[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Proposed Rules]
[Pages 39774-39795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14636]



[[Page 39773]]

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Part V





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 229



Locomotive Event Recorders; Proposed Rule

  Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / 
Proposed Rules  

[[Page 39774]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA-2003-16357, Notice No. 1]
RIN 2130-AB34


Locomotive Event Recorders

AGENCY: Federal Railroad Administration (FRA), (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: To improve the crashworthiness of railroad locomotive event 
recorders and to enhance the quality of information available for post-
accident investigations, FRA proposes to amend its existing regulations 
in four major ways: By requiring that new locomotives have event 
recorders with ``hardened'' memory modules, proven by a requirement 
that the memory modules preserve stored data throughout a sequence of 
prescribed tests; by requiring that new locomotives have an event 
recorder that collects certain additional types of information; by 
simplifying standards for inspecting, testing, and maintaining event 
recorders; and by requiring the phasing out, over a six-year period, of 
event recorders that use magnetic tape as a data storage medium. FRA is 
also proposing to revise the definitions contained in the existing 
regulation to remove the letter designations so that the defined terms 
are presented in alphabetical order.

DATES: (1) Written comments must be received by August 31, 2004. 
Comments received after that date will be considered to the extent 
possible without incurring additional expenses or delays.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to August 15, 2004, one will be scheduled 
and FRA will publish a supplemental document in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2003-16357, may 
be submitted by any of the following methods:
     Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 
see the Privacy Act heading in the ``Supplementary Information'' 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Public Hearing: FRA anticipates being able to resolve this 
rulemaking without a public, oral hearing. However, if FRA receives a 
specific request for a public, oral hearing prior to August 15, 2004, 
one will be scheduled and FRA will publish a supplemental notice in the 
Federal Register to inform interested parties of the date, time, and 
location of any such hearing.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Edward W. Pritchard, Director, Office 
of Safety Assurance and Compliance, RRS-10, Mail Stop 25, Federal 
Railroad Administration, Department of Transportation, 1120 Vermont 
Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas 
J. Herrmann, Trial Attorney, Office of Chief Counsel, Mail Stop 10, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590 (telephone 202-493-6036).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Sections 10 and 21 of the Rail Safety Improvement Act of 1988 
(RSIA), Public Law 100-342, 102 Stat. 624 (June 22, 1988), provide as 
follows:

SEC. 10. EVENT RECORDERS.

    Section 202 of the Federal Railroad Safety Act of 1970 is 
amended by adding at the end the following new subsection:
    ``(m)(1)(A) The Secretary shall, within 18 months after the date 
of the enactment of the Rail Safety Improvement Act of 1988, issue 
such rules, regulations, standards, and orders as may be necessary 
to enhance safety by requiring that trains be equipped with event 
recorders within 1 year after such rules, regulations, orders, and 
standards are issued.
    ``(B) If the Secretary finds that it is impracticable to equip 
trains as required under subparagraph (A) within the time limit 
under such subparagraph, the Secretary may extend the deadline for 
compliance with such requirement, but in no event shall such 
deadline be extended past 18 months after such rules, regulations, 
orders, and standards are issued.
    ``(2) For the purpose of this subsection, the term `event 
recorders' means devices that--
    ``(A) record train speed, hot box detection, throttle position, 
brake application, brake operations, and any other function the 
Secretary considers necessary to record to assist in monitoring the 
safety of train operation, such as time and signal indication; and
    ``(B) are designed to resist tampering.''
* * * * *

SEC. 21. TAMPERING WITH SAFETY DEVICES.

    Section 202 of the Federal Railroad Safety Act of 1970 is 
amended by adding at the end the following new subsection:
    ``(o)(1) The Secretary shall * * * issue such rules, 
regulations, orders, and standards as may be necessary to prohibit 
the willful tampering with, or disabling of, specified railroad 
safety or operational monitoring devices.

* * * * *
Codified at 49 U.S.C. 20137-20138, superseding 45 U.S.C. 431(m) and 
(o).

II. Proceedings to Date

    On November 23, 1988, FRA published an ANPRM (Advance Notice of 
Proposed Rulemaking) in FRA Docket No. LI-7, soliciting comments on how 
to implement these statutory mandates concerning event recorders. See 
53 FR 47557. On June 18, 1991, FRA published an NPRM in that docket, 
setting forth proposed regulations on event recorders, the elements 
they were to record, and the preservation of data from the event 
recorder in the event of an accident. See 56 FR 27931. Two public 
hearings were held in order to facilitate public participation; the 
written comments submitted in response to the NPRM were extensive, 
detailed, and helpful.
    FRA prescribed final event recorder rules, effective May 5, 1995 
(58 FR 36605, July 8, 1993) and issued a response to petitions for 
reconsideration (60 FR 27900, May 26, 1995); they were codified 
principally at 49 CFR 229.135. In issuing the final rules, FRA noted 
the need to provide more refined technical standards. The National 
Transportation

[[Page 39775]]

Safety Board (NTSB) had previously noted the loss of data from event 
recorders in several accidents due to fire, water, and mechanical 
damage. NTSB proposed performance standards and agreed to serve as co-
chair for a joint industry/government working group that would refine 
technical standards for next-generation event recorders. FRA conducted 
a meeting of an informal working group comprised of railroad labor and 
management representatives and co-chaired by NTSB on December 7, 1995, 
to consider development of technical standards. At the July 24-25, 1996 
meeting of FRA's Railroad Safety Advisory Committee (RSAC), the 
Association of American Railroads (AAR) agreed to continue the inquiry 
and on November 1, 1996, reported the status of work on proposed 
industry standards to the RSAC.
    On March 5, 1997, the NTSB issued several recommendations regarding 
testing and maintenance of event recorders as a result of its findings 
in the investigation of an accident on February 1, 1996, at Cajon Pass, 
CA. As the Board noted in its recommendation to FRA, the train that 
derailed in Cajon Pass ``had an event recorder that was not fully 
operational. The self-diagnostic light on the unit was insufficient to 
fully examine the unit and ensure that it was recording the data.'' The 
Board recommended that inspection and testing of event recorders 
``include, at a minimum, a review of the data recorded during actual 
operations of the locomotive to verify parameter functionality. * * *'' 
See NTSB Recommendation R-96-70.

III. RSAC Overview

    In March 1996, FRA established the RSAC, which provides a forum for 
developing consensus recommendations on rulemakings and other safety 
program issues. The Committee includes representation from all of the 
agency's major customer groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AARPCO)
American Association of State Highway & Transportation Officials 
(AASHTO)
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Department/Brotherhood of Locomotive 
Engineers (ATDD/BLE)
National Passenger Railroad Corporation (Amtrak)
Association of American Railroads (AAR)
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
Hotel Employees & Restaurant Employees International Union
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers and Blacksmiths
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Transportation Safety Board (NTSB)*
Railway Progress Institute (RPI)
Safe Travel America
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWUA)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)
*Indicates associate membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts options on a particular aspect of a given 
task. The task force then provides that information to the working 
group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the RSAC for a vote. If the proposal is accepted by a simple majority 
of the RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
has played an active role at the working group level in discussing the 
issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation and the agency exercises its independent judgement on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal. If the 
working group or RSAC is unable to reach consensus on recommendations 
for action, FRA moves ahead to resolve the issue through traditional 
rulemaking proceedings.
    On March 24, 1997, the RSAC indicated its desire to receive a task 
to consider the NTSB recommendations with regard to crash 
survivability, testing, and maintenance. A task was presented to, and 
accepted by, the RSAC on June 24, 1997. The Working Group on Event 
Recorders was formed and a Task Force established. Members of the 
Working Group, in addition to FRA, included the following:
    AAR, including members from

The Burlington Northern and Santa Fe Railway Company (BNSF),
Canadian National Railway Company (CN),
Canadian Pacific Railway Company (CP),
Consolidated Rail Corporation (CR)
CSX Transportation, Incorporated (CSX),
Florida East Coast Railway Company (FEC),
Illinois Central Railroad Company (IC),
Norfolk Southern Corporation (NS),
Union Pacific Railroad Company (UP),

    APTA, including members from Southeastern Pennsylvania 
Transportation Authority (SEPTA)

Amtrak,
Bach-Simpson,
BLE
EDI,
General Motors Corporation/Electro-Motive Division (EMD)
IBEW,
Pulse/Wabco,
Q-Tron,
TCIU/BRC, and
UTU.

The NTSB met with the Working Group and provided staff advisors. In 
addition, GE-Harris, STV Incorporated, and

[[Page 39776]]

Peerless Institute attended many of the meetings and contributed to the 
technical discussions.
    The Working Group and related Task Force conducted a number of 
meetings and discussed each of the matters proposed in this NPRM. 
Minutes of these meetings have been made part of the docket in this 
proceeding. The Working Group reached full consensus on the proposal on 
October 20, 2003, and transmitted the document as its recommendation to 
the full RSAC for its concurrence via mail ballot on October 23, 2003. 
By November 12, 2003, the deadline set for casting a ballot in this 
matter, thirty-five of the forty-eight voting members of the full RSAC 
had returned their ballots on the regulatory recommendation submitted 
by the Working Group. All thirty-five of the voting members concurred 
with and accepted the Working Group's recommendation. Thus, the Working 
Group's recommendation became the full RSAC's recommendation to FRA in 
this matter. After reviewing the full RSAC's recommendation, FRA 
adopted the recommendation with minor changes for purposes of clarity, 
and responsiveness to certain comments made by Working Group and RSAC 
members when submitting their concurrences.
    During the final development of the Working Group's recommendation, 
FRA received written suggestions and recommendations from LTK 
Engineering Services (through APTA) and AAR. In addition, the BLE when 
entering its vote on the Working Group's recommendation to the full 
RSAC, concurred with the recommendation but provided separate written 
comments on the recommendation. FRA permits Working Group members to 
either ``non-concur,'' ``concur,'' or ``concur with comment'' when 
voting on any Working Group recommendation. In cases where a Working 
Group member ``concurs with comment,'' the verbatim comment is provided 
to the full RSAC for consideration with the Working Group's 
recommendation and the comment is incorporated into the preamble 
discussion of any developed regulatory document, if FRA believes it to 
be appropriate. In this instance, the written submissions of APTA, AAR, 
and BLE have been incorporated into the preamble discussion and have 
been made part of the docket in this proceeding.
    Throughout the preamble discussion of this proposal, FRA refers to 
comments, views, suggestions, or recommendations made by members of the 
Working Group. When using this terminology, FRA is referring to views, 
statements, discussions or positions identified or contained in either 
the minutes of the Working Group and Task Force meetings or the 
specific written submissions discussed above. These documents have been 
made part of the docket in this proceeding and are available for public 
inspection as discussed in the preceding ADDRESSES portion of this 
document. These points are discussed to show the origin of certain 
issues and the course of discussions on those issues at the task force 
or working group level. We believe this helps illuminate factors FRA 
has weighed in making its regulatory decisions, and the logic behind 
those decisions. The reader should keep in mind, of course, that only 
the full RSAC makes recommendations to FRA, and it is the consensus 
recommendation of the full RSAC on which FRA is acting.

IV. Technical Background

    The AAR Universal Machine Language Equipment Register (UMLER) file 
had approximately 28,000 locomotives registered as of January 1, 2000, 
including locomotives operated by shortline and regional railroads, 
Canadian and Mexican railroads, and Amtrak. Portions of the Canadian 
and Mexican fleet operate in the United States. Every major railroad 
uses event recorders, and no railroads report a difficulty in complying 
with the 1995 regulations requiring event recorders on the lead 
locomotive of any train operated faster than 30 miles per hour. As 
noted above, this proceeding builds on the current regulations in Part 
229 and adds requirements for crash survivability and enhanced data 
collection by event recorders. In addition, this proposed rule would 
require the installation of these current ``state-of-the-art'' event 
recorders in new locomotives and would require that, if a locomotive 
with an event recorder is remanufactured, it be equipped with a 
certified survivable version of its previous event recorder.
    During the discussions and review of draft language leading to the 
development of this document, members of the RSAC Working Group on 
Event Recorders and the full RSAC raised a number of important issues.

A. Adoption of Alternate, or Industry, Standards

    Several members of the RSAC Working Group suggested that FRA adopt 
crashworthiness or data collection/accuracy standards already existing 
within the industry. One standard, in particular, was advanced by the 
Vehicular Technology Society. It is the Institute of Electrical and 
Electronics Engineers (IEEE) Standard 1482.1-1999, the IEEE Standard 
for Rail Transit Vehicle Event Recorders. A technically advanced 
standard, the crashworthiness requirements of the IEEE standard were 
claimed to be significantly less expensive to meet than some of the 
other potential standards considered by the Working Group. For example, 
FRA staff originally suggested that the Working Group adopt a fire 
standard based on earlier work used to validate the thermal protective 
insulation on tank cars transporting flammable and toxic gases; this 
standard was based on the heat of a flame fueled by liquified petroleum 
gas. While that standard is entirely appropriate for tank cars that 
often travel in combination with other tank cars similarly laden, the 
practical truth is that the typical and most likely fuel for a fire 
impinging on a locomotive-mounted event recorder is diesel fuel from 
the locomotive's own tanks. Consequently, the proposed performance 
criteria for certifying event recorders as crashworthy and contained in 
Appendix D of this NPRM has been amended to include the open flame burn 
temperature of diesel fuel. FRA also proposes adopting many of the data 
elements contained in the IEEE standard as applicable to heavy electric 
commuter (MU) operations. FRA considered removing the requirements for 
certifying a crashworthy event recorder memory module (proposed in 
Appendix D of this document) and simply cross-referencing a voluntary 
industry (AAR) standard that the industry would ``expeditiously 
consider'' adopting. However, FRA is not willing to withdraw a major 
portion of this proposal and wait for an industry consensus standard 
that does not now exist and may never exist.

B. Record Retention

    Although the Electronic Signatures in Global and National Commerce 
Act (Pub. L. 106-229, 114 Stat. 464, June 30, 2000) requires that 
regulated entities be allowed to keep records electronically, in 
appropriate circumstances. FRA believes that the tenor and language of 
this proposed rule make it unnecessary to discuss the specifics of 
whether or not the Electronic Signatures Act applies to the subject 
matter of this proposed rule because nothing in this rule is intended 
to circumvent the requirements of that act. With the exception of the 
``maintenance instructions of the manufacturer, supplier, or owner'' of 
the event recorder (see proposed Sec.  229.25(e)), and any notations 
this rule proposes to require on the ``cab card'' (Form FRA F6180-49A), 
all other records required

[[Page 39777]]

by this proposed rule may be kept electronically. Proposed Sec.  
229.25(e) requires that the maintenance instructions for the event 
recorder may be kept electronically, but must be available in hard copy 
at the maintenance/repair point so they can be used by workers on the 
shop floor, at the point of testing and repair. Maintenance 
instructions printed from an electronically maintained master copy 
would satisfy this requirement. The proposed ``hard copy'' requirement 
tracks common quality assurance (QA) program requirements; for example, 
the QA requirements applicable to tank cars contained at 49 CFR 
179.7(d). The applicable cab card provisions are existing regulatory 
requirements that are not being amended by this rulemaking and are 
intended to establish whether the locomotive is ``equipped'' or not, in 
the field, without requiring reference or access to a data base at some 
other location.

C. Throttle Position

    There is considerable controversy within the railroad industry 
about the use of the term ``throttle position.'' Among the earliest 
mechanical engines were those powered by steam: A pound of water 
occupies .2 cubic feet of space. Apply heat and convert that pound of 
water into steam and the result occupies 27 cubic feet of space (at 
atmospheric pressure). If the steam remains in the same vessel it was 
heated in, pressure will rise--and from this pressure differential, 
power can be generated either directly by moving a piston, or 
indirectly by spinning a turbine and generating electricity. The early 
throttle was a means to control, or limit, the amount of steam leaving 
the generating chamber and entering the device in which work would be 
performed. (Imagine a locomotive that always ran at top speed; stopping 
at a station to load passengers or freight would be impossible.) The 
control handle, called the ``throttle handle,'' manipulated a valve to 
direct the steam, and to determine the quantity so directed, either 
into the working mechanism or into the atmosphere, wasted. Over time, 
the ``throttle handle'' used to control the flow of steam was shortened 
to today's ``throttle,'' but the process remained the same--controlling 
the output of the locomotive. As electric and diesel-electric 
locomotives came into use, the physical controlling device gained an 
additional name, ``master controller.'' Other than the few remaining 
historic and tourist steam locomotives, the two names are synonymous.
    Ignoring for the purposes of this discussion those master 
controllers--``throttles''--which combine brake control and power 
control in a single-handle design, the function of the throttle handle 
is unchanged over history: to control the power output of the 
locomotive. The vast majority of the master controllers which are used 
to perform the throttle control function do so by creating discrete 
positions of the throttle handle which in turn send electric-current 
specific combinations of train line wire energization patterns. These 
train line wire energization patterns are interpreted by the engine or 
propulsion control systems as the locomotive engineer's request for a 
specific speed/tractive effort characteristic. In most diesel-electric 
freight locomotives used in the United States, the throttle arc is 
divided into nine discrete positions: ``Idle,'' and eight ``notches'' 
of energization.
    The point that the throttle handle positions--``notches''--
correspond to speed/tractive effort characteristics is important and 
should not be overlooked. It is convenient to say that they correspond 
to an engine's revolutions per minute (RPM), and, for diesel-electric 
locomotives, that is correct. However, to extend that to say that they 
correspond to power is only correct in a non-rigorous use of the term. 
For purposes of this rule, FRA will consider that the ``throttle'' 
controls speed/tractive effort characteristics rather than ``power.'' 
Over most--but not all--of the operating speed range of a diesel-
electric locomotive, the speed/tractive effort characteristic is 
approximately a constant horsepower characteristic. Unfortunately, the 
same is not true of electric locomotives, be they locomotives in the 
conventional sense or electric multiple unit (EMU) locomotives. 
Application of speed/tractive effort characteristics instead of 
``power'' as the result of throttle handle position will enable 
coverage of all types of locomotives.
    Almost all throttles have at least a few discrete output positions, 
and some have continuously variable segments as well. Those discrete 
positions do not, unfortunately, correspond to uniform fractions of 
maximum engine RPM or current. For diesel-electric locomotives, they do 
correspond roughly to uniform fractions of the maximum speed/tractive 
effort characteristic, but the actual diesel engine speed schedule 
utilized to achieve a given speed/tractive effort characteristic will 
be tailored by the manufacturer based on a number of design 
considerations. For electric locomotives, especially EMU locomotives, 
the throttle positions often reflect the design configuration of the 
EMU's propulsion system, and may reflect such things as motor 
connections (series versus series-parallel, for example), motor field 
strength, transformer tap position, and the like.
    For those throttles with continuously variable segments, the 
output, and ``power requested'' corresponding thereto, vary from 
minimum to maximum. Minimum may be ``zero,'' or it may be a small, non-
zero positive value of the control variable. ``Maximum'' depends on the 
design of the master controller, and may be some level of DC or AC 
control current, some control voltage, or some percentage pulse-width-
modulation value of a control output current or voltage approaching or 
equal to 100 percent. It may also be a stream of binary bits, 
interpreted by the engine and/or propulsion control system as a control 
variable. The ``power'' equivalent to the maximum output value of the 
control variable will be the maximum speed/tractive effort 
characteristic of which the locomotive is capable.
    In order to give a meaningful resolution of such continuously 
variable outputs for recording purposes, and to be consistent with 
digital communications that are emerging in the industry, digital to 
analog (or vice versa) conversion of no less than eight-bit resolution 
would appear appropriate, and FRA solicits comments on this concept. 
Some existing EMU locomotives have fewer than eight discrete throttle 
``power'' positions. For example, the SEPTA Silverliner IV EMUs have 
four. It would be both physically impossible and meaningless to 
artificially require these locomotives to have event recorders which 
capture one-eighth of the full output, as these EMU's cannot physically 
operate at intermediate levels of speed/tractive effort other than the 
four provided by their propulsion systems. Historically, some 
locomotives have had more than eight discrete throttle positions. The 
number of such locomotives remaining in service and subject to the 
proposed rule is believed to be quite small and may, in fact, be zero. 
While FRA may wish to limit the resolution of the discrete throttle 
positions to one-eighth of full power, it does not appear burdensome to 
require that all available discrete positions be recorded. FRA seeks 
comments and suggestions from all interested parties on this issue.

D. Post-accident Data Preservation

    In this rulemaking, FRA proposes a modification to the current 
standard. As Sec.  229.135(d) is now written, after an accident, a 
railroad may ``extract and analyze'' data from the event recorder, if 
the railroad preserves ``the original or

[[Page 39778]]

a first-order accurate copy'' of the data. Experience since the present 
event recorder rule became effective shows that the phrase ``first-
order accurate copy'' is not easily understood by those first on scene 
at a derailment. First responders must primarily deal with wrecked 
equipment, the potential need for life-saving actions, and the ever-
present danger--especially if hazardous materials are present--of fire, 
smoke, and explosion. FRA believes it has clarified the requirement. 
The proposal here permits the railroad to extract and analyze such 
data, provided the original downloaded data file, or an unanalyzed 
exact copy of it, is retained subject to the direction and control of 
FRA or the NTSB. In the case of microprocessor-based machines, the 
``original'' copy of the data will not show any immediately prior 
downloads, while the ``copies'' may show that previous downloads have 
occurred. Certainly this is not a requirement to put a ``marker,'' or 
some indication in the downloaded data to show the ``order'' in which 
multiple downloads were made; the proposed rule would, as does the 
present requirement, mandate that the original download be preserved 
for analysis by FRA or NTSB.
    Both the current rule and this proposal require efforts, ``to the 
extent possible,'' and ``to the extent consistent with safety,'' to 
preserve all the data stored in any locomotive-mounted recording device 
designed to record information concerning the functioning of the 
locomotive or train. FRA is well aware of the difficulty of performing 
field downloads of data retention devices not so designed; FRA is also 
aware that such downloads may be more dangerous, especially in an 
accident situation, than extracting the data from a crash-hardened 
event recorder memory module designed for easy field downloads. FRA's 
experience is that those who serve as the railroad's incident 
commanders are well schooled in safety and the preservation of life and 
property, and this agency is comfortable with the decisions they will 
make about the safety of entering a hostile atmosphere to gather 
knowledge about the dynamics immediately preceding an accident.

E. Data Element--Horn Control

    One data element proposed in this Notice for new locomotives with 
new event recorders generated a significant amount of controversy--the 
recording of the horn control handle activation. FRA believes this data 
element will enhance the investigatory tools available in highway-rail 
grade crossing accidents. Users of event recorder data for purposes 
other than accident investigation (such as supporting claims in 
accident-related litigation) should bear in mind that the event 
recorder samples what is going on in the locomotive and there are gaps 
between the time the recorder first ``looks'' for the data from the 
horn switch activation sensor and the time it next takes that ``look.'' 
Even a gap of a second, at main line track speeds, can yield an 
inaccurate, false record of when, exactly, or where, exactly, the horn 
was blown. Further, horns are air-operated on freight locomotives and, 
once the switch is activated, there is a lag--short, to be sure--before 
the horn blows; the horn may also fail en route and the engineer 
activate its switch only to have no sound come out. As reported in the 
daily press, emergency responders complain that automobile drivers with 
their windows up, radios on, and air conditioning on often do not react 
to the sirens or air horns on fire trucks. The same phenomena exist 
when a railroad engineer blows his horn at an automobile starting 
across a crossing with too little time to clear. Finally, the 
locomotive horn is external to the cab of the locomotive and subject to 
becoming blocked by snow or sleet in the wintertime.
    To summarize: FRA proposes to require the recording of the horn 
control handle activation because it will provide one tool, among many, 
in the investigation of railroad accidents and in the monitoring of 
equipment and the people who operate it. FRA believes that the use of 
the data for other purposes should be made only after fully considering 
the limited usefulness of such data as briefly discussed above. This 
proposal reflects FRA's responsibility to implement 49 U.S.C. 20153. 
The Working Group and the full RSAC were not able to reach a 
recommendation regarding this issue.

F. Inspection and Maintenance

    Older styled event recorders used eight-track tape cartridges as 
their recording medium; while this proposed rule will ``sunset'' such 
equipment, it needs to be maintained in order to perform 
satisfactorily. The present rule provides for this, at 49 CFR 
229.25(e). Microprocessor-based event recorders, typified by virtually 
all of the recorders now being installed in locomotives, are similar to 
many consumer solid state electronic devices; either they work or they 
do not. Maintenance consists of checking for satisfactory operation 
and, if there is a failure, replacing either the failed component or 
the entire unit.
    What further complicates the newest installations is that there is 
no ``black box,'' as such. Rather, the entire locomotive is wired with 
sensors and, as an illustration, those elements necessary for routine 
maintenance of the locomotive are routed to one collection point and 
those required for accident analysis are routed to another. There are 
also ways to retrieve any particular subset of data out of a single 
data port by using what is popularly called a ``smart card'' to query 
the computer for a predetermined set of data. Accident investigators 
would get the data elements specified in proposed Sec.  229.135(b), 
locomotive electrical maintainers would get the set of data applicable 
to their work, and a person evaluating the engineer's performance over 
the last run would download a data set preprogramed for that purpose. 
Data necessary for accident analysis, as proposed here, would be routed 
to a crash-hardened memory module.
    Essentially all modern event recorder systems are also equipped 
with self-test circuitry that constantly compares data flowing in with 
the data being stored and signals (a red light is typical) when there 
is a fault. In a sense, maintenance is simple: If the red light is off 
(and the unit is still receiving power), the unit is in good working 
order. However, experts in the field, and there are no experts more 
familiar with black boxes than the NTSB, warn that the whole event 
recorder system needs to be verified to know that the recorder is 
capturing ``real'' data. Recorders, sensors, and cables all fail, and 
at unpredictable intervals. To ensure that the recorder is indeed 
capturing data representative of the locomotive's actual operations, 
this proposal requires that, sometime within 30 days of each annual 
periodic inspection, the railroad download and review the data required 
by Sec.  229.135(b), as captured by the event recorder's crashworthy 
memory module. This download might be part of any other download a 
railroad might choose to perform, whether as a part of locomotive 
maintenance, employee monitoring, service planning, or whatever. The 
downloaded data would be compared to the known operations of the 
locomotive over the past 48 hours and, if all required channels were 
recording and the required elements were representative of actual 
operations, the recorder--assuming always that the fault light is not 
on--would require no further maintenance or checking. This added 
flexibility in the proposed rule could mean that locomotives equipped 
with microprocessor-based event recorders need never visit a shop just 
to check the recorder.

[[Page 39779]]

G. New Technologies

    FRA is well aware of the pace at which technology is changing. 
Locomotives, once controlled by mechanical levers and wheels, now read 
the ``input'' of a moved lever and adjust multiple aspects of their 
operating systems to produce the desired result; they can accept a 
cruise control setting and adjust power to maintain a constant speed as 
the grade increases. New methods for monitoring and controlling train 
operations, some of them using global-positioning satellites as the 
basis for position determination, are now being deployed. Where these 
technologies affect the operation and safety of trains, the event 
recorder needs to be able to capture data elements that will enable 
analysis of the locomotive's operations. As just one example, if a 
positive train control system (PTC) ``took away'' control of a 
locomotive to enforce train separation protocols, the recorder needs to 
capture the information that an input from outside the cab caused the 
train to speed up or slow down.
    With PTC, the recorder needs to identify both the fact of an 
incoming signal and the response to it, whether automated or an 
engineer override. Just as the recording of cab signals is relatively 
easy because the signal system's aspect is already on board, so too it 
should be easy to capture a PTC signal and record any display elements 
on which the engineer is expected to rely and any commands sent to 
initiate braking and knock down power. The existing regulation requires 
that the cab signal display be recorded, but this technology may be 
superseded in the future. In the Working Group meetings, the 
Brotherhood of Locomotive Engineers has consistently raised a concern 
with respect to determining the source of penalty brake applications 
initiated by innovative train control systems (i.e., not only what was 
the source of the brake application, but what indication was displayed 
to the engineer and on what basis this was determined). Although it may 
not be possible to specify clearly all of the information that would be 
required to determine the basis for every penalty application, given 
the wide variety of possible system architectures, FRA proposes to 
require that the following be recorded:
     Applications and operations of the train automatic air 
brake, including emergency applications. The system shall record, or 
provide a means of determining, that a brake application or release 
resulted from manipulation of brake controls at the position normally 
occupied by the locomotive engineer. In the case of a brake application 
or release that is responsive to a command originating from or executed 
by an on-board computer (e.g., electronic braking system controller, 
locomotive electronic control system, or train control computer), the 
system shall record, or provide a means of determining, the involvement 
of any such computer; and
     Safety-critical train control data routed to the 
locomotive engineer's display with which the engineer is required to 
comply, specifically including text messages conveying mandatory 
directives, and maximum authorized speed. The format, content, and 
proposed duration for retention of such data shall be specified in the 
product safety plan submitted for the train control system under 
subpart H of part 236 of this chapter, subject to FRA approval under 
this paragraph. If it can be calibrated against other data required by 
this part, such train control data may, at the election of the 
railroad, be retained in a separate certified crashworthy memory 
module.
    These proposed provisions are discussed in greater detail in the 
section-by-section analysis related to Sec.  229.135(b)(3).
    FRA seeks information and comments from interested parties 
regarding whether the data elements that are required to be entered 
into the system should be recorded and retained in the memory module 
where a train's braking system utilizes braking algorithms. Although 
the current rule and this proposal require that the ``applications and 
operations'' of the train's braking system be recorded, FRA does not 
currently require the recording of all the data related to such 
``applications and operations.'' If braking algorithms are dependent on 
or dictated by track profile information, or train and consist data, is 
there a need for FRA to specifically mandate that the data or 
information actually entered into the system also be recorded and 
retained in the memory module? Similarly, in order to ensure accurate 
analysis, should FRA require that the braking algorithm software 
version (and identifying number, as appropriate) be recorded or 
derivable from external data? FRA seeks comments from interested 
parties regarding the need, capability, and costs associated with 
capturing this type of data.
    As electronics improve, and, with it, the ability to remotely 
control large and complex machinery, it is imperative that any such 
operations within the scope of this proceeding be recorded. The 
existing event recorder rule, and this proposed amendment, require 
event recorders on locomotives when operated at speeds of more than 
thirty miles per hour. If locomotive remote control systems can 
function at speeds greater than 30 miles per hour, it is only logical 
to require the recording of both the commands issued by the operator as 
well as the response by the locomotive to those commands. FRA has not 
included specific data elements in proposed Sec.  229.135(b)(3) or (4) 
but is prepared to if comments warrant. In one view, locomotive remote 
control systems are like cruise control: Unless rendered incapable of 
operation above 30 miles per hour, it is vital that data on their use 
be recorded.

H. Data Accuracy, Resolution, and Sampling Rates

    In its first event recorder rulemaking, FRA Docket No. LI-7 (58 FR 
36605, July 8, 1993), FRA mandated the installation of event recorders 
on trains traveling faster than 30 mph. In this rulemaking, FRA is 
proposing requirements for the capture of additional data elements and 
for crash-hardening the event recorder memory module. In both 
proceedings, the topics of data accuracy, resolution, and sampling rate 
have been raised. In this proceeding, as in the first, FRA notes the 
current requirements for the accuracy of brake system air gauges and 
for speed indicators, 49 CFR 229.53 and 229.117. The issues of 
accuracy, resolution, and sampling rate remain unresolved in this 
proposal. The Working Group concentrated on the crashworthiness aspects 
of the event recorder memory module, together with enhancing the kind 
of data to be collected for post-accident analysis. FRA believes that 
this was both an ordering of priorities and a recognition that the 
industry has an economic and operational incentive to make the data as 
accurate as possible. What the event recorder stores are data that are, 
first and foremost, indispensable to the operation of the locomotive. 
Because the railroads have operational needs for the same data elements 
that are also vital to accident analysis, the ``numbers'' tend to be 
accurate and, with microprocessor-based event recorders, the data thus 
generated during the ordinary course of business are not diminished in 
accuracy just because they are stored. Finally, microprocessor-based 
event recorders run so fast that the sampling intervals are naturally 
short, and they may be adjusted differently for different elements.
    The Rail Transit Vehicle Interface Standards Committee of the 
Institute of Electrical and Electronics Engineers has developed the 
IEEE Standard for Rail Transit Vehicle Event Recorders (IEEE

[[Page 39780]]

Std 1482.1-1999). While, as noted elsewhere, this standard is not 
applicable to the railroad industry, FRA seeks comments on whether or 
not the agency should adopt a requirement similar to the IEEE's 
standard for sampling and storage rates, from paragraph 4.2 of that 
standard:

4.2 Sampling and storage rate(s)

    The event recorder shall be capable of sampling signals at a 
maximum of 20 ms intervals (minimum 50 samples per second) to ensure 
that changes that affect operation are detected.
    Signals shall be processed and stored to ensure that changes 
that affect operation are captured. Repetitive samples of identical 
information reflecting no state change may be stored at a lower 
storage rate than other signals. The storage rate depends on the 
individual rate of change under operating or failure conditions for 
each signal. Thresholds, ranges, and durations for defining state 
changes shall be determined for each signal. Signals shall be stored 
at least once per second.
    To conserve memory, stored data more than 10 hours old may be 
reprocessed to eliminate data samples that reflect no change from 
consecutive samples to a minimum storage rate of 1 sample per 15 
seconds.
    Crashworthy nonvolatile memory shall preserve a minimum of 48 
hours worth of data.

    One member of the Working Group, in a written submission to FRA, 
suggests that if FRA adopts requirements for data accuracy, resolution, 
and sampling rates, then any such requirements should not force the 
manufacture of distinctly different event recorders for transit and 
railroad operations in those instances where the devices could 
otherwise be the same, particularly with regard to hardware. This 
member notes that commonality of equipment between transit and rail 
operations is expected to result in reduced costs and more mature 
designs. If there are particular technical needs for railroads, then it 
is suggested that FRA work with the Institute of Electrical and 
Electronics Engineers (IEEE) to determine whether common requirements 
could be developed. While the difference between railroad and transit 
equipment will force differences in event recorders, the principle of 
commonality, wherever possible, is desirable.

I. Distributed Power

    A distributed power system places locomotives within the train 
consist to add their tractive and braking effort to the movement of, 
typically, long and heavy trains. The locomotives ``distributed'' back 
in the train are controlled by signals from the lead locomotive. The 
Working Group agreed not to include a proposed requirement that new 
event recorders capture ``miscompare'' messages between the lead 
locomotive and the remotely distributed locomotive due to the extremely 
high costs associated with monitoring and capturing such data. One 
member of the Working Group, in a written submission to FRA, disagreed 
with the removal of this data element but agreed to move forward with 
the rulemaking with the opportunity to further discuss this issue at 
the final rule stage. This member voiced concern that locomotive 
engineers should be given an opportunity to show that they were not 
responsible for the failure of a remote control locomotive to respond 
properly to a control input because of a problem with the communication 
link or other failure originating from software or hardware faults on a 
locomotive.
    This member seeks to introduce the term ``Locomotive Engineer 
Coupling'' (LEC) which is based on the term ``Aircraft-Pilot Coupling'' 
(APC) used in the aviation industry where the phenomenon it describes 
is found to exist in modern aircraft flown ``by wire'' (electronic or 
radio controlled). It is contended that the operation of locomotives 
``by wire'' is becoming commonplace in the industry and is utilized in 
distributed power. The term ``Discordant APC'' is used to describe the 
loss of control phenomena resulting from dynamic distortion of the 
pilot-aircraft control system, which will occur in two areas: 1. In the 
information upon which the pilot judges the aircraft's response to his 
control input (the feedback loop); and 2. in the actual response of the 
aircraft to the pilot's control inputs (the feed forward loop).\1\
---------------------------------------------------------------------------

    \1\ A Case for Higher Data Rates, Ralph A. `Harrah HQ; George 
Kaseote, FAA HQ; at page 2 of the proceedings of the International 
Symposium on Transportation Recorders on May 3-5, 1999.
---------------------------------------------------------------------------

    This member notes the similarity between APC and LEC especially 
with respect to remotely controlled distributed power locomotives. The 
locomotive engineer expects the control input to be executed as 
requested and many control inputs do not immediately feedback to the 
engineer. When something goes wrong the only feedback may be an 
emergency application of the train's braking system. The absence of a 
record of the control input sent by the locomotive engineer will leave 
the engineer vulnerable to accusation that any resulting mishap was due 
to that individual's negligence. This member further asserts that the 
investigation of accidents that have occurred while the lead locomotive 
consist is doing one thing and the distributed power is doing something 
different from what the engineer intended have revealed that the 
distributed power locomotives indicated a communication loss.
    Due to the type of confusion described above, this member believes 
that FRA should require fully operational locomotive event recorders on 
all lead distributed power locomotives and requests that FRA ensure 
that any final rule apply to such locomotives. This individual strongly 
believes that the rule must avoid an injustice to individuals when the 
technology they have been given fails and no record of that failure can 
be made.
    Based on the above, FRA seeks further comments from all interested 
parties on the need and the ability to capture ``miscompare'' messages 
between the lead locomotive and the remotely distributed locomotive as 
well as any information on the potential economic consequences of any 
such requirement. FRA also seeks comments and information on the issue 
of whether remotely distributed locomotives (or the unit that receives 
signals from the head end and relays them to the other remote 
locomotives) should also be required to be equipped with an event 
recorder to capture not only the receipt of a message from the lead 
locomotive but also the remote locomotive's response to that message. 
This would allow not only the capture of miscompare messages but would 
also allow an analysis of those messages.

V. Section-by-Section Analysis

Section 229.5

    In this proposed section, the existing section is being entirely 
rewritten to remove the letter designations for the subparagraphs so 
that the terms defined in this section are simply presented in 
alphabetical order. In addition, the definitions of two terms have been 
substantially revised, and definitions of several new terms are added. 
The substantive changes to the existing section are limited to the 
following provisions:
    Cruise control is an added definition that describes the device 
that controls locomotive power output to maintain a targeted speed. 
Primarily used on through-route passenger equipment, this device allows 
the engineer a choice between automated controls or the traditional 
throttle handle. Devices that only function at or below 30 miles per 
hour, such as those used in the loading/unloading of unit trains of 
bulk commodities, or those used to move equipment through car or 
locomotive

[[Page 39781]]

washers, are not considered cruise controls for purposes of this part.
    Data element is an added definition to clarify that the data 
recorded may be directly passed through or they may be derived from 
other data. As an example, speed may be calculated from time and 
distance; the event recorder may capture ``speed'' by calculating that 
value using the common formula of dividing distance by time. An 
alternative term ``data parameter'' is not used in this proposal 
because a ``parameter'' connotes one value standing for all others of a 
class and an ``element'' is a discrete value. Data may be derived from 
both recorded and unrecorded ``facts'' in the memory module. For 
instance, the distance element in the calculation of speed may be 
derived from a count of the wheel revolutions (data from the memory 
module) and the wheel diameter or wheel circumference (data measured 
directly from a physical component and, thus, not stored in the memory 
module).
    Distributed power system is an added definition that describes a 
system to allow the engineer in the lead unit to automatically control 
locomotive power units placed within the train consist. Typically, a 
radio link is established between the lead unit and the remote power 
consist so that a single engineer can control several locomotives not 
directly coupled to the lead unit.
    Event recorder is a revised definition. The definition that is 
currently in the regulations is modified so that the list of data 
elements to be recorded will now appear in rewritten Sec.  229.135(b). 
This change is necessary because the event recorders proposed to be 
required on new locomotives will record more data elements than the 
recorders now required by the regulation.
    Event recorder memory module is a new definition that describes the 
portion of the event recorder that will be required to meet the 
crashworthy standard proposed in Appendix D to Part 229.
    Lead locomotive is a definition moved from current Sec.  229.135(a) 
and revised to reflect current industry practice and to make it clear 
that ``lead locomotive'' describes a set position in the train rather 
than the locomotive from which the crew is operating the train. This 
change was necessary, among other reasons, to accurately record the 
signal indications displayed to the crew of the train.
    Mandatory directive is a definition also contained in Sec.  220.5 
of this chapter and is being included in this part to aid in 
understanding the type of data that is to be captured by the event 
recorder when a railroad utilizes a train control system pursuant to 
Part 236 of this chapter.
    Remanufactured locomotive is a new definition added to clarify when 
an existing event recorder-equipped locomotive must be equipped with a 
crashworthy event recorder.
    Self-monitoring event recorder is a new definition added to clearly 
state the conditions under which an event recorder does not require 
periodic maintenance. One member of the Working Group, in a written 
submission to FRA, suggests that this definition be slightly altered to 
state that a self-monitoring event recorder is one that has the ability 
to monitor its own operation and to display an indication to the 
locomotive operator when any data required to be stored are not stored 
or when the input signal or stored signal is detected as out-of-range. 
This commenter stated that there is no way to verify whether the stored 
data matches the data received from the sensor or data collection point 
as described in the proposed definition. Examples of this are when a 
sensor fails open and the locomotive computer does not pass that 
information to the event recorder, or when a speed sensor is not 
producing any output due to certain failure modes. However, certain 
data elements can be programmed with a minimum or maximum range and if 
the sensor input is outside that range then an appropriate indication 
can be provided to the operator. FRA seeks comments from all interested 
parties on this suggested change to the definition of self-monitoring 
event recorder.
    Throttle position is a new definition added to capture the industry 
understanding about this parameter of locomotive operation. As 
discussed in more detail earlier, while typical diesel-electric freight 
locomotives have positions, or ``notches'' for eight power positions 
and ``Idle,'' many other locomotives, especially those in passenger and 
heavy electric passenger service, do not. The proposed definition calls 
for measuring the power requested by the engineer/operator at any and 
all of the discrete output positions of the throttle. If the throttle 
quadrant on a locomotive has continuously variable segments, the 
recorder would be required to capture the exact level of speed/tractive 
effort requested, on a scale of zero (0) to 100 percent (100%) of the 
output variable or a value converted from a percentage to a comparable 
0 to 8 digital system. FRA does not believe that there is a need to 
specify the specific parameters by which throttle position is recorded. 
FRA realizes, based on Working Group discussions, that some parties 
believe these parameters should be specified and recorded. Therefore, 
FRA seeks comments from interested parties on the need to include the 
specific methods contained in this definition for reporting and 
recording the power requested by an engineer or operator.

Section 229.25

    This proposed rule would amend Sec.  229.25(e) by moving the 
language dealing with microprocessor-based event recorders from 
subparagraph (e)(2) to the lead paragraph and providing that 
microprocessor-based event recorders with a self-monitoring feature are 
exempt from the 92-day periodic inspection and are to be inspected 
annually as required under proposed Sec.  229.27(d). Other types of 
event recorders would require inspection and maintenance at 92-day 
intervals, as before. FRA recognizes that railroads cannot test event 
recorders over the full range of recorded parameters. Such testing 
might require operating locomotives at speeds far higher than safe over 
a particular railroad's track and some events, such as EOT valve 
failure are extremely rare. The proposed rule would require ``cycling, 
as practicable, all required recording elements * * * '' in recognition 
of the above stated fact. Although the proposed regulatory text does 
not specify how records of successful tests are to be maintained, FRA 
has no objection to keeping the records electronically, provided; the 
electronic ``record'' is the full and complete ``data verification 
result'' required by this proposed section, the record is secure, the 
record is accessible to FRA for review and monitoring, and the record 
is made available upon request to FRA or any other governmental agent 
with the authority to request them.

Section 229.27

    This proposed rule would amend the introductory text of this 
section for clarity and to add a specific reference to proposed 
paragraph (d), dealing with the annual maintenance requirements for 
microprocessor-based event recorders with a self-monitoring feature. 
Proposed paragraph (d) has two potential triggers for required 
maintenance. A self-monitoring microprocessor-based event recorder 
would require ``maintenance'' in the sense of opening the box and 
making adjustments only if either or both of the following occurred: 
(1) The event recorder displayed an indication of a failure, or (2) the 
railroad has downloaded and reviewed the data for the past 48 hours of 
the locomotive's use and found that any required

[[Page 39782]]

channels were not recording data representative of the actual 
operations of the locomotive during this time period.
    The proposed rule recognizes that certain data elements do not 
regularly recur and may not, in fact, have been seen for a long time. 
Such elements might include EOT emergency applications, EOT 
communications loss, EOT valve failure, and specific channels devoted 
to distributed power operations when such operations have not occurred 
to the locomotive within the past 48 hours. FRA has eased the burden of 
specific ``annual test dates'' by proposing that any time an event 
recorder is downloaded, reviewed for the relevant elements as required 
in Sec.  229.135(b), and successfully passes that review, a new 368-day 
interval begins. (Non-self-monitoring recorders require maintenance at 
quarterly intervals, under the requirements of Sec.  229.25.)
    The users and vendors of self-monitoring event recorders have 
discovered that, in common with many electronic devices, either the 
unit works or it does not. If it is working--if it is recording all the 
data it is required to record and if it is accurately storing the data 
sent by the sensors or other data collection points--no tweaking, 
lubricating, adjusting, or other traditional maintenance practice will 
make it work better or more accurately. If a self-monitoring event 
recorder is not working, that fact will be displayed, and the 
experience of the users and builders is that a circuit board, or other 
electronic component, will have to be exchanged. By the same token, the 
NTSB has strongly urged that maintenance of locomotive event recorders 
verify that the entire event recorder system--including the recorder, 
the memory module, the cabling, and the sensors--is accurately 
recording what the locomotive has actually done. The regulatory 
proposal here would require a review of the past 48 hours of the 
locomotive's operations because that is the required recording period 
for the current (and the proposed) rule. Although the proposed 
regulatory text does not specify how records of successful tests are to 
be maintained, FRA has no objection to keeping the records 
electronically, provided the electronic ``record'' is the full and 
complete ``data verification result'' required by this proposed 
section, the record is secure, the record is accessible to FRA for 
review and monitoring, and the record is made available upon request to 
FRA or any other governmental agent with the authority to request them.

Section 229.135

    Paragraph (a) is essentially unchanged, except as necessary to 
accommodate the proposed changes or additions to subsequent paragraphs 
in Sec.  229.135. This proposed paragraph does modify the existing 
provision by requiring the make and model of the event recorder to be 
entered on Form FRA F6180-49A (blue card). Some members of the Working 
Group, at meetings and in written submissions to FRA, questioned the 
need to record this information on the blue card as there is no known 
instance where a problem was encountered downloading data or locating 
appropriate analysis software. These members assert that railroads and 
event recorder manufacturers are well aware of the type of event 
recorder installed on a locomotive and which software to employ for 
downloads. This item was requested by NTSB, and based on NTSB's stated 
need for the information, FRA has decided to include the provision in 
this proposal. FRA believes there is very little burden placed on the 
railroads by requiring the information to be recorded as the presence 
of any such recorder is already required under the existing regulation 
and the benefit to an accident investigator may be considerable. FRA 
seeks comment from interested parties regarding the benefits and costs 
associated with including this requirement in the final rule.
    Paragraph (b) is totally rewritten to detail the proposed new 
requirements for when a new or remanufactured locomotive must be 
equipped with a certified crashworthy memory modules and details the 
information that must be captured and stored by both new and existing 
event recorders. In order to avoid confusion when locomotives are re-
sold after the original purchase from the manufacturer (i.e., sold from 
one user to another), the proposed rule specifies that the equipment 
required on a specific locomotive is determined by the date it was 
originally manufactured. The introductory text is new and would require 
that the data recorded be at least as accurate as the data required to 
be displayed to the engineer. Further, the rule would require the 
crashworthy event recorder memory module to be mounted for its maximum 
protection, stating that a module mounted behind the collision posts 
and above the platform will be deemed to be appropriately mounted.
    Several members of the Working Group, in meetings and in written 
submissions to FRA, emphasized that the language contained in this 
proposed provision regarding the placement of the crashworthy event 
recorder memory module may be interpreted to limit the placement of the 
module. They assert that the placement of the module in an electrical 
cabinet may not necessarily be below the top of the collision posts and 
yet such placement would provide adequate protection and would actually 
provide superior crush resistance, be more fire resistant, and be a 
longer distance from the point of impact. Similarly, a module located 
in the nose of the locomotive may not be above the platform level and 
yet it would be sufficiently protected. The illustration contained in 
the proposed provision was intended to provide one example of a module 
properly mounted for its maximum protection. FRA agrees that there may 
be other mounting options that provide at least equal protection, and 
has added language to the proposed rule text making this point very 
clear. FRA seeks suggestions and comments from interested parties 
regarding potential language or approaches to this issue that address 
the concerns of these Working Group members.
    The proposed requirements relating to when a new locomotive is 
required to be equipped with the crashworthy event recorder memory 
module is based on the date that the locomotive was originally ordered. 
Paragraphs (b)(3) and (b)(4) propose that any locomotive ordered one 
year after the effective date of the final rule must be equipped with a 
crashworthy event recorder memory module. FRA notes that no outside 
parameter has been included in this proposal. Thus, as the proposal is 
currently written, any locomotive ordered prior to the one-year period 
would not be required to be equipped with a crashworthy event recorder 
even if not delivered and placed in service until ten years later. FRA 
believes there should be a placed-in-service date included in the final 
rule after which any new locomotive must be properly equipped. For 
example, most of FRA's regulations that contain a design requirement 
for new equipment generally define the new equipment as any that is 
ordered after a certain date or that is placed in service after a 
certain date. See 49 CFR part 232 and 238. Generally these two dates 
are several years apart in order to provide sufficient time for an 
equipment order to be fully manufactured and placed in service. Rather 
than include an arbitrary date, FRA seeks comments and suggestions from 
interested parties as to an appropriate date to include in the final 
rule for ensuring that any applicable locomotive placed in service 
after that

[[Page 39783]]

date is properly equipped with a crashworthy memory module.
    Subparagraph (b)(1) restates the equipment requirements for current 
event recorders that use a recording medium other than magnetic tape. 
This section proposes to permit the continued use of these current 
event recorders on any locomotive manufactured until one year after the 
effective date of a final rule in this proceeding. At the initial 
meetings with the RSAC Working Group, FRA made clear that this rule was 
not intended to involve the retrofitting of existing locomotives with 
event recorders containing crashworthy memory modules. FRA continues to 
believe that, except for the need to replace event recorders using 
magnetic tape to record information, any significant retrofit 
requirement of existing locomotive event recorders cannot be justified 
from a cost/benefit perspective. In addition to the cost of the 
crashwothy event recorder, it would be cost prohibitive to retrofit 
many existing locomotives with the ability to monitor many of the data 
elements described in this paragraph. Consequently, except for 
remanufactured locomotives and locomotives equipped with an event 
recorder utilizing magnetic tape, this proposal does not contain any 
provision requiring a locomotive manufactured prior to one year from 
the effective date of any final rule issued in this proceeding to be 
equipped with an event recorder containing a crashworthy memory module 
described in Appendix D of this proposal.
    Although this proposal does not require the retrofitting of 
existing locomotives in most cases, FRA believes that the industry and 
the marketplace will dictate that as older style event recorders fail 
they will be replaced with event recorders containing crashworthy 
memory modules. In addition, the operational benefits derived from the 
newer crashworthy event recorders will likely drive the railroads' 
decisions when acquiring replacement event recorders for existing 
locomotives. Moreover, as the newer crashworthy event recorders become 
more prevalent and are manufactured in greater numbers, the costs of 
the recorders will likely be more comparable to currently produced 
event recorders and thus, many railroads may find it economically 
advantageous to purchase the new crashworthy event recorders as 
replacements for the older model event recorders on existing 
locomotives.
    With these thoughts in mind, FRA seeks comments from interested 
parties as to whether a provision could or should be added to this rule 
which establishes a specific date after which any replacement event 
recorder on an existing locomotive must have a crashworthy memory 
module pursuant to Appendix D of this proposal. FRA wishes to make 
clear that any such provision would only be applied to existing 
locomotives when the event recorder with which it is equipped is 
replaced and it is not FRA's intention to increase the data elements 
required to be captured. It should be noted that FRA is not proposing 
to ``sunset'' the use of event recorders using magnetic tape until six 
years after the effective date of the final rule in this proceeding. 
Thus, any provision related to other current event recorders should 
probably not apply until at least that time. To summarize: FRA seeks 
comments or information from interested parties as to whether there is 
some future date, that would impose little or no cost burden to the 
industry, after which any event recorder that is replaced on an 
existing locomotive should be replaced with an event recorder 
containing a crashworthy memory module described in Appendix D of this 
proposal.
    Subparagraph (b)(2) proposes a ``sunset'' date for current event 
recorders using magnetic tape as their recording medium. Because it is 
essentially impossible to make a crashworthy event recorder memory 
module that uses magnetic tape, the proposed rule would establish that, 
six years after the effective date of a final rule, all such recorders 
must be replaced with recorders using ``hardened'' memory modules, but 
recording the same elements as they do now. The principal supplier of 
this type of equipment has ceased manufacturing it and has recently 
discontinued supplying replacement recording media. Accordingly, FRA 
believes that this provision should not constitute a significant 
burden. FRA seeks comments and information from all interested parties 
regarding any significant burden imposed by this proposed provision.
    Subparagraph (b)(3) contains the proposed standards for new event 
recorders and make new event recorders that meet these standards 
mandatory equipment for freight (diesel) locomotives (other than MU 
locomotives) manufactured one year after the effective date of a final 
rule in this proceeding. The new recorder would have a certified 
crashworthy event recorder memory module and would record the following 
data elements in addition to the data elements recorded by current 
event recorders:
     emergency brake applications initiated by the engineer or 
by an on-board computer;
     a loss of communications from the EOT (End of train) 
device;
     messages related to the ECP (electronic controlled 
pneumatic) braking system;
     EOT messages relating to ``ready status,'' an emergency 
brake command, and an emergency brake application, valve failure 
indication, end-of-train brake pipe pressure, the ``in motion'' signal, 
the marker light status, and low battery status;
     the position of the switches for headlights and for the 
auxiliary lights on the lead locomotive;
     activation of the horn control;
     the locomotive number;
     the automatic brake valve cut in;
     the locomotive position (lead or trail);
     tractive effort;
     the activation of the cruise control; and
     safety-critical train control display elements with which 
the engineer is required to comply.
    Two of the data elements proposed in this subparagraph and in 
subparagraph (b)(4) are somewhat controversial and deserve additional 
explanation and clarification. FRA seeks comments, information, and 
suggestions from interested parties on both of the proposed data 
elements discussed below as well as any of the other proposed data 
elements contained in subparagraph (b)(3) and (b)(4).
    The proposed data element contained in subparagraphs (b)(3)(vi) and 
(b)(4)(vi) requires that the system record, or provide a means of 
determining, that a brake application or release resulted from 
manipulation of brake controls at the position normally occupied by the 
locomotive engineer. In the case of a brake application or release that 
is responsive to a command originating from or executed by an on-board 
computer (e.g., electronic braking system controller, locomotive 
electronic control system, or train control computer), the system would 
have to record, or provide a means of determining, the involvement of 
any such computer.
    These additional proposed requirements concerning the operation of 
the automatic braking system are necessary in order to take into 
account the proliferation of processor-based technology that is now 
extensively used to control the functions of locomotives, including on-
board computers constituting subsystems of train control systems. When 
the present event recorder rule was being prepared, the

[[Page 39784]]

automatic brake on most locomotives functioned by mechanical and 
pneumatic means, responding directly to manipulations of the controls 
by the locomotive engineer; and train control (where provided) 
addressed braking and power ``knock down'' functions very directly as 
well. Increasingly, braking functions are controlled electronically 
based on requests from the control stand, and the electronic commands 
themselves may pass through a second locomotive computer before being 
executed. Major manufacturers of locomotives have plans to run braking 
software on their own host processors. Further, some developing train 
control projects contemplate routing commands through other on-board 
computers.
    In general, new electronic systems have functioned well, but there 
have been notable failures. It is obviously a dangerous situation when 
service braking is not available (requiring the engineer to employ the 
emergency braking feature). The unintended application of train brakes 
can also constitute a safety hazard, particularly in freight operations 
where management of in-train forces is a significant challenge. In the 
event of an accident, it is critical that data be logged in the event 
recorder memory module that is sufficient to determine the source of 
brake applications and releases. It should be known whether or not they 
were requested, and whether or not they occurred as requested, from the 
control stand. In the event no action was taken at the control stand 
that can explain the brake application, it is important to know 
(insofar as is feasible) the source of the application. While not every 
source of an unintended brake application can be determined in real 
time and monitored electronically, on-board computers capable of 
issuing a command for application or release of the brakes or executing 
such commands should be monitored to determine their role.
    The proposed data element contained in subparagraphs (b)(3)(xxv) 
and (b)(4)(xxii) requires that safety-critical train control data 
routed to the locomotive engineer's display, with which the engineer is 
required to comply, be recorded. The data to be recorded would in every 
case include text messages conveying mandatory directives and maximum 
authorized speed. It may be necessary to record other data elements 
depending on the design of the train control system and the type of 
information displayed to the engineer (e.g., distance to a ``target'' 
at which a particular action must be taken). The format, content, and 
proposed duration for retention of such data would be specified by the 
railroad in the product safety plan (PSP) submitted for the train 
control system under the new subpart H of 49 CFR Part 236, subject to 
FRA approval under this paragraph. FRA would expect to approve this 
element of the PSP if it was clear that data sufficient to determine 
the proper functioning of the train control system is routed to the 
memory module and retained for a sufficient period to support accident 
investigation. FRA anticipates that railroads will elect to record 
additional train control data elements in a crashworthy module (e.g., 
train consist data entered by the crew that is critical to the 
correctness of the braking curve), and FRA will welcome inclusion of 
this additional data.
    Train control systems are still evolving, and it is therefore 
difficult to anticipate what should be selected for recording; 
consequently, it may be difficult to plan for such eventualities. FRA 
believes that the proposed rule provides flexibility to address these 
future needs by determining data recording needs appropriate to various 
systems, including a shorter duration for data retention if appropriate 
to the subject matter. Contemporary solid state recorders are 
programmable and should be capable of receiving and retaining the 
necessary data. If, for some reason not presently foreseen, data 
retention requirements for a train control system exceed the capacity 
of the primary memory modules, secondary modules associated with the 
on-board train control computer could be used to meet the need.
    The proposed provision uses the term ``safety-critical'' which is 
intended to have a meaning consistent with the meaning assigned in 49 
CFR Sec.  236.903. That section provides that ``safety-critical,'' as 
applied to a function, a system, or any portion thereof, means the 
correct performance of which is essential to safety of personnel and/or 
equipment, or the incorrect performance of which could cause a 
hazardous condition, or allow a hazardous condition which was intended 
to be prevented by the function or system to exist. In the present 
context, then, safety-critical data would be data displayed to the 
locomotive engineer that is integral to a safety-critical train control 
function (such as avoiding over-speed operation, preventing a 
collision, or preventing an incursion into a work zone). The safety-
critical functions of a new train control system are defined by the 
railroad in the requirements section of the PSP (consistent with the 
assumptions specified in the accompanying risk assessment). In 
addition, the term ``mandatory directive,'' as used in this provision, 
has the meaning assigned to the term in 49 CFR Sec.  220.5 (``any 
movement authority or speed restriction that affects a railroad 
operation'') and that definition has been duplicated in proposed Sec.  
229.5.
    Subparagraph (b)(4) is a similar set of proposed new requirements 
for MU locomotives manufactured after one year from the effective date 
of the rule. Differences between subparagraphs (b)(3) and (b)(4) 
reflect the differences between freight locomotives and heavy electric 
commuter equipment, primarily in the particular brake application data 
required to be stored.
    Subparagraph (b)(5) would require, when a locomotive equipped with 
an event recorder is remanufactured, that it be equipped with a 
certified crashworthy event recorder memory module capable of capturing 
the same data as the recorder on the pre-remanufactured locomotive.
    Paragraph (c) is essentially the same as current paragraph (c), 
modified for clarity and to reflect the specific equipment requirements 
in paragraph (b).
    Paragraph (d) is essentially the same as the current paragraph (b), 
rewritten to clarify that its provisions apply notwithstanding the duty 
to equip specified in paragraph (a).
    Paragraph (e) combines and simplifies current paragraphs (d) and 
(d)(1). This paragraph proposes the requirement that, while the 
railroad may download the event recorder immediately following an 
accident/incident, the original downloaded data file must be preserved 
for FRA or the NTSB.
    Paragraph (f) is the present paragraph (d)(2). It was separated for 
clarity and ease of citation.
    Paragraph (g) is the present paragraph (e).
    Appendix D. Appendix D contains the proposed criteria for 
certification of an event recorder memory module (ERMM) as crashworthy. 
Its elements were the result of the collaborative efforts of a task 
group of the RSAC Event Recorder Working Group and were adopted by the 
full RSAC in its recommendation to FRA. FRA agrees with the 
recommendation of the full RSAC This appendix establishes the general 
requirements, the testing sequence, and the required marking for memory 
modules certified by their manufacturers as crashworthy. This appendix 
also contains the proposed performance criteria for survivability from 
fire, impact shock, crush, fluid immersion, and hydrostatic pressure.
    The proposed performance criteria contained in Section C of 
Appendix D

[[Page 39785]]

are presented in two tables which represent alternative performance 
criteria under which an ERMM could be tested for crashworthiness. 
During the development of this proposal the Working Group discussed and 
reviewed various performance criteria which some manufacturers of event 
recorders began using in an effort to pre-qualify their ERMMs. Rather 
than penalizing these manufacturers by including only the final draft 
performance criteria contained in Table 1, FRA also provides the 
performance criteria contained in Table 2 as an acceptable alternative. 
FRA expects that ERMMs built to Table 2 criteria would survive more 
extreme conditions than those built under Table 1. FRA is also advised 
by manufacturers that have already designed and tested Table 2 ERMMs 
that the incremental cost of event recorders built to those more 
rigorous criteria will be less than the incremental cost of Table 1 
ERMMs (for which the differential associated with increased fire 
protection over the IEEE criteria is said to be the cost driver).
    The proposed performance criteria contained in Table 1 of this 
appendix are adapted from the Institute of Electrical and Electronics 
Engineers, Inc., IEEE Std 1482.1-1999, IEEE Standard for Rail Transit 
Vehicle Event Recorders. Virtually all of the criteria contained in 
this table are included in Section 4.5 of the above noted IEEE 
standard. FRA has slightly modified the fire criteria to make it 
consistent with the conditions an event recorder would encounter in 
actual operation. FRA increased the IEEE high temperature fire standard 
from 650 degrees Celsius to 750 degrees Celsius because the higher 
temperature is consistent with the temperature at which locomotive 
diesel fuel burns. FRA also did not include IEEE's penetration standard 
as FRA finds it unnecessary for purposes of an event recorder mounted 
inside a locomotive. Although FRA and the Working Group explored other 
performance criteria, FRA believes that the criteria proposed in Table 
1 are most likely to be acceptable to the vast majority of the parties 
participating in and affected by this regulation. Several 
manufacturer's of event recorders noted that they currently manufacture 
or are capable of manufacturing a crashworthy ERMM consist with IEEE's 
standard. Furthermore, the NTSB indicated its potential acceptance of 
the criteria contained in this proposal.
    Table 2 of this appendix contains alternative performance criteria 
to those adapted from IEEE's standard. FRA has included the performance 
criteria contained in this table based on comments received from 
certain manufacturers indicating that they were currently producing 
crashworthy ERMMs based on the criteria contained in this table. The 
performance criteria contained in Table 2 are based on discussions 
conducted with the Working Group, were accepted by the full RSAC, and 
were contained in its recommendation to FRA. FRA considers them to be 
superior to those contained in Table 1. Thus, in order to accommodate 
those manufacturer's that took the lead in developing crashworthy 
ERMMs, FRA believes it is appropriate to include the criteria 
previously discussed and considered by the Working Group and 
recommended to FRA by the full RSAC as an alternative to the adapted 
IEEE standards. Therefore, manufacturers that have developed 
crashworthy ERMMs based on the criteria proposed in Table 2, would not 
need to retest their devices under the criteria contained in Table 1.
    Table 2 contains two options for meeting the Impact Shock 
performance criteria. When using Table 2 criteria, crashworthy ERMMs 
may utilize either the IEEE impact shock performance criteria or the 
impact shock criteria developed by the Working Group. FRA believes that 
either impact shock criteria would be acceptable. FRA recognizes that 
the duration of the impact pulse proposed by the Working Group may be 
far more expensive to produce than that contained in the IEEE standard 
and that there are only a few testing laboratories capable of 
performing a test for that duration. FRA realizes that there is a 
trade-off between a higher impact value for a short duration as opposed 
to a lower impact pulse for a longer duration. FRA sees merit in both 
criteria and is not willing to espouse the benefits of either criterion 
over the other, and is therefore purposing to permit the use of either 
criterion when testing the ERMM.
    FRA is proposing the performance criteria in Table 1 and 2 as 
alternative methods of certifying an ERMM as crashworthy. FRA seeks 
comments, information, and potential cost estimates for both sets of 
performance criteria from interested parties. Based on the comments 
received in response to this notice, FRA may seek to require the use of 
one or both sets of performance criteria (as may be suitable for a 
given segment of the railroad industry) or may develop different 
parameters altogether.
    It should be noted that each set of criteria is a performance 
standard and FRA has not included any specific test procedures to 
achieve the required level of performance. Although FRA and the Working 
Group considered specific testing criteria, FRA does not believe it is 
necessary to include specific testing criteria in this regulation. FRA 
believes that the industry and the involved manufacturers are in the 
best position to determine the exact methods by which they will test 
for the specified performance parameters. The Working Group did 
consider the testing criteria contained in the following international 
standards: (1) The European Organization for Civil Aviation Equipment 
(EUROCAE), ED-55, Minimum Operational Performance Specification for 
Flight Data Recorder System (May 1990); (2) EUROCAE ED-56A, Minimum 
Operational Requirement for Cockpit Voice Recorder System (December 
1993); and (3) The Fluid Immersion Test Procedures contained in the 
National Fire Protection Association's Fire Protection Handbook, 18th 
Edition. Although FRA endorses the use of any of the above standards, 
FRA is not proposing to mandate their use at this time. Appendix D 
makes clear that any testing procedures employed by a manufacturer must 
be documented, recognized, and acceptable. FRA seeks comments from any 
interested parties regarding the need to include specific testing 
criteria. Such comments should specifically identify the testing 
procedures sought to be included and provide a detailed analysis 
indicating the need for such inclusion.
    FRA wishes to inform all interested parties that they may obtain a 
copy of the standards noted in the above discussion through the 
following: (1) The EUROCAE standards may be obtained from The European 
Organization for Civil Aviation Equipment, 17, rue Hamelin, 75783 PARIS 
CEDEX 16, France; (2) the Fire Protection Handbook, 18th Edition, may 
be obtained from the National Fire Protection Association, 1 
Batterymarch Park, PO Box 9101, Quincy, MA 02269-9101; and (3) the IEEE 
Standard for Rail Transit Event Recorders, IEEE Std 1482.1-1999, may be 
obtained from The Institute of Electrical and Electronics Engineers, 
Inc., 345 East 47th Street, New York, NY 10017-2394. Interested parties 
may also inspect a copy of any of these materials during normal 
business hours at the Federal Railroad Administration, Docket Clerk, 
Suite 7000, 1120 Vermont Avenue, NW., Washington DC 20590.
    Section E of appendix D contains a proposed testing exception for 
new model crashworthy ERMMs that represent an evolution or upgrade of 
an older model ERMM meeting the performance criteria contained in this 
appendix. FRA has included this

[[Page 39786]]

exception based on its determination that there is no reason to subject 
a new model ERMM to the proposed testing where no material change has 
been made to the unit that would impact any of the performance 
criteria. For example, if a memory chip is modified but the remainder 
of the box is left unchanged, there would likely be no reason to 
subject the unit to all or any of the required tests. In this example, 
the only performance criteria, if any, potentially affected might be 
the fire standard. This proposed section makes clear that the new model 
ERMM need only be tested for compliance with those performance criteria 
contained in Section C of appendix D that are potentially affected by 
the upgrade or modification. FRA will consider a performance criteria 
to not be potentially affected if a preliminary engineering analysis or 
other pertinent data establishes that the modification or upgrade will 
not affect the crashworthy performance criteria established by the 
older model ERMM. The proposed provision requires the manufacturer to 
retain and make available to FRA upon request any analysis or data 
relied upon to make a determination relating to the crashworthiness 
impacts of any upgrade or modification to an older model ERMM.

VI. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory 
evaluation addressing the economic impact of this rule. Document 
inspection and copying facilities are available at the Department of 
Transportation Central Docket Management Facility located in Room PL-
401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC 20590. Access to the docket may also be obtained 
electronically through the Web site for the DOT Docket Management 
System at http://dms.dot.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at Office of Chief 
Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, 
NW., Washington, DC 20590; please refer to Docket No. FRA-2003-16357. 
FRA invites comments on this regulatory evaluation.
    Event recorders have successfully improved the safety of rail 
operations by monitoring railroad operations and by capturing the pre-
accident inputs to the train control. This impartial collection of data 
has improved the ability of the railroads and the railroad operating 
employees, the ability of the railroads and governmental agencies to 
investigate accidents, and the ability of FRA and the States to 
regulate railroad operations. These contributions have, in turn, tended 
to reduce the number and severity of incidents, accidents, and 
resulting damage and casualties. The higher standards proposed in this 
NPRM can be expected to produce even greater safety progress. 
Therefore, dilution of the existing standards or rejection of the 
higher standards proposed in this NPRM would create the potential for 
an increase in property damage, injuries, and fatalities resulting from 
rail accidents.
    The Regulatory Impact Analysis (RIA) developed in connection with 
this proposed rule uses a break-even analysis approach to assessing the 
monetary impacts and safety benefits of this proposal. This approach is 
appropriate for this particular rule because event recorders do not 
directly prevent accidents. Event recorders may indirectly prevent 
future accidents by allowing for in-depth accident causation analysis 
to take place using complete information, thereby allowing accurate 
causation determinations, and the development of appropriate and 
effective countermeasures. Because event recorders also allow the 
railroad to monitor train handling performance and rules compliance in 
a widespread and economical way, FRA believes that event recorders 
might have the potential of increasing skillful train handling and 
encouraging rules compliance. The extent of the event recorders' 
contribution to accident analyses, train handling, and rules compliance 
is somewhat open to interpretation and argument. FRA is not in a 
position to claim a particular degree of improvement in these areas 
from event recorders. Therefore, the RIA simply states the level of 
effectiveness (avoided accidents, etc.) that event recorders would have 
to reach such that the cost of the proposed rule would be ``paid for'' 
by the benefits expected to be achieved. It should be noted that the 
accident figures used in FRA's analysis do not include the costs of 
environmental cleanup or evacuations related to human factor caused 
accidents.
    FRA expects that overall the rule will not impose a significant 
additional cost on the rail industry over the next twenty years. FRA 
believes it is reasonable to expect that several accidents, injuries, 
and fatalities will be avoided as a result of implementing this 
proposed rule. FRA believes that this safety benefit alone justifies 
the measures proposed in this document. FRA also believes that the 
safety of rail operations will be compromised if this rule is not 
implemented. The RIA indicates that an accident reduction of 
approximately 2 percent (2%) annually during the first twenty years 
``breaks-even'' with the expected costs of the proposed rule. In FRA's 
judgement this level of Human Factor Accident reduction is clearly 
achievable, and is likely to be exceeded. This is all the more likely 
if one or more of the accidents prevented is a passenger train 
accident. Passenger train accidents usually have more casualties than 
other types of train accidents, just based on the fact that more people 
are exposed to the dangers and damages of the accident. Also, those 
types of accidents tend to be much more disastrous than a typical 
freight train accident, such as a derailment or an accident that does 
not involve hazardous materials, thus costing much more than the 
assigned average value of a human factor accident.
    Although FRA believes this proposed regulation is justified by 
safety benefits alone, the addition of clear and substantial business 
benefits makes the proposal obviously justified. For example, the 
estimated savings resulting from just the proposed requirement of the 
floating year approach to the inspection period is a total 20-year 
benefit of approximately $ 1.2 million. In addition to this quantified 
business benefit there are other benefits which may result from this 
proposed rule that are not quantified in the RIA. For example, the 
quality and quantity of information gained by recorded data resulting 
in increased knowledge of train handling and pre-accident inputs 
(events occurring just prior to impact which may have contributed to 
the cause) and the public perception that the railroads offer higher 
levels of safety and efficiency are not easily quantified benefits.
    The following table presents estimated twenty-year monetary impacts 
associated with the proposed new requirement for crashworthy event 
recorders. The table contains the estimated costs and benefits 
associated with this NPRM and provides the total 20-year value as well 
as the 20-year net present value (NPV) for each indicated item. The 
dollar amounts presented in this table have been rounded to the nearest 
thousand. For exact estimates, interested parties should consult the

[[Page 39787]]

RIA that has been made part of the docket in this proceeding.

------------------------------------------------------------------------
                                              20-year
               Description                   total($)     20-year NPV($)
------------------------------------------------------------------------
Costs:                                    ..............  ..............
    Replacement of Magnetic Tape               6,310,000       4,976,000
     Recorders:.........................
    Crashworthy ERMM no new parameters:.         558,000         296,000
    Crashworthy ERMM new parameters:....      16,494,000       8,706,000
    Maintenance/Inspections:............      16,107,000       8,281,000
      Total Costs:......................      39,469,000      22,258,000
Benefits:                                 ..............  ..............
    Safety: Reduction of Human Factor         42,808,000      22,675,000
     accidents and injuries (2%
     effectiveness):....................
    Business: Magnetic tape inspection         1,751,000       1,201,000
     savings:...........................
      Total Benefits:...................      44,559,000      23,876,000
------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Analysis of Impact on Small Entities (AISE) that assesses the 
small entity impact of this proposal. Document inspection and copying 
facilities are available at the Department of Transportation Central 
Docket Management Facility located in Room PL-401 on the Plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://dms.dot.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590; please refer to Docket No. FRA-2003-16357.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment.
    Pursuant to that authority FRA has published a final statement of 
agency policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
(STB's) threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment (49 CFR part 1201). 
The same dollar limit on revenues is established to determine whether a 
railroad, shipper, or contractor is a small entity. FRA uses this 
alternative definition of ``small entity'' for this rulemaking.
    The AISE developed in connection with this NPRM concludes that this 
proposal would not have a significant economic impact on a substantial 
number of small entities. Thus, FRA certifies that this proposed rule 
is not expected to have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act or 
Executive Order 13272.
    While about 645 of the approximately 700 railroads operating in the 
United States are considered small businesses by FRA, this proposed 
rule would only apply to railroads that operate passenger or freight 
trains at speeds greater than 30 mph. Very few of these smaller 
railroads conduct operations on track that is suitable for top speeds 
of greater than 30 mph, i.e., track maintained above Class 2 standards; 
thus, FRA believes that the vast majority of small railroads would not 
be impacted by the proposed rule. Further, most small railroads own 
older locomotives and, thus, would not be affected by the new equipment 
requirements of this rule. FRA estimates that approximately only 350 
locomotives operated by these smaller railroads would be affected by 
the provisions contained in this proposed rule. The AISE associated 
with this proposal estimates that the economic impact on these 
operations will have an NPV of less than $400,000 over a 20-year 
period. Representatives of small railroads participated in the RSAC 
discussion that provided the basis for this proposal. FRA seeks 
comments and input from all interested parties regarding the estimates 
contained in the AISE developed in connection with this NPRM.

Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Average time    Total annual
             CFR Section                  Respondent universe     Total annual  responses   per response    burden hours      Total annual burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
229.9--Movement of Non-Complying       685 Railroads...........  21,000 tags.............        1 minute             350  $12,250.
 Locomotives.
229.17--Accident Reports.............  685 Railroads...........  1 report................      15 minutes             .25  $10.
229.21--Daily Inspection.............  685 Railroads...........  5,655,000 rcds..........     1 or 3 min.         263,383  $10,798,703.
Form FRA F 6180.49A Locomotive Insp/   685 Railroads...........  14,750 forms............       2 minutes             492  $17,220.
 Repair Rcd.
210.31--Locomotive Noise Emission      685 Railroads...........  100 tests/remarks.......      15 minutes              25  $850.
 Test.

[[Page 39788]]

 
229.23/229.27/229.29/229.31--Periodic  685 Railroads...........  87,000 tests............         8 hours         696,000  $24,360,000.
 Inspection/Annual Biennial Tests/
 Main Res. Tests.
229.33--Out-of Use Credit............  685 Railroads...........  1,000 notations.........       5 minutes              83  $2,822.
229.25(1)--Test: Every Periodic        685 Railroads...........  200 amendments..........      15 minutes              50  $1,700.
 Insp.--Written Copies of Instruction.
229.25(2)--Duty Verification Readout   685 Railroads...........  4,025 records...........      30 minutes           2,013  $58,377.
 Record.
229.25(3)--Pre-Maintenance Test--      685 Railroads...........  700 notations...........      30 minutes             350  $10,150.
 Failures.
229.135(A.)--Removal From Service....  685 Railroads...........  1,000 tags..............        1 minute              17  $578.
229.135(B.)--Preserving Accident Data  685 Railroads...........  100 reports.............      15 minutes              25  $850.
--------------------------------------
                                                                    NEW REQUIREMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
229.27--Annual Tests.................  685 Railroads...........  700 Test Records........      90 minutes           1,050  $30,450.
229.135(b)(1) & (2)--Equipment         685 Railroads...........  850 Cert. Mem Modules...   2 hours + 200           1,900  Included in RIA.
 Rqmnts--Mag Tap Replacements.                                                                      hours
229.135(b)(3)--Equipment Rqmnts--Lead  685 Railroads...........  600 Cert. Mem Modules...         2 hours           1,200  Included in RIA.
 Locomotives.
229.135(b)(4)--Equipment Rqmnts--MU    685 Railroads...........  255 Cert. Mem Modules...         2 hours             510  Included in RIA.
 Locomotives.
229.135(b)(5)--Equipment Rqmnts--      685 Railroads...........  1,040 Cert. Mem Modules.         2 hours           2,080  Included in RIA
 Other Locomotives.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), the FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB contact Robert Brogan at 202-
493-6292.
    FRA believes that soliciting public comment will promote its 
efforts to reduce the administrative and paperwork burdens associated 
with the collection of information mandated by Federal regulations. In 
summary, FRA reasons that comments received will advance three 
objectives: (i) Reduce reporting burdens; (ii) ensure that it organizes 
information collection requirements in a ``user friendly'' format to 
improve the use of such information; and (iii) accurately assess the 
resources expended to retrieve and produce information requested. See 
44 U.S.C. 3501.
    Comments must be received no later than September 28, 2004. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Robert 
Brogan, Federal Railroad Administration, RRS-21, Mail Stop 17, 1120 
Vermont Ave., NW., MS-17, Washington, DC 20590. Comments may also be 
sent to Robert Brogan via e-mail at the following address: 
[email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of a final rule. The OMB 
control number, when assigned, will be announced by separate notice in 
the Federal Register.

Federalism Implications

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132, issued on 
August 4, 1999, which directs Federal agencies to exercise great care 
in establishing policies that have federalism implications. See 64 FR 
43255. This proposed rule 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 
various levels of government. This proposed rule will not have 
federalism implications that impose any direct compliance costs on 
State and local governments.
    FRA notes that the RSAC, which endorsed and recommended this 
proposed rule to FRA, has as permanent members two organizations 
representing State and local interests: the American Association of 
State Highway and Transportation Officials (AASHTO) and the Association 
of State Rail Safety Managers (ASRSM). Both of these State 
organizations concurred with the RSAC recommendation endorsing this 
proposed rule. The RSAC regularly provides recommendations to the FRA 
Administrator for solutions to regulatory issues that reflect 
significant input from its State members. To date, FRA has received no 
indication of concerns about the Federalism implications of this 
rulemaking from these representatives or of any other representatives 
of State government. Consequently, FRA concludes that this proposed 
rule has no federalism implications, other than the preemption of state 
laws covering the subject matter of this proposed rule, which occurs by 
operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or 
order.

[[Page 39789]]

Environmental Impact

    FRA has evaluated this regulation 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 regulation 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)(20) of FRA's Procedures. 
64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment. * * 
* The following classes of FRA actions are categorically excluded:
    * * *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed regulation is not a major Federal action significantly 
affecting the quality of the human environment.

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 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. 
The proposed rule would 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 NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to 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.

Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects in 49 CFR Part 229

    Accident investigation, Data preservation, Event recorders, 
Locomotives, National Transportation Safety Board, Penalties, Railroad 
safety, Railroads, Reporting and record keeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, the Federal Railroad 
Administration proposes to amend part 229 of chapter II, subtitle B of 
Title 49, Code of Federal Regulations, as follows:

PART 229--[AMENDED]

    1. The authority citation for part 229 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR

    1.49(c),(m).2. Section 229.5 is revised to read as follows:


Sec.  229.5  Definitions.

    As used in this part--
    Break means a fracture resulting in complete separation into parts.
    Cab means that portion of the superstructure designed to be 
occupied by the crew operating the locomotive.
    Carrier means railroad, as that term is defined below.
    Commuter Service means the type of railroad service described under 
the heading ``Commuter Operations'' in 49 CFR part 209, appendix A.
    Commuter work train is a non-revenue service train used in the 
administration and upkeep service of the commuter railroad.
    Control cab locomotive means a locomotive without propelling motors 
but with one or more control stands.
    Crack means a fracture without complete separation into parts, 
except that castings with shrinkage cracks or hot tears that do not 
significantly diminish the strength of the member are not considered to 
be cracked.
    Cruise control means a device that controls locomotive power output 
to obtain a targeted speed. A device that functions only at or below 30 
miles per hour is NOT considered a ``cruise control'' for purposes of 
this part.
    Data element means data point(s) or value(s) reflecting on-board 
train operations at a particular time. Data may be actual or ``passed 
through'' values or may be derived from a combination of values from 
other sources.
    Dead locomotive means--
    (1) A locomotive, other than a control cab locomotive, that does 
not have any traction device supplying tractive power; or
    (2) A control cab locomotive that has a locked and unoccupied cab.
    Distributed power system means a system that provides automatic 
control of a number of locomotives dispersed throughout a train from a 
controlling locomotive located in the lead position. The system 
provides control of the rearward locomotives by command signals 
originating at the lead locomotive and transmitted to the remote 
(rearward) locomotives.

[[Page 39790]]

    Electronic air brake means a brake system controlled by a computer 
which provides the means for control of the locomotive brakes or train 
brakes or both.
    Event recorder means a device, designed to resist tampering, that 
monitors and records data, as detailed in Sec.  229.135(b), over the 
most recent 48 hours of operation of the electrical system of the 
locomotive on which the device is installed. However, a device, 
designed to resist tampering, that monitors and records the specified 
data only when the locomotive is in motion meets this definition if the 
device was installed prior to November 5, 1993 and if it records the 
specified data for the last eight hours the locomotive was in motion.
    Event recorder memory module means that portion of the event 
recorder used to retain the recorded data as detailed in Sec.  
229.135(b).
    High voltage means an electrical potential of more than 150 volts.
    In-service event recorder means an event recorder that was 
successfully tested as prescribed in Sec.  229.27(d) and whose 
subsequent failure to operate as intended, if any, is not actually 
known by the railroad operating the locomotive on which it is 
installed.
    Lead locomotive means the first locomotive proceeding in the 
direction of movement.
    Lite locomotive means a locomotive or a consist of locomotives not 
attached to any piece of equipment or attached only to a caboose.
    Locomotive means a piece of on-track equipment other than hi-rail, 
specialized maintenance, or other similar equipment--
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Mandatory directive means any movement authority or speed 
restriction that affects a railroad operation.
    Modesty lock means a latch that can be operated in the normal 
manner only from within the sanitary compartment, that is designed to 
prevent entry of another person when the sanitary compartment is in 
use. A modesty lock may be designed to allow deliberate forced entry in 
the event of an emergency.
    MU locomotive means a multiple operated electric locomotive--
    (1) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (2) Without propelling motors but with one or more control stands.
    Other short-haul passenger service means the type of railroad 
service described under the heading ``Other short-haul passenger 
service'' in 49 CFR part 209, Appendix A.
    Potable water means water that meets the requirements of 40 CFR 
part 141, the Environmental Protection Agency's Primary Drinking Water 
Regulations, or water that has been approved for drinking and washing 
purposes by the pertinent state or local authority having jurisdiction. 
For purposes of this part, commercially available, bottled drinking 
water is deemed potable water.
    Powered axle is an axle equipped with a traction device.
    Railroad means all forms of non-highway ground transportation that 
run on rails or electromagnetic guideways, including commuter or other 
short-haul rail passenger service in a metropolitan or suburban area, 
and high speed ground transportation systems that connect metropolitan 
areas, without regard to whether they use new technologies not 
associated with traditional railroads. Such term does not include rapid 
transit operations within an urban area that are not connected to the 
general railroad system of transportation.
    Remanufactured locomotive means a locomotive rebuilt or refurbished 
from a previously used or refurbished underframe (``deck''), containing 
fewer than 25 percent previously used components (weighted by dollar 
value of the components).
    Sanitary means lacking any condition in which any significant 
amount of filth, trash, or human waste is present in such a manner that 
a reasonable person would believe that the condition might constitute a 
health hazard; or of strong, persistent, chemical or human waste odors 
sufficient to deter use of the facility, or give rise to a reasonable 
concern with respect to exposure to hazardous fumes. Such conditions 
include, but are not limited to, a toilet bowl filled with human waste, 
soiled toilet paper, or other products used in the toilet compartment, 
that are present due to a defective toilet facility that will not flush 
or otherwise remove waste; visible human waste residue on the floor or 
toilet seat that is present due to a toilet that overflowed; an 
accumulation of soiled paper towels or soiled toilet paper on the 
floor, toilet facility, or sink; an accumulation of visible dirt or 
human waste on the floor, toilet facility, or sink; and strong, 
persistent chemical or human waste odors in the compartment.
    Sanitation compartment means an enclosed compartment on a railroad 
locomotive that contains a toilet facility for employee use.
    Self-monitoring event recorder means an event recorder that has the 
ability to monitor its own operation and to display an indication to 
the locomotive operator when any data required to be stored are not 
stored or when the stored data do not match the data received from 
sensors or data collection points.
    Serious injury means an injury that results in the amputation of 
any appendage, the loss of sight in an eye, the fracture of a bone, or 
the confinement in a hospital for a period of more than 24 consecutive 
hours.
    Switching service means the classification of railroad freight and 
passenger cars according to commodity or destination; assembling cars 
for train movements; changing the position of cars for purposes of 
loading, unloading, or weighing; placing locomotives and cars for 
repair or storage; or moving rail equipment in connection with work 
service that does not constitute a train movement.
    Throttle position means any and all of the discrete output 
positions indicating the speed/tractive effort characteristic requested 
by the operator of the locomotive on which the throttle is installed. 
Together, the discrete output positions shall cover the entire range of 
possible speed/tractive effort characteristics. If the throttle has 
continuously variable segments, the event recorder shall capture 
either:
    (1) The exact level of speed/tractive effort characteristic 
requested, on a scale of zero (0) to one hundred percent (100%) of the 
output variable; or
    (2) A value converted from a percentage to a comparable 0 to 8 
digital signal.
    Time means either ``time-of-day'' or ``elapsed time'' (from an 
arbitrarily determined event) as determined by the manufacturer. In 
either case, the recorder must be able to convert to an accurate time-
of-day with the time zone stated unless it is GMT(UTC).
    Toilet facility means a system that automatically or on command of 
the user removes human waste to a place where it is treated, 
eliminated, or retained such that no solid or non-treated liquid waste 
is thereafter permitted to be released into the bowl, urinal, or room 
and that prevents harmful discharges of gases or persistent offensive 
odors.
    Transfer service means a freight train that travels between a point 
of origin and a point of final destination not exceeding 20 miles and 
that is not performing switching service.

[[Page 39791]]

    Unsanitary means having any condition in which any significant 
amount of filth, trash, or human waste is present in such a manner that 
a reasonable person would believe that the condition might constitute a 
health hazard; or strong, persistent, chemical or human waste odors 
sufficient to deter use of the facility, or give rise to a reasonable 
concern with respect to exposure to hazardous fumes. Such conditions 
include, but are not limited to, a toilet bowl filled with human waste, 
soiled toilet paper, or other products used in the toilet compartment, 
that are present due to a defective toilet facility that will not flush 
or otherwise remove waste; visible human waste residue on the floor or 
toilet seat that is present due to a toilet that overflowed; an 
accumulation of soiled paper towels or soiled toilet paper on the 
floor, toilet facility, or sink; an accumulation of visible dirt or 
human waste on the floor, toilet facility, or sink; and strong, 
persistent chemical or human waste odors in the compartment.
    Washing system means a system for use by railroad employees to 
maintain personal cleanliness that includes a secured sink or basin, 
water, antibacterial soap, and paper towels; or antibacterial waterless 
soap and paper towels; or antibacterial moist towelettes and paper 
towels; or any other combination of suitable antibacterial cleansing 
agents.
    3. Section 229.25 is amended by revising paragraph (e) to read as 
follows:


Sec.  229.25  Tests: Every periodic inspection.

* * * * *
    (e) Event Recorder. A microprocessor-based self-monitoring event 
recorder, if installed, is exempt from periodic inspection under 
paragraphs (e)(1) through (e)(5) of this section and shall be inspected 
annually as required by Sec.  229.27(d). Other types of event 
recorders, if installed, shall be inspected, maintained, and tested in 
accordance with instructions of the manufacturer, supplier, or owner 
thereof and in accordance with the following criteria:
    (1) A written or electronic copy of the instructions in use shall 
be kept at the point where the work is performed and a hard-copy 
version, written in the English language, shall be made available upon 
request of a governmental agent empowered to request it.
    (2) The event recorder shall be tested before any maintenance work 
is performed on it. At a minimum, the event recorder test shall include 
cycling, as practicable, all required recording elements and 
determining the full range of each element by reading out recorded 
data.
    (3) If the pre-maintenance test does not reveal that the device is 
recording all the specified data and that all recordings are within the 
designed recording elements, this fact shall be noted, and maintenance 
and testing shall be performed as necessary until a subsequent test is 
successful.
    (4) When a successful test is accomplished, a copy of the data-
verification results shall be maintained in any medium with the 
maintenance records for the locomotive until the next one is filed.
    (5) A railroad's event recorder periodic maintenance shall be 
considered effective if 90 percent of the recorders on locomotives 
inbound for periodic inspection in any given calendar month are still 
fully functional; maintenance practices and test intervals shall be 
adjusted as necessary to yield effective periodic maintenance.
    4. Section 229.27 is amended by revising the introductory text and 
by adding a new paragraph (d) to read as follows:


Sec.  229.27  Annual tests.

    A locomotive, except for an MU locomotive, shall be subjected to 
the tests and inspections prescribed in paragraphs (a), (b), and (c) of 
this section. An MU locomotive shall be subjected to the tests and 
inspections prescribed in paragraphs (b) and (c) of this section. A 
locomotive, including an MU locomotive, equipped with a microprocessor-
based event recorder that includes a self-monitoring feature, shall be 
subjected to the tests and inspections prescribed in paragraph (d) of 
this section, at intervals that do not exceed 368 calendar days.
* * * * *
    (d) A microprocessor-based event recorder with a self-monitoring 
feature equipped to verify that all data elements required by this part 
are recorded, requires further maintenance only if either or both of 
the following conditions exist:
    (1) The self-monitoring feature displays an indication of a 
failure. If a failure is displayed, further maintenance and testing 
must be performed until a subsequent test is successful. When a 
successful test is accomplished, a record, in any medium, shall be made 
of that fact and of any maintenance work necessary to achieve the 
successful result. This record shall be available at the location where 
the locomotive is maintained until a record of a subsequent successful 
test is filed.
    (2) A download of the event recorder, taken within the preceding 30 
days and reviewed for the previous 48 hours of locomotive operation, 
reveals a failure to record a regularly recurring data element or 
reveals that any required data element is not representative of the 
actual operations of the locomotive during this time period. If the 
review is not successful, further maintenance and testing shall be 
performed until a subsequent test is successful. When a successful test 
is accomplished, a record, in any medium, shall be made of that fact 
and of any maintenance work necessary to achieve the successful result. 
This record shall be kept at the location where the locomotive is 
maintained until a record of a subsequent successful test is filed. The 
download shall be taken from information stored in the certified 
crashworthy crash hardened event recorder memory module if the 
locomotive is so equipped.
    5. Section 229.135 is revised to read as follows:


Sec.  229.135  Event recorders.

    (a) Duty to equip and record. Except as provided in paragraphs (c) 
and (d) of this section, a train operated faster than 30 miles per hour 
shall have an in-service event recorder, of the type described in 
paragraph (b) of this section, in the lead locomotive. The presence of 
the event recorder shall be noted on Form FRA F6180-49A (by writing the 
make and model of event recorder with which the locomotive is equipped) 
under the REMARKS section, except that an event recorder designed to 
allow the locomotive to assume the lead position only if the recorder 
is properly functioning is not required to have its presence noted on 
Form FRA F6180-49A. For the purpose of this section, ``train'' includes 
a locomotive or group of locomotives with or without cars. The duty to 
equip the lead locomotive may be met with an event recorder located 
elsewhere than the lead locomotive provided that such event recorder 
monitors and records the required data as though it were located in the 
lead locomotive. The event recorder shall record the most recent 48 
hours of operation of the electrical system of the locomotive on which 
it is installed.
    (b) Equipment requirements. Event recorders shall monitor and 
record data elements required by this paragraph with at least the 
accuracy required of the indicators displaying any of the required 
elements to the engineer.
    (1) A lead locomotive originally manufactured before [date one (1) 
year after the effective date of the final rule],

[[Page 39792]]

including a controlling remote distributed power locomotive and an MU 
locomotive, except as provided in paragraphs (c) and (d) of this 
section, shall have an in-service event recorder that records the 
following data elements:
    (i) Train speed;
    (ii) Selected direction of motion;
    (iii) Time;
    (iv) Distance;
    (v) Throttle position;
    (vi) Applications and operations of the train automatic air brake;
    (vii) Applications and operations of the independent brake;
    (viii) Applications and operations of the dynamic brake, if so 
equipped; and
    (ix) Cab signal aspect(s), if so equipped and in use.
    (2) A locomotive originally manufactured before [date one (1) year 
after the effective date of the final rule] and equipped with an event 
recorder that uses magnetic tape as its recording medium shall have the 
recorder removed from service on or before [date six (6) years after 
the effective date of the final rule] and replaced with an event 
recorder with a certified crashworthy event recorder memory module that 
meets the requirements of appendix D of this part and that records at 
least the same number of data elements as the recorder it replaces.
    (3) A lead locomotive and a controlling remotely distributed power 
locomotive, other than an MU locomotive, originally ordered on or after 
[date one (1) year after effective date of the final rule] shall be 
equipped with an event recorder with a certified crashworthy event 
recorder memory module that meets the requirements of appendix D of 
this part. The certified event recorder memory module shall be mounted 
for its maximum protection. (Although other mounting standards may meet 
this standard, an event recorder memory module mounted behind and below 
the top of the collision posts and above the platform level is deemed 
to be mounted ``for its maximum protection.'') The event recorder shall 
record, and the certified crashworthy event recorder memory module 
shall retain, the following data elements:
    (i) Train speed;
    (ii) Selected direction of motion;
    (iii) Time;
    (iv) Distance;
    (v) Throttle position;
    (vi) Applications and operations of the train automatic air brake, 
including emergency applications. The system shall record, or provide a 
means of determining, that a brake application or release resulted from 
manipulation of brake controls at the position normally occupied by the 
locomotive engineer. In the case of a brake application or release that 
is responsive to a command originating from or executed by an on-board 
computer (e.g., electronic braking system controller, locomotive 
electronic control system, or train control computer), the system shall 
record, or provide a means of determining, the involvement of any such 
computer;
    (vii) Applications and operations of the independent brake;
    (viii) Applications and operations of the dynamic brake, if so 
equipped;
    (ix) Cab signal aspect(s), if so equipped and in use;
    (x) End-of-train (EOT) device loss of communication front to rear 
and rear to front;
    (xi) Electronic controlled pneumatic braking (ECP) message (and 
loss of such message), if so equipped;
    (xii) EOT armed, emergency brake command, emergency brake 
application;
    (xiii) Indication of EOT valve failure;
    (xiv) EOT brake pipe pressure (EOT and ECP devices);
    (xv) EOT marker light on/off;
    (xvi) EOT ``low battery'' status;
    (xvii) Position of on/off switch for headlights on lead locomotive;
    (xviii) Position of on/off switch for auxiliary lights on lead 
locomotive;
    (xix) Horn control handle activation;
    (xx) Locomotive number;
    (xxi) Locomotive automatic brake valve cut in;
    (xxii) Locomotive position in consist (lead or trail);
    (xxiii) Tractive effort;
    (xxiv) Cruise control on/off, if so equipped and in use; and
    (xxv) Safety-critical train control data routed to the locomotive 
engineer's display with which the engineer is required to comply, 
specifically including text messages conveying mandatory directives, 
and maximum authorized speed. The format, content, and proposed 
duration for retention of such data shall be specified in the product 
safety plan submitted for the train control system under subpart H of 
part 236 of this chapter, subject to FRA approval under this paragraph. 
If it can be calibrated against other data required by this part, such 
train control data may, at the election of the railroad, be retained in 
a separate certified crashworthy memory module.
    (4) An MU locomotive originally ordered on or after [date one (1) 
year after effective date of the final rule] shall be equipped with an 
event recorder with a certified crashworthy event recorder memory 
module that meets the requirements of Appendix D of this part. The 
certified event recorder memory module shall be mounted for its maximum 
protection. (Although other mounting standards may meet this standard, 
an event recorder memory module mounted behind the collision posts and 
above the platform level is deemed to be mounted ``for its maximum 
protection.'') The event recorder shall record, and the certified 
crashworthy event recorder memory module shall retain, the following 
data elements:
    (i) Train speed;
    (ii) Selected direction of motion;
    (iii) Time;
    (iv) Distance;
    (v) Throttle position;
    (vi) Applications and operations of the train automatic air brake, 
including emergency applications. The system shall record, or provide a 
means of determining, that a brake application or release resulted from 
manipulation of brake controls at the position normally occupied by the 
locomotive engineer. In the case of a brake application or release that 
is responsive to a command originating from or executed by an on-board 
computer (e.g., electronic braking system controller, locomotive 
electronic control system, or train control computer), the system shall 
record, or provide a means of determining, the involvement of any such 
computer;
    (vii) Applications and operations of the independent brake, if so 
equipped;
    (viii) Applications and operations of the dynamic brake, if so 
equipped;
    (ix) Cab signal aspect(s), if so equipped and in use;
    (x) Emergency brake application(s);
    (xii) Wheel slip/slide alarm activation (with a property-specific 
minimum duration);
    (xiii) Lead locomotive headlight activation switch on/off;
    (xiv) Lead locomotive auxiliary lights activation switch on/off;
    (xv) Horn control handle activation;
    (xvi) Locomotive number;
    (xvii) Locomotive position in consist (lead or trail);
    (xviii) Tractive effort;
    (xix) Brakes apply summary train line;
    (xx) Brakes released summary train line;
    (xxi) Cruise control on/off, if so equipped and used; and
    (xxii) Safety-critical train control data routed to the locomotive 
engineer's display with which the engineer is required to comply, 
specifically including text messages conveying mandatory directives, 
and maximum authorized speed. The format, content, and proposed 
duration for retention of such data shall be specified in the product 
safety plan submitted for the train control system under subpart H of

[[Page 39793]]

part 236 of this chapter, subject to FRA approval under this paragraph. 
If it can be calibrated against other data required by this part, such 
train control data may, at the election of the railroad, be retained in 
a separate certified crashworthy memory module.
    (5) A locomotive equipped with an event recorder that is 
remanufactured, as defined in this part, on or after [date two (2) 
years after effective date of the final rule], shall be equipped with 
an event recorder with a certified crashworthy event recorder memory 
module that meets the requirements of Appendix D to this part and is 
capable of recording, at a minimum, the same data as the recorder that 
was on the locomotive before it was remanufactured.
    (c) Removal from service. Notwithstanding the duty established in 
paragraph (a) of this section to equip certain locomotives with an in-
service event recorder, a railroad may remove an event recorder from 
service and, if a railroad knows that an event recorder is not 
monitoring or recording required data, shall remove the event recorder 
from service. When a railroad removes an event recorder from service, a 
qualified person shall record the date that the device was removed from 
service on Form FRA F6180-49A, under the REMARKS section, unless the 
event recorder is designed to allow the locomotive to assume the lead 
position only if the recorder is properly functioning.
    (d) Response to defective equipment. Notwithstanding the duty 
established in paragraph (a) of this section to equip certain 
locomotives with an in-service event recorder, a locomotive on which 
the event recorder has been taken out of service as provided in 
paragraph (c) of this section may remain as the lead locomotive only 
until the next calendar-day inspection. A locomotive with an 
inoperative event recorder is not deemed to be in improper condition, 
unsafe to operate, or a non-complying locomotive under Sec. Sec.  229.7 
and 229.9, and, other than the requirements of appendix D of this part, 
the inspection, maintenance, and testing of event recorders are limited 
to the requirements set forth in Sec. Sec.  229.25(e) and 229.27(d).
    (e) Preserving accident data. If any locomotive equipped with an 
event recorder, or any other locomotive-mounted recording device or 
devices designed to record information concerning the functioning of a 
locomotive or train, is involved in an accident/incident that is 
required to be reported to FRA under part 225 of this chapter, the 
railroad that was using the locomotive at the time of the accident 
shall, to the extent possible, and to the extent consistent with the 
safety of life and property, preserve the data recorded by each such 
device for analysis by FRA. This preservation requirement permits the 
railroad to extract and analyze such data, provided the original 
downloaded data file, or an unanalyzed exact copy of it, shall be 
retained in secure custody and shall not be utilized for analysis or 
any other purpose except by direction of FRA or the National 
Transportation Safety Board. This preservation requirement shall expire 
30 days after the date of the accident unless FRA or the Board notifies 
the railroad in writing that the data are desired for analysis.
    (f) Relationship to other laws. Nothing in this section is intended 
to alter the legal authority of law enforcement officials investigating 
potential violation(s) of State criminal law(s), and nothing in this 
chapter is intended to alter in any way the priority of National 
Transportation Safety Board investigations under 49 U.S.C. 1131 and 
1134, nor the authority of the Secretary of Transportation to 
investigate railroad accidents under 49 U.S.C. 5121, 5122, 20107, 
20111, 20112, 20505, 20702, 20703, and 20902.
    (g) Disabling event recorders. Except as provided in paragraph (c) 
of this section, any individual who willfully disables an event 
recorder is subject to civil penalty and to disqualification from 
performing safety-sensitive functions on a railroad as provided in 
Sec.  218.55 of this chapter, and any individual who tampers with or 
alters the data recorded by such a device is subject to a civil penalty 
as provided in appendix B of part 218 of this chapter and to 
disqualification from performing safety-sensitive functions on a 
railroad if found unfit for such duties under the procedures in part 
209 of this chapter.
    6. A new appendix D is added to part 229 to read as follows:

Appendix D to Part 229--Criteria for Certification of Crashworthy Event 
Recorder Memory Module

    Section 229.135(b) requires that certain locomotives be equipped 
with an event recorder that includes a certified crashworthy event 
recorder memory module. This appendix prescribes the requirements 
for certifying an event recorder memory module (ERMM) as 
crashworthy, including the performance criteria and test sequence 
for establishing the crashworthiness of the ERMM as well as the 
marking of the event recorder containing the crashworthy ERMM.

A. General Requirements

    1. Each manufacturer that represents its ERMM as crashworthy 
shall, by marking it as specified in Section B of this appendix, 
certify that the ERMM meets the performance criteria contained in 
this appendix and that test verification data are available to a 
railroad or to FRA upon request.
    2. The test verification data shall contain, at a minimum, all 
pertinent original data logs and documentation that the test sample 
preparation, test set up, test measuring devices and test procedures 
were performed by designated, qualified personnel using recognized 
and acceptable practices. Test verification data shall be retained 
by the manufacturer or its successor as long as the specific model 
of ERMM remains in service on any locomotive.
    3. A crashworthy ERMM shall be marked by its manufacturer as 
specified in Section B of this appendix.

B. Marking Requirements

    1. The outer surface of the event recorder containing a 
certified crashworthy ERMM shall be colored international orange. In 
addition, the outer surface shall be inscribed, on the surface 
allowing the most visible area, in black letters on an international 
orange background, using the largest type size that can be 
accommodated, with the words CERTIFIED DOT CRASHWORTHY, followed by 
the ERMM model number (or other such designation), and the name of 
the manufacturer of the event recorder. This information may be 
displayed as follows:
[GRAPHIC] [TIFF OMITTED] TP30JN04.006


[[Page 39794]]


    Marking ``CERTIFIED DOT CRASHWORTHY'' on an event recorder 
designed for installation in a railroad locomotive is the 
certification that all performance criteria contained in this 
appendix have been met and all functions performed by, or on behalf 
of, the manufacturer whose name appears as part of the marking, 
conform to the requirements specified in this appendix.
    2. Retro-reflective material shall be applied to the edges of 
each visible external surface of an event recorder containing a 
certified crashworthy ERMM.

C. Performance Criteria for the ERMM

    An ERMM is crashworthy if it has been successfully tested for 
survival under conditions of fire, impact shock, static crush, fluid 
immersion, and hydro-static pressure contained in one of the two 
tables contained in this section of appendix D. (See Tables 1 and 2 
of this appendix.) Each ERMM must met the individual performance 
criteria in the sequence established in Section D of this appendix. 
Performance criteria are deemed to be met if the ERMM has preserved 
all of the data stored in it. The data set stored in the ERMM to be 
tested shall include all the recording elements required by Sec.  
229.135(b). The following tables describe alternative performance 
criteria that may be used when testing an ERMM's crashworthiness. A 
manufacturer may utilize either table during its testing but may not 
combine the criteria contained in the two tables.

                               Table 1.--Acceptable Performance Criteria--Option A
----------------------------------------------------------------------------------------------------------------
              Parameter                         Value                   Duration                 Remarks
----------------------------------------------------------------------------------------------------------------
Fire, High Temperature...............  750[deg]C (1400[deg]F).  60 minutes.............  Heat source: Oven.
Fire, Low Temperature................  260[deg]C (500[deg]F)..  10 hours...............
Impact Shock.........................  55g....................  100 ms.................  \1/2\ sine crash pulse.
Static Crush.........................  110kN (25,000 lbf).....  5 minutes..............
Fluid Immersion......................  1 Diesel......  Any single fluid, 48
                                                                 hours.
                                       2 Diesel
                                       Water
                                       Salt Water
                                       Lube Oil
                                       Fire Fighting Fluid....  10 minutes, following    Immersion followed by
                                                                 immersion above.         48 hours in a dry
                                                                                          location with out
                                                                                          further disturbance.
Hydrostatic Pressure.................  Depth equivalent = 15    48 hours at nominal
                                        m. (50 of ft.).          temperature of
                                                                 25[deg]c (77[deg]F).
----------------------------------------------------------------------------------------------------------------


                               Table 2.--Acceptable Performance Criteria--Option B
----------------------------------------------------------------------------------------------------------------
              Parameter                         Value                   Duration                 Remarks
----------------------------------------------------------------------------------------------------------------
Fire, High Temperature...............  1000[deg]C (1832[deg]F)  60 minutes.............  Heat source: Open
                                                                                          flame.
Fire, Low Temperature................  260[deg]C (500[deg]F)..  10 hours...............  Heat source: Oven.
Impact Shock--Option 1...............  23gs...................  250 ms.................
Impact Shock--Option 2...............  55gs...................  100 ms.................  \1/2\ sine crash pulse.
Static Crush.........................  111.2kN (25,000lbf)....  5 minutes..............
                                       445.5kN (10,000lbf)....  (single ``squeeze'')...  Applied to 25% of
                                                                                          surface of largest
                                                                                          face.
Fluid Immersion......................  1 Diesel......  48 hours each..........
                                       2 Diesel
                                       Water
                                       Salt Water
                                       Lube Oil
                                       Fire Fighting Fluid
Hydrostatic Pressure.................  46.62 psig (= 30.5 m.    48 hours at nominal
                                        or 100 ft.).             temperature of
                                                                 25[deg]c (77[deg]F).
----------------------------------------------------------------------------------------------------------------

D. Testing Sequence

    In order to reasonably duplicate the conditions an event 
recorder may encounter, the ERMM shall meet the various performance 
criteria, described in Section C of this appendix, in a set 
sequence. (See Figure 1). If all tests are done in the set sequence 
(single branch testing), the same ERMM must be utilized throughout. 
If a manufacturer opts for split branch testing, each branch of the 
test must be conducted using an ERMM of the same design type as used 
for the other branch. Both alternatives are deemed equivalent, and 
the choice of single branch testing or split branch testing may be 
determined by the party representing that the ERMM meets the 
standard.

E. Testing Exception

    If a new model ERMM represents an evolution or upgrade from an 
older model ERMM that was previously tested and certified as meeting 
the performance criteria contained in Section C of this appendix, 
the new model ERMM need only be tested for compliance with those 
performance criteria contained in Section C of this appendix that 
are potentially affected by the upgrade or modification. FRA will 
consider a performance criteria to not be potentially affected if a 
preliminary engineering analysis or other pertinent data establishes 
that the modification or upgrade will not affect the crashworthy 
performance criteria established by the older model ERMM. The 
manufacturer shall retain and make available to FRA upon request any 
analysis or data relied upon to make a determination relating to the 
crashworthiness impacts of any upgrade or modification to an older 
model ERMM.

[[Page 39795]]

[GRAPHIC] [TIFF OMITTED] TP30JN04.005


    Issued in Washington, DC, on June 23, 2004.
Betty Monro,
Acting Administrator, Federal Railroad Administration.

[FR Doc. 04-14636 Filed 6-29-04; 8:45 am]
BILLING CODE 4910-06-P