[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 278-296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33364]



[[Page 277]]

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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 232



Two-Way End-of-Train Telemetry Devices; Final Rule

  Federal Register / Vol. 62, No. 1 / Thursday, January 2, 1997 / Rules 
and Regulations  

[[Page 278]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB-9, Notice No. 6]
RIN 2130-AA73


Two-Way End-of-Train Telemetry Devices

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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

SUMMARY: FRA is revising the regulations governing train and locomotive 
power braking systems to include provisions pertaining to the use and 
design of two-way end-of-train telemetry devices (two-way EOTs). Two-
way EOTs provide locomotive engineers with the capability of initiating 
an emergency brake application that commences at the rear of the train. 
These revisions are designed to improve the safety of railroad 
operations by requiring the use of these devices on a variety of 
freight trains in accordance with legislation enacted in 1992 and by 
providing minimum performance and operational standards related to the 
use and design of two-way EOTs.

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

ADDRESSES: Any petition for reconsideration should be submitted to the 
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 
400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.

FOR FURTHER INFORMATION, CONTACT: Thomas Peacock, Motive Power and 
Equipment Division, Office of Safety, RRS-14, Room 8326, FRA, 400 
Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-632-3345), 
or Thomas Herrmann, Trial Attorney, Office of the Chief Counsel, FRA, 
400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-632-
3167).

SUPPLEMENTARY INFORMATION:

Background

    The train air brake system is complex and sensitive. A simplified 
summary of its operation may be useful in understanding the use and 
desirability of the technology required by this final rule. The train 
air brake system is composed of three major parts: (i) a signal sender; 
(ii) a signal relayer; and (iii) a signal receiver/responder.
    The brake valve on the locomotive is the signal sender. Operation 
of the valve permits air to be pumped into or released from the brake 
pipe. The pressure change resulting from the additional or reduced air 
supply in the brake pipe is the ``signal.'' The brake pipe, also known 
as the train air line, is the ``signal relayer.'' The brake pipe is the 
continuous air line running from the front of the train to the rear of 
the train. The continuity of the air line from car to car is 
accomplished by means of flexible air hoses. The brake pipe is closed 
(sealed) at the rear of the train and pressurized so that, apart from 
air leakage in the system, changes in the brake pipe pressure are made 
through operation of the brake valve on the locomotive.
    When the engineer ``sets the brakes,'' air is released from the 
brake pipe through the locomotive brake valve. This release of air 
reduces the pressure of the brake pipe, beginning at the front of the 
train. The pressure reduction moves down the brake pipe to the rear of 
the train. Thus, the signal is relayed by the brake pipe to the entire 
train. Similarly, when the brakes are released, the locomotive brake 
valve is positioned so that air is pumped into the brake pipe, sending 
a pressure increase through the brake pipe. A pressure reduction in the 
brake pipe rather than a pressure increase initiates a brake 
application. Consequently, the train air brake system is said to be 
``failsafe,'' i.e., if an air hose bursts, the resulting loss of air 
pressure in the brake pipe will initiate a brake application.
    The third major part of the train air brake system is the ``signal 
receiver/responder'' valves located on each car, which receive and 
interpret the changes in the brake pipe pressure. These valves initiate 
the application or release of the brake on each individual car. The 
degree of braking effort is determined by the degree of the brake pipe 
pressure drop, generally described as a partial service reduction, a 
full service reduction, or an emergency application.
    An EOT device is a radio telemetry device composed of a front unit, 
located in the cab of the controlling locomotive, and a rear unit, 
located at the rear of the train and attached to the brake pipe. 
Provisions governing the use of one-way EOTs were incorporated into the 
power brake regulations in 1986. See 49 CFR 232.13 and 232.19. One-way 
EOTs have the capability of interpreting rear-of-train brake pipe 
pressure and of transmitting that information via radio to the front 
receiving unit in the cab of the controlling locomotive. Optional 
features include the transmission of information regarding rear end 
motion and battery status. Many of the rear units of an EOT also 
incorporate rear-end marking devices required by 49 CFR Part 221. One-
way EOTs only have the ability to transmit information from the rear 
unit to the front unit.
    Since the advent of EOTs, technological advances have been made to 
incorporate ``two-way communication'' into the system. The two-way 
EOTs, in addition to the features of the one-way EOTs, have the ability 
of transmitting from the controlling locomotive an emergency brake 
application that begins at the rear of the train. This is a desirable 
feature in event of a blockage or separation in the train's brake pipe 
that would prevent the pneumatic transmission of the emergency brake 
application throughout the entire train. In 1986, FRA concluded that 
mandating the installation of two-way EOTs was not warranted. At that 
time, cabooseless trains operating without two-way EOTs lacked any 
ability to initiate an emergency brake application from the rear of the 
train and in FRA's view there was no demonstrated a need for the EOT to 
do so. Furthermore, at that time EOTs with two-way capability were not 
commercially available. In addition, since two-way capability requires 
two-way signal transmission, the cost of the devices sharply increased. 
Nevertheless, FRA made a public commitment then to monitor developments 
in EOT technology and to review the subject periodically. See 51 FR 
17300, 17301 (May 9, 1986).
    Since 1986, significant advances have been made in the development 
of two-way EOTs, and they are now commercially available in the 
marketplace from several manufacturers. In 1987, two-way EOTs were 
mandated in Canada as a condition for elimination of cabooses. FRA 
received recommendations from the National Transportation Safety Board 
(NTSB) and petitions from the United Transportation Union, the 
Brotherhood of Locomotive Engineers, the Oregon Public Utilities 
Commission, the Washington Utilities and Transportation Commission, and 
the Montana Public Service Commission to require two-way EOTs on all 
cabooseless trains operating in certain territories.
    In 1992, Congress amended the Federal rail safety laws by adding 
certain statutory mandates related to power brake safety. See 49 U.S.C. 
20141 (formerly contained in Section 7 of the Rail Safety Enforcement 
and Review Act, Pub. L. No. 102-365 (September 3, 1992), amending 
Section 202 of the Federal Railroad Safety Act of 1970, formerly 
codified at 45 U.S.C. 421, 431 et seq.). These amendments specifically 
address two-way EOTs by adding a new subsection which states:


[[Page 279]]


    (r) POWER BRAKE SAFETY.--* * * (3)(A) The Secretary shall 
require 2-way end of train devices (or devices able to perform the 
same function) on road trains other than locals, road switchers, or 
work trains to enable the initiation of emergency braking from the 
rear of the train. The Secretary shall promulgate rules as soon as 
possible, but not later than December 31, 1993, requiring such 2-way 
end of train devices. Such rules shall at a minimum--
    (i) set standards for such devices based on performance;
    (ii) prohibit any railroad, on or after the date that is one 
year after promulgation of such rules, from acquiring any end of 
train device for use on trains which is not a 2-way device meeting 
the standards set under clause (i);
    (iii) require that such trains be equipped with 2-way end of 
train devices meeting such standards not later than 4 years after 
promulgation of such rules; and
    (iv) provide that any 2-way end of train device acquired for use 
on trains before such promulgation shall be deemed to meet such 
standards. (B) The Secretary may consider petitions to amend the 
rules promulgated under subparagraph (A) to allow the use of 
alternative technologies which meet the same basic performance 
requirements established by such rules. (C) In developing the rules 
required by subparagraph (A), the Secretary shall consider data 
presented under paragraph (1).
    (4) The Secretary may exclude from the rules required by 
paragraphs (1), (2), and (3) any category of trains or rail 
operations if the Secretary determines that such an exclusion is in 
the public interest and is consistent with railroad safety. The 
Secretary shall make public the reasons for granting any such 
exclusion. The Secretary shall at a minimum exclude from the 
requirements of paragraph (3)--
    (A) trains that have manned cabooses;
    (B) passenger trains with emergency brakes;
    (C) trains that operate exclusively on track that is not part of 
the general railroad system;
    (D) trains that do not exceed 30 miles per hour and do not 
operate on heavy grades, except for any categories of such trains 
specifically designated by the Secretary; and
    (E) trains that operate in a push mode.

Pub. L. No. 102-365, Sec. 7; codified at 49 U.S.C. 20141, superseding 
45 U.S.C. 431(r).

Proceedings to Date

    In response to the statutory mandate, the various recommendations, 
and due to its own determination that the power brake regulations were 
in need of revision, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) on December 31, 1992 (57 FR 62546) and conducted a 
series of public workshops in early 1993. A section of the ANPRM was 
specifically designed to elicit comments, information, and views on 
two-way EOTs, and a portion of the public workshops covered this topic. 
See 57 FR 62550-62551. Based on the comments and information received, 
FRA published an NPRM regarding revision the power brake regulation 
which contained specific requirements related to two-way EOTs. See 57 
FR 47700, 47713-14, 47731, 47734, and 47743.
    Following publication of the NPRM in the Federal Register (59 FR 
47676), FRA held a series of public hearings in 1994 to allow 
interested parties the opportunity to comment on specific issues 
addressed in the NPRM. Public hearings were held in Chicago, Illinois 
on November 1-2; in Newark, New Jersey on November 4; in Sacramento, 
California on November 9; and in Washington, D.C. on December 13-14, 
1994. These hearings were attended by numerous railroads, organizations 
representing railroads, labor organizations, rail shippers, and State 
governmental agencies. Due to the strong objections raised by a large 
number of commenters, FRA announced by notice published on January 17, 
1995 that it would defer action on the NPRM and permit the submission 
of additional comments prior to making a determination as to how it 
would proceed in this matter. 60 FR 3375. In the January notice, FRA 
also stressed that it did not intend to defer implementation of the 
requirement for two-way EOTs beyond an effective date of December 31, 
1997.
    In the ANPRM and the NPRM, FRA identified 11 recent incidents that 
might have been avoided had the involved trains been equipped with two-
way EOTs. See 57 FR 62550; 59 FR 47713-14. In addition, on December 14, 
1994, in Cajon Pass in California, an intermodal train operated by The 
Atchison, Topeka and Santa Fe Railway Company (Santa Fe) collided with 
the rear end of a unit coal train operated by the Union Pacific 
Railroad Company, resulting in the serious injury of two crew members 
and total estimated property damages in excess of $4 million. After 
investigation of this incident, the NTSB concluded that, had the train 
been equipped with a two-way EOT, the collision could have been avoided 
because the engineer could have initiated an emergency brake 
application from the end of the train. On December 15, 1995, based on 
the conclusion reached above, the NTSB made the following 
recommendation to FRA:

    Separate the two-way end-of-train requirements from the Power 
Brake Law NPRM, and immediately conclude the end-of-train device 
rulemaking so as to require the use of two-way end-of-train 
telemetry devices on all cabooseless trains. (R-95-44).

    Furthermore, on February 1, 1996, again in Cajon Pass, a westward 
Santa Fe freight train derailed on a descending three-percent grade. 
The incident resulted in fatal injuries to two of the crew members, 
serious injuries to a third, and the derailment of 45 of 49 cars and 
four locomotives. Although investigation of this incident is currently 
in progress, it appears as though it could have been avoided had the 
train been equipped with a means for the train crew to have effected an 
emergency brake application from the rear of the train. The two 
aforementioned incidents resulted in FRA's issuance on February 6, 
1996, of Emergency Order No. 18 (61 FR 5058), which requires the 
affected railroad to ensure that its train crews have the ability to 
effect an emergency brake application from the rear of the train on all 
westward freight trains operating through Cajon Pass.
    Consequently, based on these considerations and after review of all 
the comments submitted, FRA determined that in order to limit the 
number of issues to be examined and developed in any one proceeding it 
would proceed with the revision of the power brake regulations via 
three separate processes. In light of the testimony and comments 
received on the NPRM, emphasizing the differences between passenger and 
freight operations and the brake equipment utilized by the two, FRA 
decided to separate passenger equipment power brake standards from 
freight equipment power brake standards. As passenger equipment power 
brake standards are a logical subset of passenger equipment safety 
standards, the passenger equipment safety standards working group will 
assist FRA in developing a second NPRM covering passenger equipment 
power brake standards. See 49 U.S.C. 20133(c). In addition, a second 
NPRM covering freight equipment power brake standards will be developed 
with the assistance of FRA's Railroad Safety Advisory Committee. See 61 
FR 29164. Furthermore, in the interest of public safety and due to 
statutory as well as internal commitments, FRA determined that it would 
separate the issues related to two-way EOTs from both the passenger and 
freight issues, address them in a public regulatory conference, and 
issue a final rule on the subject as soon as practicable.
    Pursuant to a notice published on February 21, 1996 (61 FR 6611), 
FRA held an informal public regulatory conference on March 5, 1996, in 
Washington, D.C. to further discuss issues related to the proposed

[[Page 280]]

requirements on two-way EOTs contained in the NPRM. In accordance with 
the Administrative Procedure Act (5 U.S.C. 551 et seq.), the public 
regulatory conference was a continuation of the power brake rulemaking 
proceeding. In this notice, based on a review of the substantial number 
of comments submitted in connection with the ANPRM and the NPRM 
regarding two-way EOTs, FRA identified and provided some discussion of 
seven major issue areas regarding two-way EOTs including: the 
definition of ``mountain grade territory,'' en route failures of the 
devices, trains subject to the requirements, initial terminal 
requirements, design requirements, calibration requirements, and cost/
benefit information. As part of the cost/benefit discussion, FRA 
identified 26 potentially preventable accidents had the trains involved 
been equipped with two-way EOTs. See 61 FR 6615. This public regulatory 
conference was attended by representatives of at least seven railroads, 
two organizations representing Class I and short line railroads, four 
labor organizations, two manufacturers of the two-way EOTs, and one 
State public utilities commission. Written comments were received from 
most of these parties or their representative. The comment period for 
this proceeding closed on April 15, 1996; however, comments received 
after that date have been considered.

Discussion of Comments and Conclusions

    Those parties filing comments and presenting testimony regarding 
two-way EOTs at the hearings following publication of the ANPRM and 
NPRM as well as the public regulatory conference have provided the 
agency with a wealth of facts and informed opinions and have been 
extremely helpful to FRA in resolving the issues. While most commenters 
provided testimony or written comments on more than one issue, and 
while most of the comments supported the position(s) of at least one 
other commenter, the issues themselves were centered around a few key 
concepts. Rather than attempt to paraphrase each commenter's response 
to each of the proposed regulatory sections in the NPRM, FRA believes 
it is better, and more understandable, to discuss the key issue areas 
in this proceeding and present the thrust of the comments on each of 
these.

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

    In the NPRM as well as in the Notice of Public Regulatory 
Conference, FRA consistently used the term ``mountain grade'' territory 
to describe those areas where trains, even though operating below 30 
mph, would be required to be equipped with a two-way EOT. Several 
commenters recommended that FRA abandon its use of the term ``mountain 
grade'' territory because it is confusing and inconsistent with the 
language used in the statute. See 49 U.S.C. 20141(c). In order to 
remain consistent with the language used in the statutory mandate and 
to avoid confusion by affected parties, FRA will not use the term 
``mountain grade'' territory in the final regulations and will instead 
use the term ``heavy grade.''
    In Appendix C of the NPRM, FRA proposed a definition of mountain 
grade territory as a section of track of distance, D, with an average 
grade of 1.5 percent or more over that distance which satisfies the 
following relationship:

(30/V)2G2D12
Where:

G = average grade x 100
D = distance in miles over which average grade is taken
V = speed of train

See 59 FR 47719, 47753. FRA also provided a chart containing mountain 
grade territory curves based on an application of the definition. See 
59 FR 47753. FRA developed this empirical relationship based on most 
commenters' suggestions that some type of formula be developed based on 
a variety of factors, including train tonnage, speed, length of grade, 
percent of grade, and distance of grade. FRA determined that the three 
most important variables in defining mountain grade were: (i) the speed 
of the train (V); (ii) the steepness of the grade (G); and (iii) the 
length of the grade (D).
    Many commenters found the definition contained in the NPRM 
confusing, inaccurate, and impractical. These commenters suggested that 
the definition would result in known mountain or heavy grades not being 
covered by the two-way EOT requirement, while other areas never before 
believed to be mountain grades would fall within the requirement. 
Several commenters also recommended that the definition be eliminated 
and that the two-way EOT requirements apply solely to trains operating 
in excess of 30 mph. The California Public Utilities Commission 
suggested that, short of requiring the devices on every train, the 
fundamental criterion should be the ability of the train to stop within 
a safe distance based solely on the ability of the independent 
locomotive brakes. Other commenters suggested that other criteria be 
used to define mountain grade territory and that the formula be 
simplified. One commenter recommended that the proposed definition be 
eliminated, and that the two-way EOT requirements be applied to trains 
operating over 30 mph and to heavy tonnage and long trains as defined 
in FRA's proposal.
    Based on these comments as well as its reconsideration of the 
proposed definition, FRA acknowledged that the definition contained in 
the NPRM was confusing and inaccurate in its Notice of Public 
Regulatory Conference published on February 21, 1996. See 61 FR 6612. 
In that Notice, FRA requested alternative suggestions and proposed 
replacing the term ``mountain grade'' with ``heavy grade'' and defining 
``heavy grade'' as: any portion of a railroad with an average grade of 
one percent or greater where the product of the average percent grade 
(as a decimal) and the distance over which the grade persists (in 
miles) is greater than or equal to .03. Thus a one percent (.01) 
average grade for three miles or a two percent (.02) average grade for 
1.5 miles would meet the definition. See 61 FR 6613. Although this 
definition was accepted by some commenters as being better than that 
proposed in the NPRM, none of the commenters endorsed the definition, 
and several stated that it was either too hard to enforce or was too 
broad or too narrow.
    Several commenters provided alternative definitions of mountain or 
heavy grade. The Association of American Railroads (AAR) and The 
American Short Line Railroad Association (ASLRA) suggested that 
mountain or heavy grade be defined as ``a section of track with a 
continuous grade of 2 percent or greater over a distance of 2 miles.'' 
Many commenters objected to this alternative, stating that it excludes 
known mountain or heavy grade territories. Several of these commenters 
identified specific locations with grades of greater than one percent 
but less than two percent for long distances that would not fall within 
the definition proposed by the AAR (such as Feather River Canyon in 
California and the grade at Pig's Eye Yard in St. Paul, Minnesota). In 
the alternative, the AAR recommended that the term mountain or heavy 
grade not be specifically defined in the regulation and that each 
railroad define the term in its operating rules filed with FRA. The 
stated advantage to this approach is that each railroad could tailor 
the definition

[[Page 281]]

to its particular operating territory and FRA could object should a 
railroad fail to include a section of track FRA believed to be mountain 
or heavy grade territory. Several commenters objected to this 
alternative, stating that such a regulation would be difficult to 
enforce since every railroad would have different definitions of the 
term and such a regulation could result in railroads intentionally 
defining the term in order to negate its applicability to their 
operation. The ASLRA further recommended that shorter, lower tonnage 
trains be excluded from any definition of mountain or heavy grade due 
to the costs involved with equipping these types of operations and the 
fact that the safety data does not support the need for the use of the 
devices on these types of operations solely because they operate in 
mountain or heavy grade territory. The ASLRA also suggested that an 
alternative to the use of two-way EOTs be permitted for trains 
operating with 4,000 trailing tons or less by permitting them to use 
retaining valves, set in the high pressure position before operating 
over a descending grade.
    The Brotherhood of Railway Carmen (BRC) recommended that ``heavy 
grade'' be defined as any grade greater than one percent. The BRC 
believed that such a definition was clear, enforceable, and not overly 
restrictive. This commenter felt that variables such as speed, tonnage, 
and train length were too subject to manipulation and change to be 
included in a clear, enforceable definition. Other commenters objected 
to this definition, stating that it was overly broad and would include 
areas never considered to be heavy grades. Several commenters 
recommended that two-way EOTs be required on all trains operating on 
main line track regardless of speed or grade. Many parties objected to 
this suggestion stating that it is clearly in excess of Congress' 
intent to provide exceptions for various operations based on their 
operating speeds, terrain, and type of service being provided.
    The California Public Utilities Commission (CAPUC) recommended that 
a performance standard be adopted to determine which operations would 
be subject to the requirements. This performance standard would be 
based on the ability of the independent locomotive brakes to stop a 
train. In its written comments, the CAPUC provided a detailed 
discussion of calculating the standard for various grades and tonnages 
based on the amount of independent locomotive brake present on a given 
train. However, the CAPUC emphasized that values contained in its 
analysis were illustrative and that further research would be required 
to develop the concept. At the public regulatory conference, several 
parties objected to this type of performance approach as too 
complicated and very difficult, if not impossible, to enforce due to 
the amount of information necessary to calculate the formula.

Conclusions

    In its statutory mandate, Congress specifically provided an 
exception from any two-way EOT requirements for certain trains that do 
not operate on heavy grades. See 49 U.S.C. 20141(c)(4). In order to 
give effect to, and remain consistent with, this statutory provision, 
FRA is compelled to develop an understandable and easily enforceable 
standard for determining whether a segment of track should be 
considered heavy grade territory. FRA believes that any regulations 
related to two-way EOTs must include provisions excluding from the 
requirements certain operations that do not operate on heavy grades. 
Consequently, FRA does not think it would be consistent with the 
statutory mandate or with the safety data reviewed in this proceeding 
to require the use of two-way EOTs on all trains operating on main line 
track regardless of speed or grade, as recommended by some commenters. 
FRA believes that a performance standard based on tons per axle of 
independent locomotive brake offers an attractive approach; however, 
the proposal would require significant refinement and might not be 
capable of reliable application in the field. FRA also believes that 
the AAR alternative, permitting each railroad to define the term heavy 
grade, could result in inconsistent standards, without an adequate 
safety rationale, opening the regulation to legal challenge, and would 
require considerable agency resources to review and verify the 
submissions of each railroad across the country.
    In determining the most effective way to define heavy grade, FRA 
not only considered the comments submitted but also considered and 
analyzed a variety of factors which affect the operation of a train in 
grade territory. These included such things as: the steepness of grade; 
the effect of cresting speed; the location of a trainline blockage; the 
weight of the train; the number of locomotives; the length of grade; 
and the life of brake shoes under stress. After consideration of these 
factors, FRA determined that any definition of heavy grade should 
attempt to incorporate the effects of as many of these factors as 
possible without creating a requirement which would be extremely 
complex or overly intrusive on the operations of a railroad. For 
example, one factor FRA considered to be overly intrusive was placing 
limitations on the cresting speeds of trains at various grades. FRA 
determined that there was no universally applicable standard and that 
establishing such limitations may actually create additional safety 
concerns.
    In the aftermath of recent accidents on heavy grades, FRA became 
aware of the great value of including heavy grade descent plans in the 
training and instruction of operating employees. A heavy grade descent 
plan can incorporate the wisdom and experience of engineers long 
familiar with descending a particular heavy grade and provide a vehicle 
for sharing the different ways the grade can successfully be traversed. 
Such a plan should take into account a wide variety of factors such as 
those listed above. FRA strongly encourages railroads to develop and 
use heavy grade descent plans and to share ``best practices'' for 
training operating employees to handle heavy grades. While requiring 
the use of heavy grade descent plans or changing requirements for 
training operating employees is outside the scope of this rulemaking, 
FRA thinks that railroads should be aware in the context of this rule 
of the potential for heavy grade descent plans to enhance safety. FRA 
will address heavy grade descent plans and training practices through 
other vehicles in the near future.
    As noted above, the AAR and the ASLRA proposed to define heavy 
grade as a section of track with a continuous grade of two percent for 
two miles. FRA believes this basic and simple definition is a good 
starting point as it takes into account both the percentage of grade 
and the distance over which that grade extends. However, FRA agrees 
with many of the commenters that this definition fails to capture 
several areas traditionally considered to be heavy or mountain grades. 
Furthermore, after a review of the potentially preventable accidents 
identified in the Notice of Public Regulatory Conference (61 FR 6615) 
as well as other recently identified accidents/incidents, it is 
apparent that train tonnage or length should also be a factor in 
determining whether a particular segment of track is considered heavy 
grade territory for a particular train. In order to keep the definition 
of heavy grade as simple to understand as possible, FRA will use only 
total trailing tons as a supplemental factor since it somewhat 
incorporates train length. Consequently, FRA will use a simple, two-
level approach in defining heavy grade, using the total trailing tons 
of a train as one

[[Page 282]]

of the two bases for determining whether the train is operating over a 
heavy grade.
    The ASLRA recommended that FRA exclude trains with less than 4,000 
trailing tons from the requirements relating to heavy grades, 
contending that the safety data do not support the use of the devices 
on these shorter, lower-tonnage trains and that such an exclusion would 
reduce the economic impact of the requirements on smaller railroads. 
After a review of the accident/incident data, FRA agrees that lower-
tonnage trains tend to have fewer problems operating over heavy grades 
than higher-tonnage trains. Virtually all of the accidents/incidents 
cited by FRA in its cost/benefit analysis as potentially preventable 
with a high degree of confidence involve long, heavy-tonnage trains or 
trains operating in excess of 30 mph. Consequently for simplicity's 
sake, FRA will adopt the definition of heavy grade suggested by the AAR 
and the ASLRA for trains operating with 4,000 trailing tons or less, 
with one modification: FRA will require use of a two-way EOT on trains 
operating with 4,000 trailing tons or less when operated on a segment 
of track with an average rather than a continuous grade of two percent 
or more for a distance of two or more miles. FRA believes that the use 
of average grade instead of continuous grade will capture some of the 
locations with brief dips below two percent (i.e., 1.9 or 1.8 percent) 
raised as examples by several commenters. Furthermore, FRA does not 
believe that the use of retaining valves, even on a train operating 
with less than 4,000 trailing tons, provides the same measure of safety 
as an armed and operable two-way EOT and, thus, FRA will not permit the 
use of retaining valves as an alternative to the use of a two-way EOT.
    As mentioned above, FRA will apply a separate definition of heavy 
grade for trains operating with greater than 4,000 trailing tons. A 
review of the accidents/incidents considered by FRA as potentially 
preventable, had the train involved been equipped with a two-way EOT, 
reveals that those incidents occurring on steep grades almost always 
involved trains operating with greater than 4,000 trailing tons. FRA 
believes that the definition of heavy grade for these types of trains 
needs to be broad enough to encompass the areas identified by several 
commenters noted above, yet sufficiently limited so as not to be overly 
burdensome to the industry. Consequently, based on FRA's proposed 
definition contained in its Notice of Public Regulatory Conference (61 
FR 6613) and based upon comments received from the BRC and CAPUC as 
well as others, FRA will define heavy grade for trains operating with 
greater than 4,000 trailing tons as segments of track with an average 
grade of one percent or greater over a distance of three or more miles. 
FRA does not believe this definition will be overly burdensome to the 
industry since the ASLRA stated that 17 of the 21 mountain grade 
railroads it surveyed have average train tonnage of less than 4,000 
trailing tons and most of the trains operated by Class I railroads over 
this type of terrain will be operating in excess of 30 mph at some 
point between origin and destination of the intact consist.
    Both of the definitions of heavy grade discussed above include a 
minimum distance over which the average grade must extend. If a strict 
percentage approach were adopted (i.e. 1 or 2 percent), then areas 
where brief dips in the grade reach those percentages for very short 
distances would bring a train within the requirement for use of the 
device when in reality these brief dips do not create a safety concern. 
The two and three mile minimum distance requirements were adopted based 
on an analysis of the relevant potentially preventable accident/
incident data as well as the natural rolling resistance of a train and 
the brake shoe life of the independent locomotive brakes if cautious 
cresting speeds are assumed. The grade and mileage components of the 
definitions are sufficiently restrictive to capture all of the past 
relevant potentially preventable accidents/incidents but broad enough 
to prevent brief dips in the terrain from being considered heavy 
grades.

B. Applicability

    Based on the statutory mandate and after review of the comments 
received and the accidents relied on for support of the use of two-way 
EOTs, FRA in the NPRM proposed that the devices be required equipment 
on trains that operate at speeds in excess of 30 mph and on trains that 
operate in mountain grade territories. See 59 FR 47743. In addition to 
those operations specifically excluded from two-way EOT requirements by 
the statute (49 U.S.C. 20141(c)), FRA found sufficient safety 
justification for excluding two other types of operations: (i) Freight 
trains equipped with a locomotive capable of initiating a brake 
application located in the rear third of the train length; and (ii) 
trains equipped with fully independent secondary braking systems 
capable of safely stopping the train in the event of failure of the 
primary system. In order to provide the industry with time to acquire a 
sufficient number of two-way EOTs and to ease the economic impact of 
acquiring the devices, FRA proposed that the requirement for use of the 
devices, not become effective until December 31, 1996. See 59 FR 47713, 
47743. FRA also proposed that all two-way EOTs purchased prior to the 
effective date of the final rule would be deemed to meet the design 
requirements contained in the proposal. See 59 FR 47713, 47743. There 
were very few comments submitted in response to the NPRM specifically 
addressing the applicability requirements contained in the NPRM other 
than stylistic suggestions. One commenter did recommend that the 
exception for trains operating in a push mode be amplified to require 
that the control cab on the rear of train be occupied, display a 
reading of the brake pressure, and be capable of making an emergency 
application.
    At the public regulatory conference several commenters raised 
objections to FRA's proposal regarding local and work trains that were 
reiterated in the written comments. In the NPRM, FRA proposed to 
require the use of two-way EOTs on local and work trains that exceeded 
30 mph. See 59 FR 47743. FRA also proposed definitions of these types 
of trains. See 59 FR 47726. Several commenters objected to the proposed 
restrictions on these types of trains contending that they are 
inconsistent with the statutory mandate. The AAR proposed that these 
types of trains not be subject to the two-way EOT requirements and 
reiterated the definitions contained in the NPRM for local and work 
trains. In the statutory provision, Congress stated that two-way EOTs 
shall be required ``on road trains other than locals, road switchers, 
or work trains. . . .'' See 49 U.S.C. 20141(b)(1). However, the statute 
does not define the terms local, road switcher, or work trains and does 
not include them in the specific exclusions contained in the 
legislation. See 49 U.S.C. 20141(c). At the public regulatory 
conference it was generally agreed that any definition of local trains 
would essentially subsume the term ``road switcher'' and, thus, 
separate definitions would not be required for purpose of these 
regulations. Several commenters suggested that due to the nature of the 
work performed by local and work trains (e.g., delivery or pick-up 
switching en route and repairs) that any requirement that they be 
equipped with two-way EOTs would have a tremendous economic impact on 
the industry. These commenters also suggested that due to the shorter 
distances these trains generally travel

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the safety rationale for requiring use of the devices is far less 
apparent. Other commenters recommended that FRA narrowly define local 
and work train in order to prevent a possible loophole wherein carriers 
could designate all their trains as local trains and, thus, circumvent 
the two-way EOT requirements. Several commenters also objected to 
treating local and work trains any differently than road trains as they 
incur the same operational difficulties and pose the same threat to 
safety.
    One commenter expressed concern over the proposed exception granted 
to trains with a locomotive capable of making a brake application 
located in the rear third of the train. Generally, this commenter was 
concerned with how the locomotive, located in the rear third of the 
train, would be operated and whether the locomotive would be required 
to have the capability of effectuating an emergency brake application 
in both directions from its position in the train. Another commenter 
suggested that the proposed exception for trains operating in the push 
mode be reworded so as only to permit the exception if the train has 
the ability to initiate an emergency brake application from the rear of 
the train. One railroad recommended that an exception from the 
requirements regarding two-way EOTs be granted to railroads that do not 
operate on ruling grades exceeding .5 percent.

Conclusions

    Although it is arguable, as some commenters suggested, that 
Congress intended for locals, road switchers, and work trains per se to 
be granted an exception from the requirements related to two-way EOTs, 
FRA does not believe Congress intended to except trains merely based on 
a label placed on the operation. FRA believes that Congress intended 
for the term ``locals, road switchers, or work trains'' to be narrowly 
construed by FRA and not so broadly defined that the requirements for 
two-way EOTs are rendered meaningless in many circumstances.
    In the NPRM, FRA attempted to limit the local or work train 
exception by proposing the 30 mph standard. However, after 
reconsideration of the accident/incident data compiled in relation to 
this proceeding and the comments submitted, FRA admits that the 
proposed exception was probably not the most effective means of 
limiting the application of the requirements for these types of 
operations.
    Therefore, in the final rule, rather than impose a blanket speed 
criterion, FRA intends to define local and work trains narrowly and not 
except such trains when operated in heavy-grade territory. FRA will 
start with the definitions proposed in the NPRM for local and work 
trains (59 FR 47726) and add an additional limiting factor of 4,000 
trailing tons. FRA will further narrow the definition of a local train 
by adding the limitation that the train travel a distance that is no 
greater than that which can be operated by a single crew in a single 
tour of duty. In FRA's view, local trains operating with greater than 
4,000 trailing tons for extended distances and work trains operating 
with greater than 4,000 trailing tons lose the characteristics of being 
traditional local or work trains and begin to look more like any other 
road train susceptible to the same operational problems and 
difficulties and, thus, fall outside the exception contemplated by 
Congress for local and work trains. FRA believes this approach is 
consistent with Congress' intent and FRA's rationale expressed with 
regard to defining heavy grades. This approach not only recognizes the 
operational necessity for the services these types of trains provide 
and the nature of the duties they engage in when en route, while 
preventing the potential for confusion or abuse of the term local or 
work train, but also ensures that those trains most likely to benefit 
from the added safety provided by two-way EOTs are so equipped.
    FRA also intends to amend the exceptions contained in the NPRM 
relating to trains operated in a push mode and trains with a locomotive 
in the rear third of the train in order to clarify the exceptions and 
address the concerns raised by some commenters with regard to these 
exceptions. The exception for trains operated in the push mode will be 
clarified to include language that the train must have the ability to 
effectuate an emergency brake application from the rear of the train. 
In addition, the exception for trains operated with a locomotive in the 
rear third of the train will be amended to require that the locomotive 
be capable of effectuating an emergency brake application in both 
directions from its location in the train. FRA believes that although 
this method of operation does not provide all the safeguards provided 
by a two-way EOT, it provides other operational and train-handling 
benefits as well as many of the safeguards provided by a two-way EOT 
and, thus, there is no compelling need for the devices in these 
operations.
    Finally, FRA rejects the suggestion of one railroad that an 
exception be granted for trains that do not operate on grades exceeding 
.5 percent regardless of the train's speed. Although these types of 
trains would not be operating on heavy grades, such an exception would 
be contrary to Congressional intent.

C. En Route Failures

    In the NPRM, FRA proposed that if a two-way EOT or equivalent 
device becomes incapable of initiating an emergency brake application 
from the rear of the train while the train is en route, then the speed 
of that train would be limited to 30 mph. See 59 FR 47714, 47743. FRA's 
rationale for this limitation was that, under the statute, two-way EOT 
devices are not required on trains that travel less than 30 mph. 
Operating with a non-functional two-way EOT device is the same as not 
having a device; consequently, trains operating with failed two-way EOT 
devices should be subjected to this same limitation. Furthermore, FRA 
suggested that the concerns raised by several railroads regarding train 
delays, missed deliveries, and safety were not justified. The AAR as 
well as several railroads commented that these devices are very 
reliable and have an extremely low failure rate, if properly 
maintained. FRA believed that the concerns of the railroads were 
outweighed by the potential harm to both the public and railroad 
employees caused by trains being allowed to operate without the devices 
at speeds which Congress and FRA think require the added safety 
benefits provided by these devices.
    Several railroads commented on FRA's proposal, reinforcing the view 
that such a limitation could cause serious train delays and missed 
deliveries and would actually produce additional safety hazards due to 
the bunching of trains. Commenters also suggested that FRA failed to 
include the cost of this limitation in its analysis. Other commenters 
noted that subsequent to the drafting of the NPRM, Canada eliminated 
its speed restriction for failure of a two-way EOT en route.
    At the public regulatory conference and in written comments, the 
AAR again objected to any speed restriction for en route failures of 
the devices, stating that any speed restriction would be costly both in 
terms of operating expense and reduced customer satisfaction. In 
support of this statement, the AAR provided a cost analysis regarding 
various speed restrictions. The AAR also proposed an alternative method 
for handling en route failures. This proposal required that the 
conductor report the location, date, time, and description of the 
failure; that the train be equipped with a train brake status system; 
and that the train be moved only to the nearest forward point

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capable of repairing or replacing the unit. Several commenters objected 
to this alternative as well as other alternatives permitting speeds 
greater than 30 mph on the grounds that they basically provide 
incentives to operate a train with a defective two-way EOT device. Many 
commenters felt that if carriers are permitted to proceed to the next 
point where repairs can be made then the same problems inherent with 
moving cars with any defect will result: repair points will disappear, 
or locations will be declared unable to make repairs or replacements.
    Several commenters supported the proposed 30-mph speed restriction 
for en route failures. The BRC endorsed the proposed speed restriction, 
but would like to see it coupled with a requirement that the device be 
repaired or replaced at the next yard, terminal, or crew change point, 
whichever comes first. This commenter believed that the speed reduction 
was the only viable incentive for ensuring that railroads properly 
maintain the devices. At the public regulatory conference it was also 
discovered that, contrary to the information provided in response to 
the NPRM, Canada has not eliminated the 25-mph speed restriction for en 
route failures of two-way EOTs. The Canadian Legislative Director for 
the United Transportation Union stated that although the order 
requiring a speed reduction to 25 mph for en route failures of the 
devices was revoked, it was revoked only on the premise that the 
general operating instructions of the railroads would contain the 
requirements of the order, which they do, and it is a violation of the 
Canadian Rail Safety Act to violate the railroad's general operating 
instructions. Thus, the speed restriction for en route failure of the 
devices still exists in Canada, and no evidence was submitted to show 
the restriction has adversely affected railroad operations. FRA has 
received no written comments disputing the statements regarding the 
Canadian requirements as presented at the public regulatory conference.
    Although supporting the 30-mph speed restriction for en route 
failures, the CAPUC was concerned that the limitation did nothing to 
address en route failures that occur in heavy grade territory. This 
commenter suggested that many trains do not operate over 30 mph when in 
mountain or heavy grade territory and, thus, for railroads operating 
such trains the risk of a 30-mph restriction provides no incentive to 
keep the devices operational. One commenter suggested an alternative to 
the speed restriction: requiring trains that develop en route failures 
to immediately stop and have the crew determine whether the train can 
be operated at a safe speed to the next location for repairs. This 
proposal also provided that if the train proceeded the crew would be 
exonerated from any discipline resulting from a rules violation or 
accident.
    Both oral and written comments were received in relation to the 
question of what constitutes an en route failure of the device. In the 
NPRM, FRA merely stated that a failure will be considered the inability 
to initiate an emergency brake application from the rear of the train. 
Although this provides some guidance, it does not really address the 
problem of loss of communication and at what point that loss 
constitutes a failure of the device. Commenters and FRA recognize that 
brief communication interruptions between the front and rear units 
commonly occur and that these lapses may not be critical since the 
signal for an emergency application is transmitted at a much higher 
wattage than the ordinary communication signals between the two units. 
The AAR recommended that a failure not be declared until communication 
between the front and rear units cannot be established for 16 minutes 
and 30 seconds. This time frame was proposed based on the design of the 
devices, which automatically checks communication between the units 
every ten minutes. If no response is received, the front unit 
automatically requests communication from the rear 15 seconds later; if 
no response is received to that request, another request is made six 
minutes later; and if there is still no response, the front unit makes 
another request 15 seconds later. No other commenters presented 
measurable criteria for determining when an en route failure occurs.

Conclusions

    FRA intends to require trains which experience en route failures of 
the two-way EOT device to limit their speed to 30 mph. FRA believes 
this is a logical outgrowth of the requirement that trains operating in 
excess of 30 mph be equipped with the devices. FRA agrees with many of 
the commenters that to permit speeds in excess of 30 mph would be akin 
to providing an incentive to operate without the devices. The railroads 
as well as the manufacturers of the devices stated that the failure 
rate for the devices is extremely low. These parties indicated that the 
majority of the failures were due to depleted batteries, which FRA 
believes will be reduced to a great extent by the requirements 
contained in this regulation regarding the charging of batteries 
throughout the trip. (See discussion regarding inspection and 
calibration of the devices.) FRA also believes that the 30-mph speed 
limitation on trains experiencing en route failures will encourage 
railroads to ensure that the devices are properly functioning when they 
are installed and will ensure that a sufficient number of the devices 
are available at various locations throughout a train's trip, both of 
which will further mitigate the effects of the speed restriction. 
Furthermore, trains in Canada have been operating for several years 
with a 25-mph speed restriction on trains that experience en route 
failures of the devices, and there were no comments submitted 
indicating the problems suggested by the railroads. Consequently, FRA 
believes that failure of these devices will be extremely rare and that 
the concerns expressed and the costs estimated by the railroads 
regarding train delays and missed deliveries are not justified and are 
overstated.
    FRA does not intend to mandate locations where these devices must 
be repaired or replaced if they should fail en route. FRA believes each 
railroad is in the best position to determine the locations where 
additional devices can or must be maintained and stored to ensure the 
efficiency of its own operation. Furthermore, FRA believes that the 
requirements limiting the speed of a train operating with a defective 
device, as well as the inspection and battery charge requirements, are 
sufficient to promote the prompt repair or replacement of defective 
units and to ensure that the devices will be operational throughout a 
train's trip.
    FRA will adopt the AAR's suggestion for determining when a loss of 
communication between the front and rear units should be considered a 
failure of the device en route. As noted in the above discussion, brief 
losses of communication do occur between the front and rear unit, and 
FRA does not intend to consider these communication gaps as failures en 
route. As pointed out by several commenters, the signal calling for the 
initiation of an emergency brake application is continuously 
transmitted at a wattage that is greater than five times the wattage at 
which ordinary communications between the two units are transmitted. 
Thus, brief communication gaps will be overcome by the increased 
wattage at which the signal calling for an emergency brake application 
is transmitted. The 16 minutes and 30 seconds recommended by the AAR is 
based on the current design of the automatic communication between the 
front and rear units and

[[Page 285]]

constitutes an enforceable standard for determining when a loss of 
communication should be considered an en route failure.
    As noted by some commenters, the issue of failures approaching the 
crest of heavy grades is not adequately addressed by simply limiting 
train speed. Nor is it sufficient to know that the train line is open 
and properly charged at the crest. As two recent accidents appear to 
illustrate, buff (compressive) forces in the train may cause blockages 
in the train line as the train descends the grade that may not have 
been present while the train was stretched on its upward climb. 
Therefore, it is particularly critical, in order to realize the 
benefits contemplated by the Congress, that the two-way EOT be 
operative as the train begins its descent down heavy grades. Although 
FRA believes that the requirements limiting the speed of a train 
operating with a defective device, as well as the inspection and 
battery charge requirements, are sufficient to promote the prompt 
repair or replacement of defective units and to ensure that the devices 
will be operational throughout a train's trip in most instances, FRA 
believes that additional safeguards must be provided when a train 
experiences a failure of its two-way EOT when operating on particularly 
heavy grades. FRA believes these added safeguards are necessary for 
those trains that operate over sections of track with an average grade 
of two percent or greater for two continuous miles. FRA's Emergency 
Order No. 18 permits operation over a heavy grade down the Cajon Pass 
of California only if the two-way EOT system is operative or provided 
one of certain other alternative measures is provided. The alternative 
measures include the following:
    1. Use of an occupied helper locomotive at the end of the train. If 
this method is used, the helper locomotive engineer shall initiate and 
maintain two-way voice radio communication with the engineer on the 
head end of the train; this contact shall be verified just prior to 
passing the crest of the grade. If there is a loss of communication 
prior to passing the crest of the grade, the helper locomotive engineer 
and the head-end engineer shall act immediately to stop the train until 
voice communication is resumed. If there is a loss of communication 
once the descent has begun beyond Summit, the helper locomotive 
engineer and the head-end engineer shall act to stop the train if the 
train has reached a predetermined rate of speed that indicates the need 
for emergency braking. The brake pipe of the helper locomotive must be 
connected and cut in to the train line and tested to ensure operation; 
and trains shall be stopped when helpers are cut in or cut off from 
trains being assisted.
    2. Use of an occupied caboose at the end of the train with a 
tested, functioning brake valve capable of initiating an emergency 
brake application from the caboose. If this method is used the train 
service employee in the caboose and the engineer on the head end of the 
train shall establish and maintain two-way voice radio communication 
and respond appropriately to the loss of such communication in the same 
manner as prescribed for helper locomotives.
    3. Use of a radio-controlled locomotive in the rear third of the 
train under continuous control of the engineer in the head end by means 
of telemetry, but only if such radio- controlled locomotive is capable 
of initiating an emergency application on command from the lead 
locomotive.
    Railroads typically maintain available helper locomotives and have 
crews on call to address exigencies in heavy grade territory, such as 
failure of one or more locomotives en route. FRA believes that, given 
the high reliability of two-way EOTs, the marginal costs of using 
helper locomotives cut into the train line--under the control of a crew 
in contact with the lead unit of the primary locomotive consist--would 
not be significant in relation to the risk of a run-away train. 
Accordingly, FRA will require that the two-way EOT be operative or that 
one of the approved alternative methods of operation be employed 
whenever a train required to be equipped with a two-way EOT operates 
over a section of track with an average grade of two percent or greater 
for a distance of two miles.

D. Design Requirements

    In order to maintain uniformity in the performance of two-way EOTs, 
FRA proposed basic performance and design requirements for these 
devices in the NPRM. As two-way EOTs that are currently in production 
meet the design requirements already established for one-way devices 
contained at 49 CFR 232.19, FRA proposed to retain those requirements, 
apply them to two-way EOTs and add specific requirements to ensure two-
way communication and the ability to initiate an emergency brake 
application from the rear of the train. In the NPRM, FRA recognized 
that currently available two-way EOTs have several optional features 
that could prove beneficial to railroads, and although FRA recommended 
that railroads obtain as many of the optional features as they can when 
purchasing the devices, FRA did not propose to mandate their use and 
feels each railroad is in the best position to determine which features 
benefit its operation.
    In the NPRM, FRA proposed a requirement that the rear unit 
automatically begin restoring the brake function (recharging the air 
brake system) within 60 seconds after it has initiated an emergency 
application. See 59 FR 47731. FRA proposed this requirement based on 
the belief that currently manufactured two-way EOTs are designed with 
this feature. Several commenters in response to the NPRM and the Notice 
of Public Regulatory Conference suggested that the proposed provision 
requiring the automatic restoration of the brake function after 60 
seconds should be eliminated. These commenters stated that the brake 
function should not be restored until the train has come to a complete 
stop or that the locomotive engineer should retain control of the 
restoration, or both. These commenters also stated that many railroads 
require the train to be inspected after an emergency application and do 
not want the brakes to be reset prior to the completion of the 
inspection.
    In the Notice of Public Regulatory Conference, FRA attempted to 
clarify the proposal regarding the availability of the front-to-rear 
communications link being checked automatically by stating that the 
NPRM inadvertently contained a requirement of 10 minutes and that it 
should have read ``10-seconds.'' See 61 FR 6614. Several parties 
commented on this clarification, including the manufacturers of the 
devices, stating that a 10-second requirement would be impossible to 
meet with current technology and would result in a battery drain within 
a short time. These commenters stated that FRA correctly proposed a 10-
minute requirement in the NPRM as that is the current industry standard 
and has been the standard for devices used in Canada for several years.
    The AAR recommended that FRA should not require that the rear unit 
respond only to the front unit of that train. This commenter indicated 
that some railroads want the ability to activate the rear unit from a 
location other than the front end of the train in an emergency, such 
as, where the crew of the train becomes disabled. Finally, one 
commenter recommended that a separate, labeled, and protected emergency 
switch should not be mandated if the EOT's emergency

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application could be integrated into the existing emergency brake 
controls.

Conclusions

    Based on the comments received, FRA does not intend to change its 
position regarding the mandating of any of the optional features 
currently available on two-way EOTs. As FRA stated in the NPRM, it 
encourages railroads to obtain as many of the optional features as 
possible when purchasing the devices, but believes that each railroad 
is in the best position to determine which features best suit its 
operation. FRA agrees with many of the commenters that requiring the 
braking function to be automatically restored within 60 seconds after 
an emergency application has been initiated would hinder the safe 
practices of many railroads with regard to inspecting the train after 
an emergency application is made or leaving the train within the 
control of the locomotive engineer. FRA also agrees with those 
commenters that noted that FRA improperly suggested a change in the 
Notice of Public Regulatory Conference with regard to the time frame 
for checking the front-to-rear communications link. Consequently, FRA 
will leave the requirement at 10 minutes as proposed in the NPRM, 
rather than the 10 seconds contained in the Notice of Public Regulatory 
Conference.
    FRA further agrees with the AAR's recommendation that some leeway 
be provided in the requirement that the rear unit respond to only the 
front unit of that train in order to permit railroads to activate the 
rear unit from a location other than the front end, provided it can be 
done in such a way as to ensure the security of such a procedure. FRA 
believes this can be easily accommodated by changes in the wording 
contained in the proposal to permit the rear unit to respond to an 
emergency command from any ``properly associated front unit.'' This 
language should permit the flexibility desired by some railroads.
    FRA does not believe it would be beneficial to remove the provision 
requiring a separately labeled and manually controlled switch for 
initiating an emergency brake transmission command, as suggested by one 
commenter. At present, FRA is unfamiliar with the technology that would 
integrate the EOT's emergency application with the existing emergency 
brake controls. Implementation of integrated electronic controls of 
pneumatic brakes has not yet achieved the degree of reliability that 
would be desirable as a platform for this key safety function. Thus, 
FRA believes that such technology would best be introduced through a 
waiver or possibly through future regulations addressing the 
introduction of new technology, currently under consideration by the 
Railroad Safety Advisory Committee working group on freight power 
brakes.

E. Inspection and Calibration

    At the ANPRM stage, FRA received several comments regarding the 
batteries used in two-way EOTs. Several commenters suggested that the 
most frequent cause of failure of two-way EOTs is battery failure. 
These commenters also indicated that this problem could be cured by 
replacing batteries at initial terminals. Other commenters suggested 
that some minimum charge be required at initial terminals and that 
inspections be performed during all brake tests and at crew change 
points. Several commenters also suggested that interchangeable battery 
packs were necessary because some railroads were unable to charge the 
devices that come onto their lines from other railroads. Based on these 
comments, FRA proposed that any train equipped with a two-way EOT or 
its equivalent shall not depart from the point where the train is 
originally assembled unless (i) the device is capable of initiating a 
brake application from the rear of the train and (ii) the batteries of 
the device are charged to at least 75 percent of watt-hour capacity. 
See 59 FR 47734.
    At the public regulatory conference the issue of the amount of 
battery charge that should be required at initial terminals was 
discussed. Several commenters initially recommended that a percentage 
of watt-hour capacity be required at this location, ranging from 100 
percent to 50 percent. However, as the discussion progressed, it was 
apparent that many commenters favored some type of performance 
requirement. In its written comments, the AAR recommended that FRA 
merely require that the EOT be sufficiently charged so that it can be 
reasonably expected that the EOT will remain operative until the next 
terminal capable of charging the batteries or installing replacements. 
The AAR suggested that such an approach would ensure that the devices 
are sufficiently charged without the use of an arbitrary percentage 
that may be too high, requiring railroads to spend resources to 
unnecessarily charge batteries, or that may be too low to ensure a 
sufficient charge throughout the trip. Other commenters recommended 
that if a performance standard is adopted which requires sufficient 
battery charge to ensure completion of the train's trip then strict 
liability needs to attach to instances where depleted batteries are the 
cause of an en route failure. It was stressed that this sort of 
liability should apply only to the batteries supporting the telemetry 
capabilities of the devices, not to the rear-end marker function. As 
noted previously, most EOTs incorporate the rear-end marking device 
required by 49 CFR Part 221 into their design, and there are separate 
batteries within the rear units which provide power to these devices. 
Several commenters stated that if FRA were to limit the operating speed 
of trains experiencing en route failures of the devices then a 
performance standard related to battery charge would probably work 
since railroads would have an incentive to keep them charged.
    In addition to battery-charge requirements, there was some 
discussion as to what would be required at the initial terminal with 
regard to testing the devices to ensure they are capable of initiating 
a brake application from the rear of the train. Several parties 
commented that there were several different methods for testing such 
ability. Basically, four possible methods for testing the devices were 
identified in the various comments. One method would be to attach the 
device to the rear of the train and then have the controlling 
locomotive transmit an emergency brake application signal with the 
front unit causing an emergency application to be initiated from the 
rear of the train, thereby having the entire train effectuate an 
emergency application of the brakes. A second method would be to attach 
the device to the rear of the train, close the angle cock on the last 
or second-to-the-last car of the train (an angle cock is a lever which 
permits the closing of the brake pipe so that no air can travel past 
that point in the brake pipe), and then have the controlling locomotive 
transmit an emergency brake application signal from the front unit. 
Under this method only the last one or two cars of the train would 
effectuate an emergency brake application as the closed angle cock 
would prevent further propagation of the signal down the trainline. The 
third method would involve a check of the emergency valve on the rear 
unit after the unit is attached and armed, without placing any cars in 
the train into emergency. This method would require an emergency 
application to be transmitted by the controlling locomotive and then a 
visual check of the emergency valve on the rear unit to ensure the 
valve functions properly. The final method of inspection would be a 
bench test of the device which would be performed prior to the device 
being

[[Page 287]]

armed and placed on the train. One commenter suggested that if bench 
testing is permitted it should be required to be done within a short 
time prior to the device being placed on the train. The BRC recommended 
that, in addition to testing requirements, the FRA needed to require 
additional periodic inspections and maintenance to ensure the devices 
are working properly.
    In the NPRM, FRA also proposed to extend the calibration period for 
all EOTs from 92 days to 365 days. See 59 FR 47700, 47731. Currently, 
the regulations require one-way EOTs to be calibrated for accuracy 
every 92 days. See 49 CFR 232.19(h)(3). FRA based this proposed 
extension not only on its own experience but also on the comments 
received from several parties that the devices are fairly reliable and 
can operate for years without calibration. Furthermore, FRA stated that 
the 92-day calibration period was established at a time when there was 
little experience with the devices, noting that since that time, not 
only has calibration of the devices not proven to be a problem, but 
technology has further improved the reliability of the devices. 
Although several commenters, both at the ANPRM and NPRM stage, 
commented on the unreliability of the devices, these comments generally 
addressed either the failure of the railroads to properly perform the 
calibrations or the misuse of the devices. Comments submitted 
subsequent to the public regulatory conference basically reiterated the 
positions expressed previously. The AAR and manufacturers of the 
devices supported a 365-day calibration period, stating that the 
calibration of the devices does not drift periodically and that when 
the devices fail they fail completely, as the calibration of the 
devices does not deteriorate over time. One manufacturer commented that 
the mean time between failures of its devices is in excess of 15,000 
hours. The BRC restated its objection to the proposed extension of the 
calibration period citing carrier abuses of the devices and the extreme 
operating conditions under which the devices are used.

Conclusions

    FRA intends to adopt a performance standard relative to both the 
requirements for charging batteries as well as testing requirements at 
the initial terminal or point of installation of the devices. FRA 
agrees with many of the commenters that rather than merely picking a 
percentage of watt-hours to which the batteries must be charged at 
initial terminals, it would be much more effective to establish a 
performance standard for this requirement. Due to the fact that FRA 
intends to impose a speed limitation on trains that experience en route 
failures of the devices and since a vast majority of the en route 
failures are attributable to dead batteries, FRA believes there is a 
major incentive to the railroads to ensure the batteries are 
sufficiently charged. Consequently, FRA intends to establish a standard 
that requires the batteries on the rear unit to be sufficiently charged 
at the initial terminal or point of installation and throughout the 
train's trip to ensure that the device will remain operative throughout 
the trip. This requirement is only intended to apply to the batteries 
supporting the telemetry capabilities of the devices. Furthermore, as 
recommended by several commenters and agreed to by carrier 
representatives, FRA will impose a strict liability standard regarding 
failures due to insufficiently charged batteries; that is, it will be a 
per se violation if a device fails en route due to insufficiently 
charged batteries. FRA will rely on witness statements, interviews, and 
carrier repair records to establish whether a failure of the device was 
the result of insufficiently charged batteries.
    FRA also intends to require that the devices be inspected at the 
initial terminal or other point of installation to ensure that the 
device is capable of initiating an emergency brake application from the 
rear of the train. Rather than require a specific method of ensuring 
this capability, FRA will permit the railroads to develop a method that 
best fits the circumstances and their operations. At this time, FRA 
recognizes four different methods, discussed in detail above, that 
would be sufficient to test this capability; they include: dumping the 
whole train into emergency once the device is attached; closing the 
angle cock on the last one or two cars and then activating an emergency 
application on those cars; inspection and testing of the emergency 
valve on the device once it is attached to ensure it functions properly 
without placing any cars in emergency; and bench testing the devices 
prior to their being armed and placed on the train within a reasonable 
time period prior to attaching the device to the train. Use of a method 
other than those listed above will not be permitted if FRA finds that 
it does not sufficiently ensure that the device is capable of 
initiating an emergency brake application. Due to the speed limitation 
being imposed for en route failures, FRA does not believe it is 
necessary to mandate additional inspections or maintenance as the 
carriers have sufficient incentive to ensure the devices are adequately 
maintained.
    No new information was provided FRA in relation to the proposed 
extension of the calibration requirements from 92 days to 365 days. 
Consequently, FRA continues to believe, based on its own experiences 
and the comments submitted, that these devices are fairly reliable and 
can be operated for long periods of time without calibration problems. 
FRA believes that the current 92-day requirement is outdated due to 
improved technology and is not consistent with the reality that 
calibration of these devices has not proven to be a problem. 
Furthermore, FRA believes that much of the abuse and misuse of these 
devices cited by one commenter will be corrected due to the 
restrictions imposed on trains operating with devices that are 
defective or fail en route.

Section-by-Section Analysis

    As most of the issues and provisions have been discussed and 
addressed in detail in the preceding discussions, this section-by-
section analysis will explain the provisions of the final rule and 
changes from the NPRM by briefly highlighting the rationales or 
referring to the prior discussion. The discussions and conclusions 
contained above should be considered in conjunction with the analysis 
contained below. Each comment received has been considered by FRA in 
preparing this final rule. Because the provisions regarding two-way 
EOTs were part of a much broader NPRM addressing all power brake 
provisions, the section citations in the final rule will vary 
considerably from the citations referred to in the NPRM.

Section 232.21

    This new section of the regulations contains design standards for 
two-way EOTs. Except for a few modifications, as noted below, this 
section essentially contains the same requirements as proposed in the 
NPRM at Sec. 232.117 (59 FR 47731). This section indicates that two-way 
EOTs are to be designed not only in accordance with the standards 
contained in this section but also those contained in Sec. 232.19 
applicable to one-way devices, except those in Sec. 232.19(b)(3). FRA 
intends that enforcement actions taken pursuant to these design and 
performance requirements would be principally focused at manufacturers 
of the devices. It is noted that, failure to use a device meeting the 
design and performance criteria contained in this section could

[[Page 288]]

result in enforcement action against a railroad pursuant to 
Sec. 232.23(b).
    FRA has eliminated the requirement regarding the automatic 
restoration of the braking function by the rear equipment within 60 
seconds after it has initiated an emergency application as proposed in 
the NPRM at Sec. 232.117(e). FRA agrees with many of the commenters 
that requiring the braking function to be automatically restored within 
60 seconds after an emergency application has been initiated would 
hinder the safe practices of many railroads with regard to inspecting 
the train after an emergency application is made or leaving the train 
within the control of the locomotive engineer.
    Subsections (a)-(g) are unchanged from the provisions proposed in 
the NPRM at Sec. 232.117(a)-(d) and (f)-(h). These requirements pertain 
to the design and performance of the front and rear units necessary to 
ensure that a proper communication link exists between the front and 
rear units and to ensure that a safe and timely emergency brake 
application can and is initiated from the rear of the train. The only 
comments received regarding any of these provisions related to 
subsections (e) and (f). As noted earlier, one commenter requested that 
a separate, labeled, and protected emergency switch should not be 
mandated if the EOT's emergency application could be integrated into 
the existing emergency brake controls. As previously stated, FRA is 
unfamiliar with the technology that would integrate the EOT's emergency 
application with the existing emergency brake controls and thus, does 
not feel elimination of this requirement is appropriate. FRA believes 
that such technology would best be introduced through a waiver or 
possibly through future regulations addressing the introduction of new 
technology, currently under consideration by the Railroad Safety 
Advisory Committee working group on freight power brakes.
    In the Notice of Public Regulatory Conference, FRA attempted to 
clarify the proposal regarding the availability of the front-to-rear 
communications link being checked automatically by stating that the 
NPRM inadvertently contained a 10-minute, instead of a 10-second, 
requirement. See 61 FR 6614. Several parties commented on this 
clarification, including the manufacturers of the devices, stating that 
the 10-second requirement would be impossible to meet with current 
technology and would result in a battery drain within a short time. 
These commenters stated that FRA correctly proposed a 10-minute 
requirement in the NPRM as that is the current industry standard and 
has been the standard for devices used in Canada for several years. FRA 
agrees with these commenters and will leave the requirement at 10 
minutes as proposed in the NPRM.
    Subsection (h) has been modified slightly from that proposed in the 
NPRM at Sec. 232.117(i) by replacing the word ``its'' with the phrase 
``a properly.'' This revision is made in response to a recommendation 
by the AAR that some leeway be provided in the requirement that the 
rear unit only respond to front unit of that train to permit railroads 
to activate the rear unit from a location other than the front unit of 
the train, provided it can be done in such a way as to ensure the 
security of such a procedure. FRA believes the revised language permits 
the rear unit to respond to an emergency command from any properly 
associated front unit and, thus, should permit the flexibility desired 
by some railroads.

Section 232.23

     This new section of the regulations contains the operating 
requirements related to two-way EOTs. This section also contains 
general applicability standards and identifies those operations 
excepted from the requirements related to two-way EOTs.
    Subsection (a) contains the definitions of key terms necessary for 
identifying those operations excepted from the requirements related to 
two-way EOTs. These definitions are intended solely for determining the 
applicability of the requirements related to two-way EOTs and should 
not be used in connection with other provisions contained in FRA 
regulations. With the exception of the definition of a ``train'' 
contained in (a)(2), the other definitions contained in this section 
have been revised from those proposed in the NPRM at Sec. 232.5 (59 FR 
47723-26) based on a review of the accident data and the comments 
received.

Heavy Grade

    (For a detailed discussion of the all the comments, issues, and 
conclusions involving this definition, interested parties should review 
the preceding discussion regarding the definition of heavy grade 
contained in part A of the ``Discussion of Comments and Conclusions'' 
portion of this document.) Although FRA used the term ``mountain 
grade'' to describe this idea in previous proposals, FRA has 
determined, in order to avoid confusion and remain consistent with the 
statutory provision, it will use the term ``heavy grade'' in the final 
rule. FRA will use a bi-level approach in defining heavy grade, using 
the total trailing tons of the train as one factor in determining 
whether a train is operating on a heavy grade and, thus, subject to the 
requirements related to two-way EOTs. A train operating with 4,000 
trailing tons or less will be considered to be operating on a heavy 
grade if a section of track over which it operates has an average grade 
of 2 percent or greater for a distance of 2 miles. A train operating 
with greater than 4,000 trailing tons will be considered to be 
operating on a heavy grade if a section of track over which it operates 
has an average grade of 1 percent or greater for 3 miles. FRA feels 
this definition is consistent with the available accident data and 
addresses many of the concerns raised in the comments submitted.

Local Train

    (See part the preceding ``Discussion of Comments and Conclusions'' 
portion of this document under the heading ``Applicability'' for a 
detailed discussion of this issue.) Although FRA believes Congress 
intended an exception for local trains, FRA believes that Congress 
intended for the term to be narrowly construed. Rather than attempt to 
narrowly construe the term in the exceptions portion of the rule as was 
done in the NPRM, FRA decided to narrowly define the term based on the 
traditional idea of what constitutes a local train. Consequently, FRA 
has limited the distance such a train moves to that which can be 
operated by a single crew in a single tour of duty and has limited the 
size of the trains to 4,000 trailing tons or less. FRA also believes 
this definition is consistent with the overall structure of these 
requirements. If a train, even though designated by a railroad as a 
local train, falls outside the parameters contained in this definition 
then, it will be considered an ordinary train subject to the two-way 
EOT requirements.

Work Train

    (See the preceding ``Discussion of Comments and Conclusions'' 
portion of this document under the heading ``Applicability'' for a 
detailed discussion of this issue.) FRA used the same reasoning for 
defining work trains as is it did for local trains. If a train fails to 
meet the definition contained in this subsection, even though labeled a 
work train by the railroad, it will be considered an ordinary train 
subject to the two-way EOT requirements.
    Subsection (b) contains the general requirement for equipping 
trains with two-way EOTs. FRA recognizes that the Class I, II, and III 
railroads have voluntarily committed to equip the vast

[[Page 289]]

majority of the trains covered by these rules by the effective date of 
the requirements. Therefore, FRA believes that an effective date of 
July 1, 1997 is a realistic deadline for complying with these 
requirements. FRA will consider extending this date only in the event 
that manufacturing delays result in a railroad's inability to secure an 
adequate number of the devices; however, FRA will not consider 
extension of the effective date beyond the statutorily mandated date of 
December 31, 1997. This section also provides that in order to be 
properly equipped the two-way EOT must meet the performance criteria 
contained in Sec. 232.21.
    Subsections (c) and (d) basically contain the statutory 
requirements regarding present and future purchases of EOT devices. 
These provisions require that all EOTs purchased after one year from 
the date of publication of these requirements shall have two-way 
capabilities meeting the design and performance requirements contained 
in Sec. 232.21 and that all two-way devices acquired prior to the 
promulgation of this rules shall be grandfathered as meeting the design 
and performance requirements contained in Sec. 232.21. In essence, 
these requirements eventually result in one-way EOTs being gradually 
phased out of use as they are replaced by two-way EOTs.
    Subsection (e) contains a listing of those trains that are excepted 
from the requirements relating to two-way EOTs, previously proposed in 
the NPRM at Sec. 232.813(e) (59 FR 47743). The majority of the 
exceptions were specifically provided for in the statute. See 49 U.S.C. 
Sec. 20141(c). FRA has revised the exceptions contained in paragraphs 
(e)(1) and (e)(2) from those proposed in the NPRM, in order to clarify 
the scope of the exceptions. Paragraph (e)(1) has been rewritten to 
ensure that the locomotive located in the rear third of the train has 
the capability to initiate an emergency brake application and is in 
continuous communication with the controlling locomotive. Paragraph 
(e)(2) has been revised to clarify that the exception is for trains 
operating in a push mode only if the locomotive at the rear of the 
train has the ability to initiate an emergency brake application from 
that location. Paragraph (e)(3) has been revised to ensure that the 
caboose is manned by a crew member and is equipped with an emergency 
brake valve. The local and work train exceptions contained in 
paragraphs (e)(6) and (e)(7) have been revised from those proposed in 
the NPRM to remain consistent with the definitions contained in 
subsection (a) and are limited in that the exception does not apply if 
these types of trains are operating on heavy grade. As the definitions 
of both ``local train'' and ``work train'' limit their size to 4,000 
trailing tons or less, heavy grades for these trains will be sections 
of track with an average grade of 2 percent or greater for 2 miles. 
(See the preceding ``Discussion of Comments and Conclusions'' portion 
of this document under the ``Applicability'' heading for a detailed 
discussion of this issues related to local and work trains and other 
exceptions.)
    Subsection (f)(1) requires that the devices be properly armed and 
operable at the time a train departs from the point where the device is 
installed. FRA believes that this requirement, although not 
specifically contained in the NPRM, could have be inferred from the 
proposed initial terminal requirements regarding these devices at 
Sec. 232.309 (59 FR 47734) and the testing and inspection requirements 
contained in Sec. 232.25. However, several commenters wanted a specific 
provision contained in the final regulations to prevent any confusion 
or misunderstanding.
    Subsection (f)(2) contains the performance standard related to the 
amount of battery charge required when the devices are in use. The 
standard requires that the batteries on the rear units be sufficiently 
charged at the train's initial terminal or the point where the device 
is installed and throughout the train's trip to ensure that the device 
will remain operative until the train reaches destination. In the NPRM 
at Sec. 232.309(e) (59 FR 57734), FRA proposed a 75 watt-hour 
requirement for the batteries at initial terminals; however, based the 
comments received as discussed above, FRA believes this is an ideal 
situation in which to use a performance standard. Due to the speed 
restrictions being mandated for en route failures, coupled with FRA's 
intent to apply strict liability for en route failures due to 
insufficiently charged batteries, FRA feels there are sufficient 
incentives for railroads to ensure that the batteries on the rear units 
are sufficiently charged at all times. This requirement is intended 
only to apply to the batteries supporting the telemetry capabilities of 
the devices. FRA does not intend this provision to require that the 
place where the batteries should be sufficiently charged for the train 
to reach its final destination should be the initial terminal or the 
point where the device is installed; it is within the railroad's 
discretion to determine when and where the batteries will be charged, 
and railroads should be cognizant of their strict liability for failure 
of the batteries en route and mindful of the speed restrictions that 
will be imposed. (See the preceding ``Discussion of Comments and 
Conclusions'' portion of this document under the ``Inspection and 
Calibration'' heading for a detailed discussion of this issue.)
    Subsection (g) contains the speed restriction being placed on 
trains that experience en route failure of the devices. This is 
identical to the restriction proposed in the NPRM at Sec. 232.815(f) 
(59 FR 47743). This subsection also contains the definition of when a 
loss of communication between the front and rear units will be 
considered an en route failure. If a train experiences an en route 
failure of the two-way EOT, it will be required to limit its speed to 
30 mph. FRA believes this is a logical outgrowth of the requirement 
that trains operating in excess of 30 mph be equipped with the devices. 
FRA believes that failure of these devices will be very rare and that 
the concerns raised by several commenters regarding the costs and 
delays associated with this requirement are not justified. FRA further 
believes that many of the failures currently reported will be greatly 
reduced since a majority of them are the result of depleted batteries, 
which FRA feels will be a thing of the past due to this speed 
restriction and the requirements contained in this rule regarding the 
charging of batteries. The definition of when a loss of communication 
between the front an rear units will be considered an ``en route 
failure'' is based on the automatic communications built into the 
devices. FRA does not intend for brief losses of communication to be 
considered failures en route since these brief gaps should be overcome 
by the increase in the wattage at which the emergency signal is 
transmitted and continuous rate at which the signal calling for an 
emergency brake application is transmitted. (See the preceding 
``Discussion of Comments and Conclusions'' portion of this document 
under the ``En Route Failures'' heading for a detailed discussion of 
these issues.)
    Paragraph (g)(1) of this subsection contains the operating 
restrictions for trains which experience en route failures of the two-
way EOT when operating on especially heavy grades. Although FRA 
believes that the requirements limiting the speed of a train operating 
with a defective device, as well as the inspection and battery charge 
requirements, are sufficient to ensure the prompt repair or replacement 
of defective units and to ensure that the devices will be operational 
throughout a train's trip in most instances, FRA

[[Page 290]]

believes that additional safeguards must be provided when a train 
experiences a failure of its two-way EOT when operating on particularly 
heavy grades. FRA believes these added safeguards are necessary for 
those trains that operate over sections of track with an average grade 
of 2 percent or greater for 2 continuous miles. (See the preceding 
``Discussion of Comments and Conclusions'' portion of this document 
under the ``En Route Failures'' heading for a detailed discussion of 
these issues.)

Section 232.25

    This new section of the regulation contains the inspection, 
testing, and calibration requirements related to EOT devices. This 
section contains the provisions previously contained in Sec. 232.19(h) 
but with some revisions, as noted below.
    Subsections (a) and (b) basically contain the provisions previously 
contained in Sec. 232.19(h)(1) and (h)(2). Although these provisions 
previously pertained only to one-way EOTs, FRA intends them to be 
equally applicable to two-way EOTs and proposed that in the NPRM at 
Sec. 232.115 (59 FR 47730). The provisions contain the language ``after 
each installation'' as proposed in order to clarify when these 
requirements are to be performed.
    Subsection (c) contains a type of performance standard test that is 
to be performed at the initial terminal of the train or at the point 
where a two-way EOT is first installed on the train, as an EOT device 
may not always be installed at the initial terminal. At these locations 
the devices must be tested to ensure that they are capable of 
initiating an emergency brake application from the rear of the train. 
In the preceding discussion, FRA indicated that it intended to leave it 
to the railroad's discretion as to how this test will be conducted. FRA 
recognized that there are currently four different acceptable methods 
of performing this test: dumping the whole train into emergency once 
the device is attached; closing the angle cock on the last one or two 
cars and then activating an emergency of those cars; inspection of the 
emergency valve on the device once it is attached to ensure it 
functions properly without placing any cars into emergency; and bench 
testing the devices prior to their being armed and placed on the train 
within a reasonable time period of attaching the device to the train. 
FRA also noted that use of a method other than those contained above 
will not be permitted, if FRA finds that it does not sufficiently 
ensure that the device is capable of initiating an emergency brake 
application. This subsection also requires that if the testing of the 
device is conducted by an individual other than a member of the train 
crew then the locomotive engineer be informed that the test was 
performed. (See the preceding ``Discussion of Comments and 
Conclusions'' portion of this document under the ``Inspection and 
Calibration'' heading for a detailed discussion of these issues.)
    Subsection (d) contains the calibration and recordkeeping 
requirements for EOT devices as previously proposed in the NPRM at 
Sec. 232.115(h)(3) (59 FR 47731). FRA continues to believe, based on 
its own experiences and the comments submitted, that these devices are 
fairly reliable and can be operated for long periods of time without 
calibration problems. FRA believes that the current 92-day requirement 
is excessive due to improved technology and is not consistent with the 
reality that calibration of these devices has not proven to be a 
problem. Furthermore, FRA believes that much of the abuse and misuse of 
these devices cited by one commenter will be corrected due to the 
restrictions imposed on trains operating with devices that are 
defective or fail en route. (See the preceding ``Discussion of Comments 
and Conclusions'' portion of this document under the ``Inspection and 
Calibration'' heading for a detailed discussion of these issues.)

Regulatory Impact

    This rulemaking is the result of a specific and direct legislative 
mandate that required use of an existing technology to prevent 
accidents caused by obstructions of train air brake lines. FRA has 
sought to carry out that mandate, issuing regulations necessary for 
safety. FRA has also conducted a regulatory impact analysis and an 
assessment of impacts upon small entities under the Regulatory 
Flexibility Act.
    The final rule seeks to prevent very serious accidents associated 
with loss of braking control on freight trains, focusing on scenarios 
posing serious risk while avoiding the creation of exceptions that 
could undermine the purpose the statute sought to achieve. Analysis 
conducted in support of this proceeding has assisted in the crafting of 
a final rule that provides flexibility to employ various technologies 
to achieve the regulatory purpose.
    The analysis below reports the results of economic analysis using 
historical data as the basis for estimating future risk, discusses the 
limitations of that approach, and indicates the agency's rationale for 
striking the balance included in the final rule. A key component of 
that rationale is the recognition that the actual consequences of 
catastrophic accidents are difficult or even impossible to predict. 
Given the grave potential for serious consequences from accidents 
caused by loss of braking control on freight trains, FRA has applied 
that focus on risk reduction. The natural consequence of that strategy 
is relief for smaller railroads operating lighter trains at reduced 
speeds, except in the limited instances where very heavy grades must be 
negotiated.
    The consequences of an accident caused by a run-away train tend to 
be extreme, with potential for deaths, economic disruption and lasting 
environmental damage. An example of this type of disaster, discussed 
below, occurred on February 1, 1996 in Cajon Pass in California. The 
value of casualties, which included: 2 fatalities, 1 severe injury, and 
32 minor injuries (32 emergency responders required medical treatment 
due to inhalation of toxic chemicals) combined with damages due to 
railroad property damage and casualties, would be approximately $9.8 
million. Costs to the United States Environmental Protection Agency for 
monitoring environmental clean-up and mitigation (through May 1996) 
were $16,014. The costs to the involved railroad for environmental 
damages were estimated at approximately $4.2 million. These damages are 
included in the economic analysis discussed below with a total value of 
approximately $14 million, for railroad property, casualties, and 
environmental damages.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
regulatory policies and procedures and is considered to be significant 
under DOT policies and procedures (44 FR 11304) because of 
Congressional and public interest in promoting rail safety. This final 
rule has also been reviewed under Executive Order 12866 and is 
considered ``significant'' under that Order. Consequently, FRA has 
prepared a regulatory evaluation addressing the economic impact of the 
proposed rule. The regulatory evaluation estimates the economic costs 
and consequences of this proposed rule as well as its anticipated 
benefits and impacts. This regulatory evaluation has been placed in the 
docket and is available for public inspection and copying during normal 
business hours on the Seventh Floor, Office of Chief Counsel, FRA, 1120 
Vermont Avenue, N.W., Washington, D.C. Copies may also be obtained by

[[Page 291]]

submitting a written request to the FRA Docket Clerk at Room 8201, 400 
Seventh Street, S.W., Washington, D.C. 20590.
    Potential costs and benefits of the proposed rule were calculated 
for a 20-year period using the seven percent discount rate required by 
Federal regulatory guidelines. It is estimated that the net present 
value (NPV) costs associated with the rule total approximately $264 
million over the 20-year period of analysis. Our analysis of the 
historical accidents that could have been prevented by two-way EOTs 
indicates that about three accidents per year may not have occurred had 
these devices been in place. Assuming that the same type of accidents 
would continue to occur in the absence of two-way devices, we have 
calculated that the benefit of installing these devices will result in 
a reduction of accidents, casualties and damages worth approximately 
$92 million over 20 years (again, discounted to present value).
    Although FRA identified 26 potentially preventable accidents in its 
Notice of Public Regulatory Conference (61 FR 6615), the number of 
potentially preventable accidents was reduced to sixteen for purposes 
of this regulatory impact analysis based on comments received and an 
application of the provisions of this final rule to the factual 
situations of each of the accidents. In quantifying the benefits 
related to this final rule, FRA generally identified two types of 
accidents which could be prevented through the use of two-way EOTs. 
These included accidents due to brake pipe obstruction and accidents 
due to other brake related problems. An effectiveness rate was then 
assigned to each of the accidents based on the level of confidence by 
FRA safety experts that the accidents could have been prevented had the 
train been equipped and used a two-way EOT. The property damages and 
costs related to injuries and fatalities associated with each of the 
potentially preventable accidents are contained in Table 1 below.

                                                       Table 1--Potentially Preventable Accidents                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             RR PROPERTY                     ACCIDENTS  
   DATE                  PLACE                              CAUSE                  INJURIES    FATALITIES  UPDATED TO 12/     RATE OF       PREVENTABLE 
                                                                                                                95 $       EFFECTIVENESS      BENEFIT   
--------------------------------------------------------------------------------------------------------------------------------------------------------
910918...  Sprague, WA......................  OBSTRUCTED BRAKE PIPE............            4            1      $4,327,634           0.9       $6,883,771
910304...  Waterfall, WY....................  OTHER BRAKE RELATED..............            4            0       1,626,483           0.5          824,041
920307...  Kansas City, MO..................  OBSTRUCTED BRAKE PIPE............            2            0         492,307           0.9          452,796
920611...  Money, MS........................  OTHER BRAKE RELATED..............            2            0         677,113           0.5          343,956
931001...  Keystone, NB.....................  OBSTRUCTED BRAKE PIPE............            2            0       2,653,038           0.9        2,463,064
931011...  Fulton, KY.......................  OTHER BRAKE RELATED..............            0            0          14,589           0.5            7,295
931221...  Wood, IA.........................  OTHER BRAKE RELATED..............            0            0         428,535           0.5          214,268
931225...  Seward, NB.......................  OBSTRUCTED BRAKE PIPE............            4            0       1,947,358           0.9        3,575,122
940118...  Cowen, WV........................  OBSTRUCTED BRAKE PIPE............            0            0       1,381,380           0.9        1,243,242
940907...  Gillette, WY.....................  OTHER BRAKE RELATED..............            0            0       3,677,160           0.9        3,309,444
941122...  Tenn Pass, CO....................  OBSTRUCTED BRAKE PIPE............            1            0       1,503,495           0.9        3,206,020
941214...  Cajon, CA........................  OBSTRUCTED BRAKE PIPE............            3            0       4,058,544           0.9        3,936,999
950209...  Nelsons, WI......................  OTHER BRAKE RELATED..............            1            0          30,696           0.9           65,291
950406...  Argonne, MI......................  OTHER BRAKE RELATED..............            0            1         268,529           0.9        2,671,676
960201...  Cajon, CA........................  OBSTRUCTED BRAKE PIPE............           32            2       3,756,294           0.9       15,851,369
960214...  E. St. Paul, MN..................  OBSTRUCTED BRAKE PIPE............            9            0       2,723,956           0.9        3,504,965
          ----------------------------------------------------------------------------------------------------------------------------------------------
  .......    TOTAL..........................    ...............................           65            4      29,567,109                     48,553,320
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Although the quantified benefits of the proposed rule are exceeded 
by the estimated costs, with a NPV cost of approximately $172 million 
over 20 years, FRA believes that the accident information collected by 
FRA does not adequately reflect the true costs to society due to brake-
related accidents. Further, as discussed below, considerable variation 
in accident severity can be expected.
    The potential benefits, which have not been quantified in this 
analysis due to a lack of information, may equal or substantially 
exceed the benefits which have been quantified. As shown in the most 
recent ``preventable'' accidents identified by FRA, there is a 
significant risk that similar accidents in the future could release 
large amounts of hazardous materials which, if the accident occurred in 
a densely populated or environmentally sensitive area, could produce 
truly catastrophic results. The costs of evacuation and medical 
treatment for those near the accident site could be substantial, and 
associated road closures also produce significant economic impact to 
travelers

[[Page 292]]

and the communities nearby. Should a hazardous material release impact 
a river or stream, the consequences to wildlife in the area could also 
be severe and lasting. The costs associated with these types of 
accidents could be extremely high and, as these types of costs 
(potential benefits) have not been calculated in this analysis, the 
benefit estimations are extremely conservative. For cost/benefit 
analyses to serve their purpose well, all reasonably foreseeable 
damages should be accounted for, not merely those that have already 
chanced to occur.

Evaluation of Risk and Requirements to Equip Trains

    The FRA recognizes that the base case economic analysis for this 
rulemaking suggests caution. Nevertheless, the FRA has determined that 
exceptions to the requirement for two-way EOTs should be drawn with 
great care, respecting the intent of the statutory exceptions without 
creating potential loopholes that could seriously erode the beneficial 
safety impacts intended by the Congress. In doing so, FRA has been 
mindful of the need to ensure impacts on small entities are limited to 
the extent possible given the specific commands of the congressional 
mandate. These choices have caused FRA to focus on train speed, grade, 
and tonnage as critical factors in determining what trains should be 
equipped with two-way EOTs and in determining the appropriate response 
when this equipment fails en route. FRA has proceeded in this manner 
both because the agency wished to be faithful to the level of safety 
determined by the statute to be appropriate in this context and because 
a common sense approach to analysis of the appropriate risks indicates 
the need to act decisively. This approach recognizes the role of 
accident frequency, accident causation, and accident severity.
    In addition to performing an economic analysis employing historic 
accident patterns to project future risk (and thus prospective 
benefits), FRA has considered the potential volatility of the future 
risk associated with absence of two-way EOTs. When the Congress began 
hearings on the legislation that underlies this rulemaking in 1991, 
advocates of the technology were hard-pressed to cite specific and 
sustainable examples of accidents potentially preventable through use 
of two-way telemetry. A decade had just closed during which cabooses 
had been removed from trains, and initial experience had been 
relatively favorable. From the perspective of 1996, the need for this 
technology is much more evident, with the frequency of preventable 
events having proven higher than would have been expected. Accidents 
preventable by this technology but involving trains not utilizing the 
technology have continued into the current year, notwithstanding the 
fact that railroads have, in fact, made strides toward full compliance 
with two-way EOT requirements by the outside statutory deadline of 
December 31, 1997 (an effort recently accelerated to meet earlier 
voluntary deadlines).
    The consequences of an accident depend on many factors which may 
not be related to the cause of the accident, such as the location of 
the train or the lading it transports. In either a densely populated or 
environmentally sensitive area, the consequences of an accident may be 
more severe than an accident in a less critical location. Likewise, a 
hazardous materials release is much more likely to have more severe 
effects (such as death, explosions, or environmental damage) than a 
grain spill in the same location. When considering the potential 
benefits which may be produced by avoiding the type of brake-related 
accidents targeted by this rule, it is therefore not sufficient to look 
only at the consequences of past accidents with similar causes. One 
should also look for indications in those past accidents for the 
reasonable potential for greater catastrophe. In this context, 
accidents caused by loss of braking control on freight trains (as can 
occur, among other reasons, due to brake pipe obstructions) tend to 
have a rather high potential for casualties, very substantial property 
damage, and considerable risk of environmental damage when hazardous 
materials are in the consist. Because derailment or collision will 
often occur due to overturning on curves or entering congested areas, 
third party casualties and property damage can also be substantial.
    An example of the potential severity of an accident caused by loss 
of braking control, other than those noted above, may be illustrated by 
the circumstances surrounding the accident occurring on May 12, 1989 in 
which a Southern Pacific Transportation Company train accelerated out 
of control descending a 2.2 percent grade into San Bernardino, 
California. Two employees were killed and three injured. The accident 
destroyed seven residences adjacent to the right-of-way, killing two 
residents and injuring a third. A 14-inch gasoline pipeline which may 
have been damaged in either the accident or ensuing clean-up, ruptured 
13 days later, resulting in the death of two additional residents, 
serious injuries to two residents, and minor injuries to 16 others. 
Eleven additional homes were destroyed, along with 21 motor vehicles. 
Total property damages in the derailment and pipeline rupture exceeded 
$14 million. While this accident was not preventable through use of a 
two-way EOT system, exactly the same consequences could result from a 
loss of control that would be preventable by this technology.
    Another example would be the accident that occurred at Helena, 
Montana, on February 2, 1989, in which freight cars from a Montana Rail 
Link train rolled eastward down a mountain grade and struck a helper 
locomotive consist, slightly injuring two crew members. Hazardous 
materials in the consist included hydrogen peroxide, isopropyl alcohol, 
and acetone. Release of these hazardous materials later resulted in a 
fire and explosions, necessitating the evacuation of approximately 
3,500 residents of Helena for over two days. According to the National 
Transportation Safety Board, railroad and other property damage 
exceeded $6 million, and all of the buildings of Carroll College 
sustained damage. The City of Helena received 154 reports of property 
damage from residents within a three-mile radius of the accident. As a 
result of this accident, the Board recommended that FRA ``require the 
use of two-way end-of-train telemetry devices on all cabooseless trains 
for the safety of railroad operations.'' (NTSB Report RAR-89/05 at 19-
20, 76.) Although in FRA's judgment it is unlikely that the Helena 
accident would, in fact, have been prevented by a two-way EOT system 
due to the prior gradual leakage of brake pipe pressure from the train 
line, other potential accidents with similar or even more serious 
consequences certainly could be prevented.
    Consequently, based on the potential for catastrophic results of an 
accident of this type, FRA cannot make the finding that a less 
restrictive rule would be consistent with safety. A train without the 
ability to properly control its speed and stop due to brake problems 
represents an unacceptable risk to tolerate, given the availability of 
relatively inexpensive and highly reliable technology that can greatly 
reduce or even eliminate that risk. Existing types of automatic train 
brakes generally fail safe, but not when there is an obstruction of the 
train line. As noted above, train line obstructions are known to occur. 
The technology mandated by this rule addresses this need, and use of 
the technology will provide a high level of confidence that the failure 
mode will not permit a catastrophe. That is, it is not necessary to 
speculate regarding the

[[Page 293]]

existence of an unacceptable hazard nor the effectiveness of the 
countermeasure. As affirmed by the 1992 congressional mandate, it would 
be irresponsible public policy to withhold action until the occurrence 
of an accident or accidents of sufficient magnitude to permit 
completion of an economic analysis showing a positive benefit-to-cost 
ratio for the primary case.
    FRA believes this legislatively mandated rule balances the need to 
reduce the risk of a truly catastrophic event with the need to minimize 
costs to freight railroad operations. FRA has not been able to identify 
additional exceptions to the requirement for two-way EOTs that could be 
considered to be consistent with safety, given the hazard addressed by 
the statutory mandate and the realities of railroad operations.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires an assessment of the impacts of proposed rules on small 
entities, unless the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    The Small Business Administration (SBA) uses an industry wide 
definition of small business based on employment. Railroads are 
considered small by SBA definition if they employ fewer than 1,500 
people. FRA typically employs the classification system of the Surface 
Transportation Board (STB), which is based on operating revenue, where 
a Class II railroad has operating revenue greater or equal to $40 
million dollars but less than $253.7 million and a Class III railroad 
has operating revenue below $39 million. This proposed rule affects 
many of the larger regional railroads and some of the larger short line 
railroads (i.e, Class II and III railroads). After consulting with the 
Office of Advocacy of the SBA, the STB/FRA classification system was 
used in this analysis.
    Most short line railroads (Class III) will not be required to 
purchase or use two-way EOTs, and thus, will not be affected by the 
provisions of this final rule. The American Short Line Railroad 
Association (ASLRA), an organization that represents short line 
railroads, submitted comments to FRA Docket No. PB-9 subsequent to the 
public regulatory conference conducted in March of 1996 which 
referenced the results of a survey they had conducted of their member 
railroads. Their survey results indicated that out of a total of 287 
railroads that responded to the survey, only 32 railroads operate at 
speeds in excess of 30 mph and only 21 of the railroads operate in 
heavy grades of two percent over two miles. Of the 21 railroads 
operating in these heavy grades 17 of them operate trains with an 
average tonnage of less than 4,000 trailing tons. The ASLRA recommended 
that lower tonnage trains be excluded from any definition of heavy 
grade. After reviewing the accident data, FRA has adopted a definition 
of heavy grade based on a two-tier approach which permits trains 
operating with 4,000 trailing tons or less to operate over certain 
heavy grades (less than 2% over 2 miles) without being equipped with a 
two-way EOT.
    Although the ASLRA did not have an opportunity to comment on the 
definition of heavy grade for heavier trains, conversations with ASLRA 
representatives and FRA track experts indicate that between 50 and 70 
percent of short line railroads operate trains in territory where an 
average grade of one percent over three miles would be encountered. 
However, most of these railroads do not operate at speeds greater than 
30 mph, nor do they have average train tonnage in excess of 4,000 
trailing tons. It is believed that the rule will primarily impact only 
those short line railroads which operate in heavy grades of two percent 
or greater over a distance of two miles. The ASLRA estimated that its 
member railroads would need to acquire approximately 1,100 two-way EOTs 
to comply the proposal submitted by the AAR. In the regulatory impact 
analysis FRA estimated the number of devices required by short line 
railroads to be 1,146 in order to comply with the final rule.
    In reviewing the economic impact of the rule, FRA has concluded 
that it will have a small economic impact on small entities. Therefore, 
it is certified that this rule will not have a significant economic 
impact on a substantial number of small entities under the provisions 
of the Regulatory Flexibility Act.
    FRA has prepared a regulatory flexibility assessment addressing the 
impact of the final rule on small entities. The regulatory flexibility 
assessment has been placed in the docket and is available for public 
inspection and coping during normal business hours in on the Seventh 
Floor, Office of Chief Counsel, FRA, 1120 Vermont Avenue, N.W., 
Washington, D.C. Copies may also be obtained by submitting a written 
request to the FRA Docket Clerk at Room 8201, 400 Seventh Street, S.W., 
Washington, D.C. 20590.

Paperwork Reduction Act

    This final rule contains information collection requirements. 
Because the policy of the Federal Government is to minimize the 
regulatory record keeping burden placed on private industry, a separate 
analysis of the record keeping burden resulting from the final rule was 
performed.
    FRA will submit these information collection requirements to the 
Office of Management and Budget (OMB) for approval under the provisions 
of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. Persons 
desiring to comment regarding the burden estimate or any other aspect 
of this collection of information, including suggestions for reducing 
this burden, should submit their views in writing to: Ms. Gloria 
Swanson, Office of Safety, RRS-21, Federal Railroad Administration, 400 
Seventh Street, S.W., Room 8314, Washington, D.C. 20590; and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, ATTN: Desk Officer for FRA (OMB No. 2130-New), New Executive 
Office Building, 726 Jackson Place, N.W., Room 3201, Washington, D.C. 
20503. Copies of any such comments should also be submitted to the 
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 
400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements when they do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new or revised information collection requirements resulting 
from this rulemaking action prior to the effective date of this final 
rule. The OMB control number, when assigned, will be announced by 
separate notice in the Federal Register.

Environmental Impact

    FRA has evaluated this final rule in accordance with its procedures 
for ensuring full consideration of the environmental impact of FRA 
actions, as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and DOT Order 5610.1c. It has been determined that this final rule will 
not have any effect on the quality of the environment.

[[Page 294]]

Federalism Implications

    This final rule will not have a substantial effect on the States, 
on the relationship between the national government on the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Thus, in accordance with Executive Order 12612, 
preparation of a Federalism Assessment is not warranted.

List of Subjects

49 CFR Part 232

    Railroad safety, Railroad power brakes, Two-way end-of-train 
devices.

The Rule

    In consideration of the foregoing, FRA amends chapter II, subtitle 
B of title 49, Code of Federal Regulations as follows:

PART 232--RAILROAD POWER BRAKES AND DRAWBARS

    1. The authority citation for part 232 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102, 20103, 20107, 20108, 20110-20112, 
20114, 20133, 20301-20304, 20701-20703, 21301, 21302, 21304, and 
21311; Pub. L. 103-272 (1994); and 49 CFR 1.49 (c), (g), and (m).

    2. Section 232.19 is amended by removing paragraph (h), by revising 
the section heading and by revising paragraph (a) to read as follows:


Sec. 232.19  Design standards for one-way end-of-train devices.

    (a) A one-way end-of-train device shall be comprised of a rear-of-
train unit (rear unit) located on the last car of a train and a front-
of-train unit (front unit) located in the cab of the locomotive 
controlling the train.
* * * * *
    3. Sections 232.21, 232.23, and 232.25 are added to read as 
follows:


Sec. 232.21  Design and performance standards for two-way end-of-train 
devices.

    Two-way end-of-train devices shall be designed and perform with the 
features applicable to one-way end-of-train devices described in 
Sec. 232.19, except those included in Sec. 232.19(b)(3). In addition, a 
two-way end-of-train device shall be designed and perform with the 
following features:
    (a) An emergency brake application command from the front unit of 
the device shall activate the emergency air valve at the rear of the 
train within one second.
    (b) The rear unit of the device shall send an acknowledgment 
message to the front unit immediately upon receipt of an emergency 
brake application command. The front unit shall listen for this 
acknowledgment and repeat the brake application command if the 
acknowledgment is not correctly received.
    (c) The rear unit, on receipt of a properly coded command, shall 
open a valve in the brake line and hold it open for a minimum of 15 
seconds. This opening of the valve shall cause the brake line to vent 
to the exterior.
    (d) The valve opening and hose shall have a minimum diameter of \3/
4\ inch to effect an emergency brake application.
    (e) The front unit shall have a manually operated switch which, 
when activated, shall initiate an emergency brake transmission command 
to the rear unit. The switch shall be labeled ``Emergency'' and shall 
be protected so that there will exist no possibility of accidental 
activation.
    (f) The availability of the front-to-rear communications link shall 
be checked automatically at least every 10 minutes.
    (g) Means shall be provided to confirm the availability and proper 
functioning of the emergency valve.
    (h) Means shall be provided to arm the front and rear units to 
ensure the rear unit responds to an emergency command only from a 
properly associated front unit.


Sec. 232.23  Operations requiring use of two-way end-of-train devices; 
prohibition on purchase of nonconforming devices.

    (a) The following definitions are intended solely for the purpose 
of identifying those operations subject to the requirements for the use 
of two-way end-of-train devices.
    (1) Heavy grade means:
    (i) For a train operating with 4,000 trailing tons or less, a 
section of track with an average grade of two percent or greater over a 
distance of two continuous miles; and
    (ii) For a train operating with greater than 4,000 trailing tons, a 
section of track with an average grade of one percent or greater over a 
distance of three continuous miles.
    (2) Train means one or more locomotives coupled with one or more 
rail cars, except during switching operations or where the operation is 
that of classifying cars within a railroad yard for the purpose of 
making or breaking up trains.
    (3) Local train means a train assigned to perform switching en 
route which operates with 4,000 trailing tons or less and travels 
between a point of origin and a point of final destination, for a 
distance that is no greater than that which can normally be operated by 
a single crew in a single tour of duty.
    (4) Work train means a non-revenue service train of 4,000 trailing 
tons or less used for the administration and upkeep service of the 
railroad.
    (5) Trailing tons means the sum of the gross weights--expressed in 
tons--of the cars and the locomotives in a train that are not providing 
propelling power to the train.
    (b) All trains not specifically excepted in paragraph (e) of this 
section shall be equipped with and shall use either a two-way end-of-
train device meeting the design and performance requirements contained 
in Sec. 232.21 or a device using an alternative technology to perform 
the same function.
    (c) Each newly manufactured end-of-train device purchased by a 
railroad after (one year from date of publication) shall be a two-way 
end-of-train device meeting the design and performance requirements 
contained in Sec. 232.21 or a device using an alternative technology to 
perform the same function.
    (d) Each two-way end-of-train device purchased by any person prior 
to promulgation of these regulations shall be deemed to meet the design 
and performance requirements contained in Sec. 232.21.
    (e) The following types of trains are excepted from the requirement 
for the use of a two-way end-of-train device:
    (1) Trains with a locomotive capable of making an emergency brake 
application, through a command effected by telemetry or by a crew 
member in radio contact with the lead (controlling) locomotive, located 
in the rear third of the train length;
    (2) Trains operating in the push mode with the ability to 
effectuate an emergency brake application from the rear of the train;
    (3) Trains with an operational caboose placed at the rear of the 
train, carrying one or more crew members, that is equipped with an 
emergency brake valve;
    (4) Trains operating with a secondary, fully independent braking 
system capable of safely stopping the train in the event of failure of 
the primary system;
    (5) Trains that do not operate over heavy grades and do not exceed 
30 mph;
    (6) Local trains as defined in paragraph (a)(3) of this section 
that do not operate over heavy grades;
    (7) Work trains as defined in paragraph (a)(4) of this section that 
do not operate over heavy grades;
    (8) Trains that operate exclusively on track that is not part of 
the general railroad system; and
    (9) Passenger trains with emergency brakes.
    (f) If a train is required to use a two-way end-of-train device:
    (1) That device shall be armed and operable from the time a train 
departs

[[Page 295]]

from the point where the device is installed until the train reaches 
its destination.
    (2) The rear unit batteries shall be sufficiently charged at the 
initial terminal or other point where the device is installed and 
throughout the train's trip to ensure that the end-of train-device will 
remain operative until the train reaches its destination.
    (g) If a two-way end-of-train device or equivalent device fails en 
route (i.e., is unable to initiate an emergency brake application from 
the rear of the train due to certain losses of communication or due to 
other reasons), the speed of the train on which it is installed shall 
be limited to 30 mph until the ability of the device to initiate an 
emergency brake application from the rear of the train is restored. 
This limitation shall apply to a train using any device that uses an 
alternative technology to serve the purpose of a two-way end-of-train 
device. With regard to two-way end-of-train devices, a loss of 
communication between the front and rear units will be considered an en 
route failure only if the loss of communication is for a period greater 
than 16 minutes and 30 seconds.
    (1) If a two-way end-of-train device fails en route, the train on 
which it is installed, in addition to observing the 30-mph speed 
limitation, shall not operate over a section of track with an average 
grade of two percent or greater over a distance of two continuous 
miles, unless one of the following alternative measures is provided:
    (i) Use of an occupied helper locomotive at the end of the train. 
This alternative may be used only if the following requirements are 
met:
    (A) The helper locomotive engineer will initiate and maintain two-
way voice radio communication with the engineer on the head end of the 
train; this contact shall be verified just prior to passing the crest 
the grade.
    (B) If there is a loss of communication prior to passing the crest 
of the grade, the helper locomotive engineer and the head-end engineer 
shall act immediately to stop the train until voice communication is 
resumed, if this can be done safely.
    (C) If there is a loss of communication once the descent has begun, 
the helper locomotive engineer and the head-end engineer shall act to 
stop the train if the train has reached a predetermined rate of speed 
that indicates the need for emergency braking.
    (D) The brake pipe of the helper locomotive shall be connected and 
cut into the train line and tested to ensure operation.
    (ii) Use of an occupied caboose at the end of the train with a 
tested, functioning brake valve capable of initiating an emergency 
brake application from the caboose. This alternative may be used only 
if the train service employee in the caboose and the engineer on the 
head end of the train establish and maintain two-way voice radio 
communication and respond appropriately to the loss of such 
communication in the same manner as prescribed for helper locomotives 
in paragraph (g)(1)(i) of this section.
    (iii) Use of a radio-controlled locomotive in the rear third of the 
train under continuous control of the engineer in the head end by means 
of telemetry, but only if such radio-controlled locomotive is capable 
of initiating an emergency application on command from the lead 
(controlling) locomotive.


Sec. 232.25  Inspection and testing of end-of-train devices.

    (a) After each installation of either the front or rear unit of an 
end-of-train device, or both, on a train and before the train departs, 
the railroad shall determine that the identification code entered into 
the front unit is identical to the unique identification code on the 
rear-of-train unit.
    (b) After each installation of either the front or rear unit of an 
end-of-train device, or both, the functional capability of the device 
shall be determined, after charging the train, by comparing the 
quantitative value displayed on the front unit with the quantitative 
value displayed on the rear unit or on a properly calibrated air gauge. 
The end-of-train device shall not be used if the difference between the 
two readings exceeds three pounds per square inch.
    (c) A two-way end-of-train device shall be tested at the initial 
terminal or other point of installation to ensure that the device is 
capable of initiating an emergency power brake application from the 
rear of the train. If this test is conducted by a person other than a 
member of the train crew, the locomotive engineer shall be informed 
that the test was performed.
    (d) The telemetry equipment shall be calibrated for accuracy 
according to the manufacturer's specifications at least every 365 days. 
The date of the last calibration, the location where the calibration 
was made, and the name of the person doing the calibration shall be 
legibly displayed on a weather-resistant sticker or other marking 
device affixed to the outside of both the front unit and the rear unit.
    4. Appendix A to Part 232--``Schedule of Civil Penalties'' is 
amended by removing the entry for Sec. 232.19(h) and by adding entries 
for Secs. 232.21, 232.23, and 232.25 to read as follows:

Appendix A to Part 232--Schedule of Civil Penalties

* * * * *

[[Page 296]]



------------------------------------------------------------------------
                                                               Willful  
                    Section                      Violation    violation 
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
232.21  Two-way EOTs:                                                   
    (a)-(h) Design Standards..................        2,500        5,000
232.23  Operating Standards:                                            
    (b) Failure to equip......................        5,000        7,500
    (c) Purchases.............................        2,500        5,000
    (f)(1) Device not armed or operable.......        5,000        7,500
        (2) Insufficient battery charge.......        2,500        5,000
    (g) En route failures.....................        5,000        7,500
232.25  Inspection and Testing:                                         
    (a) Unique code...........................        2,500        5,000
    (b) Comparing values......................        2,500        5,000
    (c) Test of emergency capability..........        5,000        7,500
    (d) Calibration...........................        2,500        5,000
------------------------------------------------------------------------

    Issued in Washington, D.C., on December 27, 1996.
S. Mark Lindsey,
Acting Administrator.
[FR Doc. 96-33364 Filed 12-31-96; 8:45 am]
BILLING CODE 4910-06-P