[Federal Register Volume 70, Number 125 (Thursday, June 30, 2005)]
[Rules and Regulations]
[Pages 37920-37944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12878]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 229



Locomotive Event Recorders; Final Rule

  Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA-2003-16357, Notice No. 3]
RIN 2130-AB34


Locomotive Event Recorders

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

ACTION: Final rule.

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SUMMARY: FRA is issuing revisions to the regulations governing 
locomotive event recorders to improve the crashworthiness of railroad 
locomotive event recorders and to enhance the quality of information 
available for post-accident investigations. FRA is amending its 
existing regulations in four major ways: By requiring that a new 
locomotive have an event recorder with a ``hardened'' memory module, 
proven by a requirement that the memory module preserve stored data 
throughout a sequence of prescribed tests; by requiring that this event 
recorder on a new locomotive collect certain additional types of 
information; by simplifying standards for inspecting, testing, and 
maintaining all event recorders; and by requiring the phasing out, over 
a four-year period, of event recorders on existing locomotives that use 
magnetic tape as a data storage medium and their replacement with event 
recorders with a certified survivable version of its previous event 
recorder. FRA is also revising the definitions contained in the 
existing regulation to remove the letter designations so that the 
defined terms are simply presented in alphabetical order.

EFFECTIVE DATE: This final rule is effective October 1, 2005.

ADDRESSES: Petitions: Any petitions for reconsideration 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 20590-001.
     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.
    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 Safety Board (NTSB) had previously remarked on 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

[[Page 37921]]

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 and Trainmen (BLET)
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,
BLET,
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 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 the NPRM issued 
in this matter. Minutes of these meetings have been made part of the 
docket in this proceeding. The Working Group reached full consensus on 
a recommended 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

[[Page 37922]]

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. 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.
    On June 30, 2004, FRA published an NPRM containing the 
recommendations of the Working Group and the full RSAC. See 69 FR 
39774. The NPRM provided for a 60-day comment period and provided 
interested parties the opportunity to request a public hearing. Based 
on the comments received, FRA issued a notice on September 2, 2004, 
scheduling a public hearing for September 30, 2004 and extending the 
comment period an additional 41 days to October 11, 2004. See 69 FR 
54255 (September 8, 2004). FRA received comments from 22 interested 
parties, most of these were private citizens or private law firms.
    Subsequent to the close of the comment period, the Working Group 
conducted a meeting to review and discuss the comments received in 
response to the NPRM. The Working Group discussed all of the issues 
raised in the comments and considered various methods by which to 
address the comments. Minutes of these meetings have been made part of 
the docket in this proceeding. Based on information and discussions 
held at these meetings, the Working Group developed a potential 
recommendation for a final rule. The Working Group reached full 
consensus on a recommended proposal for a final rule on May 3, 2005, 
and transmitted the document as its recommendation to the full RSAC for 
its concurrence via mail ballot on May 13, 2005. On June 6, 2005, 
twenty-eight of the forty-five voting members of the full RSAC had 
returned their ballots on the regulatory recommendation submitted by 
the Working Group. All twenty-eight of the voting members concurred 
with and accepted the Working Group's recommendation. Thus, the Working 
Group's recommendation related to this final rule became the full 
RSAC's recommendation to FRA. FRA further reviewed the recommendation 
and adopted it with minor changes for purposes of clarity.
    Throughout the preamble discussion of this final rule, 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 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. Section-by-Section Analysis

    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 final rule requires 
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.
    As noted previously, FRA received comments from 22 interested 
parties in response to the NPRM. The specific comments are addressed 
and discussed in the section-by-section analysis related to the 
provision that was the subject of the submitted comment.
    Section 229.5. This section contains an extensive set of 
definitions. FRA intends these definitions to clarify the meaning of 
terms as they are used in the text of the final rule. The final rule 
retains all of the definitions proposed in the NPRM with the only 
changes being a slight modification of the definition of the term 
``distributed power system'' for clarity and the addition of a 
definition for the term ``DMU Locomotive,'' which will be explained in 
detail below. One commenter suggested the addition of a definition for 
the term ``positive train control (PTC)'' because event recorders are 
an integral part of any PTC system. FRA agrees with the RSAC's 
recommendation not to include a definition for PTC in this final rule 
because the term is not used in the rule text contained in this part 
and the term is adequately defined in the new regulations related to 
train control systems recently added to 49 CFR part 236. See 70 FR 
11051 (March 7, 2005).
    The final rule entirely rewrites the ``definitions'' section as it 
currently exists in part 229 in order to remove the letter designations 
from the subparagraphs so that the terms are simply presented in 
alphabetical order. Several of the definitions introduce new concepts 
or new terminologies that require further discussion. The following 
discussion is arranged in the order in which the added or revised 
definitions appear in the rule text.
    Controlling remote distributed power locomotive is a new definition 
added to this final rule in response to concerns discussed in comments 
received in response to the NPRM. The definition is being added in 
order to clearly identify what constitutes a controlling remote 
distributed power locomotive addressed by the requirements of this 
final rule. A controlling remote distributed power locomotive means the 
locomotive in a distributed power consist that receives the coded 
signal from the lead locomotive consist of the train whether commanded 
automatically by the distributed power system or independently by the 
locomotive engineer. A distributed power system means a system that 
provides 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.
    Cruise control, an added definition, 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

[[Page 37923]]

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 washers, are not considered cruise controls for purposes of 
this part.
    Data element, an added definition, clarifies 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 final rule 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, an added definition, describes a system 
to allow the engineer in the lead unit to 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. FRA notes that this definition has been modified 
slightly from that proposed in the NPRM. FRA agrees with the RSAC's 
recommendation that the word ``automatic'' used in the proposed 
definition did not accurately reflect the way distributed power systems 
operate. Distributed power systems allow for either synchronous or non-
synchronous operation, only the former of which results in the 
distributed units responding ``automatically'' to the controls of the 
lead locomotive. Thus, the definition has been modified from that 
contained in the NPRM by removing the word ``automatic'' to avoid any 
misunderstanding regarding how these systems function.
    DMU locomotive, a new definition, is being added to this final rule 
in order to specifically identify diesel-powered multiple unit 
locomotives. Diesel-powered MUs are just starting to be used by a small 
number of passenger railroads. However, FRA and the industry believes 
that the use of DMU locomotives will expand significantly in the 
future. For purposes of event recorders, DMU locomotives will be 
treated the same as MU locomotives. For other portions of part 229 the 
two types of locomotives may be treated differently.
    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 final rule requires the event 
recorders on new locomotives to record more data elements than the 
recorders required by the regulation as it existed prior to this final 
rule.
    FRA received a comment from one party questioning whether the 48-
hour monitoring and recording requirement for event recorders is 
sufficient, without further elaborating on the need for such an 
extension. FRA has not found the need to require the monitoring and 
recording of train information beyond the 48 hours required under the 
existing regulation. The RSAC, through the Working Group, discussed 
this issue and determined that the 48-hour provision adequately 
captures the necessary data and recommended no increase to the time 
frame. As FRA has not found the need to require the monitoring and 
recording of train information beyond the 48 hours required under the 
existing regulation, FRA has adopted the RSAC's recommendation. 
Furthermore, any increase to the amount of data that must be stored 
could significantly increase the cost of producing and acquiring the 
event recorder, and FRA is not willing to impose additional costs 
without an established need.
    In the NPRM, FRA noted that the issues of accuracy, resolution, and 
sampling rate remained unresolved, provided a brief discussion related 
to sampling rates, and requested comment from interested parties on 
this subject. See 69 FR 39779-80. FRA received comments from the BLET 
supporting the adoption of the IEEE sampling rate standard detailed in 
the preamble to the NPRM. FRA also received comments from the AAR 
objecting to the use of the IEEE sampling rate standard based on its 
belief that the standard is too high and not applicable to railroad 
operations. AAR asserts that a sampling rate of 50 samples per second 
is unnecessary as events do not happen that fast on railroads and the 
most modern locomotive event recorders only record data once per 
second. Furthermore, increasing the sampling rate above what is 
currently being manufactured would significantly increase the costs of 
the recorders. AAR also noted that Transport Canada's regulations do 
not mandate a specific sampling rate.
    The issue was discussed by the Working Group, and one manufacturer 
explained that current microprocessor based event recorders sample at 
least 20 times per second and record one time per second. Thus, event 
recorders do not record at anywhere near the rate at which they sample. 
The Working Group recommended that no sampling rate be mandated in the 
regulation for the above-noted reasons. FRA believes that the currently 
manufactured event recorders have an acceptable sampling rate, and FRA 
is not aware of any instance where a higher sampling rate was 
necessary. Moreover, FRA and 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 focus is 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. In addition, microprocessor-based event 
recorders run so fast that the sampling intervals are naturally short, 
and they may be adjusted differently for different elements. Thus, FRA 
agrees with the recommendation of the Working Group and RSAC and will 
not mandate a specific sampling rate in this final rule but will 
continue to monitor the operation of event recorders to determine if 
further regulatory action is necessary on this issue.
    Event recorder memory module, a new definition, describes the 
portion of the event recorder that will be required to meet the 
crashworthiness standard contained 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

[[Page 37924]]

to be captured by the event recorder when a railroad utilizes a train 
control system pursuant to Part 236 of this chapter.
    Remanufactured locomotive, a new definition, is added to clarify 
when an existing event recorder-equipped locomotive must be equipped 
with a crashworthy event recorder.
    Self-monitoring event recorder, a new definition, is added to state 
clearly the conditions under which an event recorder does not require 
periodic maintenance. One member of the Working Group, in a written 
submission to FRA, suggested 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 either 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 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. Although FRA sought comments from 
interested parties on this suggested change to the definition no 
comments or suggestions were received and no support for such a change 
was indicated. Consequently, FRA is retaining the definition proposed 
in the NPRM in this final rule.
    Throttle position, a new definition, is added to capture the 
industry understanding about this parameter of locomotive operation. 
The NPRM contains a detailed discussion regarding the use of the term 
``throttle position,'' which provides additional information and 
background regarding the nature and meaning of the term as used in this 
final rule. See 69 FR 39777. 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 final rule 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-bit digital system. In the NPRM, FRA sought comment 
on the need to specify specific parameters by which throttle position 
is recorded. See 69 FR 39777 and 39781. NTSB was the only party 
responding, expressing its support and need for the definition. 
Therefore, the final rule retains the definition as proposed in the 
NPRM.
    Section 229.25. The final rule retains the proposed amendment to 
paragraph (e) of this section 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.
    Older styled event recorders used magnetic tape cartridges as their 
recording medium; while this final rule will ``sunset'' such equipment, 
the equipment still needs to be maintained in order to perform 
satisfactorily during the period it remains in service. The final 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 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 preprogrammed for that purpose. Data 
necessary for accident analysis, as required in this final rule, would 
be routed to a crash-hardened memory module.
    In comments, the NTSB recommended provisions for testing the full 
range of all parameters periodically and for testing the sensors, 
transducers, or wiring for data elements not cycled during the normal 
operation more often than annually. However, NTSB provided no data or 
significant number of instances relating to the failure of sensors, 
transducers, or wiring that are not detected during the course of the 
currently required periodic maintenance of either the locomotive itself 
or the locomotive event recorder. A requirement to independently test 
the sensors, transducers, and wiring involved with capturing the data 
elements required by this final rule would add a significant cost to 
the conduct of periodic inspections. Without some proven established 
need for these additional inspections, FRA is not willing to impose 
that additional cost at this time. FRA continues to recognize that 
railroads cannot test event recorders over the full range of all 
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 final 
rule requires ``cycling, as practicable, all required recording 
elements * * * '' in recognition of this fact.
    The NTSB also sought clarification as to whether the proposed rule 
would require event recorder maintenance to be recorded on the 
locomotive ``blue card'' (form FRA F6180-49A) maintained in the cab of 
the locomotive. While the ``blue card'' does not contain a specific 
line-item related to event recorders, the regulation does require that 
the date, place, and signature of the person performing the required 
periodic inspections under Sec. Sec.  229.25 and 229.27 be entered on 
the form. Thus, in order to properly sign and date the ``blue card,'' 
the required inspection, testing, and maintenance must have been 
performed on the event recorder and any dates on the form would be 
equally applicable to the event reorder as to any other component 
required to be addressed during a periodic inspection.
    The final rule also retains the proposed provisions for maintaining 
records related to periodic inspections and maintenance instructions. 
Although the final rule does not specify how records of successful 
tests are to be maintained, FRA has no objection to keeping the records 
electronically,

[[Page 37925]]

provided the electronic ``record'' is the full and complete ``data 
verification result'' required by this 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. FRA's expectation is that 
electronic records will be made available immediately upon request.
    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 final rule make it unnecessary to discuss the specifics of whether 
or not the Electronic Signatures Act applies to the subject matter of 
this regulation 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 final 
rule requires on the ``blue card'' (Form FRA F6180-49A), all other 
records required by this final rule may be kept electronically. 
Paragraph (e)(1) of this section requires that the maintenance 
instructions for the event recorder may be kept electronically, but 
must be available 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. In addition, the applicable 
``blue 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.
    Section 229.27. The final rule retains the proposed amendment to 
the introductory text of this section and retains paragraph (d) of this 
section as proposed in the NPRM without change. Paragraph (d) addresses 
the annual maintenance requirements for microprocessor-based event 
recorders with a self-monitoring features. (Non-self-monitoring 
recorders require maintenance at quarterly intervals, under the 
requirements of Sec.  229.25). Paragraph (d) contains two potential 
triggers for requiring maintenance on such event recorders. A self-
monitoring microprocessor-based event recorder will require 
``maintenance'' in the sense of opening the box and making adjustments 
only if either or both of the following occur: (1) The event recorder 
displays an indication of a failure, or (2) the railroad downloads and 
reviews the data for the past 48 hours of the locomotive's use and 
finds that any required channels are not recording data representative 
of the actual operations of the locomotive during this time period.
    Essentially all modern event recorder systems are equipped with 
self-test circuitry that constantly compares data flowing in with the 
data being stored and that signals (typically with a red light) 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. 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 recommended in its comments that 
the maintenance of locomotive event recorders should verify that the 
entire event recorder system--including the recorder, the memory 
module, the cabling, the transducers, and the sensors--is accurately 
recording what the locomotive has actually done. As noted above, the 
NTSB provided no data relating to the failure of sensors, transducers, 
or wiring that are not detected during the course of the currently 
required periodic maintenance of either the locomotive itself or the 
locomotive event recorder or during the self-test of more modern event 
recorders. Rather than impose a significant periodic inspection cost by 
specifically requiring the inspection of such components, FRA believes 
that the provisions related to the annual inspection will ensure the 
accuracy of the devices. To ensure that the recorder is indeed 
capturing data representative of the locomotive's actual operations, 
the final rule retains the proposed requirement 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 must then be compared to the known 
operations of the locomotive over the past 48 hours and, if all 
required channels are recording and the required elements are 
representative of actual operations, the recorder--assuming always that 
the fault light is not on--will require no further maintenance or 
checking.
    FRA 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 also eased the burden of specific 
``annual test dates'' by acknowledging 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. The added flexibility provided by this section could mean that 
locomotives equipped with microprocessor-based event recorders need 
never visit a shop just to check the event recorder.
    The final rule also retains the proposed provisions for maintaining 
records related to annual inspections. Although the final rule 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 full and complete and contains all the 
information required by this 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. In addition, whatever medium is used to 
maintain the record, the record is to be kept at the location where the 
locomotive is maintained until a record of a subsequent successful test 
is filed.
    One commenter on the NPRM expressed concern as to whether railroads 
maintain maintenance and repair instructions at each shop for each type 
of event recorder on which they perform periodic maintenance. A 
commenter also questioned whether there was a need to include 
qualification standards for individuals downloading and analyzing event

[[Page 37926]]

recorder data. FRA is not aware of any instances where railroads do not 
have appropriate maintenance and repair manuals available for the event 
recorders they service. Members of the RSAC Working Group indicated 
that they have adequate access to maintenance and repair manuals for 
all types of event recorders. Furthermore, a person should not be 
signing the blue card indicating performance of event recorder 
maintenance if that individual is not able and qualified to perform the 
required tasks. Neither FRA nor the NTSB has found unqualified or 
improperly trained individuals performing event recorder downloads or 
analysis. Moreover, on December 12, 2004, AAR implemented a mandatory 
locomotive event recorder download standard applicable to all member 
railroads to minimize operational and maintenance incompatibilities. 
See AAR Manual of Standards and Recommended Practices, Section M, AAR 
Standard S-5512, ``Locomotive Event Recorder Download Standard'' 
(November 2004). The standard defines the physical and logical download 
interfaces, various download methods, and the required protocol to 
support serial download of event recorders. Consequently, FRA does not 
see a need, at this time, to impose strict Federal qualification 
standards on those individuals responsible for the maintenance and 
downloading of event recorders. FRA will continue to monitor this issue 
should the need for additional regulation become necessary.
    Section 229.135. Paragraph (a) retains the changes to this 
paragraph proposed in the NPRM. This paragraph modifies 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, in written responses to the NPRM, continue to question 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 commenters 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. However, these commenters agree that the cost of this 
requirement is de minimus. This item was requested by the NTSB, and 
based on the NTSB's stated need for the information, FRA has decided to 
retain the provision in this final rule. FRA continues to believe that 
there is very little burden placed on the railroads by requiring the 
information to be recorded because the presence of any such recorder is 
already required under the existing regulation and the benefit to an 
accident investigator may be considerable.
    Several commenters suggested the need to expand the applicability 
of the event recorder requirements. These commenters recommended that 
any locomotive operating over a public or private grade crossing be 
equipped with an event recorder regardless of its operating speed. One 
commenter believed the requirements for event recorders should be 
applied to any remote controlled locomotive. The primary purpose of 
this rulemaking proceeding is to increase the survivability of 
locomotive event recorders and to ensure that necessary information is 
being captured by the devices for use in accident investigations. FRA 
did not intend to expand, nor has it seen a need to expand, the scope 
of what locomotives were covered by the regulations. To expand the 
applicability of these regulations as suggested would add a significant 
and unjustified cost to the industry. FRA previously determined that 
lower speed operations (i.e., those under 30 mph) do not result in 
complex accidents requiring the analysis of event recorder data. FRA is 
not aware of any data or information that contradicts this view. In 
addition, there are currently no remote controlled locomotives being 
operated at speeds exceeding 30 mph nor is such operation being 
considered in the immediate future by the industry. FRA will continue 
to monitor these types of operations and will take appropriate action 
should they change to include higher speed operation. Moreover, the on-
board equipment on most remote controlled locomotives capture and 
retain inputs from the remote unit. Consequently, FRA does not see a 
need at this time to expand the scope of the event recorder 
requirements to either locomotives operating under 30 mph or to remote 
controlled locomotives.
    In its comments to the NPRM, NTSB sought clarification regarding 
the regulation's applicability to manned helper locomotives operating 
faster than 30 mph. The rule's application to these types of 
locomotives was not specifically considered when the NPRM was 
originally issued. After discussing the matter with the Working Group, 
the members of the Working Group agreed that to include these types of 
locomotives would not be a significant, if any, cost to the industry 
because most helper locomotives are operated by Class I railroads and 
are already equipped with event recorders. The Working Group indicated 
its acceptance of requiring event recorders on such locomotives 
provided that it was limited to the lead manned helper locomotive 
because in most instances the leading manned locomotive in a helper 
locomotive consist is the locomotive that is equipped with an event 
recorder. FRA agrees with the recommendation of the Working Group and 
the RSAC on this issue and believes that the information retained on 
these units could prove valuable in accident investigations where 
helper locomotives are present. Consequently, the final rule slightly 
amends the proposed applicability provisions contained in paragraphs 
(b)(1) and (b)(3) to include a specific reference to lead manned helper 
locomotives.
    In its comments on the NPRM, BLET asserted that any controlling 
locomotive operated in positive train control (PTC) territory should be 
required to be equipped with a crashworthy event recorder capable of 
capturing all of the data elements proposed in this regulation. 
Although FRA understands BLET's position, FRA does not believe that 
such a requirement is necessary at this time. FRA believes that such a 
requirements might inhibit the current and future testing or 
implementation of PTC type systems. In addition, such a provision would 
likely have a disparate impact on smaller railroads that share trackage 
with larger operations. Furthermore, virtually all of the PTC systems 
being developed already include data capturing devices and hardware. 
Consequently, FRA believes, and the RSAC recommendation concurs, that 
the issues related to the type of data to be recorded and the method by 
which the data is captured on PTC systems is an issue better addressed 
in the product safety plans required in subpart H of the recently 
issued final rule related to Standards for Development and Use of 
Processor-Based Signal and Train Control Systems (PTC final rule). See 
70 FR 11051 (March 7, 2005).
    Paragraph (b) essentially retains the proposed requirements for 
when a new or remanufactured locomotive must be equipped with a 
certified crashworthy memory modules and retains the proposed 
information that must be captured and stored by both new and existing 
event recorders. The provisions contained in this paragraph have been 
slightly modified to include certain clarifications related to 
identifying covered locomotives and to include specific outside dates 
when certain requirements become applicable. These modifications are 
discussed in detail below.

[[Page 37927]]

    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 final rule specifies that the equipment required on a 
specific locomotive is determined by the date it was originally 
manufactured. The introductory language in this paragraph makes clear 
that the recorded data be at least as accurate as the data required to 
be displayed to the engineer. Further, the final rule retains the 
proposed language requiring 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 is deemed to 
be appropriately mounted.
    Several members of the Working Group continued to emphasize that 
the language contained in the proposed provision and retained in this 
final rule regarding the placement of the crashworthy event recorder 
memory module may be interpreted to limit the placement of the module. 
These parties 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 retained in 
this final rule is intended to provide one example of a module properly 
mounted for its maximum protection. FRA continues to agree that there 
may be other mounting options that provide at least equal protection, 
and has retained the proposed language in the final rule text making 
this point very clear.
    One commenter to the NPRM recommended that FRA should require 
railroads to utilize global positioning satellite (GPS) receivers to 
calculate and provide the time, location, speed, and direction elements 
to the event recorders. This commenter states that such technology 
would provide an absolute time standard. This commenter provided no 
indication as to how this would be accomplished and did not provide any 
cost estimates regarding the implementation of the suggestion. Neither 
the Working Group or the full RSAC believed there was a need to specify 
a method by which the required data is derived or obtained. FRA agrees 
with the recommendation of these parties. FRA believes that any such 
requirement would add a significant cost to the final rule while adding 
an unknown benefit, if any.
    Certain provisions in paragraph (b) have been slightly modified to 
include a placed-in-service date after which the equipment must be 
properly equipped. In the NPRM, the requirements relating to when a new 
locomotive is required to be equipped with a crashworthy event recorder 
memory module were based solely on the date that the locomotive was 
originally ordered. See 69 FR 39792. In the preamble to the NPRM, FRA 
voiced its concern that no outside parameter has been included in the 
proposal for newly manufactured locomotives. See 69 FR 39782. Thus, as 
proposed the regulation would have allowed any locomotive ordered prior 
to the one-year period not to be required to be equipped with a 
crashworthy event recorder even if not delivered and placed in-service 
until years later. FRA stated that it believed there should be a placed 
in-service date included in the final rule after which any new 
locomotive must be properly equipped. FRA sought 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 date is properly equipped with a 
crashworthy memory module.
    Members of the Working Group, including AAR, APTA, and its member 
railroads, discussed this issued at length. These parties noted the 
need to ensure that any date inserted into the final rule must allow 
for existing contracts and contracts that are put into place within one 
year after the effective date of the final rule to be completed in 
order to prevent additional cost burdens on these contracts. These 
parties suggested that a period of four years after the effective date 
of the final rule would provide the necessary assurances. Therefore, 
the Working Group recommended a four-year period to the full RSAC in 
response to FRA's request. In turn, the RSAC included the four year 
period in its recommendation to FRA. FRA believes that the recommended 
four-year placed in-service date is reasonable and consistent with 
other federal regulations. Consequently, FRA has accepted the 
recommendation and has modified subparagraphs (b)(3) and (b)(4) to 
require that any identified locomotive ordered one year after the 
effective date of the final rule or placed in-service four years after 
the effective date of the rule must be equipped with a crashworthy 
event recorder memory module.
    Subparagraph (b)(1) contains the equipment requirements for current 
event recorders that use a recording medium other than magnetic tape. 
This section retains the intent of the proposal but the language has 
been slightly modified in this final rule in order to make it 
consistent with the provisions related to when new locomotives are 
required to be equipped with crashworthy event recorder memory modules. 
The revised language makes clear that any locomotive ordered within one 
year of the effective date of the final rule and placed in service 
within four years of the effective date of the rule may continue to 
utilize currently manufactured event recorders that use a recording 
medium other than magnetic tape. 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 crashworthy 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.
    Notwithstanding the above discussion, 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 sought 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

[[Page 37928]]

memory module described in Appendix D of this rule. See 69 FR 39783.
    FRA received a limited number of comments in response to this 
request. AAR asserted that there is no need to establish an outside 
date on replacement event recorders as the marketplace and economics 
will drive the railroad's decisions. BLE suggested that any replacement 
event recorder eighteen months after the effective date of the final 
rule should be outfitted with a crashworthy memory module. Several 
members of the Working Group noted that any date considered must allow 
railroads to use up their existing stock of event recorders that are 
not equipped with crashworthy memory modules. AAR, APTA and their 
member railroads suggested a date of January 1, 2010 as the date after 
which any replacement event recorder acquired must be equipped with a 
crashworthy memory module pursuant to Appendix D of this final rule. 
These parties claim that a provision drafted in such a manner would 
allow railroads to continue to acquire solid state event recorders for 
the immediate future and would allow railroads to deplete their in-
stock event recorders without imposing any significant financial burden 
on the industry. The full RSAC included this date in its recommendation 
to FRA. After reviewing the recommendation, FRA agrees that a cut-off 
date of January 1, 2010 for the purchase of newly manufactured event 
recorders without crashworthy memory modules is reasonable. FRA notes 
that this time frame is consistent with the elimination and replacement 
of event recorders utilizing magnetic tape as their recording medium 
discussed in subparagraph (b)(2) below. Consequently, FRA has 
incorporated the recommendation in a new paragraph (b)(6) by requiring 
that any event recorder originally manufactured after January 1, 2010, 
that is installed on a locomotive identified in this paragraph shall be 
an event recorder with a crashworthy memory module meeting the 
requirements of Appendix D of this final rule.
    FRA wishes to make clear that the event recorder currently 
installed on or any replacement event recorder subsequently installed 
on a locomotive identified in this paragraph (b)(1) need only be 
capable of recording the data elements specifically enumerated in this 
subparagraph. FRA continues to believe that it would be cost 
prohibitive, and in some cases impossible, to reconfigure existing 
locomotives with the ability to monitor and record many of the data 
elements required for newly manufactured locomotives. Consequently, FRA 
is retaining the proposed provision in this final rule that requires 
any covered locomotive ordered prior to one year after and placed in 
service prior to four years after the effective date of the final rule 
to be equipped with an event recorder capable of recording at least the 
nine data elements specifically identified in this subparagraph.
    Subparagraph (b)(2) contains a ``sunset'' date for current event 
recorders using magnetic tape as their recording medium. In the NPRM, 
FRA proposed elimination of these types of event recorders within six 
years from the effective date of the final rule. See 69 FR 39783 and 
39792. Due to significant industry efforts, AAR, APTA and their member 
railroads informed FRA that the proposed timetable for eliminating 
magnetic tape-based event recorders could be shortened to four years. 
These parties note that their replacement efforts are progressing 
faster than they originally estimated. Therefore, FRA is pleased to 
note that the date by which event recorders utilizing magnetic tape as 
its recording medium must be replaced has been reduced to just four 
years from the effective date of the final rule. Consequently, 
subparagraph (b)(2) has been slightly modified to reflect this 
modification to the timetable for replacement of event recorders with 
magnetic tape as their recording medium.
    FRA believes eliminating the use of magnetic tape-based event 
recorders is necessary because it is essentially impossible to make a 
crashworthy event recorder memory module that uses magnetic tape. The 
final rule requires that, four years after the effective date of a 
final rule, all such recorders must be replaced with event recorders 
using ``hardened'' memory modules, but recording the same elements as 
they do now. The replacement recorders would not have to meet the 
crashworthy performance criteria contained in Appendix D to this final 
rule but would need to be solid state technology. As discussed in the 
preamble to the NPRM, the principal supplier of magnetic tape event 
recorders has ceased manufacturing them and has recently discontinued 
supplying replacement recording media. In addition, representatives of 
the railroads have indicated that the industry will voluntarily 
complete its replacement of such event recorders within the four years 
provided in this final rule. Accordingly, FRA continues to believe that 
this provision will not constitute a significant burden to the 
industry.
    Subparagraph (b)(3) retains the proposed standards for new event 
recorders and make new event recorders that meet these standards 
mandatory equipment for freight (diesel) locomotives (other than DMU 
and MU locomotives) manufactured one year after the effective date of a 
final rule in this proceeding. The new recorder is required to have a 
certified crashworthy event recorder memory module meeting the 
performance criteria contained in Appendix D of the final rule. This 
final rule retains all of the proposed data elements without change. 
Thus, in addition to the data elements recorded by current event 
recorders detailed in subparagraph (b)(1), new event recorders will be 
required to record the following data elements:
     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.
    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

[[Page 37929]]

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 (BLET) 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). 
BLET provided the Working Group with a ``white paper'' further 
detailing its concerns in this area. This document has been made part 
of the docket in this proceeding. After reviewing BLET's concerns, 
RSAC's recommendation as well as the discussions of them within the 
Working Group, FRA has determined that it will accept the full RSAC's 
recommendation not to amend the data elements proposed in the NPRM in 
this final rule. 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, the final rule will retain the proposed data elements 
that 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.
    FRA believes that these two data elements, contained in both 
subparagraph (b)(3) and (b)(4), deserve additional explanation. The 
data element contained in subparagraphs (b)(3)(vi) and (b)(4)(vi) of 
the final rule 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 must 
record, or provide a means of determining, the involvement of any such 
computer.
    These additional 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 
original event recorder rule was being prepared, the 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. Since that time, 
braking functions are becoming increasingly 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 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) required to be submitted for 
the train control system under the new PTC final rule detailed in 
subpart H of 49 CFR Part 236, subject to FRA approval under this 
paragraph. See 70 FR 11051 (March 7, 2005). 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 memory

[[Page 37930]]

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 this final 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 final rule retains the proposal's use of 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 that function, system, or any 
portion of either, is essential to safety of personnel or equipment, or 
both, or the incorrect performance of that function, system, or any 
portion of either, 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 Sec.  229.5
    BLET again raised various concerns related to the data elements 
that should be captured by the event recorder on PTC systems and by 
distributed power locomotives. These included such things as braking 
algorithms, train consist data, track profile data, and software being 
used for track profile data used in PTC systems. Based on the 
discussion provided above, FRA continues to believe that data elements 
related to PTC systems are better addressed by the PSP required to be 
submitted and approved by FRA under subpart H of part 236. 
Consequently, FRA believes that speculation as to what needs to be 
recorded on these systems or how the information is to be captured 
should not be attempted in this regulation but would be better 
addressed when the specific systems are being developed and 
implemented.
    With regard to distributed power locomotives, BLET seeks to have 
some method by which the event recorder would capture miscompare 
messages between the lead locomotive and the distributed power 
locomotives. 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. 
At the NPRM stage of this proceeding, 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. BLET continues to disagree with the 
absence of this data element. This member again 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. A detailed discussion of the basis for 
this concern was included in the preamble to the NPRM. See 69 FR 39780.
    Based on information and discussions of the Working Group as well 
as comments submitted to the docket, FRA is not convinced of the need 
to specifically capture the information requested by BLET. FRA 
continues to believe that it would be very costly to record the large 
amount of data regarding communications between a lead locomotive and a 
distributed power locomotive. Furthermore, the event recorders on the 
lead locomotive and the lead distributed power locomotive can be 
compared to determine if a mis-communication between the units occurred 
in the limited number instances where such communication failure is 
suspected. Moreover, the safety benefits of recording this information 
are unclear because if a miscompare does occur, the systems are 
designed so that the remotely-controlled distributed power unit will 
shut down or be placed in idle. Consequently, FRA is not willing at 
this time to impose a significant cost to the industry by requiring the 
recording of information that could potentially be derived from other 
sources and the benefits of which are not clearly defined.
    One data element proposed in the NPRM for new locomotives with new 
event recorders generated a significant amount of attention--the 
recording of the horn control handle activation. This data element was 
not the result of a recommendation from either the Working Group or the 
full RSAC. FRA received comments from several parties recommending that 
the actual sounding of the train horn be recorded as well as the horn's 
activation. Some commenters further suggested that any locomotive with 
an event recorder capable of capturing train horn activation or actual 
sounding should be required to do so. These parties assert that such 
requirements would reduce the disputes involving when and if the horn 
actually sounded during an accident investigation.
    Although FRA is cognizant of the potential benefits of such a 
requirement, FRA believes the benefits are somewhat overstated. The 
reasons for carefully using data relating to horn activation are 
equally applicable to data related to the actual sounding of the train 
horn. 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 or the horn sound 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. The Working Group was provided an excellent 
presentation of these recording limitations at its meeting in Atlanta, 
Georgia, in May of 1998 by Rail Sciences, Incorporated. Further, 
emergency responders complain that automobile drivers with their 
windows up, radios on, and air conditioning on often do not react to 
the

[[Page 37931]]

sirens or air horns on fire trucks. The same situation exists when a 
railroad engineer blows his horn at an automobile starting across a 
crossing with too little time to clear. In addition, the locomotive 
horn is external to the cab of the locomotive, the effective operation 
of which may be diminished by snow, sleet, and other weather 
conditions.
    With these limited benefits in mind, it is important to note that 
no commenter, other than AAR, provided any information or insight 
relating to the costs that any such requirement might entail. AAR 
indicated that the cost to monitor and record the actual sounding of 
the locomotive horn on either new or existing locomotives would be 
significant. AAR asserts, and FRA agrees, that the most significant 
cost would result from developing and maintaining the sensors required 
to monitor the actual sounding of the horn. As noted above, the 
locomotive horn is external to the cab of the locomotive thus, any 
sensor would also have to be mounted externally and would be subject to 
various external conditions. FRA believes that the costs related to the 
monitoring and recording of the actual sounding of the locomotive horn 
are not justified based on the limited benefits provided by such a 
requirement as discussed above. Thus, this final rule will retain the 
proposed requirement that the event recorder capture activation of the 
locomotive horn control handle but will not include an additional data 
element related to the actual sounding of the horn. FRA continues to 
believe that horn activation data 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 again cautions 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 provision reflects FRA's responsibility to implement 49 
U.S.C. 20153. FRA notes that if railroads monitor and record the 
sounding of the locomotive horn voluntarily, then the data would need 
to be preserved pursuant to the provisions contained paragraph (e) of 
this final rule.
    In its comments to the NPRM, the NTSB sought clarification of FRA's 
rationale for not including a requirement to record the wheel slip/
slide alarm on freight locomotives similar to that contained in 
subparagraph (b)(4) for MU and DMU locomotives. FRA is requiring the 
recording of tractive effort. Moreover, there is no uniformity as to 
when wheel a slip/slide alarm is activated in the freight industry. 
This is due to the fact that there is no consistency in how wheel slip/
slide is measured and recorded. Thus, the data would not provide any 
useable, readily applicable information. In addition, the monitoring 
and recording of this data would impose an additional cost to the 
industry based on the uncontested information provided by AAR. Both the 
Working Group and the full RSAC recommended that a provision to record 
the wheel slip/slide alarm on freight locomotives was not necessary for 
the reasons noted above. FRA agrees with this recommendation and is not 
willing to impose an additional cost in order to capture data of 
limited value. FRA notes that if railroads monitor and record this 
information of their own volition, then the data would need to be 
preserved pursuant to the provisions contained paragraph (e) of this 
final rule.
    Several commenters to the NPRM also suggested the need to require 
that video cameras of some type be mounted on the front of all 
locomotives and that the event recorder capture such recordings. While 
FRA acknowledges that there may be some benefit to requiring video 
cameras, FRA believes that consideration of such a requirement is 
outside the scope of this rulemaking proceeding. There is a variety of 
issues that would need to be explored, discussed, and researched 
related to the placement, content, use, retention, and cost of 
requiring such devices and retaining the recorded materials. FRA 
believes that the final rule stage of this proceeding is not the 
appropriate time or place to begin such considerations. FRA believes 
that a separate rulemaking proceeding would be required if the need 
and/or desire for such regulations were established. At the Working 
Group meeting and in their written comments, AAR and several of its 
member railroads stated their support of a separate rulemaking 
proceeding to consider the issues related to requiring video and 
locomotive cab recordings. AAR noted that it has established a video 
standards working group to address the development of industry 
environmental and technical standards. BLET stated that it would 
consider discussing these types of issues if the purpose of video 
standards is safety and not discipline of employees. NTSB also 
expressed its belief that video and cab recording issues need to be 
addressed by FRA and the industry. However, all of these parties agreed 
with FRA's position that the issues related to video and cab recordings 
should not and cannot be addressed in this rulemaking proceeding 
without the issuance of a new NPRM.
    Subparagraph (b)(4) contains the requirements for equipping new MU 
and DMU locomotives with event recorders having crashworthy memory 
modules and capable of recording various data elements similar to those 
required in subparagraph (b)(3). Thus, the discussions relating to the 
data elements contained in that subparagraph are equally applicable in 
this context. This subparagraph applies to any MU or DMU locomotive 
ordered one year from the effective date of this final rule or placed 
in service four years after the effective date of this final 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 monitored and recorded.
    Subparagraph (b)(5) retains the requirements proposed in the NPRM 
without change. FRA received no comments on this provision. This 
subparagraph requires that when a locomotive equipped with an event 
recorder is remanufactured, it must be equipped with a certified 
crashworthy event recorder memory module capable of capturing the same 
data as the recorder on the pre-remanufactured locomotive.
    Subparagraph (b)(6) contains a new requirement not specifically 
proposed in the NPRM. A detailed discussion of the provision is 
included in the section-by-section analysis related to subparagraph 
(b)(1). In the NPRM, FRA sought comments or information from interested 
parties as to whether there was 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 rule. See 69 FR 39783.
    At the Working Group meeting to discuss the comments to the NPRM, 
AAR, APTA and their member railroads suggested a date of January 1, 
2010 as the date after which any replacement event recorder acquired 
must be equipped with a crashworthy memory module pursuant to Appendix 
D of this final rule. These parties claim that a provision drafted in 
such a manner would allow railroads to continue to acquire solid state 
event recorders for the immediate future and would allow railroads to 
deplete their in-stock event recorders without imposing any significant 
financial burden on the industry. The full RSAC included this date in 
its recommendation to FRA.

[[Page 37932]]

After reviewing the recommendation, FRA agrees that a cut-off date of 
January 1, 2010 for the purchase of newly manufactured event recorders 
without crashworthy memory modules is reasonable. FRA notes that this 
time frame is consistent with the elimination and replacement of event 
recorders utilizing magnetic tape as their recording medium discussed 
in subparagraph (b)(2) above. Consequently, the final rule requires 
that any event recorder originally manufactured after January 1, 2010 
and installed on a locomotive identified in this paragraph shall be an 
event recorder with a crashworthy memory module meeting the 
requirements of Appendix D of this final rule.
    Paragraph (c) is retained as proposed in the NPRM. FRA received no 
comments on this provision in response to the NPRM. This paragraph 
contains the requirements relating to removing an event recorder from 
service. This paragraph is essentially the same as paragraph (c) of the 
existing regulation, modified for clarity and to reflect the specific 
equipment requirements in paragraph (b).
    Paragraph (d) is retained as proposed in the NPRM. Essentially, 
this paragraph is the same as paragraph (b) of the existing regulation 
with slight modification for clarity. This paragraph makes clear that a 
locomotive on which the event recorder is removed from service may only 
remain as the lead locomotive until the next calendar day inspection is 
performed on the locomotive. FRA received comments from three parties 
related to this provision. These commenters suggested that no 
locomotive should be permitted to operate as a lead locomotive with a 
disabled or non-functioning event recorder. One commenter also 
recommended that if any required data element is not being recorded at 
the time of an incident, the railroad should be required to file a 
report with FRA addressing the condition and how it was corrected.
    These comments were considered and discussed by the Working Group 
and the Working Group and the full RSAC recommended that no change in 
the proposed provision was necessary. FRA agrees with this 
recommendation. FRA believes that the provisions relating to the 
continued use of a locomotive with a defective event recorder for a 
short period of time recognize the realities of railroad operations. In 
many cases, changing locomotive power cannot be done instantaneously 
upon finding a defective condition. In addition, locomotive power is in 
limited supply and conservative utilization of that resource is 
necessary to ensure effective railroad operations. Moreover, the 
handling of defective equipment provision retained in this paragraph 
has served FRA, NTSB, and the industry well for over a decade. FRA is 
not aware of any instance where use of this provision has resulted in 
the loss of any necessary data. Consequently, the final rule is 
retaining this paragraph as proposed in the NPRM.
    One commenter suggested that FRA adopt a procedure into the 
regulation that would allow parties to file complaints with FRA 
regarding a railroad's non-compliance with the event recorder 
requirements and that each complaint should be required to be addressed 
within 30-days with written findings to the complainant. FRA believes 
such a provision is unnecessary. Any person or party with information 
regarding non-compliance with any of the federal regulations handled by 
FRA is free to contact any of FRA's regional offices or headquarters by 
letter, e-mail, telephone, or verbally to report such information. FRA 
investigates all credible complaints and provides specific feedback to 
the complainant when such feedback is requested. FRA sees no reason to 
place specific procedures into the event recorder regulations nor did 
the commenter provide any rationale for doing so.
    Paragraph (e) contains the requirements relating to a railroad's 
duty to preserve locomotive event recorder data, or any other 
locomotive mounted recording devices that records information 
concerning the functioning of a locomotive or train when involved in an 
accident or incident required to be reported to FRA under 49 CFR part 
225. Except for the period of time that such data must be preserved, 
discussed in detail below, the final rule retains the language proposed 
in the NPRM. This section combines and simplifies paragraphs (d) and 
(d)(1) of the existing event recorder regulation.
    The current regulation allows a railroad after an accident, to 
``extract and analyze'' data from the event recorder, if the railroad 
preserves ``the original or 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 final rule retains the proposed 
language to permit a 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 final rule mandates that the original 
download be preserved for analysis by FRA or the NTSB.
    The final rule also retains the current rule and proposed language 
that 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.
    FRA received a number of comments relating to the provisions 
contained in this paragraph. These comments included recommendations 
for the following: Preserving such data for periods up to three years; 
providing exact copies of any downloaded data to local police to be 
made part of the accident report; permitting data to be downloaded only 
in the presence of a law enforcement officer; making software for 
analyzing data available to any individual or public entity; requiring 
local law enforcement personnel to record various information on the 
locomotive and person downloading the data; and notification of 
involved motorists and families by the railroad that event recorder 
data exists. The Working Group considered and discussed the concerns 
identified above. The Working Group recommended that because most event

[[Page 37933]]

recorder data downloads are stored on compact discs or hard drives 
there was not a significant burden in requiring retention of the data 
for a period of longer than 30 days. The Working Group believed that a 
period of one year was reasonable as this would ensure data was 
available for subsequent review if an accident or incident was not 
immediately investigated by FRA or NTSB. Therefore, the Working Group 
and the full RSAC recommended extending the time period for retaining 
the required data from the 30-days contained in the existing regulation 
to one year. FRA has accepted this recommendation and does not see a 
need to extend the preservation period beyond that time frame. Neither 
NTSB or FRA could articulate an instance where recorded data was 
determined to be needed or not needed more than one year of an accident 
reportable to FRA under part 225.
    With regard to the other issues raised related to the preservation 
of recorded data, FRA agrees with the Working Group and RSAC 
recommendation to not alter the language proposed in the NPRM. The 
primary purpose of this provision is to ensure that data from event 
recorders and other locomotive mounted recording devices are retained 
for a sufficient amount of time to ensure that FRA and NTSB can 
accurately and effective conduct accident investigations. The provision 
was never intended to serve as a platform for private litigants to 
obtain access to evidentiary materials. Although FRA recognizes the 
relevance and need for private parties to obtain this information, FRA 
believes there are sufficient legal processes by which private 
litigants can obtain access and ensure the veracity of the data 
required to be preserved in this provision. In Working Group 
discussions, NTSB noted that it does not permit observers in its 
facilities when data is being downloaded and that it does not have law 
enforcement personnel witness such downloading. NTSB does brief 
interested law enforcement personnel after the data is downloaded and 
analyzed. In addition, neither FRA nor NTSB could identify a 
circumstance where they experienced a problem in getting appropriate 
software from the involved railroad to conduct their analyses of event 
recorder data. Based on the intent of this provision and based upon 
FRA's and NTSB's experience in investigating accidents, FRA believes 
that it would be inappropriate to include the recommendations submitted 
by various commenters noted above.
    Paragraph (f) retains the language proposed in the NPRM without 
change. This paragraph explains the regulations relationship to other 
laws including sate laws, NTSB authority, and the authority of the 
Secretary of Transportation. FRA received no comments on this provision 
in response to the NPRM. Identical language is contained in paragraph 
(d)(2) of the existing regulation and was merely separated in the NPRM 
and this final rule for purposes of clarity and ease of citation.
    Paragraph (g) retains the language proposed in the NPRM without 
change. This paragraph explains the potential ramifications related to 
willfully disabling an event recorder or tampering with or altering the 
data recorded by such devices. BLET sought clarification as to whether 
the altering of brake algorithms, train consist data, or track profile 
data is covered by the tampering and disabling provisions contained in 
49 CFR part 218. While part 218 only addresses the disabling of the 
actual device, if such an action alters or tampers with the data 
produced by the event recorder such action could be addressed by civil 
penalties under this paragraph directly or by an independent 
disqualification action under the procedures contained in 49 CFR part 
209. Similar language is contained in paragraph (e) of the existing 
regulation.
    Appendix B contains the schedule of civil penalties to be used in 
connection with part 229. Conforming changes are being made to the 
entries related to Sec.  229.135 to reflect the changes made to that 
section by this final rule as discussed above.
    Appendix D retains the proposed criteria for certification of an 
event recorder memory module (ERMM) as crashworthy. The elements 
contained in this appendix are 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 continues to 
agree 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 performance criteria for 
survivability from fire, impact shock, crush, fluid immersion, and 
hydrostatic pressure.
    The performance criteria contained in Section C of Appendix D are 
presented in two tables which represent alternative performance 
criteria under which an ERMM could be tested for crashworthiness. 
During the development of the NPRM 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 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 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 contained in Table 
1 are acceptable to the vast majority of the parties participating in 
and affected by this regulation, are a significant improvement over any 
existing crashworthiness standard, and will ensure the protection and 
retention of the necessary event recorder data when investigating 
virtually all railroad accidents involving locomotives equipped with 
event recorders. 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 Table 1 
at the NPRM stage of this proceeding.
    It should be noted that in its comments to the NPRM, the NTSB urged 
FRA to adopt the criteria contained in Table 2 of the proposal and 
phase-out the criteria contained in Table 1 over a period of time. 
Table 2 of this

[[Page 37934]]

appendix contains alternative performance criteria to those adapted 
from IEEE's standard. As discussed above, the performance criteria 
contained in Table 2 was included in the NPRM, and is being retained in 
this final rule, based on information received from a small number of 
manufacturers indicating that they were currently producing some 
crashworthy ERMMs based on the criteria contained in Table 2. Rather 
than penalize those manufacturer's that took the lead in developing 
crashworthy ERMMs, FRA believed and continues to believe that it is 
appropriate to include the criteria used by those manufacturer's in 
developing their ERMMs instead of requiring recertification of the 
modules under the criteria contained in Table 1. Although NTSB espoused 
its desire for the Table 2 criteria, it did not provide any cost 
estimates related to adopting those standards. Moreover, NTSB did not 
provide any examples or known incidents, other than fires fueled by a 
source other than diesel fuel, where the performance criteria contained 
in Table 1 would not be effective in preventing the destruction of 
necessary event recorder data. Furthermore, it was generally not the 
Working Group's, RSAC's, or FRA's intent to have the performance 
criteria contained in Table 2 serve as the regulatory standard. They 
were included primarily for the purpose of accommodating a small number 
of manufacturers currently producing ERMMs. Both Tables have benefits 
and FRA continues to believe that the performance criteria contained in 
Table 1 are the most cost effective standards available to the industry 
at this time.
    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 discussed by the Working Group. FRA continues to 
believe that either set of impact shock criteria is acceptable. FRA 
recognizes that the duration of the impact pulse contained Table 2 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 will permit the use of either criterion when 
testing the ERMM.
    One commenter suggested that FRA consider whether standards related 
to electromagnetic interference (EMI) should be included in the 
performance criteria. This commenter did not provide any information 
related to instances of such interference and did not suggest any 
criteria to address the issue. FRA and the Working Group did consider 
EMI effects on event recorders when developing the NPRM. Several 
parties made presentations to the Working Group on EMI at the January 
27, 1999, meeting held in Washington, DC. The Working Group eventually 
decided against including any specific EMI related criteria in the 
regulation based on its determination that the issue was not a major 
concern in the area of locomotive event recorders if adequate 
shielding, cabling, gasketing, and grounding of the devices. The 
Working Group did not find any problems related to data corruption due 
to EMI issues. The Working Group reiterated this position when 
considering the comment to the NPRM. FRA is not aware and has not been 
provided any indication that EMI is a significant problem in the area 
of locomotive event recorders. FRA will continue to monitor this issue 
and take appropriate regulatory action should it become necessary. 
Consequently, FRA accepts the recommendation of the RSAC Working Group 
and is not including EMI-specific performance criteria in this final 
rule.
    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 continues to believe 
that it is not necessary to include specific testing criteria in this 
regulation. FRA did not receive any comments in response to the NPRM 
suggesting a need to include specific testing criteria. FRA also 
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. It should be noted that 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 mandating their use at this time. 
Appendix D makes clear that any testing procedures employed by a 
manufacturer must be documented, recognized, and acceptable.
    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 retains the 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 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 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 criterion 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 provision 
requires the manufacturer to retain and make available to FRA upon 
request any analysis or data relied upon to make a

[[Page 37935]]

determination relating to the crashworthiness impacts of any upgrade or 
modification to an older model ERMM.

V. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-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.
    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 contained in this 
final rule can be expected to produce even greater safety progress. 
Therefore, dilution of the existing standards or rejection of the 
higher standards contained in this final rule 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 final 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 final 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 contained in this final rule. 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 final 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 final rule is justified by safety 
benefits alone, the addition of clear and substantial business benefits 
makes the final rule 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 final 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 new requirement for crashworthy event recorders. 
The table contains the estimated costs and benefits associated with 
this final rule 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 
RIA that has been made part of the docket in this proceeding.

------------------------------------------------------------------------
               Description                 20-year total    20-year NPV
------------------------------------------------------------------------
Costs:
    Replacement of Magnetic Tape              $6,310,000      $5,272,000
     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
    Preservation of Data................         124,000          66,000
                                         -----------------
        Total Costs.....................      39,593,000      22,621,000

[[Page 37936]]

 
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 final 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. 
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 final rule concludes 
that this rule would not have a significant economic impact on a 
substantial number of small entities. Thus, FRA certifies that this 
final 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 final rule 
would only apply to railroads that operate passenger or freight trains 
at speeds greater than 30 mph. Most Class III railroads do not conduct 
operations at top speeds of greater than 30 mph thus, FRA believes that 
the vast majority of small railroads would not be impacted by the final 
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 
final rule. The AISE associated with this rule estimates that the 
economic impact on these operations will have a 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 
final rule.

Paperwork Reduction Act

    The information collection requirements in this final 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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Respondent
           CFR section                universe         Total annual        Average time per     Total annual            Total annual burden cost
                                     (railroads)         responses             response         burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
229.9--Movement of Non-complying              744  21,000 tags.........  1 minute............             350  $12,950
 Locomotives.
229.17--Accident Reports.........             744  1 report............  15 minutes..........             .25  11
229.21--Daily Inspection--MU                  744  5,655,000 rcds......  1 or 3 minutes......         189,583  8,341,652
 Locomotives; Written Reports.                744  250 reports.........  3 minutes...........              13  572
Form FRA F 6180.49A Locomotive                744  7,250 forms.........  2 minutes...........             242  8,954
 Insp/Repair Rcd.
210.31--Locomotive Noise Emission             744  100 tests/remarks...  15 minutes..........              25  925
 Test.
229.23/229.27/229.29/229.31--                 744  87,000 tests........  8 hours.............         696,000  25,752,000
 Periodic Inspection/Annual
 Biennial Tests/Main Res. Tests.
229.33--Out-of Use Credit........             744  500 notations.......  5 minutes...........              42  1,554
229.25(1)--Test: Every Periodic               744  200 amendments......  15 minutes..........              50  1,700
 Insp.--Written Copies of
 Instruction.
229.25(2)--Duty Verification                  744  4,025 records.......  90 minutes..........           6,038  181,140
 Readout Record.

[[Page 37937]]

 
229.25(3)--Pre-Maintenance Test--             744  700 notations.......  30 minutes..........             350  10,500
 Failures.
229.135(A.)--Removal From Service             744  1,000 tags..........  1 minute............              17  629
229.135(B.)--Preserving Accident              744  2,800 reports.......  15 minutes..........             700  23,800
 Data.
NEW REQUIREMENTS:
229.27--Annual Tests.............             744  700 test records....  90 minutes..........           1,050  31,500
229.135(b)(1) & (2)--Equipment                744  850 Cert. Mem         2 hours + 200 hours.           1,900  Included in Rule Reg Eval.
 Rqmnts.--Mag Tape Replacements.                    Modules.
229.135(b)(3)--Equipment Rqmnts.--            744  600 Cert. Mem         2 hours.............           1,200  Included in Rule Reg Eval.
 Lead Locomotives.                                  Modules.
229.135(b)(4)--Equipment Rqmnts.--            744  255 Cert. Mem         2 hours.............             510  Included in Rule Reg Eval.
 MU Locomotives.                                    Modules.
229.135(b)(5)--Equipment Rqmnts.--            744  1,000 Cert. Mem       2 hours.............           2,000  Included in Rule Reg Eval.
 Other Locomotives.                                 Modules.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB contact Robert Brogan at 202-493-
6292.
    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.
    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 this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

Federalism Implications

    FRA has analyzed this final 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 final 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 final 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 final 
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 final 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 final rule has no federalism 
implications, other than the preemption of state laws covering the 
subject matter of this final rule, which occurs by operation of law 
under 49 U.S.C. 20106 whenever FRA issues a rule or order.

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 final 
rule 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

[[Page 37938]]

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 final rule will not result in the expenditure, in the aggregate, of 
$100,000,000 or more in any one year, and thus preparation of such a 
statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule 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 recordkeeping requirements.

The Rule

0
For the reasons discussed in the preamble, the Federal Railroad 
Administration amends part 229 of chapter II, subtitle B of Title 49, 
Code of Federal Regulations, as follows:

PART 229--[AMENDED]

0
1. The authority citation for part 229 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20133, 20137-38, 20143, 
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), 
(m).


0
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 in this section.
    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 a commuter railroad.
    Control cab locomotive means a locomotive without propelling motors 
but with one or more control stands.
    Controlling remote distributed power locomotive means the 
locomotive in a distributed power consist that receives the coded 
signal from the lead locomotive consist of the train whether commanded 
automatically by the distributed power system or manually by the 
locomotive engineer.
    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 one or more data point or value 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 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.
    DMU locomotive means a diesel-powered multiple unit operated 
locomotive with one or more propelling motors designed to carry 
passenger traffic.
    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.

[[Page 37939]]

    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 unit 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:
    (1) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area, and
    (2) 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 
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 Greenwich mean time 
(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.
    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.

0
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

[[Page 37940]]

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.

0
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 a DMU or MU locomotive, shall be subjected 
to the tests and inspections prescribed in paragraphs (a), (b), and (c) 
of this section. A DMU locomotive or an MU locomotive shall be 
subjected to the tests and inspections prescribed in paragraphs (b) and 
(c) of this section. A locomotive, including a DMU locomotive or 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. All testing 
under this section shall be performed 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.

0
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 ordered before October 1, 2006, 
and placed in service before October 1, 2009, including a controlling 
remote distributed power locomotive, a lead manned helper locomotive, a 
DMU 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 October 1, 2006, 
and equipped with an event recorder that uses magnetic tape as its 
recording medium shall have the recorder removed from service on or 
before October 1, 2009 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, a lead manned helper locomotive, and a 
controlling remotely distributed power locomotive, other than a DMU or 
MU locomotive, originally ordered on or after October 1, 2006 or placed 
in service on or after October 1, 2009, 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

[[Page 37941]]

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) A DMU locomotive and an MU locomotive originally ordered on or 
after October 1, 2006 or placed in service on or after October 1, 2009, 
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);
    (xi) Wheel slip/slide alarm activation (with a property-specific 
minimum duration);
    (xii) Lead locomotive headlight activation switch on/off;
    (xiii) Lead locomotive auxiliary lights activation switch on/off;
    (xiv) Horn control handle activation;
    (xv) Locomotive number;
    (xvi) Locomotive position in consist (lead or trail);
    (xvii) Tractive effort;
    (xviii) Brakes apply summary train line;
    (xix) Brakes released summary train line;
    (xx) Cruise control on/off, if so equipped and used; and
    (xxi) 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.
    (5) A locomotive equipped with an event recorder that is 
remanufactured, as defined in this part, on or after October 1, 2007, 
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.
    (6) An event recorder originally manufactured after January 1, 
2010, that is installed on any locomotive identified in paragraph 
(b)(1) of this section shall be an event recorder with a certified 
crashworthy event recorder memory module that meets the requirements of 
Appendix D to this part and that is capable of recording, at a minimum, 
the same data as the event recorder that was previously on the 
locomotive.
    (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

[[Page 37942]]

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 
one (1) year 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.

0
6. Appendix B to part 229 is amended by revising the entry for Sec.  
229.135 to read as follows and the text of footnote 1 remains 
unchanged:

Appendix B to Part 229--Schedule of Civil Penalties\1\

* * * * *

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
229.135 Event Recorders:
    (a) Lead locomotive without in-                2,500           5,000
     service event recorder.............
    (b) Failure to meet equipment                  2,500           5,000
     requirements.......................
    (c) Unauthorized removal or failure            2,500           5,000
     to remove from service.............
    (d) Improper response to out of                2,500           5,000
     service event recorder.............
    (e) Failure to preserve data or                2,500           5,000
     unauthorized extraction of data....
    (g) Tampering with device or data...           2,500           5,000
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

0
7. 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:

                        CERTIFIED DOT CRASHWORTHY
 
                Event Recorder Memory Module Model Number
 
                           Manufacturer's Name
------------------------------------------------------------------------

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

[[Page 37943]]

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 shown in this section of Appendix D. (See Tables 1 and 2.) 
Each ERMM must meet the individual performance criteria in the 
sequence established in Section D of this appendix. A performance 
criterion is deemed to be met if, after undergoing a test 
established in this Appendix D for that criterion, 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         60 minutes.............  Heat source: Oven.
                                        [deg]F).
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
                                        2 Diesel,       hours.
                                        Water, Salt Water,
                                        Lube Oil.
                                       Fire Fighting Fluid....  10 minutes, following    Immersion followed by
                                                                 immersion above.         48 hours in a dry
                                                                                          location without
                                                                                          further disturbance.
Hydrostatic Pressure.................  Depth equivalent = 15    48 hours at nominal
                                        m. (50 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        60 minutes.............  Heat source: Open
                                        [deg]F).                                          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 (25,000 lbf)...  5 minutes.               .......................
                                       44.5kN (10,000 lbf)....  (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.

[[Page 37944]]

[GRAPHIC] [TIFF OMITTED] TR30JN05.002

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 criterion not to be potentially affected if a 
preliminary engineering analysis or other pertinent data establishes 
that the modification or upgrade will not change the performance of 
the older model ERMM against the performance criterion in question. 
The manufacturer shall retain and make available to FRA upon request 
any analysis or data relied upon to satisfy the requirements of this 
paragraph to sustain an exception from testing.

    Issued in Washington, DC on June 23, 2005.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 05-12878 Filed 6-29-05; 8:45 am]
BILLING CODE 4910-06-P