[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Proposed Rules]
[Pages 3375-3376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1167]



[[Page 3375]]

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229, 231, and 232

[FRA Docket No. PB-9, Notice No. 4]
RIN 2130-AA73


Power Brake Regulations

AGENCY: Federal Railroad Administration (FRA).

ACTION: Extension of comment period.

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SUMMARY: By notice of proposed rulemaking (NPRM) published on September 
16, 1994 (59 FR 47676) and a subsequent notice published on October 20, 
1994 (59 FR 52953), FRA established a deadline for the submission of 
written comments of January 18, 1995. Due to the strong objections 
raised by a large number of commenters at the six days of public 
hearings held on the NPRM, FRA has determined that it will defer action 
on the NPRM for a short period, leave the docket open until further 
notice, and establish deadlines for the submission of alternative 
approaches regarding any of the passenger and freight service issues 
and initial comments on FRA's NPRM. After FRA has considered any 
alternative approaches or initial comments on the NPRM submitted in 
accordance with the established deadlines, FRA will determine how it 
will proceed in this matter and issue a subsequent notice detailing 
that determination.

DATES: Written Comments: The date by which alternative approaches must 
be received is February 27, 1995 for passenger service issues and April 
1, 1995 for freight service issues. During these periods other comments 
on specific requirements contained in the NPRM will also be considered. 
If FRA receives meaningful and specific alternative approaches, FRA 
intends to provide interested parties with a more extensive comment 
period in order to further discuss and develop the alternatives. 
However, if FRA receives alternative approaches lacking in detail or 
substance, FRA reserves the right to establish a somewhat limited final 
comment period on the NPRM and move rapidly toward development of a 
final rule.

ADDRESSES: Written Comments: Written comments should identify the 
docket number and the notice number and must be submitted in triplicate 
to the Docket Clerk, Office of Chief Counsel, Federal Railroad 
Administration, 400 Seventh Street, SW., Room 8201, Washington, DC 
20590. Persons desiring to be notified that their written comments have 
been received by FRA should submit a stamped, self-addressed postcard 
with their comments. The Docket Clerk will indicate on the postcard the 
date on which the comments were received and will return the card to 
the addressee. Written comments will be available for examination, both 
before and after the closing date for comments, during regular business 
hours in room 8201 of the Nassif Building at the above address.

FOR FURTHER INFORMATION CONTACT: Rolf Mowatt-Larssen, Chief, Motive 
Power and Equipment Division, Office of Safety, RRS-14, Room 8326, FRA, 
400 Seventh Street, SW., Washington, DC 20590 (telephone 202-366-4094 
or 202-366-9186), or Thomas Herrmann, Trial Attorney, Office of the 
Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 20590 
(telephone 202-366-0628).

SUPPLEMENTARY INFORMATION:

Freight Service Issues

    FRA has sought to develop revised power brake regulations that work 
well in the context of contemporary railroad operations, advancing 
safety without imposing unnecessary burdens. If possible, such 
regulations should be structured in such a way as to promote compliance 
with the Freight Car Safety Standards and the Safety Appliance 
Standards, as well. FRA has noted that particular care should be 
exercised if train brake-test distances are to be lengthened, since the 
frequency with which cars will be subject to inspection for all 
purposes will inevitably be reduced. The NPRM also sought to avoid poor 
power brake performance in the future by insisting that the industry's 
innovative programs for repair track/single car tests become an 
enforceable baseline for periodic attention to the air brake systems on 
individual cars.
    At the public hearings, representatives of the railroad companies 
expressed strong objections to the NPRM and asked for its withdrawal. 
The railroads were joined by major shippers, who feared delays and 
additional cost. Representatives of the Brotherhood of Railway Carmen 
supported the thrust and general intent of the NPRM but expressed the 
view that carriers would avoid its requirements by exploiting what they 
viewed as loopholes in the proposal.
    It is apparent that many of the comments lodged in the hearing 
process were based on a serious misunderstanding of the intended thrust 
of the regulatory proposal. Railroad witnesses, for instance, expressed 
the view that the NPRM would require all trains to be operated no more 
than 500 miles between Class 1 brake tests. The proposed performance-
based criteria (for operating significantly longer distances than now 
permitted) were apparently judged to be so onerous as to offer no 
alternative. That was not the intent of the proposal. However, railroad 
commenters were not persuaded by the agency's reassurances on this 
point in the preamble to the NPRM and during the hearing process.
    Whatever the basis of commenters' response to the NPRM may have 
been, it is clear that the NPRM was not as successful as FRA had hoped 
in eliciting constructive comments on freight issues. Further, FRA 
agrees with comments of the Brotherhood of Railway Carmen that current 
abuse of the 1,000-mile inspection could very well be repeated under 
the structure of the proposed rule (with 500-mile tests being conducted 
by train crews, perhaps at frequently shifting locations so as to avoid 
effective oversight by FRA).
    The railroad companies, through the Association of American 
Railroads (AAR) and The American Short Line Railroad Association 
(ASLRA), have urged that FRA withdraw or hold in abeyance the NPRM and 
pursue a collaborative rulemaking process such as a negotiated 
rulemaking. Given the statutory timetable established for this 
proceeding, this is a request that should more appropriately have been 
made immediately following the workshops conducted in February and 
March of 1993, which themselves were convened to elicit dialogue and 
suggestions regarding the content of the agency's proposal. 
Nevertheless, FRA continues to welcome participation in the development 
of these regulations.
    FRA has been advised that representatives of rail labor and the 
railroads will explore whether they can identify a common basis for 
undertaking discussion with FRA regarding development of an alternative 
rulemaking proposal. In order to facilitate those consultations and 
receipt of concrete approaches from any other interested party, FRA 
will defer action on the NPRM for a short period. The docket will 
remain open until further notice.
    FRA will expect firm, detailed submissions from the parties not 
later than April 1, 1995, setting forth a statement of principles and 
detailing alternative approaches which can form the basis for further 
discussion. These submissions should identify any underlying data used 
to develop the alternative approaches and preliminary estimates 
regarding the economic impact of any approach. Upon receipt of 
[[Page 3376]] such submissions from the AAR, ASLRA, and the principal 
labor organizations (or a filing from any other party offering 
alternative approaches), FRA would then evaluate which course of action 
to take. Among the options available to FRA are the following:\1\

    \1\FRA does not at this time believe that it would be practical 
to conclude this rulemaking within a reasonable period as a formal 
negotiated rulemaking. The conduct of a negotiated rulemaking 
requires establishment of a Federal Advisory Committee, which 
involves significant lead time. Where outside facilitation is 
employed, the process also involves cost that must be accommodated 
within strict limitations imposed on total Federal Advisory 
Committee expenditures under the Department of Transportation and 
Related Agencies Appropriation Act, 1994. Also it is unclear that a 
committee of workable size could be formed that would adequately 
represent the interests of all parties (e.g., shippers, car owners, 
existing equipment manufacturers, small suppliers, several rail 
labor organizations, and railroads with varying characteristics). 
Finally, based upon the positions of the principal parties to date, 
FRA questions whether complete agreement can be reached on issues 
that have so long divided the industry. The fact that a process 
under the Negotiated Rulemaking Act is not practicable, however, 
does not exclude the use of less formal procedures providing free 
access by all interested parties.
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    1. Initiate a public regulatory conference to discuss development 
of one or more alternative approaches.
    2. Without further proceedings, issue a supplemental notice 
incorporating the alternative approaches submitted by the parties and/
or developed by FRA.
    3. Establish a new final date for submission of comments on the 
original NPRM, after which a final rule would be issued.
    If parties submit alternative approaches which lack the substance 
for producing further discussion or development, FRA may act in 
accordance with the third alternative and provide a relatively short 
comment period and move this proceeding toward the issuance of a final 
rule. However, given the objections expressed to the NPRM, FRA would 
prefer to act in a manner consistent with the first or second of these 
alternatives. If possible, safety regulations should be structured to 
meet with the general acceptance of regulated entities. This enhances 
materially the likelihood that good compliance will result and offers 
further assurance than unnecessary burdens have not been imposed.
    However, FRA wishes to emphasize that completion of this proceeding 
and issuance of final rules remains a very high priority. By law, a 
final rule was to have been issued not later than December 31, 1993.
    FRA also stresses that FRA currently does not intend to defer 
implementation of the requirement for 2-way end-of-train telemetry 
devices (2-way EOTs) beyond an effective date of December 31, 1997, as 
contemplated by the Congress, for any main line freight train operating 
at greater than 30 miles per hour or operating in mountain grade 
territory on a Class 1 railroad. The Rail Safety Enforcement and Review 
Act provided that 2-way EOTs ``acquired for use on trains'' prior to 
the date of promulgation of the final rule must be ``grandfathered'' 
(deemed to comply with any final rule). 49 U.S.C. Sec. 20141. 
Accordingly, carriers should have little reason to complain. Indeed, 
railroads should already have begun to make incremental purchases in 
order to avoid shortages approaching the effective date.
    The need for carriers to acquire and utilize 2-way EOTs was 
underscored when, on December 14, 1994, an Atchison, Topeka and Santa 
Fe Railway intermodal train experienced insufficient braking effort 
descending from the Cajon Pass. The Santa Fe train collided with a 
Union Pacific Railroad train near Victorville, California, seriously 
injuring two employees and extensively damaging railroad and shipper 
property. Although the accident is under investigation, every present 
indication suggests that presence of a 2-way EOT would have prevented 
this occurrence. The accident occurred just after an Amtrak passenger 
train cleared the main line. Although the Santa Fe intends to institute 
use of 2-way EOTs on its trains over this territory, similar safety 
exposure exists elsewhere on the rail system. As Canadian railroads 
have already done, U.S. railroads should be moving to take advantage of 
this technology, beginning with trains required to negotiate heavy, 
long grades.

Passenger Service Issues

    Comments on the passenger safety elements of the NPRM presented a 
stark contrast to those on the freight elements. Passenger service 
commenters focused on constructive comment directed at improvement of 
the agency's proposal. Commuter service entities agreed to submit 
additional, concrete alternatives to certain elements of this proposal. 
In order to take full advantage of the parties' undertakings while 
moving this phase of the rulemaking forward as quickly as possible, FRA 
will request that alternative approaches and initial comments regarding 
strictly passenger service issues be submitted by February 27, 1995.
    FRA recognizes that there are several issues which cut across both 
passenger and freight service (e.g., training) thus, FRA would expect 
alternative approaches regarding these issues to be submitted by the 
deadline established for freight service issues. Commenters interested 
in passenger service issues will retain the option to file any 
additional comments that might be appropriate until the final comment 
closing date for this docket, which will be established by a future 
notice. However, FRA will utilize the alternative proposals and 
comments filed by February 27, 1995 to assist in evaluating whether it 
is necessary to issue any further notice or convene any further 
discussions regarding strictly passenger service issues in this 
proceeding.

Jolene M. Molitoris,
Administrator.
[FR Doc. 95-1167 Filed 1-13-95; 8:45 am]
BILLING CODE 4910-06-P