[Federal Register Volume 67, Number 69 (Wednesday, April 10, 2002)]
[Rules and Regulations]
[Pages 17556-17585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8183]



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Part IV





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 232



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

  Federal Register / Vol. 67, No. 69 / Wednesday, April 10, 2002 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB-9; Notice No. 21]
RIN 2130--AB52


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. On August 1, 2001, 
FRA published an initial response to petitions for reconsideration of 
the final rule which addressed the issues and concerns raised in the 
petitions related to the periodic maintenance requirements contained in 
subpart D of the final rule. In this document, FRA responds to the 
concerns of various interested parties raised in their petitions for 
reconsideration of the final rule that pertain to the remaining 
portions of the final rule. This document clarifies and amends the 
final rule, where necessary, in response to the petitions for 
reconsideration.

EFFECTIVE DATE: The amendments to the final rule are effective April 
10, 2002.

FOR FURTHER INFORMATION CONTACT: James Wilson, FRA Office of Safety, 
RRS-14, 1120 Vermont Avenue, Stop 25, Washington, DC 20590 (telephone 
202-493-6259), or Thomas Herrmann, Trial Attorney, Office of the Chief 
Counsel, RCC-10, 1120 Vermont Avenue, 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 the 
following:
    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).
    On August 1, 2001, FRA published an initial response to the 
petitions for reconsideration of the final rule addressing those issues 
raised in the petitions related to the periodic maintenance and testing 
requirements prescribed in subpart D of the final rule. See 66 FR 
39683. FRA believed that it was necessary to address these issues as 
quickly as possible because the periodic maintenance and testing 
requirements prescribed in subpart D of the final rule had a compliance 
date of August 1, 2001. Due to the complexity of some of the issues 
raised in the petitions for reconsideration on other provisions of the 
final rule, FRA decided to address the issues related to subpart D in 
its initial response to the petitions and then issue a follow-up 
response addressing the issues pertaining to other portions of the 
final rule. See id. This document is FRA's follow-up response and 
addresses all outstanding issues raised in the petitions for 
reconsideration.
    The specific issues and recommendations raised in the petitions for 
reconsideration, and FRA's response to those petitions is 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 which is being clarified or amended from the January 17, 
2001 final rule. 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 petitions for reconsideration are 
intended to be clarifying or technical amendments or are 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.

I. Discussion of Regulatory Evaluation Concerns

    In the joint AAR and ASLRRA petition for reconsideration of the 
final rule (hereafter referred to as AAR's petition), the parties raise 
a number of concerns regarding FRA's Regulatory Impact Analysis (RIA) 
of the final rule. Generally, the AAR contends that the final rule is 
not cost effective. The AAR asserts that FRA's RIA understates the 
costs and overstates the benefits of the final rule. The AAR calculates 
that the costs related to the final rule will exceed the benefits by 
more than $65 million. FRA disagrees with both AAR's assumptions and 
its conclusions regarding the agency's RIA. In response to AAR's 
petition, FRA has carefully examined each of the cost and benefit 
issues raised by AAR in its petition. Each of the major issues and 
concerns is discussed in detail below.

A. Cost Issues

1. Dynamic Brake Repairs
    AAR claims that the final rule provision requiring that dynamic 
brakes be repaired within 30 days of becoming defective will cost the 
industry approximately $7.5 million more than the $5.5 million FRA 
estimated in the RIA. In the RIA, FRA estimated the cost of this 
requirement based on the amount of time it would take to conduct the 
required repairs, which FRA estimated at eight hours, to which FRA 
added two hours to cover the movement of the locomotive into and out of 
the shop and to account for clean-up time. See RIA at 24-25. AAR does 
not appear to question FRA's estimate of ten hours for actual repair 
and incidental movement time. However, AAR bases its higher estimate on 
the belief that the correct cost of this requirement should be the time 
out of service incurred by a locomotive to make the required repair and 
that this out-of-service time should be estimated at 24 hours. AAR 
arrived at the 24-hour out-of-service time figure by maintaining that 
the locomotive is out of service both before and after the required 
repairs are made for a period of approximately 24 hours. AAR contends 
that the time required to make the necessary repairs should not be the 
basis of the estimate because railroads will make the repairs anyway, 
just not within the newly prescribed 30-day time period in some cases. 
Thus, the AAR asserts that the locomotive out-of-service time prior to 
and after the repairs are made is the proper basis for estimating the 
cost of this requirement.

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    As noted in the RIA, FRA strongly disagrees with AAR's suggestion 
that an estimate of 24 hours of downtime should be used as the basis 
for the cost estimate. See RIA at 24. FRA believes that time spent 
waiting for repairs to be performed or waiting after the repairs are 
completed is not properly viewed as a new regulatory burden associated 
with the rule. The final rule allows railroads 30 days from the date a 
locomotive is first discovered with defective dynamic brakes to make 
the necessary repairs. The 30-day allowance was provided to permit 
railroads to better plan and manage their locomotive fleet without 
disruption to their operations. The RIA assumes that railroads will act 
in the most efficient and cost effective manner to meet the 
requirements of the final rule. With proper planning and management, 
there should be no need for locomotives to make special trips to repair 
facilities, and with proper planning locomotives should not have to 
wait extended amounts of time for repair and movement out of repair 
facilities.
    Moreover, FRA disagrees with the assumptions used by AAR to 
calculate the amount of downtime a locomotive would incur to meet the 
requirements of the regulation. AAR calculations are based on the 
assumption that a locomotive is used 24 hours a day, seven days a week. 
This is an unrealistic assumption as it is well known in the railroad 
industry that virtually no locomotive is used to this extent. Secondly, 
AAR's calculation fails to take into account that locomotives would be 
in repair facilities for other repairs at which time the dynamic brakes 
could be repaired. The 30-day window provided by the final rule for 
making dynamic brake repairs is intended to allow railroads flexibility 
in scheduling such repairs to coincide with time periods when a 
locomotive is not in service or when the locomotive is undergoing other 
necessary repairs. Thus, FRA believes that AAR greatly overestimates 
any locomotive downtime related to the final rule requirement. 
Therefore, even assuming arguendo AAR's costing method, the 10 hours 
costed by FRA for this provision is reasonable. In fact, it is very 
conceivable that FRA's cost estimate here may actually be high, and 
that the actual cost may be lower to the railroads than FRA has 
estimated. However, FRA deliberately chose to use a very conservative 
number in determining its cost estimate.
2. Train Handling Information
    AAR claims that the final rule requirement to provide certain 
information to the train crew will cost the industry $12 million more 
than the $4.4 million estimated by FRA. See 66 FR 4203, RIA at 22. 
Specifically, AAR contends that the provision to provide information to 
train crews regarding the performance of Class I brake tests requires 
more information (number of cars, place, time, date, and name of 
inspector) to be transmitted to a greater number of trains than is 
currently required. The old regulation allowed for required information 
on performance of initial terminal brake tests to be provided orally on 
trips under 500 miles and mandated that required information be 
provided in writing on trips over 500 miles and on trains where the 
inspector goes off duty before a train crew comes on duty. The final 
rule requires that certain information be provided to train crews for 
all trains receiving Class I brake tests, including those on trips 
under 500 miles, and that a written or electronic record of the 
information be maintained in the cab of the controlling locomotive.
    In the RIA, FRA based its cost calculations on the assumption that 
an additional 300,000 train starts, for trains traveling less than 500 
miles, would be affected by the final rule requirement. See RIA at 22. 
AAR contends that FRA's 300,000 train start assumption is incorrect 
because AAR contends that there are over 1,000,000 train starts where 
the train will travel less than 500 miles and that this is the actual 
number of trains that will be affected by the final rule. However, a 
close examination of AAR's cost estimate reveals that the 1,000,000 
train starts does not discount for the existing regulatory requirement 
that a written record is to be provided by the person performing an 
initial terminal brake inspection for any train when the inspector goes 
off duty prior to the operating crew coming on duty. See 49 CFR 
232.12(a)(2). Moreover, AAR's cost estimate does not address the issue 
of how many of the 1,000,000 train starts it identifies would be 
considered transfer trains that would not require the transmission and 
retention of the involved information. FRA believes that had these 
factors been considered the number of affected train starts would be 
close to FRA's estimate contained in the RIA. Consequently, in light of 
these factors and in light of the fact that there are no readily 
available data on the number of trains traveling under 500 miles, FRA 
believes its cost estimate of 300,000 affected train starts is 
reasonable.
3. Retesting of Cars
    AAR further contends that the final rule provision requiring the 
retest of cars found with brakes not to be applied during a required 
brake test will cost the industry $17.4 million more than FRA's cost 
estimate of $8.2 million contained in the RIA. In the RIA, FRA's 
estimate is based on the assumption that 75,000 cars would need to be 
retested annually pursuant to the final rule. See RIA at 20. However, 
AAR bases its estimate of approximately $25 million by using 150,000 
cars as the number of rail cars affected by the retest provision and by 
using increased labor costs that it derived from ``survey'' results of 
some of its member railroads. AAR provided no other pertinent 
information concerning the ``survey'' cited, only the results.
    FRA essentially cut the AAR's number in half when developing the 
RIA for the final rule, which doubled the costs estimated in the NPRM 
based on FRA's agreement with certain AAR comments submitted in 
response to the NPRM. If AAR's numbers presented in its petition are 
accurate, then 10 percent of the rail car fleet would require a retest 
each year. FRA continues to believe that this percentage is much too 
high. FRA believes that a large portion of the fleet that fails a brake 
test does so for obvious reasons. These cars would simply be removed 
from the train and repaired where found defective. Consequently, such 
cars would not be affected by the retest provision contained in the 
final rule. Again, it should be noted that details about AAR's survey 
(e.g., methodology, the number of railroads surveyed, questions asked, 
and information sought) were not provided to FRA in AAR's petition for 
reconsideration. FRA continues to believe that its cost estimate for 
this provision is reasonable and that 75,000 cars (5 percent of the 
fleet) may, in fact, be overestimating the number of retests that will 
be required. However, FRA again preferred to be conservative when 
developing the RIA for the final rule. If FRA were to accept the AAR's 
estimate that 150,000 cars would need to be retested, FRA would also 
have to conclude that the freight car fleet is in significantly worse 
condition than FRA believes to be the case and would have to reconsider 
requiring more vigorous action to keep freight cars in good repair.
4. Piston Travel Stickers/Decals/Stencils
    AAR also asserts that the final rule requirement to affix a 
sticker, decal, or stencil on rail cars indicating permissible piston 
travel will cost the industry $3 million more than FRA's estimate of 
approximately $3.4 million contained in the RIA. AAR contends that the 
requirement to have these

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indicators affixed on rail cars by April 1, 2004, will result in cars 
having to be taken out of service solely for the purpose of applying 
the required decal, sticker, or stencil. It should be noted that AAR 
did not raise this issue in its comments on the NPRM issued in 1998. In 
its petition, AAR now estimates that 20 percent of the cars requiring 
the labeling will need to be removed from service.
    FRA strongly disagrees with AAR's analysis of this provision. FRA 
believes that the time permitted in the final rule is sufficient for 
railroads to comply with the requirement. On average, rail cars are 
placed on a fixed repair track or a sidetrack where repairs are 
conducted approximately once every one-and-one-half years. The task of 
applying a sticker, decal, or stencil takes only a few minutes to 
accomplish, and FRA has allowed numerous ways for railroads to comply 
with the requirement. As a matter of fundamental sound economics, good 
business practice, and effective utilization of employee time and 
company resources, FRA assumes the railroads will use the most cost-
effective option (i.e., applying stickers or decals to a rail car while 
performing other functions rather than taking it out of service 
unnecessarily) when placing piston travel information on rail cars. The 
most reasonable approach to complying with the requirement is to apply 
the sticker, stencil, or decal when an inspection or repair is being 
conducted on the rail car. Therefore, FRA maintains that railroads will 
not incur the excessive costs estimated by AAR when less expensive 
alternatives for achieving compliance are utilized. Consequently, FRA 
continues to believe that the RIA cost estimate for this requirement is 
reasonable.
5. Training
    The AAR further alleges that the training requirements contained in 
the final rule will cost the industry between $8.3 million and $19 
million more than FRA's RIA estimate of approximately $61 million. 
Although FRA is not unmindful that the costs associated with the 
training requirements represents the single highest cost item 
associated with the final rule, FRA believes that AAR has seriously 
overestimated the costs of the training requirements in its petition. 
Furthermore, in response to the training concerns raised by AAR in its 
petition, FRA is modifying some of the training requirements contained 
in the final rule to reduce the initial training burdens, particularly 
for existing employees as discussed in detail in the section-by-section 
analysis below. Thus, many of the costs implications cited by AAR in 
its petition will be reduced as existing employees will be permitted to 
``test out'' or be certified as having received part of the initial 
training.
    In addition to the regulatory changes, which will significantly 
reduce the cost of initial training for existing employees, AAR also 
overestimated the cost of the training requirements in its petition. In 
its petition, AAR's costs assume a much greater labor cost than FRA 
assumed when developing the RIA for the final rule. AAR estimated an 
average labor cost of approximately $48 per hour/per employee to 
conduct the required training. However, the final rule's RIA relied on 
a labor cost of $35 per hour/per employee. See RIA at 32a. FRA based 
its final rule labor costs on the fact that the RIA related to the NPRM 
used an estimate of $35 per hour for the cost of employee time for 
training purposes, and it noted that this figure was obtained from a 
1995 AAR submission. Although the AAR did express concerns with the 
training costs in two different comments submitted in response to the 
NPRM, AAR never objected to FRA's use of the $35 per hour labor cost 
for employee time. AAR did not object to $35 per hour labor cost for 
employee time even though the cost estimate was several years old and 
was not adjusted for inflation. Thus, notice and comment were properly 
provided on this cost estimate and no objections were raised regarding 
its use. Consequently, FRA's use of the dollar figure in the final rule 
should be considered reasonable.
    AAR's petition also asserts that the FRA's training costs in the 
RIA omit the cost of training materials and other miscellaneous costs. 
The RIA for the final rule suggests that trade groups such as AAR and 
ASLRRA would develop training programs for member railroads. In fact, 
FRA assessed costs of $200,000 for each of these groups for initial 
development of such training programs. See RIA at 30. Additionally, FRA 
assessed an annual cost of $40,000 for training on new brake systems 
and for adjustments in training programs. Incorporated in FRA's cost 
estimates for training are all costs related to the development of a 
training program, including the costs of materials, and other 
miscellaneous costs.
    In its petition, AAR also states that the training and 
recordkeeping requirements are particularly burdensome for small 
railroads. AAR expresses concern that the training requirements will 
not allow flexibility for the small railroads so that their workers can 
be trained for the unique operation and environment they encounter 
daily. However, FRA notes that the final rule requires railroads and 
contractors to develop training programs that provides the skills 
needed to inspect, test, and maintain the brake equipment. FRA 
continues to believe that the unique environment and operating 
characteristics of small railroads will itself provide flexibility for 
compliance with the training requirements. This is feasible because the 
training programs can be tailored to the skills needed by the various 
employees on each railroad. Since small railroads have less 
sophisticated operations and older equipment, many of the tasks 
relating to inspection, testing, and maintenance of brake equipment 
that personnel of larger railroads are required to perform would not 
have to be performed by many of the employees on smaller railroads. 
Therefore, much of the training being provided on larger railroads 
would not be required to be provided on many smaller railroads. For 
example, most small railroads do not operate trains with two-way end-
of-train devices or dynamic brakes, and therefore, they would not have 
to provide training for such equipment. Similarly, many smaller 
railroads do not conduct much of the brake system maintenance or some 
of the brake inspections and tests mandated under the final rule and 
thus, training on those tasks would not be required. Correspondingly, 
as the training requirements lessen for smaller railroads, the 
recordkeeping burdens attached to the training requirements will also 
be reduced.
    The AAR's petition also contends that some of the final rule 
recordkeeping requirements related to training are unnecessary and 
should be eliminated. Specifically, AAR requests the elimination of the 
requirement to retain a description of the employee's ``hands-on'' 
performance applying the skills and knowledge the employee needs to 
possess to perform the tasks for the employee is assigned 
responsibility. AAR professes that it finds little value in this 
requirement. FRA maintains that the short description (a few sentences) 
involved in maintaining this record is not particularly burdensome and 
that it will assist FRA in its oversight responsibilities. AAR also 
seeks elimination of the requirement to notify employees of their 
qualification status as AAR finds little value in this requirement. AAR 
contends that an employee will learn the status of his qualifications 
regardless of any regulatory requirement. However, FRA continues to 
believe that employees need a current record of their qualification 
status to ensure that no

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discrepancies exist between what employees believe their qualifications 
are and what the company records indicate, especially since employees 
may be held individually liable for violations of the final rule and 
subject to various civil sanctions.
    In addition, AAR's petition requests the elimination of the 
requirement to maintain a record of the tasks that each employee is 
qualified to perform. AAR claims that this information can be gleaned 
from the information regarding the content of the training course, a 
record the final rule also requires railroads to maintain. FRA, on the 
other hand, continues to believe that this information is basic to any 
training program and should not be very difficult or expensive for 
railroads to maintain. Moreover, this information is necessary so that 
there is a specific record describing the tasks that each employee is 
qualified to perform relating to inspections, testing, and maintenance 
of brake systems. Such a record will not only assist FRA in its 
oversight responsibilities but will also assist the railroads in 
ensuring that properly qualified personnel are used to conduct the 
various tasks required by the final rule. It should be noted that this 
type of requirement is not unique or new to the federal regulations; 
FRA has similar requirements related to retaining the qualification 
status of roadway workers. See 49 CFR 214.343.
    The AAR's petition also requests the elimination of the requirement 
to maintain a record of the identity of the person determining an 
employee's qualification status. AAR again claims that there is little 
value in retaining this information, even for enforcement purposes. FRA 
believes that this information is very basic and should not be 
difficult, time consuming, or expensive for railroads to maintain. Not 
only is this record necessary for FRA's oversight responsibilities, but 
FRA believes that such documentation will assist both the railroads and 
FRA in assessing the effectiveness of the training provided to 
employees. The railroads as well as FRA may be able utilize such 
information to assess the reasons for the employees' failure to 
properly perform their required duties, e.g., deficiencies in the 
training program, the person(s) determining the employee's 
qualification, or the employees themselves. Last, AAR's petition seeks 
elimination of the requirement to maintain a record of the date that an 
employee's qualification status expires. AAR contends that this date 
will be automatically determined based on the date that the employee 
completes the required training courses. FRA continues to believe that 
this is basic information that should not be difficult or expensive for 
railroads to maintain, particularly after AAR's own assessment of how 
simple it is to calculate the information. In summary, FRA continues to 
maintain that virtually all of the training information that is 
required to be maintained by the final rule is currently retained by 
most railroads in some fashion or another or is not very burdensome to 
develop and maintain and provides information that is useful to both 
FRA and the railroads.

B. Benefits

    In its petition for reconsideration, AAR raised three major 
concerns regarding FRA's RIA estimates of the benefits related to the 
final rule. Each of the three major issues is discussed in detail 
below.
1. Double Counting of Preventable Accidents
    In its petition, AAR claims that FRA has double-counted the 
accident avoidance benefits related to the final rule. AAR asserts that 
the RIA for the final rule assumes accident avoidance safety benefits 
for accidents that were already accounted for in FRA's final rule on 
two-way end-of-train devices (EOTs) issued on January 2, 1997. See 62 
FR 278. According to AAR, this reduces the $57.5 million safety 
benefits assumed in the final rule's RIA by $8.9 million.
    FRA's final rule on two-way EOTs utilized an accident data set for 
calculating the rule's safety benefits which was very specific. Sixteen 
accidents that occurred between 1991 and 1996 were specifically 
targeted by that rulemaking. See 62 FR 291. All of the accidents in 
that data set had either E03C or E04C as the FRA-assigned accident 
cause code. Effectiveness rates of between 0.9 and 0.5 were assessed 
for those accidents. The focus of the two-way EOT rulemaking was to 
prevent train accidents which resulted directly from brake pipe 
constriction or obstruction. See 62 FR 291. Two-way EOTs are intended 
to reduce the risk of this type of accident by providing the locomotive 
engineer the ability to initiate an emergency brake application at the 
rear of the train. Because the two-way EOT rule did not apply to all 
train operations, the data set of preventable accidents did not capture 
all E03C and E04C type accidents. Specifically, the two-way EOT 
rulemaking provides exclusions for local trains, trains with an 
occupied caboose, passenger trains with emergency brakes, trains that 
do not exceed 30 miles per hour or operate on heavy grades, and trains 
that operate on trackage not connected to the general railroad system. 
Freight trains equipped with a locomotive which has the ability to 
initiate a brake application located at the rear of the train were also 
excluded, as were trains equipped with an independent secondary braking 
system.
    The RIA for this final rule included all brake-related accidents, 
including obstructed brake pipe accidents, and other related accidents. 
In the preamble to the final rule and in the RIA, FRA noted that it did 
not claim 100 percent effectiveness on those accidents used in relation 
to the two-way EOT rulemaking and, thus, utilizing these accidents in 
this final rule was acceptable. See 66 FR 4107, RIA at 41. Because of 
this overlap, it was FRA's intention to utilize a 10 percent 
effectiveness for those accidents cited in both the RIA related to the 
two-way EOT rulemaking and the RIA related to this final rule. Thus, it 
was FRA's intention to ensure that no individual accident would be 
assessed with a combined effectiveness rate of greater than 100 
percent. FRA concedes that it erred in the final rule's RIA by 
referring to the accidents which could be found in both rulemaking data 
sets as only E04C cause code accidents. In actuality, the overlapping 
accidents had cause codes of both E03C and E04C. Other codes were also 
present as the primary cause based on railroad information comprising 
the EOT data set of accidents. FRA also erred in the final rule RIA by 
referring to ``brake pipe obstruction'' accidents as having an E04C 
cause code when in actuality they should have had an E03C cause code. 
Although FRA erred in identifying the proper cause code, FRA did intend 
to include brake pipe obstruction accidents in the final rule's safety 
benefit calculation.
    Although AAR contends that there are two major accidents involving 
an obstructed brake-pipe that FRA has ``double-counted'' by including 
them in the safety benefits of both the two-way EOT rulemaking and this 
final rule, FRA believes the characterization is misleading. Double-
counting would be claiming credit for preventing the same accident 
twice at 100 percent effectiveness each time it was claimed. As noted 
above, it was FRA's intention only to take credit for the remaining 10 
percent effectiveness in this final rule for the specific accidents 
which were included in the data set for the two-way EOT rulemaking. 
These accidents included the two accidents that occurred in Cajon, 
California in 1994 and 1996 as well as an accident that occurred in 
1996 near St. Paul, Minnesota. However, the RIA for this final rule 
actually applied an

[[Page 17560]]

effectiveness rate of 10 percent on only one of three relevant 
accidents. Unfortunately, with regard to the other two accidents, FRA 
inappropriately utilized an effectiveness rate of 50 percent. See RIA 
at 42b. Thus, FRA agrees with AAR's assertion that FRA miscalculated 
the safety benefits to be derived from these two accidents.
    To correct for this error, the safety benefits related to the final 
rule should be revised to reflect a 10 percent effectiveness rating for 
the two accidents which are in both data sets. FRA is completely 
confident that if there is compliance with both the two-way EOT rule 
and this final rule this type of obstructed-brake-pipe accident would 
not occur today. Therefore, after FRA corrects the effectiveness rate 
for the two accidents which had been incorrectly calculated, the final 
rule's safety benefits change slightly. The value of annual safety 
benefits decreases from approximately $5.9 million per year to 
approximately $5.3 million per year. Consequently, the total discounted 
safety benefits for the twenty-year period decreases from $57,455,262 
to $51,147,531, a decrease of approximately $6.3 million. Therefore, 
although FRA agrees with AAR's general contention that FRA erred in 
calculating the estimated safety benefits related to the final rule, it 
should be noted that the error is significantly less than claimed by 
AAR in its petition. Moreover, the admitted error does not change the 
overall fiscal soundness of the final rule's RIA or the necessity for 
the final rule.
2. Value of Avoided Injuries
    AAR also asserts that FRA's RIA claim of $330,000 as the value of 
an avoided moderate injury is at least six times higher than any 
estimate known to AAR and is not supported by the articles cited in the 
RIA. AAR contends that if a more traditional approach were taken to 
estimating the value of avoiding a moderate injury, then the estimated 
safety benefits would be reduced by $7.9 million. In the RIA related to 
the NPRM, FRA stated that it would use the Abbreviated Injury Scale 
(AIS) to determine the value of prevented injuries. It was noted that 
$330,750 was the mid-point between an AIS 3 ($155,250) injury and an 
AIS 4 ($506,250) injury. Thus, notice was provided to the AAR regarding 
FRA's intent to use the mid-point of the AIS, a value of approximately 
$330,000, to calculate the value of avoided injuries. The RIA for the 
NPRM used this single value for all injuries. FRA is not aware of any 
railroad or AAR comment received by the agency during the NPRM comment 
period that addressed or objected to this estimated value for avoided 
injuries.
    The RIA for the final rule provided different values for prevented 
injuries based on injury severity where the severity of the injury 
could be determined based on the information available to FRA. See RIA 
at 42b, 43. Minor, moderate, and severe injuries were valued at $5,000, 
$330,000, and $1,200,000, respectively. If the severity of the injury 
could not be determined, it was assessed as a moderate injury. In the 
final rule's RIA, FRA used $330,000 for the value of a moderate injury 
prevented, instead of $330,750, for simplicity and rounding purposes. 
FRA noted that the values for prevented injuries were not directly 
based on an AIS percentage of a statistical life or subsequent dollar 
values. See RIA at 43. However, FRA stated that they were based on the 
same ``willingness-to-pay'' approach to injury prevention as the AIS. 
See RIA at 43. FRA assessed minor injuries at $5,000; an AIS 1 injury 
is valued at $5,400. FRA used $1,200,000 as the value of a severe 
injury; the mid-point between an AIS 4 and AIS 5 injury is $1,282,500. 
An AIS 5 injury is assessed at a value of $2,058,750. As its standard 
for calculating fatal injury, FRA utilizes the United States Department 
of Transportation's (DOT's) value, which is currently $2.7 million per 
life saved or fatality averted. All of the injury values are related to 
this conservative value of a statistical life. This is a value for 
which there is a large amount of variation. The values range between 
$1.5 million and $5.8 million, with a mean value of $4.8 million per 
statistical life saved.
    The RIA to the final rule did provide two footnotes in its 
discussion on the prevented injuries. See RIA at 43. The first 
footnote, which immediately followed a quote, provided the citation on 
the ``willingness-to-pay'' method of valuing a life. The second 
footnote followed a quote and a paraphrased sentence. The second 
footnote also provided a citation for the pertinent journal article. 
The paragraph where these quotes were located was intended to provide 
the justification and discussion on the use of the ``willingness-to-
pay'' approach for assessing values of prevented injuries. Sources were 
cited so that a reader could review the relevant methodology. This 
discussion provided the details of what such a value included, and the 
article referenced was appropriately cited. It should be noted that 
this discussion was provided in a separate paragraph from the one which 
discussed the various monetary values of the different injury 
severities. Hence, the footnotes and the source citations were not 
related to the monetary values which FRA used in this analysis, but 
rather were a description of what is incorporated in the ``willingness-
to-pay'' method of valuing a human life. Unfortunately, AAR read and 
interpreted the footnotes out of context. Consequently, FRA continues 
to believe that monetary values placed on the different injuries and 
the estimated safety benefits for the final rule are reasonable and 
sufficiently conservative.
3. Business Benefits (Cost Savings)
    In its petition, AAR also alleges FRA improperly credits benefits 
for eliminating two non-existent regulatory burdens. AAR contends that 
removing the benefits related to these two non-existent requirements 
reduces the stated benefits of the final rule by approximately $25.2 
million. Specifically, AAR argues that FRA takes credit for eliminating 
the requirement for brake connection bottom rod safety supports on 
bottom connection rods. AAR also argues that FRA claims a benefit for 
eliminating the prohibition against using an EOT device to determine 
and report rear car air pressure at the rear of the train during the 
performance of initial terminal type air brake tests.
    The former power brake regulation, as it existed prior to May 31, 
2001, has a provision in Sec. 232.12(d)(1) that requires that the 
inspection ensure that the ``brake rigging is properly secured and does 
not bind or foul.'' This requirement does not specifically require 
brake connection bottom rod safety supports, but, with the design of 
some cars, the supports become necessary to fulfill this requirement. 
Prior to the issuance of either the NPRM or the final rule, FRA issued 
a technical bulletin to its field inspectors and the industry stating 
that ``bottom rod safety supports'' would be required only on those 
cars that have the bottom rod or handbrake bottom rod below the 
bolster. See FRA Technical Bulletin MP&E 98-6 (June 15, 1998). FRA 
issues technical bulletins to provide enforcement and interpretative 
guidance to its field inspectors and members of the regulated 
community. Technical bulletins which provide enforcement discretion 
guidance are a matter of policy; are subject to change; and are not to 
be considered changes or modifications to an existing regulatory 
requirement.
    In the RIA related to the NPRM, an $11 cost associated with the 
replacement of a bottom rod safety support was supplied by AAR and 
cited

[[Page 17561]]

in a footnote. See NPRM RIA at 20. Because AAR supplied a cost for 
replacing bottom rod safety supports, AAR implied that the supports 
were replaced by some member railroads. The estimate of 27,800 annual 
replacement of these supports was used in the RIA for both the NPRM and 
final rule, and this number was not disputed. The preamble to the final 
rule delineates the difference between the previously issued technical 
bulletin, discussed above, and the additional flexibility being 
provided by the final rule. In the preamble discussion of 
Sec. 232.205(b)(7), FRA makes clear that brake connection bottom rod 
supports will no longer be required on bottom connection rods secured 
with locking cotter keys. See 66 FR 4170. FRA recognized that there is 
no need for bottom rod safety supports in these instances and intended 
to relieve railroads of this unnecessary expense. Thus, the previously 
issued technical bulletin and the final rule were giving relief from 
using bottom rod safety supports in two different circumstances. The 
previously issued technical bulletin made clear that bottom rod safety 
supports would be required only on cars with the bottom rods and 
handbrake rods below the bolster. See Technical Bulletin MP&E 98-6. 
However, the final rule also eliminated the need to use bottom rod 
safety supports in the additional circumstance where a car's bottom rod 
is secured with cotter keys equipped with a locking device to prevent 
their accidental removal. See 66 FR 4170, 4203, and RIA at 35. 
Therefore, the final rule provides relief from the requirement to use 
bottom rod safety supports that is over and above the guidance provided 
in the previously issued technical bulletin. Based on the above 
discussion and because the bottom rod safety rod exemption was 
specifically acknowledged in regulation (albeit for the first time), 
FRA believes that it is reasonable and proper to consider the 
flexibility provided by the final rule as a benefit to the industry.
    FRA also disagrees with AAR's assertion that there is no benefit 
derived from the final rule's allowance to utilize an EOT device when 
conducting a Class I brake test. In the RIA and preamble related to the 
NPRM, FRA noted that benefits exist but were not estimated (quantified) 
regarding the use of EOT devices during the performance of Class I 
brake tests. See 63 FR 48350, NPRM RIA at 20. At that time, FRA noted 
that there was an operational benefit from allowing the use of an EOT 
when performing a Class I/initial terminal brake test when such 
inspections are performed at intermediate pick-ups; however, FRA did 
not have an estimate of how many intermediate pick-ups would be 
affected by this allowance. In the RIA for the final rule, FRA was able 
to estimate or quantify this benefit with information that the AAR 
provided in its comments on the NPRM. See RIA at 36-38.
    AAR states that there is no prohibition on the use of EOT devices 
when conducting initial terminal type brake tests pursuant to part 232 
as it existed prior to May 31, 2001. FRA disagrees with the AAR's 
assertion. In Sec. 232.13 of the former rule, FRA specifically allows 
for the brake pipe pressure to be indicated in an intermediate terminal 
train air brake test by a rear car ``gauge or device.'' Section 
232.13(g) of the former rule defines a ``device'' as a system of 
components designed and inspected in accordance with Sec. 232.19. 
Section 232.19 of the former rule contains design standards for EOT 
devices. When issuing the regulations in 1986, permitting the use of 
EOT devices when performing certain brake tests, FRA specifically 
revised only the provisions related to intermediate terminal 
inspections. See 51 FR 17300 (May 9, 1986).\1\ FRA did not revise the 
initial terminal brake test requirements contained in Sec. 232.12 of 
the former regulation to permit the use of a ``device'' to determine 
the train line air brake pressure at the rear car of a train. Section 
232.12 of the former regulation only permits the air pressure at the 
rear of the train to be determined by a brake pipe gauge. If FRA had 
intended to permit the use of an EOT device when conducting brake 
inspections pursuant to Sec. 232.12 (c)-(j), it would have modified 
those provisions in 1986. Consequently, it was obviously FRA's intent 
not to permit the use of such devices when conducting initial terminal 
brake inspections. Moreover, FRA has always interpreted the regulation 
to require that a person be stationed at the rear of the train to 
determine brake pipe pressure at the rear of the train when conducting 
a brake inspection pursuant to the requirements contained in 
Sec. 232.12(c)-(j) of the former rule.
---------------------------------------------------------------------------

    \1\ It should be noted that Sec. 232.13(d)(1) and (d)(2) of the 
former rule specifically requires that all cars added to a train 
that have not been inspected pursuant to Sec. 232.12(c)-(j) are to 
be so inspected when added to the train or may receive and 
intermediate brake inspection pursuant to Sec. 232.13(d)(1) provided 
the cars are inspected pursuant to Sec. 232.12(c)-(j) at the next 
terminal where facilities are available. Thus, all cars added to a 
train that were not previously tested and charged under 
Sec. 232.12(c)-(j) would be required to be inspected under those 
provisions either when added to the train or at the next location 
where facilities are available for peforming such an inspection.
---------------------------------------------------------------------------

    As the final rule specifically permits the use of an EOT device to 
indicate brake pipe pressure when conducting Class I/initial terminal 
brake tests, the industry derives an operational benefit that was not 
available under the former rule. As the final rule's RIA noted, this is 
not a benefit for all Class I/initial terminal brake tests. See RIA 36-
38. It is a benefit that non-cycle trains that perform one or more 
pick-ups while en route are more likely to realize. Thus, a benefit is 
realized whenever cars that are added to a train are required to 
receive a Class I/initial terminal brake test at the time they are 
added to the train. FRA estimated that approximately seven percent of 
all train starts would engage in en route pick-ups requiring the 
performance of a Class I/initial terminal brake test that would benefit 
from this regulatory change. This benefit was calculated with very 
conservative estimates. FRA estimated that minimally 100,000 of the 1.4 
million train starts would realize a benefit from using an EOT device 
when conducting a Class I/initial terminal brake test while en route. 
See RIA at 36-38. This estimate does not account for the likelihood 
that many of the 100,000 trains would engage in more than one en route 
pick-up. FRA estimated the savings as being minimally five minutes per 
use. Train delay value was estimated at $250 per hour. This value was 
an estimate that was developed in the Positive Train Control (PTC) 
Working Group of the Railroad Safety Advisory Committee (RSAC), which 
included both industry and labor participation. Consequently, FRA 
believes that the operational benefits it estimated in the RIA that 
would be derived from the final rule's allowance for the use of EOT 
devices when conducting Class I brake tests are reasonable, proper, and 
very conservative.
    In summary, FRA acknowledges that it erred in the final rule's RIA 
when estimating the safety benefits to be derived from the specific 
accidents included in the analysis. However, FRA believes that the 
error and resulting reduction in the safety benefits does not in any 
way compromise the integrity of the analysis or impact the decisions 
made by FRA, and does not change the necessity for any of the 
provisions contained in the final rule. Furthermore, FRA finds all the 
other economic issues raised by AAR in its petition for reconsideration 
to be either incorrect, unfounded, or unpersuasive. FRA continues to 
believe that it has been both reasonable in its cost estimates and

[[Page 17562]]

extremely conservative in its estimates of benefits related to the 
final rule. Moreover, FRA believes that the modifications and 
clarifications being made to the final rule in this response to the 
petitions for reconsideration will not only reduce the potential 
regulatory costs but will also increase the benefits associated with 
the final rule. Therefore, the costs and benefits quantified in the 
final rule's RIA are even more conservative than when originally 
calculated by FRA. Consequently, FRA strongly supports the economic 
arguments and estimates advanced in its RIA for the final rule.

II. Section-by-Section Analysis

Amendments to 49 CFR Part 229

    FRA is not making any modifications to the provisions of part 229 
affected by the final rule in response to the petitions for 
reconsideration or for any other reason. BLE's petition for 
reconsideration objected to FRA's removal of the phrase ``in the cab'' 
from the first sentence in Sec. 229.53 as it existed before the 
issuance of the final rule. The phase ``in the cab'' related to the 
location of the various brake gauges used by a locomotive engineer for 
braking a train or locomotive. FRA proposed the removal of the phrase 
``in the cab'' from this section in the NPRM. See 63 FR 48354 
(September 9, 1998). No objection was raised to this modification in 
any of the comments received in response to the NPRM. Although FRA did 
not provide a specific explanation for its removal in either the NPRM 
or the final rule, FRA believed then and continues to believe that the 
phrase is unnecessary and antiquated. FRA's intent when removing the 
language was to ensure that the gauges used by an engineer to aid in 
the control or braking of a train or locomotive were located so as to 
be read from the engineer's usual position when operating the 
locomotive, whether that be in the cab of the locomotive or elsewhere. 
FRA's intent when issuing the final rule was to accommodate and 
facilitate advanced technologies and designs. FRA believes that the 
language contained in both the NPRM and the final rule meets this 
intent while ensuring that essential information is provided to a 
locomotive engineer when operating a train or locomotive.
    In a late filing to the docket (May 31, 2001), BLE raised a number 
of issues regarding FRA's discussion related to extending the testing 
interval for electronic locomotive gauges in Sec. 229.27(b). In its 
submission, BLE expressed concerns with the way FRA portrayed the 
findings of the task force considering issues related to electronically 
controlled locomotive brake systems. Although the preamble to the final 
rule does discuss the recommendations of a task force regarding 
electronically controlled locomotive braking systems, the preamble does 
not attribute the recommendations to the New Technology Joint 
Information Committee (NTJIC). The preamble to the final rule makes 
clear that the task force assembled for purposes of this rulemaking was 
merely made up of individuals that were also members of the NTJIC. See 
66 FR 4144. Furthermore, the preamble to the final rule in no way 
indicates or alludes to FRA agreement with or endorsement of the 
recommendations made by the assembled task force, other than acceptance 
of the task force's recommendation to extend the testing interval for 
electronic locomotive gauges. See 66 FR 4144.
    The preamble to the final rule focused solely on the reliability of 
electronic gauges used in electronically controlled locomotive brake 
systems and did not intend to address other issues related to the use 
and operation of such systems. FRA agrees with BLE that the field of 
electronically controlled locomotive brake systems is complex, and FRA 
does not believe that this rulemaking is the proper forum in which to 
address the many issues surrounding such systems. BLE's petition notes 
various forums where issues related to this technology are currently 
being discussed, considered, and researched. These include the NTJIC 
and the CSX Computer Controlled Brake waiver committee. FRA and BLE are 
actively participating in these groups, and FRA believes these forums 
are best suited, at this time, to address the issues and concerns 
related to the use and operation of electronically controlled 
locomotive braking systems.

Amendments to 49 CFR Part 232

Section 232.1  Scope and Section 232.3 Applicability

    APTA's petition for reconsideration requests modification of these 
two sections to provide passenger railroads the option of inspecting 
and testing work trains operated on passenger railroads pursuant to the 
Passenger Equipment Safety Standards contained in 49 CFR part 238 
rather than under the provisions contained in the final rule. APTA 
contends that this flexibility would eliminate the need for certain 
commuter operations to train their employees on both part 232 and part 
238. Without this flexibility some commuter operations will be required 
to have two different inspection, testing, and maintenance programs in 
place. APTA contends that there would be no adverse impact on safety 
because the inspection and testing requirements contained in part 238 
are generally more stringent than those contained in the final rule. 
For consistency and enforcement purposes, APTA also suggests that 
passenger operations would have to decide under which part it would 
operate their work trains and such operations would not be allowed to 
mix the provisions of part 238 and part 232.
    While FRA does not necessarily disagree with APTA's recommendation, 
FRA does not believe that the petition for reconsideration stage of 
this rulemaking is the proper forum in which to address this issue. 
Although APTA's recommendation appears reasonable in theory, FRA is 
unclear how APTA proposes to apply the provisions contained in part 238 
to work trains used in passenger operations based on the information 
provided in APTA's petition. FRA believes that more information and 
consultation with affected parties is needed to determine how a 
passenger railroad would apply the mechanical and brake inspection and 
testing requirements contained in part 238 to its work trains. FRA 
believes that a detailed plan would need to be reviewed by FRA 
regarding a railroad's proposed application of part 238 to work trains. 
Consequently, FRA believes that APTA's request would be better handled 
through the waiver process detailed in 49 CFR part 211. This would 
allow both FRA and other interested parties to thoroughly review and 
assessed the proposed application of part 238 to such trains. FRA 
stresses that it believes APTA's recommendations and suggestions on 
this issue appear reasonable and that FRA is willing to consider them 
in the proper forum.

Section 232.5  Definitions

    FRA is adding clarifying language to the introductory text of this 
section. The language is being added to prevent a potential 
misapplication of the definitions beyond that intended by FRA when 
issuing the final rule. Many of the general provisions contained in 
subpart A of the final rule became applicable to the industry on May 
31, 2001, including the definitions contained in Sec. 232.5. See 
Sec. 232.1(b), 66 FR 4193. FRA made the definitions applicable as of 
May 31, 2001, because portions of the final rule (e.g., subpart E) 
became applicable on that date and

[[Page 17563]]

there are definitions in Sec. 232.5 pertaining to those portions of the 
new rule. Although Sec. 232.1(b) makes the definitions contained in 
Sec. 232.5 applicable as of May 31, 2001, it was clearly FRA's intent 
to apply the definitions contained in this section only to the 
requirements contained in the text of the new final rule and not to the 
requirements contained in part 232 as it existed prior to May 31, 2001. 
This intent is evidenced in the final rule's preamble discussion 
related to the definitions in which FRA states: ``FRA intends these 
definitions to clarify the meaning of important terms as they are used 
in the text of the final rule.'' See 66 FR 4146. Furthermore, FRA 
intended for specific definitions to become applicable only to those 
substantive portions of the new final rule that are applicable to the 
industry. This intent is evidenced by FRA's explicit statement that it 
would not require a ``qualified person,'' as defined in Sec. 232.5 of 
the final rule, to perform the required tasks under subpart D, which 
became applicable on August 1, 2001, until April 1, 2004 when the 
training requirements become applicable. See 66 FR 4145.
    FRA believes that any attempt to apply the definitions contained in 
Sec. 232.5 of the final rule to provisions contained in part 232 as it 
existed prior to May 31, 2001, would be not only inconsistent with 
FRA's intent when drafting the final rule but would create serious 
Administrative Procedure Act (APA) implications. Acceptance of such an 
argument would result in various definitional provisions of the final 
rule becoming applicable prior to the dates specifically established in 
Sec. 232.1(b) of the final rule for applicability of the relevant 
substantive provisions. In effect, this would accelerate the 
applicability of those substantive provisions, imposing significant 
unintended regulatory burdens without proper notice. Furthermore, the 
preceding discussion establishes clear evidence of FRA's intent not to 
apply the definitions contained in the final rule to the provisions of 
part 232 as it existed prior to May 31, 2001. In contrast, there is 
absolutely no language or inference in the final rule's preamble or 
rule text to indicate that FRA intended to apply the definitions 
contained in Sec. 232.5 of the final rule to any provision contained in 
part 232 as it existed prior to May 31, 2001. Consequently, any attempt 
to specifically apply the definitions contained in the final rule to 
provisions contained in part 232 as it existed prior to May 31, 2001, 
would likely result in violation the APA for failing to provide proper 
notice and opportunity for comment prior to such action.
    FRA is modifying the final rule definition of ``effective brake'' 
in response to a concern raised by the AAR in its petition. AAR 
objected to the terminology used in defining what constitutes an 
``effective brake.'' Specifically, AAR noted that the phrase ``a brake 
that is capable of producing its required designed retarding force'' 
creates an unquantifiable and unidentifiable standard. AAR recommends 
that this portion of the definition be eliminated and that FRA should 
limit the definition to piston travel limits.
    The terminology to which AAR objects was specifically added into 
the final rule in response to concerns raised by the BRC in response to 
the NPRM regarding the definitions of ``bind'' and ``foul'' proposed in 
that document. See 66 FR 4146. In the preamble to the final rule, FRA 
explained that the language being added to the definition of 
``effective brake,'' regarding the ability of the brake to produce its 
designed retarding force, was an attempt to clarify the definition to 
address conditions that would render the brake ineffective yet would 
not be considered a condition causing the brake system to bind or foul 
as defined in the final rule. See 66 FR 4146. Rather than change the 
definitions of ``bind'' or ``foul,'' FRA believed that additional 
language could be added to the definition of ``effective brake'' to 
cover those unique circumstances where, even though a condition may not 
cause a brake to ``bind'' or ``foul,'' the condition would cause the 
brake not to operate properly and, thus, affect the retarding force 
applied by the brakes. FRA continues to believe that the language added 
to the definition of ``effective brake'' accomplishes this task. While 
FRA agrees that the language creates a standard that is somewhat 
difficult to apply in the field with great precision, FRA believes that 
the language is necessary to cover brake system or component problems 
that affect the proper operation of the brakes on a car but are not 
otherwise specifically identified by the regulation. The language is 
adequately precise for this purpose because an observer can tell 
whether the brake is applied in a way likely to exert substantially the 
braking force for which it was designed. Effectively, this is a 
``catch-all'' performance standard designed to reach any problem not 
specifically called out in the rule that would prevent a brake from 
working properly.
    However, FRA is modifying the definition of ``effective brake'' in 
order to further clarify the term and avoid misapplication of FRA's 
intent. FRA is inserting the word ``nominally'' prior to the phrase 
``designed retarding force'' in order to provide an allowance for any 
degradation in a brake system's designed retarding force that results 
due to normal wear and age. FRA's intent was not to consider retarding 
force reductions that occur due to normal use of a brake system or 
component. The definition is intended to capture those readily 
identifiable brake system problems that are not specifically addressed 
by other definitions contained in the final rule that result in a brake 
system or brake component not producing the retarding force it is 
designed to provide.
    FRA is also modifying the definition of ``solid block of cars'' 
contained in Sec. 232.5 of the final rule. FRA is modifying this 
definition in order to make it consistent with FRA's intent when 
issuing the final rule. Based on concerns raised by AAR regarding the 
inspection of solid blocks of car when added to a train, FRA realized 
that the final rule's definition of the term ``solid block of cars'' 
creates confusion and could potentially result in a misapplication of 
the final rule's inspection requirements. FRA agrees with the concerns 
raised by AAR in its petition that a strict reading of the definition 
may have resulted in entire trains being required to receive a Class I 
brake test when certain types of solid blocks of cars are added. FRA's 
intent was to permit the addition of a single solid block of cars 
without requiring the entire train to be inspected and focus the 
inspection requirements on the solid block of cars being added based on 
the composition of the solid block of cars. See 66 FR 4148, 4168.
    Therefore, the definition of ``solid block of cars'' is being 
modified by removing the word ``consecutively'' from the definition. 
This removes the potential misapplication of the definition to only 
blocks of cars that have remained consecutively coupled together since 
being removed from their previous train. FRA intends to make clear that 
any block of cars which is coupled together and added as a single unit 
to a train should be considered a ``solid block of cars.'' The 
inspection requirements that attach to that solid block of cars will 
depend on the composition of the solid block of cars. To further 
clarify the attendant inspection requirements, FRA is also modifying 
the inspection requirements contained in subpart C of the final rule to 
directly address the inspection of a solid block of cars when added to 
a train. These modifications are being

[[Page 17564]]

made to clarify FRA's intent to impose inspection requirements on the 
specific solid block of cars when added to a train based on the solid 
block of cars' make-up rather than imposing inspection requirements on 
the entire train. See 66 FR 4148, 4168. It should be noted that FRA 
intends for only a single solid block of cars to be added at any one 
location without imposing an inspection requirement on the entire 
train. See 66 FR 4168. The modifications being made to subpart C of the 
final rule are discussed in detail in the section-by-section analysis 
of those provisions contained below.
    In its petition, BLE contends that FRA uses the term ``secondary 
brake system'' in the final rule text, Sec. 232.15(d), but provides no 
definition of the term in this section. FRA notes that Sec. 232.5 does 
contain a definition of ``secondary brake.'' See 66 FR 4194. Although 
FRA did not include a discussion of the definition in the preamble to 
either the NPRM or the final rule, the definition is identical to the 
definition of the same term used in the Passenger Equipment Safety 
Standards contained in part 238. See 49 CFR 238.5, 64 FR 25661 (May 12, 
1999). FRA believes that the preamble discussion of the term in the 
final rule to part 238 is equally applicable to this final rule. See 64 
FR 25577.
    BLE's petition also seeks clarification of the final rule's 
definition of ``rebuilt equipment,'' and suggests that FRA publish the 
threshold amount for determining what constitutes a capital expense 
each time it changes and identify the basis used to determine the 
figure. FRA's definition of ``rebuilt equipment'' incorporates the 
Surface Transportation Board's (STB) accounting standards, contained in 
49 CFR part 1201, subpart A, Instruction 2-12, in determining the 
capital expense threshold. See 66 FR 4195. The STB accounting standards 
are adapted from generally accepted accounting principles. Under the 
STB accounting standards a capital expense is determined by the 
railroad according to generally accepted accounting principles. Two 
provisions govern the railroad's determinations. First, if the expense 
incurred substantially extends the useful life of the equipment beyond 
the estimated service life, the equipment is classified as rebuilt. 
Secondly, if the expense substantially increases the utility of the 
equipment by making the equipment more useful, efficient, durable, or 
have greater capacity, the equipment is classified as rebuilt. Thus, 
the determination of what constitutes a capital expense is an 
accounting function performed by the railroad based on the above 
guiding principles. Therefore, there is no fixed threshold amount or 
standard that can be quantified or published by FRA as the 
determination is made on a case-by-case basis. Consequently, FRA denies 
BLE's request to quantify and publish a threshold figure for 
determining what constitutes a capital expense.

Section 232.15  Movement of Defective Equipment

    Paragraph (b)(1) of this section is being amended in response to 
AAR's petition for reconsideration regarding the tagging of defective 
locomotives under this part. AAR contends that it is unnecessary to tag 
the outside of a locomotive found to be defective pursuant to the 
provisions of the final rule. AAR asserts that placing the defect tag 
in the cab of the locomotive is sufficient and would be consistent with 
the tagging requirements contained in part 229. AAR maintains that this 
method of tagging defective locomotives has proven effective and that 
there is no safety rationale for departing from this longstanding 
practice.
    FRA agrees with the position of AAR. When including the tagging 
requirements related to the movement of defective equipment, FRA 
intended the requirements to be similar to those contained in part 215 
related the movement of equipment not in compliance with the Freight 
Car Safety Standards and to be generally consistent with how most 
railroads currently handle equipment found with defective brakes. See 
66 FR 4151. As the requirements contained in Part 215 do not address 
locomotives and because most railroad place defect tags in the cab of a 
locomotive rather than the outside of the locomotives, it is consistent 
with FRA's original intent to permit defect tags on locomotives to be 
displayed in the cab of a locomotive. FRA agrees that the placing of 
such tags has worked well for a number of years in the context of 
tagging defective locomotives under part 229. Consequently, FRA is 
amending paragraph (b)(1) of this section to clarify that the required 
defect tags may be displayed in the cab of a locomotive rather than on 
opposing sides as required by a strict reading of the final rule.
    In its petition, the AAR also objects to the requirement contained 
in paragraph (b)(5) of this section that FRA approve any automated 
tracking system designed to be used in lieu of physically tagging 
defective equipment. See 66 FR 4197. AAR contends that the requirement 
for FRA's approval of any automated tracking systems is inconsistent 
with both the Government Paperwork Elimination Act (GPEA) and the 
guidance issued by the Office of Management and Budget (OMB) regarding 
the implementation of GPEA. See Public Law 105-277 (October 21, 1998) 
and OMB Memorandum M-00-10 (April 25, 2000). AAR claims that paragraph 
(b)(5) should be eliminated as it demonstrates that FRA is disfavoring 
electronic recordkeeping by requiring a special approval procedure for 
electronic recordkeeping when none is required for paper records.
    FRA strongly disagrees with AAR's interpretation of GPEA and the 
OMB guidance related to the implementation of GPEA. Section 
232.15(b)(1) and (b)(5) of the final rule requires that any automated 
tracking system used in lieu of directly tagging equipment be approved 
by FRA and that such a system must be capable of being reviewed by and 
monitored by FRA at any time to ensure the integrity of the system. See 
66 FR 4197. The preamble to the final rule makes clear that FRA's 
approval is necessary because an adequate automated system for tracking 
defective equipment does not currently exist on most railroads and FRA 
does not believe it is prudent, from a safety perspective, to allow 
implementation of a tracking system which FRA would not have a prior 
opportunity to assess and thereby ensure the system's accessibility, 
security, and accuracy. See 66 FR 4151. FRA does not disfavor or 
discriminate against electronic records; in fact, FRA has strongly 
encouraged the use of electronic recordkeeping for years. The final 
rule provides railroads the option of using either tags or an automated 
system to maintain and track the necessary information regarding the 
movement of defective equipment. If railroads decide to use tags, then 
there is no need for an automated recordkeeping system and, therefore, 
no need to obtain FRA approval of an automated system. If railroads 
elect to use some type of automated tracking system, then FRA approval 
of the system is required. FRA sets standards for information provided 
to the agency, whether on paper or electronically. In all of its 
information collections, FRA spells out the particular information 
railroads must provide and maintain (either on paper or 
electronically).
    Contrary to the assertions expressed in AAR's petition, the 
requirement for FRA approval of an automated tracking system does not 
violate either GPEA or the related OMB guidance. OMB's guidance related 
to the implementation of GPEA readily acknowledges the need for 
standards and procedures concerning the use of electronic 
recordkeeping. Part I, Section 1 of that

[[Page 17565]]

guidance describes the policies agencies should follow when 
implementing GPEA. See OMB Memorandum M-00-10 (April 25, 2000). This 
portion of OMB's guidance states:

    Sections 1703 and 1705 of GPEA charge the Office of Management 
and Budget (OMB) with developing procedures for Executive agencies 
to follow in using and accepting electronic documents and 
signatures, including records required to be maintained under 
Federal programs and information that employers are required to 
store and file with Federal agencies about their employees.

FRA must conform to OMB's guidance and implicitly so too must 
railroads. FRA must also conform to Department of Justice guidelines 
regarding legal sufficiency of electronic documents and electronic 
signatures and, again, implicitly so too must railroads. Moreover, 
OMB's guidance clearly envisions agency approval of automated or 
electronic recordkeeping systems. Part I, Section 2 of OMB's guidance 
states:

    GPEA recognizes that building and deploying electronic systems 
to complement and replace paper-based systems should be consistent 
with the need to ensure that investments in information technology 
are economically prudent to accomplish the agency's mission, protect 
privacy, and ensure the security of the data * * * Accordingly, 
agencies should develop and implement plans, supported by an 
assessment of whether to use and accept documents in electronic form 
and to engage in electronic transactions.

Part II, Section 1 of OMB's guidance adds the following:

    The guidance builds on the requirements and scope of the 
Paperwork Reduction Act of 1995 (PRA). According to the PRA, 
agencies must, ``consistent with the Computer Security Act of 1987 
(CSA) (40 U.S.C. 759 note), identify and afford security protections 
commensurate with the risk and magnitude of the harm resulting from 
the loss, misuse, or unauthorized access to or modification of 
information collected by or on behalf of an agency.'' 44 U.S.C. 
3506(g)(3) * * * As GPEA, PRA, CSA, and the Privacy Act recognize, 
the goal of information security is to protect the integrity, and 
confidentiality of electronic records * * *

Consequently, OMB's guidance clearly intends for agencies to consider 
the security, accessibility, and accuracy of any electronic or 
automated recordkeeping system prior to permitting such a system to be 
used in lieu of traditional paperwork. The preamble to the final rule 
makes clear that the intent of FRA's review and approval of any 
implemented automated tracking system is to ensure the system's 
accessibility, reliability, security, and accuracy. See 66 FR 4151. 
This type of review and approval was clearly contemplated by both the 
GPEA and OMB's implementing guidance. FRA approval of the automated 
tracking system serves to protect both the agency's interests and the 
interests of the railroad industry by ensuring that the automated 
tracking system will safely and properly perform all the functions of a 
traditional paper-based tagging system.
    FRA stresses that it is neither suspicious of nor hostile to the 
use of electronic recordkeeping by railroads, and attributes no bad 
motives to railroads when requiring prior agency approval of an 
automated tracking system related to the movement and handling of 
defective equipment. It should also be noted that FRA envisioned the 
same type of automated tracking system that AAR alludes to in its 
petition for reconsideration, namely a combination of an industry-wide 
tracking program and individual railroad programs. Since AAR states 
there are no current plans for such a system, FRA may have been a bit 
premature in discussing such a system in the preamble to the final 
rule. However, FRA continues to believe its concerns regarding the use 
of an automated tracking system are reasonable, are consistent with the 
GPEA and OMB implementation guidance, and will need to be addressed 
whenever railroads seek agency approval of automated tracking or 
electronic recordkeeping systems.
    Paragraph (g) of this section is being amended in response to AAR's 
petition asserting that there is no rational basis for FRA to require 
that a railroad and its employee representatives must submit a joint 
proposal listing the locations where brake system repairs will be 
conducted in order for FRA to consider any such proposal. Paragraph (g) 
was intended to provide railroads with a method by which they could 
designate locations where various brake system repairs will be 
conducted. The final rule requirement was written to make clear that 
FRA would not consider a proposal containing a plan which designates 
locations where brake system repairs will be conducted unless a 
railroad and the representatives of its employees submit the proposal 
jointly. See 66 FR 4153, 4197-98. AAR states that it does not object to 
FRA review and approval of any submitted listing but believes that it 
would be extremely difficult for a railroad and its employees to reach 
agreement on the locations that should be included on any such list. 
AAR also states that railroads would prefer to have a known listing of 
locations that will make brake system repairs in order to avoid any 
confusion among the various parties.
    FRA agrees with the recommendation made by AAR in its petition that 
FRA should not be foreclosed from considering a list of locations where 
brake system repairs will be effectuated simply because a railroad and 
its employees cannot agree on the content of such a listing. FRA agrees 
that a listing of locations where brake system repairs will be 
conducted would improve FRA's enforcement activities as well as 
ensuring that prompt and safe repairs are made to defective equipment. 
However, FRA continues to believe that a railroad's employees and other 
interested parties must be provided an opportunity to review and 
comment on any proposed listing of locations that will be considered 
capable of making brake system repairs prior to FRA's approval of such 
a listing. Therefore, FRA is amending paragraph (g) of this section to 
require that proposals regarding the designation of locations where 
brake system repairs will be performed must be submitted pursuant to 
the special approval procedures contained in Sec. 232.17 of the final 
rule. This paragraph makes clear that such proposals would have to be 
consistent with the guidelines contained in paragraph (f) of this 
section and that such plans would have to be approved by FRA pursuant 
to the procedures contained Sec. 232.17 prior to being implemented. FRA 
believes that the special approval procedures contained in Sec. 232.17 
ensure that a railroad's employees and other interested parties are 
provided an opportunity to review and comment on any proposed listing 
prior to FRA determining whether or not to approve the proposal. FRA 
believes this approach is consistent with the intent of the final rule 
and ensures that FRA will be informed as to any objections that may be 
raised by a railroad's employees or their representatives on any 
submitted listing. It should be noted that conforming changes are being 
made to the special approval procedures contained in Sec. 232.17 to 
include language addressing the submission of these types of proposals.

Section 232.17  Special Approval Procedure

    As just discussed, the procedures contained this section are being 
modified to incorporate language regarding the special approval of 
plans designating locations where brake system repairs will be 
conducted pursuant to Sec. 232.15(g). The modifications being made are 
merely intended to clarify that the procedures

[[Page 17566]]

detailed in this section apply to the review and approval of listings 
submitted pursuant to Sec. 232.15(g). Consequently, the provisions 
contained in paragraphs (a), (b), (d), and (g) of this section have 
been amended to include a reference to Sec. 232.15(g).
    In its petition, BLE recommends that the 30-day comment period 
provided for in paragraph (f) of the special approval procedures be 
extended to at least 45 days. Other than the recommendation, BLE 
provides no discussion or rationale for seeking an extension of the 
comment period. FRA continues to believe that it is not necessary to 
further lengthen the comment period provided in the final rule. FRA 
thinks that the procedures provide an adequate opportunity for 
interested parties to comment. Furthermore, if the procedures for these 
special approvals are made overly burdensome, then the speed intended 
to be gained through the process would be lost. Moreover, paragraph 
(b)(4) of the procedures requires that any party seeking a special 
approval must serve a copy of its petition on designated 
representatives of its employees at the time the party submits the 
petition to FRA. See 66 FR 4198. Thus, the representatives of a 
railroad's employees would be served a copy of any petition submitted 
pursuant to the special approval process well before the petition is 
actually published in the Federal Register under paragraph (e) of this 
section. Therefore, the representatives of the petitioning railroad's 
employees would likely have more than the provided 30 days to review 
any petition directly affecting employees they represent. In addition, 
it would serve the petitioning party's interest to ensure that all 
known interested parties are provided detailed information on any 
submitted process to ensure timely and complete consideration of any 
submitted petition. Consequently, based on the above discussion, FRA is 
denying BLE's request to extend the special-approval comment period to 
45 days.

Subpart B--General Requirements

Section 232.103  General Requirements for All Train Brake Systems

    Paragraph (n) of this section is being modified in response to 
concerns raised in both AAR's and BLE's petitions regarding the final 
rule requirements related to the securement of unattended equipment. 
AAR recommends that the provision contained in paragraph (n)(2) of this 
section, requiring the initiation of an emergency application of the 
air brakes prior to leaving equipment unattended, be deleted. AAR 
contends that the requirement to initiate an emergency application of 
the brakes might result in train crews disregarding the requirement to 
ensure that a sufficient number of hand brakes are set to hold the 
equipment. AAR also asserts that if an emergency application is 
required, then equipment will have to be retested if off air for more 
than four hours.
    While FRA does not fully agree with the concerns raised by AAR in 
its petition, FRA is amending paragraph (n)(2) to clarify the 
application of the requirement and to lessen the burdens imposed by 
requiring the initiation of an emergency brake application. The intent 
of the final rule provision was to address the dangerous practice known 
as ``bottling the air'' in a standing cut of cars, an issue related to 
improperly secured rail equipment. See 66 FR 4156-57. The practice of 
``bottling the air'' occurs when a train crew sets out cars from a 
train with the air brakes applied and the angle cocks on both ends of 
the train closed, thus trapping the existing compressed air and 
conserving the brake pipe pressure in the cut of cars the crew intends 
to leave behind. The preamble to the final rule provides a detailed 
discussion of the hazards associated with this practice which has the 
potential of causing, first, an unintentional release of the brakes on 
these cars and, ultimately, a runaway. See 66 FR 4156-57. This issue 
was the focus of a National Transportation Safety Board (NTSB) 
recommendation issued in 1998 and discussed in detail in the preamble 
to the final rule. See NTSB Recommendation R-98-17, 66 FR 4157. 
Although FRA continues to believe this practice needs to be addressed, 
FRA believes that the final rule requirement to conduct an emergency 
application of the brakes when leaving equipment unattended is overly 
stringent and would likely result in unintended delays when recharging 
equipment. FRA also realizes that the application of the final rule 
requirement needs to be clarified to avoid any misinterpretation of the 
requirement and to remain consistent with the existing and long-
standing operating procedures of many railroads when leaving equipment 
unattended.
    FRA is modifying paragraph (n)(2) to require that the brake pipe on 
equipment being left unattended be depleted to zero at a rate that is 
no less than a service rate reduction. This approach is more consistent 
with the current operating rules of many railroads. Furthermore, 
permitting the brake pipe to be depleted at a service rate reduction 
serves all the purposes of making an emergency application of the 
brakes (i.e., prevents the bottling of air in the brake system) but 
does not result in the emergency reservoir being depleted of air. This 
change will reduce the amount of time necessary to recharge the brake 
system on equipment left unattended and, thus, prevent any unnecessary 
train delay. It should be noted that this modification does not 
prohibit a railroad from requiring the initiation of an emergency brake 
application on equipment that is left unattended, but merely provides 
the option of depleting the brake pipe to zero by a different means.
    FRA is also modifying paragraph (n)(2) to clarify that the 
requirement only applies to freight and other non-powered cars when 
detached from a source of compressed air. FRA realizes that the 
language of the final rule could be interpreted to apply to any 
equipment left unattended. FRA's intent was to end the practice of 
``bottling of air'' on freight equipment that was disconnected from a 
source of compressed air. See 63 FR 48331-32, 66 FR 4156-57. FRA did 
not intend to stop the long-standing industry practice of leaving 
equipment connected to a source of compressed air either while en route 
or after the testing of equipment. Furthermore, this approach is 
consistent with NTSB's recommendation, which suggested that the brake 
pipe be depleted to zero on standing equipment that is detached from a 
locomotive. See NTSB Recommendation R-98-17, 66 FR 4157. The 
requirement to set a sufficient number of hand brakes to hold 
unattended equipment contained in paragraph (n)(1) of this section is 
intended to address the securement of equipment left connected to a 
source of compressed air.
    It should be noted that AAR's concern regarding the need to retest 
unattended equipment that is left off-air for more than four hours is 
somewhat misplaced in the context of the clarified requirements 
contained in this section. Pursuant to the final rule's definition of 
``off-air,'' any equipment not connected to a continuous source of 
compressed air of at least 60 pounds per square inch (psi) is 
considered ``off-air.'' See 66 FR 4194. Consequently, any time a source 
of compressed air of at least 60 psi is removed from a block of cars, 
that block of cars is considered to be ``off-air'' regardless of 
whether air has been bottled in the system and, thus, the type of brake 
application made when the cars are left unattended is irrelevant.
    Paragraph (n)(3) of the final rule is also being amended in 
response to a concern raised by the AAR in its petition requesting 
clarification of FRA's intent to apply the requirements

[[Page 17567]]

contained in this paragraph regarding the securement of unattended 
locomotives and locomotive consists to distributed power locomotive 
units. AAR contends that the language of the provision is confusing and 
could be read to apply to distributed power units in a train. The 
preamble to the final rule makes clear that it was not FRA's intent to 
apply the securement requirements related to locomotives to distributed 
power locomotives. See 66 FR 4157. Consequently, FRA is modifying the 
introductory language of paragraph (n)(3) to specifically clarify that 
the provisions contained in this paragraph do not apply to distributed 
power locomotives.
    Paragraph (n)(3) of this section is also being amended in response 
to concerns raised in BLE's petition regarding the securement of 
locomotives not equipped with a hand brake. BLE notes that although the 
final rule contains specific requirements for setting hand brakes on 
unattended locomotives, the final rule is silent on securing 
locomotives not so equipped. Although FRA believes that virtually all 
railroads have procedures in place for securing locomotives that are 
not equipped with hand brakes, FRA agrees that the final rule does not 
specifically address the securement of such locomotives. However, FRA 
believes that the requirements of paragraph (n) implicitly require a 
railroad to adopt procedures for securing locomotives that are not 
equipped with hand brakes. Paragraph (n)(4) of the final rule requires 
that procedures be adopted and complied with to verify that the 
handbrakes sufficiently hold an unattended locomotive consist. Thus, 
the requirement implicitly requires that procedures be in place to 
address situations where the hand brakes are not sufficient to hold the 
locomotives, such as when the locomotives are not equipped with a hand 
brake. See 66 FR 4199. Therefore, in order to clarify this intent, FRA 
is adding a paragraph (n)(3)(iv) which specifically requires railroads 
to adopt and comply with procedures for securing unattended locomotives 
not equipped with hand brakes. As noted above, FRA believes this 
modification is merely a further clarification of the requirement 
contained in paragraph (n)(4) of this section and does not impose any 
additional burden on the industry.
    Paragraph (o) of this section of the final rule is being amended in 
response to a concern raised in NYAB's petition regarding the required 
air pressure for the self-lapping portion for the independent air brake 
on freight locomotives. NYAB contends that all of the locomotive brake 
systems it supplies to Class I railroads have the self-lapping portion 
for the independent brake preset to 45 psi, and NYAB recommends that a 
pressure of 30 to 50 psi for this valve should be the required setting. 
NYAB notes that this was the pressure previously provided for in part 
232 prior to the issuance of the final rule. FRA does not dispute 
NYAB's contention, the pressure range for this valve was changed in the 
final rule based on comments received by the AAR in response to the 
NPRM. See 66 FR 4158. A review of AAR's comments on the NPRM reveals 
that AAR provided no rationale for requesting the change to ``30 psi or 
less,'' and FRA believes AAR may have erred in its recommendation. 
FRA's intent when issuing the pressure table in this paragraph was to 
capture the current regulating valve pressures utilized by the 
industry. Consequently, FRA is modifying the table of pressures 
contained in this paragraph to reflect NYAB's suggestion that the air 
pressure for the self-lapping portion of the independent brake on a 
locomotive be 30 to 50 psi, the pressure required by part 232 as it 
existed prior to May 31, 2001.
    Paragraph (p) of this section is being removed in response to 
concerns raised by AAR in its petition and based upon FRA's 
determination that the paragraph is unnecessary and duplicative. 
Paragraph (p) of this section is basically a reiteration of the 
language contained in Sec. 232.11(a) as it existed prior to May 31, 
2001, which addressed the joint responsibility of supervisors and 
inspectors to ensure the proper condition and functioning of train 
brake systems. See 66 FR 4158. Although the provision has existed in 
part 232 for decades, there has never been a civil penalty directly 
associated with the provision, and FRA has never pursued a violation 
under the provision. In FRA's view, the provision merely served to 
inform supervisors that they were jointly responsible for ensuring the 
proper condition of the brake system. With the advent of individual 
liability in 1992, FRA believes that the provision provides notice to 
supervisors that they may be held individually liable, from a civil 
penalty perspective, for permitting or requiring improper inspection 
practices or other practices not consistent with the regulatory and 
statutory requirements to be engaged in by employees they supervise. 
See the Rail Safety Enforcement and Review Act, Public Law 102-365 
(Sept. 3, 1992). As the potential for individual liability is 
specifically identified and discussed in Sec. 232.11 of the final rule 
and the associated preamble analysis, FRA believes that there is no 
need to include paragraph (p) in this section. See 66 FR 4149-50, 4196.
    FRA is denying AAR's request for reconsideration of the final 
rule's provision contained in paragraph (g) of this section requiring 
cars equipped with other than 12-inch stroke brake cylinders to display 
the permissible brake cylinder piston travel range on the car in the 
form of either a decal, sticker, stencil, or on the car's badge plate. 
The final rule requires that such cars be so marked by April 1, 2004. 
See 66 FR 4199. AAR recommends that FRA extend the date by which to 
comply with this requirement to five years. AAR contends that a five-
year compliance date would permit the required stencil, sticker, or 
decal to be applied during a car's scheduled periodic single car test 
and, thus, reduce the economic impact of the requirement. AAR contends 
that an April 1, 2004, compliance date would cost the industry 
approximately $6 million more than estimated by FRA in the Regulatory 
Impact Analysis of the final rule.
    The merits of AAR's contentions regarding the economic impact of 
this requirement were previously discussed in detail in the portion of 
the preamble addressing AAR's economic concerns related to the final 
rule. In that discussion, FRA states that the time permitted in the 
final rule is sufficient for the railroads to comply with the 
requirement and does not impose the economic burdens claimed by AAR in 
its petition. On average, rail cars are placed on a fixed repair track 
or a sidetrack where repairs are conducted approximately once every 
one-and-one-half years. The task of applying a sticker, decal, or 
stencil takes only few minute to accomplish, and FRA has allowed 
numerous ways for railroads to comply with the requirement. As a matter 
of fundamental sound economics, good business practice, and effective 
utilization of employee time and company resources, FRA assumes the 
railroads will use the most cost-effective option (i.e., applying 
stickers or decals to the rail cars while performing other functions 
rather than taking it out-of-service unnecessarily) when placing piston 
travel information on rail cars. The most reasonable approach in 
complying with the requirement is to apply the sticker, stencil, or 
decal when an inspection or repair is being conducted on the rail car. 
Furthermore, FRA continues to believe that the information provided by 
these decals, stickers, or stencils is necessary to ensure that proper 
inspections are conducted and that the information

[[Page 17568]]

should be available at the time that the final rule inspection 
requirements become applicable. See 66 FR 4155. Moreover, as the final 
rule indicated, a large number of cars are already properly marked with 
the necessary information. See 66 FR 4155. Consequently, FRA continues 
to believe that the final rule provides more than a sufficient amount 
of time to comply with this requirement without imposing the economic 
hardships alleged by AAR in its petition.

Section 232.107  Air Source Requirements and Cold Weather Operations

    No changes are being made to the final rule requirements contained 
in this section. FRA is denying the recommendation to require air 
dryers on new locomotives raised by BLE in its petition. BLE again 
reasserts its belief that air dryers should be required on all new 
locomotives in order to remove moisture introduced into the train line 
by yard air systems. BLE believes that the cost of requiring air dryers 
on new locomotives would be minimal when compared to the problems 
associated with frozen train lines.
    The preamble to the final rule provides a detailed discussion 
regarding the use of air dryers on both locomotive and yard air 
sources. See 66 FR 4137-38. The preamble to the final rule also notes 
that based on information gathered throughout the RSAC process, 
previous comments by industry parties, agency experience, and after 
detailed instrumented testing, FRA determined that locomotives rarely 
contribute to moisture in the train line. Consequently, FRA did not 
require that air dryers be installed on new locomotives in either the 
NPRM or the final rule. The preamble to the NPRM contains a detailed 
discussion of the testing conducted by the RSAC Working Group members 
and recommendations regarding air dryers. See 63 FR 48317-19. FRA 
continues to believe that simply requiring air dryers on locomotives or 
yard air sources does not solve the problem of introducing moisture 
into train lines and that such devices do not provide a suitable or 
cost effective solution to the problem in freight service.
    FRA is also denying BLE's recommendation that FRA publish a list of 
chemicals that could be used in train lines consistent with the 
prohibition contained in paragraph (c) of this section. Paragraph (c) 
prohibits the introduction of chemicals which are known to degrade or 
harm brake system components into a train air brake system. FRA's 
primary focus when issuing the final rule was to eliminate the use of 
alcohol and other similar substances in train air brake systems as 
these substances are widely known to degrade brake system components. 
See 66 FR 4138, 4160-61. FRA does not possess either the personnel or 
financial resources to assess every chemical currently on the market to 
determine the detrimental effects it may have on brake system 
components. FRA believes its resources would be better spent monitoring 
the development and use of new products as they gain acceptance in the 
industry. Moreover, as one of the major purposes of the final rule is 
to encourage the development and use of new technologies, FRA believes 
that any attempt to develop a listing of approved chemicals without 
conducting complete and thorough analysis could potentially stifle 
innovation and research into safe and useful products.

Section 232.109  Dynamic Brake Requirements

    Paragraph (a) of this section is being modified in response to 
concerns raised by AAR in its petition. AAR raised a concern regarding 
this paragraph's inclusion of the term ``point of origin'' as one of 
the locations where a locomotive engineer is to be informed of the 
operational status of the dynamic brakes on the locomotives in the 
train. AAR notes that the final rule contains no definition of the term 
``point of origin'' and recommends that the language be removed. FRA 
agrees with the concern raised by AAR. The term ``point of origin'' was 
originally contained in the definitions included in the NPRM. See 63 FR 
48356. However, when issuing the final rule FRA said it intended to 
remove the term from the rule wherever it appeared because the proposed 
definition of the term was duplicative of the term ``initial terminal'' 
and merely created potential misunderstandings. See 66 FR 4167. FRA 
also noted that the problems intended to be addressed by the use of the 
term ``point of origin'' were sufficiently addressed by the various 
inspections required in this final rule when cars are added to a train. 
See 66 FR 4167. Therefore, FRA clearly intended to remove this term 
from the final rule, but inadvertently failed to remove it from this 
paragraph. Consequently, FRA is modifying this paragraph by removing 
the term ``point of origin.''
    AAR also raises concerns related to the information required by 
this paragraph to be provided to the locomotive engineer regarding the 
operational status of the dynamic brakes on the locomotives in the 
train. AAR seeks clarification as to whether the provision requires 
some type of testing at each location where the locomotive engineer is 
to be provided such information. FRA did not intend for railroads to 
conduct specialized testing of the dynamic brakes in order to fulfill 
this requirement. FRA intended for the locomotive engineer to be 
informed of any known inoperative or deactivated dynamic brakes in the 
train consist at the time he or she first begins operation of the 
train. This information may be gleaned either from the previous crew's 
operating experience, railroad records, on-board monitors, or other 
testing of the dynamic brake system performed at the railroad's option. 
However, FRA stresses that the intent of the requirement was to ensure 
that an engineer is apprized of any known inoperative dynamic brakes 
prior to beginning operation of a train. FRA continues to believe that 
by providing an engineer with as much information as possible on the 
status of the dynamic brakes on a train, a railroad better enables that 
engineer to operate the train in the safest and most efficient manner.
    Paragraphs (g) and (h) of this section, which contain requirements 
for dynamic brake indicators and testing the electrical integrity of 
the dynamic brake system on new and rebuilt locomotives, are being 
modified in response to issues raised in AAR's petition for 
reconsideration. In its petition, AAR contends that a device capable of 
displaying total train dynamic brake retarding force at various speed 
increments does not currently exist and cannot be developed by August 
1, 2002, as required by the final rule. As part of its petition, AAR 
included letters from two locomotive manufacturers, both of which 
indicated that the dynamic brake indicator required by the final rule 
would be very difficult, if not impossible, to develop and implement 
within the time frame allotted by the final rule. Both manufacturers as 
well as AAR cite interoperability as the fundamental problem with 
developing the device. That is, industry-wide standards need to be 
developed to ensure that devices made by different manufacturers are 
able to communicate with each other. AAR also seeks clarification of 
the final rule's requirement regarding whether the device is to provide 
a theoretical retarding force or the actual retarding force being 
produced by the dynamic brakes at any given time.
    AAR further recommends elimination of the requirement for a dynamic 
brake indicator and suggests that railroads should be permitted to use

[[Page 17569]]

accelerometers in lieu of the dynamic brake indicator. An 
``accelerometer'' or ``predictor'' is a device currently used in the 
industry that indicates the predicted speed in miles per hour of the 
locomotive 60 seconds from the present, based on the computed 
acceleration or deceleration rate of the train. AAR contends that 
accelerometers are vastly superior to dynamic brake indicators as they 
provide information to the locomotive engineer on the performance of 
all the brakes in his train and how well they are performing together. 
AAR also maintains that accelerometers are proven, existing technology 
and that many locomotive in the nation's fleet are already equipped 
with such devices.
    FRA does not dispute the potential safety benefits derived from the 
use of an accelerometer. FRA also agrees that an accelerometer does 
provide a locomotive engineer with some information regarding the 
operation of a train's brake system. However, FRA continues to believe 
that locomotive engineers should have direct information regarding the 
operation and effectiveness of the dynamic brakes on the train they are 
operating. While an accelerometer would provide some information on the 
effectiveness of the entire brake system, it would not give any 
specific information regarding the effectiveness of the dynamic brakes 
on any single locomotive unit in the train or the retarding force being 
applied by the dynamic brakes as a whole. FRA believes that such direct 
information is essential for ensuring that locomotive engineers are 
provided as much information as possible regarding the braking system 
that they are encouraged to use and on which they rely to control a 
train's speed generally and especially on heavy grades. Consequently, 
FRA does not believe that accelerometers or ``predictors'' are an 
adequate substitute for a dynamic brake indicator which provides direct 
information on the effectiveness of the dynamic brakes on the 
locomotives in a train. With this said, FRA would encourage railroads 
to utilize the technologies available in both the accelerometer and a 
dynamic brake indicator because a combination of the information 
provided by the two devices unquestionably provides a locomotive 
engineer with a wealth of knowledge regarding the operation and 
effectiveness of the brakes on the train he or she is operating.
    Although FRA believes that a dynamic brake indicator is necessary 
and desirable, FRA recognizes the difficulties in developing and 
introducing a relatively new technology. FRA is also not unmindful of 
the needs of the industry to develop standards to ensure that any 
developed device serves the purposes of the industry and addresses all 
interoperability concerns. Neither manufacturer indicated an inability 
to develop the device suggested by the final rule, just that the time 
frame contained in the final rule was insufficient for addressing 
outstanding design and interoperability issues. Moreover, FRA continues 
to believe that the technology exists for developing a device similar 
to that required by the final rule. Consequently, FRA will continue to 
require that new locomotives be equipped with a dynamic brake indicator 
similar to that described in the final rule, with slight modification 
to address other issues raised by AAR.
    Based on the above, FRA is amending paragraph (g) to extend the 
time period by which new locomotives are to be equipped with the 
required dynamic brake indicator. FRA believes that an additional three 
years is more than adequate to permit the industry to develop 
appropriate design and interoperability standards and would allow for 
testing and verification of any hardware and associated software. Based 
on consultations with FRA's Office of Railroad Development, FRA 
believes that adding three years to the compliance date will provide 
the industry more than a sufficient amount of time to develop and test 
the device. Under the extension being provided by this response, the 
industry will be allotted approximately five years to develop and test 
the required device. FRA is providing this five-year window with the 
intention that three years would be needed by the industry to develop 
appropriate industry standards and to develop the necessary hardware 
and software. An additional two years is then allotted for the testing 
and verification of any developed technology. FRA also notes that the 
period of three additional years being provided by this modification 
extends the compliance date for the devices beyond the year 2005 which 
is the anticipated effective date of the Environmental Protection 
Agency's (EPA) new locomotive emissions requirements, which will likely 
result in a significant redesign of new locomotives. Thus, the dynamic 
brake indicators can be easily incorporated into any new design 
standards that result from EPA's regulatory activities, minimizing the 
cost of adding the instruments.
    FRA notes that railroads will have at least two options for 
implementing the requirement for dynamic brake indicators in multiple-
unit locomotive consists. The first option would be ``hard wire'' 
transmission of data over ``MU cables.'' In this case, the benefit of 
the rule would likely be realized only with respect to the lead unit, 
if equipped, and units consecutively coupled to it. The second option 
would be use of telemetry (data radio), in which case data from any 
number of equipped units could be provided to the engineer in an 
equipped lead unit, even if a non-equipped unit was placed in the 
middle of the locomotive consist. The same telemetry link used to 
control distributed power units (placed in the middle or rear of a 
train) could be employed to provide dynamic braking status information 
to an equipped lead locomotive, as well. FRA does not prescribe how 
this system is to be implemented, but does note that the benefits of 
the rule will be realized more quickly if telemetry is employed. 
However, given the prevalence of shared power arrangements in the 
railroad industry, it will be imperative that the Association of 
American Railroads, in consultation with its North American partners, 
provide interoperability standards for use by the locomotive 
manufacturers and supply community. The time provided for 
implementation under this rule is intended to facilitate the 
development and implementation of those standards.
    Paragraphs (g) and (h) are also being modified to clarify the 
information that is to be provided by the required dynamic brake 
indicator. In order to ensure the timely development of the required 
devices and to address potential safety hazards, FRA is modifying the 
design requirements to make clear that the device is required to 
provide only a real-time display of the actual total train dynamic 
brake retarding force. FRA agrees with the concerns raised by AAR in 
its petition that the final rule language, requiring that the new 
locomotives be designed to display the total train dynamic brake 
retarding force at various speed increments, and the attendant preamble 
discussion are somewhat ambiguous as to what information is to be 
displayed in the cab of the controlling locomotive. See 66 FR 4163, 
4200-01. Therefore, FRA is clarifying the language in these paragraphs 
to avoid any potential misunderstanding regarding the predictive nature 
of the dynamic brake indicator. FRA agrees that the technology may not 
be available to accurately provide a predictive assessment of the total 
train dynamic brake retarding force and, more important, the usefulness 
of such information is likely outweighed by the potential safety 
hazards. FRA believes

[[Page 17570]]

that requiring predictive information on the status of dynamic brake 
retarding force might result in a locomotive engineer mishandling a 
train due to over-reliance on the predictive information being provided 
because dynamic brakes can fail at any time and thus, the predictive 
information may be not be an accurate representation of the dynamic 
brake performance at that future time.
    Paragraphs (g) and (h) are also being modified to clarify FRA's 
intent with regard to testing the electrical integrity of the dynamic 
brake at rest. In its petition, AAR recommended elimination of the 
electrical integrity test as it was unclear what FRA was expecting to 
be tested while a locomotive was at rest. AAR indicated that there is a 
series of three tests that could be performed to test the electrical 
integrity of the dynamic brake system all of which would require 
specialized personnel and equipment to perform. AAR further contends 
that none of the at-rest tests could predict with any certainty whether 
the dynamic brakes would actually function when engaged. In order to 
clarify the intent of the final rule's requirement, FRA is amending the 
language in these paragraphs to specifically describe that the 
electrical continuity test is to determine that electrical current is 
being received at the grids on the dynamic brake system. FRA believes 
this would involve a fairly simple check of the electrical continuity 
and would not require specialized training. Furthermore, FRA believes 
that the technology for conducting this test either already exists or 
can be easily developed and implemented over the next five years. 
Although FRA agrees that this electrical test will not predict with any 
certainty the functioning of the dynamic brakes when engaged, FRA 
believes it does provide some information to the engineer regarding the 
potential for the dynamic brake to function prior to the locomotive 
engineer's actual operation of the train. Furthermore, this requirement 
is consistent with the final rule's intent that by providing an 
engineer with as much information as possible on the status of the 
dynamic brakes on a train, a railroad better enables that engineer to 
operate the train in the safest and most efficient manner. See 66 FR 
4161.
    Paragraph (j)(2) of this section is also being modified in response 
to AAR's petition seeking clarification of the applicability of the 
requirement contained in this paragraph. Paragraph (j)(2) requires that 
the operating rules developed by railroads under this section include a 
``miles-per-hour-overspeed-stop'' requirement that requires trains to 
be immediately stopped if they exceed the maximum authorized speed by 
more than 5 mph when descending grades of one percent or greater. See 
66 FR 4201. The preamble to the final rule made clear that this 
requirement was developed in response to an NTSB recommendation and 
because FRA believed the provision accomplished a critical safety 
function by reducing the potential for runaways. It does so by 
establishing a clear rule for stopping a train when descending a grade 
and removes any discretion from the operator to continue operation of a 
train. See 66 FR 4164. AAR recommends that the requirement only be 
applied to trains descending grades averaging two percent for two 
continuous miles, similar to the two-way EOT requirement's definition 
of heavy grade. AAR contends that the one percent grade threshold is 
too low and that most railroads do not consider grades of less than two 
percent to be heavy grades.
    Contrary to the implications made by AAR, the requirement in this 
paragraph was not intended to apply only to trains descending ``heavy 
grades'' as defined by most railroads. The requirement was intended to 
apply to any train descending a grade with a potential for causing a 
runaway condition. See 66 FR 4164. Furthermore, most Class I railroads 
that have already incorporated a ``miles-per-hour-overspeed-stop'' 
provision in their operating rules apply the requirement to trains 
descending grades of much less than two percent. However, FRA does 
agree that a mileage parameter needs to accompany the grade threshold 
in order for railroads to determine which segments of track are to be 
governed by the required operating procedure. As the regulations 
related to two-way EOT devices have identified those types of grades 
that FRA believes have the greatest potential for being involved in a 
runaway condition, FRA believes that the distance parameter contained 
in those requirements would be equally applicable in this context. 
Therefore, paragraph (j)(2) is being modified to clarify that 
railroads, at a minimum, apply the ``overspeed-stop rule'' contained in 
this paragraph to any train operating over a segment of track with an 
average grade of one percent or greater for three continuous miles. 
Furthermore, as railroads should have already identified the existence 
of such locations on their railroad for purposes of complying with the 
two-way EOT device regulations, this requirement should pose little or 
no burden on the industry. Moreover, the final rule permits railroads 
to increase the five-mph-overspeed limitation with FRA approval. Thus, 
if railroads are able produce validated research to show a higher speed 
threshold on grades less than two percent is appropriate, then FRA 
would be willing to consider the information. However, AAR's petition 
for reconsideration alludes to no such validated research. 
Consequently, FRA denies AAR's request to increase the applicable grade 
limitation contained in this paragraph of the final rule to cover only 
two percent grades.
    BLE's petition sought reconsideration of two provisions contained 
in this section. BLE recommends that FRA extend the final rule's time 
period for retaining records of dynamic brake repairs from the 92 days 
required in paragraph (d) of this section to one year. BLE suggests 
that this would allow FRA to determine whether a particular locomotive 
or locomotive series is having reoccurring problems related to dynamic 
brakes. While FRA believes the stated purpose to be valid, FRA does not 
agree that a one-year repair record retention period is the necessary. 
FRA believes that the 92-day retention period required by the final 
rule provides FRA sufficient time to obtain relevant repair information 
to address any reoccurring problems. Moreover, the 92-day repair record 
retention period contained in this paragraph is consistent with other 
repair and inspection record retention periods contained in both the 
final rule and other federal railroad safety regulations. See 66 FR 
4197, 4207; 49 CFR 215.9(b)(2) and 229.21(a). Consequently, FRA is 
denying BLE's request to extend the repair record retention contained 
in this paragraph.
    BLE also seeks FRA's reconsideration of its determination to permit 
a locomotive with inoperative or deactivated dynamic brakes to be used 
as a controlling locomotive in heavy grade territory. BLE provides 
little, if any, rationale for requesting this prohibition other than 
citing general concerns with controlling a train on a heavy grade, all 
of which exist whether or not the controlling locomotive has operative 
dynamic brakes. The final rule requires that locomotives with 
inoperative or deactivated dynamic brakes have the capability of 
controlling the dynamic brakes on trailing units when operating as the 
controlling locomotive. The final rule also requires such locomotives 
to have the capability of displaying to the locomotive engineer the 
deceleration rate of the train or the total train dynamic brake 
retarding force. FRA continues to believe these provisions will ensure 
that locomotive engineers are able to operate the available dynamic 
brakes on the train

[[Page 17571]]

and will have the best information it is currently feasible to provide 
as to the operation of the dynamic brakes on the locomotives in the 
train consist they are controlling. Consequently, FRA is denying BLE's 
request to modify the final rule requirements related to using 
locomotives with inoperative or deactivated dynamic brakes as a 
controlling locomotive.

Section 232.111  Train Handling Information

    FRA is not making any changes to the final rule requirements 
contained in this section. In its petition, BLE recommends that FRA 
reconsider its decision to eliminate the requirement that railroads 
provide locomotive engineers with a record of all train configuration 
changes since the performance of the last Class I brake test. BLE 
contends that engineers and other crewmembers should have a list of all 
car placements in their train at all locations. BLE did not say why 
this information is critical and did not discuss how it would aid an 
engineer in the operation of a train. The principle purpose of this 
section is to ensure that locomotive engineers are provided with 
relevant information regarding the testing and operation of the brake 
system on any train they are required to operate. Although FRA agrees 
that information regarding train make-up and train configuration 
changes is useful to an engineer when operating a train, FRA believes 
that issues related to train make-up and train configuration are 
outside the scope of this proceeding and are addressed by existing 
railroad operating rules and other federal regulations. For example, 
the federal regulations regarding the transportation of hazardous 
materials require that train crews be in possession of a document that 
reflects the current position in the train of each rail car containing 
a hazardous material. See 49 CFR 174.26(a). Generally, this document 
will provide information regarding train consist changes made while a 
train is en route. Consequently, FRA is denying BLE's request to 
reinstate the NPRM requirement regarding train configuration changes 
made since the last Class I brake test was performed on the train.

Subpart C--Inspection and Testing Requirements

Section 232.203  Training Requirements

    This section of the final rule contains the general training 
requirements for railroad employees and contractor employees who 
perform the inspections and tests required by the final rule. In order 
to clarify FRA's intent, a brief discussion of FRA's overall approach 
to the final rule's training requirements may be beneficial. When 
including the training requirements in the final rule, FRA believed the 
training provisions to be the key factor for ensuring high quality 
brake inspections from which railroads would reap a number of 
operational benefits. See 66 FR 4135-37. The intent of the final rule 
is to establish a two-stage approach to training. The first phase of 
the training is to be the initial training of existing and new 
employees required to perform any test or inspection covered by the 
final rule. The majority of the initial training is to be conducted by 
railroads and contractors from the time the final rule became effective 
until April 1, 2004. FRA specifically deferred the applicability of 
many of the inspection and testing requirements until April 1, 2004, to 
permit railroads and contractors to have that period to develop the 
necessary curriculum and provide their employees with proper training 
on the performance of those tasks. See 66 FR 4137, 4144-45, 4193. The 
initial training is to include both classroom and ``hands-on'' training 
and testing tailored to the needs of each employee that addresses those 
tasks covered by the final rule which would be required to be performed 
by that individual. The initial training is also intended to cover the 
specific Federal regulatory requirements related to the tasks that the 
individual will be required to perform. FRA also envisioned that all 
new employees responsible for performing a task under this part would 
receive such initial training regardless of whether they were employed 
before or after April 1, 2004.
    The second phase of the final rule's training requirements involves 
the conduct of periodic refresher training. FRA intends for this phase 
of training to occur after the initial training is complete. FRA did 
not intend for the periodic refresher training to take the place of the 
initial training. The final rule makes clear that FRA believes that 
periodic refresher training is essential to ensuring the continued 
ability of an employee to perform a particular task. In the preamble to 
the final rule, FRA acknowledged that it does not intend for such 
training to be as lengthy or as formal as the initial training 
originally provided, but believes that refresher training should 
reemphasize key elements of various tasks and focus on items or tasks 
that have been identified as being problematic or of poor quality by 
the railroad, contractor, or its employees through the periodic 
assessment of the training program. See 66 FR 4166.
    FRA utilized this same two-tiered approach to training when issuing 
the final rule on Passenger Equipment Safety Standards contained in 
part 238. See 49 CFR 238.109, 64 FR 25540, 65 FR 41284. Most passenger 
operations have completed or are in the final stages of completing the 
training required under those regulations, and FRA envisions freight 
railroads adopting a similar approach to training under this final 
rule. FRA recognizes that there are significant differences between 
passenger and freight operations and believes that each needs to be 
handled separately with regard to the training of individuals 
performing tasks required by the Federal regulations. Consequently, FRA 
is slightly modifying the training requirements contained in the final 
rule to address those concerns unique to freight operations.
    Paragraph (b)(6) of this section is being modified in response to 
concerns raised in AAR's petition regarding the training of existing 
employees. AAR contends that the final rule's prohibition on the use of 
previous training and work experience to meet the training requirements 
is overly burdensome. AAR contends that many railroads do not have past 
training information on each employee performing tasks required by the 
final rule because railroads were never previously required to maintain 
such information. AAR asserts that it makes no sense to treat an 
existing railroad employee as a new hire with no railroad experience. 
AAR also maintains that FRA permitted the grandfathering of existing 
train and engine crews when promulgating the engineer certification 
requirements without requiring documentation of previous training. AAR 
sees no reason to take a different approach in this rulemaking.
    FRA agrees that there are a number of employees currently working 
for many railroads and contractors that have received previous training 
or have extensive railroad experience to obviate the need to retrain 
the employee as thoroughly or as quickly as a newly hired individual. 
FRA also agrees that many railroads have not maintained records 
sufficient to meet the documentation requirements contained in the 
final rule for purposes of using the previous training to meet the new 
training requirements. However, FRA does not agree that when issuing 
part 240 related to locomotive engineer certification that it simply 
grandfathered all existing locomotive engineers. In fact, part 240 
required that an initial determination of certification be made

[[Page 17572]]

by a railroad regarding any existing engineer and then required that 
any such certified engineer be qualified under the procedures set forth 
in the regulation within 36 months of being initially certified. See 49 
CFR 240.201(b) and (c). Thus, part 240 did not provide for the 
unrestricted grandfathering of existing employees, as portrayed in 
AAR's petition, but permitted delayed qualification of existing 
employees. This is similar to the approach taken in the final rule 
whereby railroads and contractors are being given approximately three 
years from the issuance of the final rule to complete the initial 
training of their existing employees.
    Based on the foregoing, FRA is modifying paragraph (b)(6) of this 
section to expand the methods by which railroads and contractors are 
allowed to meet the training requirements contained in this section 
with regard to existing employees. This paragraph is being modified to 
permit existing training records which meet the documentation 
requirements contained in paragraph (e)(1) through (e)(4) to be 
considered in determining an existing employee's level of training. 
This clarifies the final rule requirement regarding the level of 
documentation that must exist with regard to previous training. This 
clarification explains that the records of previous training must 
include the employee's name, the dates on which the training was 
provided, the content of each training course, and the scores on any 
tests taken to demonstrate proficiency. The final rule merely stated 
that the records of previous training meet all the documentation 
requirements in paragraph (e). FRA realizes that it is impossible and 
unnecessary to meet all the documentation requirements contained in 
paragraph (e) of this section when dealing with existing training 
records.
    Paragraph (b)(6) is also being modified by adding two other 
additional methods by which existing employees may be deemed to have 
met a portion of the training requirements contained in this section. 
The first method is to treat as trained existing employees who 
successfully pass a test developed by the railroad or contractor which 
assesses an employee's skills and knowledge necessary to perform tasks 
required by this part that the employee will be responsible for 
performing. FRA believes that this will permit railroads and 
contractors to streamline an employee's initial training to cover only 
those areas in which an employee may show a deficiency. FRA believes 
this method will allow railroads and contractors to reduce their 
training burdens by the permitting employees with extensive inspection 
and testing experience to ``test-out'' of large portions of the initial 
training keyed more toward newly hired individuals. The modified rule 
text makes clear that the test may be given in any format but must be 
documented as required in paragraph (e) of this section.
    The second method permits a railroad or contractor to certify that 
a group or segment of its employees has received training determined by 
the railroad or contractor to meet the requirements contained in this 
section but for which complete records are unavailable. This new 
provision is being added to address the AAR's concern that many 
railroads have lost or destroyed previous training records or that all 
the information required by paragraphs (e)(1) through (e)(4) of this 
section was not maintained at the time the training was provided. If a 
railroad or contractor chooses this method, the railroad must maintain 
a copy of the certification in each such employee's training records, 
and the certification must contain a brief description of and 
approximate dates when the previous training was provided. Moreover, 
any employee certified to be trained under this method must be given a 
diagnostic test which covers the areas of training certified by the 
railroad or contractor to have been previously provided at the time the 
employee receives his or her first periodic refresher training. This 
will ensure that the employee has retained the necessary skills and 
knowledge that the railroad or contractor certifies was previously 
provided to the employee and also permits railroads and contractors to 
tailor an employee's refresher training to concentrate on those areas 
where the employee has demonstrated the most need for attention.
    Paragraph (b)(8) of this section is also being modified to clarify 
FRA's intent regarding when refresher training is to be provided and to 
address AAR's concern regarding the ability to provide refresher 
training on a triennial cycle. As discussed in detail above, FRA's 
intent when requiring refresher training was that such training would 
not be engaged in until the completion of the initial training phase on 
April 1, 2004. A strict reading of the final rule would require that 
employees receive refresher training within three years of their 
initial training. FRA recognizes that, due to the need for railroads to 
develop the initial training materials, the actual initial training of 
the employees would be compressed to a period that is less than three 
years. Thus, although not FRA's intent, the language contained in the 
final rule would require large portions of a railroad's workforce to 
undergo refresher training in the same year due to condensing the 
initial training period to less than three years. FRA's intent when 
issuing the final rule was to allow railroads and contractors to 
establish a refresher training program that would accommodate 
approximately one-third of a railroad's or contractor's brake system 
inspection and testing workforce each year. In order to effectuate this 
intent, FRA is amending this paragraph of the final rule to allow 
individuals receiving initial training prior to April 1, 2004, pursuant 
to this section, not to undergo refresher training until four years 
after the completion of their original initial training. The amended 
language makes clear that thereafter such individuals would be required 
to undergo refresher training at an interval not to exceed three years. 
This modification will permit railroads and contractors to schedule the 
first refresher training period for existing employees so that one-
third of the affected employees can receive appropriate refresher 
training each year. This will provide railroads and contractors with 
more certainty both in terms of employee utilization and resource 
allocation affected by the refresher training requirements contained in 
the final rule.
    In its petition AAR also requested elimination of several of the 
final rule's training documentation requirements contained in paragraph 
(e) of this section. After reviewing these requirements, FRA believes 
that virtually every record required by paragraph (e) is necessary and 
easy to maintain and provides important information to both FRA and the 
railroad or contractor. The only final rule item FRA believes is 
potentially unnecessary is the provision contained in paragraph (e)(6) 
of this section which requires a record that the employee was notified 
of his or her current qualification status. FRA agrees with the 
concerns raised by AAR on this issue that the information is of little 
or no value to FRA from an enforcement perspective and railroads will 
notify employees of their status regardless of any federal regulation. 
Consequently, FRA is modifying the final rule by removing paragraph 
(e)(6) of this section and is redesignating paragraphs (e)(7) through 
(e)(9) of this section as paragraphs (e)(6) through (e)(8), 
respectively. AAR raises various concerns with regard to a number of 
the final rule's other training documentation requirements in paragraph 
(e). FRA has addressed these

[[Page 17573]]

concerns in the preceding discussion of regulatory evaluation concerns 
and need not reiterate them here. (See Section I. Discussion of 
Regulatory Evaluation Concerns, Part A: Cost Issues, subpart 5: 
Training.)

Section 232.205  Class I Brake Test-Initial Terminal Inspection

    In its petition, AAR seeks clarification of the final rule's 
inspection requirements related to the adding of cars to a train. AAR 
asserts that the provisions contained in this section and in 
Sec. 232.209 of the final rule are somewhat confusing regarding the 
addition of solid blocks of cars to a train. AAR states that it 
believes FRA did not intend the final rule to require a Class I brake 
test on the entire train when the train consist is changed by the 
addition of cars. AAR again contends that it sees no basis in FRA's 
determination that a Class I brake test must be performed on a block of 
cars when added to a train if the block of cars is made up of cars from 
various different trains. Therefore, AAR recommends clarification of 
the inspection requirements related to the adding of solid blocks of 
cars and recommends elimination of the limitation on adding more than a 
single solid block of cars without triggering a requirement to perform 
a Class I brake test on the entire train, which is contained at 
paragraph (a)(2)(i) of this section in the final rule. AAR also 
contends that FRA failed to address situations where a solid block of 
cars is removed from one train and is added to another train but the 
cars were required to be divided into multiple blocks when removed from 
the first train due to trackage constraints at the location prior to 
being added to the second train. AAR argues that there is no difference 
between this circumstance and leaving the cars coupled together. 
Consequently, at a minimum, AAR recommends that FRA clarify the final 
rule requirements to address situations where solid blocks of cars from 
only one train are required to be divided to accommodate track 
limitations at a location.
    FRA agrees with AAR's concerns regarding the final rule's intent to 
concern itself with the inspection of the solid block of cars being 
added to a train and determining the nature of the inspection of that 
solid block on the basis of its composition. The preamble to the final 
rule makes clear that FRA's primary concern is the condition of the 
block of cars being added to the train, especially when the block of 
cars is made up of cars from more than one previous train. The preamble 
made clear that the final rule will permit a solid block of cars to be 
added to a train without triggering a requirement to perform a Class I 
brake test on the entire train but depending on the make-up of the 
block of cars, certain inspections will have to be performed on the 
block of cars at the location where it is added to the train. See 66 FR 
4168. However, contrary to the assertions made by AAR in its petition, 
the final rule was never intended to permit the addition of more than a 
single solid block of cars to a train at any one location. FRA believes 
that both the explicit language of the final rule text and the preamble 
discussion clearly establish that only a single solid block of cars may 
be added at any one location without triggering a requirement to 
conduct a Class I brake test on the entire train. See 66 FR 4168, 4202. 
FRA continues to believe that the rationale, set out in the preamble to 
the final rule, for not permitting multiple solid blocks of cars to be 
added to a train at any one location remains valid and need not be 
reiterated. See 66 FR 4168. Consequently, FRA is denying AAR's request 
to remove paragraph (a)(2)(i) from this section as the preamble to the 
final rule clearly states the intended purpose of the final rule to 
permit the addition of only a single solid block of cars at any one 
location without the need conduct a Class I brake test on the entire 
train.
    In response to the other concerns raised by AAR in its petition, 
FRA is amending this section of the final rule by adding a new 
paragraph (b) to clarify the inspection requirements related the 
situation where a solid block of cars is added to a train. It should be 
noted that FRA amended the definition of ``solid block of cars'' 
contained in Sec. 232.5 of the final rule to aid in the clarification 
of the inspection requirements related to the addition of a solid block 
of car. (See Section-by-Section Analysis of Sec. 232.5). The new 
paragraph (b) makes clear that all solid blocks of cars added to a 
train, except those described in paragraphs (b)(1) and (b)(2), are to 
receive either a Class I brake test pursuant to Sec. 232.205 of the 
final rule or a Class II brake test pursuant to Sec. 232.209 of the 
final rule at the location where they are added to a train. Paragraph 
(d) of Sec. 232.209 of the final rule also makes clear that if a Class 
II brake test is performed on a solid block of cars when added to a 
train, then a Class I brake test pursuant to Sec. 232.205 of the final 
rule must be conducted on the added cars at the next forward location 
where facilities are available for performing such an inspection. See 
66 FR 4173, 4204. FRA intends to make clear that if a Class I brake 
test is performed on the solid block of cars at the location where it 
is added to a train, no further brake inspections are required of that 
block while it remains charged in the train, except for Class IA/1,000-
mile brake tests covered by Sec. 232.207 of the final rule. It should 
be noted that if a solid block of cars is pre-tested (i.e., given 
either a Class I or Class II brake test at the location it will be 
added to a train prior to being added to the train) or the solid block 
of cars meets one of the exceptions contained in new paragraphs (b)(1) 
or (b)(2) of this section, a Class III brake test pursuant to 
Sec. 232.211 must be conducted on the train to which the pretested 
solid block of cars is added at the time it is added to the train. See 
66 FR 4173-74, 4204. In order to avoid any misunderstanding, FRA 
intends to make clear that if the required Class I or Class II brake 
test is performed on the solid block of cars after it is added to the 
train, then there would be no need to conduct a Class III brake test on 
the entire train after the performance of those inspections because the 
requirements for performing a Class I or Class II brake test while the 
cars are entrained ensure that trainline continuity is achieved, which 
is the purpose of a Class III brake test. See 66 FR 4173-74, 4202-04.
    New paragraphs (b)(1) and (b)(2) are being added to explicitly 
clarify the two types of cars or solid blocks of cars which may be 
added to an en route train without being required to receive either a 
Class I or Class II brake test at the location where they are added to 
the train. As discussed in detail above, when these types of solid 
blocks are added to a train, the train must receive a Class III brake 
test pursuant Sec. 232.211 of the final rule. See 66 FR 4204. Paragraph 
(b)(1) makes clear that there are four conditions that must be met by a 
solid block of cars in order to be added to a train without being 
required to receive either a Class I or Class II brake test at the 
location where it is added.
    First, the solid block of cars must be comprised of cars from a 
single previous train. Contrary to AAR's contentions raised in its 
petition, FRA continues to believe that the addition of blocks of cars 
comprised of cars from various different trains without inspection 
would allow the assembling of trains without inspection, which is 
clearly contrary to the intent of Congress when adopting the brake 
inspection requirements contained in part 232 prior to May 31, 2001, 
and would seriously reduce the safety of train operations across the 
nation. See 66 FR 4119, 4168. Second, the cars in the solid block must 
have previously received a Class I brake test. Thus, cars previously

[[Page 17574]]

receiving only a transfer train brake test pursuant to Sec. 232.215 of 
the final rule would not meet this requirement. Third, the cars in the 
solid block must have remained continuously and consecutively coupled 
together, except for removing defective equipment, since being removed 
from its previous train. Thus, there can be no reclassification of the 
cars contained in the solid block since being removed from its previous 
train. Finally, the solid block of cars may not have been off a source 
of compressed air of at least 60 psi for more than four hours before 
being added to the en route train. FRA believes that the clarification 
contained in this paragraph is consistent with the intent and purpose 
of the final rule as it pertained to the adding of solid blocks of cars 
without further inspection. See 66 FR 4119, 4167-74.
    Paragraph (b)(2) is being added in response to a concern raised in 
AAR's petition regarding the circumstance where a solid block of cars, 
meeting all of the requirements discussed in the preceding paragraph, 
must be divided to accommodate trackage constraints at a particular 
location. FRA agrees with the position set forth by AAR that some 
allowance should be provided in the final rule to accommodate this 
practice. FRA believes that no significant safety hazard is created by 
permitting a solid block of cars from a single previous train to be 
divided into smaller segments to accommodate space or trackage 
constraints at a particular location. It should be noted that this 
paragraph requires that each of the smaller segments remain 
continuously and consecutively coupled, not be removed from a source of 
compressed air for more than four hours, and be added to the new train 
in the same relative order as when removed from the previous train. 
Thus, the smaller segments of the larger solid block of cars initially 
removed from the previous train may not be rearranged or reclassified 
prior to being added to a train, or when, added to a train. FRA 
believes that the restrictions imposed by this paragraph with regard to 
the handling of a divided solid block of cars ensure the safety and 
integrity of the brake system on such blocks while limiting the 
potential for railroads to use the flexibility provided to assemble and 
classify trains without conducting necessary inspections. It should 
also be noted that this exception applies only to solid blocks of cars 
from a single previous train that are required to be divided into 
smaller segments due to trackage or space constraints at a particular 
location. FRA does not intend to extend the flexibility provided in 
this paragraph to every location or to be used by a railroad merely out 
of convenience to the railroad.
    Due to FRA's addition of a new paragraph (b) to this section in 
response to petitions for reconsideration, FRA is redesignating 
paragraphs (b) through (e) of this section in the final rule as 
paragraphs (c) through (e), respectively. Redesignated paragraph (c)(2) 
(paragraph (b)(2) of the final rule) is being modified for 
clarification purposes in response a concern raised in AAR's petition. 
AAR recommends that FRA make the word ``inspector'' used in this 
paragraph plural. AAR believes FRA should recognize that many railroads 
use more than one inspector to conduct the inspection required in this 
section. Thus, AAR asserts that the rule text should make clear that it 
is the inspection team that is to inspect both sides of the equipment 
sometime during the inspection process, not any single inspector. FRA 
agrees with the recommendation made by AAR in its petition. FRA did not 
intend to suggest that a Class I brake test may be performed by only 
one inspector, nor did FRA intend to limit the methods by which 
railroads conduct such an inspection. In fact, the preamble to the 
final rule discusses the requirements contained in this paragraph in 
terms of ``inspectors'' and ``individuals'' and indicates that the 
method of performing the required inspection would be left to the 
discretion of the railroads provided such methods ensure that all 
required components are properly inspected. See 66 FR 4169-70. 
Consequently, FRA is modifying this paragraph of the final rule by 
making the term ``inspector'' plural.
    Redesignated paragraph (c)(4) of this section (paragraph (b)(4) of 
the final rule) is also being modified in response to an issue raised 
by AAR in its petition. In its petition, AAR seeks clarification of 
FRA's intent regarding the pressure at which a retest of a car is to be 
conducted. AAR asserts that a strict reading of this provision in the 
final rule would require that the retest be conducted at the operating 
pressure of the train. AAR recommends that the language of the 
requirement be modified to permit the retest to be performed at a 
pressure that is within 15 psi of the pressure at which the train will 
be operated. AAR contends that other cars in the train may be initially 
tested at a pressure that is anywhere between 75 and 90 psi because the 
final rule permits the pressure at the rear of the train to be within 
15 psi of the pressure at which the train will be operated. See 66 FR 
4202-03. Thus, AAR maintains that a retest of a car's air brakes should 
be permitted to be conducted at the same pressure as that of any other 
car in the train. FRA agrees with the position of AAR and is amending 
this paragraph to clarify that the retesting of a car may be conducted 
at a pressure that is within 15 psi of the pressure at which the train 
will be operated. FRA believes this clarification is consistent with 
the other inspection requirements contained in the final rule as noted 
in the above discussion of AAR's concern. Furthermore, although the 
final rule text and attendant preamble discussion are somewhat 
ambiguous on this issue, FRA's intent was to require that a retest of 
any brake found not to apply, or failing to remain applied, be 
conducted in a manner that is consistent with the way other brakes in 
the train are tested.
    In its petition, AAR objects to the final rule requirement 
contained in redesignated paragraph (e) of this section (paragraph (d) 
in the final rule) that the information provided to a locomotive 
engineer and the related record regarding the performance of a Class I 
brake test include the identity of the qualified person(s) performing 
the inspection. AAR contends that this information is not needed by a 
locomotive engineer to operate the train. AAR recommends that the 
requirement be deleted. FRA agrees that the information is not 
necessarily needed by the locomotive engineer to operate a train. 
However, FRA does believe the information is necessary to ensure 
accountability for the performance of the required Class I brake test 
and provides the engineer with confidence that the inspection was 
properly performed. Furthermore, the information provides FRA and the 
railroads with a readily accessible means to monitor an employee's 
performance and adds a measure of enforceability to the final rule's 
requirement to have qualified individuals perform these safety-critical 
inspections. Moreover, the identity of the person(s) conducting these 
types of inspections is currently maintained by virtually all railroads 
and is presently being provided to locomotive engineers by many 
railroads. Consequently, FRA is denying AAR's request to delete the 
requirement to provide the identity of the qualified person performing 
a Class I brake test as FRA's believes that the information provides 
accountability and enforceability and is consistent with existing 
practice on many railroads.

Section 232.207  Class IA Brake Tests--1,000-Mile Inspection

    Paragraphs (b)(1) and (b)(4) of this section are being modified so 
that the

[[Page 17575]]

references to Sec. 232.205 contained in these paragraphs conform with 
the redesignations being made to that section. As discussed in detail 
above, Sec. 232.205 of the final rule is being modified to include a 
new paragraph (b) and, thus, paragraphs (b) through (e) of that section 
in the final rule are being redesignated as paragraphs (c) through (f). 
Consequently, conforming changes are being made to paragraphs (b)(1) 
and (b)(4) of this section to alter the references from paragraph (b) 
of Sec. 232.205 to redesignated paragraph (c) of that section.

Section 232.209  Class II Brake Tests-Intermediate Inspection

    Paragraphs (b)(1) and (b)(3) of this section are being modified so 
that the references to Sec. 232.205 contained in these paragraphs 
conform with the redesignations being made to that section. As 
discussed in detail above, Sec. 232.205 of the final rule is being 
modified to include a new paragraph (b) and thus, paragraphs (b) 
through (e) of that section in the final rule are being redesignated as 
paragraphs (c) through (f). Consequently, conforming changes are being 
made to paragraphs (b)(1) and (b)(3) of this section to alter the 
references from paragraph (b) of Sec. 232.205 to redesignated paragraph 
(c) of that section.
    Paragraph (a)(3) of this section is being modified to conform with 
the new paragraph (a)(4) being added to this section. As discussed in 
detail above, Sec. 232.205 of the final rule is being modified to 
include a new paragraph (b) that explicitly describes the types of 
solid blocks of cars that may be added to a train without further 
direct visual inspection. Therefore, a new paragraph (a)(4) is being 
added to this section to conform with the language contained in the new 
clarifying paragraph (b) added to Sec. 232.205 of the final rule. It 
should also be noted that the last sentence of paragraph (f) of this 
section in the final rule is being removed for clarity. FRA believes 
that the last sentence of paragraph (f) may have created some of the 
confusion, expressed by AAR in its petition, regarding when Class III 
brake tests are to be performed. Thus, consistent with the discussion 
contained in the above analysis of Sec. 232.205 and because the 
language contained in the last sentence of paragraph (f) of this 
section duplicates the requirements contained in Sec. 232.211 regarding 
the performance of Class III brake tests, FRA is removing this 
sentence. See 66 FR 4204.

Section 232.211  Class III Brake Tests-Trainline Continuity Inspection.

    A new paragraph (a)(4) is being added to this section to conform 
with the language contained in the new clarifying paragraph (b) added 
to Sec. 232.205 of the final rule. As discussed in detail above, 
Sec. 232.205 of the final rule is being modified to include a new 
paragraph (b) that explicitly describes the types of solid blocks of 
cars that may be added to a train without further direct visual 
inspection. Thus, paragraph (a)(3) and the new paragraph (a)(4) of this 
section are intended to explain that when the types of solid blocks 
described in Sec. 205.205(b)(1) and (b)(2) are added to a train, the 
train is required to receive a Class III brake test pursuant to the 
provisions contained in this section. Paragraph (a)(4) of this section 
as contained in the final rule is being redesignated as paragraph 
(a)(5). What was paragraph (a)(5) of this section in the final rule is 
being moved to a new paragraph (d) in this section and is being 
modified as explained in detail below.
    Paragraph (b)(1) of this section is being amended in response to 
concerns raised in AAR's petition regarding the pressure at which Class 
III brake test are required to be performed. AAR contends that because 
the purpose of a Class III brake test is to ensure trainline continuity 
there is no reason to require the pressure at the rear of the train to 
be not less than 75 psi. AAR recommends that a Class III brake test be 
permitted to be performed when the air pressure at the rear of the 
train reaches 60 psi. AAR asserts that to require the trainline to be 
charged to a minimum of 75 psi rather than 60 psi will add 15 minutes 
to the charging time of a 100-car train prior to the test being 
performed and that there is no safety purpose served by requiring the 
higher trainline pressure. FRA agrees with the recommendation made in 
AAR's petition. As the sole purpose of a Class III brake test is to 
ensure that the train brake pipe is delivering air to the rear of the 
train, FRA believes that this can easily be ascertained with a rear 
brake pipe pressure of 60 psi. See 66 FR 4173-74. Moreover, FRA is not 
aware of any safety hazard caused by permitting this brake test to be 
performed at the lower rear car pressure. Furthermore, FRA also agrees 
that this allowance will help reduce train delay and reduce the amount 
of time public and private highway-rail grade crossings are blocked for 
the purposes of conducting this inspection. Consequently, FRA is 
amending paragraph (b)(1) of this section to permit Class III brake 
tests to be conducted when the pressure at the rear of the train is a 
minimum of 60 psi.
    As noted above, a new paragraph (d) is being added to this section 
to address concerns raised in AAR's petition regarding the performance 
of a Class III brake test when trainline continuity is broken but no 
changes to the train consist occur. AAR contends that the regulations 
as they existed prior to the issuance of the final rule only required 
the railroad to verify that brake pressure is being restored to the 
rear of the train after an otherwise unchanged train consist is 
recoupled. AAR believes this same allowance should be provided for in 
the final rule and contends that such a provision would further reduce 
the amount of time that grade crossings are required to be blocked. FRA 
agrees with the position of AAR. Part 232 as it existed prior to the 
issuance of the final rule did permit the recoupling of an unchanged 
train consist with a verification that the air pressure is being 
restored at the rear of the train. See 49 CFR 232.13(b). Thus, FRA 
agrees that the current practice within the industry is to conduct a 
rear pressure verification inspection when an otherwise unchanged train 
consist is recoupled. FRA also believes that normally, absent 
vandalism, if the train consist is not changed or altered by either the 
removal, replacement, or addition of equipment there should be no 
effect on the operation of the train's brake system that cannot be 
identified with a rear pressure verification inspection. FRA further 
agrees that permitting the method of testing suggested by AAR would 
reduce the time trains spend blocking public and private grade 
crossings. Therefore, FRA is adding a new paragraph (d) to this 
section, which requires verification that the brake pipe pressure of 
the train is being restored as indicated by a rear car gauge or end-of-
train device in circumstances where the continuity of the brake pipe is 
broken with the train consist otherwise remaining intact. It should be 
noted that the new paragraph clearly requires that a visual inspection 
of the application and release of the brakes on the rear car be 
conducted in the absence of a rear car gauge or end-of train-device.

Section 232.213  Extended Haul Trains

    AAR again raises concerns regarding the viability of the provisions 
contained in this section of the final rule. AAR continues to assert 
that the 1,500-mile limitation placed on extended haul trains provides 
little benefit to the industry. AAR reasserts its request to extend the 
mileage limitation contained in this section of the final rule. FRA 
believes that the preamble to the final

[[Page 17576]]

rule fully addresses the mileage limitation concerns raised by AAR and 
provides a complete discussion of FRA's rationale for limiting the 
distance these train are permitted to travel between brake inspection. 
See 66 FR 4119-21, 4174-75. FRA sees no need to reiterate that 
discussion in this document. Moreover, FRA continues to believe that 
AAR's concerns regarding the viability of the provisions contained in 
this section of the final rule are misplaced and inaccurate.
    Paragraphs (a)(6)and (a)(7) of this section are being modified in 
response to concerns raised in AAR's petition regarding the performance 
and documentation of inbound inspections on extended haul trains. AAR 
contends that if FRA's stated purpose for requiring inbound inspections 
on these trains is to assess the impact of the provisions on the safety 
of such train operations, then FRA should place a known time limit on 
this assessment. AAR's petition implies that three years would be a 
more than sufficient time period for FRA to evaluate any negative 
safety impacts arising from the provisions contained in this section. 
AAR's also contends that the inbound inspection and recordkeeping 
requirements contained in the final rule with regard to extended haul 
trains are major impediments to the viability of the provisions.
    FRA tends to agree with the concerns raised by AAR with regard to 
this portion of the extended haul provisions. The final rule made clear 
that the purpose of the inbound inspections on these trains is to 
facilitate the assessment of the safety and operational effects of the 
provisions contained in this section. See 66 FR 4174-75. Thus, FRA 
agrees that the requirement to perform inbound inspections should be 
for a limited period, during which such assessments can be conducted. 
FRA believes that the three-year period recommended by AAR in its 
petition would provide FRA and the railroads with sufficient time to 
evaluate the effects of these extended operations. Therefore, FRA is 
amending paragraphs (a)(6) and (a)(7) of this section to limit the 
requirement to perform inbound inspections on extended haul trains and 
maintain the related records to a period of three years from the 
applicability date of the provisions; i.e., until April 1, 2007. 
However, as FRA will utilize this three-year period to assess the 
safety and operational aspects of these extended operations, FRA must 
have a means by which it may extend the requirement to perform inbound 
inspections in the event the assessment discloses safety or operational 
hazards. Consequently, the amended provisions will permit FRA to 
continue to require the performance of inbound inspections on these 
trains should the evaluation reveal detrimental effects on the safety 
of these operations. The modifications make clear that FRA must publish 
a notice in the Federal Register of its decision to continue the 
inbound inspection requirement detailing the basis for such a 
determination. The modifications also make clear that the determination 
to extend the inbound inspection requirement will be based on the 
records required to be maintained under paragraph (a)(7) of this 
section and any other relevant safety data.

Section 232.215  Transfer Train Brake Tests

    Paragraph (a)(3) of this section is being modified so that the 
reference to Sec. 232.205 contained in this paragraph conforms with the 
redesignations being made to that section. As discussed in detail 
above, Sec. 232.205 of the final rule is being modified to include a 
new paragraph (b) and thus, paragraphs (b) through (e) of that section 
in the final rule are being redesignated as paragraphs (c) through (f). 
Consequently, a conforming change is being made to paragraph (a)(3) of 
this section to alter the reference from paragraph (b)(4) of 
Sec. 232.205 to redesignated paragraph (c)(4) of that section.

Section 232.217  Train Brake Tests Conducted Using Yard Air

    Paragraph (c) of this section is being modified so that the 
references to Sec. 232.205 contained in this paragraph conform with the 
redesignations being made to that section. As discussed in detail 
above, Sec. 232.205 of the final rule is being modified to include a 
new paragraph (b) and thus, paragraphs (b) through (e) of that section 
in the final rule are being redesignated as paragraphs (c) through (f). 
Consequently, conforming changes are being made to paragraph (c) of 
this section to alter the references from paragraph (b) of Sec. 232.205 
to redesignated paragraph (c) of that section.
    Paragraph (c)(3) of this section is also being modified in response 
to concerns raised in AAR's petition regarding the performance of the 
required leakage or air flow test of the brake system using yard air. 
AAR recommends that the leakage or air flow test, required to be 
performed at the pressure at which the train will be operated pursuant 
to the requirements contained in Sec. 232.205, be permitted to be 
performed at 80 psi when yard air is used to perform a leakage or air 
flow test pursuant to the Class I brake test requirements. AAR contends 
that the final rule requirement to perform these tests when the 
locomotives are attached if the yard air source is not capable of 
attaining the psi pressure at which the train will be operated (which 
for most trains is 90 psi) would result in a delay of at least five 
minutes per train. AAR asserts that current industry practice when 
using yard air is to perform the leakage or air flow tests at 80 psi 
and that this practice has not resulted in any known adverse impact on 
safety. AAR also notes that most yard air sources in use today are not 
capable of producing 90 psi as required for these tests under 
Sec. 232.205 of the final rule. Thus, AAR suggests that substantial 
train delay would result from waiting to perform these tests until 
locomotive power is attached.
    FRA agrees with the concerns raised by AAR in its petition and is 
amending paragraph (c)(3) of this section of the final rule to permit 
the leakage or air flow test to be conducted at 80 psi when yard air is 
used to conduct a required leakage or air flow test. FRA agrees that it 
has permitted railroads to perform these tests with yard air at 80 psi 
for years and is not aware of any detrimental effect on safety. FRA 
also agrees that most yard air sources currently being used in the 
industry lack the capability to produce air pressure at 90 psi. FRA 
further believes that the 10-psi allowance will not significantly 
affect the performance or accuracy of either the leakage or air flow 
test. It should be noted that the modified language requires that the 
leakage or air flow test be conducted when the locomotives are attached 
if the air pressure of the yard test device is anything less than 80 
psi. Furthermore, the allowance provided by the modification being made 
to this section applies only to instances when yard air test devices 
are used to conduct required leakage or air flow test. FRA intends to 
make clear that, if locomotives are used to perform these tests, then 
the train must be charged to the pressure at which it will be operated.

Section 232.219  Double Heading and Helper Service

    Paragraph (c)(2) of this paragraph is being modified in response to 
a request made by AAR in its petition regarding the resetting of a 
helper link device or similar technology. AAR requests that the final 
rule's requirement that a method to reset the device be provided in the 
cab of the helper locomotive be modified to permit the devices to reset 
automatically rather than be reset by the

[[Page 17577]]

locomotive engineer manually. FRA believes that allowance should be 
provided to permit the use of the automatic reset technology being 
incorporated into some helper link devices and similar technology. FRA 
believes the automatic reset capability would eliminate one more thing 
that a locomotive engineer must manually operate or control, thereby 
allowing the engineer to focus on a smaller set of tasks. Thus, 
paragraph (c)(2) of this section is being amended to require 
locomotives equipped with a helper link device or similar technology to 
be equipped with a means to reset the device in the cab of the 
locomotive manually or, in the alternative, have the device or 
locomotive equipped with a means to reset the device automatically. The 
amended final rule language makes clear that the automatic reset 
function must occur within a time interval that is no less than the 
time required to reset the device from the cab of the locomotive 
manually.
    In its petition, BLE suggests that the final rule be modified to 
require that a separate computer screen or switch be provided in the 
cab of a helper locomotive to pull the coupling pin or uncouple the 
helper unit from the train being pushed. BLE provided no rationale or 
discussion regarding the need for this added technology. Furthermore, 
BLE did not indicate whether such technology is currently available at 
a reasonable price. Moreover, FRA is not aware of a significant safety 
problem related to existing helper operations. Consequently, FRA is 
denying BLE's request to require the suggested technology on helper 
locomotives.

Subpart D--Periodic Maintenance and Testing Requirements

Section 232.303  General Requirements

    FRA is making a clarifying amendment to the definition of ``major 
repair'' contained in paragraph (a)(2) of this section in the final 
rule. On August 1, 2001, the requirements regarding periodic 
maintenance and testing contained in subpart D became applicable to the 
industry. When including the definitions of ``repair track'' and 
``major repair'' in the final rule, FRA's purpose was not to alter the 
basic approach to capturing cars for periodic brake testing at 
appropriate intervals as currently existed in the industry. FRA also 
intended for these and other definitions in the final rule to be 
consistent with FRA's existing enforcement policies and guidance. See 
66 FR 4178 and 66 FR 39684. On January 12, 2000, prior to the issuance 
of the final rule, FRA issued Technical Bulletin (TB) MP&E 00-01 
containing enforcement guidance regarding what constitutes a repair or 
shop track. The definitions of ``repair track'' and ``major repair'' 
contained in the final rule codified much of the guidance contained in 
the above noted TB.
    Subsequent to the issuance of TB MP&E 00-01, based on concerns 
raised by the industry, FRA issued oral guidance to its inspection 
forces explaining that the practice of changing wheels on intermodal 
cars located on intermodal loading ramps does not qualify the track as 
a repair track and that such activity did not constitute a major 
repair. Although this guidance was not formalized in the form of a TB, 
the guidance has been and continues to be FRA's enforcement position. 
Therefore, as FRA's primary intent when issuing the final rule 
definitions was to remain consistent with existing enforcement guidance 
and policies, FRA did not intend to consider the changing of wheels on 
intermodal cars at intermodal loading ramps to constitute a ``major 
repair'' for the purposes of Sec. 232.203(a)(2) when issuing the final 
rule. On October 19, 2001, FRA issued TB MP&E 01-04 containing the 
above noted guidance to its field inspection forces. Consequently, the 
modification to this section merely incorporates enforcement guidance 
existing prior to the issuance of the final rule and makes clear that 
trackage at an intermodal loading ramp was not intended to be and 
should not be considered a ``repair track'' under Sec. 232.303(a)(1) 
when only wheel change-outs (whether an air jack is used or not) and 
other minor repairs are performed on such trackage. However, if major 
repairs are performed on the cars at the loading ramp, then the 
definition of ``shop or repair track'' contained in Sec. 232.303(a)(1) 
will apply and the car(s) should be handled accordingly. It should also 
be noted that if a wheel change-out is due to the wheel having any of 
the defective conditions identified in Sec. 232.305(b)(5), then a 
single car test is to be conducted on that car pursuant to the 
requirements contained in this subpart regardless of the location where 
the defect is discovered or the wheel is changed.

Subpart E--End-of-Train Devices

Section 232.407  Operations Requiring Use of Two-Way End-of-Train 
Devices; Prohibition on Purchase of Nonconforming Devices

    A new paragraph (g)(2) is being added to this section in response 
to concerns raised in AAR's petition regarding the operation of a train 
when the two-way EOT fails while the train is operating on a section of 
track with an average grade of two percent or greater for a distance of 
two continuous miles. AAR contends that although the preamble to the 
final rule discusses the operation of trains on such grades when 
communication failures occur on the provided alternative methods of 
operation over heavy grades, the final rule fails to provide any 
provisions for operating on such grades when a failure of a two-way EOT 
occurs while actually operating on the heavy grade. AAR recommends that 
provisions similar to those provided for the alternative methods of 
operation should also be included to address a failure of the two-way 
EOT while a train is in the process of traversing a heavy grade 
averaging two percent for two continuous miles.
    FRA shares the concerns raised by AAR in its petition and believes 
that clarification of the requirements covering these circumstances 
should be addressed in the final rule. FRA believes that the preamble 
to the final rule makes clear that the stopping of trains in 
circumstances where the two-way EOT fails while a train is traversing a 
heavy grade should be done in accordance with the railroad's operating 
rules. See 66 FR 4184. When issuing the two-way EOT requirements, FRA 
did not intend for engineers to place themselves in unsafe situations 
when they encounter an en route failure of the device when traversing a 
heavy grade. Although the existing rule prohibits the operation of a 
train over certain heavy grades when a failure of the device occurs en 
route, FRA did not intend that the train be immediately stopped when a 
failure of the device occurs while operating on a heavy grade. Rather, 
FRA intended for the locomotive engineer to conduct the movement in 
accordance with the railroad's operating rules for bringing the train 
safely to a stop at the first available location. Therefore, safety may 
require that the train continue down the grade or to a specific siding 
rather than come to an immediate halt. Consequently, a new paragraph 
(g)(2) is being added to the final rule which makes clear that, if a 
two-way EOT fails while a train is traversing a section of track with 
an average grade of two percent for two continuous miles, the train is 
to be brought to a stop at the first available location in accordance 
with a railroad's operating rules. FRA believes this clarification is 
consistent with FRA's intent and expectations when issuing the two-way 
EOT regulations.

[[Page 17578]]

Section 232.409  Inspection and Testing of End-of-Train Devices

    Paragraph (c) of this section is being modified to read the way the 
paragraph read when initially included in the final rule issued on 
January 17, 2001. Prior to May 31, 2001, this paragraph required that, 
if the person conducting the test of the two-way end-of-train device on 
a train is someone other than a train crew member, the locomotive 
engineer of the train must be notified of the name of the person 
conducting the test and a record must be maintained, in the cab of the 
controlling locomotive, containing the name of the person conducting 
the test. See 66 FR 4210. Although this requirement originally had a 
compliance date of May 31, 2001, FRA deferred the compliance date of 
the requirement until further notice in order to allow FRA an 
opportunity to respond to AAR's petition for reconsideration which 
questioned the need for this specific provision. See 66 FR 29501 (May 
31, 2001). AAR's petition questions the need for the locomotive 
engineer to be informed of the name of the person testing the two-way 
EOT. AAR recommends elimination of the requirement.
    The preamble to the final rule makes clear that the purpose of the 
requirements to provide the locomotive engineer with the date and time 
of the test, the location where the test was performed, and the name of 
the person performing the test is to ensure that locomotive engineers 
are provided sufficient information to confirm that the devices are 
properly inspected and tested and to provide locomotive engineers with 
a measure of confidence that the devices will work as intended. See 66 
FR 4184. FRA continues to believe all of the information originally 
contemplated by the final rule is necessary to ensure accountability 
for performing proper inspections and tests of the devices. The 
information also provides both FRA and the railroads with a means to 
monitor the inspection practices of individuals responsible for 
performing inspections and tests required by the final rule. 
Furthermore, as AAR's petition notes that railroads maintain the 
required information, FRA sees little burden being imposed by the final 
rule in requiring that the information to be provided to the locomotive 
engineer. Consequently, the language of paragraph (c) of this section 
is being revised to read the same as it did when the final rule was 
issued on January 17, 2001. See 66 FR 4210.
    Paragraph (d) of this section of the final rule is being amended in 
response to concerns raised in a late-filed petition submitted by UP 
regarding the periodic calibration of two-way EOT devices. In its 
petition UP recommends that the periodic calibration period be changed 
from every 365 days as required by the final rule to every 368 days. UP 
contends that a 368-day period would be consistent with the 92-day 
periodic inspection cycle required for locomotive by part 229. See 49 
CFR 229.23. UP requests this change to avoid having to take locomotives 
out of service to perform the calibration of the two-way EOT device 
head-end. UP also requests that the 368-day calibration period not 
begin running until the unit is placed back in service after being 
calibrated. UP contends that several railroads remove the head-end 
units from their locomotives to have the annual testing and calibration 
performed by outside parties. After the calibration is complete, the 
unit is returned to the railroad and may remain in storage for a 
considerable length of time prior to being placed back in service on a 
locomotive.
    FRA tends to agree with the issues and concerns raised by UP in its 
petition. FRA agrees that it is only logical to make the calibration 
period of two-way EOT devices coincide with the periodic inspection 
interval for locomotives. FRA also agrees that the calibration period 
for the devices should begin from the time the devices are actually 
placed back in service after receiving the required testing and 
calibration. However, FRA believes that EOT devices should not be 
permitted to be stored indefinitely prior to being placed in service 
without being retested and calibrated, if necessary. FRA believes that 
the 92-day periodic inspection cycle for locomotives provides an 
adequate out-of-service or ``shelf-life'' period. This would allow 
head-end units to be removed at one periodic inspection for testing and 
calibration, and then be replaced at the next periodic inspection for 
that locomotive. FRA does not believe that a 92-day shelf life will 
impact the operation or calibration of the devices and will provide 
railroads with flexibility in meeting the testing and calibration 
requirements contained in the final rule. It should be noted, that FRA 
has left it to the railroads to determine how to track and record any 
shelf life. Consequently, paragraph (d) of this section of the final 
rule is being amended by extending the testing and calibration to 368 
days and by providing up to a 92-day shelf-life for the devices after 
being properly tested and calibrated.
    It should be noted that AAR raised a concern regarding the 
discussion related to bench testing of EOT devices contained in the 
preamble to the final rule. See 66 FR 4185. Although agreeing with FRA 
that regulations on bench testing were unnecessary, AAR objected to 
FRA's implication that the bench test of an EOT device transported in a 
truck should remain valid for only one hour. FRA believes that AAR has 
misconstrued the discussion contained in the preamble to the final rule 
regarding the reasonable time period for which a bench test of the 
device would remain valid. In the preamble discussion, FRA was merely 
attempting to point out that what constitutes a reasonable time between 
bench testing and installation of the devices varies based upon the 
environment and conditions to which the device is exposed after being 
bench tested. The preamble was attempting to illustrate that 
mistreatment of the devices after testing would severely limit the time 
for which a bench test would remain valid. See 66 FR 4185. FRA did not 
intend to imply that the bench test on any device transported in a 
vehicle would remain valid for only one hour. The focus of the 
determination should be on the handling of device and the conditions to 
which the device is exposed subsequent to conducting the bench test.

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. Conforming changes are 
being made to the schedule of civil penalties based on the changes 
being made to the final rule discussed in detail above.

Appendix B to Part 232--Part 232 prior to May 31, 2001

    A conforming change is being made to Sec. 232.13(d)(2)(i) of 
part 232 as it existed prior to May 31, 2001. Section 
232.13(d)(2)(i) of part 232 as it existed prior to May 31, 2001, 
incorrectly cites to Sec. 232.13(c)-(j) as the section under which 
cars added to a train are to be inspected. See 66 FR 4216. This 
typographical error was made when part 232 was revised in 1986. See 
51 FR 17303 (May 9, 1986). When part 232 was originally issued, 
Sec. 232.13(d)(2)(i) correctly cited a reference to Sec. 232.12 (c)-
(j). See 33 FR 19679 (December 25, 1968). Compare Sec. 232.13(d)(1), 
(d)(2)(ii) and (e)(2), of part 232 as it existed prior to May 31, 
2001, all of which correctly cite the initial terminal test 
provisions in Sec. 232.12(c)-(j). Consequently, FRA is correcting 
this typographical error for clarity purposes in this document.
    Paragraphs (a)(2)(iii) and (b)(3) of Sec. 232.17 are being 
amended in response to concerns raised in RPCA's petition regarding 
the accessibility and availability of the testing documents 
referenced in these two paragraphs. RPCA contends that the 
referenced standards and documents are no

[[Page 17579]]

longer available from the sources indicated in Sec. 232.17 as it 
existed prior to May 31, 2001. FRA is amending paragraph (a)(2)(iii) 
of Sec. 232.17 to clarify that the single car test required to be 
performed pursuant to this paragraph may be conducted in accordance 
with the applicable AAR Code of Tests or the APTA standard 
referenced in 49 CFR 238.311(a). FRA has retained the requirement to 
utilize the applicable AAR standard because FRA recognizes that the 
new APTA standard does not address every type of brake system used 
on many tourist and excursion operations. Thus, where the referenced 
APTA standard related to performing single car tests on certain 
passenger equipment does not address a particular brake system, FRA 
would expect the applicable AAR standard to be utilized. Paragraph 
(b)(3) of Sec. 232.17 is being amended by inserting FRA's current 
address as the location where the standards and procedures 
referenced in Sec. 232.17 can be obtained. FRA believes it has 
copies of all the material referenced in this section and can 
provide them to interested parties upon request.
    In its petition, RPCA also sought clarification of the 
periodicity for performing the required cleaning, repair, 
lubrication, and testing required by Sec. 232.17(b) as it existed 
prior to May 31, 2001. The referenced AAR Standard S-045 contains 
the periodicity for performing the required attention. FRA would 
expect equipment used in tourist, historic, scenic, and excursion 
operations to conduct the required maintenance in accordance with 
that referenced AAR standard. If such equipment were to be hauled in 
a freight train covered by the new part 232 or in a passenger train 
covered by part 238 of this chapter, then FRA would expect the 
equipment to meet the testing and inspection requirements contained 
in those regulations. FRA does not believe this rulemaking is the 
proper forum for changing or modifying the inspection, testing, and 
maintenance requirements applicable to tourist, historic, scenic, 
and excursion operations. In the preamble to the final rule FRA 
noted that it has established a Tourist and Historic Railroads 
Working Group formed under Railroad Safety Advisory Committee to 
specifically address the applicability of FRA's regulations to these 
unique types of operations. FRA made clear that any requirements 
issued by FRA for these types of operations would be part of a 
separate rulemaking proceeding. See 66 FR 4145-46.

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 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 is not easily 
quantified and does not significantly alter FRA's original analysis of 
the costs and benefits associated with the original final rule.
    In the detailed discussion of AAR's concerns regarding the final 
rule's regulatory evaluation contained above, FRA acknowledges that it 
erred in the final rule's RIA when estimating the safety benefits to be 
derived from the specific accidents included in the analysis. (See 
preamble above: ``I. Discussion of Regulatory Evaluation Concerns.'') 
However, FRA believes that the error and resulting reduction in the 
safety benefits does not in anyway compromise the integrity of the 
analysis or impact the decisions made by FRA and does not change the 
necessity for any of the provisions contained in the final rule. 
Furthermore, FRA finds all the other economic issues raised by AAR in 
its petition for reconsideration to be either incorrect, unfounded, or 
unpersuasive. FRA continues to believe that it has been both reasonable 
in its cost estimates and extremely conservative in its estimates of 
benefits related to the final rule. Moreover, FRA believes that the 
modifications and clarifications being made to the final rule in this 
response to the petitions for reconsideration, will not only reduce the 
potential regulatory costs but will also increase the benefits 
associated with the final rule. Therefore, the costs and benefits 
quantified in the final rule's RIA are even more conservative than when 
originally calculated by FRA. Consequently, FRA strongly supports the 
economic arguments and estimates advanced in its RIA for the 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 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.

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's 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.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and

[[Page 17580]]

before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. 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 
result in the expenditure, in the aggregate, of $100,000,000 or more in 
any one year, and thus preparation of such a statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 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. 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, FRA has determined that this document will 
not have a significant adverse effect on the supply, distribution, or 
use of energy. 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 to read 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 A--General--[Amended]

    2. Section 232.5 is amended by revising, introductory text and the 
definitions of Brake, effective and Solid block of cars:


Sec. 232.5  Definitions.

    The definitions in this section are intended to clarify the meaning 
of terms used in this part as it becomes applicable pursuant to 
Sec. 232.1(b) and (c).
* * * * *
    Brake, effective means a brake that is capable of producing its 
nominally designed retarding force on the train. A car's air brake is 
not considered effective if it is not capable of producing its 
nominally designed retarding force or if its piston travel exceeds:
    (1) 10\1/2\ inches for cars equipped with nominal 12-inch stroke 
brake cylinders; or
    (2) The piston travel limit indicated on the stencil, sticker, or 
badge plate for that brake cylinder.
* * * * *
    Solid block of cars means two or more freight cars coupled together 
and added to or removed from a train as a single unit.
* * * * *

    3. Section 232.15 is amended by revising paragraphs (b)(1) and (g) 
to read as follows:


Sec. 232.15  Movement of defective equipment.

* * * * *
    (b) Tagging of defective equipment.
    (1) At the place where the railroad first discovers the defect, a 
tag or card shall be placed on both sides of the defective equipment, 
except that defective locomotives may have the tag or card placed in 
the cab of the locomotive. In lieu of a tag or card, an automated 
tracking system approved for use by FRA shall be provided. The tag, 
card, or automated tracking system shall contain the following 
information about the defective equipment:
    (i) The reporting mark and car or locomotive number;
    (ii) The name of the inspecting railroad;
    (iii) The name and job title of the inspector;
    (iv) The inspection location and date;
    (v) The nature of each defect;
    (vi) A description of any movement restrictions;
    (vii) The destination where the equipment will be repaired; and
    (viii) The signature, or electronic identification, of the person 
reporting the defective condition.
* * * * *
    (g) Designation of repair locations. Based on the guidance detailed 
in paragraph (f) of this section and consistent with other requirements 
contained in this part, a railroad may submit a detailed petition, 
pursuant to the special approval procedures contained in Sec. 232.17, 
containing a plan designating locations where brake system repairs will 
be performed. Approval of such plans shall be made accordance with the 
procedures contained in Sec. 232.17, and shall be subject to any 
modifications determined by FRA to be necessary to ensure consistency 
with the requirements and guidance contained in this part.
    4. Section 232.17 is amended by revising paragraphs (a), (b) 
introductory text, (b)(2), (b)(3), (d)(2) intro text, (d)(2)(i), 
(g)(1), and (g)(2) to read as follows:


Sec. 232.17  Special approval procedure.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of a plan under 
Sec. 232.15(g), an alternative standard under Sec. 232.305, and for 
special approval of pre-revenue service acceptance testing plans under 
subpart F of this part.
    (b) Petitions for special approval of a plan or an alternative 
standard. Each petition for special approval of a plan under 
Sec. 232.15(g) or an alternative standard shall contain:
* * * * *
    (2) The proposed plan pursuant to Sec. 232.15(g) or the proposed 
alternative standard, in detail, to be substituted for the particular 
requirement of this part;
    (3) Appropriate data or analysis, or both, for FRA to consider in 
determining whether the plan is consistent with the guidance contained 
in Sec. 232.15(f) and the requirements of this part or whether the 
alternative standard will provide at least an equivalent level of 
safety; and
* * * * *
    (d) * * *
    (2) Service of each petition for special approval of a plan or an 
alternative standard submitted under paragraph (b) of this section 
shall be made on the following:
    (i) Designated representatives of the employees of the railroad 
submitting a plan pursuant to Sec. 232.15(g) or

[[Page 17581]]

designated representatives of the employees responsible for the 
equipment's operation, inspection, testing, and maintenance under this 
part;
* * * * *
    (g) * * *
    (1) If FRA finds that the petition complies with the requirements 
of this section and that the proposed plan under Sec. 232.15(g), the 
alternative standard, or the pre-revenue service plan is acceptable and 
justified, the petition will be granted, normally within 90 days of its 
receipt. If the petition is neither granted nor denied within 90 days, 
the petition remains pending for decision. FRA may attach special 
conditions to the approval of any petition. Following the approval of a 
petition, FRA may reopen consideration of the petition for cause.
    (2) If FRA finds that the petition does not comply with the 
requirements of this section and that the proposed plan under 
Sec. 232.15(g), the alternative standard, or the pre-revenue service 
plan is not acceptable or justified, the petition will be denied, 
normally within 90 days of its receipt.
* * * * *

    5. Section 232.103 is amended as follows:
    a. Paragraph (p) is removed; and
    b. Paragraphs (n)(2), (n)(3), and (o) are revised to read as 
follows:


Sec. 232.103  General requirements for all train brake systems.

* * * * *
    (n) * * *
    (2) Except for equipment connected to a source of compressed air 
(e.g., locomotive or ground air source), prior to leaving equipment 
unattended, the brake pipe shall be reduced to zero at a rate that is 
no less than a service rate reduction, and the brake pipe vented to 
atmosphere by leaving the angle cock in the open position on the first 
unit of the equipment left unattended.
    (3) Except for distributed power units, the following requirements 
apply to unattended locomotives:
    (i) All hand brakes shall be fully applied on all locomotives in 
the lead consist of an unattended train.
    (ii) All hand brakes shall be fully applied on all locomotives in 
an unattended locomotive consist outside of yard limits.
    (iii) At a minimum, the hand brake shall be fully applied on the 
lead locomotive in an unattended locomotive consist within yard limits.
    (iv) A railroad shall develop, adopt, and comply with procedures 
for securing any unattended locomotive required to have a hand brake 
applied pursuant to paragraph (n)(3)(i) through (n)(3)(iii) when the 
locomotive is not equipped with an operative hand brake.
* * * * *
    (o) Air pressure regulating devices shall be adjusted for the 
following pressures:

------------------------------------------------------------------------
                       Locomotives                              PSI
------------------------------------------------------------------------
(1) Minimum brake pipe air pressure:
    Road Service........................................              90
    Switch Service......................................              60
(2) Minimum differential between brake pipe and main                  15
 reservoir air pressures, with brake valve in running
 position...............................................
(3) Safety valve for straight air brake.................           30-55
(4) Safety valve for LT, ET, No. 8-EL, No. 14 EI, No. 6-           30-68
 DS, No. 6-BL and No. 6-SL equipment....................
(5) Safety valve for HSC and No. 24-RL equipment........           30-75
(6) Reducing valve for independent or straight air brake           30-50
(7) Self-lapping portion for electro-pneumatic brake                  50
 (minimum full application pressure)....................
(8) Self-lapping portion for independent air brake (full           30-50
 application pressure)..................................
(9) Reducing valve for high-speed brake (minimum).......              50
------------------------------------------------------------------------

* * * * *

    6. Section 232.109 is amended by revising paragraphs (a), (g), (h), 
and (j)(2) to read as follows:


Sec. 232.109  Dynamic brake requirements.

    (a) Except as provided in paragraph (i) of this section, a 
locomotive engineer shall be informed of the operational status of the 
dynamic brakes on all locomotive units in the consist at the initial 
terminal for a train and at other locations where a locomotive engineer 
first begins operation of a train. The information required by this 
paragraph may be provided to the locomotive engineer by any means 
determined to be appropriate by the railroad; however, a written or 
electronic record of the information shall be maintained in the cab of 
the controlling locomotive.
* * * * *
    (g) All locomotives equipped with dynamic brakes and ordered on or 
after April 1, 2006, or placed in service for the first time on or 
after October 1, 2007, shall be designed to:
    (1) Conduct an electrical integrity test of the dynamic brake to 
determine if electrical current is being received at the grids on the 
system; and
    (2) Display in real-time in the cab of the controlling (lead) 
locomotive the total train dynamic brake retarding force available in 
the train.
    (h) All rebuilt locomotives equipped with dynamic brakes and placed 
in service on or after April 1, 2004, shall be designed to:
    (1) Conduct an electrical integrity test of the dynamic brake to 
determine if electrical current is being received at the grids on the 
system; and
    (2) Display either the train deceleration rate or in real-time in 
the cab of the controlling (lead) locomotive the total train dynamic 
brake retarding force available in the train.
* * * * *
    (j) * * *
    (2) Include a ``miles-per-hour-overspeed-stop'' rule. At a minimum, 
this rule shall require that any train when descending a section of 
track with an average grade of one percent or greater over a distance 
of three continuous miles shall be immediately brought to a stop, by an 
emergency brake application if necessary, when the train's speed 
exceeds the maximum authorized speed for that train by more than 5 
miles per hour. A railroad shall reduce the 5-miles-per-hour-overspeed-
stop restriction if validated research indicates the need for such a 
reduction. A railroad may increase the 5-miles-per-hour-overspeed 
restriction only with approval of FRA and based upon verifiable data 
and research.
* * * * *

    7. Section 232.203 is amended as follows:
    a. Paragraph (e)(6) is removed;
    b. Paragraphs (e)(7) through (e)(9) are redesignated as paragraphs 
(e)(6) through (e)(8) respectively; and
    c. Paragraphs (b)(6) and (b)(8) are revised to read as follows:


Sec. 232.203  Training requirements.

* * * * *

[[Page 17582]]

    (b) * * *
    (6) An employee hired or working prior to June 1, 2001, for a 
railroad or contractor covered by this part will be considered to have 
met the requirements, or a portion of the requirements, contained in 
paragraphs (b)(3) through (b)(5) of this section if the employee 
receives training and testing on the specific Federal regulatory 
requirements contained in this part related to the performance of the 
tasks which the employee will be responsible for performing; and if:
    (i) The training or testing, including efficiency testing, 
previously received by the employee is determined by the railroad or 
contractor to meet the requirements, or a portion of the requirements, 
contained in paragraphs (b)(3) through (b)(5) of this section and such 
training or testing can be documented as required in paragraphs (e)(1) 
through (e)(4) of this section;
    (ii) The employee passes an oral, written, or practical, ``hands-
on'' test developed or adopted by the railroad or contractor which is 
determined by the railroad or contractor to ensure that the employee 
possesses the skills and knowledge, or a portion of the skills or 
knowledge, required in paragraphs (b)(3) through (b)(5) of this section 
and the test is documented as required in paragraph (e) of this 
section; or
    (iii) The railroad or contractor certifies that a group or segment 
of its employees has previously received training or testing determined 
by the railroad or contractor to meet the requirements, or a portion of 
the requirements, contained in paragraphs (b)(3) through (b)(5) of this 
section and complete records of such training are not available, 
provided the following conditions are satisfied:
    (A) The certification is placed in the employee's training records 
required in paragraph (e) of this section;
    (B) The certification contains a brief description of the training 
provided and the approximate date(s) on which the training was 
provided; and
    (C) Any employee determined to be trained pursuant to this 
paragraph is given a diagnostic oral, written, or ``hands-on'' test 
covering that training for which this paragraph is relied upon at the 
time the employee receives his or her first periodic refresher training 
under paragraph (b)(8) of this section.
    (iv) Any combination of the training or testing contained in 
paragraphs (b)(6)(i) through (b)(6)(iii) of this section and paragraphs 
(b)(3) through (b)(5) of this section.
* * * * *
    (8) Require periodic refresher training, at an interval not to 
exceed three years, that includes classroom and ``hands-on'' training, 
as well as testing; except that employees that have completed their 
initial training under paragraphs (b)(3) through (b)(6) of this part 
prior to April 1, 2004, shall not be required to complete their first 
periodic refresher training until four years after the completion of 
their initial training, and every three years thereafter. Observation 
and evaluation of actual performance of duties may be used to meet the 
``hands-on'' portion of this requirement, provided that such testing is 
documented as required in paragraph (e) of this section; and
* * * * *

    8. Section 232.205 is amended as follows:
    a. Paragraph (f) is removed;
    b. Paragraphs (b) through (e) are redesignated as paragraphs (c) 
through (f) respectively;
    c. A new paragraph (b) is added;
    d. The introductory text of paragraph (a) is revised; and
    e. Paragraph (a)(2)(i) and redesignated paragraphs (c)(2) and 
(c)(4) are revised to read as follows:


Sec. 232.205  Class I brake test-initial terminal inspection.

    (a) Each train and each car in the train shall receive a Class I 
brake test as described in paragraph (c) of this section by a qualified 
person, as defined in Sec. 232.5, at the following points:
* * * * *
    (2) * * *
    (i) Adding a single car or a solid block of cars, except as 
provided in paragraph (b)(2) of this section;
* * * * *
    (b) Except as provided in Sec. 232.209, each car and each solid 
block of cars added to a train shall receive a Class I brake test as 
described in paragraph (c) of this section at the location where it is 
added to a train unless:
    (1) The solid block of cars is comprised of cars from a single 
previous train, the cars of which have previously received a Class I 
brake test and have remained continuously and consecutively coupled 
together with the train line remaining connected, other than for 
removing defective equipment, since being removed from its previous 
train and have not been off air for more than four hours; or
    (2) The solid block of cars is comprised of cars from a single 
previous train, the cars of which were required to be separated into 
multiple solid blocks of cars due to space or trackage constraints at a 
particular location when removed from the previous train, provided the 
cars have previously received a Class I brake test, have not been off 
air more than four hours, and the cars in each of the multiple blocks 
of cars have remained continuously and consecutively coupled together 
with the train line remaining connected, except for the removal of 
defective equipment. Furthermore, these multiple solid blocks of cars 
shall be added to a train in the same relative order (no 
reclassification) as when removed from the previous train, except for 
the removal of defective equipment.
* * * * *
    (c) * * *
    (2) The inspector(s) shall take a position on each side of each car 
sometime during the inspection process so as to be able to examine and 
observe the functioning of all moving parts of the brake system on each 
car in order to make the determinations and inspections required by 
this section. A ``roll-by'' inspection of the brake release as provided 
for in paragraph (b)(8) of this section shall not constitute an 
inspection of that side of the train for purposes of this requirement;
* * * * *
    (4) The brakes on each car shall apply in response to a 20-psi 
brake pipe service reduction and shall remain applied until a release 
of the air brakes has been initiated by the controlling locomotive or 
yard test device. The brakes shall not be applied or released until the 
proper signal is given. A car found with brakes that fail to apply or 
remain applied may be retested and remain in the train if the retest is 
conducted at an air pressure that is within 15 psi of the air pressure 
at which the train will be operated. The retest may be conducted from 
either the controlling locomotive, the head-end of the consist, or with 
a suitable test device, as described in Sec. 232.217(a), positioned at 
one end of the car(s) being retested, and the brakes shall remain 
applied until a release is initiated after a period which is no less 
than three minutes. If the retest is performed at the car(s) being 
retested with a suitable device, the compressed air in the car(s) shall 
be depleted prior to disconnecting the hoses between the car(s) to 
perform the retest;
* * * * *

    9. Section 232.207 is amended by revising paragraphs (b)(1) and 
(b)(4) to read as follows:


Sec. 232.207  Class IA brake tests--1,000-mile inspection.

* * * * *
    (b) * * *
    (1) Brake pipe leakage shall not exceed 5 psi per minute, or air 
flow

[[Page 17583]]

shall not exceed 60 cubic feet per minute (CFM). The brake pipe leakage 
test or air flow method test shall be conducted pursuant to the 
requirements contained in Sec. 232.205(c)(1);
* * * * *
    (4) The brakes on each car shall apply in response to a 20-psi 
brake pipe service reduction and shall remain applied until the release 
is initiated by the controlling locomotive. A car found with brakes 
that fail to apply or remain applied may be retested and remain in the 
train if the retest is conducted as prescribed in Sec. 232.205(c)(4); 
otherwise, the defective equipment may only be moved pursuant to the 
provisions contained in Sec. 232.15, if applicable;
* * * * *

    10. Section 232.209 is amended as follows:
    a. The last sentence of paragraph (d) is removed;
    b. A new paragraph (a)(4) is added; and
    c. Paragraphs (a)(3), (b)(1), and (b)(3) are revised to read as 
follows:


Sec. 232.209  Class II brake tests-intermediate inspection.

    (a) * * *
    (3) Except as provided in paragraph (a)(4) of this section, each 
solid block of cars that is comprised of cars from only one previous 
train, the cars of which have not remained continuously and 
consecutively coupled together with the train line remaining connected 
since being removed from the previous train. A solid block of cars is 
considered to have remained continuously and consecutively coupled 
together with the train line remaining connected since being removed 
from the previous train if it has been changed only by removing 
defective equipment.
    (4) Each solid block of cars that is comprised of cars from a 
single previous train, the cars of which were required to be separated 
into multiple solid blocks of cars due to space or trackage constraints 
at a particular location when removed from the previous train, if they 
are not added in the same relative order as when removed from the 
previous train or if the cars in each of the multiple blocks of cars 
have not remained continuously and consecutively coupled together with 
the train line remaining connected, except for the removal of defective 
equipment.
    (b) * * *
    (1) Brake pipe leakage shall not exceed 5 psi per minute, or air 
flow shall not exceed 60 cubic feet per minute (CFM). The brake pipe 
leakage test or air flow method test shall be conducted on the entire 
train pursuant to the requirements contained in Sec. 232.205(c)(1);
* * * * *
    (3) The brakes on each car added to the train and on the rear car 
of the train shall be inspected to ensure that they apply in response 
to a 20-psi brake pipe service reduction and remain applied until the 
release is initiated from the controlling locomotive. A car found with 
brakes that fail to apply or remain applied may be retested and remain 
in the train if the retest is conducted as prescribed in 
Sec. 232.205(c)(4); otherwise, the defective equipment may only be 
moved pursuant to the provisions of Sec. 232.15, if applicable;
* * * * *
    11. Section 232.211 is amended as follows:
    a. A new paragraph (d) is added; and
    b. Paragraphs (a)(4), (a)(5), and (b)(1) are revised to read as 
follows:


Sec. 232.211  Class III brake tests-trainline continuity inspection.

    (a) * * *
    (4) At a point other than the initial terminal for the train, where 
a solid block of cars that is comprised of cars from a single previous 
train is added to a train, provided that the solid block of cars was 
required to be separated into multiple solid blocks of cars due to 
space or trackage constraints at a particular location when removed 
from the previous train, and the cars have previously received a Class 
I brake test, have not been off air more than four hours, and the cars 
in each of the multiple blocks of cars have remained continuously and 
consecutively coupled together with the train line remaining connected, 
except for the removal of defective equipment. Furthermore, these 
multiple solid blocks of cars must be added to the train in the same 
relative order (no reclassification) as when removed from the previous 
train, except for the removal of defective equipment; or
    (5) At a point other than the initial terminal for the train, where 
a car or a solid block of cars that has received a Class I or Class II 
brake test at that location, prior to being added to the train, and 
that has not been off air for more than four hours is added to a train.
    (b) * * *
    (1) The train brake system shall be charged to the pressure at 
which the train will be operated, and the pressure at the rear of the 
train shall not be less than 60 psi, as indicated at the rear of the 
train by an accurate gauge or end-of-train device;
* * * * *
    (d) Whenever the continuity of the brake pipe is broken or 
interrupted with the train consist otherwise remaining unchanged, it 
must be determined that the brake pipe pressure of the train is being 
restored as indicated by a rear car gauge or end-of-train device prior 
to proceeding. In the absence of an accurate rear car gauge or end-of-
train telemetry device, it must be determined that the brakes on the 
rear car of the train apply and release in response to air pressure 
changes made in the controlling locomotive.

    12. Section 232.213 is amended by adding three new sentences to the 
end of paragraph (a)(6) and one new sentence to the end of paragraph 
(a)(7) to read as follows:


Sec. 232.213  Extended haul trains.

    (a) * * *
    (6) * * * After April 1, 2007, the inbound inspection described in 
this paragraph shall not be required unless FRA provides notification 
to the industry extending the requirement to perform inbound 
inspections on extended haul trains. FRA's determination to extend the 
inbound inspection requirement will be based on the records required to 
be maintained pursuant to paragraph (a)(7) of this section and any 
other relevant safety data. FRA's notification will be published in the 
Federal Register and will contain the basis of any determination.
    (7) * * * After April 1, 2007, the records described in this 
paragraph need not be maintained unless FRA provides the notification 
required in paragraph (a)(6) of this section extending the requirement 
to conduct inbound inspections on extended haul trains.
* * * * *

    13. Section 232.215 is amended by revising paragraph (a)(3) to read 
as follows:


Sec. 232.215  Transfer train brake tests.

    (a) * * *
    (3) An inspection shall be made to determine that the brakes on 
each car apply and remain applied until the release is initiated by the 
controlling locomotive. A car found with brakes that fail to apply or 
remain applied may be retested and remain in the train if the retest is 
conducted as prescribed in Sec. 232.205(c)(4); otherwise, the defective 
equipment may be moved only pursuant to the provisions contained in 
Sec. 232.15, if applicable;
* * * * *
    14. Section 232.217 is amended by revising the introductory text of 
paragraph (c) and by revising paragraphs (c)(1) and (c)(3) to read as 
follows:

[[Page 17584]]

Sec. 232.217  Train brake tests conducted using yard air.

* * * * *
    (c) Except as provided in this section, when yard air is used the 
train air brake system must be charged and tested as prescribed by 
Sec. 232.205(c) and when practicable should be kept charged until road 
motive power is coupled to train, after which, a Class III brake test 
shall be performed as prescribed by Sec. 232.211.
    (1) If the cars are off air for more than four hours, the cars 
shall be retested in accordance with Sec. 232.205(c) through (f).
* * * * *
    (3) If the air pressure of the yard test device is less than 80 
psi, then a brake pipe leakage or air flow test shall be conducted at 
the operating pressure of the train when the locomotives are attached 
in accordance with Sec. 232.205(c)(1).
* * * * *

    15. Section 232.219 is amended by revising paragraph (c)(2) to read 
as follows:


Sec. 232.219  Double heading and helper service.

* * * * *
    (c) * * *
    (2) A method to reset the device shall be provided in the cab of 
the helper locomotive that can be operated from the engineer's usual 
position during operation of the locomotive. Alternatively, the helper 
locomotive or the device shall be equipped with a means to 
automatically reset the device, provided that the automatic reset 
occurs within the period time permitted for manual reset of the device; 
and
* * * * *

    16. Section 232.303 is amended by revising paragraph (a)(2) to read 
as follows:


Sec. 232.303  General requirements.

    (a) * * *
    (2) Major repair means a repair that normally would require greater 
than four person-hours to accomplish or would involve the use of 
specialized tools and equipment. Major repairs include such activities 
as coupler replacement, draft gear repair, and repairs requiring the 
use of an air jack but exclude changing wheels on intermodal loading 
ramps either with or without an air jack.
* * * * *

    17. Section 232.407 is amended by adding paragraph (g)(2) to read 
as follows:


Sec. 232.407  Operations requiring use of two-way end-of-train devices; 
prohibition on purchase of nonconforming devices.

* * * * *
    (g) * * *
    (2) If a two-way end-of-train device fails en route while the train 
on which it is installed is operating over a section of track with an 
average grade of two percent or greater for a distance of two 
continuous miles, the train shall be brought safely to a stop at the 
first available location in accordance with the railroad's operating 
rule, except the train may continue in operation if the railroad 
provides one of the alternative measures detailed in paragraph (g)(1) 
of this section.
* * * * *

    18. Section 232.409 is amended by revising paragraphs (c) and (d) 
to read as follows:


Sec. 232.409  Inspection and testing of end-of-train devices.

* * * * *
    (c) A two-way end-of-train device shall be tested at the initial 
terminal or other point of installation to determine that the device is 
capable of initiating an emergency power brake application from the 
rear of the train. If this test is conducted by a person other than a 
member of the train crew, the locomotive engineer shall be notified 
that a successful test was performed. The notification required by this 
paragraph may be provided to the locomotive engineer by any means 
determined appropriate by the railroad; however, a written or 
electronic record of the notification shall be maintained in the cab of 
the controlling locomotive and shall include the date and time of the 
test, the location where the test was performed, and the name of the 
person conducting the test.
    (d) The telemetry equipment shall be tested for accuracy and 
calibrated if necessary according to the manufacturer's specifications 
and procedures at least every 368 days. The 368 days shall not include 
a shelf-life of up to 92 days prior to placing the unit in service. 
This test shall include testing radio frequencies and modulation of the 
device. The date and location of the last calibration or test as well 
as the name of the person performing the calibration or test shall be 
legibly displayed on a weather-resistant sticker or other marking 
device affixed to the outside of both the front unit and the rear unit; 
however, if the front unit is an integral part of the locomotive or is 
inaccessible, then the information may recorded on Form FRA F6180-49A 
instead, provided that the serial number of the unit is recorded.
* * * * *

    19. Appendix A to part 232 is amended by removing Sec. 232.103(p) 
from the Schedule of Civil Penalties.

    20. Appendix B to part 232 is amended by:
    A. Revising the heading;
    B. Designating the current text as subdivision I and adding a 
heading;
    C. Adding subdivision II.
    The revised and added text reads as follows:

Appendix B to Part 232--Part 232 prior to May 31, 2001 as Clarified 
Effective April 10, 2002.

    1. Part 232 prior to May 31, 2001.
* * * * *
    II. Clarification effective April 10, 2002.
    This subdivision II contains the following clarifications of 49 
CFR part 232 as it read before May 31, 2001. Section 232.13(d)(2)(i) 
is amended to correct a typographical error made in 1986. See 33 FR 
19679, 51 FR 17303. Section 232.17(a)(2)(iii) is amended to clarify 
that the single car test required to be performed pursuant to this 
paragraph may be conducted in accordance with the applicable AAR 
Code of Tests or the American Public Transportation Association 
standard referenced in 49 CFR 238.311(a). Section 232.17(b)(3) is 
amended by inserting FRA's current address as the location where the 
standards and procedures referenced in Sec. 232.17 can be obtained.


Sec. 232.13  Road train and intermediate terminal train air brake 
tests.

* * * * *
    (d) * * *
    (2)(i) At a terminal where a solid block of cars, which has been 
previously charged and tested as prescribed by Sec. 232.12 (c) through 
(j), is added to a train, it must be determined that the brakes on the 
rear car of the train apply and release. As an alternative to the rear 
car application and release test, it shall be determined that brake 
pipe pressure of the train is being reduced as indicated by a rear car 
gauge or device and then that brake pipe pressure of the train is being 
restored as indicated by a rear car gauge or device.
* * * * *


Sec. 232.17  Freight and passenger train car brakes.

    (a) * * *
    (2) * * *
    (iii) When a car equipped for use in passenger train service not 
due for periodical air brake repairs, as indicated by stenciled or 
recorded cleaning dates, is on shop or repair tracks, brake equipment 
must be tested by use of single car testing device as prescribed by the 
applicable AAR Code of Tests or

[[Page 17585]]

by the American Public Transportation Association (APTA) standard 
referenced in Sec. 238.311(a) of this chapter. Piston travel of brake 
cylinders must be adjusted if required, to the standard travel for that 
type of brake cylinder. After piston travel has been adjusted and with 
brakes released, sufficient brake shoe clearance must be provided.
* * * * *
    (b) * * *
    (3) Copies of the materials referred to in this section may be 
obtained from the Federal Railroad Administration, Office of Safety, 
RRS-14, 1120 Vermont Avenue, NW., Stop 25, Washington DC 20590.
* * * * *

    Issued in Washington, DC, on April 1, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-8183 Filed 4-9-02; 8:45 am]
BILLING CODE 4910-06-P