Locomotive Safety Standards

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229 and 238

[Docket No. FR-2009-0095; Notice No. 1]

RIN 2130-AC16

Locomotive Safety Standards

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

FRA proposes to revise the existing regulations containing Railroad Locomotive Safety Standards. The proposed revisions would update, consolidate, and clarify the existing regulations. The proposal incorporates existing industry and engineering best practices related to locomotives and locomotive electronics. This includes the development of a safety analysis for new locomotive electronic systems. FRA believes this proposal will modernize and improve its safety regulatory program related to locomotives.

DATES:

Comments:

Written comments must be received by March 14, 2011. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.

Hearing:

FRA anticipates being able to complete this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to February 11, 2011, one will be scheduled and FRA will publish a supplemental notice in the

Federal Register

to inform interested parties of the date, time, and location of any such hearing.

ADDRESSES:

Comments: Comments related to Docket No. FRA-2009-0095, may be submitted by any of the following methods:

Web Site:

Federal eRulemaking Portal,

http://www.regulations.gov.

Follow the online instructions for submitting comments.

•

Fax:

202-493-2251.

•

Mail:

Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590.

•

Hand Delivery:

Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., W12-140, Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

•

Federal eRulemaking Portal:

Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

Instructions:

All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to

http://www.regulation.gov

including any personal information.

Please see

the Privacy Act heading in the

SUPPLEMENTARY INFORMATION

section of this document for Privacy Act information related to any submitted comments or materials.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

at any time or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

George Scerbo, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC (telephone 202-493-6249), or Michael Masci, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC (telephone 202-493-6037).

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background

FRA has broad statutory authority to regulate railroad safety. The Federal railroad safety laws (formerly the Locomotive Boiler Inspection Act at 45 U.S.C. 22-34, repealed and recodified at 49 U.S.C. 20701-20703) prohibit the use of unsafe locomotives and authorize FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431

et seq.,

now found primarily in chapter 201 of Title 49). The Safety Act grants the Secretary of Transportation rulemaking authority over all areas of railroad safety (49 U.S.C. 20103(a)) and confers all powers necessary to detect and penalize violations of any rail safety law. This authority was subsequently delegated to the FRA Administrator. (49 CFR 1.49) Until July 5, 1994, the Federal railroad safety statutes existed as separate acts found primarily in title 45 of the United States Code. On that date, all of the acts were repealed, and their provisions were recodified into title 49 of the United States Code. All references to parts and sections in this document shall be to parts and sections located in Title 49 of the Code of Federal Regulations.

Pursuant to its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address the safety of, inter alia, railroad track, signal systems, communications, rolling stock, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In 1980, FRA issued the majority of the regulatory provisions currently found at 49 CFR part 229 (“part 229”) addressing various locomotive related topics including: Inspections and tests; safety requirements for brake, draft, suspension, and electrical systems, and locomotive cabs; and locomotive cab equipment. Since 1980, various provisions currently contained in part 229 have been added or revised on an ad hoc basis to address specific safety concerns or in response to specific statutory mandates.

Topics for new regulation typically arise from several sources. FRA continually reviews its regulations and revises them as needed to address emerging technology, changing operational realities, and to bolster existing standards as new safety concerns are identified. It is also common for the railroad industry to introduce regulatory issues through FRA's waiver process. Several of FRA's proposed requirements have been partially or previously addressed through FRA's waiver process. As detailed in part 211, FRA's Railroad Safety Board (Safety Board) reviews, and approves or denies, waiver petitions submitted by railroads and other parties subject to the regulations. Petitions granted by the Safety Board can be utilized only by the petitioning party. By incorporating existing relevant regulatory waivers into part 229, FRA intends to extend the reach of the regulatory flexibilities permitted under those waivers. Although, FRA is proposing to alter a number of regulatory requirements, the comprehensive safety regulatory structure would remain.

The requirement that a locomotive be safe to operate in the service in which it is placed remains the cornerstone of Federal regulation. Title 49 U.S.C. 20701 provides that “[a] railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances: (1) Are in proper condition and safe to operate

without unnecessary danger of personal injury; (2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and (3) can withstand every test prescribed by the Secretary under this chapter.”

The statute is extremely broad in scope and makes clear that each railroad is responsible for ensuring that locomotives used on its line are safe. Even the extensive requirements of part 229 are not intended to be exhaustive in scope, and with or without that regulatory structure the railroads remain directly responsible for finding and correcting all hazardous conditions. For example, even without these proposed regulations, a railroad would be responsible for repairing an inoperative alerter and an improperly functioning remote control transmitter, if the locomotive is equipped with these devices.

On July 12, 2004, the Association of American Railroads (AAR), on behalf of itself and its member railroads, petitioned the FRA to delete the requirement contained in 49 CFR 229.131 related to locomotive sanders. The petition and supporting documentation asserted that contrary to popular belief, depositing sand on the rail in front of the locomotive wheels will not have any significant influence on the emergency stopping distance of a train. While contemplating the petition, FRA and interested industry members began identifying other issues related to the locomotive safety standards. The purpose of this task was to develop information so that FRA could potentially address the issues through the Railroad Safety Advisory Committee (RSAC).

The locomotive sanders final rule was published on October 19, 2007 (72

FR

59216). FRA continued to utilize the RSAC process to address additional locomotive safety issues. On September 10, 2009, after a series of detailed discussions, the RSAC approved and provided recommendations on a wide range of locomotive safety issues including, locomotive brake maintenance, pilot height, headlight operation, danger markings, and locomotive electronics. FRA is generally proposing the consensus rule text for these issues with minor clarifying modifications. The RSAC was unable to reach consensus on the issues related to remote control locomotives, cab temperature, and locomotive alerters. Based on its consideration of the information and views provided by the RSAC Locomotive Safety Standards Working Group, FRA is also proposing rule text related to the non-consensus items.

II. RSAC Overview

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

American Association of Private Railroad Car Owners (AARPCO)

American Association of State Highway & Transportation Officials (AASHTO)

American Public Transportation Association (APTA)

American Short Line and Regional Railroad Association (ASLRRA)

American Train Dispatchers Association (ATDA)

Amtrak

Association of American Railroads (AAR)

Association of Railway Museums (ARM)

Association of State Rail Safety Managers (ASRSM)

Brotherhood of Locomotive Engineers and Trainmen (BLET)

Brotherhood of Maintenance of Way Employes Division (BMWED)

Brotherhood of Railroad Signalmen (BRS)

Federal Transit Administration (FTA)*

High Speed Ground Transportation Association (HSGTA)

International Association of Machinists and Aerospace Workers

International Brotherhood of Electrical Workers (IBEW)

Labor Council for Latin American Advancement (LCLAA)*

League of Railway Industry Women*

National Association of Railroad Passengers (NARP)

National Association of Railway Business Women*

National Conference of Firemen & Oilers

National Railroad Construction and Maintenance Association

National Railroad Passenger Corporation (Amtrak)

National Transportation Safety Board (NTSB)*

Railway Supply Institute (RSI)

Safe Travel America (STA)

Secretaria de Communicaciones y Transporte*

Sheet Metal Workers International Association (SMWIA)

Tourist Railway Association Inc.

Transport Canada*

Transport Workers Union of America (TWU)

Transportation Communications International Union/BRC (TCIU/BRC)

United Transportation Union (UTU)

*Indicates associate membership.

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

III. Proceedings to Date

On February 22, 2006, FRA presented, and the RSAC accepted, the task of reviewing existing locomotive safety needs and recommending consideration of specific actions useful to advance the safety of rail operations. The RSAC established the Locomotive Safety Standards Working Group (Working Group) to handle this task and develop recommendations for the full RSAC to consider. Members of the Working Group, in addition to FRA, included the following:

APTA

ASLRRA

Amtrak

AAR

ASRSM

BLET

BMWE

BRS

BNSF Railway Company (BNSF)

California Department of Transportation

Canadian National Railway (CN)

Canadian Pacific Railway (CP)

Conrail

CSX Transportation (CSXT)

Florida East Coast Railroad

General Electric (GE)

Genesee & Wyoming Inc.

International Association of Machinists and Aerospace Workers

IBEW

Kansas City Southern Railway (KCS)

Long Island Rail Road

Metro-North Railroad

MTA Long Island

National Conference of Firemen and Oilers

Norfolk Southern Corporation (NS)

Public Service Commission of West Virginia

Rail America, Inc.

Southeastern Pennsylvania Transportation Agency

SMWIA

STV, Inc.

Tourist Railway Association Inc.

Transport Canada

Union Pacific Railroad (UP)

UTU

Volpe Center

Wabtec Corporation

Watco Companies

The task statement approved by the full RSAC sought immediate action from the Working Group regarding the need for, and usefulness of, the existing regulation related to locomotive sanders. The task statement established a target date of 90 days for the Working Group to report back to the RSAC with recommendations to revise the existing regulatory sander provision. The Working Group conducted two meetings that focused almost exclusively on the sander requirement. The meetings were held on May 8-10, 2006, in St. Louis, Missouri, and on August 9-10, 2006, in Fort Worth, Texas. Minutes of these meetings have been made part of the docket in this proceeding. After broad and meaningful discussion related to the potential safety and operational benefits provided by equipping locomotives with operative sanders, the Working Group reached consensus on a recommendation for the full RSAC.

On September 21, 2006, the full RSAC unanimously adopted the Working Group's recommendation on locomotive sanders as its recommendation to FRA. The next twelve Working Group meeting addressed a wide range of locomotive safety issues. The meetings were held at the following locations on the following days:

Kansas City, MS, October 30 & 31, 2006;

Raleigh, NC, January 9 & 10, 2007;

Orlando, FL, March 6 & 7, 2007;

Chicago, IL, June 6 & 7, 2007;

Las Vegas, NV, September 18 & 19, 2007;

New Orleans, LA, November 27 & 28, 2007;

Fort Lauderdale, FL, February 5 & 6, 2008;

Grapevine, TX, May 20 & 21, 2008;

Silver Spring, MD, August 5 & 6, 2008;

Overland Park, KS, October 22 & 23, 2008;

Washington, D.C., January 6 & 7, 2009; and

Arlington, VA, April 15 & 16, 2009.

At the above listed meetings, the Working Group successfully reached consensus on the following locomotive safety issues: Locomotive brake maintenance, pilot height, headlight operation, danger markings placement, load meter settings, reorganization of steam generator requirements, and the establishment locomotive electronics requirements. Throughout the preamble discussion of this proposal, FRA refers to comments, views, suggestions, or recommendations made by members of the Working Group. When using this terminology, FRA is referring to views, statements, discussions, or positions identified or contained in the minutes of the Working Group meetings. These documents have been made part of the docket in this proceeding and are available for public inspection as discussed in the

ADDRESSES

portion of this document. These points are discussed to show the origin of certain issues and the course of discussions on those issues at the task force or working group level. We believe this helps illuminate factors FRA has weighed in making its regulatory decisions, and the logic behind those decisions.

The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA is primarily acting in this proceeding. As discussed above, the Working Group reported its findings and recommendations to the RSAC at its September 10, 2009 meeting. The RSAC approved the recommended consensus regulatory text proposed by the Working Group, which accounts for the majority of this NPRM. The specific regulatory language recommended by the RSAC was amended slightly for clarity and consistency. FRA independently developed proposals related to remote control locomotives, alerters, and locomotive cab temperature, issues that the Working Group discussed, but ultimately did not reach consensus.

IV. General Overview of Proposed Requirements

Trends in locomotive operation, concern about the safe design of electronics, technology advances, and experience applying Federal regulations provide the main impetus for the proposed revisions to FRA's existing standards related to locomotive safety. An overview of some of the major areas addressed in this proposal is provided below.

A. Remote Control Locomotives

Remote control devices have been used to operate locomotives at various locations in the United States for many years, primarily within yards and certain industrial sites. Railroads in Canada have extensively used remote control locomotives for more than a decade. FRA began investigating remote control operations in 1994 and held its first public hearing on the subject in mid-1990s to gather information and examine the safety issues relating to this new technology. On July 19, 2000, FRA conducted a technical conference in which interested parties, including rail unions, remote control systems suppliers, and railroad representatives, shared their views and described their experiences with remote control operations.

On February 14, 2001, FRA published a Safety Advisory in which FRA issued recommended guidelines for conducting remote control locomotive operations.

See

66 FR 10340, Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. By issuing these recommendations, FRA sought to identify a set of “best practices” to guide the rail industry when implementing this technology. As this was an emerging technology, FRA believed the approach served the railroad industry by providing flexibility to both manufacturers designing the equipment and to railroads using the technology in their operations, while reinforcing the importance of complying with all existing railroad safety regulations. All of the major railroads have adopted the recommendations contained in the advisory, with only slight modifications to suit their individual operations.

In the Safety Advisory, FRA addressed the application and enforcement of the Federal regulations to remote control locomotives. FRA discussed the existing Federal locomotive inspection requirements and the application of those broad requirements to remote control locomotive technology. The Safety Advisory explains that: “although compliance with this Safety Advisory is voluntary, nothing in this Safety Advisory is meant to relieve a railroad from compliance with all existing railroad safety regulations [and] [t]herefore, when procedures required by regulation are cited in this Safety Advisory, compliance is mandatory.”

Id.

at 10343. For example, the Safety Advisory states that the remote control locomotive “system must be included as part of the calendar day inspection required by section 229.21, since this equipment becomes an appurtenance to the locomotive.”

Id.

at 10344. Another example of a mandatory requirement mentioned in the Safety Advisory is that the remote control locomotive “system components that interface with the

mechanical devices of the locomotive, e.g., air pressure monitoring devices, pressure switches, speed sensors, etc., should be inspected and calibrated as often as necessary, but not less than the locomotive's periodic (92-day) inspection.”

Id.; see

also

49 CFR 229.23. Thus, the Safety Advisory made clear that the existing Federal regulations require inspection of the remote control locomotive equipment.

The Safety Advisory also addressed the application of various requirements related to the operators of remote control locomotives. The Safety Advisory states that “each person operating an RCL [remote control locomotive] must be certified and qualified in accordance with part 240 [FRA's locomotive engineer rule] if conventional operation of a locomotive under the same circumstances would require certification under that regulation.”

Id.

at 10344. In 2006, FRA codified additional requirements to address specific operational issues such as situational awareness.

See

71 FR 60372 (2006).

During several productive meetings, the Working Group identified many areas of agreement regarding the regulation of remote control locomotive equipment. On issues that produced disagreement, FRA gathered useful information. Informed by the Working Group discussions, this proposal would codify the industry's best practices related to the use and operation of remote control locomotives.

B. Electronic Record-Keeping

The development and improved capability of electronic record-keeping systems has led to the potential for safe electronic maintenance of records required by part 229. Since April 3, 2002, FRA has granted a series of waivers permitting electronic record-keeping with certain conditions intended to ensure the safety, security and accessibility of such systems.

See

FRA-2001-11014. Based on the information gathered under the experiences of utilizing the electronic records permitted under these existing waivers, the Working Group discussed, and agreed to, generally applicable standards for electronic record-keeping systems.

C. Brake Maintenance

Advances in technology have increased the longevity of locomotive brake system components. In conjunction with several railroads and the AAR, FRA has monitored the performance of new brake systems since the Locomotive Safety Standards regulation was first published in 1980.

See

45 FR 21092. The proposed revisions to locomotive air brake maintenance are based on this extensive history of study and testing. Over the last several decades, FRA has granted several conditional waivers extending the air brake cleaning, repair, and test requirements of §§ 229.27 and 229.29. These extensions were designed to accommodate testing of the reliability of electronic brake systems and other brake system components, with the intent of moving toward performance based test criterion with components being replaced or repaired based upon their reliability.

In 1981, FRA granted a test waiver (H-80-7) to eight railroads, permitting them to extend the annual and biennial testing requirements contained in §§ 229.27 and 229.29, in order to conduct a study of the safe service life and reliability of the locomotive brake components. On January 29, 1985, FRA expanded the waiver to permit all railroads to inspect the 26-L type brake equipment on a triennial basis. In the 1990's, the Canadian Pacific Railroad (CP) and the Canadian National Railroad (CN) petitioned the FRA to allow them to operate locomotives into the United States that received periodic attention every four years. The requests were based on a decision by Transport Canada to institute a four-year inspection program following a thorough test program in Canada. In November 2000, FRA granted conditional waivers to both the CN and CP, extending the testing interval to four years for Canadian-based locomotives equipped with 26-L type brake systems and air dryers. The waiver also requires all air brake filtering devices to be changed annually and the air compressor to be overhauled not less than every six years. In 2005, this waiver was extended industry-wide.

See

FRA-2005-21325.

In 2009, AAR petitioned for a waiver that would permit four year testing and maintenance intervals for locomotives that are equipped with 26-L type brake equipment and not equipped with air dryers. The petition assumed that the testing and maintenance intervals that are appropriate for locomotives equipped with air dryers are also appropriate for locomotives without air dryers. FRA denied the request, but granted a limited test program to determine whether the addition of operative air dryers on a locomotive merits different maintenance and testing requirements. FRA recognizes that the results of the test plan may indicate that locomotives that are not equipped with air dryers merit the same treatment as locomotives that operate without air dryers. FRA solicits comments on this issue.

FRA also requests comments on what should constitute an operative air dryer and how a locomotive with an inoperative air dryer should be properly handled. FRA believes that these issues are essential to enforcement of a requirement that includes the use of operative air dryers. The proposed rule text does not address this issue. It is not clear how many days an air dryer would need to stop performing to allow contaminants in the brake line to adversely affect the brake valves to the extent that the air dryer is no longer considered operative. It is also unclear how many days an air dryer could be inoperative before it needs to be repaired in order to preserve the four year testing and maintenance schedule. FRA believes that one reasonable approach would be to permit a locomotive with an inoperative air dryer to run to the next periodic inspection to be repaired.

The New York Air Brake Corporation (NYAB) sought by waiver, and was granted, an extension of the cleaning, repairing, and testing requirements for pneumatic components of the CCBI and CCBII brake systems (FRA-2000-7367, formerly H-95-3), and then modification of that waiver to include its new CCB-26 electronic airbrake system. The initial waiver, which was first granted on September 13, 1996, extended the interval for cleaning, repairing, and testing pneumatic components of the NYAB Computer Controlled Brake (CCB, now referred to as CCB-I) locomotive air brake system under 49 CFR 229.27(a)(2) and 49 CFR 229.29(a) from 736 days to five years. The waiver was modified to include NYAB's CCB-II electronic air brake system on August 20, 1998.

To confirm that the extended brake maintenance interval did not have a negative effect on safety, FRA required quarterly reports listing air brake failures, both pneumatic and electrical, of all locomotives operating under the waiver including: Locomotive reporting marks; and the cause and resolution of the problem. All verified failures were required to be reported to FRA prior to disassembly, so that NYAB, the railroad, and FRA could jointly witness the disassembly of the failed component to determine the cause. The last quarterly submission to FRA listed 1,889 CCBI and 1,806 CCBII equipped locomotives in the United States, all of which were operating at high levels of reliability and demonstrated safety. All past tests and teardown inspections confirm the safety and reliability of the five year interval.

Based on successful performance of the two NYAB electronic air brake systems under the conditions of the 1996 and 1998 waivers, the waiver was extended for another five years on September 10, 2001, and the conditions of the waiver were modified on September 22, 2003. NYAB described the new CCB-26 electronic air brake system as an adaptation of the CCB-II system designed to be used on locomotives without integrated cab electronics. It used many of the same sub-assemblies of pneumatic valves, electronic controls and software (referred to as line replaceable units or LRUs) as the CCB-II. Some changes were made to simplify the system while maintaining or increasing the level of safety. For example, the penalty brake interface was changed to mimic the 26L system interface, allowing for a fully pneumatic penalty brake application. Also, the brake cylinder pilot pressure development has been simplified from an electronic control to a fully pneumatic version based on proven components.

Much of the software and diagnostic logic which detects critical failures and takes appropriate action to effect a safe stop has been carried over from CCB-II. Overall, NYAB characterized the CCB-26 as being more similar to CCB-II than CCB-II is to CCB-I. As a final check on the performance of the CCB-26 system, it was included in the existing NYAB failure monitoring and recording systems. For the reasons above, FRA extended the waiver of compliance with brake maintenance requirements to locomotives equipped with CCB-26 brake systems.

Similarly, WABCO Locomotive Products (WABCO), a Wabtec company, sought and was granted an extension of the cleaning, repairing, and testing requirements for pneumatic components of the EPIC brake systems (FRA-2002-13397, formerly H-92-3), and then modification of that waiver to include its new FastBrake line of electronic airbrake systems. The initial waiver conditionally extended to five years the clean, repair and test intervals for certain pneumatic air brake components contained in §§ 229.27(a)(2) and 229.29(a) for WABCO's EPIC electronic air brake equipment. WABCO complied with all of the conditions of the waiver. Specifically, WABCO provided regular reports to FRA including summaries of locomotives equipped with EPIC brake systems and all pneumatic and electronic failures. FRA participated in two joint teardown inspections of EPIC equipment after five years of service in June 2000 and May 2002. After five years of service, the EPIC brake systems were found to function normally. No faults were found during locomotive tests, and the teardown revealed that the parts were clean and in working condition.

In support of its proposal to extend brake maintenance for FastBrake brake systems, WABCO stated that virtually all of the core pneumatic technology that has been service proven in EPIC from the time of its introduction and documented as such under the provisions of the above waiver and were transferred into FastBrake with little or no change. They asserted that a further reduction of pneumatic logic devices had been made possible by the substitution of compute based logic. WABCO also provided a discussion of the similarities between the EPIC and FastBrake systems as well as the differences, which are primarily in the area of electronics rather than pneumatics. In conclusion, WABCO stated that the waiver could be amended without compromising safety. For the reasons above, FRA granted the waiver petition.

Over time, several brake systems have been brought into a performance based standard. FRA, along with railroads and brake valve manufacturers, has participated in a series of brake valve evaluations. Each evaluation was performed after extended use of a particular brake valve system to determine whether it can perform safely when used beyond the number of days currently permitted by part 229. The Working Group agreed with the evidence of success and the overall approach taken by FRA. As a result, the Working Group reached consensus on the proposed brake maintenance standards.

D. Brakes, General

In December of 1999, a MP&E Technical Resolution Committee (TRC), consisting of FRA and industry experts, met in Kansas City to consider the proper application of the phrase “operate as intended” contained in § 229.46 when applied to trailing, non-controlling locomotives. Extensive discussion failed to reach consensus on this issue, but revealed valuable insight into the technical underpinnings and operational realities surrounding the issue. The Working Group revived this issue, and after lengthy discussion, reached consensus.

Generally, even if a locomotive has a defective brake valve that prevents it from functioning as a lead locomotive, its brakes will still properly apply and release when it is placed and operated as a trailing locomotive. This situation can apply on either a pneumatic 26-L application or on the electronic versions of the locomotive brake. The electronic brake often will have the breaker turned off, thus making the brake inoperative unless it is being controlled by another locomotive.

Based on reading the plain language of the existing regulation it is not clear under what conditions a trailing, non-controlling locomotive operates as intended. The existing regulation provides that “the carrier shall know before each trip that the locomotive brakes and devices for regulating all pressures, including but not limited to the automatic and independent brake valves, operate as intended * * *”

See

49 CFR 229.46. One could reasonably argue that a trailing non-controlling locomotive is operating as intended when the brakes are able to apply and release in response to a command from a controlling locomotive, because the locomotive is not intended to control the brakes when it is used in the trailing position. It could also be argued that the trailing, non-controlling locomotive's automatic and independent brake valves must be able to control the brakes whenever it is called on to do so. Under this reading, a trailing, non-controlling locomotive does not operate as intended when it is not able to control the brakes.

At the TRC meeting, the representatives from NYAB Corporation, a brake manufacturer, asserted that a problem with a faulty automatic or independent brake valve will not create an unsafe condition when the locomotive is operating in the trail position, provided the locomotive consist has a successful brake test (application and release) from the lead unit. The reason offered was that in order for a locomotive to operate in the trailing position, the automatic and independent brake valves must be cut-out. FRA agrees, and currently applies this rationale in regards to performing a calendar day inspection. The calendar day inspection does not require that the operation of the automatic and independent brake controls be verified on trailing locomotives. The Working Group agreed, and recommended adding a tagging requirement to prevent a trailing, non-controlling locomotive with defective independent or automatic brakes from being used as a controlling locomotive.

E. Locomotive Cab Temperature

In 1998, FRA led an RSAC Working Group to address various cab working condition issues. To aid the Working Group discussions, FRA conducted a study to determine the average temperature in each type of locomotive cab commonly used at the time. The

study concluded that at the location where the engineer operates the locomotive, each locomotive maintained an average temperature of at least 60 degrees. The window and door gaskets were maintained in proper condition on the locomotives that were studied. In 1998, FRA believed it was impractical to address the minimum temperature issue by regulation, especially given that, the existing industry practice was appropriate and revision of the regulation would have required considerable resources. Now that the locomotive safety standards are in the process of being revised, FRA proposes to incorporate existing industry practice into the regulation in an effort to maintain the current conditions. For review, the 1998 study has been included in the public docket related to this proceeding.

In addition to proposing an increase in the minimum cab temperature from 50 °F to 60 °F, FRA believes that establishing a maximum cab temperature limit would result in improved locomotive crew performance, which in turn would increase railroad safety. Current literature regarding the effect of low temperature on human performance indicates that performance decreases when the temperature decreases below 60 °F. Similarly, the literature regarding the effect of high temperature and humidity indicates that performance decreases when temperatures increase above 80° F, and that performance decreases to an even greater extent when the temperature increases above 90 °F.

Ergonomics,

2002 vol. 45, no. 10, 682-698.

Locomotive crew performance is directly linked to railroad safety through the safe operation of trains. Locomotive engineers are responsible for operating trains in a safe and efficient manner. This requires the performance of cognitive tasks including the mathematical information processing required for train handling, constant vigilance, and accurate perception of the train and outside environment. Conductors are responsible for maintaining accurate train consists, including the contents and position of hazardous materials cars, for confirming the aspects and indications of signals, and for ensuring compliance with written orders and instructions. A decrease in performance of any of these tasks that can be anticipated from relevant scientific findings should be avoided where amelioration can be applied.

In the Human Reliability Analysis (HRA) literature, stressors are considered to be important factors that can affect human performance and produce errors. Such stressors are, in fact, labeled performance-shaping factors (PSFs) and include external (or environmental) factors such as temperature. In general, if one has an estimate of the human error probability (HEP) associated with some generic or specific task, the PSFs that exist are used to modulate the magnitude of that error. For example, an estimate of HEP associated with simple calculations is 0.04, with a lower bound of 0.02 and an upper bound of 0.11. If stress is introduced in a situation in which there is decision-making and multi-tasking (all of which are typical of locomotive engineer work), human factor experts recommend that HEP be increased five-fold for skilled workers and ten-fold for novice workers. Consequently, mean HEP would be estimated at 0.2 for skilled workers and at 0.4 for novices. This same logic can be applied to estimate accident reduction. Accident reduction estimates can be obtained under the assumption that accidents are proportional to the task performance decrements that accrue due to temperature stress. If a proportion of the task performance decrements is eliminated, then accidents should also be proportionately decreased. For example, in 1999, 16 of the human factors train accidents reported to the FRA occurred when the ambient temperatures were 90 °F or above. Conservatively assuming that at least eight (50 percent) of the locomotive cabs did not have operational air conditioning or other measures in place to reduce in cab temperatures below the ambient temperature and applying the overall task decrement of 0.148 as described in the meta-analysis an estimate may be made that a 65/86 temperature rule would prevent more than one in eight of the 1999 human factors train accidents that occurred when ambient and in cab temperatures were 90 °F or above. The results of applying task decrements to human factors train accidents in specific temperature ranges, however, can be considered conservative because the accidents considered only include accidents for which the primary cause was identified as “Human Factors.” Experts on accident causation indicate that accidents very rarely have a single cause. Rather, there are usually multiple factors that together contribute to the generation of an accident.

In many occupational settings it is desirable to minimize the health and safety effects of temperature extremes. Depending upon the workplace, engineering controls may be employed as well as the management of employee exposure to excess cold or heat using such methods as work-rest regimens. Because of the unique nature of the railroad operating environment, the locomotive cab can be viewed as a captive workplace where the continuous work of the locomotive crew takes place in a relatively small space. For this reason, in an excessively hot cab, a locomotive crew member may have no escape from extreme temperatures, since they cannot be expected to readily disembark the train and rest in a cooler environment as part of a work-rest regimen without prior planning by the railroad. As such, FRA expects reliance upon engineering controls to limit temperature extremes. When FRA considered controls for cold and hot temperature cab environments, FRA learned that there is a range of engineering controls available that can be employed. Some of these controls are presently employed to affect the cab temperature environment. Controls include isolation from heat sources such as the prime mover; reduced emissivity of hot surfaces; insulation from hot or cold ambient environments; radiation shielding including reflective shields, absorptive shielding, transparent shielding, and flexible shielding; localized workstation heating or cooling; general and spot (fan) ventilation; evaporative cooling; chilled coil cooling systems.

As noted above, in 1998, FRA led an RSAC Working Group to address various cab working condition issues. To aid the Working Group discussions, FRA conducted a winter time study to determine the average low temperature in each type of locomotive cab commonly used at the time. The study concluded that at the location where the engineer operates the locomotive, each locomotive maintained an average temperature of at least 60 °F.

Ergonomics,

2002 vol. 45, no. 10, 682-698. The window and door gaskets were maintained in proper condition on the locomotives that were studied. In 1998, FRA believed it was impractical to address the minimum temperature issue by regulation, especially given that, the existing industry practice was appropriate and revision of the regulation would have required considerable resources. Now that the locomotive safety standards are in the process of being revised, FRA proposes to incorporate existing industry practice into the regulation in an effort to maintain the current minimum cab temperature conditions.

Based on the preceding discussion and its review of existing literature on the subject, FRA believe it is appropriate to consider not only

limiting minimum locomotive cab temperature but also limiting maximum locomotive cab temperature. FRA believes that an appropriate maximum temperature level for a locomotive cab is a wet bulb temperature (WBT) somewhere between 80° and 90 °F. FRA recognizes that the mechanical capabilities of cooling systems on both existing and new locomotives are directly affected by the outside ambient temperature. Thus, FRA expects that the maximum cab temperature limit may need to be flexible in extreme weather conditions due to the limited ability of existing cooling systems to produce a temperature a vast number of degrees cooler than the external ambient temperature. FRA seeks comment and information from interested parties regarding current practices within the industry with regard to maintaining a maximum locomotive cab temperature.

There are a number of factors and issues that must be considered when imposing a maximum locomotive cab temperature. In an effort to develop safe and cost-effective requirements related to establishing a maximum locomotive cab temperature limit FRA seeks comments from interested parties on the following issues:

1. To what locomotives should the maximum cab temperature limits apply?

FRA does not anticipate applying the maximum cab temperature limit to all locomotives. Existing locomotives that are not equipped with air conditioners would not be required to add air conditioning units. A significant portion of the industry's existing locomotive fleet is currently equipped with air conditioners. FRA believes that air conditioning units should remain on locomotives that are currently so equipped and would expect the maximum cab temperature limit to apply to such units. FRA also expects that the maximum temperature limit would be applicable to new locomotives, and remanufactured locomotives as defined in § 229.5. FRA believes that one of the reasons that virtually all of these types of locomotives are constructed with air conditioning units in order to ensure the proper operation of the on-board electronic equipment. Thus, the locomotives are already equipped with the facilities to maintain a cab temperature below the maximum temperatures being contemplated. FRA also recognizes that at some locations the ambient temperature may seldom or never rise above 90 °F. Thus, FRA is considering an approach that might provide an exception for these types of locations from the maximum cab temperature limits. With the above discussion in mind, FRA seeks information and comments from interested parties on the following:

• What percentage of locomotives in the existing fleet are equipped with air conditioning units?

• What percentages of newly constructed or remanufactured locomotives are equipped with air conditioning units?

• What potential requirements could apply to locomotives that spend the majority of their time in locations that rarely rise above 90 °F, but also operate in locations where the temperature does rise above 90 °F?

• How could these locations be properly excluded from the maximum temperature requirements?

• Are there technologies other than air conditioning units that could be utilized in these types of locations?

2. What are the capabilities of existing locomotive cab air conditioning units?

Although FRA has not conducted tests to determine the effectiveness of air conditioning systems, FRA's knowledge of HVAC capabilities and experience riding locomotives with operative air conditioning units indicates that such systems can hold cab temperatures below 90 °F under expected service conditions when properly maintained, as is the case with rail passenger coaches, passenger MU locomotives, motorized vehicles on the highway, and other means of conveyance. However, FRA recognizes that existing air conditioners have technical limitations, and that those limitations need to be considered when developing a maximum cab temperature requirement. FRA seeks comment and information on the following:

• At what rate can air conditioning units currently being used within the industry cool the interior of a locomotive cab?

• What external conditions or factors affect an air conditioning unit's ability to reduce the interior locomotive cab temperature?

• Would it be possible to modify an existing air conditioning unit or interior of the locomotive cab to address the conditions noted above?

3. What is the appropriate method for measuring maximum locomotive cab temperature?

An effective and reliable method for measuring the maximum locomotive cab temperature will need to be included in the final rule in order to make any maximum temperature requirement enforceable. Railroad management, train crews, and FRA will need to be able to accurately measure the maximum cab temperature when a locomotive is in use. The existing and proposed minimum locomotive cab temperature requirement provides that the temperature be measured six inches above each seat in the cab. FRA believes that a similar location for measuring the maximum temperature would appear to be appropriate. FRA also recognizes that any cooling system will require a sufficient amount of time to adequately reduce the interior temperature of a locomotive cab. Thus, the ability to test or measure the temperature may not occur until a locomotive is already in use. In consideration of the above, FRA seeks comment and information from interested parties on the following:

• How do railroads currently measure or monitor locomotive cab temperatures to comply with the existing minimum temperature requirements?

• Do railroads measure cab temperature for other purposes? If so, what are those purposes?

• Could the same methods be used to monitor a maximum temperature requirement?

• Are there locations where testing or monitoring of air conditioning units would be extremely burdensome or impossible?

• The existing minimum cab temperature requirement is based on measurement of the temperature six inches above each seat in the cab. Would that also be an appropriate location in the cab to measure temperature to determine compliance with a maximum temperature requirement?

• Is there an appropriate frequency at which air conditioning units should be tested?

4. How should locomotive air conditioning units be maintained and repaired when found defective or inoperative?

In order to ensure that locomotives to which the maximum cab temperature limits would apply are generally capable of compliance, the final rule would need to contain basic inspection, maintenance, and repair provisions related to on-board cooling systems. FRA recognizes that these maintenance and repair schedules and requirements would be most applicable during those annual periods where extreme hot weather is prevalent across most of the continental United States. Thus, FRA expects to concentrate such provisions during these vital time periods. Similarly, FRA recognizes that appropriate provisions related to the handling and use of a locomotive with an inoperative cooling system would

need to be provided. Under the existing part 229 movement for repair provisions, if a locomotive were required to meet a maximum cab temperature limit and was found unable to do so, then the locomotive could only be moved to the next forward location or to its next calendar day inspection where necessary repairs to the locomotive's cooling system could be performed. FRA realizes such a stringent requirement might unduly hinder a railroad's ability to operate trains or have sufficient locomotive power in certain locations. With the foregoing discussion in mind, FRA seeks comments from interested parties on the following:

• How frequently do railroads currently inspect locomotive air conditioning units for proper operation?

• What would an appropriate interval for testing and maintaining locomotive equipped with air conditioning units?

• What movement or use restrictions should be applied to a locomotive equipped with an air conditioning unit when discovered with a cab temperature that exceeds the maximum limit?

• What maintenance or repair requirements would be appropriate if a lead/occupied locomotive has an air conditioning unit fail en route, when the ambient temperature exceeds a regulatory requirement?

• What maintenance or repair requirements would be appropriate if an air conditioning unit in a lead or occupied locomotive is found to be inoperative or operating insufficiently at pre-departure (after the train has been made up and the air-brake test has been performed)?

• Should consistent management be a factor for determining when an inoperative air conditioning unit will properly be repaired or switched out? Why or why not?

5. What are the potential costs of complying with a maximum locomotive cab temperature limit as described in the preceding discussions?

The cost implications of this proposal will depend on various factors, including temperature requirements, maintenance requirements, repair procedures, and the treatment of existing locomotives already equipped with air conditioning units. The regulatory burden may result from equipping new and remanufactured locomotives with air conditioning units. However, because most, if not all, new locomotives are currently purchased with air conditioning units already installed, the burden would likely come from the testing and maintenance, including repair, of air conditioning units.

FRA estimates that the railroad industry purchases approximately 600-700 new locomotives a year. Most of the new locomotives are purchased by Class I freight railroads. Other railroads such as Alaska Railroad, Amtrak, and some commuter railroads also purchase new locomotives. Generally, FRA does not anticipate that Class III railroads will purchase new locomotives, and thereby, be affected by this proposal in the immediate or near future. FRA is considering requiring air conditioning units on only new or remanufactured locomotives. FRA believes that most, if not all, new and remanufactured locomotives are manufactured with air conditioning units, and most locomotives that receive life extending modifications are also likely equipped. FRA requests information regarding the specifications for air conditioning units currently installed on new, remanufactured, and overhauled locomotives. Specifically, FRA seeks information regarding temperature and humidity capabilities. FRA also seeks information regarding the tolerances of the units in the locomotive running environment, which may include over 12 hours of continuous operation at high temperature and humidity levels. To the extent that new locomotives are already equipped with air conditioning units that can function well in the environment in which they operate, there would be little or no additional regulatory cost associated with the basic requirement to equip new locomotives with such units.

Requirements for periodic testing of air conditioning units could also add regulatory cost. FRA believes that most railroads are prudently testing the air conditioning units on their locomotives annually or periodically at shorter intervals. These tests are most likely conducted when the locomotive is already out of service for a 92 day inspection. FRA requests information on the frequency of testing and the cost associated with conducting the tests. Requirements for repairing air conditioning units could also add regulatory cost. In order to develop a cost analysis of the maintenance and repairs that would be needed to properly utilize the AC units, FRA requests information regarding the frequency of air conditioning failures and the nature of common defects as well as the costs associated with making the repairs. FRA also requests information regarding reasonable ways to address air conditioning units that are discovered defective outside of the maintenance window. FRA estimates that an air conditioning unit has a life-cycle of 8 and 10 years. The cost for testing and repairing air conditioning units on locomotives is most likely the highest cost element of this proposal. However, the potential regulatory cost for such a proposal would depend on the actual requirement that is promulgated. The cost would increase if a lead locomotive is required to be switched out after the initial air-brake test, or if the AC unit on the lead locomotive failed en route.

FRA seeks information and comments on the following issues related to costs:

• What are the costs associated with increased maintenance and modifications to locomotive equipped with air conditioning units to ensure they operate as intended?

• What would be the expected costs to equip new and remanufactured locomotives with air conditioners that are capable of satisfying the type of maximum temperature limit discussed above?

• How many new locomotives are currently equipped with air conditioning units?

• What operational burdens would be placed on the industry should a maximum cab temperature limit be included in the final rule?

F. Headlights

The proposed revisions to the headlight provisions would incorporate waiver FRA 2005-23107 into part 229. This would permit a locomotive with one failed 350-watt incandescent lamp to operate in the lead until the next daily inspection, if the auxiliary lights remain continuously illuminated. Currently, a headlight with only one functioning 200-watt lamp is not defective and does not affect the permissible movement of a locomotive. However, a locomotive with only one functioning 350-watt lamp in the headlight can be moved only pursuant to section 229.9. The proposed treatment of locomotives with a failed 350-watt lamp would allow flexibility, and be consistent with the current treatment of 200-watt lamps.

Testing showed that production tolerances for the 350-watt incandescent lamp cause most individual lamps to fall below the 200,000 candela requirement at the center of the beam. As such, two working 350-watt lamps are required to ensure 200,000 candela at the center of the beam. Testing also showed that the 350-watt incandescent lamp produced well over 100,000 candela at the center of the beam, and its high power and the position of the filament within the reflector causes the lamp to be brighter than the 200-watt

incandescent lamp at all angles greater than approximately 2.5 degrees off the centerline. In other words, the only area in which the 350-watt lamp produces insufficient illumination is within 2.5 degrees of the centerline. The proposed requirement would compensate for the reduced amount of illumination by requiring the auxiliary lights to be aimed parallel to the centerline of the locomotive and illuminate continuously.

Significantly, in 1980, when FRA promulgated the 200,000 candela requirement it could not take into consideration the light produced by auxiliary lights, because they were not required and not often used. Today, there is light in front of a locomotive produced by both the headlight and the auxiliary lights. When discussing AAR's request that the final rule permit locomotives with a nonfunctioning 350-watt lamp to operate without restriction, FRA stated that AAR's comments “may have merit when considering locomotives with auxiliary lights aimed parallel to the centerline of the locomotive.”

See

69 FR 12533. While the auxiliary lights on some locomotives are aimed parallel to the centerline, on many others the auxiliary lights are aimed so that their light will cross 400 feet in front of the locomotive. The regulations only require auxiliary lights to be aimed within 15 feet of the centerline. FRA is not aware of a basis for assuming that the light from two auxiliary lights complying with the regulations in any fashion would be insufficient, when combined with a 350-watt headlight lamp.

G. Alerters

Alerters are a common safety device intended to verify that the locomotive engineer remains capable and vigilant to accomplish the tasks that he or she must perform. An alerter will initiate a penalty brake application to stop the train if it does not receive the proper response from the engineer. As an appurtenance to the locomotive, an alerter must operate as intended when present on a locomotive. Section 20701 of Title 49 of the United States Code prohibits the use of a locomotive unless the entire locomotive and its appurtenances are in proper condition and safe to operate in the service to which they are placed. Under this authority, FRA has issued many violations against railroads for operating locomotives equipped with a non-functioning alerter.

Alerters are currently required on passenger locomotives by § 238.237 (67 FR 19991 (2002)), and are present on most freight locomotives. A long-standing industry standard currently contains more stringent requirements than provisions being proposed in this document.

See

AAR Standard S-5513, “Locomotive Alerter Requirements,” (November 26, 2007).

After several productive meetings, the Working Group reached partial consensus on requirements related to the regulation of alerters. For those areas where agreement could not be reached, FRA has fully considered the information and views of the Working Group members in developing the proposed requirements related to locomotive alerters. The proposed provisions also take into consideration recommendations made by the NTSB.

On July 10, 2005, at about 4:15 a.m., two Canadian National (CN) freight trains collided head-on in Anding, Mississippi. The collision occurred on the CN Yazoo Subdivision, where the trains were being operated under a centralized traffic control signal system on single track. Signal data indicated that the northbound train, IC 1013 North, continued past a stop (red) signal at North Anding and collided with the southbound train, IC 1023 South, about

1/4

mile beyond the signal. The collision resulted in the derailment of six locomotives and 17 cars. Approximately 15,000 gallons of diesel fuel were released from the locomotives and resulted in a fire that burned for roughly 15 hours. Two crewmembers were on each train; all four were killed. As a precaution, about 100 Anding residents were evacuated; fortunately, they did not report any injuries. Property damages exceeded $9.5 million and clearing and environmental cleanup costs totaled approximately $616,800.

The NTSB has issued a series of safety recommendations that would require freight locomotives to be equipped with an alerter. On April 25, 2007, the NTSB determined that a contributing cause of the head-on collision in Anding, Mississippi was the lack of an alerter on the lead locomotive, which if present, could have prompted the crew to be more attentive to their operation of the train.

See

Recommendation R-07-1. That recommendation provides as follows: “[r]equire railroads to ensure that the lead locomotives used to operate trains on tracks not equipped with a positive train control system are equipped with an alerter.”

Another NTSB recommendation relating to locomotive alerters was issued as a result of an investigation into the collision of two Norfolk Southern Railway freight trains at Sugar Valley, Georgia, on August 9, 1990. In that incident, the crew of one of the trains failed to stop at a signal. The NTSB concluded that the engineer of that train was probably experiencing a micro-sleep or was distracted. Based on testing, it was determined that as the train approached the stop signal, the alerter would have initiated an alarm cycle. The NTSB concluded that the engineer “could have cancelled the alerter system while he was asleep by a simple reflex action that he performed without conscious thought.” As a result of the investigation, the NTSB made the following recommendation FRA: “[i]n conjunction with the study of fatigue of train crewmembers, explore the parameters of an optimum alerter system for locomotives.

See

NTSB Recommendation R-91-26.

Typically, alerter alarms occur more frequently as train speed increases. Unlike the Sugar Valley, Georgia, accident in which the train had slowed and entered a siding before overrunning a signal, the northbound train in the Anding, Mississippi, remained on the main track at higher speeds. Had an alerter been installed, there was a four minute time period after passing the approach signal during which the alerter would have activated four to five times. It seems unlikely that the engineer could have reset the alerter multiple times by reflex action without any increase in his awareness. Therefore, the NTSB determined that an alerter likely would have detected the lack of activity by the engineer and sounded an alarm that could have alerted one or both crewmembers. Had the crew been incapacitated or not responded to the alarm, the alerter would have automatically applied the brakes and brought the train to a stop. The NTSB concluded that had an alerter been installed on the lead locomotive of the northbound train, it may have prevented the collision.

The NTSB also closely examined the use of locomotive alerters when investigating the sideswipe collision between two Union Pacific Railroad (UP) freight trains in Delia, Kansas, on July 2, 1997. In that accident, a train entered a siding but did not stop at the other end, and it collided with a passing train on the main track. The NTSB concluded that “had the striking locomotive been equipped with an alerter, it may have helped the engineer stay awake while his train traveled through the siding.” As a result of its investigation, the NTSB made the following recommendation to the FRA: “[r]evise the Federal regulations to require that all locomotives operating on lines that do not have a positive train separation system be equipped with a cognitive alerter system that cannot be

reset by reflex action.”

See

NTSB Recommendation R-99-53.

FRA believes that the proposed provisions related to alerters incorporate existing railroad practices and locomotive design and address each of the NTSB recommendations discussed above.

F. Locomotive Electronics

After extensive discussion, the Working Group reached consensus on the proposed requirements related to locomotive electronic systems. Advances in electronics and software technology have resulted in changes to the implementation of locomotive control systems. Technology changes have allowed the introduction of new functional capabilities as well as the integration of different functions in ways that advance the building, operation, and maintenance of locomotive control systems. FRA encourages the use of these advanced technologies to improve safe, efficient, and economical operations. However, the increased complexities and interactions associated with these technologies increase the potential for unintentional and unplanned consequences, which could adversely affect the safety of rail operations.

The proposed regulation would prescribe safety standards for safety-critical electronic locomotive control systems, subsystems, and components including requirements to ensure that the development, installation, implementation, inspection, testing, operation, maintenance, repair, and modification of those products will achieve and maintain an acceptable level of safety. This proposal would also prescribe standards to ensure that personnel working with safety-critical products receive appropriate training. Of course, each railroad would be able to prescribe additional or more stringent rules, and other special instructions, provided they are consistent with the proposed standards.

FRA also recognizes that advances in technology may further eliminate the traditional distinctions between locomotive control and train control functionalities. Indeed, technology advances may provide for opportunities for increased or improved functionalities in train control systems that run concurrent with locomotive control. Train control and locomotive control, however, remain two fundamentally different operations with different objectives. FRA does not want to restrict the adoption of new locomotive control functions and technologies by establishing regulations for locomotive control systems intended to address safety issues associated with train control.

G. Periodic Locomotive Inspection

The Locomotive Safety Standards Working Group was unable to reach consensus on whether current locomotive inspection intervals and procedures are appropriate to current conditions. Recently, on June 22, 2009, FRA granted the Burlington Northern Santa Fe's (BNSF) request for waiver from compliance with the periodic locomotive inspection requirements.

See

Docket FRA-2008-0157. BNSF stated in their request that each of the subject locomotives are equipped with new self-diagnostic technology and advanced computer control, and that the locomotives were designed by the manufacturer to be maintained at a six month interval.

In the waiver petition, BNSF requested that the required 92-day periodic inspection be performed at 184 day intervals on subject locomotives, if qualified mechanical forces perform at least one of the required daily inspections every 31 days and FRA non-complying conditions that are discovered en-route or during any daily inspection are moved to a mechanical facility capable of making required repairs. This approach to conducting inspections based on current conditions may be suitable to other similarly situated railroads. FRA seeks comment on this issue.

H. Rear End Markers

In 2003, the U.S. DOT's Office of Governmental Affairs received a letter from Senator Feinstein on behalf of her constituent, Mr. David Creed. Mr. Creed suggested a revision to FRA's rear end marker regulation, which is found in part 221. Specifically, Mr. Creed suggested that Federal regulations should require trains with distributive power on the rear to have a red marker, because a red marker would make for a safer operating environment by giving a rail worker a better indication of whether he or she is looking at the rear or front end of the train. Mr. Creed made reference to a recent fatality involving a BNSF conductor who jumped from his train because he observed a headlight that he mistakenly believed was a train on the same track, directly ahead of his train. As FRA is currently reviewing its existing requirements for locomotive safety standards, FRA requests comments on this rear end marker issue.

I. Locomotive Horn

FRA solicits comments regarding methods currently being used by railroads to test locomotive horns as required by § 229.129. More than one method of testing will satisfy the current testing requirements. FRA is considering whether certain current methods of testing should be preferred, or additional methods should be permitted.

J. Risk Analysis Standardization and Harmonization

FRA has been actively implementing, whenever practical, performance regulations based on the management of risk. In the process of doing so, a number of different system safety requirements, each unique to a particular regulation, have been promulgated. While this approach is consistent with the widely, and deeply, held conviction that risk management efforts should be specifically tailored for individual situations, it has resulted in confusion regarding the applicable regulatory requirements. This, in turn has defeated one of the primary objectives of using performance based regulations, reduction in costs from simplifying regulations.

The problem is not the concept of tailoring, but the lack of standard terms, basic tools, and techniques. Numerous directives, standards, regulations, and regulatory guides establish the authority for system safety engineering requirements in the acquisition, development, and maintenance of hardware and software-based systems. The lack of commonality makes extremely difficult the task of training system safety personnel, evaluating and comparing programs, and effectively monitoring and controlling system safety efforts for the railroads, their vendors, and the government. Even though tailoring will continue to be an important system safety concept, at some point FRA believes the proliferation of techniques, worksheets, definitions, formats, and approaches has to end, or at least some common ground has to be established.

To accomplish this, FRA proposes to harmonize risk management process requirements across all regulations that have been promulgated by the agency. This will implement a systematic approach to hardware and software safety analysis as an integral part of a project's overall system safety program for protecting the public, the worker, and the environment. Harmonization enhances compliance and improves the efficiency of the transportation system by minimizing the regulatory burden. Harmonization also facilitates interoperability among products and systems, which benefits all stakeholders. By overcoming institutional and financial barriers to

technology harmonization, stakeholders could realize lower life-cycle costs for the acquisition and maintenance of systems. To this end, FRA requests comments on appropriate, cost effective, performance based standards containing precise criteria to be used consistently as rules, guidelines, or definitions of characteristics, to ensure that materials, products, processes and services are fit for purpose, and present an acceptable level of risk that are applicable across all elements of the railroad industry.

K. MCB Contour 1904 Coupler

FRA believes that the existing requirement related to MCB contour 1904 couplers, contained in § 229.61(a)(1), is out dated. The existing regulation prohibits the use of a MCB contour 1904 coupler, if the distance between the guard arm and the knuckle nose is more than 5

1/8

inches. FRA understands that the MCB contour 1904 coupler design has not been used in the railroad industry since the 1930s. Most, if not all, of the current locomotive fleet are equipped with Type E couplers. For these couplers, the maximum distance permitted between the guard arm and the knuckle nose is 5

5/16

inches, as identified in § 229.61(a)(1). FRA seeks comments as to whether any locomotives are currently being operated with MCB contour 1904 couplers, and whether the requirement related to MCB contour 1904 couplers should be removed from the locomotive safety standards.

L. Locomotive Cab Securement

FRA is evaluating securement options for locomotive cab doors. Cab securement can potentially prevent unauthorized access to the locomotive cab, and thereby increase train crew safety. However, cab securement demands a careful and balanced approach because when emergencies requiring emergency egress or rescue access occur, securement systems must not hinder rapid and easy egress by train crews or access by emergency responders without undue delay. FRA is exploring how to achieve greater safety by properly balancing these concerns.

On June 20, 2010, a CSX Conductor was shot and killed in the cab of the controlling locomotive of his standing train in New Orleans, during an attempted robbery. The Locomotive Engineer assigned to that train was also wounded by gunfire during the incident. This incident was particularly tragic, because it resulted in a fatality. By letter dated September 22, 2010, in response to this incident, the BLET requested that FRA require the use of door locks on locomotive cab doors. Under current industry practice, many locomotive cab doors are not locked. According to BLET's letter, requiring the use of door locks would impede unauthorized access to the locomotive cab and reduce the risk of violence to the train crew when confronted by a potential intruder. FRA solicits comments regarding the impact that a locked door would have on train crew safety. More specifically, FRA poses the following questions regarding existing locomotive doors:

• Can a door lock be broken when struck by a heavy, solid object like a baseball bat, sledge hammer, or crowbar?

• Can a door lock be broken by gunfire?

• If a keyed lock is used, is it possible that the lock can be picked by an unauthorized person?

• If a keyed lock is used, is it possible for the key to be lost, stolen, or duplicated without authorization?

• If the door is locked, can a potential intruder gain access to the cab by breaking through the door's window?

• If the door is locked, can gunfire penetrate the door's window, the door itself, or another portion of the car body?

In addition, FRA requests comments regarding the potential effectiveness of using different locking mechanisms to secure the locomotive cab. A portion of the industry is currently equipping new locomotives with dead-bolt door locks. Door locks with quick release mechanisms, keyed locks, and biometric locks could also potentially be used to secure a locomotive cab. FRA seeks comments regarding the potential benefits and concerns for each type of locking mechanism. FRA also requests information concerning the effect of door locks during emergency situations requiring rapid and easy evacuation of the locomotive compartment or rescue access. After an accident or other life threatening situation, a train crew may need to quickly exit a locomotive cab, particularly in the event of a fire or a hazardous materials release, and a train crew may require assistance from emergency responders when injured or incapacitated. To help solicit an abundance of information, FRA poses the following questions:

• To what extent will the use of a door lock to secure the locomotive cab hinder rapid and easy egress of the train crew?

• If keyed locks are used, should emergency responders be given keys?

• To what extent will emergency responders' access to the cab be unduly delayed by door locks?

• Will door locks prohibit emergency responders' access to the cab when the crew is incapacitated?

• How can locomotive cab doors be secured without hindering the crews' ability to egress rapidly and easily or emergency responders' ability to gain access without undue delay?

FRA also requests information related to the costs associated with installing and maintaining various locomotive cab locking mechanisms. More specifically, for existing locomotives how many do not have locking mechanisms? And, what type of locking device would be the most cost effective to install and maintain and also adequately address the three safety needs described above. Finally, are there any locomotives in the US (existing or new) that would be particularly difficult or expensive to equip with a locking mechanism? If so, which locomotives are they, and how many of these locomotives exist? FRA also requests comment as to how many locomotives are currently being manufactured for domestic service with these devices? If FRA decides to establish a uniform cab securement requirement for new locomotives, what type of locking mechanism is recommended, and why? Finally, how much would such a locking mechanism cost to install and maintain on new and existing locomotives?

VI. Section-by-Section Analysis

This section-by-section analysis of the proposed rule is intended to explain the rationale for each section of the proposed rule. The analysis includes the requirements of the proposal, the purpose that the proposal would serve in enhancing locomotive safety, the current industry practice, and other pertinent information. The proposed regulatory changes are organized by section number. FRA seeks comments on all proposals made in this NPRM.

A. Proposed Amendments to Part 229 Subparts A, B, and C

Section 229.5 Definitions

This section contains a set of definitions to be introduced into the regulation. FRA intends these definitions to clarify the meaning of important terms as they are used in the text of the proposed rule. The proposed definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. The definition of alerter introduces an unfamiliar term which requires further discussion.

“Alerter” means a device or system installed in the locomotive cab to promote continuous, active locomotive

engineer attentiveness by monitoring select locomotive engineer-induced control activities. If fluctuation of a monitored locomotive engineer-induced control activity is not detected within a predetermined time, a sequence of audible and visual alarms is activated so as to progressively prompt a response by the locomotive engineer. Failure by the locomotive engineer to institute a change of state in a monitored control, or acknowledge the alerter alarm activity through a manual reset provision, results in a penalty brake application that brings the locomotive or train to a stop. For regulatory consistency FRA is proposing the same definition as the one provided in part 238. FRA intends for a device or system that satisfies an accepted industry standard including, but not limited to, AAR Standard S-5513, “Locomotive Alerter Requirements,” dated November 26, 2007, to constitute an alerter under this definition.

New definitions for terms related to remote control locomotives are also being proposed. The proposed terms, “Assignment Address,” “Locomotive Control Unit,” “Operator Control Unit,” “Remote Control Locomotive,” “Remote Control Operator,” and “Remote Control Pullback Protection” are common to the industry. On February 14, 2001, FRA published a Safety Advisory in which FRA issued recommended guidelines for conducting remote control locomotive operations.

See

66 FR 10340, Notice of Safety Advisory 2001-01, Docket No. FRA-2000-7325. The Safety Advisory includes definitions for each of the proposed terms. FRA's proposed definitions for these terms are informed by the Safety Advisory and Working Group discussions.

“Controlling locomotive” means a locomotive from where the operator controls the traction and braking functions of the locomotive or locomotive consist, normally the lead locomotive. This proposed definition is being added to help identify which locomotives are required to be equipped with an alerter, and when the alerter is required to be tested.

Section 229.7 Prohibited Acts and Penalties

Minimal changes are being proposed in this section to update the statutory reference and the statutory penalty information.

Section 229.15 Remote Control Locomotives

After working with the railroad industry for many years to provide a framework for the safe use, development, and operation of remote control devices, FRA proposes to formally codify safety standards for remote control operated locomotives. For convenience, FRA proposes to divide the section into two headings: Design and operation, and inspection and testing.

Generally, the proposed design and operation requirements are intended to prevent interference with the remote control system, maintain critical safety functions if a crew is conducting a movement that involves the pitch and catch of control between more than one operator, tag the equipment to notify anyone who would board the cab that the locomotive is operating remote control, and bring the train to a stop if certain safety hazards arise. The proposed inspection and testing requirements are intended to ensure that each remote control locomotive would be tested each time it is placed in use, and ensure that the operator is aware of the testing and repair history of the locomotive. It is FRA's understanding that virtually all railroads that operate remote control locomotives have already adopted similar standards, and that they have proven to provide consistent safety for a number of years.

Section 229.19 Prior Waivers

FRA proposes to update the language in § 229.19 to address the handling of prior waivers of requirements in part 229 under the proposed rule. A number of existing waivers are incorporated into the proposed rule, others may no longer be necessary in light of the proposal. The proposal allows railroads the opportunity to assert that their existing waiver is necessary, and should be effective after the proposed rule is adopted.

On February 28, 2007, in a notice, FRA proposed the sunset of certain waivers granted for the existing locomotive safety standards. 72

FR

9059. The proposal urged grantees to submit existing waivers for consideration for renewal in light of potential revisions to the regulation, and explained FRA's interest in treating older waivers consistently with newer waivers that were limited to five years. The five year limitations were issued as far back as March of 2000. The notice also established a docket to receive waivers for consideration.

In addition, the notice discussed the possibility of requiring current grantees to re-register waivers. To streamline the process, FRA's proposal does not include a re-registration requirement.

Section 229.20 Electronic Record-keeping

As explained in proposed paragraph (a), FRA would establish standards for electronic record-keeping that a railroad may elect to utilize to comply with many of the record-keeping provisions contained in this part. As with any records, replacing a paper system that requires the physical filing of records with an electronic system and the large and convenient storage capabilities of computers, will result in greater efficiency. Increased safety will also result, as railroads will be able to access and share records with appropriate employees and FRA quicker than with a paper system. To be acceptable, electronic record-keeping systems must satisfy all applicable regulatory requirements for records maintenance with the same degree of confidence as is provided with paper systems. The proposed requirements would be consistent with a series of waivers that FRA has granted since April 3, 2002 (Docket Number FRA-2001-11014), permitting electronic record-keeping with certain conditions intended to ensure safety. In this proposed section, FRA is adopting the Working Group's consensus regulatory text for electronic record-keeping that was approved and recommended to FRA by the RSAC on September 10, 2009. The proposed standards are organized into three categories: (1) Design requirements, (2) operational requirements, and (3) availability and accessibility requirements.

(b) Design requirements.

To properly serve the interest of safety, records must be accurate. Inspection of accurate records will reveal compliance or non-compliance with Federal regulations and general rail safety practices. To ensure the authenticity and integrity of electronic records it is important that security measures be in place to prevent unauthorized access to the data in the electronic record and to the electronic system. Proposed paragraphs (b)(1) through (b)(5) are intended to help secure the accuracy of the electronic records and the electronic system by preventing tampering, and other forms of interference, abuse, or neglect.

(c) Operational requirements.

Proposed paragraphs (c)(1) and (c)(2) are intended to utilize the improved safety capabilities of electronic systems. The requirements of paragraph (c)(1) would cover both inspection and repair records. In situations when the Hours of Service laws would potentially be violated, the electronic system would be required to prompt the person to input

the data as soon as he or she returns to duty.

(d) Access and availability requirements.

To properly serve the interest of safety, the electronic records and the electronic record-keeping system must be made available and accessible to the appropriate people. FRA must have access to the railroads' electronic records and limited access to the electronic record-keeping systems to carry out its investigative responsibilities. During Working Group discussions, a member representing railroad management explained that his railroad currently can produce an electronic record within ten minutes, but that a paper record may take up to two weeks. As such, the proposal provides up to fifteen days to produce paper copies and requires that the electronic records will be provided upon request.

Section 229.23 Periodic Inspection: General

This section would require railroads that choose to maintain and transfer records as provided for in proposed § 229.20, to print the name of the person who performed the inspections, repairs, or certified work on the Form FRA F 6180-49A that is displayed in the cab of each locomotive. This would allow the train crew to know who did the previous inspection when they board the locomotive cab.

Section 229.25 Test: Every Periodic Inspection

Two additional paragraphs are proposed in this section to include inspection requirements for remote control locomotives and locomotive alerters during the 92-day periodic inspection. FRA is proposing new regulations for remote control locomotives,

see

proposed § 229.15, and locomotive alerters,

see

proposed section § 229.140. For convenience, the maintenance for remote control locomotives and locomotive alerters that would properly be conducted at intervals matching the 92-day periodic inspection, are being incorporated into this section. The existing paragraphs would also be reorganized for convenience.

Section 229.27 Annual Tests

FRA proposes to amend this section by deleting the following existing language from paragraph (b): “The load meters shall be tested” from paragraph (b). The modification would clarify the regulatory language to reflect the current understanding and application of the load meter requirement. FRA issued a clarification for load meters on AC locomotives on June 15, 1998. In a letter to GE Transportation Systems in March 2005, FRA issued a similar clarification of the requirements related to testing load meters on DC locomotives. The letter explained that on locomotives that are not equipped with load meters there are no testing requirements. Similarly, if a locomotive is equipped with a load meter but is using a proven alternative method for providing safety, and no longer needs to ascertain the current or amperage that is being applied to the traction motors, there are no testing requirements for the dormant load meter. Load meters have been eliminated or deactivated on many locomotives because the locomotives are equipped with thermal protection for traction motors and no longer require the operator to monitor locomotive traction motor load amps.

FRA also proposes removing existing paragraph (a) from this section and merging it into the brake requirements contained in proposed § 229.29. Proposed § 229.29 concerns brake maintenance, and as discussed below, would be reorganized by this proposal to consolidate all existing locomotive brake maintenance into one regulation.

Section 229.29 Air Brake System Calibration, Maintenance, and Testing

This section would be re-titled, and existing requirements would be consolidated and better organized to improve clarity. Because proposed § 229.29 concerns only brakes, it would be re-titled, “Air Brake System Calibration, Maintenance, and Testing” to more accurately reflect the section's content. Existing § 229.27(a), which also addresses brake maintenance would be integrated into this section for convenience and clarity. Record-keeping requirements for this section would be moved from existing paragraphs (a) and (b) and merged into a single new proposed paragraph (g). The date of air flow method (AFM) indicator calibration would also be required to be recorded and certified in the remarks section of Form F6180-49A under paragraph (g).

The proposed brake maintenance in this section would extend the intervals at which required brake maintenance is performed for several types of locomotive brake systems. The length of the proposed intervals reflects the results of studies and performance evaluations related to a series of waivers starting in 1981 and continuing to present day. Overall, the type of brake maintenance that would be required would remain the same. The current regulation provides for two levels of brake maintenance. Existing § 229.27(a) requires routine maintenance for filters and dirt collectors, and brake valves. Existing § 229.29(a) requires maintenance for certain brake components including parts that can deteriorate quickly and pieces of equipment that contain moving parts. To better tailor the maintenance requirements to the equipment needs and based on information ascertained from various studies and performance evaluations, filters and dirt collector maintenance would be required more frequently than brake valve maintenance. As a result, the proposal provides for three levels of brake maintenance instead of two.

Studies and performance evaluations of brake systems continue, and may reach conclusion by the publication of a final rule in this proceeding. In an effort to incorporate FRA's findings in a timely manner, and produce an up-to-date final rule, FRA will consider adjusting the proposed regulations based on its findings. Specifically, FRA is currently studying the effect, if any, that air dryers have on the maintenance of brake systems. FRA seeks comment on this issue.

Proposed paragraph (f)(2) would set maintenance intervals at four years for slug units that are semi-permanently attached to a host locomotive. Slugs are used in situations where high tractive effort is more important than extra power, such as switching operations in yards. A railroad slug is an accessory to a diesel-electric locomotive. It has trucks with traction motors but is unable to move about under its own power, as it does not contain a prime mover to produce electricity. Instead, it is connected to a locomotive, called the host, which provides current to operate the traction motors.

FRA is proposing to incorporate conventional locomotive requirements from part 238 into this section for convenience. FRA believes that there may be some benefit to moving all of the locomotive requirements, including MU locomotives, from part 238 to part 229. FRA seeks comments on this issue.

FRA is also considering whether moving AFM indicator calibration requirements from § 232.205(c)(iii) into this section would be appropriate. Currently, both the calibration and testing requirements for the AFM are contained in part 232. While the testing requirements are most closely related to the subject matter addressed by part 232, power brakes; FRA believes that the calibration requirements are more closely related to the locomotives. FRA requests comments on this issue.

Section 229.46 Brakes: General

FRA proposes to clarify this section, and provide standards for the safe use of a locomotive with an inoperative or ineffective automatic or independent brake control system. The proposal would allow a locomotive with a defective air brake control valve to run until the next periodic inspection required by § 229.23. However, the requirement to place a tag on the isolation switch would notify the crew that the locomotive could be used only according to § 229.46(b) until it is repaired.

The proposal would also clarify what it means for the brakes to operate as intended, as required by this section. Some Working Group members asserted that the automatic and independent brake valves are not intended to function on a trailing unit that is isolated from the train's air brake system, therefore they were “operating as intended” when not operating at all. Generally, when a unit is found with an automatic or independent brake defect, the railroad may choose to move the unit to a trailing position, and because it is in a trailing position, it may be dispatched without record of the need for maintenance. Proposed paragraph (b)(1) would explicitly permit units with defective independent brakes to be moved in the trailing position. Proposed paragraphs (b)(2) through (b)(6) are intended to ensure that the trailing unit is handled safely, and that appropriate records are kept and repairs are made.

Section 229.85 High Voltage Markings: Doors, Cover Plates, or Barriers

FRA proposes to clarify this section. The purpose of this section is to warn people of a potential shock hazard before the high voltage equipment is exposed. A conspicuous marking on the last cover, door, or barrier guarding the high voltage equipment satisfies the purpose of this section. Many locomotives have multiple doors in front of high voltage equipment. Often there is a door on the car body that provides access to the interior of the car body which contains high voltage equipment that is guarded be an additional door, for example, main generator covers and electrical lockers. FRA's intent has been to require the danger marking only on the last door that guards the high voltage equipment. Thus, FRA is proposing to slightly modify the language currently contained in this section to make this intent clear and unambiguous. To further clarify the intent of this section, FRA is also proposing to change the title.

Section 229.114 Steam Generator Inspections and Tests

FRA proposes to add this section in order to consolidate the steam generator requirements contained in various sections of part 229 into a single section. Currently, requirements related to steam generators can be found in §§ 229.23, 229.25, and 229.27. Consolidating the requirements into one section will make them easier to find for the regulated community, and help simplify and clarify each of the sections that currently include a requirement related to steam generators. The proposal is not intended to change the substance of any of the existing requirements.

Section 229.119 Cabs, Floors, and Passageways

In this section, FRA proposes to raise the minimum allowable temperature in an occupied locomotive cab from 50 degrees to 60 degrees. Each occupied locomotive cab would be required to maintain a minimum temperature of 60 degrees Fahrenheit when the locomotive is in use. FRA recognizes that it takes some time for the cab to heat up when the locomotive is first turned on, and that some crew members may prefer to work in slightly cooler temperatures and temporarily turn off the heater. Thus, FRA would only apply this requirement in situations where the locomotive has had sufficient time to warm-up and where the crew has not adjusted that temperature to a personal setting.

Section 229.123 Pilots, Snowplows, End Plates

FRA proposes to clarify paragraph (a) of this section. Based on experience applying the regulation, FRA recognizes that a reasonable, but improper, reading of the existing language could lead to the incorrect impression that a pilot or snowplow is not required to extend across both rails. To prevent this misunderstanding and to clarify the existing requirement, the phase “pilot, snowplow or end plate that extends across both rails”, would be substituted for “end plate which extends across both rails, a pilot, or a snowplow.” FRA believes this language makes clear that any of the above mentioned items must extend across both rails.

Due to the height of retarders in hump yards, it is not uncommon for the pilot, snowplow, or endplate to strike the retarder during ordinary hump yard operations. To accommodate the retarders and prevent unnecessary damage, FRA has issued waivers to permit more clearance (the amount of vertical space between the bottom of the pilot, snowplow, or endplate and the top of the rail) in hump yards, if certain conditions are met. FRA proposes the addition of paragraph (b) to this section to obviate the need for individual waivers by incorporating these conditions into the revised regulation. The conditions that were included in the waivers, are reflected in paragraphs (b)(1) through (b)(5).

The clearance requirement is intended to ensure that obstructions are cleared from in front of the locomotive and to prevent the locomotive from climbing and derailing. In FRA's experience, hump yards contain few obstructions that present this potential risk. The protections provided by a pilot, snowplow, or endplate are most desirable at grade crossings where the requirement would remain without change. This section also proposes various requirements to ensure that the train crew is notified of the increased amount of clearance and to prevent the improper use of the locomotive. The proposed provisions would require locomotives with additional clearance to be stenciled at two locations, notification to the train crew of any restrictions being placed on the locomotive, and noting the amount of clearance on the Form FRA 6180-49a that is maintained in the cab of the locomotive.

Section 229.125 Headlights and Auxiliary Lights

To incorporate an existing waiver, this proposed section would permit a locomotive to remain in the lead position until the next calendar day inspection after an en route failure of one incandescent PAR-56, 74-volt, 350-Watt lamp, if certain safety conditions are satisfied. FRA also proposes to extend the existing auxiliary intensity requirements at 7.5 degrees and 20 degrees to the headlight to clarify the criteria by which equivalence of new design head light lamps will be evaluated to achieve the same safety benefit.

Recently, information has been submitted by a manufacturer asserting that a new Halogen PAR-56, 350-watt, 74-volt lamp is equivalent to the incandescent PAR-56, 200-watt, 30-volt lamp mentioned in the existing regulation. FRA believes this claim has merit, and the Working Group concurred. Therefore, proposed references to that lamp have been added at appropriate locations in this section.

When one of two lamps in a headlight utilizing PAR-56, 350-watt, 74-volt lamps is inoperative, the center beam illumination for that headlight often drops below 200,000 candela due to manufacturing tolerances. FRA issued a

waiver that allows a locomotive equipped with these lamps to continue in service as a lead unit until the next calendar day inspection, when one of the two lamps becomes inoperative. Alternatively, when locomotives are handled under the general movement for repair provision of § 229.9, they are required to be repaired or switched to a trailing position at the next forward location where either could be accomplished. Proposed paragraph (a)(2)(i) of this section, incorporates the waiver into the regulation. Conditions listed in paragraphs (a)(2)(i)(A), (B), and (C) ensure that neither locomotive conspicuity at grade crossings, nor the illumination of the right of way will be compromised.

Section 229.133 Interim Locomotive Conspicuity Measures—Auxiliary External Lights

To update the regulations related to locomotive conspicuity, FRA proposes to remove the ditch light and crossing light requirements in § 229.133 that have been superseded by similar requirements in § 229.125. Section 229.133 currently contains interim locomotive conspicuity measures that were incorporated into the regulations in 1993 while the final provisions related to locomotive auxiliary lights were being developed.

See

58 FR 6899; 60 FR 44457; and 61 FR 8881. The requirements related to ditch lights and crossing lights in § 229.133 were later superseded by similar requirements in § 229.125, published in 1996, and revised in 2003 and 2004.

See

68 FR 49713; and 69 FR 12532. In 1996, locomotives equipped with ditch lights or crossing lights that were in compliance with the requirements of § 229.133, were temporarily deemed to be in compliance by § 229.125 (

i.e.,

grandfathered into the new regulation). However, that provision expired on March 6, 2000. As a result, ditch lights and crossing lights that comply with § 229.133 have not satisfied the requirements § 229.125 for more than 10 years. No substantive changes to the auxiliary external light requirements are being proposed in this section.

Section 229.140 Alerters

This section proposes to require locomotives that operate over 25 mph be equipped with an alerter and would require the alerter to perform certain functions. Today, a majority of locomotives are equipped with alerters. As an appurtenance to the locomotive, the alerters are required to function as intended, if present. The proposed requirements would increase the number of locomotives equipped with an alerter, and would provide specific standards to ensure that the alerters are used and maintained in a manner that increases safety.

During Working Group discussions, all parties agreed that an alerter would be considered non-compliant if it failed to reset in response to at least three of the commands listed in proposed paragraphs (b)(1) through (b)(6) of this section, in addition to the manual reset. It is important that locomotives equipped with an alerter adhere to minimum performance standards to ensure that the alerter serves its intended safety function. Utilizing several different reset options for the warning timing cycle increases the effectiveness of the alerter, as it would require differentiated cognitive actions by the operator. This will help prevent the operator from repeating the same reset many times as a reflex, without having full awareness of the action.

FRA believes that tailoring the alerter standard to a minimum operational speed will permit operational flexibility while maintaining safety. Many freight railroads only operate over small territories. They generally move freight equipment between two industries or interchange traffic with other, larger railroads. For these operations, the advantages of and the ability to move at higher speeds are non-existent. Moreover, movements at these lower speeds greatly reduce the risk of injury to the public and damage to equipment. For these reasons, there is a reduced safety need for requiring alerters on locomotives conducting these shorter low speed movements.

Proposed paragraph (f) would ensure that the locomotive alerter on the controlling locomotive is always tested prior to being used as the controlling locomotive. The test would be required during the trip that the locomotive is used as a controlling locomotive. This requirement would allow the crew to know the alerter functions as intended each time a locomotive becomes the controlling locomotive.

B. Proposed Part 229 Subpart E—Locomotive Electronics

Section 229.301 Purpose and Scope

The purpose of this subpart is to promote the safe design, operation, and maintenance of safety-critical electronic locomotive control systems, subsystems, and components. Safety-critical electronic systems identified in proposed paragraph (a) would include, but would not be limited to: directional control, graduated throttle or speed control, graduated locomotive independent brake application and release, train brake application and release, emergency air brake application and release, fuel shut-off and fire suppression, alerters, wheel slip/slide applications, audible and visual warnings, remote control locomotive systems, remote control transmitters, pacing systems, and speed control systems.

In proposed paragraph (b), FRA emphasizes that when a new or proposed locomotive control system function interfaces or comingles with a safety critical train control system covered by 49 CFR part 236 subpart H or I, the locomotive control system functionality would be required to be addressed in the train control systems Product Safety Plan or the Positive Train Control Safety Plan, as appropriate. FRA recognizes that advances in technology may further eliminate the traditional distinctions between locomotive control and train control functionalities. Indeed, technology advances may provide for opportunities for increased or improved functionalities in train control systems that run concurrent with locomotive control. Train control and locomotive control, however, remain two fundamentally different operations with different objectives. FRA does not intend to restrict the adoption of new locomotive control functions and technologies by imposing regulations on locomotive control systems intended to address safety issues associated with train control.

Section 229.303 Applicability

A safety analysis would be required for new electronic equipment that is deployed for locomotives. However, FRA does not intend to impose retroactive safety analysis requirements for existing equipment. FRA recognizes that railroads and vendors may have already invested large sums of time, effort, and money in the development of new products that were envisioned prior to this proposed rule. Accordingly, FRA intends to clarify that the proposed requirements of this subpart are not retroactive and do not apply to existing equipment that is currently in use. The rule would provide sufficient time for railroads and vendors to realize profits on their investment in new technologies made prior to the adoption of this rule. For that reason, FRA would provide a grace period in proposed paragraphs (a) and (b) to allow the completion of existing new developments. Any system that has not been placed in use by the end of the proposed grace period would be required to comply with the safety analysis requirements. Vendors would be required to identify these projects to

FRA within 6 months after the effective date of this rule. FRA believes this will avoid misunderstandings concerning which systems receive the grace period. FRA would consider any systems not identified to FRA within the 6-month window to be a new product start that would require a safety analysis.

In proposed paragraph (d), FRA makes clear that the exemption is limited in scope. Products that result in degradation of safety or a material increase in safety-critical functionality would not be exempt. Products with slightly different specifications that are used to allow the gradual enhancement of the product's capabilities would not require a full safety analysis, but would require a formal verification and validation to the extent that the changes involve safety-critical functions.

Section 229.305 Definitions

Generally, this proposed section standardizes similar definitions between 49 CFR part 236 subpart H and I, and this part. Although 49 CFR part 236 subpart H and I addresses train control systems, and this subpart addresses locomotive control systems, both reflect the adoption of a risk-based engineering design and review process. The definition section, however, does introduce several new definitions applicable to locomotive control systems.

The first new proposed definition is for “New or next-generation locomotive control system.” This term would refer to locomotive control products using technologies or combinations of technologies not in use on the effective date of this regulation, or without established histories of safe practice. Traditional, non-microprocessor systems, as well as microprocessor and software based locomotive control systems, are currently in use. These systems have used existing technologies, existing architectures, or combinations of these to implement their functionality. Development of a safety analysis to accomplish the requirements of this part would require reverse engineering these products. Reverse engineering a product is both time consuming and expensive. Requiring the performance of a safety analysis on existing products would present a large economic burden on both the railroads and the original equipment manufacturers (OEM). The economic burden would likely be significantly less for new combinations of technology and architectures that either implement existing functionality, or implement new functionality. These types of systems lack a proven service history. The safety analysis would mitigate the lack of a proven service history. The fundamental differences make it necessary to clearly distinguished between the two classes of locomotive control systems products.

“Product” means any safety critical locomotive control system processor-based system, subsystem, or component. The proposed definition identifies the covered systems that would require a safety analysis. Generally, locomotive manufactures consider their product to be the entire locomotive. This includes systems and subsystems. In this situation, the manufacturers' extensive knowledge of the product would allow them to conduct a safety analysis on the safety critical elements, including locomotive control systems. Similarly, major suppliers to locomotive manufacturers are also familiar with their own products. They too can clearly identify the safety critical elements and conduct the safety analysis accordingly. However, the same is not necessarily true for suppliers without extensive domain knowledge. These suppliers may not understand that their product requires a safety analysis, or may lack experience to recognize that the subsystems or components of the product are subject to the safety analysis of this part. Accordingly, the proposed definition of “product” indentifies the covered systems requiring a safety analysis.

The proposed definition of “Safety Analysis” would refer to a formal set of documentation that describes in detail all of the safety aspects of the product, including but not limited to procedures for its development, installation, implementation, operation, maintenance, repair, inspection, testing and modification, as well as analyses supporting its safety claims. A Safety Analysis (SA) is similar to the Product Safety Plan (PSP) required by 49 CFR part 236 subpart H or the Positive Train Control Safety Plan (PTCSP) required by 49 CFR part 236 subpart I for signal and train control systems. There is, however, a fundamental difference between the PSP or PTCSP safety analysis, and the SA proposed by this subpart. The PSP requires formal FRA approval and is required prior to the product being placed in use. This difference is rooted in fundamental differences between functionality of signal and train control and locomotive control. Although developers of an SA and a PSP or PTCSP may merge functions to operate together on a common platform, different safety analyses would be required. In order to ensure that there is no confusion between the safety analyses required by 49 CFR part 236 subparts H or I, and the safety analysis required in this subpart, a different definition is being proposed for the SA in this part.

The proposed definition of “Safety-critical,” as applied to a function, a system, or any portion thereof, would mean an aspect of the locomotive electronic control system that requires correct performance to provide for the safety of personnel, equipment, environment, or any combination of the three; or the incorrect performance of which could cause a hazardous condition, or allow a hazardous condition which was intended to be prevented by the function or system to exist. This definition is substantially similar to that found in 49 CFR part 236 subparts H and I. FRA recognizes that functionality differs between locomotive control systems and signal and train control systems, and further recognizes that the failure modes, the probabilities of failure, and the specific consequences of a failure differ. Despite these differences, the result is the same, creation of a hazardous condition that could affect the safety of the personnel, equipment, or the environment. The same is also true for systems designed to prevent adverse hazards in either domain locomotive control systems, signal and train control systems, or both. The failure of these types of systems would either create a new hazard, or allow a system intended to prevent a hazard to occur, regardless of domain.

Section 229.307 Safety Analysis

The proposed SA would serve as the principal safety documentation for a safety-critical locomotive control system product. Engineering best practice today recognizes that elimination of all risk is impossible. It recognizes that the traditional design philosophy, adversely affects a product's cost and performance. Consequently, designers have adopted a philosophy of risk management. Under this philosophy, designers consider both the consequences of a failure and the probability of a failure. Designers then select the appropriate risk mitigation technique. The risk mitigation philosophy reduces the impact of risk mitigation on a cost and performance compared to risk avoidance.

Fundamental to the execution of the risk management philosophy is the development and documentation of a SA that closely examines the relationship between consequences of a failure, probability of occurrence, failure modes, and their mitigation strategies. Proposed paragraph (a) of this section clearly recognizes this, and would address this need by requiring the

development of the SA documentation. It also recognizes that some developers of SAs may have little experience in risk-based design. Appendix F, also being proposed in this proceeding, would offer one approach. There are a number of equally effective or better approaches. FRA encourages railroads and OEMs to select an approach best suited to their business model. FRA would consider as acceptable any approach that would be equal to, or more effective than, the one outlined in proposed Appendix F.

Proposed paragraph (b), along with proposed paragraph (a) of this section would further establish a regulatory mandate for risk management design. FRA would require that railroads electing to allow a locomotive control system to be placed in use on its property would be required to ensure that an appropriate SA is completed first.

Generally, only a single SA would be required for a product. Therefore, FRA would recognize as acceptable any appropriate SA done under the auspices of one railroad, or a consortium of railroads. FRA also recognizes that railroads may lack the necessary product familiarity or technical expertise to prepare the SA. FRA anticipates that vendors will accomplish the bulk of preparing the SA in the course of the product development.

FRA also recognizes that product vendors may develop a product prior to its procurement by a railroad. In this situation, FRA would provide review and comment as requested by the vendor. This review by FRA would not represent an endorsement of the product. FRA expects that the vendor would work with a railroad, or a consortium of railroads, for final review and approval of the SA. FRA also wishes to make clear that the safety analysis would only be required for new or next generation locomotive control systems, as defined in § 229.305, or for substantive changes to an existing product. A SA would only be required when safety critical functionality is added or deleted from the product, or if there has been a significant paradigm shift in the underlying systems' architecture or implementation technologies, or a significant departure from widely accepted and service proven industry best past practices. The half-life of microprocessor-based hardware is relatively short, and the associated software is subject to change as technical issues are discovered with existing functionality. FRA anticipates that there will be maintenance-related changes of software, as well as replacement of functionally identical hardware components as exiting hardware undergoes repair or reaches the end of its useful service life. FRA emphasizes that the later type of changes to safety critical products, and changes to non-safety critical products, would not require a SA. The railroads and vendors have generally demonstrated, with a high degree of confidence, that existing systems can safely operate. In response to potential liability issues, railroads have shown they carefully examine the safety of a product prior to placing it in use. FRA fully expects that the railroads would continue to apply the same due diligence to new or next generation systems as they review the SA for these more complex products. Proposed paragraph (b) is intended to limit FRA's review of the SAs. This of course, would not restrict FRA where it appears that due diligence has not been exercised, there are indications of fraud and malfeasance, or the underlying technology and or architecture represent significant departures from existing practice.

In paragraph (b), FRA proposes that the SA would be required to establish with a high degree of confidence that safety-critical functions of the product will operate in a fail-safe manner in the operating environment in which it will be used. FRA anticipates that the railroad and vendor community would exercise due diligence in the design and review process prior to placing the product in use. Due diligence would typically be demonstrated by the completion, review and internal approval of the SA. The railroad would be required to determine that this standard has been met, prior to a product change, or placing a new or next generation product in use.

Paragraph (b) also proposes that the railroads identify appropriate procedures to immediately repair safety-critical functions when they fail. If the procedures are not followed, it would result in a violation for failing to comply with the SA.

Section 229.309 Safety Critical Changes and Failures

Safety critical microprocessors, like any electronics available today, are subject to significant change. To ensure that safe system operations continue in the event of planned changes to the software or hardware maintenance of hardware and software configurations is necessary. Failure to maintain hardware and software configurations increases the probability that unintended consequences will occur during system operation. These unintended consequences do not necessarily reveal themselves on initial installation and operation, but may occur much later.

Not all railroads may experience the same software or hardware faults. The SA developer's software and hardware development, configuration management, and fault tracking play an important role in ensuring system safety. Without an effective configuration management and fault reporting system, it is difficult, if not impossible to evaluate the associated risks. The number of failures experienced by one railroad may not exceed the number of failures identified in the SA, but the aggregate from multiple railroads may. The vendor is best positioned to aggregate identified faults, and is best able to determine that the design and failure assumptions exceed those predicted by the safety analysis. An ongoing relationship between a railroad and its vendor is therefore essential to ensure that problems encountered by the railroad are promptly reported to the vendor for correction, and that problems encountered and reported by other railroads to the vendor are shared with other railroads. Furthermore, changes to the system developed by the vendor must be promptly provided to all railroads in order to eliminate the reported hazard. A formal, contractual relationship would provide the best vehicle for ensuring this relationship. This section proposes to clearly identify the responsibility of railroads, and car owners, to establish such a relationship for both reporting hazards.

In order to accomplish their responsibilities, FRA expects that each railroad would have a configuration tracking system that will allow for the identification and reporting of hardware and software issues, as well as promptly implementing changes to the safety critical systems provided by the vendor regardless of the original reporting source of the problem. This section proposes to require railroads to identify, and create such a system if they have not already done so.

Proposed paragraph (b) would require immediate notification to a railroad of real or potential safety hazards identified by the private car suppliers and private car owners. This would allow affected railroads to take appropriate actions to ensure the safety of rail operations.

In proposed paragraph (c) the private car owner's configuration/revision control measures should be accepted by the railroad that would be using the car and implementing the system. The private car owner may have placed safety critical equipment on their car that is unfamiliar to the railroad using

that car. And the necessary contractual relationship that would be required in proposed paragraph (a)(3) of this section may not exist because the equipment in question is not part of the railroad's inventory. The private car owner would be expected to communicate with the railroad. This proposed requirement is intended to ensure that the safety-functional and safety-critical hazard mitigation processes are not compromised by changes to software or hardware. Reporting responsibilities, as well as the configuration management and tracking responsibilities would also extend to private car owners.

Section 229.311 Review of SAs

In proposed paragraph (a), FRA would require railroads to notify FRA before these locomotive electronic products are placed in use. As discussed above, FRA anticipates that review of the SA and amendments would be the exception, rather than the normal practice. However, FRA believes it would be appropriate to have the opportunity to review products and product changes to ensure safety. FRA would require the opportunity to have products and product changes identified to it, and the opportunity to elect a review. FRA also realizes that development of these products represents a significant financial investment, and that the railroad would like to utilize the products in order to recover its investment.

Proposed paragraph (b) reflects the expectation that FRA would decide whether to review an SA within 60 days after receipt of the requested information. Based on the information provided to FRA, the Associate Administrator for Safety would evaluate the need and scope of any review. Within 60 days of receipt of the notification required in paragraph (a), FRA will either decline to review or request to review. Examples of causes for a review or audit prior to placing the product in use would include products: With unique architectural concepts; that use design or safety assurance concepts considered outside existing accepted practices; and, products that appear to commingle the locomotive control function with a safety-critical train control processing function. FRA may convene technical consultations as necessary to discuss issues related to the design and planned development of the product. Causes for an audit of the SA would include, but are not limited to, such circumstances as a credible allegation of error or fraud, SA assumptions determined to be invalid as a result of in-service experience, one or more unsafe events calling into question the safety analysis, or changes to the product.

The following are some common reasons that FRA would likely need to review a product after it is placed in use: There is a credible allegation of error or fraud; SA assumptions are determined to be invalid as a result of in-service experience; or, the occurrence of one or more unsafe events related to that product.

If FRA elects not to review a product's SA, railroads would be able to put the product immediately in use after notification that FRA elects not to review. In the event that FRA would elect to review, FRA would attempt to complete the review within 120 days. FRA's ability to complete the review within 120 days would depend upon various factors such as: The complexity of the new product or product change, its deviation from current practice, the functionality, the architecture, the extent of interfacing with other systems, and the number of technical consultations required. Products reviewed by FRA under these circumstances may not be placed in use until FRA's review is complete.

Section 229.313 Product Testing Results and Records

This section would require that records of product testing conducted in accordance with this subpart be maintained. To effectively evaluate the degree to which the SA reflects real, as opposed to predicted performance, it is necessary to keep accurate records of performance for the product. In addition to collecting these records, it is also essential for regular comparison of the real performance results with the predicted performance. Thus, in this section FRA proposes that such records be maintained. Where the real performance, as measured by the collected data, exceeds the predicted performance of the SA, FRA proposes that no action would be required. If the real performance is worse than the predicted performance, this section proposes that the railroad take immediate action to improve performance to satisfy the predicted standard. Prompt and effective action would be required to bring the non-compliant system into compliance.

FRA would not expect a railroad to proactively evaluate their systems, and take corrective action prior to the system becoming non-compliant with the predicted performance standard. If an unpredicted hazard would occur the system would be required to be immediately evaluated, and the appropriate corrective action would need to be taken. FRA would not expect a railroad to defer any corrective action. In addition, FRA would not expect a railroad to proactively evaluate their systems, and take corrective action prior to the system becoming non-compliant with the designed performance specifications.

This section proposes to establish a requirement for a railroad to keep detailed records to evaluate the system. However, the railroad may elect to have the system supplier keep these records. There would be many advantages to the later approach, primarily that the vendor would receive an aggregate of the technical issues, making them better positioned to analyze the system performance. Although a railroad may delegate record keeping, the railroad would retain the responsibility for keeping records of performance on their property. The railroads would be responsible for ensuring the safe operation of systems on their property, and would be required to have access to the performance data if they are to carry out their responsibilities under this proposed section.

This section also proposes detailed handling requirements for required records. Proposed paragraph (a) would require specific content in the record. FRA would accept paper records or electronic records. Electronic record keeping would be encouraged as it reduces storage costs, simplifies collection of information, and allows data mining of the collected information. However, to ensure that the electronic records would provide all required information, approval by the Associate Administrator for Safety would be required.

Signatures on paper records would be required to uniquely identify the person certifying the information contained in the record in such a manner that would enable detection of a forgery. Proposed paragraph (a) would also ensure that an electronic signature could be attributable to single individual as reliably as paper records. It would be possible to meet the storage requirement in several different ways. Physical paper records would be expected to be kept at the physical location of the supervising official. Electronic records would be permitted to be either stored locally, or remotely. FRA would have no preference as long as the records are accessible for FRA review.

Proposed paragraph (b) would specify the required retention period for the records. FRA recognizes that retaining records involves a cost to railroads, and appreciates their desire to minimize both the number, and the required retention period. To this end, FRA has identified two different categories of

records, and proposes differing retention periods for each. The first category involves records associated with installation or modification of a system and would contain data required for evaluating the product's performance and compliance to the safety case conditions throughout the life of the product. FRA would consider the life of the product to begin when the product is first placed in use and end with the permanent withdrawal of the product from service. In the event of permanent transfer of the product to another, the receiving railroad would become responsible for maintaining them. This responsibility would continue until the product is completely withdrawn from rail service. The second category of records would address periodic testing and would have a retention period of at least one year, or the periodicity of the subsequent test, whichever is greater. Results obtained by subsequent a test would supersede the earlier test. The earlier test results would be moot for evaluating the current condition.

Regrettably, in some cases, the use of electronic records may not meet the minimum standards required by FRA. Consequently, FRA is proposing procedures for withdrawing authorization to use electronic records in paragraph (c). If FRA finds it necessary to withdraw an authorization, FRA would explain the reason in writing.

Section 229.315 Operation Maintenance Manual

This section proposes to require that each railroad have a manual covering the requirements for the installation, periodic maintenance and testing, modification, and repair of its safety critical locomotive control systems. This manual could be kept in paper or electronic form. It is recommended that electronic copies of the manual be maintained in the same manner as other electronic records kept for this part and that it be included in the railroad's configuration management plan (with the master copy and dated amendments carefully maintained so that the status of instructions to the field as of any given date can be readily determined).

Proposed paragraph (a) would require that the manual be available to both persons required to perform such tasks and to FRA. Proposed paragraph (b) would require that plans necessary for proper maintenance and testing of products be correct, legible, and available where such systems are deployed or maintained. The paragraph also proposes that the manual identify the current version of software installed, revisions, and revision dates. Proposed paragraph (c) would require that the manual identify the hardware, software, and firmware revisions in accordance with the configuration management requirement. Proposed paragraph (d) would require the identification, replacement, handling, and repair of safety critical components in accordance with the configuration management requirements. Finally, proposed paragraph (e) would require the manual be ready for use prior to deployment of the product, and that it is available for FRA review.

Section 229.317 Training and Qualification Program

This section proposes specific parameters for training railroad employees and contractor employees to ensure they have the necessary knowledge and skills to complete their duties related to safety-critical products. Proposed paragraph (a) would require the training to be formally conducted and documented based on educational best practices. Paragraphs (b) and (c) propose that the employer identify employees that will be performing inspection, testing, maintenance, repairing, dispatching, and operating tasks related to the safety critical locomotive systems, and develop a written task analysis for the performance of duties. The employer to identify additional knowledge and skills above those required for basic job performance necessary to perform each task. Work situations often present unexpected challenges, and employees who understand the context within which the job is to be done would be better able to respond with actions that preserve safety. Further, the specific requirements of the job would be better understood; and requirements that are better understood are more likely to be adhered to. Well-informed employees would be less likely to conduct ad hoc troubleshooting; and therefore, should be of greater value in assisting with troubleshooting.

Proposed paragraph (d) would require the employer to develop a training curriculum that includes either classroom, hands-on, or other formally-structured training designed to impart the knowledge and skills necessary to perform each task.

Paragraph (e) proposes a requirement that all persons subject to training requirements and their direct supervisors must successfully complete the training curriculum and pass an examination for the tasks for which they are responsible. Generally, giving appropriate training to each of these employees prior to task assignment would be required. The exception would be when an employee, who has not received the appropriate training, is conducting the task under the direct, on-site supervision of a qualified person.

Proposed paragraph (f) would require periodic refresher training. This periodic training must include classroom, hands-on, computer-based training, or other formally structured training. The intent would be for personnel to maintain the knowledge and skills required to perform their assigned task safely.

Paragraph (g) proposes a requirement to compare and evaluate the effectiveness of training. The evaluation would first determine whether the training program materials and curriculum are imparting the specific skills, knowledge, and abilities to accomplish the stated goals of the training program; and second, determine whether the stated goals of the training program reflect the correct, and current, products and operations.

Paragraph (h) proposes that the railroad must maintain records that designate qualified persons. Records retention would be required until recording new qualifications, or for at least one year after such person(s) leave applicable service. The records would be required to be available for FRA inspection and copying.

Section 229.319 Operating Personnel Training

This section contains proposed minimum training requirements for locomotive engineers and other operating personnel who interact with safety critical locomotive control systems. “Other operating personnel” would refer to onboard train and engine crew members (

i.e.,

conductors, brakemen, and assistant engineers).

Proposed paragraph (a) would require training to contain familiarization with the onboard equipment and the functioning of that equipment as part of and its relationship to other onboard systems under that person's control. The training program would be required to cover all notifications by the system (

i.e.,

onboard displays) and actions or responses to such notifications required by onboard personnel. The training would also be required to address how each action or response ensures proper operation of the system and safe operation of the train.

During system operations emergent conditions could arise which would affect the safe operation of the system. This section would also require operating personnel to be informed as soon as practical after discovery of the

condition, and any special actions required for safe train operations.

Paragraph (b) proposes that for certified locomotive engineers, the training requirements of this section would be required to be integrated into the training requirements of part 240. Although this requirement would only address engineers, in the event of certification of other operating personnel, the expectation that these requirements would be included into their training requirements.

Appendix F—Recommended Practices for Design and Safety Analysis

Appendix F proposes a set of criteria for performing risk management design of locomotive control systems. FRA recognizes that not all safety risks associated with human error can be eliminated by designs, no matter how well trained and skilled the designers, implementers, and operators. The intention of the appendix would be to provide one set of safety guidelines distilled from proven design considerations. There are numerous other approaches to risk management-based design. The basic principles of this appendix capture the lessons learned from the research, design, and implementation of similar technology in other modes of transportation and other industries. The overriding goal of this appendix is to minimize the potential for design-induced error by ensuring that systems are suitable for operators, and their tasks and environment.

FRA believes that new locomotive systems will be in service for a long period. Over time, there will be system modifications from the original design. FRA is concerned subsequent modifications to a product might not conform to the product's original design philosophy. The original designers of products could likely be unavailable after several years of operation of the product. FRA believes mitigating this is most successful by fully explaining and documenting the original design decisions and their rationale. Further, FRA feels that assumption of a long product life cycles during the design and analysis phase will force product designers and users to consider long-term effects of operation. Such a criterion would not be applicable if, for instance, the railroad limited the product's term of proposed use.

Translation of these guidelines into processes helps ensure the safe performance of the product and minimizes failures that would have the potential to affect the safety of railroad operations. Fault paths are essential to establishing failure modes and appropriate mitigations. Failing to identify a fault path can have the effect of making a system seem safer on paper than it actually is. When an unidentified fault path is discovered in service which leads to a previously unidentified safety-relevant hazard, the threshold in the safety analysis is automatically exceeded, and the both the designer and the railroad must take mitigating measures. The frequency of such discoveries relates to the quality of the safety analysis efforts. Safety analyses of poor quality are more likely to lead to in-service discovery of unidentified fault paths. Some of those paths might lead to potential serious consequences, while others might have less serious consequences.

Given technology, cost, and other constraints there are limitations regarding the level of safety obtainable. FRA recognizes this. However, FRA also believes that there are well-established and proven design and analysis techniques that can successfully mitigate these design restrictions. The use of proven safety considerations and concepts is necessary for the development of products. Only by forcing conscious decisions by the designer on risk mitigation techniques adopted, and justifying those choices (and their decision that a mitigation technique is not applicable) does the designer fully consider the implications of those choices. FRA notes that in normal operation, the product design should preclude human errors that cause a safety hazard. In addition to documenting design decisions, describing system requirements within the context of the concept of operations further mitigates against the loss of individual designers. In summary, the recommended approach ensures retention of a body of corporate knowledge regarding the product, and influences on the safety of the design. It also promotes full disclosure of safety risks to minimize or eliminating elements of risk where practical.

C. Proposed Amendments to Part 238

Section 238.105 Train Electronic Hardware and Software Safety

This section proposes the incorporation of existing waivers and addresses certain operational realities. Since the implementation of the Passenger Equipment Safety Standards, FRA has granted one waiver from the requirements of § 238.105(d) (FRA-2004-19396) for 26 EMU bi-level passenger cars operated by Northeastern Illinois Regional Commuter Railroad Corporation (METRA). FRA is in receipt of a second waiver (FRA-2008-0139) for 14 new EMU bi-level passenger cars to be operated by Northern Indiana Commuter Transportation District. There are over 1000 EMU passenger cars (M-7) being operated by Long Island Railroad & Metro-North Commuter Railroad (MNCW) for the past five years that FRA has discovered will need a waiver to be in compliance with § 238.105(d). The MNCW has placed an order for additional 300 plus options, EMU passenger cars (M-8) that will also need a waiver from the requirements of existing § 238.105(d).

The portion of the requirements that these cars' brake systems cannot satisfy is the requirement for a full service brake in the event of hardware/software failure of the brake system or access to direct manual control of the primary braking system both service and emergency braking. The braking system on these cars does not have the full service function but does default to emergency brake application in the event of hardware/software failure of the brake system and the operator has the ability to apply the brake system at an emergency rate from the conductor's valve located in the cab. A slight change to the language in § 238.105 would alleviate the need for these waivers and would not reduce the braking rate of the equipment or the stop distances.

Section 238.309 Periodic Brake Equipment Maintenance

For convenience and clarity, FRA proposes to consolidate locomotive air brake maintenance for conventional locomotives into part 229. No substantive change to the regulation would result. Currently, because conventional locomotives are used in passenger service, certain air brake maintenance requirements are included in the Passenger Equipment Safety Standards contained in part 238. Placing all of the requirements for conventional locomotives in part 229 would make the standards easier to follow and avoid confusion.

The proposed brake maintenance in this section would also extend the intervals at which required brake maintenance is performed for several types of brake systems for non-conventional locomotives. The length of the proposed intervals reflects the results of studies and performance evaluations related to a series of waivers starting in 1981 and continuing to present day. Overall, the type of brake maintenance that would be required would remain the same.

VII. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; February 26, 1979). FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this proposed rule. Document inspection and copying facilities are available at Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590.

As part of the regulatory impact analysis FRA has assessed quantitative measurements of cost and benefit streams expected from the adoption of this proposed rule. This analysis includes qualitative discussions and quantitative measurements of costs and benefits of the proposed regulatory text in this rulemaking. The primary costs or burdens in this proposed rule are from the alerter and revised minimum (

i.e.,

cold weather) cab temperature requirements. The savings will accrue from fewer train accidents, future waivers, and waiver renewals. In addition, savings would also accrue from a reduction in downtime for locomotives due to proposed changes to headlight and brake requirements. For the twenty year period the estimated quantified costs have a Present Value (PV) 7% of $7 million. For this period the estimated quantified benefits have a PV, 7% of $7.3 million.

Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (5 U.S.C. 601

et seq.

) and Executive Order 13272 require a review of proposed and final rules to assess their impacts on small entities. An agency must prepare an initial regulatory flexibility analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant impact on a substantial number of small entities. FRA is confident that this proposed rule would not impose a significant economic impact on a substantial number of small entities. However, FRA is reserving the final decision on certification for the final rule. Hence, interested parties are invited to submit data and information regarding the potential economic impact that would result from adoption of the proposals in the NPRM. Comments and input that FRA receives during the comment period of this rulemaking will assist the agency in making its final decision. FRA estimates that only 12 percent of the total cost associated with implementing the proposed rule would be borne by small entities and most of that will be the cost for the proposed cab temperature change.

Below FRA provides the process it went through when assessing the potential impacts of this rule on small entities.

1. Reasons for Considering Agency Action

As discussed in earlier sections of the preamble to this rulemaking, in its efforts to update and re-evaluate its current regulations FRA formed an RSAC Working Group to review 49 CFR part 229 and recommend revisions as appropriate. Thus the proposed revisions in this rulemaking serve to update a regulation that was originally promulgated prior to 1980. It will clarify some existing requirements, and incorporate some existing industry standards. In addition it will incorporate some current waivers that some members of the industry have, and some engineering best practices. Most of these revisions add clarity to the rule, reduce industry burden to comply with some requirements, and in some cases streamline or consolidate the FRA requirements. Some revisions are intended to enhance railroad safety.

2. Objectives and Legal Basis for the Proposed Rule

(a) Legal Basis for the Proposed Rule

Railroad locomotive inspection requirements are one of the oldest areas of Federal safety regulations. The primary statutory authority, The Locomotive Inspection Act, was enacted in 1911. Pursuant to that authority, in the area of locomotive safety, FRA has issued regulations found at part 229 addressing topics such as inspections and tests, safety requirements for brake, draft, suspension, and electrical systems, and cabs and cab equipment.

FRA has broad statutory authority to regulate railroad safety. The Locomotive Inspection Act (formerly 45 U.S.C. 22-34, now 49 U.S.C. 20701-20703) prohibits the use of unsafe locomotives and authorizes FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431

et seq.,

now found primarily in chapter 201 of Title 49). The Safety Act grants the Secretary of Transportation rulemaking authority over all areas of railroad safety (49 U.S.C. 20103(a)) and confers all powers necessary to detect and penalize violations of any rail safety law. This authority was subsequently delegated to the FRA Administrator (49 CFR 1.49) (Until July 5, 1994, the Federal railroad safety statutes existed as separate acts found primarily in title 45 of the United States Code. On that date, all of the acts were repealed, and their provisions were recodified into title 49 of the United States Code).

(b) Objective of the Proposed Rule

This action is taken by FRA in an effort to enhance its safety regulatory program. The proposed revision would update, consolidate, and clarify existing rules, and incorporate existing industry and engineering best practices.

3. Description and Estimate of Small Entities Affected

The “universe” of the entities to be considered generally includes only those small entities that can reasonably be expected to be directly regulated by this action. Two types of small entities are potentially affected by this rulemaking: (1) Small railroads, and (2) governmental jurisdictions of small communities.

“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) includes not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operations within the definition of “small entities.” Additionally, section 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still classify as a “small entity”) is 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads.

1

1

“Table of Size Standards,” U.S. Small Business Administration, January 31, 1996, 13 CFR part 121.

See also

NAICS Codes 482111 and 482112.

SBA size standards may be altered by Federal agencies in consultation with SBA, and in conjunction with public comment. Pursuant to the authority

provided to it by SBA, FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad.

2

Currently, the revenue requirements are $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment.

3

The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity. FRA is proposing to use this definition for this rulemaking.

2

See

68 FR 24891 (May 9, 2003).

3

For further information on the calculation of the specific dollar limit, please

see

49 CFR part 1201.

(a) Railroads

There are approximately 685 small railroads meeting the definition of “small entity” as described above. FRA estimates that all of these small entities could potentially be impacted by one or more of the proposed changes in this rulemaking. Note, however, that approximately fifty of these railroads are subsidiaries of large short line holding companies with the technical multidisciplinary expertise and resources comparable to larger railroads. It is important to note that many of the changes or additions in this rulemaking will not impact all or many small railroads. The nature of some of the changes would dictate that the impacts primarily fall on large railroads that purchase new and/or electronically advanced locomotives. Small railroads generally do not purchase new locomotives, they tend to buy used locomotives from larger railroads. Also, two of the proposed requirements,

i.e.,

requirements for alerters and RCL standards, would burden very few if any small railroads. The most burdensome requirement for small railroads would be the proposed revisions to cab temperature since older locomotives are less likely to meet the revised standards and small railroads tend to own older locomotives. It is also important to note that the proposed changes only apply to non-steam locomotives. There are some small railroads that own one or more steam locomotives which these changes will not impact. There are a few small railroads that own all or almost all steam locomotives. Most of these entities are either museum railroads or tourist railroads. For these entities this proposed regulations would have very little or no impact. FRA estimates that there are about five small railroads that only own steam locomotives.

(b) Governmental Jurisdictions of Small Communities

Small entities that are classified as governmental jurisdictions would also be affected by the proposals in this rulemaking. As stated above, and defined by SBA, this term refers to governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000. FRA does not expect this group of entities to be impacted.

The rule would apply to governmental jurisdictions or transit authorities that provide commuter rail service—none of which is small as defined above (

i.e.,

no entity serves a locality with a population less than 50,000). These entities also receive Federal transportation funds. Intercity rail service providers Amtrak and the Alaska Railroad Corporation would also be subject to this rule, but they are not small entities and likewise receive Federal transportation funds. While other railroads are subject to this final rule by the application of § 238.3, FRA is not aware of any railroad subject to this rule that is a small entity that will be impacted by this rule.

4. Description of Reporting, Recordkeeping, and Other Compliance Requirements and Impacts on Small Entities Resulting From Specific Requirements

The impacts to small railroads from this rulemaking would primarily result from proposed alerter requirements and cold weather cab temperature change. The rulemaking should result in regulatory relief for many railroads. The proposed rule clarifies some existing sections, adds some existing industry standards, and it incorporates some current waivers.

(a) Remote Control Locomotives § 229.15

FRA proposes to formally codify safety standards for remote control operated locomotives. Such standards should not impact any small railroads. FRA does not know of any small railroads that use RCL operations. In addition, RCL operations are not required to operate a railroad. The conduction of future RCL operations by small railroads would be is a business decision that takes into consideration regulatory costs.

(b) Electronic Recordkeeping § 229.20

This proposed section permits the use of electronic recordkeeping systems related to the maintenance of records related to locomotives. This proposed section does not require electronic recordkeeping. FRA is not aware of any small railroads that would utilize this proposed provision. FRA also anticipates cost savings for any railroad that would utilize the provisions.

(c) Periodic Inspection: General § 229.23

This section would require railroads that choose to maintain and transfer records electronically as provided for in § 229.20, to print the name of the person who performed the inspections, repairs, or certified work on the Form FRA F 6180-49A that is displayed in the cab of each locomotive. As small railroads are not likely to maintain records electronically, the proposed changes to this section would not impact any small railroads.

(d) Test: Every Periodic Inspection § 229.25

Two additional paragraphs are proposed in this section to include inspection requirements for remote control locomotives and locomotive alerters during the 92-day Periodic Inspection. Since almost no small railroads utilize RCL or have locomotives and many small railroad operations would not require alerters, these new paragraphs are not expected to have a significant impact on small railroads. In general, older locomotives, which are less likely to be equipped with alerters, are used for lower speed operations. Small railroads commonly engage in such operations and thus a substantial number would probably not be impacted by the proposed alerter inspection requirement.

(e) Air Brake System Maintenance and Testing § 229.29

This section would be re-titled, and consolidate and better organize existing requirements to improve clarity. Because 49 CFR 229.29 concerns only brakes, it would be re-titled, “Air Brake System Maintenance and Testing” to more accurately reflect the section's content. In addition, the proposed changes to this section would fold the current waivers for air brakes into the regulation. Thus, these changes may seem to add more to the section, but they actually provide longer inspection periods for some air brake systems. This will produces two benefits. First it will produce a cost savings for future waivers and waiver renewals. Second, it will produce a benefit for other entities that happen to have one of these types of air brake systems, and do no

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