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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229, 231, and 232

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

RIN 2130-AB16

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

AGENCY:

Federal Railroad Administration (FRA), DOT.

ACTION:

Final Rule.

SUMMARY:

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

EFFECTIVE DATE:

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

ADDRESSES:

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

FOR FURTHER INFORMATION, CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background

In 1992, Congress amended the Federal rail safety laws by adding certain statutory mandates related to power brake safety.

See

49 U.S.C. 20141. These amendments specifically address the revision of the power brake regulations by adding a new subsection which states:

(r) POWER BRAKE SAFETY.—(1) The Secretary shall conduct a review of the Department of Transportation's rules with respect to railroad power brakes, and not later than December 31, 1993, shall revise such rules based on such safety data as may be presented during that review.

(2) In carrying out paragraph (1), the Secretary shall, where applicable, prescribe standards regarding dynamic brake equipment. * * *

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

In response to the statutory mandate, the various recommendations and petitions for rulemaking, and due to its own determination that the power brake regulations were in need of revision, FRA published an Advance Notice of Proposed Rulemaking (ANPRM) on December 31, 1992 (57 FR 62546), and conducted a series of public workshops in early 1993. The ANPRM provided background information and presented questions on various subjects including the following: the use and design of end-of-train (EOT) telemetry devices; the air flow method of train brake testing; the additional testing of train air brakes during extremely cold weather; the training of employees to perform train brake tests and inspections; computer-assisted braking systems; the operation of dynamic brakes on locomotives; and other miscellaneous subjects relating to conventional brake systems as well as information regarding high speed passenger train brakes. The questions presented in the ANPRM on the various topics were intended as fact-finding tools and were meant to elicit the views of those persons outside FRA charged with ensuring compliance with the power brake regulations on a day-to-day basis.

Based on the comments and information received, FRA published a Notice of Proposed Rulemaking (1994 NPRM) regarding revisions to the power brake regulation.

See

59 FR 47676 (September 16, 1994). In the 1994 NPRM, FRA proposed a comprehensive revision of the power brake regulations which attempted to preserve the useful elements of the current regulatory system in the framework of an entirely new document. FRA attempted to delineate the requirements for conventional freight braking systems from the more diverse systems for various categories of passenger service. In developing the NPRM, FRA engaged in a systems approach to the power brake regulations. FRA considered all aspects of a railroad operation and the effects that the entire operation had on the train and locomotive power braking systems. Therefore, the proposed requirements not only addressed specific brake equipment and inspection requirements, but also attempted to encompass other aspects of a railroad's operation which directly affect the quality and performance of the braking system, such as personnel qualifications; maintenance requirements; written procedures governing operation, maintenance, and inspection; record keeping requirements; and the development and integration of new technologies.

Following publication of the 1994 NPRM in the

Federal Register

, FRA held a series of public hearings in 1994 to allow interested parties the opportunity to comment on specific issues addressed in the NPRM. Public hearings were held in Chicago, Illinois on November 1-2; in Newark, New Jersey on November 4; in Sacramento, California on November 9; and in Washington, DC on December 13-14, 1994. These hearings were attended by numerous railroads, organizations representing railroads, labor organizations, rail shippers, and State governmental agencies. Due to the strong objections raised by a large number of commenters at these public hearings, FRA announced by notice published on January 17, 1995 that it would defer action on the NPRM and permit the submission of additional comments prior to making a determination as to how it would proceed in this matter.

See

60 FR 3375. Although the comment period officially closed April 1, 1995, FRA continued to receive comments on the NPRM as well as other suggested alternatives well into October 1995.

Furthermore, beginning in mid-1995, FRA internally committed to the process of establishing the Railroad Safety Advisory Committee (RSAC). The determination to develop the RSAC was based on FRA's belief that the continued use of ad hoc collaborative procedures for appropriate rulemakings was not the most effective means of accomplishing its goal of a more consensual regulatory program. FRA believed that the establishment of an advisory committee to address railroad safety issues would provide the best opportunity for creating a consensual regulatory program to benefit the Administrator in the conduct of her statutory responsibilities. FRA envisioned that the RSAC would allow representatives from management, labor, FRA, and other interested parties to cooperatively address safety problems by identifying the best solutions based on agreed-upon facts, and, where regulation appears necessary, by identifying regulatory options to implement these solutions. The process of establishing the RSAC was not complete until March 1, 1996, and on March 11, 1996, FRA published a notice

in the

Federal Register

that the Committee had been established.

See

61 FR 9740.

In the interim, based on these considerations and after review of all the comments submitted, FRA published a notice in the

Federal Register

on February 21, 1996, stating that, in order to limit the number of issues to be examined and developed in any one proceeding, FRA would proceed with the revision of the power brake regulations via three separate processes.

See

61 FR 6611. In light of the testimony and comments received on the 1994 NPRM, emphasizing the differences between passenger and freight operations and the brake equipment utilized by the two, FRA decided to separate passenger equipment power brake standards from freight equipment power brake standards. As passenger equipment power brake standards are a logical subset of passenger equipment safety standards, it was determined that the passenger equipment safety standards working group would assist FRA in developing a second NPRM covering passenger equipment power brake standards.

See

49 U.S.C. 20133(c). In addition, in the interest of public safety and due to statutory as well as internal commitments, FRA determined that it would separate the issues related to two-way EOTs from both the passenger and freight issues, address them in a public regulatory conference, and issue a final rule on the subject as soon as practicable. A final rule on two-way EOTs was issued on December 27, 1996.

See

62 FR 278 (January 2, 1997). Furthermore, it was announced that a second NPRM covering freight equipment power brake standards would be developed with the assistance of RSAC. At the Committee's inaugural meeting on April 1-2, 1996, the RSAC officially accepted the task of assisting FRA in development of revisions to the regulations governing power brake systems for freight equipment.

See

61 FR 29164.

Members of RSAC nominated individuals to be members of the Freight Power Brake Working Group (Working Group) tasked with making recommendations regarding revision of the power regulations applicable to freight operations. The Working Group was comprised of thirty-one voting members as well as a number of alternates and technical support personnel. The following organizations were represented by a voting member and/or an alternate on the Working Group:

Association of American Railroads (AAR)

The American Short Line Railroad Association (ASLRA)

Brotherhood of Locomotive Engineers (BLE)

The Burlington Northern and Santa Fe Railway Company (BNSF)

Canadian National Railroads (CN)

Canadian Pacific Rail Systems (CP)

Consolidated Rail Corporation (CR)

CSX Transportation, Incorporated (CSX)

Illinois Central Railroad Company (IC)

International Association of Machinists & Aerospace Workers (IAMAW)

National Transportation Safety Board (NTSB)(Advisor)

National Association of Regulatory Commissioners (NARUC)

California Public Utilities Commission (CAPUC)

Norfolk Southern Corporation (NS)

Railway Progress Institute (RPI)

Sheet Metal Workers International Association (SMWIA)

Southern Pacific Lines (SP)

Transportation Communications International Union/Brotherhood of Railway Carmen (TCU/BRC)

Transport Workers Union of America (TWU)

Union Pacific Railroad Company (UP)

United Transportation Union (UTU)

The Working Group held seven multi-day sessions in which all members of the working group were invited. These sessions were held on the following dates:

May 15-17, 1996 in Washington D.C.;

June 11-13, 1996 in Chicago, Illinois;

July 31, 1996 in Chicago, Illinois;

August 21-23, 1996 in Annapolis, Maryland;

September 26-27, 1996 in Washington D.C.;

October 29-30, 1996 in Washington D.C.; and

December 4, 1996 in St. Louis, Missouri.

General minutes of each of these meetings are contained in FRA Docket PB-9 and are available for public inspection during the times and at the location noted previously. In addition to these meetings, there were numerous meetings conducted by smaller task force groups designated by the Working Group to further develop various issues. All of these smaller task forces were made up of various members of the Working Group or their representatives, with each task force being represented by management, labor, FRA, and other interested parties. The Working Group designated smaller task forces to address the following issues: Dry air; dynamic brakes; periodic maintenance and testing; electronically controlled locomotive brakes; and inspection and testing requirements. These task forces were assigned the job of developing the issues related to the broad topics, presenting reports to the larger Working Group, and if possible making recommendations to the Working Group for addressing the issues.

Although the Working Group discussed, debated, and attempted to reach consensus on various issues related to freight power brakes, consensus could not be reached. However, the working group in conjunction with the various task forces developed a wealth of information on various issues and further clarified the parties' positions regarding how the issues could or should be addressed in any regulation. The major cluster of issues, upon which resolution of many of the other issues rested, were the requirements related to the inspection and testing of brake equipment. The inspection and testing task force met on numerous occasions and gathered and reviewed data, and the labor and rail management representatives to the task force drafted various proposals and options related to the inspection and testing of freight brake equipment. The Working Group discussed the proposals and investigated many of the costs and benefits related to the various proposals as well as the safety implications; however, the Working Group could not reach any type of consensus position. Consequently, FRA declared that an impasse had been reached and announced, at the December 4, 1996 meeting of the Working Group, that FRA would proceed unilaterally with the drafting of the NPRM.

Subsequent to December 4, 1996, several members of the Working Group, including representatives from both rail management and labor, continued informal discussions of some of the issues related to the inspection and testing of freight equipment. These representatives informed FRA that a consensus proposal might be possible, provided that the Working Group were permitted to continue deliberations. Consequently, FRA agreed to reconvene the Working Group, and in April 1997 three additional meetings were conducted on the following dates:

April 2-3 in Kansas City, Missouri;

April 10-11 in Phoenix, Arizona; and

April 23 in Jacksonville, Florida.

Representatives of both rail management and rail labor presented the Working Group with inspection and testing proposals for consideration and review both before and during this period. Although the proposals were discussed and deliberated, the Working Group was once again unsuccessful in

reaching consensus on any of the freight power brake inspection and testing issues. Consequently, by letter dated May 29, 1997, FRA informed the members of the Working Group that FRA would be withdrawing the freight power brake task from the Working Group at the next full RSAC meeting on June 24, 1997. FRA provided this notice to avoid any misunderstanding regarding the process by which the proposed rule would be drafted. FRA also informed the members of the Working Group that it would not invest further time in attempting to reach consensus unless all other members of the Working Group jointly indicated that they have reached consensus on a proposal and wanted to discuss it with FRA. FRA noted that if that were to occur prior to June 24, 1997, it would reconsider withdrawing the task from RSAC. As no consensus proposal was presented to FRA prior to June 24, 1997, FRA withdrew the task from the Working Group and informed the members of RSAC that FRA would proceed independently in the drafting of a freight power brake NPRM.

FRA carefully considered the information, data, and proposals developed by the Freight Power Brake Working Group as well as all the oral and written comments offered by various parties regarding the 1994 NPRM on power brakes when developing a revised power brake NPRM. On September 9, 1998, an NPRM (1998 NPRM) was published in the

Federal Register

proposing brake system safety standards for freight trains and equipment.

See

63 FR 48294 (September 9, 1998).

As evidenced by the preceding discussion, FRA spent years developing the 1998 proposed power brake regulations. During that time, FRA instituted rulemakings to address passenger and commuter operations and equipment and two-way end-of-train devices, and developed a channel of communication to address tourist and excursion operational concerns. Consequently, the 1998 proposal focused solely on freight and other non-passenger operations. FRA did not, for the most part, attempt to include provisions related to the inspection and maintenance of locomotive braking systems or to the performance of other mechanical inspections that are currently addressed by other parts of the regulations. FRA believed that although those requirements are interrelated to the inspection, testing, and maintenance of freight power brakes, they are adequately addressed in other regulations and would only add to the complexity of the proposal, causing confusion and misunderstanding by members of the regulated community.

When developing the 1998 NPRM, FRA determined that the proposal would closely track the existing requirements related to the inspection, testing, and maintenance of the braking systems used in freight operations. Although FRA recognized that the current regulatory scheme tended to create incentives to “overlook” defects or fail to conduct vigorous inspections, FRA also believed that the current regulatory scheme is an effective and proven method of ensuring safety and that many of the “negative incentives” could be greatly reduced by strict and aggressive enforcement coupled with moderate revisions to address specific concerns raised by interested parties. Furthermore, representatives of both rail labor and rail management indicated that if a consensus proposal could not be developed then FRA should proceed on its own with developing a proposal which tracks the current requirements, and that FRA should strictly enforce those requirements.

The 1998 NPRM proposed a moderate, although comprehensive, revision of the existing requirements related to the inspection, testing, and maintenance of brake equipment used in freight operations. The proposal attempted to balance the concerns of rail labor and management and increase the effectiveness of the regulation. In the 1998 NPRM, FRA attempted to reorganize, update, and clarify the existing regulations related to freight power brakes and eliminate potential loopholes created by the existing regulatory language. Furthermore, completely new requirements were proposed to address the qualifications of those individuals conducting brake inspections and tests. FRA also proposed requirements related to the movement of freight equipment with defective or inoperative brakes which were consistent with existing statutory requirements and other federal regulations addressing the movement of defective freight equipment. The 1998 NPRM also attempted to codify existing maintenance requirements related to the brake system and its components and prevent unilateral changes to those provisions by the very party to which they apply. Moreover, the proposal also contained specific requirements related to dynamic brakes and requirements aimed at increasing the quality of air introduced into brake systems by yard air sources.

In addition to the above, the 1998 proposal also contained various incentives to the railroads to encourage the performance of quality brake inspections, particularly at locations where trains originate. These included incentives to use qualified mechanical forces to conduct brake system tests at major terminals where long-distance trains originate in order to move these trains greater distances between brake inspections than existing regulations permitted. Consequently, the 1998 proposal retained the basic inspection intervals and requirements contained in the existing regulations and preserved the useful elements of the existing system, but also proposed additions, clarifications, and modifications that FRA believed would increase the safety, effectiveness, and enforceability of the regulations.

Following publication of the 1998 NPRM, FRA held two public hearings and a public technical conference to allow interested parties the opportunity to comment on specific issues addressed in the NPRM. The public hearings were held in Kansas City, Missouri on October 26 and in Washington, DC on November 13, 1998. The public technical conference was conducted in Walnut Creek, California on November 23 and 24, 1998. The hearings and technical conference were attended by numerous railroads, organizations representing railroads, labor organizations, rail shippers, and State governmental agencies. During the hearings and technical conference a vast amount of oral information was presented, and a considerable number of issues were raised and discussed in detail.

Subsequent to conducting these public hearings and technical conference, FRA issued a notice extending the comment period on the NPRM from January 15, 1999 to March 1, 1999.

See

64 FR 3273. This extension was provided based on the requests of several interested parties for more time in which to develop their responses. At the public hearings and technical conference conducted in relation to the NPRM and in written comments submitted subsequent to the public hearings and technical conference, concerns were raised regarding the data discussed by FRA in the NPRM. The comments raised concerns regarding FRA's collection of data related to FRA's inspection activity and the number of conditions not in compliance with Federal regulations found during that inspection activity. The comments and correspondence received alleged that there were substantial problems with FRA's database, that there had been substantial overreporting of the number of units inspected, and that there had been a systematic deflation of power brake defect ratios.

As the allegations and concerns raised were general in nature, FRA believed it prudent and necessary to allow interested parties to fully explain and discuss their concerns. Therefore, FRA conducted a public meeting on May 27, 1999 to permit the exchange of information and concerns regarding FRA's database and the information developed from that database.

See

64 FR 23816 (May 4, 1999). The purpose of the meeting was to allow FRA to provide information regarding its internal review of the data and address some of the concerns raised as well as to allow interested parties to further develop and articulate the issues and concerns they had with regard to the data gathered and presented by FRA in the NPRM.

FRA has carefully considered all the information, data, and proposals submitted in relation to FRA Docket PB-9 when developing this final rule. This includes: the information, data and proposals developed by the RSAC Freight Power Brake Working Group; all oral and written comments submitted in relation to the 1994 NPRM on power brakes; and all oral and written comments submitted regarding the 1998 NPRM on freight power brakes. In addition to the preceding information, FRA's knowledge and experience with enforcing the existing power brake regulations were also relied upon when developing this final rule.

II. Overview of Comments and General FRA Conclusions

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

A. Accident/Incident History and Defective Equipment

The 1998 NPRM contained a detailed discussion regarding the accident/incident data which FRA considered when developing the proposal. In that discussion, FRA noted that it considers a variety of factors in attempting to determine the relative condition of the industry as it relates to the safety of train power brake systems. Two of the factors considered when making this assessment are the number of recent brake-related incidents and the amount of defective brake equipment recently discovered operating over the railroad system, both of which provide some indication as to the potential or likelihood of future brake-related incidents. Due to concerns raised in both written comments and at the public meeting conducted on May 27, 1999, regarding the accident/incident data and power brake defect ratio data discussed above, FRA believes it is necessary to further explain how these data were used in developing this final rule.

1. Accident/Incident Data

In order to determine the potential quantifiable safety benefits to be derived from the provisions proposed in the NPRM and either retained or modified in this final rule, FRA conducted a review of all accidents/incidents reported to FRA to determine which incidents/accidents could potentially have been prevented had the provisions of the rule been in place. For purposes of the NPRM, FRA identified a brake-related incident as being an incident reported to FRA as being caused by one of the following: brake rigging down or dragging; air hose uncoupled or burst; broken brake pipe or connections; other brake components damaged, worn, broken or disconnected; brake valve malfunction (undesired emergency); brake valve malfunction (stuck brake); hand brake broken or defective; hand brake linkage and/or connections broken or defective. For purposes of the NPRM, FRA did not consider brake pipe obstruction-related incidents because FRA believed they had been fully considered at the time that FRA promulgated the final rule relating to the use of two-way end-of-train devices.

In written comments and at the public meeting held in conjunction with the NPRM, several labor representatives raised concerns regarding FRA's reliance on accident/incident information which is essentially reported to FRA by the railroads. These representatives contend that railroads have an economic incentive to report accidents/incidents as being due to human factors rather than to mechanical problems or deficiencies. Thus, they contend that the potential safety benefits identified by FRA in the NPRM are inaccurate and underestimated because the data used to determine those benefits are developed by the railroads. FRA tends to agree with the concerns raised by these commenters and raised this concern in its discussion of the accident/incident data in the NPRM.

In the NPRM, FRA acknowledged that the presented brake-related incidents most likely did not accurately reflect the total number of incidents that were potentially linked, in some part, to brake-related causes and did not provide a complete picture of the costs associated with the identified incidents.

See

63 FR 48297. FRA recognized that the information on most incidents is provided by the railroads which generally identify the direct cause of an incident but may not sufficiently identify all of the contributory causes in a manner to permit FRA to conclude that the brake system played a part in the incident. Thus, FRA acknowledged that there may be numerous incidents which occurred in the industry which were at least partially due to brake-related problems, but which were ultimately more closely linked to human error or other mechanical problems and thus, were reported to FRA under different cause codes. However, as it is extremely difficult to identify those accidents/incidents that may have been in some part related to a brake problem, FRA elected to include only those accidents specifically identified as brake-related in its quantified safety benefits and included other potential incidents as qualitative safety benefits in the NPRM. FRA also recognized that the damage costs provided to FRA by the railroads for the incidents identified in the NPRM failed to consider all of the costs associated with an accident such as: loss of lading; wreck clearance; track delay; environmental clean-up; removal of damaged equipment; evacuations; or the impact on local traffic patterns.

See

63 FR 48297. Thus, for purposes of the NPRM, the property damages reported by the railroads were multiplied by a factor of 1.5625 in an effort to capture these non-reported damages.

See

63 FR 48297.

In calculating the potential quantifiable safety benefits to be derived from this final rule, FRA has slightly expanded the criteria for determining the accidents/incidents which are addressed by this final rule. Thus, for purposes of this final rule the quantified safety benefits include a percentage of certain types of accidents reported as being due to human error or other than a brake-related mechanical problem. The quantified safety benefits for this final rule also include a percentage of those incidents which are considered brake pipe obstruction-related. Although these accidents were considered in relation to the two-way EOT final rule, FRA believes that this final rule will prevent an additional percentage of those incidents that were not captured by the two-way EOT final rule.

Table 1 below contains a compilation of the relevant incidents that FRA

considers to be preventable that have been reported to FRA from 1994 through 1998. The incidents included in this table contain incidents reported to FRA as being caused by one of the following: Brake rigging down or dragging; air hose uncoupled or burst; broken brake pipe or connections; other brake components damaged, worn, broken or disconnected; brake valve malfunction (undesired emergency); brake valve malfunction (stuck brake); hand brake broken or defective; hand brake linkage and/or connections broken or defective. Table 1 also contains incidents reported as being related to brake pipe obstructions and certain brake-related human factor incidents which include: runaway cuts of cars; train handling; and improper use of brakes. FRA believes that various provisions of this final rule have the potential of preventing a certain percentage of the incidents reported as being due to these causes. However, in developing the cost/benefit analysis for this final rule, FRA used a very conservative effectiveness rate of .2 for incidents with these reported causes. The Regulatory Impact Analysis prepared in connection with this final rule provides a detailed discussion of how certain human factor and brake pipe obstruction incidents were utilized when evaluating this rule.

It should be noted that the damage costs noted in Table 1 for the identified incidents are based on the damage to railroad property or equipment. Thus, the damages presented fail to consider the costs associated with the injuries and fatalities involved. These costs are calculated in detail in the Regulatory Impact Analysis prepared in connection with this final rule. The costs presented in Table 1 also do not consider such things as: loss of lading; wreck clearance; track delay; environmental clean-up; removal of damaged equipment; evacuations; or the impact on local traffic patterns. Consequently, the railroad property damages have been multiplied by a factor of 1.5625 in an effort to capture some of these non-reported damages.

1

1

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

Table 1.—Brake-Related Incidents

Year

Number of accidents

Injuries

Fatalities

Damages

*

1994

99

24

1

$11,414,346

1995

121

65

0

9,431,582

1996

112

44

3

20,637,986

1997

98

8

0

9,651,569

1998

121

3

0

10,791,626

Total

551

140

4

61,927,107

*

Increased by 56.25% to reflect unreported damages.

2. Use of Power Brake Defect Data

A second factor that is considered by FRA, to some extent, in determining the relative condition of the industry in regard to the safety of power brake equipment is the percentage of equipment found with defective brakes during FRA inspections and special projects. As noted in the preceding discussions, the method for calculating and determining the percentage of equipment with defective brakes was a contentious subject within the RSAC Power Brake Working Group prior to the issuance of the NPRM and at the public hearings and meetings conducted subsequent to the issuance of the NPRM. In the NPRM, FRA provided a lengthy discussion regarding the data it had available regarding power brake defect ratios and the limitations regarding the use of such data.

See

63 FR 48298. In that discussion, FRA explained that data on brake defects is collected by FRA inspectors as they do rail equipment inspections and during special projects conducted under the Safety Assurance and Compliance Program (SACP). The NPRM made clear that the data collected during these activities is not suitable for use in any statistical analysis of brake defects.

In order to perform a statistically valid analysis, either all cars and locomotives must be inspected (prohibitively expensive), or a statistically valid sample must be collected. For the sample to be valid for the purpose of statistical analysis, the sample must be randomly selected so that it will represent the same characteristics as the universe of data. Random samples have several unique characteristics. They are unbiased, meaning that each unit has the same chance of being selected. Random samples are independent, or the selection of one unit has no influence on the selection of other units. Most statistical methods depend on independence and lack of bias. Without a randomized sample design there can be no dependable statistical analysis, and no way to measure sampling error, no matter how the data is modified. Random sampling “statistically guarantees” the accuracy of the results.

The sampling method used for regular FRA inspections is not random. It is more of a combination between a

judgement

sample and an opportunity sample. The opportunity sample basically just takes the first sample population that comes along, while the judgement sample is based on “expert” opinion. The sampling method used for SACP inspections is also a judgement sample, where FRA is focusing its inspections on a specific safety concern. This method is extremely prone to bias, as FRA is typically investigating known problem areas. Furthermore, some SACP inspections are joint inspections with labor. Consequently, it is unknown whether the final reports reflect only FRA defects, as many of the joint inspections had both AAR and FRA defects recorded.

Neither the regular FRA inspections nor the SACP inspections were designed for random data collection. Although both are very useful to FRA, they were not designed for this purpose and the data should be used carefully. FRA believes that data collected during routine inspections are the most likely data to accurately reflect the condition of the fleet. However, both FRA inspection data and SACP data lack any measuring device, a defect is a defect and no distinction is made between a critical defect versus a minor defect. Furthermore, the estimated correlation coefficients between defects and

accidents were not found to be statistically significant. This does not mean that defects cannot lead to collisions or derailments as the lack of correlation could easily be a result of non-random sampling. Therefore, the data collected both during routine FRA inspections and under SACP cannot be used as a proxy for data collected by means of a random sample for the purpose of statistical analysis. The sample is not random, so no dependable statistical analysis may be performed. Consequently, FRA did not and will not use the data regarding power brake defects for the purpose of conducting any type of statistical analysis.

In the NPRM, FRA provided brake defect ratio's for the years 1993 through 1997 based upon the data contained in its database.

See

63 FR 48298, Table 2. The average brake defect ratio for this five year period was 3.84 percent. The NPRM also noted that the available SACP data (which focuses on known problem areas) indicated brake defect ratios as high as 35 percent at some locations. FRA stated that the SACP data in all likelihood indicates that there are localized areas of concern and that some railroads have particular yards or operations with persistent problems. The NPRM attempted to make clear that FRA believes that brake defects are in all likelihood higher than that indicated by FRA's database and that the reality of power brake defects lies somewhere between the 3.84 percent represented in FRA's database and the 35 percent found at certain locations. FRA noted that actual power brake defect ratios are probably closer to the percentage reflected in FRA's database because FRA examines almost

1/2

million freight cars and locomotives annually. Thus, contrary to the assertions of certain commenters, FRA did not assert or contend that the power brake defect ratios represented by its database were an accurate or precise reflection as to the relative condition of the industry. In fact, as evidenced by the preceding discussion, FRA attempted to point out the limited usefulness of the data contained in its database. Furthermore, review of the defect data submitted by the BRC at the technical conference in Walnut Creek, California, as discussed below, appears to support FRA's conclusions regarding power brake defect ratios.

The NPRM made clear that the power brake defect ratios indicated in FRA's database were specifically relied on only to calculate the cost of the requirement to conduct retests on cars found with brakes that are not applied during the performance of the various required brake tests. Power brake defect ratios were not specifically relied on when developing any provision contained in the NPRM or in this final rule. Although power brake defect ratios were considered, they were not used as the basis for any of the provisions proposed in the NPRM or contained in this final rule. They were generally used to aid FRA in identifying problem areas, which in turn helped FRA identify brake issues and practices that needed to be addressed. For example, the existence of high power brake defect ratios at a particular location or on a particular railroad likely indicate the existence of certain practices or procedures that create or contribute to the high defect levels. As is evident from the discussions of the various requirements contained in both the NPRM and in this final rule, FRA considered a massive amount of information when developing this rule. These included accident/incident data; information and data provided in relation to the 1994 NPRM, the RSAC Power Brake Working Group, and the 1998 NPRM as well as FRA's experience in the enforcement of existing regulations and the expertise and knowledge of FRA's field inspectors.

Although the data regarding defect ratios contained in FRA's database has limited usefulness in the context of developing a regulation, the data is very useful to FRA in other ways. The data is useful in measuring a railroad's general compliance level and aids in identifying problem areas or locations. This information aids FRA in allocating its inspections forces and permits FRA to focus its enforcement on locations or issues which are in the greatest need of such scrutiny. By focusing its enforcement in this manner FRA is able to make the best use of its limited resources.

3. Discussion of Concerns Regarding FRA's Collection of Power Brake Defect Data

Although the NPRM and the preceding discussion detail the limitations of using the data collected by FRA regarding power brake defects when developing a regulation, FRA believes that a more detailed discussion of FRA's collection of power brake defect data is needed in order to address the issues raised by various commenters subsequent to the issuance of the NPRM. As noted above, FRA conducted a public meeting on May 27, 1999 in order to address general concerns raised by various parties regarding the accuracy of the brake defect data presented in the NPRM and to provide interested parties the opportunity to develop the issues they generally raised in oral and written comments regarding that data. At this public meeting, representatives of several labor organizations raised issues regarding the accuracy and use of the power brake defect data complied by FRA. These commenters generally allege that the method by which FRA collects defect data results in the underreporting of defects which in turn results in a systematic deflation of power brake defect ratios.

Specific issues raised at this public meeting and in subsequent written comments include: the overreporting of units inspected during FRA inspections; the calculation and deflation of the power brake defect ratio; the inspection procedures used by FRA that tend to exclude certain categories of power brake defects; potential discrepancies in the input data relative to the activity codes from FRA field inspection reports to FRA's database; the performance of power brake inspections by FRA inspectors on cars that are not properly charged or connected to a source of compressed air; FRA's reliance on the railroads for the total number of cars inspected; and the wide variance between FRA inspectors and FRA regions in the number of units inspected, the number of defects reported, and the resulting defect ratios.

In order to understand some of the issues raised, it is necessary to understand how inspection data developed by an FRA inspector are entered into FRA's database. FRA Motive Power & Equipment (MP&E) inspectors conduct inspections of railroad freight equipment pursuant to various parts of the Federal regulations contained in chapter 49 of the Code of Federal Regulations. Principally, these include inspections under the following: Part 215—Freight Car Safety Standards; part 229—Locomotive Safety Standards; part 231—Safety Appliance Standards; and part 232—Power Brakes and Drawbars. When performing an inspection under each of these parts, an FRA inspector will fill out the appropriate inspection form which indicates the number of units inspected under each part as well as the number of defective conditions found on those units. In the context of performing power brake inspections under part 232, an inspection of a car means a unit count of one. When this type of inspection is conducted, inspectors inspect various brake-related car components such as: Foundation brake rigging, air hoses, angle cocks, brake shoes, and, where possible, piston travel. When an inspector performs an inspection of a brake test required under part 232, the unit count for such a test

is the train consist, block of cars, or car being tested. For example, when an inspector observes the performance of an initial terminal brake test, the entire train would constitute one unit count.

Certain labor representatives raised various issues regarding FRA's calculation of power brake defect ratios. Several of these concerns involve the potential overreporting of the number of units inspected which then results in the deflation of power brake defect ratios. One concern addressed the practice of counting a single car or locomotive as a unit count under each of the MP&E regulations that it is inspected under. For example, a freight car could be considered a unit count under part 215, part 231, and part 232 if an FRA inspector were to inspect that freight car under each of those provisions. Thus, one freight car could be represented as three unit counts. It is claimed that this practice inflates the number of units inspected and thus, deflates defect ratios. This concern would be valid if FRA were to attempt to express a defect ratio for combined parts of the CFR. For example, if FRA were to attempt to express an MP&E defect ratio (a combination of parts 215, 229, 231, and 232) then the method by which FRA collects data would result in an inflation of the number of units inspected and the resulting defect ratio would be skewed. For purposes of analysis, FRA's database is constructed so that defect ratios are expressed only in terms of each separate part of the CFR. Therefore, the power brake defect ratios discussed in the NPRM were calculated based solely on the units inspected by FRA under the provisions contained in part 232.

A second concern involves the potential of duplicate inspection reports being submitted by different FRA inspectors when engaged in team inspections. Certain labor representatives allege that FRA inspectors are significantly inflating the number of power brake units being inspected by submitting duplicate reports for the same inspection activity when groups of FRA inspectors perform inspections at the same location. In an effort to investigate this concern, FRA designed a computer program to search for potentially duplicate inspection reports submitted during the years of 1995 through 1998. Table 2 displays the figures regarding power brake inspections conducted by FRA for the years of 1995 through 1998 that is contained in FRA's database.

Table 2.—Power Brake Inspections and Defect Ratios: 1995 Through 1998*

Calendar year

Power brake units

Power brake

defective units

All railroads power brake

defect ratios

Class I RRs power brake defect ratios

1995

611,824

24,387

.03986

.0369

1996

646,140

28,795

.04456

.0419

1997

582,685

26,004

.04463

.045

1998

585,663

26,286

.04488

N/A

*

Note

: Class I Railroads Power Brake Defect Ratios column information comes from the Regulatory Impact Analysis (RIA) for the 1998 NPRM on freight power brakes. No defect ratio was used in the report for calendar year 1998 because the RIA was finalized in August of 1998.

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

Table 3.—Potential Duplicate Power Brake Inspections 1995 Through 1998

Calendar year

Inspection

reports with more than one

matching unit

Units

Potential

duplicate units (half of units)

1995

39

1,965

983

1996

154

12,646

6,323

1997

342

19,482

9,741

1998

182

8,692

4,346

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

Table 4.—Revised Power Brake Data Considering Potential Duplicate Reports 1995 Through 1998

Calendar year

Power brake units

Potential

duplicate units

Units minus

potential duplicate units

Defective units

Defect ratios after adjusting for potential duplicate units

1995

611,824

983

610,841

24,387

.03992

1996

646,140

6,323

639,817

28,795

.04501

1997

582,685

9,741

572,944

26,004

.04539

1998

585,663

4,346

581,317

26,286

.04522

Table 5.—Affect of Potential Duplicate Reports on Power Brake Defect Ratios 1995 Through 1998

Calendar year

Defect ratios

before adjustment

Defect ratios after adjustment

Difference

1995

.03986

.03992

.00006

1996

.04456

.04501

.00045

1997

.04463

.04539

.00076

1998

.04488

.04522

.00034

It should be noted that the numbers presented in Tables 3 through Table 5 overstate the actual impact of potential duplicate inspection reports. For the year 1998, FRA conducted an in-depth analysis of the potential duplicate reports found by the computer program. The computer program identified 393 potential duplicate inspection reports for the year 1998. However, included in this grouping were unique inbound inspection reports, outbound inspection reports and split inspection reports. In addition, there were inspection reports from inspectors who worked in the same county, but at different locations. Each of these reports was removed from the 393 potentially duplicate inspection reports identified by the computer program based on a report-by-report analysis of each of the reports by FRA MP&E specialists. This analysis left 182 potential duplicate reports for 1998, which were used to calculate the figures presented in Tables 3 through 5 for 1998. Although these tables note 182 potential duplicate inspection reports involving 8,692 units (4,346 duplicates), a further analysis of the reports by FRA found that only 54 of the inspection reports were actually found to be duplicative. These 54 duplicate inspection reports involved the over-reporting of just 3,073 units rather than the 4,346 units identified in Table 4. As an in-depth analysis was not performed on the potential duplicate inspection reports identified by the computer program for the years of 1995 through 1997, the figures provided for those years in all likelihood greatly overstate the actual number of duplicate claims submitted in each of those years. Thus, the actual impact of duplicate inspection reports is even less than the small percentages indicated in Table 5 above.

Although the impact of duplicate inspection reports is insignificant, FRA believes that a brief discussion of how these duplicate inspection reports happened is necessary in order to assure interested parties that such occurrences are rare and that FRA has taken steps to avoid these inaccuracies. In 1994, FRA had four inspection forms for the Agency's five inspection disciplines. The Operating Practices and Hazardous Materials disciplines shared the same form. FRA also had a Quality Improvement Plan (QIP) daily activity report form to help the Agency track resource allocations, including the amount of time required to perform certain inspections. When “team inspections” occurred, one inspector completed the inspection report for the entire team. However, each inspector on the team was also required to complete a separate QIP report to receive credit for the inspection. On January 1, 1995, a newly developed single inspection form (FRA 6180.96) for all disciplines became operational. Furthermore, in May of 1995, FRA discontinued the collection of QIP-time data based on FRA's conclusion that it had adequate information from previous QIP reports regarding the time it takes to conduct various inspections. In addition, the new inspection form incorporated many of the previous QIP codes. In August 1995, FRA converted to a data collection system using personal computers.

After conducting the analysis discussed above, it was determined that 26 FRA MP&E inspectors inadvertently prepared all of the involved duplicate inspection reports. Furthermore, FRA was not aware that the new computer system did not filter out duplicate inspection reports. After becoming aware of these problems based on reports from its field personnel, FRA specifically addressed the issue of inspection reporting at FRA's multi-regional conference conducted in 1998. At this conference, FRA's Office of Safety management provided specific guidance on preparing reports that would eliminate potential duplicate reporting. During this same period, FRA also changed its computer software to give inspectors credit for inspections while at the same time preventing potential duplicate reporting. Furthermore, on March 5, 1999, FRA re-issued reporting procedures designed to prevent duplicate inspection reports when team inspections are conducted. These procedures were issued to all Federal and State inspection personnel and to all FRA Regional Administrators and Deputy Regional Administrators.

Subsequent to the public meeting conducted in May of 1999, FRA made two modifications to the summary data produced by its database in order to clarify the meaning of the data and to avoid misunderstanding by outside parties. The first modification relates to safety appliance inspections conducted under 49 CFR part 231. The summary data previously contained the heading “SA & PB (cars and locomotives).” This heading may have caused some confusion because the heading suggests that it applies to both safety appliance and power brake inspections when in reality the data captured under this heading only concerns safety appliance inspections under part 231. This heading has been modified to read “SA (cars and locomotives)” to more accurately reflect the information contained under this heading. FRA has also modified the summary data by eliminating the calculation of an MP&E defect ratio. As discussed above, FRA believes that the calculation of a composite MP&E defect ratio is inappropriate based on the way FRA collects the information contained in its database and would result in a deflation of MP&E defect ratios. Therefore, defect ratios will only be presented for each separate MP&E CFR part.

In response to the issue raised regarding FRA's practice of conducting brake inspections under part 232 while cars are not connected to a source of compressed air or not completely charged with air, FRA has developed a separate reporting code for brake inspections conducted in this manner. This reporting code will become effective in mid-2000 and will indicate when brake inspections are conducted on cars or trains that are not charged with compressed air. Although FRA agrees that the most thorough brake inspection is performed when a car or train is charged, a large majority of the brake components on a car can be inspected for abnormalities without the actual application of the air brakes. For example, cut-out air brakes, brake connection pins missing, brake rigging down or dragging, brake shoes worn to the extent that the backing plate comes in contact with the tread of the wheel,

angle cocks missing or broken, retainer valves broken or missing, and air brake piping bent or broken can all be discovered regardless of whether a car or train is charged with air. When FRA inspectors conduct train air brake tests, they inspect all of the components noted above as well as the operation of the train air brakes while under the required air pressures. FRA has conducted inspections of brake equipment in this manner for decades and will continue to conduct brake inspections under part 232 on equipment that is both on and off a source of compressed air. FRA believes that the addition of a code to identify those inspections conducted while equipment is not connected to a source of compressed air will provide a more accurate assessment of defective brake system components.

Two other issues raised by various individuals at the May 27, 1999, public meeting concerned FRA's reliance on railroads to determine the number of cars inspected and the wide disparity between FRA inspectors and regions with regard to the number of units inspected and defects reported. FRA acknowledges that FRA inspectors frequently rely on information provided by the railroad regarding car counts when initially conducting an inspection, which is sometimes higher than the actual number of cars being inspected. However, in most instances FRA inspectors request a copy of the consist prior to finalizing their inspection reports to ensure a proper unit count. FRA has issued guidance to its inspectors to ensure that the unit counts on all inspections are accurate.

Although FRA acknowledges that the number of brake inspections conducted varies somewhat from inspector to inspector and from region to region, FRA contends that these variances are the result of competing priorities and varying workloads within each region. FRA makes every effort to standardize its inspection activities by providing substantial training to each of its inspectors. This training is comprised of both classroom and on-the-job training. Classroom training conducted at least once a year at the Regional or Multi-Regional conferences, and through training provided by General Electric, General Motors-EMD, and Westinghouse Air Brake Company. Many regions also conduct discipline specific conferences with training on new regulations and issues provided by various subject matter experts. On-the-job training is provided through Regional Specialists and journeyman inspectors. These individuals will work one-on-one with the inspectors on the various types of inspections that the inspector is required to conduct. FRA also frequently issues enforcement guidance to its inspectors in the form of technical bulletins in order to ensure consistent enforcement of the regulations.

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

After issuance of the 1998 NPRM, FRA conducted a technical conference in Walnut Creek, California, on November 23 and 24, 1998. At this technical conference individuals representing the BRC submitted a vast amount of data collected either by its members at various locations or through joint labor and FRA inspection activities conducted at various locations. The data provided by BRC representatives addressed defective equipment found in various trains at seven different locations across the country during various time periods from October of 1997 to November of 1998. The BRC submitted this data in order to establish that the power brake defect ratios developed based on the information contained in FRA's database were inaccurate.

FRA conducted an in-depth review of the data submitted by BRC representatives. Although the BRC attempted to summarize the data for many of the locations addressed, FRA's review of the data discovered that the BRC's summaries counted defects that were not power brake defects, failed to summarize all the data for all the trains covered by the supporting documentation, and double counted some brake defects when calculating the number of defective cars. It should also be noted that approximately 80-90 percent of the defective conditions noted on the supporting documentation merely listed the defective condition as being “brake shoes.” This notation does not make clear whether the defective brake shoe was defective under the federal regulations or defective under AAR industry standards. However, in order to assess the data in a manner that is most favorable to the party submitting the data, FRA assumed that all defects noted as “brake shoes” were defective under Federal requirements. In conducting its analysis of the data submitted, FRA only considered power brake defects, whereas, BRC's summary data appear to consider other mechanical and safety appliance defects which are not the subject of this proceeding.

Table 6 contains a summary of FRA's in-depth analysis of the data submitted. FRA's analysis determined that the data submitted by the BRC establish a power brake defect ratio of approximately 4.96 percent, which is less than 1 percent higher than the power brake defect ratios developed based on the information contained in FRA's database for the years of 1996 and 1997, discussed in the 1998 NPRM.

See

63 FR 48298. The analysis of the data submitted by the BRC indicates that some locations and some trains have power brake defect ratios in excess of 11 and 12 percent, which is consistent with the findings made and reported by FRA during various SACP inspections as noted in the preceding discussion and in the 1998 NPRM.

Table 6.—Analysis of Defect Data Submitted by the BRC

Location

Total trains inspected

Total cars inspected

Cars with power brake defect

Power brake defect ratio (percent)

North Platte, Nebraska

1,625

150,926

8,136

5.39

Hinkle Yard, Oregon

151

13,455

425

3.15

Oak Island-Newark, New Jersey

13

618

72

11.65

Kansas City, Missouri

180

11,917

159

1.33

Clovis, Alliance, Temple Yards—Texas

16

1,419

41

2.88

Sparks Yard—Sacramento, California

8

781

30

3.84

Various Locations, Mississippi

4

296

37

12.5

Totals

1,997

179,412

8,900

4.96

B. Inspection and Testing Requirements

As noted in the preceding discussions and in the 1998 NPRM, the issues related to the inspection and testing of the brake equipment on freight trains are some of the most complex and sensitive issues with which FRA deals on a daily basis. Consequently, the requirements related to the inspection and testing of freight power brakes must be viewed as the foundation on which the rest of the requirement contained in this final rule are based.

1. Brake Inspections—General

In the 1998 NPRM, FRA fully discussed the information and proposals submitted in response to the 1994 NPRM, as well as the proposals developed as part of the RSAC process.

See

63 FR 48298-304 (September 9, 1998). Based on its review of that information and those proposals and based upon its experience in the enforcement of the current power brake regulations, FRA provided a detailed discussion as to why those alternatives were not viable models upon which a revision of the freight power brake requirements could be based.

See

63 FR 48301-304. Rather than reiterate those discussions, FRA refers interested parties to the discussions contained in the 1998 NPRM noted above. In developing the inspection requirements contained in the NPRM, FRA determined that the proposed requirements should closely track the existing inspection requirements and intervals as they have proven themselves effective in ensuring the safety of railroad operations. FRA believed that moderate modifications to the existing requirements were necessary to ensure clarity, eliminate potential loopholes, incorporate current best practices of the industry, and enhance enforcement while providing some flexibility to the railroads to utilize new technologies and recognize contemporary railroad operations.

The current regulations are primarily designed around the following four different types of brake system inspections: Initial terminal; 1,000-mile; intermediate terminal; and brake pipe continuity check.

See

49 CFR 232.12 and 232.13. These brake system inspections differ in complexity and detail based on the location of the train or on some event that affects the composition of the train. Each of the inspection provisions details specific actions that are to be performed and identifies the items that are to be observed by the person performing the inspection.

The initial terminal inspection described in § 232.12(c)-(j) is intended to be a comprehensive inspection of the brake equipment and is primarily required to be performed at the location where a train is originally assembled. This inspection requires the performance of a leakage test and an in-depth inspection of the brake equipment to ensure that it is properly secure and does not bind or foul. Piston travel must be checked during these inspections and must be adjusted to a specified length if found not to be within a certain range of movement. The brakes must also be inspected to ensure that they apply and release in response to a specified brake pipe reduction and increase. FRA recently issued enforcement guidance to its field inspectors clarifying that both sides of a car must be observed sometime during the inspection process in order to verify the condition of the brake equipment as required when performing an initial terminal inspection.

The current regulations require an intermediate brake inspection at points not more than 1,000 miles apart. These inspections are far more limited than the currently required initial terminal inspections in that the railroad is required only to determine that brake pipe leakage is not excessive, the brakes apply on each car, and the brake rigging is secure and does not bind or foul.

See

49 CFR 232.12(b). In the 1982 revisions to the power brake rules, FRA extended the distance between these inspections from 500 miles to 1,000 miles.

The existing regulations also mandate the performance of an intermediate terminal brake inspection on all cars added to a train after it leaves its initial terminal, en route to its destination, unless they have been previously given an initial terminal inspection. This inspection requires the performance of a leakage test and verification that the brakes on each car added to the train and the rear car of the train apply and release.

See

49 CFR 232.13(d). Railroads are permitted to use a gauge or device at the rear of the train to verify changes in brake pipe pressure in lieu of performing an application and release on the rear car. The current regulations also require that if cars that are given an intermediate terminal brake inspection and have not previously been provided an initial terminal inspection and are then added to a train, then the added cars must be given an initial terminal inspection at the next location where facilities are available for performing such an inspection.

The current regulations also require the performance of a brake pipe continuity test whenever minor changes to a train consist occur. This inspection requires that a brake pipe reduction be made and verification that the brakes on the rear car apply and release. Railroads are permitted to use a gauge or device at the rear of the train to verify changes in brake pipe pressure in lieu of visually verifying the rear car application and release. This inspection is to be performed when a locomotive or caboose is changed, when one or more consecutive cars are removed from the train, and when previously tested cars are added to a train.

In the 1998 NPRM, FRA noted that in its opinion railroads have not conducted the excellent initial terminal inspections that were contemplated in 1982, when FRA extended the 500-mile inspection interval to 1,000 miles. FRA also contended that many initial terminal brake inspections are being performed by individuals who are not sufficiently qualified or trained to perform the task. FRA recognized that since 1982 new technology and improved equipment have been developed that allow trains to operate for longer distances with fewer defects. However, the key to achieving this improved capability is to ensure the proper operation and condition of the equipment at the location where the train is initially assembled.

Although FRA agreed that many of the initial terminal inspections conducted by train crews are not of the quality anticipated in 1982 when the inspection interval was increased from 500 miles to 1,000 miles, FRA also conceded that properly trained and qualified train crew personnel can perform certain brake inspections and have been performing such inspections for many years. FRA stated that it did not believe that a reversion to a 500-mile inspection interval restriction on trains inspected by train crews, as sought by some commenters, would adequately address the concerns regarding the safety of those trains and would impose an economic burden on the railroads that could not be justified. In FRA's view, two of the major factors in ensuring the quality of brake inspections are the proper training of the persons performing the inspections and adequate enforcement of the requirements. Therefore, FRA proposed that the current 1,000-mile inspection interval be retained but that general training requirements for persons conducting brake inspections be established. The proposed training requirements included general provisions requiring both classroom and “hands-on” training, general testing requirements, and annual refresher training provisions. FRA also proposed that various training records be

maintained by the railroads in order for FRA to determine the basis for a railroad's determination that a particular person is qualified to perform a brake inspection, test, or repair. FRA believed that the proposed general training and recordkeeping requirements would provide some assurances that qualified people were conducting brake system inspections and tests. (See discussion below titled “Training and Qualification of Personnel.”)

In addition to proposing general training requirements, FRA also noted its intent to enhance and increase its enforcement activities with regard to the performance of the brake inspections and tests eventually finalized in this rule, particularly those performed by train crews. FRA made clear that it would make a concerted effort to focus on the qualifications of train crew members and would strictly scrutinize the method and length of time spent by these individuals in the performance of the required inspections. FRA also committed to focus its inspection activities to ensure that train crews are provided the proper equipment necessary to perform many of the required inspections.

In addition to focusing its enforcement and to aid in that initiative, FRA proposed various clarifications, modernizations, and modifications of the current inspection requirements in order to close what are perceived to be existing loopholes and to incorporate what FRA believed to be the best practices existing in the industry while updating the requirements to recognize existing technology. FRA believed, and many representatives of rail labor and management agreed, that the current inspection requirements are very good for the most part and are sufficient to ensure a high level of safety, but that they need to be strictly enforced, clarified, and updated to recognize existing and new technology. Therefore, as noted above, FRA did not propose an extensive revision of the basic brake inspection intervals or requirements. Rather, FRA proposed a moderate revision of the requirements, with the intent of tightening, expanding, or clarifying those inspection or testing requirements that have created enforcement problems or inconsistencies in the past. FRA recognized some of the technological improvements made in the industry such as the use of two-way EOTs during the brake tests and use of the air flow method of qualifying train air brake systems. FRA also recognized that some trains are capable of moving extended distances between inspections provided that comprehensive inspections are performed at the locations where the trains are originated. (See discussion below titled “Extended Haul Trains.”)

In order to clarify the requirements regarding where and when various brake inspections and tests were to be performed, FRA proposed modification of the terminology related to the power brake inspection and testing requirements contained in the current regulations, which is generally based on the locations where the inspections and tests must be performed (

e.g.,

“initial terminal” and “intermediate terminal”). Instead, FRA proposed various “classes” of inspections based on the duties and type of inspection required, such as: Class I; Class IA; and Class II. This is similar to the approach taken by FRA in the 1994 NPRM and in the final rule on passenger equipment safety standards.

See

64 FR 25682-83. FRA believed that this type of classification system would avoid some of the confusion that currently arises regarding when and where a certain brake inspection must be performed.

Currently, the brake system inspection and testing requirements are interspersed within §§ 232.12 and 232.13 and are not clearly delineated. Therefore, FRA proposed a reorganization of the major types of brake inspections into separate and distinct sections in order to provide the regulated community with a better understanding as to when and where each inspection or test would be required. Although FRA proposed a change in the terminology used to describe the various power brake inspections and tests, the requirements of these inspections and tests mirrored the current requirements and were not intended to change or modify any of the voluminous case law that had been developed over the years regarding the inspections. Consequently, FRA proposed four different types of brake inspections that were to be performed by freight railroads some time during the operation of the equipment. FRA proposed the terms “Class I,” “Class IA,” “Class II,” and “Class III” to identify the four major types of brake inspections required by this proposal.

The proposed Class I brake test, currently known as the “initial terminal” test, generally contained the requirements currently contained in § 232.12(a) and (c)-(j).

See

63 FR 48362-63. The requirements were reorganized to clearly delineate when and how the inspection was to be performed based on current interpretations and comments received since the 1994 NPRM. The requirements were also modified to require written notification that the test was performed and that the notification was to be retained in the train until it reached its destination. The proposed revisions also acknowledged the use of the air flow method for qualifying train brake systems and permitted the use of end-of-train devices in the performance of the test. The proposal also provided some latitude to trains received in interchange that had a pre-tested car or solid block of cars added at the interchange point or that were to be moved less than 20 miles after being received in interchange by permitting these types of trains to continue without the performance of a comprehensive Class I brake test.

The proposed Class IA brake test clarified the requirements for performing 1,000-mile brake inspections currently contained in § 232.12(b).

See

63 FR 48363. The proposal made clear that the most restrictive car or block of cars in the train would determine when the inspection was to be performed on the entire train. FRA also proposed that railroads designate the locations where these inspections would be conducted and did not permit a change in those designations without 30-day notice to FRA or the occurrence of an emergency situation. The proposed Class II and Class III brake tests essentially clarified the intermediate terminal inspection requirements currently contained in § 232.13(c) and (d) regarding the performance of brake system inspections when cars were added to the train en route or when the train consist was slightly altered en route.

See

63 FR 48364.

In addition to the modifications and clarifications proposed with regard to the four major types of brake system inspections, FRA's proposal also retained, with clarification and elaboration, the basic inspection requirements related to transfer trains currently contained at § 232.13(e) as well as the requirements for performing brake system inspections using yard air sources currently contained at § 232.12(i).

See

63 FR 48365. The proposal also retained the requirements related to the inspection and testing of locomotives when used in double heading and helper service currently contained at § 232.15 and proposed additional inspection requirements of locomotives when used in helper service or in distributed power operations to ensure the proper functioning of the brakes on these locomotives as these types of inspections are not adequately addressed in the existing regulation.

See

63 FR 48365. Furthermore, the proposal recognized that trains, if properly inspected, could safely travel greater

than 1,000 miles between brake inspections. (See discussion below titled “Extended Haul Trains.”)

FRA received numerous comments in response to the 1998 NPRM from representatives of rail labor and rail management, various private car owners, the NTSB, manufacturers of rail equipment, and one state public utility commission relating to these proposed provisions. These individuals and representatives submitted comments addressing the qualifications of individuals conducting the proposed inspections, the methods by which the proposed inspections are to be conducted, the frequency with which the proposed inspections should be required, and various other specific aspects of the language used in the proposed inspection requirements.

Several labor representatives objected to the proposed change in the names of the specific required inspections. These commenters believe that the proposed new terminology of Class I, Class IA, Class II, and Class III would result in a number of problems including confusion among those individuals responsible for performing the inspections as the existing terminology has been used for decades, imposition of additional training costs on the railroads as workers will need to be reeducated, and the risk of upsetting years of case law dealing with the various inspections.

Certain labor representatives also objected to the language used in connection to the proposed inspections that would permit a qualified person to perform many of the required inspections. Various labor organizations and their representatives reiterated their concerns that such an approach would continue to allow untrained and unqualified train crew personnel to perform the required inspections. These commenters continued to assert that FRA should mandate that carmen, or persons similarly trained and experienced, perform all of the required brake inspections except for the cursory train line continuity inspections covered by the proposed Class III brake test. It is their belief that only carmen possess the necessary training, skill, and experience to properly perform the other brake inspections contained in the proposal. These commenters contend that FRA is ignoring the commitment made by rail management in 1982, when the regulations were revised to permit trains to travel up to 1,000 miles between brake inspections, to conduct high quality inspections at a train's initial terminal. They contend that the 1982 revisions were intended to require that these brake inspections be performed only by carmen. Several labor representatives also contend that since the railroads have failed to live up to the commitment made in 1982, to conduct high quality initial terminal inspections, that FRA should reconsider its proposals to permit trains to travel 1,000 miles or more between brake inspections. These commenters recommended that FRA reduce the inspection interval to 500 miles.

Conversely, representatives of rail management and private car owners suggest that FRA failed to adequately consider the industry's safety record in proposing the inspection requirements. Several of these commenters recommended that FRA reconsider performance standards similar to those provided by the AAR in response to the 1994 NPRM.

See

63 FR 48300. These individuals assert that based upon the industry's excellent safety record there is no need for the command and control type of regulations proposed in the 1998 NPRM. Several railroad representatives also commented that the proposed training requirements for designating an individual as a qualified person are onerous and not justified in light of the industry's safety record. They contend that the industry's safety record is evidence of the sufficiency of the training currently provided to its inspection forces. (See discussion below regarding the “Training and Qualification of Personnel.”)

Many railroad and private car owner representatives also contend that there is no justification for continuance of the 1,000-mile inspection requirement. They contend that if a car is properly inspected at its point of origin it can be safely moved to destination and that very few cars are found defective at 1000-mile inspections. As support for these contentions, they cite to various studies, which included: a 1994 study conducted by the Illinois Institute of Technology Research Institute, which concluded that brake shoes could last up to 4,000 miles; a 1993 study conducted by BNSF at Havre, Montana, which found that less than

1/3

of 1 percent of the cars inspected at 1,000 miles had any kind of brake defect; and data submitted in 1985 by the AAR related to cars operating 3,000 miles between brake inspections. These commenters also rely on the fact that Canada eliminated its intermediate brake inspection requirement in 1994. Consequently, these commenters contend that the 1,000-mile inspection serves no useful purpose from a safety standpoint, creates unnecessary delays, and should be eliminated.

Commenters representing certain labor organizations also recommended that FRA establish step-by-step procedures for conducting the proposed inspections which specifically include a requirement that both sides of a train be given a walking inspection during both the set and the release of the brakes. These commenters contend that the language proposed in the 1998 NPRM regarding the inspection of both sides of a train is unclear and creates uncertainty as to how a proper inspection is to be conducted. They further recommend that roll-by inspections of the brake release not be permitted and that a walking inspection of the release be required. They also object to the proposed requirement permitting the use of an end-of-train device in lieu of a visual inspection of the pressure at the rear car in the train or in lieu of a set and release on such car as such a practice does not ensure actual application and release of that rear car.

Representatives of railroads and private car owners also believe that FRA should clarify the method by which certain inspections are to be performed. However, these commenters seek to clarify that both sides of the equipment do not have to be inspected during either the application or release of the brakes when conducting a Class I brake test and that both sides of the equipment do not have to be inspected when conducting Class IA brake tests. They contend that there is no reason to observe both sides of the equipment during either the set or release as long as the brake rigging and equipment is inspected to ensure it is in proper condition prior to or at the same time that the application or release of the brakes is conducted. If the brakes are applied or released on one side of the equipment then, due to the design of the equipment, the brakes on the other side of the equipment will be similarly applied or released in virtually every instance. Therefore, it is contended that there is no justification to require observation of the set and release from each side of the equipment. These commenters also contend that FRA needs to clarify that both sides of the equipment do not need to be observed during the performance of a Class IA inspection. They assert that such a requirement would be contrary to the current 1,000-mile inspection requirements and would increase the burden on railroads when conducting this inspection.

The CAPUC submitted comments on the proposed inspection requirements recommending that each side of the car be inspected during both the application and release of the brakes. This commenter also recommend that FRA

require the proposed Class I brake tests to be performed by individuals designated as “qualified mechanical inspectors” pursuant to the proposal. The CAPUC believes that only these individuals possess sufficient knowledge and ability to adequately perform the inspection. The NTSB also submitted comments on the proposed inspection requirements suggesting that FRA modify the requirements regarding the pressure at which trains are tested to require that trains be tested at the pressure at which they will be operated. The NTSB believes that such a requirement would preclude attempts to qualify trains that have excessive leakage by testing them at a pressure that is lower than the train's operating pressure and thus, lower the amount of leakage that exists on the train.

Some labor commenters again objected to FRA's inclusion of the air flow method as an alternative to the leakage test when qualifying a train's brake system. They contend that the air flow method disguises serious leaks and allows greater leakage in a train's brake system than the currently required leakage test. The AAR and other railroad representatives endorsed the allowance of the air flow method as an alternative to the leakage test for qualifying a train's brake system. They believe that the air flow method is superior to the leakage test and is an appropriate alternative for all trains, regardless of length, provided the 15 psi brake pipe gradient is maintained.

Certain labor representatives expressed concern over the proposed provision permitting yard air tests to be conducted at a pressure that is lower than the operating pressure of the train. These commenters suggested that such a practice could permit trains to depart with excess leakage since the required leakage test would be performed at the lower pressure and thus, mask the potential leakage of the train. The AAR and some of its member railroads also expressed concern regarding the proposed requirements related to the performance of brake tests using yard air. These commenters objected to the requirement that brake tests performed with yard air be performed at 80 psi. They recommended that such test be permitted to be performed at 60 psi as currently required because the proposal permits yard and transfer trains to operate at such pressure and that to test at higher pressure creates the potential for overcharge conditions. They also argue the practical difficulties of an 80 psi requirement in that many older yard plants and rental compressors are not capable of supplying 80 psi of air pressure. These commenters further contend that FRA should permit yard air to be connected to other than the front of the consist provided that procedures are taken to prevent overcharge conditions. The commenters also provided recommended language to clarify the calibration requirements for devices and gauges used to conduct yard air brake tests.

Several labor representatives also commented on the proposed written notification requirement related to the performance of Class I brake tests. These commenters supported the written notification requirement and recommended that the information remain with the train if the motive power is changed. One labor organization also recommended that the proposed requirements related to the designation of 1,000-mile inspections are insufficient. This commenter recommended that the designation be filed with FRA and that the designations specifically identify the trains that will be inspected at each location. Representatives of rail management objected to the proposed requirement that locomotive engineers be notified in writing by a person performing the test as to the successful completion of a Class I brake test. These commenters did not object to notifying the locomotive engineer of the results of the test but believe that the notification could be provided orally or electronically by a person with knowledge of the test as long as the locomotive engineer made a record of the notification and necessary information. These commenters also sought clarification of the proposed requirements regarding the designation of locations where 1,000-mile inspections would be conducted. These commenters did not object to the designation requirement provided that it is not required on a train by train basis. They contend that to require that specific trains have 1,000-mile inspections performed at specific locations would create substantial burdens and would eliminate flexibility needed to operate trains in a timely and efficient manner.

The AAR and other railroad commenters also raised concern over the requirement that trains in captive service be required to receive a Class I brake test every 3,000 miles. They recommended that a train of this type that travels in excess of 3,000 miles between cycles be permitted to complete its cycle prior to receiving a Class I brake test. They contend that to require a Class I brake test on these types of cycle trains on a 3,000 mile basis will require the reallocation of manpower and equipment to locations not currently equipped to perform such inspections.

Several railroad representatives also objected to the definition of “solid block of cars” contained in the proposal. This definition is important because FRA proposed that if more than a solid block of cars is removed from or added or a train, the entire train would have to receive a Class I brake test. As the proposed definition limits a “solid block of cars” to a group of cars that are removed from only one other train and that remain coupled together, these commenters contend that the definition is much more restrictive than the current interpretation of the language and would significantly increase the need to perform Class I brake tests. These commenters contend that the current interpretation of the language permits a “solid block of cars” to be made up of cars from several different trains provided the block of cars is added to a train as one unit without triggering the requirement to perform a new initial terminal brake test on the entire train. These commenters also noted that a literal reading of the proposed provisions for when a Class I brake test would be required does not allow a railroad to remove defective equipment without triggering a Class I brake test on the entire train. They contend that this authority needs to be recognized and is currently permitted.

FRA Conclusions.

After consideration of the comments submitted and based upon its experience in the enforcement of the current power brake regulations, FRA continues to believe that the general approach to brake inspections contained in the 1998 NPRM represents the most effective method of ensuring the continued safety and proper operation of brake systems currently used in the railroad industry without creating an unnecessary burden to the railroads. Therefore, the final rule is a moderate revision of the current inspection requirements, similar to that proposed, with certain minor changes made to address the comments and recommendations submitted on the NPRM.

The final rule adopts the proposed classifications identifying the various types of brake inspections based on the duties and tasks that are required to be performed. These include: Class I; Class IA; Class II; and Class III brake tests. Contrary to the contentions of some commenters, FRA does not believe that this classification of the brake inspections in any way impacts previous case law regarding the various inspections. Although the final rule changes the terminology used to describe the various brake inspections,

the underlying inspection requirements have remained generally consistent with the existing requirements, and the final rule is not intended to change or modify any of the voluminous case law that has developed over the years regarding the inspections. Furthermore, the final rule retains the monikers that have traditionally been attached to the various inspections so as to limit any confusion that may exist. For example, the section containing the requirements for conducting Class I brake tests is entitled, “Class I brake test-initial terminal inspection.” FRA believes that the classifications proposed in the NPRM and retained in this final rule clearly delineate what is required at each inspection, better clarify when each inspection is to be performed, and avoid the potential confusion caused by the terminology used in the present regulations.

As discussed in detail in the 1998 NPRM, FRA continues to believe that the performance standard recommended by the AAR in response to the 1994 NPRM and suggested again by some commenters does not provide a viable method for establishing the frequency of brake inspections.

See

63 FR 48301-02. The performance standard proposed by the AAR is based upon the number of mechanically-caused accidents per million train miles. Therefore, the standard is based upon the rate of occurrence of accidents—accident history—rather than on a factor that could measure a railroad's performance prior to an accident occurring. The suggested performance standard would also be very difficult to calculate on a railroad-by-railroad basis, and the standard itself is a very subjective factor as many accidents are due to a variety of causes only a part of which may be a mechanical or brake-related cause. Thus, the determination of what constitutes a mechanically-caused accident would be difficult if not impossible to make in some circumstances and would be a determination made by the railroad; thus, opening the potential for data manipulation. FRA also notes that the AAR's performance standard contains certain provisions that are contrary to existing statutory requirements regarding the movement of defective equipment.

The final rule retains the requirement to perform 1,000-mile brake inspections as proposed with a few minor revisions discussed below and in the section-by-section analysis of that section. Although FRA agrees that many of the initial terminal brake inspections currently conducted by train crews and other personnel are not of the quality anticipated in 1982, when the inspection interval was increased from 500 miles to 1,000 miles, FRA continues to believe that properly trained and qualified train crew personnel can perform most of the inspections required by this final rule and have been performing such inspections for many years. Furthermore, FRA continues to believe that a reversion to a 500-mile inspection interval on trains inspected by train crews, as suggested by some commenters, does not address the concerns regarding the safety of these trains and would impose an economic burden on the railroads that cannot be justified. Rather than simply increasing the frequency at which inspections are performed, FRA believes that the proper approach is to enhance the quality of the inspections being performed in order to further improve safety. FRA believes that the training and designation requirements contained in this final rule will increase the quality of the brake inspections being performed by ensuring that those individuals responsible for conducting the inspections are provided adequate and continuing training to properly perform the task. The final rule contains general training provisions which include: classroom and experiential “hands-on” training; general testing requirements; and periodic refresher training. The final rule also mandates that training records be maintained by the railroads in order for FRA to ascertain the basis for a railroad's determination that a particular person is considered qualified to perform the inspection or test he or she is assigned. FRA believes these training requirements will provide the necessary assurances that the people conducting the required inspections and tests are qualified.

FRA recognizes that since 1982 new technologies and improved equipment have been developed that allow trains to operate longer distances with fewer defects. The data submitted by AAR, noted above, appears to support this assertion, and FRA does not dispute the potential capability of certain equipment to travel distances in excess of 1,000 miles without becoming defective. However, the capability of the equipment to travel extended distances is contingent on the condition of the equipment when it begins operation and on the nature of the operation in which it is to be engaged. FRA believes that in order for brake equipment to travel extended distances between brake inspections, the condition and planned operation of the equipment must be thoroughly assessed at the beginning of a train's journey through high quality inspections. As noted above, FRA believes that railroads are not conducting high quality initial terminal inspections at many locations because the railroads are utilizing employees who are not sufficiently qualified or trained to perform the inspections. Therefore, FRA believes that the 1,000-mile brake inspection interval continues to be necessary and important to ensure the safe operation of trains inspected by qualified personnel pursuant to this final rule. Furthermore, no trains operated in the United States are currently permitted to travel greater than 1,000 miles between brake inspections. Consequently, FRA is not willing to permit trains to travel in excess of 1,000 miles between brake inspections, except in the limited, controlled situations where data on the equipment can be gathered. (See discussion below titled “Extended Haul Trains.”) FRA notes that Canada eliminated intermediate inspections in 1994. However, Canada has different inspection requirements than those contained in this final rule and vastly different operating conditions and environments than those prevalent on most American railroads, operating conditions and environments that are more conducive to the inspection regimen imposed by that country.

The final rule also generally retains the proposed provisions detailing the items that must be inspected during the various inspections and the minimum procedures for performing the inspections. Contrary to the assertions of some commenters, FRA believes that the proposed methods of inspection sufficiently detailed how the various inspections were to be performed while providing flexibility for railroads to conduct the inspections in a manner most conducive to their operations. The methods of inspection proposed in the 1998 NPRM incorporated current practices and technical guidance previously issued by FRA. To require that all inspections be performed by walking the train would impose a huge financial and operational burden on the railroads and would ignore the various different methods by which inspections are currently performed and have been performed for years. FRA does not intend to mandate specific methods for how the various inspections are to be performed. FRA believes that each railroad is in the best position to determine the method of inspection that best suits its operations at different locations. FRA has never mandated specific step-by-step procedures for conducting brake inspections but

merely requires that, whichever method is used, it must ensure that all of the components required to be inspected will be so inspected.

The proposed rule made clear that when performing a Class I brake test of a train the inspector must take positions on each side of each car in the train sometime during the inspection process. This provision is retained in the final rule. This is intended to mean that at a minimum both sides of the equipment must be inspected. The provision does not require that both sides be observed during the application or during the release of the brakes. However, at a minimum at least one side of the car must be inspected while the brakes on the car are applied or if the brakes do not apply, while an effort is made to apply the brakes on the car. FRA continues to believe that if the various brake components are inspected to ensure they are properly secure and in proper condition then, due to the design of the equipment, if an application or release is observed from one side it can be assumed that in virtually every case there is an application or release of the brake occurring on the other side of the equipment. The final rule also retains the proposed requirement that the piston travel on each piece of the equipment must be inspected while the brakes are applied. Furthermore, the final rule retains the provision that permits a roll-by inspection of the release of the brake but prohibits the roll-by inspection from being considered an inspection of that side of the equipment.

FRA also finds the comments of AAR and other railroad representatives contending that both sides of the equipment should not be required to be inspected at Class IA brake tests to be lacking. The Class IA brake test basically incorporates the current 1,000-mile brake inspection, which FRA believes requires an inspection of both sides of the equipment during the inspection process. The current 1,000-mile inspection requires that brake rigging be inspected to ensure it is properly secure and does not bind or foul and that the brakes apply on each car in the train.

See

49 CFR 232.12(b). In order to make these inspections properly, FRA believes that both sides of the equipment must be observed sometime during the inspection process and, to FRA's knowledge, railroads currently conduct these inspections in this manner. Thus, the NPRM and the final rule merely clarify what is required to be performed under the current regulations to properly perform a 1,000-mile inspection. Therefore, contrary to the contentions of certain commenters, retention of this current requirement does not impose any additional burden on the railroads.

The final rule retains the provisions granting railroads the ability to utilize the air flow method (AFM) to qualify a train's brake system in lieu of the traditional leakage test. FRA believes that if a train contains a locomotive equipped with 26L freight locomotive brake equipment and the train is equipped with an EOT device, that train should be allowed to be qualified using the AFM. The AFM of qualifying train air brake systems has been allowed in Canada as an alternative to the leakage test since 1984. In addition, several railroads in the United States have been using the AFM since 1989 when FRA granted the AAR's petition for a waiver of compliance to permit the AFM as an alternative to the leakage test. FRA recognizes the concerns of several labor organization commenters opposing the adoption of the AFM; however, FRA believes these commenters' apprehension is based on their unfamiliarity with the method. As FRA pointed out in the ANPRM, the 1994 NPRM, and the 1998 NPRM, the AFM is a much more comprehensive test than the leakage test.

See

57 FR 62551, 59 FR 47682-47683, 63 FR 48305-06. The AFM tests the entire brake system just as it is used, with the pressure-maintaining feature cut in. FRA believes the AFM is an effective and reliable alternative method of qualifying train brakes. In the 1998 NPRM, FRA expressed some concern regarding the use of the AFM on short trains. However, based on consideration of the comments received and FRA's experiences in observing the use of the AFM, FRA agrees that the AFM should be permitted as an alternative on any train provided the 15 psi gradient is maintained on the train.

The final rule changes some of the provisions related to the conduct of brake tests utilizing yard air sources that were proposed in the NPRM. Rather than requiring yard air tests to be performed at 80 psi as was proposed, the final rule reduces the required pressure to 60 psi at the end of the consist as is currently required. FRA recognizes that many yard air sources and rental compressors are not capable of producing 80 psi of air pressure. However, to address the concerns raised regarding the inadequacy of conducting a leakage or air flow test at this lower pressure, the final rule includes provisions to require those tests to be conducted at the operating pressure of the train. Thus, if the yard air is not capable of producing the pressure that the final rule requires, then the leakage or air flow test is to be conducted when the locomotives are attached. The final rule also permits the yard air test device to be connected at other than the end of the consist nearest the controlling locomotive, provided that the railroad adopts and complies with written procedures to ensure that overcharge conditions do not occur. Many yards across the country currently conduct the test in this manner, and FRA believes it is necessary to acknowledge the viability of these operations.

The final rule also modifies the notification requirement related to Class I brake tests from that proposed in the NPRM. In the NPRM, FRA proposed that the engineer be informed in writing of the successful completion of the Class I brake test. The intent of this requirement was to ensure that the locomotive engineer was adequately informed of the results of the inspection; however, FRA recognizes that a requirement to provide the information in writing ignores technological advances and operational efficiencies. Consequently, the final rule will permit the notification in whatever format the railroad deems appropriate; provided that the notification contains the proper information and a record of the notification and the requisite information is maintained in the cab of the controlling locomotive. FRA believes these changes are consistent with the intent and purpose of the proposed requirement for written notification and ensure necessary information is relayed to the operator of the train.

FRA also realizes that the proposed requirement for designating locations where Class IA inspections will be performed was somewhat unclear and may have caused confusion. The intent of the requirement was to ensure that FRA was informed of those locations where a railroad intends to perform Class IA brake inspections and that FRA had the information with which to hold the railroad responsible for conducting the inspections at those locations. FRA was not intending to require that a railroad separately identify a specific Class IA inspection location for each train it operates. Consequently, the final rule makes clear that the designation required is for locations where such inspections will be performed and permits deviance from those locations only in emergency situations.

The final rule retains the proposed requirement that unit or cycle trains receive a Class I brake test every 3,000 miles. FRA has added a definition of “unit train” and “cycle train” to the final rule in order to clarify the applicability of the requirement.

Historically, these trains operate for extended periods of time with only a series of brake inspections similar to Class IA brake inspections. FRA believes that the proposed 3,000-mile limitation is appropriate as it represents the approximate distance that a train would cover when traveling from coast to coast. In addition the 3,000 mile requirement is consistent with the interval for performing Class IA brake tests and would equate to every third inspection being a Class I brake test rather than a Class IA brake test. Furthermore, AAR does not seek a moderate extension of a couple hundred miles so a few trains could complete their cycle, but seeks to extend the distance to more than 4,500 miles in many instances. FRA is not willing to modify the proposed requirement to that extent and believes that the 3,000-mile interval for these types of trains provides sufficient flexibility to the railroads to perform periodic Class I brake tests on these trains in a cost-efficient manner.

The definition of “solid block of cars” has been modified from that proposed in the NPRM. Although FRA believes the definition it proposed is consistent with current interpretations and enforcement of the requirement, FRA agrees with some of the commenters that the definition may have been too narrow and does not directly address FRA's primary concern, the block of cars itself. FRA's primary concern is the condition of the block of cars being added to the train especially when the block of cars is made up of cars from more than one train. Thus, the final rule will permit a solid block of cars to be added to a train without triggering a requirement to perform a Class I brake test on the entire train. However, depending on the make-up of that block of cars, certain inspections will have to be performed on that block of cars at the location where it is added to the train.

FRA believes that limits have to be placed on the addition of blocks of cars being added to a train in order to ensure that cars are being inspected in a timely manner and in accordance with the intent of the regulations. Some commenters suggest that a block of cars should be permitted to be added to a train with no inspection other than a continuity test regardless of the number of different trains the cars making up the block came from provided all the cars received a Class I brake test at their point of origin. Other commenters suggest that any number of blocks of cars should be permitted to be added to a train at a single location. FRA believes that to accept either of these positions would be tantamount to eliminating initial terminal and intermediate inspections and would drastically reduce the safety of freight trains being operated across the country. In FRA's view, both of the positions noted above are merely means to circumvent inspections and are akin to a practice known as “block swapping” in the mechanical inspection context, a practice that FRA does not permit. In FRA's opinion, the ability to add multiple blocks of cars to a train at one location or add a single block of cars to a train that is composed of cars from numerous different trains without inspecting the cars in those blocks, would essentially allow railroads to assemble new trains without performing any direct inspection of any of the cars in the train. Furthermore, if cars are permitted to be moved in and out of trains at will, the ability to track when and where Class IA brake tests are to be performed on trains will be impossible.

Based on a review of the comments submitted, two other minor modifications to the proposed inspection requirements have been made in this final rule. The final rule contains an additional caveat that will permit the removal of defective equipment at locations where other cars are added or removed without triggering the requirement to perform a Class I brake test on the entire train. FRA currently permits this practice, and it is consistent with the requirements aimed at having defective equipment repaired as quickly as possible. The final rule also modifies the language used in the proposed provisions related to the air pressure at which the brake tests are to be conducted based on a comment submitted by the NTSB. The NTSB noted that the language used by FRA in the NPRM to describe the air pressure settings for conducting the required brake tests would permit some road trains to be tested at a lower pressure than that at which the train would be operated. The NTSB contends that although most road freight trains operate at 90 psi, some road freight trains are operated at 100 psi and the proposal would permit them to be tested at 90 psi. FRA agrees with NTSB's suggestion that a trains brake system should be tested at the pressure at which the train will operate and has modified the language of the final rule accordingly.

2. Extended Haul Trains

In developing the provisions regarding extended haul trains proposed in the 1998 NPRM, FRA relied on several basic beliefs developed from the information and comments submitted and upon its experience in enforcing the current regulations. FRA believed that if a train was properly and thoroughly inspected, with as many defective conditions being eliminated as possible, then the train would be capable of traveling much more than 1,000 miles between brake inspections. By this, FRA contended that not only must the brake system be in quality condition but that the mechanical components of the equipment must be in equally prime condition. FRA believed that as the distance a train is allowed to travel increases, the mechanical condition of the equipment is a key factor in ensuring the proper and safe operation of the train brake system throughout the entire trip. FRA also stated that the best place to ensure the proper conduct of these inspections and to ensure that the train's brake system and mechanical components are in the best condition possible is at a train's point of origin (initial terminal).

In the 1994 NPRM, FRA proposed a set of requirements that had to be met by a railroad in order to move a train up to 1,500 miles without performing additional brake inspections. The requirements included such features as low defect ratios, maintenance programs, and the performance of quality brake and mechanical inspections at a train's point of origin.

See

59 FR 47735. In the 1998 NPRM, FRA agreed with several commenters that some of the 1994 proposed requirements were overly burdensome and were partially predicated on potentially subjective standards. However, FRA continued to believe that many of the inspection requirements and movement restrictions proposed in 1994 were valid conditions that should be met in order to operate trains for extended distances between brake inspections. These included: the performance of a quality, in-depth brake inspection by a highly qualified inspector; the performance of a quality mechanical inspection by a person qualified under 49 CFR 215.11; and a restriction on the number of set-outs and pick-ups occurring en route. FRA also believed that these extended haul trains had to be closely monitored to ensure that both the brake system and mechanical components remain safely intact throughout the train's journey.

In the 1998 NPRM, FRA proposed that certain designated trains be permitted to move up to 1,500 miles between brake and mechanical inspections provided the railroad met various inspection and monitoring requirements.

See

63 FR 48343, 48364-65. As no trains were currently permitted to travel in excess of 1,000 miles between inspections, FRA was not willing to propose more than

1,500 miles between such inspections until appropriate data is developed that establish that equipment moved under the proposed criteria remains in proper condition throughout the train's trip. FRA believed that the proposed provision requiring the performance of an inbound inspection at destination or at 1,500 miles and the requirement that carriers maintain records of all defective conditions discovered on these trains would create the bases for developing such data.

In order to ensure the accuracy of the data as well as ensure the proper and safe operation of these extended haul trains, FRA also proposed that the trains have 100 percent operative brakes and contain no cars with mechanical defects at their initial terminal point and at the time of departure from the 1,500-mile point, if moving an additional 1,500 miles from that location between brake inspections. FRA further proposed that these trains not conduct any pick-ups or set-outs en route, except for the removal of defective equipment, in order to minimize the disruptions made to the integrity of the train's brake system and reduce mechanical damage that might occur during switching operations. In addition, as there was no reliable tracking system currently available to FRA to ensure that cars added to the train en route have been inspected in accordance with the proposed requirements, FRA believed that the number of cars added to these trains had to be limited.

As noted earlier in the discussion, FRA believed that in order for a train to be permitted to travel 1,500 miles between inspections, the train must receive inspections that ensure the optimum condition of both the brake system and the mechanical components at the location where the train originates. In order to ensure that quality inspections were performed, FRA proposed that they be performed by highly qualified and experienced inspectors. As FRA intended that the proposed Class I brake test performed on these trains at their initial terminal be as in-depth and comprehensive as possible, FRA believed that the inspections should be performed by individuals possessing the knowledge not only to identify and detect a defective condition in all of the brake equipment required to be inspected, but also to possess the basic knowledge to recognize the interrelational workings of the equipment and the ability to trouble-shoot and repair the equipment. Therefore, FRA proposed the term “qualified mechanical inspector” to identify and describe those individuals it believed would possess the necessary knowledge and experience to perform the proposed Class I brake tests on these extended haul trains.

In the 1998 NPRM, a “qualified mechanical inspector” was defined as a person with training or instruction in the troubleshooting, inspection, testing, maintenance, or repair of the specific train brake systems the person is assigned responsibility and whose primary responsibilities include work generally consistent with those functions. (See § 232.5 of the section-by-section analysis for a more detailed discussion of “qualified mechanical inspector.”) FRA also proposed that these same highly qualified inspectors be the type of individuals performing the proposed inbound inspection on these extended haul trains in order to ensure that all defective conditions are identified at the train's destination or 1,500-mile location. Similarly, FRA proposed that all of the mechanical inspections required to be performed on these trains be conducted by inspectors designated pursuant to 49 CFR 215.11 in order to ensure that all mechanical components are in proper condition prior to the train's departure.

The AAR and various private car owners submitted a number of comments objecting to the proposed requirements regarding extended haul trains contained in the 1998 NPRM. These commenters believe that the 1,500-mile limitation on the movement of these trains between brake inspections is insufficient considering the restrictions placed on the trains. They recommend that these trains be permitted to operate to its destination or at a minimum be permitted 2,000 miles between brake inspections. They contend that the 1,500-mile limitation results in little or no benefit to the railroads because in order to take advantage of the flexibility provided, railroads would have to establish new facilities and add more manpower at 1,500-mile points to conduct the more stringent inspections required at those locations. They contend that a limitation at the 2,000-mile point would be logically consistent with existing inspection requirements, based on 1,000-mile increments, and would allow a greater number of trains to utilize the provisions because railroads could use existing facilities and manpower. They recommend that FRA reconsider the estimates provided regarding the benefits derived from the extended haul train provisions, claiming that the benefits estimated in the NPRM's Regulatory Impact Analysis are overstated. Several private car owners also suggested that even if FRA were not to extend the proposed distance for the entire industry, it should allow certain private car owners greater distances due to their superior safety record and maintenance practices.

Many of these same commenters also object to the proposed requirement that extended haul trains not be permitted to make any pick-ups or set-outs en route. These commenters contend that this restriction severely limits the actual flexibility of the proposal. They assert that the prohibition on pick-ups and set-outs would eliminate nearly one-half of the trains that could potentially be operated under the proposed provisions. Several commenters also objected to the proposed notification requirements for extended haul trains. These commenters state that the proposed provision requiring advance notification to FRA of the trains to be operated under the extended haul provision would seriously limit the number of trains utilizing the provisions as many trains are unscheduled with unknown train symbols and would be excluded. They recommend that the notification requirements be reduced in some manner to allow unscheduled trains to be identified as extended haul trains. One commenter also objects to the proposed requirement that extended haul trains not depart their initial terminals with any part 215 defects entrained. This commenter asserts that there was no rationale for this restriction and that it merely creates an additional burden for railroads.

Several rail labor representatives also object to the proposed provisions permitting trains to be operated as extended haul trains; however, these commenters oppose allowing any train to operate more than 1,000 miles between brake inspections. These commenters contend that when the distance between intermediate brake inspections was increased in 1982, the railroads made a commitment to conduct quality initial terminal brake inspections in exchange for the increased mileage, but that has not occurred and FRA should not provide the railroads with an increase in mileage when the previous agreement has not been honored. They contend that the proposed extension would merely allow defective equipment to be moved further distances without repair. They further contend that the proposed increase in distance between brake tests is not justified from a safety standpoint and, thus, violates 49 U.S.C. 20302(d)(2), which permits a change in the existing power brake regulations “only for the purpose of achieving safety.” These commenters oppose any extension in the distance between brake inspections unless stringent

requirements are placed on the trains, one such requirement being that carmen or similarly trained individuals perform all the inspections and tests required to be performed on the trains. They also contend that the proposed standard for revoking a railroad's ability to designate extended haul trains is too high.

FRA Conclusions.

FRA continues to believe that if a train is properly and thoroughly inspected, with as many defective conditions being eliminated as possible, then the train is capable of traveling much greater than 1,000 miles between brake inspections. Therefore, the final rule retains the provisions permitting railroads to designate trains as extended haul trains and allowing such trains to be operated up to 1,500 miles between brake inspections. Although FRA recognizes that retention of the 1,500-mile limitation may limit the utility of the provision on some railroads, FRA is not willing to increase the proposed mileage restriction at this time. Currently, no train is permitted to travel more than 1,000 miles without receiving an intermediate brake inspection. Therefore, FRA does not believe it would be prudent to immediately double or triple the currently allowed distance without evaluating the safety and operational effects of an incremental increase in the distance. Consequently, until sufficient information and data are collected on trains operating under the provisions proposed in the NPRM and retained in this final rule, FRA is not willing to permit trains to travel the distances suggested by some commenters without additional brake inspections. FRA continues to believe that the requirement for performing inbound inspections and the requirement to maintain records of all defective conditions discovered on these trains provides the basis for developing the information and data necessary to determine the viability of allowing greater distances between brake inspections.

After consideration of the comments submitted, FRA agrees that the benefits estimated in the NPRM in association with the extended haul provisions may have been overstated. FRA realizes that the retention of the 1,500-mile limitation may eliminate certain trains from being operated pursuant to the extended haul provisions and reduce the benefits estimated at the NPRM stage of the proceeding. (See detailed discussion in the Regulatory Impact Analysis portion of the preamble below.) However, in order to increase the viability of the extended haul provisions, the final rule provides some flexibility for designating extended haul trains and allows for the limited pick-up and set-out of equipment.

Several commenters noted that the proposed provisions regarding the advance designation of extended haul trains would prohibit certain unscheduled trains from being operated as extended haul trains. In an effort to provide some flexibility in this area, the final rule has been modified to allow railroads to designate certain locations as locations where extended haul trains will be initiated and requires railroads to describe those trains that will be so operated rather than requiring specific identification of every train. FRA believes this modification will allow railroads to capture some of their unscheduled trains by identifying the trains by the locations where they are initiated.

The final rule will also permit extended haul trains to set out cars at one location or to pick up cars, or both, at the same or another location. This modification will provide railroads the flexibility to set-out a block of cars at one location and pick up a block of cars at another location. FRA believes that this limited ability provides the railroads with some flexibility to move equipment efficiently while minimizing the disruptions made to the train's brake system and ensuring that cars added to such trains can be adequately tracked and inspected. The final rule makes clear that any cars added to extended haul trains must be inspected in the same manner as the cars at the train's initial terminal. The final rule also makes clear that any car removed from the train must be inspected in the same manner as a car at the train's point of destination or 1,500-mile location.

Certain commenters have portrayed the provisions related to extended haul trains as merely being an extension of the current intermediate inspection distances. FRA objects to such a characterization. In FRA's view, the extended haul provisions contained in the NPRM and retained in this final rule constitute a completely new inspection regimen. The provisions related to the operation of extended haul trains contain stringent inspection requirements, both brake and mechanical, by highly qualified inspectors and establish stringent requirements whenever cars are added to or removed from such trains. The extended haul train requirements also contain a means to assess the safety of such operations by requiring that records be maintained of the defective conditions that develop on these trains while en route. Consequently, FRA believes that the requirements related to extended haul trains not only ensure the safe operation of the trains operated under them, but actually increase the safety of such operations over that which is provided in the current regulations.

3. Charging of Air Brake System

Present regulations for air brake testing basically require that cars that have previously been tested in accordance with the regulations either “be kept charged until road motive power is attached” or be retested.

See

49 CFR 232.12(i). The current regulations also require the performance of an initial terminal brake test “where the train consist is changed other than by adding or removing a solid block of cars, and the train brake system remains charged. * * *”

See

49 CFR 232.12(a)(ii). Based on longstanding administrative interpretation and practice, FRA currently presumes that a brake system is no longer adequately charged if disconnected from the charging device (supply of pressurized air) for more than two hours before coupling or recoupling of locomotives; otherwise, retesting is required.

In the 1994 NPRM, FRA proposed to permit trains to be removed from a continuous source of compressed air for up to four hours without requiring the re-performance of a comprehensive brake inspection. FRA received very few comments that directly addressed the safety implications of this proposal; thus, FRA proposed the four-hour time limitation in the 1998 NPRM. In the 1998 NPRM, FRA agreed that its longstanding administrative interpretation, that requires the retesting of cars disconnected from a charging device for longer than two hours, was established prior to the development of new equipment that has greatly reduced leakage problems, such as welded brake piping and fittings and ferrule-clamped air hoses. However, contrary to several railroads' assertions, FRA did not believe that cars should be allowed to be off air for extended periods of time without being retested. FRA believed that the longer cars sit without air attached, the greater the chances were that the integrity of the brake system would be compromised. Consequently, based on today's equipment, operating practices, and overriding safety concerns, FRA proposed that cars should not be disconnected from a continuous supply of pressurized air for longer than four hours without being retested. FRA also proposed that the source of compressed air must be sufficient to maintain the integrity of the brake system. Consequently, FRA proposed that the source of compressed

air be maintained at a minimum level of 60 psi.

The AAR and several other parties commented that there is no reason to assume that once a train is charged and tested and then left standing without being provided with a source of compressed air that the brake system would become defective. These commenters assert that leaving equipment connected to a source of compressed air does nothing to ensure proper performance of the brake system, does not prevent vandalism, and does not prevent leakage due to adverse weather conditions. These parties suggest that leakage on standing trains has been greatly reduced through the use of welded brake piping and fittings and ferrule-clamped air hoses. These commenters believe that FRA's current interpretation of allowing trains to sit without air for only two hours is from an era when this new equipment was not used. They also contend that FRA's current interpretation and the proposed four-hour limitation costs the industry money, fuel, and time and creates pollution because trains must either be reinspected or left with a locomotive attached and idling in order to avoid performing a full Class I brake test. They further contend that the proposed four-hour rule exposes employees to various safety hazards due to the employees being required to perform inspections at locations that are not designed or equipped for such activity.

The AAR recommends that the proposed four-hour limitation be eliminated for the reasons noted above. They also noted that the Canadian rules do not contain an off-air requirement and that in Canada if cars are off air for any length of time, only a set-and-release continuity test is required. As an alternative to eliminating the off-air requirement completely, the AAR suggests that FRA adopt requirements which would allow cars to be removed from a source of compressed air for up to 48 hours without a car-by-car reinspection. They recommend that cars only be required to receive a continuity test when they have been off a source of compressed air for more than fours hours but less than 48 hours and that no retesting occur if equipment is off air for less than four hours.

Representatives of rail labor objected to the proposed increase in the amount of time that equipment could be removed from a source of compressed air. These commenters believe that the existing two-hour limitation is reasonable. Most of these commenters expressed concern for the integrity of the brake system if a consist were left standing for longer than two hours. These concerns were aimed at the effect that climate might have on the equipment and the increased possibility of vandalism to the equipment if consists or equipment were left off air for longer periods.

FRA Conclusions.

The final rule retains the proposed requirement that equipment removed from a source of compressed air for longer than four hours be reinspected. FRA believes that this requirement is necessary to ensure not only the integrity of the brake system on equipment but to ensure that inspections are performed on equipment in a timely and predictable manner. FRA tends to agree that the amount of time equipment is left off a source of compressed air is not directly related to the operation of the brake system on that equipment. However, FRA does believe that in certain circumstances the length of time that equipment is removed from a source of compressed air can impact the integrity and operation of the brake system on a vehicle or train. Particularly in cold weather situations where freeze-ups in train brake systems can occur or in areas where the potential for vandalism is high due to the location where equipment is left standing. Moreover, FRA believes that the four-hour limitation is consistent with the intent of the existing regulations and is intended to ensure that equipment is regularly inspected.

The commenters objecting to the four-hour limitation proposed in the NPRM and retained in this final rule have ignored the intent and purpose of the existing two-hour allowance permitted by longstanding administrative interpretation. As discussed above, the existing power brake regulations, adopted by Congress in 1958, are based on the premise that if a train or equipment does not remain charged the equipment is to be retested. There is no provision in the existing regulations for allowing equipment to be removed from a source of compressed air for any length of time, such allowance was granted only through administrative interpretation. The original intent of the currently existing two-hour interpretation, which permits equipment to remain off-air for up to two-hours without being retested, was to allow trains to pick up or remove cars from their consists while en route without requiring a retest of the entire train. The two-hour limit was based on the amount of time it would take a train to make a switching move while en route. Thus, the current application of the two-hour rule to any and all equipment left off a source of compressed air is somewhat counter to the original intent of the interpretation when it was provided.

Although FRA recognizes that it has acquiesced and endorsed the expansion of the two-hour rule to all equipment, FRA believes that the underlying intent of the existing regulations must be recognized and maintained. The doubling of the existing two-hour interpretation to four hours is based on the fact that the average time needed for many trains to perform the switching they conduct while en route has increased. Thus, FRA's intent when proposing an expansion of the two-hour rule was not to alter the basic tenet that equipment should be retested when it is removed from a source of compressed air for any lengthy period of time. FRA believes that the four-hour allowance provided by this final rule gives the railroads flexibility to perform switching operations while trains are en route and provides flexibility to efficiently move cars from one train to another when necessary, yet retains the concept that equipment be retested when left disconnected from a source of compressed air for longer periods of time.

FRA further believes that a limitation on the amount of time that equipment may be off air is necessary for ensuring that equipment is inspected in a timely and predictable manner. If no time limit were imposed or if 48 hours were permitted, as suggested by some commenters, equipment could lawfully sit for days at various locations while en route to its destination and be switched in and out of numerous trains without ever being reinspected. Such an approach would drastically reduce the number of times that the brake systems on such equipment would ever be given a visual inspection from what is currently required and, in FRA's view, would seriously degrade the safety of the trains operating with such equipment in its consist. Furthermore, if equipment were allowed to be off-air for an excessive amount of time, it would be virtually impossible for FRA to ensure that equipment is being properly retested as it would be extremely difficult for FRA to determine how long a particular piece of equipment was disconnected from a source of compressed air. In order to make such a determination, FRA would have to maintain observation of the equipment for days at a time. Consequently, the final rule retains the proposed four-hour limit on the amount of time equipment can be disconnected from a source of compressed air as it maintains current levels of safety and provides an enforceable and verifiable time limit that FRA believes provides the railroads

some additional benefit over what is currently required both in terms of operational efficiency and cost savings.

4. Retesting of Brakes

In the 1998 NPRM, FRA attempted to clarify language contained in the current regulation which requires that the brakes “apply.”

See

49 CFR 232.12(b), 232.12(d), 232.13(d), and 232.13(e). The current language has been misinterpreted by some to mean that if the piston applies in response to a command from a controlling locomotive or yard test device, and releases before the release signal is given, the brake system on that car is in compliance with the regulation because the brake simply applied. The intent of the regulation has always been that the brakes apply and remain applied until the release signal is initiated from the controlling locomotive or yard test device. Therefore, clarifying language was added to the proposed inspection requirements to eliminate all doubt as to what is required. In the 1998 NPRM, FRA made clear that the brakes on a car must remain applied until the appropriate release signal is given. The proposal required that cars with brakes that fail to remain applied either be removed from the train or repaired in the train and retested, and the proposal provided specific requirements for performing a retest on such equipment.

FRA recognized that some defective train air brake conditions found when performing a train air brake test, which may cause insufficient application of the brakes on a piece of equipment, are of such a nature that they can be quickly repaired in the train. For example, a brake connection pin might be missing, a slack adjuster might be disconnected, or some other minor part of the brake system might be defective. FRA realized that to mandate that equipment with these types of obvious defective conditions be removed from the train would potentially impose a tremendous burden on the railroads. Therefore, FRA sought to provide some relief to railroads by permitting cars with obvious brake defects to be repaired and retested while remaining in the train. However, FRA also believed that some consistency and guidance had to be provided regarding the performance of a retest on a car's brake system. Consequently, FRA proposed that the retesting of a car had to be conducted from the controlling locomotive or head end of the consist if a car is repaired in a train. Furthermore, FRA proposed that if a retest is conducted the brakes on the retested car must remain applied for a minimum of five (5) minutes. The proposed five-minute requirement was based on the leakage parameters established for locomotives contained at § 229.59(c).

The AAR and several other commenters object to the parameters contained in the proposed retesting provisions. Specifically, these commenters object to three of the requirements contained in the proposed retest provision, these include: the requirement that only cars with an obvious defect be retested, the requirement that the brakes remain applied for five minutes, and the requirement that the retest be conducted from the controlling locomotive or the head of the consist. These commenters contend that there is no reason to limit the retest provision to cars with readily identifiable defects. They claim that there are a number of conditions which might cause a car's brakes not to apply that are not readily identifiable thus, the retest may identify the problem and allow it to be repaired, or the reason for a no-set is unknown but the brakes operate properly upon being retested.

These commenters also believe that the proposed requirement to have the brakes remain applied for five minutes is impractical and unnecessary. They assert that it is only necessary to have the brakes remain applied for the period of time it takes an inspector to perform an inspection of the brakes and that it is impractical to require an employee to watch each retested car for five minutes. They also contend that FRA's reliance on the five-minute requirement related to the testing of locomotive brake cylinder leakage contained in § 229.59 is misplaced. They assert that there is no parallel between determining the brake cylinder leakage on a locomotive and the testing of the brakes on a freight car. One commenter suggests that a one-minute application is a sufficient period to ensure the proper operation of a car's brakes.

These commenters also object to the proposed requirement that the retest be conducted from the controlling locomotive or the head end of the consist. They contend that there is no safety hazard in performing the test with a test device positioned at one end of the car being retested. They assert that such a procedure would replicate the natural gradient of the train and, thus, avoid the possibility of overcharging the brake system, and would better facilitate retesting.

Representatives of rail labor generally supported the proposed retest provisions. These commenters did assert that any retest should be conducted from the head end of the consist or from the controlling locomotive. They claim that to perform the test from other than that location would provide no assurance that the brakes would apply in response to a brake pipe reduction from the controlling locomotive.

FRA Conclusions.

FRA agrees that the proposed provisions regarding the retesting of cars may have been overly restrictive and is modifying the final rule based on FRA's review of the comments and recommendations submitted. The final rule has been modified to permit the retesting of any car the brakes of which were found not to be applied during a required inspection. FRA agrees that there are several circumstances that could occur where the reason for the failure of the brakes to apply is not readily apparent. FRA believes that permitting a retest on any car found not applying will not adversely affect safety since the car will be required to pass the retest in order to remain in the train or be handled for necessary repair.

The final rule also modifies the proposed provision that requires a retested car's brakes to remain applied for five minutes. FRA agrees that its reliance on the five-minute requirement applicable to the testing of locomotive brake cylinder leakage is not appropriate. However, rather than insert a subjective requirement for how long the brakes should remain applied, as suggested by some commenters, FRA believes that a definite time period should be established to ensure consistency in the performance of these retests. Thus, the final rule requires that the brakes on a retested car remain applied for at least three minutes. FRA believes that three minutes is consistent with the amount of time that it would take an individual to conduct a complete inspection of the retested car's brakes. The three minutes is based on the generally accepted period of one and one-half minutes it would take to perform a walking inspection on each side of an average size freight car. Requiring the brakes to remain applied for a period of at least three minutes also provides FRA with sufficient assurances that the brakes are operating properly and will remain applied for the duration of any brake application required during the train's journey.

The final rule also modifies the proposed requirement that the retest be conducted from the controlling locomotive or the head of the consist by permitting the retest to be conducted with a suitable test device positioned at one end of the car or cars being retested. FRA agrees that there is little or no safety rationale for requiring the retest to be performed from the controlling locomotive or head of the consist. Some

commenters argue that if the retest is not conducted from the controlling locomotive, then there are no assurances that the brakes will apply in response to a brake reduction from the controlling locomotive. FRA finds that this argument ignores the various methods by which cars may be tested and assembled when air brake tests are conducted using yard air sources. FRA currently allows and this final rule continues to allow cars to be tested with yard test plants and allows such cars to be added to trains without requiring that each car be inspected to ensure it operates in response to the controlling locomotive.

One potential safety hazard with allowing cars to be retested with a device at the car is the potential for injury to the employees responsible for separating the train line between the charged cars. The train line between the car being retested and the car it is coupled to would have to be separated to perform the retest with a device. In many cases this train line will be under pressure at the time of the separation and could cause injury to the person separating the train line if caution is not used. The final rule recognizes this potential safety concern and requires that the compressed air in a car to be retested must be depleted prior to separating the air hoses and conducting the retest.

C. Movement of Equipment With Defective Brakes

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

(a) GENERAL.—A vehicle that is equipped in compliance with this chapter whose equipment becomes defective or insecure nevertheless may be moved when necessary to make repairs, without a penalty being imposed under section 21302 of this title, from the place at which the defect or insecurity was first discovered to the

nearest available place at which the repairs can be made—

(1) On the railroad line on which the defect or insecurity was discovered; or

(2) At the option of a connecting railroad carrier, on the railroad line of the connecting carrier, if not farther than the place of repair described in clause (1) of this subsection.

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

Although there is no limit contained in 49 U.S.C. 20303 as to the number of cars with defective equipment that may be hauled in a train, FRA has a longstanding interpretation which requires that, at a minimum, 85 percent of the cars in a train have operative brakes. FRA bases this interpretation on another statutory requirement which permits a railroad to use a train only if “at least 50 percent of the vehicles in the train are equipped with power or train brakes and the engineer is using the power or train brakes on those vehicles and on all other vehicles equipped with them that are associated with those vehicles in a train.” 49 U.S.C. 20302(a)(5)(B). As originally enacted in 1903, section 20302 also granted the Interstate Commerce Commission (ICC) the authority to increase this percentage, and in 1910 the ICC issued an order increasing the minimum percentage to 85 percent.

See

49 CFR 232.1, which codified the ICC order.

As virtually all freight cars are presently equipped with power brakes and are operated on an associated train line, the statutory requirement is in essence a requirement that 100 percent of the cars in a train have operative power brakes, unless being hauled for repairs pursuant to 49 U.S.C. 20303. Consequently, FRA currently requires that equipment with defective or inoperative air brakes makeup no more than 15 percent of the train and that if it is necessary to move the equipment from where the railroad first discovered it to be defective, the defective equipment be moved no farther than the nearest place on the railroad's line where the necessary repairs can be made or, at the option of the receiving carrier, to a location that is no farther than the location where the repairs could have been performed on the delivering line.

In addition to the general requirements relating to the movement of equipment with defective safety appliances, FRA currently requires 100-percent operative brakes on a train departing its initial terminal. The requirement for 100 percent at the initial terminal has been a standard by which the railroad industry has operated for decades and one which FRA and its predecessor agency, the Interstate Commerce Commission, have endorsed since the adoption of the power brake regulations. The requirement is founded on Congress' mandate that the ICC incorporate into the federal rail safety regulations the AAR's rules, standards, and instructions as of April 11, 1958, regarding the installation, inspection, maintenance, and repair of train brakes. In 1958, Congress amended a provision of the Safety Appliance Acts, then codified at 45 U.S.C. 9, by incorporating the inspection requirements of the AAR into the statute and permitting their change only for the purpose of achieving safety.

3

Based on a review of the legislative history surrounding that amendment, FRA believes it is clear that Congress interpreted the AAR standards as requiring 100 percent operative brakes on all trains prior to departure from an initial terminal. As the current regulations regarding the performance of an initial terminal inspection contained at 49 CFR 232.12(c)-(j) were basically an adoption of the AAR inspection and testing standards as they existed in 1958, FRA believes that the current regulations are intended and do require 100 percent operative brakes at initial terminals.

3

In 1994, Congress revised, recodified, and enacted without substantive change, the federal railroad safety laws. Simultaneously, the then existing general and permanent federal railroad safety laws were repealed. 45 U.S.C. 9 of the Safety Appliance Acts is currently codified at 49 U.S.C. 20301 and 20302. The reference to the AAR rules, standards, and instructions was removed during the recodification as executed.

See

Pub. L. 103-272 (July 5, 1994) and H.R. Rep. No. 103-180, at 94 (1993).

In developing the 1998 NPRM, FRA considered the various proposals discussed in the RSAC Working Group and the numerous comments provided subsequent to the issuance of the 1994 NPRM. A discussion of those comments and proposals was provided in the 1998 NPRM and will not be reiterated here.

See

63 FR 48308-310. It is clear from that discussion that many of the proposals received by FRA since the issuance of the 1994 NPRM were in direct conflict with various statutory requirements related to the movement of equipment with defective brakes. As the RSAC Working Group was unable to reach a consensus on the inspection, testing, and maintenance requirements for freight train brake systems, FRA was not willing or able to propose provisions regarding the movement of equipment with defective brakes that would be contrary to existing statutory mandates. The 1998 NPRM contained proposals regarding the tagging of defective equipment, the placement of defective equipment in a train, and a method for consistently calculating the percentage of operative brakes on a train. Therefore, in addition to being consistent with the statutory requirements, the proposed requirements ensured the safe and proper movement of defective equipment and clarified the duties imposed on a railroad when moving such equipment.

FRA proposed that all cars or locomotives found with defective or inoperative brake equipment be tagged as bad ordered with a designation of the location where the necessary repairs

would be effectuated. FRA attempted to expressly clarify the requirement that equipment with defective brakes not depart from, or be moved beyond, a location where the necessary repairs to the equipment could be performed. The 1998 proposal made clear that if a car or locomotive is found with defective brakes during any of the proposed brake inspections or while the piece of equipment is en route and the location where the defective equipment is discovered is a place where repairs of the type needed can be performed, then that car or locomotive may not be moved from that location until the necessary repairs are effectuated. However, if repairs to the defective condition cannot be performed at the location where the defect is discovered, or should have been discovered, the proposal made clear that the railroad is permitted to move the equipment with the defective condition only to the nearest location where the necessary repairs can be performed.

The preamble to the 1998 NPRM contained a lengthy discussion regarding FRA's views as to what constitutes the nearest location where the necessary repairs can be performed.

See

63 FR 48309. In that discussion, FRA noted that its previous proposals regarding the use of mobile repair trucks and when locations serviced by those trucks would be considered locations where necessary repairs could be effectuated did not sufficiently address the issue and might lead to undesired consequences. Rather than attempt to develop a standard applicable to all situations, which FRA did not believe could be accomplished at the time, FRA intended to approach the issue of what constitutes the nearest location where necessary repairs could be made based on a case-by-case analysis of each situation. FRA noted that in making these determinations both the railroad as well as FRA's inspectors must conduct a multi-factor analysis based on the facts of each case. In the preamble, FRA provided a broad discussion, based on existing case law, setting out general guidelines and factors that should be considered when determining whether a particular location is a location where necessary repairs can be made or whether a location is the nearest location where the necessary repairs can be effectuated.

See

63 FR 48309.

FRA also proposed continuation of the requirement to have 100 percent operative brakes on a train at its point of origin (initial terminal). FRA noted that this has been a requirement in the railroad industry for decades and that it was not only wise from a safety standpoint, as it ensures the proper operation of a train's brake system at least once during its life, but it also sets the proper tone for what FRA expects to be accomplished at these locations. Furthermore, requiring 100 percent operative brakes on a trains at its inception provides the railroads with a margin for failure of some brakes while the train is in transit (up to 15 percent) and tends to ensure that defective equipment is being repaired in a timely fashion. In addition, FRA stated that the 100-percent requirement is consistent not only with Congress' understanding of the AAR inspection standards that were adopted in 1958, but also with the intent of FRA, rail management, and rail labor as to what was to occur at initial terminals when the inspection interval was increased from 500 miles to 1,000 miles in 1982. At that time, carrier representatives committed to the performance of quality initial terminal inspections in exchange for an extension in the inspection interval, for which FRA intended to hold them accountable. Moreover, FRA believed that retention of the 100-percent requirement is consistent with the statutory requirements regarding the movement of defective equipment because a majority of the locations where trains are initiated have the capability of conducting virtually any brake system repair, and thus, under 49 U.S.C. 20303(a) the defective equipment may not be moved from those locations anyway.

In the preamble to the 1998 NPRM, FRA recognized that the 100-percent requirement at points of origin tends to be somewhat burdensome for some railroads at certain locations.

See

63 FR 48309-10. However, FRA noted that the number of locations where the requirement is quite burdensome appears to be fairly low as FRA had made clear that railroads are free to petition for a waiver of this requirement, but as of the issuance of the NPRM no railroad had filed such a petition. Although FRA recognized that the requirement creates somewhat illogical scenarios at some locations, FRA was not willing to propose provisions permitting trains to depart locations with less than 100 percent operative brakes without fully considering the safety hazards or potential abuses which may accompany such an approach. Therefore, FRA sought comment from interested parties regarding the potential for permitting very limited flexibility in moving defective equipment from outlying initial terminals which lack the capability of effectuating brake system repairs. FRA also discussed various alternative approaches, with attendant restrictions, which might provide some flexibility at these outlying locations and sought comment on those approaches as well.

See

63 FR 48310.

The AAR and several other railroad representative submitted a number of comments on the proposed requirements regarding the movement of defective equipment. The majority of the comments received from these parties addressed the proposed requirements regarding 100 percent operative brakes at a train's initial terminal, the identification of locations where brake repairs should be required, and the tagging of defective equipment.

These commenters recommend that FRA permit trains to operate from any location with a minimum percentage of its brakes inoperative. At a minimum, they recommend that this flexibility be provided at locations where repairs can not be performed. They suggest adoption of a 95-percent minimum operative brake requirement from such locations. They contend that the 100-percent requirement at initial terminals is outdated and does not take into consideration the numerous technological improvements made to brake systems over the last several decades. They also contend that it makes no sense to require 100-percent operative brakes on trains originating at a location yet allow a train originating at another location to pick-up defective equipment at the same location and haul it to the same place that it could have been hauled by the originating train. They further contend that the 100-percent requirement results in the unnecessary switching of cars and exposes employees to greater safety risks than if the equipment were permitted to depart in originating trains. Several commenters note that Canada has permitted trains to operate to destination with 95 percent operative brakes since June of 1994 and has experienced no compromise in safety. The AAR commented that railroads could live with a 95-percent operative brake requirement out of initial terminals provided that there were no mileage restrictions placed on the movement of such defective equipment as discussed in the NPRM.

See

63 FR 48310. The ASLRA sought clarification as to the applicability of the 100-percent requirement to transfer trains. They contend that the language used in the NPRM suggests that all transfer trains must have 100-percent operative brakes from their initial terminal which is not what is required under the current regulations and would have a huge impact on small railroads.

A number of railroad representatives also provided comments and

recommendations on how FRA addressed the issue of what constitutes a location where brake repairs are required to be performed. These commenters recommend that FRA clarify what constitutes the nearest location where repairs can be made. These parties do not believe that this determination should be left to the discretion of individual FRA inspectors. They claim that such an approach creates in

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