Electronically Controlled Pneumatic Brake Systems

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[Docket No. FRA-2006-26175, Notice No. 4]

RIN 2130-AB84

Electronically Controlled Pneumatic Brake Systems

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

FRA is issuing revisions to the regulations governing freight power brakes and equipment by adding a new subpart addressing electronically controlled pneumatic (ECP) brake systems. The revisions are designed to provide for and encourage the safe implementation and use of ECP brake system technologies. These revisions contains specific requirements relating to design, interoperability, training, inspection, testing, handling defective equipment, and periodic maintenance related to ECP brake systems. The final rule also identifies provisions of the existing regulations and statutes where FRA is proposing to provide flexibility to facilitate the voluntary adoption of this advanced brake system technology.

DATES:

This final rule is effective December 15, 2008. Petitions for reconsideration must be received on or before December 15, 2008. Petitions received after that date will be considered to the extent possible without incurring additional expenses or delays. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of December 15, 2008.

ADDRESSES:

Petitions for reconsideration:

Any petitions for reconsideration related to Docket No. FRA-2006-26175, may be submitted by any of the following methods:

•

Web site:

The Federal eRulemaking Portal,

http://www.regulations.gov

. Follow the Web site's online instructions for submitting comments.

•

Fax:

202-493-2251.

•

Mail:

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

•

Hand Delivery:

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

Instructions:

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

http://www.regulations.gov

including any personal information. Please see the Privacy Act heading in the

Supplementary Information

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

Docket:

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

http://www.regulations.gov

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

FOR FURTHER INFORMATION CONTACT:

James Wilson, Office of Safety Assurance and Compliance, Motive Power and Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6259); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6032).

SUPPLEMENTARY INFORMATION:

I. Background

Since the inception of automatic air brakes by George Westinghouse in the 1870s, brake signal propagation has been limited by the nature of air and the speed of sound. Other adjustments have sought to alleviate this deficiency, but have left the basic system unaltered. As early as 1990, the Association of American Railroads (AAR) began investigating more advanced braking concepts for freight railroads, including ECP brake systems, which promise to radically improve brake propagation by using electrical transmissions of the braking signal through the train while still using air pressure in the brake cylinder to apply the force of the brake shoe against the wheel. During the past 15 years, ECP brake technology has progressed rapidly and has been field tested and used on trains operating in revenue service by various railroads.

FRA has been an active and consistent advocate of ECP brake system implementation. In 1997, FRA participated in an AAR initiative to develop ECP brake standards and in 1999, FRA funded, through Transportation Technology Center, Inc., a Failure Modes, Effects, and Criticality Analysis (FMECA) of ECP brake systems based on the AAR standards. FRA also took part in programs to develop and enhance advanced components for ECP brake systems.

To further assess the benefits and costs of ECP brakes for the U.S. rail freight industry, FRA contracted Booz Allen Hamilton (BAH) in 2005 to conduct a study. BAH engaged an expert panel consisting of principle stakeholders in ECP brake technology conversion to participate in the study. The expert panel made various conclusions relating to technological standards, safety, and efficiency. In addition, the final BAH report provided a comprehensive analysis and comparison of ECP and conventional air brake systems. On August 17, 2006, FRA announced in a press release its intention to issue a notice of proposed rulemaking to revise the federal brake safety standards to encourage railroads to invest in and deploy ECP brake technology. In the press release, FRA encouraged railroads to submit ECP brake implementation plans before the proposed rule changes were completed.

In a petition dated November 15, 2006, and filed November 21, 2006, two railroads—the BNSF Railway Company (BNSF) and the Norfolk Southern Corporation (NS)—jointly requested that FRA waive various sections in parts 229 and 232 as it relates to those railroads' operation of ECP brake pilot trains.

See

Docket No. FRA-2006-26435. FRA held a public fact-finding hearing on this matter on January 16, 2007, featuring testimony from representatives of the petitioners, air brake manufacturers, and labor unions and granted a conditional waiver on March 21, 2007.

See id.

On September 4, 2007, FRA published a Notice of Proposed Rulemaking (NPRM) containing proposed revisions to the power brake regulation.

See

72 FR 50820. In the NPRM, FRA proposed revisions to the regulations governing freight power brakes and equipment by adding a new subpart addressing ECP brake systems. The proposed revisions were designed to provide for and encourage the safe implementation and use of ECP brake system technologies. The proposed revisions contained specific requirements relating to design, interoperability, training, inspection, testing, handling defective equipment, and periodic maintenance related to ECP brake systems. The proposed rule also identified provisions of the existing regulations and statutes where FRA believed flexibility to facilitate the introduction of this advanced brake system technology was necessary.

Following publication of the NPRM in the

Federal Register

, FRA held a public

hearing in Washington, DC on October 4, 2007, and a public hearing in conjunction with a public technical roundtable in the Chicago, IL area on October 19, 2007. The purpose of the hearings was to receive oral comments regarding the specific provisions contained in the proposed rule and to receive evidence and to develop findings to determine whether FRA should invoke its discretionary authority under 49 U.S.C. 20306 to provide a limited exemption from § 20303 for freight trains and freight cars operating with ECP brake systems. Section 20303 requires operators to transport rail vehicles with defective or insecure equipment “from the place at which the defect or insecurity was first discovered to the nearest available place at which the repairs can be made” to avoid incurring civil penalties related to such movement.

The hearings were attended by numerous railroads, organizations representing railroads, labor organizations, and brake manufacturers. Although the comment period officially closed November 5, 2007, FRA continued to receive comments on the NPRM into January 2008. FRA received substantial oral and written testimony at the hearings and written comments to the NPRM from the following organizations, railroads, and brake manufacturers, listed in alphabetical order:

• American Association for Justice (AAJ).

• Association of American Railroads (AAR).

• Brotherhood of Locomotive Engineers and Trainmen (BLET).

• Brotherhood Railway Carmen Division, Transportation-Communications International Union (BRC).

• General Electric Transportation and General Rail Services (collectively, GE).

• New York Airbrake (NYAB).

• Norfolk Southern Corporation (NS).

• Transport Workers Union of America, AFL-CIO (TWU).

• Union Pacific Railroad Company (UP).

• United Transportation Union (UTU).

• Wabtec Railway Electronics (Wabtec).

UTU supports and incorporates by reference the comments submitted by BLET, TCU, TWU, and its other labor representatives.

FRA carefully considered all the information, data and proposals submitted in relation to Docket No. FRA-2006-26175 when developing this final rule. In addition to the preceding information, FRA's knowledge and experience with enforcing the existing power brake regulations were also relied upon when developing this final rule. FRA will address and summarize all comments in the section-by-section analysis below and elsewhere as appropriate or necessary.

Based on the oral and written comments submitted at the hearing and in the docket to this proceeding, FRA makes the following findings: (1) Safety is not compromised by allowing a train operating with ECP brakes and having a minimal number of ineffective or inoperative defective brakes to travel to its destination, not to exceed 3,500 miles, without any additional intermediate brake inspections; (2) the safety hazards caused by placing cars equipped with ECP brakes into a train with an incompatible brake system are no different than the hazards caused by placing a car equipped with conventional brakes with ineffective or inoperative brakes into a train operated with conventional brakes; (3) safety is not compromised by allowing a train operated with ECP brakes with at least 85 percent effective and operative brakes to haul a car with defective non-brake safety appliances to the nearest or nearest forward repair location; and (4) requiring strict compliance with the movement for repair provision contained in 49 U.S.C. 20303 would constitute a significant disincentive to the implementation and use of ECP brake technologies. Based on these findings, FRA has elected to utilize its discretionary authority provided under 49 U.S.C. 20306 to provide a limited exemption for freight trains and freight cars operating with ECP brake systems from the requirements contained in 49 U.S.C. 20303.

Subsequent to the close of the comment period in this proceeding, AAR modified two of its existing ECP brake standards, S-4200 and S-4210, and continued to develop standards regarding hardware and software configuration management issues for ECP brake systems. AAR sought comments from its members concerning a proposed standard S-4270 addressing the configuration management issues. As FRA is interested in incorporating by reference the most current standards into the final rule, FRA reopened the comment period on April 18, 2008, for an additional fifteen (15) days for the limited purpose of receiving comments on revised standards S-4200 and S-4210 and newly developed draft S-4270. FRA continues to believe that reopening the comment period was the most efficient method of ensuring that the most current industry standards were included in this final rule.

The NPRM and this subsequent notice indicated that FRA intended to include S-4270 in the final rule if it was finalized by AAR with sufficient time for inclusion and if its final version remained substantially similar to the draft standard reference in the notice reopening the comment periods. Ultimately, AAR adopted S-4270 without any changes.

II. Conventional Brake Operations

While the basic operational concept of the automatic air brake system, originally conceived by George Westinghouse in the 1870s, remains the same, it has seen continuous improvement in practice. An air compressor in the locomotive charges a main reservoir to about 140 pounds per square inch (psi). With controls located in the locomotive, the locomotive engineer uses the main reservoir to charge the brake pipe—a 1

1/4

inch diameter pipe—that runs the length of the train and is connected between cars with hoses. The brake pipe's compressed air—used as the communication medium to signal brake operations and the power source for braking action—then charges each car's two-compartment reservoir to a pressure of 90 psi. Braking occurs through a reduction of air pressure in the brake pipe, which signals the valves on each car to direct compressed air from the reservoir on each car to its respective brake cylinder for an application of brakes. When air pressure is supplied to the brake cylinder—which is connected to a series of rods and levers that apply and release the brakes—the resulting force presses the brake shoes against the wheel, retarding the car's speed.

While brake applications were initially directed by George Westinghouse's triple valve, modern applications use a control valve, which directs air from the brake pipe into the air reservoir when air pressure is rising in the brake pipe in order to charge the auxiliary and emergency reservoir and be ready for a brake application. To perform a brake application, the locomotive automatic brake valve reduces air pressure in the brake pipe by exhausting air, causing the car's control valve to direct air from the auxiliary reservoir into the brake cylinder. The increase in air pressure to the brake cylinder is approximately 2

1/2

times the drop in brake pipe pressure. A 26 psi reduction in brake pipe pressure is equal to a full service brake application on a fully charged brake pipe, and should result in a brake cylinder pressure adequate to achieve a full service braking effort (brake force). While the control valve is directing air

into the brake cylinder, or holding air in the brake cylinder, it is unable to recharge the auxiliary reservoir on each car. The engineer can apply the brakes in increments, of a few psi at a time, go directly to a full service application, or initiate an emergency application of the brakes.

Unlike a brake application, the incremental release of brakes on a typical freight train operating in direct release cannot be accomplished. Brakes can only be fully released, called a direct release, and only with the brakes released can the auxiliary reservoirs then begin to recharge. Brake applications are possible, but are more complicated, from undercharged brake pipe and air reservoirs. Recharging takes more time for a longer train, because the air has to be sent down the length of the train's brake pipe—which can be up to a mile and a half. In addition, on extremely long trains, it is often difficult to fully charge the brake pipe due to small air leaks throughout the brake pipe and cold weather.

Brake pipe pressure can be measured by an end-of-train (EOT) device, which is pneumatically connected to the rear of a train equipped with conventional pneumatic brakes and sends signals (EOT Beacon) via radio indicating the brake pipe pressure to the lead locomotive. Current Federal regulations specify the design and performance standards for both one-way and two-way EOT devices.

See

Part 232, subpart E. Both EOT device designs comprise of a rear unit pneumatically connected to the rear of the train's last car that transmits an EOT Beacon to a an EOT Head End Unit—a device located in the cab of the lead locomotive displaying the brake pipe pressure of the rear car to the locomotive engineer. The two-way EOT device also has the capability to transmit an electronic signal from the locomotive to the rear end unit to initiate an emergency brake application by venting brake pipe pressure to atmosphere at the rear end unit.

An emergency brake application can be initiated in several ways. The locomotive engineer can initiate the application by moving the brake handle to the emergency position, which depletes brake pipe pressure to zero at a faster rate than the service application by exhausting brake pipe air pressure at the locomotive. Emergency brake applications can also be initiated by opening the conductor's valve, located in the cab of the locomotive, or by a break-in-two, where the train separates between cars and the brake pipe hoses separate, thereby venting brake pipe pressure to zero. While performing an emergency brake application from the locomotive, a locomotive engineer can also use the two-way EOT device to initiate an emergency brake application at the rear of the train. This permits the emergency application to be simultaneously initiated from both the front and rear of the trains and ensures that the brakes on the cars at the rear of the train apply in the event a brake pipe blockage occurs.

III. ECP Brake Operations

As early as 1990, AAR began investigating a more advanced braking concept for freight railroads, the ECP brake system. The ECP brake system radically improves the operation of the automatic air brake by using electrical transmissions to signal the application and release of brakes on each car in a train while still using compressed air to supply the air reservoirs on each car, which will be used to pressurize the brake cylinders to apply the force of the brake shoes against the wheels. ECP brakes also greatly simplify the brake system by eliminating multiple pneumatic valves used by conventional brakes and replacing them with printed circuit boards, each with a microprocessor, one electrically activated application valve, and one electrically activated release valve, with feedback on brake cylinder pressure for uniform control.

ECP brake technology requires equipping locomotives and cars with special valves and electronic equipment that are unique to the operation of ECP brakes. While this system still requires a brake pipe to supply compressed air from the locomotive to each car's reservoir in a train, there are currently two known methods to send the electronic signal for ECP brake operations from the locomotive to each car in the train. These methods include using a hard wire electrical cable running the length of the train or a radio-based technology requiring a transmitter and a receiver installed on the cars and locomotives. At this time, it appears that the railroad industry has chosen to use a cable-based system for ECP brake operation.

ECP brake systems still employ the automatic air brake system's basic concept where the locomotive supplies compressed air to each car's reservoir via the conventional brake pipe. Each car's brake valve reacts to a signal to apply the brakes by directing compressed air from the car's reservoir to the brake cylinder or to release the brakes by releasing air from the brake cylinder. The similarities between the conventional pneumatic and ECP brake systems end here. Instead of utilizing reductions and increases of the brake pipe pressure to convey application and release signals to each car in the train, ECP brake technology uses electronic signals, resulting in an almost instantaneous application and release of brakes on each car in the entire train. Since the brake pipe pressure no longer serves as the communication medium in ECP braked trains, the brake pipe is constantly being supplied or charged with compressed air from the locomotive regardless of whether the brakes are applied or released. In addition, ECP brake-equipped trains offer graduated release, where a partial brake release command provides a partial, proportional brake release.

The basic ECP brake system is controlled from the Head End Unit (HEU) and each car is equipped with a Car Control Device (CCD), an electronic control device that replaces the function of the conventional pneumatic control valve. The CCD acknowledges and interprets the electronic signals from the HEU and controls the car's service and emergency braking functions. The CCD controls charging the car's air reservoir and also has diagnostic capabilities to send a warning signal to the locomotive in the event any component fails to appropriately respond to a braking command. Each CCD has a unique electronic address located in the Car ID Module, which is keyed to a car's reporting mark and number.

Each car connects to the locomotive via special connectors and junction boxes. More specifically, an ECP brake-equipped train's train line cable—a two-conductor electric cable (#8 A-WG and a shield)—connects the locomotive and cars and carries train line power to operate all CCDs and the ECP brake system's end-of-train (ECP-EOT) device and communicates network signals via the power voltage. A Power Supply Controller (PSC)—mounted within the locomotive and providing 230 VDC of electricity—interfaces with the train line cable's communication network, provides power to all connected CCDs and ECP-EOT devices, and controls the train line power supply as commanded by the HEU. Under the AAR standards, a single power supply shall be capable of supplying power to an ECP brake-equipped train consisting of at least 160 CCDs and an ECP-EOT device.

Under the existing regulations, the conventional pneumatic brake system's EOT device can lose communication for 16 minutes and 30 seconds before the locomotive engineer is alerted.

See

49 CFR 232.407(g). After the message is displayed, the engineer must restrict the speed of the train to 30 mph or stop the train if a defined heavy grade is involved. Per the regulations, railroads

must calibrate each conventional two-way EOT device every 365 days and incur additional maintenance and cost expenses while replacing its batteries.

By contrast, an ECP-EOT device uniquely monitors both brake pipe pressure and operating voltages and sends an EOT Beacon every second from its rear unit to its HEU on the controlling locomotive. The HEU will initiate a full service brake application should brake pipe pressure fall below 50 psi or initiate an emergency brake application should a communication loss occur for five consecutive seconds or if there is a break in the train line electrical cable. An ECP-EOT device does not require calibration and its battery, only a back-up for the computer, is charged by the train line cable and is much lighter in weight than the conventional EOT device battery. Physically the last network node in the train, the ECP-EOT device also contains an electronic train line cable circuit—a 50 ohm resistor in series with 0.47 micro-farad capacitor—and must be connected to the network and transmit status messages to the HEU before the train line cable can be initially powered.

ECP brake systems have the great advantage of real-time monitoring of the brake system's health. In normal operation, the HEU transmits a message/status down the train line cable to each car. If an individual car's brakes do not respond properly to the HEU's brake command, or if air pressures are not within the specified limits for operation, a message indicating the problem and the applicable car number is sent back to the HEU, which in turn notifies the locomotive engineer of the problem. The ECP brake system can identify various faults, including, but not limited to: low brake pipe pressure; low reservoir pressure; low train line cable voltage; low battery charge; incorrect brake cylinder pressure; and offline or inoperative CCDs.

Emergency or full service brake applications automatically occur when the ECP brake system's software detects certain faults. For instance, if the HEU detects that the percentage of operative brakes falls below 85 percent, a full service brake application will automatically occur. In addition, the brakes will automatically apply when the following occurs: (1) Two CCD's or the ECP-EOT report a “Critical Loss” within 5 seconds; (2) the train line cable indicates low voltage with less than 90 percent operative brakes; (3) the ECP-EOT reports a low battery charge; (4) the train moves during set-up; (5) the train line cable becomes disconnected; or (6) the train exceeds 20 mph in Switch Mode. Under the AAR standards, the ECP brake system shall also have a pneumatic back-up system on each car for an emergency brake application in the event of a vented brake pipe or a train separation. These features preserve and exceed the fail safe features of conventional pneumatic brake systems.

IV. Interoperability

Due to control methodology differences, ECP brake systems are not functionally compatible with conventional pneumatic air brake systems. For instance, while conventional pneumatic air brake systems command a brake application by reducing the air pressure in the brake pipe, ECP brake systems command a brake application through a digital communications link transmitted on the electrical train line cable.

Manufacturers have developed application strategies to address issues relating to car and locomotive fleet interchangeability. In particular, they have proposed three major schemes of ECP brake design: stand-alone systems using only ECP brakes; overlay (dual mode) systems capable of operating in either conventional or ECP brake mode; and emulation systems, also capable of operating in either conventional or ECP brake mode.

Since cars with stand-alone ECP brake systems do not include a fully pneumatic brake control valve, they are incompatible with conventionally braked cars and must be operated in train sets depending solely upon ECP brakes. Cars using stand-alone ECP brake systems cannot intermix in the same train with cars using conventional pneumatic brakes unless (1) the train uses ECP brakes and those cars using conventional pneumatic brakes are transported as cars with inoperative brakes or (2) the train uses conventional pneumatic brakes and the cars using ECP brakes are transported as cars with inoperative brakes. While the stand-alone ECP brake system is the least expensive alternative of the three design types, its incompatibility with conventional pneumatic brake systems requires train segregation, potentially posing significant operational problems until the entire car fleet is converted to ECP brakes.

Overlay configurations—cars equipped with both ECP CCDs and conventional pneumatic control valve portions—allow cars to operate with either ECP or conventional pneumatic brakes. To operate in ECP brake mode, compatible ECP equipment must be installed on the locomotive as well as on the freight car. While an overlay system's dual mode capability provides significant flexibility, railroad operators must purchase, install, and maintain equipment to support both types of brake systems for as long as dual mode capability is required.

Emulation configurations use a CCD capable of operating in either ECP or conventional mode without requiring conventional pneumatic controls. One manufacturer has provided an emulation ECP brake valve that monitors both the digital communications cable and the brake pipe for a brake command. If an electrical signal is present, the ECP brake valve operates in ECP brake mode. If the electrical brake command signal is not present, then the valve will monitor the changes in the brake pipe pressure like a conventional pneumatic control valve and the CCD will use a software program to emulate the function and response of a conventional pneumatic valve. An emulation ECP brake system can be operated in any train with any mix of emulation ECP and conventional brake systems. In a mixed train, the emulation ECP brake system will monitor the brake pipe for pressure changes and set up brake cylinder pressure like a conventional pneumatic valve.

In the NPRM, FRA did not propose any rules uniquely regulating trains or cars equipped with emulation ECP brake systems, but sought comments on whether or how it should regulate such systems differently than what was proposed. According to NYAB and Wabtec (collectively, the brake manufacturers), the current AAR standards do not require a pneumatic emulation mode, and this function should not be subject to FRA regulation. In the event future releases of the S-4200 specifications add pneumatic emulation as a requirement, the brake manufacturers suggest that the need for FRA regulation can be addressed at that time. FRA concurs and the final rule does not include regulations uniquely affecting emulation ECP brake systems.

Manufacturers have also addressed ECP brake compatibility with locomotives equipped with conventional pneumatic brakes, which must be equipped with an HEU unit to operate the brakes on cars equipped with ECP brakes. For instance, one manufacturer has developed a portable unit that will allow a locomotive lacking an ECP brake HEU to operate a train equipped with ECP brakes by converting the air pressure changes in the brake pipe to digital command signals that are transmitted to the freight cars through the electrical train line cable. The locomotive engineer operates the brakes with the conventional automatic brake valve in the control cab. The brakes,

however, will respond instantaneously and provide all of the benefits of an ECP brake system. While FRA recognizes that the technology for such a portable unit is in development and may provide a possible solution to the technological transition, it is not addressed or authorized by this final rule and the incorporated AAR standards.

V. Advantages of ECP Brakes Over Conventional Pneumatic Brakes

ECP brake technology overcomes many of the physical limitations inherent in conventional pneumatic brake technology. Field testing of AAR compliant ECP brake systems over the past decade has not revealed any indication of a catastrophic event that could be caused by an ECP brake system malfunctioning. With a high level of confidence, the ECP brake stake holders support the implementation of ECP brake systems on the Nation's railroads. FRA concludes that the advantages of ECP brake technology will significantly improve the safety and the performance of train operations. Examples of such benefits include better train handling through simultaneous brake applications, continuous brake pipe charging, and graduated brake operation. Derailments are expected to decline significantly. ECP brake benefits also include electronic train management, improved performance, and real time diagnostics of the train's brake system.

A. Simultaneous Brake Application

The conventional pneumatic brake system uses compressed air as the source for braking power and as the medium for communicating brake application and release commands and communicates the brake commands by changing brake pipe pressure through the use of the locomotive's automatic brake valve. These commands begin at the front of the train and propagate to the rear of the train at the speed of the air pressure moving from car to car. This slow propagation of the brake command contributes to uneven braking, excessive in-train and run-in forces, train handling challenges, longer stopping distances, safety risks of prematurely depleting air brake reservoirs, and a corresponding low brake rate until all cars in the train receive and fully respond to the brake command. FRA recognizes that the slow application and release of brakes in a train, causes excessive in-train forces, which have the potential to cause derailments when they occur in curves, cross-overs, or when heavier cars are placed at the rear of the train or after empty cars. When the brakes on the rear of the train release much more slowly than the brakes on the front of the train, the potential for a “string-line” derailment—where the train stretches out until one or more wheels are lifted off the inside rail of a curve—increases.

The ECP brake system reduces these problems by enabling cars to brake simultaneously at the command of an electronic signal. The electronic signal's speed ensures an instantaneous, simultaneous, and even activation of each car's brake valves, significantly reducing braking distances—40 to 60 percent for the longest trains—and minimizing the consequences of collisions or derailments by reducing the collision speed and slowing the non-derailed portion of the train.

B. Continuous Brake Pipe Charging

Propagating a brake command signal through the reduction or increase of air pressure in the brake pipe represents a significant limitation of conventional pneumatic brakes. The same brake pipe air used to propagate brake commands also charges reservoirs on each freight car. As a result, the brake pipe must be fully charged to restore full braking capacity to depleted reservoirs. Partially depleted air from the brake pipe, which occurs during the initial stage of braking, prohibits repeat applications of brakes until the brake pipe can be recharged. A brake pipe can only be recharged once the brakes have been fully released. This characteristic of conventional pneumatic brakes contributes to the risk of run-away trains caused by prematurely depleted brake pipe pressure, particularly on steep grades.

The ECP brake system reduces this risk by continuously charging the brake pipe. Since ECP brakes do not use the brake pipe as a brake command medium, the brake pipe is constantly being charged, allowing the locomotive engineer to operate the brake system more aggressively. With ECP brake systems, it is unnecessary to apply hand brakes on steep grades to recharge the brake pipe after the train stops on the grade.

C. Graduated Brake Application and Release

The conventional pneumatic brake system's inability to operate freight trains in graduated release has long hampered train operations and has increased fuel consumption. The conventional pneumatic brake system can only operate in direct release, preventing locomotive engineers from reducing the braking effort without completely releasing and resetting the brakes. In other words, after a direct release brake application with a conventional pneumatic brake system, braking effort can be increased but not decreased without fully releasing the brakes. In many cases, direct release leads to unnecessary train stops or insufficient initial brake applications. ECP brake systems overcome this deficiency by operating in graduated release, which enables the operator to reduce braking effort to a lower level after making a brake application without fully releasing the brakes. As a result, the operator can accurately adjust the braking level as each situation requires, eliminating the stops required to recharge and reset the brakes after excessive brake applications and prior to negotiating hills and valleys.

D. Train Management

The use of a train line cable allows real-time self-diagnostic functions to be incorporated in the brake system. The initial check of brake system conditions on each car and continuous monitoring of each car's braking functions provides immediate communication to the locomotive engineer of certain brake failures. The continuous monitoring of each car's braking functions and real-time diagnostics of the train's brake system is a significant advantage to the locomotive engineer for the operation of the train. These technical benefits also justify elimination of some of the currently required physical inspections of the train's brake system and support regulatory change to operate cars with non-functioning brakes out of the initial terminal. When the ECP brake system diagnostics detect a serious problem, including when the brake pipe pressure falls below 50 psi, the ECP brake system will automatically command a penalty brake application. ECP brake systems also eliminate the conventional pneumatic brake system's inability to apply all brakes in the train when there is a blockage in the brake pipe, which is handled through the use of a two-way EOT telemetry device not required by all trains. This failure will not affect brake applications in ECP brake systems, because each car is provided a braking command through a train line cable, not solely through the reduction of brake pipe pressure, which would not be propagated through the consist if the brake pipe is blocked. Therefore, ECP brake systems incorporate features that make them inherently safer than conventional pneumatic brakes. Using sensor-based technology to maintain a continuous feedback loop on train condition for the crew and any centralized monitoring, the electrical communication cable network can also serve as a platform for the gradual

addition of other train performance monitoring and management controls, including distributed power locomotive control, hand brake on/off detection system, automatic activation and release of hand brakes, hot bearing detection, and truck oscillation and vibration. These and other train management features will increase the reliability and overall safety of train operations.

E. Improved Performance

Ultimately, ECP brake technology also provides improved performance, which will contribute to safer train operations and significant cost savings over time. Since trains operated with ECP brakes can operate in graduated release, instead of direct release, fuel will not be wasted while pulling trains against a heavy brake application. Further, because all of the cars' ECP brakes release simultaneously, fuel will not be wasted on initial start-ups and power-ups after a brake release.

Operations utilizing ECP brake systems also promise increased average train speeds and decreased trip times. ECP brake systems allow the locomotive engineer to modulate the brake applications in territories with descending grades, thus increasing overall trip average speeds and reaching destinations sooner. While the slow release of the rear cars' brakes on conventional pneumatic braked trains cause drag, the brakes on ECP brake-equipped trains release simultaneously, improving start-up and acceleration times. Further, due to their shorter stopping distances, trains equipped solely with ECP brake systems may potentially permit higher train speeds within existing signal spacing, which will increase average system velocity, or permit use of shorter “blocks” between signals, facilitating greater system capacity.

The instantaneous application and release of ECP brakes will result in more uniform braking, thus improving wheel wear and increasing brake shoe life. In a conventional pneumatically braked train, the brake pipe gradient and slower response time causes the first third of the train's cars to provide the majority of the braking action, thus applying additional pressure and heat on those cars' wheels. Since ECP brake systems provide instantaneous braking on all cars, such pressure will be more uniformly distributed along the train, thus eliminating the uneven braking force on the wheels of those leading cars. The ECP brake system also self-monitors each car's brake cylinder pressure and maintains the prescribed pressure, thus reducing the potential for creating shelling and flat spots on wheels.

Due to minimized wheel defects, and their accompanying vibrations, freight cars and brake components will enjoy increased life. Further, instantaneous braking will also prevent draft gear assemblies from receiving the constant pressure caused by trains equipped with conventional pneumatic brake systems and will reduce lading damage by eliminating slack action and in-train forces caused by uneven braking. ECP brake systems will also reduce the number of brake parts and rubber diaphragms required by conventional pneumatic brake systems.

VI. Standards, Approval, and Testing

During the past 18 years, FRA has monitored the progression of ECP brake technology and has observed field testing on various revenue trains, both freight and passenger. In 1997, FRA participated in an AAR initiative to develop ECP brake standards and in 1999, FRA funded, through the Transportation Technology Center, Inc., a FMECA of the ECP brake system based on AAR's

Standards and Recommended Practices,

S-4200 Series. FRA also participated in programs to develop and enhance advanced components for ECP brake systems. After all of these efforts, FRA has determined that the AAR S-4200 Series of standards are appropriate substantively and legally for incorporation by reference in this rule and that the AAR Air Brake Systems Committee is an appropriate vehicle to rely upon in the implementation of ECP brake technology for this rule. FRA acknowledges that ECP brakes are an attractive, viable, and enabling technology with the potential to substantially improve the operational efficiency of trains and that by complying with AAR Standard S-4200, ECP braked trains offer significant safety and efficiency benefits in freight train handling, car maintenance, fuel savings, network capacity, self-monitoring, and fail-safe operation.

AAR administers the existing industry ECP brake standards through its Air Brake Systems Committee—consisting of representatives from the major railroads, brake manufacturers, and FRA—which requires demonstrated proof of compatibility, safety, and reliability of air brake systems to receive AAR approval. FRA is satisfied that the existing AAR S-4200 Series specifications, AAR approval procedures, and continuing oversight by the AAR Air Brake Systems Committee will best ensure the safety and reliability of ECP brake systems. An ECP brake monitoring system complying with AAR Standard S-4200 Series increases safety by communicating information on the location and quantity of defective equipment and by providing for the safe movement of equipment over longer distances and periods of time.

A. AAR Standards and Approval Process

In order to assure the safety and the interoperability of ECP brake system designs, AAR developed the S-4200 Series of standards. The first five standards (S-4200, S-4210, S-4220, S-4230, and S-4250)—issued in 1999 and updated in 2002, 2004, 2006, and 2007—specify the functional, operational, and interface requirements for cable-based ECP brake systems. AAR issued two additional standards in January 2007, specifying ECP brake equipment approval procedures (S-4240) and interoperability testing requirements (S-4260). In April 2008, AAR issued a standard for hardware and software configuration management plans (S-4270). At this time, AAR has not completed specifications for radio-based ECP brakes, which it considers technically immature and unsuitable. The purposes of the standards are to ensure that AAR-approved electronic brake systems are interoperable between different manufacturers and meet high standards of safety and reliability. The analysis of the S-4200 Series of standards indicates that the performance specifications for the cable-based ECP brake concept are complete.

The AAR Manual of Standards and Recommended Practices (MSRP) contain the following standards for cable-based ECP brake systems:

• S-4200, ECP Cable-Based Brake Systems—Performance requirements;

• S-4210, ECP Cable-Based Brake System Cable, Connectors, and Junctions Boxes—Performance Specifications;

• S-4220, ECP Cable-Based Brake DC Power Supply—Performance Specification;

• S-4230, Intratrain Communication Specification for Cable-Based Freight Train Control System;

• S-4240, ECP Brake Equipment—Approval Procedure;

• S-4250, Performance Requirements for ITC Controlled Cable-Based Distributed Power Systems;

• S-4260, ECP Brake and Wire Distributed Power Interoperability Test Procedures; and

• S-4270, ECP Brake System Configuration Management.

Standard S-4200 ensures that the functionality and performance of freight ECP brake systems are uniform and

consistent among equipment from different manufacturers, that cars equipped with AAR-approved ECP brake systems from different manufacturers are interoperable, and that AAR-approved electronic brake systems meet a high standard of safety and reliability. This standard defines ECP brake system elements, specifies their functionality in different implementation schemes—such as stand-alone, overlays, and emulators—and sets the requirements for all system functions. It covers all primary functions of ECP brakes, including graduated brake application and releases, continuous reservoir charging, adjustment of braking level to car load, continuous fault detection, equipment status monitoring, and pneumatic backup. It also specifies requirements for all modes of train operation and provides an extensive description of fault response and recovery functions for all possible faults of the system components. The standard also establishes environmental requirements for the designed systems, in-service testing, and rigorous approval procedures for the certification process of new ECP brake equipment.

Other standards in the AAR S-4200 Series contain requirements for critical ECP brake system components and communication protocols. Standard S-4210 contains the performance specifications and qualification test procedures for ECP brake system cables, connectors, and end-of-car junction boxes. The required testing verifies that the designed components have high reliability, will withstand harsh environmental conditions, and will have at least an 8-year operating life.

Standard S-4220 contains performance specifications for the DC power supply system through the hard-wired train line cable for ECP brake controllers and other electronic freight car components. Since a DC power supply conductor will also send communication control commands between a locomotive and its attached cars, the standard requires reliable separation and absence of interference between the DC power supply and the communication circuits.

Standard S-4230 contains the requirements related to intra-train communication systems on freight equipment used in revenue interchange service. The standard facilitates interoperability between freight cars and locomotives without limiting the proprietary design approaches used by individual suppliers. The communication protocol was developed for control of ECP brakes and multiple remote units, including distributed power locomotives, and for safety reporting of various car and locomotive components.

Standard S-4250 contains the methodology and communication flow requirements for controlling the operation of multiple locomotives in a freight consist through the intra-train communication network that is shared with ECP brake system. The locomotive control through the intra-train communication line is an alternative method of locomotive control, which was not available before the introduction of ECP brake system technology. The controlled locomotives can either trail a lead locomotive or be distributed (i.e., separated by cars) in a train. The standard establishes protocols for different types of locomotive controls through the intra-train line cable, depending on the location of the consist's multiple locomotives. While the current means of controlling “distributed power” is performed through radio control—which is susceptible to a loss of communication and is not “fail safe” in operation—locomotives operated with ECP brake systems can be relied upon to function as commanded in real time and automatically apply the brakes in the event of a communication loss.

Standard S-4260 contains the test procedures that must be completed by ECP brake manufacturers to establish interoperability baselines among ECP brake and wire distributed power (WDP) systems in compliance with the S-4200 standards series. The test procedures validate the functional interoperability of ECP brake and WDP systems developed by different manufacturers.

Standard S-4270 defines the procedures for managing the software and hardware configuration for AAR-approved ECP brake systems.

The AAR approval process and the work of the Air Brake Systems Committee has been the primary method of ensuring the safety and reliability of railroad brake systems and components for decades. Through its participation on the Air Brake Systems Committee, FRA can monitor any safety or reliability issues that may develop with ECP brake systems. In the event of a serious safety issue with a supplier's ECP brake system, FRA can appropriately respond by invoking its authority to intervene with additional rulemaking or an emergency order. FRA does not expect to use this authority, because the AAR Air Brake Systems Committee already has the authority to rescind AAR approval for brake systems that do not perform safely or reliably.

Standard S-4240 contains the acceptance procedure for seeking AAR approval of ECP brake equipment. The standard requires a manufacturer to apply for approval by submitting certain information under Administrative Standard S-060. Following review and approval of the initial application data and test plan by the AAR Air Brake Systems Committee, a manufacturer maintains the burden of establishing compliance with Standards S-4200, S-4210, S-4220, S-4230, S-4250, S-4260, and S-4270 to obtain conditional approval.

For laboratory testing, an AAR representative will select 150 CCDs from a lot of 200 and will select HEUs, train power supplying units (TPSs), and ECP-EOTs from lots of four each. The testing will be performed on a 150-car test rack configured in accordance with AAR specifications. The manufacturer will provide for AAR evaluation of the test results, which shall include a requirements traceability and compliance matrix for each AAR standard and all necessary test reports, and then conduct interoperability laboratory testing between new ECP brake equipment and AAR-approved ECP brake equipment in accordance with standard S-4260.

Upon satisfactory completion of the aforementioned laboratory tests, AAR will consider conditional approval for field testing of ECP brake equipment. If conditional approval is granted, 150 ECP brake CCDs shall be selected from a production lot of 200 test-approved CCDs, and 100 of those selected, plus at least two ECP brake-equipped locomotives and one ECP-EOT device, must be placed in railroad service for 24 months. Under conditional approval, at least 1,000 cars must be allotted for use. Within those 24 months, all in-service tests must be conducted. After those 24 months, the Air Brake Systems Committee continues to monitor the product for reliability and safety concerns. If a problem with any brake component is discovered, the Committee will discuss the issue and may either demand further tests or withdraw AAR approval.

Full AAR approval shall be provided after 4 years if during that time a manufacturer furnishes AAR at specified intervals various service reports, which must include accurate ECP brake equipment malfunction records. FRA agrees with AAR's assessment that 4 years are needed to collect a history of reliable data with minimum failures. In addition, the manufacturer must provide to AAR a semiannual report containing any repair material for the test ECP brake equipment. Under the standard, AAR reserves the right to withdraw

conditional test approval if it determines that safety is impaired, reliability degrades, or incompatibility of ECP brake operation develops, and may require any additional testing or performance evaluations it deems necessary. Standard S-4240 also contains specific procedures that must be followed when a manufacturer intends to change certain ECP brake equipment physical characteristics, software, or electronics.

FRA supports this effort as a timely measure for AAR to strengthen the regulatory package for ECP brake systems. Overall, FRA considers AAR approval a valuable step to ensure the reliability and safety of ECP brake systems and a minimum requirement for initial application of ECP brake systems on the Nation's railroads. However, FRA fully intends to monitor the application and safety of ECP and may, at its discretion, require additional safety analysis to be performed to confirm the safety of ECP brake systems installed and operating in revenue service. FRA reserves the right to witness the AAR approval testing of the product.

B. FMECA

AAR Standard S-4200 Series was developed to support the design of a safer, more reliable ECP braking system when compared with conventional air brakes. Once the standard was created, the railroad industry identified the need to perform a safety and reliability assessment of an ECP brake system built in accordance with this standard. Since actual S-4200 Series compliant ECP brake systems did not yet exist, the industry decided to conduct a FMECA for a hypothetical ECP brake system that satisfied all the requirements of the standard. At FRA's insistence, the FMECA on AAR Standard S-4200 was performed in 1999 by DEL Engineering with participation of AAR, FRA and a number of experts with significant experience in the development and application of ECP brake systems.

The FMECA team began the analysis by identifying all major ECP brake system components and their intended functions. The analysis examined each component and function and identified associated failure modes and effects. The failure modes were analyzed to determine severity, frequency of occurrence, and effectiveness of detection. The FMECA team created a numeric ranking criterion and determined and prioritized the level of risk posed by each failure mode. High-risk failure modes were identified and appropriate mitigation strategies were developed to decrease the risk.

The FMECA team analyzed the failure modes of all ECP brake components, including: CCDs with the battery; HEUs on the head locomotive; ECP-EOT devices; train line cables, communication and power supplies; power supply controllers; head end line terminators; car ID modules; locomotive ID modules; and operative brakes. The analysis included different types of ECP brake systems, including stand alone, overlay (dual mode), and emulator and all system functional requirements and operating modes, including Initialization, Switch, Run, and Cut-out. The FMECA failure log contained about 1,500 failure modes. For each high-risk failure mode, the FMECA team identified action items and offered recommendations on how to mitigate the consequences of component failures or system functional failures. The team primarily examined single-point failures but also identified and evaluated some cases of combined failures that had significant safety consequences.

The FMECA results confirmed that the ECP brake concept offers the potential for improved performance, reliability, and safety over that of conventional pneumatic brake systems. The FMECA concluded that no failure mode of an AAR-compliant ECP brake system exists that can cause a catastrophic accident due to single-point failure of the system itself. The AAR standards, as written, eliminate or mitigate critical outcomes of single-point failure of ECP brake systems.

The FMECA team encouraged manufacturers to pursue ECP brake technology, because the potential safety and efficiency benefits will far outweigh any disadvantages. If designed and maintained properly, ECP brakes will be substantially safer and more reliable than the conventional pneumatic brake system they are intended to replace. AAR and the brake manufacturers indicated that they were completely satisfied that ECP brake systems are significantly safer than conventional pneumatic systems. They accepted the results of the FMECA and concluded that no modifications were necessary to the AAR standards related to ECP brake systems.

VII. Market Maturity and Implementation

The U.S. market for ECP brake systems is mature enough to begin implementation of ECP brake technology. The equipment manufacturers have made a significant investment in the technology and have completed the preliminary design work and field testing of ECP brakes. For instance, they have provided technical solutions for different ECP brake implementation strategies, enabling non-ECP and ECP brake-equipped cars to run in combined trains and, in some cases, allowing ECP brake-equipped freight cars to run in ECP brake mode using locomotives with conventional pneumatic brake systems. In addition, they are ready to supply fully operational stand-alone ECP brake systems, overlays, and emulators for the U.S. market, easing the industry's migration process. A commitment by the railroad industry to change over to ECP brakes is necessary to inspire additional technological initiatives by the manufacturers.

ECP brake systems from the main U.S. manufacturers—all in different stages of AAR approval and testing in revenue service—have been built with the intention of complying with the AAR S-4200 Series of standards, proven safe through field testing, designed using fail-safe principles, and accommodated the industry's need for different implementation schemes. The AAR S-4200 Series standards are intended to assure the necessary level of safety, reliability, interoperability, and ultimately the applicability of this equipment in the U.S. market. The equipment of existing ECP brake manufacturers incorporates the conventional pneumatic emergency brake system as a backup in case of failure of the ECP brake control. In most cases, ECP brake systems will support enhanced safety even if the electronics fail, because continuous recharging of the brake pipe will ensure availability of an emergency application. Therefore, the ECP brake system reduces the risk caused by depleted air in the case of an emergency. There is no instance or record of a malfunctioning ECP brake system that resulted in a catastrophic or critical event.

To assess the benefits and costs of ECP brakes for the U.S. rail freight industry, FRA contracted with BAH in 2005 to conduct a study. An ECP brake expert panel of principal stakeholders in the conversion of the U.S. freight car fleet to ECP brake technology, including suppliers, railroads, private car owners, AAR, and FRA was assembled to participate in the study. The expert panel supported the conclusion that the AAR standards are sufficient for the ECP brake system designer to achieve a system safety level adequate for a safety-critical system. In particular, an AAR-compliant system, while providing a significant increase in safety and efficiency, does not introduce extra risks associated with single-point failure of the ECP system itself.

The final BAH report provided a comprehensive analysis and comparison of ECP and conventional air brake systems. BAH acknowledged that while trains with ECP brake systems have been operated in North America, South Africa, and Australia, U.S. implementation has been stalled due to the absence of an acceptable implementation plan for conversion and hard data to support a sound economic analysis, limited interoperability with traditionally braked trains, and insufficient capital investment required for conversion. It concluded that although the barriers to implementation are formidable, ECP brake systems are economically and technically ripe for adoption and should be implemented in phases. BAH suggests that implementing ECP brakes on 2,800 locomotives and 80,000 cars in the Powder River Basin (PRB) would cost the industry approximately $432 million. However, according to BAH, the annual $157 million in anticipated benefits—resulting from saved fuel, improved wheel and brake shoe life, and a reduction in necessary brake inspections—will allow railroads to recover those costs in less than three years. To justify the investment, the BAH report says, conversion must be focused first on the high-mileage, unit-train-type services that would most benefit from its use.

FRA acknowledges that BAH's fuel cost estimates are underestimated due to subsequently rising prices. It is notable that BAH did not attempt to quantify potential savings relating to capacity increases or emissions decreases due to the difficulty in arriving at acceptable values. Accordingly, the report's estimated internal rate of return should be viewed as conservative.

VIII. Related Proceeding

In a petition dated November 15, 2006, and filed November 21, 2006, BNSF and NS jointly requested that FRA waive various sections in parts 229 and 232 as it relates to those railroads' operation of ECP brake pilot trains.

See

Docket No. FRA-2006-26435. The FRA Safety Board held a fact-finding hearing on this matter on January 16, 2007, featuring testimony from representatives of the petitioners, air brake manufacturers, and labor unions. On March 21, 2007, the Safety Board granted the petitioners' request, in part, subject to various conditions designed to ensure that ECP brake equipped trains subject to the waiver will be as safe as trains equipped with conventional brakes and operated under the existing rules.

See id.

IX. Legal Impediments and Proposed Relief

ECP brake operation provides for continuous electronic monitoring of the condition of air brake system components and brake pipe pressure, potentially limiting the need for certain physical brake inspections currently required under part 232. Accordingly, this final rule modifies, relaxes, and removes certain requirements, including intermediate terminal inspections (§§ 232.207, 232.209, and 232.211), single-car air brake tests (§ 232.305), and the required percent of operable brakes at initial terminal departure (§ 232.103(d)), as they apply to trains operating in ECP brake mode. The rail industry's implementation of ECP brakes is frustrated by such inapplicable and inefficient statutory and regulatory requirements. Without a large-scale proliferation and implementation of ECP brake technologies, the industry will not be able to enjoy economies of scale and to overcome the industry-wide limits caused by interoperability problems. FRA seeks to improve market efficiency by providing reliable and suitable standards and procedures that will support investments in ECP brake technology.

The current statutory and regulatory requirements, however—including those concerning brake inspections and the operation of trains with defective equipment—may reduce or eliminate incentives for railroads to implement new ECP brake technology and take advantage of its operational and safety benefits. For example, 49 U.S.C. 20303 presents an obstacle to cost-saving, safe, and efficient long hauls promised by ECP brakes. To avoid incurring civil penalties, operators are required under 49 U.S.C. 20303 to transport rail vehicles with defective or insecure equipment “from the place at which the defect or insecurity was first discovered to the nearest available place at which the repairs can be made.”

The design and operation of ECP brakes renders strict application of the existing statutory movement for repair provision unnecessary as it will reduce efficiencies and may actually reduce the safety of such operations. When the defective equipment is an ECP brake, stopping for immediate repairs is not necessary. If more than 15 percent of the train's AAR approved ECP brakes become inoperable, the train automatically stops. It should be noted that a train with 85 percent operative ECP brakes will still have shorter stopping distances than a train equipped with conventional pneumatic brakes that are 100 percent operative. Considering the technology's continuous self-monitoring and constant communication with the engineer, it is highly unlikely that a train equipped with ECP brakes will ever reach such a level of inoperability. Further, FRA continues to believe that a freight train operated with ECP brakes may travel non-stop to its destination, not to exceed 3,500 miles, without intermediate brake inspections, because foundation brake rigging and brake shoes will safely operate this distance and redundant intermediate brake inspections within that distance do not increase ECP brake system safety. As an added benefit, the increased mileage allowance would provide for coast-to-coast travel. In the related proceeding, Docket No. FRA-2006-26435, FRA's Safety Board granted the request of BNSF and NS to allow the non-stop movement of an ECP brake operated train to its destination, each not to exceed 3,500 miles.

Nevertheless, 49 U.S.C. 20303 requires trains with defective safety appliances, including brakes, to travel to the nearest location where the necessary repairs can be made. If the nearest available location is in a direction other than that in which the train is traveling, the train with defective equipment may be required to switch the defective car out of the train and add it to another train traveling in the direction of the nearest repair location, referred to as a “backhaul.” ECP brake implementation has been complicated by the ECP brakes system's technological incompatibility with conventional pneumatic brake systems. To switch a car equipped with ECP brakes into a technologically incompatible train operating with conventional pneumatic brakes will create additional safety concerns for that train.

The potential risks involved in combining cars with incompatible braking systems coupled with the hazards normally associated in switching cars in the field, outweigh the potential harm of keeping the defective car in its existing ECP braked train and traveling to a repair location that is significantly further away. In circumstances where the defective safety appliance is a non-brake defect, it will often be safer and is certainly more efficient to allow ECP brake-equipped trains with non-brake defective equipment to travel to the nearest forward repair station. Moreover, due to the ability of ECP brake systems to continuously monitor the brakes on each car in a train and to provide specific information to the locomotive engineer regarding the location of any car with inoperative brakes and the

design of such systems to prohibit operation with less than 85 percent operative brakes in certain situations, the need to immediately set-out and handle cars with defective brakes for repair is unnecessary. There is also no safety need to require a railroad to incur the expense and delay involved with cutting the defective car out of the train or to run the safety risk of doing so. Currently, freight cars with defective mechanical conditions are permitted to be hauled long distances for repair.

See

49 CFR 215.9. In light of the technological advances provided by ECP brake systems, it appears logical and necessary to permit more flexibility in moving equipment with defective brakes when equipped with ECP brakes and hauled in a train operating in ECP brake mode. However, the language of 49 U.S.C. 20303 prevents FRA from providing this flexibility.

When drafting the proposed rule in this proceeding, FRA recognized that the aforementioned statutory requirements governing conventional pneumatic braked trains may offset the increased safety and efficiency benefits afforded by ECP brakes, thus eliminating the incentives for rail operators to implement ECP brake technologies. To encourage implementation without hindering safety, FRA proposed to invoke its discretionary authority under 49 U.S.C. 20306 to exempt ECP brake-equipped trains from the specific statutory requirements contained in 49 U.S.C. 20303. The requirements for moving defective equipment were created over a century ago, during the infancy of pneumatic brakes and before all cars were equipped with power brakes. With many more reasons to stop train operation along tracks with frequent repair shops and exponentially more employees, the legislative drafters of that time could not have envisioned the type of safer and more efficient technologies available today.

Recognizing the importance of upgrading rail technologies, Congress in 1980 passed the Rock Island Railroad Transition and Employee Assistance Act (the “Rock Island Act”), which,

inter alia,

provides statutory relief for the implementation of new technologies. More specifically, when certain statutory requirements preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations, the applicable section of the Rock Island Act, currently codified at 49 U.S.C. 20306, provides the Secretary of Transportation with the authority to grant an exemption to those requirements based on evidence received and findings developed at a hearing.

According to Senate Report No. 96-614, “This section fosters rail technological improvements by giving the Federal Railroad Administration

discretionary

authority to grant exemptions from the Safety Appliance Acts' mandatory requirements

when those requirements preclude the development or implementation of new rail technology.

” Senate Comm. on Commerce, Science, and Transportation, S. Rep. No. 96-614, at 8-9 (Mar. 4, 1980) (emphases added). The House version of the bill includes no similar provision, but the Conference substitute adds that the authority granted FRA in this section must be exercised after a hearing, absent an agreement between labor representatives and the developers or operators of the new equipment or technology. Joint Explanatory Statement of the Committee of Conference, H. Conf. Rep. No. 96-1041, § 117, at 30 (May 20, 1980).

Under 49 CFR 1.49(v), the Federal Railroad Administrator is delegated authority to carry out the functions vested in the Secretary by the Rock Island Act. Under this authority, FRA held two public oral hearings in Washington, DC on October 4, 2007, and near Chicago, IL, on October 19, 2007, to receive evidence and develop findings to determine whether FRA should invoke 49 U.S.C. 20306. While FRA solicited any information that would bear on this decision, it also asked a series of questions in the NPRM and at the hearing designed to invoke discussion and gather information regarding the safety of moving defective equipment as proposed and to determine whether existing statutory provisions impede the implementation of the technology.

At the hearing, the labor unions commented on the limitations of the ECP brake system's self-monitoring capabilities. According to the labor unions, since the technology cannot monitor a variety of brake defects, it should not be relied upon to allow a train to operate 3,500 miles without any intermediate brake inspections. On the other hand, the railroads support the increase in the allowable distance of 3,500 miles between brake inspections, believing the safety level of trains operating with ECP brakes that distance should equal or exceed the safety level of trains operating with conventional brakes over 1,000 miles. For the same reasons, some railroads even suggested that ECP brake operated trains be allowed to move 5,000 miles between Class I brake inspections.

The labor unions and railroads agree that a conventional freight car with the brakes cut out is no different than an ECP brake-equipped car with the brakes cut out and that switching a defective ECP brake-equipped car into a conventionally braked train will not increase current safety concerns. However, the railroads and the labor unions disagree when the defect is a non-brake safety appliance on a car equipped with ECP brakes. According to the labor unions, if a non-brake defect requires the car to be set out, there is no difference between a train operated with conventional brakes and a train operated with ECP brakes; the car should be set out for repair on site or moved under special circumstances to the nearest repair point. The railroads believe that such cars should be left in the train operated with ECP brakes for forward movement to a location where ECP brake repairs can be made instead of being switched out and hauled in a different direction. Any switching, says the railroads, causes the switching and pick-up crews more risk exposure.

The labor unions assert that the regulations proposed in this proceeding provide sufficient incentives for the implementation of ECP brake systems and that the restrictions within 49 U.S.C. 20303 do not provide a disincentive for such implementation. The railroads, on the other hand, assert that strict application of 49 U.S.C. 20303 provides a disincentive for the implementation and use of ECP brake technologies. According to the railroads, they are required under section 20303 to handle cars with defective equipment more times than necessary, resulting in lost time and revenue. The resulting undue and unreasonable financial burden and significantly negative financial impact on rail operations, say the railroads, provides no relief from the added expense of equipping rail cars with ECP brakes and is a strong disincentive for ECP brake system implementation. The railroads claim that eliminating the requirements under 49 U.S.C. 20303 would provide a necessary and significant economic incentive to the widespread adoption of ECP braking technology in the U.S.

Based on the comments and information submitted at those hearings, FRA has decided to invoke its discretionary authority under 49 U.S.C. 20306 to exempt application of 49 U.S.C. 20303 as it applies to the operation of ECP brake operated freight trains and freight cars. FRA believes that application of section 20303 will clearly provide a disincentive towards the implementation of ECP brake systems, a

technology that promises safer operation of trains throughout the U.S.

FRA is confident that this initiative is consistent with improving railroad safety. As further discussed below, through oversight of present train operations, including extended haul operations, FRA has observed that properly inspected trains can proceed for extended distances without loss of braking effort due to wear or damage to foundation brake rigging. FRA further notes that hauling of cars with defective safety appliances to the next forward point where repairs can be accomplished poses virtually no incremental risk to employees, particularly if defects have been identified and communicated to the crew of the train. In the great majority of cases, damaged or insecure safety appliances pose a risk only during switching operations, not during line haul movements. Indeed, back hauling of safety appliances introduces additional risk, as the car is first removed from one road train and then added to another for the reverse movement.

X. Additional Issues

A. Part 229

In the ECP brake waiver proceeding, Docket No. FRA-2006-26435, BNSF and NS sought relief from various provisions of parts 229 and 232. In relation to part 229, BNSF and NS sought relief from the requirements relating to daily locomotive inspections and electronic record keeping. FRA sought comments and information whether this final rule should include any exceptions to part 229 for operations using ECP brake systems.

No commenting party supported or suggested any exceptions to part 229. On the contrary, UTU and BLET agreed with the FRA's proposal not to modify part 229 in this rulemaking. According to BLET, there is no basis for relief from the daily inspection or recordkeeping requirements of Part 229. FRA continues to believe that there is insufficient information available to consider any exceptions to part 229 for operations using ECP brake systems. Thus, under this rulemaking, part 229 remains unaffected.

In its comments, Wabtec lists a number of minimum requirements that it proposes should be added to existing event recorder parameters, applicable to the lead locomotive when in ECP brake operation. BLET filed a supplemental response in which it responded to this particular filing, stating that it “cannot serve as a basis for FRA requirements pertaining to event recording of ECP data because of [an] omission [relating to the ‘ECP train brake source’ parameter described in UP's comments].” The scope of this proceeding does not include information relating to event recorder data. The NPRM did not discuss or seek comments on this issue. Accordingly, FRA will not include in this final rule any modifications to the regulations governing event recorders, since many parties interested in event recorders would not have been put on notice that the issue was being raised. FRA believes that these issues would best be resolved in a separate proceeding concerning part 229.

B. Dynamic Brake Requirements

At the public hearing conducted in relation to the waiver proceeding, BNSF requested relief from some of the dynamic brake requirements contained in 49 CFR part 232. On this issue, FRA only received comments from BLET, which indicated that relief relating to dynamic brake requirement is not necessary as it applies to ECP brake systems. According to BLET, it would be unwise and unsafe to further erode braking capacity by diluting the existing dynamic brake requirements.

FRA remains unsure of what specific relief BNSF requested regarding dynamic brakes. Section 232.109 provides for the continued operation of a locomotive found with inoperative dynamic brakes for a period of up to 30 calendar days. It appears that railroads will continue to require locomotive engineers to rely on extended range dynamic brakes where they sufficiently control the braking effort without introducing excessive buff forces. Locomotive engineers will need to know what level of braking effort is available, particularly in extreme cases operating over territory with significantly descending grades. Otherwise, an engineer may lose control of the train due to brake fade when the speed precludes a timely application of the automatic brake due to insufficient dynamic brake capacity. FRA recognizes that this scenario is much less likely to occur with availability of ECP braking, but that does not mean it could not occur. FRA continues to believe that more flexibility in this area is not necessary and declines to make any such modifications in this final rule.

C. Single Car Air Brake Test Approval Procedures and Single Car Air Brake Tests

The NPRM included a provision requiring the submission and approval of single car air brake test procedures for cars with ECP brake systems in accordance with the special approval procedures in § 232.17. FRA also reserved the right to modify § 232.17 to make clear the applicability of proposed subpart G, including, but not limited to, adding cross-references.

Section 232.305(a) provides that a single car air brake test may be performed partially in accordance with “Section 4.0, ‘Special Tests,’ of the Association of American Railroads Standard S-486-01, ‘Code of Air Brake System Tests for Freight Equipment,’ contained in the AAR

Manual of Standards and Recommended Practices, Section E

(January 1, 2001).” That standard has since been amended and FRA has approved the use of the new Standard S-486-04 as the procedure to use when performing a single car air brake test. Accordingly, FRA proposed to amend § 232.305(a) by replacing the directly preceding quoted text with the following: “Section 4.0, ‘Special Tests,’ of the Association of American Railroads Standard S-486-04, ‘Code of Air Brake System Tests for Freight Equipment,’ contained in the AAR

Manual of Standards and Recommended Practices, Section E

(January 1, 2004).”

BLET submitted comments supporting FRA's proposed amendments to sections 232.17 and 232.305(a). No other comments were filed on these issues. Consequently, the final rule amends §§ 232.17 and 232.305(a).

D. Train Handling Information

Section 232.111 requires railroads to adopt and comply with written procedures ensuring that railroad train crews receiving trains are provided accurate information concerning each train's condition. The continuous monitoring capabilities of ECP brake systems provide information regarding the location of equipment with inoperative or cut out brakes. BLET commented that none of the information provided by the ECP brake system appears to satisfy the requirements of 232.111(b) and that it agrees with FRA that there is no reason for excepting any portion of or provision contained in § 232.111.

FRA continues to see no reason to excepting any portion of or provision contained in § 232.111. FRA continues to believe that, if anything, ECP brake systems' continuous monitoring capabilities will assist railroads in complying with the train handling information rules in § 232.111 by monitoring defects and potentially allowing for the manual input of defects not monitored electronically and then

electronically providing such information to subsequent train crews.

E. Piston Travel Limits

For cars equipped with 8

1/2

-inch or 10-inch diameter brake cylinders receiving either a Class I brake test or a periodic inspection while on a shop or repair track, §§ 232.205(c)(5) and 232.303(c) currently limit piston travel to 7 to 9 inches. An industry-wide waiver currently in effect, however, permits piston travel limits to range from 6 to 9 inches on these types of cylinders. In the NPRM, FRA proposed the incorporation of that waiver into the rules by amending §§ 232.205(c)(5) and 232.303(c) accordingly.

BLET, Wabtec, and NYAB concur with FRA's proposal to incorporate the current, industry-wide waiver permitting piston travel limits to range from 6 to 9 inches by amending sections 232.205(c)(5) and 232.303(c). Similarly, AAR states that there is no reason to refrain from incorporating the industry-wide waiver in the regulations. Consequently, this final rule amends sections 232.205(c)(5) and 232.303(c) by revising the piston travel range limit of 7 to 9 inches to a range limit of 6 to 9 inches.

F. Extended Haul Trains

Section 232.213(a)(6) requires inbound inspections for extended haul trains and states that, “After April 1, 2007, the inbound inspection described in this paragraph shall not be required unless FRA provides notification to the industry extending the requirement to perform inbound inspections on extended haul trains.” Section 232.213(a)(7) requires railroads to maintain a record of all defective, inoperative, or ineffective brakes and all conditions not in compliance with parts 215 and 231 discovered during train movement. In addition, that section says that, “After April 1, 2007, the records described in this paragraph need not be maintained unless FRA provides the notification required in paragraph (a)(6) of this section extending the requirement to conduct inbound inspections on extended haul trains.”

In the NPRM, FRA proposed to amend Part 232 by deleting §§ 232.213(a)(6) and (a)(7) from the regulations. These regulations “sunsetted” on April 1, 2007, without further FRA action. Since this proposal remains uncontested and the “sunsetted” provisions serve no purpose by remaining in the CFR, the final rule deletes § 232.213(a)(6) and (a)(7).

G. Part 238

Amtrak informally expressed interest in potentially using ECP brake system technology for its Auto Train that runs from Lorton, Virginia to Sanford, Florida. Amtrak previously employed overlay ECP braking on that train, and presumably would benefit from some additional flexibility with respect to the conduct of intermediate inspections. However, since FRA does not currently have sufficient information regarding the use of ECP brake systems on passenger trains and passenger equipment, FRA did not propose any amendment to 49 CFR part 238. FRA continues to believe that the functions of freight and passenger trains and cars, evidenced by the varied rules applicable to each, are too disparate to provide a one-size-fits-all solution for ECP brake integration and use.

In the NPRM, FRA stated that it may consider Part 238's applicability to ECP brake systems in another rulemaking or in other proceedings and would consider requests for waivers relating to the regulation of freight trains and freight cars equipped with ECP brake systems for passenger trains on a case-by-case basis. BLET agrees that the issue of ECP brakes and Part 238 should be addressed in a separate rulemaking. For this reason, BLET does not believe that it is appropriate for FRA to regulate ECP brakes on passenger trains via the waiver process or on a case-by-case basis.

FRA continues to believe that any regulations affecting the implementation and use of ECP brake systems on passenger trains are better left for a separate rulemaking proceeding relating to Part 238. FRA will also consider requests for waivers for such implementation and use on passenger trains. Although BLET expresses its opinion that a rulemaking would be a better venue for permitting the implementation and use of ECP brake systems on passenger trains, it provides no reasons why it would not be prudent to allow for the use of waivers to achieve similar goals.

XI. Section-by-Section Analysis

49 CFR Part 232

Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA sought comments on all proposals made in the NPRM to this proceeding.

Subpart A—General

This subpart contains amendments to the definitions listed in subpart A of part 232.

Section 232.5 Definitions

In the NPRM, FRA proposed the amendment of section 232.5 by adding an extensive set of definitions to introduce the regulatory relief and regulations applicable to ECP brake systems. FRA worded these definitions to mirror, to the extent possible, the definitions provided in existing AAR standards. FRA intends these definitions to clarify the meaning of important terms that are used in the text of the proposed rule. The definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. Some of the definitions introduce new concepts or new technologies.

These new definitions acknowledge the two general types of ECP brake systems—dual mode and stand-alone. The definition of a dual mode ECP brake system, which means a brake system that can work either as a conventional pneumatic brake system or an ECP brake system, intends to cover both an overlay ECP brake system and an ECP brake system equipped with an emulator CCD. The definition of CCD is intended to describe an important and necessary part of ECP brake system technology.

FRA did not receive any comments on the proposed definitions. Consequently, except for reasons set forth below, the final rule retains the definitions as proposed.

Subpart G—Electronically Controlled Pneumatic (ECP) Braking Systems

FRA is adding a new subpart G to part 232. The new subpart contains various design and operational requirements that provide both regulatory relief and regulatory modification to allow implementation of ECP brake systems on the Nation's railroads and to ensure the safety of such operations.

Section 232.601 Scope

This section contains a formal statement of the final rule's purpose and scope. The final rule contains specific requirements relating to the operation of freight trains and freight cars equipped with ECP brake systems and operating in ECP brake mode. The final rule also provides specific exceptions from various requirements contained in part 232 for ECP brake-equipped freight trains and freight cars.

Section 232.602 Applicability

As a general matter, this section makes clear that these rules apply to all railroads that operate freight trains or freight cars equipped with ECP brakes on track which is part of the general railroad system of transportation. The final rule applies to freight trains

operating in ECP brake mode, freight cars equipped with ECP brake systems, and conventionally braked freight trains and freight cars when operated in conjunction with ECP brake equipment.

The regulatory relief provided in the final rule and the need to ensure the safe operation of trains and vehicles equipped with this advanced technology requires that exception of certain existing part 232 provisions be afforded. Many of the provisions that the final rule excepts either apply awkwardly or should otherwise not apply to ECP brake systems due to the new technology's design or additional safety benefits. Similarly, the addition of various requirements directly related to ECP brake systems is necessary to ensure that the equipment is properly designed, inspected, tested, maintained, and safe to operate.

To fulfill these goals and to avoid an excess of confusing cross-references, this final rule excepts specific provisions and an entire subpart of part 232 from application to ECP brake systems. Each section of subpart G contains specific exceptions from various provisions contained in other portions of part 232 or contain appropriately rewritten provisions directly applicable to ECP brake systems. Those portions and sections of part 232 not specifically excepted by this final rule remain applicable to ECP brake-equipped freight trains and freight cars.

Section 232.603 Design, Interoperability, and Configuration Management Requirements

In order to ensure the safety and interoperability of ECP brake systems, this section incorporates by reference the existing AAR standards and approval procedures for ECP brake systems. The AAR, its member railroads, and various brake manufacturers have invested considerable time and effort in developing the identified industry standards addressing the design, performance, and interoperability of ECP brake systems. FRA has reviewed the industry standards it intended to incorporate by reference in this final rule and has determined that the standards effectively address and ensure the safe and proper operation of the brake system technology. As noted previously in this preamble, FRA funded a FMECA, which validated the safety and applicability of AAR's ECP brake system standards for freight railroads.

FRA believes that compliance with the AAR standards identified in paragraph (a) will ensure the safety and efficiency of freight trains and freight cars equipped with ECP brakes. Implementation of ECP braking systems complying with these standards will bring benefits and efficiencies encompassing train handling, car maintenance, fuel savings, network capacity, self-monitoring, fail-safe operation, accurate and instantaneous brake commands throughout the train, and continuous, real-time self-diagnostics. Paragraph (a) requires all manufacturers to meet existing AAR standards when developing and installing ECP brake systems.

Paragraph (a) incorporates the most recent AAR standards related to ECP brake systems. FRA recognizes that ECP brake systems are a growing technology and realizes that the existing AAR standards may need to change as the technology advances. Accordingly, this final rule includes two methods by which the incorporated industry standards may be changed. Paragraph (a) permits the submission of an alternate standard under the special approval procedures contained in § 232.17. In addition, paragraph (f) permits the AAR or other authorized representative of the railroad industry to seek modification of the approved industry standards through the modification procedures contained in § 232.307. Only the party that initially submits a standard approved by FRA pursuant to paragraph (a) may subsequently seek modification of that standard under paragraph (f). For instance, only AAR may seek modification of its own AAR S-4200 Series Standards already incorporated by reference into this final rule. If another authorized representative of the railroad industry submits an alternative standard under paragraph (a) and pursuant to § 232.17, then only that representative may seek modification of their alternate standard under paragraph (f).

The modification procedures in § 232.307 were developed to permit modification of the other incorporated AAR standards and FRA believes that the procedures are equally applicable to the regulations contained in this final rule. The industry has successfully utilized both these methods to change or modify industry standards incorporated in part 232 and FRA believes it is appropriate and necessary to provide this latitude for the standards related to ECP brake systems and components.

BLET filed comments supporting § 232.603(a) and (f) to utilize the alternate standards of § 232.17 and the modification procedures of § 232.307, respectively. GE requests that an exception be granted to certain stand-alone ECP brake systems in § 232.603(a)(1)-(6). We will address GE's comments below when providing analysis of § 232.603(e).

FRA recognizes that while most of the S-4200 Series apply technical standards concerning the mechanical attributes and capabilities of ECP brake systems, S-4240 and S-4270 delegate additional responsibilities to those manufacturing, implementing, and using ECP brakes and have been the subject of various comments filed in this proceeding. Thus, FRA believes they require further discussion.

FRA has reviewed the approval procedures contained in AAR Standard S-4240 and believes that they provide an appropriate review process to ensure the safe and proper operation of ECP brake systems. FRA believes that AAR is in the best position to approve those ECP brake systems that will be used by its member railroads and, over time, other non-member railroads interchanging traffic on the general rail system. FRA does not intend this section to necessarily preclude the introduction and acceptance of alterative standards subsequently approved in accordance with the rules.

FRA recognizes, however, that enforcement of S-4240 against the railroads would be difficult without additional regulatory language. Accordingly, paragraph (b) requires that all ECP brake systems developed under the AAR standards incorporated by reference in paragraph (a) receive conditional or final approval under AAR Standard S-4240 prior to use and that they maintain such approval while in use. In this paragraph, FRA prohibits the use of ECP brake systems developed under the AAR standards incorporated in paragraph (a) that do not receive conditional or final AAR approval or that cease to comply with the incorporated AAR standards relating to ECP brake systems.

BLET filed comments stating that it does not oppose paragraph (b). However, BLET believes that FRA's Railroad Safety Board should review petitions for conditional approval via the waiver process. FRA does not believe this level of scrutiny is necessary at this time. Under 232.103(l), all conventional brake systems must comply with AAR Standard S-469-47. Compliance with this standard is determined by the AAR brake committee, subject to FRA technical oversight. There are no more specific FRA requirements for these systems. For similar reasons, FRA is incorporating into the final rule the appropriate ECP brake standards. FRA has successfully relied on AAR for approving

conventional brake standards and there is nothing suggesting why FRA should perform a materially different approval process oversight role for the ECP brake standards. For the purposes of this rulemaking, FRA has closely reviewed and scrutinized the ECP brake design standards adopted by AAR. FRA also funded and participated in a FMECA analysis of the S-4200 series standards. We feel confident relying on AAR's approval process. Just like FRA enforces Standard S-469-47 after a system is introduced into service, FRA will equally enforce the S-4200 series standards on trains in service with ECP brake systems.

In paragraph (a), FRA also requires that all ECP brake systems meet the configuration management requirements contained in an industry recognized, FRA approved standard such as AAR Standard S-4270. FRA believes that configuration management of ECP brake system hardware and software components is an absolute requirement to ensure the interchangeability, interoperability, compatibility and continued proper and safe operation of ECP brake systems. Compatibility of ECP hardware and software will have a direct affect on the safety and reliability of ECP brake systems running on the Nation's railroads.

In the NPRM, FRA cautioned that the limited configuration management plan requirements in Sections 5.1 and 5.2 of AAR Standard S-4240 may not have been sufficiently robust to adequately control ECP brake system components. The more recently developed AAR Standard S-4270 eliminates this shortcoming by adequately addressing issues relating to configuration management, including a sufficient set of requirements that properly allocate the responsible party and necessary procedures to be followed by this party to assure proper management of ECP brake system software and hardware configurations.

The AAR approval process and Air Brake Systems Committee requires various procedures to ensure the interoperability and interchangeability of AAR-approved ECP brake systems and their components. These same requirements and procedures have been used for many years to successfully manage the configuration of conventional pneumatic AAR approved air brake valves. Therefore, FRA believes that responsibility for the configuration management of AAR-approved brake systems and their components should continue to reside with AAR and its Air Brake Systems Committee.

As discussed above, FRA has reviewed and approved AAR Standard S-4270 and has determined that the standard should be incorporated by reference into this final rule. In a notice issued on April 18, 2008, FRA sought comments and concerns on AAR Standard S-4270, which at that time was in draft form, and indicated that it would consider inclusion of the final draft if it was timely adopted with no substantial changes. 73 FR 21092, 94 (Apr. 18, 2008). AAR adopted and implemented Standard S-4270 on April 30, 2008, without any changes from the draft referenced in FRA's public notice dated April 18, 2008, and placed in the docket to this proceeding on April 21, 2008.

Since the NPRM was issued prior to the development of an acceptable configuration management plan standard, paragraph (c) as proposed included language delineating minimum requirements for acceptance of a subsequently submitted configuration management plan standard. Since paragraph (a) incorporates by reference AAR Standard S-4270 and provides for the submission of alternative standards under § 232.17, the extraneous text of proposed paragraph (c) has been removed from the final rule. However, FRA continues to believe that alternative configuration management plans must maintain the same minimum standards. More specifically, to receive approval in accordance with § 232.17, a configuration management plan must be structured in accordance with accepted configuration management standards and define all of the purposes, procedures, organizational responsibilities, and tools to be used for ECP brake system hardware and software configuration management including: The purpose and scope of the application; control activities to be performed; responsibilities and authorities for accomplishing the activities; implementation schedules; tools and resources for executing the plan; and periodic updating of the plan to maintain currency.

In the NPRM, FRA suggested that any submitted alternate configuration management plan be structured in accordance with accepted configuration management standards such as IEEE Std 28-1990, IEEE Standard for Software Configuration Management Plans, American National Standards Institute, 1990; or IEEE Std 1042-1987, IEEE Guide to Software Configuration Management, American National Standards Institute, 1987. The brake manufacturers, however, argue that these IEEE standards are not considered appropriate or necessary for achieving adequate configuration management control for ECP brake systems. Despite their promise to recommend alternatives, nothing on this issue was subsequently filed.

The NPRM's references to the various aforementioned IEEE standards were provided for use by the railroads in the event that AAR did not develop its own configuration management standard. As previously mentioned, AAR issued a configuration management standard, S-4270, subsequent to the initial comment period in this proceeding. FRA understands the brake manufacturers to mean that some items specified in the IEEE standards may not be applicable because they are superseded by the more restrictive standards and processes developed by the brake manufacturers. While FRA concedes that this may be true, it does not speak to the overall applicability of the IEEE standards to any alternate configuration management plan that might be submitted by any other party. FRA expects all configuration management plans to be tailored to the requirements of accepted IEEE standards or a more restrictive, proprietary, or industry-specific standard has been developed and implemented. FRA believes AAR Standard S-4270 complies with the latter expectation.

FRA continues to believe that any ECP brake configuration management plan should consider issues beyond initial approval. For instance, use of improper or out-of-date software versions for microprocessor controlled systems has been an issue in a variety of industries. Therefore, FRA continues to caution that any alternate configuration management plan should be sufficiently robust to adequately control ECP brake system components, especially as more manufacturers apply for AAR approval of ECP brake systems. Further, safety or reliability issues may dictate that hardware or software configurations be changed once ECP brake systems are put in service on a large scale in the U.S. FRA continues to encourage AAR, railroads, and manufacturers to ensure their ability to continually monitor and respond to hardware and software issues affecting ECP brake systems after initial approval.

FRA continues to believe that AAR is capable of setting appropriate configuration management standards and related approval procedures and FRA intends to rely on AAR to monitor ECP brake component approval, configuration and compatibility for systems designed and approved under its standards incorporated herein. However, FRA, in its federal oversight

role, will continue to monitor the activities of the Air Brake Systems Committee and the AAR ECP brake approval process to ensure that any safety or reliability issues that may emerge are addressed promptly and comprehensively. FRA will also issue additional configuration management requirements for the operation of ECP brake systems if, in the sole opinion of the FRA, the oversight of the AAR and the AAR Air Brake Systems Committee proves inadequate for the continued safe operation of ECP brake systems. In this case, FRA may take a variety of approaches including requiring railroads and car owners to develop their own configuration management plans for monitoring ECP brake system interchangeability, interoperability and compatibility.

In relation to the issue of ECP brake system configuration management plans, FRA received comments from BLET at the public hearing and written comments in response to FRA's notice seeking comment on AAR Standard S-4270. At the hearing, BLET stated that configuration management plans must conform to the requirements of part 236, subpart H. According to BLET, “There is a strong likelihood that the majority of the routes over which ECP will be deployed also will see the implementation of positive train control (`PTC'). Given the manner in which PTC will enforce speeds and authorities, the ECP head-end unit and its associated appurtenances will become a core element of the PTC system.” In its written comments, BLET added, “We continue to believe that—to the extent ECP-equipped trains operate on routes where PTC has been or will be installed—the ECP technology is a processor-based train control system. Braking algorithms for speed and authority enforcement for ECP-equipped trains will differ significantly from those utilized for conventionally-braked trains.”

FRA understands BLET's contention to be that, if an ECP brake system “is considered a core element of PTC system” or “is considered a train control system,” then it must comply with the configuration management requirements contained in Part 236, Subpart H, 905(b)(4). While FRA acknowledges the importance of configuration management, it does not agree that ECP brake systems must conform to the requirements of part 236, subpart H. Although ECP brakes may have a significant impact on the safety case prepared under subpart H of part 236 for train control systems, FRA does not consider the brake system, standing alone, to constitute a train control system.

The current implementation of ECP brake technology and processor based train control technology are two independent industry initiatives. FRA recognizes the potential for the future use of both technologies onboard a single locomotive and FRA looks forward to such integration. Of course, operations that contemplate using both PTC and ECP brakes in a common operation must include the ECP brake system as an integral part of the Product Safety Plan for the train control system. While the ECP brake system itself is not subject to subpart H of part 236, ECP brakes may not be utilized with processor based train control systems until the impact on their use has been included in the required analysis of the train control system under subpart H of part 236 and that analysis has been approved by FRA. Given the superior characteristics of ECP brake systems, and assuming straightforward integration with new train control systems, the use of ECP braking should be helpful in the formulation of persuasive safety case documents.

FRA acknowledges BLET's concern that “AAR's proposed S-4270 Standard is materially inferior to the other S-4200 standards,” and their strong recommendation to FRA to insist on “(1) the use of identified, scientifically-proven configuration management plans, and (2) the delineation of `bright line' triggers governing the urgency with which hardware and/or software changes must be made.” FRA further acknowledges BLET's concern regarding “[delegation] to AAR's Air Brake System Committee oversight of [ECP brake] product approval, implementation, and operations.”

In the NPRM, FRA recommended the use of acceptable IEEE software configuration management standards such as IEEE-828 and IEEE-1042 for the development of ECP brake system configuration management plans. 72 FR 50820, 50831 (Sept. 4, 2007). As BLET notes, neither of these standards are referenced in the proposed AAR S-4270 standard, and the proposed standard passes the responsibility to develop and maintain the configuration management plan for the ECP brake product to the manufacturers. FRA, however, does not believe that such actions are inconsistent with either IEEE-828 or IEEE-1042, since both standards provide for and encourage tailoring appropriate to individual products and the system developers' operational needs. For example, IEEE-828 makes the following provisions:

This standard permits significant flexibility in preparing an SCM Plan. A successful Plan reflects its project environment. It should be written in terms familiar to its users and should be consistent with the development and procurement processes of the project. To conform to the requirements set forth in other applicable standards or to accommodate local practices, a Plan may be tailored upward, to add information, or tailored to use a specified format. The Plan may also be tailored downward, omitting information required by this standard, when specific standard requirements are identified as not applicable to this project. * * * The information may be presented in the Plan in any sequence or presentation style deemed suitable for the Plans users.

Similarly, IEEE-1042 states:

The application (and thus the planning) of SCM is very sensitive to the context of the project and the organization being served. If SCM is applied as a corporate policy, it must not be done blindly, but rather should be done in such a way that the details of a particular SCM application are reexamined for each project (or phase for very large projects). It must take into consideration the size, complexity, and criticality of the software system being managed, and the number of individuals, amount of personnel turnover, and organizational form and structure that have to interface during the life of the software system being managed.

The AAR S-4720 standard, particularly in § 3.3.2, outlines the main requirements to the ECP brake system configuration management plan that are common to the requirements of the IEEE and other standards referenced in the NPRM. Section 3.3.2 additionally requires that “the manufacturer shall maintain a readily retrievable record of all software and hardware changes and make that record available to the AAR and FRA at any time.” In any event, the NPRM merely stated that FRA expected any configuration management plan to conform to an accepted standard; the IEEE standards referenced were simply provided as acceptable examples.

FRA would also like to address BLET's concern regarding the “delineation of ‘triggers’ governing the urgency of the software/hardware changes implementation.” FRA has reviewed industry practice regarding software changes and has determined that the levels contained in AAR Standard S-4270 are consistent with the IEEE 1044 and 1044.1. These standards differentiate the urgency of software and hardware implementation schedules in order to assure gradual implementation without significantly affecting operations. FRA considers the use of the three levels of software and hardware implementation strategy given in § 3.6 of S-4270 as reasonable and practically justified.

To further assure and enforce compliance of the ECP brake manufacturers' configuration management plans with the final rule and appropriate standards, FRA makes vendor and railroad compliance with S-4270 a regulatory mandate subject to regulatory oversight in paragraph (c) of this section in the final rule. AAR Standard S-4270 places the responsibility for configuration management on the brake manufacturers. Paragraph (c) of this section, however, requires the railroads implementing and using ECP brake technology to ensure that the brake manufacturers' configuration management plans comply with the existing applicable standards. FRA believes that the users of rail technologies are ultimately responsible for their safe use.

Paragraph (c) also provides for regulatory oversight of configuration management plans, which could include a review of the manufacturer's commitment and adherence to the general requirements of accepted or scientifically proven configuration management plans. Based on the allowances for customization of the configuration management standards to support a specific vendor's mode of operation, and the inclusion of FRA regulatory oversight to ensure that vendor's standards are appropriate, FRA considers the content of S-4270 standard sufficient to be incorporated by reference in this final rule.

Paragraph (d), of this section excepts a freight car or freight train equipped with ECP brakes from certain existing provisions contained in part 232. FRA recognizes that part 232 requires compliance with other AAR standards not applicable to ECP brake systems. For instance, section 232.103(l) requires compliance with AAR Standard S-469-47 (“Performance Specification for Freight Brakes”), which specifies a train's air brakes must respond to the decrease and increase of brake pipe pressure. However, ECP brake systems respond to an electronic signal, not brake pipe pressure, rendering S-469-47 inapplicable to ECP brake systems. Accordingly, paragraph (d) excepts ECP brake systems from the requirements of AAR Standard S-469-47.

In addition, GE requests that an exception be granted to certain stand-alone ECP brake systems to the AAR standards referenced in § 232.603(a)(1)-(6), where a suitable justification is provided. To this end, GE supplied proposed language to be inserted in a new paragraph of the final rule. While FRA agrees that the rules should provide for alternative standards, such flexibility is already provided in the introductory text to paragraph (a) of this section. If GE or any other potential brake manufacturer seeks to enter the marketplace with ECP brakes relying on standards other than AAR's, then it may submit alternative standards for FRA approval pursuant to § 232.17. Accordingly, a new paragraph providing for exception from the incorporated AAR standards under suitable justification is unnecessary.

Moreover, paragraph (e), provides further flexibility for the introduction of new technologies by providing for the possible exceptions from the requirements of subpart F of this part. BLET objects to exempting railroad operators from the requirements of subpart F. According to BLET, the pre-revenue service acceptance testing plan requirements set forth in subpart F provide data and other information that is necessary in order to safely regulate the technology. BLET also asserts that “FRA does not propose that an exception be granted if testing or demonstration is conducted pursuant to an AAR standard that has been incorporated by reference after being subject to public review and comment. Rather, FRA proposes a lower requirement, that the testing/demonstration standard only be FRA-recognized.” (Emphasis removed.)

Subpart F of part 232 contains general requirements for introducing new brake system technologies. More specifically, it requires a pre-revenue acceptance testing plan. As FRA views existing ECP brake system technology to be a fully mature and well-tested technology, FRA disagrees with BLET on this issue and does not believe the provisions contained in subpart F are applicable to this existing technology. When subpart F was originally added to part 232, ECP brake technology was just beginning to gain prominence. Since that time, experience with the technology is far more developed and the technology is being used on many different trains around the world. Moreover, FRA believes that requiring ECP brake systems to initially and continually comply with a FRA approved standard and to be approved in accordance with AAR's approval procedures prior to being placed in service obviates the need for existing ECP brake system technology to comply with the requirements under subpart F. Accordingly, paragraph (d)(2) provides for an exception from the requirements contained in subpart F freight trains and freight cars equipped with existing ECP brake system technology that has been conditionally or finally approved by AAR in accordance with its approval procedures prior to the effective date of the final rule in this proceeding. FRA has limited the exception to ECP brake system technologies approved by AAR as of the effective date of a final rule to provide an incentive to the industry to move the introduction of the technology along in a timely fashion.

In anticipation of future ECP brake technologies not currently contemplated within the scope of the incorporated AAR standards or not approved by AAR prior to the effective date of a final rule in this proceeding, paragraph (e) provides a procedure for introducing such technologies without going through the pre-revenue testing procedures contained in subpart F. Paragraph (e) permits a party interested in using new ECP brake system technologies or using an ECP brake system technology not approved by AAR prior to the effective date of the final rule in this matter to file a written request with the FRA seeking an exception from subpart F. FRA would expect any such request to include a comprehensive narrative statement and any evidence or facts justifying the exception of the new ECP brake technology from the testing and demonstration requirements of subpart F. The material should fully explain the testing or demonstration that will be conducted pursuant to an FRA-recognized industry standard and ensure that FRA is able to monitor such testing or demonstration. FRA's Associate Administrator may revoke the exception in writing for any reason after providing an opportunity for the affected party or parties to respond.

GE supports the adoption of proposed § 232.603(e), but recommends that “FRA clarify that ‘new technology’ does not include functionally equivalent replacement components, consistent with past practice.” To this end, GE suggests adding a “new technology” definition to part 232, clarifying this interpretation in the preamble to the final rule, or including some additional clarifying language to paragraph (e), indicating that in lieu of an FRA recognized industry standard, testing or demonstration of new technologies should be performed in an environment with a safety equivalent to that in paragraph (a).

Subpart F, as indicated in § 232.501, already addresses the issue of new technology. FRA intends subpart F to continue to apply to the introduction of new ECP brake technologies. However, as previously mentioned, the purpose of paragraph (e) is to provide a more liberal alternative to subpart F for the demonstration and testing of new ECP brake technologies subject to the

discretion of the Associate Administrator on a case-by-case basis.

GE's suggestion that the final rule include language requiring some type of adherence to an FRA approved ECP brake design standard misses the mark, since demonstration and testing may occur before any determination on design standards. Chronologically speaking, new ECP brake technologies can be tested and demonstrated under paragraph (e) “right out of the box.” Then, if the testing or demonstration results in an ECP brake technology worthy of use in revenue service, the manufacturer of that technology may need to apply for FRA approval of that technology's new design standard under paragraph (a) or (f). It appears that GE may have mixed apples (testing and demonstration) with oranges (subsequently seeking FRA approval or new alternative design standards). During the testing and demonstration phase, design standards may not even be contemplated.

Section 232.605 Training Requirements

The general training requirements for railroad and contractor employees performing the inspection, testing, and maintenance on brake systems under this part are contained in § 232.203. Paragraph (a) of this section makes clear that all of the training requirements contained in § 232.203 are applicable to ECP brake system operations and requires that all railroads operating ECP brake-equipped trains update their training, qualification, and designation programs to include provisions for these operations. Accordingly, FRA expects that railroad and contract personnel responsible for performing brake system inspections, tests, and maintenance on ECP brake systems be trained, tested, and designated in accordance with the requirements contained in § 232.203 on the ECP brake systems they will be required to inspect, test, and maintain.

Section 232.203(c) contains general requirements or elements which must be part of any training and qualification plan adopted by a railroad or contractor. FRA continues to believe that the elements contained in this section are specific enough to ensure high-quality training and broad enough to permit a railroad or contractor to adopt a training plan that is best suited to its particular operation. FRA continues to believe that the required training must provide employees with the necessary knowledge, skills, and abilities to perform the tasks required for the various types of brake systems the individual employee will be required to inspect, test, or maintain. Since FRA expects only a limited number of employees will be involved initially with ECP brake operations, a railroad or contractor may tailor its training programs only for those individuals involved with ECP brake systems, based on the tasks that employee will be required to perform on those specific systems.

Section 232.203(e) contains recordkeeping requirements, the cornerstone for training requirements accountability. FRA continues to believe that such records should be kept for employees inspecting, testing, and maintaining ECP brake-equipped freight cars and freight trains. Such documentation will allow FRA to judge the effectiveness of the training provided and will provide FRA with the ability to independently assess whether the training provided to a specific individual adequately addresses the skills and knowledge required to perform the tasks that the person is deemed qualified to perform. Moreover, requiring these records will deter railroads and contractors from circumventing the training requirements and discourage them from attempting to utilize insufficiently trained personnel to perform the inspections and tests required by this rule. The required records may be maintained either electronically or on paper in the same manner as required under section 232.203.

Paragraph (a) of this section also requires ECP brake operations to comply with § 232.203(f), which requires that each railroad or contractor adopt and comply with a plan to periodically assess the effectiveness of its training program. To ensure that affected employees receive timely, effective training relating to ECP brake technology, UTU encourages FRA to audit the training functions that are required under § 232.605. BLET agrees with UTU that FRA should reserve the right to audit such training programs and also proposes that training programs should be submitted to FRA for approval. AAR argues that the regulations should not require FRA approval of railroad training programs, since it would delay any changes that railroads might want to make.

FRA currently performs audits on the training provided to railroad employees and contractors under § 232.203. These audits examine the course content, learning objectives, testing methods, refresher training, and methods for ensuring the effectiveness of the training. FRA intends to continue to audit these training programs, including those for transportation and mechanical employees working with ECP brake operations. FRA does not require submission of training programs relating to conventional brake operations for FRA approval and does not see a need to require a submission of training programs relating to ECP brake operations. Accordingly, paragraph (a) extends this requirement to employees and contractors utilizing ECP brake operations.

In addition, FRA continues to believe that railroads and contractors should periodically assess the effectiveness of their training programs that would include an assessment of the training related to ECP brake systems. FRA continues to believe that periodic assessments may be conducted through a number of different means and each railroad or contractor may have a need to conduct the assessment in a different manner. By referencing the requirements contained in § 232.203, paragraph (a) requires that a railroad or contractor institute a plan to periodically assess its training program regarding ECP brake systems and permits the use of efficiency tests or periodic review of employee performance as methods for conducting such review. While FRA continues to believe that many railroads are capable of assessing the quality of the training their employees receive by conducting periodic supervisory spot checks or efficiency tests of their employees' performance, FRA also believes that on larger railroads the periodic assessment of a training program should involve all segments of the workforce involved in the training.

Paragraph (b) of this section requires each railroad to appropriately amend or modify its operating rules to include safe train handling procedures when utilizing ECP braking systems. The developed operating rules should address the equipment and territory operated by the railroad. FRA insists that training on proper train handling procedures is essential to ensuring that locomotive engineers can properly handle their trains with or without ECP braking systems. FRA also continues to believe that it should not specify the specific knowledge, skill, and ability criteria that a railroad must adopt into its locomotive engineer training program. Given the considerable differences among railroads, FRA believes that each railroad is in the best position to determine what these criteria should be and what training is necessary to provide that knowledge, skill, and ability to its employees operating ECP brake-equipped trains. However, to ensure that the railroads and contractors provide and complete training, paragraph (c) of this section

requires each to adopt and comply with such criteria and training procedures and to incorporate them into its locomotive engineer certification program required by 49 CFR part 240. In the final rule, the text of paragraph (c) has been modified from the proposed text for clarification purposes.

Section 232.607 Inspection and Testing Requirements

Except for transfer trains, the existing part 232 regulations require that each train operating with conventional brake systems receive a Class I brake test at its initial terminal and when certain events occur en route, a Class IA brake test every 1,000 miles, and Class III brake tests when the train consist continuity is interrupted. When operating as an extended haul train, the existing regulations require that a Class I brake test be performed at the train's initial terminal and at the train's 1,500-mile location, if operating further than 1,500 miles. In addition, under certain circumstances, cars and solid blocks of cars are required to receive either a Class I or a Class II brake test when they are added to a train. Each of these inspections is expensive and time-consuming.

An ECP brake system's self-monitoring capabilities, fail-safe operation, and enhanced safety and performance provide railroads the ability to reduce the number of physical inspections on a train. In a letter dated January 26, 2007, filed in the related ECP brake waiver proceeding, BNSF and NS assert that “[t]his performance-based technology supercedes [sic] the need for a scheduled inspection based on the amount of mileage that can be accumulated within the boundaries of the U.S. rail system.” Docket No. FRA-2006-26435. Similarly, in the same docket, two ECP brake manufacturers, NYAB and Wabtec, state that when an ECP brake system enters “Run” mode, it provides diagnostics, continuous monitoring, and fault reporting to the locomotive display. According to the manufacturers, ECP brakes provide to the locomotive monitoring and feedback of the most important brake data and “while it is not economically practical to monitor for all potential brake system failures, the increased level of monitoring and data reporting should allow safely extending the distance between inspection points, coupled with revised railroad procedures.” Letter dated January 29, 2007, in Docket No. FRA-2006-26435.

FRA is convinced that if a train is properly and thoroughly inspected, with all of the defective conditions being eliminated, then the train is capable of traveling distances much greater than 1,000 miles between brake inspections. FRA's experience with extended haul trains over the last four years has established that trains with conventional pneumatic brake systems that are inspected by highly qualified individuals can safely operate up to 1,500 miles between brake inspections. FRA is not aware of any significant incident or derailment related to a brake or mechanical component failure on an extended haul train. Accordingly, in paragraph (h) of this section, FRA excepts trains operating exclusively in ECP brake mode from the Class IA and Class II brake inspections currently required under §§ 232.207 and 232.209. Paragraph (h) also excepts such trains from en route Class I inspections required under § 232.205(a) and (b). Various comments were submitted relating to these exceptions of en route brake inspections. Since the exceptions in paragraph (h) substantially relate to the other paragraphs of section 232.607, we will discuss them as appropriate below.

Paragraph (a) requires continued compliance with § 232.205(c)—which describes the tasks and requirements of a Class I brake test—for an ECP brake-equipped train at its initial terminal. To offset safety concerns regarding the exceptions to intermediate inspections, FRA requires that Class I brake tests performed at initial terminals on ECP brake-operated freight trains be performed by a qualified mechanical inspector (QMI). FRA continues to believe that a Class I brake test performed on a train at its initial terminal needs to be as in-depth and comprehensive as possible and, thus, should be performed by an individual possessing the knowledge not only to identify and detect a defective condition in all of the brake equipment required to be inspected, but also to recognize the interrelated workings of the equipment and the ability to trouble-shoot and repair the equipment. Similarly, FRA will require that all of the mechanical inspections required to be performed on a train at its initial terminal be conducted by an inspector designated pursuant to 49 CFR 215.11 in order to ensure that all mechanical components are in proper condition prior to the train's departure.

FRA believes that the regulatory relief provided by paragraph (h) of this section is justified by the increased level of safety provided by ECP brake technologies and the requirement under paragraph (a) that a Class I brake test of car equipped with ECP brakes be performed by a QMI at its initial terminal. The exceptions provided in paragraph (h), in conjunction with the requirements of paragraph (a), would allow most trains equipped and operated with ECP brakes to travel to their destinations without stopping for any required intermediate inspections. The regulatory relief provided by this elimination of intermediate brake tests will significantly reduce operating and train delay costs.

In its comments, UP argues that it is not necessary to utilize a QMI to perform a Class I brake inspection for movements up to 3,500 miles. UP instead proposes that a qualified person (QP) perform Class 1 inspections for movements up to 3,500 miles and that a QMI be required to perform inspections for longer movements. UP also notes that some trains operated with ECP brakes may originate at a point where a QMI is not present and where train crews containing a QP may perform the inspections. AAR also objects to the requirement in paragraph (a) that Class I inspections on ECP brake operated trains be performed by a QMI. AAR asserts that the QMI requirement is more stringent than the existing inspection requirements for trains equipped with conventional brakes. According to AAR, since a QMI is not present at all initial terminals, requiring a QMI to perform Class I brake inspections would discourage railroads from implementing ECP brake systems.

BRC supports paragraph (a), stating that a QMI will help ensure the proper condition of ECP brake systems prior to departure. According to BRC, the leeway requested by AAR and the carriers to designate any person as qualified is premature and should not be considered until data can be provided showing that inspections by a QMI are unnecessary. BLET wholeheartedly concurs that each Class I brake test at an initial terminal should be performed by a QMI. According to BLET, the industry's objection is without merit and its two-standard proposal will produce an oversight nightmare.

FRA agrees that, at this time, a two-tiered approach requiring a QMI for only some Class I inspections of ECP brake operations would result in significant monitoring and enforcement difficulties. In any event, as discussed in more detail below, the final rule will only allow freight trains and freight cars operated with ECP brakes to operate to their destination, not to exceed 3,500 miles, or up to 3,500 miles for unit or cycle trains, before receiving an additional Class I brake inspection. Accordingly, there will be no “longer movements” between Class I brake

inspections that would allow for such a two-tiered approach.

FRA also believes that the railroads' concerns relating to QMIs are without merit. FRA is not mandating the railroads to operate with ECP brake systems. Thus, if the railroads opt to implement such systems, they will need to adjust their operations accordingly. FRA already requires that a QMI perform Class I brake inspections on extended haul operations, which are limited to 1,500 miles between such inspections. By more than doubling the allowable distance, FRA insists that there is an even greater need to require that a QMI perform the Class I brake tests on operations traveling further than the currently allowed distances. Moreover, the railroads' concerns are further mitigated by the reduction of the number of Class I brake inspections required en route. Since a QMI is required for extended haul operations at only 1,500 miles, it is unclear why AAR asserts that requiring the use of a QMI for ECP brake operations at 3,500 miles would be more stringent.

In light of the significant benefits provided by the extension of allowable distance between Class I inspections to 3,500 miles, FRA does not believe that requiring a QMI to perform a Class I brake test on for an ECP brake operation would discourage implementation of this technology. The railroads have had little difficulty in ensuring QMI placement at facilities where Class I inspections are required on extended haul trains. Since the number of Class I inspections for an ECP brake operation will be less than those for a conventional brake operation in extended haul status, FRA does not foresee this requirement becoming sufficiently burdensome to effectively discourage the implementation of ECP brake system technology.

In paragraph (b), FRA permits a train operating in ECP brake mode to travel up to 3,500 miles or to its destination, whichever is less, without any additional brake inspections. FRA believes that 3,500 miles allows virtually all ECP brake operated trains to travel to their respective destinations and provides for coast-to-coast travel. FRA also bases this mileage amount on the fact that foundation brake rigging and brake shoes will safety operate this distance and redundant intermediate inspections will not necessarily increase ECP brake system safety. Because many unit or cycle trains operate in a continuous loop with multiple loading and unloading locations, FRA has not included the destination of the train as a limiting factor for them. FRA is specifically making this distinction in order to prevent misinterpretation of the final rule as it relates to unit or cycle trains. As these trains may have multiple destinations, a strict application of destination could result in Class I brake tests being performed more frequently than intended by this final rule. Thus, in paragraph (b)(2), FRA treats unit and cycle trains differently by only requiring them to receive Class I brake inspections by qualified mechanical inspectors at least once every 3,500 miles. To be clear, under the final rule, no freight car or freight train equipped with ECP brakes would be allowed to travel more than 3,500 miles without receiving an additional Class I brake inspection by a qualified mechanical inspector.

UTU encourages FRA to continue to consistently regulate the need for mechanical inspections and repairs. UTU asserts that the self-monitoring feature of ECP brake equipment will have no effect on monitoring the mechanical functions of the freight car involved. According to UTU, ECP brake equipment will not monitor the condition of draft gear, brake shoes and hangers, coupling devices, safety appliances and grab irons, sill steps, springs, hopper doors, and the multitude of items a normal mechanical inspection is designed to check. UTU also asserts that a well trained and qualified mechanical inspector must not be removed from the safety equation because of advanced brake equipment that is only designed to improve the braking functions.

BLET agrees, asserting that continuous monitoring capability is not quite as robust as FRA claims. According to AAR Standard S-4260, § 3.5.4.2, “CCDs with a low or missing battery are counted as inoperable, but may not be displayed as inoperable until the total inoperable reaches less than 90% with trainline power OFF, or less than 85% with trainline power ON, at which time a penalty brake application will be commanded.”

TWU similarly argues that ECP braking does not have capabilities to perform the safety critical inspections indicated in FRA Technical Bulletin MP&E 98-59. In contrast, says TWU, ECP brake systems, as designed today, while having the ability to monitor certain aspects of the braking system, are not designed or equipped to monitor or detect defects on most equipment of a train braking system, in particular the complex brake rigging systems on the various types of equipment. According to TWU, 122 of the potential 127 brake-related defects (96%) are not detectable by ECP brake monitoring, making clear that the advantages of real-time monitoring are both overstated and misleading. BRC asserts that the ECP brake system technology cannot detect 65 defects. Moreover, TWU states that FRA accident data indicates that the highest percentage of accidents are caused by brake-related mechanical defects not monitored by ECP brake systems.

TWU further asserts that, in addition to a serious decrease in the level of safety based on brake system considerations, the reduction in inspection frequency will seriously decrease the level of safety as it relates to other mechanical systems and components. “There should be no question that reducing the number of inspections will reduce opportunities to detect defective equipment. The reduction in frequency of inspections will also reduce opportunities for detecting bent, broken, loose, or missing safety appliances.” TWU points out that FRA previously noted that “railroads have not conducted the excellent initial terminal inspections that were contemplated in 1982, when FRA extended the 500-mile inspection interval to 1,000 miles.” (Citing 66 FR 4113 (Jan. 17, 2001)). TWU also claims that from January 2005 to July 2007, FRA accident data includes 24 derailments, 2 collisions, and 3 other type of accidents resulting from mechanical defects, including “Tiedowns, doors, etc.” TWU asserts that a comprehensive mechanical inspection is critically important, citing FRA Technical Bulletin MP&E 98-57, which states, “In order to conduct a proper Freight Car Safety Standards inspection, both sides of a car must be inspected.”

AAR counters by questioning the significance of the brake rigging issue. According to AAR, from 1990 to 2006, “the industry averaged five mainline accidents attributable to brake rigging down and dragging,” identified by FRA cause code E07C. In addition, says AAR, U.S. railroads have 2,415 dragging equipment detectors placed across the country, which provide immediate radio feedback to train crews.

FRA understands the concerns relating to the ECP brake system's self-monitoring limitations. FRA acknowledges that the ECP brake system developed under the applicable AAR design standards does not monitor a number of brake components. However, FRA believes that the labor unions' concerns, while relevant, do not take into account a number of factors. By requiring a QMI to perform a Class I brake inspection at initial terminal on an ECP brake operated freight train, FRA expects a reduction in all en route brake

defects. While performing a Class I brake inspection every 1,000 miles would provide more opportunities to detect defective equipment, FRA believes that such detection is limited to only obvious en route defects and that an inspection by a QMI at initial terminal will significantly reduce those defects. Based on its experience with extended haul operations, FRA feels that a good, quality inspection conducted by a QMI at the initial terminal will ensure that the items not monitored by the ECP brake system computer will safely travel a distance of 3,500 miles.

For instance, in FRA's experience, en route Class IA brake inspections performed subsequent to Class I brake inspections performed at initial terminals by QPs have significantly higher defect ratios than those found at en route Class I brake inspections performed on extended haul operations that received an earlier Class I brake inspection performed by a QMI. As indicated in Technical Bulletin MP&E 07-01, issued on April 3, 2007, in addition to the numerous regular inspections of extended haul operations, FRA performed several formal week-long audits at various locations to determine the railroads' compliance with the regulations and whether the quality of the inspections and tests would justify allowing the inbound inspections and record-keeping requirements to sunset in April of 2007. Most of the non-compliance identified during the audits included the railroads' inability to create, maintain, and produce the required records of defects found during the inbound inspections. It was also noted that the railroads occasionally failed to perform the necessary inspections on cars picked-up or set-out of extended haul trains on certain corridors. Actual defective conditions found at inbound inspections were minimal.

FRA further believes that any remaining concerns relating to en route defects are offset by the ECP brake system's other significant safety benefits, including increased train control, a reduction of in-train forces, shorter stopping distances, and its self-monitoring capabilities. Moreover, while some commenters provided data on what portion of brake parts remain unmonitored by the ECP brake system, they did not establish the relationship between those parts and the quantity and significance of defects found and derailments caused. FRA continues to believe that the ECP brake system monitors the more crucial aspects of the brake system.

FRA believes that TWU's references to freight car inspection standards and guidance are misplaced. Although freight car defects may be incidentally detected during a Class I brake inspection, part 232 does not govern such issues. Freight car defects should still be found when cars are added to a train en route and when they are otherwise required to receive a freight car inspection under part 215.

FRA also continues to believe that ECP brake system self-monitoring is sufficiently robust. BLET's citation of § 3.5.4.2 of AAR Standard S-4260 is misplaced. Section 3.5.4.2 sets the limit for the number of CCDs that report a low or missing battery. This does not reference or mean inoperable CCDs. All CCDs may remain operable when reporting low or missing batteries. The ECP brake system is powered by the train line and § 3.5.4.2 only indicates that a back-up battery is necessary to cover for a temporary loss of power. Accordingly, to have a battery malfunction is not critical to train brake system operation. The purpose of the limitation in § 3.5.4.2 is to eliminate the possibility of train line power disappearing when back-up battery power is unavailable.

FRA recognizes and appreciates the use of additional wayside detection equipment, which AAR claims should reduce concerns relating to brake rigging malfunctions. However, FRA has not had an opportunity to review that equipment with respect to key attributes such as network coverage, sensitivity, and availability, and does not require use of that equipment. Accordingly, FRA does not feel comfortable relying on such unreviewed technology, which can be removed or modified at any time. However, FRA does recognize that the combination of on-board and wayside monitoring does provide an additional layer of safety for all train operations and that the use of such technologies may offer opportunities for further liberalization of visual inspections requirements in the future, given proper safeguards.

UP believes that the allowable distance between brake inspections using ECP brake technology should be extended to 5,000 miles, instead of the 3,500 miles proposed by the FRA, in order to provide a significant incentive for the railroad industry to implement ECP braking in high-mileage services. For example, says UP, an intermodal train with ECP braking could be operated round-trip between Chicago and any of the west coast ports within such a 5,000 mile limit. According to UP, a 5,000 mile limit for ECP brake operated trains between Class I brake inspections with no intermediate inspections would enable the operation of sets of intermodal equipment in very high-mileage, high-utilization, rapid turnaround service.

To support its request, UP points to the success of a previous operation. In April 2004, UP operated a round-trip test train 4,400 miles at a maximum speed of 74 MPH between Chicago and East Los Angeles. Based on that test's findings, UP and CSX jointly operated one pair of high-speed trailer on flat car (“TOFC”) trains for UPS between Kearney, New Jersey and East Los Angeles, California, a trip that took 59 hours. While there was some economic penalty involved in this dedication of equipment, UP says that it proved that locomotives and cars could be selected, maintained and operated in high-speed, high-mileage transcontinental freight service. In addition to the Class I inspections performed at Kearney and East Los Angeles, three Class 1A inspections occurred en route. UP asserts that a 3,500 mile limit would have been extremely valid and useful. According to UP, the elimination of 3 intermediate brake inspections of 40 minutes each could have potentially reduced overall one-way transit time by 120 minutes or 2 hours. An ECP brake operated train resulting in the same running time as a conventional brake operated train would require a lower operating speed and would have reduced fuel consumption and exhaust emissions.

AAR also supports a higher limit of 5,000 miles between Class I inspections, asserting that it would be more consistent with FRA's objective in this proceeding to facilitate conversion to ECP brake technology and provide regulatory relief without adversely affecting safety. According to AAR, a 5,000 mile limit would facilitate the efficient operation of intermodal trains in high-mileage, rapid turn-around service. AAR claims that there is no technical justification for setting the limit at 3,500 miles instead of 5,000 miles given the capability of ECP systems to monitor the critical functions of the air brakes.

BRC supports paragraph (b), stating that the proposed distance of 3,500 miles is “more than generous.” According to BRC, AAR and the carriers have not provided real evidence that the safety benefits offered by ECP brake technologies will offset any of the numerous safety risks that the technologies cannot detect over long distances. BRC asserts that without such data, the railroads' request for a 5,000 mile allowable distance between Class I

brake inspections should not be considered at this time.

After consideration of all the comments provided and based upon existing information available to the agency, FRA is not convinced that the allowable distance for ECP brake operations should exceed 3,500 miles between Class I brake inspections. FRA believes that an extension of the allowable distance to 3,500 miles is justified by the increased safety promised by ECP brake technology and provides a suitable incentive for railroads to implement and use ECP brake technology. While FRA supports the railroads' interest in operational and fuel efficiency, FRA believes the extension to 3,500 miles provides such efficiency. Moreover, based on its experience and the lack of safety data supporting a 5,000 mile allowable distance between Class I brake inspections for ECP brake operations, FRA does not feel comfortable further extending the allowable distance limit at this time. The only example provided by UP was a 4,400 mile joint operation with CSX that received three Class 1A brake inspections while en route. Although such demonstrations, with proper documentation, are helpful, acquisition of further experience will be needed to achieve confidence in less restricted longer hauls.

AAR and UP also commented on FRA concerns relating to brake shoe wear. AAR claims that brake shoe wear should not be a concern in ECP brake operations moving with up to 5,000 miles between brake inspections. According to AAR, ECP brakes reduce brake shoe wear and the AAR condemning thickness of 3/8” provides an ample safety margin over a 5,000 mile run. UP stated that it would consider establishing its own minimum brake shoe criteria to properly configure the train for the entire round trip.

FRA appreciates UP's offer to consider establishing its own minimum brake shoe criteria for trips involving more than 3,500 miles between Class I inspections. However, FRA cannot rely on that voluntary offer, which would apply only to one railroad and could be withdrawn at any time. In any event, FRA continues to find cars with brake shoes that are well past the brake shoe replacement condemning limits for trains equipped with conventional brakes. On some trains not permitted to travel beyond 1,500 miles between Class I brake inspections, brake shoes have been found worn into the backing plate. Accordingly, FRA does not feel comfortable at this time permitting trains to operate more than 3,500 miles between comprehensive brake inspections until more data can be obtained to support such an initiative.

Currently, no extended haul train is permitted to travel more than 1,500 miles without receiving another comprehensive brake inspection. For trains equipped with ECP brakes, FRA more than doubles the currently allowed distance to 3,500 miles. FRA acknowledges that in the related proceeding, Docket No. FRA-2006-26435, the Safety Board provided for the movement of trains equipped with ECP brakes up to 3,500 miles. During the pendency of this rulemaking, FRA closely monitored those trains' operations and collected information on the equipment operated in those trains. FRA reserved the right to make appropriate modifications in the final rule based on any further data then available. Since cars equipped with ECP brakes have only operated for a limited time since the recent issuance of the waiver under Docket FRA-2006-26435 and are not typical of those in the general fleet with respect to the age of components, FRA has not received any data convincing it to modify the rule as proposed in the NPRM. Accordingly, paragraph (b) provides for a train operated with ECP brakes to travel to its destination, not to exceed 3,500 miles, between brake inspections.

FRA acknowledges, however, that notwithstanding the proposed allowance of a train equipped and operated with ECP brakes to travel up to 3,500 miles without an additional brake inspection, instances exist where certain trains would require the performance of a Class I brake inspection en route. For instance, the regulations governing operations utilizing conventional brake systems require that certain tests be performed when a car is off a source of compressed air for more than 4 hours. FRA acknowledges that an ECP brake-equipped train's on board diagnostics reduce concerns relating to cars remaining off air for extended periods of time. Accordingly, in this proceeding's NPRM, FRA proposed to extend the allowable off-air period to 24 hours. For the purposes of organizational clarity, the final rule includes the off-air requirement in paragraph (b).

BLET opposes the 24-hour off-air limitation. According to BLET, the allowable off-air period should remain at 4 hours and the Class I brake inspections required on ECP brake operated trains after an off-air period exceeding 4 hours should be performed by a QMI, not a qualified person.

AAR, UP, NYAB, and Wabtec all assert that the allowable off-air period should be extended to 120 hours (five days). According to UP, providing for a 120 hour off-air period will be especially relevant for equipment such as grain hoppers and coal cars in unit train operations serving grain elevators or electrical generating plants, where intact train sets may be parked for several days awaiting either loading or unloading. UP further asserts that the self-diagnostic capability of ECP braking systems, with results displayed in the locomotive cab upon powering-up the ECP train line cable, will enable this to occur without compromising safety. Moreover, being off-air for up to 120 hours should not result in any measurable or visually identifiable deterioration of the non-ECP brake components in the braking system. The ECP brake manufacturers see no technical or safety issues with extending the allowable off-air period to 120 hours and state that, when the ECP brake system initializes, self testing will verify the car is ready for service, including the battery charge status.

FRA believes that an expansion of the time allowed off-air for ECP brake operations is justified based on the capabilities of ECP brake systems or the combination of those capabilities and protection against vandalism. Accordingly, FRA will require under paragraph (b) that an en route Class I brake inspection be performed by a qualified person if a train operating in ECP brake mode is off air for more than 24 hours. However, if such a train is located within an “extended-off-air facility,” as more fully described below, the time limit is extended to 80 hours. FRA continues to believe that dangers, although reduced, remain when an ECP brake-equipped train remains off air for too long. Thus, the final rule retains the proposed off-air time limit of 24 hours since cars moving in service generally have a dwell time of 24 hours or less and this limit provides sufficient flexibility while allowing the industry to move equipment without impacting timely inspections and maintaining an acceptable level of safety.

In light of the comments filed in this proceeding and upon further internal deliberation, FRA believes that extending the off air requirement to 80 hours for trains left in extended-off-air facilities effectively ensures the safe operation of ECP brake systems while providing suitable flexibility for certain operations. FRA recognizes that additional flexibility may be reasonable when a freight train or freight car operated with ECP brakes is left at a protected location controlled by the shipper or consignee and not accessible to the railroad or potential vandals. For instance, a train or car equipped with ECP brakes may be dropped off at a

consignee's plant on one morning and will be inaccessible to the railroad for several days, such as over the weekend or a holiday.

Since railroads may not be able to pick up the equipment from the extended-off-air facility immediately when it opens, FRA believes that some additional operational flexibility should be provided during this time. FRA also recognizes that providing a limited number of hours after the opening of the facility on a given day may result in enforcement issues when attempting to determine the actual number of hours the train may have been off air or in the facility.

Accordingly, the final rule provides for the retrieval of the equipment up until the close of business on the fourth day it is at the facility. Assuming the extended-off-air facility maintains an 8-hour work day, this would provide a time span of up to 80 hours in that facility. For instance, FRA believes that the 80-hour time differential between the facility opening on Friday morning and closing on the directly subsequent Monday provides suitable flexibility for such operations.

From a safety standpoint, FRA believes that an 80-hour off-air limitation is justified if the train is left in an extended-off-air facility. FRA previously expressed its belief that in certain circumstances the length of time that equipment is removed from a source of compressed air can impact the integrity and operation of the brake system on a vehicle or train. Particularly, FRA indicated that the potential for vandalism may be high due to the location where equipment is left standing.

See

66 FR 4122 (Jan. 17, 2001). While a train remains off air for any period of time, it may be unattended, providing an opportunity for vandalism. FRA continues to believe that the potential for vandalism is one of various factors justifying an off-air limitation.

If steps are taken to substantially reduce the potential for vandalism, however, FRA believes additional flexibility is justified. Thus, if a freight train or freight car operated with ECP brakes is at an extended-off-air facility and is not accessible to the carrier or potential vandals, FRA believes an 80-hour off-air limitation is warranted. For the purposes of this final rule, an extended-off-air facility is a private location controlled and access-restricted by a sole shipper or consignee. The location must be suitably designed to effectively and significantly reduce the possibility of vandalism. For instance, a suitably fenced-in power plant with sufficient entry-prohibitive security would suffice.

Also for the purposes of this final rule, the times the equipment enters and departs the extended-off-air facility shall presumptively be when the off-air time period begins and ends, respectively. Otherwise, enforcement would be difficult, since FRA would be unable to ascertain when a train or car went off and on air within the restricted area. This presumption, however, may be rebutted with evidence showing when the equipment actually went off air and when it was reconnected to an air source.

For trains operating in ECP brake mode and off air for more than 24 hours, the Class I brake inspection may be performed by a qualified person. FRA acknowledges that while a qualified mechanical inspector must be stationed at each route's initial terminal, it is not reasonable or feasible at this time to require one at each location a train operating in ECP brake mode is off air for more than 24 hours, because many of those locations will be unpredictable. Requiring a qualified mechanical inspector at each point a train is off air for more than 24 hours would likely result in a significant disincentive for a railroad to equip its trains with ECP brake systems.

FRA also intends for these requirements to apply to trains operating in ECP brake mode, located at their initial terminals, and off air for more than 24 hours without the train consist being changed. In other words, under paragraph (b), if a qualified mechanical inspector performs a Class I brake test on a train operating in ECP brake mode at the train's initial terminal and that train then goes off air for more than 24 hours before departing from the initial terminal, another Class I brake test must be performed prior to departure. However, FRA believes that requiring a qualified mechanical inspector at an initial terminal to perform a Class I brake test twice on the same train with unmodified consist would be unnecessary and possibly too onerous. FRA does not expect this situation to occur often, since trains rarely sit off air for more than 24 hours after receiving a Class I brake test. The train will not have traveled at all, but if the same train spent 24 hours off air after traveling 500 miles, a Class I brake test by a qualified person would suffice. Thus, the second Class I brake test may be perform

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