Locomotive Event Recorders

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

[Federal Register: June 30, 2005 (Volume 70, Number 125)]
[Rules and Regulations]
[Page 37919-37944]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn05-24]
[[Page 37920]]

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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 229
[Docket No. FRA-2003-16357, Notice No. 3]
RIN 2130-AB34

AGENCY: Federal Railroad Administration (FRA), (DOT).
ACTION: Final rule.

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SUMMARY: FRA is issuing revisions to the regulations governing
locomotive event recorders to improve the crashworthiness of railroad
locomotive event recorders and to enhance the quality of information
available for post-accident investigations. FRA is amending its
existing regulations in four major ways: By requiring that a new
locomotive have an event recorder with a ``hardened'' memory module,
proven by a requirement that the memory module preserve stored data
throughout a sequence of prescribed tests; by requiring that this event
recorder on a new locomotive collect certain additional types of
information; by simplifying standards for inspecting, testing, and
maintaining all event recorders; and by requiring the phasing out, over
a four-year period, of event recorders on existing locomotives that use
magnetic tape as a data storage medium and their replacement with event
recorders with a certified survivable version of its previous event
recorder. FRA is also revising the definitions contained in the
existing regulation to remove the letter designations so that the
defined terms are simply presented in alphabetical order.

EFFECTIVE DATE: This final rule is effective October 1, 2005.

ADDRESSES: Petitions: Any petitions for reconsideration related to
Docket No. FRA-2003-16357, may be submitted by any of the following
methods:
? Web site: http://dms.dot.gov. Follow the instructions
for submitting comments on the DOT electronic docket site.
? Fax: 1-202-493-2251.
? Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
? Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m. Monday through Friday, except Federal Holidays.
? Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov including any personal information. Please
see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of
this document for Privacy Act information related to any submitted
comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to PL-401 on
the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m. Monday through Friday, except
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Edward W. Pritchard, Director, Office
of Safety Assurance and Compliance, RRS-10, Mail Stop 25, Federal
Railroad Administration, Department of Transportation, 1120 Vermont
Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas
J. Herrmann, Trial Attorney, Office of Chief Counsel, Mail Stop 10,
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington,
DC 20590 (telephone 202-493-6036).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

Sections 10 and 21 of the Rail Safety Improvement Act of 1988
(RSIA), Public Law 100-342, 102 Stat. 624 (June 22, 1988), provide as
follows:

Sec. 10. Event Recorders.
Section 202 of the Federal Railroad Safety Act of 1970 is
amended by adding at the end the following new subsection:
``(m)(1)(A) The Secretary shall, within 18 months after the date
of the enactment of the Rail Safety Improvement Act of 1988, issue
such rules, regulations, standards, and orders as may be necessary
to enhance safety by requiring that trains be equipped with event
recorders within 1 year after such rules, regulations, orders, and
standards are issued.
``(B) If the Secretary finds that it is impracticable to equip
trains as required under subparagraph (A) within the time limit
under such subparagraph, the Secretary may extend the deadline for
compliance with such requirement, but in no event shall such
deadline be extended past 18 months after such rules, regulations,
orders, and standards are issued.
``(2) For the purpose of this subsection, the term `event
recorders' means devices that--
``(A) record train speed, hot box detection, throttle position,
brake application, brake operations, and any other function the
Secretary considers necessary to record to assist in monitoring the
safety of train operation, such as time and signal indication; and
``(B) are designed to resist tampering.''
* * *
Sec. 21. Tampering With Safety Devices.
Section 202 of the Federal Railroad Safety Act of 1970 is
amended by adding at the end the following new subsection:
``(o)(1) The Secretary shall * * * issue such rules,
regulations, orders, and standards as may be necessary to prohibit
the willful tampering with, or disabling of, specified railroad
safety or operational monitoring devices.
* * *

Codified at 49 U.S.C. 20137-20138, superseding 45 U.S.C. 431(m) and
(o).

II. Proceedings to Date

On November 23, 1988, FRA published an ANPRM (Advance Notice of
Proposed Rulemaking) in FRA Docket No. LI-7, soliciting comments on how
to implement these statutory mandates concerning event recorders. See
53 FR 47557. On June 18, 1991, FRA published an NPRM in that docket,
setting forth proposed regulations on event recorders, the elements
they were to record, and the preservation of data from the event
recorder in the event of an accident. See 56 FR 27931. Two public
hearings were held in order to facilitate public participation; the
written comments submitted in response to the NPRM were extensive,
detailed, and helpful.
FRA prescribed final event recorder rules, effective May 5, 1995
(58 FR 36605, July 8, 1993) and issued a response to petitions for
reconsideration (60 FR 27900, May 26, 1995); they were codified
principally at 49 CFR 229.135. In issuing the final rules, FRA noted
the need to provide more refined technical standards. The National
Transportation Safety Board (NTSB) had previously remarked on the loss
of data from event recorders in several accidents due to fire, water,
and mechanical damage. NTSB proposed performance standards and agreed
to serve as co-chair for a joint industry/government working group that
would refine technical standards for next-generation event recorders.
FRA conducted a meeting of an informal working group comprised of
railroad labor and management representatives and co-chaired by NTSB on
December 7, 1995, to consider development of technical standards. At
the July 24-25, 1996 meeting of FRA's Railroad Safety Advisory
Committee (RSAC), the Association of American Railroads (AAR) agreed to
continue the

[[Page 37921]]

inquiry and on November 1, 1996, reported the status of work on
proposed industry standards to the RSAC.
On March 5, 1997, the NTSB issued several recommendations regarding
testing and maintenance of event recorders as a result of its findings
in the investigation of an accident on February 1, 1996, at Cajon Pass,
CA. As the Board noted in its recommendation to FRA, the train that
derailed in Cajon Pass ``had an event recorder that was not fully
operational. The self-diagnostic light on the unit was insufficient to
fully examine the unit and ensure that it was recording the data.'' The
Board recommended that inspection and testing of event recorders
``include, at a minimum, a review of the data recorded during actual
operations of the locomotive to verify parameter functionality. * * *
See NTSB Recommendation R-96-70.

III. RSAC Overview

In March 1996, FRA established the RSAC, which provides a forum for
developing consensus recommendations on rulemakings and other safety
program issues. The Committee includes representation from all of the
agency's major customer groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AARPCO)
American Association of State Highway & Transportation Officials
(AASHTO)
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Department/Brotherhood of Locomotive
Engineers (ATDD/BLE)
National Passenger Railroad Corporation (Amtrak)
Association of American Railroads (AAR)
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers and Trainmen (BLET)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
Hotel Employees & Restaurant Employees International Union
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers and Blacksmiths
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Transportation Safety Board (NTSB)*
Railway Progress Institute (RPI)
Safe Travel America
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWUA)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)

*Indicates associate membership.

When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts options on a particular aspect of a given
task. The task force then provides that information to the working
group for consideration. If a working group comes to unanimous
consensus on recommendations for action, the package is presented to
the RSAC for a vote. If the proposal is accepted by a simple majority
of the RSAC, the proposal is formally recommended to FRA. FRA then
determines what action to take on the recommendation. Because FRA staff
has played an active role at the working group level in discussing the
issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation and the agency exercises its independent judgement on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal. If the
working group or RSAC is unable to reach consensus on recommendations
for action, FRA moves ahead to resolve the issue through traditional
rulemaking proceedings.

On March 24, 1997, the RSAC indicated its desire to receive a task
to consider the NTSB recommendations with regard to crash
survivability, testing, and maintenance. A task was presented to, and
accepted by, the RSAC on June 24, 1997. The Working Group on Event
Recorders was formed, and a Task Force established. Members of the
Working Group, in addition to FRA, included the following:

AAR, including members from
The Burlington Northern and Santa Fe Railway Company (BNSF),
Canadian National Railway Company (CN),
Canadian Pacific Railway Company (CP),
Consolidated Rail Corporation (CR)
CSX Transportation, Incorporated (CSX),
Florida East Coast Railway Company (FEC),
Illinois Central Railroad Company (IC),
Norfolk Southern Corporation (NS),
Union Pacific Railroad Company (UP),
APTA, including members from
Southeastern Pennsylvania Transportation Authority (SEPTA)
Amtrak,
Bach-Simpson,
BLET,
EDI,
General Motors Corporation/Electro-Motive Division (EMD)
IBEW,
Pulse/Wabco,
Q-Tron,
TCIU/BRC, and
UTU.

The NTSB met with the Working Group and provided staff advisors. In
addition, GE-Harris, STV Incorporated, and Peerless Institute attended
many of the meetings and contributed to the technical discussions.

The Working Group and related Task Force conducted a number of
meetings and discussed each of the matters proposed in the NPRM issued
in this matter. Minutes of these meetings have been made part of the
docket in this proceeding. The Working Group reached full consensus on
a recommended proposal on October 20, 2003, and transmitted the
document as its recommendation to the full RSAC for its concurrence via
mail ballot on October 23, 2003. By November 12, 2003, the deadline set
for casting a ballot in this matter, thirty-five of the

[[Page 37922]]

forty-eight voting members of the full RSAC had returned their ballots
on the regulatory recommendation submitted by the Working Group. All
thirty-five of the voting members concurred with and accepted the
Working Group's recommendation. Thus, the Working Group's
recommendation became the full RSAC's recommendation to FRA. After
reviewing the full RSAC's recommendation, FRA adopted the
recommendation with minor changes for purposes of clarity, and
responsiveness to certain comments made by Working Group and RSAC
members when submitting their concurrences.
On June 30, 2004, FRA published an NPRM containing the
recommendations of the Working Group and the full RSAC. See 69 FR
39774. The NPRM provided for a 60-day comment period and provided
interested parties the opportunity to request a public hearing. Based
on the comments received, FRA issued a notice on September 2, 2004,
scheduling a public hearing for September 30, 2004 and extending the
comment period an additional 41 days to October 11, 2004. See 69 FR
54255 (September 8, 2004). FRA received comments from 22 interested
parties, most of these were private citizens or private law firms.
Subsequent to the close of the comment period, the Working Group
conducted a meeting to review and discuss the comments received in
response to the NPRM. The Working Group discussed all of the issues
raised in the comments and considered various methods by which to
address the comments. Minutes of these meetings have been made part of
the docket in this proceeding. Based on information and discussions
held at these meetings, the Working Group developed a potential
recommendation for a final rule. The Working Group reached full
consensus on a recommended proposal for a final rule on May 3, 2005,
and transmitted the document as its recommendation to the full RSAC for
its concurrence via mail ballot on May 13, 2005. On June 6, 2005,
twenty-eight of the forty-five voting members of the full RSAC had
returned their ballots on the regulatory recommendation submitted by
the Working Group. All twenty-eight of the voting members concurred
with and accepted the Working Group's recommendation. Thus, the Working
Group's recommendation related to this final rule became the full
RSAC's recommendation to FRA. FRA further reviewed the recommendation
and adopted it with minor changes for purposes of clarity.
Throughout the preamble discussion of this final rule, FRA refers
to comments, views, suggestions, or recommendations made by members of
the Working Group. When using this terminology, FRA is referring to
views, statements, discussions, or positions identified or contained in
either the minutes of the Working Group and Task Force meetings or the
specific written submissions discussed above. These documents have been
made part of the docket in this proceeding and are available for public
inspection as discussed in the preceding ADDRESSES portion of this
document. These points are discussed to show the origin of certain
issues and the course of discussions on those issues at the working
group level. We believe this helps illuminate factors FRA has weighed
in making its regulatory decisions, and the logic behind those
decisions. The reader should keep in mind, of course, that only the
full RSAC makes recommendations to FRA, and it is the consensus
recommendation of the full RSAC on which FRA is acting.

IV. Section-by-Section Analysis

The AAR Universal Machine Language Equipment Register (UMLER) file
had approximately 28,000 locomotives registered as of January 1, 2000,
including locomotives operated by shortline and regional railroads,
Canadian and Mexican railroads, and Amtrak. Portions of the Canadian
and Mexican fleet operate in the United States. Every major railroad
uses event recorders, and no railroads report a difficulty in complying
with the 1995 regulations requiring event recorders on the lead
locomotive of any train operated faster than 30 miles per hour. As
noted above, this proceeding builds on the current regulations in Part
229 and adds requirements for crash survivability and enhanced data
collection by event recorders. In addition, this final rule requires
the installation of these current ``state-of-the-art'' event recorders
in new locomotives and would require that, if a locomotive with an
event recorder is remanufactured, it be equipped with a certified
survivable version of its previous event recorder.
As noted previously, FRA received comments from 22 interested
parties in response to the NPRM. The specific comments are addressed
and discussed in the section-by-section analysis related to the
provision that was the subject of the submitted comment.
Section 229.5. This section contains an extensive set of
definitions. FRA intends these definitions to clarify the meaning of
terms as they are used in the text of the final rule. The final rule
retains all of the definitions proposed in the NPRM with the only
changes being a slight modification of the definition of the term
``distributed power system'' for clarity and the addition of a
definition for the term ``DMU Locomotive,'' which will be explained in
detail below. One commenter suggested the addition of a definition for
the term ``positive train control (PTC)'' because event recorders are
an integral part of any PTC system. FRA agrees with the RSAC's
recommendation not to include a definition for PTC in this final rule
because the term is not used in the rule text contained in this part
and the term is adequately defined in the new regulations related to
train control systems recently added to 49 CFR part 236. See 70 FR
11051 (March 7, 2005).
The final rule entirely rewrites the ``definitions'' section as it
currently exists in part 229 in order to remove the letter designations
from the subparagraphs so that the terms are simply presented in
alphabetical order. Several of the definitions introduce new concepts
or new terminologies that require further discussion. The following
discussion is arranged in the order in which the added or revised
definitions appear in the rule text.
Controlling remote distributed power locomotive is a new definition
added to this final rule in response to concerns discussed in comments
received in response to the NPRM. The definition is being added in
order to clearly identify what constitutes a controlling remote
distributed power locomotive addressed by the requirements of this
final rule. A controlling remote distributed power locomotive means the
locomotive in a distributed power consist that receives the coded
signal from the lead locomotive consist of the train whether commanded
automatically by the distributed power system or independently by the
locomotive engineer. A distributed power system means a system that
provides control of a number of locomotives dispersed throughout a
train from a controlling locomotive located in the lead position. The
system provides control of the rearward locomotives by command signals
originating at the lead locomotive and transmitted to the remote
(rearward) locomotives.
Cruise control, an added definition, describes the device that
controls locomotive power output to maintain a targeted speed.
Primarily used on through-route passenger equipment, this device allows
the engineer a choice between automated controls or the traditional
throttle handle. Devices that only function at or below 30 miles per

[[Page 37923]]

hour, such as those used in the loading/unloading of unit trains of
bulk commodities, or those used to move equipment through car or
locomotive washers, are not considered cruise controls for purposes of
this part.
Data element, an added definition, clarifies that the data recorded
may be directly passed through or they may be derived from other data.
As an example, speed may be calculated from time and distance; the
event recorder may capture ``speed'' by calculating that value using
the common formula of dividing distance by time. An alternative term
``data parameter'' is not used in this final rule because a
``parameter'' connotes one value standing for all others of a class and
an ``element'' is a discrete value. Data may be derived from both
recorded and unrecorded ``facts'' in the memory module. For instance,
the distance element in the calculation of speed may be derived from a
count of the wheel revolutions (data from the memory module) and the
wheel diameter or wheel circumference (data measured directly from a
physical component and, thus, not stored in the memory module).
Distributed power system, an added definition, describes a system
to allow the engineer in the lead unit to control locomotive power
units placed within the train consist. Typically, a radio link is
established between the lead unit and the remote power consist so that
a single engineer can control several locomotives not directly coupled
to the lead unit. FRA notes that this definition has been modified
slightly from that proposed in the NPRM. FRA agrees with the RSAC's
recommendation that the word ``automatic'' used in the proposed
definition did not accurately reflect the way distributed power systems
operate. Distributed power systems allow for either synchronous or non-
synchronous operation, only the former of which results in the
distributed units responding ``automatically'' to the controls of the
lead locomotive. Thus, the definition has been modified from that
contained in the NPRM by removing the word ``automatic'' to avoid any
misunderstanding regarding how these systems function.
DMU locomotive, a new definition, is being added to this final rule
in order to specifically identify diesel-powered multiple unit
locomotives. Diesel-powered MUs are just starting to be used by a small
number of passenger railroads. However, FRA and the industry believes
that the use of DMU locomotives will expand significantly in the
future. For purposes of event recorders, DMU locomotives will be
treated the same as MU locomotives. For other portions of part 229 the
two types of locomotives may be treated differently.
Event recorder is a revised definition. The definition that is
currently in the regulations is modified so that the list of data
elements to be recorded will now appear in rewritten Sec. 229.135(b).
This change is necessary because the final rule requires the event
recorders on new locomotives to record more data elements than the
recorders required by the regulation as it existed prior to this final
rule.
FRA received a comment from one party questioning whether the 48-
hour monitoring and recording requirement for event recorders is
sufficient, without further elaborating on the need for such an
extension. FRA has not found the need to require the monitoring and
recording of train information beyond the 48 hours required under the
existing regulation. The RSAC, through the Working Group, discussed
this issue and determined that the 48-hour provision adequately
captures the necessary data and recommended no increase to the time
frame. As FRA has not found the need to require the monitoring and
recording of train information beyond the 48 hours required under the
existing regulation, FRA has adopted the RSAC's recommendation.
Furthermore, any increase to the amount of data that must be stored
could significantly increase the cost of producing and acquiring the
event recorder, and FRA is not willing to impose additional costs
without an established need.
In the NPRM, FRA noted that the issues of accuracy, resolution, and
sampling rate remained unresolved, provided a brief discussion related
to sampling rates, and requested comment from interested parties on
this subject. See 69 FR 39779-80. FRA received comments from the BLET
supporting the adoption of the IEEE sampling rate standard detailed in
the preamble to the NPRM. FRA also received comments from the AAR
objecting to the use of the IEEE sampling rate standard based on its
belief that the standard is too high and not applicable to railroad
operations. AAR asserts that a sampling rate of 50 samples per second
is unnecessary as events do not happen that fast on railroads and the
most modern locomotive event recorders only record data once per
second. Furthermore, increasing the sampling rate above what is
currently being manufactured would significantly increase the costs of
the recorders. AAR also noted that Transport Canada's regulations do
not mandate a specific sampling rate.
The issue was discussed by the Working Group, and one manufacturer
explained that current microprocessor based event recorders sample at
least 20 times per second and record one time per second. Thus, event
recorders do not record at anywhere near the rate at which they sample.
The Working Group recommended that no sampling rate be mandated in the
regulation for the above-noted reasons. FRA believes that the currently
manufactured event recorders have an acceptable sampling rate, and FRA
is not aware of any instance where a higher sampling rate was
necessary. Moreover, FRA and the Working Group concentrated on the
crashworthiness aspects of the event recorder memory module, together
with enhancing the kind of data to be collected for post-accident
analysis. FRA believes that this focus is both an ordering of
priorities and a recognition that the industry has an economic and
operational incentive to make the data as accurate as possible. What
the event recorder stores are data that are, first and foremost,
indispensable to the operation of the locomotive. Because the railroads
have operational needs for the same data elements that are also vital
to accident analysis, the ``numbers'' tend to be accurate and, with
microprocessor-based event recorders, the data thus generated during
the ordinary course of business are not diminished in accuracy just
because they are stored. In addition, microprocessor-based event
recorders run so fast that the sampling intervals are naturally short,
and they may be adjusted differently for different elements. Thus, FRA
agrees with the recommendation of the Working Group and RSAC and will
not mandate a specific sampling rate in this final rule but will
continue to monitor the operation of event recorders to determine if
further regulatory action is necessary on this issue.
Event recorder memory module, a new definition, describes the
portion of the event recorder that will be required to meet the
crashworthiness standard contained in Appendix D to Part 229.
Lead locomotive is a definition moved from current Sec. 229.135(a)
and revised to reflect current industry practice and to make it clear
that ``lead locomotive'' describes a set position in the train rather
than the locomotive from which the crew is operating the train. This
change was necessary, among other reasons, to accurately record the
signal indications displayed to the crew of the train.
Mandatory directive is a definition also contained in Sec. 220.5
of this chapter and is being included in this part to aid in
understanding the type of data that is

[[Page 37924]]

to be captured by the event recorder when a railroad utilizes a train
control system pursuant to Part 236 of this chapter.
Remanufactured locomotive, a new definition, is added to clarify
when an existing event recorder-equipped locomotive must be equipped
with a crashworthy event recorder.
Self-monitoring event recorder, a new definition, is added to state
clearly the conditions under which an event recorder does not require
periodic maintenance. One member of the Working Group, in a written
submission to FRA, suggested that this definition be slightly altered
to state that a self-monitoring event recorder is one that has the
ability to monitor its own operation and to display an indication to
the locomotive operator either when any data required to be stored are
not stored or when the input signal or stored signal is detected as
out-of-range. This commenter stated that there is no way to verify
whether the stored data matches the data received from the sensor or
data collection point as described in the definition. Examples of this
are when a sensor fails open and the locomotive computer does not pass
that information to the event recorder, or when a speed sensor is not
producing any output due to certain failure modes. However, certain
data elements can be programmed with a minimum or maximum range and if
the sensor input is outside that range then an appropriate indication
can be provided to the operator. Although FRA sought comments from
interested parties on this suggested change to the definition no
comments or suggestions were received and no support for such a change
was indicated. Consequently, FRA is retaining the definition proposed
in the NPRM in this final rule.
Throttle position, a new definition, is added to capture the
industry understanding about this parameter of locomotive operation.
The NPRM contains a detailed discussion regarding the use of the term
``throttle position,'' which provides additional information and
background regarding the nature and meaning of the term as used in this
final rule. See 69 FR 39777. While typical diesel-electric freight
locomotives have positions, or ``notches'' for eight power positions
and ``Idle,'' many other locomotives, especially those in passenger and
heavy electric passenger service, do not. The final rule definition
calls for measuring the power requested by the engineer/operator at any
and all of the discrete output positions of the throttle. If the
throttle quadrant on a locomotive has continuously variable segments,
the recorder would be required to capture the exact level of speed/
tractive effort requested, on a scale of zero (0) to 100 percent (100%)
of the output variable or a value converted from a percentage to a
comparable 0- to 8-bit digital system. In the NPRM, FRA sought comment
on the need to specify specific parameters by which throttle position
is recorded. See 69 FR 39777 and 39781. NTSB was the only party
responding, expressing its support and need for the definition.
Therefore, the final rule retains the definition as proposed in the NPRM.
Section 229.25. The final rule retains the proposed amendment to
paragraph (e) of this section by moving the language dealing with
microprocessor-based event recorders from subparagraph (e)(2) to the
lead paragraph and providing that microprocessor-based event recorders
with a self-monitoring feature are exempt from the 92-day periodic
inspection and are to be inspected annually as required under proposed
Sec. 229.27(d). Other types of event recorders would require
inspection and maintenance at 92-day intervals, as before.
Older styled event recorders used magnetic tape cartridges as their
recording medium; while this final rule will ``sunset'' such equipment,
the equipment still needs to be maintained in order to perform
satisfactorily during the period it remains in service. The final rule
provides for this, at 49 CFR 229.25(e). Microprocessor-based event
recorders, typified by virtually all of the recorders now being
installed in locomotives, are similar to many consumer solid state
electronic devices; either they work or they do not. Maintenance
consists of checking for satisfactory operation and, if there is a
failure, replacing either the failed component or the entire unit.
What further complicates the newest installations is that there is
no ``black box,'' as such. Rather, the entire locomotive is wired with
sensors and, as an illustration, those elements necessary for routine
maintenance of the locomotive are routed to one collection point, and
those required for accident analysis are routed to another. There are
also ways to retrieve any particular subset of data out of a single
data port by using what is popularly called a ``smart card'' to query
the computer for a predetermined set of data. Accident investigators
would get the data elements specified in Sec. 229.135(b), locomotive
electrical maintainers would get the set of data applicable to their
work, and a person evaluating the engineer's performance over the last
run would download a data set preprogrammed for that purpose. Data
necessary for accident analysis, as required in this final rule, would
be routed to a crash-hardened memory module.
In comments, the NTSB recommended provisions for testing the full
range of all parameters periodically and for testing the sensors,
transducers, or wiring for data elements not cycled during the normal
operation more often than annually. However, NTSB provided no data or
significant number of instances relating to the failure of sensors,
transducers, or wiring that are not detected during the course of the
currently required periodic maintenance of either the locomotive itself
or the locomotive event recorder. A requirement to independently test
the sensors, transducers, and wiring involved with capturing the data
elements required by this final rule would add a significant cost to
the conduct of periodic inspections. Without some proven established
need for these additional inspections, FRA is not willing to impose
that additional cost at this time. FRA continues to recognize that
railroads cannot test event recorders over the full range of all
recorded parameters. Such testing might require operating locomotives
at speeds far higher than safe over a particular railroad's track, and
some events, such as EOT valve failure, are extremely rare. The final
rule requires ``cycling, as practicable, all required recording
elements * * * '' in recognition of this fact.
The NTSB also sought clarification as to whether the proposed rule
would require event recorder maintenance to be recorded on the
locomotive ``blue card'' (form FRA F6180-49A) maintained in the cab of
the locomotive. While the ``blue card'' does not contain a specific
line-item related to event recorders, the regulation does require that
the date, place, and signature of the person performing the required
periodic inspections under Sec. Sec. 229.25 and 229.27 be entered on
the form. Thus, in order to properly sign and date the ``blue card,''
the required inspection, testing, and maintenance must have been
performed on the event recorder and any dates on the form would be
equally applicable to the event reorder as to any other component
required to be addressed during a periodic inspection.
The final rule also retains the proposed provisions for maintaining
records related to periodic inspections and maintenance instructions.
Although the final rule does not specify how records of successful
tests are to be maintained, FRA has no objection to keeping the records
electronically,

[[Page 37925]]

provided the electronic ``record'' is the full and complete ``data
verification result'' required by this section, the record is secure,
the record is accessible to FRA for review and monitoring, and the
record is made available upon request to FRA or any other governmental
agent with the authority to request them. FRA's expectation is that
electronic records will be made available immediately upon request.
Although the Electronic Signatures in Global and National Commerce
Act (Pub. L. 106-229, 114 Stat. 464, June 30, 2000) requires that
regulated entities be allowed to keep records electronically, in
appropriate circumstances, FRA believes that the tenor and language of
this final rule make it unnecessary to discuss the specifics of whether
or not the Electronic Signatures Act applies to the subject matter of
this regulation because nothing in this rule is intended to circumvent
the requirements of that act. With the exception of the ``maintenance
instructions of the manufacturer, supplier, or owner'' of the event
recorder (see proposed Sec. 229.25(e)), and any notations this final
rule requires on the ``blue card'' (Form FRA F6180-49A), all other
records required by this final rule may be kept electronically.
Paragraph (e)(1) of this section requires that the maintenance
instructions for the event recorder may be kept electronically, but
must be available at the maintenance/repair point so they can be used
by workers on the shop floor, at the point of testing and repair.
Maintenance instructions printed from an electronically maintained
master copy would satisfy this requirement. In addition, the applicable
``blue card'' provisions are existing regulatory requirements that are
not being amended by this rulemaking and are intended to establish
whether the locomotive is ``equipped'' or not, in the field, without
requiring reference or access to a data base at some other location.
Section 229.27. The final rule retains the proposed amendment to
the introductory text of this section and retains paragraph (d) of this
section as proposed in the NPRM without change. Paragraph (d) addresses
the annual maintenance requirements for microprocessor-based event
recorders with a self-monitoring features. (Non-self-monitoring
recorders require maintenance at quarterly intervals, under the
requirements of Sec. 229.25). Paragraph (d) contains two potential
triggers for requiring maintenance on such event recorders. A self-
monitoring microprocessor-based event recorder will require
``maintenance'' in the sense of opening the box and making adjustments
only if either or both of the following occur: (1) The event recorder
displays an indication of a failure, or (2) the railroad downloads and
reviews the data for the past 48 hours of the locomotive's use and
finds that any required channels are not recording data representative
of the actual operations of the locomotive during this time period.
Essentially all modern event recorder systems are equipped with
self-test circuitry that constantly compares data flowing in with the
data being stored and that signals (typically with a red light) when
there is a fault. In a sense, maintenance is simple: If the red light
is off (and the unit is still receiving power), the unit is in good
working order. The users and vendors of self-monitoring event recorders
have discovered that, in common with many electronic devices, either
the unit works or it does not. If it is working--if it is recording all
the data it is required to record and if it is accurately storing the
data sent by the sensors or other data collection points--no tweaking,
lubricating, adjusting, or other traditional maintenance practice will
make it work better or more accurately. If a self-monitoring event
recorder is not working, that fact will be displayed, and the
experience of the users and builders is that a circuit board, or other
electronic component, will have to be exchanged.
By the same token, the NTSB has recommended in its comments that
the maintenance of locomotive event recorders should verify that the
entire event recorder system--including the recorder, the memory
module, the cabling, the transducers, and the sensors--is accurately
recording what the locomotive has actually done. As noted above, the
NTSB provided no data relating to the failure of sensors, transducers,
or wiring that are not detected during the course of the currently
required periodic maintenance of either the locomotive itself or the
locomotive event recorder or during the self-test of more modern event
recorders. Rather than impose a significant periodic inspection cost by
specifically requiring the inspection of such components, FRA believes
that the provisions related to the annual inspection will ensure the
accuracy of the devices. To ensure that the recorder is indeed
capturing data representative of the locomotive's actual operations,
the final rule retains the proposed requirement that, sometime within
30 days of each annual periodic inspection, the railroad download and
review the data required by Sec. 229.135(b), as captured by the event
recorder's crashworthy memory module. This download might be part of
any other download a railroad might choose to perform, whether as a
part of locomotive maintenance, employee monitoring, service planning,
or whatever. The downloaded data must then be compared to the known
operations of the locomotive over the past 48 hours and, if all
required channels are recording and the required elements are
representative of actual operations, the recorder--assuming always that
the fault light is not on--will require no further maintenance or checking.
FRA recognizes that certain data elements do not regularly recur
and may not, in fact, have been seen for a long time. Such elements
might include EOT emergency applications, EOT communications loss, EOT
valve failure, and specific channels devoted to distributed power
operations when such operations have not occurred to the locomotive
within the past 48 hours. FRA has also eased the burden of specific
``annual test dates'' by acknowledging that any time an event recorder
is downloaded, reviewed for the relevant elements as required in Sec.
229.135(b), and successfully passes that review, a new 368-day interval
begins. The added flexibility provided by this section could mean that
locomotives equipped with microprocessor-based event recorders need
never visit a shop just to check the event recorder.
The final rule also retains the proposed provisions for maintaining
records related to annual inspections. Although the final rule does not
specify how records of successful tests are to be maintained, FRA has
no objection to keeping the records electronically, provided the
electronic ``record'' is full and complete and contains all the
information required by this section, the record is secure, the record
is accessible to FRA for review and monitoring, and the record is made
available upon request to FRA or any other governmental agent with the
authority to request them. In addition, whatever medium is used to
maintain the record, the record is to be kept at the location where the
locomotive is maintained until a record of a subsequent successful test
is filed.
One commenter on the NPRM expressed concern as to whether railroads
maintain maintenance and repair instructions at each shop for each type
of event recorder on which they perform periodic maintenance. A
commenter also questioned whether there was a need to include
qualification standards for individuals downloading and analyzing event

[[Page 37926]]

recorder data. FRA is not aware of any instances where railroads do not
have appropriate maintenance and repair manuals available for the event
recorders they service. Members of the RSAC Working Group indicated
that they have adequate access to maintenance and repair manuals for
all types of event recorders. Furthermore, a person should not be
signing the blue card indicating performance of event recorder
maintenance if that individual is not able and qualified to perform the
required tasks. Neither FRA nor the NTSB has found unqualified or
improperly trained individuals performing event recorder downloads or
analysis. Moreover, on December 12, 2004, AAR implemented a mandatory
locomotive event recorder download standard applicable to all member
railroads to minimize operational and maintenance incompatibilities.
See AAR Manual of Standards and Recommended Practices, Section M, AAR
Standard S-5512, ``Locomotive Event Recorder Download Standard''
(November 2004). The standard defines the physical and logical download
interfaces, various download methods, and the required protocol to
support serial download of event recorders. Consequently, FRA does not
see a need, at this time, to impose strict Federal qualification
standards on those individuals responsible for the maintenance and
downloading of event recorders. FRA will continue to monitor this issue
should the need for additional regulation become necessary.
Section 229.135. Paragraph (a) retains the changes to this
paragraph proposed in the NPRM. This paragraph modifies the existing
provision by requiring the make and model of the event recorder to be
entered on Form FRA F6180-49A (blue card). Some members of the Working
Group, in written responses to the NPRM, continue to question the need
to record this information on the blue card as there is no known
instance where a problem was encountered downloading data or locating
appropriate analysis software. These commenters assert that railroads
and event recorder manufacturers are well aware of the type of event
recorder installed on a locomotive and which software to employ for
downloads. However, these commenters agree that the cost of this
requirement is de minimus. This item was requested by the NTSB, and
based on the NTSB's stated need for the information, FRA has decided to
retain the provision in this final rule. FRA continues to believe that
there is very little burden placed on the railroads by requiring the
information to be recorded because the presence of any such recorder is
already required under the existing regulation and the benefit to an
accident investigator may be considerable.
Several commenters suggested the need to expand the applicability
of the event recorder requirements. These commenters recommended that
any locomotive operating over a public or private grade crossing be
equipped with an event recorder regardless of its operating speed. One
commenter believed the requirements for event recorders should be
applied to any remote controlled locomotive. The primary purpose of
this rulemaking proceeding is to increase the survivability of
locomotive event recorders and to ensure that necessary information is
being captured by the devices for use in accident investigations. FRA
did not intend to expand, nor has it seen a need to expand, the scope
of what locomotives were covered by the regulations. To expand the
applicability of these regulations as suggested would add a significant
and unjustified cost to the industry. FRA previously determined that
lower speed operations (i.e., those under 30 mph) do not result in
complex accidents requiring the analysis of event recorder data. FRA is
not aware of any data or information that contradicts this view. In
addition, there are currently no remote controlled locomotives being
operated at speeds exceeding 30 mph nor is such operation being
considered in the immediate future by the industry. FRA will continue
to monitor these types of operations and will take appropriate action
should they change to include higher speed operation. Moreover, the on-
board equipment on most remote controlled locomotives capture and
retain inputs from the remote unit. Consequently, FRA does not see a
need at this time to expand the scope of the event recorder
requirements to either locomotives operating under 30 mph or to remote
controlled locomotives.
In its comments to the NPRM, NTSB sought clarification regarding
the regulation's applicability to manned helper locomotives operating
faster than 30 mph. The rule's application to these types of
locomotives was not specifically considered when the NPRM was
originally issued. After discussing the matter with the Working Group,
the members of the Working Group agreed that to include these types of
locomotives would not be a significant, if any, cost to the industry
because most helper locomotives are operated by Class I railroads and
are already equipped with event recorders. The Working Group indicated
its acceptance of requiring event recorders on such locomotives
provided that it was limited to the lead manned helper locomotive
because in most instances the leading manned locomotive in a helper
locomotive consist is the locomotive that is equipped with an event
recorder. FRA agrees with the recommendation of the Working Group and
the RSAC on this issue and believes that the information retained on
these units could prove valuable in accident investigations where
helper locomotives are present. Consequently, the final rule slightly
amends the proposed applicability provisions contained in paragraphs
(b)(1) and (b)(3) to include a specific reference to lead manned helper
locomotives.
In its comments on the NPRM, BLET asserted that any controlling
locomotive operated in positive train control (PTC) territory should be
required to be equipped with a crashworthy event recorder capable of
capturing all of the data elements proposed in this regulation.
Although FRA understands BLET's position, FRA does not believe that
such a requirement is necessary at this time. FRA believes that such a
requirements might inhibit the current and future testing or
implementation of PTC type systems. In addition, such a provision would
likely have a disparate impact on smaller railroads that share trackage
with larger operations. Furthermore, virtually all of the PTC systems
being developed already include data capturing devices and hardware.
Consequently, FRA believes, and the RSAC recommendation concurs, that
the issues related to the type of data to be recorded and the method by
which the data is captured on PTC systems is an issue better addressed
in the product safety plans required in subpart H of the recently
issued final rule related to Standards for Development and Use of
Processor-Based Signal and Train Control Systems (PTC final rule). See
70 FR 11051 (March 7, 2005).
Paragraph (b) essentially retains the proposed requirements for
when a new or remanufactured locomotive must be equipped with a
certified crashworthy memory modules and retains the proposed
information that must be captured and stored by both new and existing
event recorders. The provisions contained in this paragraph have been
slightly modified to include certain clarifications related to
identifying covered locomotives and to include specific outside dates
when certain requirements become applicable. These modifications are
discussed in detail below.

[[Page 37927]]

In order to avoid confusion when locomotives are re-sold after the
original purchase from the manufacturer (i.e., sold from one user to
another), the final rule specifies that the equipment required on a
specific locomotive is determined by the date it was originally
manufactured. The introductory language in this paragraph makes clear
that the recorded data be at least as accurate as the data required to
be displayed to the engineer. Further, the final rule retains the
proposed language requiring the crashworthy event recorder memory
module to be mounted for its maximum protection, stating that a module
mounted behind the collision posts and above the platform is deemed to
be appropriately mounted.
Several members of the Working Group continued to emphasize that
the language contained in the proposed provision and retained in this
final rule regarding the placement of the crashworthy event recorder
memory module may be interpreted to limit the placement of the module.
These parties assert that the placement of the module in an electrical
cabinet may not necessarily be below the top of the collision posts and
yet such placement would provide adequate protection and would actually
provide superior crush resistance, be more fire resistant, and be a
longer distance from the point of impact. Similarly, a module located
in the nose of the locomotive may not be above the platform level and
yet it would be sufficiently protected. The illustration retained in
this final rule is intended to provide one example of a module properly
mounted for its maximum protection. FRA continues to agree that there
may be other mounting options that provide at least equal protection,
and has retained the proposed language in the final rule text making
this point very clear.
One commenter to the NPRM recommended that FRA should require
railroads to utilize global positioning satellite (GPS) receivers to
calculate and provide the time, location, speed, and direction elements
to the event recorders. This commenter states that such technology
would provide an absolute time standard. This commenter provided no
indication as to how this would be accomplished and did not provide any
cost estimates regarding the implementation of the suggestion. Neither
the Working Group or the full RSAC believed there was a need to specify
a method by which the required data is derived or obtained. FRA agrees
with the recommendation of these parties. FRA believes that any such
requirement would add a significant cost to the final rule while adding
an unknown benefit, if any.
Certain provisions in paragraph (b) have been slightly modified to
include a placed-in-service date after which the equipment must be
properly equipped. In the NPRM, the requirements relating to when a new
locomotive is required to be equipped with a crashworthy event recorder
memory module were based solely on the date that the locomotive was
originally ordered. See 69 FR 39792. In the preamble to the NPRM, FRA
voiced its concern that no outside parameter has been included in the
proposal for newly manufactured locomotives. See 69 FR 39782. Thus, as
proposed the regulation would have allowed any locomotive ordered prior
to the one-year period not to be required to be equipped with a
crashworthy event recorder even if not delivered and placed in-service
until years later. FRA stated that it believed there should be a placed
in-service date included in the final rule after which any new
locomotive must be properly equipped. FRA sought comments and
suggestions from interested parties as to an appropriate date to
include in the final rule for ensuring that any applicable locomotive
placed in service after that date is properly equipped with a
crashworthy memory module.
Members of the Working Group, including AAR, APTA, and its member
railroads, discussed this issued at length. These parties noted the
need to ensure that any date inserted into the final rule must allow
for existing contracts and contracts that are put into place within one
year after the effective date of the final rule to be completed in
order to prevent additional cost burdens on these contracts. These
parties suggested that a period of four years after the effective date
of the final rule would provide the necessary assurances. Therefore,
the Working Group recommended a four-year period to the full RSAC in
response to FRA's request. In turn, the RSAC included the four year
period in its recommendation to FRA. FRA believes that the recommended
four-year placed in-service date is reasonable and consistent with
other federal regulations. Consequently, FRA has accepted the
recommendation and has modified subparagraphs (b)(3) and (b)(4) to
require that any identified locomotive ordered one year after the
effective date of the final rule or placed in-service four years after
the effective date of the rule must be equipped with a crashworthy
event recorder memory module.
Subparagraph (b)(1) contains the equipment requirements for current
event recorders that use a recording medium other than magnetic tape.
This section retains the intent of the proposal but the language has
been slightly modified in this final rule in order to make it
consistent with the provisions related to when new locomotives are
required to be equipped with crashworthy event recorder memory modules.
The revised language makes clear that any locomotive ordered within one
year of the effective date of the final rule and placed in service
within four years of the effective date of the rule may continue to
utilize currently manufactured event recorders that use a recording
medium other than magnetic tape. At the initial meetings with the RSAC
Working Group, FRA made clear that this rule was not intended to
involve the retrofitting of existing locomotives with event recorders
containing crashworthy memory modules. FRA continues to believe that,
except for the need to replace event recorders using magnetic tape to
record information, any significant retrofit requirement of existing
locomotive event recorders cannot be justified from a cost/benefit
perspective. In addition to the cost of the crashworthy event recorder,
it would be cost prohibitive to retrofit many existing locomotives with
the ability to monitor many of the data elements described in this
paragraph.
Notwithstanding the above discussion, FRA believes that the
industry and the marketplace will dictate that as older style event
recorders fail they will be replaced with event recorders containing
crashworthy memory modules. In addition, the operational benefits
derived from the newer crashworthy event recorders will likely drive
the railroads' decisions when acquiring replacement event recorders for
existing locomotives. Moreover, as the newer crashworthy event
recorders become more prevalent and are manufactured in greater
numbers, the costs of the recorders will likely be more comparable to
currently produced event recorders and thus, many railroads may find it
economically advantageous to purchase the new crashworthy event
recorders as replacements for the older model event recorders on
existing locomotives. With these thoughts in mind, FRA sought comments
or information from interested parties as to whether there is some
future date, that would impose little or no cost burden to the
industry, after which any event recorder that is replaced on an
existing locomotive should be replaced with an event recorder
containing a crashworthy

[[Page 37928]]

memory module described in Appendix D of this rule. See 69 FR 39783.
FRA received a limited number of comments in response to this
request. AAR asserted that there is no need to establish an outside
date on replacement event recorders as the marketplace and economics
will drive the railroad's decisions. BLE suggested that any replacement
event recorder eighteen months after the effective date of the final
rule should be outfitted with a crashworthy memory module. Several
members of the Working Group noted that any date considered must allow
railroads to use up their existing stock of event recorders that are
not equipped with crashworthy memory modules. AAR, APTA and their
member railroads suggested a date of January 1, 2010 as the date after
which any replacement event recorder acquired must be equipped with a
crashworthy memory module pursuant to Appendix D of this final rule.
These parties claim that a provision drafted in such a manner would
allow railroads to continue to acquire solid state event recorders for
the immediate future and would allow railroads to deplete their in-
stock event recorders without imposing any significant financial burden
on the industry. The full RSAC included this date in its recommendation
to FRA. After reviewing the recommendation, FRA agrees that a cut-off
date of January 1, 2010 for the purchase of newly manufactured event
recorders without crashworthy memory modules is reasonable. FRA notes
that this time frame is consistent with the elimination and replacement
of event recorders utilizing magnetic tape as their recording medium
discussed in subparagraph (b)(2) below. Consequently, FRA has
incorporated the recommendation in a new paragraph (b)(6) by requiring
that any event recorder originally manufactured after January 1, 2010,
that is installed on a locomotive identified in this paragraph shall be
an event recorder with a crashworthy memory module meeting the
requirements of Appendix D of this final rule.
FRA wishes to make clear that the event recorder currently
installed on or any replacement event recorder subsequently installed
on a locomotive identified in this paragraph (b)(1) need only be
capable of recording the data elements specifically enumerated in this
subparagraph. FRA continues to believe that it would be cost
prohibitive, and in some cases impossible, to reconfigure existing
locomotives with the ability to monitor and record many of the data
elements required for newly manufactured locomotives. Consequently, FRA
is retaining the proposed provision in this final rule that requires
any covered locomotive ordered prior to one year after and placed in
service prior to four years after the effective date of the final rule
to be equipped with an event recorder capable of recording at least the
nine data elements specifically identified in this subparagraph.
Subparagraph (b)(2) contains a ``sunset'' date for current event
recorders using magnetic tape as their recording medium. In the NPRM,
FRA proposed elimination of these types of event recorders within six
years from the effective date of the final rule. See 69 FR 39783 and
39792. Due to significant industry efforts, AAR, APTA and their member
railroads informed FRA that the proposed timetable for eliminating
magnetic tape-based event recorders could be shortened to four years.
These parties note that their replacement efforts are progressing
faster than they originally estimated. Therefore, FRA is pleased to
note that the date by which event recorders utilizing magnetic tape as
its recording medium must be replaced has been reduced to just four
years from the effective date of the final rule. Consequently,
subparagraph (b)(2) has been slightly modified to reflect this
modification to the timetable for replacement of event recorders with
magnetic tape as their recording medium.
FRA believes eliminating the use of magnetic tape-based event
recorders is necessary because it is essentially impossible to make a
crashworthy event recorder memory module that uses magnetic tape. The
final rule requires that, four years after the effective date of a
final rule, all such recorders must be replaced with event recorders
using ``hardened'' memory modules, but recording the same elements as
they do now. The replacement recorders would not have to meet the
crashworthy performance criteria contained in Appendix D to this final
rule but would need to be solid state technology. As discussed in the
preamble to the NPRM, the principal supplier of magnetic tape event
recorders has ceased manufacturing them and has recently discontinued
supplying replacement recording media. In addition, representatives of
the railroads have indicated that the industry will voluntarily
complete its replacement of such event recorders within the four years
provided in this final rule. Accordingly, FRA continues to believe that
this provision will not constitute a significant burden to the industry.
Subparagraph (b)(3) retains the proposed standards for new event
recorders and make new event recorders that meet these standards
mandatory equipment for freight (diesel) locomotives (other than DMU
and MU locomotives) manufactured one year after the effective date of a
final rule in this proceeding. The new recorder is required to have a
certified crashworthy event recorder memory module meeting the
performance criteria contained in Appendix D of the final rule. This
final rule retains all of the proposed data elements without change.
Thus, in addition to the data elements recorded by current event
recorders detailed in subparagraph (b)(1), new event recorders will be
required to record the following data elements:
? Emergency brake applications initiated by the engineer or
by an on-board computer;
? A loss of communications from the EOT (End of train) device;
? Messages related to the ECP (electronic controlled
pneumatic) braking system;
? EOT messages relating to ``ready status,'' an emergency
brake command, and an emergency brake application, valve failure
indication, end-of-train brake pipe pressure, the ``in motion'' signal,
the marker light status, and low battery status;
? The position of the switches for headlights and for the
auxiliary lights on the lead locomotive;
? Activation of the horn control;
? The locomotive number;
? The automatic brake valve cut in;
? The locomotive position (lead or trail);
? Tractive effort;
? The activation of the cruise control; and
? Safety-critical train control display elements with which
the engineer is required to comply.
FRA is well aware of the pace at which technology is changing.
Locomotives, once controlled by mechanical levers and wheels, now read
the ``input'' of a moved lever and adjust multiple aspects of their
operating systems to produce the desired result; they can accept a
cruise control setting and adjust power to maintain a constant speed as
the grade increases. New methods for monitoring and controlling train
operations, some of them using global-positioning satellites as the
basis for position determination, are now being deployed. Where these
technologies affect the operation and safety of trains, the event
recorder needs to be able to capture data elements that will enable
analysis of the locomotive's operations. As just one example, if a

[[Page 37929]]

positive train control system (PTC) ``took away'' control of a
locomotive to enforce train separation protocols, the recorder needs to
capture the information that an input from outside the cab caused the
train to speed up or slow down.
With PTC, the recorder needs to identify both the fact of an
incoming signal and the response to it, whether automated or an
engineer override. Just as the recording of cab signals is relatively
easy because the signal system's aspect is already on board, so too it
should be easy to capture a PTC signal and record any display elements
on which the engineer is expected to rely and any commands sent to
initiate braking and knock down power. The existing regulation requires
that the cab signal display be recorded, but this technology may be
superseded in the future. In the Working Group meetings, the
Brotherhood of Locomotive Engineers (BLET) has consistently raised a
concern with respect to determining the source of penalty brake
applications initiated by innovative train control systems (i.e., not
only what was the source of the brake application, but what indication
was displayed to the engineer and on what basis this was determined).
BLET provided the Working Group with a ``white paper'' further
detailing its concerns in this area. This document has been made part
of the docket in this proceeding. After reviewing BLET's concerns,
RSAC's recommendation as well as the discussions of them within the
Working Group, FRA has determined that it will accept the full RSAC's
recommendation not to amend the data elements proposed in the NPRM in
this final rule. Although it may not be possible to specify clearly all
of the information that would be required to determine the basis for
every penalty application, given the wide variety of possible system
architectures, the final rule will retain the proposed data elements
that require that the following be recorded:
? Applications and operations of the train automatic air
brake, including emergency applications. The system shall record, or
provide a means of determining, that a brake application or release
resulted from manipulation of brake controls at the position normally
occupied by the locomotive engineer. In the case of a brake application
or release that is responsive to a command originating from or executed
by an on-board computer (e.g., electronic braking system controller,
locomotive electronic control system, or train control computer), the
system shall record, or provide a means of determining, the involvement
of any such computer; and
? Safety-critical train control data routed to the
locomotive engineer's display with which the engineer is required to
comply, specifically including text messages conveying mandatory
directives, and maximum authorized speed. The format, content, and
proposed duration for retention of such data shall be specified in the
product safety plan submitted for the train control system under
subpart H of part 236 of this chapter, subject to FRA approval under
this paragraph. If it can be calibrated against other data required by
this part, such train control data may, at the election of the
railroad, be retained in a separate certified crashworthy memory module.
FRA believes that these two data elements, contained in both
subparagraph (b)(3) and (b)(4), deserve additional explanation. The
data element contained in subparagraphs (b)(3)(vi) and (b)(4)(vi) of
the final rule requires that the system record, or provide a means of
determining, that a brake application or release resulted from
manipulation of brake controls at the position normally occupied by the
locomotive engineer. In the case of a brake application or release that
is responsive to a command originating from or executed by an on-board
computer (e.g., electronic braking system controller, locomotive
electronic control system, or train control computer), the system must
record, or provide a means of determining, the involvement of any such
computer.
These additional requirements concerning the operation of the
automatic braking system are necessary in order to take into account
the proliferation of processor-based technology that is now extensively
used to control the functions of locomotives, including on-board
computers constituting subsystems of train control systems. When the
original event recorder rule was being prepared, the automatic brake on
most locomotives functioned by mechanical and pneumatic means,
responding directly to manipulations of the controls by the locomotive
engineer; and train control (where provided) addressed braking and
power ``knock down'' functions very directly as well. Since that time,
braking functions are becoming increasingly controlled electronically
based on requests from the control stand, and the electronic commands
themselves may pass through a second locomotive computer before being
executed. Major manufacturers of locomotives have plans to run braking
software on their own host processors. Further, some developing train
control projects contemplate routing commands through other on-board
computers.
In general, new electronic systems have functioned well, but there
have been notable failures. It is obviously a dangerous situation when
service braking is not available (requiring the engineer to employ the
emergency braking feature). The unintended application of train brakes
can also constitute a safety hazard, particularly in freight operations
where management of in-train forces is a significant challenge. In the
event of an accident, it is critical that data be logged in the event
recorder memory module that is sufficient to determine the source of
brake applications and releases. It should be known whether or not they
were requested, and whether or not they occurred as requested, from the
control stand. In the event no action was taken at the control stand
that can explain the brake application, it is important to know
(insofar as is feasible) the source of the application. While not every
source of an unintended brake application can be determined in real
time and monitored electronically, on-board computers capable of
issuing a command for application or release of the brakes or executing
such commands should be monitored to determine their role.
The data element contained in subparagraphs (b)(3)(xxv) and
(b)(4)(xxii) requires that safety-critical train control data routed to
the locomotive engineer's display, with which the engineer is required
to comply, be recorded. The data to be recorded would in every case
include text messages conveying mandatory directives and maximum
authorized speed. It may be necessary to record other data elements
depending on the design of the train control system and the type of
information displayed to the engineer (e.g., distance to a ``target''
at which a particular action must be taken). The format, content, and
proposed duration for retention of such data would be specified by the
railroad in the product safety plan (PSP) required to be submitted for
the train control system under the new PTC final rule detailed in
subpart H of 49 CFR Part 236, subject to FRA approval under this
paragraph. See 70 FR 11051 (March 7, 2005). FRA would expect to approve
this element of the PSP if it was clear that data sufficient to
determine the proper functioning of the train control system is routed
to the memory module and retained for a sufficient period to support
accident investigation. FRA anticipates that railroads will elect to
record additional train control data elements in a crashworthy memory

[[Page 37930]]

module (e.g., train consist data entered by the crew that is critical
to the correctness of the braking curve), and FRA will welcome
inclusion of this additional data.
Train control systems are still evolving, and it is therefore
difficult to anticipate what should be selected for recording;
consequently, it may be difficult to plan for such eventualities. FRA
believes that this final rule provides flexibility to address these
future needs by determining data recording needs appropriate to various
systems, including a shorter duration for data retention if appropriate
to the subject matter. Contemporary solid state recorders are
programmable and should be capable of receiving and retaining the
necessary data. If, for some reason not presently foreseen, data
retention requirements for a train control system exceed the capacity
of the primary memory modules, secondary modules associated with the
on-board train control computer could be used to meet the need.
The final rule retains the proposal's use of the term ``safety-
critical'' which is intended to have a meaning consistent with the
meaning assigned in 49 CFR Sec. 236.903. That section provides that
``safety-critical,'' as applied to a function, a system, or any portion
thereof, means the correct performance of that function, system, or any
portion of either, is essential to safety of personnel or equipment, or
both, or the incorrect performance of that function, system, or any
portion of either, which is essential to safety of personnel and/or
equipment, or the incorrect performance of which could cause a
hazardous condition, or allow a hazardous condition which was intended
to be prevented by the function or system to exist. In the present
context, then, safety-critical data would be data displayed to the
locomotive engineer that is integral to a safety-critical train control
function (such as avoiding over-speed operation, preventing a
collision, or preventing an incursion into a work zone). The safety-
critical functions of a new train control system are defined by the
railroad in the requirements section of the PSP (consistent with the
assumptions specified in the accompanying risk assessment). In
addition, the term ``mandatory directive,'' as used in this provision,
has the meaning assigned to the term in 49 CFR Sec. 220.5 (``any
movement authority or speed restriction that affects a railroad
operation'') and that definition has been duplicated in Sec. 229.5
BLET again raised various concerns related to the data elements
that should be captured by the event recorder on PTC systems and by
distributed power locomotives. These included such things as braking
algorithms, train consist data, track profile data, and software being
used for track profile data used in PTC systems. Based on the
discussion provided above, FRA continues to believe that data elements
related to PTC systems are better addressed by the PSP required to be
submitted and approved by FRA under subpart H of part 236.
Consequently, FRA believes that speculation as to what needs to be
recorded on these systems or how the information is to be captured
should not be attempted in this regulation but would be better
addressed when the specific systems are being developed and implemented.
With regard to distributed power locomotives, BLET seeks to have
some method by which the event recorder would capture miscompare
messages between the lead locomotive and the distributed power
locomotives. A distributed power system places locomotives within the
train consist to add their tractive and braking effort to the movement
of, typically, long and heavy trains. The locomotives ``distributed''
back in the train are controlled by signals from the lead locomotive.
At the NPRM stage of this proceeding, the Working Group agreed not to
include a proposed requirement that new event recorders capture
``miscompare'' messages between the lead locomotive and the remotely
distributed locomotive due to the extremely high costs associated with
monitoring and capturing such data. BLET continues to disagree with the
absence of this data element. This member again voiced concern that
locomotive engineers should be given an opportunity to show that they
were not responsible for the failure of a remote control locomotive to
respond properly to a control input because of a problem with the
communication link or other failure originating from software or
hardware faults on a locomotive. A detailed discussion of the basis for
this concern was included in the preamble to the NPRM. See 69 FR 39780.
Based on information and discussions of the Working Group as well
as comments submitted to the docket, FRA is not convinced of the need
to specifically capture the information requested by BLET. FRA
continues to believe that it would be very costly to record the large
amount of data regarding communications between a lead locomotive and a
distributed power locomotive. Furthermore, the event recorders on the
lead locomotive and the lead distributed power locomotive can be
compared to determine if a mis-communication between the units occurred
in the limited number instances where such communication failure is
suspected. Moreover, the safety benefits of recording this information
are unclear because if a miscompare does occur, the systems are
designed so that the remotely-controlled distributed power unit will
shut down or be placed in idle. Consequently, FRA is not willing at
this time to impose a significant cost to the industry by requiring the
recording of information that could potentially be derived from other
sources and the benefits of which are not clearly defined.
One data element proposed in the NPRM for new locomotives with new
event recorders generated a significant amount of attention--the
recording of the horn control handle activation. This data element was
not the result of a recommendation from either the Working Group or the
full RSAC. FRA received comments from several parties recommending that
the actual sounding of the train horn be recorded as well as the horn's
activation. Some commenters further suggested that any locomotive with
an event recorder capable of capturing train horn activation or actual
sounding should be required to do so. These parties assert that such
requirements would reduce the disputes involving when and if the horn
actually sounded during an accident investigation.
Although FRA is cognizant of the potential benefits of such a
requirement, FRA believes the benefits are somewhat overstated. The
reasons for carefully using data relating to horn activation are
equally applicable to data related to the actual sounding of the train
horn. Users of event recorder data for purposes other than accident
investigation (such as supporting claims in accident-related
litigation) should bear in mind that the event recorder samples what is
going on in the locomotive and there are gaps between the time the
recorder first ``looks'' for the data from the horn switch activation
sensor or the horn sound sensor and the time it next takes that
``look.'' Even a gap of a second, at main line track speeds, can yield
an inaccurate, false record of when, exactly, or where, exactly, the
horn was blown. The Working Group was provided an excellent
presentation of these recording limitations at its meeting in Atlanta,
Georgia, in May of 1998 by Rail Sciences, Incorporated. Further,
emergency responders complain that automobile drivers with their
windows up, radios on, and air conditioning on often do not react to the

[[Page 37931]]

sirens or air horns on fire trucks. The same situation exists when a
railroad engineer blows his horn at an automobile starting across a
crossing with too little time to clear. In addition, the locomotive
horn is external to the cab of the locomotive, the effective operation
of which may be diminished by snow, sleet, and other weather conditions.
With these limited benefits in mind, it is important to note that
no commenter, other than AAR, provided any information or insight
relating to the costs that any such requirement might entail. AAR
indicated that the cost to monitor and record the actual sounding of
the locomotive horn on either new or existing locomotives would be
significant. AAR asserts, and FRA agrees, that the most significant
cost would result from developing and maintaining the sensors required
to monitor the actual sounding of the horn. As noted above, the
locomotive horn is external to the cab of the locomotive thus, any
sensor would also have to be mounted externally and would be subject to
various external conditions. FRA believes that the costs related to the
monitoring and recording of the actual sounding of the locomotive horn
are not justified based on the limited benefits provided by such a
requirement as discussed above. Thus, this final rule will retain the
proposed requirement that the event recorder capture activation of the
locomotive horn control handle but will not include an additional data
element related to the actual sounding of the horn. FRA continues to
believe that horn activation data will provide one tool, among many, in
the investigation of railroad accidents and in the monitoring of
equipment and the people who operate it. FRA again cautions that the
use of the data for other purposes should be made only after fully
considering the limited usefulness of such data as briefly discussed
above. This provision reflects FRA's responsibility to implement 49
U.S.C. 20153. FRA notes that if railroads monitor and record the
sounding of the locomotive horn voluntarily, then the data would need
to be preserved pursuant to the provisions contained paragraph (e) of
this final rule.
In its comments to the NPRM, the NTSB sought clarification of FRA's
rationale for not including a requirement to record the wheel slip/
slide alarm on freight locomotives similar to that contained in
subparagraph (b)(4) for MU and DMU locomotives. FRA is requiring the
recording of tractive effort. Moreover, there is no uniformity as to
when wheel a slip/slide alarm is activated in the freight industry.
This is due to the fact that there is no consistency in how wheel slip/
slide is measured and recorded. Thus, the data would not provide any
useable, readily applicable information. In addition, the monitoring
and recording of this data would impose an additional cost to the
industry based on the uncontested information provided by AAR. Both the
Working Group and the full RSAC recommended that a provision to record
the wheel slip/slide alarm on freight locomotives was not necessary for
the reasons noted above. FRA agrees with this recommendation and is not
willing to impose an additional cost in order to capture data of
limited value. FRA notes that if railroads monitor and record this
information of their own volition, then the data would need to be
preserved pursuant to the provisions contained paragraph (e) of this
final rule.
Several commenters to the NPRM also suggested the need to require
that video cameras of some type be mounted on the front of all
locomotives and that the event recorder capture such recordings. While
FRA acknowledges that there may be some benefit to requiring video
cameras, FRA believes that consideration of such a requirement is
outside the scope of this rulemaking proceeding. There is a variety of
issues that would need to be explored, discussed, and researched
related to the placement, content, use, retention, and cost of
requiring such devices and retaining the recorded materials. FRA
believes that the final rule stage of this proceeding is not the
appropriate time or place to begin such considerations. FRA believes
that a separate rulemaking proceeding would be required if the need
and/or desire for such regulations were established. At the Working
Group meeting and in their written comments, AAR and several of its
member railroads stated their support of a separate rulemaking
proceeding to consider the issues related to requiring video and
locomotive cab recordings. AAR noted that it has established a video
standards working group to address the development of industry
environmental and technical standards. BLET stated that it would
consider discussing these types of issues if the purpose of video
standards is safety and not discipline of employees. NTSB also
expressed its belief that video and cab recording issues need to be
addressed by FRA and the industry. However, all of these parties agreed
with FRA's position that the issues related to video and cab recordings
should not and cannot be addressed in this rulemaking proceeding
without the issuance of a new NPRM.
Subparagraph (b)(4) contains the requirements for equipping new MU
and DMU locomotives with event recorders having crashworthy memory
modules and capable of recording various data elements similar to those
required in subparagraph (b)(3). Thus, the discussions relating to the
data elements contained in that subparagraph are equally applicable in
this context. This subparagraph applies to any MU or DMU locomotive
ordered one year from the effective date of this final rule or placed
in service four years after the effective date of this final rule.
Differences between subparagraphs (b)(3) and (b)(4) reflect the
differences between freight locomotives and heavy electric commuter
equipment, primarily in the particular brake application data required
to be monitored and recorded.
Subparagraph (b)(5) retains the requirements proposed in the NPRM
without change. FRA received no comments on this provision. This
subparagraph requires that when a locomotive equipped with an event
recorder is remanufactured, it must be equipped with a certified
crashworthy event recorder memory module capable of capturing the same
data as the recorder on the pre-remanufactured locomotive.
Subparagraph (b)(6) contains a new requirement not specifically
proposed in the NPRM. A detailed discussion of the provision is
included in the section-by-section analysis related to subparagraph
(b)(1). In the NPRM, FRA sought comments or information from interested
parties as to whether there was some future date, that would impose
little or no cost burden to the industry, after which any event
recorder that is replaced on an existing locomotive should be replaced
with an event recorder containing a crashworthy memory module described
in Appendix D of this rule. See 69 FR 39783.
At the Working Group meeting to discuss the comments to the NPRM,
AAR, APTA and their member railroads suggested a date of January 1,
2010 as the date after which any replacement event recorder acquired
must be equipped with a crashworthy memory module pursuant to Appendix
D of this final rule. These parties claim that a provision drafted in
such a manner would allow railroads to continue to acquire solid state
event recorders for the immediate future and would allow railroads to
deplete their in-stock event recorders without imposing any significant
financial burden on the industry. The full RSAC included this date in
its recommendation to FRA.

[[Page 37932]]

After reviewing the recommendation, FRA agrees that a cut-off date of
January 1, 2010 for the purchase of newly manufactured event recorders
without crashworthy memory modules is reasonable. FRA notes that this
time frame is consistent with the elimination and replacement of event
recorders utilizing magnetic tape as their recording medium discussed
in subparagraph (b)(2) above. Consequently, the final rule requires
that any event recorder originally manufactured after January 1, 2010
and installed on a locomotive identified in this paragraph shall be an
event recorder with a crashworthy memory module meeting the
requirements of Appendix D of this final rule.
Paragraph (c) is retained as proposed in the NPRM. FRA received no
comments on this provision in response to the NPRM. This paragraph
contains the requirements relating to removing an event recorder from
service. This paragraph is essentially the same as paragraph (c) of the
existing regulation, modified for clarity and to reflect the specific
equipment requirements in paragraph (b).
Paragraph (d) is retained as proposed in the NPRM. Essentially,
this paragraph is the same as paragraph (b) of the existing regulation
with slight modification for clarity. This paragraph makes clear that a
locomotive on which the event recorder is removed from service may only
remain as the lead locomotive until the next calendar day inspection is
performed on the locomotive. FRA received comments from three parties
related to this provision. These commenters suggested that no
locomotive should be permitted to operate as a lead locomotive with a
disabled or non-functioning event recorder. One commenter also
recommended that if any required data element is not being recorded at
the time of an incident, the railroad should be required to file a
report with FRA addressing the condition and how it was corrected.
These comments were considered and discussed by the Working Group
and the Working Group and the full RSAC recommended that no change in
the proposed provision was necessary. FRA agrees with this
recommendation. FRA believes that the provisions relating to the
continued use of a locomotive with a defective event recorder for a
short period of time recognize the realities of railroad operations. In
many cases, changing locomotive power cannot be done instantaneously
upon finding a defective condition. In addition, locomotive power is in
limited supply and conservative utilization of that resource is
necessary to ensure effective railroad operations. Moreover, the
handling of defective equipment provision retained in this paragraph
has served FRA, NTSB, and the industry well for over a decade. FRA is
not aware of any instance where use of this provision has resulted in
the loss of any necessary data. Consequently, the final rule is
retaining this paragraph as proposed in the NPRM.
One commenter suggested that FRA adopt a procedure into the
regulation that would allow parties to file complaints with FRA
regarding a railroad's non-compliance with the event recorder
requirements and that each complaint should be required to be addressed
within 30-days with written findings to the complainant. FRA believes
such a provision is unnecessary. Any person or party with information
regarding non-compliance with any of the federal regulations handled by
FRA is free to contact any of FRA's regional offices or headquarters by
letter, e-mail, telephone, or verbally to report such information. FRA
investigates all credible complaints and provides specific feedback to
the complainant when such feedback is requested. FRA sees no reason to
place specific procedures into the event recorder regulations nor did
the commenter provide any rationale for doing so.
Paragraph (e) contains the requirements relating to a railroad's
duty to preserve locomotive event recorder data, or any other
locomotive mounted recording devices that records information
concerning the functioning of a locomotive or train when involved in an
accident or incident required to be reported to FRA under 49 CFR part
225. Except for the period of time that such data must be preserved,
discussed in detail below, the final rule retains the language proposed
in the NPRM. This section combines and simplifies paragraphs (d) and
(d)(1) of the existing event recorder regulation.
The current regulation allows a railroad after an accident, to
``extract and analyze'' data from the event recorder, if the railroad
preserves ``the original or a first-order accurate copy'' of the data.
Experience since the present event recorder rule became effective shows
that the phrase ``first-order accurate copy'' is not easily understood
by those first on scene at a derailment. First responders must
primarily deal with wrecked equipment, the potential need for life-
saving actions, and the ever-present danger--especially if hazardous
materials are present--of fire, smoke, and explosion. FRA believes it
has clarified the requirement. The final rule retains the proposed
language to permit a railroad to extract and analyze such data,
provided the original downloaded data file, or an unanalyzed exact copy
of it, is retained subject to the direction and control of FRA or the
NTSB. In the case of microprocessor-based machines, the ``original''
copy of the data will not show any immediately prior downloads, while
the ``copies'' may show that previous downloads have occurred.
Certainly this is not a requirement to put a ``marker,'' or some
indication in the downloaded data to show the ``order'' in which
multiple downloads were made; the final rule mandates that the original
download be preserved for analysis by FRA or the NTSB.
The final rule also retains the current rule and proposed language
that require efforts, ``to the extent possible,'' and ``to the extent
consistent with safety,'' to preserve all the data stored in any
locomotive-mounted recording device designed to record information
concerning the functioning of the locomotive or train. FRA is well
aware of the difficulty of performing field downloads of data retention
devices not so designed; FRA is also aware that such downloads may be
more dangerous, especially in an accident situation, than extracting
the data from a crash-hardened event recorder memory module designed
for easy field downloads. FRA's experience is that those who serve as
the railroad's incident commanders are well schooled in safety and the
preservation of life and property, and this agency is comfortable with
the decisions they will make about the safety of entering a hostile
atmosphere to gather knowledge about the dynamics immediately preceding
an accident.
FRA received a number of comments relating to the provisions
contained in this paragraph. These comments included recommendations
for the following: Preserving such data for periods up to three years;
providing exact copies of any downloaded data to local police to be
made part of the accident report; permitting data to be downloaded only
in the presence of a law enforcement officer; making software for
analyzing data available to any individual or public entity; requiring
local law enforcement personnel to record various information on the
locomotive and person downloading the data; and notification of
involved motorists and families by the railroad that event recorder
data exists. The Working Group considered and discussed the concerns
identified above. The Working Group recommended that because most event

[[Page 37933]]

recorder data downloads are stored on compact discs or hard drives
there was not a significant burden in requiring retention of the data
for a period of longer than 30 days. The Working Group believed that a
period of one year was reasonable as this would ensure data was
available for subsequent review if an accident or incident was not
immediately investigated by FRA or NTSB. Therefore, the Working Group
and the full RSAC recommended extending the time period for retaining
the required data from the 30-days contained in the existing regulation
to one year. FRA has accepted this recommendation and does not see a
need to extend the preservation period beyond that time frame. Neither
NTSB or FRA could articulate an instance where recorded data was
determined to be needed or not needed more than one year of an accident
reportable to FRA under part 225.
With regard to the other issues raised related to the preservation
of recorded data, FRA agrees with the Working Group and RSAC
recommendation to not alter the language proposed in the NPRM. The
primary purpose of this provision is to ensure that data from event
recorders and other locomotive mounted recording devices are retained
for a sufficient amount of time to ensure that FRA and NTSB can
accurately and effective conduct accident investigations. The provision
was never intended to serve as a platform for private litigants to
obtain access to evidentiary materials. Although FRA recognizes the
relevance and need for private parties to obtain this information, FRA
believes there are sufficient legal processes by which private
litigants can obtain access and ensure the veracity of the data
required to be preserved in this provision. In Working Group
discussions, NTSB noted that it does not permit observers in its
facilities when data is being downloaded and that it does not have law
enforcement personnel witness such downloading. NTSB does brief
interested law enforcement personnel after the data is downloaded and
analyzed. In addition, neither FRA nor NTSB could identify a
circumstance where they experienced a problem in getting appropriate
software from the involved railroad to conduct their analyses of event
recorder data. Based on the intent of this provision and based upon
FRA's and NTSB's experience in investigating accidents, FRA believes
that it would be inappropriate to include the recommendations submitted
by various commenters noted above.
Paragraph (f) retains the language proposed in the NPRM without
change. This paragraph explains the regulations relationship to other
laws including sate laws, NTSB authority, and the authority of the
Secretary of Transportation. FRA received no comments on this provision
in response to the NPRM. Identical language is contained in paragraph
(d)(2) of the existing regulation and was merely separated in the NPRM
and this final rule for purposes of clarity and ease of citation.
Paragraph (g) retains the language proposed in the NPRM without
change. This paragraph explains the potential ramifications related to
willfully disabling an event recorder or tampering with or altering the
data recorded by such devices. BLET sought clarification as to whether
the altering of brake algorithms, train consist data, or track profile
data is covered by the tampering and disabling provisions contained in
49 CFR part 218. While part 218 only addresses the disabling of the
actual device, if such an action alters or tampers with the data
produced by the event recorder such action could be addressed by civil
penalties under this paragraph directly or by an independent
disqualification action under the procedures contained in 49 CFR part
209. Similar language is contained in paragraph (e) of the existing
regulation.
Appendix B contains the schedule of civil penalties to be used in
connection with part 229. Conforming changes are being made to the
entries related to Sec. 229.135 to reflect the changes made to that
section by this final rule as discussed above.
Appendix D retains the proposed criteria for certification of an
event recorder memory module (ERMM) as crashworthy. The elements
contained in this appendix are the result of the collaborative efforts
of a task group of the RSAC Event Recorder Working Group and were
adopted by the full RSAC in its recommendation to FRA. FRA continues to
agree with the recommendation of the full RSAC This appendix
establishes the general requirements, the testing sequence, and the
required marking for memory modules certified by their manufacturers as
crashworthy. This appendix also contains the performance criteria for
survivability from fire, impact shock, crush, fluid immersion, and
hydrostatic pressure.
The performance criteria contained in Section C of Appendix D are
presented in two tables which represent alternative performance
criteria under which an ERMM could be tested for crashworthiness.
During the development of the NPRM the Working Group discussed and
reviewed various performance criteria which some manufacturers of event
recorders began using in an effort to pre-qualify their ERMMs. Rather
than penalizing these manufacturers by including only the performance
criteria contained in Table 1, FRA also provides the performance
criteria contained in Table 2 as an acceptable alternative. FRA expects
that ERMMs built to Table 2 criteria would survive more extreme
conditions than those built under Table 1. FRA is also advised by
manufacturers that have already designed and tested Table 2 ERMMs that
the incremental cost of event recorders built to those more rigorous
criteria will be less than the incremental cost of Table 1 ERMMs (for
which the differential associated with increased fire protection over
the IEEE criteria is said to be the cost driver).
The performance criteria contained in Table 1 of this appendix are
adapted from the Institute of Electrical and Electronics Engineers,
Inc., IEEE Std 1482.1-1999, IEEE Standard for Rail Transit Vehicle
Event Recorders. Virtually all of the criteria contained in this table
are included in Section 4.5 of the above noted IEEE standard. FRA has
slightly modified the fire criteria to make it consistent with the
conditions an event recorder would encounter in actual operation. FRA
increased the IEEE high temperature fire standard from 650 degrees
Celsius to 750 degrees Celsius because the higher temperature is
consistent with the temperature at which locomotive diesel fuel burns.
FRA also did not include IEEE's penetration standard as FRA finds it
unnecessary for purposes of an event recorder mounted inside a
locomotive. Although FRA and the Working Group explored other
performance criteria, FRA believes that the criteria contained in Table
1 are acceptable to the vast majority of the parties participating in
and affected by this regulation, are a significant improvement over any
existing crashworthiness standard, and will ensure the protection and
retention of the necessary event recorder data when investigating
virtually all railroad accidents involving locomotives equipped with
event recorders. Several manufacturer's of event recorders noted that
they currently manufacture or are capable of manufacturing a
crashworthy ERMM consist with IEEE's standard. Furthermore, the NTSB
indicated its potential acceptance of the criteria contained in Table 1
at the NPRM stage of this proceeding.
It should be noted that in its comments to the NPRM, the NTSB urged
FRA to adopt the criteria contained in Table 2 of the proposal and
phase-out the criteria contained in Table 1 over a period of time.
Table 2 of this

[[Page 37934]]

appendix contains alternative performance criteria to those adapted
from IEEE's standard. As discussed above, the performance criteria
contained in Table 2 was included in the NPRM, and is being retained in
this final rule, based on information received from a small number of
manufacturers indicating that they were currently producing some
crashworthy ERMMs based on the criteria contained in Table 2. Rather
than penalize those manufacturer's that took the lead in developing
crashworthy ERMMs, FRA believed and continues to believe that it is
appropriate to include the criteria used by those manufacturer's in
developing their ERMMs instead of requiring recertification of the
modules under the criteria contained in Table 1. Although NTSB espoused
its desire for the Table 2 criteria, it did not provide any cost
estimates related to adopting those standards. Moreover, NTSB did not
provide any examples or known incidents, other than fires fueled by a
source other than diesel fuel, where the performance criteria contained
in Table 1 would not be effective in preventing the destruction of
necessary event recorder data. Furthermore, it was generally not the
Working Group's, RSAC's, or FRA's intent to have the performance
criteria contained in Table 2 serve as the regulatory standard. They
were included primarily for the purpose of accommodating a small number
of manufacturers currently producing ERMMs. Both Tables have benefits
and FRA continues to believe that the performance criteria contained in
Table 1 are the most cost effective standards available to the industry
at this time.
Table 2 contains two options for meeting the Impact Shock
performance criteria. When using Table 2 criteria, crashworthy ERMMs
may utilize either the IEEE impact shock performance criteria or the
impact shock criteria discussed by the Working Group. FRA continues to
believe that either set of impact shock criteria is acceptable. FRA
recognizes that the duration of the impact pulse contained Table 2 may
be far more expensive to produce than that contained in the IEEE
standard and that there are only a few testing laboratories capable of
performing a test for that duration. FRA realizes that there is a
trade-off between a higher impact value for a short duration as opposed
to a lower impact pulse for a longer duration. FRA sees merit in both
criteria and is not willing to espouse the benefits of either criterion
over the other, and will permit the use of either criterion when
testing the ERMM.
One commenter suggested that FRA consider whether standards related
to electromagnetic interference (EMI) should be included in the
performance criteria. This commenter did not provide any information
related to instances of such interference and did not suggest any
criteria to address the issue. FRA and the Working Group did consider
EMI effects on event recorders when developing the NPRM. Several
parties made presentations to the Working Group on EMI at the January
27, 1999, meeting held in Washington, DC. The Working Group eventually
decided against including any specific EMI related criteria in the
regulation based on its determination that the issue was not a major
concern in the area of locomotive event recorders if adequate
shielding, cabling, gasketing, and grounding of the devices. The
Working Group did not find any problems related to data corruption due
to EMI issues. The Working Group reiterated this position when
considering the comment to the NPRM. FRA is not aware and has not been
provided any indication that EMI is a significant problem in the area
of locomotive event recorders. FRA will continue to monitor this issue
and take appropriate regulatory action should it become necessary.
Consequently, FRA accepts the recommendation of the RSAC Working Group
and is not including EMI-specific performance criteria in this final rule.
It should be noted that each set of criteria is a performance
standard and FRA has not included any specific test procedures to
achieve the required level of performance. Although FRA and the Working
Group considered specific testing criteria, FRA continues to believe
that it is not necessary to include specific testing criteria in this
regulation. FRA did not receive any comments in response to the NPRM
suggesting a need to include specific testing criteria. FRA also
believes that the industry and the involved manufacturers are in the
best position to determine the exact methods by which they will test
for the specified performance parameters. It should be noted that the
Working Group did consider the testing criteria contained in the
following international standards: (1) The European Organization for
Civil Aviation Equipment (EUROCAE), ED-55, Minimum Operational
Performance Specification for Flight Data Recorder System (May 1990);
(2) EUROCAE ED-56A, Minimum Operational Requirement for Cockpit Voice
Recorder System (December 1993); and (3) The Fluid Immersion Test
Procedures contained in the National Fire Protection Association's Fire
Protection Handbook, 18th Edition. Although FRA endorses the use of any
of the above standards, FRA is not mandating their use at this time.
Appendix D makes clear that any testing procedures employed by a
manufacturer must be documented, recognized, and acceptable.
FRA wishes to inform all interested parties that they may obtain a
copy of the standards noted in the above discussion through the
following: (1) The EUROCAE standards may be obtained from The European
Organization for Civil Aviation Equipment, 17, rue Hamelin, 75783 PARIS
CEDEX 16, France; (2) the Fire Protection Handbook, 18th Edition, may
be obtained from the National Fire Protection Association, 1
Batterymarch Park, PO Box 9101, Quincy, MA 02269-9101; and (3) the IEEE
Standard for Rail Transit Event Recorders, IEEE Std 1482.1-1999, may be
obtained from The Institute of Electrical and Electronics Engineers,
Inc., 345 East 47th Street, New York, NY 10017-2394. Interested parties
may also inspect a copy of any of these materials during normal
business hours at the Federal Railroad Administration, Docket Clerk,
Suite 7000, 1120 Vermont Avenue, NW., Washington DC 20590.
Section E of appendix D retains the proposed testing exception for
new model crashworthy ERMMs that represent an evolution or upgrade of
an older model ERMM meeting the performance criteria contained in this
appendix. FRA has included this exception based on its determination
that there is no reason to subject a new model ERMM to the proposed
testing where no material change has been made to the unit that would
impact any of the performance criteria. For example, if a memory chip
is modified but the remainder of the box is left unchanged, there would
likely be no reason to subject the unit to all or any of the required
tests. In this example, the only performance criteria, if any,
potentially affected might be the fire standard. This section makes
clear that the new model ERMM need only be tested for compliance with
those performance criteria contained in Section C of appendix D that
are potentially affected by the upgrade or modification. FRA will
consider a performance criterion to not be potentially affected if a
preliminary engineering analysis or other pertinent data establishes
that the modification or upgrade will not affect the crashworthy
performance criteria established by the older model ERMM. The provision
requires the manufacturer to retain and make available to FRA upon
request any analysis or data relied upon to make a

[[Page 37935]]

determination relating to the crashworthiness impacts of any upgrade or
modification to an older model ERMM.

V. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule has been evaluated in accordance with existing
policies and procedures, and determined to be non-significant under
both Executive Order 12866 and DOT policies and procedures (44 FR
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of this rule.
Document inspection and copying facilities are available at the
Department of Transportation Central Docket Management Facility located
in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC 20590. Access to the docket may also be
obtained electronically through the Web site for the DOT Docket
Management System at http://dms.dot.gov. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No.
FRA-2003-16357.
Event recorders have successfully improved the safety of rail
operations by monitoring railroad operations and by capturing the pre-
accident inputs to the train control. This impartial collection of data
has improved the ability of the railroads and the railroad operating
employees, the ability of the railroads and governmental agencies to
investigate accidents, and the ability of FRA and the States to
regulate railroad operations. These contributions have, in turn, tended
to reduce the number and severity of incidents, accidents, and
resulting damage and casualties. The higher standards contained in this
final rule can be expected to produce even greater safety progress.
Therefore, dilution of the existing standards or rejection of the
higher standards contained in this final rule would create the
potential for an increase in property damage, injuries, and fatalities
resulting from rail accidents.
The Regulatory Impact Analysis (RIA) developed in connection with
this final rule uses a break-even analysis approach to assessing the
monetary impacts and safety benefits of this proposal. This approach is
appropriate for this particular rule because event recorders do not
directly prevent accidents. Event recorders may indirectly prevent
future accidents by allowing for in-depth accident causation analysis
to take place using complete information, thereby allowing accurate
causation determinations, and the development of appropriate and
effective countermeasures. Because event recorders also allow the
railroad to monitor train handling performance and rules compliance in
a widespread and economical way, FRA believes that event recorders
might have the potential of increasing skillful train handling and
encouraging rules compliance. The extent of the event recorders'
contribution to accident analyses, train handling, and rules compliance
is somewhat open to interpretation and argument. FRA is not in a
position to claim a particular degree of improvement in these areas
from event recorders. Therefore, the RIA simply states the level of
effectiveness (avoided accidents, etc.) that event recorders would have
to reach such that the cost of the final rule would be ``paid for'' by
the benefits expected to be achieved. It should be noted that the
accident figures used in FRA's analysis do not include the costs of
environmental cleanup or evacuations related to human factor caused
accidents.
FRA expects that overall the rule will not impose a significant
additional cost on the rail industry over the next twenty years. FRA
believes it is reasonable to expect that several accidents, injuries,
and fatalities will be avoided as a result of implementing this
proposed rule. FRA believes that this safety benefit alone justifies
the measures contained in this final rule. FRA also believes that the
safety of rail operations will be compromised if this rule is not
implemented. The RIA indicates that an accident reduction of
approximately 2 percent (2%) annually during the first twenty years
``breaks-even'' with the expected costs of the final rule. In FRA's
judgement this level of Human Factor Accident reduction is clearly
achievable, and is likely to be exceeded. This is all the more likely
if one or more of the accidents prevented is a passenger train
accident. Passenger train accidents usually have more casualties than
other types of train accidents, just based on the fact that more people
are exposed to the dangers and damages of the accident. Also, those
types of accidents tend to be much more disastrous than a typical
freight train accident, such as a derailment or an accident that does
not involve hazardous materials, thus costing much more than the
assigned average value of a human factor accident.
Although FRA believes this final rule is justified by safety
benefits alone, the addition of clear and substantial business benefits
makes the final rule obviously justified. For example, the estimated
savings resulting from just the proposed requirement of the floating
year approach to the inspection period is a total 20-year benefit of
approximately $1.2 million. In addition to this quantified business
benefit there are other benefits which may result from this final rule
that are not quantified in the RIA. For example, the quality and
quantity of information gained by recorded data resulting in increased
knowledge of train handling and pre-accident inputs (events occurring
just prior to impact which may have contributed to the cause) and the
public perception that the railroads offer higher levels of safety and
efficiency are not easily quantified benefits.
The following table presents estimated twenty-year monetary impacts
associated with the new requirement for crashworthy event recorders.
The table contains the estimated costs and benefits associated with
this final rule and provides the total 20-year value as well as the 20-
year net present value (NPV) for each indicated item. The dollar
amounts presented in this table have been rounded to the nearest
thousand. For exact estimates, interested parties should consult the
RIA that has been made part of the docket in this proceeding.

------------------------------------------------------------------------
Description 20-year total 20-year NPV
------------------------------------------------------------------------
Costs:
Replacement of Magnetic Tape $6,310,000 $5,272,000
Recorders..........................
Crashworthy ERMM no new parameters.. 558,000 296,000
Crashworthy ERMM new parameters..... 16,494,000 8,706,000
Maintenance/Inspections............. 16,107,000 8,281,000
Preservation of Data................ 124,000 66,000
-----------------
Total Costs..................... 39,593,000 22,621,000

[[Page 37936]]

Benefits:
Safety: Reduction of Human Factor 42,808,000 22,675,000
accidents and injuries (2%
effectiveness).....................
Business: Magnetic tape inspection 1,751,000 1,201,000
savings............................
-----------------
Total Benefits.................. 44,559,000 23,876,000
------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket an Analysis of Impact on Small Entities (AISE) that assesses the
small entity impact of this final rule. Document inspection and copying
facilities are available at the Department of Transportation Central
Docket Management Facility located in Room PL-401 on the Plaza level of
the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590.
Docket material is also available for inspection on the Internet at
http://dms.dot.gov. Photocopies may also be obtained by submitting a
written request to the FRA Docket Clerk at Office of Chief Counsel,
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW.,
Washington, DC 20590; please refer to Docket No. FRA-2003-16357.
``Small entity'' is defined in 5 U.S.C. 601 as a small business
concern that is independently owned and operated, and is not dominant
in its field of operation. The U.S. Small Business Administration (SBA)
has authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a railroad business ``line-haul operation'' that
has fewer than 1,500 employees and a ``switching and terminal''
establishment with fewer than 500 employees. SBA's ``size standards''
may be altered by Federal agencies, in consultation with SBA and in
conjunction with public comment.
Pursuant to that authority FRA has published a final statement of
agency policy that formally establishes ``small entities'' as being
railroads that meet the line-haulage revenue requirements of a Class
III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue
requirements are $20 million or less in annual operating revenue. The
$20 million limit is based on the Surface Transportation Board's
(STB's) threshold of a Class III railroad carrier, which is adjusted by
applying the railroad revenue deflator adjustment (49 CFR part 1201).
The same dollar limit on revenues is established to determine whether a
railroad, shipper, or contractor is a small entity. FRA uses this
alternative definition of ``small entity'' for this rulemaking.
The AISE developed in connection with this final rule concludes
that this rule would not have a significant economic impact on a
substantial number of small entities. Thus, FRA certifies that this
final rule is not expected to have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act or Executive Order 13272.
While about 645 of the approximately 700 railroads operating in the
United States are considered small businesses by FRA, this final rule
would only apply to railroads that operate passenger or freight trains
at speeds greater than 30 mph. Most Class III railroads do not conduct
operations at top speeds of greater than 30 mph thus, FRA believes that
the vast majority of small railroads would not be impacted by the final
rule. Further, most small railroads own older locomotives and, thus,
would not be affected by the new equipment requirements of this rule.
FRA estimates that approximately only 350 locomotives operated by these
smaller railroads would be affected by the provisions contained in this
final rule. The AISE associated with this rule estimates that the
economic impact on these operations will have a NPV of less than $
400,000 over a 20-year period. Representatives of small railroads
participated in the RSAC discussion that provided the basis for this
final rule.

Paperwork Reduction Act

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
Respondent
CFR section universe Total annual Average time per Total annual Total annual burden cost
(railroads) responses response burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
229.9--Movement of Non-complying 744 21,000 tags......... 1 minute............ 350 $12,950
Locomotives.
229.17--Accident Reports......... 744 1 report............ 15 minutes.......... .25 11
229.21--Daily Inspection--MU 744 5,655,000 rcds...... 1 or 3 minutes...... 189,583 8,341,652
Locomotives; Written Reports. 744 250 reports......... 3 minutes........... 13 572
Form FRA F 6180.49A Locomotive 744 7,250 forms......... 2 minutes........... 242 8,954
Insp/Repair Rcd.
210.31--Locomotive Noise Emission 744 100 tests/remarks... 15 minutes.......... 25 925
Test.
229.23/229.27/229.29/229.31-- 744 87,000 tests........ 8 hours............. 696,000 25,752,000
Periodic Inspection/Annual
Biennial Tests/Main Res. Tests.
229.33--Out-of Use Credit........ 744 500 notations....... 5 minutes........... 42 1,554
229.25(1)--Test: Every Periodic 744 200 amendments...... 15 minutes.......... 50 1,700
Insp.--Written Copies of
Instruction.
229.25(2)--Duty Verification 744 4,025 records....... 90 minutes.......... 6,038 181,140
Readout Record.

[[Page 37937]]

229.25(3)--Pre-Maintenance Test-- 744 700 notations....... 30 minutes.......... 350 10,500
Failures.
229.135(A.)--Removal From Service 744 1,000 tags.......... 1 minute............ 17 629
229.135(B.)--Preserving Accident 744 2,800 reports....... 15 minutes.......... 700 23,800
Data.
NEW REQUIREMENTS:
229.27--Annual Tests............. 744 700 test records.... 90 minutes.......... 1,050 31,500
229.135(b)(1) & (2)--Equipment 744 850 Cert. Mem 2 hours + 200 hours. 1,900 Included in Rule Reg Eval.
Rqmnts.--Mag Tape Replacements. Modules.
229.135(b)(3)--Equipment Rqmnts.-- 744 600 Cert. Mem 2 hours............. 1,200 Included in Rule Reg Eval.
Lead Locomotives. Modules.
229.135(b)(4)--Equipment Rqmnts.-- 744 255 Cert. Mem 2 hours............. 510 Included in Rule Reg Eval.
MU Locomotives. Modules.
229.135(b)(5)--Equipment Rqmnts.-- 744 1,000 Cert. Mem 2 hours............. 2,000 Included in Rule Reg Eval.
Other Locomotives. Modules.
--------------------------------------------------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB contact Robert Brogan at 202-493-6292.
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
FRA cannot impose a penalty on persons for violating information
collection requirements which do not display a current OMB control
number, if required. FRA intends to obtain current OMB control numbers
for any new information collection requirements resulting from this
rulemaking action prior to the effective date of this final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register.

Federalism Implications

FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132, issued on August 4,
1999, which directs Federal agencies to exercise great care in
establishing policies that have federalism implications. See 64 FR
43255. This final rule 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
various levels of government. This final rule will not have federalism
implications that impose any direct compliance costs on State and local
governments.
FRA notes that the RSAC, which endorsed and recommended this final
rule to FRA, has as permanent members two organizations representing
State and local interests: the American Association of State Highway
and Transportation Officials (AASHTO) and the Association of State Rail
Safety Managers (ASRSM). Both of these State organizations concurred
with the RSAC recommendation endorsing this final rule. The RSAC
regularly provides recommendations to the FRA Administrator for
solutions to regulatory issues that reflect significant input from its
State members. To date, FRA has received no indication of concerns
about the Federalism implications of this rulemaking from these
representatives or of any other representatives of State government.
Consequently, FRA concludes that this final rule has no federalism
implications, other than the preemption of state laws covering the
subject matter of this final rule, which occurs by operation of law
under 49 U.S.C. 20106 whenever FRA issues a rule or order.

Environmental Impact

FRA has evaluated this regulation 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 regulation is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

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

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

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

[[Page 37938]]

annually for inflation) in any 1 year, and 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.
The final rule 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 final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.

Privacy Act

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

List of Subjects in 49 CFR Part 229

Accident investigation, Data preservation, Event recorders,
Locomotives, National Transportation Safety Board, Penalties, Railroad
safety, Railroads, Reporting and recordkeeping requirements.

The Rule

? For the reasons discussed in the preamble, the Federal Railroad
Administration amends part 229 of chapter II, subtitle B of Title 49,
Code of Federal Regulations, as follows:

PART 229--[AMENDED]

? 1. The authority citation for part 229 is revised to read as follows:

Authority: 49 U.S.C. 20103, 20107, 20133, 20137-38, 20143,
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c),
(m).

? 2. Section 229.5 is revised to read as follows:

Sec. 229.5 Definitions.

As used in this part--
Break means a fracture resulting in complete separation into parts.
Cab means that portion of the superstructure designed to be
occupied by the crew operating the locomotive.
Carrier means railroad, as that term is in this section.
Commuter service means the type of railroad service described under
the heading ``Commuter Operations'' in 49 CFR part 209, Appendix A.
Commuter work train is a non-revenue service train used in the
administration and upkeep service of a commuter railroad.
Control cab locomotive means a locomotive without propelling motors
but with one or more control stands.
Controlling remote distributed power locomotive means the
locomotive in a distributed power consist that receives the coded
signal from the lead locomotive consist of the train whether commanded
automatically by the distributed power system or manually by the
locomotive engineer.
Crack means a fracture without complete separation into parts,
except that castings with shrinkage cracks or hot tears that do not
significantly diminish the strength of the member are not considered to
be cracked.
Cruise control means a device that controls locomotive power output
to obtain a targeted speed. A device that functions only at or below 30
miles per hour is NOT considered a ``cruise control'' for purposes of
this part.
Data element means one or more data point or value reflecting on-
board train operations at a particular time. Data may be actual or
``passed through'' values or may be derived from a combination of
values from other sources.
Dead locomotive means--
(1) A locomotive, other than a control cab locomotive, that does
not have any traction device supplying tractive power; or
(2) A control cab locomotive that has a locked and unoccupied cab.
Distributed power system means a system that provides control of a
number of locomotives dispersed throughout a train from a controlling
locomotive located in the lead position. The system provides control of
the rearward locomotives by command signals originating at the lead
locomotive and transmitted to the remote (rearward) locomotives.
DMU locomotive means a diesel-powered multiple unit operated
locomotive with one or more propelling motors designed to carry
passenger traffic.
Electronic air brake means a brake system controlled by a computer
which provides the means for control of the locomotive brakes or train
brakes or both.
Event recorder means a device, designed to resist tampering, that
monitors and records data, as detailed in Sec. 229.135(b), over the
most recent 48 hours of operation of the electrical system of the
locomotive on which the device is installed. However, a device,
designed to resist tampering, that monitors and records the specified
data only when the locomotive is in motion meets this definition if the
device was installed prior to November 5, 1993 and if it records the
specified data for the last eight hours the locomotive was in motion.
Event recorder memory module means that portion of the event
recorder used to retain the recorded data as detailed in Sec. 229.135(b).
High voltage means an electrical potential of more than 150 volts.
In-service event recorder means an event recorder that was
successfully tested as prescribed in Sec. 229.27(d) and whose
subsequent failure to operate as intended, if any, is not actually
known by the railroad operating the locomotive on which it is installed.
Lead locomotive means the first locomotive proceeding in the
direction of movement.
Lite locomotive means a locomotive or a consist of locomotives not
attached to any piece of equipment or attached only to a caboose.
Locomotive means a piece of on-track equipment other than hi-rail,
specialized maintenance, or other similar equipment--
(1) With one or more propelling motors designed for moving other
equipment;
(2) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
(3) Without propelling motors but with one or more control stands.

[[Page 37939]]

Mandatory directive means any movement authority or speed
restriction that affects a railroad operation.
Modesty lock means a latch that can be operated in the normal
manner only from within the sanitary compartment, that is designed to
prevent entry of another person when the sanitary compartment is in
use. A modesty lock may be designed to allow deliberate forced entry in
the event of an emergency.
MU locomotive means a multiple unit operated electric locomotive--
(1) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
(2) Without propelling motors but with one or more control stands.
Other short-haul passenger service means the type of railroad
service described under the heading ``Other short-haul passenger
service'' in 49 CFR part 209, Appendix A.
Potable water means water that meets the requirements of 40 CFR
part 141, the Environmental Protection Agency's Primary Drinking Water
Regulations, or water that has been approved for drinking and washing
purposes by the pertinent state or local authority having jurisdiction.
For purposes of this part, commercially available, bottled drinking
water is deemed potable water.
Powered axle is an axle equipped with a traction device.
Railroad means all forms of non-highway ground transportation that
run on rails or electromagnetic guideways, including:
(1) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area, and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether they use new technologies
not associated with traditional railroads. Such term does not include
rapid transit operations within an urban area that are not connected to
the general railroad system of transportation.
Remanufactured locomotive means a locomotive rebuilt or refurbished
from a previously used or refurbished underframe (``deck''), containing
fewer than 25 percent previously used components (weighted by dollar
value of the components).
Sanitary means lacking any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that
a reasonable person would believe that the condition might constitute a
health hazard; or of strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable
concern with respect to exposure to hazardous fumes. Such conditions
include, but are not limited to, a toilet bowl filled with human waste,
soiled toilet paper, or other products used in the toilet compartment,
that are present due to a defective toilet facility that will not flush
or otherwise remove waste; visible human waste residue on the floor or
toilet seat that is present due to a toilet that overflowed; an
accumulation of soiled paper towels or soiled toilet paper on the
floor, toilet facility, or sink; an accumulation of visible dirt or
human waste on the floor, toilet facility, or sink; and strong,
persistent chemical or human waste odors in the compartment.
Sanitation compartment means an enclosed compartment on a railroad
locomotive that contains a toilet facility for employee use.
Self-monitoring event recorder means an event recorder that has the
ability to monitor its own operation and to display an indication to
the locomotive operator when any data required to be stored are not
stored or when the stored data do not match the data received from
sensors or data collection points.
Serious injury means an injury that results in the amputation of
any appendage, the loss of sight in an eye, the fracture of a bone, or
confinement in a hospital for a period of more than 24 consecutive hours.
Switching service means the classification of railroad freight and
passenger cars according to commodity or destination; assembling cars
for train movements; changing the position of cars for purposes of
loading, unloading, or weighing; placing locomotives and cars for
repair or storage; or moving rail equipment in connection with work
service that does not constitute a train movement.
Throttle position means any and all of the discrete output
positions indicating the speed/tractive effort characteristic requested
by the operator of the locomotive on which the throttle is installed.
Together, the discrete output positions shall cover the entire range of
possible speed/tractive effort characteristics. If the throttle has
continuously variable segments, the event recorder shall capture either:
(1) The exact level of speed/tractive effort characteristic
requested, on a scale of zero (0) to one hundred percent (100%) of the
output variable or
(2) A value converted from a percentage to a comparable 0 to 8
digital signal.
Time means either ``time-of-day'' or ``elapsed time'' (from an
arbitrarily determined event) as determined by the manufacturer. In
either case, the recorder must be able to convert to an accurate time-
of-day with the time zone stated unless it is Greenwich mean time (UTC).
Toilet facility means a system that automatically or on command of
the user removes human waste to a place where it is treated,
eliminated, or retained such that no solid or non-treated liquid waste
is thereafter permitted to be released into the bowl, urinal, or room
and that prevents harmful discharges of gases or persistent offensive
odors.
Transfer service means a freight train that travels between a point
of origin and a point of final destination not exceeding 20 miles and
that is not performing switching service.
Unsanitary means having any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that
a reasonable person would believe that the condition might constitute a
health hazard; or strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable
concern with respect to exposure to hazardous fumes. Such conditions
include, but are not limited to, a toilet bowl filled with human waste,
soiled toilet paper, or other products used in the toilet compartment,
that are present due to a defective toilet facility that will not flush
or otherwise remove waste; visible human waste residue on the floor or
toilet seat that is present due to a toilet that overflowed; an
accumulation of soiled paper towels or soiled toilet paper on the
floor, toilet facility, or sink; an accumulation of visible dirt or
human waste on the floor, toilet facility, or sink; and strong,
persistent chemical or human waste odors in the compartment.
Washing system means a system for use by railroad employees to
maintain personal cleanliness that includes a secured sink or basin,
water, antibacterial soap, and paper towels; or antibacterial waterless
soap and paper towels; or antibacterial moist towelettes and paper
towels; or any other combination of suitable antibacterial cleansing
agents.

? 3. Section 229.25 is amended by revising paragraph (e) to read as
follows:

Sec. 229.25 Tests: Every periodic inspection.

* * * * *
(e) Event recorder. A microprocessor-based self-monitoring event
recorder, if installed, is exempt from periodic inspection under
paragraphs (e)(1) through (e)(5) of this section and shall be inspected
annually as required by Sec. 229.27(d). Other types of event
recorders, if installed, shall be

[[Page 37940]]

inspected, maintained, and tested in accordance with instructions of
the manufacturer, supplier, or owner thereof and in accordance with the
following criteria:
(1) A written or electronic copy of the instructions in use shall
be kept at the point where the work is performed and a hard-copy
version, written in the English language, shall be made available upon
request of a governmental agent empowered to request it.
(2) The event recorder shall be tested before any maintenance work
is performed on it. At a minimum, the event recorder test shall include
cycling, as practicable, all required recording elements and
determining the full range of each element by reading out recorded data.
(3) If the pre-maintenance test does not reveal that the device is
recording all the specified data and that all recordings are within the
designed recording elements, this fact shall be noted, and maintenance
and testing shall be performed as necessary until a subsequent test is
successful.
(4) When a successful test is accomplished, a copy of the data-
verification results shall be maintained in any medium with the
maintenance records for the locomotive until the next one is filed.
(5) A railroad's event recorder periodic maintenance shall be
considered effective if 90 percent of the recorders on locomotives
inbound for periodic inspection in any given calendar month are still
fully functional; maintenance practices and test intervals shall be
adjusted as necessary to yield effective periodic maintenance.

? 4. Section 229.27 is amended by revising the introductory text and by
adding a new paragraph (d) to read as follows:

Sec. 229.27 Annual tests.

A locomotive, except for a DMU or MU locomotive, shall be subjected
to the tests and inspections prescribed in paragraphs (a), (b), and (c)
of this section. A DMU locomotive or an MU locomotive shall be
subjected to the tests and inspections prescribed in paragraphs (b) and
(c) of this section. A locomotive, including a DMU locomotive or an MU
locomotive, equipped with a microprocessor-based event recorder that
includes a self-monitoring feature, shall be subjected to the tests and
inspections prescribed in paragraph (d) of this section. All testing
under this section shall be performed at intervals that do not exceed
368 calendar days.
* * * * *
(d) A microprocessor-based event recorder with a self-monitoring
feature equipped to verify that all data elements required by this part
are recorded, requires further maintenance only if either or both of
the following conditions exist:
(1) The self-monitoring feature displays an indication of a
failure. If a failure is displayed, further maintenance and testing
must be performed until a subsequent test is successful. When a
successful test is accomplished, a record, in any medium, shall be made
of that fact and of any maintenance work necessary to achieve the
successful result. This record shall be available at the location where
the locomotive is maintained until a record of a subsequent successful
test is filed.
(2) A download of the event recorder, taken within the preceding 30
days and reviewed for the previous 48 hours of locomotive operation,
reveals a failure to record a regularly recurring data element or
reveals that any required data element is not representative of the
actual operations of the locomotive during this time period. If the
review is not successful, further maintenance and testing shall be
performed until a subsequent test is successful. When a successful test
is accomplished, a record, in any medium, shall be made of that fact
and of any maintenance work necessary to achieve the successful result.
This record shall be kept at the location where the locomotive is
maintained until a record of a subsequent successful test is filed. The
download shall be taken from information stored in the certified
crashworthy crash hardened event recorder memory module if the
locomotive is so equipped.

? 5. Section 229.135 is revised to read as follows:

Sec. 229.135 Event recorders.

(a) Duty to equip and record. Except as provided in paragraphs (c)
and (d) of this section, a train operated faster than 30 miles per hour
shall have an in-service event recorder, of the type described in
paragraph (b) of this section, in the lead locomotive. The presence of
the event recorder shall be noted on Form FRA F6180-49A (by writing the
make and model of event recorder with which the locomotive is equipped)
under the REMARKS section, except that an event recorder designed to
allow the locomotive to assume the lead position only if the recorder
is properly functioning is not required to have its presence noted on
Form FRA F6180-49A. For the purpose of this section, ``train'' includes
a locomotive or group of locomotives with or without cars. The duty to
equip the lead locomotive may be met with an event recorder located
elsewhere than the lead locomotive provided that such event recorder
monitors and records the required data as though it were located in the
lead locomotive. The event recorder shall record the most recent 48
hours of operation of the electrical system of the locomotive on which
it is installed.
(b) Equipment requirements. Event recorders shall monitor and
record data elements required by this paragraph with at least the
accuracy required of the indicators displaying any of the required
elements to the engineer.
(1) A lead locomotive originally ordered before October 1, 2006,
and placed in service before October 1, 2009, including a controlling
remote distributed power locomotive, a lead manned helper locomotive, a
DMU locomotive, and an MU locomotive, except as provided in paragraphs
(c) and (d) of this section, shall have an in-service event recorder
that records the following data elements:
(i) Train speed;
(ii) Selected direction of motion;
(iii) Time;
(iv) Distance;
(v) Throttle position;
(vi) Applications and operations of the train automatic air brake;
(vii) Applications and operations of the independent brake;
(viii) Applications and operations of the dynamic brake, if so
equipped; and
(ix) Cab signal aspect(s), if so equipped and in use.
(2) A locomotive originally manufactured before October 1, 2006,
and equipped with an event recorder that uses magnetic tape as its
recording medium shall have the recorder removed from service on or
before October 1, 2009 and replaced with an event recorder with a
certified crashworthy event recorder memory module that meets the
requirements of Appendix D of this part and that records at least the
same number of data elements as the recorder it replaces.
(3) A lead locomotive, a lead manned helper locomotive, and a
controlling remotely distributed power locomotive, other than a DMU or
MU locomotive, originally ordered on or after October 1, 2006 or placed
in service on or after October 1, 2009, shall be equipped with an event
recorder with a certified crashworthy event recorder memory module that
meets the requirements of Appendix D of this part. The certified event
recorder memory module shall be mounted for its maximum protection.
(Although other mounting standards may meet this standard, an event

[[Page 37941]]

recorder memory module mounted behind and below the top of the
collision posts and above the platform level is deemed to be mounted
``for its maximum protection.'') The event recorder shall record, and
the certified crashworthy event recorder memory module shall retain,
the following data elements:
(i) Train speed;
(ii) Selected direction of motion;
(iii) Time;
(iv) Distance;
(v) Throttle position;
(vi) Applications and operations of the train automatic air brake,
including emergency applications. The system shall record, or provide a
means of determining, that a brake application or release resulted from
manipulation of brake controls at the position normally occupied by the
locomotive engineer. In the case of a brake application or release that
is responsive to a command originating from or executed by an on-board
computer (e.g., electronic braking system controller, locomotive
electronic control system, or train control computer), the system shall
record, or provide a means of determining, the involvement of any such
computer;
(vii) Applications and operations of the independent brake;
(viii) Applications and operations of the dynamic brake, if so
equipped;
(ix) Cab signal aspect(s), if so equipped and in use;
(x) End-of-train (EOT) device loss of communication front to rear
and rear to front;
(xi) Electronic controlled pneumatic braking (ECP) message (and
loss of such message), if so equipped;
(xii) EOT armed, emergency brake command, emergency brake application;
(xiii) Indication of EOT valve failure;
(xiv) EOT brake pipe pressure (EOT and ECP devices);
(xv) EOT marker light on/off;
(xvi) EOT ``low battery'' status;
(xvii) Position of on/off switch for headlights on lead locomotive;
(xviii) Position of on/off switch for auxiliary lights on lead
locomotive;
(xix) Horn control handle activation;
(xx) Locomotive number;
(xxi) Locomotive automatic brake valve cut in;
(xxii) Locomotive position in consist (lead or trail);
(xxiii) Tractive effort;
(xxiv) Cruise control on/off, if so equipped and in use; and
(xxv) Safety-critical train control data routed to the locomotive
engineer's display with which the engineer is required to comply,
specifically including text messages conveying mandatory directives,
and maximum authorized speed. The format, content, and proposed
duration for retention of such data shall be specified in the product
safety plan submitted for the train control system under subpart H of
part 236 of this chapter, subject to FRA approval under this paragraph.
If it can be calibrated against other data required by this part, such
train control data may, at the election of the railroad, be retained in
a separate certified crashworthy memory module.
(4) A DMU locomotive and an MU locomotive originally ordered on or
after October 1, 2006 or placed in service on or after October 1, 2009,
shall be equipped with an event recorder with a certified crashworthy
event recorder memory module that meets the requirements of Appendix D
of this part. The certified event recorder memory module shall be
mounted for its maximum protection. (Although other mounting standards
may meet this standard, an event recorder memory module mounted behind
the collision posts and above the platform level is deemed to be
mounted ``for its maximum protection.'') The event recorder shall
record, and the certified crashworthy event recorder memory module
shall retain, the following data elements:
(i) Train speed;
(ii) Selected direction of motion;
(iii) Time;
(iv) Distance;
(v) Throttle position;
(vi) Applications and operations of the train automatic air brake,
including emergency applications. The system shall record, or provide a
means of determining, that a brake application or release resulted from
manipulation of brake controls at the position normally occupied by the
locomotive engineer. In the case of a brake application or release that
is responsive to a command originating from or executed by an on-board
computer (e.g., electronic braking system controller, locomotive
electronic control system, or train control computer), the system shall
record, or provide a means of determining, the involvement of any such
computer;
(vii) Applications and operations of the independent brake, if so
equipped;
(viii) Applications and operations of the dynamic brake, if so
equipped;
(ix) Cab signal aspect(s), if so equipped and in use;
(x) Emergency brake application(s);
(xi) Wheel slip/slide alarm activation (with a property-specific
minimum duration);
(xii) Lead locomotive headlight activation switch on/off;
(xiii) Lead locomotive auxiliary lights activation switch on/off;
(xiv) Horn control handle activation;
(xv) Locomotive number;
(xvi) Locomotive position in consist (lead or trail);
(xvii) Tractive effort;
(xviii) Brakes apply summary train line;
(xix) Brakes released summary train line;
(xx) Cruise control on/off, if so equipped and used; and
(xxi) Safety-critical train control data routed to the locomotive
engineer's display with which the engineer is required to comply,
specifically including text messages conveying mandatory directives,
and maximum authorized speed. The format, content, and proposed
duration for retention of such data shall be specified in the product
safety plan submitted for the train control system under subpart H of
part 236 of this chapter, subject to FRA approval under this paragraph.
If it can be calibrated against other data required by this part, such
train control data may, at the election of the railroad, be retained in
a separate certified crashworthy memory module.
(5) A locomotive equipped with an event recorder that is
remanufactured, as defined in this part, on or after October 1, 2007,
shall be equipped with an event recorder with a certified crashworthy
event recorder memory module that meets the requirements of Appendix D
to this part and is capable of recording, at a minimum, the same data
as the recorder that was on the locomotive before it was remanufactured.
(6) An event recorder originally manufactured after January 1,
2010, that is installed on any locomotive identified in paragraph
(b)(1) of this section shall be an event recorder with a certified
crashworthy event recorder memory module that meets the requirements of
Appendix D to this part and that is capable of recording, at a minimum,
the same data as the event recorder that was previously on the locomotive.
(c) Removal from service. Notwithstanding the duty established in
paragraph (a) of this section to equip certain locomotives with an in-
service event recorder, a railroad may remove an event recorder from
service and, if a railroad knows that an event recorder is not
monitoring or recording required data, shall remove the event recorder
from service. When a railroad removes an event recorder from service, a
qualified person shall record the date that the device was removed from
service on Form FRA F6180-49A, under the REMARKS section, unless the
event recorder is designed to allow the locomotive to assume the lead
position

[[Page 37942]]

only if the recorder is properly functioning.
(d) Response to defective equipment. Notwithstanding the duty
established in paragraph (a) of this section to equip certain
locomotives with an in-service event recorder, a locomotive on which
the event recorder has been taken out of service as provided in
paragraph (c) of this section may remain as the lead locomotive only
until the next calendar-day inspection. A locomotive with an
inoperative event recorder is not deemed to be in improper condition,
unsafe to operate, or a non-complying locomotive under Sec. Sec. 229.7
and 229.9, and, other than the requirements of Appendix D of this part,
the inspection, maintenance, and testing of event recorders are limited
to the requirements set forth in Sec. Sec. 229.25(e) and 229.27(d).
(e) Preserving accident data. If any locomotive equipped with an
event recorder, or any other locomotive-mounted recording device or
devices designed to record information concerning the functioning of a
locomotive or train, is involved in an accident/incident that is
required to be reported to FRA under part 225 of this chapter, the
railroad that was using the locomotive at the time of the accident
shall, to the extent possible, and to the extent consistent with the
safety of life and property, preserve the data recorded by each such
device for analysis by FRA. This preservation requirement permits the
railroad to extract and analyze such data, provided the original
downloaded data file, or an unanalyzed exact copy of it, shall be
retained in secure custody and shall not be utilized for analysis or
any other purpose except by direction of FRA or the National
Transportation Safety Board. This preservation requirement shall expire
one (1) year after the date of the accident unless FRA or the Board
notifies the railroad in writing that the data are desired for analysis.
(f) Relationship to other laws. Nothing in this section is intended
to alter the legal authority of law enforcement officials investigating
potential violation(s) of State criminal law(s), and nothing in this
chapter is intended to alter in any way the priority of National
Transportation Safety Board investigations under 49 U.S.C. 1131 and
1134, nor the authority of the Secretary of Transportation to
investigate railroad accidents under 49 U.S.C. 5121, 5122, 20107,
20111, 20112, 20505, 20702, 20703, and 20902.
(g) Disabling event recorders. Except as provided in paragraph (c)
of this section, any individual who willfully disables an event
recorder is subject to civil penalty and to disqualification from
performing safety-sensitive functions on a railroad as provided in
Sec. 218.55 of this chapter, and any individual who tampers with or
alters the data recorded by such a device is subject to a civil penalty
as provided in appendix B of part 218 of this chapter and to
disqualification from performing safety-sensitive functions on a
railroad if found unfit for such duties under the procedures in part
209 of this chapter.

? 6. Appendix B to part 229 is amended by revising the entry for Sec.
229.135 to read as follows and the text of footnote 1 remains unchanged:

Appendix B to Part 229--Schedule of Civil Penalties\1\

* * * * *

------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------

* * * * * * *
229.135 Event Recorders:
(a) Lead locomotive without in- 2,500 5,000
service event recorder.............
(b) Failure to meet equipment 2,500 5,000
requirements.......................
(c) Unauthorized removal or failure 2,500 5,000
to remove from service.............
(d) Improper response to out of 2,500 5,000
service event recorder.............
(e) Failure to preserve data or 2,500 5,000
unauthorized extraction of data....
(g) Tampering with device or data... 2,500 5,000

* * * * * * *
------------------------------------------------------------------------

* * * * *

? 7. A new Appendix D is added to Part 229 to read as follows:

Appendix D to Part 229--Criteria for Certification of Crashworthy Event
Recorder Memory Module

Section 229.135(b) requires that certain locomotives be equipped
with an event recorder that includes a certified crashworthy event
recorder memory module. This appendix prescribes the requirements
for certifying an event recorder memory module (ERMM) as
crashworthy, including the performance criteria and test sequence
for establishing the crashworthiness of the ERMM as well as the
marking of the event recorder containing the crashworthy ERMM.

A. General Requirements

1. Each manufacturer that represents its ERMM as crashworthy
shall, by marking it as specified in Section B of this appendix,
certify that the ERMM meets the performance criteria contained in
this appendix and that test verification data are available to a
railroad or to FRA upon request.
2. The test verification data shall contain, at a minimum, all
pertinent original data logs and documentation that the test sample
preparation, test set up, test measuring devices and test procedures
were performed by designated, qualified personnel using recognized
and acceptable practices. Test verification data shall be retained
by the manufacturer or its successor as long as the specific model
of ERMM remains in service on any locomotive.
3. A crashworthy ERMM shall be marked by its manufacturer as
specified in Section B of this appendix.

B. Marking Requirements

1. The outer surface of the event recorder containing a
certified crashworthy ERMM shall be colored international orange. In
addition, the outer surface shall be inscribed, on the surface
allowing the most visible area, in black letters on an international
orange background, using the largest type size that can be
accommodated, with the words CERTIFIED DOT CRASHWORTHY, followed by
the ERMM model number (or other such designation), and the name of
the manufacturer of the event recorder. This information may be
displayed as follows:

CERTIFIED DOT CRASHWORTHY

Event Recorder Memory Module Model Number

Manufacturer's Name
------------------------------------------------------------------------

Marking ``CERTIFIED DOT CRASHWORTHY'' on an event recorder designed
for installation in a railroad locomotive is the certification that
all performance criteria contained in this appendix have been met
and all functions performed by, or on behalf of, the manufacturer
whose name appears as part of

[[Page 37943]]

the marking, conform to the requirements specified in this appendix.

2. Retro-reflective material shall be applied to the edges of
each visible external surface of an event recorder containing a
certified crashworthy ERMM.

C. Performance Criteria for the ERMM

An ERMM is crashworthy if it has been successfully tested for
survival under conditions of fire, impact shock, static crush, fluid
immersion, and hydro-static pressure contained in one of the two
tables shown in this section of Appendix D. (See Tables 1 and 2.)
Each ERMM must meet the individual performance criteria in the
sequence established in Section D of this appendix. A performance
criterion is deemed to be met if, after undergoing a test
established in this Appendix D for that criterion, the ERMM has
preserved all of the data stored in it. The data set stored in the
ERMM to be tested shall include all the recording elements required
by Sec. 229.135(b). The following tables describe alternative
performance criteria that may be used when testing an ERMM's
crashworthiness. A manufacturer may utilize either table during its
testing but may not combine the criteria contained in the two tables.

Table 1.--Acceptable Performance Criteria--Option A
----------------------------------------------------------------------------------------------------------------
Parameter Value Duration Remarks
----------------------------------------------------------------------------------------------------------------
Fire, High Temperature............... 750 [deg]C (1400 60 minutes............. Heat source: Oven.
[deg]F).
Fire, Low Temperature................ 260 [deg]C (500 [deg]F) 10 hours...............
Impact Shock......................... 55g.................... 100 ms................. \1/2\ sine crash pulse.
Static Crush......................... 110kN (25,000 lbf)..... 5 minutes.
Fluid Immersion...................... #1 Diesel, Any single fluid, 48
#2 Diesel, hours.
Water, Salt Water,
Lube Oil.
Fire Fighting Fluid.... 10 minutes, following Immersion followed by
immersion above. 48 hours in a dry
location without
further disturbance.
Hydrostatic Pressure................. Depth equivalent = 15 48 hours at nominal
m. (50 ft.). temperature of 25
[deg]C (77 [deg]F).
----------------------------------------------------------------------------------------------------------------

Table 2.--Acceptable Performance Criteria--Option B
----------------------------------------------------------------------------------------------------------------
Parameter Value Duration Remarks
----------------------------------------------------------------------------------------------------------------
Fire, High Temperature............... 1000 [deg]C (1832 60 minutes............. Heat source: Open
[deg]F). flame.
Fire, Low Temperature................ 260 [deg]C (500 [deg]F) 10 hours............... Heat source: Oven.
Impact Shock--Option 1............... 23gs................... 250 ms.................
Impact Shock--Option 2............... 55gs................... 100 ms................. \1/2\ sine crash pulse.
Static Crush......................... 111.2kN (25,000 lbf)... 5 minutes. .......................
44.5kN (10,000 lbf).... (single ``squeeze'')... Applied to 25% of
surface of largest
face.
Fluid Immersion...................... #1 Diesel, 48 hours each.
#2 Diesel,
Water, Salt Water,
Lube Oil, Fire
Fighting Fluid.
Hydrostatic Pressure................. 46.62 psig (= 30.5 m. 48 hours at nominal
or 100 ft.). temperature of 25
[deg]C (77 [deg]F).
----------------------------------------------------------------------------------------------------------------

D. Testing Sequence

In order to reasonably duplicate the conditions an event
recorder may encounter, the ERMM shall meet the various performance
criteria, described in Section C of this appendix, in a set
sequence. (See Figure 1). If all tests are done in the set sequence
(single branch testing), the same ERMM must be utilized throughout.
If a manufacturer opts for split branch testing, each branch of the
test must be conducted using an ERMM of the same design type as used
for the other branch. Both alternatives are deemed equivalent, and
the choice of single branch testing or split branch testing may be
determined by the party representing that the ERMM meets the standard.

[[Page 37944]]

[GRAPHIC]
[TIFF OMITTED]
TR30JN05.002

E. Testing Exception

If a new model ERMM represents an evolution or upgrade from an
older model ERMM that was previously tested and certified as meeting
the performance criteria contained in Section C of this appendix,
the new model ERMM need only be tested for compliance with those
performance criteria contained in Section C of this appendix that
are potentially affected by the upgrade or modification. FRA will
consider a performance criterion not to be potentially affected if a
preliminary engineering analysis or other pertinent data establishes
that the modification or upgrade will not change the performance of
the older model ERMM against the performance criterion in question.
The manufacturer shall retain and make available to FRA upon request
any analysis or data relied upon to satisfy the requirements of this
paragraph to sustain an exception from testing.

Issued in Washington, DC on June 23, 2005.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 05-12878 Filed 6-29-05; 8:45 am]
BILLING CODE 4910-06-P

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