[Federal Register Volume 60, Number 102 (Friday, May 26, 1995)]
[Rules and Regulations]
[Pages 27899-27906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12963]



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[[Page 27900]]

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. LI-7; Notice 6]
RIN 2130-AA53


Event Recorders

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: In response to petitions for reconsideration, FRA is amending 
its regulation on event recorders. FRA is removing the requirement 
that, following an accident reportable to the National Transportation 
Safety Board, the railroad must refrain from extracting or analyzing 
event recorder data for a period of 8 hours or until that agency 
notifies the railroad that it will not conduct an investigation, 
whichever comes first. FRA is also amending the definition of ``lead 
locomotive'' to provide greater latitude for the location of event 
recorders and is simplifying the requirements for removing event 
recorders from service.

DATES: This rule is effective May 26, 1995. The final rule, as 
published in the Federal Register for July 8, 1993 (58 FR 36605), was 
effective November 5, 1993. The date for compliance with the duty to 
have an in-service event recorder in the lead locomotive of any train 
operated faster than 30 miles per hour (Sec. 229.135(a)) is May 5, 
1995.

FURTHER INFORMATION CONTACT: Rolf Mowatt-Larssen, Chief, Motive Power 
and Equipment Division, Office of Safety Enforcement, RRS-14, Room 
8326, Federal Railroad Administration, Department of Transportation, 
400 Seventh Street SW., Washington, DC 20590 (telephone 202-366-4094), 
or Thomas A. Phemister, Trial Attorney, Office of Chief Counsel, 
Federal Railroad Administration, 400 Seventh Street SW., Washington, DC 
20590 (telephone 202-366-0635).

SUPPLEMENTARY INFORMATION: On July 8, 1993, FRA published a Final Rule 
in this docket in the Federal Register. 58 FR 36605. That rule requires 
trains operated at speeds in excess of 30 miles per hour to be equipped 
with an event recorder in the lead locomotive, requires maintenance of 
event recorders, and requires post-accident security for data in the 
recorder. FRA received petitions for reconsideration and requests for 
clarification from several parties. This notice is the agency's 
response, arranged by topic.

Compliance Date

    The original publication of this rule included a mistakenly 
calculated date for compliance with the duty to equip the lead 
locomotive on a train operated faster than 30 miles per hour. A 
correction was published in the Federal Register for July 28, 1993 (58 
FR 40468), but that correction has not been published in the bound 
volume of the Code of Federal Regulations. The correct date for 
compliance with the duty to equip locomotives was 18 months after the 
effective date of the final rule in this docket, or May 5, 1995. This 
notice rewrites Sec. 229.135(a) to include that date.

Post-Accident Data Security

    On July 8, 1993, FRA published a Final Rule in this docket in the 
Federal Register. 58 FR 36605. That rule, at Sec. 229.135(d)(1), stated

    Accidents Reportable to the National Transportation Safety 
Board. If any locomotive equipped with an event recorder is involved 
in an accident that is required to be reported to the National 
Transportation Safety Board (see 49 CFR Part 840), the railroad 
using the locomotive shall make no attempt, except by the direction 
of a representative of the Board, or as may be necessary to preserve 
the data from destruction, to extract or analyze the recorded data 
until 8 hours have passed from the time the accident is reported to 
the National Response Center, or until the Board declares that it 
will not conduct an investigation of the accident, whichever comes 
first. If, within the 8- hour period, the Board notifies the 
railroad that an investigation will be conducted, the railroad will 
be governed by the Board's instructions; if the Board notifies the 
railroad that an investigation will not be conducted, or if the 
Board fails to give notification within the 8-hour period, the 
railroad may extract the data consistent with the preservation 
requirements of paragraph (d)(2) of this section.

    FRA adopted this requirement in consideration of the comments made 
in writing in response to the Advance Notice of Proposed Rulemaking 
(November 23, 1988, 53 FR 47557) and the Notice of Proposed Rulemaking 
(June 18, 1991, 56 FR 27931) and at the hearings held as part of both 
earlier notices and after consulting with the National Transportation 
Safety Board (Safety Board). It was FRA's understanding that this 
provision advanced railroad transportation safety and met the Safety 
Board's needs.
    The Association of American Railroads (AAR), in its petition for 
reconsideration, argues that FRA does not have the power to issue 
Sec. 229.135(d)(1) and that, if it has the power, it has exercised that 
power unlawfully. AAR also urges FRA to facilitate the railroads' needs 
for access to event recorder data as soon as possible after an 
accident. Finally, AAR states its opinion that FRA's actions in this 
regard are ``not a good idea'' as a matter of policy.
    Union Pacific Railroad Company (UP) also included the issue of 
post-accident data security in its petition for reconsideration, 
arguing that railroads should have immediate access to event recorder 
data at all times. UP buttresses its argument by stating that railroads 
need event recorder data to facilitate their own accident 
investigations. Quick access to event recorder data may, for instance, 
lead to immediate operational improvements or may aid in pinpointing 
physical evidence that needs to be examined before the track is 
restored to service or, presumably, before rail equipment is removed 
from the scene.
    Canadian Pacific Legal Services, filing a petition for 
reconsideration on behalf of CP Rail System (CPRS), echoes the need to 
have immediate access to event recorder data in the wake of an 
accident.
    While the Safety Board both urged and endorsed the data security 
rule quoted above, it has re-evaluated this language in light of its 
own Notice of Proposed Rulemaking, published June 19, 1991 (56 FR 
28132). In a letter to FRA dated October 1, 1993, the Board said that 
it believes that the language of Sec. 229.135(d)(1) ``may place a 
regulatory burden on both the Safety Board and the railroad industry 
that goes beyond that required for the efficient discharge of the 
Safety Board's accident investigation program.'' In light of a 
reassessment of FRA's rule and considering the comments filed in 
response to its own notice, the Board has decided to explore a revision 
to its earlier proposal and has requested that FRA withdraw 
Sec. 229.135(d)(1).
    FRA finds no merit in AAR's arguments that FRA does not have the 
power to act as it did or that it exercised that power unlawfully. 
Because FRA is granting the relief sought by AAR and others, this issue 
need not be explored further, but AAR's statement about FRA's ``power'' 
misses the impact of the Federal railroad safety laws, and the 
delegations under them. These enactments, for instance, extend to FRA 
the authority to prescribe regulations for every area of railroad 
safety (49 U.S.C. 20103). Certainly post-accident data security is one 
such area.
    FRA, however, agrees with railroads' need for early access to event 
recorder data and believes that the current 
[[Page 27901]] Sec. 229.135(d)(2) will provide the data security it 
needs while at the same time facilitating the railroad's own legitimate 
accident investigation priorities. For the reasons stated, FRA grants 
the petitions for reconsideration insofar as they request withdrawal of 
Sec. 229.135(d)(1) and amends the regulations accordingly. The language 
now in Sec. 229.135(d)(2) will survive as a new paragraph (d)(1) and 
the explanation of the relation of this regulation to other laws, now 
in paragraph (d)(3), will be preserved as a new Sec. 229.135(d)(2).

Lead Locomotive

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

    (a) Duty to equip. Effective [insert a date 18 months after the 
effective date of a final rule in this docket], and except as 
provided in paragraph (b) of this section, any train operated faster 
than 30 miles per hour shall have an in-service event recorder in 
the lead locomotive. For the purpose of this section ``train'' 
includes a locomotive or group of locomotives with or without cars 
and ``lead locomotive'' means the locomotive from whose cab the crew 
is operating the train and, when cab control locomotives and/or MU 
locomotives are coupled together, is the first locomotive proceeding 
in the direction of movement.

    Several interested parties, including the Association of American 
Railroads (AAR), the American Public Transit Association (APTA), Union 
Pacific Railroad Company (UP), Metro-North Commuter Railroad Company 
(MN), and The Long Island Rail Road Company (LIRR) requested FRA to 
clarify the term ``lead locomotive'' so that it would accommodate the 
operations of carriers using cab control cars, married pairs of cars, 
and other similar configurations.
    FRA stated in the preamble (58 FR 36610-11) that the agency ``has 
determined that the recorder will be most helpful if it records the 
events happening in the locomotive occupied by the engineer, that is, 
the lead locomotive.'' FRA also noted that it was

    Aware that push-pull commuter operations don't have a 
traditional `locomotive' at the lead in one direction and that this 
may present problems in some cases. The ideal solution would be for 
the actions taken at the engineer's stand in the control car to be 
recorded on the device in the locomotive.

    FRA's primary concern is still as it was when the preamble was 
written: to provide the best data for analysis, the recorder must 
capture what the engineer sees and does.
    In light of the submissions since the final rule was published, FRA 
recognizes that its definition of ``lead locomotive'' is unnecessarily 
geographically strict. The definition in the current Sec. 229.135(a) 
will be amended by adding the following sentence:

    The duty to equip the lead locomotive may be satisfied with an 
event recorder located elsewhere provided that such event recorder 
monitors and records the required data as though it were located in 
the lead locomotive.

Notice of Equipped Status/Removal from Service

    Several parties requested clarification on the proper means for 
indicating that a locomotive is equipped with an event recorder or that 
the recorder is, or has been taken, out of service. These parties also 
asked whether a locomotive, once equipped with an event recorder, must 
always remain equipped with an event recorder.
    FRA's final event recorder rule does not impose any burden to keep 
event recorders on locomotives merely because they were once so 
equipped. The rule very clearly mandates a recorder on the lead 
locomotive of all trains operated faster than 30 miles per hour. Thus, 
a railroad deciding to limit certain locomotives to slow speed service, 
where they would not operate faster than 30 miles per hour, is 
permitted to remove the recorders from that equipment.
    The current rule contains no specific requirement that an equipped 
locomotive be marked in any way. FRA is aware that there are many ways 
to tell if a locomotive is recorder-equipped, from the physical 
presence of an apparatus to the ``Canadian'' method, in which the 
locomotive is limited so that it cannot assume the lead position unless 
the recorder is operative according to its own self-test. As noted in 
the next section on testing and maintaining recorders, block 15, item 5 
of the cab card (FRA Form 6180-49A) will note the successful completion 
of periodic testing and maintenance on the event recorder. FRA believes 
that the best way to be certain that a locomotive has an event recorder 
is to note that fact on the reverse side of the cab card, under the 
``REMARKS:'' section. Section 229.135(a) is amended to require 
annotating the cab card when a locomotive is equipped with an event 
recorder unless the recorder is designed to prohibit the locomotive 
from assuming the lead position if it is not functioning.
    The current rule does, however, contain a requirement at 
Sec. 229.135(c) that an out-of-service recorder be tagged, and the tag 
described in Sec. 229.9(a)(3) is given as an example of a proper method 
of marking a malfunctioning recorder. While ``tagging'' may be suitable 
for older recorders, it does not serve a purpose where the recorder is 
buried within the electrical panel or fully integrated into the 
electrical system. Since the final rule was issued, it has become clear 
that more flexibility is necessary to accommodate different types of 
event recorders. Accordingly, FRA is amending current Sec. 229.135(c) 
so that annotating the cab card (Form FRA F6180-49A), on the reverse 
side, under ``REMARKS:'' becomes the method of noting the out-of-
service status of a recorder. Part 229 requires each locomotive to have 
a cab card to record the results of periodic inspections so there will 
be no burden to apply an extra tag. As a matter of enforcement policy, 
FRA will instruct its inspectors to look on the cab card first for 
notes about the event recorder status of a locomotive.
    Once equipped, always equipped? The inquiries about departure 
testing at the conclusion of the periodic inspection also raise the 
issue about whether or not a locomotive, equipped with an event 
recorder, must always remain equipped. The primary requirement of the 
rule, as it relates to equipment, is that the lead locomotive of a 
train operated faster than 30 miles per hour must have an event 
recorder (from and after May 5, 1995). Section 21 of the Rail Safety 
Improvement Act of 1988 (RSIA), Pub.L. 100-342, 102 Stat. 624 (June 22, 
1988), now codified at 49 U.S.C. 20138, prescribed rules ``to prohibit 
the willful tampering with, or disabling of * * * railroad safety or 
operational monitoring devices,'' including event recorders. In its 
final rule proscribing tampering with safety devices, published 
February 3, 1989 (54 FR 5485) (the rules appear at Subpart D of Part 
218), FRA required installed event recorders to be operative unless the 
locomotive was being hauled dead-in-tow or unless the event recorder 
became inoperative enroute, in which case FRA imposed a notification 
requirement similar to that used for certain signal-related equipment 
that controls or restricts train operations. The AAR filed a petition 
for reconsideration in that Docket. The final rule in this docket 
responded in part to that petition.
    While this rule requires event recorders to be in operating order 
at the time the locomotive is cleared from the quarterly inspection, 
these devices, like any mechanical or electronic device, are subject to 
random failures. FRA sees no safety benefit in severely restricting the 
operation of a locomotive costing upwards of a million dollars because 
of the failure of a fifty-dollar part in a blackbox. The final rule in 
this docket permits operation of a locomotive with [[Page 27902]] an 
event recorder known to have failed, but it cannot be the sole power, 
nor the lead locomotive, on a train operated faster than 30 miles per 
hour. Section 229.135(c) is amended to read:

    (c) Removal from Service. A railroad may remove an event 
recorder from service, and, if a railroad knows that an event 
recorder is not monitoring or recording the data specified in 
Sec. 229.5(g), shall remove the event recorder from service. When a 
railroad removes an event recorder from service, a qualified person 
shall cause to be recorded the date the device was removed from 
service on Form FRA F6180-49A, under the REMARKS section. An event 
recorder designed to allow the locomotive to assume the lead 
position only if the recorder is properly functioning is not 
required to have its removal from service noted on Form FRA F6180-
49A.

    This rule will ensure the integrity of the periodic inspection 
because, when the person conducting the inspection on electrical 
equipment signs the cab card, that signature will attest to the fact 
that the event recorder is in working order. At the same time, the rule 
will permit railroads, for operational reasons of their own, to have 
event recorders in fewer than all of their locomotives. Simply put, if 
a locomotive is equipped with an event recorder, the recorder must be 
in operating order before the locomotive is released from the periodic 
inspection. If the flexibility FRA has designed into this rule is 
abused by the railroads, FRA will not hesitate to impose a stricter 
standard.

Testing and Maintaining Recorders

    The current regulations require inspection at the quarterly 
intervals specified in Sec. 229.25. The recorder must be tested prior 
to performing any maintenance work and, if it fails, must be repaired 
and tested until a subsequent test is successful. A record of the 
inspection and test, including a copy of the data verification results, 
must be maintained until the next quarterly interval.
    APTA, the Southeast Pennsylvania Transit Authority (SEPTA), AAR, 
Canadian National Railways (CN), and CP Rail System expressed concern 
about these requirements as they relate to micro-processor based event 
recorders. Such recorders, and they appear to be the standard on 
Canadian locomotives, constantly self-test and, if a self-test fails, 
force a penalty brake application on the locomotive until it is taken 
out of the lead position. For these recorders, it is argued, a separate 
test in the shop conducting the periodic inspection is neither 
necessary nor productive. FRA agrees and is amending the requirements 
at Sec. 229.25(e)(2) to count a self-testing micro-processor event 
recorder that has not indicated a failure as having ``passed'' the pre-
maintenance inspection requirement.
    Several interested parties have suggested that the results of the 
periodic inspections be simply noted on the cab card. While the fact 
that a recorder has been successfully inspected, tested, and maintained 
is noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5), 
the event recorder regulation also calls for a copy of the ``data 
verification results.'' With a magnetic tape machine, the ``results'' 
are, physically, the printout of the tape reading; similarly with a 
micro-processor, the ``results'' are also a readable representation of 
what the machine has recorded. FRA agrees with those who urge the 
electronic filing of the ``data verification results'' and notes that 
the rule does not limit the means by which the results ``shall be 
maintained.'' Electronic filing is permissible, but FRA requires that 
the electronic filing be reduced to writing upon demand.

Events To Be Recorded

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

    That monitors and records data on train speed, direction of 
motion, time, distance, throttle position, brake applications and 
operations (including train brake, independent brake, and, if so 
equipped, dynamic brake applications and operations) and, where the 
locomotive is so equipped, cab signal aspect(s), over the most 
recent 48 hours of operation of the electrical system of the 
locomotive on which it is installed.

    Derived data: A device that ``monitors and records data on'' 
various aspects of the operation of a train does not necessarily have 
to record data on each separate aspect of operations. ``Train speed,'' 
``time,'' and ``distance,'' for instance, are mutually dependent and 
any one of these parameters can be derived from the other two. The 
event recorder rule does not prohibit derived data, and whether an 
event is recorded directly or derived is largely a matter left to the 
railroad, so long as the calculated or derived data offer the same 
accuracy, reliability and precision as data recorded directly.
    Throttle position/brake applications: Several interested parties 
requested clarification about the requirement to record throttle 
position and brake application and operations. In their powered phase 
of operations, diesel-electric locomotive event recorders typically 
capture several stages of throttle position, ``idle'' and notches 1 and 
2 as a group and notches 3-8 individually. The heavy electric commuter 
railroads have referred to a 5-position controller on multiple-unit 
(MU) cars; while this has fewer positions than that of a diesel-
electric locomotive, an event recorder that captured each of these 
positions would comply with the rule. A device that monitored and 
recorded only one position of forward motion would not. In the braking 
phase of operations, current diesel-electric locomotive recorders 
monitor dynamic brake set up and brake pipe pressure reductions if 
different amounts, depending on the railroad and the event recorder. 
Independent brake applications are, typically, recorded as ``on/off'' 
with 15 psi as the dividing line. An MU locomotive event recorder that 
records degrees or steps of braking power, and that shows the on/off 
application of the independent brake, complies with the event recorder 
rule. FRA does not see a problem just because certain heavy electric 
commuter equipment has ``blended brakes,'' in which both air and 
dynamic braking occur automatically with the movement of a single 
lever.
    Traction motor current/dynamic braking current: APTA and CN 
inquired about the recording of traction motor current and dynamic 
brake current. The rule does not require the recording of traction 
motor current in either the powered or the dynamic brake phase, 
although, on some commuter equipment, it is one way to provide the 
required data on brake operations and equivalent throttle position or 
motoring mode.
    Direction of motion: Section 229.5(g) lists ``direction of motion'' 
as a required parameter. Unless the information can be derived from 
other data, it must be directly recorded. FRA notes that, in the 
typical freight locomotive, the position of the reverser handle is a 
recorded parameter.
    The ``48-hour'' rule: Several parties asked FRA to reduce the 
interval for recording data. The regulation, at Sec. 229.5(g), requires 
monitoring and recording data ``over the most recent 48 hours of 
operation of the electrical system of the locomotive.'' There is an 
exception, not relevant here, for recorders installed prior to the 
effective date of the rule. Several types of recorders capture data at 
set intervals or whenever the operations of the locomotive change. A 
road locomotive used in switching, for instance, has frequent changes 
in direction, speed, and brake system actuation. The concern of those 
pushing for a shorter interval is that operations like switching will 
overtax the memory capacity of a recorder. FRA chose the 48-hour rule 
to be on the safe side of ensuring capture of the initial terminal 
brake test. [[Page 27903]] Information from the initial terminal test 
proved important in the investigation of the May 12, 1989, accident at 
San Bernardino, California, as discussed in the preamble to the final 
rule. (58 FR 36606). Other than the initially granted grandfather 
rights, FRA is not aware of any reason with an equivalent level of 
safety to reduce the required recording duration.
    Cab signals--Northeast Corridor 9-aspect system: Cab signals, for 
locomotives so equipped, will continue to be a required parameter, 
including the new 9-aspect system on the Northeast Corridor.
    Cab signals-joint operations: Several railroads operate over joint 
territory and use each other``s cab signals. An earlier practice was to 
marshall locomotives so that a unit belonging to the home railroad was 
always in the lead or was swapped into the lead at the border between 
the railroads. This method of operating allowed the ``home'' locomotive 
to respond to the signals controlling its operation. Union Pacific 
Railroad (UP) and Chicago and Northwestern Railway Company (CNW) 
currently conduct joint operations over hundreds of miles of each 
other``s cab signal territory. Their power pool arrangements are such 
that a locomotive of either railroad may be in the lead and it would be 
detrimental to service to change lead locomotives at the property line. 
The problem is that the two carriers have incompatible cab signal 
systems, a condition they have mitigated by having dual cab signals in 
the pooled locomotives. Either railroad``s locomotives can read the 
signals of the other, but their event recorders are not equipped with 
the capacity to record other than the signals of the home road. The 
rationale for requiring cab signal recording was that it was a vital 
part of accident investigation and that, because the signal was already 
on board, it would not be overly difficult to record it. That rationale 
is still valid, and FRA does not contemplate amending this portion of 
the event recorder rule. UP and CNW are welcome to petition for a 
waiver, or for an extension of time to expand the recording capacity of 
their event recorders, but this notice makes no change in the 
requirement as published.
    Cab signals--separate recorders: Delaware and Hudson Railway 
Company operates a small number of locomotives with cab signal 
equipment. That equipment has a built-in device that records, in real 
time, date, speed, cab signal aspects, distance, and the status of the 
automatic equipment test. Proprietary software is used to download this 
information into a portable computer. This equipment complies with the 
event recorder rule, provided that the two recordings can be 
synchronized with a common parameter.

Speed

    APTA requested clarification on the ``over 30 miles per hour'' 
parameter for requiring recorders; does it, for instance, exclude 
trains that are restricted by a railroad's operating rules and/or 
policy to speeds of 30 miles per hour or less? FRA does not restrict 
the methods railroads use to set the speeds of the trains they operate. 
Whether a train is restricted to 30 miles per hour or less by the class 
of track on which it operates or by company policy is immaterial. 
Effective May 5, 1995, if a train is operated faster than 30 miles per 
hour, it must have an event recorder in the lead locomotive--slower 
than that, the requirement does not apply.
Accuracy

    Several parties requested clarification on accuracy and data 
resolution. FRA believes that accuracy, together with refinements in 
sampling intervals, are issues for future activity. As the agency said 
in the preamble to the final rule (58 FR 36609),

    Some commenters raised issues about the recorder's sampling 
intervals and sampling accuracy. FRA certainly expects that event 
recorders will be as accurate as present standards for speed 
indicators and for air gauges, but the agency realizes that more 
developmental work needs to be done in this area. FRA has decided 
not to further delay the requirement to have event recorders on 
trains and will postpone for now standards that would require 
resolution of technological issues that are intertwined with the 
extended development of solid state recorders and with 
recommendations that event recorders be standardized as to size, 
location, and crash worthiness.

Event Recorder Maintenance

    Remote inspection: Kansas City Southern (KCS), D&H, and Soo Line 
requested clarification of and relief from the blackbox maintenance 
rules. Some of their locomotives are maintained at facilities without 
the equipment to read and analyze the data tapes from the recorders, 
and they seek to perform the recorder pre-maintenance inspection at a 
location remote from the shop where the rest of the periodic inspection 
work is performed. The rule does not specify where periodic recorder 
maintenance must be done, but only that it be performed every periodic 
inspection. The operative principles are (1) locomotives shall not 
leave the periodic inspection point with an inoperative event 
recorder--unless the cab card is annotated to show the locomotive as 
``unequipped,'' (2) testing of recorders must precede maintenance work 
on them, and (3) trains operated over 30 miles per hour must have an 
in-service event recorder in the lead locomotive. In order to provide 
necessary flexibility, FRA will consider an event recorder test done up 
to 5 calendar days prior to the periodic inspection as complying with 
the requirements of this rule. If a railroad finds that it cannot 
complete testing and maintenance on an event recorder prior to the 
completion of the periodic inspection, it has the option of taking the 
recorder out of service and noting that fact on the cab card, following 
procedures allowed in Sec. 229.135(c). FRA had been requested to allow 
a 5-day ``grace'' period--before or after the periodic inspection-- for 
event recorder testing and maintenance where data analysis and/or 
recorder repair took place other than at the facility performing the 
period inspection. The agency understands the practical problems 
associated with providing every point performing periodic inspections 
with the sophisticated electronic equipment necessary to test and 
maintain event recorders. At the same time, FRA must maintain the 
integrity of its periodic inspection requirements. Section 229.23(d) 
has not been amended by this rule. The person conducting an inspection 
signs the card and that person's supervisor certifies that the work was 
done. In the case of event recorders, as noted earlier, the fact that a 
recorder has been successfully inspected, tested, and maintained is 
noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5). This 
means that a locomotive can depart the periodic inspection in one of 
three ways: without an event recorder, with a working event recorder, 
or with an event recorder properly taken out of service.
    Ninety percent effective: In the preamble to the final rule, FRA 
stated:

    FRA has no desire to create unnecessary maintenance burdens on 
the railroads on the one hand, but, on the other, it cannot condone 
event recorders which fail for lack of effective maintenance. 
Testimony and comments by representatives of the railroads and of 
the suppliers demonstrate agreement that a properly maintained 
recorder will operate from one quarterly inspection to the next 
without failure, virtually all of the time. The final rule 
recognizes what industry has said and, accordingly, requires event 
recorders to be maintained so well that 90 percent of them are still 
functioning as intended when they arrive at the quarterly 
inspection. If this level of performance cannot be met on a month-
to-month basis, the final rule then requires maintenance 
[[Page 27904]] intervals and practices to be adjusted so that it 
can.

    APTA asked if the ``90 percent functional'' requirement applied to 
all parameters recorded by a particular carrier's blackbox or only to 
those required by the rule. Because the rule defines event recorders in 
relation to particular, required parameters, and because pre-
maintenance testing requires ``cycling all required parameters,'' the 
rule clearly aims only at maintaining the operability of the required 
parameters. A recorder with a non-functioning, but non-defining 
parameter may still be both an ``in-service'' recorder under 
Sec. 229.5(I) and ``fully functional'' under Sec. 229.25.
    Post-periodic inspection departure testing: The event recorder 
rule, at Sec. 229.25(e)(3), states:

    (3) If this test does not reveal that the device is recording 
all the specified data and that all recordings are within the 
designed recording parameters, this fact shall be noted on the data 
verification result required to be maintained by this section and 
maintenance and testing shall be performed as necessary until a 
subsequent test is successful.

    The blackboxes used by the Canadian railroads are interchangeable, 
and if one is discovered with a fault, it is swapped out for a known 
good one and the defective unit is returned to the factory for repair. 
(Part of the installation procedure includes entry into the computer of 
the identification of the locomotive on which the unit is located.) 
Section 229.25(e)(3) could be read as requiring successful repair of 
the unit currently installed on the locomotive before that locomotive 
departs the 92-day inspection. Such an interpretation strains against 
industry practices and injects an unnecessary layer of regulation into 
the system. FRA supports the change-out of bad units for good as part 
of the post-periodic departure check-out.
    Removal from service--calendar day inspection: One of the commuter 
railroads asked if a locomotive found at the Monday morning inspection 
with the recorder ``fault light'' on can be used as a lead locomotive 
until Tuesday morning. Assuming the railroad complies with the 
requirements for taking a recorder out of service, Sec. 229.135(b) 
allows the use of the locomotive as a lead unit until the next calendar 
day inspection.

New and Rebuilt Locomotives

    AAR and The American Short Line Railroad Association (ASLRA) seek 
to have the event recorder requirements apply to new and rebuilt 
locomotives only. This is in accord with industry practices, and 
according to data presented by the railroads during the rulemaking 
process, 62 percent of Class I road locomotives are currently equipped 
with a qualifying event recorder. Based on industry information and 
testimony presented before the final rule was issued, 90 percent or 
more of the road trains are equipped with a recorder. While it is not 
always clear exactly what types of trains are being counted in these 
figures, it is clear that not all locomotives need to be equipped to 
achieve full compliance with a rule requiring event recorders on the 
lead locomotive of all trains operated faster than 30 miles per hour.
    FRA considered the new/rebuilt option and concluded, in concert 
with safety, policy, and legal offices at the agency and Departmental 
level, that a rule requiring event recorders on new and rebuilt 
locomotives only does not reflect the best interpretation of the 
mandate in RSIA to equip trains where doing so will enhance safety. FRA 
believes that the option it chose, requiring event recorders on the 
lead locomotive of trains operated faster than 30 miles per hour, does 
satisfy the best interpretation of a statutory mandate to ``issue such 
rules, regulations, standards, and orders as may be necessary to 
enhance safety by requiring that trains be equipped with event 
recorders * * *.'' (RSIA, section 21) The safety enhancements of 
recorders were fully discussed in the preamble to the final rule and 
need not be repeated here. In addition, FRA became aware, during the 
development of this rule, that several railroads believe the number of 
recorder equipped locomotives in their fleets will enable them to 
comply with a requirement for an event recorder in the lead locomotive 
of every train operated faster than 30 miles per hour. For these 
railroads, a requirement to equip each new or rebuilt locomotive with 
an event recorder would be an unjustified burden.
    Another party to this proceeding, NTSB, urged that all locomotives 
in a train should be equipped (the ultimate result of equipping new and 
rebuilt locomotives) in order to permit accident investigators to 
determine the performance of each locomotive in the consist. In 
addition to the obvious cost implications of this suggestion, there are 
sound reasons for not attempting to mandate equipping all locomotives 
at this time. FRA knows that event recorder technology is likely to 
advance rapidly. Accordingly, rather than establish a rule that would 
eventually require an event recorder meeting today's standard on every 
locomotive (except those traveling so slowly they do not even need 
speed indicators), FRA believes that it is wise to wait to see whether 
the recorders themselves become significantly better than they now are. 
FRA believes that, as recorder technology advances, standards will be 
set for sampling intervals, the ranges of recorded parameters, the 
accuracy of recording, accident survivability, and data extraction 
protocols. As good as these ideas are, FRA cannot bring them into being 
simply by mandating them; FRA's option of equipping fast trains rather 
that all new and rebuilt locomotives will allow time to bring these 
concepts to mature and practical fruition.
    In analyzing costs, FRA used the best data it had. As noted in its 
``Final Rule Regulatory Impact Analysis,''

    Under normal railroad operations, where many trains are powered 
by multiple power units, 100% coverage is possible with 
significantly less than 100% of the units being equipped with a 
recorder.
    There is a point, however, at which the efforts to manage, 
reassign, and shift power to assure full coverage may cost more that 
the installation of additional recorders. Unfortunately, FRA does 
not have the type of individualized, proprietary information 
necessary to analyze these trade-offs and arrive at the perfect 
cost-minimalization strategy. We have therefore employed what we 
believe to be a conservative approach in a deliberate effort not to 
understate costs.

``Event Recorders Final Rule Regulatory Impact Analysis,'' February 12, 
1993, p. 9.
    Finally, as FRA discussed in the preamble to the final rule (58 FR 
36607), the primary safety benefit of event recorders lies in their use 
as a tool to diagnose train handling accidents, to continue building a 
knowledge base of accident causation, and, through sampling actual 
train movements, to evaluate changes in methods of train operation. 
Event recorders also provide a way to sample the train-handling ability 
of an engineer in a real-world environment. FRA has determined that 
event recorders enhance railroad safety. Whether they are used to aid 
accident analysis, to monitor locomotive engineers' performance, or to 
monitor equipment performance, event recorders provide data that are 
free from bias, free from the inconsistent powers of human observation, 
and free from the possible taint of self-interest. The data extracted 
from recorders can be played over and over as part of the analysis 
process without losing their consistency. Event recorders provide FRA 
with a growing pool of verifiable factual information about how trains 
are operated and what happens when they become part of an accident. 
Even the presence of event recorder data will not ensure the 
[[Page 27905]] discovery of the cause of every accident nor eliminate 
all sources of controversy about causation, but as shown in the 
Southern Pacific's San Bernardino derailment, event recorder data can 
help direct the attention of an accident investigator to possible 
causes not at first suspected. In addition, by reducing the potential 
for bias from accident investigations, the data from event recorders 
can help pinpoint operational changes that may prevent the next 
accident.
    FRA does not find merit in the argument that event recorders should 
only be required on new and rebuilt locomotives and rejects the 
requests filed by AAR and ASLRA to so amend the final rule.

Recording While Stationary

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

    ``Event recorder'' means a device, designed to resist tampering, 
that monitors and records data on train speed, direction of motion, 
time, distance, throttle position, brake applications and operations 
(including train brake, independent brake, and, if so equipped, 
dynamic brake applications and operations) and, where the locomotive 
is so equipped, cab signal aspect(s), over the most recent 48 hours 
of operation of the electrical system of the locomotive on which it 
is installed. A device, designed to resist tampering, that monitors 
and records the specified data only when the locomotive is in motion 
shall be deemed to meet this definition provided the device was 
installed prior to November 5, 1993, and records the specified data 
for the last eight hours the locomotive was in motion.

    CN is concerned about the ``installed prior to * * *'' language, 
because its present recorders record only while the locomotive is in 
motion but, because its recorders are interchangeable, a particular 
unit may be ``installed'' and ``uninstalled'' as necessary to keep an 
operating recorder on the locomotive in the lead. The purpose of the 
cut-off date was to prevent additional purchases of ``motion only'' 
recorders and to give railroads owning such recorders time to phase out 
these units in the normal course of business. FRA is aware that CN has 
embarked on a program to upgrade their recorders when factory 
maintenance is performed. Unless a pattern of abuse comes to FRA's 
attention, FRA sees no need to change its flexible approach: ``motion 
only'' event recorders in a carrier's service, whether in inventory or 
installed on a locomotive, as of November 5, 1993, are deemed to 
comply.
Extensions of Time

    APTA said that ``it would be helpful for * * * FRA to elaborate on 
some of the general criteria it expects to use and the minimum 
supporting documentation it expects to receive in considering * * *'' 
requests for an extension of time to comply with the event recorder 
rule. Unfortunately, there is no cookbook recipe for a petition for 
waiver of a safety rule, other than as published in 49 CFR Part 211. 
Railroads seeking waivers are advised to state their real needs as 
clearly as possible and to carefully follow the procedures in 
Secs. 211.7 and 211.9.

Regulatory Impact

    This rule has been evaluated under Executive Order 12688 and the 
DOT policies and procedures. Although the original rule met the 
criteria for being a significant rule under those policies and 
procedures, these amendments are not considered significant since they 
either delete requirements concerning procedural matters or allow for 
greater flexibility in complying with the rule.
    The economic impact of this change will be to reduce the cost of 
compliance with FRA regulations. That cost reduction will be of a 
minimal nature and does not alter FRA's original analysis of the costs 
and benefits associated with the basic rule. FRA certifies that this 
amendment will not have a significant impact on small entities. 
Similarly, this amendment will not alter the information collection 
requirements of this regulation; will have no identifiable 
environmental impact; and will have no effect on the states or the 
distribution of power and responsibilities among various levels of 
government.
    As provided for in 5 U.S.C. 553(d), FRA finds that there is good 
cause for making this rule effective in less that 30 days from 
publication. Efforts to comply with certain requirements being deleted 
by this rule might generate an undue burden on the Safety Board and the 
railroad industry. Prompt amendment of the provision dealing with post-
accident data security will avoid unwarranted confusion within the 
regulated community concerning their legal obligation in the event of 
an accident. The other amendments made by this notice recognize the 
enforcement policy of the agency.

List of Subjects in 49 CFR Part 229

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Rule

    Therefore, in consideration of the foregoing, FRA amends Part 229, 
Chapter II, Subtitle B of Title 49, Code of Federal Regulations as 
follows:

PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS

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

    Authority: 49 U.S.C. Chapters 201, 207, and 213; 49 U.S.C. 103; 
Pub. L. 100-342; Pub. L. 102-365; Pub. L. 102-533; Pub. L. 103-272; 
49 CFR 1.49 (c), (g), and (m).

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


Sec. 229.5  Definitions.

    (i) In-service event recorder means an event recorder that was 
successfully tested as prescribed in Sec. 229.25(e) and whose 
subsequent failure to operate as intended, if any, is not actually 
known by the railroad operating the locomotive on which it is 
installed.
* * * * *
    3. By revising Sec. 229.25(e)(2) to read as follows:


Sec. 229.25  Tests: every periodic inspection.

* * * * *
    (e) * * *
    (2) The event recorder shall be tested prior to performing any 
maintenance work on it. At a minimum, the event recorder test shall 
include cycling all required recording parameters and determining the 
full range of each parameter by reading out recorded data. A micro-
processor based event recorder, equipped to perform self-tests, has 
passed the pre-maintenance inspection requirement if it has not 
indicated a failure.
* * * * *
    4. By revising Sec. 229.135 (a) through (d) to read as follows:


Sec. 229.135  Event Recorders.

    (a) Duty to equip. Effective May 5, 1995, and except as provided in 
paragraph (b) of this section, any train operated faster than 30 miles 
per hour shall have an in-service event recorder in the lead 
locomotive. The presence of the event recorder shall be noted on Form 
FRA F6180-49A, under the REMARKS section, except that an event recorder 
designed to allow the locomotive to assume the lead position only if 
the recorder is properly functioning is not required to have its 
presence noted on Form FRA F6180-49A. For the purpose of this section, 
``train'' includes a locomotive or group of locomotives with or without 
cars, and ``lead locomotive'' means the locomotive from whose cab the 
crew is operating the train and, when cab control locomotives and/or MU 
locomotives are coupled together, is the first locomotive proceeding in 
the direction of movement. The duty to equip the lead locomotive may be 
met [[Page 27906]] with an event recorder located elsewhere than the 
lead locomotive provided that such event recorder monitors and records 
the required data as though it were located in the lead locomotive.
    (b) Response to defective equipment. A locomotive on which the 
event recorder has been taken out of service as provided in paragraph 
(c) of this section may remain as the lead locomotive only until the 
next calendar-day inspection. A locomotive with an inoperative event 
recorder is not deemed to be in improper condition, unsafe to operate, 
or a non-complying locomotive under Secs. 229.7 and 229.9, and 
notwithstanding any other requirements in this chapter, inspection, 
maintenance, and testing of event recorders is limited to the 
requirements set forth in Sec. 229.25(e).
    (c) Removal from service. A railroad may remove an event recorder 
from service and, if a railroad knows that an event recorder is not 
monitoring or recording the data specified in Sec. 229.5(g), shall 
remove the event recorder from service. When a railroad removes an 
event recorder from service, a qualified person shall cause to be 
recorded the date the device was removed from service on Form FRA 
F6180-49A, under the REMARKS section. An event recorder designed to 
allow the locomotive to assume the lead position only if the recorder 
is properly functioning is not required to have its removal from 
service noted on Form FRA F6180-49A.
    (d) Preserving accident data. For the purposes of this section, the 
term ``event recorder'' includes all locomotive-mounted recording 
devices designed to record information concerning the functioning of a 
locomotive or train regardless of whether the device meets the 
definition of ``event recorder'' in Sec. 229.5.
    (1) Accidents required to be reported to the Federal Railroad 
Administration. If any locomotive equipped with an event recorder is 
involved in an accident that is required to be reported to FRA, the 
railroad using the locomotive shall, to the extent possible, and to the 
extent consistent with the safety of life and property, preserve the 
data recorded by the device for analysis by FRA. This preservation 
requirement permits the railroad to extract and analyze such data; 
provided the original or a first-order accurate copy of the data shall 
be retained in secure custody and shall not be utilized for analysis or 
any other purpose except by direction of FRA or the National 
Transportation Safety Board. This preservation requirement shall expire 
30 days after the date of the accident unless FRA or the Board notifies 
the railroad in writing that the data are desired for analysis.
    (2) Relationship to other laws. Nothing in this section is intended 
to alter the legal authority of law enforcement officials investigating 
potential violation[s] of State criminal law[s] and nothing in this 
chapter is intended to alter in any way the priority of National 
Transportation Safety Board investigations under 49 U.S.C. 1131 and 
1134, nor the authority of the Secretary of Transportation to 
investigate railroad accidents under 49 U.S.C. 5121, 5122, 20107, 
20111, 20112, 20505, 20702, 20703, and 20902.
* * * * *
    Issued in Washington, D.C., on May 19, 1995.
Jolene M. Molitoris,
Administrator.
[FR Doc. 95-12963 Filed 5-25-95; 8:45 am]
BILLING CODE 4910-06-P