[Federal Register Volume 63, Number 2 (Monday, January 5, 1998)]
[Proposed Rules]
[Pages 195-199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-134]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB-9, Notice No. 8]
RIN 2130-AB22


Two-Way End-of-Train Telemetry Devices and Certain Passenger 
Train Operations

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA proposes to revise the regulations regarding the use and 
design of two-way end-of-train telemetry devices (two-way EOTs) to 
specifically address certain passenger train operations where multiple 
units of freight-type equipment, material handling cars, or express 
cars are part of a passenger train's consist. Trains of this nature are 
currently being operated by the National Railroad Passenger Corporation 
(Amtrak), and swift action is necessary to clarify and address the 
applicability of the two-way EOT requirements to these types of 
operations.

DATES: Written comments regarding this proposal must be filed no later 
than January 20, 1998. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.

ADDRESSES: Written comments should identify the docket number and the 
notice number and must be submitted in triplicate to the Docket Clerk, 
Office of Chief Counsel, FRA, 400 Seventh Street, SW., Stop 10, 
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: James Wilson, Motive Power and 
Equipment Division, Office of Safety, RRS-14, FRA, 400 Seventh Street, 
SW., Stop 25, Washington, DC 20590 (telephone 202-632-3367), or Thomas 
Herrmann, Trial Attorney, Office of the Chief Counsel, RCC-12, FRA, 400 
Seventh Street, SW., Stop 10, Washington, DC 20590 (telephone 202-632-
3178).

SUPPLEMENTARY INFORMATION:

Background

    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. See Pub. L. No. 102-365 (September 3, 1992); 49 U.S.C. 
20141. In this document, FRA proposes to revise the regulations on two-
way EOTs to specifically address certain passenger train operations 
where numerous freight-type cars, material handling cars, or express 
cars are part of a train's consist. Trains of this nature are currently 
being operated by the National Railroad Passenger Corporation (Amtrak), 
and prompt action is necessary to clarify and address the applicability 
of two-way EOT requirements to these types of operations.
    The current regulations regarding two-way EOTs provide an exception 
from the requirements for ``passenger trains with emergency brakes.'' 
See 49 CFR 232.23(e)(9). The language used in this exception was 
extracted in total from the statutory exception contained in the 
statutory provisions mandating that FRA develop regulations addressing 
the use and operation of two-way EOTs or similar technology. See 49 
U.S.C. 20141(c)(2). A review of the legislative history reveals that 
there was no discussion by Congress as to the precise meaning of the 
phrase ``passenger trains with emergency brakes.'' Consequently, FRA is 
required to effectuate Congress' intent based on the precise language 
used in that and the other express exceptions and based on the overall 
intent of the statutory mandate. See 49 U.S.C. 20141(c)(1)-(c)(5). 
Furthermore, any exception contained in a specific statutory mandate 
should be narrowly construed. See Chesapeake & Ohio Ry. v. United 
States, 248 F. 85 (6th Cir. 1918) cert. den., 248 U.S. 580; DRG R.R. v. 
United States, 249 F. 822 (8th Cir. 1918); United States v. ATSF Ry., 
156 F.2d 457 (9th Cir. 1946).
    The intent of the statutory provisions related to two-way EOTs was 
to ensure that trains operating at a speed over 30 mph or in heavy 
grade territory were equipped with the technology to effectuate an 
emergency application of the train's brakes starting from both the 
front and rear of the train. The specific exceptions contained in the 
statute were aimed at trains (i) that do not operate within the express 
parameters or (ii) that are equipped or operated in a fashion that 
provides the ability to effectuate an emergency brake application that 
commences at the rear of the train without the use of a two-way EOT. 
See 49 U.S.C. 20141(c)(1)-(c)(5). Based on the intent of the statute 
and based upon a consistent and narrow construction of the specific 
language used by Congress in the express exceptions, FRA believes it is 
clear that Congress did not intend the phrase ``passenger trains with 
emergency brakes'' to constitute a blanket exception for all passenger 
trains. If that was Congress' intent, it would not have added the 
qualifying phrase ``with emergency brakes.'' In FRA's view, this 
language limits the specific statutory exception to passenger trains 
equipped with a separate emergency brake valve in each car throughout 
the train and, thus, to passenger trains possessing the ability to 
effectuate an emergency application of the train's brakes from the rear 
of the train. Therefore, passenger trains that include 
RoadRailers, auto racks, express cars, or other similar 
vehicles that are designed to carry freight that are placed at the rear 
of the train, that are not equipped with emergency brake valves, would 
not fall within the specific statutory or regulatory exception as they 
are incapable of effectuating an emergency brake application that 
commences at the rear of the train. Further, FRA does not believe that 
Congress envisioned freight-type equipment being hauled at the rear of 
passenger trains when the specific exception was included in the 
statute.
    FRA believes that Congress intended to except only those trains 
traditionally considered to be passenger trains, which would include 
passenger trains containing baggage and mail cars as these have 
consistently been considered passenger equipment with emergency brakes. 
However, passenger trains which operate with numerous inaccessible 
baggage or mail cars attached to the rear of the train that lack any 
ability to effectuate an emergency brake application from the rear of 
the train and would, in FRA's view, fall outside the specific statutory 
and regulatory exception for ``passenger trains with emergency 
brakes.''
    Subsequent to the issuance of the final rule and the period 
permitted for the submission of petitions for

[[Page 196]]

reconsideration of the rule, Amtrak raised concerns regarding the 
applicability of the final rule to some of its passenger train 
operations, particularly those which recently began to operate with 
numerous express, material handling cars, or RoadRailers 
entrained in the consist. These concerns focused on FRA's enforcement 
guidance provided to its field inspectors, which stated that the 
exception for ``passenger trains with emergency brakes'' was intended 
to apply only to trains traditionally considered to be passenger 
trains, a category that would include passenger trains containing a 
limited number of baggage and mail cars at the rear of the train. This 
guidance was based on the reasoning provided in the preceding 
discussion. Amtrak contended that FRA's interpretive guidance was an 
improper reading of the statutory and regulatory exception and did not 
adequately consider the superior braking capabilities of passenger 
equipment. Although FRA disagrees that its guidance was improper, FRA 
does agree that a closer examination of the applicability of the two-
way EOT requirements to passenger trains needed to be performed in 
light of the superior braking ratios of passenger cars and the presence 
of emergency brake valves on the passenger cars in mixed train consists 
which provide certain safety assurances that are not present in 
traditional freight operations. Consequently, FRA agrees that the mixed 
passenger and ``express'' service currently being operated by Amtrak is 
unique and needs to be handled separately from traditional freight 
operations.
    None of the consists proposed to be excepted raises any issue with 
respect to the ability to stop on grade using the rearmost available 
conductor's valve. The issue is the ability to stop within normal 
signal spacing after determining that there is a blockage in the train 
line. To gain a perspective on the stopping characteristics and safety 
implications of the ``mixed'' passenger train operations, FRA requested 
the Volpe National Transportation Systems Center (Volpe) to review the 
information and procedures used by Amtrak in developing various 
stopping distance calculations submitted to FRA. In addition, FRA 
requested that Volpe develop and analyze its own data regarding these 
types of ``mixed'' passenger trains. In making their calculations, both 
Volpe and Amtrak used variables of grade; train configuration; and the 
number, weight, and types of cars and locomotives expected to be used 
in these types of operations. Although all of the calculations were 
based on worse-case scenarios (e.g., the angle cock was assumed to be 
closed just behind the last car with an accessible emergency brake 
valve, and only friction braking--tread or disc brakes of locomotives 
and cars--was considered available to stop the train), all stops were 
achieved on the specified grade used in the calculation.
    In making its calculations Volpe used a MathCad program to compute 
stopping distances. Volpe used the results of its calculations as a 
check against the results Amtrak had produced and submitted to FRA. 
Volpe concluded that Amtrak's procedures predicted longer (more 
conservative) stopping distances than the approach taken by Volpe. 
Amtrak's results were also compared to the requirements of the Amtrak 
Communication and Signal Department, Specification S-603, Curve 8, 
which is used to determine stopping distances for passenger equipment 
for signal block spacing. Curve 8 values for stopping distances are 
augmented by a factor of 25 percent to account for conditions which may 
impair brake performance. The absolute (actual) signal block spacing on 
the Northeast Corridor is actually greater than any of the stopping 
distances produced by either Volpe or Amtrak in their calculations. 
Therefore, stopping distances within established signal blocks should 
not be a problem. The process Amtrak used was sufficiently conservative 
so that predicted stopping distances were greater than would be 
experienced in reality. Nevertheless, FRA has worked with Amtrak to 
define further limitations adequate to ensure safety under identified 
worst-case conditions, and these limitations are set forth in this 
proposal.

Need for 15-Day Comment Period

    As previously discussed, Amtrak currently operates a number of 
trains that include numerous material handling cars, express cars, auto 
racks, mail cars, and/or RoadRailer equipment. These types 
of rolling equipment are either not equipped with emergency brake 
valves or, if equipped with such valves, they are not accessible to any 
member of the train crew. Amtrak expects that the operation of this 
type of rolling equipment will continue to grow and that many of its 
trains will eventually have a number of these vehicles in their 
consists. As explained earlier, FRA believes that a passenger train 
operated with this rolling equipment falls outside the statutory and 
regulatory exception to the two-way EOT requirement for ``passenger 
trains with emergency brakes,'' and thus, would be required under the 
existing rules to be equipped with an operative two-way EOT or 
alternative technology. However, FRA also recognizes the unique nature 
of these types of ``mixed'' operations and realizes that the safety 
assurances provided by the braking ratios and the presence of emergency 
brake valves at various locations through much of the consist on 
certain mixed passenger trains make requiring the use of a two-way EOT 
unnecessary.
    As will be further clarified, FRA believes that swift action must 
be taken with regard to the provisions proposed in this document and 
that a lengthy comment period would be impracticable, unnecessary, and 
contrary to the public interest. A number of freight railroads are 
currently expressing concern and apprehension over permitting these 
``mixed'' passenger trains to operate over their rails in light of 
FRA's above-mentioned interpretive guidance. In fact, at least one 
instance has occurred in which a ``mixed'' Amtrak train was detained 
for six hours by a freight railroad until a two-way EOT was applied 
because the freight railroad refused to permit the train to operate 
without the device. In addition, requiring Amtrak to acquire a number 
of two-way EOTs and operate under the provisions of the current 
regulatory scheme during a lengthy comment period would impose a 
substantial and unwarranted financial and operational burden without 
improving the safety of Amtrak operations. Furthermore, the proposals 
contained in this document include certain restrictions on the 
operation and make-up of certain passenger trains that are proposed for 
exception from the two-way EOT requirements, restrictions that FRA 
believes enhance the safety of those operations and that are not 
currently mandated.
    The current situation mandates swift action to address both safety 
concerns and practical operating concerns. On the one hand, Amtrak is 
continuing to take delivery of express and other equipment and to build 
this line of business in order to close its operating deficit and to 
support continued intercity rail passenger service in a time of 
declining support from the public treasury. The public's interest in 
continued rail passenger service warrants reasonable flexibility to 
achieve this business objective. This development has corresponded with 
the implementation of two-way EOT requirements, rapidly complicating 
what appeared at the outset to be a relatively straightforward issue. 
Prior to the effective date of the rule, Amtrak had implemented a two-
way EOT system on its AutoTrain,

[[Page 197]]

previously the only Amtrak train operated with any significant number 
of unoccupied cars at the rear of the train. Anticipating the need to 
equip other trains as the express business grows, Amtrak is equipping 
over 100 locomotives and deploying rear-end units at appropriate points 
along its lines where trains are built. Meanwhile, Amtrak has committed 
to FRA to operate cars with cables for head-end power transmission 
(such as mail and baggage cars) at the front of trains where 
practicable given constraints on loading and unloading, in order limit 
the number of cars to the rear of the train that are beyond the last 
car with an accessible emergency valve. As noted above, passenger 
trains have historically operated with small numbers of unoccupied cars 
at the rear and without difficulty from the point of view of effective 
braking. However, as express service grows and Amtrak builds trains 
responsive to that growth (a phenomenon that is well underway), the 
danger increases that Amtrak's own internal policies for use of 
available two-way EOT systems may not be honored in the field through 
oversight. That is, having clear and certain Federal requirements 
becomes essential to public safety. FRA recognizes that previous 
interpretive guidance has been excessively narrow in relation to the 
safety issues presented by mixed consists. Accordingly, FRA will employ 
the criteria contained in this proposed rule in exercising enforcement 
discretion during the period of this rulemaking.
    In conclusion, FRA believes that prompt action is necessary in 
order to alleviate and avoid the concerns noted above. Consequently, 
FRA is issuing this NPRM with a comment period of only 15 days in order 
to quickly address the applicability of the two-way EOT requirements to 
``mixed'' passenger train operations.
    FRA wishes to make clear that if no substantive adverse comments 
are received on this proposal within the 15-day comment period, it will 
immediately issue a final rule containing the provisions of this 
proposal. Any comments received during this 15-day comment period will 
be fully considered prior to the issuance of a final rule. FRA intends 
for any final rule issued to take effect immediately upon publication. 
FRA is now soliciting comments on this proposal and will consider those 
comments in determining whether there is a need to amend the proposal 
at the final rule stage. FRA also intends to exercise its enforcement 
discretion and will not strictly enforce the current two-way EOT 
requirements against passenger train operations during the pendency of 
this proposal, provided that the passenger train is operated in 
accordance with the proposed provisions contained in this NPRM.

Section-by-Section Analysis

    FRA proposes to amend Sec. 232.23 by revising paragraphs (e) and 
(g) and by adding a new paragraph (h) to specifically address passenger 
train operations that include using cars that do not have readily 
accessible emergency brake valves.
    Paragraph (e) of Sec. 232.23 contains a listing of the trains that 
are excepted from the two-way EOT requirements. FRA proposes conforming 
changes to paragraphs (e)(8) and (e)(9). In paragraph (e)(9) FRA 
proposes to retain the exception for passenger trains in which all of 
the cars in the train are equipped with a readily accessible emergency 
brake valve, as discussed in detail above.
    In paragraph (e)(10) FRA proposes an exception to the requirements 
regarding two-way EOTs for passenger trains that operate with a car 
placed at the rear of the train that is equipped with an emergency 
brake valve readily accessible to a crew member in radio communication 
with the locomotive engineer of the train. FRA intends for this 
proposed exception to be applicable to passenger trains containing cars 
that do have a readily accessible emergency brake valve at the rear of 
the train. FRA believes this proposed exception is justified as it is 
virtually identical to the exception granted to freight trains with an 
occupied caboose (contained in paragraph (e)(3)) since it would permit 
an emergency application of brakes to be initiated from the occupied 
car at the rear of the passenger train.
    In paragraph (e)(11) FRA proposes to except certain passenger 
trains that have cars placed at the rear of the train that do not have 
readily accessible emergency brake valves. This proposed exception is 
intended to recognize the safety of these types of trains if configured 
and operated in accordance with the provisions of this exception. The 
proposed exception contained in this subparagraph applies only to 
trains of twenty-four (24) cars or fewer. Therefore, passenger trains 
that have more than 24 cars in the consist and that do not fall within 
the exceptions contained in subparagraphs (e)(9) or (e)(10) would be 
required to be equipped with an operative two-way EOT device or 
alternative technology. It should be noted that FRA intends that each 
bogie used in RoadRailer operation be counted as a car for 
purposes of calculating the number of cars in a passenger train 
consist. Furthermore, FRA proposes that a locomotive that is not 
designed to carry passengers should not be considered a car for 
purposes of these calculations.
    Based on data and information submitted by Amtrak and reviewed by 
Volpe and based upon Volpe's independent analysis regarding passenger 
train braking ratios and the response of passenger train brakes, FRA 
believes that certain ``mixed'' passenger trains can be safely operated 
without being required to be equipped with a two-way EOT or alternative 
technology provided certain operational and train configuration 
restrictions are maintained. Paragraph (e)(11)(i) proposes that if the 
total number of cars in a passenger train consist is twelve (12) or 
fewer, a car located no less than halfway through the consist must be 
equipped with an emergency brake valve readily accessible to a crew 
member. For example, in a consist containing twelve (12) cars, the 
sixth (6th) car (or a car closer to the rear) in the consist must have 
a readily accessible emergency brake valve; likewise, in an eleven (11) 
car consist, the sixth (6th) car (or a car closer to the rear) must 
have a readily accessible emergency brake valve, since all half numbers 
will be rounded up. Paragraph (e)(11)(ii) proposes that if the total 
number of cars in a passenger train consist is from thirteen (13) to 
twenty-four (24), a car located no less than two-thirds (\2/3\) of the 
way through the consist (counting from the first car in the train) must 
be equipped with an emergency brake valve readily accessible to a crew 
member. For example, in a twenty-one (21) car consist, the fourteenth 
(14th) car (or a car closer to the rear) must have a readily accessible 
emergency brake valve.
    In addition to these train-configuration requirements, paragraphs 
(e)(11)(iii) and (iv) contain certain proposed operating requirements 
that must be followed by any passenger train operating pursuant to this 
specific exception. Such trains would be required to have a train crew 
member occupy the rearmost car equipped with a readily accessible 
emergency brake valve and remain in constant radio communication with 
the locomotive engineer whenever the train is operating over a section 
of track with an average grade of two percent or higher over two 
continuous miles. FRA recommends that the engineer alert the train crew 
member approximately ten (10) minutes prior to descending the heavy 
grade, so the crew member will be in place at the

[[Page 198]]

crest of the grade. Furthermore, FRA proposes that the crew member not 
leave his or her position until the locomotive engineer advises that 
the train has traversed the grade. FRA believes that these proposed 
operational requirements will ensure that immediate action can be taken 
by a member of the train crew to effectuate an emergency brake 
application whenever the train is descending a heavy grade.
    FRA proposes to amend paragraph (g) to indicate that the operating 
limitations that will be imposed on a passenger train required to be 
equipped with a two-way EOT that experiences an en route failure of the 
device will be contained in paragraph (h). It should be noted that FRA 
intends that the criteria contained paragraph (g) to determine when a 
loss of communication between the front and rear units will be 
considered an en route failure will be applicable to passenger train 
operations.
    Paragraph (h) contains the operational limitations and restrictions 
that are proposed to be placed on passenger trains that experience en 
route failures of two-way EOTs. Due to the time-sensitive nature of 
passenger operations, FRA believes that placing a speed restriction on 
these trains would not be the most effective method of handling en 
route failures of a device. Rather, FRA believes that other operating 
restrictions can be imposed to ensure the safety of these trains. FRA 
believes that in order to realize the benefits of a two-way EOT as 
contemplated by Congress, the device must be operative when the train 
descends a heavy grade. Therefore, FRA proposes that if a passenger 
train is required to be equipped with an operable device, it shall not 
be permitted to descend an average grade of two percent or more for two 
continuous miles until an operable device is installed or an 
alternative method of initiating an emergency brake application from 
the rear of the train is achieved. However, FRA further proposes that 
passenger trains that develop an en route failure of the two-way EOT 
may continue to operate over track that is not in heavy grade territory 
as long as a crew member occupies the rearmost car with a readily 
accessible emergency brake valve and remains in constant radio 
communication with the locomotive engineer. FRA also believes that 
since the train no longer has the safety assurances provided by a two-
way EOT, the engineer must periodically test the braking 
characteristics of the train by making running brake tests. If the 
engineer suspects the brakes are not functioning properly, immediate 
action shall be taken to bring the train to a stop until corrections 
can be made. FRA also proposes that all en route failures of the 
devices must be corrected either at the next location where the 
necessary repairs can be made or at the next location where a required 
brake test of the train is to be conducted, whichever point the train 
arrives at first.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposal has been evaluated in accordance with existing 
policies and procedures. Because the requirements contained in this 
proposal clarify the applicability of the two-way EOT regulations to a 
specific segment of the industry and generally reduce the regulatory 
burden on these operators, FRA has concluded that this NPRM does not 
constitute a significant rule under either Executive Order 12866 or 
DOT's policies and procedures.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities. 
FRA certifies that this proposal does not have a significant impact on 
a substantial number of small entities. There are no substantial 
economic impacts for small units of government, businesses, or other 
organizations.

Paperwork Reduction Act

    This proposal does not change any information collection 
requirements.

Environmental Impact

    FRA has evaluated this proposal in accordance with its procedures 
for ensuring full consideration of the potential environmental impacts 
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 
proposal does not have any effect on the quality of the environment.

Federalism Implications

    This proposal does 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.

Request for Public Comments

    FRA proposes to revise part 232 regarding two-way EOTs as set forth 
below. FRA is contemplating eventually moving the two-way EOT 
requirements related to passenger train operations to proposed part 238 
containing the Passenger Equipment Safety Standards and would 
potentially seek the consultation of the working group currently 
involved with finalizing those standards on the issues addressed in 
this proposal. Consequently, FRA solicits comments on all aspects of 
this proposal whether through written submissions, participation in the 
passenger equipment working group, or both.

List of Subjects in 49 CFR Part 232

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

The Proposal

    In consideration of the foregoing, FRA proposes to amend part 232, 
title 49, Code of Federal Regulations to read 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, 20141, 20301-20304, 20701-20703, 21301, 21302, 21304, 
and 21311; and 49 CFR 1.49(c), (g), and (m).

    2. Section 232.23 is amended by revising paragraphs (e) 
introductory text, (e)(8), and (e)(9) and adding a new sentence to the 
beginning of the introductory text of paragraph (g) and adding new 
paragraphs (e)(10), (e)(11) and (h) to read as follows:


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

* * * * *
    (e) The following types of trains are excepted from the requirement 
for the use of a two-way end-of-train device:
* * * * *
    (8) Trains that operate exclusively on track that is not part of 
the general railroad system;
    (9) Passenger trains in which all of the cars in the train are 
equipped with an emergency brake valve readily accessible to a crew 
member;
    (10) Passenger trains that have a car at the rear of the train, 
readily accessible to one or more crew members in radio contact with 
the engineer, that is equipped with an emergency brake valve readily 
accessible to such a crew member; and
    (11) Passenger trains that have twenty-four (24) or fewer cars (not 
including locomotives) in the consist

[[Page 199]]

and that are equipped and operated in accordance with the following:
    (i) If the total number of cars in a passenger train consist is 
twelve (12) or fewer, a car located no less than halfway through the 
consist (counting from the first car in the train) must be equipped 
with an emergency brake valve readily accessible to a crew member;
    (ii) If the total number of cars in a passenger train consist is 
thirteen (13) to twenty-four (24), a car located no less than two-
thirds (\2/3\) of the way through the consist (counting from the first 
car in the train) must be equipped with an emergency brake valve 
readily accessible to a crew member;
    (iii) Prior to descending a section of track with an average grade 
of two percent or greater over a distance of two continuous miles, the 
engineer of the train shall communicate with the conductor, to ensure 
that a member of the crew with a working two-way radio is stationed in 
the car with the rearmost readily accessible emergency brake valve on 
the train when the train begins its descent; and
    (iv) While the train is descending a section of track with an 
average grade of two percent or greater over a distance of two 
continuous miles, a member of the train crew shall occupy the car that 
contains the rearmost readily accessible emergency brake valve on the 
train and be in constant radio communication with the locomotive 
engineer. The crew member shall remain in this car until the train has 
completely traversed the heavy grade.
* * * * *
    (g) Except on passenger trains required to be equipped with a two-
way end-of-train device (which are provided for in paragraph (h) of 
this section), en route failures of a two-way end-of-train device shall 
be handled in accordance with this paragraph.
    * * *
* * * * *
    (h) A passenger train required to be equipped with a two-way end-
of-train device that develops an en route failure of the device (as 
explained in paragraph (g) of this section) shall be operated in 
accordance with the following:
    (1) The train shall not operate over a section of track with an 
average grade of two percent or greater over a distance of two 
continuous miles until an operable two-way end-of-train device is 
installed on the train;
    (2) A member of the train crew will be immediately positioned in 
the car which contains the rearmost readily accessible emergency brake 
valve on the train and shall be equipped with an operable two-way radio 
that communicates with the locomotive engineer;
    (3) The locomotive engineer shall periodically make running tests 
of the train's air brakes until the failure is corrected; and
    (4) Each en route failure shall be corrected at the next location 
where the necessary repairs can be conducted or at the next location 
where a required brake test is to be performed, whichever is reached 
first.
    3. Appendix A to Part 232, ``Schedule of Civil Penalties,'' is 
amended by revising the heading of the entry for Sec. 232.23 and 
revising the entry for Sec. 232.23(g) and adding an entry for 
Sec. 232.23(h), to read as follows:

Appendix A to Part 232--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
                                                               Willful  
                    Section                      Violation    violation 
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
                                     *                                  
232.23  Operating standards:                                            
                                                                        
*                  *                  *                  *              
                                     *                                  
    (g) En route failure, freight.............        5,000        7,500
    (h) En route failure, passenger...........        5,000        7,500
                                                                        
*                  *                  *                  *              
                                     *                                  
------------------------------------------------------------------------

    Issued in Washington, D.C., on December 29, 1997.
Donald M. Itzkoff,
Deputy Federal Railroad Administrator.
[FR Doc. 98-134 Filed 1-2-98; 8:45 am]
BILLING CODE 4910-06-P