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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: April 10, 2002 (Volume 67, Number 69)]
[Rules and Regulations]
[Page 17555-17585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap02-8]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 232
[FRA Docket No. PB-9; Notice No. 21]
RIN 2130--AB52
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; response to petitions for reconsideration.
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SUMMARY: On January 17, 2001, FRA published a final rule revising the
regulations governing braking systems and equipment used in freight and
other non-passenger railroad train operations. The revisions were
intended to achieve safety by better adapting the regulations to the
needs of contemporary railroad operations and facilitating the use of
advanced technologies. The revisions were 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. On August 1, 2001,
FRA published an initial response to petitions for reconsideration of
the final rule which addressed the issues and concerns raised in the
petitions related to the periodic maintenance requirements contained in
subpart D of the final rule. In this document, FRA responds to the
concerns of various interested parties raised in their petitions for
reconsideration of the final rule that pertain to the remaining
portions of the final rule. This document clarifies and amends the
final rule, where necessary, in response to the petitions for
reconsideration.
EFFECTIVE DATE: The amendments to the final rule are effective April
10, 2002.
FOR FURTHER INFORMATION CONTACT: James Wilson, FRA Office of Safety,
RRS-14, 1120 Vermont Avenue, Stop 25, Washington, DC 20590 (telephone
202-493-6259), 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:
Background
On January 17, 2001, FRA issued a final rule revising the Federal
safety standards governing braking systems and equipment used in
freight and other non-passenger railroad train operations. See 66 FR
4104. The effective date of the final rule was May 31, 2001. See 66 FR
9906 (February 12, 2001) and 66 FR 29501 (May 31, 2001). In response to
the final rule, FRA received six petitions for reconsideration from
seven parties raising various issues related to a number of the
provisions contained in the final rule. These petitioners included the
following:
Association of American Railroads (AAR), American Short Line and
Regional Railroad Association (ASLRRA), American Public Transportation
Association (APTA), Brotherhood of Locomotive Engineers (BLE), New York
Air Brake Corporation (NYAB), Rail Passenger Car Alliance (RPCA), and
Union Pacific Railroad Company (UP).
On August 1, 2001, FRA published an initial response to the
petitions for reconsideration of the final rule addressing those issues
raised in the petitions related to the periodic maintenance and testing
requirements prescribed in subpart D of the final rule. See 66 FR
39683. FRA believed that it was necessary to address these issues as
quickly as possible because the periodic maintenance and testing
requirements prescribed in subpart D of the final rule had a compliance
date of August 1, 2001. Due to the complexity of some of the issues
raised in the petitions for reconsideration on other provisions of the
final rule, FRA decided to address the issues related to subpart D in
its initial response to the petitions and then issue a follow-up
response addressing the issues pertaining to other portions of the
final rule. See id. This document is FRA's follow-up response and
addresses all outstanding issues raised in the petitions for
reconsideration.
The specific issues and recommendations raised in the petitions for
reconsideration, and FRA's response to those petitions is discussed in
detail in the ``Section-by-Section Analysis'' portion of the preamble.
The section-by-section analysis also contains a detailed discussion of
each provision which is being clarified or amended from the January 17,
2001 final rule. This will enable the regulated community to more
readily compare this document with the preamble discussions contained
in the final rule and will aid the regulated community in understanding
the requirements of the rule. All of the changes being made to the
final rule in this response to the petitions for reconsideration are
intended to be clarifying or technical amendments or are within the
scope of the issues and options discussed, considered, and raised in
either the 1998 Notice of Proposed Rulemaking (NPRM) or the final rule.
I. Discussion of Regulatory Evaluation Concerns
In the joint AAR and ASLRRA petition for reconsideration of the
final rule (hereafter referred to as AAR's petition), the parties raise
a number of concerns regarding FRA's Regulatory Impact Analysis (RIA)
of the final rule. Generally, the AAR contends that the final rule is
not cost effective. The AAR asserts that FRA's RIA understates the
costs and overstates the benefits of the final rule. The AAR calculates
that the costs related to the final rule will exceed the benefits by
more than $65 million. FRA disagrees with both AAR's assumptions and
its conclusions regarding the agency's RIA. In response to AAR's
petition, FRA has carefully examined each of the cost and benefit
issues raised by AAR in its petition. Each of the major issues and
concerns is discussed in detail below.
A. Cost Issues
1. Dynamic Brake Repairs
AAR claims that the final rule provision requiring that dynamic
brakes be repaired within 30 days of becoming defective will cost the
industry approximately $7.5 million more than the $5.5 million FRA
estimated in the RIA. In the RIA, FRA estimated the cost of this
requirement based on the amount of time it would take to conduct the
required repairs, which FRA estimated at eight hours, to which FRA
added two hours to cover the movement of the locomotive into and out of
the shop and to account for clean-up time. See RIA at 24-25. AAR does
not appear to question FRA's estimate of ten hours for actual repair
and incidental movement time. However, AAR bases its higher estimate on
the belief that the correct cost of this requirement should be the time
out of service incurred by a locomotive to make the required repair and
that this out-of-service time should be estimated at 24 hours. AAR
arrived at the 24-hour out-of-service time figure by maintaining that
the locomotive is out of service both before and after the required
repairs are made for a period of approximately 24 hours. AAR contends
that the time required to make the necessary repairs should not be the
basis of the estimate because railroads will make the repairs anyway,
just not within the newly prescribed 30-day time period in some cases.
Thus, the AAR asserts that the locomotive out-of-service time prior to
and after the repairs are made is the proper basis for estimating the
cost of this requirement.
[[Page 17557]]
As noted in the RIA, FRA strongly disagrees with AAR's suggestion
that an estimate of 24 hours of downtime should be used as the basis
for the cost estimate. See RIA at 24. FRA believes that time spent
waiting for repairs to be performed or waiting after the repairs are
completed is not properly viewed as a new regulatory burden associated
with the rule. The final rule allows railroads 30 days from the date a
locomotive is first discovered with defective dynamic brakes to make
the necessary repairs. The 30-day allowance was provided to permit
railroads to better plan and manage their locomotive fleet without
disruption to their operations. The RIA assumes that railroads will act
in the most efficient and cost effective manner to meet the
requirements of the final rule. With proper planning and management,
there should be no need for locomotives to make special trips to repair
facilities, and with proper planning locomotives should not have to
wait extended amounts of time for repair and movement out of repair
facilities.
Moreover, FRA disagrees with the assumptions used by AAR to
calculate the amount of downtime a locomotive would incur to meet the
requirements of the regulation. AAR calculations are based on the
assumption that a locomotive is used 24 hours a day, seven days a week.
This is an unrealistic assumption as it is well known in the railroad
industry that virtually no locomotive is used to this extent. Secondly,
AAR's calculation fails to take into account that locomotives would be
in repair facilities for other repairs at which time the dynamic brakes
could be repaired. The 30-day window provided by the final rule for
making dynamic brake repairs is intended to allow railroads flexibility
in scheduling such repairs to coincide with time periods when a
locomotive is not in service or when the locomotive is undergoing other
necessary repairs. Thus, FRA believes that AAR greatly overestimates
any locomotive downtime related to the final rule requirement.
Therefore, even assuming arguendo AAR's costing method, the 10 hours
costed by FRA for this provision is reasonable. In fact, it is very
conceivable that FRA's cost estimate here may actually be high, and
that the actual cost may be lower to the railroads than FRA has
estimated. However, FRA deliberately chose to use a very conservative
number in determining its cost estimate.
2. Train Handling Information
AAR claims that the final rule requirement to provide certain
information to the train crew will cost the industry $12 million more
than the $4.4 million estimated by FRA. See 66 FR 4203, RIA at 22.
Specifically, AAR contends that the provision to provide information to
train crews regarding the performance of Class I brake tests requires
more information (number of cars, place, time, date, and name of
inspector) to be transmitted to a greater number of trains than is
currently required. The old regulation allowed for required information
on performance of initial terminal brake tests to be provided orally on
trips under 500 miles and mandated that required information be
provided in writing on trips over 500 miles and on trains where the
inspector goes off duty before a train crew comes on duty. The final
rule requires that certain information be provided to train crews for
all trains receiving Class I brake tests, including those on trips
under 500 miles, and that a written or electronic record of the
information be maintained in the cab of the controlling locomotive.
In the RIA, FRA based its cost calculations on the assumption that
an additional 300,000 train starts, for trains traveling less than 500
miles, would be affected by the final rule requirement. See RIA at 22.
AAR contends that FRA's 300,000 train start assumption is incorrect
because AAR contends that there are over 1,000,000 train starts where
the train will travel less than 500 miles and that this is the actual
number of trains that will be affected by the final rule. However, a
close examination of AAR's cost estimate reveals that the 1,000,000
train starts does not discount for the existing regulatory requirement
that a written record is to be provided by the person performing an
initial terminal brake inspection for any train when the inspector goes
off duty prior to the operating crew coming on duty. See 49 CFR
232.12(a)(2). Moreover, AAR's cost estimate does not address the issue
of how many of the 1,000,000 train starts it identifies would be
considered transfer trains that would not require the transmission and
retention of the involved information. FRA believes that had these
factors been considered the number of affected train starts would be
close to FRA's estimate contained in the RIA. Consequently, in light of
these factors and in light of the fact that there are no readily
available data on the number of trains traveling under 500 miles, FRA
believes its cost estimate of 300,000 affected train starts is
reasonable.
3. Retesting of Cars
AAR further contends that the final rule provision requiring the
retest of cars found with brakes not to be applied during a required
brake test will cost the industry $17.4 million more than FRA's cost
estimate of $8.2 million contained in the RIA. In the RIA, FRA's
estimate is based on the assumption that 75,000 cars would need to be
retested annually pursuant to the final rule. See RIA at 20. However,
AAR bases its estimate of approximately $25 million by using 150,000
cars as the number of rail cars affected by the retest provision and by
using increased labor costs that it derived from ``survey'' results of
some of its member railroads. AAR provided no other pertinent
information concerning the ``survey'' cited, only the results.
FRA essentially cut the AAR's number in half when developing the
RIA for the final rule, which doubled the costs estimated in the NPRM
based on FRA's agreement with certain AAR comments submitted in
response to the NPRM. If AAR's numbers presented in its petition are
accurate, then 10 percent of the rail car fleet would require a retest
each year. FRA continues to believe that this percentage is much too
high. FRA believes that a large portion of the fleet that fails a brake
test does so for obvious reasons. These cars would simply be removed
from the train and repaired where found defective. Consequently, such
cars would not be affected by the retest provision contained in the
final rule. Again, it should be noted that details about AAR's survey
(e.g., methodology, the number of railroads surveyed, questions asked,
and information sought) were not provided to FRA in AAR's petition for
reconsideration. FRA continues to believe that its cost estimate for
this provision is reasonable and that 75,000 cars (5 percent of the
fleet) may, in fact, be overestimating the number of retests that will
be required. However, FRA again preferred to be conservative when
developing the RIA for the final rule. If FRA were to accept the AAR's
estimate that 150,000 cars would need to be retested, FRA would also
have to conclude that the freight car fleet is in significantly worse
condition than FRA believes to be the case and would have to reconsider
requiring more vigorous action to keep freight cars in good repair.
4. Piston Travel Stickers/Decals/Stencils
AAR also asserts that the final rule requirement to affix a
sticker, decal, or stencil on rail cars indicating permissible piston
travel will cost the industry $3 million more than FRA's estimate of
approximately $3.4 million contained in the RIA. AAR contends that the
requirement to have these
[[Page 17558]]
indicators affixed on rail cars by April 1, 2004, will result in cars
having to be taken out of service solely for the purpose of applying
the required decal, sticker, or stencil. It should be noted that AAR
did not raise this issue in its comments on the NPRM issued in 1998. In
its petition, AAR now estimates that 20 percent of the cars requiring
the labeling will need to be removed from service.
FRA strongly disagrees with AAR's analysis of this provision. FRA
believes that the time permitted in the final rule is sufficient for
railroads to comply with the requirement. On average, rail cars are
placed on a fixed repair track or a sidetrack where repairs are
conducted approximately once every one-and-one-half years. The task of
applying a sticker, decal, or stencil takes only a few minutes to
accomplish, and FRA has allowed numerous ways for railroads to comply
with the requirement. As a matter of fundamental sound economics, good
business practice, and effective utilization of employee time and
company resources, FRA assumes the railroads will use the most cost-
effective option (i.e., applying stickers or decals to a rail car while
performing other functions rather than taking it out of service
unnecessarily) when placing piston travel information on rail cars. The
most reasonable approach to complying with the requirement is to apply
the sticker, stencil, or decal when an inspection or repair is being
conducted on the rail car. Therefore, FRA maintains that railroads will
not incur the excessive costs estimated by AAR when less expensive
alternatives for achieving compliance are utilized. Consequently, FRA
continues to believe that the RIA cost estimate for this requirement is
reasonable.
5. Training
The AAR further alleges that the training requirements contained in
the final rule will cost the industry between $8.3 million and $19
million more than FRA's RIA estimate of approximately $61 million.
Although FRA is not unmindful that the costs associated with the
training requirements represents the single highest cost item
associated with the final rule, FRA believes that AAR has seriously
overestimated the costs of the training requirements in its petition.
Furthermore, in response to the training concerns raised by AAR in its
petition, FRA is modifying some of the training requirements contained
in the final rule to reduce the initial training burdens, particularly
for existing employees as discussed in detail in the section-by-section
analysis below. Thus, many of the costs implications cited by AAR in
its petition will be reduced as existing employees will be permitted to
``test out'' or be certified as having received part of the initial
training.
In addition to the regulatory changes, which will significantly
reduce the cost of initial training for existing employees, AAR also
overestimated the cost of the training requirements in its petition. In
its petition, AAR's costs assume a much greater labor cost than FRA
assumed when developing the RIA for the final rule. AAR estimated an
average labor cost of approximately $48 per hour/per employee to
conduct the required training. However, the final rule's RIA relied on
a labor cost of $35 per hour/per employee. See RIA at 32a. FRA based
its final rule labor costs on the fact that the RIA related to the NPRM
used an estimate of $35 per hour for the cost of employee time for
training purposes, and it noted that this figure was obtained from a
1995 AAR submission. Although the AAR did express concerns with the
training costs in two different comments submitted in response to the
NPRM, AAR never objected to FRA's use of the $35 per hour labor cost
for employee time. AAR did not object to $35 per hour labor cost for
employee time even though the cost estimate was several years old and
was not adjusted for inflation. Thus, notice and comment were properly
provided on this cost estimate and no objections were raised regarding
its use. Consequently, FRA's use of the dollar figure in the final rule
should be considered reasonable.
AAR's petition also asserts that the FRA's training costs in the
RIA omit the cost of training materials and other miscellaneous costs.
The RIA for the final rule suggests that trade groups such as AAR and
ASLRRA would develop training programs for member railroads. In fact,
FRA assessed costs of $200,000 for each of these groups for initial
development of such training programs. See RIA at 30. Additionally, FRA
assessed an annual cost of $40,000 for training on new brake systems
and for adjustments in training programs. Incorporated in FRA's cost
estimates for training are all costs related to the development of a
training program, including the costs of materials, and other
miscellaneous costs.
In its petition, AAR also states that the training and
recordkeeping requirements are particularly burdensome for small
railroads. AAR expresses concern that the training requirements will
not allow flexibility for the small railroads so that their workers can
be trained for the unique operation and environment they encounter
daily. However, FRA notes that the final rule requires railroads and
contractors to develop training programs that provides the skills
needed to inspect, test, and maintain the brake equipment. FRA
continues to believe that the unique environment and operating
characteristics of small railroads will itself provide flexibility for
compliance with the training requirements. This is feasible because the
training programs can be tailored to the skills needed by the various
employees on each railroad. Since small railroads have less
sophisticated operations and older equipment, many of the tasks
relating to inspection, testing, and maintenance of brake equipment
that personnel of larger railroads are required to perform would not
have to be performed by many of the employees on smaller railroads.
Therefore, much of the training being provided on larger railroads
would not be required to be provided on many smaller railroads. For
example, most small railroads do not operate trains with two-way end-
of-train devices or dynamic brakes, and therefore, they would not have
to provide training for such equipment. Similarly, many smaller
railroads do not conduct much of the brake system maintenance or some
of the brake inspections and tests mandated under the final rule and
thus, training on those tasks would not be required. Correspondingly,
as the training requirements lessen for smaller railroads, the
recordkeeping burdens attached to the training requirements will also
be reduced.
The AAR's petition also contends that some of the final rule
recordkeeping requirements related to training are unnecessary and
should be eliminated. Specifically, AAR requests the elimination of the
requirement to retain a description of the employee's ``hands-on''
performance applying the skills and knowledge the employee needs to
possess to perform the tasks for the employee is assigned
responsibility. AAR professes that it finds little value in this
requirement. FRA maintains that the short description (a few sentences)
involved in maintaining this record is not particularly burdensome and
that it will assist FRA in its oversight responsibilities. AAR also
seeks elimination of the requirement to notify employees of their
qualification status as AAR finds little value in this requirement. AAR
contends that an employee will learn the status of his qualifications
regardless of any regulatory requirement. However, FRA continues to
believe that employees need a current record of their qualification
status to ensure that no
[[Page 17559]]
discrepancies exist between what employees believe their qualifications
are and what the company records indicate, especially since employees
may be held individually liable for violations of the final rule and
subject to various civil sanctions.
In addition, AAR's petition requests the elimination of the
requirement to maintain a record of the tasks that each employee is
qualified to perform. AAR claims that this information can be gleaned
from the information regarding the content of the training course, a
record the final rule also requires railroads to maintain. FRA, on the
other hand, continues to believe that this information is basic to any
training program and should not be very difficult or expensive for
railroads to maintain. Moreover, this information is necessary so that
there is a specific record describing the tasks that each employee is
qualified to perform relating to inspections, testing, and maintenance
of brake systems. Such a record will not only assist FRA in its
oversight responsibilities but will also assist the railroads in
ensuring that properly qualified personnel are used to conduct the
various tasks required by the final rule. It should be noted that this
type of requirement is not unique or new to the federal regulations;
FRA has similar requirements related to retaining the qualification
status of roadway workers. See 49 CFR 214.343.
The AAR's petition also requests the elimination of the requirement
to maintain a record of the identity of the person determining an
employee's qualification status. AAR again claims that there is little
value in retaining this information, even for enforcement purposes. FRA
believes that this information is very basic and should not be
difficult, time consuming, or expensive for railroads to maintain. Not
only is this record necessary for FRA's oversight responsibilities, but
FRA believes that such documentation will assist both the railroads and
FRA in assessing the effectiveness of the training provided to
employees. The railroads as well as FRA may be able utilize such
information to assess the reasons for the employees' failure to
properly perform their required duties, e.g., deficiencies in the
training program, the person(s) determining the employee's
qualification, or the employees themselves. Last, AAR's petition seeks
elimination of the requirement to maintain a record of the date that an
employee's qualification status expires. AAR contends that this date
will be automatically determined based on the date that the employee
completes the required training courses. FRA continues to believe that
this is basic information that should not be difficult or expensive for
railroads to maintain, particularly after AAR's own assessment of how
simple it is to calculate the information. In summary, FRA continues to
maintain that virtually all of the training information that is
required to be maintained by the final rule is currently retained by
most railroads in some fashion or another or is not very burdensome to
develop and maintain and provides information that is useful to both
FRA and the railroads.
B. Benefits
In its petition for reconsideration, AAR raised three major
concerns regarding FRA's RIA estimates of the benefits related to the
final rule. Each of the three major issues is discussed in detail
below.
1. Double Counting of Preventable Accidents
In its petition, AAR claims that FRA has double-counted the
accident avoidance benefits related to the final rule. AAR asserts that
the RIA for the final rule assumes accident avoidance safety benefits
for accidents that were already accounted for in FRA's final rule on
two-way end-of-train devices (EOTs) issued on January 2, 1997. See 62
FR 278. According to AAR, this reduces the $57.5 million safety
benefits assumed in the final rule's RIA by $8.9 million.
FRA's final rule on two-way EOTs utilized an accident data set for
calculating the rule's safety benefits which was very specific. Sixteen
accidents that occurred between 1991 and 1996 were specifically
targeted by that rulemaking. See 62 FR 291. All of the accidents in
that data set had either E03C or E04C as the FRA-assigned accident
cause code. Effectiveness rates of between 0.9 and 0.5 were assessed
for those accidents. The focus of the two-way EOT rulemaking was to
prevent train accidents which resulted directly from brake pipe
constriction or obstruction. See 62 FR 291. Two-way EOTs are intended
to reduce the risk of this type of accident by providing the locomotive
engineer the ability to initiate an emergency brake application at the
rear of the train. Because the two-way EOT rule did not apply to all
train operations, the data set of preventable accidents did not capture
all E03C and E04C type accidents. Specifically, the two-way EOT
rulemaking provides exclusions for local trains, trains with an
occupied caboose, passenger trains with emergency brakes, trains that
do not exceed 30 miles per hour or operate on heavy grades, and trains
that operate on trackage not connected to the general railroad system.
Freight trains equipped with a locomotive which has the ability to
initiate a brake application located at the rear of the train were also
excluded, as were trains equipped with an independent secondary braking
system.
The RIA for this final rule included all brake-related accidents,
including obstructed brake pipe accidents, and other related accidents.
In the preamble to the final rule and in the RIA, FRA noted that it did
not claim 100 percent effectiveness on those accidents used in relation
to the two-way EOT rulemaking and, thus, utilizing these accidents in
this final rule was acceptable. See 66 FR 4107, RIA at 41. Because of
this overlap, it was FRA's intention to utilize a 10 percent
effectiveness for those accidents cited in both the RIA related to the
two-way EOT rulemaking and the RIA related to this final rule. Thus, it
was FRA's intention to ensure that no individual accident would be
assessed with a combined effectiveness rate of greater than 100
percent. FRA concedes that it erred in the final rule's RIA by
referring to the accidents which could be found in both rulemaking data
sets as only E04C cause code accidents. In actuality, the overlapping
accidents had cause codes of both E03C and E04C. Other codes were also
present as the primary cause based on railroad information comprising
the EOT data set of accidents. FRA also erred in the final rule RIA by
referring to ``brake pipe obstruction'' accidents as having an E04C
cause code when in actuality they should have had an E03C cause code.
Although FRA erred in identifying the proper cause code, FRA did intend
to include brake pipe obstruction accidents in the final rule's safety
benefit calculation.
Although AAR contends that there are two major accidents involving
an obstructed brake-pipe that FRA has ``double-counted'' by including
them in the safety benefits of both the two-way EOT rulemaking and this
final rule, FRA believes the characterization is misleading. Double-
counting would be claiming credit for preventing the same accident
twice at 100 percent effectiveness each time it was claimed. As noted
above, it was FRA's intention only to take credit for the remaining 10
percent effectiveness in this final rule for the specific accidents
which were included in the data set for the two-way EOT rulemaking.
These accidents included the two accidents that occurred in Cajon,
California in 1994 and 1996 as well as an accident that occurred in
1996 near St. Paul, Minnesota. However, the RIA for this final rule
actually applied an
[[Page 17560]]
effectiveness rate of 10 percent on only one of three relevant
accidents. Unfortunately, with regard to the other two accidents, FRA
inappropriately utilized an effectiveness rate of 50 percent. See RIA
at 42b. Thus, FRA agrees with AAR's assertion that FRA miscalculated
the safety benefits to be derived from these two accidents.
To correct for this error, the safety benefits related to the final
rule should be revised to reflect a 10 percent effectiveness rating for
the two accidents which are in both data sets. FRA is completely
confident that if there is compliance with both the two-way EOT rule
and this final rule this type of obstructed-brake-pipe accident would
not occur today. Therefore, after FRA corrects the effectiveness rate
for the two accidents which had been incorrectly calculated, the final
rule's safety benefits change slightly. The value of annual safety
benefits decreases from approximately $5.9 million per year to
approximately $5.3 million per year. Consequently, the total discounted
safety benefits for the twenty-year period decreases from $57,455,262
to $51,147,531, a decrease of approximately $6.3 million. Therefore,
although FRA agrees with AAR's general contention that FRA erred in
calculating the estimated safety benefits related to the final rule, it
should be noted that the error is significantly less than claimed by
AAR in its petition. Moreover, the admitted error does not change the
overall fiscal soundness of the final rule's RIA or the necessity for
the final rule.
2. Value of Avoided Injuries
AAR also asserts that FRA's RIA claim of $330,000 as the value of
an avoided moderate injury is at least six times higher than any
estimate known to AAR and is not supported by the articles cited in the
RIA. AAR contends that if a more traditional approach were taken to
estimating the value of avoiding a moderate injury, then the estimated
safety benefits would be reduced by $7.9 million. In the RIA related to
the NPRM, FRA stated that it would use the Abbreviated Injury Scale
(AIS) to determine the value of prevented injuries. It was noted that
$330,750 was the mid-point between an AIS 3 ($155,250) injury and an
AIS 4 ($506,250) injury. Thus, notice was provided to the AAR regarding
FRA's intent to use the mid-point of the AIS, a value of approximately
$330,000, to calculate the value of avoided injuries. The RIA for the
NPRM used this single value for all injuries. FRA is not aware of any
railroad or AAR comment received by the agency during the NPRM comment
period that addressed or objected to this estimated value for avoided
injuries.
The RIA for the final rule provided different values for prevented
injuries based on injury severity where the severity of the injury
could be determined based on the information available to FRA. See RIA
at 42b, 43. Minor, moderate, and severe injuries were valued at $5,000,
$330,000, and $1,200,000, respectively. If the severity of the injury
could not be determined, it was assessed as a moderate injury. In the
final rule's RIA, FRA used $330,000 for the value of a moderate injury
prevented, instead of $330,750, for simplicity and rounding purposes.
FRA noted that the values for prevented injuries were not directly
based on an AIS percentage of a statistical life or subsequent dollar
values. See RIA at 43. However, FRA stated that they were based on the
same ``willingness-to-pay'' approach to injury prevention as the AIS.
See RIA at 43. FRA assessed minor injuries at $5,000; an AIS 1 injury
is valued at $5,400. FRA used $1,200,000 as the value of a severe
injury; the mid-point between an AIS 4 and AIS 5 injury is $1,282,500.
An AIS 5 injury is assessed at a value of $2,058,750. As its standard
for calculating fatal injury, FRA utilizes the United States Department
of Transportation's (DOT's) value, which is currently $2.7 million per
life saved or fatality averted. All of the injury values are related to
this conservative value of a statistical life. This is a value for
which there is a large amount of variation. The values range between
$1.5 million and $5.8 million, with a mean value of $4.8 million per
statistical life saved.
The RIA to the final rule did provide two footnotes in its
discussion on the prevented injuries. See RIA at 43. The first
footnote, which immediately followed a quote, provided the citation on
the ``willingness-to-pay'' method of valuing a life. The second
footnote followed a quote and a paraphrased sentence. The second
footnote also provided a citation for the pertinent journal article.
The paragraph where these quotes were located was intended to provide
the justification and discussion on the use of the ``willingness-to-
pay'' approach for assessing values of prevented injuries. Sources were
cited so that a reader could review the relevant methodology. This
discussion provided the details of what such a value included, and the
article referenced was appropriately cited. It should be noted that
this discussion was provided in a separate paragraph from the one which
discussed the various monetary values of the different injury
severities. Hence, the footnotes and the source citations were not
related to the monetary values which FRA used in this analysis, but
rather were a description of what is incorporated in the ``willingness-
to-pay'' method of valuing a human life. Unfortunately, AAR read and
interpreted the footnotes out of context. Consequently, FRA continues
to believe that monetary values placed on the different injuries and
the estimated safety benefits for the final rule are reasonable and
sufficiently conservative.
3. Business Benefits (Cost Savings)
In its petition, AAR also alleges FRA improperly credits benefits
for eliminating two non-existent regulatory burdens. AAR contends that
removing the benefits related to these two non-existent requirements
reduces the stated benefits of the final rule by approximately $25.2
million. Specifically, AAR argues that FRA takes credit for eliminating
the requirement for brake connection bottom rod safety supports on
bottom connection rods. AAR also argues that FRA claims a benefit for
eliminating the prohibition against using an EOT device to determine
and report rear car air pressure at the rear of the train during the
performance of initial terminal type air brake tests.
The former power brake regulation, as it existed prior to May 31,
2001, has a provision in Sec. 232.12(d)(1) that requires that the
inspection ensure that the ``brake rigging is properly secured and does
not bind or foul.'' This requirement does not specifically require
brake connection bottom rod safety supports, but, with the design of
some cars, the supports become necessary to fulfill this requirement.
Prior to the issuance of either the NPRM or the final rule, FRA issued
a technical bulletin to its field inspectors and the industry stating
that ``bottom rod safety supports'' would be required only on those
cars that have the bottom rod or handbrake bottom rod below the
bolster. See FRA Technical Bulletin MP&E 98-6 (June 15, 1998). FRA
issues technical bulletins to provide enforcement and interpretative
guidance to its field inspectors and members of the regulated
community. Technical bulletins which provide enforcement discretion
guidance are a matter of policy; are subject to change; and are not to
be considered changes or modifications to an existing regulatory
requirement.
In the RIA related to the NPRM, an $11 cost associated with the
replacement of a bottom rod safety support was supplied by AAR and
cited
[[Page 17561]]
in a footnote. See NPRM RIA at 20. Because AAR supplied a cost for
replacing bottom rod safety supports, AAR implied that the supports
were replaced by some member railroads. The estimate of 27,800 annual
replacement of these supports was used in the RIA for both the NPRM and
final rule, and this number was not disputed. The preamble to the final
rule delineates the difference between the previously issued technical
bulletin, discussed above, and the additional flexibility being
provided by the final rule. In the preamble discussion of
Sec. 232.205(b)(7), FRA makes clear that brake connection bottom rod
supports will no longer be required on bottom connection rods secured
with locking cotter keys. See 66 FR 4170. FRA recognized that there is
no need for bottom rod safety supports in these instances and intended
to relieve railroads of this unnecessary expense. Thus, the previously
issued technical bulletin and the final rule were giving relief from
using bottom rod safety supports in two different circumstances. The
previously issued technical bulletin made clear that bottom rod safety
supports would be required only on cars with the bottom rods and
handbrake rods below the bolster. See Technical Bulletin MP&E 98-6.
However, the final rule also eliminated the need to use bottom rod
safety supports in the additional circumstance where a car's bottom rod
is secured with cotter keys equipped with a locking device to prevent
their accidental removal. See 66 FR 4170, 4203, and RIA at 35.
Therefore, the final rule provides relief from the requirement to use
bottom rod safety supports that is over and above the guidance provided
in the previously issued technical bulletin. Based on the above
discussion and because the bottom rod safety rod exemption was
specifically acknowledged in regulation (albeit for the first time),
FRA believes that it is reasonable and proper to consider the
flexibility provided by the final rule as a benefit to the industry.
FRA also disagrees with AAR's assertion that there is no benefit
derived from the final rule's allowance to utilize an EOT device when
conducting a Class I brake test. In the RIA and preamble related to the
NPRM, FRA noted that benefits exist but were not estimated (quantified)
regarding the use of EOT devices during the performance of Class I
brake tests. See 63 FR 48350, NPRM RIA at 20. At that time, FRA noted
that there was an operational benefit from allowing the use of an EOT
when performing a Class I/initial terminal brake test when such
inspections are performed at intermediate pick-ups; however, FRA did
not have an estimate of how many intermediate pick-ups would be
affected by this allowance. In the RIA for the final rule, FRA was able
to estimate or quantify this benefit with information that the AAR
provided in its comments on the NPRM. See RIA at 36-38.
AAR states that there is no prohibition on the use of EOT devices
when conducting initial terminal type brake tests pursuant to part 232
as it existed prior to May 31, 2001. FRA disagrees with the AAR's
assertion. In Sec. 232.13 of the former rule, FRA specifically allows
for the brake pipe pressure to be indicated in an intermediate terminal
train air brake test by a rear car ``gauge or device.'' Section
232.13(g) of the former rule defines a ``device'' as a system of
components designed and inspected in accordance with Sec. 232.19.
Section 232.19 of the former rule contains design standards for EOT
devices. When issuing the regulations in 1986, permitting the use of
EOT devices when performing certain brake tests, FRA specifically
revised only the provisions related to intermediate terminal
inspections. See 51 FR 17300 (May 9, 1986).\1\ FRA did not revise the
initial terminal brake test requirements contained in Sec. 232.12 of
the former regulation to permit the use of a ``device'' to determine
the train line air brake pressure at the rear car of a train. Section
232.12 of the former regulation only permits the air pressure at the
rear of the train to be determined by a brake pipe gauge. If FRA had
intended to permit the use of an EOT device when conducting brake
inspections pursuant to Sec. 232.12 (c)-(j), it would have modified
those provisions in 1986. Consequently, it was obviously FRA's intent
not to permit the use of such devices when conducting initial terminal
brake inspections. Moreover, FRA has always interpreted the regulation
to require that a person be stationed at the rear of the train to
determine brake pipe pressure at the rear of the train when conducting
a brake inspection pursuant to the requirements contained in
Sec. 232.12(c)-(j) of the former rule.
---------------------------------------------------------------------------
\1\ It should be noted that Sec. 232.13(d)(1) and (d)(2) of the
former rule specifically requires that all cars added to a train
that have not been inspected pursuant to Sec. 232.12(c)-(j) are to
be so inspected when added to the train or may receive and
intermediate brake inspection pursuant to Sec. 232.13(d)(1) provided
the cars are inspected pursuant to Sec. 232.12(c)-(j) at the next
terminal where facilities are available. Thus, all cars added to a
train that were not previously tested and charged under
Sec. 232.12(c)-(j) would be required to be inspected under those
provisions either when added to the train or at the next location
where facilities are available for peforming such an inspection.
---------------------------------------------------------------------------
As the final rule specifically permits the use of an EOT device to
indicate brake pipe pressure when conducting Class I/initial terminal
brake tests, the industry derives an operational benefit that was not
available under the former rule. As the final rule's RIA noted, this is
not a benefit for all Class I/initial terminal brake tests. See RIA 36-
38. It is a benefit that non-cycle trains that perform one or more
pick-ups while en route are more likely to realize. Thus, a benefit is
realized whenever cars that are added to a train are required to
receive a Class I/initial terminal brake test at the time they are
added to the train. FRA estimated that approximately seven percent of
all train starts would engage in en route pick-ups requiring the
performance of a Class I/initial terminal brake test that would benefit
from this regulatory change. This benefit was calculated with very
conservative estimates. FRA estimated that minimally 100,000 of the 1.4
million train starts would realize a benefit from using an EOT device
when conducting a Class I/initial terminal brake test while en route.
See RIA at 36-38. This estimate does not account for the likelihood
that many of the 100,000 trains would engage in more than one en route
pick-up. FRA estimated the savings as being minimally five minutes per
use. Train delay value was estimated at $250 per hour. This value was
an estimate that was developed in the Positive Train Control (PTC)
Working Group of the Railroad Safety Advisory Committee (RSAC), which
included both industry and labor participation. Consequently, FRA
believes that the operational benefits it estimated in the RIA that
would be derived from the final rule's allowance for the use of EOT
devices when conducting Class I brake tests are reasonable, proper, and
very conservative.
In summary, FRA acknowledges that it erred in the final rule's RIA
when estimating the safety benefits to be derived from the specific
accidents included in the analysis. However, FRA believes that the
error and resulting reduction in the safety benefits does not in any
way compromise the integrity of the analysis or impact the decisions
made by FRA, and does not change the necessity for any of the
provisions contained in the final rule. Furthermore, FRA finds all the
other economic issues raised by AAR in its petition for reconsideration
to be either incorrect, unfounded, or unpersuasive. FRA continues to
believe that it has been both reasonable in its cost estimates and
[[Page 17562]]
extremely conservative in its estimates of benefits related to the
final rule. Moreover, FRA believes that the modifications and
clarifications being made to the final rule in this response to the
petitions for reconsideration will not only reduce the potential
regulatory costs but will also increase the benefits associated with
the final rule. Therefore, the costs and benefits quantified in the
final rule's RIA are even more conservative than when originally
calculated by FRA. Consequently, FRA strongly supports the economic
arguments and estimates advanced in its RIA for the final rule.
II. Section-by-Section Analysis
Amendments to 49 CFR Part 229
FRA is not making any modifications to the provisions of part 229
affected by the final rule in response to the petitions for
reconsideration or for any other reason. BLE's petition for
reconsideration objected to FRA's removal of the phrase ``in the cab''
from the first sentence in Sec. 229.53 as it existed before the
issuance of the final rule. The phase ``in the cab'' related to the
location of the various brake gauges used by a locomotive engineer for
braking a train or locomotive. FRA proposed the removal of the phrase
``in the cab'' from this section in the NPRM. See 63 FR 48354
(September 9, 1998). No objection was raised to this modification in
any of the comments received in response to the NPRM. Although FRA did
not provide a specific explanation for its removal in either the NPRM
or the final rule, FRA believed then and continues to believe that the
phrase is unnecessary and antiquated. FRA's intent when removing the
language was to ensure that the gauges used by an engineer to aid in
the control or braking of a train or locomotive were located so as to
be read from the engineer's usual position when operating the
locomotive, whether that be in the cab of the locomotive or elsewhere.
FRA's intent when issuing the final rule was to accommodate and
facilitate advanced technologies and designs. FRA believes that the
language contained in both the NPRM and the final rule meets this
intent while ensuring that essential information is provided to a
locomotive engineer when operating a train or locomotive.
In a late filing to the docket (May 31, 2001), BLE raised a number
of issues regarding FRA's discussion related to extending the testing
interval for electronic locomotive gauges in Sec. 229.27(b). In its
submission, BLE expressed concerns with the way FRA portrayed the
findings of the task force considering issues related to electronically
controlled locomotive brake systems. Although the preamble to the final
rule does discuss the recommendations of a task force regarding
electronically controlled locomotive braking systems, the preamble does
not attribute the recommendations to the New Technology Joint
Information Committee (NTJIC). The preamble to the final rule makes
clear that the task force assembled for purposes of this rulemaking was
merely made up of individuals that were also members of the NTJIC. See
66 FR 4144. Furthermore, the preamble to the final rule in no way
indicates or alludes to FRA agreement with or endorsement of the
recommendations made by the assembled task force, other than acceptance
of the task force's recommendation to extend the testing interval for
electronic locomotive gauges. See 66 FR 4144.
The preamble to the final rule focused solely on the reliability of
electronic gauges used in electronically controlled locomotive brake
systems and did not intend to address other issues related to the use
and operation of such systems. FRA agrees with BLE that the field of
electronically controlled locomotive brake systems is complex, and FRA
does not believe that this rulemaking is the proper forum in which to
address the many issues surrounding such systems. BLE's petition notes
various forums where issues related to this technology are currently
being discussed, considered, and researched. These include the NTJIC
and the CSX Computer Controlled Brake waiver committee. FRA and BLE are
actively participating in these groups, and FRA believes these forums
are best suited, at this time, to address the issues and concerns
related to the use and operation of electronically controlled
locomotive braking systems.
Amendments to 49 CFR Part 232
Section 232.1 Scope and Section 232.3 Applicability
APTA's petition for reconsideration requests modification of these
two sections to provide passenger railroads the option of inspecting
and testing work trains operated on passenger railroads pursuant to the
Passenger Equipment Safety Standards contained in 49 CFR part 238
rather than under the provisions contained in the final rule. APTA
contends that this flexibility would eliminate the need for certain
commuter operations to train their employees on both part 232 and part
238. Without this flexibility some commuter operations will be required
to have two different inspection, testing, and maintenance programs in
place. APTA contends that there would be no adverse impact on safety
because the inspection and testing requirements contained in part 238
are generally more stringent than those contained in the final rule.
For consistency and enforcement purposes, APTA also suggests that
passenger operations would have to decide under which part it would
operate their work trains and such operations would not be allowed to
mix the provisions of part 238 and part 232.
While FRA does not necessarily disagree with APTA's recommendation,
FRA does not believe that the petition for reconsideration stage of
this rulemaking is the proper forum in which to address this issue.
Although APTA's recommendation appears reasonable in theory, FRA is
unclear how APTA proposes to apply the provisions contained in part 238
to work trains used in passenger operations based on the information
provided in APTA's petition. FRA believes that more information and
consultation with affected parties is needed to determine how a
passenger railroad would apply the mechanical and brake inspection and
testing requirements contained in part 238 to its work trains. FRA
believes that a detailed plan would need to be reviewed by FRA
regarding a railroad's proposed application of part 238 to work trains.
Consequently, FRA believes that APTA's request would be better handled
through the waiver process detailed in 49 CFR part 211. This would
allow both FRA and other interested parties to thoroughly review and
assessed the proposed application of part 238 to such trains. FRA
stresses that it believes APTA's recommendations and suggestions on
this issue appear reasonable and that FRA is willing to consider them
in the proper forum.
Section 232.5 Definitions
FRA is adding clarifying language to the introductory text of this
section. The language is being added to prevent a potential
misapplication of the definitions beyond that intended by FRA when
issuing the final rule. Many of the general provisions contained in
subpart A of the final rule became applicable to the industry on May
31, 2001, including the definitions contained in Sec. 232.5. See
Sec. 232.1(b), 66 FR 4193. FRA made the definitions applicable as of
May 31, 2001, because portions of the final rule (e.g., subpart E)
became applicable on that date and
[[Page 17563]]
there are definitions in Sec. 232.5 pertaining to those portions of the
new rule. Although Sec. 232.1(b) makes the definitions contained in
Sec. 232.5 applicable as of May 31, 2001, it was clearly FRA's intent
to apply the definitions contained in this section only to the
requirements contained in the text of the new final rule and not to the
requirements contained in part 232 as it existed prior to May 31, 2001.
This intent is evidenced in the final rule's preamble discussion
related to the definitions in which FRA states: ``FRA intends these
definitions to clarify the meaning of important terms as they are used
in the text of the final rule.'' See 66 FR 4146. Furthermore, FRA
intended for specific definitions to become applicable only to those
substantive portions of the new final rule that are applicable to the
industry. This intent is evidenced by FRA's explicit statement that it
would not require a ``qualified person,'' as defined in Sec. 232.5 of
the final rule, to perform the required tasks under subpart D, which
became applicable on August 1, 2001, until April 1, 2004 when the
training requirements become applicable. See 66 FR 4145.
FRA believes that any attempt to apply the definitions contained in
Sec. 232.5 of the final rule to provisions contained in part 232 as it
existed prior to May 31, 2001, would be not only inconsistent with
FRA's intent when drafting the final rule but would create serious
Administrative Procedure Act (APA) implications. Acceptance of such an
argument would result in various definitional provisions of the final
rule becoming applicable prior to the dates specifically established in
Sec. 232.1(b) of the final rule for applicability of the relevant
substantive provisions. In effect, this would accelerate the
applicability of those substantive provisions, imposing significant
unintended regulatory burdens without proper notice. Furthermore, the
preceding discussion establishes clear evidence of FRA's intent not to
apply the definitions contained in the final rule to the provisions of
part 232 as it existed prior to May 31, 2001. In contrast, there is
absolutely no language or inference in the final rule's preamble or
rule text to indicate that FRA intended to apply the definitions
contained in Sec. 232.5 of the final rule to any provision contained in
part 232 as it existed prior to May 31, 2001. Consequently, any attempt
to specifically apply the definitions contained in the final rule to
provisions contained in part 232 as it existed prior to May 31, 2001,
would likely result in violation the APA for failing to provide proper
notice and opportunity for comment prior to such action.
FRA is modifying the final rule definition of ``effective brake''
in response to a concern raised by the AAR in its petition. AAR
objected to the terminology used in defining what constitutes an
``effective brake.'' Specifically, AAR noted that the phrase ``a brake
that is capable of producing its required designed retarding force''
creates an unquantifiable and unidentifiable standard. AAR recommends
that this portion of the definition be eliminated and that FRA should
limit the definition to piston travel limits.
The terminology to which AAR objects was specifically added into
the final rule in response to concerns raised by the BRC in response to
the NPRM regarding the definitions of ``bind'' and ``foul'' proposed in
that document. See 66 FR 4146. In the preamble to the final rule, FRA
explained that the language being added to the definition of
``effective brake,'' regarding the ability of the brake to produce its
designed retarding force, was an attempt to clarify the definition to
address conditions that would render the brake ineffective yet would
not be considered a condition causing the brake system to bind or foul
as defined in the final rule. See 66 FR 4146. Rather than change the
definitions of ``bind'' or ``foul,'' FRA believed that additional
language could be added to the definition of ``effective brake'' to
cover those unique circumstances where, even though a condition may not
cause a brake to ``bind'' or ``foul,'' the condition would cause the
brake not to operate properly and, thus, affect the retarding force
applied by the brakes. FRA continues to believe that the language added
to the definition of ``effective brake'' accomplishes this task. While
FRA agrees that the language creates a standard that is somewhat
difficult to apply in the field with great precision, FRA believes that
the language is necessary to cover brake system or component problems
that affect the proper operation of the brakes on a car but are not
otherwise specifically identified by the regulation. The language is
adequately precise for this purpose because an observer can tell
whether the brake is applied in a way likely to exert substantially the
braking force for which it was designed. Effectively, this is a
``catch-all'' performance standard designed to reach any problem not
specifically called out in the rule that would prevent a brake from
working properly.
However, FRA is modifying the definition of ``effective brake'' in
order to further clarify the term and avoid misapplication of FRA's
intent. FRA is inserting the word ``nominally'' prior to the phrase
``designed retarding force'' in order to provide an allowance for any
degradation in a brake system's designed retarding force that results
due to normal wear and age. FRA's intent was not to consider retarding
force reductions that occur due to normal use of a brake system or
component. The definition is intended to capture those readily
identifiable brake system problems that are not specifically addressed
by other definitions contained in the final rule that result in a brake
system or brake component not producing the retarding force it is
designed to provide.
FRA is also modifying the definition of ``solid block of cars''
contained in Sec. 232.5 of the final rule. FRA is modifying this
definition in order to make it consistent with FRA's intent when
issuing the final rule. Based on concerns raised by AAR regarding the
inspection of solid blocks of car when added to a train, FRA realized
that the final rule's definition of the term ``solid block of cars''
creates confusion and could potentially result in a misapplication of
the final rule's inspection requirements. FRA agrees with the concerns
raised by AAR in its petition that a strict reading of the definition
may have resulted in entire trains being required to receive a Class I
brake test when certain types of solid blocks of cars are added. FRA's
intent was to permit the addition of a single solid block of cars
without requiring the entire train to be inspected and focus the
inspection requirements on the solid block of cars being added based on
the composition of the solid block of cars. See 66 FR 4148, 4168.
Therefore, the definition of ``solid block of cars'' is being
modified by removing the word ``consecutively'' from the definition.
This removes the potential misapplication of the definition to only
blocks of cars that have remained consecutively coupled together since
being removed from their previous train. FRA intends to make clear that
any block of cars which is coupled together and added as a single unit
to a train should be considered a ``solid block of cars.'' The
inspection requirements that attach to that solid block of cars will
depend on the composition of the solid block of cars. To further
clarify the attendant inspection requirements, FRA is also modifying
the inspection requirements contained in subpart C of the final rule to
directly address the inspection of a solid block of cars when added to
a train. These modifications are being
[[Page 17564]]
made to clarify FRA's intent to impose inspection requirements on the
specific solid block of cars when added to a train based on the solid
block of cars' make-up rather than imposing inspection requirements on
the entire train. See 66 FR 4148, 4168. It should be noted that FRA
intends for only a single solid block of cars to be added at any one
location without imposing an inspection requirement on the entire
train. See 66 FR 4168. The modifications being made to subpart C of the
final rule are discussed in detail in the section-by-section analysis
of those provisions contained below.
In its petition, BLE contends that FRA uses the term ``secondary
brake system'' in the final rule text, Sec. 232.15(d), but provides no
definition of the term in this section. FRA notes that Sec. 232.5 does
contain a definition of ``secondary brake.'' See 66 FR 4194. Although
FRA did not include a discussion of the definition in the preamble to
either the NPRM or the final rule, the definition is identical to the
definition of the same term used in the Passenger Equipment Safety
Standards contained in part 238. See 49 CFR 238.5, 64 FR 25661 (May 12,
1999). FRA believes that the preamble discussion of the term in the
final rule to part 238 is equally applicable to this final rule. See 64
FR 25577.
BLE's petition also seeks clarification of the final rule's
definition of ``rebuilt equipment,'' and suggests that FRA publish the
threshold amount for determining what constitutes a capital expense
each time it changes and identify the basis used to determine the
figure. FRA's definition of ``rebuilt equipment'' incorporates the
Surface Transportation Board's (STB) accounting standards, contained in
49 CFR part 1201, subpart A, Instruction 2-12, in determining the
capital expense threshold. See 66 FR 4195. The STB accounting standards
are adapted from generally accepted accounting principles. Under the
STB accounting standards a capital expense is determined by the
railroad according to generally accepted accounting principles. Two
provisions govern the railroad's determinations. First, if the expense
incurred substantially extends the useful life of the equipment beyond
the estimated service life, the equipment is classified as rebuilt.
Secondly, if the expense substantially increases the utility of the
equipment by making the equipment more useful, efficient, durable, or
have greater capacity, the equipment is classified as rebuilt. Thus,
the determination of what constitutes a capital expense is an
accounting function performed by the railroad based on the above
guiding principles. Therefore, there is no fixed threshold amount or
standard that can be quantified or published by FRA as the
determination is made on a case-by-case basis. Consequently, FRA denies
BLE's request to quantify and publish a threshold figure for
determining what constitutes a capital expense.
Section 232.15 Movement of Defective Equipment
Paragraph (b)(1) of this section is being amended in response to
AAR's petition for reconsideration regarding the tagging of defective
locomotives under this part. AAR contends that it is unnecessary to tag
the outside of a locomotive found to be defective pursuant to the
provisions of the final rule. AAR asserts that placing the defect tag
in the cab of the locomotive is sufficient and would be consistent with
the tagging requirements contained in part 229. AAR maintains that this
method of tagging defective locomotives has proven effective and that
there is no safety rationale for departing from this longstanding
practice.
FRA agrees with the position of AAR. When including the tagging
requirements related to the movement of defective equipment, FRA
intended the requirements to be similar to those contained in part 215
related the movement of equipment not in compliance with the Freight
Car Safety Standards and to be generally consistent with how most
railroads currently handle equipment found with defective brakes. See
66 FR 4151. As the requirements contained in Part 215 do not address
locomotives and because most railroad place defect tags in the cab of a
locomotive rather than the outside of the locomotives, it is consistent
with FRA's original intent to permit defect tags on locomotives to be
displayed in the cab of a locomotive. FRA agrees that the placing of
such tags has worked well for a number of years in the context of
tagging defective locomotives under part 229. Consequently, FRA is
amending paragraph (b)(1) of this section to clarify that the required
defect tags may be displayed in the cab of a locomotive rather than on
opposing sides as required by a strict reading of the final rule.
In its petition, the AAR also objects to the requirement contained
in paragraph (b)(5) of this section that FRA approve any automated
tracking system designed to be used in lieu of physically tagging
defective equipment. See 66 FR 4197. AAR contends that the requirement
for FRA's approval of any automated tracking systems is inconsistent
with both the Government Paperwork Elimination Act (GPEA) and the
guidance issued by the Office of Management and Budget (OMB) regarding
the implementation of GPEA. See Public Law 105-277 (October 21, 1998)
and OMB Memorandum M-00-10 (April 25, 2000). AAR claims that paragraph
(b)(5) should be eliminated as it demonstrates that FRA is disfavoring
electronic recordkeeping by requiring a special approval procedure for
electronic recordkeeping when none is required for paper records.
FRA strongly disagrees with AAR's interpretation of GPEA and the
OMB guidance related to the implementation of GPEA. Section
232.15(b)(1) and (b)(5) of the final rule requires that any automated
tracking system used in lieu of directly tagging equipment be approved
by FRA and that such a system must be capable of being reviewed by and
monitored by FRA at any time to ensure the integrity of the system. See
66 FR 4197. The preamble to the final rule makes clear that FRA's
approval is necessary because an adequate automated system for tracking
defective equipment does not currently exist on most railroads and FRA
does not believe it is prudent, from a safety perspective, to allow
implementation of a tracking system which FRA would not have a prior
opportunity to assess and thereby ensure the system's accessibility,
security, and accuracy. See 66 FR 4151. FRA does not disfavor or
discriminate against electronic records; in fact, FRA has strongly
encouraged the use of electronic recordkeeping for years. The final
rule provides railroads the option of using either tags or an automated
system to maintain and track the necessary information regarding the
movement of defective equipment. If railroads decide to use tags, then
there is no need for an automated recordkeeping system and, therefore,
no need to obtain FRA approval of an automated system. If railroads
elect to use some type of automated tracking system, then FRA approval
of the system is required. FRA sets standards for information provided
to the agency, whether on paper or electronically. In all of its
information collections, FRA spells out the particular information
railroads must provide and maintain (either on paper or
electronically).
Contrary to the assertions expressed in AAR's petition, the
requirement for FRA approval of an automated tracking system does not
violate either GPEA or the related OMB guidance. OMB's guidance related
to the implementation of GPEA readily acknowledges the need for
standards and procedures concerning the use of electronic
recordkeeping. Part I, Section 1 of that
[[Page 17565]]
guidance describes the policies agencies should follow when
implementing GPEA. See OMB Memorandum M-00-10 (April 25, 2000). This
portion of OMB's guidance states:
Sections 1703 and 1705 of GPEA charge the Office of Management
and Budget (OMB) with developing procedures for Executive agencies
to follow in using and accepting electronic documents and
signatures, including records required to be maintained under
Federal programs and information that employers are required to
store and file with Federal agencies about their employees.
FRA must conform to OMB's guidance and implicitly so too must
railroads. FRA must also conform to Department of Justice guidelines
regarding legal sufficiency of electronic documents and electronic
signatures and, again, implicitly so too must railroads. Moreover,
OMB's guidance clearly envisions agency approval of automated or
electronic recordkeeping systems. Part I, Section 2 of OMB's guidance
states:
GPEA recognizes that building and deploying electronic systems
to complement and replace paper-based systems should be consistent
with the need to ensure that investments in information technology
are economically prudent to accomplish the agency's mission, protect
privacy, and ensure the security of the data * * * Accordingly,
agencies should develop and implement plans, supported by an
assessment of whether to use and accept documents in electronic form
and to engage in electronic transactions.
Part II, Section 1 of OMB's guidance adds the following:
The guidance builds on the requirements and scope of the
Paperwork Reduction Act of 1995 (PRA). According to the PRA,
agencies must, ``consistent with the Computer Security Act of 1987
(CSA) (40 U.S.C. 759 note), identify and afford security protections
commensurate with the risk and magnitude of the harm resulting from
the loss, misuse, or unauthorized access to or modification of
information collected by or on behalf of an agency.'' 44 U.S.C.
3506(g)(3) * * * As GPEA, PRA, CSA, and the Privacy Act recognize,
the goal of information security is to protect the integrity, and
confidentiality of electronic records * * *
Consequently, OMB's guidance clearly intends for agencies to consider
the security, accessibility, and accuracy of any electronic or
automated recordkeeping system prior to permitting such a system to be
used in lieu of traditional paperwork. The preamble to the final rule
makes clear that the intent of FRA's review and approval of any
implemented automated tracking system is to ensure the system's
accessibility, reliability, security, and accuracy. See 66 FR 4151.
This type of review and approval was clearly contemplated by both the
GPEA and OMB's implementing guidance. FRA approval of the automated
tracking system serves to protect both the agency's interests and the
interests of the railroad industry by ensuring that the automated
tracking system will safely and properly perform all the functions of a
traditional paper-based tagging system.
FRA stresses that it is neither suspicious of nor hostile to the
use of electronic recordkeeping by railroads, and attributes no bad
motives to railroads when requiring prior agency approval of an
automated tracking system related to the movement and handling of
defective equipment. It should also be noted that FRA envisioned the
same type of automated tracking system that AAR alludes to in its
petition for reconsideration, namely a combination of an industry-wide
tracking program and individual railroad programs. Since AAR states
there are no current plans for such a system, FRA may have been a bit
premature in discussing such a system in the preamble to the final
rule. However, FRA continues to believe its concerns regarding the use
of an automated tracking system are reasonable, are consistent with the
GPEA and OMB implementation guidance, and will need to be addressed
whenever railroads seek agency approval of automated tracking or
electronic recordkeeping systems.
Paragraph (g) of this section is being amended in response to AAR's
petition asserting that there is no rational basis for FRA to require
that a railroad and its employee representatives must submit a joint
proposal listing the locations where brake system repairs will be
conducted in order for FRA to consider any such proposal. Paragraph (g)
was intended to provide railroads with a method by which they could
designate locations where various brake system repairs will be
conducted. The final rule requirement was written to make clear that
FRA would not consider a proposal containing a plan which designates
locations where brake system repairs will be conducted unless a
railroad and the representatives of its employees submit the proposal
jointly. See 66 FR 4153, 4197-98. AAR states that it does not object to
FRA review and approval of any submitted listing but believes that it
would be extremely difficult for a railroad and its employees to reach
agreement on the locations that should be included on any such list.
AAR also states that railroads would prefer to have a known listing of
locations that will make brake system repairs in order to avoid any
confusion among the various parties.
FRA agrees with the recommendation made by AAR in its petition that
FRA should not be foreclosed from considering a list of locations where
brake system repairs will be effectuated simply because a railroad and
its employees cannot agree on the content of such a listing. FRA agrees
that a listing of locations where brake system repairs will be
conducted would improve FRA's enforcement activities as well as
ensuring that prompt and safe repairs are made to defective equipment.
However, FRA continues to believe that a railroad's employees and other
interested parties must be provided an opportunity to review and
comment on any proposed listing of locations that will be considered
capable of making brake system repairs prior to FRA's approval of such
a listing. Therefore, FRA is amending paragraph (g) of this section to
require that proposals regarding the designation of locations where
brake system repairs will be performed must be submitted pursuant to
the special approval procedures contained in Sec. 232.17 of the final
rule. This paragraph makes clear that such proposals would have to be
consistent with the guidelines contained in paragraph (f) of this
section and that such plans would have to be approved by FRA pursuant
to the procedures contained Sec. 232.17 prior to being implemented. FRA
believes that the special approval procedures contained in Sec. 232.17
ensure that a railroad's employees and other interested parties are
provided an opportunity to review and comment on any proposed listing
prior to FRA determining whether or not to approve the proposal. FRA
believes this approach is consistent with the intent of the final rule
and ensures that FRA will be informed as to any objections that may be
raised by a railroad's employees or their representatives on any
submitted listing. It should be noted that conforming changes are being
made to the special approval procedures contained in Sec. 232.17 to
include language addressing the submission of these types of proposals.
Section 232.17 Special Approval Procedure
As just discussed, the procedures contained this section are being
modified to incorporate language regarding the special approval of
plans designating locations where brake system repairs will be
conducted pursuant to Sec. 232.15(g). The modifications being made are
merely intended to clarify that the procedures
[[Page 17566]]
detailed in this section apply to the review and approval of listings
submitted pursuant to Sec. 232.15(g). Consequently, the provisions
contained in paragraphs (a), (b), (d), and (g) of this section have
been amended to include a reference to Sec. 232.15(g).
In its petition, BLE recommends that the 30-day comment period
provided for in paragraph (f) of the special approval procedures be
extended to at least 45 days. Other than the recommendation, BLE
provides no discussion or rationale for seeking an extension of the
comment period. FRA continues to believe that it is not necessary to
further lengthen the comment period provided in the final rule. FRA
thinks that the procedures provide an adequate opportunity for
interested parties to comment. Furthermore, if the procedures for these
special approvals are made overly burdensome, then the speed intended
to be gained through the process would be lost. Moreover, paragraph
(b)(4) of the procedures requires that any party seeking a special
approval must serve a copy of its petition on designated
representatives of its employees at the time the party submits the
petition to FRA. See 66 FR 4198. Thus, the representatives of a
railroad's employees would be served a copy of any petition submitted
pursuant to the special approval process well before the petition is
actually published in the Federal Register under paragraph (e) of this
section. Therefore, the representatives of the petitioning railroad's
employees would likely have more than the provided 30 days to review
any petition directly affecting employees they represent. In addition,
it would serve the petitioning party's interest to ensure that all
known interested parties are provided detailed information on any
submitted process to ensure timely and complete consideration of any
submitted petition. Consequently, based on the above discussion, FRA is
denying BLE's request to extend the special-approval comment period to
45 days.
Subpart B--General Requirements
Section 232.103 General Requirements for All Train Brake Systems
Paragraph (n) of this section is being modified in response to
concerns raised in both AAR's and BLE's petitions regarding the final
rule requirements related to the securement of unattended equipment.
AAR recommends that the provision contained in paragraph (n)(2) of this
section, requiring the initiation of an emergency application of the
air brakes prior to leaving equipment unattended, be deleted. AAR
contends that the requirement to initiate an emergency application of
the brakes might result in train crews disregarding the requirement to
ensure that a sufficient number of hand brakes are set to hold the
equipment. AAR also asserts that if an emergency application is
required, then equipment will have to be retested if off air for more
than four hours.
While FRA does not fully agree with the concerns raised by AAR in
its petition, FRA is amending paragraph (n)(2) to clarify the
application of the requirement and to lessen the burdens imposed by
requiring the initiation of an emergency brake application. The intent
of the final rule provision was to address the dangerous practice known
as ``bottling the air'' in a standing cut of cars, an issue related to
improperly secured rail equipment. See 66 FR 4156-57. The practice of
``bottling the air'' occurs when a train crew sets out cars from a
train with the air brakes applied and the angle cocks on both ends of
the train closed, thus trapping the existing compressed air and
conserving the brake pipe pressure in the cut of cars the crew intends
to leave behind. The preamble to the final rule provides a detailed
discussion of the hazards associated with this practice which has the
potential of causing, first, an unintentional release of the brakes on
these cars and, ultimately, a runaway. See 66 FR 4156-57. This issue
was the focus of a National Transportation Safety Board (NTSB)
recommendation issued in 1998 and discussed in detail in the preamble
to the final rule. See NTSB Recommendation R-98-17, 66 FR 4157.
Although FRA continues to believe this practice needs to be addressed,
FRA believes that the final rule requirement to conduct an emergency
application of the brakes when leaving equipment unattended is overly
stringent and would likely result in unintended delays when recharging
equipment. FRA also realizes that the application of the final rule
requirement needs to be clarified to avoid any misinterpretation of the
requirement and to remain consistent with the existing and long-
standing operating procedures of many railroads when leaving equipment
unattended.
FRA is modifying paragraph (n)(2) to require that the brake pipe on
equipment being left unattended be depleted to zero at a rate that is
no less than a service rate reduction. This approach is more consistent
with the current operating rules of many railroads. Furthermore,
permitting the brake pipe to be depleted at a service rate reduction
serves all the purposes of making an emergency application of the
brakes (i.e., prevents the bottling of air in the brake system) but
does not result in the emergency reservoir being depleted of air. This
change will reduce the amount of time necessary to recharge the brake
system on equipment left unattended and, thus, prevent any unnecessary
train delay. It should be noted that this modification does not
prohibit a railroad from requiring the initiation of an emergency brake
application on equipment that is left unattended, but merely provides
the option of depleting the brake pipe to zero by a different means.
FRA is also modifying paragraph (n)(2) to clarify that the
requirement only applies to freight and other non-powered cars when
detached from a source of compressed air. FRA realizes that the
language of the final rule could be interpreted to apply to any
equipment left unattended. FRA's intent was to end the practice of
``bottling of air'' on freight equipment that was disconnected from a
source of compressed air. See 63 FR 48331-32, 66 FR 4156-57. FRA did
not intend to stop the long-standing industry practice of leaving
equipment connected to a source of compressed air either while en route
or after the testing of equipment. Furthermore, this approach is
consistent with NTSB's recommendation, which suggested that the brake
pipe be depleted to zero on standing equipment that is detached from a
locomotive. See NTSB Recommendation R-98-17, 66 FR 4157. The
requirement to set a sufficient number of hand brakes to hold
unattended equipment contained in paragraph (n)(1) of this section is
intended to address the securement of equipment left connected to a
source of compressed air.
It should be noted that AAR's concern regarding the need to retest
unattended equipment that is left off-air for more than four hours is
somewhat misplaced in the context of the clarified requirements
contained in this section. Pursuant to the final rule's definition of
``off-air,'' any equipment not connected to a continuous source of
compressed air of at least 60 pounds per square inch (psi) is
considered ``off-air.'' See 66 FR 4194. Consequently, any time a source
of compressed air of at least 60 psi is removed from a block of cars,
that block of cars is considered to be ``off-air'' regardless of
whether air has been bottled in the system and, thus, the type of brake
application made when the cars are left unattended is irrelevant.
Paragraph (n)(3) of the final rule is also being amended in
response to a concern raised by the AAR in its petition requesting
clarification of FRA's intent to apply the requirements
[[Page 17567]]
contained in this paragraph regarding the securement of unattended
locomotives and locomotive consists to distributed power locomotive
units. AAR contends that the language of the provision is confusing and
could be read to apply to distributed power units in a train. The
preamble to the final rule makes clear that it was not FRA's intent to
apply the securement requirements related to locomotives to distributed
power locomotives. See 66 FR 4157. Consequently, FRA is modifying the
introductory language of paragraph (n)(3) to specifically clarify that
the provisions contained in this paragraph do not apply to distributed
power locomotives.
Paragraph (n)(3) of this section is also being amended in response
to concerns raised in BLE's petition regarding the securement of
locomotives not equipped with a hand brake. BLE notes that although the
final rule contains specific requirements for setting hand brakes on
unattended locomotives, the final rule is silent on securing
locomotives not so equipped. Although FRA believes that virtually all
railroads have procedures in place for securing locomotives that are
not equipped with hand brakes, FRA agrees that the final rule does not
specifically address the securement of such locomotives. However, FRA
believes that the requirements of paragraph (n) implicitly require a
railroad to adopt procedures for securing locomotives that are not
equipped with hand brakes. Paragraph (n)(4) of the final rule requires
that procedures be adopted and complied with to verify that the
handbrakes sufficiently hold an unattended locomotive consist. Thus,
the requirement implicitly requires that procedures be in place to
address situations where the hand brakes are not sufficient to hold the
locomotives, such as when the locomotives are not equipped with a hand
brake. See 66 FR 4199. Therefore, in order to clarify this intent, FRA
is adding a paragraph (n)(3)(iv) which specifically requires railroads
to adopt and comply with procedures for securing unattended locomotives
not equipped with hand brakes. As noted above, FRA believes this
modification is merely a further clarification of the requirement
contained in paragraph (n)(4) of this section and does not impose any
additional burden on the industry.
Paragraph (o) of this section of the final rule is being amended in
response to a concern raised in NYAB's petition regarding the required
air pressure for the self-lapping portion for the independent air brake
on freight locomotives. NYAB contends that all of the locomotive brake
systems it supplies to Class I railroads have the self-lapping portion
for the independent brake preset to 45 psi, and NYAB recommends that a
pressure of 30 to 50 psi for this valve should be the required setting.
NYAB notes that this was the pressure previously provided for in part
232 prior to the issuance of the final rule. FRA does not dispute
NYAB's contention, the pressure range for this valve was changed in the
final rule based on comments received by the AAR in response to the
NPRM. See 66 FR 4158. A review of AAR's comments on the NPRM reveals
that AAR provided no rationale for requesting the change to ``30 psi or
less,'' and FRA believes AAR may have erred in its recommendation.
FRA's intent when issuing the pressure table in this paragraph was to
capture the current regulating valve pressures utilized by the
industry. Consequently, FRA is modifying the table of pressures
contained in this paragraph to reflect NYAB's suggestion that the air
pressure for the self-lapping portion of the independent brake on a
locomotive be 30 to 50 psi, the pressure required by part 232 as it
existed prior to May 31, 2001.
Paragraph (p) of this section is being removed in response to
concerns raised by AAR in its petition and based upon FRA's
determination that the paragraph is unnecessary and duplicative.
Paragraph (p) of this section is basically a reiteration of the
language contained in Sec. 232.11(a) as it existed prior to May 31,
2001, which addressed the joint responsibility of supervisors and
inspectors to ensure the proper condition and functioning of train
brake systems. See 66 FR 4158. Although the provision has existed in
part 232 for decades, there has never been a civil penalty directly
associated with the provision, and FRA has never pursued a violation
under the provision. In FRA's view, the provision merely served to
inform supervisors that they were jointly responsible for ensuring the
proper condition of the brake system. With the advent of individual
liability in 1992, FRA believes that the provision provides notice to
supervisors that they may be held individually liable, from a civil
penalty perspective, for permitting or requiring improper inspection
practices or other practices not consistent with the regulatory and
statutory requirements to be engaged in by employees they supervise.
See the Rail Safety Enforcement and Review Act, Public Law 102-365
(Sept. 3, 1992). As the potential for individual liability is
specifically identified and discussed in Sec. 232.11 of the final rule
and the associated preamble analysis, FRA believes that there is no
need to include paragraph (p) in this section. See 66 FR 4149-50, 4196.
FRA is denying AAR's request for reconsideration of the final
rule's provision contained in paragraph (g) of this section requiring
cars equipped with other than 12-inch stroke brake cylinders to display
the permissible brake cylinder piston travel range on the car in the
form of either a decal, sticker, stencil, or on the car's badge plate.
The final rule requires that such cars be so marked by April 1, 2004.
See 66 FR 4199. AAR recommends that FRA extend the date by which to
comply with this requirement to five years. AAR contends that a five-
year compliance date would permit the required stencil, sticker, or
decal to be applied during a car's scheduled periodic single car test
and, thus, reduce the economic impact of the requirement. AAR contends
that an April 1, 2004, compliance date would cost the industry
approximately $6 million more than estimated by FRA in the Regulatory
Impact Analysis of the final rule.
The merits of AAR's contentions regarding the economic impact of
this requirement were previously discussed in detail in the portion of
the preamble addressing AAR's economic concerns related to the final
rule. In that discussion, FRA states that the time permitted in the
final rule is sufficient for the railroads to comply with the
requirement and does not impose the economic burdens claimed by AAR in
its petition. On average, rail cars are placed on a fixed repair track
or a sidetrack where repairs are conducted approximately once every
one-and-one-half years. The task of applying a sticker, decal, or
stencil takes only few minute to accomplish, and FRA has allowed
numerous ways for railroads to comply with the requirement. As a matter
of fundamental sound economics, good business practice, and effective
utilization of employee time and company resources, FRA assumes the
railroads will use the most cost-effective option (i.e., applying
stickers or decals to the rail cars while performing other functions
rather than taking it out-of-service unnecessarily) when placing piston
travel information on rail cars. The most reasonable approach in
complying with the requirement is to apply the sticker, stencil, or
decal when an inspection or repair is being conducted on the rail car.
Furthermore, FRA continues to believe that the information provided by
these decals, stickers, or stencils is necessary to ensure that proper
inspections are conducted and that the information
[[Page 17568]]
should be available at the time that the final rule inspection
requirements become applicable. See 66 FR 4155. Moreover, as the final
rule indicated, a large number of cars are already properly marked with
the necessary information. See 66 FR 4155. Consequently, FRA continues
to believe that the final rule provides more than a sufficient amount
of time to comply with this requirement without imposing the economic
hardships alleged by AAR in its petition.
Section 232.107 Air Source Requirements and Cold Weather Operations
No changes are being made to the final rule requirements contained
in this section. FRA is denying the recommendation to require air
dryers on new locomotives raised by BLE in its petition. BLE again
reasserts its belief that air dryers should be required on all new
locomotives in order to remove moisture introduced into the train line
by yard air systems. BLE believes that the cost of requiring air dryers
on new locomotives would be minimal when compared to the problems
associated with frozen train lines.
The preamble to the final rule provides a detailed discussion
regarding the use of air dryers on both locomotive and yard air
sources. See 66 FR 4137-38. The preamble to the final rule also notes
that based on information gathered throughout the RSAC process,
previous comments by industry parties, agency experience, and after
detailed instrumented testing, FRA determined that locomotives rarely
contribute to moisture in the train line. Consequently, FRA did not
require that air dryers be installed on new locomotives in either the
NPRM or the final rule. The preamble to the NPRM contains a detailed
discussion of the testing conducted by the RSAC Working Group members
and recommendations regarding air dryers. See 63 FR 48317-19. FRA
continues to believe that simply requiring air dryers on locomotives or
yard air sources does not solve the problem of introducing moisture
into train lines and that such devices do not provide a suitable or
cost effective solution to the problem in freight service.
FRA is also denying BLE's recommendation that FRA publish a list of
chemicals that could be used in train lines consistent with the
prohibition contained in paragraph (c) of this section. Paragraph (c)
prohibits the introduction of chemicals which are known to degrade or
harm brake system components into a train air brake system. FRA's
primary focus when issuing the final rule was to eliminate the use of
alcohol and other similar substances in train air brake systems as
these substances are widely known to degrade brake system components.
See 66 FR 4138, 4160-61. FRA does not possess either the personnel or
financial resources to assess every chemical currently on the market to
determine the detrimental effects it may have on brake system
components. FRA believes its resources would be better spent monitoring
the development and use of new products as they gain acceptance in the
industry. Moreover, as one of the major purposes of the final rule is
to encourage the development and use of new technologies, FRA believes
that any attempt to develop a listing of approved chemicals without
conducting complete and thorough analysis could potentially stifle
innovation and research into safe and useful products.
Section 232.109 Dynamic Brake Requirements
Paragraph (a) of this section is being modified in response to
concerns raised by AAR in its petition. AAR raised a concern regarding
this paragraph's inclusion of the term ``point of origin'' as one of
the locations where a locomotive engineer is to be informed of the
operational status of the dynamic brakes on the locomotives in the
train. AAR notes that the final rule contains no definition of the term
``point of origin'' and recommends that the language be removed. FRA
agrees with the concern raised by AAR. The term ``point of origin'' was
originally contained in the definitions included in the NPRM. See 63 FR
48356. However, when issuing the final rule FRA said it intended to
remove the term from the rule wherever it appeared because the proposed
definition of the term was duplicative of the term ``initial terminal''
and merely created potential misunderstandings. See 66 FR 4167. FRA
also noted that the problems intended to be addressed by the use of the
term ``point of origin'' were sufficiently addressed by the various
inspections required in this final rule when cars are added to a train.
See 66 FR 4167. Therefore, FRA clearly intended to remove this term
from the final rule, but inadvertently failed to remove it from this
paragraph. Consequently, FRA is modifying this paragraph by removing
the term ``point of origin.''
AAR also raises concerns related to the information required by
this paragraph to be provided to the locomotive engineer regarding the
operational status of the dynamic brakes on the locomotives in the
train. AAR seeks clarification as to whether the provision requires
some type of testing at each location where the locomotive engineer is
to be provided such information. FRA did not intend for railroads to
conduct specialized testing of the dynamic brakes in order to fulfill
this requirement. FRA intended for the locomotive engineer to be
informed of any known inoperative or deactivated dynamic brakes in the
train consist at the time he or she first begins operation of the
train. This information may be gleaned either from the previous crew's
operating experience, railroad records, on-board monitors, or other
testing of the dynamic brake system performed at the railroad's option.
However, FRA stresses that the intent of the requirement was to ensure
that an engineer is apprized of any known inoperative dynamic brakes
prior to beginning operation of a train. FRA continues to believe that
by providing an engineer with as much information as possible on the
status of the dynamic brakes on a train, a railroad better enables that
engineer to operate the train in the safest and most efficient manner.
Paragraphs (g) and (h) of this section, which contain requirements
for dynamic brake indicators and testing the electrical integrity of
the dynamic brake system on new and rebuilt locomotives, are being
modified in response to issues raised in AAR's petition for
reconsideration. In its petition, AAR contends that a device capable of
displaying total train dynamic brake retarding force at various speed
increments does not currently exist and cannot be developed by August
1, 2002, as required by the final rule. As part of its petition, AAR
included letters from two locomotive manufacturers, both of which
indicated that the dynamic brake indicator required by the final rule
would be very difficult, if not impossible, to develop and implement
within the time frame allotted by the final rule. Both manufacturers as
well as AAR cite interoperability as the fundamental problem with
developing the device. That is, industry-wide standards need to be
developed to ensure that devices made by different manufacturers are
able to communicate with each other. AAR also seeks clarification of
the final rule's requirement regarding whether the device is to provide
a theoretical retarding force or the actual retarding force being
produced by the dynamic brakes at any given time.
AAR further recommends elimination of the requirement for a dynamic
brake indicator and suggests that railroads should be permitted to use
[[Page 17569]]
accelerometers in lieu of the dynamic brake indicator. An
``accelerometer'' or ``predictor'' is a device currently used in the
industry that indicates the predicted speed in miles per hour of the
locomotive 60 seconds from the present, based on the computed
acceleration or deceleration rate of the train. AAR contends that
accelerometers are vastly superior to dynamic brake indicators as they
provide information to the locomotive engineer on the performance of
all the brakes in his train and how well they are performing together.
AAR also maintains that accelerometers are proven, existing technology
and that many locomotive in the nation's fleet are already equipped
with such devices.
FRA does not dispute the potential safety benefits derived from the
use of an accelerometer. FRA also agrees that an accelerometer does
provide a locomotive engineer with some information regarding the
operation of a train's brake system. However, FRA continues to believe
that locomotive engineers should have direct information regarding the
operation and effectiveness of the dynamic brakes on the train they are
operating. While an accelerometer would provide some information on the
effectiveness of the entire brake system, it would not give any
specific information regarding the effectiveness of the dynamic brakes
on any single locomotive unit in the train or the retarding force being
applied by the dynamic brakes as a whole. FRA believes that such direct
information is essential for ensuring that locomotive engineers are
provided as much information as possible regarding the braking system
that they are encouraged to use and on which they rely to control a
train's speed generally and especially on heavy grades. Consequently,
FRA does not believe that accelerometers or ``predictors'' are an
adequate substitute for a dynamic brake indicator which provides direct
information on the effectiveness of the dynamic brakes on the
locomotives in a train. With this said, FRA would encourage railroads
to utilize the technologies available in both the accelerometer and a
dynamic brake indicator because a combination of the information
provided by the two devices unquestionably provides a locomotive
engineer with a wealth of knowledge regarding the operation and
effectiveness of the brakes on the train he or she is operating.
Although FRA believes that a dynamic brake indicator is necessary
and desirable, FRA recognizes the difficulties in developing and
introducing a relatively new technology. FRA is also not unmindful of
the needs of the industry to develop standards to ensure that any
developed device serves the purposes of the industry and addresses all
interoperability concerns. Neither manufacturer indicated an inability
to develop the device suggested by the final rule, just that the time
frame contained in the final rule was insufficient for addressing
outstanding design and interoperability issues. Moreover, FRA continues
to believe that the technology exists for developing a device similar
to that required by the final rule. Consequently, FRA will continue to
require that new locomotives be equipped with a dynamic brake indicator
similar to that described in the final rule, with slight modification
to address other issues raised by AAR.
Based on the above, FRA is amending paragraph (g) to extend the
time period by which new locomotives are to be equipped with the
required dynamic brake indicator. FRA believes that an additional three
years is more than adequate to permit the industry to develop
appropriate design and interoperability standards and would allow for
testing and verification of any hardware and associated software. Based
on consultations with FRA's Office of Railroad Development, FRA
believes that adding three years to the compliance date will provide
the industry more than a sufficient amount of time to develop and test
the device. Under the extension being provided by this response, the
industry will be allotted approximately five years to develop and test
the required device. FRA is providing this five-year window with the
intention that three years would be needed by the industry to develop
appropriate industry standards and to develop the necessary hardware
and software. An additional two years is then allotted for the testing
and verification of any developed technology. FRA also notes that the
period of three additional years being provided by this modification
extends the compliance date for the devices beyond the year 2005 which
is the anticipated effective date of the Environmental Protection
Agency's (EPA) new locomotive emissions requirements, which will likely
result in a significant redesign of new locomotives. Thus, the dynamic
brake indicators can be easily incorporated into any new design
standards that result from EPA's regulatory activities, minimizing the
cost of adding the instruments.
FRA notes that railroads will have at least two options for
implementing the requirement for dynamic brake indicators in multiple-
unit locomotive consists. The first option would be ``hard wire''
transmission of data over ``MU cables.'' In this case, the benefit of
the rule would likely be realized only with respect to the lead unit,
if equipped, and units consecutively coupled to it. The second option
would be use of telemetry (data radio), in which case data from any
number of equipped units could be provided to the engineer in an
equipped lead unit, even if a non-equipped unit was placed in the
middle of the locomotive consist. The same telemetry link used to
control distributed power units (placed in the middle or rear of a
train) could be employed to provide dynamic braking status information
to an equipped lead locomotive, as well. FRA does not prescribe how
this system is to be implemented, but does note that the benefits of
the rule will be realized more quickly if telemetry is employed.
However, given the prevalence of shared power arrangements in the
railroad industry, it will be imperative that the Association of
American Railroads, in consultation with its North American partners,
provide interoperability standards for use by the locomotive
manufacturers and supply community. The time provided for
implementation under this rule is intended to facilitate the
development and implementation of those standards.
Paragraphs (g) and (h) are also being modified to clarify the
information that is to be provided by the required dynamic brake
indicator. In order to ensure the timely development of the required
devices and to address potential safety hazards, FRA is modifying the
design requirements to make clear that the device is required to
provide only a real-time display of the actual total train dynamic
brake retarding force. FRA agrees with the concerns raised by AAR in
its petition that the final rule language, requiring that the new
locomotives be designed to display the total train dynamic brake
retarding force at various speed increments, and the attendant preamble
discussion are somewhat ambiguous as to what information is to be
displayed in the cab of the controlling locomotive. See 66 FR 4163,
4200-01. Therefore, FRA is clarifying the language in these paragraphs
to avoid any potential misunderstanding regarding the predictive nature
of the dynamic brake indicator. FRA agrees that the technology may not
be available to accurately provide a predictive assessment of the total
train dynamic brake retarding force and, more important, the usefulness
of such information is likely outweighed by the potential safety
hazards. FRA believes
[[Page 17570]]
that requiring predictive information on the status of dynamic brake
retarding force might result in a locomotive engineer mishandling a
train due to over-reliance on the predictive information being provided
because dynamic brakes can fail at any time and thus, the predictive
information may be not be an accurate representation of the dynamic
brake performance at that future time.
Paragraphs (g) and (h) are also being modified to clarify FRA's
intent with regard to testing the electrical integrity of the dynamic
brake at rest. In its petition, AAR recommended elimination of the
electrical integrity test as it was unclear what FRA was expecting to
be tested while a locomotive was at rest. AAR indicated that there is a
series of three tests that could be performed to test the electrical
integrity of the dynamic brake system all of which would require
specialized personnel and equipment to perform. AAR further contends
that none of the at-rest tests could predict with any certainty whether
the dynamic brakes would actually function when engaged. In order to
clarify the intent of the final rule's requirement, FRA is amending the
language in these paragraphs to specifically describe that the
electrical continuity test is to determine that electrical current is
being received at the grids on the dynamic brake system. FRA believes
this would involve a fairly simple check of the electrical continuity
and would not require specialized training. Furthermore, FRA believes
that the technology for conducting this test either already exists or
can be easily developed and implemented over the next five years.
Although FRA agrees that this electrical test will not predict with any
certainty the functioning of the dynamic brakes when engaged, FRA
believes it does provide some information to the engineer regarding the
potential for the dynamic brake to function prior to the locomotive
engineer's actual operation of the train. Furthermore, this requirement
is consistent with the final rule's intent that by providing an
engineer with as much information as possible on the status of the
dynamic brakes on a train, a railroad better enables that engineer to
operate the train in the safest and most efficient manner. See 66 FR
4161.
Paragraph (j)(2) of this section is also being modified in response
to AAR's petition seeking clarification of the applicability of the
requirement contained in this paragraph. Paragraph (j)(2) requires that
the operating rules developed by railroads under this section include a
``miles-per-hour-overspeed-stop'' requirement that requires trains to
be immediately stopped if they exceed the maximum authorized speed by
more than 5 mph when descending grades of one percent or greater. See
66 FR 4201. The preamble to the final rule made clear that this
requirement was developed in response to an NTSB recommendation and
because FRA believed the provision accomplished a critical safety
function by reducing the potential for runaways. It does so by
establishing a clear rule for stopping a train when descending a grade
and removes any discretion from the operator to continue operation of a
train. See 66 FR 4164. AAR recommends that the requirement only be
applied to trains descending grades averaging two percent for two
continuous miles, similar to the two-way EOT requirement's definition
of heavy grade. AAR contends that the one percent grade threshold is
too low and that most railroads do not consider grades of less than two
percent to be heavy grades.
Contrary to the implications made by AAR, the requirement in this
paragraph was not intended to apply only to trains descending ``heavy
grades'' as defined by most railroads. The requirement was intended to
apply to any train descending a grade with a potential for causing a
runaway condition. See 66 FR 4164. Furthermore, most Class I railroads
that have already incorporated a ``miles-per-hour-overspeed-stop''
provision in their operating rules apply the requirement to trains
descending grades of much less than two percent. However, FRA does
agree that a mileage parameter needs to accompany the grade threshold
in order for railroads to determine which segments of track are to be
governed by the required operating procedure. As the regulations
related to two-way EOT devices have identified those types of grades
that FRA believes have the greatest potential for being involved in a
runaway condition, FRA believes that the distance parameter contained
in those requirements would be equally applicable in this context.
Therefore, paragraph (j)(2) is being modified to clarify that
railroads, at a minimum, apply the ``overspeed-stop rule'' contained in
this paragraph to any train operating over a segment of track with an
average grade of one percent or greater for three continuous miles.
Furthermore, as railroads should have already identified the existence
of such locations on their railroad for purposes of complying with the
two-way EOT device regulations, this requirement should pose little or
no burden on the industry. Moreover, the final rule permits railroads
to increase the five-mph-overspeed limitation with FRA approval. Thus,
if railroads are able produce validated research to show a higher speed
threshold on grades less than two percent is appropriate, then FRA
would be willing to consider the information. However, AAR's petition
for reconsideration alludes to no such validated research.
Consequently, FRA denies AAR's request to increase the applicable grade
limitation contained in this paragraph of the final rule to cover only
two percent grades.
BLE's petition sought reconsideration of two provisions contained
in this section. BLE recommends that FRA extend the final rule's time
period for retaining records of dynamic brake repairs from the 92 days
required in paragraph (d) of this section to one year. BLE suggests
that this would allow FRA to determine whether a particular locomotive
or locomotive series is having reoccurring problems related to dynamic
brakes. While FRA believes the stated purpose to be valid, FRA does not
agree that a one-year repair record retention period is the necessary.
FRA believes that the 92-day retention period required by the final
rule provides FRA sufficient time to obtain relevant repair information
to address any reoccurring problems. Moreover, the 92-day repair record
retention period contained in this paragraph is consistent with other
repair and inspection record retention periods contained in both the
final rule and other federal railroad safety regulations. See 66 FR
4197, 4207; 49 CFR 215.9(b)(2) and 229.21(a). Consequently, FRA is
denying BLE's request to extend the repair record retention contained
in this paragraph.
BLE also seeks FRA's reconsideration of its determination to permit
a locomotive with inoperative or deactivated dynamic brakes to be used
as a controlling locomotive in heavy grade territory. BLE provides
little, if any, rationale for requesting this prohibition other than
citing general concerns with controlling a train on a heavy grade, all
of which exist whether or not the controlling locomotive has operative
dynamic brakes. The final rule requires 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 such locomotives
to have the capability of displaying to the locomotive engineer the
deceleration rate of the train or the total train dynamic brake
retarding force. FRA continues to believe these provisions will ensure
that locomotive engineers are able to operate the available dynamic
brakes on the train
[[Page 17571]]
and will have the best information it is currently feasible to provide
as to the operation of the dynamic brakes on the locomotives in the
train consist they are controlling. Consequently, FRA is denying BLE's
request to modify the final rule requirements related to using
locomotives with inoperative or deactivated dynamic brakes as a
controlling locomotive.
Section 232.111 Train Handling Information
FRA is not making any changes to the final rule requirements
contained in this section. In its petition, BLE recommends that FRA
reconsider its decision to eliminate the requirement that railroads
provide locomotive engineers with a record of all train configuration
changes since the performance of the last Class I brake test. BLE
contends that engineers and other crewmembers should have a list of all
car placements in their train at all locations. BLE did not say why
this information is critical and did not discuss how it would aid an
engineer in the operation of a train. The principle purpose of this
section is to ensure that locomotive engineers are provided with
relevant information regarding the testing and operation of the brake
system on any train they are required to operate. Although FRA agrees
that information regarding train make-up and train configuration
changes is useful to an engineer when operating a train, FRA believes
that issues related to train make-up and train configuration are
outside the scope of this proceeding and are addressed by existing
railroad operating rules and other federal regulations. For example,
the federal regulations regarding the transportation of hazardous
materials require that train crews be in possession of a document that
reflects the current position in the train of each rail car containing
a hazardous material. See 49 CFR 174.26(a). Generally, this document
will provide information regarding train consist changes made while a
train is en route. Consequently, FRA is denying BLE's request to
reinstate the NPRM requirement regarding train configuration changes
made since the last Class I brake test was performed on the train.
Subpart C--Inspection and Testing Requirements
Section 232.203 Training Requirements
This section of the final rule contains the general training
requirements for railroad employees and contractor employees who
perform the inspections and tests required by the final rule. In order
to clarify FRA's intent, a brief discussion of FRA's overall approach
to the final rule's training requirements may be beneficial. When
including the training requirements in the final rule, FRA believed the
training provisions to be the key factor for ensuring high quality
brake inspections from which railroads would reap a number of
operational benefits. See 66 FR 4135-37. The intent of the final rule
is to establish a two-stage approach to training. The first phase of
the training is to be the initial training of existing and new
employees required to perform any test or inspection covered by the
final rule. The majority of the initial training is to be conducted by
railroads and contractors from the time the final rule became effective
until April 1, 2004. FRA specifically deferred the applicability of
many of the inspection and testing requirements until April 1, 2004, to
permit railroads and contractors to have that period to develop the
necessary curriculum and provide their employees with proper training
on the performance of those tasks. See 66 FR 4137, 4144-45, 4193. The
initial training is to include both classroom and ``hands-on'' training
and testing tailored to the needs of each employee that addresses those
tasks covered by the final rule which would be required to be performed
by that individual. The initial training is also intended to cover the
specific Federal regulatory requirements related to the tasks that the
individual will be required to perform. FRA also envisioned that all
new employees responsible for performing a task under this part would
receive such initial training regardless of whether they were employed
before or after April 1, 2004.
The second phase of the final rule's training requirements involves
the conduct of periodic refresher training. FRA intends for this phase
of training to occur after the initial training is complete. FRA did
not intend for the periodic refresher training to take the place of the
initial training. The final rule makes clear that FRA believes that
periodic refresher training is essential to ensuring the continued
ability of an employee to perform a particular task. In the preamble to
the final rule, FRA acknowledged that it does not intend for such
training to be as lengthy or as formal as the initial training
originally provided, but believes that refresher 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. See 66 FR 4166.
FRA utilized this same two-tiered approach to training when issuing
the final rule on Passenger Equipment Safety Standards contained in
part 238. See 49 CFR 238.109, 64 FR 25540, 65 FR 41284. Most passenger
operations have completed or are in the final stages of completing the
training required under those regulations, and FRA envisions freight
railroads adopting a similar approach to training under this final
rule. FRA recognizes that there are significant differences between
passenger and freight operations and believes that each needs to be
handled separately with regard to the training of individuals
performing tasks required by the Federal regulations. Consequently, FRA
is slightly modifying the training requirements contained in the final
rule to address those concerns unique to freight operations.
Paragraph (b)(6) of this section is being modified in response to
concerns raised in AAR's petition regarding the training of existing
employees. AAR contends that the final rule's prohibition on the use of
previous training and work experience to meet the training requirements
is overly burdensome. AAR contends that many railroads do not have past
training information on each employee performing tasks required by the
final rule because railroads were never previously required to maintain
such information. AAR asserts that it makes no sense to treat an
existing railroad employee as a new hire with no railroad experience.
AAR also maintains that FRA permitted the grandfathering of existing
train and engine crews when promulgating the engineer certification
requirements without requiring documentation of previous training. AAR
sees no reason to take a different approach in this rulemaking.
FRA agrees that there are a number of employees currently working
for many railroads and contractors that have received previous training
or have extensive railroad experience to obviate the need to retrain
the employee as thoroughly or as quickly as a newly hired individual.
FRA also agrees that many railroads have not maintained records
sufficient to meet the documentation requirements contained in the
final rule for purposes of using the previous training to meet the new
training requirements. However, FRA does not agree that when issuing
part 240 related to locomotive engineer certification that it simply
grandfathered all existing locomotive engineers. In fact, part 240
required that an initial determination of certification be made
[[Page 17572]]
by a railroad regarding any existing engineer and then required that
any such certified engineer be qualified under the procedures set forth
in the regulation within 36 months of being initially certified. See 49
CFR 240.201(b) and (c). Thus, part 240 did not provide for the
unrestricted grandfathering of existing employees, as portrayed in
AAR's petition, but permitted delayed qualification of existing
employees. This is similar to the approach taken in the final rule
whereby railroads and contractors are being given approximately three
years from the issuance of the final rule to complete the initial
training of their existing employees.
Based on the foregoing, FRA is modifying paragraph (b)(6) of this
section to expand the methods by which railroads and contractors are
allowed to meet the training requirements contained in this section
with regard to existing employees. This paragraph is being modified to
permit existing training records which meet the documentation
requirements contained in paragraph (e)(1) through (e)(4) to be
considered in determining an existing employee's level of training.
This clarifies the final rule requirement regarding the level of
documentation that must exist with regard to previous training. This
clarification explains that the records of previous training must
include the employee's name, the dates on which the training was
provided, the content of each training course, and the scores on any
tests taken to demonstrate proficiency. The final rule merely stated
that the records of previous training meet all the documentation
requirements in paragraph (e). FRA realizes that it is impossible and
unnecessary to meet all the documentation requirements contained in
paragraph (e) of this section when dealing with existing training
records.
Paragraph (b)(6) is also being modified by adding two other
additional methods by which existing employees may be deemed to have
met a portion of the training requirements contained in this section.
The first method is to treat as trained existing employees who
successfully pass a test developed by the railroad or contractor which
assesses an employee's skills and knowledge necessary to perform tasks
required by this part that the employee will be responsible for
performing. FRA believes that this will permit railroads and
contractors to streamline an employee's initial training to cover only
those areas in which an employee may show a deficiency. FRA believes
this method will allow railroads and contractors to reduce their
training burdens by the permitting employees with extensive inspection
and testing experience to ``test-out'' of large portions of the initial
training keyed more toward newly hired individuals. The modified rule
text makes clear that the test may be given in any format but must be
documented as required in paragraph (e) of this section.
The second method permits a railroad or contractor to certify that
a group or segment of its employees has received training determined by
the railroad or contractor to meet the requirements contained in this
section but for which complete records are unavailable. This new
provision is being added to address the AAR's concern that many
railroads have lost or destroyed previous training records or that all
the information required by paragraphs (e)(1) through (e)(4) of this
section was not maintained at the time the training was provided. If a
railroad or contractor chooses this method, the railroad must maintain
a copy of the certification in each such employee's training records,
and the certification must contain a brief description of and
approximate dates when the previous training was provided. Moreover,
any employee certified to be trained under this method must be given a
diagnostic test which covers the areas of training certified by the
railroad or contractor to have been previously provided at the time the
employee receives his or her first periodic refresher training. This
will ensure that the employee has retained the necessary skills and
knowledge that the railroad or contractor certifies was previously
provided to the employee and also permits railroads and contractors to
tailor an employee's refresher training to concentrate on those areas
where the employee has demonstrated the most need for attention.
Paragraph (b)(8) of this section is also being modified to clarify
FRA's intent regarding when refresher training is to be provided and to
address AAR's concern regarding the ability to provide refresher
training on a triennial cycle. As discussed in detail above, FRA's
intent when requiring refresher training was that such training would
not be engaged in until the completion of the initial training phase on
April 1, 2004. A strict reading of the final rule would require that
employees receive refresher training within three years of their
initial training. FRA recognizes that, due to the need for railroads to
develop the initial training materials, the actual initial training of
the employees would be compressed to a period that is less than three
years. Thus, although not FRA's intent, the language contained in the
final rule would require large portions of a railroad's workforce to
undergo refresher training in the same year due to condensing the
initial training period to less than three years. FRA's intent when
issuing the final rule was to allow railroads and contractors to
establish a refresher training program that would accommodate
approximately one-third of a railroad's or contractor's brake system
inspection and testing workforce each year. In order to effectuate this
intent, FRA is amending this paragraph of the final rule to allow
individuals receiving initial training prior to April 1, 2004, pursuant
to this section, not to undergo refresher training until four years
after the completion of their original initial training. The amended
language makes clear that thereafter such individuals would be required
to undergo refresher training at an interval not to exceed three years.
This modification will permit railroads and contractors to schedule the
first refresher training period for existing employees so that one-
third of the affected employees can receive appropriate refresher
training each year. This will provide railroads and contractors with
more certainty both in terms of employee utilization and resource
allocation affected by the refresher training requirements contained in
the final rule.
In its petition AAR also requested elimination of several of the
final rule's training documentation requirements contained in paragraph
(e) of this section. After reviewing these requirements, FRA believes
that virtually every record required by paragraph (e) is necessary and
easy to maintain and provides important information to both FRA and the
railroad or contractor. The only final rule item FRA believes is
potentially unnecessary is the provision contained in paragraph (e)(6)
of this section which requires a record that the employee was notified
of his or her current qualification status. FRA agrees with the
concerns raised by AAR on this issue that the information is of little
or no value to FRA from an enforcement perspective and railroads will
notify employees of their status regardless of any federal regulation.
Consequently, FRA is modifying the final rule by removing paragraph
(e)(6) of this section and is redesignating paragraphs (e)(7) through
(e)(9) of this section as paragraphs (e)(6) through (e)(8),
respectively. AAR raises various concerns with regard to a number of
the final rule's other training documentation requirements in paragraph
(e). FRA has addressed these
[[Page 17573]]
concerns in the preceding discussion of regulatory evaluation concerns
and need not reiterate them here. (See Section I. Discussion of
Regulatory Evaluation Concerns, Part A: Cost Issues, subpart 5:
Training.)
Section 232.205 Class I Brake Test-Initial Terminal Inspection
In its petition, AAR seeks clarification of the final rule's
inspection requirements related to the adding of cars to a train. AAR
asserts that the provisions contained in this section and in
Sec. 232.209 of the final rule are somewhat confusing regarding the
addition of solid blocks of cars to a train. AAR states that it
believes FRA did not intend the final rule to require a Class I brake
test on the entire train when the train consist is changed by the
addition of cars. AAR again contends that it sees no basis in FRA's
determination that a Class I brake test must be performed on a block of
cars when added to a train if the block of cars is made up of cars from
various different trains. Therefore, AAR recommends clarification of
the inspection requirements related to the adding of solid blocks of
cars and recommends elimination of the limitation on adding more than a
single solid block of cars without triggering a requirement to perform
a Class I brake test on the entire train, which is contained at
paragraph (a)(2)(i) of this section in the final rule. AAR also
contends that FRA failed to address situations where a solid block of
cars is removed from one train and is added to another train but the
cars were required to be divided into multiple blocks when removed from
the first train due to trackage constraints at the location prior to
being added to the second train. AAR argues that there is no difference
between this circumstance and leaving the cars coupled together.
Consequently, at a minimum, AAR recommends that FRA clarify the final
rule requirements to address situations where solid blocks of cars from
only one train are required to be divided to accommodate track
limitations at a location.
FRA agrees with AAR's concerns regarding the final rule's intent to
concern itself with the inspection of the solid block of cars being
added to a train and determining the nature of the inspection of that
solid block on the basis of its composition. The preamble to the final
rule makes clear that 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 previous train. The preamble
made clear that 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 but depending on the make-up of the
block of cars, certain inspections will have to be performed on the
block of cars at the location where it is added to the train. See 66 FR
4168. However, contrary to the assertions made by AAR in its petition,
the final rule was never intended to permit the addition of more than a
single solid block of cars to a train at any one location. FRA believes
that both the explicit language of the final rule text and the preamble
discussion clearly establish that only a single solid block of cars may
be added at any one location without triggering a requirement to
conduct a Class I brake test on the entire train. See 66 FR 4168, 4202.
FRA continues to believe that the rationale, set out in the preamble to
the final rule, for not permitting multiple solid blocks of cars to be
added to a train at any one location remains valid and need not be
reiterated. See 66 FR 4168. Consequently, FRA is denying AAR's request
to remove paragraph (a)(2)(i) from this section as the preamble to the
final rule clearly states the intended purpose of the final rule to
permit the addition of only a single solid block of cars at any one
location without the need conduct a Class I brake test on the entire
train.
In response to the other concerns raised by AAR in its petition,
FRA is amending this section of the final rule by adding a new
paragraph (b) to clarify the inspection requirements related the
situation where a solid block of cars is added to a train. It should be
noted that FRA amended the definition of ``solid block of cars''
contained in Sec. 232.5 of the final rule to aid in the clarification
of the inspection requirements related to the addition of a solid block
of car. (See Section-by-Section Analysis of Sec. 232.5). The new
paragraph (b) makes clear that all solid blocks of cars added to a
train, except those described in paragraphs (b)(1) and (b)(2), are to
receive either a Class I brake test pursuant to Sec. 232.205 of the
final rule or a Class II brake test pursuant to Sec. 232.209 of the
final rule at the location where they are added to a train. Paragraph
(d) of Sec. 232.209 of the final rule also makes clear that if a Class
II brake test is performed on a solid block of cars when added to a
train, then a Class I brake test pursuant to Sec. 232.205 of the final
rule must be conducted on the added cars at the next forward location
where facilities are available for performing such an inspection. See
66 FR 4173, 4204. FRA intends to make clear that if a Class I brake
test is performed on the solid block of cars at the location where it
is added to a train, no further brake inspections are required of that
block while it remains charged in the train, except for Class IA/1,000-
mile brake tests covered by Sec. 232.207 of the final rule. It should
be noted that if a solid block of cars is pre-tested (i.e., given
either a Class I or Class II brake test at the location it will be
added to a train prior to being added to the train) or the solid block
of cars meets one of the exceptions contained in new paragraphs (b)(1)
or (b)(2) of this section, a Class III brake test pursuant to
Sec. 232.211 must be conducted on the train to which the pretested
solid block of cars is added at the time it is added to the train. See
66 FR 4173-74, 4204. In order to avoid any misunderstanding, FRA
intends to make clear that if the required Class I or Class II brake
test is performed on the solid block of cars after it is added to the
train, then there would be no need to conduct a Class III brake test on
the entire train after the performance of those inspections because the
requirements for performing a Class I or Class II brake test while the
cars are entrained ensure that trainline continuity is achieved, which
is the purpose of a Class III brake test. See 66 FR 4173-74, 4202-04.
New paragraphs (b)(1) and (b)(2) are being added to explicitly
clarify the two types of cars or solid blocks of cars which may be
added to an en route train without being required to receive either a
Class I or Class II brake test at the location where they are added to
the train. As discussed in detail above, when these types of solid
blocks are added to a train, the train must receive a Class III brake
test pursuant Sec. 232.211 of the final rule. See 66 FR 4204. Paragraph
(b)(1) makes clear that there are four conditions that must be met by a
solid block of cars in order to be added to a train without being
required to receive either a Class I or Class II brake test at the
location where it is added.
First, the solid block of cars must be comprised of cars from a
single previous train. Contrary to AAR's contentions raised in its
petition, FRA continues to believe that the addition of blocks of cars
comprised of cars from various different trains without inspection
would allow the assembling of trains without inspection, which is
clearly contrary to the intent of Congress when adopting the brake
inspection requirements contained in part 232 prior to May 31, 2001,
and would seriously reduce the safety of train operations across the
nation. See 66 FR 4119, 4168. Second, the cars in the solid block must
have previously received a Class I brake test. Thus, cars previously
[[Page 17574]]
receiving only a transfer train brake test pursuant to Sec. 232.215 of
the final rule would not meet this requirement. Third, the cars in the
solid block must have remained continuously and consecutively coupled
together, except for removing defective equipment, since being removed
from its previous train. Thus, there can be no reclassification of the
cars contained in the solid block since being removed from its previous
train. Finally, the solid block of cars may not have been off a source
of compressed air of at least 60 psi for more than four hours before
being added to the en route train. FRA believes that the clarification
contained in this paragraph is consistent with the intent and purpose
of the final rule as it pertained to the adding of solid blocks of cars
without further inspection. See 66 FR 4119, 4167-74.
Paragraph (b)(2) is being added in response to a concern raised in
AAR's petition regarding the circumstance where a solid block of cars,
meeting all of the requirements discussed in the preceding paragraph,
must be divided to accommodate trackage constraints at a particular
location. FRA agrees with the position set forth by AAR that some
allowance should be provided in the final rule to accommodate this
practice. FRA believes that no significant safety hazard is created by
permitting a solid block of cars from a single previous train to be
divided into smaller segments to accommodate space or trackage
constraints at a particular location. It should be noted that this
paragraph requires that each of the smaller segments remain
continuously and consecutively coupled, not be removed from a source of
compressed air for more than four hours, and be added to the new train
in the same relative order as when removed from the previous train.
Thus, the smaller segments of the larger solid block of cars initially
removed from the previous train may not be rearranged or reclassified
prior to being added to a train, or when, added to a train. FRA
believes that the restrictions imposed by this paragraph with regard to
the handling of a divided solid block of cars ensure the safety and
integrity of the brake system on such blocks while limiting the
potential for railroads to use the flexibility provided to assemble and
classify trains without conducting necessary inspections. It should
also be noted that this exception applies only to solid blocks of cars
from a single previous train that are required to be divided into
smaller segments due to trackage or space constraints at a particular
location. FRA does not intend to extend the flexibility provided in
this paragraph to every location or to be used by a railroad merely out
of convenience to the railroad.
Due to FRA's addition of a new paragraph (b) to this section in
response to petitions for reconsideration, FRA is redesignating
paragraphs (b) through (e) of this section in the final rule as
paragraphs (c) through (e), respectively. Redesignated paragraph (c)(2)
(paragraph (b)(2) of the final rule) is being modified for
clarification purposes in response a concern raised in AAR's petition.
AAR recommends that FRA make the word ``inspector'' used in this
paragraph plural. AAR believes FRA should recognize that many railroads
use more than one inspector to conduct the inspection required in this
section. Thus, AAR asserts that the rule text should make clear that it
is the inspection team that is to inspect both sides of the equipment
sometime during the inspection process, not any single inspector. FRA
agrees with the recommendation made by AAR in its petition. FRA did not
intend to suggest that a Class I brake test may be performed by only
one inspector, nor did FRA intend to limit the methods by which
railroads conduct such an inspection. In fact, the preamble to the
final rule discusses the requirements contained in this paragraph in
terms of ``inspectors'' and ``individuals'' and indicates that the
method of performing the required inspection would be left to the
discretion of the railroads provided such methods ensure that all
required components are properly inspected. See 66 FR 4169-70.
Consequently, FRA is modifying this paragraph of the final rule by
making the term ``inspector'' plural.
Redesignated paragraph (c)(4) of this section (paragraph (b)(4) of
the final rule) is also being modified in response to an issue raised
by AAR in its petition. In its petition, AAR seeks clarification of
FRA's intent regarding the pressure at which a retest of a car is to be
conducted. AAR asserts that a strict reading of this provision in the
final rule would require that the retest be conducted at the operating
pressure of the train. AAR recommends that the language of the
requirement be modified to permit the retest to be performed at a
pressure that is within 15 psi of the pressure at which the train will
be operated. AAR contends that other cars in the train may be initially
tested at a pressure that is anywhere between 75 and 90 psi because the
final rule permits the pressure at the rear of the train to be within
15 psi of the pressure at which the train will be operated. See 66 FR
4202-03. Thus, AAR maintains that a retest of a car's air brakes should
be permitted to be conducted at the same pressure as that of any other
car in the train. FRA agrees with the position of AAR and is amending
this paragraph to clarify that the retesting of a car may be conducted
at a pressure that is within 15 psi of the pressure at which the train
will be operated. FRA believes this clarification is consistent with
the other inspection requirements contained in the final rule as noted
in the above discussion of AAR's concern. Furthermore, although the
final rule text and attendant preamble discussion are somewhat
ambiguous on this issue, FRA's intent was to require that a retest of
any brake found not to apply, or failing to remain applied, be
conducted in a manner that is consistent with the way other brakes in
the train are tested.
In its petition, AAR objects to the final rule requirement
contained in redesignated paragraph (e) of this section (paragraph (d)
in the final rule) that the information provided to a locomotive
engineer and the related record regarding the performance of a Class I
brake test include the identity of the qualified person(s) performing
the inspection. AAR contends that this information is not needed by a
locomotive engineer to operate the train. AAR recommends that the
requirement be deleted. FRA agrees that the information is not
necessarily needed by the locomotive engineer to operate a train.
However, FRA does believe the information is necessary to ensure
accountability for the performance of the required Class I brake test
and provides the engineer with confidence that the inspection was
properly performed. Furthermore, the information provides FRA and the
railroads with a readily accessible means to monitor an employee's
performance and adds a measure of enforceability to the final rule's
requirement to have qualified individuals perform these safety-critical
inspections. Moreover, the identity of the person(s) conducting these
types of inspections is currently maintained by virtually all railroads
and is presently being provided to locomotive engineers by many
railroads. Consequently, FRA is denying AAR's request to delete the
requirement to provide the identity of the qualified person performing
a Class I brake test as FRA's believes that the information provides
accountability and enforceability and is consistent with existing
practice on many railroads.
Section 232.207 Class IA Brake Tests--1,000-Mile Inspection
Paragraphs (b)(1) and (b)(4) of this section are being modified so
that the
[[Page 17575]]
references to Sec. 232.205 contained in these paragraphs conform with
the redesignations being made to that section. As discussed in detail
above, Sec. 232.205 of the final rule is being modified to include a
new paragraph (b) and, thus, paragraphs (b) through (e) of that section
in the final rule are being redesignated as paragraphs (c) through (f).
Consequently, conforming changes are being made to paragraphs (b)(1)
and (b)(4) of this section to alter the references from paragraph (b)
of Sec. 232.205 to redesignated paragraph (c) of that section.
Section 232.209 Class II Brake Tests-Intermediate Inspection
Paragraphs (b)(1) and (b)(3) of this section are being modified so
that the references to Sec. 232.205 contained in these paragraphs
conform with the redesignations being made to that section. As
discussed in detail above, Sec. 232.205 of the final rule is being
modified to include a new paragraph (b) and thus, paragraphs (b)
through (e) of that section in the final rule are being redesignated as
paragraphs (c) through (f). Consequently, conforming changes are being
made to paragraphs (b)(1) and (b)(3) of this section to alter the
references from paragraph (b) of Sec. 232.205 to redesignated paragraph
(c) of that section.
Paragraph (a)(3) of this section is being modified to conform with
the new paragraph (a)(4) being added to this section. As discussed in
detail above, Sec. 232.205 of the final rule is being modified to
include a new paragraph (b) that explicitly describes the types of
solid blocks of cars that may be added to a train without further
direct visual inspection. Therefore, a new paragraph (a)(4) is being
added to this section to conform with the language contained in the new
clarifying paragraph (b) added to Sec. 232.205 of the final rule. It
should also be noted that the last sentence of paragraph (f) of this
section in the final rule is being removed for clarity. FRA believes
that the last sentence of paragraph (f) may have created some of the
confusion, expressed by AAR in its petition, regarding when Class III
brake tests are to be performed. Thus, consistent with the discussion
contained in the above analysis of Sec. 232.205 and because the
language contained in the last sentence of paragraph (f) of this
section duplicates the requirements contained in Sec. 232.211 regarding
the performance of Class III brake tests, FRA is removing this
sentence. See 66 FR 4204.
Section 232.211 Class III Brake Tests-Trainline Continuity Inspection.
A new paragraph (a)(4) is being added to this section to conform
with the language contained in the new clarifying paragraph (b) added
to Sec. 232.205 of the final rule. As discussed in detail above,
Sec. 232.205 of the final rule is being modified to include a new
paragraph (b) that explicitly describes the types of solid blocks of
cars that may be added to a train without further direct visual
inspection. Thus, paragraph (a)(3) and the new paragraph (a)(4) of this
section are intended to explain that when the types of solid blocks
described in Sec. 205.205(b)(1) and (b)(2) are added to a train, the
train is required to receive a Class III brake test pursuant to the
provisions contained in this section. Paragraph (a)(4) of this section
as contained in the final rule is being redesignated as paragraph
(a)(5). What was paragraph (a)(5) of this section in the final rule is
being moved to a new paragraph (d) in this section and is being
modified as explained in detail below.
Paragraph (b)(1) of this section is being amended in response to
concerns raised in AAR's petition regarding the pressure at which Class
III brake test are required to be performed. AAR contends that because
the purpose of a Class III brake test is to ensure trainline continuity
there is no reason to require the pressure at the rear of the train to
be not less than 75 psi. AAR recommends that a Class III brake test be
permitted to be performed when the air pressure at the rear of the
train reaches 60 psi. AAR asserts that to require the trainline to be
charged to a minimum of 75 psi rather than 60 psi will add 15 minutes
to the charging time of a 100-car train prior to the test being
performed and that there is no safety purpose served by requiring the
higher trainline pressure. FRA agrees with the recommendation made in
AAR's petition. As the sole purpose of a Class III brake test is to
ensure that the train brake pipe is delivering air to the rear of the
train, FRA believes that this can easily be ascertained with a rear
brake pipe pressure of 60 psi. See 66 FR 4173-74. Moreover, FRA is not
aware of any safety hazard caused by permitting this brake test to be
performed at the lower rear car pressure. Furthermore, FRA also agrees
that this allowance will help reduce train delay and reduce the amount
of time public and private highway-rail grade crossings are blocked for
the purposes of conducting this inspection. Consequently, FRA is
amending paragraph (b)(1) of this section to permit Class III brake
tests to be conducted when the pressure at the rear of the train is a
minimum of 60 psi.
As noted above, a new paragraph (d) is being added to this section
to address concerns raised in AAR's petition regarding the performance
of a Class III brake test when trainline continuity is broken but no
changes to the train consist occur. AAR contends that the regulations
as they existed prior to the issuance of the final rule only required
the railroad to verify that brake pressure is being restored to the
rear of the train after an otherwise unchanged train consist is
recoupled. AAR believes this same allowance should be provided for in
the final rule and contends that such a provision would further reduce
the amount of time that grade crossings are required to be blocked. FRA
agrees with the position of AAR. Part 232 as it existed prior to the
issuance of the final rule did permit the recoupling of an unchanged
train consist with a verification that the air pressure is being
restored at the rear of the train. See 49 CFR 232.13(b). Thus, FRA
agrees that the current practice within the industry is to conduct a
rear pressure verification inspection when an otherwise unchanged train
consist is recoupled. FRA also believes that normally, absent
vandalism, if the train consist is not changed or altered by either the
removal, replacement, or addition of equipment there should be no
effect on the operation of the train's brake system that cannot be
identified with a rear pressure verification inspection. FRA further
agrees that permitting the method of testing suggested by AAR would
reduce the time trains spend blocking public and private grade
crossings. Therefore, FRA is adding a new paragraph (d) to this
section, which requires verification that the brake pipe pressure of
the train is being restored as indicated by a rear car gauge or end-of-
train device in circumstances where the continuity of the brake pipe is
broken with the train consist otherwise remaining intact. It should be
noted that the new paragraph clearly requires that a visual inspection
of the application and release of the brakes on the rear car be
conducted in the absence of a rear car gauge or end-of train-device.
Section 232.213 Extended Haul Trains
AAR again raises concerns regarding the viability of the provisions
contained in this section of the final rule. AAR continues to assert
that the 1,500-mile limitation placed on extended haul trains provides
little benefit to the industry. AAR reasserts its request to extend the
mileage limitation contained in this section of the final rule. FRA
believes that the preamble to the final
[[Page 17576]]
rule fully addresses the mileage limitation concerns raised by AAR and
provides a complete discussion of FRA's rationale for limiting the
distance these train are permitted to travel between brake inspection.
See 66 FR 4119-21, 4174-75. FRA sees no need to reiterate that
discussion in this document. Moreover, FRA continues to believe that
AAR's concerns regarding the viability of the provisions contained in
this section of the final rule are misplaced and inaccurate.
Paragraphs (a)(6)and (a)(7) of this section are being modified in
response to concerns raised in AAR's petition regarding the performance
and documentation of inbound inspections on extended haul trains. AAR
contends that if FRA's stated purpose for requiring inbound inspections
on these trains is to assess the impact of the provisions on the safety
of such train operations, then FRA should place a known time limit on
this assessment. AAR's petition implies that three years would be a
more than sufficient time period for FRA to evaluate any negative
safety impacts arising from the provisions contained in this section.
AAR's also contends that the inbound inspection and recordkeeping
requirements contained in the final rule with regard to extended haul
trains are major impediments to the viability of the provisions.
FRA tends to agree with the concerns raised by AAR with regard to
this portion of the extended haul provisions. The final rule made clear
that the purpose of the inbound inspections on these trains is to
facilitate the assessment of the safety and operational effects of the
provisions contained in this section. See 66 FR 4174-75. Thus, FRA
agrees that the requirement to perform inbound inspections should be
for a limited period, during which such assessments can be conducted.
FRA believes that the three-year period recommended by AAR in its
petition would provide FRA and the railroads with sufficient time to
evaluate the effects of these extended operations. Therefore, FRA is
amending paragraphs (a)(6) and (a)(7) of this section to limit the
requirement to perform inbound inspections on extended haul trains and
maintain the related records to a period of three years from the
applicability date of the provisions; i.e., until April 1, 2007.
However, as FRA will utilize this three-year period to assess the
safety and operational aspects of these extended operations, FRA must
have a means by which it may extend the requirement to perform inbound
inspections in the event the assessment discloses safety or operational
hazards. Consequently, the amended provisions will permit FRA to
continue to require the performance of inbound inspections on these
trains should the evaluation reveal detrimental effects on the safety
of these operations. The modifications make clear that FRA must publish
a notice in the Federal Register of its decision to continue the
inbound inspection requirement detailing the basis for such a
determination. The modifications also make clear that the determination
to extend the inbound inspection requirement will be based on the
records required to be maintained under paragraph (a)(7) of this
section and any other relevant safety data.
Section 232.215 Transfer Train Brake Tests
Paragraph (a)(3) of this section is being modified so that the
reference to Sec. 232.205 contained in this paragraph conforms with the
redesignations being made to that section. As discussed in detail
above, Sec. 232.205 of the final rule is being modified to include a
new paragraph (b) and thus, paragraphs (b) through (e) of that section
in the final rule are being redesignated as paragraphs (c) through (f).
Consequently, a conforming change is being made to paragraph (a)(3) of
this section to alter the reference from paragraph (b)(4) of
Sec. 232.205 to redesignated paragraph (c)(4) of that section.
Section 232.217 Train Brake Tests Conducted Using Yard Air
Paragraph (c) of this section is being modified so that the
references to Sec. 232.205 contained in this paragraph conform with the
redesignations being made to that section. As discussed in detail
above, Sec. 232.205 of the final rule is being modified to include a
new paragraph (b) and thus, paragraphs (b) through (e) of that section
in the final rule are being redesignated as paragraphs (c) through (f).
Consequently, conforming changes are being made to paragraph (c) of
this section to alter the references from paragraph (b) of Sec. 232.205
to redesignated paragraph (c) of that section.
Paragraph (c)(3) of this section is also being modified in response
to concerns raised in AAR's petition regarding the performance of the
required leakage or air flow test of the brake system using yard air.
AAR recommends that the leakage or air flow test, required to be
performed at the pressure at which the train will be operated pursuant
to the requirements contained in Sec. 232.205, be permitted to be
performed at 80 psi when yard air is used to perform a leakage or air
flow test pursuant to the Class I brake test requirements. AAR contends
that the final rule requirement to perform these tests when the
locomotives are attached if the yard air source is not capable of
attaining the psi pressure at which the train will be operated (which
for most trains is 90 psi) would result in a delay of at least five
minutes per train. AAR asserts that current industry practice when
using yard air is to perform the leakage or air flow tests at 80 psi
and that this practice has not resulted in any known adverse impact on
safety. AAR also notes that most yard air sources in use today are not
capable of producing 90 psi as required for these tests under
Sec. 232.205 of the final rule. Thus, AAR suggests that substantial
train delay would result from waiting to perform these tests until
locomotive power is attached.
FRA agrees with the concerns raised by AAR in its petition and is
amending paragraph (c)(3) of this section of the final rule to permit
the leakage or air flow test to be conducted at 80 psi when yard air is
used to conduct a required leakage or air flow test. FRA agrees that it
has permitted railroads to perform these tests with yard air at 80 psi
for years and is not aware of any detrimental effect on safety. FRA
also agrees that most yard air sources currently being used in the
industry lack the capability to produce air pressure at 90 psi. FRA
further believes that the 10-psi allowance will not significantly
affect the performance or accuracy of either the leakage or air flow
test. It should be noted that the modified language requires that the
leakage or air flow test be conducted when the locomotives are attached
if the air pressure of the yard test device is anything less than 80
psi. Furthermore, the allowance provided by the modification being made
to this section applies only to instances when yard air test devices
are used to conduct required leakage or air flow test. FRA intends to
make clear that, if locomotives are used to perform these tests, then
the train must be charged to the pressure at which it will be operated.
Section 232.219 Double Heading and Helper Service
Paragraph (c)(2) of this paragraph is being modified in response to
a request made by AAR in its petition regarding the resetting of a
helper link device or similar technology. AAR requests that the final
rule's requirement that a method to reset the device be provided in the
cab of the helper locomotive be modified to permit the devices to reset
automatically rather than be reset by the
[[Page 17577]]
locomotive engineer manually. FRA believes that allowance should be
provided to permit the use of the automatic reset technology being
incorporated into some helper link devices and similar technology. FRA
believes the automatic reset capability would eliminate one more thing
that a locomotive engineer must manually operate or control, thereby
allowing the engineer to focus on a smaller set of tasks. Thus,
paragraph (c)(2) of this section is being amended to require
locomotives equipped with a helper link device or similar technology to
be equipped with a means to reset the device in the cab of the
locomotive manually or, in the alternative, have the device or
locomotive equipped with a means to reset the device automatically. The
amended final rule language makes clear that the automatic reset
function must occur within a time interval that is no less than the
time required to reset the device from the cab of the locomotive
manually.
In its petition, BLE suggests that the final rule be modified to
require that a separate computer screen or switch be provided in the
cab of a helper locomotive to pull the coupling pin or uncouple the
helper unit from the train being pushed. BLE provided no rationale or
discussion regarding the need for this added technology. Furthermore,
BLE did not indicate whether such technology is currently available at
a reasonable price. Moreover, FRA is not aware of a significant safety
problem related to existing helper operations. Consequently, FRA is
denying BLE's request to require the suggested technology on helper
locomotives.
Subpart D--Periodic Maintenance and Testing Requirements
Section 232.303 General Requirements
FRA is making a clarifying amendment to the definition of ``major
repair'' contained in paragraph (a)(2) of this section in the final
rule. On August 1, 2001, the requirements regarding periodic
maintenance and testing contained in subpart D became applicable to the
industry. When including the definitions of ``repair track'' and
``major repair'' in the final rule, FRA's purpose was not to alter the
basic approach to capturing cars for periodic brake testing at
appropriate intervals as currently existed in the industry. FRA also
intended for these and other definitions in the final rule to be
consistent with FRA's existing enforcement policies and guidance. See
66 FR 4178 and 66 FR 39684. On January 12, 2000, prior to the issuance
of the final rule, FRA issued Technical Bulletin (TB) MP&E 00-01
containing enforcement guidance regarding what constitutes a repair or
shop track. The definitions of ``repair track'' and ``major repair''
contained in the final rule codified much of the guidance contained in
the above noted TB.
Subsequent to the issuance of TB MP&E 00-01, based on concerns
raised by the industry, FRA issued oral guidance to its inspection
forces explaining that the practice of changing wheels on intermodal
cars located on intermodal loading ramps does not qualify the track as
a repair track and that such activity did not constitute a major
repair. Although this guidance was not formalized in the form of a TB,
the guidance has been and continues to be FRA's enforcement position.
Therefore, as FRA's primary intent when issuing the final rule
definitions was to remain consistent with existing enforcement guidance
and policies, FRA did not intend to consider the changing of wheels on
intermodal cars at intermodal loading ramps to constitute a ``major
repair'' for the purposes of Sec. 232.203(a)(2) when issuing the final
rule. On October 19, 2001, FRA issued TB MP&E 01-04 containing the
above noted guidance to its field inspection forces. Consequently, the
modification to this section merely incorporates enforcement guidance
existing prior to the issuance of the final rule and makes clear that
trackage at an intermodal loading ramp was not intended to be and
should not be considered a ``repair track'' under Sec. 232.303(a)(1)
when only wheel change-outs (whether an air jack is used or not) and
other minor repairs are performed on such trackage. However, if major
repairs are performed on the cars at the loading ramp, then the
definition of ``shop or repair track'' contained in Sec. 232.303(a)(1)
will apply and the car(s) should be handled accordingly. It should also
be noted that if a wheel change-out is due to the wheel having any of
the defective conditions identified in Sec. 232.305(b)(5), then a
single car test is to be conducted on that car pursuant to the
requirements contained in this subpart regardless of the location where
the defect is discovered or the wheel is changed.
Subpart E--End-of-Train Devices
Section 232.407 Operations Requiring Use of Two-Way End-of-Train
Devices; Prohibition on Purchase of Nonconforming Devices
A new paragraph (g)(2) is being added to this section in response
to concerns raised in AAR's petition regarding the operation of a train
when the two-way EOT fails while the train is operating on a section of
track with an average grade of two percent or greater for a distance of
two continuous miles. AAR contends that although the preamble to the
final rule discusses the operation of trains on such grades when
communication failures occur on the provided alternative methods of
operation over heavy grades, the final rule fails to provide any
provisions for operating on such grades when a failure of a two-way EOT
occurs while actually operating on the heavy grade. AAR recommends that
provisions similar to those provided for the alternative methods of
operation should also be included to address a failure of the two-way
EOT while a train is in the process of traversing a heavy grade
averaging two percent for two continuous miles.
FRA shares the concerns raised by AAR in its petition and believes
that clarification of the requirements covering these circumstances
should be addressed in the final rule. FRA believes that the preamble
to the final rule makes clear that the stopping of trains in
circumstances where the two-way EOT fails while a train is traversing a
heavy grade should be done in accordance with the railroad's operating
rules. See 66 FR 4184. When issuing the two-way EOT requirements, FRA
did not intend for engineers to place themselves in unsafe situations
when they encounter an en route failure of the device when traversing a
heavy grade. Although the existing rule prohibits the operation of a
train over certain heavy grades when a failure of the device occurs en
route, FRA did not intend that the train be immediately stopped when a
failure of the device occurs while operating on a heavy grade. Rather,
FRA intended for the locomotive engineer to conduct the movement in
accordance with the railroad's operating rules for bringing the train
safely to a stop at the first available location. Therefore, safety may
require that the train continue down the grade or to a specific siding
rather than come to an immediate halt. Consequently, a new paragraph
(g)(2) is being added to the final rule which makes clear that, if a
two-way EOT fails while a train is traversing a section of track with
an average grade of two percent for two continuous miles, the train is
to be brought to a stop at the first available location in accordance
with a railroad's operating rules. FRA believes this clarification is
consistent with FRA's intent and expectations when issuing the two-way
EOT regulations.
[[Page 17578]]
Section 232.409 Inspection and Testing of End-of-Train Devices
Paragraph (c) of this section is being modified to read the way the
paragraph read when initially included in the final rule issued on
January 17, 2001. Prior to May 31, 2001, this paragraph required that,
if the person conducting the test of the two-way end-of-train device on
a train is someone other than a train crew member, the locomotive
engineer of the train must be notified of the name of the person
conducting the test and a record must be maintained, in the cab of the
controlling locomotive, containing the name of the person conducting
the test. See 66 FR 4210. Although this requirement originally had a
compliance date of May 31, 2001, FRA deferred the compliance date of
the requirement until further notice in order to allow FRA an
opportunity to respond to AAR's petition for reconsideration which
questioned the need for this specific provision. See 66 FR 29501 (May
31, 2001). AAR's petition questions the need for the locomotive
engineer to be informed of the name of the person testing the two-way
EOT. AAR recommends elimination of the requirement.
The preamble to the final rule makes clear that the purpose of the
requirements to provide the locomotive engineer with the date and time
of the test, the location where the test was performed, and the name of
the person performing the test is to ensure that locomotive engineers
are provided sufficient information to confirm that the devices are
properly inspected and tested and to provide locomotive engineers with
a measure of confidence that the devices will work as intended. See 66
FR 4184. FRA continues to believe all of the information originally
contemplated by the final rule is necessary to ensure accountability
for performing proper inspections and tests of the devices. The
information also provides both FRA and the railroads with a means to
monitor the inspection practices of individuals responsible for
performing inspections and tests required by the final rule.
Furthermore, as AAR's petition notes that railroads maintain the
required information, FRA sees little burden being imposed by the final
rule in requiring that the information to be provided to the locomotive
engineer. Consequently, the language of paragraph (c) of this section
is being revised to read the same as it did when the final rule was
issued on January 17, 2001. See 66 FR 4210.
Paragraph (d) of this section of the final rule is being amended in
response to concerns raised in a late-filed petition submitted by UP
regarding the periodic calibration of two-way EOT devices. In its
petition UP recommends that the periodic calibration period be changed
from every 365 days as required by the final rule to every 368 days. UP
contends that a 368-day period would be consistent with the 92-day
periodic inspection cycle required for locomotive by part 229. See 49
CFR 229.23. UP requests this change to avoid having to take locomotives
out of service to perform the calibration of the two-way EOT device
head-end. UP also requests that the 368-day calibration period not
begin running until the unit is placed back in service after being
calibrated. UP contends that several railroads remove the head-end
units from their locomotives to have the annual testing and calibration
performed by outside parties. After the calibration is complete, the
unit is returned to the railroad and may remain in storage for a
considerable length of time prior to being placed back in service on a
locomotive.
FRA tends to agree with the issues and concerns raised by UP in its
petition. FRA agrees that it is only logical to make the calibration
period of two-way EOT devices coincide with the periodic inspection
interval for locomotives. FRA also agrees that the calibration period
for the devices should begin from the time the devices are actually
placed back in service after receiving the required testing and
calibration. However, FRA believes that EOT devices should not be
permitted to be stored indefinitely prior to being placed in service
without being retested and calibrated, if necessary. FRA believes that
the 92-day periodic inspection cycle for locomotives provides an
adequate out-of-service or ``shelf-life'' period. This would allow
head-end units to be removed at one periodic inspection for testing and
calibration, and then be replaced at the next periodic inspection for
that locomotive. FRA does not believe that a 92-day shelf life will
impact the operation or calibration of the devices and will provide
railroads with flexibility in meeting the testing and calibration
requirements contained in the final rule. It should be noted, that FRA
has left it to the railroads to determine how to track and record any
shelf life. Consequently, paragraph (d) of this section of the final
rule is being amended by extending the testing and calibration to 368
days and by providing up to a 92-day shelf-life for the devices after
being properly tested and calibrated.
It should be noted that AAR raised a concern regarding the
discussion related to bench testing of EOT devices contained in the
preamble to the final rule. See 66 FR 4185. Although agreeing with FRA
that regulations on bench testing were unnecessary, AAR objected to
FRA's implication that the bench test of an EOT device transported in a
truck should remain valid for only one hour. FRA believes that AAR has
misconstrued the discussion contained in the preamble to the final rule
regarding the reasonable time period for which a bench test of the
device would remain valid. In the preamble discussion, FRA was merely
attempting to point out that what constitutes a reasonable time between
bench testing and installation of the devices varies based upon the
environment and conditions to which the device is exposed after being
bench tested. The preamble was attempting to illustrate that
mistreatment of the devices after testing would severely limit the time
for which a bench test would remain valid. See 66 FR 4185. FRA did not
intend to imply that the bench test on any device transported in a
vehicle would remain valid for only one hour. The focus of the
determination should be on the handling of device and the conditions to
which the device is exposed subsequent to conducting the bench test.
Appendix A to Part 232--Schedule of Civil Penalties
Appendix A to this part contains the schedule of civil penalties
to be used in connection with this part. Conforming changes are
being made to the schedule of civil penalties based on the changes
being made to the final rule discussed in detail above.
Appendix B to Part 232--Part 232 prior to May 31, 2001
A conforming change is being made to Sec. 232.13(d)(2)(i) of
part 232 as it existed prior to May 31, 2001. Section
232.13(d)(2)(i) of part 232 as it existed prior to May 31, 2001,
incorrectly cites to Sec. 232.13(c)-(j) as the section under which
cars added to a train are to be inspected. See 66 FR 4216. This
typographical error was made when part 232 was revised in 1986. See
51 FR 17303 (May 9, 1986). When part 232 was originally issued,
Sec. 232.13(d)(2)(i) correctly cited a reference to Sec. 232.12 (c)-
(j). See 33 FR 19679 (December 25, 1968). Compare Sec. 232.13(d)(1),
(d)(2)(ii) and (e)(2), of part 232 as it existed prior to May 31,
2001, all of which correctly cite the initial terminal test
provisions in Sec. 232.12(c)-(j). Consequently, FRA is correcting
this typographical error for clarity purposes in this document.
Paragraphs (a)(2)(iii) and (b)(3) of Sec. 232.17 are being
amended in response to concerns raised in RPCA's petition regarding
the accessibility and availability of the testing documents
referenced in these two paragraphs. RPCA contends that the
referenced standards and documents are no
[[Page 17579]]
longer available from the sources indicated in Sec. 232.17 as it
existed prior to May 31, 2001. FRA is amending paragraph (a)(2)(iii)
of Sec. 232.17 to clarify that the single car test required to be
performed pursuant to this paragraph may be conducted in accordance
with the applicable AAR Code of Tests or the APTA standard
referenced in 49 CFR 238.311(a). FRA has retained the requirement to
utilize the applicable AAR standard because FRA recognizes that the
new APTA standard does not address every type of brake system used
on many tourist and excursion operations. Thus, where the referenced
APTA standard related to performing single car tests on certain
passenger equipment does not address a particular brake system, FRA
would expect the applicable AAR standard to be utilized. Paragraph
(b)(3) of Sec. 232.17 is being amended by inserting FRA's current
address as the location where the standards and procedures
referenced in Sec. 232.17 can be obtained. FRA believes it has
copies of all the material referenced in this section and can
provide them to interested parties upon request.
In its petition, RPCA also sought clarification of the
periodicity for performing the required cleaning, repair,
lubrication, and testing required by Sec. 232.17(b) as it existed
prior to May 31, 2001. The referenced AAR Standard S-045 contains
the periodicity for performing the required attention. FRA would
expect equipment used in tourist, historic, scenic, and excursion
operations to conduct the required maintenance in accordance with
that referenced AAR standard. If such equipment were to be hauled in
a freight train covered by the new part 232 or in a passenger train
covered by part 238 of this chapter, then FRA would expect the
equipment to meet the testing and inspection requirements contained
in those regulations. FRA does not believe this rulemaking is the
proper forum for changing or modifying the inspection, testing, and
maintenance requirements applicable to tourist, historic, scenic,
and excursion operations. In the preamble to the final rule FRA
noted that it has established a Tourist and Historic Railroads
Working Group formed under Railroad Safety Advisory Committee to
specifically address the applicability of FRA's regulations to these
unique types of operations. FRA made clear that any requirements
issued by FRA for these types of operations would be part of a
separate rulemaking proceeding. See 66 FR 4145-46.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This response to petitions for reconsideration of the final rule
has been evaluated in accordance Executive Order 12866 and DOT policies
and procedures. Although the final rule met the criteria for being
considered a significant rule under those policies and procedures, the
amendments contained in this response to petitions for reconsideration
of the final rule are not considered significant because they either
clarify requirements currently contained in the final rule or allow for
greater flexibility in complying with the rule. The economic impact of
the amendments and clarifications contained in this response to
petitions for reconsideration will generally reduce the cost of
compliance with the rule. However, the cost reduction is not easily
quantified and does not significantly alter FRA's original analysis of
the costs and benefits associated with the original final rule.
In the detailed discussion of AAR's concerns regarding the final
rule's regulatory evaluation contained above, FRA acknowledges that it
erred in the final rule's RIA when estimating the safety benefits to be
derived from the specific accidents included in the analysis. (See
preamble above: ``I. Discussion of Regulatory Evaluation Concerns.'')
However, FRA believes that the error and resulting reduction in the
safety benefits does not in anyway compromise the integrity of the
analysis or impact the decisions made by FRA and does not change the
necessity for any of the provisions contained in the final rule.
Furthermore, FRA finds all the other economic issues raised by AAR in
its petition for reconsideration to be either incorrect, unfounded, or
unpersuasive. FRA continues to believe that it has been both reasonable
in its cost estimates and extremely conservative in its estimates of
benefits related to the final rule. Moreover, FRA believes that the
modifications and clarifications being made to the final rule in this
response to the petitions for reconsideration, will not only reduce the
potential regulatory costs but will also increase the benefits
associated with the final rule. Therefore, the costs and benefits
quantified in the final rule's RIA are even more conservative than when
originally calculated by FRA. Consequently, FRA strongly supports the
economic arguments and estimates advanced in its RIA for the final
rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities.
FRA certifies that this response to petitions for reconsideration does
not have a significant impact on a substantial number of small
entities. Because the amendments contained in this document either
clarify requirements currently contained in the final rule or allow for
greater flexibility in complying with the rule, FRA has concluded that
there are no substantial economic impacts on small units of government,
businesses, or other organizations.
Paperwork Reduction Act
This response to petitions for reconsideration of the final rule
does not significantly change any of the information collection
requirements contained in the original final rule.
Environmental Impact
FRA has evaluated this response to petitions for reconsideration of
the final rule in accordance with its ``Procedures for Considering
Environmental Impacts'' (FRA's Procedures)(64 FR 28545, May 26, 1999)
as required by the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), other environmental statutes, Executive Orders, and related
regulatory requirements. FRA has determined that this document is not a
major FRA action (requiring the preparation of an environmental impact
statement or environmental assessment) because it is categorically
excluded from detailed environmental review pursuant to section 4(c) of
FRA's Procedures.
Federalism Implications
FRA believes it is in compliance with Executive Order 13132.
Because the amendments contained in this response to petitions for
reconsideration of the final rule either clarify requirements currently
contained in the final rule or allow for greater flexibility in
complying with the rule, this document will not have a substantial
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This response
to petitions for reconsideration of the final rule will not have
federalism implications that impose any direct compliance costs on
State and local governments.
Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and
[[Page 17580]]
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. Because the amendments contained in
this response to petitions for reconsideration of the final rule either
clarify requirements currently contained in the final rule or allow for
greater flexibility in complying with the rule, this document will not
result in the expenditure, in the aggregate, of $100,000,000 or more in
any one year, and thus preparation of such a statement is not required.
Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) that is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this response to petitions for
reconsideration of the final rule in accordance with Executive Order
13211. Because the amendments contained in this response to petitions
for reconsideration of the final rule either clarify requirements
currently contained in the final rule or allow for greater flexibility
in complying with the rule, FRA has determined that this document will
not have a significant adverse effect on the supply, distribution, or
use of energy. Consequently, FRA has determined that this regulatory
action is not a ``significant energy action'' within the meaning of
Executive Order 13211.
List of Subjects in 49 CFR Part 232
Incorporation by reference, Penalties, Railroad power brakes,
Railroad safety, Two-way end-of-train devices.
For the reasons set forth in the preamble, Part 232 of Chapter II
of Title 49 of the Code of Federal Regulations is amended to read as
follows:
PART 232--[AMENDED]
1. The authority citation for Part 232 continues to read as
follows:
Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 49 CFR 1.49 (c), (m).
Subpart A--General--[Amended]
2. Section 232.5 is amended by revising, introductory text and the
definitions of Brake, effective and Solid block of cars:
Sec. 232.5 Definitions.
The definitions in this section are intended to clarify the meaning
of terms used in this part as it becomes applicable pursuant to
Sec. 232.1(b) and (c).
* * * * *
Brake, effective means a brake that is capable of producing its
nominally designed retarding force on the train. A car's air brake is
not considered effective if it is not capable of producing its
nominally designed retarding force or if its piston travel exceeds:
(1) 10\1/2\ inches for cars equipped with nominal 12-inch stroke
brake cylinders; or
(2) The piston travel limit indicated on the stencil, sticker, or
badge plate for that brake cylinder.
* * * * *
Solid block of cars means two or more freight cars coupled together
and added to or removed from a train as a single unit.
* * * * *
3. Section 232.15 is amended by revising paragraphs (b)(1) and (g)
to read as follows:
Sec. 232.15 Movement of defective equipment.
* * * * *
(b) Tagging of defective equipment.
(1) At the place where the railroad first discovers the defect, a
tag or card shall be placed on both sides of the defective equipment,
except that defective locomotives may have the tag or card placed in
the cab of the locomotive. In lieu of a tag or card, an automated
tracking system approved for use by FRA shall be provided. The tag,
card, or automated tracking system shall contain the following
information about the defective equipment:
(i) The reporting mark and car or locomotive number;
(ii) The name of the inspecting railroad;
(iii) The name and job title of the inspector;
(iv) The inspection location and date;
(v) The nature of each defect;
(vi) A description of any movement restrictions;
(vii) The destination where the equipment will be repaired; and
(viii) The signature, or electronic identification, of the person
reporting the defective condition.
* * * * *
(g) Designation of repair locations. Based on the guidance detailed
in paragraph (f) of this section and consistent with other requirements
contained in this part, a railroad may submit a detailed petition,
pursuant to the special approval procedures contained in Sec. 232.17,
containing a plan designating locations where brake system repairs will
be performed. Approval of such plans shall be made accordance with the
procedures contained in Sec. 232.17, and shall be subject to any
modifications determined by FRA to be necessary to ensure consistency
with the requirements and guidance contained in this part.
4. Section 232.17 is amended by revising paragraphs (a), (b)
introductory text, (b)(2), (b)(3), (d)(2) intro text, (d)(2)(i),
(g)(1), and (g)(2) to read as follows:
Sec. 232.17 Special approval procedure.
(a) General. The following procedures govern consideration and
action upon requests for special approval of a plan under
Sec. 232.15(g), an alternative standard under Sec. 232.305, and for
special approval of pre-revenue service acceptance testing plans under
subpart F of this part.
(b) Petitions for special approval of a plan or an alternative
standard. Each petition for special approval of a plan under
Sec. 232.15(g) or an alternative standard shall contain:
* * * * *
(2) The proposed plan pursuant to Sec. 232.15(g) or the proposed
alternative standard, in detail, to be substituted for the particular
requirement of this part;
(3) Appropriate data or analysis, or both, for FRA to consider in
determining whether the plan is consistent with the guidance contained
in Sec. 232.15(f) and the requirements of this part or whether the
alternative standard will provide at least an equivalent level of
safety; and
* * * * *
(d) * * *
(2) Service of each petition for special approval of a plan or an
alternative standard submitted under paragraph (b) of this section
shall be made on the following:
(i) Designated representatives of the employees of the railroad
submitting a plan pursuant to Sec. 232.15(g) or
[[Page 17581]]
designated representatives of the employees responsible for the
equipment's operation, inspection, testing, and maintenance under this
part;
* * * * *
(g) * * *
(1) If FRA finds that the petition complies with the requirements
of this section and that the proposed plan under Sec. 232.15(g), the
alternative standard, or the pre-revenue service plan is acceptable and
justified, the petition will be granted, normally within 90 days of its
receipt. If the petition is neither granted nor denied within 90 days,
the petition remains pending for decision. FRA may attach special
conditions to the approval of any petition. Following the approval of a
petition, FRA may reopen consideration of the petition for cause.
(2) If FRA finds that the petition does not comply with the
requirements of this section and that the proposed plan under
Sec. 232.15(g), the alternative standard, or the pre-revenue service
plan is not acceptable or justified, the petition will be denied,
normally within 90 days of its receipt.
* * * * *
5. Section 232.103 is amended as follows:
a. Paragraph (p) is removed; and
b. Paragraphs (n)(2), (n)(3), and (o) are revised to read as
follows:
Sec. 232.103 General requirements for all train brake systems.
* * * * *
(n) * * *
(2) Except for equipment connected to a source of compressed air
(e.g., locomotive or ground air source), prior to leaving equipment
unattended, the brake pipe shall be reduced to zero at a rate that is
no less than a service rate reduction, and the brake pipe vented to
atmosphere by leaving the angle cock in the open position on the first
unit of the equipment left unattended.
(3) Except for distributed power units, the following requirements
apply to unattended locomotives:
(i) All hand brakes shall be fully applied on all locomotives in
the lead consist of an unattended train.
(ii) All hand brakes shall be fully applied on all locomotives in
an unattended locomotive consist outside of yard limits.
(iii) At a minimum, the hand brake shall be fully applied on the
lead locomotive in an unattended locomotive consist within yard limits.
(iv) A railroad shall develop, adopt, and comply with procedures
for securing any unattended locomotive required to have a hand brake
applied pursuant to paragraph (n)(3)(i) through (n)(3)(iii) when the
locomotive is not equipped with an operative hand brake.
* * * * *
(o) Air pressure regulating devices shall be adjusted for the
following pressures:
------------------------------------------------------------------------
Locomotives PSI
------------------------------------------------------------------------
(1) Minimum brake pipe air pressure:
Road Service........................................ 90
Switch Service...................................... 60
(2) Minimum differential between brake pipe and main 15
reservoir air pressures, with brake valve in running
position...............................................
(3) Safety valve for straight air brake................. 30-55
(4) Safety valve for LT, ET, No. 8-EL, No. 14 EI, No. 6- 30-68
DS, No. 6-BL and No. 6-SL equipment....................
(5) Safety valve for HSC and No. 24-RL equipment........ 30-75
(6) Reducing valve for independent or straight air brake 30-50
(7) Self-lapping portion for electro-pneumatic brake 50
(minimum full application pressure)....................
(8) Self-lapping portion for independent air brake (full 30-50
application pressure)..................................
(9) Reducing valve for high-speed brake (minimum)....... 50
------------------------------------------------------------------------
* * * * *
6. Section 232.109 is amended by revising paragraphs (a), (g), (h),
and (j)(2) to read as follows:
Sec. 232.109 Dynamic brake requirements.
(a) Except as provided in paragraph (i) of this section, a
locomotive engineer shall be informed of the operational status of the
dynamic brakes on all locomotive units in the consist at the initial
terminal for a train and at other locations where a locomotive engineer
first begins operation of a train. The information required by this
paragraph may be provided to the locomotive engineer by any means
determined to be appropriate by the railroad; however, a written or
electronic record of the information shall be maintained in the cab of
the controlling locomotive.
* * * * *
(g) All locomotives equipped with dynamic brakes and ordered on or
after April 1, 2006, or placed in service for the first time on or
after October 1, 2007, shall be designed to:
(1) Conduct an electrical integrity test of the dynamic brake to
determine if electrical current is being received at the grids on the
system; and
(2) Display in real-time in the cab of the controlling (lead)
locomotive the total train dynamic brake retarding force available in
the train.
(h) All rebuilt locomotives equipped with dynamic brakes and placed
in service on or after April 1, 2004, shall be designed to:
(1) Conduct an electrical integrity test of the dynamic brake to
determine if electrical current is being received at the grids on the
system; and
(2) Display either the train deceleration rate or in real-time in
the cab of the controlling (lead) locomotive the total train dynamic
brake retarding force available in the train.
* * * * *
(j) * * *
(2) Include a ``miles-per-hour-overspeed-stop'' rule. At a minimum,
this rule shall require that any train when descending a section of
track with an average grade of one percent or greater over a distance
of three continuous miles shall be immediately brought to a stop, by an
emergency brake application if necessary, when the train's speed
exceeds the maximum authorized speed for that train by more than 5
miles per hour. A railroad shall reduce the 5-miles-per-hour-overspeed-
stop restriction if validated research indicates the need for such a
reduction. A railroad may increase the 5-miles-per-hour-overspeed
restriction only with approval of FRA and based upon verifiable data
and research.
* * * * *
7. Section 232.203 is amended as follows:
a. Paragraph (e)(6) is removed;
b. Paragraphs (e)(7) through (e)(9) are redesignated as paragraphs
(e)(6) through (e)(8) respectively; and
c. Paragraphs (b)(6) and (b)(8) are revised to read as follows:
Sec. 232.203 Training requirements.
* * * * *
[[Page 17582]]
(b) * * *
(6) An employee hired or working prior to June 1, 2001, for a
railroad or contractor covered by this part will be considered to have
met the requirements, or a portion of the requirements, contained in
paragraphs (b)(3) through (b)(5) of this section if the employee
receives training and testing on the specific Federal regulatory
requirements contained in this part related to the performance of the
tasks which the employee will be responsible for performing; and if:
(i) The training or testing, including efficiency testing,
previously received by the employee is determined by the railroad or
contractor to meet the requirements, or a portion of the requirements,
contained in paragraphs (b)(3) through (b)(5) of this section and such
training or testing can be documented as required in paragraphs (e)(1)
through (e)(4) of this section;
(ii) The employee passes an oral, written, or practical, ``hands-
on'' test developed or adopted by the railroad or contractor which is
determined by the railroad or contractor to ensure that the employee
possesses the skills and knowledge, or a portion of the skills or
knowledge, required in paragraphs (b)(3) through (b)(5) of this section
and the test is documented as required in paragraph (e) of this
section; or
(iii) The railroad or contractor certifies that a group or segment
of its employees has previously received training or testing determined
by the railroad or contractor to meet the requirements, or a portion of
the requirements, contained in paragraphs (b)(3) through (b)(5) of this
section and complete records of such training are not available,
provided the following conditions are satisfied:
(A) The certification is placed in the employee's training records
required in paragraph (e) of this section;
(B) The certification contains a brief description of the training
provided and the approximate date(s) on which the training was
provided; and
(C) Any employee determined to be trained pursuant to this
paragraph is given a diagnostic oral, written, or ``hands-on'' test
covering that training for which this paragraph is relied upon at the
time the employee receives his or her first periodic refresher training
under paragraph (b)(8) of this section.
(iv) Any combination of the training or testing contained in
paragraphs (b)(6)(i) through (b)(6)(iii) of this section and paragraphs
(b)(3) through (b)(5) of this section.
* * * * *
(8) Require periodic refresher training, at an interval not to
exceed three years, that includes classroom and ``hands-on'' training,
as well as testing; except that employees that have completed their
initial training under paragraphs (b)(3) through (b)(6) of this part
prior to April 1, 2004, shall not be required to complete their first
periodic refresher training until four years after the completion of
their initial training, and every three years thereafter. Observation
and evaluation of actual performance of duties may be used to meet the
``hands-on'' portion of this requirement, provided that such testing is
documented as required in paragraph (e) of this section; and
* * * * *
8. Section 232.205 is amended as follows:
a. Paragraph (f) is removed;
b. Paragraphs (b) through (e) are redesignated as paragraphs (c)
through (f) respectively;
c. A new paragraph (b) is added;
d. The introductory text of paragraph (a) is revised; and
e. Paragraph (a)(2)(i) and redesignated paragraphs (c)(2) and
(c)(4) are revised to read as follows:
Sec. 232.205 Class I brake test-initial terminal inspection.
(a) Each train and each car in the train shall receive a Class I
brake test as described in paragraph (c) of this section by a qualified
person, as defined in Sec. 232.5, at the following points:
* * * * *
(2) * * *
(i) Adding a single car or a solid block of cars, except as
provided in paragraph (b)(2) of this section;
* * * * *
(b) Except as provided in Sec. 232.209, each car and each solid
block of cars added to a train shall receive a Class I brake test as
described in paragraph (c) of this section at the location where it is
added to a train unless:
(1) The solid block of cars is comprised of cars from a single
previous train, the cars of which have previously received a Class I
brake test and have remained continuously and consecutively coupled
together with the train line remaining connected, other than for
removing defective equipment, since being removed from its previous
train and have not been off air for more than four hours; or
(2) The solid block of cars is comprised of cars from a single
previous train, the cars of which were required to be separated into
multiple solid blocks of cars due to space or trackage constraints at a
particular location when removed from the previous train, provided the
cars have previously received a Class I brake test, have not been off
air more than four hours, and the cars in each of the multiple blocks
of cars have remained continuously and consecutively coupled together
with the train line remaining connected, except for the removal of
defective equipment. Furthermore, these multiple solid blocks of cars
shall be added to a train in the same relative order (no
reclassification) as when removed from the previous train, except for
the removal of defective equipment.
* * * * *
(c) * * *
(2) The inspector(s) shall take a position on each side of each car
sometime during the inspection process so as to be able to examine and
observe the functioning of all moving parts of the brake system on each
car in order to make the determinations and inspections required by
this section. A ``roll-by'' inspection of the brake release as provided
for in paragraph (b)(8) of this section shall not constitute an
inspection of that side of the train for purposes of this requirement;
* * * * *
(4) The brakes on each car shall apply in response to a 20-psi
brake pipe service reduction and shall remain applied until a release
of the air brakes has been initiated by the controlling locomotive or
yard test device. The brakes shall not be applied or released until the
proper signal is given. A car found with brakes that fail to apply or
remain applied may be retested and remain in the train if the retest is
conducted at an air pressure that is within 15 psi of the air pressure
at which the train will be operated. The retest may be conducted from
either the controlling locomotive, the head-end of the consist, or with
a suitable test device, as described in Sec. 232.217(a), positioned at
one end of the car(s) being retested, and the brakes shall remain
applied until a release is initiated after a period which is no less
than three minutes. If the retest is performed at the car(s) being
retested with a suitable device, the compressed air in the car(s) shall
be depleted prior to disconnecting the hoses between the car(s) to
perform the retest;
* * * * *
9. Section 232.207 is amended by revising paragraphs (b)(1) and
(b)(4) to read as follows:
Sec. 232.207 Class IA brake tests--1,000-mile inspection.
* * * * *
(b) * * *
(1) Brake pipe leakage shall not exceed 5 psi per minute, or air
flow
[[Page 17583]]
shall not exceed 60 cubic feet per minute (CFM). The brake pipe leakage
test or air flow method test shall be conducted pursuant to the
requirements contained in Sec. 232.205(c)(1);
* * * * *
(4) The brakes on each car shall apply in response to a 20-psi
brake pipe service reduction and shall remain applied until the release
is initiated by the controlling locomotive. A car found with brakes
that fail to apply or remain applied may be retested and remain in the
train if the retest is conducted as prescribed in Sec. 232.205(c)(4);
otherwise, the defective equipment may only be moved pursuant to the
provisions contained in Sec. 232.15, if applicable;
* * * * *
10. Section 232.209 is amended as follows:
a. The last sentence of paragraph (d) is removed;
b. A new paragraph (a)(4) is added; and
c. Paragraphs (a)(3), (b)(1), and (b)(3) are revised to read as
follows:
Sec. 232.209 Class II brake tests-intermediate inspection.
(a) * * *
(3) Except as provided in paragraph (a)(4) of this section, each
solid block of cars that is comprised of cars from only one previous
train, the cars of which have not remained continuously and
consecutively coupled together with the train line remaining connected
since being removed from the previous train. A solid block of cars is
considered to have remained continuously and consecutively coupled
together with the train line remaining connected since being removed
from the previous train if it has been changed only by removing
defective equipment.
(4) Each solid block of cars that is comprised of cars from a
single previous train, the cars of which were required to be separated
into multiple solid blocks of cars due to space or trackage constraints
at a particular location when removed from the previous train, if they
are not added in the same relative order as when removed from the
previous train or if the cars in each of the multiple blocks of cars
have not remained continuously and consecutively coupled together with
the train line remaining connected, except for the removal of defective
equipment.
(b) * * *
(1) Brake pipe leakage shall not exceed 5 psi per minute, or air
flow shall not exceed 60 cubic feet per minute (CFM). The brake pipe
leakage test or air flow method test shall be conducted on the entire
train pursuant to the requirements contained in Sec. 232.205(c)(1);
* * * * *
(3) The brakes on each car added to the train and on the rear car
of the train shall be inspected to ensure that they apply in response
to a 20-psi brake pipe service reduction and remain applied until the
release is initiated from the controlling locomotive. A car found with
brakes that fail to apply or remain applied may be retested and remain
in the train if the retest is conducted as prescribed in
Sec. 232.205(c)(4); otherwise, the defective equipment may only be
moved pursuant to the provisions of Sec. 232.15, if applicable;
* * * * *
11. Section 232.211 is amended as follows:
a. A new paragraph (d) is added; and
b. Paragraphs (a)(4), (a)(5), and (b)(1) are revised to read as
follows:
Sec. 232.211 Class III brake tests-trainline continuity inspection.
(a) * * *
(4) At a point other than the initial terminal for the train, where
a solid block of cars that is comprised of cars from a single previous
train is added to a train, provided that the solid block of cars was
required to be separated into multiple solid blocks of cars due to
space or trackage constraints at a particular location when removed
from the previous train, and the cars have previously received a Class
I brake test, have not been off air more than four hours, and the cars
in each of the multiple blocks of cars have remained continuously and
consecutively coupled together with the train line remaining connected,
except for the removal of defective equipment. Furthermore, these
multiple solid blocks of cars must be added to the train in the same
relative order (no reclassification) as when removed from the previous
train, except for the removal of defective equipment; or
(5) At a point other than the initial terminal for the train, where
a car or a solid block of cars that has received a Class I or Class II
brake test at that location, prior to being added to the train, and
that has not been off air for more than four hours is added to a train.
(b) * * *
(1) The train brake system shall be charged to the pressure at
which the train will be operated, and the pressure at the rear of the
train shall not be less than 60 psi, as indicated at the rear of the
train by an accurate gauge or end-of-train device;
* * * * *
(d) Whenever the continuity of the brake pipe is broken or
interrupted with the train consist otherwise remaining unchanged, it
must be determined that the brake pipe pressure of the train is being
restored as indicated by a rear car gauge or end-of-train device prior
to proceeding. In the absence of an accurate rear car gauge or end-of-
train telemetry device, it must be determined that the brakes on the
rear car of the train apply and release in response to air pressure
changes made in the controlling locomotive.
12. Section 232.213 is amended by adding three new sentences to the
end of paragraph (a)(6) and one new sentence to the end of paragraph
(a)(7) to read as follows:
Sec. 232.213 Extended haul trains.
(a) * * *
(6) * * * After April 1, 2007, the inbound inspection described in
this paragraph shall not be required unless FRA provides notification
to the industry extending the requirement to perform inbound
inspections on extended haul trains. FRA's determination to extend the
inbound inspection requirement will be based on the records required to
be maintained pursuant to paragraph (a)(7) of this section and any
other relevant safety data. FRA's notification will be published in the
Federal Register and will contain the basis of any determination.
(7) * * * After April 1, 2007, the records described in this
paragraph need not be maintained unless FRA provides the notification
required in paragraph (a)(6) of this section extending the requirement
to conduct inbound inspections on extended haul trains.
* * * * *
13. Section 232.215 is amended by revising paragraph (a)(3) to read
as follows:
Sec. 232.215 Transfer train brake tests.
(a) * * *
(3) An inspection shall be made to determine that the brakes on
each car apply and remain applied until the release is initiated by the
controlling locomotive. A car found with brakes that fail to apply or
remain applied may be retested and remain in the train if the retest is
conducted as prescribed in Sec. 232.205(c)(4); otherwise, the defective
equipment may be moved only pursuant to the provisions contained in
Sec. 232.15, if applicable;
* * * * *
14. Section 232.217 is amended by revising the introductory text of
paragraph (c) and by revising paragraphs (c)(1) and (c)(3) to read as
follows:
[[Page 17584]]
Sec. 232.217 Train brake tests conducted using yard air.
* * * * *
(c) Except as provided in this section, when yard air is used the
train air brake system must be charged and tested as prescribed by
Sec. 232.205(c) and when practicable should be kept charged until road
motive power is coupled to train, after which, a Class III brake test
shall be performed as prescribed by Sec. 232.211.
(1) If the cars are off air for more than four hours, the cars
shall be retested in accordance with Sec. 232.205(c) through (f).
* * * * *
(3) If the air pressure of the yard test device is less than 80
psi, then a brake pipe leakage or air flow test shall be conducted at
the operating pressure of the train when the locomotives are attached
in accordance with Sec. 232.205(c)(1).
* * * * *
15. Section 232.219 is amended by revising paragraph (c)(2) to read
as follows:
Sec. 232.219 Double heading and helper service.
* * * * *
(c) * * *
(2) A method to reset the device shall be provided in the cab of
the helper locomotive that can be operated from the engineer's usual
position during operation of the locomotive. Alternatively, the helper
locomotive or the device shall be equipped with a means to
automatically reset the device, provided that the automatic reset
occurs within the period time permitted for manual reset of the device;
and
* * * * *
16. Section 232.303 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 232.303 General requirements.
(a) * * *
(2) Major repair means a repair that normally would require greater
than four person-hours to accomplish or would involve the use of
specialized tools and equipment. Major repairs include such activities
as coupler replacement, draft gear repair, and repairs requiring the
use of an air jack but exclude changing wheels on intermodal loading
ramps either with or without an air jack.
* * * * *
17. Section 232.407 is amended by adding paragraph (g)(2) to read
as follows:
Sec. 232.407 Operations requiring use of two-way end-of-train devices;
prohibition on purchase of nonconforming devices.
* * * * *
(g) * * *
(2) If a two-way end-of-train device fails en route while the train
on which it is installed is operating over a section of track with an
average grade of two percent or greater for a distance of two
continuous miles, the train shall be brought safely to a stop at the
first available location in accordance with the railroad's operating
rule, except the train may continue in operation if the railroad
provides one of the alternative measures detailed in paragraph (g)(1)
of this section.
* * * * *
18. Section 232.409 is amended by revising paragraphs (c) and (d)
to read as follows:
Sec. 232.409 Inspection and testing of end-of-train devices.
* * * * *
(c) A two-way end-of-train device shall be tested at the initial
terminal or other point of installation to determine that the device is
capable of initiating an emergency power brake application from the
rear of the train. If this test is conducted by a person other than a
member of the train crew, the locomotive engineer shall be notified
that a successful test was performed. The notification required by this
paragraph may be provided to the locomotive engineer by any means
determined appropriate by the railroad; however, a written or
electronic record of the notification shall be maintained in the cab of
the controlling locomotive and shall include the date and time of the
test, the location where the test was performed, and the name of the
person conducting the test.
(d) The telemetry equipment shall be tested for accuracy and
calibrated if necessary according to the manufacturer's specifications
and procedures at least every 368 days. The 368 days shall not include
a shelf-life of up to 92 days prior to placing the unit in service.
This test shall include testing radio frequencies and modulation of the
device. The date and location of the last calibration or test as well
as the name of the person performing the calibration or test shall be
legibly displayed on a weather-resistant sticker or other marking
device affixed to the outside of both the front unit and the rear unit;
however, if the front unit is an integral part of the locomotive or is
inaccessible, then the information may recorded on Form FRA F6180-49A
instead, provided that the serial number of the unit is recorded.
* * * * *
19. Appendix A to part 232 is amended by removing Sec. 232.103(p)
from the Schedule of Civil Penalties.
20. Appendix B to part 232 is amended by:
A. Revising the heading;
B. Designating the current text as subdivision I and adding a
heading;
C. Adding subdivision II.
The revised and added text reads as follows:
Appendix B to Part 232--Part 232 prior to May 31, 2001 as Clarified
Effective April 10, 2002.
1. Part 232 prior to May 31, 2001.
* * * * *
II. Clarification effective April 10, 2002.
This subdivision II contains the following clarifications of 49
CFR part 232 as it read before May 31, 2001. Section 232.13(d)(2)(i)
is amended to correct a typographical error made in 1986. See 33 FR
19679, 51 FR 17303. Section 232.17(a)(2)(iii) is amended to clarify
that the single car test required to be performed pursuant to this
paragraph may be conducted in accordance with the applicable AAR
Code of Tests or the American Public Transportation Association
standard referenced in 49 CFR 238.311(a). Section 232.17(b)(3) is
amended by inserting FRA's current address as the location where the
standards and procedures referenced in Sec. 232.17 can be obtained.
Sec. 232.13 Road train and intermediate terminal train air brake
tests.
* * * * *
(d) * * *
(2)(i) At a terminal where a solid block of cars, which has been
previously charged and tested as prescribed by Sec. 232.12 (c) through
(j), is added to a train, it must be determined that the brakes on the
rear car of the train apply and release. As an alternative to the rear
car application and release test, it shall be determined that brake
pipe pressure of the train is being reduced as indicated by a rear car
gauge or device and then that brake pipe pressure of the train is being
restored as indicated by a rear car gauge or device.
* * * * *
Sec. 232.17 Freight and passenger train car brakes.
(a) * * *
(2) * * *
(iii) When a car equipped for use in passenger train service not
due for periodical air brake repairs, as indicated by stenciled or
recorded cleaning dates, is on shop or repair tracks, brake equipment
must be tested by use of single car testing device as prescribed by the
applicable AAR Code of Tests or
[[Page 17585]]
by the American Public Transportation Association (APTA) standard
referenced in Sec. 238.311(a) of this chapter. Piston travel of brake
cylinders must be adjusted if required, to the standard travel for that
type of brake cylinder. After piston travel has been adjusted and with
brakes released, sufficient brake shoe clearance must be provided.
* * * * *
(b) * * *
(3) Copies of the materials referred to in this section may be
obtained from the Federal Railroad Administration, Office of Safety,
RRS-14, 1120 Vermont Avenue, NW., Stop 25, Washington DC 20590.
* * * * *
Issued in Washington, DC, on April 1, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-8183 Filed 4-9-02; 8:45 am]
BILLING CODE 4910-06-P