are intended to be maintenance
requirements that attach based on a condition in which a car is found
or on a repair that is required to be performed. If the condition of a
car is such that a repair track air brake test is necessary to
determine the defect, then the final rule would permit movement of the
car to the nearest location where a repair track air brake test can be
performed. However, FRA believes that most defective conditions can be
easily determined without performing a repair track air brake test.
Moreover, for years FRA has required the performance of repairs where
they can be performed and has allowed such equipment to be moved to the
next forward location for performance of a single car or repair track
air brake test and has not found that such a practice has created any
potential safety hazard.
The final rule retains the proposed requirements for tagging
equipment which is being hauled for the performance of a single car or
repair track air brake test after the appropriate repairs have been
conducted. FRA believes that the tags are necessary not only to provide
notice to a railroad's ground forces as to the presence of the car but
to ensure that railroads are properly performing the tests at
appropriate locations. Furthermore, many railroads currently move
equipment in this fashion, and there has been no indication that safety
has been compromised. The final rule also retains the requirement that
a copy or record of the tag be retained for 90 days and made available
to FRA upon request. Contrary to the objections of some commenters, FRA
continues to believe that the record keeping requirements are necessary
so that there is accountability on the part of the railroads to conduct
these tests at the proper locations and that equipment is not moved for
extended periods without receiving its required maintenance. It should
be noted that the final rule clarifies that the record or copy of the
tag may be maintained either electronically or in writing provided all
the required information is recorded. The final rule does not define or
require identification of locations that can or will perform single car
or repair track air brake tests as suggested by some commenters. FRA
does not believe that such a requirement is necessary as the rule
specifically establishes when the tests are to be performed and it is
in the railroad's best interests to perform the tests in a timely
manner.
The final rule retains the proposed provisions requiring certain
tests and inspections to be performed whenever a car is on a shop or
repair track. Although the AAR asserts that it did away with the
requirements to perform a set and release of the brakes and adjust
piston travel on all cars on repair or shop tracks, the requirements
are currently contained in power brake regulations separate and apart
from any AAR requirements. See 49 CFR 232.17(a)(2)(ii), (iv). FRA
believes that repair and shop tracks provide an ideal setting for
railroads to conduct an individualized inspection on a car's brake
system to ensure its proper operation and that such an inspection is
necessary to reduce the potential of cars with excessive piston travel
being overlooked when employees are performing the ordinary brake
inspections required by this final rule. If any problems are detected
at that location, the personnel needed to make any necessary
corrections are already present. Furthermore, performing these
inspections at this time ensures proper operation of the cars' brakes
and eliminates the potential of having to cut cars out of an assembled
train and, thus, should reduce inspection times and make for more
efficient operations.
The final rule adds two items to the inspections that are to be
conducted when a car is on a shop or repair track. They are an
inspection of a car's hand brake and an inspection of the accuracy and
operation of any brake indicators on cars so equipped. The final rule
does not provide for the specific inspection of these items during any
of the other required brake tests. Consequently, FRA believes this is
an ideal time for the railroad to inspect these items while imposing
the least burden on the railroad's inspection and repair forces.
As the final rule requires that certain inspections and tests be
performed when a car is on a shop or repair track and because a repair
track air brake test is required to be performed when a car is on a
repair track and such a test has not been performed within the last
twelve months, FRA believes it is necessary to clarify what constitutes
a shop or repair track. This issue has become more prevalent over the
last few years due to the growing use of mobile repair trucks and due
to the requirements for conducting repair track

[[Page 4143]]

air brake tests. For years, many railroads have conducted minor repairs
on tracks called ``expedite tracks.'' Generally, the types of repairs
that were performed on these tracks were minor repairs that could be
made quickly with a limited amount of equipment, and neither the
railroads or FRA considered the tracks to be repair tracks. However,
recently railroads have started performing virtually every type of
repair on these expedite tracks. These tracks are no longer limited to
minor repairs but are being used to perform heavy, complex repairs that
require the jacking of entire cars or the disassembly and replacement
of major portions of a car's truck or brake system. At many locations
these expedite tracks are positioned next to operative repair shops.
Furthermore, several railroads have closed previously existing repair
shop facilities and are now using fully equipped mobile repair trucks
to perform the same type of repairs that were previously performed in
the shop or on established repair tracks and are attempting to call the
tracks serviced by these mobile repair trucks ``expedite tracks.''
Thus, the line between what constitutes a repair or shop track and what
constitutes an ``expedite track'' has become unclear, if not,
nonexistent.
FRA believes that the operational changes, noted above, are partly
an attempt by the railroads to circumvent the requirements that
currently apply when a car is on a shop or repair track. Currently, if
a car is on a shop or repair track, it must have its brakes inspected,
under 49 CFR 232.17(a)(2)(ii), (iv), and the car is to receive a repair
track air brake test if it has not received one in the last twelve
months under AAR Rule 3, Chart A. Some railroads contend that an
expedite track is not a repair or shop track; therefore, the
requirements of Sec. 232.17(a)(2)(ii), (iv) do not apply. FRA finds
this interpretation to be unacceptable and believes that railroads are
abusing the concept of expedite tracks to avoid performing required
maintenance. Therefore, the industry's own actions have caused the need
for FRA to clarify what constitutes a shop or repair track.
Consequently, the final rule includes a definition of what FRA will
consider to be repair or shop tracks requiring the performance of
certain tests and inspections.
The final rule makes clear that FRA will consider certain tracks to
be repair or shop tracks based on the types of repairs that are made on
the tracks, not necessarily the designation given by a railroad. The
definition in the final rule also makes clear that it is the nature of
the repairs being conducted on a certain track that is the determining
factor not whether a mobile repair truck is being used to make the
repairs. Due to the ability of mobile repair trucks to make virtually
any type of repair necessary and due to their growing use, FRA does not
believe that tracks regularly and continually serviced by these types
of vehicles should be excepted from the definition of a repair track.
FRA believes that if a track is designated by the railroad as an
``expedite'' track (i.e., one where minor repairs will be conducted)
then the railroad should ensure that only cars needing minor repairs be
directed to that track for repair. The final rule does not eliminate
the concept of expedite tracks but limits the use of such tracks to
those types of repairs that are truly minor in nature and that require
a limited amount of equipment to perform. At locations where a railroad
conducts repairs of all types, either with fixed facilities or with
mobile repair trucks, FRA would expect the railroad to designate
certain trackage at the location as repair tracks and certain trackage
as ``expedite tracks'' where only minor repairs would be conducted. In
such circumstances, FRA would expect railroads to direct cars in need
of heavier repairs, the kind that have been traditionally performed on
a shop or repair track, to be directed to trackage designated at the
location as a repair track.
The final rule places the burden on the railroad to designate those
tracks it will consider repair tracks at locations where it performs
both minor and heavy repairs, and makes the railroad responsible for
directing the equipment in need of repair to the appropriate trackage.
If the railroad determines that repairs of a heavy nature will be
performed on certain trackage, then the track should be treated as a
repair track, and any car repaired on that trackage should be provided
the attention required by this final rule for cars on a shop or repair
track. Further, if a railroad determines that minor repairs will be
performed on certain trackage, then the railroad bears the burden of
ensuring that only cars needing minor repairs are directed to that
trackage. If the railroad fails to adequately distinguish the tracks
performing minor repairs from those tracks performing heavy repairs or
improperly performs heavy repairs on a track designated as an
``expedite track,'' then the railroad will be required to treat all
cars on the trackage at the time that the heavy repairs are being
conducted as though they are on a repair or shop track.
It should be noted that the issue of what constitutes a repair or
shop track for the purposes of 49 CFR 232.17(a)(2)(ii) and (iv) is
completely separate and distinct from the issue of whether a location
is a location where necessary repairs can be performed for purposes of
49 U.S.C. 20303. Although an outlying location might be considered a
location where certain brake repairs can be conducted, that does not
mean the track where those repairs are performed should be considered a
repair track. FRA does not intend for trackage located at outlying
locations or sidings which are occasionally or even regularly serviced
by mobile repair trucks to be considered repair tracks. FRA believes
that repair or shop tracks should exist at locations that have fixed
repair facilities and at locations where repairs of all types are
performed on a regular and consistent basis regardless of whether the
repairs are performed in fixed facilities or by mobile repair vehicles.
The final rule also modifies some of the proposed provisions
regarding the testing and calibration of single car test devices and
other mechanical devices used to perform single car and repair track
air brake tests. FRA's intent when proposing the requirements was to
codify the current best practices of the industry. Thus, FRA did not
intend to propose testing and calibration requirements that were more
stringent that those currently imposed by AAR standards. Therefore, FRA
agrees that the testing and calibration requirements for single car
test devices should not be imposed until the devices are actually
placed in service, which is consistent with current AAR requirements.
FRA recognizes that the proposed calibration and testing requirements
may have resulted the unnecessary acquisition of single car testing
devices. Consequently, the final rule makes clear that the 92-day and
the 365-day requirements related to single car test devices are to be
calculated from the day on which the device is first placed in service.

III. Section-by-Section Analysis

Amendments to 49 CFR Part 229

The amendments to part 229 contained in this final rule concern the
testing of electronic gauges commonly used in electronically controlled
locomotive brake systems. Currently, there are two electronically
controlled locomotive brake systems in use on the nation's railroads,
the Electro-Pneumatic Integrated Control (EPIC) system supplied by
Westinghouse Air Brake Company and the Computer Controlled Brake (CCB)
system developed by New York Air Brake Company. At this time, there are
thousands of locomotives in service that

[[Page 4144]]

are equipped with either the CCB system or the EPIC system.
The final rule retains the proposed requirements extending the
testing cycles for the electronic gauges used in these types of
locomotive brake systems. The final rule retains the proposed increase
of the testing interval for these electronic gauges from 92 days to one
year. Although certain labor representatives objected to the proposed
increase in the testing interval, contending that the interval should
be reduced due to problems encountered by numerous locomotive
engineers, FRA continues to believe that technology incorporated into
the electronic gauges used in these locomotive brake systems has
significantly increased their reliability over standard mechanical
gauges. Furthermore, the objections raised were not based on the proper
operation or performance of the electronic gauges.
The lengthening of the testing interval for these gauges is based
on recommendations made by a committee formed to address issues related
to the operation of electronically controlled locomotive brake systems
as well as the training of those individuals using this new technology.
In May of 1996, the RSAC Working Group decided to form a task force to
consider issues related to electronically controlled locomotive brake
systems. Rather than create an entirely new task force, the Working
Group assigned the task to a group of individuals who were members of
the previously established ``New Technology Joint Information
Committee.'' This task force, comprised of representatives from the
railroad industry, rail labor, air brake manufacturers, and locomotive
manufacturers, addressed several issues related to these braking
systems including: design; training; inspection and testing; and
maintenance. The task force concluded that additional regulation of
these types of locomotive braking systems was unnecessary since the
current regulations or waivers sufficiently address the training,
inspection, and maintenance of these systems and any additional design
requirement would most likely not enhance safety and would probably
restrict the advancement of new technology. The task force recommended
that part 229 be revised to increase the testing interval for these
electronic gauges from 92 days to an annual cycle. The task force based
this recommendation on its finding that the electronic gauges used in
these brake system are much more reliable than standard mechanical
gauges due to the following: the electronic components have longer life
cycles than those in mechanical gauges; the accuracy and durability of
the transducer have been extended; and internal computer diagnostics
detect inaccuracies before gauges becoming defective under federal
regulations. FRA continues to agree with these findings and has
retained the proposed extension in this final rule.
The final rule does not include the proposed requirement that
locomotive compressors be tested for capacity by orifice test during
the annual test required by Sec. 229.27. FRA agrees that the
requirement for orifice testing of locomotive air compressors was
eliminated from part 229 in 1980. See 45 FR 21097. At that time, FRA
found that such a test was not useful in detecting a bad compressor
and, thus, found no reason to retain the requirement. Although the
requirement to perform orifice testing remained in Sec. 232.10(c),
FRA's elimination of the requirement from part 229 rendered the
provision in part 232 meaningless. As no railroad has performed orifice
testing since 1980 and because FRA is not aware of any safety hazard
being created due to the elimination of such testing, FRA agrees that
there is no justification for reinstating the requirement to perform
such testing.

Amendments to 49 CFR Part 231

The final rule retains the proposed clarifying changes in the
applicability section of this part. FRA received no comments objecting
to the proposed modifications. The changes are intended to make the
regulatory exceptions consistent with the exceptions contained in the
statute. The added exceptions are taken directly from 49 U.S.C. 20301
(previously codified at 45 U.S.C. 6). It is noted that the words
``freight and other non-passenger'' have been added to the exceptions
in order to remain consistent with Congress' intent when the statutory
exceptions were created. At the time that Congress provided an
exception from the requirements of the Safety Appliance Acts, Congress
did not and could not envision that the equipment used in these
operations would be modified for the purposes of hauling passengers,
which FRA has discovered with regard to four-wheel coal cars.
Consequently, the final rule makes clear that FRA will except only
freight operations or other non-passenger operations that employ the
types of equipment contained in these amendments.
The final rule also retains the proposed movement of the provisions
related to drawbars from part 232, where they are currently contained,
to this part. FRA believes that part 231 is a more logical place for
the drawbar provisions to be located as they are not a brake system
component but a generic safety appliance. Although the final rule
adopts the drawbar provisions as proposed, the changes made to the
language of those provisions when proposed in the NPRM were for clarity
and readability and were not intended to change any of the basic
drawbar requirements contained in part 232.

49 CFR Part 232

Subpart A--General

Section 232.1 Purpose and Scope

Paragraph (a) contains a formal statement of the final rule's
purpose and scope. FRA intends the final rule to cover all brake
systems and brake components used in all freight train operations and
all other non-passenger train operations.
Paragraph (b) contains the dates upon which railroads covered by
this part will be required to comply with the requirements contained in
this final rule. FRA recognizes the interrelationship between the
proper training of railroad personnel and implementation of many of the
inspection, testing, and maintenance requirements contained in the
final rule. FRA realizes that in order for railroads to comply with
many of the requirements related to the inspection, testing, and
maintenance of equipment and the requirements regarding the movement of
defective equipment, the railroad and its contractors must first be
provided sufficient time to assess its current training program and
develop and implement a training program consistent with the
requirements of this part. The railroad or contractor then needs time
to provide the necessary training to its employees without causing
manpower shortages in its operations. FRA also recognizes that the
costs of the training requirements are somewhat substantial and may
prevent a railroad or contractor from completing the necessary training
in a short period of time. Therefore, this final rule provides
railroads and contractors with three years to develop and implement the
required training. This period is consistent with the time requested by
the AAR and other railroads. It is also consistent with the requirement
to provide refresher training at least every three years and will allow
a railroad or contractor to have one-third of its inspection forces
receive the necessary refresher training each year after the initial
training period is complete. Consequently, FRA will require compliance
with all the requirements contained in Sec. 232.15, subpart B,

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subpart C, and subpart F of this final rule at the conclusion of the
three-year period provided for conducting the required training.
This paragraph makes clear that the maintenance requirements
contained in subpart D will become applicable to all railroads to which
this part applies approximately six months after the issuance of this
final rule. Virtually all of the requirements contained in this subpart
are existing regulatory requirements or prevailing industry practice,
and FRA sees no reason to significantly delay their implementation. FRA
notes that this subpart requires certain tasks to be performed by a
``qualified person'; however, FRA will not subject railroads to the
qualification and training requirements contained in this final rule
for individuals performing these tasks until the conclusion of the
three-year period provided for conducting the required training.
This paragraph also clarifies that the general provisions contained
in subpart A of this final rule regarding applicability, definitions,
waivers, responsibility for compliance, penalties, preemptive effect,
special approval procedures, availability of records, and information
collection will become applicable approximately sixty days after the
issuance of this final rule. Due to the enforcement implications
connected with these provisions, it is both necessary and desirable to
have the provisions become applicable as quickly as possible.
This paragraph also makes clear that the requirements related to
end-of-train devices contained in subpart E become applicable to all
trains operating on track which is part of the general system of
transportation approximately sixty days after issuance of the final
rule. As the requirements related to these devices have existed for a
number of years and because this final rule modifies those requirement
to a very limited extent, FRA believes that railroads should have no
problem complying with the requirements in this subpart in the period
of time provided. Furthermore, the requirements contained in this
subpart apply to both freight and passenger trains that operate on the
general system of transportation and are not contingent on the
performance of additional training.
FRA also recognizes that there are certain aspects of this final
rule that provide operational flexibility to the railroads. Due to this
flexibility, FRA believes that some railroads will desire the authority
to comply with the final rule as soon as their employees have been
properly trained. Therefore, paragraph (c) contains a provision which
allows a railroad to notify FRA in writing that it is willing to begin
compliance with the requirements of the final rule sometime earlier
than the three years provided. However, FRA wishes to make clear that
it does not intend for railroads to take advantage of the flexibility
provided under some of the provisions of the final rule unless the
railroad is willing to comply with all the requirements contained in
the final rule.
Paragraph (d) of this section clarifies that any railroad that
operates on the general railroad system of transportation that is not
operating pursuant to the requirements contained in this final rule or
the requirements contained in the Passenger Equipment Safety Standards
at 49 CFR part 238, shall continue to comply with the requirements
contained in part 232 as it existed prior to the issuance of this final
rule, which have been moved to Appendix B of the new part 232. Thus, a
railroad will continue to be subject to the existing inspection,
testing, and maintenance provisions contained in part 232 until the
railroad is required to operate under the provisions of this final rule
(i.e. three years for most requirements) or until the railroad
voluntarily commits to operate under the provisions of this final rule,
whichever comes first. FRA also intends for operations and trains which
currently operate under the existing part 232 to continue to operate
pursuant to those provisions if the operation is not addressed by
either this final rule or part 238. It should be noted that FRA does
not intend to extend the coverage of part 232 beyond the types of
operations that are currently subject to the requirements of part 232.
Thus, FRA has explicitly excluded railroads that operate only on track
inside an installation that is not part of the general railroad system
of transportation, rapid transit operations that are not connected with
the general system, and operations specifically excluded by statute.

Section 232.3 Applicability

As a general matter, paragraph (a) of this section establishes that
this final rule applies to all railroads that operate freight or other
non-passenger train service on standard gage track which is part of the
general railroad system of transportation. In paragraph (b) of this
section, FRA makes clear that subpart E of this final rule applies to
all trains that operate on the general system regardless of whether the
train is a freight or passenger train, unless it is specifically
excepted by the provisions contained in subpart E. Subpart E contains
the requirements regarding the use of two-way end-of-train devices
which were issued on January 2, 1997 and became effective on July 1,
1997. Although the final rule contains some minor changes to these
requirements, principally for clarification, the provisions contained
in Subpart E are very similar to the existing requirements.
Paragraph (c) of this section contains a listing of those
operations and equipment to which FRA does not intend this final rule
to apply. These include: rapid transit operations not connected to the
general system; commuter, intercity, and other short-haul passenger
operations; and tourist, scenic, historic, or excursion operations. In
1994, FRA issued a power brake NPRM in which FRA attempted to draft a
proposal covering all railroad operations. FRA received a multitude of
comments suggesting that similar treatment of passenger and freight
operations was not a viable approach due to the significant differences
in the operating environment and equipment used in these operations.
Based on these comments, FRA decided to separate passenger and freight
operations and FRA recently addressed the power brake issues related to
passenger and commuter operations in a separate final rule specifically
tailored to those types of operations. See 64 FR 25540. Similarly, the
Federal Railroad Safety Authorization Act of 1994 directs FRA to
examine the unique circumstances of tourist and historic railroads when
establishing safety regulations. The Act, which amended 49 U.S.C.
20103, states that:

In prescribing regulations that pertain to railroad safety that
affect tourist, historic, scenic, or excursion railroad carriers,
the Secretary of Transportation shall take into consideration any
financial, operational, or other factors that may be unique to such
railroad carriers. The Secretary shall submit a report to Congress
not later than September 30, 1995, on actions taken under this
subsection.

Pub. L. 103-440, Sec. 217, 108 Stat. 4619, 4624, November 2, 1994.
In response to this mandate, FRA submitted a report to Congress on
June 11, 1996, outlining FRA's efforts to tailor its rail safety
requirements to tourist, historic, scenic, and excursion railroads.
Notably, FRA has established a Tourist and Historic Railroads Working
Group formed under RSAC to specifically address the applicability of
FRA's regulations to these unique types of operations. Consequently,
any requirements issued by FRA for these types of operations will be
part of a separate rulemaking proceeding. However, this final rule
makes clear that

[[Page 4146]]

the provisions of part 232 as they existed prior to this issuance of
this rule will continue to apply to such operations that are currently
required to comply with the requirements in order to avoid regulatory
gaps while power brake provisions for such service are finalized. Part
232 as it existed prior to the issuance of this final rule is contained
as appendix B to this new part 232.
Similar to the amendments made to part 231, paragraphs (c)(6)-
(c)(8) of this section also contain the express exceptions currently
contained in the statute for certain coal cars and logging cars. These
provisions are intended to make the regulatory exceptions consistent
with the exceptions contained in the statute. The exceptions are taken
directly from 49 U.S.C. 20301 (previously codified at 45 U.S.C. 6). As
was done in these amendments to part 231, the words ``freight and other
non-passenger trains'' have been added to the exceptions in order to
remain consistent with Congress' intent when the statutory exceptions
were created. At the time that Congress created an exception from the
requirements of the Safety Appliance Acts, Congress did not and could
not envision that the equipment used in these operations would be
modified for the purposes of hauling passengers, which FRA has
discovered with regard to four-wheel coal cars. Consequently, FRA will
only except freight and other non-passenger operations which employ the
types of equipment contained in these amendments.
Paragraph (d) of this section revokes the Interstate Commerce
Commission Order 13528, of May 30, 1945, as amended (codified in
existing Sec. 232.3 and appendix B to part 232), and codifies some of
the relevant provisions of that Order. Thus, paragraph (d) of this
section contains a list of pieces of equipment that were excepted from
the Order's specifications and requirements for operating power-brake
systems for freight service. FRA believes that the Order is no longer
completely relevant or necessary and believes that the relevant
provisions should be incorporated into this section. In addition, FRA
references current industry standards containing performance
specifications for freight power brakes in other portions of this final
rule which mirror the provisions contained in the Order. FRA notes that
locomotives were removed from the listing as this final rule contains
various requirements which address locomotives.
It should be noted that paragraph (a) of this section contains a
specific reference to private cars and circus trains. As private cars
are designed to carry passengers and are generally hauled in both
freight and passenger trains, FRA intends that these types of cars be
covered by both the recently issued Passenger Equipment Safety
Standards and this final rule. For example, these types of cars will be
subject to the maintenance and equipment standards applicable to
passenger equipment but will be covered by the inspection requirements
contained in this final rule when hauled in a freight train. With
regard to circus trains, FRA intends for these operations to be covered
by this final rule due to the unique nature of this equipment and
operations. Although a circus train carries some employees, the
majority of the train is composed of freight-type equipment and is
operated in a manner similar to a freight train. Thus, for consistency
purposes, FRA intends that this final rule apply to circus train
operations.

Section 232.5 Definitions

This section contains an extensive set of definitions. FRA intends
these definitions to clarify the meaning of important terms as they are
used in the text of the final rule. The definitions are carefully
worded in an attempt to minimize the potential for misinterpretation of
the rule. The final rule retains most of the definitions proposed in
the NPRM; however, based on the comments received a few new definitions
have been added and other definitions previously included in the NPRM
have been slightly modified for clarity. Several of the definitions
introduce new concepts or new terminologies which require further
discussion. The following discussion is arranged in the order in which
the definitions appear in the rule text.
``Brake indicator'' means a device, actuated by brake cylinder
pressure, which indicates whether brakes are applied or released on a
car. The use of brake indicators in the performance of brake tests is a
controversial subject. Rail labor organizations correctly maintain that
brake indicators are not fully reliable indicators of brake application
and release on each car in the train. Further, railroads correctly
maintain that reliance on brake indicators is necessary because
inspectors cannot always safely observe brake application and release.
FRA believes that brake indicators can serve an important role in the
performance of brake tests, particularly in those instances where the
design of the equipment requires inspectors to place themselves in
potentially dangerous position in order to observe the brake actuation
or release.
The definition of ``effective brake'' has been slightly modified
from the definition proposed in the NPRM. The modification clarifies
that a car's air brake will not be considered effective if its piston
travel exceeds the specified limits or if it is not capable of
producing its designed retarding force. FRA believes this clarifying
language is necessary to address the concerns raised by certain
commenters regarding the definitions of ``bind'' and ``foul'' contained
in this final rule. The definitions of ``bind'' and ``foul'' have been
retained as proposed in the NPRM. Contrary to the assertions made by
some commenters, FRA believes that the definitions are sufficiently
clear. Certain commenters contend that the definitions of these terms
fail to address every possible condition that could affect the proper
operation of a brake system. FRA believes that the conditions noted by
several commenters as not being covered by these definitions are
sufficiently covered by the clarified definition of ``effective brake''
contained in this final rule. Thus, even though a condition may not
cause a brake to ``bind'' or ``foul'' the condition would cause the
brake not to be an ``effective brake'' as defined in the final rule.
Furthermore, FRA does not believe that the definitions of ``bind'' or
``foul'' are overly broad, as suggested by some commenters, since the
restrictions addressed are ones which affect the intended movement of a
component. Therefore, if the restriction is one that does not restrict
the component's intended movement, then it should not be considered to
``bind'' or ``foul.''
The final rule also includes a definition of ``inoperative dynamic
brake'' which was not specifically contained in the NPRM. This
definition has been added in response to comments that the term
``ineffective dynamic brake'' contained in the NPRM was unclear and
could lead to potential misunderstandings. These commenters contended
that the rule should use the term ``inoperative dynamic brake'' and
that its definition should be consistent with the definition of
``inoperative brake.'' FRA agrees with these comments and thus, the
final rule replaces the term ``ineffective dynamic brakes'' with the
term ``inoperative dynamic brake.'' The term ``inoperative dynamic
brake'' means any dynamic brake that no longer provides its designed
retarding force on the train, for whatever reason. FRA agrees that the
use of only this term clarifies the applicability of the requirements
related

[[Page 4147]]

to dynamic brakes and prevents potential misunderstandings.
The final rule also defines the term ``initial terminal'' to mean
the location where a train is originally assembled. This definition is
consistent with the definition contained in the existing power brake
regulations. Furthermore, the final rule eliminates the term ``point of
origin'' proposed in the NPRM. FRA agrees that the proposed definition
of this term was duplicative of the term ``initial terminal'' and
merely created potential misunderstandings. Moreover, FRA agrees that
the problems attempted to be addressed by the use of this term are
sufficiently addressed by the various inspections required in this
final rule when adding cars to a train.
The concept of ``ordered date'' or ``date ordered'' is vital to the
correct application of this final rule. The terms mean the date on
which notice to proceed is given by a procuring railroad to a
contractor or supplier for new equipment. Some of the provisions of the
final rule apply only to newly constructed equipment. When FRA applies
a requirement only to equipment ordered on or after a specified date or
placed in service for the first time on or after a specified date, FRA
intends to exempt from the requirement, or ``grandfather'' any piece of
equipment that is both ordered and placed in service for the first time
before that date. FRA believes this approach will allow railroads to
minimize, or avoid altogether, any costs associated with changing
existing purchase orders and yet limit the delay in realizing the
safety benefits of the requirements contained in this final rule.
The definitions of ``qualified person'' and ``qualified mechanical
inspector'' are vital to understanding the inspection, testing, and
maintenance provisions contained in this final rule. In order to ensure
a proper understanding of these terms, the final rule clarifies FRA's
intent regarding the necessary training these individuals are to
receive and further clarifies the designation of such individuals.
Although FRA disagrees with the assertions of some commenters that a
``qualified person'' should only be able to perform a limited number of
tasks required by this final rule, FRA does agree that the definition
of ``qualified person'' contained in the NPRM was overly vague and was
susceptible to abuse and misunderstanding. Therefore, this final rule
modifies the definition of a ``qualified person'' in order to more
fully develop what is required by a railroad when designating a person
as qualified to perform a particular task.
The definition of ``qualified person'' contained in this final rule
makes clear that the person is to receive training pursuant to the
training, qualification, and designation program required under
Sec. 232.203. The definition also makes clear that although a person
may be deemed a ``qualified person'' for the performance of one task,
that same person may or may not be considered a ``qualified person''
for the performance of another task. The rule requires that various
tasks be performed by a ``qualified person.'' For example, these tasks
include the performance of brake inspections, the handling of defective
equipment, and the performance of single car tests. FRA would expect
employees performing these various tasks to have different levels of
training. For example, a person receiving appropriate training to be
deemed a ``qualified person'' for the purpose of performing Class II
brake tests should not be deemed a ``qualified person'' for the purpose
of moving defective equipment or performing single car or repair track
air brake tests, unless specific training is provided that individual
which specifically covers those tasks. The final rule stresses that the
individual must have received appropriate training to perform the task
for which the railroad is assigning the person responsibility.
Contrary to the assertions of certain commenters, FRA does not
intend for term ``qualified person'' to be synonymous with the term
train crew member. Although the NPRM discussed the fact that a train
crew member could be considered a ``qualified person'' for performing
many of the brake inspections required by the rule, FRA does not intend
for a train crew member to be deemed a ``qualified person'' for
performing every task covered by this final rule which is to be
performed by a ``qualified person.'' There are various tasks covered by
this final rule (i.e., single car and repair track air brake test) that
must be performed by a ``qualified person'' which would require an
individual to receive more specialized and in-depth training than that
received by a person strictly performing brake inspections. For some
tasks a ``qualified person'' may have to be an individual in the
railroad's repair or mechanical department. The final rule makes clear
that the railroad is responsible for determining that the person has
the knowledge and skills necessary to perform the required function for
which the person is assigned responsibility and for maintaining
sufficient records documenting this knowledge and skill.
The final rule also retains the proposed definition of ``qualified
mechanical inspector'' (QMI) with slight modification to ensure clarity
and avoid potential misunderstanding. The final rule defines a QMI as a
``qualified person'' who as a part of the training, qualification, and
designation program required under Sec. 232.203 has received
instruction and training that includes ``hands-on'' experience (under
appropriate supervision or apprenticeship) in one or more of the
following functions: trouble-shooting, inspection, testing,
maintenance, or repair of the specific train brake components and
systems for which the inspector is assigned responsibility. This person
shall also possess a current understanding of what is required to
properly repair and maintain the safety-critical brake components for
which the person is assigned responsibility. Further, a QMI shall be a
person whose primary responsibility includes work generally consistent
with the above-referenced functions.
The definition contained in this final rule clarifies the intent of
the NPRM by specifically stating that a QMI must be properly trained
and have a primary responsibility in the function of trouble-shooting,
inspection, testing, maintenance, or repair of the specific train brake
systems for which the inspector is assigned responsibility. The
definition also clarifies that a QMI must possess a current
understanding of what is required to properly repair and maintain the
safety-critical brake or mechanical components for which the person is
assigned responsibility. The concept of QMI is premised on the idea
that railroads will be permitted to move trains extended distances
between brake inspections if the trains are inspected by highly
qualified individuals. As no trains are currently permitted to move the
distances between brake inspections permitted by this rule, FRA
believes that the inspections these trains receive must be of very high
quality and must be performed by individuals who can not only identify
a particular defective condition but who have the knowledge and
experience to know how the particular defective condition affects other
parts of the brake system or mechanical components and who have an
understanding of what might have caused a particular defective
condition. FRA also believes that in order for a person to become
highly proficient in the performance of a particular task that person
must perform the task on a repeated and consistent basis. As it is
almost impossible to develop and impose specific experience
requirements, FRA believes that a requirement that the person's primary

[[Page 4148]]

responsibility be in one or more of the specifically identified work
areas and that the person have a basic understanding of what is
required to properly repair and maintain safety-critical brake
components is necessary to ensure the high quality inspections
envisioned by the rule.
In order to clarify the meaning of ``primary responsibility'' as
used in the definition of QMI, the final rule contains a definition of
the term. As a rule of thumb FRA will consider a person's ``primary
responsibility'' to be the task that the person performs at least 50
percent of the time. Therefore, a person who spends at least 50 percent
of the time engaged in the duty of either inspecting, testing,
maintaining, troubleshooting, or repairing train brakes systems may be
designated as a QMI; provided, the person is properly trained to
perform the tasks assigned and possesses a current understanding of
what is required to properly repair and maintain the safety-critical
brake components for which he or she is assigned responsibility.
However, FRA will consider the totality of the circumstances
surrounding an employee's duties in determining a person's ``primary
responsibility.'' For example, a person may not spend 50 percent of
their day engaged in any one readily identifiable type of activity; in
those situations FRA will have to look at the circumstances involved on
a case-by-case basis.
The definition of QMI largely rules out the possibility of train
crew members being designated as these highly qualified inspectors
since the primary responsibility, as defined above, of virtually all
current train crew personnel is the operation of trains and for the
most part train crew personnel do not possess a current understanding
of what is required to properly repair and maintain the safety-critical
brake components that are inspected during the various required brake
tests. FRA provides a clear definition of qualified mechanical
inspector so that a differentiation can be made between the
comprehensive knowledge and training possessed by a professional
mechanical employee, and the more specialized training and general
knowledge possessed by train crews. FRA intends the definition to allow
the members of the trades associated with the testing and maintenance
of equipment such as carmen, machinists, and electricians to become
qualified mechanical inspectors. However, membership in labor
organizations or completion of apprenticeship programs associated with
these crafts is not required to be a qualified mechanical inspector.
The two primary qualifications are possession of the knowledge required
to do the job and a primary work assignment inspecting, testing,
maintaining, troubleshooting, or repairing the equipment.
The definition of ``solid block of cars'' has been modified from
that proposed in the NPRM. Although FRA believes the definition it
proposed is consistent with current interpretations and enforcement of
the existing requirement, FRA agrees with some of the commenters that
the definition may have been too narrow and did not directly address
FRA's primary concern, the block of cars itself. Rather than attempt to
limit the addition of certain blocks of cars to a train by requiring
that the entire train be reinspected if the block of cars is not
composed of cars from only one other train, the final rule specifically
addresses the inspection of a ``solid block of cars'' in the various
inspection provisions based on the composition of the block. Thus, the
final rule defines a ``solid block of cars'' as two or more freight
cars consecutively coupled together and added to a train as a single
unit. As FRA's primary concern is the condition of the block of cars
being added to the train especially when the block of cars is made up
of cars from more than one train, the final rule will permit a solid
block of cars to be added to a train without triggering a requirement
to perform a Class I brake test on the entire train. However, depending
on the make-up of that block of cars, certain inspections will have to
be performed on that block of cars at the location where it is added to
the train. Therefore, the final rule places the emphasis on the
inspection of the cars being added to the train rather than requiring a
complete reinspection of the entire train.
The final rule also adds a definition of ``unit train'' and ``cycle
train'' in order to clarify the requirement regarding the performance
of a Class I brake test on such a train every 3,000 miles. Although the
preamble to the NPRM made clear that this requirement was intended to
apply to trains that are operated in captive service, the proposed rule
text failed to specifically identify which trains were required to
receive such attention. Thus, in order to remain consistent with FRA's
intent, the final rule text has been modified to include the term
``unit or cycle train.'' ``Unit train'' or ``cycle train'' means a
train that, except for the changing of locomotive power and the removal
or replacement of defective equipment, remains coupled as a consist and
continuously operates from location A to location B and back to
location A. These trains are also referred to as captive service trains
as they basically operate in one continuous loop. Currently, trains
which operate in this fashion can operate almost indefinitely on one
initial terminal inspection and then a continuing series of 1,000-mile
inspections. FRA believes that it is necessary for these trains to
receive comprehensive brake inspections on a periodic basis in order to
ensure their safe and proper operation.
The definitions of ``transfer train'' and ``switching service'' are
somewhat interrelated since the determination as to whether, at a
minimum, a transfer train brake test is required is based on whether
the movement is a switching movement or a train movement. It is noted
that the definition of ``yard train'' contained in the NPRM has been
eliminated from this final rule. As the term was not used in the NPRM
and has not been used in this final rule, FRA finds no need to retain
the definition. Furthermore, the determination as to whether or not a
yard train is required to be inspected and tested as a transfer train
is based on whether the train is engaged in a train movement.
The final rule slightly modifies the proposed definition of
``transfer train'' to clarify that such a train may pick up and deliver
freight equipment while en route to its destination. Such activity is
currently conducted by these trains, and it was not FRA's intent when
issuing the NPRM to prohibit these trains from being used in this
fashion. The final rule also retains the definition of ``switching
service,'' which is defined as the classification of cars according to
commodity or destination; assembling of cars for train movements;
changing the position of cars for purposes of loading, unloading, or
weighing; placing of locomotives or cars for repair or storage; or
moving of rail equipment in connection with work service that does not
constitute a train movement. Thus, a train engaged in switching service
carries the potential of becoming a transfer train, subject to a
transfer train's testing requirements, if the movement it will be
engaged in is considered a ``train movement'' rather than a ``switching
movement.'' FRA's determination of whether the movement of cars is a
``train movement,'' subject to the requirements of this section, or a
``switching movement'' is and will be based on the voluminous case law
developed by various courts of the United States.
FRA's general rule of thumb as to whether a trip constitutes a
``train movement'' requires five or more cars coupled together that are
hauled a distance of at least one mile without a

[[Page 4149]]

stop to set off or pick up a car and not moving for the purpose of
assembling or disassembling a train. However, FRA may consider
movements of less than one mile ``train movements'' if various
circumstances exist. In determining whether a particular movement
constitutes a ``train movement,'' FRA conducts a multi-factor analysis
based upon the discussions contained in various court decisions on the
subject. See e.g. United States v. Seaboard Air Line R. R. Co., 361
U.S. 78 (1959); Louisville & Jeffersonville Bridge Co. v. United
States, 249 U.S. 543 (1919). The following factors are taken into
consideration by FRA: The purpose of the movement; the distance
traveled without a stop to set out or pick up cars; the number of cars
hauled; and the hazards associated with the particular route traveled
(e.g., the existence of public or private crossings with or without
crossing protection, the steepness of the grade, the existence of
curves, any other conditions that minimize the locomotive engineer's
sight distance, and any other conditions that may create a greater need
for power brakes during the movement). The existence of any of these
hazards would tend to weigh towards the finding of a ``train
movement,'' since these are the types of hazards against which the
power brake provisions of the Federal rail safety laws were designed to
give protection.

Section 232.7 Waivers

This section sets forth the procedures for seeking waivers of
compliance with the requirements of this rule. Requests for such
waivers may be filed by any interested party. In reviewing such
requests, FRA conducts investigations to determine if a deviation from
the general criteria can be made without compromising or diminishing
rail safety.

Section 232.9 Responsibility for Compliance

General compliance requirements are contained in this section. In
accordance with the ``use'' or ``haul'' language previously contained
in the Safety Appliance Acts (49 U.S.C. chapter 203), and with FRA's
general rulemaking authority under the Federal railroad safety laws,
the final rule retains the proposed requirement that any train,
railroad car, or locomotive covered by this part will be considered
``in use'' prior to departure but after it receives or should have
received the necessary tests and inspections required for movement. FRA
will no longer necessarily wait for a piece of equipment with a power
brake defect to be hauled before issuing a violation report and
recommending a civil penalty, a practice frequently criticized by the
railroads. FRA believes that this approach will increase FRA's ability
to prevent the movement of defective equipment that creates a potential
safety hazard to both the public and railroad employees. FRA does not
feel that this approach increases the railroads' burden since equipment
should not be operated if it is found in defective condition in the
pre-departure tests and inspections, unless permitted by the
regulations. In fact, this modification of FRA's perspectives as to
when a piece of equipment will be considered ``in use'' was fully
discussed by members of the Working Group and representatives of both
rail labor and rail management supported this approach, agreeing that
the current practice of waiting for a defective piece of equipment to
depart from a location does very little to promote or ensure the safety
of trains. FRA received no comments objecting to this approach in
response to the NPRM.
FRA currently interprets the ``use'' or ``haul'' language
previously contained in the Safety Appliance Acts narrowly to require
that a train or car not in compliance with the power brake regulations
actually engage in a train movement before a violation under the power
brake regulations could be assessed against a railroad. Although this
interpretation is in accordance with existing case law, FRA believes
that a broader interpretation is possible based upon the case law
interpreting the ``use'' language contained in the Safety Appliance
Acts and based upon FRA's general rulemaking authority under the
Federal railroad safety laws. Based upon both these authorities, FRA
finds that it is not necessary to require that a train or car engaged
in a train movement prior to FRA assessing a violation under the power
brake regulations. The fact that the train or car is being used by a
railroad, has been or should have been inspected by the railroad, and
will be engaged in a train movement while in non-compliance with the
requirements contained in this part is sufficient to allow a violation
to be assessed.
This section also clarifies FRA's position that the requirements
contained in these rules are applicable to any ``person,'' as broadly
defined in Sec. 232.11, that performs any function required by the
proposed rules. Although various sections of the final rule address the
duties of a railroad, FRA intends that any person who performs any
action on behalf of a railroad or any person who performs any action
covered by the final rule is required to perform that action in the
same manner as required of a railroad or be subject to FRA enforcement
action. For example, private car owners and contract shippers that
perform duties covered by these regulations would be required to
perform those duties in the same manner as required of a railroad.
Paragraph (c) states that any ``person'' as broadly defined in
Sec. 232.11, that performs any function or task required by this part
will be deemed to have consented to FRA inspection of the person's
operation to the extent necessary to ensure that the function or task
is being performed in accordance with the requirements of this part.
This provision was contained in the NPRM, and FRA received no comments
opposing the position. This provision is intended to put railroads,
contractors, and manufacturers that elect to perform tasks required by
this part on notice that they are consenting to FRA's inspection for
rail safety purposes of that portion of their operation that is
performing the function or task required by this part. In most cases,
this function or task involves a contractor's performance of certain
required brake inspections or the performance of specified maintenance
on cars, such as conducting single car or repair track tests on behalf
of a railroad. FRA believes that if a person is going to perform a task
required by this part, FRA must have the ability to view the
performance of such a task to ensure that it is conducted in compliance
with federal regulations. Without such oversight, FRA believes that the
requirements contained in this the regulation would become illusory and
could be easily circumvented by some railroads. FRA believes that it
has the statutory authority pursuant to 49 U.S.C. 20107 to inspect any
facility or operation that performs functions or tasks required under
this part, and this provision is merely intended to make that authority
clear to all persons performing such tasks or functions.

Section 232.11 Penalties

This section identifies the penalties that may be imposed upon a
person, including a railroad or an independent contractor providing
goods or services to a railroad, that violates any requirement of this
part. These penalties are authorized by 49 U.S.C. 21301, 21302, and
21304. The penalty provision parallels penalty provisions included in
numerous other safety regulations issued by FRA. Essentially, any
person who violates any requirement of this part or causes the
violation of any such requirement will be subject to a civil penalty of
at least $500 and not more than $11,000 per violation. Civil penalties
may be

[[Page 4150]]

assessed against individuals only for willful violations, and where a
grossly negligent violation or a pattern of repeated violations creates
an imminent hazard of death or injury to persons, or causes death or
injury, a penalty not to exceed $22,000 per violation may be assessed.
In addition, each day a violation continues will constitute a separate
offense. It should be noted that, the Federal Civil Penalties Inflation
Adjustment Act of 1990, Pub. L. 101-410 Stat. 890, 28 U.S.C. 2461 note,
as amended by the Debt Collection Improvement Act of 1996 Pub. L. 104-
134, April 26, 1996 required agencies to adjust for inflation the
maximum civil monetary penalties within the agencies jurisdiction. See
63 FR 11623. The resulting $11,000 and $22,000 maximum penalties noted
in this section were determined by applying the criteria set forth in
sections 4 and 5 of the statute to the maximum penalties otherwise
provided for in the Federal railroad safety laws. Finally, paragraph
(b) makes clear that a person may be subject to criminal penalties
under 49 U.S.C. 21311 for knowingly and willfully falsifying reports
required by these regulations. FRA believes that the inclusion of
penalty provisions for failure to comply with the regulations is
important in ensuring that compliance is achieved.
The final rule includes a schedule of civil penalties in appendix A
to this part. Because such penalty schedules are statements of policy,
notice and comment were not required prior to its issuance. See 5
U.S.C. 553(b)(3)(A).

Section 232.13 Preemptive Effect

This section informs the public as to FRA's intention regarding the
preemptive effect of the final rule. While the presence or absence of
such a section does not conclusively establish the preemptive effect of
a final rule, it informs the public concerning the statutory provisions
which govern the preemptive effect of the rule and FRA's intentions
concerning preemption. Paragraph (a) points out the preemptive
provision contained in 49 U.S.C. 20106, which provides that all
regulations prescribed by the Secretary relating to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard that is not incompatible with a Federal
law, regulation, or order and that does not unreasonably burden
interstate commerce. With the exception of a provision directed at an
essentially local safety hazard that is not inconsistent with Federal
law, regulation, or order and that does not unreasonably burden
interstate commerce, 49 U.S.C. 20106 will preempt any State regulatory
agency rule covering the same subject matter as the regulations
contained in this final rule.
Paragraph (b) of this section also informs the public of the
potential for preemption under various other statutory and
constitutional provisions. These include: the Locomotive Inspection Act
(now codified at 49 U.S.C. 20701-20703), the Safety Appliance Acts (now
codified at 49 U.S.C. 20301-20304), and the Commerce Clause. FRA is not
expressing positions as to whether or to what extent preemption exists
with regard to any of the provisions noted above because doing so
requires a lengthy analysis for each component which, in the aggregate,
would be so long as to impair the usefulness of this document for most
readers. As FRA lacks the authority to make binding preemption
determinations, FRA's purpose in identifying these provisions is merely
to inform the public of the existence of these provisions and that
voluminous case law exists regarding preemption under each of the
provisions.
Paragraph (c) further informs the public that FRA does not intend
to preempt provisions of State criminal law that impose sanctions for
reckless conduct that leads to actual loss of life, injury, or damage
to property, whether such provisions apply specifically to railroad
employees or generally to the public at large.

Section 232.15 Movement of Defective Equipment

This section contains the provisions regarding the movement of
equipment with defective brakes without civil penalty liability. Except
as noted in the discussion below, the provisions contained in this
section are almost identical to the provisions proposed in the 1998
NPRM and incorporate the stringent conditions currently contained in 49
U.S.C. 20302, 20303, 21302, and 21304 (previously codified at 45 U.S.C.
13). The language used in some of the provisions has been slightly
modified to ensure consistency with existing statutory requirements. As
pointed out in the previous discussion, most of the alternative
proposals received by FRA in response to the 1994 NPRM, the subsequent
RSAC Working Group meetings, and the 1998 NPRM all contained provisions
regarding the movement of equipment with defective brakes which are in
direct conflict with the statutory requirements. See ``Overview of
Comments and General FRA Conclusions'' portion of the preamble under
the heading ``Movement of Equipment with Defective Brakes.'' FRA
continues to believe that the requirements related to the movement of
equipment with defective brakes retained in this final rule are not
only consistent with the statutory requirements, but also ensure the
safe and proper movement of defective equipment and clarify the duties
imposed on a railroad when moving such equipment.
Paragraph (a) of this section contains various parameters which
must exist in order for a railroad to be deemed to be hauling a piece
of equipment with defective brakes for repairs without civil penalty
liability. The final rule modifies the language used in some of the
proposed general provisions contained in this paragraph to accurately
reflect the language contained in the existing statutory provisions
pertaining to the movement of equipment with defective brakes. The
final rule replaces the term ``repair location'' with the phrase
``location where necessary repairs can be performed.'' FRA agrees with
the comments of certain labor representatives that the proposed
language could have been interpreted as being somewhat contrary to the
language used in the existing statute, which was not FRA's intent.
The vast majority of the requirements contained in this paragraph
should pose absolutely no additional burden to railroads as they are
merely a codification of existing statutory requirements. The only
requirement being retained from the 1998 NPRM in this paragraph that is
not currently mandated is the requirement that all cars or locomotives
found with defective or inoperative braking equipment be tagged as bad
ordered with a designation of the location where the necessary repairs
can and will be effectuated and that a qualified person determine the
safety parameters for moving a piece of defective equipment. Although
these are new requirements, most railroads already tag defective brake
equipment upon discovery of the defect. It should be noted that the
final rule clarifies that the person required to make the
determinations regarding the safe movement of defective equipment is to
be a ``qualified person'' as defined in the final rule. The intent of
FRA when issuing the NPRM was to require the determinations to be made
by these individuals. FRA believes that the training requirements
contained in the final rule for designating a person qualified to
perform a specific task will ensure that the individual possesses the
appropriate knowledge and skills to

[[Page 4151]]

perform the assigned task. Furthermore, the determinations that are
required to be made in the final rule are currently made by individuals
who FRA believes will be trained and designated under the final rule as
qualified persons.
In paragraph (a), FRA retains the existing and proposed requirement
that equipment with defective brakes shall not depart from or be moved
beyond a location where the necessary repairs to the equipment can be
performed. Therefore, if a car or locomotive is found with defective
brakes during any of the proposed brake inspections or while the piece
of equipment is en route and the location where the defective equipment
is discovered is a place where repairs of the type needed can be
performed, that car or locomotive shall not be moved from that location
until the necessary repairs are effectuated. However, if repairs to the
defective condition cannot be performed at the location where the
defect is discovered, or should have been discovered, the final rule
makes clear that the railroad is permitted to move the equipment with
the defective condition only to the nearest location where the
necessary repairs can be performed.
Paragraph (a) also retains the proposed codification and
clarification of the statutory restrictions on the movement of
equipment with defective brakes onto the line of a connecting railroad.
Hence, the delivery of defective equipment in interchange is covered by
these restrictions. In addition to fulfilling the other requirements
set out in this section, a railroad seeking relief from civil penalty
liability must show that the connecting railroad has elected to accept
the non-complying equipment and that the point of repair on the
connecting railroad's line, where the equipment will be repaired, is no
further than the point where the repairs could have been made on the
line where the equipment was first found to be defective.
Paragraph (b) of this section contains the specific requirements
regarding the tagging of equipment found with defective brake
components. The requirements contained in this paragraph are very
similar to the tagging requirements proposed in the NPRM and those
currently contained in part 215, regarding the movement of equipment
not in compliance with the Freight Car Safety Standards, and are
generally consistent with how most railroads currently tag equipment
found with defective brakes. The final rule retains the proposed
requirement that a record or copy of each tag removed from a defective
piece of equipment be retained for 90 days and made available to FRA
within 15 days of request. FRA does not believe that the proposed time
frames need to be expanded as suggested by some commenters. The
provisions are identical to those contained in part 215, regarding
freight car defects and they have proven to be sufficient to meet the
needs of FRA. The record keeping requirements are intended to aid FRA
in its enforcement of the regulations. As the agency is able to inspect
and oversee only a small portion of the railroad operations taking
place across the country at any one time, the need for railroads to
maintain records of such operations is essential for FRA to carry out
its mission of ensuring that all railroads are operating in the safest
possible manner and that they comply with those minimum Federal
standards designed to ensure that safety.
Paragraph (b) also recognizes that the industry may attempt to
develop some type of automated tracking system capable of retaining the
information required by this section and tracking defective equipment
electronically. Thus, this paragraph permits the use of an automated
tracking system in lieu of directly tagging the equipment if the
automated system is approved for use by FRA. Contrary to the
recommendations of some commenters, FRA is not willing to permit the
implementation of an automated tracking system without its approval. As
an adequate automated system for tracking defective equipment does not
currently exist on most railroads, FRA does not believe it is prudent,
from a safety perspective, to allow implementation of a tracking system
for which FRA would not have a prior opportunity to assess to ensure
the system's accessibility, security, and accuracy. Furthermore, FRA
tends to agree with the assertion of various labor representatives that
the physical tagging of defective equipment provides a railroad's
ground and operational forces the ability to visually locate and
identify defective equipment at the time they see it rather than
referring to an electronic database for such information.
This paragraph also contains language not previously included in
the NPRM regarding FRA's oversight of an automated tracking system that
is approved by FRA. FRA believes these provisions as necessary to
ensure the agency's ability to monitor such systems and potentially
prohibit the use of the system if it is found deficient. The provisions
make clear that an automated tracking system approved for use by FRA be
capable of being reviewed and monitored by FRA at any time. This
paragraph also notifies the railroads that FRA reserves the right to
prohibit the use of a previously approved automated tracking system if
FRA subsequently finds it to be insecure, inaccessible, or inadequate.
Such a determination would have to be in writing and include the basis
for taking such action.
Paragraph (c) retains the proposed provision restricting the
movement of a vehicle with defective brakes for the purpose of
unloading or purging only if it is necessary for the safe repair of the
car. This restriction is fully consistent with the statutory provisions
regarding the movement of equipment with defective safety appliances.
Paragraph (d) retains with slight modification the method of
calculating the percentage of operative power brakes (operative primary
brakes) in a train that was proposed in the NPRM. This paragraph
retains the general method of calculating the percentage on a control
valve basis. However, FRA agrees with the comments of the NTSB and
certain labor representatives that the method proposed in the NPRM did
not take into consideration the possibility of a control valve being
cut in when the brakes it controls are inoperative. Therefore, this
final rule clarifies that a control valve will not be considered cut-in
if the brakes controlled by that valve are inoperative. Although the
statute discusses the percentage of operative brakes in terms of a
percentage of vehicles, the statute was written nearly a century ago,
and at that time the only way to cut out the brakes on a car or
locomotive was to cut out the entire unit. See 49 U.S.C.
20302(a)(5)(B). Today, many types of freight equipment can have their
brakes cut out on a per-truck basis, and FRA expects this trend to
increase as the technology is applied to newly acquired equipment. This
final rule merely adopts a method of calculating the percentage of
operative brakes in a train based on the design of equipment used today
and, thus, a means to more accurately reflect the true braking ability
of the train as a whole. FRA believes that this method of calculation
is consistent with the intent of Congress when it drafted the statutory
requirement and simply recognizes the technological advancements made
in braking systems over the last century.
Paragraph (d) also retains the proposed list of conditions that are
not to be considered inoperative power brakes for purposes of
calculating the percentage of operative brakes. Certain commenters
recommended that FRA eliminate the proposed listing of conditions that
would not be considered as rendering the brakes inoperative, contending
that the listed conditions

[[Page 4152]]

should not be excluded from consideration. FRA disagrees with these
commenters. The purpose of the calculation is to determine the
percentage of operative brakes, and the conditions listed in the
proposal and retained in this final rule do not render the power brakes
inoperative. Many of the listed conditions constitute a violation under
other provisions contained in the final rule or another regulatory
provision for which separate penalties are provided.
A cut-out or ineffective power brake is an inoperative power brake,
but the failure or cutting out of a secondary brake system does not
result in inoperative power brakes; for example, failure of the dynamic
brake does not render the power brake inoperative. Furthermore,
inoperative handbrakes or power brakes overdue for maintenance or
stenciling do not render the power brakes inoperative on the car and
should not be deemed inoperative power brakes for purposes of the
calculation. The final rule and other regulations contain separate
penalties for operating a car that has an inoperative handbrake, is
overdue for maintenance, or lacks the proper stenciling or marking if
not being properly hauled for repairs. In addition, although a car may
be found with piston travel that exceeds the Class I brake test limits,
such excess travel does not render the brakes inoperative until the
piston travel exceeds the outside limits established for that
particular type of piston design. However, piston travel that exceeds
the applicable Class I brake test limits would be considered a
defective condition if the piston travel were not adjusted at the time
that a Class I brake test were performed, and the final rule contains
an appropriate penalty for such a condition.
Paragraph (e) contains the requirements regarding the placement of
cars in a train that have inoperative brakes. The requirements
contained in this final rule are virtually identical to the
requirements proposed in the NPRM. The restrictions contained in this
paragraph are consistent with current industry practice and are part of
almost every major railroad's operating rules. This paragraph prohibits
the placing of a vehicle with inoperative brakes at the rear of the
train. In addition, this paragraph retains the prohibition on the
consecutive placing of more than two vehicles with inoperative brakes,
as test track demonstrations have indicated that when three consecutive
cars have their brakes cut-out it is not always possible to obtain an
emergency brake application on trailing cars. However, as it was FRA's
intent to incorporate current industry practice when proposing the
requirements, the final rule slightly modifies the requirement
regarding the placement of multi-unit articulated equipment. When
proposing the restrictions regarding multi-unit articulated equipment,
FRA extrapolated the restriction based on the requirements regarding
the consecutive placing of defective cars. Based on its consideration
of the comments, FRA has determined that the proposed requirement
prohibiting the placement of such equipment with consecutive control
valves cut out is more restrictive than current practice on many
railroads, which was not FRA's intent when drafting the proposal.
Consequently, in order to remain consistent with existing industry
practice, the final rule requires that such equipment shall not be
placed in a train if it has more than two consecutive individual
control valves cut out or if the brakes controlled by the valve are
inoperative.
Paragraph (f) contains guidelines that FRA will consider when
determining whether a location is one where necessary brake repairs can
be performed and whether a location is the nearest location where such
repairs can be effectuated. The preamble to the NPRM contained an
extensive discussion regarding what factors should be considered when
determining whether a particular location is one where brake system
repairs should be performed and discussed the difficulties and pitfalls
associated developing a standard applicable to all situations. See 63
FR 48309. In the NPRM, FRA stated that the determinations as to what
constitutes a location where necessary repairs can be performed had to
be conducted on a case-by-case basis utilizing the criteria established
in existing case law. A number of railroad representatives commented on
this issue and recommended that FRA further clarify what constitutes a
location where brake repairs must be conducted. These commenters
claimed that leaving the determination solely to individual FRA
inspectors creates inconsistent enforcement and makes it virtually
impossible for railroads to comply. AAR and its members recommended
that FRA allow railroads to designate locations where brake system
repairs would be conducted. Conversely, representatives of rail labor
objected to any approach that would permit railroads to designate
repair locations, claiming that such an allowance would violate the
statutory conditions regarding the movement of defective equipment.
After consideration of these comments, FRA believes it is essential
to further clarify to the regulated community what the agency's
position will be for determining whether a location is a place where
brake repairs are to be conducted. FRA does not agree that a railroad
should be permitted to independently determine the locations it will
consider capable of making brake system repairs. History shows that
many railroads and FRA have widely different views on what should be
considered a location where brake repairs can and should be
effectuated. Furthermore, it is apparent to FRA that some railroads
attempt to minimize or circumvent the requirements for conducting
repairs in the name of convenience or efficiency. However, FRA also
recognizes that the emergence of mobile repair trucks creates an
ability to perform repairs that did not exist when Congress originally
enacted the statutory requirements related to the movement of defective
equipment. FRA acknowledges that every location where a mobile repair
truck is capable of making repairs should not be considered a location
where repairs must be conducted. However, FRA also disagrees with the
contentions of some commenters that Congress only intended for fixed
repair facilities to be considered when determining locations where
brake repairs are to be performed and that mobile repair trucks should
not be considered. FRA is aware of numerous locations where mobile
repair trucks are being used in lieu of a fixed facility or where a
fixed facility was eliminated and the repairs that were being performed
by the fixed facility are now being performed at the same location with
a fully equipped repair truck. Thus, FRA believes that locations where
repair trucks are used in virtually the same manner as a fixed facility
should be considered when determining whether the location is capable
of making the necessary repairs.
As noted in the NPRM, the determination as to what constitutes a
location where necessary repairs can be performed is an issue that FRA
has grappled with for decades. FRA continues to believe that the
determination must be made on a case-by-case basis after conducting a
multi-factor analysis. However, in an effort to better detail the items
that will be considered by FRA in making a determination, paragraph (f)
contains general guidelines that FRA will consider when determining
whether a location is one which should be considered a location where
at least some brake system repairs must be

[[Continued on page 4153]]

Notices For
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