Locomotive Safety Standards

Federal RegisterApr 9, 2012

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229 and 238

[Docket No. FR-2009-0095; Notice No. 3]

RIN 2130-AC16

Locomotive Safety Standards

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

FRA is revising the existing regulations containing Railroad Locomotive Safety Standards. The revisions update, consolidate, and clarify the existing regulations. The final rule 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 final rule will modernize and improve its safety regulatory program related to locomotives. In accordance with the requirements of the Executive Order 13563 (E.O. 13563), this final rule also modifies the existing locomotive safety standards based on what has been learned from FRA's retrospective review of the regulation. As a result, FRA is reducing the burden on the industry by modifying the regulations related to periodic locomotive inspection and headlights.

DATES:

This final rule is effective June 8, 2012. Petitions for reconsideration must be received on or before June 8, 2012. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before July 23, 2012.

ADDRESSES:

Petitions for reconsideration or comments on such petitions: Any petitions and any comments to petitions 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.regulations.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:

Charles Bielitz, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC (telephone 202-493-6314, email

charles.bielitz@dot.gov

), 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. Executive Summary

II. Statutory and Regulatory Background

III. Railroad Safety Advisory Committee (RSAC) Overview

IV. Proceedings to Date

V. General Overview of Final Rule Requirements

A. Remote Control Locomotives

B. Electronic Recordkeeping

C. Brake Maintenance

D. Brakes, General

E. Locomotive Cab Temperature

F. Headlights

G. Alerters

H. Locomotive Electronics

I. Periodic Locomotive Inspection

J. Rear End Markers

K. Locomotive Horn

L. Risk Analysis Standardization and Harmonization

M. Locomotive Cab Securement

N. Diesel Exhaust in Locomotive Cabs

O. Federalism Implications

P. E.O. 13563 Retrospective Review

VI. Section-by-Section Analysis

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

B. Part 229 Subpart E—Locomotive Electronics

C. Amendments to Part 238

VII. Regulatory Impact and Notices

A. Executive Orders 12866, 13563, and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272

C. Paperwork Reduction Act

D. Federalism Implications

E. Environmental Impact

F. Unfunded Mandates Reform Act of 1995

G. Privacy Act

I. Executive Summary

The requirements that are being established by this final rule are based on: existing waivers that have been granted by FRA's Safety Board; existing clarifications of requirements that are currently being enforced; new developments in technology related to locomotives; and in part, on a Railroad Safety Advisory Committee recommendation. 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. The Working Group met twelve times between October 30, 2006, and April 16, 2009. 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 based on industry best practices. The full RSAC voted to recommend the consensus issues to FRA on September 10, 2009.

The Working Group did not reach consensus on several locomotive safety issues. Thus, FRA independently developed a proposal containing requirements related to: remote control locomotives, alerters, locomotive cab securement, equipping new and remanufactured locomotive cabs with air conditioning units, and a minimum permissible locomotive cab temperature. FRA also independently developed a proposal for locomotive securement. FRA has incorporated the Working Group's views to the extent possible.

In accordance with the requirements of E.O. 13563, this final rule also modifies the existing locomotive safety standards based on what has been learned from FRA's retrospective review of the regulation. E.O. 13563 requires agencies to review existing regulations to identify rules that are overly burdensome, and when possible, modify them to reduce the burden. As a result its retrospective review, FRA is reducing the burden on the industry by

modifying the regulations related to periodic locomotive inspection and headlights. FRA believes that the modifications related to periodic locomotive inspection and headlights in this final rule will not reduce safety.

Overview of Final Rule Requirements

Remote Control Locomotives

The rule related to remote control locomotives includes design and operation requirements, as well as, inspection, testing, and repair requirements. FRA's Remote Control Locomotive Safety Advisory, published in 2001, is the basis for the requirements. All of the major railroads have adopted the recommendations contained in the advisory, with only slight modifications to suit their individual operations, and the Association of American Railroads (AAR) issued an industry standard that adopted the most significant requirements of the Safety Advisory. 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 and the comments to the NPRM related to this proceeding, this final rule will codify the industry's best practices related to the use and operation of remote control locomotives.

Electronic Recordkeeping

The development and improved capability of electronic recordkeeping 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 recordkeeping 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 requirements for electronic recordkeeping systems. This final rule will establish generally applicable requirements based on the Working Group's recommendation.

Brake Maintenance

The 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. This final rule will establish generally applicable requirements based on the Working Group's recommendation.

Brakes, General

At a MP&E Technical Resolution Committee (TRC) meeting in December of 1999, 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. FRA adopted this recommendation in the NPRM and retains it in this final rule.

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. Now that the locomotive safety standards are in the process of being revised, FRA is incorporating existing industry practice into the regulation in an effort to maintain the current conditions. In addition to increasing the minimum cab temperature from 50 °F to 60 °F, FRA believes that requiring railroads to continue their current practice of equipping new locomotives with air conditioning units inside the locomotive cab and maintaining those units during the periodic inspection required by § 229.23, will maintain the existing level of railroad safety.

Headlights

The revisions to the headlight requirements incorporate waiver FRA 2005-23107 into part 229. The waiver permits 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. Under the existing requirements, a headlight with only one functioning 200-watt lamp is not defective and its condition does not affect the permissible movement of a locomotive. However, the existing requirements are more restrictive for a 350-watt lamp. A locomotive with only one functioning 350-watt lamp in the headlight can be properly moved only under the conditions of § 229.9. This final rule modifies the treatment of locomotives with a failed 350-watt lamp to allow flexibility, and be consistent with the current treatment of 200-watt lamps. In accordance with E.O. 13563, this modification will reduce the downtime for locomotives with certain headlight defects, and thereby, reduce the burden on the rail industry.

Alerters

An alerter is a common safety device that is intended to verify that the locomotive engineer remains vigilant and capable of accomplishing the tasks that he or she must perform while operating a locomotive. 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 pursuant to § 238.237 (67 FR 19991), and are present on most freight locomotives. A long-standing industry standard currently contains various requirements for locomotive alerters.

See

AAR Standard S-5513, “Locomotive Alerter Requirements,” (November 26, 2007). FRA believes that the requirements proposed in the NPRM

and retained in this final rule related to alerters incorporate existing railroad practices and locomotive design, and address each of the National Transportation Safety Board (NTSB) recommendations discussed below in section v., “General Overview of the Final Rule Requirements.”

Locomotive Electronics

This final rule retains requirements proposed in the NPRM that 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 final rule is also establishing 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.

Periodic Locomotive Inspection

The Working Group was unable to reach consensus on whether current locomotive inspection intervals and procedures are appropriate to current conditions. 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.

Based on the initial results of the waiver, FRA identified the periodic locomotive inspection as a potential candidate for reducing the regulatory burden on the rail industry, as required by E.O. 13563. FRA's continued observations of test during joint inspections of the brake systems shows that the waiver has been successful. As there is no material difference between the locomotive models covered by the BNSF waiver and other self diagnostic microprocessor-based locomotives, FRA is modifying the existing periodic inspection requirements to provide for a 184-day inspection interval for all locomotives equipped with microprocessor-based control systems with self-diagnostic capabilities.

Locomotive Cab Securement

By letter dated September 22, 2010, in response to a conductor being shot and killed during an attempted robbery on June 20, 2010, the Brotherhood of Locomotive Engineers and Trainmen (BLET) requested that FRA require 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.

In the NPRM, FRA requested comments on the various securement options that are currently available on locomotive cab doors, and whether equipping the locomotive cab with a securement device would improve safety. Based on its review of comments received, FRA believes that locomotive cab securement can potentially prevent unauthorized access to the locomotive cab, and thereby increase train crew safety. Consequently, FRA is establishing in this final rule a requirement for new and remanufactured locomotives to be equipped with a securement device.

Expected Benefits

This final rule includes numerous regulatory clarifications and adoption of most current part 229 waivers. The primary costs or burdens in this final rule are from the alerters, periodic inspection change and revised minimum (

i.e.,

cold weather) cab temperature requirements. The savings will accrue from fewer train accidents, fewer future waivers, and waiver renewals. In addition, savings would also accrue from a reduction in downtime for locomotives due to changes to headlight and brake requirements. Finally the railroad industry will accrue significant cost savings from a change in the periodic inspection requirement for micro-processor based locomotives. For the 20-year period analyzed, the estimated quantified costs total $56.2 million, and the present value (PV) (7 percent) of the estimated costs is $27.7 million. The uniform adoption of some waivers will provide cost savings from a reduction in locomotive downtime. For example, the headlight and brake maintenance waiver incorporations will reduce future industry-wide locomotive downtime, because locomotives that are not currently covered by the waivers will be permitted to continue in use. FRA also anticipates a small reduction in future accidents from the proposed alerter requirements. For the 20-year period, the estimated quantified benefits total $806.8 million, and the PV (7 percent) of the estimated quantified benefits is $385 million.

Costs for Final Rule

[Note dollars are discounted (7%) and all costs are for a 20-year period]

Periodic Inspection

$20,820,604

AFM Calibration

136,335

Alerters—Requirement and Trip Test

4,495,455

Cab Temperature: Heaters, Maintenance & Insulation

889,503

Locomotive Electronics: File Notice & Training Documents

1,338,763

End Plates

21,187

Total

27,701,846

Benefits for Final Rule

[Note dollars are discounted (7%) and all benefits are for a 20-year period]

Reduction in Locomotive Downtime—Headlights

$1,588,995

Reduction in Locomotive Downtime—Brakes

2,118,660

Reduced Train Accidents—Due to Alerter Requirement

2,318,972

Cost Savings—Reduction in Waivers

975,325

Savings: High Voltage Danger Signs/Markings

317,799

Periodic Inspection: Increased Time Interval

377,825,552

Total

385,145,303

II. 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 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 requirements contained in this final rule 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 altering a number of regulatory requirements, the comprehensive safety regulatory structure remains unchanged.

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 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 AAR, on behalf of itself and its member railroads, petitioned 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 RSAC.

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

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 generally proposed the consensus rule text for these issues with minor clarifying modifications on January 12, 2011.

See

76 FR 2199. 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 also proposed rule text related to the non-consensus items.

Id.

Many comments were submitted to the public docket in response to the NPRM. The comment period closed on March 14, 2011. FRA is issuing this final rule after considering the comments.

III. RSAC Overview

In March 1996, FRA established the RSAC, which provides a forum for developing consensus recommendations on rulemakings and other safety program issues. The Committee includes representation from 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 (AAPRCO)

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

AAR

Association of Railway Museums (ARM)

Association of State Rail Safety Managers (ASRSM)

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)

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.

IV. 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 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, MO, 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, DC, 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 in the NPRM and this final rule, FRA refers to commentsviews, 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 the NPRM issued in this proceeding. 76 FR 2199. 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.

Id.

Many comments were submitted to the public docket in response to the NPRM. The comment period closed on March 14, 2011. FRA is issuing this final rule after considering the comments.

V. General Overview of Final Rule Requirements

The retrospective review requirements of E.O. 13563, trends in locomotive operation, concern about the safe design of electronics, technology advances, and experience applying Federal regulations provide the main impetus for the revisions to FRA's existing standards related to locomotive safety. An overview of some of the major areas addressed in this final rule 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

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

60372.

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 and the comments to the NPRM related to this proceeding, this final rule will codify the industry's best practices related to the use and operation of remote control locomotives.

B. Electronic Recordkeeping

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 requirements for electronic recordkeeping systems. This final rule establishes generally applicable requirements based on the Working Group's recommendation.

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

21092. The 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.

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 computer 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 brake maintenance standards. That consensus recommendation was included in the NPRM and is retained in this final rule.

D. Brakes, General

In December of 1999, a 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. FRA adopted this recommendation in the NPRM and retains it in this final rule.

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 cold weather 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. Now that the locomotive safety standards are in the process of being revised, FRA is incorporating 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 increasing the minimum cab temperature from 50 °F to 60 °F, FRA believes that requiring railroads to continue their current practice of equipping new locomotives with air conditioning units inside the locomotive cab and maintaining those units during the periodic inspection required by § 229.23, will maintain the existing level of 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. Please note that when discussing high temperatures in the research about the effects on human performance, the term temperature means the Wet Bulb Globe temperature or WBGT. When discussing accident statistics the temperatures reported were ambient not accounting for humidity and radiant heat sources.

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; heat 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.

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.

Based on the preceding discussion and its review of existing literature on the subject, FRA believes it is appropriate to limit minimum locomotive cab temperature and also require that new locomotives be equipped with an air conditioning unit inside the locomotive cab. To ensure that an air conditioning unit is properly maintained, the unit should be inspected and maintained so that it works properly and meets or exceeds the manufacturer's minimum operating specifications during the periodic inspection that is required by § 229.23. Comments by AAR indicate that this is consistent with the current industry schedule. FRA believes that requiring the railroads to maintain their air conditioning units in a manner that meets or exceeds the manufacturer's minimum operating specifications should result in the sufficient maintenance of the units. FRA will monitor air conditioning maintenance performed by railroads to ensure that it

is being properly an adequately performed. If FRA determines that the prescribed level of maintenance is insufficient to ensure the proper functioning of the air conditioning units, FRA will consider taking regulatory action to address the issue in a future rulemaking.

AAR submitted comments stating that new locomotives have been ordered with air conditioning units for many years and that they are maintained at the periodic inspection, and that these practices are expected to continue. FRA believes that requiring railroads to continue to equip new locomotives with air conditioning units inside the locomotive cab and maintaining those units during the periodic inspection required by § 229.23, will maintain the existing level of railroad safety.

AAR and the U.S. Army's Joint Munitions Command submitted comments stating that a maximum temperature requirement that is intended to prevent excessive heat stress from affecting locomotive crew performance inside the locomotive cab: would not address a safety issue; would be difficult to accurately measure inside the locomotive cab; and, would be overly burdensome. The UTU and the BLET submitted comments supporting the establishment of a maximum temperature requirement. The comments stated that such a requirement would improve locomotive crew performance during operation of the locomotive. FRA believes that the issues need to be considered further before a determination can be made as to whether a maximum temperature requirement would be appropriate. The RSAC has recently tasked a working group with addressing issues related to fatigue management. FRA believes that the fatigue management working group is an appropriate forum for further exploring issues related to the potential benefits that could result from requiring a limit to the permissible maximum locomotive cab temperature.

F. Headlights

The revisions to the headlight requirements incorporate waiver FRA 2005-23107 into part 229. The waiver permits 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. Under the existing requirements, a headlight with only one functioning 200-watt lamp is not defective and its condition does not affect the permissible movement of a locomotive. However, the existing requirements are more restrictive for a 350-watt lamp. A locomotive with only one functioning 350-watt lamp in the headlight can be properly moved only under the conditions of section 229.9. This final rule modifies the treatment of locomotives with a failed 350-watt lamp to allow flexibility, and be consistent with the current treatment of 200-watt lamps. In accordance with E.O. 13563, this modification will reduce the downtime for locomotives with certain headlight defects, and thereby, reduce the burden on the rail industry.

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 new requirement compensates 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 degrees 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

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 and the recommendations made by the NTSB in developing the requirements related to locomotive alerters.

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 to the 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 requirements proposed in the NPRM and retained in this final rule related to alerters incorporate existing railroad practices and locomotive design, and address each of the NTSB recommendations discussed above. As with all of FRA's regulatory requirements, the requirements related to alerters are minimum Federal safety requirements that do not prohibit railroads from doing more to improve railroad safety. Based on industry meetings, FRA understands that the industry is considering establishing industry requirements that would be more restrictive than the Federal requirements. FRA fully supports such an effort by the industry.

H. Locomotive Electronics

After extensive discussion, the Working Group reached consensus on the requirements related to locomotive electronic systems that were proposed in the NPRM. 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 NPRM proposed requirements that 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. The NPRM also proposed 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 final rule.

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.

I. 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. On June 22, 2009, FRA granted the BNSF request for waiver from compliance with the periodic locomotive inspection requirements.

See

The modern locomotive equipped with microprocessor-based controls has diagnostics that monitor the functioning of locomotive equipment and record faults, particularly with respect to features relevant to the periodic inspection. Major faults are instantly addressed. Minor faults are addressed through later data analysis. In some cases, railroads have the capability of

analyzing the data remotely, without the need for the locomotive to be shopped. Among the features addressed by the self-diagnostic equipment on the locomotive models covered by this petition are the ground relay, locked power axle, slipped pinion, and traction motor flashover. Other faults monitored include contactor faults, electrical feedback signal faults, and electronic air brake faults. If the system detects an air brake system failure, the system goes into fail-safe mode. Another feature of these models is that the maintenance interval recommended by the manufacturers is 184 days. In 1980, the 92-day periodic-inspection interval instituted by FRA reflected the maintenance intervals recommended by the manufacturers at that time.

The model locomotives that are the subject of the above noted waiver use a very viscous oil instead of grease to lubricate the pinions and bull gears on traction-motor wheel assemblies. The oil does not degrade with age or thicken or thin as ambient temperature varies. Years of use have demonstrated that there is no need to check oil levels or replenish the lubricant frequently. Other relevant features of the modern locomotive include:

• Traction motor brushes last well over 184 days (most last one year);

• Improved seals and gaskets, greatly reducing the occurrence of fluid leaks and the need to inspect gusseted and sealed joints;

• Improved insulation protecting against the deterioration of locomotive wiring (microprocessors have reduced the generation of heat, which also enhances wiring life); and,

• The traction motor support bearings are completely sealed roller bearings, with lubrication only required when wheels are changed.

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. Pursuant to the conditions of the waiver, data were collected on the locomotives' performance and joint FRA/BNSF inspections were conducted. The data show that safety was not impacted by extending the periodic inspection interval to 184 days. Based on the initial results of the waiver, FRA identified the periodic locomotive inspection as a potential candidate for reducing the regulatory burden on the rail industry, as required by E.O. 13563. FRA's continued observations of tests during joint inspections of the brake systems shows that the waiver has been successful. As there is no material difference between the locomotive models covered by the BNSF waiver and other self diagnostic microprocessor-based locomotives, FRA is modifying the existing periodic inspection requirements to provide for a 184-day inspection interval for all locomotives equipped with microprocessor-based control systems with self-diagnostic capabilities.

J. Rear End Markers

In 2003, the U.S. DOT's Office of Governmental Affairs received a letter from Senator Feinstein on behalf of one of her constituents. The individual suggested a revision to FRA's rear end marker regulation, which is found in part 221. Specifically, the constituent 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. The individual 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 requested comments on this rear end marker issue. AAR submitted the only comment related to this issue, stating that no changes should be made to the existing requirements based on the single incident mentioned above. FRA agrees that at this time there is not enough evidence to merit a change to the existing requirements.

K. Locomotive Horn

In the NPRM, FRA solicited comments regarding methods currently being used by railroads to test locomotive horns as required by § 229.129. More than one method of testing could satisfy the current testing requirements. AAR submitted the only comment on this issue, stating that an accepted ANSI or SAE standard should satisfy the requirement. However, based on AAR's comment, it is unclear which specific ANSI and SAE standards would be applicable to locomotive horn testing. FRA has been considering whether certain current methods of testing should be preferred, or additional methods should be permitted. AAR's comment did not provide enough specific information to justify modifying the existing locomotive horn requirements. At this point, the great majority of initial locomotive horn testing has been performed, and there is no clear need to modify the requirements.

L. Risk Analysis Standardization and Harmonization

FRA notes that it 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 is harmonizing 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. FRA will pursue 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. FRA believes that establishing a safety analysis requirement in this final rule that is based on best engineering practices and standards in section 237.307 is consistent with goal of standardization and harmonization.

M. Locomotive Cab Securement

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 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.

The BLET and UTU submitted comments stating that locks should be designed to open from within the locomotive cab without the use of a key. Locomotive 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. A latching device (e.g., a dead-bolt arrangement) is sufficient to satisfy this requirement. This final rule requires that each locomotive or remanufactured locomotives ordered on or after the effective date of the final rule, or placed in service for the first time on or after six months from the effective date of the rule, be equipped with a securement device. However, FRA believes that the decision whether to use the securement device is best left to the discretion of each railroad.

AAR submitted comments stating that the railroad industry is currently developing a securement standard that will address safety concerns. Based on information gathered while attending industry meetings, FRA understands that the railroad industry is working on producing a standard that will require a securement device on the outside of an unattended locomotive cab. FRA believes that the industry is moving in the right direction on this issue and will continue to monitor the development of a new standard. If FRA determines that the actions currently being undertaken by the industry are not sufficient to ensure the proper securement of locomotive cabs from the outside, FRA will consider taking regulatory action to address this issue in a future rulemaking.

A Battalion Fire Chief from Fairfax County, Virginia, submitted comments stating that a rapid-entry box system (similar to a realtor's lock-box system) would ensure access by emergency responders into a locked locomotive cab. FRA believes that a rapid-entry box system could improve emergency responder access into the locomotive cab. However, at this time, FRA believes it would be impractical to require such a system, due to the potential cost of equipping all locomotives with the locks, the significant logistic challenges involved with distributing keys to emergency responders throughout the country, and the inability of FRA to ensure that those keys are secure.

N. Diesel Exhaust in Locomotive Cabs

In response to the NPRM, AAR submitted comments requesting that FRA clarify the meaning of existing § 229.43. Section 229.43 requires that locomotives be built with exhaust systems that are properly designed to convey engine exhaust from the engine and release it outside of the locomotive, and to ensure that the exhaust system is maintained to prevent leaks of exhaust into an occupied locomotive cab. FRA has been consistent in its enforcement of this requirement. FRA has not discovered locomotive exhaust systems that have noncompliant designs. However, FRA has found mechanical defects (

e.g.,

a cracked exhaust manifold) in locomotive exhaust systems that permit exhaust to be released into an occupied locomotive cab, and has routinely issued violations for the railroads' failure to comply with § 229.43.

Diesel exhaust from the locomotive engine that is released into an occupied locomotive cab causes a safety risk. The exhaust can adversely affect the train crew and their ability to operate the locomotive safely. Inside the locomotive cab, the exhaust causes an inhalation hazard and will reduce the train crew's vision and comfort. However, FRA did not intend for § 229.43 to prevent any and all diesel exhaust from being present in an occupied locomotive cab. It would be impracticable to try to eliminate all diesel exhaust in the locomotive cab. A locomotive that is standing with its windows open and its engine not running next to an active highway will most likely be found to have some measurable quantity of diesel exhaust in the cab, due to the traffic from the highway. The same would be found if the locomotive were located in a similar circumstance in an active marine port. Similarly, FRA does not believe that it is possible to prevent the re-entry of diesel exhaust into the locomotive cab through windows or ventilation system intakes, and has never enforced the existing regulation in such a manner.

O. Federalism Implications

One commenter suggested that FRA should add language to its discussion of the federalism implications of this final rule to clarify the pre-emptive effect of the rule. The discussion of federalism contained in the NPRM explains the federalism implications of the Locomotive Inspection Act and the existing Locomotive Safety Standards.

See

76 FR 2224. FRA believes that the discussion of federalism implications is clear, and that changes to the final rule regarding the pre-emptive effect of the rule are not necessary.

P. E.O. 13563 Retrospective Review

In accordance with the requirements of E.O. 13563, this final rule modifies the existing locomotive safety standards based on what has been learned from FRA's retrospective review of the regulation. E.O. 13563 requires agencies to review existing regulations to identify rules that are overly burdensome, and when possible, modify them to reduce the burden. As a result of its retrospective review, FRA is reducing the burden on the industry by modifying the regulations related to periodic locomotive inspection and

headlights. FRA believes that the modifications related to periodic locomotive inspection and headlights in this final rule will not reduce safety.

VI. Section-by-Section Analysis

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

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

Section 229.5 Definitions

This section contains a set of definitions that are being introduced into the regulation. FRA intends these definitions to clarify the meaning of important terms as they are used in the text of the final rule. The definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. The 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 utilizing 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 established. The 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. FRA notes that new technology may lead to new systems that fit these definitions. For example, “Remote Control Pullback Protection” is currently a form of global positioning system containment system that uses automated equipment identifier tags to either stop the RCL or limit its speed so that the RCL remains within its work zone. A system that utilizes new technology that either stops the RCL or limits its speed so that the RCL remains within its work zone could also satisfy the definition. 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 terms. FRA's 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 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 made 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 is formally codifying safety standards for remote control operated locomotives. For convenience, this section is being divided into two headings: design and operation; and inspection and testing.

Generally, the 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 in remote control, and bring the train to a stop if certain safety hazards arise. The 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.

A comment was received suggesting that FRA should add an introductory paragraph to proposed § 229.15 to address the applicability of the section. FRA believes that the applicability of this section is clear based on the description of applicability contained in § 229.6. FRA does not intend to apply the requirements of § 229.15 differently than other requirements contained in part 229.

Another comment was received stating that the language of proposed § 229.15, if it remains unchanged in the final rule, would establish requirements that result in existing legacy configurations becoming noncompliant. According to the commentor, the legacy systems that they identify have been operating safely and to the railroads' satisfaction for years, and therefore, should be permitted to continue in operation as compliant systems under the requirements contained in § 229.15. It is not clear which requirements would affect these legacy systems, but FRA does not intend this final rule to make any specific legacy configurations noncompliant.

BLET and UTU submitted comments stating that FRA should replace the proposed language of paragraph § 229.15(a)(12)(ii), “throttle or speed control,” with “speed selector.” FRA is not adopting this suggestion. FRA believes that the suggested language change would exclude throttle/brake units. In the proposed rule, FRA did not intend to exclude throttle/brake units. The Working Group reached consensus on this specific issue, and FRA continues to believe that an OCU should have throttle capabilities in order to safely operate throttle/brake units.

AAR and HCRQ submitted comments stating that FRA should clarify proposed paragraph § 229.15(a)(7). Proposed paragraph § 229.15(a)(7) requires an RCL to initiate a full service application of the locomotive and train brakes, and eliminate locomotive tractive effort, when main reservoir pressure drops below 90 psi. The proposed language did not specifically exclude an RCL that is stationary. Under specific conditions, such as charging a lengthy cut of cars in

winter conditions, it is not uncommon for the main reservoir pressure to drop marginally. In such cases when the main reservoir pressure drops below 90 psi, it's not a sign of a system failure. Instead, the drop in pressure is an acceptable consequence given the conditions. FRA intended paragraph § 229.15(a)(7) to apply to moving RCLs and not stationary RCLs. To clarify FRA's intent, the language of this paragraph has been amended to include the words “while RCL is moving.”

AAR also submitted comments stating that there is no wheel slide issue on RCLs, and that currently wheel slip is often indicated by the RCL equipment and not by the OCU. FRA's proposal, in paragraph § 229.15(a)(12)(xi), would have required the OCU to provide an audio/visual indication of wheel slip/slide. FRA agrees with AAR's comment and is amending the final rule by removing the wheel slide requirement that was in the proposal, and by permitting wheel slip to be indicated by the RCL as well as the OCU.

HCRQ submitted comments stating that FRA should permit the OCU to provide either an audio or visual indication of RCL movement. Proposed § 229.15(a)(12)(xii) would require an audio indication of RCL movement. HCRQ asserts that a visual notification should be sufficient, because it is equally effective. The Working Group reached consensus on this specific issue, and FRA continues to believe that an audio indication is the most effective method for indicating RCL movement. People, who are present in the yard where the RCL movement is taking place, are more likely to hear a warning than they are to see a warning. In a yard, vision can be obstructed by equipment or structures. Thus, FRA is retaining the proposed provision in this final rule.

In § 229.15(a)(13)(iii)(B) of the NPRM, FRA proposed requiring primary OCUs to be equipped with a 15 second tilt bypass feature, and secondary OCUs to be equipped with a 60 second tilt bypass feature. Based on its review of comments received, FRA is modifying the proposed provision in this final rule and is requiring the tilt bypass on both OCUs to be set at 60 seconds. AAR and HCRQ submitted comments stating that the requirement for the length of the tilt bypass should be 60 seconds, because all but one of the existing OCU models have a tilt bypass feature that is set to 60 seconds and some actions commonly performed by OCU operators exhaust more than 15 seconds and up to 60 seconds. An OCU operator may take longer than 15 seconds to throw a switch, set brakes, or lace together brake hoses. FRA agrees that 15 seconds may not be enough time for an OCU operator to complete certain actions, but also understands that in most instances the operator of the secondary OCU will be the one who is responsible for those actions and that in general pushing a button on an OCU will extend the length of the tilt bypass for an additional 15 seconds. However, in the proposal FRA did not consider the fact that the majority of OCUs are set at 60 seconds, and that it would add a cost to the industry to modify some OCUs to 15 seconds. FRA also recognizes that during a RCL operation, a crew member may switch from operating the primary OCU to operating the secondary OCU, and vice versa. Allowing both the primary and secondary OCUs to be set to 60 seconds, consistent with the great majority of existing models, will avoid confusion during such a switch.

Section 229.19 Prior Waivers

FRA is updating the language in § 229.19 to address the handling of prior waivers of requirements in part 229 under the final rule. A number of existing waivers are incorporated into the final rule and others may no longer be necessary in light of the rule. The NPRM allowed railroads the opportunity to assert that their existing waiver is necessary, and should be effective after the final rule is adopted. No comments were received related to this section, and FRA is retaining the language as proposed. As a result, waivers from any requirement of this part, issued prior to effective date of this final rule will terminate on the date specified in the letter granting the waiver, and if no date is specified, then the waiver will automatically terminate 5 years from the effective date of the rule.

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

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 did not include a re-registration requirement.

Section 229.20 Electronic Recordkeeping

As explained in paragraph (a), FRA is establishing standards for electronic recordkeeping that a railroad may elect to utilize to comply with many of the recordkeeping 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 recordkeeping systems must satisfy all applicable regulatory requirements for records maintenance with the same degree of confidence as is provided with paper systems. The requirements are consistent with a series of waivers that FRA has granted since April 3, 2002 (Docket Number FRA-2001-11014), permitting electronic recordkeeping with certain conditions intended to ensure safety. In this section, FRA is adopting the Working Group's consensus regulatory text for electronic recordkeeping that was approved and recommended to FRA by the RSAC on September 10, 2009. The standards are organized into three categories: (1) Design requirements, (2) operational requirements, and (3) availability and accessibility 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. Paragraphs (b)(1) through (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.

Paragraphs (c)(1) and (2) are intended to utilize the improved safety capabilities of electronic systems. The requirements of paragraph (c)(1) cover both inspection and repair records. AAR submitted comments in response to the NPRM stating that the person who is performing the activity, and therefore required to make the record within 24 hours as required by paragraph (c)(1), may be prevented from making the record by Hours of Service laws. FRA

believes that the proposal addressed this issue. In the proposal, for 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. Because the issue was addressed in the proposal, FRA does not believe that any changes related to the issue are warranted.

To properly serve the interest of safety, the electronic records and the electronic recordkeeping 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 recordkeeping 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 rule 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 requires railroads that choose to maintain and transfer records 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. This will allow the train crew to know who did the previous inspection when they board the locomotive cab. This requirement was proposed in the NPRM and is being retained in the final rule. As discussed above in section I., “Periodic Locomotive Inspection,” FRA is also modifying the existing periodic inspection requirements contained in this section to provide for a 184-day inspection interval for all locomotives equipped with microprocessor-based control systems with self-diagnostic capabilities.

Section 229.25 Test: Every Periodic Inspection

Paragraphs (e) and (f) are added to this section to include inspection requirements for remote control locomotives and locomotive alerters during the periodic inspection. As discussed above, FRA is establishing new regulations for remote control locomotives,

see

§ 229.15, and locomotive alerters,

see

§ 229.140. For convenience, the maintenance for remote control locomotives and locomotive alerters that would properly be conducted at intervals matching the periodic inspection are being incorporated into this section. As proposed in the NPRM, the existing paragraph (d) related to steam generators has been removed from this section and added to § 229.114. As discussed below, FRA is consolidating all of the requirements related to steam generators into § 229.114. The other paragraphs in this section are also being reorganized to accommodate the removal of paragraph (d).

Section 229.27 Annual Tests

FRA is amending paragraph (b) of this section by deleting the following previous language: “The load meters shall be tested” from the paragraph. The modification clarifies 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 is also removing the existing paragraph (a) from this section and merging it into the brake requirements contained in § 229.29 of this final rule. Section 229.29 concerns brake maintenance, and as discussed below, is being reorganized by this final rule to consolidate all existing locomotive brake maintenance into one regulation.

Section 229.29 Air Brake System Calibration, Maintenance, and Testing

This section is re-titled by this final rule, and existing requirements are now consolidated and better organized to improve clarity. Because § 229.29 concerns only brakes, it is 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 is being integrated into this section for convenience and clarity. Recordkeeping requirements for this section are being moved from existing paragraphs (a) and (b), and merged into a single new paragraph (g). The date of air flow method (AFM) indicator calibration is being added to this section and will be required to be recorded and certified in the remarks section of Form F6180-49A under paragraph (g) of this final rule.

The brake maintenance requirements contained in this section of the final rule extend the intervals at which required brake maintenance is performed for several types of locomotive brake systems. The length of the intervals reflects the results of studies and performance evaluations related to a series of waivers that have been granted by FRA, starting in 1981 and continuing to present day. Overall, the type of brake maintenance that is required remains the same. The existing regulation provides for two levels of brake maintenance. Existing § 229.27(a) required routine maintenance for filters and dirt collectors, and brake valves and 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 conducted by FRA over the last decade, filters and dirt collector maintenance are now being required more frequently than brake valve maintenance. As a result, this final rule establishes three levels of brake maintenance instead of two.

In the NPRM, FRA stated that it was studying the effect, if any, that air dryers have on the maintenance of brake systems, and FRA sought comment. AAR submitted comments stating that there is no safety reason to treat the air dryer equipped locomotives differently than locomotives that are not equipped with air dryers. As evidence, AAR cites the results of the joint teardown tests that railroads have conducted with FRA as a condition to existing brake maintenance waivers. FRA believes that early indications from teardown testing of electronic air brake systems beyond five years in service support AAR's comments. However, because many tests and teardowns remain to be done, FRA believes that it is premature to discount the potential positive effects of air dryers on extending the life of certain brake components.

Paragraph (f)(2) sets 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.

In this final rule, FRA is incorporating locomotive brake maintenance requirements from part 238 into this section for convenience. FRA believes that there is some benefit to moving all of the locomotive brake maintenance requirements, including MU locomotives, from part 238 to part 229. Amtrak submitted comments stating that moving the requirements into part 229 would force them to remove entire Acela trainsets from service when any defects are found on a power car. In addition, Amtrak requested that Acela power cars be reclassified so that requirements from part 229 do not apply to Acela power cars. FRA believes that the reclassification of power cars would be outside of the scope of this rulemaking proceeding, and therefore, cannot be properly addressed in this final rule. However, FRA is open to discussing this issue further, outside of this rulemaking proceeding. FRA does not believe that moving the brake maintenance requirements into part 229 results in any change to the treatment of Acela power cars under the Federal railroad safety laws. It appears that Amtrak's concern is based on a misinterpretation of FRA's proposal. Contrary to Amtrak's assertion, FRA is not changing the existing Inspection, Testing, and Maintenance (ITM) requirements for Tier II passenger equipment under part 238. Only brake maintenance requirements are being moved to part 229, and their movement does not affect the Tier II ITM.

Paragraph (g)(1) requires that the date of AFM indicator calibration shall be recorded and certified in the remarks section of Form F6180-49A. AAR submitted comments stating that there is no need to keep a separate record of the AFM calibration date, because the date would be the same as the date of the periodic inspection. FRA understands that, although the frequency of the periodic inspection and the AFM indicator calibration may be the same for some locomotives, they may not be conducted on the same day, because the AFM indicator calibration is not part of the periodic inspection. FRA recognizes that many railroads choose to perform the AFM indicator calibration and the periodic inspection at the same time, but other railroads may choose to schedule the AFM calibration on a date other than the date of the periodic inspection. Therefore, FRA believes a separate record of the AFM indicator calibration date is necessary and is retaining paragraph (g)(2) of the final rule as proposed.

Section 229.46 Brakes: General

FRA is clarifying this section, and establishing standards for the safe use of a locomotive with an inoperative or ineffective automatic or independent brake control system. The section permits a locomotive with a defective air brake control valve to run until the next periodic inspection that is required by § 229.23. However, the requirement to place a tag on the isolation switch will notify the crew that the locomotive can be used only if it complies with the conditions contained in paragraph 229.46(b) until it is repaired.

The conditions contained in paragraphs (b)(2) through (6) clarify what it means for the brakes to operate as intended, as required by this section. Some Working Group members stated 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. Paragraph (b)(1) explicitly permits units with inoperative or ineffective automatic and/or independent brake valves to be used in the trailing position. Generally, paragraphs (b)(2) through (6) ensure that the trailing unit is handled safely, and that appropriate records are kept and repairs are made. Paragraph (b)(2) requires that the railroad and the locomotive, and/or air brake manufacturer determine that the control locomotive can safely operate with the defective unit in the trailing position.

AAR submitted comments stating that the railroad should not be required to consult with the locomotive or air brake manufacturer, because the railroad is capable of making the safety determination on its own. FRA believes that input from the manufacturers will improve the safety determination. The manufacturers are experts on the sophisticated electronically controlled air brake systems that are currently in use in the railroad industry (e.g. air brake systems that contain forced lead software). It is only prudent to consult with the manufacturer when assessing the capabilities of the air brake system.

GE submitted comments asking what kind of documentation will be required from the locomotive manufacturer in support of the determination required by paragraph (b)(2). The requirement contained in (b)(2) is intended to ensure that a proper safety determination is made based on the relevant knowledge of the manufacturer and the railroad. The locomotive and/or airbrake manufacturer should provide the railroad with technical information that is sufficient to establish the proper means for isolating or disabling the inoperative or ineffective automatic and/or independent air brake control valve, explaining how it does not pose a risk to the safe control of the automatic and independent brake systems by the controlling locomotive and, any other information that the manufacturer believes is relevant.

Section 229.61 Draft System

FRA is removing the requirement related to MCB contour 1904 couplers currently contained in paragraph (a)(1), because it is out dated. The existing requirement 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 existing paragraph (a)(1). In the NPRM, FRA sought 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. FRA also proposed the reorganize the remaining paragraphs in this section to accommodate the removal of paragraph (a)(1). AAR submitted the only comment on this issue, stating that it is unaware of any locomotives that are currently operating with MCB contour 1904 couplers, and AAR suggested removing the requirement from the locomotive safety standards. FRA agrees with AAR's comment and believes that the MCB contour 1904 coupler design is no longer being used in the railroad industry, and therefore, the requirement is no longer needed. Consequently, the final rule adopts the provision as proposed.

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

FRA is clarifying 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 by 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 has slightly modified 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 changing the title.

MTA submitted comments stating that the proposed wording did not make clear the intent of the change, which as noted in the preamble, is to require the warning marking on the last object before accessing the high voltage equipment. According to MTA, if one did not read the preamble, it would not be apparent that “direct” was meant to convey this intent and the wording would be too subjective. MTA did not explain why it believes that the word “direct” is too subjective or provide language that would better clarify the intent of this section. FRA continues to believe that the word “direct,” as used in the proposed language, sufficiently identifies the cover, door, or barrier that is located immediately in front of the high voltage equipment. The Working Group reached consensus on the proposed language with agreement that the proposed language would require the danger marking only on the last door that guards the high voltage equipment. Based on the Working Group's consensus, and without alternative language to consider, FRA is adopting the proposed language in the final rule without change. If needed, FRA believes that the explanation of the intent of the requirement that is contained in this preamble will add clarity to the rule text.

Section 229.114 Steam Generator Inspections and Tests

FRA is adding this section in order to consolidate the steam generator requirements contained in various sections of part 229 into a single section. Current requirements related to steam generators could be found in §§ 229.23, 229.25, and 229.27. Consolidating the requirements into one section makes them easier to find for the regulated community, and helps simplify and clarify each of the sections that currently include a requirement related to steam generators. The requirements contained in this section are not intended to change the substance of any of the existing requirements.

Section 229.119 Cabs, Floors, and Passageways

In paragraph (d), FRA is raising 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, this requirement will only be applicable 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.

In paragraph (e), FRA is clarifying the existing requirement related to the continuous barrier on an open-end platform by adding a hyphen between words “open” and “end.” In the old part 230, issued in 1968, paragraph 230.229 (g) addressing the required continuous barrier, contains the wording “Safe and suitable means shall be provided for passage between units with open-end platforms.” The hyphen makes clear that the requirement is referring to locomotive platforms that are open at the end, and not locomotive platforms that are open to the sky. In 1980, when the Locomotive Safety Standards were revised, the hyphen was inadvertently removed without explanation, and without intention to change the meaning of the existing requirement. FRA believes that reinserting the hyphen clarifies the requirement without changing it.

In paragraphs (g) and (h), FRA is establishing requirements related to air conditioning units inside of locomotive cabs. Paragraph (g) will require all new locomotives to be equipped with an air conditioning unit. The requirement will only apply to locomotives ordered after the effective date of the rule and to any locomotive placed in service after the effective date of the final rule. Paragraph (h) will require air conditioning units on such locomotives to be maintained during the periodic inspection that is required by § 229.23. FRA expects the maintenance to be sufficient to sustain or restore proper functionality of the air conditioning unit, meeting or exceeding the manufacturer's minimum operating specifications. FRA believes that requiring the railroads to maintain their air conditioning units in a manner that meets or exceeds the manufacturer's minimum operating specifications should result in the sufficient maintenance of the units. FRA will monitor air conditioning maintenance performed by railroads to ensure that it is being properly and adequately performed. If FRA determines that the prescribed level of maintenance is insufficient to ensure the proper functioning of the air conditioning units, FRA will consider taking regulatory action to address the issue in a future rulemaking.

FRA understands that railroad's often replace defective air conditioning units, rather than make repairs. If a railroad elects to replace its air conditioning unit during the periodic inspection, the replacement will be considered appropriate maintenance.

In paragraph (i), FRA is requiring new locomotives to be equipped with a securement device that will secure each locomotive cab from the inside. The locomotive cab is secured when the door cannot be opened from the outside by an unauthorized person, unless broken by force. A dead-bolt type arrangement can satisfy this requirement, but FRA expects that other designs may also satisfy this requirement. The requirement will apply only to locomotives ordered after the effective date of the rule and to any locomotive placed in service 6 months after the effective date of the final rule to allow railroads a reasonable amount of time to comply. However, FRA does expect all new locomotives, as of the implementation date of paragraph § 229.119(i), to fully comply with the new requirements.

Section 229.123 Pilots, Snowplows, End Plates

FRA is clarifying 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 phrase “pilot, snowplow or end plate that extends across both rails” is 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 is adding 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 (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 establishes 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. Locomotives with additional clearance are required to be stenciled at two locations; the train crew must be notified of any restrictions being placed on the locomotive; and, the amount of clearance must be noted on the Form FRA 6180-49a that is maintained in the cab of the locomotive.

AAR submitted comments stating that FRA should not require the increased amount of clearance to be noted on the Form FRA 6180-49a that is maintained in the cab of the locomotive. AAR believes that stenciling the increased amount of clearance on both ends of the locomotive will provide sufficient notice of the clearance height. FRA continues to believe that noting the increased amount of clearance on the Form FRA 6180-49a that is maintained in the cab of the locomotive will benefit safety. The Form FRA 6180-49a provides a routinely used, centralized location for the railroad to record important information about the locomotive. As a result, the information is made easily accessible to train crew members and to FRA inspectors inside the locomotive cab. The stenciling will provide additional notification to train crew members and FRA inspectors who are on the ground during the movement of the locomotive.

Section 229.125 Headlights and Auxiliary Lights

To incorporate an existing waiver, this section permits 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 is also extending 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.

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 allowed 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. 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 is removing the ditch light and crossing light requirements contained 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 with § 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 of § 229.125 for more than 10 years. No substantive changes to the auxiliary external light requirements were proposed in this section.

Section 229.140 Alerters

This section requires locomotives that operate over 25 mph to be equipped with an alerter and requires the alerters to perform certain functions. Today, a majority of locomotives are equipped with alerters. As an appurtenance to the locomotive, the alerters have been required to function as intended, if installed in the locomotive cab. The requirements contained in this final rule will increase the number of locomotives equipped with an alerter, and provide specific standards to ensure that the alerters are used and maintained in a manner that increases safety.

EMD and AAR submitted comments related to paragraph (a) stating that the implementation period for this section should be 1 year, rather than the 90 days that FRA proposed in the NPRM. FRA agrees that it is reasonable to provide up to 1 year for the railroads to comply, because the manufacturers need sufficient time to complete work on existing orders that were made before the rule became effective and would not comply with the rule. Accordingly, FRA is establishing an implementation period of 1 year in paragraph (a)(1).

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 paragraphs (b)(1) through (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 will 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.

BLET and UTU submitted comments stating that alerter requirements for locomotives that operate at speeds less than 25 MPH would improve safety. 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. In addition, 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. Therefore, if a locomotive that operates at speeds less than 25 MPH is equipped with an alerter, the alerter will be required to function. Under this authority, FRA has issued many violations against railroads for operating locomotives equipped with a non-functioning alerter.

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

B. Part 229 Subpart E—Locomotive Electronics

Comments on the proposed part 229 subpart E were received from the AAR, GE, MTA, and CATRON/CHRQ. AAR noted that the requirements of § 229.20 would more comprehensively satisfy the discussion of electronic record keeping in § 229.313(e). FRA agrees, and has revised § 229.213(e) to reference the requirements of § 229.20. FRA has further modified § 229.20 in this final rule to clarify the issue of record accessibility raised by MTA raised in conjunction with § 229.313(e) that was proposed in the NPRM.

AAR also noted that the locomotive electronics section imposes very technical obligations on railroads and that railroads will not possess the technical expertise to carry out these obligations but would have to rely on the suppliers of the equipment FRA believes that AAR and the railroads are being much too modest regarding their technical capabilities, and points to the AAR's own “Manual of Recommended Standards and Practices” as an example of the outstanding technical capabilities of the railroads. FRA does appreciate that there may be areas where the railroads' expertise may not fully align with that of their suppliers, and has modified the language in various portions subpart E to reflect this reality.

Both GE and MTA commented that the definition of “product” as proposed in the regulatory text of § 229.305 was overly broad, and might be subject to misinterpretation as it could be interpreted to cover locomotive functionality not directly required for the operation of the locomotive, such as prime mover fuel injection, ventilation louver, and fan control. While FRA believes that the intent not to include such functionality is clear in the preamble to the NPRM and the preamble to this final rule, FRA has modified the definition of “product” to more narrowly focus on the locomotive functionality which is covered by this part. The final rule definition of “product” in § 229.305 clarifies that a product, for the purposes of this subpart, is related to train movement functions and interfaces between man and machine, and it specifically excludes signal and train control functions. The preamble language has also been modified to further clarify applicability.

GE, in its comments to the NPRM, requested additional guidance related to the meaning of the terms “interfaced,” “comingled,” “integrated,” “loosely coupled,” and “primary train control systems” as used in part 229. FRA has added additional clarification in the preamble to this final rule these terms that are consistent with the RSAC working group discussions as well as Part 236 Subpart I. Specifically, FRA has:

1. Changed § 229.301(b) to delete the term “interfaces” and modified the preamble discussion accordingly.

2. Modified the definition of “new or next generation locomotive control systems” to include systems under development identified to FRA within six months of date of publication of the final rule, and implemented within 42 months after the date of publication of the final rule.

3. Modified the definition of “product” contained in § 229.305, as discussed earlier.

4. Provided a clearer definition of what is meant by “comingle.” Comingle is now defined in terms of coupling and cohesion, with new definitions for tightly coupled, loosely coupled, and cohesion added to § 229.305

In its comments, GE recommended the addition of ANSI/GEIA-STD-0010 as a recognized standard in terms of providing appropriate risk analysis processes for incorporation into verification and validation standards in proposed Appendix F. FRA agrees and has added ANSI/GEIA STD 0010 to the list of appropriate risk analysis procedures. CATRON/HCRQ also noted in their comments that ANSI/HFS 100-1988 referenced in Appendix F has been superseded by ANSI 100-2007 and that ANSI 100-2007 accommodates additional new technology (LCD and luminescent displays). FRA agrees and has changed the reference to identify ANSI/HFS 100-2007. CATRON/HCRQ also noted that “Railway Applications Specification and Demonstration of Reliability Availability, Maintainability and Safety (RAMS); Safety (RAMS) (ii) EN50128 (May 2001), Railway Applications: Software for Railway Control and Protection Systems” has been adopted by the IEC as “Railway Applications Specification and Demonstration of Reliability Availability, Maintainability and Safety (RAMS) IEC 62279:2002 (May 2001), Railway Applications: Software for Railway Control and Protection Systems;” FRA agrees and has retained the applicable CENLEC numbers and added the appropriate IEC numbers where applicable.

CATRON/HCRQ also made a large number of other recommendations regarding the wording of the language in the preamble, the rule text, and Appendix F to add clarity and accuracy. Generally, FRA agreed with the proposed changes, and they have been incorporated in the final rule.

FRA, however, does not agree with some of the recommendations made by CATRON/HCRQ in their comments. CATRON/HCRQ recommended removing the requirement for conducting sensitivity analysis, stating the “* * * [s]ensitivity analysis places an undue burden on suppliers. It is costly to perform in terms of the software tool and the effort required. It does not comply with the Executive Order of January 18, 2011 which targets Improving Regulation and Regulatory Review.” FRA believes that the sensitivity analysis is necessary to determine which elements/factors have the greatest impact on the safety of a system if assumptions are incorrect. Sensitivity analysis answers the question. “[I]f these variables deviate from expectations, what will the effect be (on the business, model, system, or whatever is being analyzed)?” In more

general terms, uncertainty and sensitivity analysis investigate the robustness of a design. Due to the importance of understanding the potential impact on system safety if design assumptions are incorrect, FRA declines to change the requirement for conducting a sensitivity analysis. Without conducting such an analysis, FRA believes that it would be difficult to assert with any degree of confidence that a presumed risk metric and risk mitigation is appropriate. FRA believes that the use of a sensitivity analysis is consistent with Section 5 of E.O. 13563, issued on January 18, 2011, which requires that “each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.” The revised section-by-section analysis for Subpart E reflecting the received comments follows:

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 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 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, the requirements of this subpart are not retroactive and do not apply to existing equipment that is currently in use, nor does it apply to new products that are actively under development. For that reason, FRA provides a grace period in paragraphs (a) and (b) to allow the completion of existing new developments. This provides sufficient time for railroads and vendors to realize profits on their investment in new technologies made prior to the adoption of this rule. Any system that has not been placed in use by the end of the grace period would be required to comply with the safety analysis requirements. Vendors are 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 will 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 paragraph (c), 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 are not exempt. Products with slightly different specifications that are used to allow the gradual enhancement of the product's capabilities do not require a full safety analysis as specified in Appendix F (or equivalent), but do require a formal verification and validation to the extent that the changes involve safety-critical functions.

Section 229.305 Definitions

Generally, this 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.

“Loosely coupled” means an attribute of systems, specifically referring to an approach to designing interfaces across systems, subsystems, or components to reduce the interdependencies between them—in particular, reducing the risk that changes within one system, subsystem, or component will create unanticipated changes within other system, subsystem, or component systems. Loosely coupled systems reduce this risk by enforcing standards for behavior at the interfaces of between systems, subsystems, or components while providing a great deal of freedom to modify activity within the systems, subsystems, or components. What happens within any one system, subsystem, or component matters little to the other systems, subsystems, or components as long as each system, subsystem, or component meets the specifications for deliverables at the interface of the systems, subsystems, or components. This is the opposite of “tightly coupled”.

“New or next-generation locomotive control system” refers to locomotive control products using technologies or combinations of technologies not in use on the effective date of this regulation, products that are under development as of October 9, 2012, and are placed in service prior to October 9, 2015, 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 and the safety analysis would be accomplished in the normal course of system design to mitigate the lack of a proven service history. The fundamental differences make it necessary to clearly

distinguish between the two classes of locomotive control systems products.

“Product” means any safety critical locomotive control system processor-based system, subsystem, or component whose functions are directly related to safe movement and stopping of the train as well as the associated man-machine interfaces, regardless of the location of the control system, subsystem, or component. It specifically excludes safety critical processor based signal and train control systems. The definition identifies the covered systems that would require a safety analysis. Generally, locomotive manufacturers consider their product to be the entire locomotive. This includes systems and subsystems. In this situation, the manufacturers' extensive knowledge of the product allows 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 railroad 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 definition of “product” indentifies the covered systems requiring a safety analysis. The definition of “product” also clarifies the location of the functionality. As advanced technologies like a remote control locomotive demonstrates the system, subsystem, or components responsible for the safe movement and stopping of the train need not be physically located on the locomotive.

The definition of “Safety Analysis” refers 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 contained in this subpart. The products covered by a PSP and PTCSP require formal FRA approval prior to the product being placed in use, and products covered by a SA do not. 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 provided for the SA in this part.

The definition of “Safety-critical,” as applied to a function, a system, or any portion thereof, means 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 the differences between locomotive control systems and signal and train control systems, the result of a safety critical failure 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 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.

“Tightly coupled” is an attribute of systems, referring to an approach to designing interfaces across systems, subsystems, or components to maximize the interdependencies between them—in particular, increasing the risk that changes within one system, subsystem, or component will create unanticipated changes within other system, subsystem, or component. Tightly coupled systems offer the potential for improved operational efficiencies compared to loosely coupled systems because of reduced message and parameter creation, transmission, translation and interpretation overhead and sharing of critical systems, subsystems, and components. However tightly coupled systems tend to exhibit the following characteristics, which are often seen as disadvantages:

1. A change in one system, subsystem, or component usually forces a ripple effect of changes in other systems, subsystems, or components

2. Assembly of system, subsystem, or component might require more effort and/or time due to the increased inter- system, subsystem, or component dependencies.

3. A particular system, subsystem, or component might be harder to reuse and/or test because dependent system, subsystem, or component must be included.

Cohesion is a measure of how strongly-related or focused are the responsibilities of a system, subsystem, or component. There are a number of different degrees of cohesion, of which the most desirable are communicational, sequential cohesion, and functional cohesion. Communicational cohesion is when system, subsystem, or components are grouped because they operate on the same data. Sequential cohesion is when parts of a system, subsystem, or component are grouped because the output from one system, subsystem, or component is the input to another part. It is analogous to an assembly line. Functional cohesion is when systems, subsystems, or components are grouped because they all contribute to a single well-defined task. While functional cohesion is considered the most desirable type of cohesion for a system, subsystem, or component, it may not be achievable. There are cases where communicational cohesion is the highest level of cohesion that can be attained under the circumstances. Low cohesion implies that a system, subsystem, or component performs tasks which are not very related to each other and hence can create problems as the system, subsystem, or component becomes large.

Comingle can be, therefore, expressed in terms the nature of the coupling and cohesion between the relevant systems, subsystems, or components. Comingle refers to the act of creating systems, subsystems, or components where the systems, subsystems, or components are tightly coupled and where the resulting systems, subsystems, or components exhibit a low degree of cohesion.

Section 229.307 Safety Analysis

The SA serves 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 that eliminates all risk (risk avoidance) 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 cost and improves 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. 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 offers 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 Appendix F.

Paragraph (b) along with paragraph (a) of this section, further establish a regulatory mandate for risk management design. Railroads that elect to allow a locomotive control system to be placed in use on its property are 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 SA 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. The latter would include: The addition or deletion of safety critical functionality to the product; significant paradigm shifts in the underlying systems' architecture or implementation technologies; or, significant departures 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. These changes, which potentially may be extensive, do not change the safety critical functionality, the underlying implementation paradigm shift, or mark a significant departure from current industry practice. FRA emphasizes that these 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. Paragraph (b) is intended to limit FRA's review of the SAs. This, of course, would not restrict FRA review where it appears that due diligence has not been exercised, there are indications of fraud or malfeasance, or the underlying technology or architecture represent significant departures from existing practice.

In paragraph (b), FRA requires that the SA 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 will 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 requires 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. It is necessary for railroads to ensure that safe system operations continue in the event of planned changes to the software or hardware maintenance of hardware and software configurations. 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 t

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