Two-Way End-of-Train Telemetry Devices

SUMMARY: FRA is revising the regulations governing train and locomotive

power braking systems to include provisions pertaining to the use and

design of two-way end-of-train telemetry devices (two-way EOTs). Two-

way EOTs provide locomotive engineers with the capability of initiating

an emergency brake application that commences at the rear of the train.

These revisions are designed to improve the safety of railroad

operations by requiring the use of these devices on a variety of

freight trains in accordance with legislation enacted in 1992 and by

providing minimum performance and operational standards related to the

use and design of two-way EOTs.

EFFECTIVE DATE: The rule is effective July 1, 1997.

ADDRESSES: Any petition for reconsideration should be submitted to the

Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,

400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.

FOR FURTHER INFORMATION, CONTACT: Thomas Peacock, Motive Power and

Equipment Division, Office of Safety, RRS-14, Room 8326, FRA, 400

Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-632-3345),

or Thomas Herrmann, Trial Attorney, Office of the Chief Counsel, FRA,

400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-632-

3167).

SUPPLEMENTARY INFORMATION:

Background

The train air brake system is complex and sensitive. A simplified

summary of its operation may be useful in understanding the use and

desirability of the technology required by this final rule. The train

air brake system is composed of three major parts: (i) a signal sender;

(ii) a signal relayer; and (iii) a signal receiver/responder.

The brake valve on the locomotive is the signal sender. Operation

of the valve permits air to be pumped into or released from the brake

pipe. The pressure change resulting from the additional or reduced air

supply in the brake pipe is the ``signal.'' The brake pipe, also known

as the train air line, is the ``signal relayer.'' The brake pipe is the

continuous air line running from the front of the train to the rear of

the train. The continuity of the air line from car to car is

accomplished by means of flexible air hoses. The brake pipe is closed

(sealed) at the rear of the train and pressurized so that, apart from

air leakage in the system, changes in the brake pipe pressure are made

through operation of the brake valve on the locomotive.

When the engineer ``sets the brakes,'' air is released from the

brake pipe through the locomotive brake valve. This release of air

reduces the pressure of the brake pipe, beginning at the front of the

train. The pressure reduction moves down the brake pipe to the rear of

the train. Thus, the signal is relayed by the brake pipe to the entire

train. Similarly, when the brakes are released, the locomotive brake

valve is positioned so that air is pumped into the brake pipe, sending

a pressure increase through the brake pipe. A pressure reduction in the

brake pipe rather than a pressure increase initiates a brake

application. Consequently, the train air brake system is said to be

``failsafe,'' i.e., if an air hose bursts, the resulting loss of air

pressure in the brake pipe will initiate a brake application.

The third major part of the train air brake system is the ``signal

receiver/responder'' valves located on each car, which receive and

interpret the changes in the brake pipe pressure. These valves initiate

the application or release of the brake on each individual car. The

degree of braking effort is determined by the degree of the brake pipe

pressure drop, generally described as a partial service reduction, a

full service reduction, or an emergency application.

An EOT device is a radio telemetry device composed of a front unit,

located in the cab of the controlling locomotive, and a rear unit,

located at the rear of the train and attached to the brake pipe.

Provisions governing the use of one-way EOTs were incorporated into the

power brake regulations in 1986. See 49 CFR 232.13 and 232.19. One-way

EOTs have the capability of interpreting rear-of-train brake pipe

pressure and of transmitting that information via radio to the front

receiving unit in the cab of the controlling locomotive. Optional

features include the transmission of information regarding rear end

motion and battery status. Many of the rear units of an EOT also

incorporate rear-end marking devices required by 49 CFR Part 221. One-

way EOTs only have the ability to transmit information from the rear

unit to the front unit.

Since the advent of EOTs, technological advances have been made to

incorporate ``two-way communication'' into the system. The two-way

EOTs, in addition to the features of the one-way EOTs, have the ability

of transmitting from the controlling locomotive an emergency brake

application that begins at the rear of the train. This is a desirable

feature in event of a blockage or separation in the train's brake pipe

that would prevent the pneumatic transmission of the emergency brake

application throughout the entire train. In 1986, FRA concluded that

mandating the installation of two-way EOTs was not warranted. At that

time, cabooseless trains operating without two-way EOTs lacked any

ability to initiate an emergency brake application from the rear of the

train and in FRA's view there was no demonstrated a need for the EOT to

do so. Furthermore, at that time EOTs with two-way capability were not

commercially available. In addition, since two-way capability requires

two-way signal transmission, the cost of the devices sharply increased.

Nevertheless, FRA made a public commitment then to monitor developments

in EOT technology and to review the subject periodically. See 51 FR

17300, 17301 (May 9, 1986).

Since 1986, significant advances have been made in the development

of two-way EOTs, and they are now commercially available in the

marketplace from several manufacturers. In 1987, two-way EOTs were

mandated in Canada as a condition for elimination of cabooses. FRA

received recommendations from the National Transportation Safety Board

(NTSB) and petitions from the United Transportation Union, the

Brotherhood of Locomotive Engineers, the Oregon Public Utilities

Commission, the Washington Utilities and Transportation Commission, and

the Montana Public Service Commission to require two-way EOTs on all

cabooseless trains operating in certain territories.

In 1992, Congress amended the Federal rail safety laws by adding

certain statutory mandates related to power brake safety. See 49 U.S.C.

20141 (formerly contained in Section 7 of the Rail Safety Enforcement

and Review Act, Pub. L. No. 102-365 (September 3, 1992), amending

Section 202 of the Federal Railroad Safety Act of 1970, formerly

codified at 45 U.S.C. 421, 431 et seq.). These amendments specifically

address two-way EOTs by adding a new subsection which states:

[[Page 279]]

(r) POWER BRAKE SAFETY.--* * * (3)(A) The Secretary shall

require 2-way end of train devices (or devices able to perform the

same function) on road trains other than locals, road switchers, or

work trains to enable the initiation of emergency braking from the

rear of the train. The Secretary shall promulgate rules as soon as

possible, but not later than December 31, 1993, requiring such 2-way

end of train devices. Such rules shall at a minimum--

(i) set standards for such devices based on performance;

(ii) prohibit any railroad, on or after the date that is one

year after promulgation of such rules, from acquiring any end of

train device for use on trains which is not a 2-way device meeting

the standards set under clause (i);

(iii) require that such trains be equipped with 2-way end of

train devices meeting such standards not later than 4 years after

promulgation of such rules; and

(iv) provide that any 2-way end of train device acquired for use

on trains before such promulgation shall be deemed to meet such

standards. (B) The Secretary may consider petitions to amend the

rules promulgated under subparagraph (A) to allow the use of

alternative technologies which meet the same basic performance

requirements established by such rules. (C) In developing the rules

required by subparagraph (A), the Secretary shall consider data

presented under paragraph (1).

(4) The Secretary may exclude from the rules required by

paragraphs (1), (2), and (3) any category of trains or rail

operations if the Secretary determines that such an exclusion is in

the public interest and is consistent with railroad safety. The

Secretary shall make public the reasons for granting any such

exclusion. The Secretary shall at a minimum exclude from the

requirements of paragraph (3)--

(A) trains that have manned cabooses;

(B) passenger trains with emergency brakes;

(C) trains that operate exclusively on track that is not part of

the general railroad system;

(D) trains that do not exceed 30 miles per hour and do not

operate on heavy grades, except for any categories of such trains

specifically designated by the Secretary; and

(E) trains that operate in a push mode.

Pub. L. No. 102-365, Sec. 7; codified at 49 U.S.C. 20141, superseding

45 U.S.C. 431(r).

Proceedings to Date

In response to the statutory mandate, the various recommendations,

and due to its own determination that the power brake regulations were

in need of revision, FRA published an Advance Notice of Proposed

Rulemaking (ANPRM) on December 31, 1992 (57 FR 62546) and conducted a

series of public workshops in early 1993. A section of the ANPRM was

specifically designed to elicit comments, information, and views on

two-way EOTs, and a portion of the public workshops covered this topic.

See 57 FR 62550-62551. Based on the comments and information received,

FRA published an NPRM regarding revision the power brake regulation

which contained specific requirements related to two-way EOTs. See 57

FR 47700, 47713-14, 47731, 47734, and 47743.

Following publication of the NPRM in the Federal Register (59 FR

47676), FRA held a series of public hearings in 1994 to allow

interested parties the opportunity to comment on specific issues

addressed in the NPRM. Public hearings were held in Chicago, Illinois

on November 1-2; in Newark, New Jersey on November 4; in Sacramento,

California on November 9; and in Washington, D.C. on December 13-14,

1994. These hearings were attended by numerous railroads, organizations

representing railroads, labor organizations, rail shippers, and State

governmental agencies. Due to the strong objections raised by a large

number of commenters, FRA announced by notice published on January 17,

1995 that it would defer action on the NPRM and permit the submission

of additional comments prior to making a determination as to how it

would proceed in this matter. 60 FR 3375. In the January notice, FRA

also stressed that it did not intend to defer implementation of the

requirement for two-way EOTs beyond an effective date of December 31,

1997.

In the ANPRM and the NPRM, FRA identified 11 recent incidents that

might have been avoided had the involved trains been equipped with two-

way EOTs. See 57 FR 62550; 59 FR 47713-14. In addition, on December 14,

1994, in Cajon Pass in California, an intermodal train operated by The

Atchison, Topeka and Santa Fe Railway Company (Santa Fe) collided with

the rear end of a unit coal train operated by the Union Pacific

Railroad Company, resulting in the serious injury of two crew members

and total estimated property damages in excess of $4 million. After

investigation of this incident, the NTSB concluded that, had the train

been equipped with a two-way EOT, the collision could have been avoided

because the engineer could have initiated an emergency brake

application from the end of the train. On December 15, 1995, based on

the conclusion reached above, the NTSB made the following

recommendation to FRA:

Separate the two-way end-of-train requirements from the Power

Brake Law NPRM, and immediately conclude the end-of-train device

rulemaking so as to require the use of two-way end-of-train

telemetry devices on all cabooseless trains. (R-95-44).

Furthermore, on February 1, 1996, again in Cajon Pass, a westward

Santa Fe freight train derailed on a descending three-percent grade.

The incident resulted in fatal injuries to two of the crew members,

serious injuries to a third, and the derailment of 45 of 49 cars and

four locomotives. Although investigation of this incident is currently

in progress, it appears as though it could have been avoided had the

train been equipped with a means for the train crew to have effected an

emergency brake application from the rear of the train. The two

aforementioned incidents resulted in FRA's issuance on February 6,

1996, of Emergency Order No. 18 (61 FR 5058), which requires the

affected railroad to ensure that its train crews have the ability to

effect an emergency brake application from the rear of the train on all

westward freight trains operating through Cajon Pass.

Consequently, based on these considerations and after review of all

the comments submitted, FRA determined that in order to limit the

number of issues to be examined and developed in any one proceeding it

would proceed with the revision of the power brake regulations via

three separate processes. In light of the testimony and comments

received on the NPRM, emphasizing the differences between passenger and

freight operations and the brake equipment utilized by the two, FRA

decided to separate passenger equipment power brake standards from

freight equipment power brake standards. As passenger equipment power

brake standards are a logical subset of passenger equipment safety

standards, the passenger equipment safety standards working group will

assist FRA in developing a second NPRM covering passenger equipment

power brake standards. See 49 U.S.C. 20133(c). In addition, a second

NPRM covering freight equipment power brake standards will be developed

with the assistance of FRA's Railroad Safety Advisory Committee. See 61

FR 29164. Furthermore, in the interest of public safety and due to

statutory as well as internal commitments, FRA determined that it would

separate the issues related to two-way EOTs from both the passenger and

freight issues, address them in a public regulatory conference, and

issue a final rule on the subject as soon as practicable.

Pursuant to a notice published on February 21, 1996 (61 FR 6611),

FRA held an informal public regulatory conference on March 5, 1996, in

Washington, D.C. to further discuss issues related to the proposed

[[Page 280]]

requirements on two-way EOTs contained in the NPRM. In accordance with

the Administrative Procedure Act (5 U.S.C. 551 et seq.), the public

regulatory conference was a continuation of the power brake rulemaking

proceeding. In this notice, based on a review of the substantial number

of comments submitted in connection with the ANPRM and the NPRM

regarding two-way EOTs, FRA identified and provided some discussion of

seven major issue areas regarding two-way EOTs including: the

definition of ``mountain grade territory,'' en route failures of the

devices, trains subject to the requirements, initial terminal

requirements, design requirements, calibration requirements, and cost/

benefit information. As part of the cost/benefit discussion, FRA

identified 26 potentially preventable accidents had the trains involved

been equipped with two-way EOTs. See 61 FR 6615. This public regulatory

conference was attended by representatives of at least seven railroads,

two organizations representing Class I and short line railroads, four

labor organizations, two manufacturers of the two-way EOTs, and one

State public utilities commission. Written comments were received from

most of these parties or their representative. The comment period for

this proceeding closed on April 15, 1996; however, comments received

after that date have been considered.

Discussion of Comments and Conclusions

Those parties filing comments and presenting testimony regarding

two-way EOTs at the hearings following publication of the ANPRM and

NPRM as well as the public regulatory conference have provided the

agency with a wealth of facts and informed opinions and have been

extremely helpful to FRA in resolving the issues. While most commenters

provided testimony or written comments on more than one issue, and

while most of the comments supported the position(s) of at least one

other commenter, the issues themselves were centered around a few key

concepts. Rather than attempt to paraphrase each commenter's response

to each of the proposed regulatory sections in the NPRM, FRA believes

it is better, and more understandable, to discuss the key issue areas

in this proceeding and present the thrust of the comments on each of

these.

A. Replacement of Term ``Mountain Grade'' with ``Heavy Grade'';

Definition of Heavy Grade

In the NPRM as well as in the Notice of Public Regulatory

Conference, FRA consistently used the term ``mountain grade'' territory

to describe those areas where trains, even though operating below 30

mph, would be required to be equipped with a two-way EOT. Several

commenters recommended that FRA abandon its use of the term ``mountain

grade'' territory because it is confusing and inconsistent with the

language used in the statute. See 49 U.S.C. 20141(c). In order to

remain consistent with the language used in the statutory mandate and

to avoid confusion by affected parties, FRA will not use the term

``mountain grade'' territory in the final regulations and will instead

use the term ``heavy grade.''

In Appendix C of the NPRM, FRA proposed a definition of mountain

grade territory as a section of track of distance, D, with an average

grade of 1.5 percent or more over that distance which satisfies the

following relationship:

(30/V)2G2D12

Where:

G = average grade x 100

D = distance in miles over which average grade is taken

V = speed of train

See 59 FR 47719, 47753. FRA also provided a chart containing mountain

grade territory curves based on an application of the definition. See

59 FR 47753. FRA developed this empirical relationship based on most

commenters' suggestions that some type of formula be developed based on

a variety of factors, including train tonnage, speed, length of grade,

percent of grade, and distance of grade. FRA determined that the three

most important variables in defining mountain grade were: (i) the speed

of the train (V); (ii) the steepness of the grade (G); and (iii) the

length of the grade (D).

Many commenters found the definition contained in the NPRM

confusing, inaccurate, and impractical. These commenters suggested that

the definition would result in known mountain or heavy grades not being

covered by the two-way EOT requirement, while other areas never before

believed to be mountain grades would fall within the requirement.

Several commenters also recommended that the definition be eliminated

and that the two-way EOT requirements apply solely to trains operating

in excess of 30 mph. The California Public Utilities Commission

suggested that, short of requiring the devices on every train, the

fundamental criterion should be the ability of the train to stop within

a safe distance based solely on the ability of the independent

locomotive brakes. Other commenters suggested that other criteria be

used to define mountain grade territory and that the formula be

simplified. One commenter recommended that the proposed definition be

eliminated, and that the two-way EOT requirements be applied to trains

operating over 30 mph and to heavy tonnage and long trains as defined

in FRA's proposal.

Based on these comments as well as its reconsideration of the

proposed definition, FRA acknowledged that the definition contained in

the NPRM was confusing and inaccurate in its Notice of Public

Regulatory Conference published on February 21, 1996. See 61 FR 6612.

In that Notice, FRA requested alternative suggestions and proposed

replacing the term ``mountain grade'' with ``heavy grade'' and defining

``heavy grade'' as: any portion of a railroad with an average grade of

one percent or greater where the product of the average percent grade

(as a decimal) and the distance over which the grade persists (in

miles) is greater than or equal to .03. Thus a one percent (.01)

average grade for three miles or a two percent (.02) average grade for

1.5 miles would meet the definition. See 61 FR 6613. Although this

definition was accepted by some commenters as being better than that

proposed in the NPRM, none of the commenters endorsed the definition,

and several stated that it was either too hard to enforce or was too

broad or too narrow.

Several commenters provided alternative definitions of mountain or

heavy grade. The Association of American Railroads (AAR) and The

American Short Line Railroad Association (ASLRA) suggested that

mountain or heavy grade be defined as ``a section of track with a

continuous grade of 2 percent or greater over a distance of 2 miles.''

Many commenters objected to this alternative, stating that it excludes

known mountain or heavy grade territories. Several of these commenters

identified specific locations with grades of greater than one percent

but less than two percent for long distances that would not fall within

the definition proposed by the AAR (such as Feather River Canyon in

California and the grade at Pig's Eye Yard in St. Paul, Minnesota). In

the alternative, the AAR recommended that the term mountain or heavy

grade not be specifically defined in the regulation and that each

railroad define the term in its operating rules filed with FRA. The

stated advantage to this approach is that each railroad could tailor

the definition

[[Page 281]]

to its particular operating territory and FRA could object should a

railroad fail to include a section of track FRA believed to be mountain

or heavy grade territory. Several commenters objected to this

alternative, stating that such a regulation would be difficult to

enforce since every railroad would have different definitions of the

term and such a regulation could result in railroads intentionally

defining the term in order to negate its applicability to their

operation. The ASLRA further recommended that shorter, lower tonnage

trains be excluded from any definition of mountain or heavy grade due

to the costs involved with equipping these types of operations and the

fact that the safety data does not support the need for the use of the

devices on these types of operations solely because they operate in

mountain or heavy grade territory. The ASLRA also suggested that an

alternative to the use of two-way EOTs be permitted for trains

operating with 4,000 trailing tons or less by permitting them to use

retaining valves, set in the high pressure position before operating

over a descending grade.

The Brotherhood of Railway Carmen (BRC) recommended that ``heavy

grade'' be defined as any grade greater than one percent. The BRC

believed that such a definition was clear, enforceable, and not overly

restrictive. This commenter felt that variables such as speed, tonnage,

and train length were too subject to manipulation and change to be

included in a clear, enforceable definition. Other commenters objected

to this definition, stating that it was overly broad and would include

areas never considered to be heavy grades. Several commenters

recommended that two-way EOTs be required on all trains operating on

main line track regardless of speed or grade. Many parties objected to

this suggestion stating that it is clearly in excess of Congress'

intent to provide exceptions for various operations based on their

operating speeds, terrain, and type of service being provided.

The California Public Utilities Commission (CAPUC) recommended that

a performance standard be adopted to determine which operations would

be subject to the requirements. This performance standard would be

based on the ability of the independent locomotive brakes to stop a

train. In its written comments, the CAPUC provided a detailed

discussion of calculating the standard for various grades and tonnages

based on the amount of independent locomotive brake present on a given

train. However, the CAPUC emphasized that values contained in its

analysis were illustrative and that further research would be required

to develop the concept. At the public regulatory conference, several

parties objected to this type of performance approach as too

complicated and very difficult, if not impossible, to enforce due to

the amount of information necessary to calculate the formula.

Conclusions

In its statutory mandate, Congress specifically provided an

exception from any two-way EOT requirements for certain trains that do

not operate on heavy grades. See 49 U.S.C. 20141(c)(4). In order to

give effect to, and remain consistent with, this statutory provision,

FRA is compelled to develop an understandable and easily enforceable

standard for determining whether a segment of track should be

considered heavy grade territory. FRA believes that any regulations

related to two-way EOTs must include provisions excluding from the

requirements certain operations that do not operate on heavy grades.

Consequently, FRA does not think it would be consistent with the

statutory mandate or with the safety data reviewed in this proceeding

to require the use of two-way EOTs on all trains operating on main line

track regardless of speed or grade, as recommended by some commenters.

FRA believes that a performance standard based on tons per axle of

independent locomotive brake offers an attractive approach; however,

the proposal would require significant refinement and might not be

capable of reliable application in the field. FRA also believes that

the AAR alternative, permitting each railroad to define the term heavy

grade, could result in inconsistent standards, without an adequate

safety rationale, opening the regulation to legal challenge, and would

require considerable agency resources to review and verify the

submissions of each railroad across the country.

In determining the most effective way to define heavy grade, FRA

not only considered the comments submitted but also considered and

analyzed a variety of factors which affect the operation of a train in

grade territory. These included such things as: the steepness of grade;

the effect of cresting speed; the location of a trainline blockage; the

weight of the train; the number of locomotives; the length of grade;

and the life of brake shoes under stress. After consideration of these

factors, FRA determined that any definition of heavy grade should

attempt to incorporate the effects of as many of these factors as

possible without creating a requirement which would be extremely

complex or overly intrusive on the operations of a railroad. For

example, one factor FRA considered to be overly intrusive was placing

limitations on the cresting speeds of trains at various grades. FRA

determined that there was no universally applicable standard and that

establishing such limitations may actually create additional safety

concerns.

In the aftermath of recent accidents on heavy grades, FRA became

aware of the great value of including heavy grade descent plans in the

training and instruction of operating employees. A heavy grade descent

plan can incorporate the wisdom and experience of engineers long

familiar with descending a particular heavy grade and provide a vehicle

for sharing the different ways the grade can successfully be traversed.

Such a plan should take into account a wide variety of factors such as

those listed above. FRA strongly encourages railroads to develop and

use heavy grade descent plans and to share ``best practices'' for

training operating employees to handle heavy grades. While requiring

the use of heavy grade descent plans or changing requirements for

training operating employees is outside the scope of this rulemaking,

FRA thinks that railroads should be aware in the context of this rule

of the potential for heavy grade descent plans to enhance safety. FRA

will address heavy grade descent plans and training practices through

other vehicles in the near future.

As noted above, the AAR and the ASLRA proposed to define heavy

grade as a section of track with a continuous grade of two percent for

two miles. FRA believes this basic and simple definition is a good

starting point as it takes into account both the percentage of grade

and the distance over which that grade extends. However, FRA agrees

with many of the commenters that this definition fails to capture

several areas traditionally considered to be heavy or mountain grades.

Furthermore, after a review of the potentially preventable accidents

identified in the Notice of Public Regulatory Conference (61 FR 6615)

as well as other recently identified accidents/incidents, it is

apparent that train tonnage or length should also be a factor in

determining whether a particular segment of track is considered heavy

grade territory for a particular train. In order to keep the definition

of heavy grade as simple to understand as possible, FRA will use only

total trailing tons as a supplemental factor since it somewhat

incorporates train length. Consequently, FRA will use a simple, two-

level approach in defining heavy grade, using the total trailing tons

of a train as one

[[Page 282]]

of the two bases for determining whether the train is operating over a

heavy grade.

The ASLRA recommended that FRA exclude trains with less than 4,000

trailing tons from the requirements relating to heavy grades,

contending that the safety data do not support the use of the devices

on these shorter, lower-tonnage trains and that such an exclusion would

reduce the economic impact of the requirements on smaller railroads.

After a review of the accident/incident data, FRA agrees that lower-

tonnage trains tend to have fewer problems operating over heavy grades

than higher-tonnage trains. Virtually all of the accidents/incidents

cited by FRA in its cost/benefit analysis as potentially preventable

with a high degree of confidence involve long, heavy-tonnage trains or

trains operating in excess of 30 mph. Consequently for simplicity's

sake, FRA will adopt the definition of heavy grade suggested by the AAR

and the ASLRA for trains operating with 4,000 trailing tons or less,

with one modification: FRA will require use of a two-way EOT on trains

operating with 4,000 trailing tons or less when operated on a segment

of track with an average rather than a continuous grade of two percent

or more for a distance of two or more miles. FRA believes that the use

of average grade instead of continuous grade will capture some of the

locations with brief dips below two percent (i.e., 1.9 or 1.8 percent)

raised as examples by several commenters. Furthermore, FRA does not

believe that the use of retaining valves, even on a train operating

with less than 4,000 trailing tons, provides the same measure of safety

as an armed and operable two-way EOT and, thus, FRA will not permit the

use of retaining valves as an alternative to the use of a two-way EOT.

As mentioned above, FRA will apply a separate definition of heavy

grade for trains operating with greater than 4,000 trailing tons. A

review of the accidents/incidents considered by FRA as potentially

preventable, had the train involved been equipped with a two-way EOT,

reveals that those incidents occurring on steep grades almost always

involved trains operating with greater than 4,000 trailing tons. FRA

believes that the definition of heavy grade for these types of trains

needs to be broad enough to encompass the areas identified by several

commenters noted above, yet sufficiently limited so as not to be overly

burdensome to the industry. Consequently, based on FRA's proposed

definition contained in its Notice of Public Regulatory Conference (61

FR 6613) and based upon comments received from the BRC and CAPUC as

well as others, FRA will define heavy grade for trains operating with

greater than 4,000 trailing tons as segments of track with an average

grade of one percent or greater over a distance of three or more miles.

FRA does not believe this definition will be overly burdensome to the

industry since the ASLRA stated that 17 of the 21 mountain grade

railroads it surveyed have average train tonnage of less than 4,000

trailing tons and most of the trains operated by Class I railroads over

this type of terrain will be operating in excess of 30 mph at some

point between origin and destination of the intact consist.

Both of the definitions of heavy grade discussed above include a

minimum distance over which the average grade must extend. If a strict

percentage approach were adopted (i.e. 1 or 2 percent), then areas

where brief dips in the grade reach those percentages for very short

distances would bring a train within the requirement for use of the

device when in reality these brief dips do not create a safety concern.

The two and three mile minimum distance requirements were adopted based

on an analysis of the relevant potentially preventable accident/

incident data as well as the natural rolling resistance of a train and

the brake shoe life of the independent locomotive brakes if cautious

cresting speeds are assumed. The grade and mileage components of the

definitions are sufficiently restrictive to capture all of the past

relevant potentially preventable accidents/incidents but broad enough

to prevent brief dips in the terrain from being considered heavy

grades.

B. Applicability

Based on the statutory mandate and after review of the comments

received and the accidents relied on for support of the use of two-way

EOTs, FRA in the NPRM proposed that the devices be required equipment

on trains that operate at speeds in excess of 30 mph and on trains that

operate in mountain grade territories. See 59 FR 47743. In addition to

those operations specifically excluded from two-way EOT requirements by

the statute (49 U.S.C. 20141(c)), FRA found sufficient safety

justification for excluding two other types of operations: (i) Freight

trains equipped with a locomotive capable of initiating a brake

application located in the rear third of the train length; and (ii)

trains equipped with fully independent secondary braking systems

capable of safely stopping the train in the event of failure of the

primary system. In order to provide the industry with time to acquire a

sufficient number of two-way EOTs and to ease the economic impact of

acquiring the devices, FRA proposed that the requirement for use of the

devices, not become effective until December 31, 1996. See 59 FR 47713,

47743. FRA also proposed that all two-way EOTs purchased prior to the

effective date of the final rule would be deemed to meet the design

requirements contained in the proposal. See 59 FR 47713, 47743. There

were very few comments submitted in response to the NPRM specifically

addressing the applicability requirements contained in the NPRM other

than stylistic suggestions. One commenter did recommend that the

exception for trains operating in a push mode be amplified to require

that the control cab on the rear of train be occupied, display a

reading of the brake pressure, and be capable of making an emergency

application.

At the public regulatory conference several commenters raised

objections to FRA's proposal regarding local and work trains that were

reiterated in the written comments. In the NPRM, FRA proposed to

require the use of two-way EOTs on local and work trains that exceeded

30 mph. See 59 FR 47743. FRA also proposed definitions of these types

of trains. See 59 FR 47726. Several commenters objected to the proposed

restrictions on these types of trains contending that they are

inconsistent with the statutory mandate. The AAR proposed that these

types of trains not be subject to the two-way EOT requirements and

reiterated the definitions contained in the NPRM for local and work

trains. In the statutory provision, Congress stated that two-way EOTs

shall be required ``on road trains other than locals, road switchers,

or work trains. . . .'' See 49 U.S.C. 20141(b)(1). However, the statute

does not define the terms local, road switcher, or work trains and does

not include them in the specific exclusions contained in the

legislation. See 49 U.S.C. 20141(c). At the public regulatory

conference it was generally agreed that any definition of local trains

would essentially subsume the term ``road switcher'' and, thus,

separate definitions would not be required for purpose of these

regulations. Several commenters suggested that due to the nature of the

work performed by local and work trains (e.g., delivery or pick-up

switching en route and repairs) that any requirement that they be

equipped with two-way EOTs would have a tremendous economic impact on

the industry. These commenters also suggested that due to the shorter

distances these trains generally travel

[[Page 283]]

the safety rationale for requiring use of the devices is far less

apparent. Other commenters recommended that FRA narrowly define local

and work train in order to prevent a possible loophole wherein carriers

could designate all their trains as local trains and, thus, circumvent

the two-way EOT requirements. Several commenters also objected to

treating local and work trains any differently than road trains as they

incur the same operational difficulties and pose the same threat to

safety.

One commenter expressed concern over the proposed exception granted

to trains with a locomotive capable of making a brake application

located in the rear third of the train. Generally, this commenter was

concerned with how the locomotive, located in the rear third of the

train, would be operated and whether the locomotive would be required

to have the capability of effectuating an emergency brake application

in both directions from its position in the train. Another commenter

suggested that the proposed exception for trains operating in the push

mode be reworded so as only to permit the exception if the train has

the ability to initiate an emergency brake application from the rear of

the train. One railroad recommended that an exception from the

requirements regarding two-way EOTs be granted to railroads that do not

operate on ruling grades exceeding .5 percent.

Conclusions

Although it is arguable, as some commenters suggested, that

Congress intended for locals, road switchers, and work trains per se to

be granted an exception from the requirements related to two-way EOTs,

FRA does not believe Congress intended to except trains merely based on

a label placed on the operation. FRA believes that Congress intended

for the term ``locals, road switchers, or work trains'' to be narrowly

construed by FRA and not so broadly defined that the requirements for

two-way EOTs are rendered meaningless in many circumstances.

In the NPRM, FRA attempted to limit the local or work train

exception by proposing the 30 mph standard. However, after

reconsideration of the accident/incident data compiled in relation to

this proceeding and the comments submitted, FRA admits that the

proposed exception was probably not the most effective means of

limiting the application of the requirements for these types of

operations.

Therefore, in the final rule, rather than impose a blanket speed

criterion, FRA intends to define local and work trains narrowly and not

except such trains when operated in heavy-grade territory. FRA will

start with the definitions proposed in the NPRM for local and work

trains (59 FR 47726) and add an additional limiting factor of 4,000

trailing tons. FRA will further narrow the definition of a local train

by adding the limitation that the train travel a distance that is no

greater than that which can be operated by a single crew in a single

tour of duty. In FRA's view, local trains operating with greater than

4,000 trailing tons for extended distances and work trains operating

with greater than 4,000 trailing tons lose the characteristics of being

traditional local or work trains and begin to look more like any other

road train susceptible to the same operational problems and

difficulties and, thus, fall outside the exception contemplated by

Congress for local and work trains. FRA believes this approach is

consistent with Congress' intent and FRA's rationale expressed with

regard to defining heavy grades. This approach not only recognizes the

operational necessity for the services these types of trains provide

and the nature of the duties they engage in when en route, while

preventing the potential for confusion or abuse of the term local or

work train, but also ensures that those trains most likely to benefit

from the added safety provided by two-way EOTs are so equipped.

FRA also intends to amend the exceptions contained in the NPRM

relating to trains operated in a push mode and trains with a locomotive

in the rear third of the train in order to clarify the exceptions and

address the concerns raised by some commenters with regard to these

exceptions. The exception for trains operated in the push mode will be

clarified to include language that the train must have the ability to

effectuate an emergency brake application from the rear of the train.

In addition, the exception for trains operated with a locomotive in the

rear third of the train will be amended to require that the locomotive

be capable of effectuating an emergency brake application in both

directions from its location in the train. FRA believes that although

this method of operation does not provide all the safeguards provided

by a two-way EOT, it provides other operational and train-handling

benefits as well as many of the safeguards provided by a two-way EOT

and, thus, there is no compelling need for the devices in these

operations.

Finally, FRA rejects the suggestion of one railroad that an

exception be granted for trains that do not operate on grades exceeding

.5 percent regardless of the train's speed. Although these types of

trains would not be operating on heavy grades, such an exception would

be contrary to Congressional intent.

C. En Route Failures

In the NPRM, FRA proposed that if a two-way EOT or equivalent

device becomes incapable of initiating an emergency brake application

from the rear of the train while the train is en route, then the speed

of that train would be limited to 30 mph. See 59 FR 47714, 47743. FRA's

rationale for this limitation was that, under the statute, two-way EOT

devices are not required on trains that travel less than 30 mph.

Operating with a non-functional two-way EOT device is the same as not

having a device; consequently, trains operating with failed two-way EOT

devices should be subjected to this same limitation. Furthermore, FRA

suggested that the concerns raised by several railroads regarding train

delays, missed deliveries, and safety were not justified. The AAR as

well as several railroads commented that these devices are very

reliable and have an extremely low failure rate, if properly

maintained. FRA believed that the concerns of the railroads were

outweighed by the potential harm to both the public and railroad

employees caused by trains being allowed to operate without the devices

at speeds which Congress and FRA think require the added safety

benefits provided by these devices.

Several railroads commented on FRA's proposal, reinforcing the view

that such a limitation could cause serious train delays and missed

deliveries and would actually produce additional safety hazards due to

the bunching of trains. Commenters also suggested that FRA failed to

include the cost of this limitation in its analysis. Other commenters

noted that subsequent to the drafting of the NPRM, Canada eliminated

its speed restriction for failure of a two-way EOT en route.

At the public regulatory conference and in written comments, the

AAR again objected to any speed restriction for en route failures of

the devices, stating that any speed restriction would be costly both in

terms of operating expense and reduced customer satisfaction. In

support of this statement, the AAR provided a cost analysis regarding

various speed restrictions. The AAR also proposed an alternative method

for handling en route failures. This proposal required that the

conductor report the location, date, time, and description of the

failure; that the train be equipped with a train brake status system;

and that the train be moved only to the nearest forward point

[[Page 284]]

capable of repairing or replacing the unit. Several commenters objected

to this alternative as well as other alternatives permitting speeds

greater than 30 mph on the grounds that they basically provide

incentives to operate a train with a defective two-way EOT device. Many

commenters felt that if carriers are permitted to proceed to the next

point where repairs can be made then the same problems inherent with

moving cars with any defect will result: repair points will disappear,

or locations will be declared unable to make repairs or replacements.

Several commenters supported the proposed 30-mph speed restriction

for en route failures. The BRC endorsed the proposed speed restriction,

but would like to see it coupled with a requirement that the device be

repaired or replaced at the next yard, terminal, or crew change point,

whichever comes first. This commenter believed that the speed reduction

was the only viable incentive for ensuring that railroads properly

maintain the devices. At the public regulatory conference it was also

discovered that, contrary to the information provided in response to

the NPRM, Canada has not eliminated the 25-mph speed restriction for en

route failures of two-way EOTs. The Canadian Legislative Director for

the United Transportation Union stated that although the order

requiring a speed reduction to 25 mph for en route failures of the

devices was revoked, it was revoked only on the premise that the

general operating instructions of the railroads would contain the

requirements of the order, which they do, and it is a violation of the

Canadian Rail Safety Act to violate the railroad's general operating

instructions. Thus, the speed restriction for en route failure of the

devices still exists in Canada, and no evidence was submitted to show

the restriction has adversely affected railroad operations. FRA has

received no written comments disputing the statements regarding the

Canadian requirements as presented at the public regulatory conference.

Although supporting the 30-mph speed restriction for en route

failures, the CAPUC was concerned that the limitation did nothing to

address en route failures that occur in heavy grade territory. This

commenter suggested that many trains do not operate over 30 mph when in

mountain or heavy grade territory and, thus, for railroads operating

such trains the risk of a 30-mph restriction provides no incentive to

keep the devices operational. One commenter suggested an alternative to

the speed restriction: requiring trains that develop en route failures

to immediately stop and have the crew determine whether the train can

be operated at a safe speed to the next location for repairs. This

proposal also provided that if the train proceeded the crew would be

exonerated from any discipline resulting from a rules violation or

accident.

Both oral and written comments were received in relation to the

question of what constitutes an en route failure of the device. In the

NPRM, FRA merely stated that a failure will be considered the inability

to initiate an emergency brake application from the rear of the train.

Although this provides some guidance, it does not really address the

problem of loss of communication and at what point that loss

constitutes a failure of the device. Commenters and FRA recognize that

brief communication interruptions between the front and rear units

commonly occur and that these lapses may not be critical since the

signal for an emergency application is transmitted at a much higher

wattage than the ordinary communication signals between the two units.

The AAR recommended that a failure not be declared until communication

between the front and rear units cannot be established for 16 minutes

and 30 seconds. This time frame was proposed based on the design of the

devices, which automatically checks communication between the units

every ten minutes. If no response is received, the front unit

automatically requests communication from the rear 15 seconds later; if

no response is received to that request, another request is made six

minutes later; and if there is still no response, the front unit makes

another request 15 seconds later. No other commenters presented

measurable criteria for determining when an en route failure occurs.

Conclusions

FRA intends to require trains which experience en route failures of

the two-way EOT device to limit their speed to 30 mph. FRA believes

this is a logical outgrowth of the requirement that trains operating in

excess of 30 mph be equipped with the devices. FRA agrees with many of

the commenters that to permit speeds in excess of 30 mph would be akin

to providing an incentive to operate without the devices. The railroads

as well as the manufacturers of the devices stated that the failure

rate for the devices is extremely low. These parties indicated that the

majority of the failures were due to depleted batteries, which FRA

believes will be reduced to a great extent by the requirements

contained in this regulation regarding the charging of batteries

throughout the trip. (See discussion regarding inspection and

calibration of the devices.) FRA also believes that the 30-mph speed

limitation on trains experiencing en route failures will encourage

railroads to ensure that the devices are properly functioning when they

are installed and will ensure that a sufficient number of the devices

are available at various locations throughout a train's trip, both of

which will further mitigate the effects of the speed restriction.

Furthermore, trains in Canada have been operating for several years

with a 25-mph speed restriction on trains that experience en route

failures of the devices, and there were no comments submitted

indicating the problems suggested by the railroads. Consequently, FRA

believes that failure of these devices will be extremely rare and that

the concerns expressed and the costs estimated by the railroads

regarding train delays and missed deliveries are not justified and are

overstated.

FRA does not intend to mandate locations where these devices must

be repaired or replaced if they should fail en route. FRA believes each

railroad is in the best position to determine the locations where

additional devices can or must be maintained and stored to ensure the

efficiency of its own operation. Furthermore, FRA believes that the

requirements limiting the speed of a train operating with a defective

device, as well as the inspection and battery charge requirements, are

sufficient to promote the prompt repair or replacement of defective

units and to ensure that the devices will be operational throughout a

train's trip.

FRA will adopt the AAR's suggestion for determining when a loss of

communication between the front and rear units should be considered a

failure of the device en route. As noted in the above discussion, brief

losses of communication do occur between the front and rear unit, and

FRA does not intend to consider these communication gaps as failures en

route. As pointed out by several commenters, the signal calling for the

initiation of an emergency brake application is continuously

transmitted at a wattage that is greater than five times the wattage at

which ordinary communications between the two units are transmitted.

Thus, brief communication gaps will be overcome by the increased

wattage at which the signal calling for an emergency brake application

is transmitted. The 16 minutes and 30 seconds recommended by the AAR is

based on the current design of the automatic communication between the

front and rear units and

[[Page 285]]

constitutes an enforceable standard for determining when a loss of

communication should be considered an en route failure.

As noted by some commenters, the issue of failures approaching the

crest of heavy grades is not adequately addressed by simply limiting

train speed. Nor is it sufficient to know that the train line is open

and properly charged at the crest. As two recent accidents appear to

illustrate, buff (compressive) forces in the train may cause blockages

in the train line as the train descends the grade that may not have

been present while the train was stretched on its upward climb.

Therefore, it is particularly critical, in order to realize the

benefits contemplated by the Congress, that the two-way EOT be

operative as the train begins its descent down heavy grades. Although

FRA believes that the requirements limiting the speed of a train

operating with a defective device, as well as the inspection and

battery charge requirements, are sufficient to promote the prompt

repair or replacement of defective units and to ensure that the devices

will be operational throughout a train's trip in most instances, FRA

believes that additional safeguards must be provided when a train

experiences a failure of its two-way EOT when operating on particularly

heavy grades. FRA believes these added safeguards are necessary for

those trains that operate over sections of track with an average grade

of two percent or greater for two continuous miles. FRA's Emergency

Order No. 18 permits operation over a heavy grade down the Cajon Pass

of California only if the two-way EOT system is operative or provided

one of certain other alternative measures is provided. The alternative

measures include the following:

1. Use of an occupied helper locomotive at the end of the train. If

this method is used, the helper locomotive engineer shall initiate and

maintain two-way voice radio communication with the engineer on the

head end of the train; this contact shall be verified just prior to

passing the crest of the grade. If there is a loss of communication

prior to passing the crest of the grade, the helper locomotive engineer

and the head-end engineer shall act immediately to stop the train until

voice communication is resumed. If there is a loss of communication

once the descent has begun beyond Summit, the helper locomotive

engineer and the head-end engineer shall act to stop the train if the

train has reached a predetermined rate of speed that indicates the need

for emergency braking. The brake pipe of the helper locomotive must be

connected and cut in to the train line and tested to ensure operation;

and trains shall be stopped when helpers are cut in or cut off from

trains being assisted.

2. Use of an occupied caboose at the end of the train with a

tested, functioning brake valve capable of initiating an emergency

brake application from the caboose. If this method is used the train

service employee in the caboose and the engineer on the head end of the

train shall establish and maintain two-way voice radio communication

and respond appropriately to the loss of such communication in the same

manner as prescribed for helper locomotives.

3. Use of a radio-controlled locomotive in the rear third of the

train under continuous control of the engineer in the head end by means

of telemetry, but only if such radio- controlled locomotive is capable

of initiating an emergency application on command from the lead

locomotive.

Railroads typically maintain available helper locomotives and have

crews on call to address exigencies in heavy grade territory, such as

failure of one or more locomotives en route. FRA believes that, given

the high reliability of two-way EOTs, the marginal costs of using

helper locomotives cut into the train line--under the control of a crew

in contact with the lead unit of the primary locomotive consist--would

not be significant in relation to the risk of a run-away train.

Accordingly, FRA will require that the two-way EOT be operative or that

one of the approved alternative methods of operation be employed

whenever a train required to be equipped with a two-way EOT operates

over a section of track with an average grade of two percent or greater

for a distance of two miles.

D. Design Requirements

In order to maintain uniformity in the performance of two-way EOTs,

FRA proposed basic performance and design requirements for these

devices in the NPRM. As two-way EOTs that are currently in production

meet the design requirements already established for one-way devices

contained at 49 CFR 232.19, FRA proposed to retain those requirements,

apply them to two-way EOTs and add specific requirements to ensure two-

way communication and the ability to initiate an emergency brake

application from the rear of the train. In the NPRM, FRA recognized

that currently available two-way EOTs have several optional features

that could prove beneficial to railroads, and although FRA recommended

that railroads obtain as many of the optional features as they can when

purchasing the devices, FRA did not propose to mandate their use and

feels each railroad is in the best position to determine which features

benefit its operation.

In the NPRM, FRA proposed a requirement that the rear unit

automatically begin restoring the brake function (recharging the air

brake system) within 60 seconds after it has initiated an emergency

application. See 59 FR 47731. FRA proposed this requirement based on

the belief that currently manufactured two-way EOTs are designed with

this feature. Several commenters in response to the NPRM and the Notice

of Public Regulatory Conference suggested that the proposed provision

requiring the automatic restoration of the brake function after 60

seconds should be eliminated. These commenters stated that the brake

function should not be restored until the train has come to a complete

stop or that the locomotive engineer should retain control of the

restoration, or both. These commenters also stated that many railroads

require the train to be inspected after an emergency application and do

not want the brakes to be reset prior to the completion of the

inspection.

In the Notice of Public Regulatory Conference, FRA attempted to

clarify the proposal regarding the availability of the front-to-rear

communications link being checked automatically by stating that the

NPRM inadvertently contained a requirement of 10 minutes and that it

should have read ``10-seconds.'' See 61 FR 6614. Several parties

commented on this clarification, including the manufacturers of the

devices, stating that a 10-second requirement would be impossible to

meet with current technology and would result in a battery drain within

a short time. These commenters stated that FRA correctly proposed a 10-

minute requirement in the NPRM as that is the current industry standard

and has been the standard for devices used in Canada for several years.

The AAR recommended that FRA should not require that the rear unit

respond only to the front unit of that train. This commenter indicated

that some railroads want the ability to activate the rear unit from a

location other than the front end of the train in an emergency, such

as, where the crew of the train becomes disabled. Finally, one

commenter recommended that a separate, labeled, and protected emergency

switch should not be mandated if the EOT's emergency

[[Page 286]]

application could be integrated into the existing emergency brake

controls.

Conclusions

Based on the comments received, FRA does not intend to change its

position regarding the mandating of any of the optional features

currently available on two-way EOTs. As FRA stated in the NPRM, it

encourages railroads to obtain as many of the optional features as

possible when purchasing the devices, but believes that each railroad

is in the best position to determine which features best suit its

operation. FRA agrees with many of the commenters that requiring the

braking function to be automatically restored within 60 seconds after

an emergency application has been initiated would hinder the safe

practices of many railroads with regard to inspecting the train after

an emergency application is made or leaving the train within the

control of the locomotive engineer. FRA also agrees with those

commenters that noted that FRA improperly suggested a change in the

Notice of Public Regulatory Conference with regard to the time frame

for checking the front-to-rear communications link. Consequently, FRA

will leave the requirement at 10 minutes as proposed in the NPRM,

rather than the 10 seconds contained in the Notice of Public Regulatory

Conference.

FRA further agrees with the AAR's recommendation that some leeway

be provided in the requirement that the rear unit respond to only the

front unit of that train in order to permit railroads to activate the

rear unit from a location other than the front end, provided it can be

done in such a way as to ensure the security of such a procedure. FRA

believes this can be easily accommodated by changes in the wording

contained in the proposal to permit the rear unit to respond to an

emergency command from any ``properly associated front unit.'' This

language should permit the flexibility desired by some railroads.

FRA does not believe it would be beneficial to remove the provision

requiring a separately labeled and manually controlled switch for

initiating an emergency brake transmission command, as suggested by one

commenter. At present, FRA is unfamiliar with the technology that would

integrate the EOT's emergency application with the existing emergency

brake controls. Implementation of integrated electronic controls of

pneumatic brakes has not yet achieved the degree of reliability that

would be desirable as a platform for this key safety function. Thus,

FRA believes that such technology would best be introduced through a

waiver or possibly through future regulations addressing the

introduction of new technology, currently under consideration by the

Railroad Safety Advisory Committee working group on freight power

brakes.

E. Inspection and Calibration

At the ANPRM stage, FRA received several comments regarding the

batteries used in two-way EOTs. Several commenters suggested that the

most frequent cause of failure of two-way EOTs is battery failure.

These commenters also indicated that this problem could be cured by

replacing batteries at initial terminals. Other commenters suggested

that some minimum charge be required at initial terminals and that

inspections be performed during all brake tests and at crew change

points. Several commenters also suggested that interchangeable battery

packs were necessary because some railroads were unable to charge the

devices that come onto their lines from other railroads. Based on these

comments, FRA proposed that any train equipped with a two-way EOT or

its equivalent shall not depart from the point where the train is

originally assembled unless (i) the device is capable of initiating a

brake application from the rear of the train and (ii) the batteries of

the device are charged to at least 75 percent of watt-hour capacity.

See 59 FR 47734.

At the public regulatory conference the issue of the amount of

battery charge that should be required at initial terminals was

discussed. Several commenters initially recommended that a percentage

of watt-hour capacity be required at this location, ranging from 100

percent to 50 percent. However, as the discussion progressed, it was

apparent that many commenters favored some type of performance

requirement. In its written comments, the AAR recommended that FRA

merely require that the EOT be sufficiently charged so that it can be

reasonably expected that the EOT will remain operative until the next

terminal capable of charging the batteries or installing replacements.

The AAR suggested that such an approach would ensure that the devices

are sufficiently charged without the use of an arbitrary percentage

that may be too high, requiring railroads to spend resources to

unnecessarily charge batteries, or that may be too low to ensure a

sufficient charge throughout the trip. Other commenters recommended

that if a performance standard is adopted which requires sufficient

battery charge to ensure completion of the train's trip then strict

liability needs to attach to instances where depleted batteries are the

cause of an en route failure. It was stressed that this sort of

liability should apply only to the batteries supporting the telemetry

capabilities of the devices, not to the rear-end marker function. As

noted previously, most EOTs incorporate the rear-end marking device

required by 49 CFR Part 221 into their design, and there are separate

batteries within the rear units which provide power to these devices.

Several commenters stated that if FRA were to limit the operating speed

of trains experiencing en route failures of the devices then a

performance standard related to battery charge would probably work

since railroads would have an incentive to keep them charged.

In addition to battery-charge requirements, there was some

discussion as to what would be required at the initial terminal with

regard to testing the devices to ensure they are capable of initiating

a brake application from the rear of the train. Several parties

commented that there were several different methods for testing such

ability. Basically, four possible methods for testing the devices were

identified in the various comments. One method would be to attach the

device to the rear of the train and then have the controlling

locomotive transmit an emergency brake application signal with the

front unit causing an emergency application to be initiated from the

rear of the train, thereby having the entire train effectuate an

emergency application of the brakes. A second method would be to attach

the device to the rear of the train, close the angle cock on the last

or second-to-the-last car of the train (an angle cock is a lever which

permits the closing of the brake pipe so that no air can travel past

that point in the brake pipe), and then have the controlling locomotive

transmit an emergency brake application signal from the front unit.

Under this method only the last one or two cars of the train would

effectuate an emergency brake application as the closed angle cock

would prevent further propagation of the signal down the trainline. The

third method would involve a check of the emergency valve on the rear

unit after the unit is attached and armed, without placing any cars in

the train into emergency. This method would require an emergency

application to be transmitted by the controlling locomotive and then a

visual check of the emergency valve on the rear unit to ensure the

valve functions properly. The final method of inspection would be a

bench test of the device which would be performed prior to the device

being

[[Page 287]]

armed and placed on the train. One commenter suggested that if bench

testing is permitted it should be required to be done within a short

time prior to the device being placed on the train. The BRC recommended

that, in addition to testing requirements, the FRA needed to require

additional periodic inspections and maintenance to ensure the devices

are working properly.

In the NPRM, FRA also proposed to extend the calibration period for

all EOTs from 92 days to 365 days. See 59 FR 47700, 47731. Currently,

the regulations require one-way EOTs to be calibrated for accuracy

every 92 days. See 49 CFR 232.19(h)(3). FRA based this proposed

extension not only on its own experience but also on the comments

received from several parties that the devices are fairly reliable and

can operate for years without calibration. Furthermore, FRA stated that

the 92-day calibration period was established at a time when there was

little experience with the devices, noting that since that time, not

only has calibration of the devices not proven to be a problem, but

technology has further improved the reliability of the devices.

Although several commenters, both at the ANPRM and NPRM stage,

commented on the unreliability of the devices, these comments generally

addressed either the failure of the railroads to properly perform the

calibrations or the misuse of the devices. Comments submitted

subsequent to the public regulatory conference basically reiterated the

positions expressed previously. The AAR and manufacturers of the

devices supported a 365-day calibration period, stating that the

calibration of the devices does not drift periodically and that when

the devices fail they fail completely, as the calibration of the

devices does not deteriorate over time. One manufacturer commented that

the mean time between failures of its devices is in excess of 15,000

hours. The BRC restated its objection to the proposed extension of the

calibration period citing carrier abuses of the devices and the extreme

operating conditions under which the devices are used.

Conclusions

FRA intends to adopt a performance standard relative to both the

requirements for charging batteries as well as testing requirements at

the initial terminal or point of installation of the devices. FRA

agrees with many of the commenters that rather than merely picking a

percentage of watt-hours to which the batteries must be charged at

initial terminals, it would be much more effective to establish a

performance standard for this requirement. Due to the fact that FRA

intends to impose a speed limitation on trains that experience en route

failures of the devices and since a vast majority of the en route

failures are attributable to dead batteries, FRA believes there is a

major incentive to the railroads to ensure the batteries are

sufficiently charged. Consequently, FRA intends to establish a standard

that requires the batteries on the rear unit to be sufficiently charged

at the initial terminal or point of installation and throughout the

train's trip to ensure that the device will remain operative throughout

the trip. This requirement is only intended to apply to the batteries

supporting the telemetry capabilities of the devices. Furthermore, as

recommended by several commenters and agreed to by carrier

representatives, FRA will impose a strict liability standard regarding

failures due to insufficiently charged batteries; that is, it will be a

per se violation if a device fails en route due to insufficiently

charged batteries. FRA will rely on witness statements, interviews, and

carrier repair records to establish whether a failure of the device was

the result of insufficiently charged batteries.

FRA also intends to require that the devices be inspected at the

initial terminal or other point of installation to ensure that the

device is capable of initiating an emergency brake application from the

rear of the train. Rather than require a specific method of ensuring

this capability, FRA will permit the railroads to develop a method that

best fits the circumstances and their operations. At this time, FRA

recognizes four different methods, discussed in detail above, that

would be sufficient to test this capability; they include: dumping the

whole train into emergency once the device is attached; closing the

angle cock on the last one or two cars and then activating an emergency

application on those cars; inspection and testing of the emergency

valve on the device once it is attached to ensure it functions properly

without placing any cars in emergency; and bench testing the devices

prior to their being armed and placed on the train within a reasonable

time period prior to attaching the device to the train. Use of a method

other than those listed above will not be permitted if FRA finds that

it does not sufficiently ensure that the device is capable of

initiating an emergency brake application. Due to the speed limitation

being imposed for en route failures, FRA does not believe it is

necessary to mandate additional inspections or maintenance as the

carriers have sufficient incentive to ensure the devices are adequately

maintained.

No new information was provided FRA in relation to the proposed

extension of the calibration requirements from 92 days to 365 days.

Consequently, FRA continues to believe, based on its own experiences

and the comments submitted, that these devices are fairly reliable and

can be operated for long periods of time without calibration problems.

FRA believes that the current 92-day requirement is outdated due to

improved technology and is not consistent with the reality that

calibration of these devices has not proven to be a problem.

Furthermore, FRA believes that much of the abuse and misuse of these

devices cited by one commenter will be corrected due to the

restrictions imposed on trains operating with devices that are

defective or fail en route.

Section-by-Section Analysis

As most of the issues and provisions have been discussed and

addressed in detail in the preceding discussions, this section-by-

section analysis will explain the provisions of the final rule and

changes from the NPRM by briefly highlighting the rationales or

referring to the prior discussion. The discussions and conclusions

contained above should be considered in conjunction with the analysis

contained below. Each comment received has been considered by FRA in

preparing this final rule. Because the provisions regarding two-way

EOTs were part of a much broader NPRM addressing all power brake

provisions, the section citations in the final rule will vary

considerably from the citations referred to in the NPRM.

Section 232.21

This new section of the regulations contains design standards for

two-way EOTs. Except for a few modifications, as noted below, this

section essentially contains the same requirements as proposed in the

NPRM at Sec. 232.117 (59 FR 47731). This section indicates that two-way

EOTs are to be designed not only in accordance with the standards

contained in this section but also those contained in Sec. 232.19

applicable to one-way devices, except those in Sec. 232.19(b)(3). FRA

intends that enforcement actions taken pursuant to these design and

performance requirements would be principally focused at manufacturers

of the devices. It is noted that, failure to use a device meeting the

design and performance criteria contained in this section could

[[Page 288]]

result in enforcement action against a railroad pursuant to

Sec. 232.23(b).

FRA has eliminated the requirement regarding the automatic

restoration of the braking function by the rear equipment within 60

seconds after it has initiated an emergency application as proposed in

the NPRM at Sec. 232.117(e). FRA agrees with many of the commenters

that requiring the braking function to be automatically restored within

60 seconds after an emergency application has been initiated would

hinder the safe practices of many railroads with regard to inspecting

the train after an emergency application is made or leaving the train

within the control of the locomotive engineer.

Subsections (a)-(g) are unchanged from the provisions proposed in

the NPRM at Sec. 232.117(a)-(d) and (f)-(h). These requirements pertain

to the design and performance of the front and rear units necessary to

ensure that a proper communication link exists between the front and

rear units and to ensure that a safe and timely emergency brake

application can and is initiated from the rear of the train. The only

comments received regarding any of these provisions related to

subsections (e) and (f). As noted earlier, one commenter requested that

a separate, labeled, and protected emergency switch should not be

mandated if the EOT's emergency application could be integrated into

the existing emergency brake controls. As previously stated, FRA is

unfamiliar with the technology that would integrate the EOT's emergency

application with the existing emergency brake controls and thus, does

not feel elimination of this requirement is appropriate. FRA believes

that such technology would best be introduced through a waiver or

possibly through future regulations addressing the introduction of new

technology, currently under consideration by the Railroad Safety

Advisory Committee working group on freight power brakes.

In the Notice of Public Regulatory Conference, FRA attempted to

clarify the proposal regarding the availability of the front-to-rear

communications link being checked automatically by stating that the

NPRM inadvertently contained a 10-minute, instead of a 10-second,

requirement. See 61 FR 6614. Several parties commented on this

clarification, including the manufacturers of the devices, stating that

the 10-second requirement would be impossible to meet with current

technology and would result in a battery drain within a short time.

These commenters stated that FRA correctly proposed a 10-minute

requirement in the NPRM as that is the current industry standard and

has been the standard for devices used in Canada for several years. FRA

agrees with these commenters and will leave the requirement at 10

minutes as proposed in the NPRM.

Subsection (h) has been modified slightly from that proposed in the

NPRM at Sec. 232.117(i) by replacing the word ``its'' with the phrase

``a properly.'' This revision is made in response to a recommendation

by the AAR that some leeway be provided in the requirement that the

rear unit only respond to front unit of that train to permit railroads

to activate the rear unit from a location other than the front unit of

the train, provided it can be done in such a way as to ensure the

security of such a procedure. FRA believes the revised language permits

the rear unit to respond to an emergency command from any properly

associated front unit and, thus, should permit the flexibility desired

by some railroads.

Section 232.23

This new section of the regulations contains the operating

requirements related to two-way EOTs. This section also contains

general applicability standards and identifies those operations

excepted from the requirements related to two-way EOTs.

Subsection (a) contains the definitions of key terms necessary for

identifying those operations excepted from the requirements related to

two-way EOTs. These definitions are intended solely for determining the

applicability of the requirements related to two-way EOTs and should

not be used in connection with other provisions contained in FRA

regulations. With the exception of the definition of a ``train''

contained in (a)(2), the other definitions contained in this section

have been revised from those proposed in the NPRM at Sec. 232.5 (59 FR

47723-26) based on a review of the accident data and the comments

received.

Heavy Grade

(For a detailed discussion of the all the comments, issues, and

conclusions involving this definition, interested parties should review

the preceding discussion regarding the definition of heavy grade

contained in part A of the ``Discussion of Comments and Conclusions''

portion of this document.) Although FRA used the term ``mountain

grade'' to describe this idea in previous proposals, FRA has

determined, in order to avoid confusion and remain consistent with the

statutory provision, it will use the term ``heavy grade'' in the final

rule. FRA will use a bi-level approach in defining heavy grade, using

the total trailing tons of the train as one factor in determining

whether a train is operating on a heavy grade and, thus, subject to the

requirements related to two-way EOTs. A train operating with 4,000

trailing tons or less will be considered to be operating on a heavy

grade if a section of track over which it operates has an average grade

of 2 percent or greater for a distance of 2 miles. A train operating

with greater than 4,000 trailing tons will be considered to be

operating on a heavy grade if a section of track over which it operates

has an average grade of 1 percent or greater for 3 miles. FRA feels

this definition is consistent with the available accident data and

addresses many of the concerns raised in the comments submitted.

Local Train

(See part the preceding ``Discussion of Comments and Conclusions''

portion of this document under the heading ``Applicability'' for a

detailed discussion of this issue.) Although FRA believes Congress

intended an exception for local trains, FRA believes that Congress

intended for the term to be narrowly construed. Rather than attempt to

narrowly construe the term in the exceptions portion of the rule as was

done in the NPRM, FRA decided to narrowly define the term based on the

traditional idea of what constitutes a local train. Consequently, FRA

has limited the distance such a train moves to that which can be

operated by a single crew in a single tour of duty and has limited the

size of the trains to 4,000 trailing tons or less. FRA also believes

this definition is consistent with the overall structure of these

requirements. If a train, even though designated by a railroad as a

local train, falls outside the parameters contained in this definition

then, it will be considered an ordinary train subject to the two-way

EOT requirements.

Work Train

(See the preceding ``Discussion of Comments and Conclusions''

portion of this document under the heading ``Applicability'' for a

detailed discussion of this issue.) FRA used the same reasoning for

defining work trains as is it did for local trains. If a train fails to

meet the definition contained in this subsection, even though labeled a

work train by the railroad, it will be considered an ordinary train

subject to the two-way EOT requirements.

Subsection (b) contains the general requirement for equipping

trains with two-way EOTs. FRA recognizes that the Class I, II, and III

railroads have voluntarily committed to equip the vast

[[Page 289]]

majority of the trains covered by these rules by the effective date of

the requirements. Therefore, FRA believes that an effective date of

July 1, 1997 is a realistic deadline for complying with these

requirements. FRA will consider extending this date only in the event

that manufacturing delays result in a railroad's inability to secure an

adequate number of the devices; however, FRA will not consider

extension of the effective date beyond the statutorily mandated date of

December 31, 1997. This section also provides that in order to be

properly equipped the two-way EOT must meet the performance criteria

contained in Sec. 232.21.

Subsections (c) and (d) basically contain the statutory

requirements regarding present and future purchases of EOT devices.

These provisions require that all EOTs purchased after one year from

the date of publication of these requirements shall have two-way

capabilities meeting the design and performance requirements contained

in Sec. 232.21 and that all two-way devices acquired prior to the

promulgation of this rules shall be grandfathered as meeting the design

and performance requirements contained in Sec. 232.21. In essence,

these requirements eventually result in one-way EOTs being gradually

phased out of use as they are replaced by two-way EOTs.

Subsection (e) contains a listing of those trains that are excepted

from the requirements relating to two-way EOTs, previously proposed in

the NPRM at Sec. 232.813(e) (59 FR 47743). The majority of the

exceptions were specifically provided for in the statute. See 49 U.S.C.

Sec. 20141(c). FRA has revised the exceptions contained in paragraphs

(e)(1) and (e)(2) from those proposed in the NPRM, in order to clarify

the scope of the exceptions. Paragraph (e)(1) has been rewritten to

ensure that the locomotive located in the rear third of the train has

the capability to initiate an emergency brake application and is in

continuous communication with the controlling locomotive. Paragraph

(e)(2) has been revised to clarify that the exception is for trains

operating in a push mode only if the locomotive at the rear of the

train has the ability to initiate an emergency brake application from

that location. Paragraph (e)(3) has been revised to ensure that the

caboose is manned by a crew member and is equipped with an emergency

brake valve. The local and work train exceptions contained in

paragraphs (e)(6) and (e)(7) have been revised from those proposed in

the NPRM to remain consistent with the definitions contained in

subsection (a) and are limited in that the exception does not apply if

these types of trains are operating on heavy grade. As the definitions

of both ``local train'' and ``work train'' limit their size to 4,000

trailing tons or less, heavy grades for these trains will be sections

of track with an average grade of 2 percent or greater for 2 miles.

(See the preceding ``Discussion of Comments and Conclusions'' portion

of this document under the ``Applicability'' heading for a detailed

discussion of this issues related to local and work trains and other

exceptions.)

Subsection (f)(1) requires that the devices be properly armed and

operable at the time a train departs from the point where the device is

installed. FRA believes that this requirement, although not

specifically contained in the NPRM, could have be inferred from the

proposed initial terminal requirements regarding these devices at

Sec. 232.309 (59 FR 47734) and the testing and inspection requirements

contained in Sec. 232.25. However, several commenters wanted a specific

provision contained in the final regulations to prevent any confusion

or misunderstanding.

Subsection (f)(2) contains the performance standard related to the

amount of battery charge required when the devices are in use. The

standard requires that the batteries on the rear units be sufficiently

charged at the train's initial terminal or the point where the device

is installed and throughout the train's trip to ensure that the device

will remain operative until the train reaches destination. In the NPRM

at Sec. 232.309(e) (59 FR 57734), FRA proposed a 75 watt-hour

requirement for the batteries at initial terminals; however, based the

comments received as discussed above, FRA believes this is an ideal

situation in which to use a performance standard. Due to the speed

restrictions being mandated for en route failures, coupled with FRA's

intent to apply strict liability for en route failures due to

insufficiently charged batteries, FRA feels there are sufficient

incentives for railroads to ensure that the batteries on the rear units

are sufficiently charged at all times. This requirement is intended

only to apply to the batteries supporting the telemetry capabilities of

the devices. FRA does not intend this provision to require that the

place where the batteries should be sufficiently charged for the train

to reach its final destination should be the initial terminal or the

point where the device is installed; it is within the railroad's

discretion to determine when and where the batteries will be charged,

and railroads should be cognizant of their strict liability for failure

of the batteries en route and mindful of the speed restrictions that

will be imposed. (See the preceding ``Discussion of Comments and

Conclusions'' portion of this document under the ``Inspection and

Calibration'' heading for a detailed discussion of this issue.)

Subsection (g) contains the speed restriction being placed on

trains that experience en route failure of the devices. This is

identical to the restriction proposed in the NPRM at Sec. 232.815(f)

(59 FR 47743). This subsection also contains the definition of when a

loss of communication between the front and rear units will be

considered an en route failure. If a train experiences an en route

failure of the two-way EOT, it will be required to limit its speed to

30 mph. FRA believes this is a logical outgrowth of the requirement

that trains operating in excess of 30 mph be equipped with the devices.

FRA believes that failure of these devices will be very rare and that

the concerns raised by several commenters regarding the costs and

delays associated with this requirement are not justified. FRA further

believes that many of the failures currently reported will be greatly

reduced since a majority of them are the result of depleted batteries,

which FRA feels will be a thing of the past due to this speed

restriction and the requirements contained in this rule regarding the

charging of batteries. The definition of when a loss of communication

between the front an rear units will be considered an ``en route

failure'' is based on the automatic communications built into the

devices. FRA does not intend for brief losses of communication to be

considered failures en route since these brief gaps should be overcome

by the increase in the wattage at which the emergency signal is

transmitted and continuous rate at which the signal calling for an

emergency brake application is transmitted. (See the preceding

``Discussion of Comments and Conclusions'' portion of this document

under the ``En Route Failures'' heading for a detailed discussion of

these issues.)

Paragraph (g)(1) of this subsection contains the operating

restrictions for trains which experience en route failures of the two-

way EOT when operating on especially heavy grades. Although FRA

believes that the requirements limiting the speed of a train operating

with a defective device, as well as the inspection and battery charge

requirements, are sufficient to ensure the prompt repair or replacement

of defective units and to ensure that the devices will be operational

throughout a train's trip in most instances, FRA

[[Page 290]]

believes that additional safeguards must be provided when a train

experiences a failure of its two-way EOT when operating on particularly

heavy grades. FRA believes these added safeguards are necessary for

those trains that operate over sections of track with an average grade

of 2 percent or greater for 2 continuous miles. (See the preceding

``Discussion of Comments and Conclusions'' portion of this document

under the ``En Route Failures'' heading for a detailed discussion of

these issues.)

Section 232.25

This new section of the regulation contains the inspection,

testing, and calibration requirements related to EOT devices. This

section contains the provisions previously contained in Sec. 232.19(h)

but with some revisions, as noted below.

Subsections (a) and (b) basically contain the provisions previously

contained in Sec. 232.19(h)(1) and (h)(2). Although these provisions

previously pertained only to one-way EOTs, FRA intends them to be

equally applicable to two-way EOTs and proposed that in the NPRM at

Sec. 232.115 (59 FR 47730). The provisions contain the language ``after

each installation'' as proposed in order to clarify when these

requirements are to be performed.

Subsection (c) contains a type of performance standard test that is

to be performed at the initial terminal of the train or at the point

where a two-way EOT is first installed on the train, as an EOT device

may not always be installed at the initial terminal. At these locations

the devices must be tested to ensure that they are capable of

initiating an emergency brake application from the rear of the train.

In the preceding discussion, FRA indicated that it intended to leave it

to the railroad's discretion as to how this test will be conducted. FRA

recognized that there are currently four different acceptable methods

of performing this test: dumping the whole train into emergency once

the device is attached; closing the angle cock on the last one or two

cars and then activating an emergency of those cars; inspection of the

emergency valve on the device once it is attached to ensure it

functions properly without placing any cars into emergency; and bench

testing the devices prior to their being armed and placed on the train

within a reasonable time period of attaching the device to the train.

FRA also noted that use of a method other than those contained above

will not be permitted, if FRA finds that it does not sufficiently

ensure that the device is capable of initiating an emergency brake

application. This subsection also requires that if the testing of the

device is conducted by an individual other than a member of the train

crew then the locomotive engineer be informed that the test was

performed. (See the preceding ``Discussion of Comments and

Conclusions'' portion of this document under the ``Inspection and

Calibration'' heading for a detailed discussion of these issues.)

Subsection (d) contains the calibration and recordkeeping

requirements for EOT devices as previously proposed in the NPRM at

Sec. 232.115(h)(3) (59 FR 47731). FRA continues to believe, based on

its own experiences and the comments submitted, that these devices are

fairly reliable and can be operated for long periods of time without

calibration problems. FRA believes that the current 92-day requirement

is excessive due to improved technology and is not consistent with the

reality that calibration of these devices has not proven to be a

problem. Furthermore, FRA believes that much of the abuse and misuse of

these devices cited by one commenter will be corrected due to the

restrictions imposed on trains operating with devices that are

defective or fail en route. (See the preceding ``Discussion of Comments

and Conclusions'' portion of this document under the ``Inspection and

Calibration'' heading for a detailed discussion of these issues.)

Regulatory Impact

This rulemaking is the result of a specific and direct legislative

mandate that required use of an existing technology to prevent

accidents caused by obstructions of train air brake lines. FRA has

sought to carry out that mandate, issuing regulations necessary for

safety. FRA has also conducted a regulatory impact analysis and an

assessment of impacts upon small entities under the Regulatory

Flexibility Act.

The final rule seeks to prevent very serious accidents associated

with loss of braking control on freight trains, focusing on scenarios

posing serious risk while avoiding the creation of exceptions that

could undermine the purpose the statute sought to achieve. Analysis

conducted in support of this proceeding has assisted in the crafting of

a final rule that provides flexibility to employ various technologies

to achieve the regulatory purpose.

The analysis below reports the results of economic analysis using

historical data as the basis for estimating future risk, discusses the

limitations of that approach, and indicates the agency's rationale for

striking the balance included in the final rule. A key component of

that rationale is the recognition that the actual consequences of

catastrophic accidents are difficult or even impossible to predict.

Given the grave potential for serious consequences from accidents

caused by loss of braking control on freight trains, FRA has applied

that focus on risk reduction. The natural consequence of that strategy

is relief for smaller railroads operating lighter trains at reduced

speeds, except in the limited instances where very heavy grades must be

negotiated.

The consequences of an accident caused by a run-away train tend to

be extreme, with potential for deaths, economic disruption and lasting

environmental damage. An example of this type of disaster, discussed

below, occurred on February 1, 1996 in Cajon Pass in California. The

value of casualties, which included: 2 fatalities, 1 severe injury, and

32 minor injuries (32 emergency responders required medical treatment

due to inhalation of toxic chemicals) combined with damages due to

railroad property damage and casualties, would be approximately $9.8

million. Costs to the United States Environmental Protection Agency for

monitoring environmental clean-up and mitigation (through May 1996)

were $16,014. The costs to the involved railroad for environmental

damages were estimated at approximately $4.2 million. These damages are

included in the economic analysis discussed below with a total value of

approximately $14 million, for railroad property, casualties, and

environmental damages.

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule has been evaluated in accordance with existing

regulatory policies and procedures and is considered to be significant

under DOT policies and procedures (44 FR 11304) because of

Congressional and public interest in promoting rail safety. This final

rule has also been reviewed under Executive Order 12866 and is

considered ``significant'' under that Order. Consequently, FRA has

prepared a regulatory evaluation addressing the economic impact of the

proposed rule. The regulatory evaluation estimates the economic costs

and consequences of this proposed rule as well as its anticipated

benefits and impacts. This regulatory evaluation has been placed in the

docket and is available for public inspection and copying during normal

business hours on the Seventh Floor, Office of Chief Counsel, FRA, 1120

Vermont Avenue, N.W., Washington, D.C. Copies may also be obtained by

[[Page 291]]

submitting a written request to the FRA Docket Clerk at Room 8201, 400

Seventh Street, S.W., Washington, D.C. 20590.

Potential costs and benefits of the proposed rule were calculated

for a 20-year period using the seven percent discount rate required by

Federal regulatory guidelines. It is estimated that the net present

value (NPV) costs associated with the rule total approximately $264

million over the 20-year period of analysis. Our analysis of the

historical accidents that could have been prevented by two-way EOTs

indicates that about three accidents per year may not have occurred had

these devices been in place. Assuming that the same type of accidents

would continue to occur in the absence of two-way devices, we have

calculated that the benefit of installing these devices will result in

a reduction of accidents, casualties and damages worth approximately

$92 million over 20 years (again, discounted to present value).

Although FRA identified 26 potentially preventable accidents in its

Notice of Public Regulatory Conference (61 FR 6615), the number of

potentially preventable accidents was reduced to sixteen for purposes

of this regulatory impact analysis based on comments received and an

application of the provisions of this final rule to the factual

situations of each of the accidents. In quantifying the benefits

related to this final rule, FRA generally identified two types of

accidents which could be prevented through the use of two-way EOTs.

These included accidents due to brake pipe obstruction and accidents

due to other brake related problems. An effectiveness rate was then

assigned to each of the accidents based on the level of confidence by

FRA safety experts that the accidents could have been prevented had the

train been equipped and used a two-way EOT. The property damages and

costs related to injuries and fatalities associated with each of the

potentially preventable accidents are contained in Table 1 below.

Table 1--Potentially Preventable Accidents

--------------------------------------------------------------------------------------------------------------------------------------------------------

RR PROPERTY ACCIDENTS

DATE PLACE CAUSE INJURIES FATALITIES UPDATED TO 12/ RATE OF PREVENTABLE

95 $ EFFECTIVENESS BENEFIT

--------------------------------------------------------------------------------------------------------------------------------------------------------

910918... Sprague, WA...................... OBSTRUCTED BRAKE PIPE............ 4 1 $4,327,634 0.9 $6,883,771

910304... Waterfall, WY.................... OTHER BRAKE RELATED.............. 4 0 1,626,483 0.5 824,041

920307... Kansas City, MO.................. OBSTRUCTED BRAKE PIPE............ 2 0 492,307 0.9 452,796

920611... Money, MS........................ OTHER BRAKE RELATED.............. 2 0 677,113 0.5 343,956

931001... Keystone, NB..................... OBSTRUCTED BRAKE PIPE............ 2 0 2,653,038 0.9 2,463,064

931011... Fulton, KY....................... OTHER BRAKE RELATED.............. 0 0 14,589 0.5 7,295

931221... Wood, IA......................... OTHER BRAKE RELATED.............. 0 0 428,535 0.5 214,268

931225... Seward, NB....................... OBSTRUCTED BRAKE PIPE............ 4 0 1,947,358 0.9 3,575,122

940118... Cowen, WV........................ OBSTRUCTED BRAKE PIPE............ 0 0 1,381,380 0.9 1,243,242

940907... Gillette, WY..................... OTHER BRAKE RELATED.............. 0 0 3,677,160 0.9 3,309,444

941122... Tenn Pass, CO.................... OBSTRUCTED BRAKE PIPE............ 1 0 1,503,495 0.9 3,206,020

941214... Cajon, CA........................ OBSTRUCTED BRAKE PIPE............ 3 0 4,058,544 0.9 3,936,999

950209... Nelsons, WI...................... OTHER BRAKE RELATED.............. 1 0 30,696 0.9 65,291

950406... Argonne, MI...................... OTHER BRAKE RELATED.............. 0 1 268,529 0.9 2,671,676

960201... Cajon, CA........................ OBSTRUCTED BRAKE PIPE............ 32 2 3,756,294 0.9 15,851,369

960214... E. St. Paul, MN.................. OBSTRUCTED BRAKE PIPE............ 9 0 2,723,956 0.9 3,504,965

----------------------------------------------------------------------------------------------------------------------------------------------

....... TOTAL.......................... ............................... 65 4 29,567,109 48,553,320

--------------------------------------------------------------------------------------------------------------------------------------------------------

Although the quantified benefits of the proposed rule are exceeded

by the estimated costs, with a NPV cost of approximately $172 million

over 20 years, FRA believes that the accident information collected by

FRA does not adequately reflect the true costs to society due to brake-

related accidents. Further, as discussed below, considerable variation

in accident severity can be expected.

The potential benefits, which have not been quantified in this

analysis due to a lack of information, may equal or substantially

exceed the benefits which have been quantified. As shown in the most

recent ``preventable'' accidents identified by FRA, there is a

significant risk that similar accidents in the future could release

large amounts of hazardous materials which, if the accident occurred in

a densely populated or environmentally sensitive area, could produce

truly catastrophic results. The costs of evacuation and medical

treatment for those near the accident site could be substantial, and

associated road closures also produce significant economic impact to

travelers

[[Page 292]]

and the communities nearby. Should a hazardous material release impact

a river or stream, the consequences to wildlife in the area could also

be severe and lasting. The costs associated with these types of

accidents could be extremely high and, as these types of costs

(potential benefits) have not been calculated in this analysis, the

benefit estimations are extremely conservative. For cost/benefit

analyses to serve their purpose well, all reasonably foreseeable

damages should be accounted for, not merely those that have already

chanced to occur.

Evaluation of Risk and Requirements to Equip Trains

The FRA recognizes that the base case economic analysis for this

rulemaking suggests caution. Nevertheless, the FRA has determined that

exceptions to the requirement for two-way EOTs should be drawn with

great care, respecting the intent of the statutory exceptions without

creating potential loopholes that could seriously erode the beneficial

safety impacts intended by the Congress. In doing so, FRA has been

mindful of the need to ensure impacts on small entities are limited to

the extent possible given the specific commands of the congressional

mandate. These choices have caused FRA to focus on train speed, grade,

and tonnage as critical factors in determining what trains should be

equipped with two-way EOTs and in determining the appropriate response

when this equipment fails en route. FRA has proceeded in this manner

both because the agency wished to be faithful to the level of safety

determined by the statute to be appropriate in this context and because

a common sense approach to analysis of the appropriate risks indicates

the need to act decisively. This approach recognizes the role of

accident frequency, accident causation, and accident severity.

In addition to performing an economic analysis employing historic

accident patterns to project future risk (and thus prospective

benefits), FRA has considered the potential volatility of the future

risk associated with absence of two-way EOTs. When the Congress began

hearings on the legislation that underlies this rulemaking in 1991,

advocates of the technology were hard-pressed to cite specific and

sustainable examples of accidents potentially preventable through use

of two-way telemetry. A decade had just closed during which cabooses

had been removed from trains, and initial experience had been

relatively favorable. From the perspective of 1996, the need for this

technology is much more evident, with the frequency of preventable

events having proven higher than would have been expected. Accidents

preventable by this technology but involving trains not utilizing the

technology have continued into the current year, notwithstanding the

fact that railroads have, in fact, made strides toward full compliance

with two-way EOT requirements by the outside statutory deadline of

December 31, 1997 (an effort recently accelerated to meet earlier

voluntary deadlines).

The consequences of an accident depend on many factors which may

not be related to the cause of the accident, such as the location of

the train or the lading it transports. In either a densely populated or

environmentally sensitive area, the consequences of an accident may be

more severe than an accident in a less critical location. Likewise, a

hazardous materials release is much more likely to have more severe

effects (such as death, explosions, or environmental damage) than a

grain spill in the same location. When considering the potential

benefits which may be produced by avoiding the type of brake-related

accidents targeted by this rule, it is therefore not sufficient to look

only at the consequences of past accidents with similar causes. One

should also look for indications in those past accidents for the

reasonable potential for greater catastrophe. In this context,

accidents caused by loss of braking control on freight trains (as can

occur, among other reasons, due to brake pipe obstructions) tend to

have a rather high potential for casualties, very substantial property

damage, and considerable risk of environmental damage when hazardous

materials are in the consist. Because derailment or collision will

often occur due to overturning on curves or entering congested areas,

third party casualties and property damage can also be substantial.

An example of the potential severity of an accident caused by loss

of braking control, other than those noted above, may be illustrated by

the circumstances surrounding the accident occurring on May 12, 1989 in

which a Southern Pacific Transportation Company train accelerated out

of control descending a 2.2 percent grade into San Bernardino,

California. Two employees were killed and three injured. The accident

destroyed seven residences adjacent to the right-of-way, killing two

residents and injuring a third. A 14-inch gasoline pipeline which may

have been damaged in either the accident or ensuing clean-up, ruptured

13 days later, resulting in the death of two additional residents,

serious injuries to two residents, and minor injuries to 16 others.

Eleven additional homes were destroyed, along with 21 motor vehicles.

Total property damages in the derailment and pipeline rupture exceeded

$14 million. While this accident was not preventable through use of a

two-way EOT system, exactly the same consequences could result from a

loss of control that would be preventable by this technology.

Another example would be the accident that occurred at Helena,

Montana, on February 2, 1989, in which freight cars from a Montana Rail

Link train rolled eastward down a mountain grade and struck a helper

locomotive consist, slightly injuring two crew members. Hazardous

materials in the consist included hydrogen peroxide, isopropyl alcohol,

and acetone. Release of these hazardous materials later resulted in a

fire and explosions, necessitating the evacuation of approximately

3,500 residents of Helena for over two days. According to the National

Transportation Safety Board, railroad and other property damage

exceeded $6 million, and all of the buildings of Carroll College

sustained damage. The City of Helena received 154 reports of property

damage from residents within a three-mile radius of the accident. As a

result of this accident, the Board recommended that FRA ``require the

use of two-way end-of-train telemetry devices on all cabooseless trains

for the safety of railroad operations.'' (NTSB Report RAR-89/05 at 19-

20, 76.) Although in FRA's judgment it is unlikely that the Helena

accident would, in fact, have been prevented by a two-way EOT system

due to the prior gradual leakage of brake pipe pressure from the train

line, other potential accidents with similar or even more serious

consequences certainly could be prevented.

Consequently, based on the potential for catastrophic results of an

accident of this type, FRA cannot make the finding that a less

restrictive rule would be consistent with safety. A train without the

ability to properly control its speed and stop due to brake problems

represents an unacceptable risk to tolerate, given the availability of

relatively inexpensive and highly reliable technology that can greatly

reduce or even eliminate that risk. Existing types of automatic train

brakes generally fail safe, but not when there is an obstruction of the

train line. As noted above, train line obstructions are known to occur.

The technology mandated by this rule addresses this need, and use of

the technology will provide a high level of confidence that the failure

mode will not permit a catastrophe. That is, it is not necessary to

speculate regarding the

[[Page 293]]

existence of an unacceptable hazard nor the effectiveness of the

countermeasure. As affirmed by the 1992 congressional mandate, it would

be irresponsible public policy to withhold action until the occurrence

of an accident or accidents of sufficient magnitude to permit

completion of an economic analysis showing a positive benefit-to-cost

ratio for the primary case.

FRA believes this legislatively mandated rule balances the need to

reduce the risk of a truly catastrophic event with the need to minimize

costs to freight railroad operations. FRA has not been able to identify

additional exceptions to the requirement for two-way EOTs that could be

considered to be consistent with safety, given the hazard addressed by

the statutory mandate and the realities of railroad operations.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires an assessment of the impacts of proposed rules on small

entities, unless the Secretary certifies that the rule will not have a

significant economic impact on a substantial number of small entities.

The Small Business Administration (SBA) uses an industry wide

definition of small business based on employment. Railroads are

considered small by SBA definition if they employ fewer than 1,500

people. FRA typically employs the classification system of the Surface

Transportation Board (STB), which is based on operating revenue, where

a Class II railroad has operating revenue greater or equal to $40

million dollars but less than $253.7 million and a Class III railroad

has operating revenue below $39 million. This proposed rule affects

many of the larger regional railroads and some of the larger short line

railroads (i.e, Class II and III railroads). After consulting with the

Office of Advocacy of the SBA, the STB/FRA classification system was

used in this analysis.

Most short line railroads (Class III) will not be required to

purchase or use two-way EOTs, and thus, will not be affected by the

provisions of this final rule. The American Short Line Railroad

Association (ASLRA), an organization that represents short line

railroads, submitted comments to FRA Docket No. PB-9 subsequent to the

public regulatory conference conducted in March of 1996 which

referenced the results of a survey they had conducted of their member

railroads. Their survey results indicated that out of a total of 287

railroads that responded to the survey, only 32 railroads operate at

speeds in excess of 30 mph and only 21 of the railroads operate in

heavy grades of two percent over two miles. Of the 21 railroads

operating in these heavy grades 17 of them operate trains with an

average tonnage of less than 4,000 trailing tons. The ASLRA recommended

that lower tonnage trains be excluded from any definition of heavy

grade. After reviewing the accident data, FRA has adopted a definition

of heavy grade based on a two-tier approach which permits trains

operating with 4,000 trailing tons or less to operate over certain

heavy grades (less than 2% over 2 miles) without being equipped with a

two-way EOT.

Although the ASLRA did not have an opportunity to comment on the

definition of heavy grade for heavier trains, conversations with ASLRA

representatives and FRA track experts indicate that between 50 and 70

percent of short line railroads operate trains in territory where an

average grade of one percent over three miles would be encountered.

However, most of these railroads do not operate at speeds greater than

30 mph, nor do they have average train tonnage in excess of 4,000

trailing tons. It is believed that the rule will primarily impact only

those short line railroads which operate in heavy grades of two percent

or greater over a distance of two miles. The ASLRA estimated that its

member railroads would need to acquire approximately 1,100 two-way EOTs

to comply the proposal submitted by the AAR. In the regulatory impact

analysis FRA estimated the number of devices required by short line

railroads to be 1,146 in order to comply with the final rule.

In reviewing the economic impact of the rule, FRA has concluded

that it will have a small economic impact on small entities. Therefore,

it is certified that this rule will not have a significant economic

impact on a substantial number of small entities under the provisions

of the Regulatory Flexibility Act.

FRA has prepared a regulatory flexibility assessment addressing the

impact of the final rule on small entities. The regulatory flexibility

assessment has been placed in the docket and is available for public

inspection and coping during normal business hours in on the Seventh

Floor, Office of Chief Counsel, FRA, 1120 Vermont Avenue, N.W.,

Washington, D.C. Copies may also be obtained by submitting a written

request to the FRA Docket Clerk at Room 8201, 400 Seventh Street, S.W.,

Washington, D.C. 20590.

Paperwork Reduction Act

This final rule contains information collection requirements.

Because the policy of the Federal Government is to minimize the

regulatory record keeping burden placed on private industry, a separate

analysis of the record keeping burden resulting from the final rule was

performed.

FRA will submit these information collection requirements to the

Office of Management and Budget (OMB) for approval under the provisions

of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. Persons

desiring to comment regarding the burden estimate or any other aspect

of this collection of information, including suggestions for reducing

this burden, should submit their views in writing to: Ms. Gloria

Swanson, Office of Safety, RRS-21, Federal Railroad Administration, 400

Seventh Street, S.W., Room 8314, Washington, D.C. 20590; and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget, ATTN: Desk Officer for FRA (OMB No. 2130-New), New Executive

Office Building, 726 Jackson Place, N.W., Room 3201, Washington, D.C.

20503. Copies of any such comments should also be submitted to the

Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,

400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.

OMB is required to make a decision concerning the collection of

information requirements contained in this final rule between 30 and 60

days after publication of this document in the Federal Register.

Therefore, a comment to OMB is best assured of having its full effect

if OMB receives it within 30 days of publication.

FRA cannot impose a penalty on persons for violating information

collection requirements when they do not display a current OMB control

number, if required. FRA intends to obtain current OMB control numbers

for any new or revised information collection requirements resulting

from this rulemaking action prior to the effective date of this final

rule. The OMB control number, when assigned, will be announced by

separate notice in the Federal Register.

Environmental Impact

FRA has evaluated this final rule in accordance with its procedures

for ensuring full consideration of the environmental impact of FRA

actions, as required by the National Environmental Policy Act (42

U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,

and DOT Order 5610.1c. It has been determined that this final rule will

not have any effect on the quality of the environment.

[[Page 294]]

Federalism Implications

This final rule will not have a substantial effect on the States,

on the relationship between the national government on the States, or

on the distribution of power and responsibilities among the various

levels of government. Thus, in accordance with Executive Order 12612,

preparation of a Federalism Assessment is not warranted.

List of Subjects

49 CFR Part 232

Railroad safety, Railroad power brakes, Two-way end-of-train

devices.

The Rule

In consideration of the foregoing, FRA amends chapter II, subtitle

B of title 49, Code of Federal Regulations as follows:

PART 232--RAILROAD POWER BRAKES AND DRAWBARS

1. The authority citation for part 232 is revised to read as

follows:

Authority: 49 U.S.C. 20102, 20103, 20107, 20108, 20110-20112,

20114, 20133, 20301-20304, 20701-20703, 21301, 21302, 21304, and

21311; Pub. L. 103-272 (1994); and 49 CFR 1.49 (c), (g), and (m).

2. Section 232.19 is amended by removing paragraph (h), by revising

the section heading and by revising paragraph (a) to read as follows:

Sec. 232.19 Design standards for one-way end-of-train devices.

(a) A one-way end-of-train device shall be comprised of a rear-of-

train unit (rear unit) located on the last car of a train and a front-

of-train unit (front unit) located in the cab of the locomotive

controlling the train.

* * * * *

3. Sections 232.21, 232.23, and 232.25 are added to read as

follows:

Sec. 232.21 Design and performance standards for two-way end-of-train

devices.

Two-way end-of-train devices shall be designed and perform with the

features applicable to one-way end-of-train devices described in

Sec. 232.19, except those included in Sec. 232.19(b)(3). In addition, a

two-way end-of-train device shall be designed and perform with the

following features:

(a) An emergency brake application command from the front unit of

the device shall activate the emergency air valve at the rear of the

train within one second.

(b) The rear unit of the device shall send an acknowledgment

message to the front unit immediately upon receipt of an emergency

brake application command. The front unit shall listen for this

acknowledgment and repeat the brake application command if the

acknowledgment is not correctly received.

(c) The rear unit, on receipt of a properly coded command, shall

open a valve in the brake line and hold it open for a minimum of 15

seconds. This opening of the valve shall cause the brake line to vent

to the exterior.

(d) The valve opening and hose shall have a minimum diameter of \3/

4\ inch to effect an emergency brake application.

(e) The front unit shall have a manually operated switch which,

when activated, shall initiate an emergency brake transmission command

to the rear unit. The switch shall be labeled ``Emergency'' and shall

be protected so that there will exist no possibility of accidental

activation.

(f) The availability of the front-to-rear communications link shall

be checked automatically at least every 10 minutes.

(g) Means shall be provided to confirm the availability and proper

functioning of the emergency valve.

(h) Means shall be provided to arm the front and rear units to

ensure the rear unit responds to an emergency command only from a

properly associated front unit.

Sec. 232.23 Operations requiring use of two-way end-of-train devices;

prohibition on purchase of nonconforming devices.

(a) The following definitions are intended solely for the purpose

of identifying those operations subject to the requirements for the use

of two-way end-of-train devices.

(1) Heavy grade means:

(i) For a train operating with 4,000 trailing tons or less, a

section of track with an average grade of two percent or greater over a

distance of two continuous miles; and

(ii) For a train operating with greater than 4,000 trailing tons, a

section of track with an average grade of one percent or greater over a

distance of three continuous miles.

(2) Train means one or more locomotives coupled with one or more

rail cars, except during switching operations or where the operation is

that of classifying cars within a railroad yard for the purpose of

making or breaking up trains.

(3) Local train means a train assigned to perform switching en

route which operates with 4,000 trailing tons or less and travels

between a point of origin and a point of final destination, for a

distance that is no greater than that which can normally be operated by

a single crew in a single tour of duty.

(4) Work train means a non-revenue service train of 4,000 trailing

tons or less used for the administration and upkeep service of the

railroad.

(5) Trailing tons means the sum of the gross weights--expressed in

tons--of the cars and the locomotives in a train that are not providing

propelling power to the train.

(b) All trains not specifically excepted in paragraph (e) of this

section shall be equipped with and shall use either a two-way end-of-

train device meeting the design and performance requirements contained

in Sec. 232.21 or a device using an alternative technology to perform

the same function.

(c) Each newly manufactured end-of-train device purchased by a

railroad after (one year from date of publication) shall be a two-way

end-of-train device meeting the design and performance requirements

contained in Sec. 232.21 or a device using an alternative technology to

perform the same function.

(d) Each two-way end-of-train device purchased by any person prior

to promulgation of these regulations shall be deemed to meet the design

and performance requirements contained in Sec. 232.21.

(e) The following types of trains are excepted from the requirement

for the use of a two-way end-of-train device:

(1) Trains with a locomotive capable of making an emergency brake

application, through a command effected by telemetry or by a crew

member in radio contact with the lead (controlling) locomotive, located

in the rear third of the train length;

(2) Trains operating in the push mode with the ability to

effectuate an emergency brake application from the rear of the train;

(3) Trains with an operational caboose placed at the rear of the

train, carrying one or more crew members, that is equipped with an

emergency brake valve;

(4) Trains operating with a secondary, fully independent braking

system capable of safely stopping the train in the event of failure of

the primary system;

(5) Trains that do not operate over heavy grades and do not exceed

30 mph;

(6) Local trains as defined in paragraph (a)(3) of this section

that do not operate over heavy grades;

(7) Work trains as defined in paragraph (a)(4) of this section that

do not operate over heavy grades;

(8) Trains that operate exclusively on track that is not part of

the general railroad system; and

(9) Passenger trains with emergency brakes.

(f) If a train is required to use a two-way end-of-train device:

(1) That device shall be armed and operable from the time a train

departs

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from the point where the device is installed until the train reaches

its destination.

(2) The rear unit batteries shall be sufficiently charged at the

initial terminal or other point where the device is installed and

throughout the train's trip to ensure that the end-of train-device will

remain operative until the train reaches its destination.

(g) If a two-way end-of-train device or equivalent device fails en

route (i.e., is unable to initiate an emergency brake application from

the rear of the train due to certain losses of communication or due to

other reasons), the speed of the train on which it is installed shall

be limited to 30 mph until the ability of the device to initiate an

emergency brake application from the rear of the train is restored.

This limitation shall apply to a train using any device that uses an

alternative technology to serve the purpose of a two-way end-of-train

device. With regard to two-way end-of-train devices, a loss of

communication between the front and rear units will be considered an en

route failure only if the loss of communication is for a period greater

than 16 minutes and 30 seconds.

(1) If a two-way end-of-train device fails en route, the train on

which it is installed, in addition to observing the 30-mph speed

limitation, shall not operate over a section of track with an average

grade of two percent or greater over a distance of two continuous

miles, unless one of the following alternative measures is provided:

(i) Use of an occupied helper locomotive at the end of the train.

This alternative may be used only if the following requirements are

met:

(A) The helper locomotive engineer will initiate and maintain two-

way voice radio communication with the engineer on the head end of the

train; this contact shall be verified just prior to passing the crest

the grade.

(B) If there is a loss of communication prior to passing the crest

of the grade, the helper locomotive engineer and the head-end engineer

shall act immediately to stop the train until voice communication is

resumed, if this can be done safely.

(C) If there is a loss of communication once the descent has begun,

the helper locomotive engineer and the head-end engineer shall act to

stop the train if the train has reached a predetermined rate of speed

that indicates the need for emergency braking.

(D) The brake pipe of the helper locomotive shall be connected and

cut into the train line and tested to ensure operation.

(ii) Use of an occupied caboose at the end of the train with a

tested, functioning brake valve capable of initiating an emergency

brake application from the caboose. This alternative may be used only

if the train service employee in the caboose and the engineer on the

head end of the train establish and maintain two-way voice radio

communication and respond appropriately to the loss of such

communication in the same manner as prescribed for helper locomotives

in paragraph (g)(1)(i) of this section.

(iii) Use of a radio-controlled locomotive in the rear third of the

train under continuous control of the engineer in the head end by means

of telemetry, but only if such radio-controlled locomotive is capable

of initiating an emergency application on command from the lead

(controlling) locomotive.

Sec. 232.25 Inspection and testing of end-of-train devices.

(a) After each installation of either the front or rear unit of an

end-of-train device, or both, on a train and before the train departs,

the railroad shall determine that the identification code entered into

the front unit is identical to the unique identification code on the

rear-of-train unit.

(b) After each installation of either the front or rear unit of an

end-of-train device, or both, the functional capability of the device

shall be determined, after charging the train, by comparing the

quantitative value displayed on the front unit with the quantitative

value displayed on the rear unit or on a properly calibrated air gauge.

The end-of-train device shall not be used if the difference between the

two readings exceeds three pounds per square inch.

(c) A two-way end-of-train device shall be tested at the initial

terminal or other point of installation to ensure that the device is

capable of initiating an emergency power brake application from the

rear of the train. If this test is conducted by a person other than a

member of the train crew, the locomotive engineer shall be informed

that the test was performed.

(d) The telemetry equipment shall be calibrated for accuracy

according to the manufacturer's specifications at least every 365 days.

The date of the last calibration, the location where the calibration

was made, and the name of the person doing the calibration shall be

legibly displayed on a weather-resistant sticker or other marking

device affixed to the outside of both the front unit and the rear unit.

4. Appendix A to Part 232--``Schedule of Civil Penalties'' is

amended by removing the entry for Sec. 232.19(h) and by adding entries

for Secs. 232.21, 232.23, and 232.25 to read as follows:

Appendix A to Part 232--Schedule of Civil Penalties

* * * * *

[[Page 296]]

------------------------------------------------------------------------

Willful

Section Violation violation

------------------------------------------------------------------------

* * * *

* * *

232.21 Two-way EOTs:

(a)-(h) Design Standards.................. 2,500 5,000

232.23 Operating Standards:

(b) Failure to equip...................... 5,000 7,500

(c) Purchases............................. 2,500 5,000

(f)(1) Device not armed or operable....... 5,000 7,500

(2) Insufficient battery charge....... 2,500 5,000

(g) En route failures..................... 5,000 7,500

232.25 Inspection and Testing:

(a) Unique code........................... 2,500 5,000

(b) Comparing values...................... 2,500 5,000

(c) Test of emergency capability.......... 5,000 7,500

(d) Calibration........................... 2,500 5,000

------------------------------------------------------------------------

Issued in Washington, D.C., on December 27, 1996.

S. Mark Lindsey,

Acting Administrator.

[FR Doc. 96-33364 Filed 12-31-96; 8:45 am]

BILLING CODE 4910-06-P