Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment

SUMMARY: FRA proposes revisions to the regulations governing the power

braking systems and equipment used in freight and other non-passenger

railroad train operations. The proposed revisions are designed to

achieve safety by better adapting the regulations to the needs of

contemporary railroad operations and facilitating the use of advanced

technologies. These proposed revisions are being issued in order to

comply with Federal legislation, to respond to petitions for

rulemaking, and to address areas of concern derived from experience in

the application of existing standards governing these operations.

DATES: (1) Written Comments: Written comments must be received by

January 15, 1999. Comments received after that date will be considered

to the extent possible without incurring additional expenses or delay.

(2) Public Hearings: FRA is planning to conduct at least two public

hearings with the first public hearing being held in Washington D.C.

and one technical conference with interested parties in order to

provide all interested parties the opportunity to comment on the

proposed revisions contained in the NPRM. FRA will issue a separate

document in the Federal Register in the very near future to inform all

interested parties as to the exact dates and locations where the public

hearings and technical conference will be held.

ADDRESSES: (1) Written Comments: Address comments to the Docket Clerk,

Office of Chief Counsel, RCC-10, Federal Railroad Administration, 400

Seventh Street, S.W., Stop 10, Washington, D.C. 20590. Comments should

identify the docket and notice number, and five copies should be

submitted. Persons wishing to receive confirmation of receipt of their

comments should include a self-addressed, stamped postcard. The Docket

Clerk will indicate on the postcard the date on which the comments were

received and will return the card to the addressee. The dockets are

housed in the Seventh Floor of 1120 Vermont Avenue, N.W., Washington

D.C. Public dockets may be reviewed between the hours of 8:30 a.m. and

5:00 p.m., Monday through Friday, except holidays.

(2) Public Hearings: FRA is planning to conduct at least two public

hearings with the first public hearing being held in Washington D.C.

and one technical conference with interested parties in order to

provide all interested parties the opportunity to comment on the

proposed revisions contained in the NPRM. FRA will issue a separate

document in the Federal Register in the very near future to inform all

interested parties as to the exact dates and locations where the public

hearings and technical conference will be held.

FOR FURTHER INFORMATION CONTACT: Leon Smith, Deputy Regional

Administrator--Region 3, FRA Office of Safety, RRS-14, 400 Seventh

Street, S.W., Stop 25, Washington, D.C. 20950 (telephone 404-562-3800),

or Thomas Herrmann, Trial Attorney, Office of the Chief Counsel, RCC-

10, 400 Seventh Street, S.W., Stop 10, Washington, D.C. 20950

(telephone 202-493-6053).

SUPPLEMENTARY INFORMATION:

Background

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

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

20141. These amendments specifically address the revision of the power

brake regulations by adding a new subsection which states:

(r) POWER BRAKE SAFETY.--(1) The Secretary shall conduct a

review of the Department of Transportation's rules with respect to

railroad power brakes, and not later than December 31, 1993, shall

revise such rules based on such safety data as may be presented

during that review.

(2) In carrying out paragraph (1), the Secretary shall, where

applicable, prescribe standards regarding dynamic brake equipment. *

* *

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

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

In response to the statutory mandate, the various recommendations

and petitions for rulemaking, and due to its own determination that the

power brake regulations were in need of revision, FRA published an

Advance Notice of Proposed Rulemaking (ANPRM) on December 31, 1992 (57

FR 62546), and conducted a series of public workshops in early 1993.

The ANPRM provided background information and presented questions on

various subjects including: the use and design of end-of-train (EOT)

telemetry devices; the air flow method of train brake testing; the

additional testing of train air brakes during extremely cold weather;

the training of employees to perform train brake tests and inspections;

computer-assisted braking systems; the operation of dynamic brakes on

locomotives; and other miscellaneous subjects relating to conventional

brake systems as well as information regarding high speed passenger

train brakes. The questions presented in the ANPRM on the various

topics were intended as fact-finding tools and were intended to elicit

the views of those persons outside FRA charged with ensuring compliance

with the power brake regulations on a day-to-day basis.

Based on the comments and information received, FRA published a

Notice of Proposed Rulemaking (1994 NPRM) regarding revisions to the

power brake regulation. See 59 FR 47676 (September 16, 1994). In the

1994 NPRM, FRA proposed a comprehensive revision of the power brake

regulations which attempted to preserve the useful elements of the

current regulatory system in the framework of an entirely new document.

FRA attempted to delineate the requirements for conventional freight

braking systems from the more diverse systems for various categories of

passenger service. In developing the NPRM, FRA engaged in a systems

approach to the power brake regulations. FRA considered all aspects of

a railroad operation and the effects that the entire operation had on

the train and locomotive power braking systems. Therefore, the proposed

requirements not only addressed specific brake equipment and inspection

requirements, but also attempted to encompass other aspects of a

railroad's operation which directly affect the quality and performance

of the braking system, such as: personnel qualifications; maintenance

requirements; written procedures governing operation, maintenance, and

inspection; record keeping requirements; and the development and

integration of new technologies.

Following publication of the 1994 NPRM in the Federal Register, FRA

held a series of public hearings in 1994 to allow interested parties

the opportunity to comment on specific issues addressed in the NPRM.

Public hearings were held in Chicago, Illinois on November 1-2; in

Newark, New Jersey on November 4; in Sacramento, California on November

9; and in Washington, D.C. on December 13-14, 1994. These hearings were

attended by numerous railroads, organizations representing railroads,

labor

[[Page 48295]]

organizations, rail shippers, and State governmental agencies. Due to

the strong objections raised by a large number of commenters at these

public hearings, FRA announced by notice published on January 17, 1995

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

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

proceed in this matter. See 60 FR 3375. Although the comment period

officially closed April 1, 1995, FRA continued to receive comments on

the NPRM as well as other suggested alternatives well into October

1995.

Furthermore, beginning in mid-1995, FRA internally committed to the

process of establishing the Rail Safety Advisory Committee (RSAC). The

determination to develop the RSAC was based on FRA's belief that the

continued use of ad hoc collaborative procedures for appropriate

rulemakings was not the most effective means of accomplishing its goal

of a more consensual regulatory program. FRA believed that the

establishment of an advisory committee to address railroad safety

issues would provide the best opportunity for creating a consensual

regulatory program to benefit the Administrator in the conduct of her

statutory responsibilities. FRA envisioned that the RSAC would allow

representatives from management, labor, FRA and other interested

parties to cooperatively address safety problems by identifying the

best solutions based on agreed-upon facts, and, where regulation

appears necessary, identify regulatory options to implement these

solutions. The process of establishing the RSAC was not complete until

March 1, 1996, and on March 11, 1996, FRA published a notice in the

Federal Register that the Committee had been established. See 61 FR

9740.

In the interim, based on these considerations and after review of

all the comments submitted, FRA published a notice in the Federal

Register on February 21, 1996, stating that in order to limit the

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

would proceed with the revision of the power brake regulations via

three separate processes. See 61 FR 6611. In light of the testimony and

comments received on the 1994 NPRM, emphasizing the differences between

passenger and freight operations and the brake equipment utilized by

the two, FRA decided to separate passenger equipment power brake

standards from freight equipment power brake standards. As passenger

equipment power brake standards are a logical subset of passenger

equipment safety standards, it was determined that the passenger

equipment safety standards working group would assist FRA in developing

a second NPRM covering passenger equipment power brake standards. See

49 U.S.C. 20133(c). In addition, in the interest of public safety and

due to statutory as well as internal commitments, FRA determined that

it would separate the issues related to two-way EOTs from both the

passenger and freight issues, address them in a public regulatory

conference, and issue a final rule on the subject as soon as

practicable. A final rule on two-way EOTs was issued on December 27,

1996. See 62 FR 278 (January 2, 1997). Furthermore, it was announced

that a second NPRM covering freight equipment power brake standards

would be developed with the assistance of RSAC. At the Committee's

inaugural meeting on April 1-2, 1996, the RSAC officially accepted the

task of assisting FRA in development of revisions to the regulations

governing power brake systems for freight equipment. See 61 FR 29164.

Members of RSAC nominated individuals to be members of the Freight

Power Brake Working Group (Working Group) tasked with making

recommendations regarding revision of the power regulations applicable

to freight operations. The Working Group was comprised of thirty-one

voting members as well as a number of alternates and technical support

personnel. The following organizations were represented by a voting

member and/or an alternate on the Working Group:

Association of American Railroads (AAR)

American Short Line Railroad Association (ASLRA)

Brotherhood of Locomotive Engineers (BLE)

Burlington Northern Santa Fe Railroad (BNSF)

Canadian National Railroads (CN)

Canadian Pacific Rail Systems (CP)

Consolidated Rail Corporation (CR)

CSX Transportation (CSX)

Illinois Central Railroad (IC)

International Association of Machinists & Aerospace Workers (IAMAW)

National Transportation Safety Board (NTSB)(Advisor)

National Association of Regulatory Commissioners (NARUC)/California

Public Utilities Commission (CAPUC)

Norfolk Southern Corporation (NS)

Railway Progress Institute (RPI)

Sheet Metal Workers International Association (SMWIA)

Southern Pacific Lines (SP)

Transportation Communications International Union/Brotherhood of

Railway Carmen (TCU/BRC)

Transport Workers Union of America (TWU)

Union Pacific Railroad (UP)

United Transportation Union (UTU)

The Working Group held seven multi-day sessions in which all

members of the working group were invited. These sessions were held on

the following dates:

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

June 11-13, 1996 in Chicago, Illinois;

July 31, 1996 in Chicago, Illinois;

August 21-23, 1996 in Annapolis, Maryland;

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

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

December 4, 1996 in St. Louis, Missouri.

General minutes of each of these meetings are contained in FRA

Docket PB-9 and are available for public inspection during the times

and at the location noted previously. In addition to these meetings,

there were numerous meetings conducted by smaller task force groups

designated by the Working Group to further develop various issues. All

of these smaller task forces were made up of various members of the

Working Group or their representatives, with each task force being

represented by management, labor, FRA and other interested parties. The

Working Group designated smaller task forces to address the following

issues: dry air; dynamic brakes; periodic maintenance and testing;

electronically controlled locomotive brakes; and inspection and testing

requirements. These task forces were assigned the job of developing the

issues related to the broad topics, presenting reports to the larger

Working Group, and if possible making recommendations to the Working

Group for addressing the issues (recommendations and reports of these

task groups will be addressed in detail in the Discussion of Issues

portion of the preamble to follow).

Although the Working Group discussed, debated, and attempted to

reach consensus on various issues related to freight power brakes,

consensus could not be reached. However, the working group in

conjunction with the various task forces developed a wealth of

information on various issues and further clarified the parties'

positions regarding how the issues could or should be addressed in any

regulation. The major cluster of issues, upon which resolution of many

of the other issues rested, were the requirements related to the

inspection and testing of brake equipment. The inspection and testing

task force met on numerous occasions, gathered and

[[Page 48296]]

reviewed data, and the labor and rail management representatives to the

task force drafted various proposals and options related to the

inspection and testing of freight brake equipment (these proposals are

addressed in detail in the Discussion of Issues portion of the preamble

to follow). Members of the inspection and testing task force presented

their proposals to the larger Working Group as well as the underlying

bases for the proposals. The Working Group discussed the proposals and

investigated many of the costs and benefits related to the various

proposals as well as the safety implications; however, the Working

Group could not reach any type of consensus position. Consequently, FRA

declared that an impasse had been reached and announced, at the

December 4, 1996 meeting of the Working Group, that FRA would proceed

unilaterally with the drafting of the NPRM.

Subsequent to December 4, 1996, several members of the Working

Group, including representatives from both rail management and labor,

continued informal discussions of some of the issues related to the

inspection and testing of freight equipment. These representatives

informed FRA that a consensus proposal might be possible provided that

the Working Group were permitted to continue deliberations.

Consequently, FRA agreed to reconvene the Working Group and in April

1997 three additional meetings were conducted on the following dates:

April 2-3, 1997 in Kansas City, Missouri;

April 10-11, 1997 in Phoenix, Arizona; and

April 23 in Jacksonville, Florida.

Representatives of both rail management and rail labor presented

the Working Group with inspection and testing proposals for

consideration and review both before and during this period. Although

the proposals were discussed and deliberated, the Working Group was

once again unsuccessful in reaching consensus on any of the freight

power brake inspection and testing issues. Consequently, by letter

dated May 29, 1997, FRA informed the members of the Working Group that

FRA would be withdrawing the freight power brake task from the Working

Group at the next full RSAC meeting on June 24, 1997. FRA provided this

notice to avoid any misunderstanding regarding the process by which the

proposed rule would be drafted. FRA also informed the members of the

Working Group that it would not invest further time in attempting to

reach consensus unless all other members of the Working Group jointly

indicated that they have reached consensus on a proposal and wanted to

discuss it with FRA. FRA noted that if that were to occur prior to June

24, 1997, it would reconsider withdrawing the task from RSAC. As no

consensus proposal was presented to FRA prior to June 24, 1997, FRA

withdrew the task from the Working Group and informed the members of

RSAC that FRA would proceed unilaterally in the drafting of a freight

power brake NPRM.

Although FRA proceeded on its own in drafting this document, FRA

believes that all members of the Freight Power Brake Working Group

should be commended for their hard work and dedication in attempting to

resolve and address some of the most difficult and complex issues with

which FRA deals. FRA believes that the information and knowledge

provided by these individuals has helped FRA draft a proposal that not

only ensures the continued safety of railroad employees and the public,

but also recognizes the needs of contemporary railroad operations.

FRA has carefully considered the information, data, and proposals

developed by the Freight Power Brake Working Group as well as all the

oral and written comments offered by various parties regarding the 1994

NPRM on power brakes. The resulting NPRM is based on this information

as well as FRA's experience with enforcing the current power brake

regulations.

Prologue

FRA's institutional experience in locomotive and train braking

safety extends backwards in time to the creation of the Department of

Transportation in 1967 (at which time the Bureau of Railroad Safety and

its functions were transferred from the Interstate Commerce

Commission), to the passage of the Power or Train Brakes Safety

Appliance Act of 1958, and ultimately to the passage of the original

Safety Appliance Act over 100 years ago. Current FRA personnel have,

during prior years, served in a variety of capacities on every major

railroad. These railroad safety inspectors, supervisors, and managers

contribute daily to the rulemaking judgments ultimately expressed by

the Federal Railroad Administrator, and the agency has made a special

effort in this proceeding to tap the knowledge that these individuals

possess to ascertain the means by which public and employee safety may

be secured.

As evidenced by the preceding discussion, FRA has spent years

attempting to develop new power brake regulations to ensure the safety

of our nation's railroads while recognizing the wide variety of

railroad operations and technologies that currently exist in the

industry. In the 1994 NPRM, FRA proposed a comprehensive and innovative

revision to the power brake regulations. At that time, FRA was

attempting to develop a set of regulations that addressed freight,

passenger, and tourist operations, and thus, required FRA to provide

certain latitudes and restrictions that were not completely compatible

with every type of operation covered by the proposal. Consequently,

many segments of the industry adamantly objected to the proposal. FRA

believes that many of these objections were due, at least in part, to

the complexity of the proposal as well as to a misunderstanding of

exactly what was being proposed.

Since that time, as noted above, FRA has instituted rulemakings to

address passenger and commuter operations and equipment, two-way end-

of-train devices, and has developed a channel of communication to

address tourist and excursion operational concerns. The current

proposal is focused solely on freight and other non-passenger

operations. Furthermore, FRA is limiting this proposal to the

operation, inspection, and maintenance of freight power brake systems.

Thus, unlike the previous proposal, FRA will not, for the most part,

attempt to include provisions related to the inspection and maintenance

of locomotive braking systems or to the performance of other mechanical

inspections that are currently addressed by other parts of the

regulations. Although FRA believes these requirements are interrelated

to the inspection, testing, and maintenance of freight power brakes,

FRA believes that they are adequately addressed in other regulations

and would only add to the complexity of this proposal causing confusion

and misunderstanding by members of the regulated community.

Furthermore, representatives of both rail labor and rail management

have indicated that if a consensus proposal could not be developed

within the RSAC process then FRA should proceed unilaterally with

developing a proposal which tracks the current requirements, and that

FRA should strictly enforce those requirements. Although FRA believes

that the current regulatory scheme tends to create incentives to

``overlook'' or fail to conduct vigorous inspections, FRA also believes

that the current regulatory scheme is an effective and proven method of

ensuring safety and that many of the ``negative incentives'' can be

greatly reduced by

[[Page 48297]]

strict and aggressive enforcement and with moderate, although

comprehensive, revision of the requirements. Consequently, the content

of this proposal is far less complex than the previous proposal and

more closely tracks the current requirements related to the inspection,

testing, and maintenance of the braking systems used in freight

operations.

This proposal is intended to be a moderate revision of the current

requirements related to the inspection, testing, and maintenance of the

brake equipment used freight operations. These proposed changes are

intended to balance the concerns of rail labor and management and would

increase the effectiveness of the regulation. Since the passage of the

Power or Train Brakes Safety Appliance Act of 1958, which required

adoption of the AAR recommended practices as regulatory text, FRA has

realized that improvements in clarity are badly needed. FRA believes

that the current regulations need to be reorganized and updated, and

that potential loopholes created by the current language need to be

eliminated. Furthermore, FRA believes that completely new requirements

are needed to address the qualifications of those individuals

conducting brake inspections and tests. FRA also proposes to codify the

statutory requirements related to the movement of freight equipment

with defective or inoperative brakes. In addition, this proposal

codifies and solidifies the maintenance requirements related to the

brake system and its components and prevents unilateral changes to

these provisions by the very party to which they apply.

This proposal also contains various incentives to the railroads to

encourage the performance of quality brake inspections, particularly at

locations where trains originate. These include incentives to use

qualified mechanical forces to conduct brake system tests at major

terminals where long-distance trains originate in order to move these

trains greater distances between brake inspections than currently

permitted. Consequently, this proposal retains the basic inspection

intervals and requirements contained in the current regulations and

preserves the useful elements of the current system; however, FRA

believes that the proposed additions, clarifications, and modifications

increase the safety, effectiveness, and enforceability of the

regulations.

Discussion of Issues and General FRA Conclusions

The following discussions are grouped by major themes and primary

issues addressed not only in the Freight Power Brake Working Group but

also in the 1994 NPRM issued on power brakes and the oral and written

comments submitted in relation to that document. In each of the major

issue areas FRA has attempted to discuss previous proposals, the

comments to those proposals, the information developed by the Working

Group, and any proposals or recommendations made by members of the

Working Group.

I. Accident/Incident History and Defective Equipment

FRA considers many factors in attempting to determine the relative

condition of the industry as it relates to the safety of train power

brake systems. Two factors which figure prominently in this

determination are the number of recent brake-related incidents and the

amount of defective brake equipment recently discovered operating over

the railroad system, both of which provide some indication as to the

potential or likelihood of future brake-related incidents. For purposes

of this discussion, a brake-related incident is one that was reported

to FRA as being caused by one of the following: brake rigging down or

dragging; air hose uncoupled or burst; broken brake pipe or

connections; other brake components damaged, worn, broken or

disconnected; brake valve malfunction (undesired emergency); brake

valve malfunction (stuck brake); hand brake broken or defective; hand

brake linkage and/or connections broken or defective. FRA did not

consider brake pipe obstruction-related incidents because they were

fully considered at the time that FRA promulgated the final rule

relating to the use of two-way end-of-train devices.

Table 1 below contains a compilation of the relevant brake-related

incidents that have been reported to FRA over the past 5 years. The

totals for 1997 reflect incidents through October 1997 and the incident

rate reflects train miles for 1996 (latest available). Both the number

of incidents and the number of train miles for 1997 will in all

probability be higher when they are finalized. As the table clearly

indicates, there were increases in both brake-related incidents and the

incident rate between 1994 and 1996. The incident rate remains fairly

low relative to other causes of derailments and collisions. However, it

should be noted that the figures presented in Table 1 most likely do

not accurately reflect the total number of incidents that are

potentially linked, in some part, to brake-related causes and do not

provide a complete picture of the costs associated with the identified

incidents. FRA obtains information on most incidents directly from the

railroads which generally identify the direct cause of an incident but

may not sufficiently identify all of the contributory causes in a

manner to permit FRA to conclude that the brake system played a part in

the incident. Thus, FRA believes that there may be numerous incidents

that occur in the industry which are at least partially due to brake-

related problems, but which are ultimately more closely linked to human

error or other mechanical problems and thus, are reported to FRA under

those cause codes. Furthermore, the damage costs noted in Table 1 for

the identified incidents are based on the damage to railroad property

or equipment together with the costs of the injuries or fatalities

involved. Thus, the damages presented fail to consider the costs

associated with such things as: loss of lading; wreck clearance; track

delay; environmental clean-up; removal of damaged equipment;

evacuations; or the impact on local traffic patterns. Consequently, the

railroad property damages have been multiplied by a factor of 1.5625 in

an effort to capture these non-reported damages.1

---------------------------------------------------------------------------

\1\ AAR surveyed its members and reported that, on average,

these other costs constitute an additional 56.25 percent of the

reported damages.

Table 1.--Brake-Related Incidents

----------------------------------------------------------------------------------------------------------------

Rate per

Year Number of million Injured Killed Damages \2\

accidents train miles

----------------------------------------------------------------------------------------------------------------

93.......................................... 15 0.024 0 0 $1,298,109

94.......................................... 33 0.050 17 1 $2,440,347

95.......................................... 43 0.064 2 0 $6,710,280

96.......................................... 52 0.077 12 1 $10,534,903

97 \3\...................................... 29 0.043 1 0 $10,032,013

-------------------------------------------------------------------

[[Page 48298]]

Total................................... 172 ........... 32 2 $31,015,653

----------------------------------------------------------------------------------------------------------------

A second factor that is considered by FRA, to some extent, in

determining the relative condition of the industry in regard to the

safety of power brake equipment is the percentage of equipment found

with defective brakes during FRA inspections and special projects. The

percentage of equipment with defective brakes was a contentious subject

within the RSAC Power Brake Working Group. The problem of brake defect

data and how it is collected and entered into the FRA database was

debated at length. The issue is important for cost and benefit

estimation of proposals put forth by labor and management and it is

useful to examine the problem in detail. Data on brake defects is

collected by FRA inspectors as they do rail equipment inspections.

Defect data is also collected for special projects under the Safety

Assurance and Compliance Program (SACP). In neither instance is the

data collection procedure designed to be suitable for use in

statistical analysis of brake defects.

---------------------------------------------------------------------------

\2\ Increased by 56.25% to reflect unreported damages.

\3\ Based on train miles for 1996 and accidents through October,

1997.

---------------------------------------------------------------------------

In order to perform a statistically valid analysis, either all cars

and locomotives must be inspected (prohibitively expensive), or a

statistically valid sample must be collected. For the sample to be

valid for the purpose of statistical analysis, the sample must be

randomly selected so that it will represent the same characteristics as

the universe of data. Random samples have several unique

characteristics. They are unbiased, meaning that each unit has the same

chance of being selected. Random samples are independent, or the

selection of one unit has no influence on the selection of other units.

Most statistical methods depend on independence and lack of bias.

Without a randomized sample design there can be no dependable

statistical analysis, and no way to measure sampling error, no matter

how the data is modified. Random sampling ``statistically guarantees''

the accuracy of the results.

The sampling method used for regular FRA inspections is not random.

It is more of a combination between a judgement sample and an

opportunity sample. The opportunity sample basically just takes the

first sample population that comes along, while the judgement sample is

based on ``expert'' opinion. The sampling method used for SACP

inspections is also a judgement sample, where FRA is focusing its

inspections on a specific safety concern. This method is extremely

prone to bias, as FRA is typically investigating known problem areas.

Furthermore, some SACP inspections are joint inspections with labor.

Consequently, it is unknown whether the final reports reflect only FRA

defects, as many of the joint inspections had both AAR and FRA defects

recorded.

Neither the regular FRA inspections nor the SACP inspections were

designed for random data collection. Although both are very useful to

FRA, they were not designed for this purpose and the data should be

used carefully. FRA believes that data collected during routine

inspections is the most likely data to accurately reflect the condition

of the fleet. However, both FRA inspection data and SACP data lack any

measuring device, a defect is a defect and no distinction is made

between a critical defect versus a minor defect. Furthermore, there is

no correspondence between defects and accidents (no estimated

correlation coefficients were statistically significant). This does not

mean that defects cannot lead to collisions or derailments as the lack

of correlation could easily be a result of non-random sampling.

Consequently, the data collected both during routine FRA inspections

and under SACP cannot be used as a proxy for data collected by means of

a random sample for the purpose of statistical analysis. The sample is

not random, so no dependable statistical analysis may be performed.

The defect ratios for brake and brake-related defects from the FRA

inspection database are shown in Table 2 below. The five-year average

brake defect ratio is 3.84 percent. SACP data (which focuses on known

problem areas) indicates that brake defect ratios as high as 35 percent

have been found during the course of some investigations. FRA believes

that the reality lies between the two, and that it is more likely to

resemble the data collected during routine FRA inspections as FRA

examines almost a \1/2\ million freight cars and locomotives annually.

However, brake defects may be more common than FRA inspection data

indicates and the SACP data in all likelihood indicates that there are

localized areas of concern or that some railroads have particular yards

with persistent problems. For purposes of the cost/benefit analysis of

this proposal only, the brake defect ratio is assumed to be the five-

year average brake defect ratio and rounding up to 4 percent. The data

indicates that a slight increase in the percentage of cars with brake

defects has been reported by FRA during routine inspections over the

last five years. Due to the limitations of the available data, as

discussed in detail above, FRA is unable to determine whether the

defect ratio increase is the result of increased non-compliance with

existing regulations or the result of sampling bias.

Table 2.--Brake Defect Ratio

------------------------------------------------------------------------

Ratio

(defective

Year equipment/

equipment

inspected)

------------------------------------------------------------------------

1993....................................................... 0.0336

1994....................................................... 0.0347

1995....................................................... 0.0369

1996....................................................... 0.0419

1997....................................................... 0.045

Average.................................................... 0.0384

------------------------------------------------------------------------

II. Inspection and Testing Requirements

As noted in the preceding discussions, the issues related to the

inspection and testing of the brake equipment on freight trains are

some of the most complex and sensitive issues with which FRA deals on a

daily basis. A majority of the comments received with regard to the

1994 NPRM on power brakes issued in 1994 addressed the intervals and

methods for performing the various proposed brake inspections and

tests. Furthermore, the primary points of contention in the RSAC

Working Group discussions centered on the performance of brake

inspections and tests. Consequently, any proposed requirements related

to the inspection and testing of freight power brakes must be viewed as

the foundation on which

[[Page 48299]]

the rest of the proposed requirements are based.

A. Brake Inspections--General

The current regulations are primarily designed around four

different types of brake system inspections, these include: initial

terminal; 1,000-mile; intermediate terminal; and a brake pipe

continuity check. See 49 CFR 232.12 and 232.13. These brake system

inspections differ in complexity and detail based on the location of

the train or on some event that affects the composition of the train.

Each of the inspections detail specific actions that are to be

performed and identify the items that are to be observed by the person

performing the inspection.

The initial terminal inspection described in Sec. 232.12(c)-(j) is

intended to be a comprehensive inspection of the brake equipment

primarily required to be performed at the location where a train is

originally assembled. This inspection requires the performance of a

leakage test and an in-depth inspection of the brake equipment to

ensure that it is properly secure and does not bind or foul. Piston

travel must be checked during these inspections and must be adjusted to

a specified length if found not to be within a certain range of

movement. The brakes must also be inspected to ensure that they apply

and release in response to a specified brake pipe reduction and

increase. FRA recently issued enforcement guidance to its field

inspectors clarifying that both sides of a car must be observed

sometime during the inspection process in order to verify the condition

of the brake equipment as required when performing an initial terminal

inspection.

The current regulations require intermediate brake inspections at

points not more than 1,000 miles apart. These inspections are far more

limited than the currently required initial terminal inspections in

that the railroad is required only to determine that brake pipe leakage

is not excessive, the brakes apply on each car, and the brake rigging

is secure and does not bind or foul. See 49 CFR 232.12(b). In the 1982

revisions to the power brake rules, FRA extended the distance between

these inspections from 500 miles to 1,000 miles.

The current regulations also mandate the performance of an

intermediate terminal brake inspection on all cars added to a train en

route unless they have been previously given an initial terminal

inspection. This inspection requires the performance of a leakage test

and verification that the brakes on each car added to the train and the

rear car of the train apply and release. See 49 CFR 232.13(d).

Railroads are permitted to use a gauge or device at the rear of the

train to verify changes in brake pipe pressure in lieu of performing

the rear car application and release. The current regulations also

require that cars that are added to a train with only an intermediate

terminal brake inspection that have not previously been provided an

initial terminal inspection must be so inspected at the next location

where facilities are available for performing such an inspection.

The current regulations also require the performance of a brake

pipe continuity test whenever minor changes to a train consist occur.

This inspection requires that a brake pipe reduction be made and

verification that the brakes on the rear car apply and release.

Railroads are permitted to use a gauge or device at the rear of the

train to verify changes in brake pipe pressure in lieu of visually

verifying the rear car application and release. This inspection is to

be performed when locomotive or caboose is changed, when a one or more

consecutive cars are removed from the train, and when previously tested

cars are added to a train.

In the 1994 power brake NPRM issued in 1994, FRA proposed a power

brake inspection scheme in which various stated factors determined the

distance that a freight train would be allowed to travel without

additional inspection. See 59 FR 47732-47736. These factors included:

the qualifications of the employee performing the initial terminal

brake inspection; the extent of performance of supervisory spot checks

of maintenance and inspection activity; the presence or absence of a

single car test program on the railroad; the power brake defect ratio

on outbound trains for the railroad; and the type of equipment used and

installed on the train. Based on the conditions that were satisfied by

the railroad, a train would be allowed to travel anywhere between 500

and 3,500 miles from the point of initial terminal without additional

power brake tests or inspections. Thus, FRA proposed the elimination of

the 1,000-mile inspection and replaced it with a sliding-scale

performance-based inspection system. The inspection scheme proposed in

the 1994 NPRM was an attempt to balance the competing views of rail

management, which contended that trains can travel up to 5,000 miles

between inspections, and rail labor, which contended that a 500 mile

limit should be mandated as railroads are not living up to a commitment

made in 1982 to perform quality initial terminal inspections. See 59 FR

47692-47693.

As noted above, railroad representatives and shippers of goods by

rail vehemently opposed the 1994 NPRM. Many of these commenters

objected to the possibility that most trains would be reduced to 500

miles between brake inspections and that the incentives for moving

extended distances were unobtainable. They claimed that the brake

inspection scheme contained in the 1994 NPRM would increase not only

operational and delivery costs but would also substantially increase

delivery times. These commenters believed that the 1994 NPRM failed to

recognize the industry's improving safety record. Many railroad

representatives also objected to the use of power brake defect ratios

as a benchmark for determining the distances trains may travel between

brake inspections. These commenters believed that defect ratios were an

inappropriate performance standard in that it was too subjective and

included items that were not related to the safe operation of a train.

Several railroads also commented that the potential for being reduced

to 500 miles between brake inspections based on defect ratios each

quarter would require railroads to maintain facilities every 500 miles

in order to be prepared for a reduction in distance.

Rail labor representatives also objected to the brake inspection

scheme proposed in the 1994 NPRM. The primary objections these

commenters raised involved the ability of railroads to continue to use

train crews to conduct initial terminal brake inspections and the

ability to move trains in excess of 1,000 miles between brake

inspections. Most of these commenters believed that train crew

personnel are not sufficiently trained to adequately perform initial

terminal brake inspections. Several labor representatives also objected

to the movement of a freight train beyond 1,000 miles without an

additional inspection of the brake equipment. This objection was

primarily based on their view that railroads have failed to abide by

the commitment made in 1982, when the distance between such inspections

was increased from 500 miles to 1,000 miles, that complete and perfect

initial terminal inspections would be performed. These commenters also

contended that the incentives proposed for permitting trains to travel

extended distances were unenforceable and would result in extended

movements of trains with no appreciable increase in the safety of those

trains.

In light of these objections, FRA held the 1994 NPRM in abeyance

and requested that alternative approaches be

[[Page 48300]]

submitted by interested parties. The AAR and its member railroads

submitted an alternative performance standard approach based on

mechanically-caused accidents per million train miles (APMTM). AAR's

approach required various types of brake inspections to be performed

based on the mileage the train will travel, and based on the railroad's

performance versus the established foundation APMTM, the railroad could

potentially move trains up to 3,600 miles with fewer inspection

requirements. AAR's proposal also addressed certain maintenance

requirements and permitted maintenance levels to be determined based on

the accident level of the industry as a whole. In addition, the

proposal permitted trains to depart initial terminals with 95 percent

operative brakes and in some instances less than 95 percent operative

brakes. The proposal also set limits on the enforcement actions that

FRA could initiate based on a railroad's poor performance.

Several labor representatives strongly objected to AAR's

alternative proposal claiming that the proposal was merely self-

regulation disguised as a performance standard. These commenters

contended that AAR's proposal provided railroads the ability to

continue to manipulate data and statistics in order to reduce their

safety and regulatory responsibilities. The BRC submitted substantial

comments to FRA's 1994 NPRM as an alternative approach. The BRC's

submission suggested that many of the proposed provisions were

insufficient to ensure adequate compliance by the railroads.

Consequently, the BRC made numerous recommendations for strengthening

certain provisions contained in the NPRM and included: more stringent

requirements regarding the inspection of trains; additional limitations

on trains permitted to travel greater than 1,000 miles between brake

inspections; enhanced documentation of all inspections performed by the

railroad; and further limitations on the inspection abilities of train

crew members.

At the time that alternative proposals were being submitted and

reviewed, FRA was in the process of establishing RSAC. FRA believed

that RSAC might be a good forum for addressing the issues and

developing recommendations for revising the regulations governing power

brake systems for freight equipment. Therefore, on April 1-2, 1996, the

RSAC officially accepted the task of assisting FRA in development of

revisions to the regulations governing power brake systems for freight

equipment. See 61 FR 29164. As noted above, the RSAC Working Group met

on numerous occasions to discuss various issues and proposals related

to the inspection, testing and maintenance of freight power brake

systems. As the meetings progressed it became clear that most of the

issues being discussed by the Working Group were contingent on the

outcome of the requirements related to the inspection and testing of

the braking systems. Consequently, the Working Group created several

smaller task forces composed of representatives of both rail labor and

rail management to attempt to resolve these core issues.

On several occasions it appeared as though these smaller task

forces might reach resolution of at least a large portion of the

inspection and testing issues; however, after the individuals involved

in these meetings presented proposals based on the discussions of the

smaller group it appeared that either there was no agreement within the

task force, the parties did not understand what was agreed to, or the

parties disagreed as to whether an agreement was actually reached.

Representatives of both rail management and rail labor submitted

numerous proposals related to the inspection and testing of brake

equipment. Many of the proposals were revisions or amendments to

previous proposals based on the discussions of the Working Group at

that time. Rather than attempt to reiterate the various proposals

submitted by management and labor representatives, this document will

attempt to outline the major provisions and discuss the similarities

and differences of the various proposals in order to delineate the

general positions of the parties involved. In order to facilitate this

discussion, the proposals will generally be grouped as either a

management proposal or a labor proposal. It should be noted that the

items outlined below were developed over the period of a year, were

developed as part of a series of intense negotiation sessions, were

generally presented as part of a package by various parties with all of

the requirements of the package necessary for agreement, or were

presented in order to facilitate additional discussion of the group.

The proposals of both management and labor representatives

addressed the need to have brake and other mechanical inspections

performed by qualified inspectors. The proposals mandated that if

certain inspections were performed in a specified manner by highly

qualified inspectors then those trains could be moved either extended

distances between brake inspections or with a certain minimum

percentage of the brakes inoperative or both. However, the parties

differed on what constitutes a qualified inspector. This issue became

the key issue to resolving any of the other issues being debated within

the Working Group. Rail management proposed the use of the term

``mechanically qualified personnel'' (MQP) to describe those

individuals they would consider highly qualified inspectors. It was

unclear from the railroads' proposals exactly who could be designated

as MQP and the extent of the knowledge or training that would be

required to designate a person as MQP. It appeared that even train crew

personnel could qualify as MQPs under certain circumstances. Labor

representatives refused to accept any definition of MQP that would

permit train crew members to meet the designation. These

representatives were adamant that only carmen or individuals similarly

trained and experienced were qualified to perform the quality brake and

mechanical inspections contained in the proposals except in limited

circumstances. At a minimum, labor representatives sought to have the

railroads commit to using carmen or individuals similarly trained and

experienced to perform the majority of the proposed inspections and

tests. The railroads refused to agree to such a commitment. Railroad

representatives objected to the designation of the carman craft in the

rule text based on their belief that the discussion of such designation

would violate existing collective bargaining agreements. Labor

representatives disagreed that such discussion was a violation of any

collective bargaining agreements. Due to the nature of these

objections, several members of the Working Group believed they were

unable to continue deliberations which led to an adjournment of the

Working Group. Consequently, the Working Group was unable to resolve

the issue of what qualifications a person must possess in order to

adequately perform brake system inspections and tests.

Both labor and management representatives proposed to limit the

movement of trains inspected by train crews to at least 500 miles. The

railroads proposed that trains inspected by train crews would be

required to be inspected by an MQP within 500 miles of the train's

departure. It should be noted that the railroads' proposal of this

requirement was part of a package that permitted certain trains

inspected by MQPs to travel to destination without additional

inspection and that permitted all trains to be operated out of initial

terminals and elsewhere with only 95

[[Page 48301]]

percent operative brakes. The railroads contended that the only way to

economically justify a return to a 500-mile inspection would be to

permit trains to move extended distances and to relax the requirements

pertaining to the movement of defective equipment.

Rail labor proposed that trains inspected by train crews be

permitted to move only to the next yard, repair point, or crew change

point not to exceed 500 miles where it would be inspected by carmen.

This proposal permitted train crews to perform a ``cursory'' brake and

mechanical inspection at the initial terminal. Labor representatives

contended that train crews are not properly trained and do not possess

the experience to adequately perform the initial terminal brake test

and mechanical inspections required by the current regulations. These

parties also contend that when the regulations were revised in 1982 to

permit trains to travel 1,000 miles between brake inspections the

carriers committed to perform quality initial terminal brake

inspections, which they contend has not occurred and will not occur if

train crews are permitted to perform initial terminal brake

inspections. Consequently, the labor representatives contended that

their proposal was an attempt to hold the railroads to their 1982

commitment while permitting properly qualified train crews to perform

the inspections they are capable of performing.

The proposals of both rail labor and rail management also contained

provisions regarding the performance of a 1,000-mile brake and

mechanical inspection. The railroads proposed that all trains would

receive a brake and mechanical inspection at 1,000 mile intervals

performed by MQPs. However, the railroads' proposal also permitted

certain trains that are inspected by MQPs at the initial terminal and

which depart those locations with 100 percent operative brakes to

travel to destination without additional inspection if labor jointly

agreed to such operations. Labor's proposal required the performance of

brake and mechanical inspections on every train at intervals of every

1,000 miles regardless of the quality of the previous inspections.

Labor's proposal permitted the movement of a train beyond 1,000 miles

without inspection only through the filing of a joint labor/management

waiver petition pursuant to a proposed waiver process.

The proposals of both rail management and rail labor attempted to

provide benefits to a railroad that conducted inbound brake and

mechanical inspections. The railroads' proposals contained requirements

for the performance of inbound brake and mechanical inspections by

MQPs. The carriers proposed the requirements as an alternative to the

complete inspection of the train when it is assembled and outbound. All

cars found during the inbound inspection with cut-out or defective

brakes were to be removed from the train and given a repair track air

brake test. In addition, all cars found with mechanical or safety

appliance defects were to be repaired or switched out of the train. The

railroads' proposals permitted trains to depart these locations with

only 95 percent operative brakes. The railroads' proposals did not

require the performance of inbound inspections but were intended to

alleviate some of the inspection requirements on outbound trains since

they were performed inbound.

Rail labor's proposals also included provisions for the performance

of inbound brake and mechanical inspections. Labor proposed that these

inspections must be performed by carmen. The basic requirements

regarding the treatment of defective equipment were similar to those

proposed by the railroads. Labor's proposal also contained provisions

requiring dynamic brakes, event recorders, and two-way EOTs. Labor

representatives attempted to provide an incentive to railroads that

perform inbound brake and mechanical inspections by permitting

railroads to depart with only 95 percent operative brakes from

locations where these inbound inspections are performed. If a railroad

performed all of the inspections on the outbound trains, however, then

labor's proposal required 100 percent operative brakes from those

locations.

Both the labor and management proposals also addressed the method

by which the various proposed inspections were to be performed.

Railroad representatives proposed that mechanical inspections be

conducted on both sides of each car where physically possible. These

proposals also indicated that brake inspections could be conducted on

one side of the cars during the set and one side during the release

with a roll-by option if the design of the car permits the observation

of the application and release from one side of the car. However, the

proposals do not require a mechanical inspection at 1,000-mile brake

inspections and fail to specify exactly how the brakes are to be

observed during this inspection. Thus, the railroads' position

regarding the precise method of performing a brake inspection when not

combined with a mechanical inspection is somewhat unclear. The

railroads also proposed that piston travel be observed on each car

during every brake inspection except a continuity check, thereby

mandating that inspectors cross over the cars if necessary to view the

piston travel.

Rail labor representatives proposed detailed requirements relating

to the methods for performing a proper brake inspection. These

individuals proposed that both sides of a train must be walked during

both the application and release of the brakes. These representatives

believed that the only way to view all of the equipment necessary to

conduct a proper brake inspection is by walking the train. Labor's

proposal did permit trains that receive a mechanical inspection

pursuant to Part 215 by a carman to have its brakes inspected by a

walking inspection of one side of the train with the option to use a

vehicle on the other side during the application of the brakes. Such

trains also had the option to use a vehicle or perform a roll-by

inspection on both sides of the train to observe the release of the

brakes. Labor's proposals also permitted carriers to conduct an

inspection of the application of the brakes and its component parts

from one side of the train and the release of the brakes from the other

side of the train if the carrier could effectively demonstrate that the

design of the cars is such to permit the brake application, brake

release, and component parts to be observed from one side of the train.

The proposals of both rail management and rail labor also addressed

the inspection of cycle trains (i.e., trains that operate in a

continuous cycle between two points, that remain intact, and that

generally consist of cars of the same mechanical type). Both proposals

required that cycle trains receive a mechanical and initial terminal

brake inspection based on the distance the train has traveled. The

railroads' proposal would require these inspections at 1,000 mile

intervals. Whereas, the labor proposal required the inspections once

every cycle for trains traveling between 500 and 1,000 miles between

origination and destination, and once every other cycle for trains

traveling less than 500 between origination and destination.

FRA Conclusions. Based on consideration of the information and

proposals outlined above as well as its experience in the enforcement

of the current power brake regulations, FRA believes that the

alternative proposals submitted in response to the 1994 NPRM, as well

as the proposals developed as part of the RSAC process, are not viable

models upon which a revision of the freight power brake

[[Page 48302]]

requirements can be based. The alternative approach submitted by AAR in

response to the 1994 NPRM contains a performance standard based upon

the number of mechanically-caused incidents per million train miles.

FRA does not believe this is an appropriate standard on which to base

the frequency of brake inspection and maintenance requirements. Such a

standard is based on the occurrence of incidents rather than on a

factor which could measure a railroad's performance prior to an

accident occurring and thus, prevent incidents before they happen. In

addition, the applicability of the standard to the entire industry

would be difficult to calculate on a railroad-by-railroad basis,

especially due to the large number of short line railroads currently

operating in the country. The proposed performance standard is also

very subjective as many incidents are due to a variety of causes only

part of which may be a mechanical or brake related cause. Thus,

identifying what actually constitutes a mechanically-caused incident

would be very difficult, if not impossible in some circumstances.

Furthermore, as the calculation of the performance standard would be

based on incident information submitted to FRA by the railroad's

themselves, the potential for data manipulation would exist which could

cast doubt on the validity and accuracy of the performance standard.

The AAR's alternative proposal also seriously limited FRA's ability

to take necessary enforcement actions until a railroad's non-compliance

resulted in a substantial increase in mechanically-caused incidents. In

addition, the restrictions imposed on a railroad with poor performance

would have permitted the railroad to operate under more lenient

inspection requirements than the current power brake regulations. The

proposal also permitted the operation of trains out of initial

terminals with only 95 percent operative brakes and thus, would

potentially permit cars with inoperative brakes to be moved past

locations where the necessary repairs could be performed which would be

contrary to the statutory provisions related to the movement of cars

with defective brakes contained at 49 U.S.C. 20303. Consequently, FRA

believes that the alternative approach submitted by the AAR in response

to the 1994 NPRM is based on a very subjective performance standard,

would be extremely difficult to enforce, is contrary to certain

statutory requirements, and most likely would not achieve the same

level of safety as the current regulations.

Although the proposals submitted by both rail labor and rail

management during the discussions of the RSAC Working Group meetings

contain elements which FRA believes would increase the safety of

railroad operations, both proposals also contain elements that cannot

be sustained on either a safety, economic, or legal basis. As noted in

the discussion above, the proposals submitted by both labor and

management were presented as packages. The parties made clear that the

various elements contained in the proposals could not be isolated and

be acceptable, they had to be considered in conjunction with all of the

elements contained in the proposals. Therefore, FRA is reluctant to use

any of the proposals submitted during the RSAC process as a basis for

any revision of the power brake regulations. Furthermore,

representatives of both labor and management indicated that if they

could not reach agreement on the revision of the power brake

regulations, then any revision contemplated by FRA should track the

current inspection requirements and intervals.

Both proposals contained requirements restricting the movement of

trains inspected by train crews to no more than 500 miles before the

train would be reinspected by more highly qualified inspectors.

However, railroad representatives stressed that their acceptance of a

return to a 500 mile brake inspection was conditioned on and could only

be economically justified if the railroads were provided the ability to

move some trains to destination (i.e. 2,000 miles or more) as well as

flexibility in the movement of defective equipment, both of which were

included in their proposal. Whereas, labor representatives stated that

the acceptance of permitting train crews to perform any inspections was

conditioned on a commitment by the railroads to ensure that all other

inspections would be performed by carmen or similarly trained personnel

and that the current 1,000 mile interval between inspections be

retained unless labor and management jointly agreed to an extension.

Labor's proposal also would have permitted a ``cursory'' inspection to

be performed by train crews at initial terminals in order to reduce the

burden on railroads if a 500 mile inspection were adopted.

Consequently, although both proposals contained a 500-mile restriction

on trains inspected by train crews, both proposals also contained

various other restrictions or conditions that were part of the 500-mile

restriction that were very different and in FRA's view are

irreconcilable.

Although FRA believes that a 500-mile inspection interval would

most likely increase the safety on today's railroads, FRA does not

believe that the return to a 500-mile interval is the most efficient or

most cost-effective method of achieving the desired result, as

discussed below in more detail. In FRA's view, many of the items

proposed by the parties in order to make a 500-mile inspection interval

a viable approach would have the potential for increasing the safety

risks that already exist. For example, FRA is not currently willing to

permit trains to travel extended distances without strict operational

conditions being imposed and without a means to obtain information on

the condition of such trains at the time they arrive at destination.

Furthermore, FRA is concerned that any safety gains acquired from a

500-mile inspection interval would be negated by other provisions

contained in the various proposals such as allowing the extended

movement of defective equipment or the performance of ``cursory''

inspections by train crews at initial terminals.

As noted above, both proposals also contained provisions extending

some flexibility in the movement of defective brake equipment. The

railroads' proposal permitted the movement of any train with only 95

percent operative brakes and permitted the defective cars to be hauled

as far as destination. Although the labor proposal limited the

locations and trains where defective equipment could be hauled, the

proposal did permit defective equipment to be hauled out of initial

terminals and to destination if certain stringent inspection practices

were implement by the railroad. Currently, 49 U.S.C. 20303 permits

equipment with defective brakes to be moved only if the movement is

necessary for conducting repairs and limits such movement to the

nearest location where the necessary repairs can be effectuated.

Therefore, both of the proposals were based, in part, on provisions

designed to provide incentives to perform heightened inspections that

are contrary to the statutory requirements regarding the movement of

equipment with defective safety appliances. At the time these proposals

were discussed by the members of the Working Group it was agreed that

if a consensus could be achieved, then representatives of all parties

involved would petition Congress in an attempt to change the current

statutory requirements. As no consensus was reached, FRA is bound by

the statutory requirements regarding

[[Page 48303]]

the movement of defective equipment and will not propose any

requirements that are not in accordance with those provisions. (See

discussion below titled ``Movement of Defective Equipment.'')

In 1982, when FRA extended the 500-mile inspection interval to

1,000 miles, FRA intended that quality initial terminal brake

inspections would be performed by the railroads. FRA feels that

railroads have not conducted the excellent initial terminal inspections

that were contemplated in 1982. Furthermore, contrary to the railroads'

contention, FRA feels that many initial terminal brake inspections are

being performed by individuals who are not sufficiently qualified or

trained. FRA recognizes that since 1982 new technology and improved

equipment have been developed that allow trains to operate for longer

distances with fewer defects. However, the key to achieving this

improved capability is to ensure the proper operation and condition of

the equipment at the location where the train is initially assembled.

Although FRA agrees that many of the initial terminal inspections

conducted by train crews are not of the quality anticipated in 1982

when the inspection interval was increased from 500 miles to 1,000

miles, FRA believes that properly trained and qualified train crew

personnel could perform certain brake inspections and some have been

performing such inspections for several years. FRA believes that a

reversion to a 500 mile restriction on trains inspected by train crews

does not adequately address the concerns regarding the safety of these

trains and would impose an economic burden on the railroads that cannot

be justified. Two of the major factors in ensuring the quality of brake

inspections is the proper training of the persons performing the

inspections and adequate enforcement of the requirements. Therefore,

FRA believes that the current 1,000 mile inspection interval should be

retained but intends to propose general training requirements for

persons conducting brake inspections. These proposed training

requirements will include general provisions requiring both classroom

and ``hands-on'' training, general testing requirements, and annual

refresher training provisions. FRA is also proposing to require that

various training records be maintained by the railroads in order for

FRA to determine the basis for a railroad's determination that a

particular person is considered qualified to perform a brake

inspection, test, or repair. FRA believes these general training and

recordkeeping requirements will provide some assurances that qualified

people are conducting the required brake system inspections and tests.

FRA also intends to enhance and increase its enforcement activities

with regard to the performance of the brake inspections and tests

proposed in this NPRM, particularly those performed by train crews. FRA

intends to make a concerted effort to focus on the qualifications of

train crew members and will strictly scrutinize the method and length

of time spent by these individuals in the performance of the required

inspections. This may involve the review of event recorder tapes to

ensure that a sufficient amount of time was afforded for conducting a

proper inspection of the brake system. FRA will also focus its

inspection activities to ensure that train crews are provided the

proper equipment necessary to perform many of the required inspection.

In addition to focusing its enforcement and to aid in that

initiative, FRA proposes to clarify, update, and modify the current

inspection requirements in order to close what are perceived to be

existing loopholes and to incorporate what FRA believes to be the best

practices currently existing in the industry while updating the

requirements to recognize existing technology. FRA believes, and many

representatives of rail labor and management agree, that the current

inspection requirements are very good for the most part and are

sufficient to ensure a high level of safety, but that they need to be

strictly enforced, clarified, and updated to recognize existing and new

technology. Therefore, FRA does not propose an extensive revision of

the basic brake inspection intervals or requirements. Rather, FRA

proposes a moderate revision of the requirements, with the intent of

tightening, expanding, or clarifying those inspection or testing

requirements which have created enforcement problems or inconsistencies

in the past. FRA intends to recognize some of the technological

improvements made in the industry such as the use of two-way EOTs

during the brake tests and use of the air flow method of qualifying

train air brake systems. FRA also recognizes that some trains are

capable of moving extended distances between inspections provided that

comprehensive inspections are performed at the locations where the

trains are originated. (See discussion below titled ``Extended Haul

Trains.'')

In order to clarify the requirements regarding where and when

various brake inspections and tests must be performed, FRA proposes to

modify the terminology related to the power brake inspection and

testing requirements contained in the current regulations, which is

generally based on the locations where the inspections and tests are

performed (i.e., initial terminal, intermediate locations). Instead,

FRA proposes to identify various classes of inspections based on the

duties and type of inspection required, such as: Class I; Class IA; and

Class II. This is similar to the approach taken by FRA in the 1994 NPRM

and in the proposed rulemaking on passenger equipment safety standards.

See 59 FR 47736-40. FRA believes that this type of classification

system will avoid some of the confusion that currently arises regarding

when and where a certain brake inspection must be performed.

Currently, the brake system inspection and testing requirements are

interspersed within Sec. 232.12 and Sec. 232.13 and are not clearly

delineated. Therefore, FRA believes that reorganizing the major types

of brake inspections currently contained in the regulations into

separate and distinct sections will provide the regulated community

with a better understanding as to when and where each inspection or

test is required. Although FRA proposes a change in the terminology

used to describe the various power brake inspections and tests, the

requirements of these inspections and tests will mirror the current

requirements and are not intended to change or modify any of the

voluminous case law that has been developed over the years regarding

the inspections. Consequently, FRA proposes four major types of brake

inspections to be performed by freight railroads some time during the

operation of the equipment. FRA proposes the terms ``Class I,'' ``Class

IA,'' ``Class II,'' and ``Class III'' to identify the four major types

of brake inspections required by this proposal.

The proposed Class I brake test generally contains the requirements

currently contained in Sec. 232.12 (a) and (c)-(h). These requirements

have been reorganized to clearly delineate when and how the inspection

is to be performed based on current interpretations and comments

received since the 1994 NPRM. The requirements have also been modified

to require written notification that the test was performed and that

this notification be retained in the train until it reaches

destination. The proposed revisions also acknowledge the use of the air

flow method for qualifying train brake systems and permits the use of

end-of-train devices in the performance of the test. The proposal also

provides some latitude to trains received in interchange

[[Page 48304]]

that have a pre-tested car or solid block of cars added at the

interchange point or that are moved less than 20 miles after being

received in interchange based on the relative safety of permitting

these types of trains to continue without the performance of a

comprehensive Class I brake test.

The proposed Class IA brake test clarifies the requirements for

performing 1,000-mile brake inspections currently contained in

Sec. 232.12(b). The proposal makes clear that the most restrictive car

or block of cars in the train determines when this inspection must

occur on the entire train. FRA also proposes to require that railroads

designate the locations where these inspections will be conducted and

does not permit a change in those designations without 30-day notice or

the occurrence of an emergency situation. The proposed Class II and

Class III brake tests essentially clarify the intermediate terminal

inspection requirements currently contained in Sec. 232.13(c) and (d)

regarding the performance of brake system inspections when cars are

added en route or when the train consist is slightly altered en route.

In addition to the modifications and clarifications proposed with

regard to the four major types of brake system inspections, FRA also

proposes to retain, with clarification and elaboration, the basic

inspection requirements related to transfer trains currently contained

at Sec. 232.13(e) as well as the requirements for performing brake

system inspections using yard air sources currently contained at

Sec. 232.12(i). FRA also proposes to retain the requirements related to

the inspection and testing of locomotives when used in double heading

and helper service currently contained at Sec. 232.15. FRA proposes

some additional inspection requirements of locomotives when used in

helper service or when used in distributed power operations to ensure

the proper functioning of the brakes on these locomotives as these

types of inspections are not adequately addressed in the current

regulation. Furthermore, FRA does recognize in this proposal that

trains, if properly inspected, can safely travel greater than 1,000

miles between brake inspections. (See discussion below titled

``Extended Haul Trains.'')

B. Extended Haul Trains

In the 1994 NPRM, FRA recognized that since 1982 new technology and

improved equipment have been developed that allow trains to operate for

longer distances with fewer defects. However, FRA further acknowledged

that the key to achieving this improved capability is to ensure the

proper operation and condition of the equipment, and that the best way

of ensuring the proper operation and condition of equipment is to

perform quality initial terminal brake inspections and to conduct

proper equipment maintenance. Therefore, in 1994 FRA proposed a

sliding-scale approach that based the allowable distance a train may

travel between brake inspections on a variety of factors and based on

the conditions that were satisfied by the railroad. Consequently, a

train would be allowed to travel anywhere between 500 and 3,500 miles

from the point of initial terminal without additional power brake tests

or inspections. See 59 FR 47735.

As noted in the previous discussion, the AAR submitted an

alternative proposal which would have permitted some trains to travel

as far as 3,600 miles between brake inspections. Whereas, the BRC and

other labor representatives objected to any movement beyond 1,000 miles

based on the railroads' commitment to perform quality initial terminal

inspections in 1982, which they claim has not happened. However, the

proposals submitted by both rail labor and rail management during the

RSAC Working Group deliberations provided provisions for the potential

movement of trains greater than 1,000 miles between brake and

mechanical inspections. (A detailed synopsis of these proposals is

contained in the preceding discussion and will not be reiterated).

Admittedly, the proposals differed greatly regarding exactly which

trains would be permitted the extended movements and the process by

which such movements would be sanctified by FRA. However, all of the

proposals stressed the necessity that any train permitted to travel

longer distances between brake inspections would be required to be

thoroughly inspected by highly qualified inspectors at its point of

origin or early in the life of the train. Consequently, it is clear

from the submitted proposals and the presentations made at the time

they were presented that virtually every member of the industry

acknowledges that the key to permitting trains to move extended

distances lies in the quality of the inspection the train receives at

or near the beginning of its journey.

FRA Conclusions. FRA continues to believe that if a train is

properly and thoroughly inspected, with as many defective conditions

being eliminated as possible, that the train is capable of traveling

well over 1,000 miles between brake inspections. By this, FRA contends

that not only must the brake system be in quality condition but that

the mechanical components of the equipment must be in equally prime

condition. As the distance a train is allowed to travel increases, the

mechanical condition of the equipment is a key factor in ensuring the

proper and safe operation of the train brake system throughout the

entire trip. FRA also continues to believe that the best place to

ensure the proper conduct of these inspections and to ensure that the

train's brake system and mechanical components are in the best

condition possible is at a train's point of origin (initial terminal).

In 1994, FRA proposed a set of requirements that must be met by a

railroad in order to move a train up to 1,500 miles without performing

additional brake inspections. The requirements included such things as

low defect ratios, maintenance programs, and the performance of quality

brake and mechanical inspections at a train's point of origin. FRA

agrees with several commenters that some of the proposed requirements

were overly burdensome and were partially predicated on potentially

subjective standards. However, FRA continues to believe that many of

the inspection requirements and movement restrictions proposed in 1994

are valid conditions that must be met in order to permit the extended

movement of trains. These include: the performance of a quality in-

depth brake inspection by a highly qualified inspector; the performance

of a quality mechanical inspection by a person qualified under 49 CFR

215.11; and a restriction on the number of set-outs and pick-ups

occurring en route. FRA also believes these trains must be closely

monitored to ensure that both the brake system and mechanical

components remain safely intact throughout the train's journey.

FRA proposes to permit certain designated trains to move up to

1,500 miles between brake and mechanical inspections provided the

railroad meets various inspection and monitoring requirements, which

FRA believes will ensure the safe and proper operation of these trains.

As no trains are currently permitted to travel in excess of 1,000 miles

between inspections, FRA is not willing to propose more than 1,500

miles between such inspections until appropriate data is developed

which establishes that equipment moved under the proposed criteria

remains in proper condition throughout the train's trip. FRA believes

that the proposed provision requiring the performance of an inbound

inspection at destination or at 1,500 miles and the requirement that

carriers maintain records of all defective

[[Page 48305]]

conditions discovered on these trains create the bases for developing

such data. In order to ensure the accuracy of the data as well as

ensure the proper and safe operation of these trains, FRA also proposes

that these trains have 100 percent operative brakes and contain no cars

with mechanical defects at their points of origin and at the time of

departure from the 1,500 point, if moving an additional 1,500 miles

from that location between brake inspections. FRA further proposes that

these trains not conduct any pick-ups or set-outs en route, except for

the removal of defective equipment, in order to minimize the

disruptions made to the integrity of the train's brake system and

reduce mechanical damage that may occur during switching operations. In

addition, there is currently no reliable tracking system available to

FRA to ensure that cars added to the train en route have been inspected

in accordance with the proposed requirements.

As noted earlier in the discussion, FRA believes that in order for

a train to be permitted to travel 1,500 miles between inspections, the

train must receive inspections that ensure the optimum condition of

both the brake system and the mechanical components at the location

where the train originates. In order to ensure that these quality

inspections are being performed, FRA proposes to require that they be

performed by highly qualified and experienced inspectors. As FRA

intends the Class I brake test that is required to be performed on

these trains at their point of origin to be as in-depth and

comprehensive as possible, FRA believes that these inspections must be

performed by individuals possessing the knowledge to not only identify

and detect a defective condition in all of the brake equipment required

to be inspected, but also possess the knowledge to recognize the

interrelational workings of the equipment and the ability to trouble-

shoot and repair the equipment. Therefore, FRA proposes the term

``qualified mechanical inspector'' to identify and describe those

individuals it believes possess the necessary knowledge and experience

to perform the proposed Class I brake tests on these trains.

A ``qualified mechanical inspector'' is a person with training or

instruction in the troubleshooting, inspection, testing, maintenance,

or repair of the specific train brake systems the person is assigned

responsibility and who's primary responsibilities include work

generally consistent with those functions. (See Sec. 232.5 of the

section-by-section for a more detailed discussion of ``qualified

mechanical inspector.'') FRA further believes these same highly

qualified inspectors must be the individuals performing the proposed

inbound inspection on these extended haul trains in order to ensure

that all defective conditions are identified at the train's destination

or 1,500 mile location. Similarly, FRA proposes that all of the

mechanical inspections required to be performed on these trains be

conducted by inspectors designated pursuant to 49 CFR 215.11, rather

than train crew members, in order to ensure that all mechanical

components are in proper condition prior to the train's departure.

C. Air Flow Method

The air flow method (AFM) of train air brake testing monitors the

rate of air flow through the automatic brake valve to the brake pipe by

the means of a brake pipe flow indicator. The AFM of brake testing is a

more comprehensive test than the present leakage test. The leakage

method only measures the amount of leakage from the brake and branch

pipes, whereas the AFM tests the entire brake system including the

reservoirs and control valves. In addition, the leakage method does not

test the capability of the pressure-maintaining feature of the 26L

brake equipment. The AFM, on the other hand, tests the brake system

just as it is operated, with the pressure-maintaining feature cut in.

The AFM of qualifying train air brake systems has been allowed in

Canada as an alternative to the leakage test since 1984. In addition,

several railroads in the United States have been using the AFM since

1989 when the AAR's petition for a waiver of compliance was granted

allowing the AFM as an alternative to the leakage test. In order to

determine if the AFM of train air brake testing should be included as

an alternative to the leakage test, FRA requested comments from

interested parties in the ANPRM regarding the operating history of the

AFM. See 57 FR 62552.

The AAR and several railroads commented on the operating experience

of using the AFM. These commenters reported that the AFM is an

effective and reliable method of qualifying train brakes and that the

greatest benefit of the method is the information it provides to the

train crew. CP Rail reported that testing on the AFM started in Canada

in 1975 and became an alternate method of qualifying train brakes in

1984. CP Rail as well as several other railroads stated that they have

experienced no problems with the method. Conrail commented that,

although it initially experienced problems with sticking pointers,

defective check valves, and protruding screws on the air flow meters,

these problems have been eliminated. Conrail also stated that use of

the AFM has indicated a slight reduction in undesired emergencies.

Several railroads commented that the AFM provides information to the

train crew regarding the brake pipe that is not provided by the leakage

test. Two railroads responded that in all the years they have used the

AFM they have experienced no instance where a train had to stop because

the air flow could not be maintained. The AAR maintained that the

failure rate of the air flow indicators is less than 1 percent. In

fact, Conrail stated that it performed 9,000 air flow indicator

calibrations in 1992 and found only 90 defective indicators. Several

railroads commented that they currently calibrate the air flow meters

on a 60-day to 92-day basis and have no problem with current

calibration procedures. Two railroads noted that they initially had

problems calibrating the devices due to orifice sizes but have since

cured this problem. One railroad mentioned that it had problems

calibrating the devices in extremely cold weather until it applied

condition eight of FRA's waiver to the calibration of the gauge on the

locomotive as well as the test orifices. (``The air flow indicator

calibration test orifice shall be calibrated at temperatures of not

less than 20 degrees Fahrenheit.'')

Railroad representatives unanimously opposed any requirement that

would make using the AFM mandatory or the sole method of qualifying

brake systems. All railroad commenters supported the adoption of the

AFM as an alternative to the leakage test for qualifying braking

systems. Most of these commenters suggested that the use of either

method is an economical or operational decision that should be made by

each individual railroad. One railroad recommended that trains

qualified under the AFM should be requalified with the leakage test if

the air flow indicator fails en route. The cost figures presented by

the AAR and several railroads for equipping locomotives with air flow

meters range from $350 to $1,450 per unit.

Both the Railway Labor Executives' Association (RLEA) and the BRC

as well as several individual carmen opposed the adoption of the AFM as

an alternative method of qualifying brake systems. The parties felt

that the leakage test is the only reliable method for determining the

integrity of the air brake system and for identifying leaks. These

commenters stated that the AFM only determines whether the brake pipe

is

[[Page 48306]]

compensating for existing leaks and does not identify the severity of

the leak, and thus, trains would be allowed to operate with leaks over

5-psi, which is dangerous especially in cold weather and could result

in an emergency application or derailment.

Westinghouse Air Brake Company (WABCO) responded stating that both

the leakage test and the AFM combined with the 15-psi gradient

restriction are effective and acceptable methods of qualifying braking

systems. WABCO commented that the 60-CFM limit required by the AFM and

the 5-psi limit required by the leakage test are both conservative

figures in view of today's braking system capabilities, and that the 5-

psi limit was derived long before today's pressure maintaining feature

which is an integral part of all locomotive brake valves. WABCO stated

that front-to-rear gradient is the most important element of braking

performance and that long trains with a 15-psi gradient can be operated

with no problem. This commenter also mentioned that the 60-CFM limit of

the AFM would allow higher leakage on shorter trains but nothing that

would cause a problem in brake operations if the 15-psi gradient is

maintained.

Based on these comments, FRA proposed the air flow method as an

alternative method for qualifying train brake systems in the 1994 NPRM.

See 59 FR 47734. In response to this proposal, labor representatives

continued to express opposition to the use of the air flow method as an

alternative to the leakage test contending that it would not accurately

measure the overall leakage in a train's air brake system. At a

minimum, these commenters recommended that short freight trains not be

allowed to use the air flow method as it may allow their operation with

excessive leakage; however, these commenters did not provide an

indication on what the size limitation should be. These commenters also

urged FRA to adopt a 92-day calibration period as that is current

practice. The proposals submitted by railroad management in the RSAC

Working Group meetings included the option of using the air flow method

when performing brake inspections. The Working Group did not address

this portion of the carrier's proposal since the discussions were

focused on more general requirements related to the inspection and

testing of brake equipment.

FRA Conclusions. FRA believes that if a train contains a locomotive

equipped with 26L freight locomotive brake equipment and the train is

equipped with an EOT device, that train should be allowed to be

qualified using the AFM. The AFM would be an alternative to the leakage

test for qualifying properly equipped freight train brake systems. FRA

recognizes the concerns of several labor organization commenters

opposing the adoption of the AFM; however, FRA believes these

commenters' apprehension is based on their unfamiliarity with the

method. As FRA pointed out in the ANPRM and the 1994 NPRM, and as

several commenters confirmed, the AFM is a much more comprehensive test

than the leakage test. See 57 FR 62551, 59 FR 47682-47683. The AFM

tests the entire brake system just as it is used, with the pressure-

maintaining feature cut in. The method has been allowed in Canada since

1984 without any problems. Based on the comments from several railroads

and information obtained during the method's testing from 1981 to 1988,

FRA feels the AFM is an effective and reliable alternative method of

qualifying train brakes. Although FRA is not mandating the use of the

AFM, FRA does encourage railroads to use the method on all trains, not

necessarily for qualifying the brake systems, but as a means of

providing additional information regarding the brake system to the

train crew. FRA further believes that calibration of the air flow

indicators should be performed at least every 92 days, based on the

fact that it is the calibration period required by the current FRA

waiver granted to the AAR and because most railroads stated that they

already calibrate the air flow indicators every 60 to 92 days and gave

no indication that the period should be altered. See 54 FR 5195 (Feb.

1, 1989).

FRA also shares the same concerns as some commenters in allowing

the use of the AFM as a means of qualifying braking systems on

relatively short freight trains. FRA tends to agree that due to the

shorter length of these types of trains the use of the AFM to qualify

their brake systems might allow these trains to operate with excessive

brake pipe leakage. However, FRA also tends to agree that if the

proposed 15-psi gradient is maintained then the leakage on these

shorter freight trains should not cause a problem in brake operations.

Furthermore, FRA is not currently able to adequately delineate those

freight trains, if any, that should not be afforded the option of using

the AFM. Consequently, FRA seeks comment from interested parties on the

following:

1. What is the current industry practice and experience regarding

the use of the AFM on relatively short freight trains?

2. Is there an identifiable train length at which the use of the

AFM creates the potential for a train to operate with excessive

leakage?

D. Brake Pipe Reduction

Present regulations require brake-pipe reductions of either 15

pounds, 20 pounds, or full service depending on which of the required

train air brake test is being performed. See 49 CFR 232.12, 232.13. In

the ANPRM, FRA sought comments from interested parties to determine if

it is feasible and beneficial for FRA to establish one standard brake-

pipe reduction for all required train air brake tests. See 57 FR 62556.

The AAR and several railroads recommended that some type of

performance standard be established so that each railroad could

determine the amount of reduction that best suits its operation. The

AAR also suggested that if the reduction amounts were left in the

discretion of the individual railroads, it would be receptive to a

requirement that the railroad indicate what reduction rates it would

use at different locations. Several railroads commented that one

standard reduction should be required for all tests and inspections and

that the standard should not require an increase to a full service

reduction because such a practice could cause undesired releases. These

commenters also noted that one standardized reduction for all tests

would simplify air brake tests and make it easier for the railroads to

train and instruct their employees. Most of the commenting railroads

suggested a 20-psi reduction if a specific amount were established.

Representatives of several labor organizations recommended that one

standard reduction be established by FRA rather than allowing each

individual railroad to determine their own reductions. This

recommendation was based on the commenters' concern that varying

reduction standards among the railroads would cause confusion for train

crews since many railroads swap trains and operate crews over each

other's lines. These commenters also felt that one standardized

reduction would make training easier.

In the 1994 NPRM, FRA proposed a standardized brake pipe reduction

of 20-psi for all required brake inspections and tests. See 59 FR

47688. The only response FRA received to this proposal was from the BRC

which contended that a 20-psi reduction was not good for determining

brake pipe leakage since the higher the pressure in the brake pipe, the

greater the leakage. This commenter recommended that FRA retain a 15-

psi reduction requirement for the performance of the leakage test.

FRA Conclusions. FRA intends to again propose a standardized brake

pipe

[[Page 48307]]

reduction of 20-psi for all brake inspections except in regard to the

brake inspection performed on a transfer train. Due to the lower air

pressure at which the transfer train brake test is performed, FRA

believes that requiring only a 15-psi reduction during this inspection

is the most effective for ensuring the proper operation of the brake

system on these train. FRA recognizes BRC's concerns regarding impact

of an increased air pressure reduction on the performance of the

leakage portion of a brake test; however, FRA believes that the

concerns are addressed by FRA's proposal to increase the minimum

pressure at the rear of the train from 60-psi to 75-psi. Furthermore,

FRA agrees with many of the commenters that a standardized brake pipe

reduction of 20-psi is sufficient for the performance of all other

required brake inspections and tests. FRA believes that the adoption of

one standard reduction will simplify both the performance of the

required inspections and the training of employees charged with

performing these inspections. Under the proposal, FRA would no longer

require full service reductions for any of required inspections in

order to avoid the possibility of undesired releases.

FRA believes that the suggestion of several commenters to allow

each railroad to determine its own brake pipe reduction is not viable.

It is not uncommon to find train crews operating in several different

locations or to find the train crew of one railroad operating the

equipment belonging to another railroad or operating over the lines of

another railroad. Thus, if various reductions were established by

different railroads or by one railroad in different locations, it would

cause further confusion in both the performance of the inspections and

the training of personnel.

E. Charging of Air Brake System

Present regulations for air brake testing basically require that

cars that have previously been tested in accordance with the

regulations either ``be kept charged until road motive power is

attached'' or be retested. 49 CFR 232.12(i). Based on longstanding

administrative interpretation and practice, FRA presumes that a brake

system is no longer adequately charged if disconnected from the

charging device (supply of pressurized air) for more than two hours

before coupling of locomotives; otherwise, retesting is required. In

the ANPRM, FRA requested comments from interested parties regarding the

viability of this interpretation and sought information for developing

alternative procedures that would not jeopardize safety. See 57 FR

62556.

The AAR and several railroads stated that there is no reason to

assume that once a train is charged and tested and then left standing

without being provided with a source of compressed air that the brake

system would become defective. These parties suggested that leakage on

standing trains has been greatly reduced through the use of welded

brake piping and fittings and ferrule-clamped air hoses. These

commenters felt that FRA's interpretation of allowing trains to sit

without air for only two hours is from an era when this new equipment

was not used. They also stated that FRA's current interpretation costs

the industry money, fuel, and time and creates pollution because trains

must either be reinspected or left with a locomotive attached and

idling in order to avoid performing a full initial terminal test.

Several railroads suggested that trains could be off air indefinitely

if the consist is not altered, or at least as long as 24 hours, and

remain in the same condition. Several commenters recommended that if a

set of cars is off air for an extended period, all that should be

required is a set-and-release test to assure the continuity of the

brake pipe. CP Rail Services mentioned that there is no such two-hour

rule in Canada and stated that in Canada if cars are off air for any

length of time a set-and-release continuity test is required. Every

commenting railroad felt the current two-hour interpretation is onerous

and unrealistic.

The BLE, BRC, and several individual carmen felt that the current

interpretation is reasonable. Most of these commenters expressed

concern for the integrity of the brake system if a consist were left

standing for longer than two hours. These concerns were aimed at the

effect that climate might have on the equipment and the increased

possibility of vandalism to the equipment if consists sat without air

for longer periods. One conductor recommended returning to a four-hour

limit as a minimum.

FRA Conclusions. In the 1994 NPRM, FRA proposed to permit trains to

be removed from a continuous source of compressed air for up to four

hours without requiring the re-performance of a comprehensive brake

inspection. FRA received very few comments that directly addressed the

safety implications of this proposal, thus, FRA intends to propose the

four hour time limitation in this NPRM. FRA agrees that our

longstanding administrative interpretation, that requires the retesting

of cars disconnected from a charging device for longer than two hours,

was established prior to the development of new equipment that has

greatly reduced leakage problems, such as welded brake piping and

fittings and ferrule-clamped air hoses. However, contrary to several

railroads' assertions, FRA does not believe that cars should be allowed

to be off air for extended periods of time without being retested. FRA

believes that the longer cars sit without air attached the greater the

chances are that the integrity of the brake system will be compromised.

The longer cars sit the more susceptible they may be to weather

conditions or even vandalism, as some commenters suggested.

Consequently, based on today's equipment, operating practices, and

overriding safety concerns, FRA feels that cars should not be

disconnected from a continuous supply of pressurized air for longer

than four hours without being retested. FRA also believes that the

source of compressed air must be sufficient to maintain the integrity

of the brake system. Consequently, FRA proposes to require that the

source of compressed air be maintained at a minimum level of 60 psi.

III. Movement of Equipment With Defective Brakes.

The current regulations do not contain requirements pertaining to

the movement of equipment with defective power brakes. The movement of

equipment with these types of defects is currently controlled by a

specific statutory provision originally enacted in 1910, which states:

(a) GENERAL.-- A vehicle that is equipped in compliance with

this chapter whose equipment becomes defective or insecure

nevertheless may be moved when necessary to make repairs, without a

penalty being imposed under section 21302 of this title, from the

place at which the defect or insecurity was first discovered to the

nearest available place at which the repairs can be made--

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

discovered; or

(2) at the option of a connecting railroad carrier, on the

railroad line of the connecting carrier, if not further than the

place of repair described in clause (1) of this subsection.

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

Although there is no limit contained in 49 U.S.C. 20303 as to the

number of cars with defective equipment that may be hauled in a train,

FRA has a longstanding interpretation which requires that, at a

minimum, 85 percent of the cars in a train have operative brakes. FRA

bases this interpretation on another statutory requirement which

permits a railroad to use a train only if ``at least 50 percent of the

vehicles in

[[Page 48308]]

the train are equipped with power or train brakes and the engineer is

using the power or train brakes on those vehicles and on all other

vehicles equipped with them that are associated with those vehicles in

a train.'' 49 U.S.C. 20302(a)(5)(B). As originally enacted in 1903,

section 20302 also granted the Interstate Commerce Commission (ICC) the

authority to increase this percentage, and in 1910 the ICC issued an

order increasing the minimum percentage to 85 percent. See 49 CFR

232.1, which codified the ICC order.

As virtually all freight cars are presently equipped with power

brakes and are operated on an associated trainline, the statutory

requirement is in essence a requirement that 100 percent of the cars in

a train have operative power brakes, unless being hauled for repairs

pursuant to 49 U.S.C. 20303. Consequently, FRA currently requires that

equipment with defective or inoperative air brakes make up no more than

15 percent of the train and that if it is necessary to move the

equipment from where the railroad first discovered it to be defective,

the defective equipment be moved no further than the nearest place on

the railroad's line where the necessary repairs can be made or, at the

option of the receiving carrier, to a repair location that is no

further than the repair location on the delivering line.

In addition to the general requirements relating to the movement of

equipment with defective safety appliances, FRA requires 100 percent

operative brakes on trains departing initial terminal locations. The

100 percent at initial terminal requirement has been a standard by

which the railroad industry has operated for decades and one which FRA

has endorsed since its inception. The requirement is founded on

Congress' incorporation of the AAR's rules, standards, and instructions

as of April 11, 1958, regarding the installation, inspection,

maintenance, and repair of train brakes. In 1958, Congress amended

Sec. 9 of the Safety Appliance Acts by incorporating the inspection

requirements of the AAR into the statute and permitting their change

only for the purpose of achieving safety.4 Based on a review

of the legislative history surrounding that amendment, FRA believes it

is clear that Congress interpreted the AAR standards as requiring 100

percent operative on all trains prior to departure from an initial

terminal. As the current regulations regarding the performance of an

initial terminal inspection contained at 49 CFR Sec. 232.12 (c)-(j)

were basically an adoption of the AAR inspection and testing standards

as they existed in 1958, FRA believes that the current regulations are

intended and do require 100 percent operative brakes at initial

terminals.

---------------------------------------------------------------------------

\4\ In 1994, Congress recodified the federal railroad safety

laws and 45 U.S.C. Sec. 9 of the Safety Appliance Acts is currently

codified at 49 U.S.C. Secs. 20301 and 20302. The reference to the

AAR rules, standards, and instructions was removed during the

recodification as being obsolete. See Pub. L. 103-272 (July 5,

1994).

---------------------------------------------------------------------------

In the 1994 NPRM, FRA proposed conditions for the movement of

equipment with defective brakes without civil liability which

incorporated the stringent conditions contained in the Safety Appliance

Acts, presently codified at 49 U.S.C. 20302, 20303, 21302, and 21304.

See 59 FR 47728. FRA proposed the codification of these requirements in

order to clarify the duties of a railroad and to ensure the safe

movement of this equipment. In 1994, FRA further proposed that all cars

and locomotives found with defective brake equipment be required to be

tagged as bad ordered and determined safe to move by a qualified person

in order to be deemed as being hauled for repairs. FRA also attempted

to delineate when a location would be considered a repair location by

interpreting that locations where repair trucks or vehicles had visited

within the last 365 days would be considered repair locations for

purposes of the proposal. See 59 FR 47697.

Several railroad representatives commented that FRA's

interpretation of a repair location with regard to mobile repair trucks

was inadequate, overly broad, and failed to consider many of the

factors necessary for determining whether a location is a place where

repairs can be effectuated. Labor representatives not only recommended

that defective equipment not be allowed to move past a yard, siding, or

other location accessible to a mobile repair truck, but also suggested

a 125 mile limit on the movement of such equipment. In its alternative

proposal to the 1994 NPRM, the AAR proposed that all trains could

depart initial terminals with only 95 percent operative brakes,

regardless of whether repairs could be effectuated at the location.

This proposal was premised on the contention that there is not a safety

risk posed by a train operating with 95 percent operative brakes and

that FRA acknowledges this because it currently permits trains to

operate with only 85 percent operative brakes. The AAR's alternative

proposal also would have permitted some trains to operate with less

than 85 percent operative brakes if appropriate operational measures

were taken to move the train safely.

The proposals submitted by both rail labor and rail management

representatives as part of the RSAC Working Group deliberations

contained provisions for permitting the movement of equipment with

defective brakes to be hauled from or past locations where the

necessary repairs could be effectuated. Similar to the AAR's

alternative proposal, the carrier's proposal would have permitted all

trains to operate with only 95 percent operative brakes but would have

capped the percentage at 90 percent rather the current 85 percent. As

noted previously, the railroad's proposal was part of a package that

included 500-mile inspections and flexibility in the movement of

defective equipment was considered essential by the railroads in order

to accept the reduced inspection intervals. Although labor's proposal

permitted some trains to operate out of initial terminals and to

destination with only 95 percent operative brakes, the proposal limited

the flexibility to trains that were thoroughly inspected by carmen.

Furthermore, labor's proposal was also presented as a package which

included many other requirements intended to ensure the safety of

permitting some trains to operate with a few defective cars entrained.

FRA Conclusions. It is clear from the preceding discussion that

many of the proposals received by FRA since the issuance of the 1994

NPRM are in direct conflict with various statutory requirements. As the

RSAC Working Group was unable to reach a consensus on the inspection,

testing, and maintenance requirements for freight train brake systems,

FRA is not willing or able to propose provisions regarding the movement

of equipment with defective brakes that would be contrary to existing

statutory mandates. Therefore, FRA intends to propose provisions

related to the movement of defective equipment which are very similar

to the requirements proposed in the 1994 NPRM. See 59 FR 47728.

However, the current proposal clarifies the tagging requirements,

contains provisions regarding the placement of defective equipment, and

provides a consistent method for calculating the percentage of

operative brakes on a train. Consequently, in addition to being

consistent with the statutory requirements, FRA believes that the

proposed requirements will ensure the safe and proper movement of

defective equipment and will clarify the duties imposed on a railroad

when moving such equipment.

FRA proposes that all cars or locomotives found with defective or

[[Page 48309]]

inoperative braking equipment be tagged as bad ordered with a

designation of the location where the necessary repairs can and will be

effectuated. FRA has again attempted to expressly clarify the

requirement that equipment with defective brakes shall not depart from

or be moved beyond a location where the necessary repairs to the

equipment can be performed. Therefore, if a car or locomotive is found

with defective brakes during any of the proposed brake inspections or

while the piece of equipment is en route and the location where the

defective equipment is discovered is a place where repairs of the type

needed can be performed, that car or locomotive shall not be moved from

that location until the necessary repairs are effectuated. However, if

repairs to the defective condition cannot be performed at the location

where the defect is discovered, or should have been discovered, this

proposal makes clear that the railroad is permitted to move the

equipment with the defective condition only to the nearest location

where the necessary repairs can be performed.

What constitutes the nearest location where the necessary repairs

can be performed is an issue FRA has grappled with for decades and has

become exceedingly more difficult with the growing use of mobile repair

trucks. In the preamble to the 1994 NPRM, FRA attempted to clarify the

issue by stating that any location visited in the last 365 days by a

repair truck or vehicle, capable of making repairs of the type

required, would be considered the nearest point where repairs could be

effectuated. See 59 FR 47697. After consideration of all of the

comments received and based upon FRA's enforcement experience, FRA

believes that this statement does not sufficiently address the issue

and may lead to undesired consequences. FRA believes that mobile repair

trucks are a valuable asset, not only economically for the railroads

but also from a safety perspective, as they provide the ability to

conduct repairs at outlying locations and thus, reduce the movement of

defective equipment. It became apparent to FRA that the statement made

in the 1994 NPRM regarding mobile repair trucks, would lead to

railroads contending that various repair trucks lacked the capability

of making brake repairs because the railroad voluntarily removed spare

brake equipment and air compressors from the trucks, thus,

circumventing the trucks' usefulness. In addition, the statement would

tend to create a potential repair location whenever a truck was used to

effectuate a repair at a location where it has never conducted repairs

in the past, thereby, decreasing a railroad's incentive for performing

repairs on a particularly hazardous piece of equipment if it is not a

certain location.

Rather than attempt to develop a standard applicable to all

situations, which FRA does not believe can be accomplished, FRA intends

to approach the issue of what constitutes the nearest repair location

based on a case-by-case analysis of each situation. FRA believes that

its field inspectors are in the best position to determine whether a

railroad exercised good faith in determining when and where to move a

piece of defective equipment. In making these determinations both the

railroad as well as FRA's inspectors must conduct a multi-factor

analysis based on the facts of each case.

The following discussion is based upon the voluminous case law

which exists that establishes the guiding principles for determining

whether a location constitutes the nearest location where the necessary

repairs can be made as well as previous guidance provided by FRA

regarding identification of repair locations. In determining whether a

particular location is a location where necessary repairs can be made

or whether a location is the nearest repair location, the accessibility

of the location and the ability to safely make the repairs at that

location are the two overriding factors that must be considered in any

analysis. These two factors have a multitude of sub-factors which must

be considered, such as: the type of repair required; the safety of

employees responsible for conducting the repairs; the safety of

employees responsible for getting the equipment to or from a particular

location; the switching operations necessary to effectuate the move;

the railroad's recent history and current practice of making repairs

(brake and non-brake) at a particular location; and relevant weather

conditions. Although the distance to a repair location is a key factor,

distance alone is not the determining factor of whether a particular

location is the nearest location for purposes of effectuating repairs

and must be considered in conjunction with the factors noted above.

Existing case law makes clear that neither the congestion of work at a

particular location or convenience to the railroad are to be considered

when conducting this analysis.

FRA will continue to require 100 percent operative brakes on trains

at their point of origin (initial terminal). As noted above, this has

been a requirement in the railroad industry for decades and FRA

believes it is not only wise from a safety standpoint, as it ensures

the proper operation of a train's brake system at least once during its

life, but it sets the proper tone for what FRA expects to be

accomplished at these locations. FRA believes that requiring 100

percent operative brakes on all trains at their inception provides the

railroads with a margin for failure of some brakes while the train is

in transit (up to 15 percent) and tends to ensure that defective

equipment is being repaired in a timely fashion. In addition, FRA

believes that the 100 percent requirement is consistent not only with

Congress' understanding of the AAR inspection standards that were

adopted in 1958, but also with the intent of FRA, rail management, and

rail labor as to what was to occur at initial terminals when the

inspection interval was increased from 500 miles to 1,000 miles in

1982. At that time, carrier representatives committed to the

performance of quality initial terminal inspections in exchange for an

extension in the inspection interval, for which FRA intends to hold

them accountable. In addition, the 100 percent requirement is

consistent with the statutory requirements regarding the movement of

defective equipment because a majority of the locations where trains

are initiated have the capability of conducting virtually any brake

system repair, and thus, the defective equipment could not be moved

from those locations anyway.

FRA recognizes that the 100 percent requirement at points of origin

tends to be somewhat burdensome for some railroads at certain

locations. However, FRA has made clear in its technical bulletins that

railroads are free to petition for a waiver of this requirement upon

showing that it is not capable of making repairs at these locations and

that alternative means are provided to ensure a similar level of safety

at those locations. To date, no railroad has filed such a petition.

Therefore, it appears that there are very few locations where the

requirement is a burden and railroads are either capable of repairing

the cars at those locations or have devised alternative means for

moving the cars from those locations.

The latter portion of the preceding scenario is somewhat troubling

to FRA. Currently, railroads are required to have 100 percent operative

brakes at initial terminals, however, railroads are permitted to pick-

up defective cars at these same locations, if the necessary repairs

cannot be performed, and haul them for repairs. Thus, a situation

exists wherein the railroad is required to set defective cars out of a

train if the train

[[Page 48310]]

is initiated at that location, but are then able to pick-up those same

defective cars in an en route train and haul them to the nearest

location where the necessary repairs can be performed. FRA recognizes

that this creates a somewhat illogical situation; however, FRA believes

that by retaining the 100 percent requirement at these locations the

public is assured that a train's brake system is in near perfect

condition at the beginning of its journey, train crews are more

cognizant of the presence of defective cars in the train when they are

picked-up en route, railroads are more likely to perform repairs at a

location where trains are initiated in order to avoid breaking-up

trains to set-out defective cars once the trains are assembled, and FRA

retains a clear and consistent enforcement standard that can be easily

understood by its inspectors and railroad industry employees.

Although FRA has internally attempted to develop suitable industry-

wide criteria for permitting trains to depart points of origin with a

minimum number of defective brakes if the location is one where the

necessary repairs cannot be made, FRA is not willing to permit such

flexibility without fully considering the safety hazards or potential

abuses which may accompany such an approach. Therefore, FRA seeks

comment from interested parties regarding the potential for permitting

very limited flexibility in moving defective equipment from outlying

points of origin which lack the capability of effectuating brake system

repairs. Of major concern to FRA is the potential for railroads to

designate a large number of locations, where trains are initiated, as

being unable to effectuate brake system repairs by merely closing

existing repair facilities or reducing the capability of mobile repair

vehicles at the locations. Therefore, any potential flexibility must

ensure that only those locations that are truly incapable of performing

brake system repairs, due the physical geography or design of the

location, are afforded the flexibility. In addition, FRA must have the

ability to approve any designation made by a railroad to ensure that

the location is truly one in need of the flexibility and that the

designated repair location is actually the nearest location where

proper repairs could be made. Furthermore, any approach must also

ensure the adequate identification and tracking of the trains and

defective equipment moved from the location.

One potential method of ensuring limited designations is to require

the designation of a location within a very short distance (50-100

miles) of the outlying location where all repairs will be conducted.

Under this approach, FRA would strictly limit the percentage of

inoperative brakes (5 percent or less) that could be moved in a train

from that location and would require a qualified inspector to determine

the safety of such a move. An alternative approach might include the

ability of the railroad to perform something less than a full Class I

brake test at the train's point of origin and permit the movement of

the train a very short distance (50 miles or less) to a designated

location where the train would receive a complete Class I brake test.

FRA believes that permitting some limited flexibility in this area

might have the potential of actually increasing the safety of trains

originating at some outlying locations that lack the ability to

effectuate brake system repairs. It would likely reduce the amount of

switching that occurs at these locations as defective equipment could

remain entrained until it reaches a more conducive location for being

repaired, inspected, or set-out of the train. It might also reduce the

percentage of defective equipment which may move in any single train

from some of these locations where run-through or local trains are used

to move the defective equipment to another location for repair as

railroads will not let the number of cars with defects build-up. In

addition, it would reduce the distance that defective equipment is

hauled before proper repairs are made since any approach would limit

the distance such cars could be hauled before repairs or reinspection

would be required. Furthermore, a more flexible approach might have the

potential for increasing the quality of inspections since the

restrictions for handling a defective piece of equipment would be

somewhat less and trains would have the ability to be moved to a

location where highly experienced inspectors are available.

In light of the preceding discussion, FRA seeks comments from all

interested parties regarding the viability of permitting some

flexibility in the 100 percent requirement for trains initiated at

outlying locations that lack repair capability and seeks

recommendations on potential approaches for permitting such

flexibility. Specifically, FRA seeks comment or information on the

following:

1. How many locations currently exist that are initial terminals

for some trains that lack the capability of effectuating any brake

system repairs? Partial repair ability? If so, what types of repairs

can generally be made?

2. How many trains are currently initiated at locations that lack

the capability to perform brake system repairs?

3. How do railroads currently handle equipment found with defective

brakes at initial terminals that lack the ability to effectuate the

necessary repairs?

4. What operational or recordkeeping requirements should be imposed

on trains if they were permitted to depart a point of origin with a

minimum number of cars with defective brakes entrained?

5. Are any of the potential safety benefits described above valid?

What are the potential safety hazards or concerns in permitting such

flexibility?

IV. Dynamic Brakes

The issue of dynamic brakes, and the extent to which FRA should

impose regulatory requirements governing their use, if at all, is one

which has prompted lengthy and animated debate between all affected

parties since the issuance of the ANPRM in December 1992. Coincident

with the drafting of the ANPRM, the Rail Safety Enforcement and Review

Act amended Section 202 of the Federal Railroad Safety Act of 1970

(recodified at 49 U.S.C. 20141), and mandated, in part, that FRA,

``where applicable, prescribe regulations that establish standards on

dynamic braking equipment.'' This specific mandate is derived largely

from two NTSB recommendations to FRA concerning dynamic brakes

following the Southern Pacific Transportation Company (SP) accident at

San Bernardino, California on May 25, 1989.

In this accident, excessive tonnage and excessive speed cresting a

2.2 percent grade, complicated by the fact that the train crew had been

provided erroneous information regarding available and operative

dynamic brakes, led to a train that was out of control and was

ultimately unable to stop before derailing. While the NTSB determined

the primary cause of the accident to be the excessive weight of the

train as compared to that reported to the train crew, a secondary cause

was determined to be the fact that the engineer had far less operable

dynamic braking available for use than expected. The combination of

these two conditions likely led to flawed decision making by the train

crew in developing train handling strategies for negotiating the grade

safely. In its final report, the Safety Board issued the following

recommendations to the FRA regarding dynamic brakes:

1. Study, in conjunction with the AAR, the feasibility of

developing a positive method to indicate to the operating engineer in

the cab of the controlling locomotive unit the

[[Page 48311]]

condition of the dynamic brakes on all units in the train.

2. Revise regulations to require that if a locomotive unit is

equipped with dynamic brakes that the dynamic brakes function.

To reiterate the general explanation of the principles of dynamic

braking, as provided in both the ANPRM (57 FR 62546) and 1994 NPRM (59

FR 47676), dynamic brakes were developed as a ``free'' by-product of

the diesel-electric drive train. By engaging the dynamic brake, the

normally powered traction motors on each axle are changed to

generators, and the power generated is dissipated through resistance

grids. The effect is similar to that of shifting an automobile to a

lower gear when descending a steep grade. The additional hardware

needed to outfit a locomotive with dynamic brakes includes the grids

and the controls and switches.

The primary selling point of dynamic brakes has been the ability to

reduce freight car brake shoe wear. The dynamic brake is also useful in

controlling train slack in lieu of using the locomotive independent

brake. Furthermore, use of the dynamic brake in controlling train speed

in lieu of power braking, where the train brake is applied with the

locomotive under power, is a major factor in fuel savings. Due to these

benefits, railroads currently emphasize and encourage the use of

dynamic brakes as evidenced through examination of numerous carriers'

operating rules which dictate the use of dynamic braking as the

preferred method of slowing and/or controlling a train, especially in

heavy grade territory. Historically, dynamic brakes have been applied

to locomotives at the individual railroad's option, primarily based on

economic considerations. It is important to note that, at present, the

vast majority of new locomotives procured by the railroads are equipped

with dynamic brakes.

In order to determine the types of requirements or standards that

should be developed regarding the design and use of dynamic brakes, FRA

requested comments from interested parties regarding the reliability,

testing, and cost of dynamic brakes as well as the types of information

that are or could be provided to the engineer regarding the

availability and operation of the devices. See 57 FR 62555. Comments

were received from numerous interested parties, and were discussed at

length in the 1994 NPRM. See 59 FR 47686. Nearly all of these comments

parallel discussions that transpired throughout the RSAC Working Group

deliberations and negotiations, discussed later in this section, and as

such, are not reiterated here in an effort to avoid redundancy. In

summary, while FRA was not persuaded that dynamic brakes warrant

emphasis as the primary safety system, the agency recognized that the

statute communicates a valid safety concern, properly construed. That

is, to the extent significant emphasis is placed on dynamic brakes,

either by the railroads as a legitimate means of limiting fuel

consumption, undesired emergency brake applications, and wear to

freight car components, or by safety critics who do not foresee that

hazard of reliance on such systems, engineers may in fact be encouraged

to make errors in judgment that take them beyond prudent safety

margins. At such a critical point, proper functioning of any secondary

safety system, however subject to failure, is very desirable. Further,

dynamic brakes offer a redundant safety feature should the engineer

make a mistake in judgment leading to excessive speed under the

prevailing conditions of grade, tonnage, and weather.

Although FRA did not propose requiring that locomotives be equipped

with dynamic brakes in the 1994 NPRM, FRA did acknowledge that

Congress, in Sec. 20141, intended for FRA to develop meaningful and

enforceable standards regarding the safe use and operation of dynamic

brakes. Accordingly, and upon considering comments received in response

to the ANPRM, FRA proposed the following general requirements for

inclusion in the 1994 NPRM:

(1) Engineers should be informed on the safe and proper use of

dynamic brakes;

(2) Engineers should be provided with information regarding the

total dynamic brake retarding force available on all outbound trains

equipped with dynamic brakes;

(3) Railroads operating braking systems that include dynamic brakes

should have written operating rules, tailored to the specific equipment

and territory of each railroad, governing the safe handling procedures

for the use of dynamic brakes under all operating conditions, including

procedures covering the loss of dynamic brakes;

(4) Running tests of the dynamic brake should be performed whenever

the motive power or engine crew is changed so that the availability, or

lack of availability, of the device can be rechecked; and

(5) Locomotives built after January 1, 1996, and equipped with

dynamic brakes, should be able to (i) test the electrical integrity of

the dynamic brake at rest, and (ii) display the total train dynamic

brake retarding force, at certain speed increments in the cab of the

controlling locomotive.

Comments received during both the public hearings and in writing,

following issuance of the 1994 NPRM, predominately reiterated comments

provided in response to the ANPRM. Specifically, railroads and

suppliers emphasized their contention that dynamic brakes are not the

primary braking system for a train, but rather are economical devices

utilized to increase the efficiency of their operations. These

commenters clearly stated that the decision to equip and operate

locomotives with dynamic brakes is one dictated by economics, and as

such, should be governed by specific operating rules and not by federal

regulation. A number of railroads noted that the technology has not

been developed to continuously monitor the status of available dynamic

brakes on trailing locomotive units. These commenters further

questioned FRA's inclusion of such a requirement in the NPRM, noting

that dynamic brakes can fail at any time, and tend to fail while in

use, rendering a real-time display of available dynamic braking

capacity somewhat meaningless when relied upon to develop train

handling strategies. Several railroads also noted that running tests as

prescribed in the NPRM are unnecessary, impractical, and may increase

safety risks at some locations.

Railroad labor representatives commented that if locomotives are

equipped with dynamic brakes, then they should be fully operative and

functional at all times and they should be maintained on a regular

basis. Rail labor provided comments in response to the ANPRM stating

that they did not feel that dynamic brakes could be monitored, and even

if they could, monitoring would probably not be that effective since

dynamic brakes tend to fail in use. In contrast, however, rail labor

testified during the public hearings and in written comments to the

1994 NPRM that they fully support the use of whatever technology is

available to continuously monitor the status of available dynamic

braking.

At the initial RSAC Power Brake Working Group meeting in May 1996,

the working group members acknowledged the need for, and established a

separate task force to specifically address the issue of dynamic

brakes. The working group identified four broad areas relating to

dynamic brakes to be further developed by the task force as follows:

(1) Operational requirements; (2) available indicators; (3) en-route

failures; and (4) testing and inspection. The task force

[[Page 48312]]

was comprised of representatives from FRA, labor, management,

suppliers, and NTSB.

The task force initially focused its efforts on identifying

alternative technologies capable of providing a locomotive engineer

with information regarding dynamic brakes on trailing units. Various

methodologies, at differing levels of development and/or testing, were

discussed as potentially viable options to provide such information

including: placement of an accelerometer in the lead locomotive;

incorporation of indicator lights to inform the engineer whether

dynamic brakes set up on trailing units; utilization of intra-train

communication links; and utilization of the ECP train brake system

under development to transmit the desired information. However, these

discussions quickly refocused on the larger and more fundamental

question raised during the 1994 NPRM and subsequent comments; namely,

even assuming that technology is or will be available in the near

future to continuously monitor the status of available dynamic brakes,

is this information somewhat meaningless to the engineer when

formulating braking strategies given the nature of dynamic brake

failures. The task force quickly lost focus and direction while

contemplating this larger, more complex issue, and solicited guidance

from the full Working Group to refine the broad issues established at

the initial meeting of the full Working Group and further define the

specific issues and information to be developed by the task force.

The Working Group developed four specific issues for detailed

review by the task force. First, if a locomotive is equipped with

dynamic brakes, do or must they work. Railroad representatives on the

task force maintained, consistent with previous comments, that an

inoperative dynamic brake is not considered an impairment to train

braking, and that the automatic brake is considered the primary brake

capable of controlling the speed of the train under all conditions.

These representatives noted that an engineer must be prepared to

operate a train with only air brakes at all times since the dynamic

brake may fail at any time without advance signs of deterioration.

These commenters also stressed that it is not correct to speak of

``stopping'' a train through use of the dynamic brake because the

locomotive must be in motion before any retarding force is generated.

Simply restated, these representatives did not feel that dynamic brakes

are safety devices, but rather are economical devices whose operation

should be governed by the railroads' operating procedures and not

through federal regulations.

Rail labor representatives on the task force countered by noting

that many railroads have published operating rules which instruct

engineers to utilize dynamic brakes as an integral part of their train

handling techniques. More importantly, these task force members

referenced an AAR research paper presented at the Air Brake Association

Meeting in September 1991 which provided results from stopping distance

tests performed in grade territory with double-stack equipment with

approximately 101 tons per operating brake. Summarily, this report

concluded that, ``From this it can be seen that trains such as this

double-stack test train cannot be safely controlled on 3% grades with

the service brake alone, and that dynamic brake failure on two or more

units would require a train to be stopped with an emergency application

on the grade.'' Given the current emphasis of many railroads' operating

procedures regarding the utilization of dynamic brakes, labor

representatives strongly recommended that the railroads be required to

repair defective dynamic brakes within a specified interval. These task

force representatives strongly believed that the failure of the current

regulation to mandate the timely repair of locomotive units with

inoperative dynamic brakes has resulted in the railroads being free to

repair these units at their leisure based primarily on economics and

convenience. Labor representatives contended that a requirement to

repair inoperative dynamic brakes concurrent with the 92-day locomotive

inspection interval would impose a minimal logistical burden on the

railroad and would help ensure a locomotive fleet with operating and

effective dynamic brakes.

All members of the task force discussed methods by which to allow a

railroad to declare a locomotive unit ``not equipped'' without

physically removing the hardware necessary for operation of the dynamic

brakes. There was general agreement within the task force that such a

provision was necessary, specifically when considering the needs of

short line railroads. These railroads typically have limited need or

desire to utilize dynamic brakes within their operating environment,

but tend to purchase locomotives from larger Class 1 carriers that are

equipped with dynamic brakes. Although there was general agreement

regarding the necessity for such a provision, the task force members

were unable to reach consensus on the particulars that would ensure

declarations of ``not equipped'' were not made to intentionally

circumvent any prescribed maintenance requirements that might be

imposed. Concerns were also raised regarding the perceived ability of a

railroad under such a provision to declare a locomotive ``not

equipped'' one day and ``equipped'' soon thereafter based primarily on

operational considerations and/or economics.

The second specific issue assigned to the task force by the Working

Group centered on whether the level of dynamic brakes can or should be

continuously monitored and conveyed to the engineer, and how the

locomotive engineer is notified if the dynamic brakes do not work.

Comments received in response to questions posed in the ANPRM,

testimony provided in the public hearings, and discussions in both the

Working Group and the task force deliberations have not identified an

existing, accurate, and cost-effective means by which to provide the

engineer a continuous, real-time status of dynamic braking availability

and capacity. Absent such a real-time status indicator of dynamic

brakes, rail labor representatives on the task force clearly advocated

the need for engineers to be apprised of the status of the dynamic

brakes on each unit in the locomotive consist, either verbally or in

writing, prior to departing each initial terminal location and at each

crew change location.

The task force considered utilizing accelerometers as an interim or

alternative solution to the current lack of technology. Accelerometers

have become very common in the industry in the last several years, and

several demonstrations of an accelerometer's ability to display braking

effort were reviewed by the task force. Using various locomotive

simulators, task force members observed examples of dynamic braking on

both relatively flat and heavy grade conditions which demonstrated how,

in some cases, an accelerometer can provide more information to the

engineer than a display of the amperage from the trailing locomotives.

During the simulation exercise, the amperage reading remained unchanged

on all locomotives in the simulated consist during the slow down, but

the accelerometer provided information as to the actual braking effort

of the dynamic brake through changes in its rate of deceleration value

(expressed in mph/minute) as the dynamic brake slowed the simulated

train through the dynamic brake's effective range. While additional

simulations further demonstrated advantages of using

[[Page 48313]]

accelerometers as opposed to amperage readings, the task force did not

collectively endorse this equipment as a solution to the issue of

dynamic brake monitoring.

In addition to the uncertainty of available technology, the task

force addressed the ancillary issue of ``information overload''

associated with an additional display being shown on the engineer's

console. Task force members cited a parallel example of this phenomenon

related to current radio-controlled distributive power equipment and

its ability to display all conditions such as brake pipe, equalizing

reservoir, amperage, throttle or dynamic brake position, and locomotive

brake cylinder pressure on remote locomotives. Concerns have been

expressed that the redundant information being provided via these

screens is not being utilized by most locomotive engineers, and that

such information simply clutters an already visually challenging

control stand and may contribute to decreased levels of safety by

drawing the engineer's attention away from other necessary duties.

The task force contemplated the feasibility and benefits of

incorporating a ``dynamic brake light'' outside the cab of a locomotive

to provide the engineer with a status display of available dynamic

brakes. A strobe light was recommended in order to offer visibility in

foggy, rainy, and other inclement weather conditions. Upon further

discussion, this option was considered questionable in that it could

prove to be a distraction to the locomotive engineer by directing his/

her attention to the rear when critical braking decisions would require

the attention of the engineer to be in the direction of travel. Several

task force members also noted that the curvature of the track in

certain locations could conceivably obscure visual contact with the

light, while others maintained that a light alone offered little

information about the actual performance of the dynamic brake and could

simply mislead the engineer.

The third specific issue assigned to the task force for resolution

involved the establishment and maintenance of records concerning

dynamic brakes on locomotive units. This issue was not fully developed

by the task force, in that any specific recordkeeping requirements are

somewhat predicated on resolution of the previously discussed issues

regarding whether or not locomotives need to be equipped with operative

dynamic brakes. The task force noted that appropriate records would be

required if specific maintenance intervals were established (i.e. at

the 92-day locomotive inspection as discussed earlier), but no

consensus was reached on this issue.

The last issue provided to the task force focused on en route

failures of the dynamic brakes. Railroad representatives on the task

force again stated that the dynamic brakes are not the primary braking

system for the train, and that they are not used to actually stop the

train. Based on this assertion, these representatives did not believe

that any operating restrictions should be imposed on continued movement

of the train should the dynamic brakes fail on a unit or units en

route. Rail labor representatives on the task force refuted this

position, and maintained that a railroad should implement a number of

safeguards should a dynamic brake become inoperative en route. These

representatives advocated a reduction in train speed if the defective

dynamic brake is on the lead locomotive, and that no train be operated

on certain grades (1 percent suggested) with inoperative dynamic brakes

on the lead locomotive.

A stated objective of any task force is to develop and/or gather

specific information, facts, and data directly relating to the issue;

in this case, dynamic brakes. The task force pursued this by

formulating and distributing a questionnaire to a number of engineers

soliciting their input regarding the use of dynamic brakes, the

importance of a display showing available dynamic braking force, and

other related issues as discussed above. The results of this

questionnaire clearly support the positions stated and advocated by

rail labor representatives throughout this process. Specifically, 86

percent of the 138 respondents replied that operative dynamic brake is

``very'' important to safely control a train in grade territory, 93

percent of the respondents felt it to be ``very'' important that if a

locomotive is equipped with dynamic brakes, they should be required to

be operative, 86 percent of the respondents felt it to be ``very''

important the dynamic brakes should continue to function during

emergency applications, 83 percent of the respondents are instructed to

use dynamic brakes for fuel conservation, and a significant minority

felt that a real-time display of available dynamic braking effort would

``overload'' the information provided on the control stand. This

questionnaire was not conducted scientifically, nor was it intended to

be a statistically valid sampling of dynamic brake issues and

locomotive engineers throughout the country. It did, however, provide

support and confirmation of views that have been presented by rail

labor over the past 5 years regarding the importance of, and reliance

on, dynamic brakes in train handling by locomotive engineers.

As illustrated in the discussions above, deliberations within the

dynamic brake task force largely focused on the fundamental issues

posed as early as 1992 in the ANPRM. The task force was unable to reach

consensus on resolution of these issues, and ceased meeting as the

negotiations within the inspection and testing task force dominated the

RSAC proceeding. Dynamic brake issues were included in the subsequent

negotiations and deliberations of the inspection and testing task

force, but did not play an integral role in shaping the numerous

proposals that were generated for discussion. At the completion of the

Working Group activities, it was apparent that both labor and

management representatives recognized that minimum standards need to be

established for the operation, testing, and maintenance of dynamic

brakes. Labor representatives continued to promote shorter maintenance

and repair intervals, while management representatives were hesitant to

jeopardize locomotive availability due to inoperability of a feature

that they view as one which provides increased operational flexibility

but which is not safety-critical.

FRA Conclusions. A wealth of information has been gathered

regarding the operation, testing, and maintenance of dynamic brakes in

the five years since the publishing of the ANPRM. Based on the

information provided, FRA proposes appropriate standards for dynamic

brakes that are consistent with the statutory mandate, that take into

consideration NTSB recommendations, that potentially promote

progressive improvements in dynamic brake information systems through

the phased introduction of technology, and that avoid excessive

requirements that discourage the use of dynamic brakes. As should be

evident from the preceding discussion, FRA has been confronted with

issues not limited to equipping locomotives with dynamic brakes,

development of standards for dynamic brakes, or implementation of

technologies to advise the engineer on the condition of dynamic brakes.

Rather, given the increased emphasis on dynamic brake usage as

prescribed in operating rules, it is paramount to consider whether the

current emphasis on the use of dynamic brakes to achieve fuel

efficiency and avoid wear on power brake components has resulted in

issuance of train handling instructions that can lure the engineer into

a trap in those situations where dynamic brakes

[[Page 48314]]

must be relied upon to control speed within a zone of safety.

The RSAC Working Group and task force deliberations provided no

rationale to warrant a reconsideration of FRA's stated position that

dynamic brakes do not offer the technical capability to serve as a

primary train braking system since: (i) they provide braking force only

on powered locomotive axles and are incapable of controlling in-train

forces in the same manner as the automatic braking system; (ii) they

are effective only within a narrow speed range and have no capability

to actually stop a train; (iii) they can fail without prior warning;

and (iv) their failure mode is characterized by loss of braking force

(as opposed to the automatic brake, which, properly employed, initiates

an emergency brake application upon loss of system integrity).

Similarly, however, the RSAC working group and task force

deliberations reinforced FRA's belief that dynamic brakes have become,

de facto, a second-order safety system where employed. While from the

point of view of logical priorities, dynamic brakes ``back up'' the

automatic train brake system, in sequence of operational procedures the

priority is reversed. Stated differently, either the proper functioning

of these systems, or the provision of reliable information concerning

degraded functioning of these systems, should prevent locomotive

engineers from operating trains in a manner that might make recovery

through use of the automatic brake impossible. As between these two

alternatives, proper functioning is marginally preferred, since

communication, perception, and comprehension of information is not a

uniformly successful enterprise.

In considering the entirety of the information available, FRA

concludes that it is imperative that the locomotive engineer be

informed in writing of the operational status of the dynamic brakes on

all locomotives in the consist at the initial terminal or point of

origin for a train or at other locations where a locomotive engineer

first takes charge of a train. Therefore, FRA proposes to require that

locomotive engineers be provided this information at these locations.

This proposed provision directly addresses the foremost concern

articulated by the NTSB following the San Bernardino accident. FRA also

proposes to require visible identification of locomotive units with

inoperative dynamic brakes. FRA is in full agreement that when

locomotives are equipped with dynamic brakes, they should be in proper

operating condition and be maintained on a regular basis, to the

maximum extent practical, to enhance train handling. FRA does recognize

that these maintenance requirements may be overly burdensome in some

instances for railroads (primarily short lines) who do not utilize

dynamic brakes in their respective operations, but yet own and operate

locomotives equipped with dynamic brakes. Consequently, FRA further

proposes provisions for deactivating a locomotive's dynamic brakes

without physically removing the components. FRA also specifically

solicits input regarding the placement of a locomotive in a consist

that has been declared ``deactivated'' in accordance with this

proposal. Some existing railroad operating rules dictate that a

locomotive which has been determined to have inoperative dynamic brakes

may be dispatched in a train, but prohibit its placement in the lead

position of the consist. Are there technical reasons to prohibit a

locomotive with inoperative dynamic brakes from functioning as the lead

locomotive, providing the deactivated locomotive still has the

capability to fully control the dynamic braking functions of all other

locomotives in the consist that are so equipped?

In addition to the information and maintenance requirements, FRA

also proposes the development of operating rules and training programs

to ensure the proper and safe use of dynamic brakes. For example, FRA

proposes to require that railroads operating trains with brake systems

that include dynamic brakes develop, implement, and make available to

FRA upon request written operating rules governing safe train handling

procedures using these dynamic brakes under all operating conditions,

which shall be tailored to the specific equipment and territory of the

railroad. More importantly, FRA also proposes to require that a

railroad's operating rules be based on the ability of friction brakes

alone to safely stop the train under all operating conditions.

Furthermore, FRA also proposes to require a railroad operating a train

with a brake system that includes dynamic brakes to develop, implement,

and make available to FRA upon request a plan to ensure that its

locomotive engineers are fully trained in the operating rules

prescribed above and at a minimum includes classroom, hands-on, and

annual refresher training.

FRA views the establishment of these comprehensive operating rules

and training plans as the most effective means by which to minimize the

possibility of future incidents caused by excessive reliance on dynamic

brakes by the train crew as a method of controlling the speed of a

train in its descent through a difficult grade, as was the case in the

San Bernardino incident. FRA views as unfortunate, and potentially

reckless, the increasing number of train handling and power brake

instructions issued by freight railroads that emphasize the use of

dynamic brakes without including prominent warnings that such systems

may not be relied upon to provide the margin of safety necessary to

stop short of obstructions and control points or to avoid overspeed

operation. Such instructions, while not yet affirmatively misleading to

seasoned locomotive engineers, threaten to overcome the good judgement

of safety critics and regulators by leading to excessive reliance upon

these systems. Given the ever-increasing weight and length of freight

trains, and the severe grades that they are often required to negotiate

en route, the need for locomotive engineers who are thoroughly trained

and knowledgeable in all aspects of train handling is paramount for

continued safety in the rail industry.

In both the ANPRM (57 FR 62555) and the 1994 NPRM (59 FR 47687),

FRA requested comments from the industry on possible methods of

providing information regarding the status of dynamic brakes to the

engineer in the cab of the controlling locomotive. The only workable

option presented to FRA in the comments received was the equipping of

locomotives with a dynamic brake display. Although FRA recognizes that

the technology for dynamic brake displays with the ability to provide

the type of information sought by FRA in the 1994 NPRM is not readily

available today, several commenters suggested that it is currently

being developed. Consequently, FRA is not ready or willing to require

the use of such indicators at this time. However, FRA believes that the

benefit of such an indicator would be to alert engineers that they have

diminished or excessive dynamic capabilities, thus permitting the

engineer to control the braking of their train in the safest possible

manner. In order to fully evaluate the viability and potential use of

dynamic brake indicators designed to test the electrical integrity of

the dynamic brakes at rest and to display the available total train

dynamic brake retarding force at each speed in 5-mph increments in the

cab of the controlling locomotive, FRA again seeks comments from all

interested parties regarding the following specific issues:

1. What is the status on the future availability of dynamic brake

indicators

[[Page 48315]]

capable of providing the information discussed above?

2. What are the current cost estimates associated with the

acquisition and installation of such indicators?

3. What quantitative and/or qualitative operational or safety

benefits can be derived from the use of these dynamic brake indicators?

4. What alternative methods are available for providing the same

information that a dynamic brake indicator would provide to a

locomotive engineer?

V. Training and Qualifications of Personnel

Currently, the regulations contain no specific training

requirements or standards for personnel who conduct brake system

inspections. The regulations merely require that a ``qualified person''

perform certain inspections or tasks. See 49 CFR 232.12(a).

Furthermore, the current regulations do not require that railroads

maintain any type of records or information regarding the training or

instruction it provides to its employees to ensure that they are

capable of performing the brake inspections for which they are assigned

responsibility. In several cases, FRA has found that a railroad's list

of ``qualified persons'' is merely a roster of all of its operating and

mechanical forces.

In the 1994 NPRM, FRA proposed a series of broad qualification

standards addressing various type of personnel engaged in the

inspection, testing, and maintenance of brake equipment. See 59 FR

47731-47732. These broad qualifications were separated into distinct

subgroups which identified various types of personnel based on the type

of work those individuals would be required to perform under the

proposal. These included: supervisors; train crew members; mechanical

inspectors; and electronic inspectors. Although not proposed in the

rule text of the 1994 NPRM, the preamble contained various gui

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