[Federal Register Volume 66, Number 148 (Wednesday, August 1, 2001)]
[Rules and Regulations]
[Pages 39683-39689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19023]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB-9; Notice No. 20]
RIN 2130-AB49


Brake System Safety Standards for Freight and Other Non-Passenger 
Trains and Equipment; End-of-Train Devices

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: On January 17, 2001, FRA published a final rule revising the 
regulations governing braking systems and equipment used in freight and 
other non-passenger railroad train operations. The revisions were 
intended to achieve safety by better adapting the regulations to the 
needs of contemporary railroad operations and facilitating the use of 
advanced technologies. The revisions were issued in order to comply 
with Federal legislation, to respond to petitions for rulemaking, and 
to address areas of concern derived from experience in the application 
of existing standards governing these operations. In this document, FRA 
responds to the concerns and issues raised by interested parties 
related to the periodic maintenance and testing requirements contained 
in subpart D of the final rule. This document clarifies and amends the 
final rule, where necessary, in response to the petitions for 
reconsideration related to subpart D of the final rule. FRA intends to 
respond to petitions for reconsideration of other portions of the final 
rule in a separate document that will be published in the Federal 
Register in the near future.

DATES: The amendments to the final rule are effective August 1, 2001. 
The incorporation by reference of certain publications listed in the 
amendments to the final rule is approved by the Director of the Federal 
Register as of August 1, 2001.

FOR FURTHER INFORMATION, CONTACT: Leon Smith, Deputy Regional 
Administrator, Region 3, FRA Office of Safety, RRS-14, 1120 Vermont 
Avenue, NW., Stop 25, Washington, DC 20590 (telephone 404-562-3800), or 
Thomas Herrmann, Trial Attorney, Office of the Chief Counsel, RCC-10, 
1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 202-
493-6053).

SUPPLEMENTARY INFORMATION:

Background

    On January 17, 2001, FRA issued a final rule revising the Federal 
safety standards governing braking systems and equipment used in 
freight and other non-passenger railroad train operations. See 66 FR 
4104. The effective date of the final rule was May 31, 2001. See 66 FR 
9906 (February 12, 2001) and 66 FR 29501 (May 31, 2001). In response to 
the final rule, FRA received six petitions for reconsideration from 
seven parties raising various issues related to a number of the 
provisions contained in the final rule. These petitioners included:
    Association of American Railroads (AAR)
    American Short Line and Regional Railroad Association (ASLRRA)
    American Public Transportation Association (APTA),
    Brotherhood of Locomotive Engineers (BLE),
    New York Air Brake Corporation (NYAB),
    Rail Passenger Car Alliance (RPCA), and
    Union Pacific Railroad Company (UP).
    The purpose of this document is to address the issues raised in the 
petitions for reconsideration relating to the periodic maintenance and 
testing requirements prescribed in subpart D of the final rule. FRA 
believes that it is necessary to address these issues as quickly as 
possible because the periodic maintenance and testing requirements 
prescribed in subpart D of the final rule have a compliance date of 
August 1, 2001. Thus, rather than delay the compliance date of the 
requirements prescribed by this subpart, FRA believes that the best 
course of action is a separate response addressing the issues 
specifically raised with regard to this subpart. Due to the complexity 
of some of the issues raised in the petitions for reconsideration on 
other provisions of the final rule, FRA intends to respond to those 
other issues in a separate notice that will be published in the Federal 
Register in the near future.
    In response to the final rule, FRA received a joint petition for 
reconsideration from the AAR and the ASLRRA (``AAR petition'') raising 
various issues relating to the periodic maintenance and testing 
provisions contained in subpart D of the final rule. The specific 
issues and

[[Page 39684]]

recommendations raised by these petitioners, and FRA's response to 
those issues and recommendations are discussed in detail in the 
``Section-by-Section Analysis'' portion of the preamble. The section-
by-section analysis also contains a detailed discussion of each 
provision of the January 17, 2001 final rule that is being clarified or 
amended. This will enable the regulated community to more readily 
compare this document with the preamble discussions contained in the 
final rule and will aid the regulated community in understanding the 
requirements of the rule. All of the changes being made to the final 
rule in this response to the specific petition for reconsideration 
noted above are intended to be clarifying or technical amendments or 
are otherwise within the scope of the issues and options discussed, 
considered, and raised in either the 1998 notice of proposed rulemaking 
(NPRM) or the final rule.

Section-by-Section Analysis

Subpart D--Periodic Maintenance and Testing Requirements

Section 232.303  General requirements
    Paragraph (a)(1)(iv) of this section is being slightly modified in 
response to AAR's petition for reconsideration seeking modification or 
clarification of the definition contained in this paragraph of what 
constitutes a ``repair track'' under subpart D. In the preamble to the 
final rule, FRA explained that the definition contained in this 
paragraph, when read in conjunction with the rest of the subpart, would 
require railroads to treat all cars on a track either designated, or 
regularly and consistently used as a place, to perform minor car 
repairs (sometimes referred to as an ``expedite track'' or ``expediter 
track'') to be treated as though they are on a repair track during the 
period in which major car repairs are being conducted on the track and 
therefore subject to certain tests and inspections. See 66 FR 4179. AAR 
recommends that single car or repair track air brake tests and other 
inspections should be required for a car on an expedite track only if 
the car is undergoing a major repair.
    The purpose of this stringent requirement was to prevent railroads 
from avoiding periodic testing of the brake system by regularly 
performing major repairs on trackage designated or regularly used to 
conduct minor repairs. The purpose was not to alter the basic approach 
to capturing cars for testing at appropriate intervals. FRA also 
intended for this and other definitions in the final rule to be 
consistent with FRA's existing enforcement policies and guidance. See 
66 FR 4178. Prior to the issuance of the final rule, FRA issued 
Technical Bulletin (TB) MP&E 00-01 on January 12, 2000, containing 
enforcement guidance regarding what constitutes a repair or shop track. 
TBs are intended to provide FRA's inspection personnel as well as 
industry representatives guidance on how the regulations are to be 
interpreted and enforced. The definition of shop or repair track 
contained in the final rule codified much of the guidance contained in 
the above noted TB. However, TB MP&E 00-01 made clear that if major 
repairs are conducted on a track designated for minor repairs, then the 
car receiving the major repairs is to be treated as though it is on a 
shop or repair track. See TB MP&E 00-01 (last sentence, page 2). 
Accordingly, after reviewing AAR's petition and reexamining the final 
rule, FRA has determined that the requirement contained in this 
paragraph is overly stringent and inconsistent with FRA's intent when 
issuing the definitions of shop or repair track for purposes of this 
section.
    In order to remain consistent with FRA's primary intent when 
issuing the requirements, FRA is granting the AAR's petition for 
reconsideration. FRA is modifying the definition contained in paragraph 
(a)(1)(iv) to make it consistent with enforcement guidance in effect 
prior to the issuance of the final rule regarding what constitutes a 
shop or repair track. Therefore, the amendment to paragraph (a)(1)(iv) 
clarifies that when major repairs are conducted on trackage that is 
designated or used by a railroad to regularly and consistently perform 
minor repairs that trackage will be considered to be a repair track 
only for the car or cars receiving the major repairs. FRA believes that 
this restriction is sufficiently stringent to ensure that railroads do 
not divert cars to ``expediter'' tracks to avoid conducting single car 
air brake tests. By eliminating any temporary advantage to avoidance of 
the requirement, this formulation will also tend to promote the 
completion of heavier repairs under conditions where appropriate 
arrangements are provided to reduce the risk of injury to workers.
    On January 1, 2001, the AAR and its member railroads modified the 
industry standard related to the performance of both the single car and 
repair track air brake tests, consolidating the procedures for 
conducting the two brake tests into one testing procedure, which will 
be referred to as the ``single car air brake test'' in Sec. 232.305 of 
this regulation. FRA accepts and incorporates these new procedures into 
this rule in lieu of the previously incorporated procedures, as 
discussed in the section-by-section analysis of Sec. 232.305 below. FRA 
also makes certain conforming changes to various provisions contained 
in Sec. 232.303. Paragraphs (e), (e)(1), (e)(1)(iv), and (f) of this 
section are being amended to remove any reference to the previously 
incorporated repair track air brake test. Instead, these paragraphs 
will reference the new single car air brake test adopted by the 
industry on January 1, 2001.
SectionSec. 232.305  Single Car Air Brake Tests
    As noted above, FRA is modifying this entire section in order to 
incorporate the new AAR procedures for performing single car air brake 
tests that the industry adopted beginning on January 1, 2001. In its 
petition, the AAR noted that the April 1, 1999, procedures incorporated 
in Secs. 232.305 and 232.307 of the final rule for performing single 
car and repair track air brake tests were revised only days before the 
publication of the final rule on January 17, 2001. The AAR procedures 
incorporated in the final rule were replaced with a new procedure which 
combined and enhanced the elements of the previous two air brake test 
procedures into one single car air brake test procedure, that would be 
performed whenever either of the two previous tests were required. FRA 
agrees that the revisions made to the procedures incorporated in the 
final rule result in a better test that will enhance the safety and 
reliability of the braking systems on freight equipment. Consequently, 
FRA is revising this section to incorporate the new AAR procedures, 
which have been in use by the industry since January 1, 2001.
    FRA is also merging the requirements previously contained in 
Secs. 232.305 and 232.307 of the final rule related to the frequency at 
which the single car and repair track air brake tests are to be 
performed. The new single car air brake test procedures are and will 
continue to be performed whenever any of the events occur that were 
previously detailed in Secs. 232.305 and 232.307 of the final rule. FRA 
is merely merging the list of qualifying events from those two sections 
of the final rule into this section. The merging of these two sections 
does not change any of the qualifying events or frequencies which were 
previously contained in the final rule. Paragraph (f) of this section 
has been added in order to avoid any misunderstandings or 
misinterpretations. FRA intends for this paragraph to make clear that a 
single car or repair track air brake test performed pursuant the AAR 
procedures as they

[[Page 39685]]

existed prior to January 1, 2001, will be considered the last single 
car air brake test on that piece of equipment for purposes of the 
requirements prescribed by this section.
    In its petition, the AAR again questions the need or wisdom of 
either FRA's incorporation of its existing single car air brake testing 
procedures or FRA's approval of any change in those procedures. The AAR 
points out that the fact that the AAR's April 1, 1999 testing 
procedures had already been revised by the time the final rule was 
issued is evidence that FRA will constantly be lagging behind the 
industry and will merely slow the industry's implementation of 
improvements to the air brake test requirements. The AAR further 
contends that the industry's demonstrated record of improving the 
standards related to periodic air brake testing requirements supports 
self-regulation in this area. The AAR also noted that it did not 
understand what FRA means when it states that FRA approval of any 
changes to the incorporated procedures is necessary to prevent 
unilateral changes from being made to the procedures.
    While FRA agrees that the industry and AAR have improved and 
enhanced the periodic testing of the brake system through their 
implementation of various air brake testing requirements, FRA continues 
to believe that the single car air brake test is critical to ensuring 
the safe and proper operation of the brake equipment on the nation's 
fleet of freight cars. With the elimination of time-based cleaning, 
oiling, and testing of air brake systems, the single car air brake test 
has become the sole method by which air brake equipment on freight cars 
is periodically tested to identify potential problems before they 
result in the brake's becoming inoperative. Therefore, FRA continues to 
believe that specific and determinable limits must be placed on the 
manner and frequency of performing this test.
    FRA also continues to believe that FRA as well as other interested 
parties must be given an opportunity to review and comment on any 
revision of the procedures by which these tests are performed to ensure 
that there is no degradation in safety resulting from any such 
modification and to ensure consistency in how the tests are performed. 
In the preamble to the final rule, FRA also noted that its review and 
approval are necessary to prevent unilateral changes from being made to 
the test procedures. Under the existing maintenance provisions 
prescribed in part 232, freight cars are subject to periodic brake 
attention in accordance with ``the currently effective AAR Code of 
Rules for cars in interchange'' and ``the currently effective AAR Code 
of Tests.'' See 49 CFR 232.17. The existing regulations permit the AAR 
to make unilateral changes to either its Code of Rules or its Code of 
Tests and, thus, to affect how or what periodic tests and maintenance 
may be required, potentially without FRA or any other non-AAR member 
having an opportunity to provide input. By incorporating the January 1, 
2001 AAR procedures for conducting single car air brake tests into the 
regulations, FRA ensures that a minimum baseline standard is maintained 
and allows for FRA and other interested parties to review and comment 
on any potential change or deviation from that baseline standard.
    FRA continues to recognize that the industry may find it necessary 
to modify the single car air brake test procedures from time to time in 
order to address new equipment or utilize new technology. Thus, FRA is 
amending paragraph (a) of this section and revising Sec. 232.307 to 
include an expedited method by which the industry may revise the 
incorporated test procedures. In response to the AAR petition for 
reconsideration, FRA is adding another method by which the incorporated 
test procedures may be modified, in addition to the special approval 
process contained in Sec. 232.17 of the final rule. As recommended by 
AAR in its petition, the modification procedure being added in this 
response will permit changes in the procedures to become immediately 
effective upon expiration of a comment period if no objections are 
raised to the proposed modification by either FRA or other interested 
parties during the comment period.
    It should be noted that the incorporated procedures for performing 
single air brake tests are the minimum requirements for performing such 
tests. The special approval or modification process is required to be 
used only if the incorporated procedures are to be changed in some 
manner. For instance, if the industry were to elect to add a new test 
protocol to its procedures, there would be no need to seek approval of 
such an addition as long as the procedures contained in the 
incorporated standard are still maintained. The final rule is not 
intended to prevent railroads from voluntarily adopting additional or 
more stringent maintenance standards provided they are consistent with 
the standards incorporated.
Section Sec. 232.307  Modification of the Single Car Air Brake Test 
Procedures
    The AAR's petition for reconsideration requests that FRA withdraw 
the requirement that FRA approve AAR single car air brake testing 
requirements or, alternatively, that FRA permit changes in the 
procedures to go into effect automatically unless FRA explicitly 
objects to the changes. As noted in the preceding discussion, FRA 
recognizes that the industry may find it necessary to modify the single 
car air brake test procedures from time to time. FRA also agrees that a 
process needs to be provided to the industry to allow for modification 
of the incorporated testing procedures in a quick and efficient manner. 
However, any such process must provide both FRA and other interested 
parties an opportunity to review potential changes prior to their 
becoming effective. Consequently, to meet these needs and to respond 
substantively to AAR's request, FRA has revised this section to include 
a process by which the incorporated single car air brake test 
procedures in Sec. 232.305(a) can be modified expeditiously.
    The process outlined in this section will permit the industry to 
modify the single car air brake test procedures incorporated in 
Sec. 232.305, and permit those modifications to become effective 75 
days from the date that FRA publishes the requested modification in the 
Federal Register, if no objection to the requested modification is 
raised either by FRA or any other interested party. The process allows 
FRA and other interested parties 60 days to review and raise objections 
to any proposed modification requested by the industry and submitted to 
FRA.
    Paragraph (a) describes the information that must be submitted to 
FRA in a request for modification. Paragraph (b) requires FRA to 
publish a notice in the Federal Register upon receipt of any request 
for modification. FRA wishes to make clear that the publication of such 
a notice may occur several days or weeks after the submission of a 
request for modification due to formatting requirements and scheduling 
concerns of the Federal Register as well as FRA's workload 
capabilities. However, FRA is committed to ensuring that this expedited 
modification process is successful and will make every effort to 
publish requests for modification as quickly as possible without undue 
delay.
    Paragraph (c) provides for a 60-day comment period, during which 
FRA and other interested parties will review the request. FRA must also 
raise any

[[Page 39686]]

objections it has to a requested modification during the 60-day comment 
period. Interested parties must submit any objections they have to the 
requested modification during the 60-day comment period provided.
    Paragraph (d)(1) explains that a requested modification will become 
effective 15 days after the close of the 60-day comment period if FRA 
raises no objections to the requested modification and no objections 
are received by other interested parties. The 15-day waiting period is 
designed to afford FRA a chance to review any comments submitted during 
the 60-day comment period, especially those submitted toward the end of 
that period. Thus, the party requesting the modification may not be 
informed of an objecting comment until after the close of the 60-day 
comment period. However, such notification would be provided prior to 
the close of the 15-day waiting period.
    Paragraph (d)(2) makes clear that if objections are raised to a 
requested modification by either FRA or another interested party during 
the prescribed time periods, then the request will be disposed of in a 
manner similar to that established for addressing petitions for an 
alternative standard under the special approval procedures contained in 
Sec. 232.17 of the final rule. FRA will either grant or deny the 
requested modification in as expeditious manner as possible, generally 
within 90 days of receiving the submission. Accordingly, when an 
objection is raised to a requested modification, the proposed 
modification could not become effective until FRA formally grants the 
request.
    FRA believes the process established in this section will meet the 
needs of AAR and the industry to modify the single car air brake test 
procedures incorporated in Sec. 232.305(a) expeditiously. However, for 
the process to work at optimum efficiency, the AAR and the industry 
would be best served if they ensure that there is open communication 
regarding any modifications with both FRA and the representatives of 
affected employees prior to requesting any modification of the 
procedures. This will ensure that interested parties are fully informed 
of any potential modification and their concerns are addressed or 
allayed before a request for modification is submitted to FRA. This 
information and dialogue will eliminate the potential for objections 
being submitted when the requested modification is officially sought.
Section Sec. 232.309  Equipment and Devices Used To Perform Single Car 
Air Brake Tests
    Due to the AAR's consolidation of the procedures for performing 
single car and repair track air brake tests into a single procedure and 
FRA's acceptance and incorporation of those new procedures into the 
rule, as discussed in detail above, conforming changes are being made 
to paragraph (a) of this section. Paragraph (a) is amended to remove 
any reference to the previously incorporated repair track air brake 
test. Instead, this paragraph will reference the new single car air 
brake test adopted and implemented by the industry on January 1, 2001.
Appendix A To Part 232--Schedule of Civil Penalties
    Appendix A to this part contains the schedule of civil penalties to 
be used in connection with this part. Due to the modification of the 
final rule discussed in detail above, FRA is making conforming changes 
to the schedule of civil penalties contained in this appendix.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This response to petitions for reconsideration of the final rule 
has been evaluated in accordance with Executive Order 12866 and DOT 
policies and procedures. Although the final rule met the criteria for 
being considered a significant rule under those policies and 
procedures, the amendments contained in this response to petitions for 
reconsideration of the final rule are not considered significant 
because they either clarify requirements currently contained in the 
final rule or allow for greater flexibility in complying with the rule. 
The economic impact of the amendments and clarifications contained in 
this response to petitions for reconsideration will generally reduce 
the cost of compliance with the rule. However, the cost reduction will 
be minimal and does not significantly alter FRA's original analysis of 
the costs and benefits associated with the original final rule.

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 prepared and placed in the docket a Regulatory Flexibility 
Assessment, which assessed the small entity impact of the final rule. 
FRA certifies that this response to petitions for reconsideration of 
the final rule does not affect the assessments made in that document. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may 
also be obtained by submitting a written request to the FRA Docket 
Clerk at Office of Chief Counsel, Stop 10, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590.
    Pursuant to Section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published 
an interim policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. 62 FR 43024 (Aug. 11, 1997). For other entities, the same 
dollar limit in revenues governs whether a railroad, contractor, or 
other respondent is a small entity.
    FRA certifies that this response to petitions for reconsideration 
does not have a significant impact on a substantial number of small 
entities. Because the amendments contained in this document either 
clarify requirements currently contained in the final rule or allow for 
greater flexibility in complying with the rule, FRA has concluded that 
there are no substantial economic impacts on small units of government, 
businesses, or other organizations.

Paperwork Reduction Act

    This response to petitions for reconsideration of the final rule 
does not significantly change any of the information collection 
requirements contained in the original final rule. Presently, the 
information collection requirements associated with this rule have been 
approved by the Office of Management and Budget (OMB) under OMB Number 
2130-0008. The current expiration date for this OMB approval is 
December 31, 2003.
    After carefully reviewing the petitions for reconsideration of the 
final rule, FRA's response to the petitions contained in this document 
incorporates a new single car air brake test procedure in place of the 
single car and repair track air brake test procedures incorporated in 
the final rule at Secs. 232.305 and 232.307. The newly incorporated 
single car air brake test procedures will be contained solely in 
Sec. 232.305 with virtually the same triggering requirements as before. 
In this response, FRA will permit the AAR or other authorized 
representative of the rail industry to seek modification of the single 
car air brake test procedures pursuant to a new modification procedure 
which will be contained in

[[Page 39687]]

Sec. 232.307. Under the final rule, the only method by which a party 
could modify the incorporated testing procedures was to submit a 
petition under the special approval process contained in Sec. 232.17. 
The modification procedures contained in this document will require 
much of the same information to be submitted by the requesting party as 
is required under Sec. 232.17, but will permit modifications to become 
effective immediately if no objection is raised by either FRA or other 
interested parties. The burden associated with the new Sec. 232.307 has 
already been accounted for under the estimated burdens associated with 
Sec. 232.17 because most of the petitions that would have been 
submitted under the special approval process will likely be submitted 
under the modification procedures contained in Sec. 232.307. Overall, 
the burden hours for this information collection have not changed; they 
have merely been reallocated. FRA has included the modification 
procedures in order to make the approval process for certain 
modifications more expeditious for the industry, which may ease some of 
the time and cost burdens incurred in complying with this regulation.
    It should be noted that the AAR raised several issues concerning 
the information collection submission associated with this final rule 
and FRA's compliance with the Government Paperwork Elimination Act 
(GPEA). FRA intends to respond to these concerns as well as other 
substantive issues in a separate response that will be published in the 
Federal Register in the near future.

Environmental Impact

    FRA has evaluated this response to petitions for reconsideration of 
the final rule in accordance with its ``Procedures for Considering 
Environmental Impacts'' (FRA Procedures) (64 FR 28545, May 26, 1999) as 
required by the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), other environmental statutes, Executive Orders, and related 
regulatory requirements. FRA has determined that this document is not a 
major FRA action (requiring the preparation of an environmental impact 
statement or environmental assessment) because it is categorically 
excluded from detailed environmental review pursuant to section 4(c) of 
FRA's Procedures.

Federalism Implications

    FRA believes it is in compliance with Executive Order 13132. 
Because the amendments contained in this response to petitions for 
reconsideration of the final rule either clarify requirements currently 
contained in the final rule or allow for greater flexibility in 
complying with the rule, this document will not have a substantial 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. This response 
to petitions for reconsideration of the final rule will not have 
federalism implications that impose any direct compliance costs on 
State and local governments. FRA notes that States involved in the 
State Participation Program, pursuant to 49 CFR part 212, may incur 
minimal costs associated with the training of their inspectors involved 
in the enforcement of the final rule; however, the majority of 
technical training costs for inspectors are borne by FRA within 
existing appropriations.
    In any event, Federal preemption of a State or local law occurs 
automatically as a result of the statutory provision contained at 49 
U.S.C. 20106 when FRA issues a regulation covering the same subject 
matter as a State or local law unless the State or local law is 
designed to reduce an essentially local safety hazard, is not 
incompatible with Federal law, and does not place an unreasonable 
burden on interstate commerce. (See discussion in the section-by-
section analysis of Sec. 232.13.) It should be noted that the potential 
for preemption also exists under various other statutory and 
constitutional provisions. These include: 49 U.S.C. 20701-20703 
(formerly, commonly known as the Locomotive Inspection Act), 49 U.S.C. 
20301-20304 (formerly, commonly known as the Safety Appliance Acts), 
and the Commerce Clause of the United States Constitution.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this response to petitions for 
reconsideration of the final rule in accordance with Executive Order 
13211. Although the final rule met the criteria for being considered a 
significant rule under Executive Order 12866 and DOT policies and 
procedures, the amendments contained in this response to petitions for 
reconsideration of the final rule are not considered significant 
because they either clarify requirements currently contained in the 
final rule or allow for greater flexibility in complying with the rule. 
Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

List of Subjects in 49 CFR Part 232

    Incorporation by reference, Penalties, Railroad power brakes, 
Railroad safety, Two-way end-of-train devices.

    For the reasons set forth in the preamble, part 232 of chapter II 
of title 49 of the Code of Federal Regulations is amended as follows:

PART 232--[AMENDED]

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

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 49 CFR 1.49 (c), (m).

Subpart D--Periodic Maintenance and Testing Requirements

    2. Section 232.303 is amended by revising paragraphs (a)(1)(iv), 
(e)(1) introductory text and (e)(1)(iv), and the introductory text of 
paragraphs (e) and (f) to read as follows:


Sec. 232.303  General requirements.

    (a) * * *
    (1) * * *
    (iv) A track designated by a railroad as a track where minor 
repairs will be conducted or used by a railroad to regularly and 
consistently perform minor repairs during the period when the track is 
used to conduct major repairs; however, such trackage is considered a 
shop or repair track only for each car receiving major repairs on such 
trackage and not for a car receiving only minor repairs; and
* * * * *
    (e) If the single car air brake test required by Sec. 232.305 
cannot be conducted at the point where repairs can be made to the car, 
the car may be moved after the repairs are made to the next forward 
location where the test can be performed. Inability to perform a single 
car air brake test does not constitute an inability to make the 
necessary repairs.
    (1) If it is necessary to move a car from the location where the 
repairs are

[[Page 39688]]

performed in order to perform a single car air brake test required by 
this part, a tag or card shall be placed on both sides of the 
equipment, or an automated tracking system approved for use by FRA, 
shall contain the following information about the equipment:
* * * * *
    (iv) Indication whether the car requires a single car air brake 
test;
* * * * *
    (f) The location and date of the last single car air brake test 
required by Sec. 232.305 shall be clearly stenciled, marked, or labeled 
in two-inch high letters or numerals on the side of the equipment. 
Alternatively, the railroad industry may use an electronic or automated 
tracking system to track the required information and the performance 
of the test required by Sec. 232.305.
* * * * *

    3. Section 232.305 is revised to read as follows:


Sec. 232.305  Single car air brake tests.

    (a) Single car air brake tests shall be performed by a qualified 
person in accordance with either Section 3.0, ``Tests-Standard Freight 
Brake Equipment,'' and Section 4.0, ``Special Tests,'' of the 
Association of American Railroads Standard S-486-01, ``Code of Air 
Brake System Tests for Freight Equipment,'' contained in the AAR Manual 
of Standards and Recommended Practices, Section E (January 1, 2001); an 
alternative procedure approved by FRA pursuant to Sec. 232.17; or a 
modified procedure approved in accordance with the provisions contained 
in Sec. 232.307. The incorporation by reference of these two sections 
of this AAR standard was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
obtain a copy of the incorporated document from the Association of 
American Railroads, 50 F Street, NW., Washington, DC 20001. You may 
inspect a copy of the document at the Federal Railroad Administration, 
Docket Clerk, 1120 Vermont Avenue, NW., Suite 7000, Washington, DC or 
at the Office of the Federal Register, 800 North Capitol Street, NW., 
Suite 700, Washington, DC.
    (b) Except as provided in Sec. 232.303(e), a railroad shall perform 
a single car air brake test on a car when:
    (1) A car has its brakes cut-out or inoperative when removed from a 
train or when placed on a shop or repair track, as defined in 
Sec. 232.303(a);
    (2) A car is on a shop or repair track, as defined in 
Sec. 232.303(a), for any reason and has not received a single car air 
brake test within the previous 12-month period;
    (3) A car is found with missing or incomplete single car air brake 
test information;
    (4) One or more of the following conventional air brake equipment 
items is removed, repaired, or replaced:
    (i) Brake reservoir;
    (ii) Control valve mounting gasket;
    (iii) Pipe bracket stud;
    (iv) Service portion;
    (v) Emergency portion; or
    (vi) Pipe bracket.
    (5) A car is found with one or more of the following wheel defects:
    (i) Built-up tread, unless known to be caused by hand brake left 
applied;
    (ii) Slid flat wheel, unless known to be caused by hand brake left 
applied; or
    (iii) Thermal cracks.
    (c) Except as provided in paragraph (d) of this section, each car 
shall receive a single car air brake test no less than every 5 years.
    (d) Each car shall receive a single car air brake test no less than 
8 years from the date the car was built or rebuilt.
    (e) A single car air brake test shall be performed on each new or 
rebuilt car prior to placing or using the car in revenue service.
    (f) For purposes of paragraphs (b)(2), (b)(3), and (c) of this 
section, if a single car test or repair track air brake test is 
conducted on a car prior to January 1, 2001, pursuant to the then 
existing AAR standards, it shall be considered the last single car air 
brake test for that car, if necessary.
    4. Section 232.307 is revised to read as follows:


Sec. 232.307  Modification of the single car air brake test procedures.

    (a) Request. The AAR or other authorized representative of the 
railroad industry may seek modification of the single car air brake 
test procedures prescribed in Sec. 232.305(a). The request for 
modification shall be submitted in triplicate to the Associate 
Administrator for Safety, Federal Railroad Administration, 400 7th 
Street, S.W., Washington, D.C. 20590 and shall contain:
    (1) The name, title, address, and telephone number of the primary 
person to be contacted with regard to review of the modification;
    (2) The modification, in detail, to be substituted for a particular 
procedure prescribed in Sec. 232.305(a);
    (3) Appropriate data or analysis, or both, for FRA to consider in 
determining whether the modification will provide at least an 
equivalent level of safety; and
    (4) A statement affirming that the railroad industry has served a 
copy of the request on the designated representatives of the employees 
responsible for the equipment's operation, inspection, testing, and 
maintenance under this part, together with a list of the names and 
addresses of the persons served.
    (b) Federal Register document. Upon receipt of a request for 
modification, FRA will publish a document in the Federal Register 
containing the requested modification. The document will permit 
interested parties 60 days to comment on any requested modification.
    (c) FRA review. During the 60 days provided for public comment, FRA 
will review the petition. If FRA objects to the requested modification, 
written notification will be provided, within this 60-day period, to 
the party requesting the modification detailing FRA's objection.
    (d) Disposition. (1) If no comment objecting to the requested 
modification is received during the 60-day comment period, provided by 
paragraph (b) of this section, or if FRA does not issue a written 
objection to the requested modification, the modification will become 
effective 15 days after the close of the 60-day comment period.
    (2) If an objection is raised by an interested party, during the 
60-day comment period, or if FRA issues a written objection to the 
requested modification, the requested modification will be handled as 
follows:
    (i) If FRA finds that the request complies with the requirements of 
this section and that the proposed modification is acceptable and 
justified, the request will be granted, normally within 90 days of its 
receipt. If the request for modification is neither granted nor denied 
within 90 days, the request remains pending for decision. FRA may 
attach special conditions to the approval of any request for 
modification. Following the approval of a request for modification, FRA 
may reopen consideration of the request for cause.
    (ii) If FRA finds that the request does not comply with the 
requirements of this section and that the proposed modification is not 
acceptable or justified, the requested modification will be denied, 
normally within 90 days of its receipt.
    (iii) When FRA grants or denies a request for modification, or 
reopens consideration of the request, written notice is sent to the 
requesting party and other interested parties.

[[Page 39689]]

    5. Section 232.309 is amended by revising the section heading and 
paragraph (a) to read as follows:


Sec. 232.309  Equipment and devices used to perform single car air 
brake tests.

    (a) Equipment and devices used to perform single car air brake 
tests shall be tested for correct operation at least once each calendar 
day of use.
* * * * *
    6. Appendix A to part 232 is amended by removing the entry for 
Sec. 232.307 and by revising the entry for Sec. 232.305 to read as 
follows:

Appendix A to Part 232--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
                                                  Willful      Willful
                   1Section                      Violation    violation
------------------------------------------------------------------------
 
                  *        *        *        *        *
232.305 Single car air brake tests:
  (a) Failure to test in accord with required         2,500        5,000
   procedure..................................
  (b)-(e) Failure to perform test.............        2,500        5,000
 
                  *        *        *        *        *
------------------------------------------------------------------------

* * * * *

    Issued in Washington, DC, on July 26, 2001.
Betty Monro,
Deputy Federal Railroad Administrator.
[FR Doc. 01-19023 Filed 7-31-01; 8:45 am]
BILLING CODE 4910-06-P