Event Recorders

[[Page 27900]]

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. LI-7; Notice 6]

RIN 2130-AA53

Event Recorders

AGENCY: Department of Transportation (DOT), Federal Railroad

Administration (FRA).

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: In response to petitions for reconsideration, FRA is amending

its regulation on event recorders. FRA is removing the requirement

that, following an accident reportable to the National Transportation

Safety Board, the railroad must refrain from extracting or analyzing

event recorder data for a period of 8 hours or until that agency

notifies the railroad that it will not conduct an investigation,

whichever comes first. FRA is also amending the definition of ``lead

locomotive'' to provide greater latitude for the location of event

recorders and is simplifying the requirements for removing event

recorders from service.

DATES: This rule is effective May 26, 1995. The final rule, as

published in the Federal Register for July 8, 1993 (58 FR 36605), was

effective November 5, 1993. The date for compliance with the duty to

have an in-service event recorder in the lead locomotive of any train

operated faster than 30 miles per hour (Sec. 229.135(a)) is May 5,

1995.

FURTHER INFORMATION CONTACT: Rolf Mowatt-Larssen, Chief, Motive Power

and Equipment Division, Office of Safety Enforcement, RRS-14, Room

8326, Federal Railroad Administration, Department of Transportation,

400 Seventh Street SW., Washington, DC 20590 (telephone 202-366-4094),

or Thomas A. Phemister, Trial Attorney, Office of Chief Counsel,

Federal Railroad Administration, 400 Seventh Street SW., Washington, DC

20590 (telephone 202-366-0635).

SUPPLEMENTARY INFORMATION: On July 8, 1993, FRA published a Final Rule

in this docket in the Federal Register. 58 FR 36605. That rule requires

trains operated at speeds in excess of 30 miles per hour to be equipped

with an event recorder in the lead locomotive, requires maintenance of

event recorders, and requires post-accident security for data in the

recorder. FRA received petitions for reconsideration and requests for

clarification from several parties. This notice is the agency's

response, arranged by topic.

Compliance Date

The original publication of this rule included a mistakenly

calculated date for compliance with the duty to equip the lead

locomotive on a train operated faster than 30 miles per hour. A

correction was published in the Federal Register for July 28, 1993 (58

FR 40468), but that correction has not been published in the bound

volume of the Code of Federal Regulations. The correct date for

compliance with the duty to equip locomotives was 18 months after the

effective date of the final rule in this docket, or May 5, 1995. This

notice rewrites Sec. 229.135(a) to include that date.

Post-Accident Data Security

On July 8, 1993, FRA published a Final Rule in this docket in the

Federal Register. 58 FR 36605. That rule, at Sec. 229.135(d)(1), stated

Accidents Reportable to the National Transportation Safety

Board. If any locomotive equipped with an event recorder is involved

in an accident that is required to be reported to the National

Transportation Safety Board (see 49 CFR Part 840), the railroad

using the locomotive shall make no attempt, except by the direction

of a representative of the Board, or as may be necessary to preserve

the data from destruction, to extract or analyze the recorded data

until 8 hours have passed from the time the accident is reported to

the National Response Center, or until the Board declares that it

will not conduct an investigation of the accident, whichever comes

first. If, within the 8- hour period, the Board notifies the

railroad that an investigation will be conducted, the railroad will

be governed by the Board's instructions; if the Board notifies the

railroad that an investigation will not be conducted, or if the

Board fails to give notification within the 8-hour period, the

railroad may extract the data consistent with the preservation

requirements of paragraph (d)(2) of this section.

FRA adopted this requirement in consideration of the comments made

in writing in response to the Advance Notice of Proposed Rulemaking

(November 23, 1988, 53 FR 47557) and the Notice of Proposed Rulemaking

(June 18, 1991, 56 FR 27931) and at the hearings held as part of both

earlier notices and after consulting with the National Transportation

Safety Board (Safety Board). It was FRA's understanding that this

provision advanced railroad transportation safety and met the Safety

Board's needs.

The Association of American Railroads (AAR), in its petition for

reconsideration, argues that FRA does not have the power to issue

Sec. 229.135(d)(1) and that, if it has the power, it has exercised that

power unlawfully. AAR also urges FRA to facilitate the railroads' needs

for access to event recorder data as soon as possible after an

accident. Finally, AAR states its opinion that FRA's actions in this

regard are ``not a good idea'' as a matter of policy.

Union Pacific Railroad Company (UP) also included the issue of

post-accident data security in its petition for reconsideration,

arguing that railroads should have immediate access to event recorder

data at all times. UP buttresses its argument by stating that railroads

need event recorder data to facilitate their own accident

investigations. Quick access to event recorder data may, for instance,

lead to immediate operational improvements or may aid in pinpointing

physical evidence that needs to be examined before the track is

restored to service or, presumably, before rail equipment is removed

from the scene.

Canadian Pacific Legal Services, filing a petition for

reconsideration on behalf of CP Rail System (CPRS), echoes the need to

have immediate access to event recorder data in the wake of an

accident.

While the Safety Board both urged and endorsed the data security

rule quoted above, it has re-evaluated this language in light of its

own Notice of Proposed Rulemaking, published June 19, 1991 (56 FR

28132). In a letter to FRA dated October 1, 1993, the Board said that

it believes that the language of Sec. 229.135(d)(1) ``may place a

regulatory burden on both the Safety Board and the railroad industry

that goes beyond that required for the efficient discharge of the

Safety Board's accident investigation program.'' In light of a

reassessment of FRA's rule and considering the comments filed in

response to its own notice, the Board has decided to explore a revision

to its earlier proposal and has requested that FRA withdraw

Sec. 229.135(d)(1).

FRA finds no merit in AAR's arguments that FRA does not have the

power to act as it did or that it exercised that power unlawfully.

Because FRA is granting the relief sought by AAR and others, this issue

need not be explored further, but AAR's statement about FRA's ``power''

misses the impact of the Federal railroad safety laws, and the

delegations under them. These enactments, for instance, extend to FRA

the authority to prescribe regulations for every area of railroad

safety (49 U.S.C. 20103). Certainly post-accident data security is one

such area.

FRA, however, agrees with railroads' need for early access to event

recorder data and believes that the current

[[Page 27901]] Sec. 229.135(d)(2) will provide the data security it

needs while at the same time facilitating the railroad's own legitimate

accident investigation priorities. For the reasons stated, FRA grants

the petitions for reconsideration insofar as they request withdrawal of

Sec. 229.135(d)(1) and amends the regulations accordingly. The language

now in Sec. 229.135(d)(2) will survive as a new paragraph (d)(1) and

the explanation of the relation of this regulation to other laws, now

in paragraph (d)(3), will be preserved as a new Sec. 229.135(d)(2).

Lead Locomotive

The final rule, at Sec. 229.135(a), states:

(a) Duty to equip. Effective [insert a date 18 months after the

effective date of a final rule in this docket], and except as

provided in paragraph (b) of this section, any train operated faster

than 30 miles per hour shall have an in-service event recorder in

the lead locomotive. For the purpose of this section ``train''

includes a locomotive or group of locomotives with or without cars

and ``lead locomotive'' means the locomotive from whose cab the crew

is operating the train and, when cab control locomotives and/or MU

locomotives are coupled together, is the first locomotive proceeding

in the direction of movement.

Several interested parties, including the Association of American

Railroads (AAR), the American Public Transit Association (APTA), Union

Pacific Railroad Company (UP), Metro-North Commuter Railroad Company

(MN), and The Long Island Rail Road Company (LIRR) requested FRA to

clarify the term ``lead locomotive'' so that it would accommodate the

operations of carriers using cab control cars, married pairs of cars,

and other similar configurations.

FRA stated in the preamble (58 FR 36610-11) that the agency ``has

determined that the recorder will be most helpful if it records the

events happening in the locomotive occupied by the engineer, that is,

the lead locomotive.'' FRA also noted that it was

Aware that push-pull commuter operations don't have a

traditional `locomotive' at the lead in one direction and that this

may present problems in some cases. The ideal solution would be for

the actions taken at the engineer's stand in the control car to be

recorded on the device in the locomotive.

FRA's primary concern is still as it was when the preamble was

written: to provide the best data for analysis, the recorder must

capture what the engineer sees and does.

In light of the submissions since the final rule was published, FRA

recognizes that its definition of ``lead locomotive'' is unnecessarily

geographically strict. The definition in the current Sec. 229.135(a)

will be amended by adding the following sentence:

The duty to equip the lead locomotive may be satisfied with an

event recorder located elsewhere provided that such event recorder

monitors and records the required data as though it were located in

the lead locomotive.

Notice of Equipped Status/Removal from Service

Several parties requested clarification on the proper means for

indicating that a locomotive is equipped with an event recorder or that

the recorder is, or has been taken, out of service. These parties also

asked whether a locomotive, once equipped with an event recorder, must

always remain equipped with an event recorder.

FRA's final event recorder rule does not impose any burden to keep

event recorders on locomotives merely because they were once so

equipped. The rule very clearly mandates a recorder on the lead

locomotive of all trains operated faster than 30 miles per hour. Thus,

a railroad deciding to limit certain locomotives to slow speed service,

where they would not operate faster than 30 miles per hour, is

permitted to remove the recorders from that equipment.

The current rule contains no specific requirement that an equipped

locomotive be marked in any way. FRA is aware that there are many ways

to tell if a locomotive is recorder-equipped, from the physical

presence of an apparatus to the ``Canadian'' method, in which the

locomotive is limited so that it cannot assume the lead position unless

the recorder is operative according to its own self-test. As noted in

the next section on testing and maintaining recorders, block 15, item 5

of the cab card (FRA Form 6180-49A) will note the successful completion

of periodic testing and maintenance on the event recorder. FRA believes

that the best way to be certain that a locomotive has an event recorder

is to note that fact on the reverse side of the cab card, under the

``REMARKS:'' section. Section 229.135(a) is amended to require

annotating the cab card when a locomotive is equipped with an event

recorder unless the recorder is designed to prohibit the locomotive

from assuming the lead position if it is not functioning.

The current rule does, however, contain a requirement at

Sec. 229.135(c) that an out-of-service recorder be tagged, and the tag

described in Sec. 229.9(a)(3) is given as an example of a proper method

of marking a malfunctioning recorder. While ``tagging'' may be suitable

for older recorders, it does not serve a purpose where the recorder is

buried within the electrical panel or fully integrated into the

electrical system. Since the final rule was issued, it has become clear

that more flexibility is necessary to accommodate different types of

event recorders. Accordingly, FRA is amending current Sec. 229.135(c)

so that annotating the cab card (Form FRA F6180-49A), on the reverse

side, under ``REMARKS:'' becomes the method of noting the out-of-

service status of a recorder. Part 229 requires each locomotive to have

a cab card to record the results of periodic inspections so there will

be no burden to apply an extra tag. As a matter of enforcement policy,

FRA will instruct its inspectors to look on the cab card first for

notes about the event recorder status of a locomotive.

Once equipped, always equipped? The inquiries about departure

testing at the conclusion of the periodic inspection also raise the

issue about whether or not a locomotive, equipped with an event

recorder, must always remain equipped. The primary requirement of the

rule, as it relates to equipment, is that the lead locomotive of a

train operated faster than 30 miles per hour must have an event

recorder (from and after May 5, 1995). Section 21 of the Rail Safety

Improvement Act of 1988 (RSIA), Pub.L. 100-342, 102 Stat. 624 (June 22,

1988), now codified at 49 U.S.C. 20138, prescribed rules ``to prohibit

the willful tampering with, or disabling of * * * railroad safety or

operational monitoring devices,'' including event recorders. In its

final rule proscribing tampering with safety devices, published

February 3, 1989 (54 FR 5485) (the rules appear at Subpart D of Part

218), FRA required installed event recorders to be operative unless the

locomotive was being hauled dead-in-tow or unless the event recorder

became inoperative enroute, in which case FRA imposed a notification

requirement similar to that used for certain signal-related equipment

that controls or restricts train operations. The AAR filed a petition

for reconsideration in that Docket. The final rule in this docket

responded in part to that petition.

While this rule requires event recorders to be in operating order

at the time the locomotive is cleared from the quarterly inspection,

these devices, like any mechanical or electronic device, are subject to

random failures. FRA sees no safety benefit in severely restricting the

operation of a locomotive costing upwards of a million dollars because

of the failure of a fifty-dollar part in a blackbox. The final rule in

this docket permits operation of a locomotive with [[Page 27902]] an

event recorder known to have failed, but it cannot be the sole power,

nor the lead locomotive, on a train operated faster than 30 miles per

hour. Section 229.135(c) is amended to read:

(c) Removal from Service. A railroad may remove an event

recorder from service, and, if a railroad knows that an event

recorder is not monitoring or recording the data specified in

Sec. 229.5(g), shall remove the event recorder from service. When a

railroad removes an event recorder from service, a qualified person

shall cause to be recorded the date the device was removed from

service on Form FRA F6180-49A, under the REMARKS section. An event

recorder designed to allow the locomotive to assume the lead

position only if the recorder is properly functioning is not

required to have its removal from service noted on Form FRA F6180-

49A.

This rule will ensure the integrity of the periodic inspection

because, when the person conducting the inspection on electrical

equipment signs the cab card, that signature will attest to the fact

that the event recorder is in working order. At the same time, the rule

will permit railroads, for operational reasons of their own, to have

event recorders in fewer than all of their locomotives. Simply put, if

a locomotive is equipped with an event recorder, the recorder must be

in operating order before the locomotive is released from the periodic

inspection. If the flexibility FRA has designed into this rule is

abused by the railroads, FRA will not hesitate to impose a stricter

standard.

Testing and Maintaining Recorders

The current regulations require inspection at the quarterly

intervals specified in Sec. 229.25. The recorder must be tested prior

to performing any maintenance work and, if it fails, must be repaired

and tested until a subsequent test is successful. A record of the

inspection and test, including a copy of the data verification results,

must be maintained until the next quarterly interval.

APTA, the Southeast Pennsylvania Transit Authority (SEPTA), AAR,

Canadian National Railways (CN), and CP Rail System expressed concern

about these requirements as they relate to micro-processor based event

recorders. Such recorders, and they appear to be the standard on

Canadian locomotives, constantly self-test and, if a self-test fails,

force a penalty brake application on the locomotive until it is taken

out of the lead position. For these recorders, it is argued, a separate

test in the shop conducting the periodic inspection is neither

necessary nor productive. FRA agrees and is amending the requirements

at Sec. 229.25(e)(2) to count a self-testing micro-processor event

recorder that has not indicated a failure as having ``passed'' the pre-

maintenance inspection requirement.

Several interested parties have suggested that the results of the

periodic inspections be simply noted on the cab card. While the fact

that a recorder has been successfully inspected, tested, and maintained

is noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5),

the event recorder regulation also calls for a copy of the ``data

verification results.'' With a magnetic tape machine, the ``results''

are, physically, the printout of the tape reading; similarly with a

micro-processor, the ``results'' are also a readable representation of

what the machine has recorded. FRA agrees with those who urge the

electronic filing of the ``data verification results'' and notes that

the rule does not limit the means by which the results ``shall be

maintained.'' Electronic filing is permissible, but FRA requires that

the electronic filing be reduced to writing upon demand.

Events To Be Recorded

The definition of an event recorder, at Sec. 229.5(g), is of a

device

That monitors and records data on train speed, direction of

motion, time, distance, throttle position, brake applications and

operations (including train brake, independent brake, and, if so

equipped, dynamic brake applications and operations) and, where the

locomotive is so equipped, cab signal aspect(s), over the most

recent 48 hours of operation of the electrical system of the

locomotive on which it is installed.

Derived data: A device that ``monitors and records data on''

various aspects of the operation of a train does not necessarily have

to record data on each separate aspect of operations. ``Train speed,''

``time,'' and ``distance,'' for instance, are mutually dependent and

any one of these parameters can be derived from the other two. The

event recorder rule does not prohibit derived data, and whether an

event is recorded directly or derived is largely a matter left to the

railroad, so long as the calculated or derived data offer the same

accuracy, reliability and precision as data recorded directly.

Throttle position/brake applications: Several interested parties

requested clarification about the requirement to record throttle

position and brake application and operations. In their powered phase

of operations, diesel-electric locomotive event recorders typically

capture several stages of throttle position, ``idle'' and notches 1 and

2 as a group and notches 3-8 individually. The heavy electric commuter

railroads have referred to a 5-position controller on multiple-unit

(MU) cars; while this has fewer positions than that of a diesel-

electric locomotive, an event recorder that captured each of these

positions would comply with the rule. A device that monitored and

recorded only one position of forward motion would not. In the braking

phase of operations, current diesel-electric locomotive recorders

monitor dynamic brake set up and brake pipe pressure reductions if

different amounts, depending on the railroad and the event recorder.

Independent brake applications are, typically, recorded as ``on/off''

with 15 psi as the dividing line. An MU locomotive event recorder that

records degrees or steps of braking power, and that shows the on/off

application of the independent brake, complies with the event recorder

rule. FRA does not see a problem just because certain heavy electric

commuter equipment has ``blended brakes,'' in which both air and

dynamic braking occur automatically with the movement of a single

lever.

Traction motor current/dynamic braking current: APTA and CN

inquired about the recording of traction motor current and dynamic

brake current. The rule does not require the recording of traction

motor current in either the powered or the dynamic brake phase,

although, on some commuter equipment, it is one way to provide the

required data on brake operations and equivalent throttle position or

motoring mode.

Direction of motion: Section 229.5(g) lists ``direction of motion''

as a required parameter. Unless the information can be derived from

other data, it must be directly recorded. FRA notes that, in the

typical freight locomotive, the position of the reverser handle is a

recorded parameter.

The ``48-hour'' rule: Several parties asked FRA to reduce the

interval for recording data. The regulation, at Sec. 229.5(g), requires

monitoring and recording data ``over the most recent 48 hours of

operation of the electrical system of the locomotive.'' There is an

exception, not relevant here, for recorders installed prior to the

effective date of the rule. Several types of recorders capture data at

set intervals or whenever the operations of the locomotive change. A

road locomotive used in switching, for instance, has frequent changes

in direction, speed, and brake system actuation. The concern of those

pushing for a shorter interval is that operations like switching will

overtax the memory capacity of a recorder. FRA chose the 48-hour rule

to be on the safe side of ensuring capture of the initial terminal

brake test. [[Page 27903]] Information from the initial terminal test

proved important in the investigation of the May 12, 1989, accident at

San Bernardino, California, as discussed in the preamble to the final

rule. (58 FR 36606). Other than the initially granted grandfather

rights, FRA is not aware of any reason with an equivalent level of

safety to reduce the required recording duration.

Cab signals--Northeast Corridor 9-aspect system: Cab signals, for

locomotives so equipped, will continue to be a required parameter,

including the new 9-aspect system on the Northeast Corridor.

Cab signals-joint operations: Several railroads operate over joint

territory and use each other``s cab signals. An earlier practice was to

marshall locomotives so that a unit belonging to the home railroad was

always in the lead or was swapped into the lead at the border between

the railroads. This method of operating allowed the ``home'' locomotive

to respond to the signals controlling its operation. Union Pacific

Railroad (UP) and Chicago and Northwestern Railway Company (CNW)

currently conduct joint operations over hundreds of miles of each

other``s cab signal territory. Their power pool arrangements are such

that a locomotive of either railroad may be in the lead and it would be

detrimental to service to change lead locomotives at the property line.

The problem is that the two carriers have incompatible cab signal

systems, a condition they have mitigated by having dual cab signals in

the pooled locomotives. Either railroad``s locomotives can read the

signals of the other, but their event recorders are not equipped with

the capacity to record other than the signals of the home road. The

rationale for requiring cab signal recording was that it was a vital

part of accident investigation and that, because the signal was already

on board, it would not be overly difficult to record it. That rationale

is still valid, and FRA does not contemplate amending this portion of

the event recorder rule. UP and CNW are welcome to petition for a

waiver, or for an extension of time to expand the recording capacity of

their event recorders, but this notice makes no change in the

requirement as published.

Cab signals--separate recorders: Delaware and Hudson Railway

Company operates a small number of locomotives with cab signal

equipment. That equipment has a built-in device that records, in real

time, date, speed, cab signal aspects, distance, and the status of the

automatic equipment test. Proprietary software is used to download this

information into a portable computer. This equipment complies with the

event recorder rule, provided that the two recordings can be

synchronized with a common parameter.

Speed

APTA requested clarification on the ``over 30 miles per hour''

parameter for requiring recorders; does it, for instance, exclude

trains that are restricted by a railroad's operating rules and/or

policy to speeds of 30 miles per hour or less? FRA does not restrict

the methods railroads use to set the speeds of the trains they operate.

Whether a train is restricted to 30 miles per hour or less by the class

of track on which it operates or by company policy is immaterial.

Effective May 5, 1995, if a train is operated faster than 30 miles per

hour, it must have an event recorder in the lead locomotive--slower

than that, the requirement does not apply.

Accuracy

Several parties requested clarification on accuracy and data

resolution. FRA believes that accuracy, together with refinements in

sampling intervals, are issues for future activity. As the agency said

in the preamble to the final rule (58 FR 36609),

Some commenters raised issues about the recorder's sampling

intervals and sampling accuracy. FRA certainly expects that event

recorders will be as accurate as present standards for speed

indicators and for air gauges, but the agency realizes that more

developmental work needs to be done in this area. FRA has decided

not to further delay the requirement to have event recorders on

trains and will postpone for now standards that would require

resolution of technological issues that are intertwined with the

extended development of solid state recorders and with

recommendations that event recorders be standardized as to size,

location, and crash worthiness.

Event Recorder Maintenance

Remote inspection: Kansas City Southern (KCS), D&H, and Soo Line

requested clarification of and relief from the blackbox maintenance

rules. Some of their locomotives are maintained at facilities without

the equipment to read and analyze the data tapes from the recorders,

and they seek to perform the recorder pre-maintenance inspection at a

location remote from the shop where the rest of the periodic inspection

work is performed. The rule does not specify where periodic recorder

maintenance must be done, but only that it be performed every periodic

inspection. The operative principles are (1) locomotives shall not

leave the periodic inspection point with an inoperative event

recorder--unless the cab card is annotated to show the locomotive as

``unequipped,'' (2) testing of recorders must precede maintenance work

on them, and (3) trains operated over 30 miles per hour must have an

in-service event recorder in the lead locomotive. In order to provide

necessary flexibility, FRA will consider an event recorder test done up

to 5 calendar days prior to the periodic inspection as complying with

the requirements of this rule. If a railroad finds that it cannot

complete testing and maintenance on an event recorder prior to the

completion of the periodic inspection, it has the option of taking the

recorder out of service and noting that fact on the cab card, following

procedures allowed in Sec. 229.135(c). FRA had been requested to allow

a 5-day ``grace'' period--before or after the periodic inspection-- for

event recorder testing and maintenance where data analysis and/or

recorder repair took place other than at the facility performing the

period inspection. The agency understands the practical problems

associated with providing every point performing periodic inspections

with the sophisticated electronic equipment necessary to test and

maintain event recorders. At the same time, FRA must maintain the

integrity of its periodic inspection requirements. Section 229.23(d)

has not been amended by this rule. The person conducting an inspection

signs the card and that person's supervisor certifies that the work was

done. In the case of event recorders, as noted earlier, the fact that a

recorder has been successfully inspected, tested, and maintained is

noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5). This

means that a locomotive can depart the periodic inspection in one of

three ways: without an event recorder, with a working event recorder,

or with an event recorder properly taken out of service.

Ninety percent effective: In the preamble to the final rule, FRA

stated:

FRA has no desire to create unnecessary maintenance burdens on

the railroads on the one hand, but, on the other, it cannot condone

event recorders which fail for lack of effective maintenance.

Testimony and comments by representatives of the railroads and of

the suppliers demonstrate agreement that a properly maintained

recorder will operate from one quarterly inspection to the next

without failure, virtually all of the time. The final rule

recognizes what industry has said and, accordingly, requires event

recorders to be maintained so well that 90 percent of them are still

functioning as intended when they arrive at the quarterly

inspection. If this level of performance cannot be met on a month-

to-month basis, the final rule then requires maintenance

[[Page 27904]] intervals and practices to be adjusted so that it

can.

APTA asked if the ``90 percent functional'' requirement applied to

all parameters recorded by a particular carrier's blackbox or only to

those required by the rule. Because the rule defines event recorders in

relation to particular, required parameters, and because pre-

maintenance testing requires ``cycling all required parameters,'' the

rule clearly aims only at maintaining the operability of the required

parameters. A recorder with a non-functioning, but non-defining

parameter may still be both an ``in-service'' recorder under

Sec. 229.5(I) and ``fully functional'' under Sec. 229.25.

Post-periodic inspection departure testing: The event recorder

rule, at Sec. 229.25(e)(3), states:

(3) If this test does not reveal that the device is recording

all the specified data and that all recordings are within the

designed recording parameters, this fact shall be noted on the data

verification result required to be maintained by this section and

maintenance and testing shall be performed as necessary until a

subsequent test is successful.

The blackboxes used by the Canadian railroads are interchangeable,

and if one is discovered with a fault, it is swapped out for a known

good one and the defective unit is returned to the factory for repair.

(Part of the installation procedure includes entry into the computer of

the identification of the locomotive on which the unit is located.)

Section 229.25(e)(3) could be read as requiring successful repair of

the unit currently installed on the locomotive before that locomotive

departs the 92-day inspection. Such an interpretation strains against

industry practices and injects an unnecessary layer of regulation into

the system. FRA supports the change-out of bad units for good as part

of the post-periodic departure check-out.

Removal from service--calendar day inspection: One of the commuter

railroads asked if a locomotive found at the Monday morning inspection

with the recorder ``fault light'' on can be used as a lead locomotive

until Tuesday morning. Assuming the railroad complies with the

requirements for taking a recorder out of service, Sec. 229.135(b)

allows the use of the locomotive as a lead unit until the next calendar

day inspection.

New and Rebuilt Locomotives

AAR and The American Short Line Railroad Association (ASLRA) seek

to have the event recorder requirements apply to new and rebuilt

locomotives only. This is in accord with industry practices, and

according to data presented by the railroads during the rulemaking

process, 62 percent of Class I road locomotives are currently equipped

with a qualifying event recorder. Based on industry information and

testimony presented before the final rule was issued, 90 percent or

more of the road trains are equipped with a recorder. While it is not

always clear exactly what types of trains are being counted in these

figures, it is clear that not all locomotives need to be equipped to

achieve full compliance with a rule requiring event recorders on the

lead locomotive of all trains operated faster than 30 miles per hour.

FRA considered the new/rebuilt option and concluded, in concert

with safety, policy, and legal offices at the agency and Departmental

level, that a rule requiring event recorders on new and rebuilt

locomotives only does not reflect the best interpretation of the

mandate in RSIA to equip trains where doing so will enhance safety. FRA

believes that the option it chose, requiring event recorders on the

lead locomotive of trains operated faster than 30 miles per hour, does

satisfy the best interpretation of a statutory mandate to ``issue such

rules, regulations, standards, and orders as may be necessary to

enhance safety by requiring that trains be equipped with event

recorders * * *.'' (RSIA, section 21) The safety enhancements of

recorders were fully discussed in the preamble to the final rule and

need not be repeated here. In addition, FRA became aware, during the

development of this rule, that several railroads believe the number of

recorder equipped locomotives in their fleets will enable them to

comply with a requirement for an event recorder in the lead locomotive

of every train operated faster than 30 miles per hour. For these

railroads, a requirement to equip each new or rebuilt locomotive with

an event recorder would be an unjustified burden.

Another party to this proceeding, NTSB, urged that all locomotives

in a train should be equipped (the ultimate result of equipping new and

rebuilt locomotives) in order to permit accident investigators to

determine the performance of each locomotive in the consist. In

addition to the obvious cost implications of this suggestion, there are

sound reasons for not attempting to mandate equipping all locomotives

at this time. FRA knows that event recorder technology is likely to

advance rapidly. Accordingly, rather than establish a rule that would

eventually require an event recorder meeting today's standard on every

locomotive (except those traveling so slowly they do not even need

speed indicators), FRA believes that it is wise to wait to see whether

the recorders themselves become significantly better than they now are.

FRA believes that, as recorder technology advances, standards will be

set for sampling intervals, the ranges of recorded parameters, the

accuracy of recording, accident survivability, and data extraction

protocols. As good as these ideas are, FRA cannot bring them into being

simply by mandating them; FRA's option of equipping fast trains rather

that all new and rebuilt locomotives will allow time to bring these

concepts to mature and practical fruition.

In analyzing costs, FRA used the best data it had. As noted in its

``Final Rule Regulatory Impact Analysis,''

Under normal railroad operations, where many trains are powered

by multiple power units, 100% coverage is possible with

significantly less than 100% of the units being equipped with a

recorder.

There is a point, however, at which the efforts to manage,

reassign, and shift power to assure full coverage may cost more that

the installation of additional recorders. Unfortunately, FRA does

not have the type of individualized, proprietary information

necessary to analyze these trade-offs and arrive at the perfect

cost-minimalization strategy. We have therefore employed what we

believe to be a conservative approach in a deliberate effort not to

understate costs.

``Event Recorders Final Rule Regulatory Impact Analysis,'' February 12,

1993, p. 9.

Finally, as FRA discussed in the preamble to the final rule (58 FR

36607), the primary safety benefit of event recorders lies in their use

as a tool to diagnose train handling accidents, to continue building a

knowledge base of accident causation, and, through sampling actual

train movements, to evaluate changes in methods of train operation.

Event recorders also provide a way to sample the train-handling ability

of an engineer in a real-world environment. FRA has determined that

event recorders enhance railroad safety. Whether they are used to aid

accident analysis, to monitor locomotive engineers' performance, or to

monitor equipment performance, event recorders provide data that are

free from bias, free from the inconsistent powers of human observation,

and free from the possible taint of self-interest. The data extracted

from recorders can be played over and over as part of the analysis

process without losing their consistency. Event recorders provide FRA

with a growing pool of verifiable factual information about how trains

are operated and what happens when they become part of an accident.

Even the presence of event recorder data will not ensure the

[[Page 27905]] discovery of the cause of every accident nor eliminate

all sources of controversy about causation, but as shown in the

Southern Pacific's San Bernardino derailment, event recorder data can

help direct the attention of an accident investigator to possible

causes not at first suspected. In addition, by reducing the potential

for bias from accident investigations, the data from event recorders

can help pinpoint operational changes that may prevent the next

accident.

FRA does not find merit in the argument that event recorders should

only be required on new and rebuilt locomotives and rejects the

requests filed by AAR and ASLRA to so amend the final rule.

Recording While Stationary

FRA's event recorder rule states, at Sec. 229.5(g),

``Event recorder'' means a device, designed to resist tampering,

that monitors and records data on train speed, direction of motion,

time, distance, throttle position, brake applications and operations

(including train brake, independent brake, and, if so equipped,

dynamic brake applications and operations) and, where the locomotive

is so equipped, cab signal aspect(s), over the most recent 48 hours

of operation of the electrical system of the locomotive on which it

is installed. A device, designed to resist tampering, that monitors

and records the specified data only when the locomotive is in motion

shall be deemed to meet this definition provided the device was

installed prior to November 5, 1993, and records the specified data

for the last eight hours the locomotive was in motion.

CN is concerned about the ``installed prior to * * *'' language,

because its present recorders record only while the locomotive is in

motion but, because its recorders are interchangeable, a particular

unit may be ``installed'' and ``uninstalled'' as necessary to keep an

operating recorder on the locomotive in the lead. The purpose of the

cut-off date was to prevent additional purchases of ``motion only''

recorders and to give railroads owning such recorders time to phase out

these units in the normal course of business. FRA is aware that CN has

embarked on a program to upgrade their recorders when factory

maintenance is performed. Unless a pattern of abuse comes to FRA's

attention, FRA sees no need to change its flexible approach: ``motion

only'' event recorders in a carrier's service, whether in inventory or

installed on a locomotive, as of November 5, 1993, are deemed to

comply.

Extensions of Time

APTA said that ``it would be helpful for * * * FRA to elaborate on

some of the general criteria it expects to use and the minimum

supporting documentation it expects to receive in considering * * *''

requests for an extension of time to comply with the event recorder

rule. Unfortunately, there is no cookbook recipe for a petition for

waiver of a safety rule, other than as published in 49 CFR Part 211.

Railroads seeking waivers are advised to state their real needs as

clearly as possible and to carefully follow the procedures in

Secs. 211.7 and 211.9.

Regulatory Impact

This rule has been evaluated under Executive Order 12688 and the

DOT policies and procedures. Although the original rule met the

criteria for being a significant rule under those policies and

procedures, these amendments are not considered significant since they

either delete requirements concerning procedural matters or allow for

greater flexibility in complying with the rule.

The economic impact of this change will be to reduce the cost of

compliance with FRA regulations. That cost reduction will be of a

minimal nature and does not alter FRA's original analysis of the costs

and benefits associated with the basic rule. FRA certifies that this

amendment will not have a significant impact on small entities.

Similarly, this amendment will not alter the information collection

requirements of this regulation; will have no identifiable

environmental impact; and will have no effect on the states or the

distribution of power and responsibilities among various levels of

government.

As provided for in 5 U.S.C. 553(d), FRA finds that there is good

cause for making this rule effective in less that 30 days from

publication. Efforts to comply with certain requirements being deleted

by this rule might generate an undue burden on the Safety Board and the

railroad industry. Prompt amendment of the provision dealing with post-

accident data security will avoid unwarranted confusion within the

regulated community concerning their legal obligation in the event of

an accident. The other amendments made by this notice recognize the

enforcement policy of the agency.

List of Subjects in 49 CFR Part 229

Penalties, Railroad safety, Reporting and recordkeeping

requirements.

The Rule

Therefore, in consideration of the foregoing, FRA amends Part 229,

Chapter II, Subtitle B of Title 49, Code of Federal Regulations as

follows:

PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS

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

follows:

Authority: 49 U.S.C. Chapters 201, 207, and 213; 49 U.S.C. 103;

Pub. L. 100-342; Pub. L. 102-365; Pub. L. 102-533; Pub. L. 103-272;

49 CFR 1.49 (c), (g), and (m).

2. By revising Sec. 229.5(i) to read as follows:

Sec. 229.5 Definitions.

(i) In-service event recorder means an event recorder that was

successfully tested as prescribed in Sec. 229.25(e) and whose

subsequent failure to operate as intended, if any, is not actually

known by the railroad operating the locomotive on which it is

installed.

* * * * *

3. By revising Sec. 229.25(e)(2) to read as follows:

Sec. 229.25 Tests: every periodic inspection.

* * * * *

(e) * * *

(2) The event recorder shall be tested prior to performing any

maintenance work on it. At a minimum, the event recorder test shall

include cycling all required recording parameters and determining the

full range of each parameter by reading out recorded data. A micro-

processor based event recorder, equipped to perform self-tests, has

passed the pre-maintenance inspection requirement if it has not

indicated a failure.

* * * * *

4. By revising Sec. 229.135 (a) through (d) to read as follows:

Sec. 229.135 Event Recorders.

(a) Duty to equip. Effective May 5, 1995, and except as provided in

paragraph (b) of this section, any train operated faster than 30 miles

per hour shall have an in-service event recorder in the lead

locomotive. The presence of the event recorder shall be noted on Form

FRA F6180-49A, under the REMARKS section, except that an event recorder

designed to allow the locomotive to assume the lead position only if

the recorder is properly functioning is not required to have its

presence noted on Form FRA F6180-49A. For the purpose of this section,

``train'' includes a locomotive or group of locomotives with or without

cars, and ``lead locomotive'' means the locomotive from whose cab the

crew is operating the train and, when cab control locomotives and/or MU

locomotives are coupled together, is the first locomotive proceeding in

the direction of movement. The duty to equip the lead locomotive may be

met [[Page 27906]] with an event recorder located elsewhere than the

lead locomotive provided that such event recorder monitors and records

the required data as though it were located in the lead locomotive.

(b) Response to defective equipment. A locomotive on which the

event recorder has been taken out of service as provided in paragraph

(c) of this section may remain as the lead locomotive only until the

next calendar-day inspection. A locomotive with an inoperative event

recorder is not deemed to be in improper condition, unsafe to operate,

or a non-complying locomotive under Secs. 229.7 and 229.9, and

notwithstanding any other requirements in this chapter, inspection,

maintenance, and testing of event recorders is limited to the

requirements set forth in Sec. 229.25(e).

(c) Removal from service. A railroad may remove an event recorder

from service and, if a railroad knows that an event recorder is not

monitoring or recording the data specified in Sec. 229.5(g), shall

remove the event recorder from service. When a railroad removes an

event recorder from service, a qualified person shall cause to be

recorded the date the device was removed from service on Form FRA

F6180-49A, under the REMARKS section. An event recorder designed to

allow the locomotive to assume the lead position only if the recorder

is properly functioning is not required to have its removal from

service noted on Form FRA F6180-49A.

(d) Preserving accident data. For the purposes of this section, the

term ``event recorder'' includes all locomotive-mounted recording

devices designed to record information concerning the functioning of a

locomotive or train regardless of whether the device meets the

definition of ``event recorder'' in Sec. 229.5.

(1) Accidents required to be reported to the Federal Railroad

Administration. If any locomotive equipped with an event recorder is

involved in an accident that is required to be reported to FRA, the

railroad using the locomotive shall, to the extent possible, and to the

extent consistent with the safety of life and property, preserve the

data recorded by the device for analysis by FRA. This preservation

requirement permits the railroad to extract and analyze such data;

provided the original or a first-order accurate copy of the data shall

be retained in secure custody and shall not be utilized for analysis or

any other purpose except by direction of FRA or the National

Transportation Safety Board. This preservation requirement shall expire

30 days after the date of the accident unless FRA or the Board notifies

the railroad in writing that the data are desired for analysis.

(2) Relationship to other laws. Nothing in this section is intended

to alter the legal authority of law enforcement officials investigating

potential violation[s] of State criminal law[s] and nothing in this

chapter is intended to alter in any way the priority of National

Transportation Safety Board investigations under 49 U.S.C. 1131 and

1134, nor the authority of the Secretary of Transportation to

investigate railroad accidents under 49 U.S.C. 5121, 5122, 20107,

20111, 20112, 20505, 20702, 20703, and 20902.

* * * * *

Issued in Washington, D.C., on May 19, 1995.

Jolene M. Molitoris,

Administrator.

[FR Doc. 95-12963 Filed 5-25-95; 8:45 am]

BILLING CODE 4910-06-P