[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Rules and Regulations]
[Pages 30461-30464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14497]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB-9, Notice No. 7]
RIN 2130-AA73


Two-Way End-of-Train Telemetry Devices

AGENCY: Federal Railroad Administration (FRA).

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: On January 2, 1997, FRA published a final rule revising the 
regulations governing train and locomotive power braking systems at 49 
CFR part 232 to include provisions pertaining to the use and design of 
two-way end-of-train telemetry devices (two-way EOTs). See 62 FR 278. 
The revisions were intended to improve the safety of railroad 
operations by requiring the use of two-way EOTs 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 the devices. In this document, FRA responds to 
concerns raised in two petitions for reconsideration of the final rule.

EFFECTIVE DATE: July 1, 1997.

FOR FURTHER INFORMATION CONTACT: Thomas Peacock, Motive Power and 
Equipment Division, Office of Safety, RRS-14, FRA, 400 Seventh Street, 
SW., Washington, DC 20590 (telephone 202-632-3345), or Thomas Herrmann, 
Trial Attorney, Office of the Chief Counsel, RCC-12, FRA, 400 Seventh 
Street, SW., Washington, DC 20590 (telephone 202-632-3167).
SUPPLEMENTARY INFORMATION: On January 2, 1997, FRA published a final 
rule amending the regulations governing train and locomotive power 
braking systems at 49 CFR part 232 to add provisions pertaining to the 
use and design of two-way end-of-train telemetry devices (two-way 
EOTs). See 62 FR 278. The purpose of the revisions was to improve the 
safety of railroad operations by requiring the use of two-way EOTs on a 
variety of freight trains pursuant to 1992 legislation, and by 
establishing minimum performance and operational standards related to 
the use and design of the devices. In response to the final rule, two 
petitions for reconsideration were submitted.
    On February 11, 1997, the Alaska Railroad Corporation (ARC) 
requested reconsideration of the July 1, 1997, effective date contained 
in the final rule based on the limited availability of the hardware 
necessary for compliance. On March 4, 1997, the American Short Line 
Railroad Association (ASLRA), on behalf of its member railroads, filed 
a petition for reconsideration seeking an extension of the effective 
date to December 1, 1997, and seeking elimination of the tonnage 
limitation contained in the rule's definition of ``local and work 
train.'' See 49 CFR 232.23(a)(3) and 232.23(a)(4). As the ARC is 
specifically named in the petition submitted by the ASLRA and

[[Page 30462]]

because both petitions seek an extension of the effective date of the 
final rule on similar grounds, FRA will address ARC's petition 
primarily in the context of the ASLRA's petition for reconsideration.

A. Summary of Concerns Raised in the Petitions for Reconsideration and 
FRA's Responses

    FRA's rules of practice at 49 CFR part 211 state that FRA must 
decide to grant or deny, in whole or in part, each petition for 
reconsideration not later than four months after receipt by FRA's 
Docket Clerk. See 49 CFR 211.31. In this case, FRA's decision on the 
petitions for reconsideration is due no later than June 11, 1997. If 
FRA grants a petition for reconsideration, a notice of this decision 
must appear in the Federal Register. To provide a fuller explanation of 
the issues, this document addresses both grants and denials of the 
petitions for reconsideration. Accordingly, a copy of this document is 
being mailed to all petitioners.

1. Extension of the Effective Date of the Final Rule to December 1, 
1997 for Class II and Class III Railroads

    Both the ASLRA and the ARC submitted petitions for reconsideration 
seeking an extension of the effective date of the final rule. 
Currently, the final rule becomes effective for all covered railroads 
on July 1, 1997. The ASLRA requested an extension of the effective date 
to December 1, 1997 for all Class II and Class III railroads. See 
Surface Transportation Board regulations at 49 CFR part 1201; General 
Instructions 1-1 for a description of Class II and III railroads. The 
ASLRA specifically named 12 railroads,1 including the ARC, 
in its petition, claiming they are representative of all Class II and 
Class III railroads affected by the final rule. The petition cites 
several reasons why an extension of the effective date for these 
operations is necessary. The petition contends that the current 
effective date does not provide sufficient time for these smaller 
railroads to purchase and obtain a sufficient number of two-way EOTs 
due to the limited number of suppliers and the volume of acquisition 
orders submitted by Class I railroads. The petition also appears to 
allege that the current effective date imposes a financial hardship on 
some small railroads in that these operations are not being provided 
sufficient time to generate the necessary cash flow needed for the 
acquisition and installation of the devices. The ASLRA petition further 
contends that because most smaller railroads have a limited number of 
locomotives in their fleets, the ability to schedule the out-of-service 
time necessary for the installation of the front unit of a two-way EOT 
within the time frame of the current effective date of the final rule 
imposes additional operational and financial hardships on these smaller 
railroads. Lastly, although not raised in the ASLRA petition, the ARC 
notes that smaller railroads need some time to train their employees on 
the use, installation, and testing of the devices once they are 
received.
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    \1\ The following railroads were specifically named in ASLRA's 
petition: Birmingham Southern Railroad Company; the Bay Line 
Railroad, L.L.C.; Iowa Interstate Railroad Ltd.; Central Railroad of 
Indiana; Central Railroad Company of Indianapolis; Alaska Railroad 
Corporation; St. Lawrence & Atlantic Railroad Company; Gateway 
Western Railway; Northeast Kansas & Missouri Railroad; Wheeling & 
Lake Erie Railway Company; Dequeen & Eastern Railroad Company; and 
Lake Superior & Ishpeming Railroad Company.
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    In the preamble to the final rule, FRA recognized that Class I, II, 
and III railroads voluntarily committed to equip the vast majority of 
the trains covered by the final rule by the effective date of the 
requirements. See 62 FR 288-289. However, it should be noted that the 
final rule requires the use of two-way EOTs on a larger number of 
trains than the industry voluntarily committed to equip by the 
effective date of the final rule. Furthermore, FRA stated that it would 
consider extending the effective date of the final rule in the event 
that manufacturing delays result in a railroad's inability to secure an 
adequate number of the devices, but would not extend the effective date 
beyond the statutorily mandated date of December 31, 1997. Id., 49 
U.S.C. 20141. The concerns and hardships alleged in the ASLRA and ARC 
petitions for reconsideration are based on the inability of Class II 
and III railroads to acquire a sufficient number of devices within a 
reasonable time period prior to the effective date of the final rule in 
order to properly install the equipment and adequately train their 
employees on the use of the devices. Consequently, the burdens that the 
petitions allege are being imposed on Class II and III railroads are 
precisely the type of concerns FRA stated it would consider in 
determining whether to grant an extension of the effective date of the 
final rule. Furthermore, ASLRA's petition proposes an extension of the 
effective date only to December 1, 1997, which is still 30 days prior 
to the statutorily mandated date.
    In order to verify the concerns raised in the petitions for 
reconsideration, FRA conducted its own investigation of the impact of 
the effective date on Class II and III railroads. Although ASLRA's 
petition seeks an extension of the effective date for all Class II and 
Class III railroads, FRA has determined that some larger Class II 
railroads, particularly those reporting two million or more man-hours 
to FRA for calendar year 1995, have acquired or will acquire a 
sufficient number of two-way EOTs to equip all of the trains covered by 
the final rule well before the July 1, 1997 effective date. Therefore, 
FRA will not extend the effective date of the final rule for those 
Class II and III railroads that reported two million or more man-hours 
for calendar year 1995 pursuant to 49 CFR part 225. Consequently, FRA 
specifically denies ASLRA's petition as it relates to an extension of 
the effective date of the final rule for Class II or III railroads 
reporting two million or more man-hours to FRA for calendar year 1995.
    However, as noted above, the final rule does require a greater 
number of short line trains to be equipped with two-way EOTs than these 
railroads envisioned and planned for when they voluntarily committed to 
equip their fleets by July 1, 1997. As a result, many of the short line 
operations covered by the final rule did not order a sufficient number 
of devices to equip all the trains that are now covered by the final 
rule. In addition, some short line operations that were not originally 
covered by the industry's voluntary commitment have just recently 
discovered that some of their trains will require the use of the 
devices. Furthermore, the ability of these smaller operations to 
generate the capital necessary for acquiring the devices on such short 
notice is somewhat limited. Therefore, many of the Class II and Class 
III railroads covered by the final rule have just recently ordered the 
devices from the manufacturers or, due to financial limitations, will 
be ordering the devices in the near future as soon as sufficient 
capital is available.
    After discussions with the manufacturers' of two-way EOTs, it 
appears that the delivery time for the devices from receipt of an order 
ranges anywhere from 60 to 120 days or more, depending on the 
manufacturer. Therefore, if the short line railroads were forced to 
order the devices from the manufacturer with the shortest lead time, 
then most likely a two or three month extension of the effective date 
would probably be sufficient. However, FRA recognizes that forcing 
railroads to acquire the devices based solely on delivery time is not 
necessarily good business practice and may not enhance safety in the 
long term. Railroads should not only have the ability to benefit from 
competitive procurement, but should

[[Page 30463]]

also be afforded the ability to acquire a device which best suits their 
operation and existing equipment. For example, the most readily 
available device may not be compatible with the devices a railroad has 
already acquired or may not provide the options most desired by a 
railroad.
    In addition to a delivery time that could exceed four months, FRA 
also agrees that these smaller railroads need some extra time to 
install the devices once they are delivered. As the petition points 
out, most smaller railroads have very limited locomotive fleets and, 
thus, will need extra time to schedule out-of-service time in order to 
install the front units of the devices. Furthermore, some additional 
time must also be afforded for these smaller railroads to adequately 
train their employees on the use, installation, and testing of the 
devices. Consequently, after careful consideration of the petitions for 
reconsideration and for the reasons set forth above, FRA has decided to 
grant ARC's petition to extend the effective date of the final rule and 
ASLRA's petition to extend the effective date of the final rule 
specifically to December 1, 1997 for all Class II and Class III 
railroads reporting less than two million man-hours to FRA for calendar 
year 1995 pursuant to 49 CFR part 225.

2. Eliminate the Tonnage Limitation in the Definitions of Local and 
Work Trains.

    The ASLRA's petition for reconsideration also objects to the final 
rule's definitions of local and work train, which contain a limitation 
of 4,000 trailing tons. For the reasons stated below, FRA denies this 
request in the ASLRA petition. The ASLRA petition contends that the 
tonnage limitation fails to recognize the inherent operating 
characteristics of local and work trains and that FRA ignored the clear 
intent of Congress to exclude these types of operations. The petition 
further contends there is no basis in the hearing record or any safety 
statistics that supports the definitions contained in the final rule. 
The petition stresses the impracticality of requiring the use of two-
way EOTs in local train operations. The ASLRA notes that a typical 
local train will drop off and pick up cars at various points, thus 
reducing and increasing the train length and tonnage several times 
throughout its operation. The petition contends that the removal and 
reinstallation of the rear-end device in each instance is time 
consuming and creates the potential for damaging the rear-end device. 
Finally, the petition asserts that FRA should not have used the final 
rule on two-way EOTs to decide the definition of local train, as it 
could have unknown consequences in future regulatory proceedings, and 
should allow the issue to be argued in the pending freight power brake 
rulemaking.
    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 ``locals, road switchers, or work trains'' and 
does not include them in the specific exclusions contained in the 
legislation. See 49 U.S.C. 20141(c). As stated in the preamble to the 
final rule, 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 terms ``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. Therefore, contrary to the assertions contained in the 
petition, FRA has effectuated Congress' intent by narrowly defining the 
terms ``local'' and ``work train'' to ensure consistent and logical 
application of the requirements for the use of two-way EOTs.
    In the NPRM on power brakes, FRA attempted to narrowly construe the 
``local and work train'' exception by proposing to require the use of 
two-way EOTs on local or work trains that exceeded 30 mph. See 59 FR 
47726 (September 16, 1994). At the Public Regulatory Conference 
conducted on March 5, 1996, several parties, including the ASLRA, 
objected to the speed limitation placed on the local and work train 
exemption contending it was inconsistent with the statutory mandate. 
Other participants, however, strongly recommended that the terms local 
and work trains be narrowly defined in order to prevent the creation of 
a loophole wherein a carrier could designate all their trains as local 
and, thus, circumvent the two-way EOT requirements. Furthermore, 
several commenters also objected to special treatment of local and work 
trains as they incur similar operational difficulties and pose the same 
threat to safety as road trains. Therefore, not only did FRA propose a 
narrow exception for local and work trains in the NPRM but there was 
substantial discussion regarding the exception of local and work trains 
at the Public Regulatory Conference conducted prior to the issuance of 
the final rule. See transcript of public hearing, March 5, 1996. 
Although it is clear from the above that FRA as well as other 
commenters sought to narrowly construe the local and work train 
exception, not one commenter in a written submission, including the 
ASLRA, provided any alternative method for defining the terms which 
would address the concerns raised by various parties noted above, nor 
does the ASLRA propose such an alternative in its petition. 
Consequently, FRA in the final rule reconsidered the exception for 
local and work trains based upon the limited written comments received 
on the issue, its own review of the accident data, and its extensive 
knowledge of railroad operations.
    After a review of the available accident data, FRA determined that 
the trains which are most likely to benefit from the use of two-way 
EOTs are heavier tonnage trains and trains that operate over heavy 
grades. The accident data also indicated that the vast majority of the 
potentially preventable accidents involved trains that were operating 
with greater than 4,000 trailing tons or that were operating on grades 
of two percent or greater and that, as the tonnage of the train 
increased, the steepness of the grade became a more important factor. 
Furthermore, in FRA's view there is no logical or rational basis for 
concluding that a local or work train operating with greater than 4,000 
trailing tons or in heavy grades is any less susceptible to the 
operational problems and difficulties faced by any other road train. 
Consequently, FRA believes the definition of local and work train is 
consistent with the accident data, Congress' intent, and FRA's 
rationale expressed with regard to defining heavy grades. Furthermore, 
FRA believes the definitions recognize 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 terms local or work train, and ensuring that 
those trains most likely to benefit from the added safety provided by 
two-way EOTs are so equipped.
    Although FRA recognizes that the final rule's definitions of local 
and work train may impose some additional operational burdens on the 
railroads, FRA believes that the ASLRA has overstated the operational 
impact of the requirements on Class II and III railroads. In its 
written submissions to FRA, the ASLRA indicated that the vast majority 
of Class II and III railroads operate trains with less than 4,000 
trailing tons. In addition, contrary to the contention contained in the 
petition, the rear-end unit of an EOT device would not have to be 
removed and reinstalled every time a local train picks up or drops off 
cars. If the rear car, on which

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the rear unit of the EOT is attached, remains a part of the train after 
conducting these switching operations, the communication between the 
front unit and the rear unit should remain intact even after a cut of 
cars is added or removed from the train. Furthermore, many local trains 
currently operate with rear-end marking devices or one-way EOTs which 
would have to be reinstalled if the rear car were removed from the 
train. Additionally, if a train is not equipped with a one-way EOT then 
an inspection of the ``set and release'' of the rear car must performed 
when cars are added or removed from a train; thus, someone would have 
to be at the rear to conduct this inspection. See 49 CFR 232.13. 
Consequently, in FRA's view, the increased time burdens and the 
potential damage to the rear units are greatly overstated in the 
petition when compared with current practice. We believe these actual 
and potential costs can be greatly minimized and should be incurred in 
only a limited number of circumstances.
    FRA further considers to be without merit the ASLRA's contention 
that the definition of local train should not have been decided in the 
context of the proceeding to issue the two-way EOT final rule. The 
final rule text explicitly states that the definition of local train is 
intended solely for the purpose of identifying operations subject to 
the requirements for the use of two-way EOTs. See 62 FR 294. FRA does 
not intend for the definitions used in this final rule to change or 
otherwise impinge on other possible definitions of the term local train 
when used in another context. Therefore, the definition used in this 
final rule should have no impact on future regulatory proceedings. 
Consequently, after careful consideration of the ASLRA's petition for 
reconsideration and for the reasons set forth above, FRA has decided to 
deny ASLRA's request to change the definitions of local and work trains 
contained in Sec. 232.23(a)(3) and (a)(4) of the final rule on two-way 
EOTs.

    Issued in Washington, DC, on May 29, 1997.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 97-14497 Filed 6-3-97; 8:45 am]
BILLING CODE 4910-06-P