[Federal Register Volume 72, Number 202 (Friday, October 19, 2007)]
[Rules and Regulations]
[Pages 59216-59224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20656]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA-2006-26174; Notice No. 2]
RIN 2130-AB83


Locomotive Safety Standards; Sanders

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is revising the existing requirements related to sanders 
on locomotives. This rule modifies the existing regulations by 
permitting additional flexibility in the use of locomotives with 
inoperative sanders. The rule provides railroads the ability to better 
utilize their locomotive fleets while ensuring that locomotives are 
equipped with operative sanders in situations where they provide the 
most benefit from a safety and operational perspective. The rule also 
makes the regulations related to operative sanders more consistent with 
existing Canadian standards related to the devices.

DATES: This final rule is effective December 18, 2007; petitions for 
reconsideration must be received on or before December 18, 2007. 
Petitions received after that date will be considered to the extent 
possible without incurring additional expense or delay.

ADDRESSES: Petitions for reconsideration: Any petitions for 
reconsideration related to Docket No. FRA-2006-24838, may be submitted 
by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., W12-140, Washington, DC 
20590.
     Hand Delivery: 1200 New Jersey Ave., SE., W12-140, 
Washington, DC 20590 between 9 a.m. and 5 p.m. Monday through Friday, 
except Federal holidays.
     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://www.regulations.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://www.regulations.gov at any time or to 
1200 New Jersey Ave., SE., W12-140, Washington, DC 20590 between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: George Scerbo, Office of Safety 
Assurance and Compliance, Motive Power & Equipment Division, RRS-14, 
Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, 
NW., Washington, DC 20590 (telephone 202-493-6247), or Michael Masci, 
Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 
(telephone 202-493-6037).

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background

    FRA has broad statutory authority to regulate railroad safety. The 
Locomotive Inspection Act (formerly 45 U.S.C. 22-34, now 49 U.S.C. 
20701-20703) was enacted in 1911. It prohibits the use of unsafe 
locomotives and authorizes FRA to issue standards for locomotive 
maintenance and testing. In order to further FRA's ability to respond 
effectively to contemporary safety problems and hazards as they arise 
in the railroad industry, Congress enacted the Federal Railroad Safety 
Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431 et seq., now 
found primarily in chapter 201 of Title 49). The Safety Act grants the 
Secretary of Transportation rulemaking authority over all areas of 
railroad safety (49 U.S.C. 20103(a)) and confers powers necessary to 
detect and penalize violations of any rail safety law. This authority 
was subsequently delegated to the FRA Administrator (49 CFR 1.49) 
(Until July 5, 1994, the Federal railroad safety statutes existed as 
separate acts found primarily in title 45 of the United States Code. On 
that date, all of the acts were repealed, and their provisions were 
recodified into title 49).
    Pursuant to its general statutory rulemaking authority, FRA 
promulgates and enforces rules as part of a comprehensive regulatory 
program to address the safety of railroad track, signal systems, 
communications, rolling stock, operating practices, passenger train 
emergency preparedness, alcohol and drug testing, locomotive engineer 
certification, and workplace safety. In the area of locomotive safety, 
FRA has issued regulations, found at 49 CFR part 229 (``part 229''), 
addressing topics such as inspections and tests, safety requirements 
for brake, draft, suspension, and electrical systems, and cabs and cab 
equipment. All references to parts and sections in this document shall 
be to parts and sections located in Title 49 of the Code of Federal 
Regulations. FRA continually reviews its regulations and revises them 
as needed to keep up with emerging technology.
    On July 12, 2004, the Association of American Railroads (AAR), on 
behalf of itself and its member railroads, petitioned the FRA to delete 
the requirement as contained in 49 CFR 229.131. The petition and 
supporting documentation asserted that contrary to

[[Page 59217]]

popular belief, depositing sand on the rail will not have any 
significant influence on the emergency stopping distance of a train. 
Subsequent to the petition, FRA and interested industry members began 
identifying various issues related to locomotive safety standards with 
the intent that FRA would potentially address the issues through its 
Railroad Safety Advisory Committee (RSAC).

II. 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 Chemistry Council
American Petrochemical Institute
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Association (ATDA)
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 Employes Division (BMWED)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association (HSGTA)
International Association of Machinists and Aerospace Workers
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 Railroad Passenger Corporation (Amtrak)
National Transportation Safety Board (NTSB)*
Railway Supply Institute (RSI)
Safe Travel America (STA)
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association (SMWIA)
Tourist Railway Association Inc
Transport Canada*
Transport Workers Union of America (TWU)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)
--------
    \*\Indicates associate membership

When appropriate, FRA assigns a task to the RSAC, and after 
consideration and debate, the RSAC may accept or reject the task. If a 
task is accepted, the 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 and 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 judgment 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 the RSAC is unable to reach consensus on 
recommendations for action, FRA moves ahead to resolve the issue 
through traditional rulemaking proceedings.

III. Proceedings to Date

    On February 22, 2006, FRA presented, and the RSAC accepted, the 
task of reviewing existing locomotive safety needs and recommending 
consideration of specific actions useful to advance the safety of rail 
operations. The RSAC established the Locomotive Safety Standards 
Working Group (Working Group) to handle this task and develop 
recommendations for the full RSAC to consider. Members of the Working 
Group, in addition to FRA, included the following:

APTA
ASLRRA
Amtrak
AAR
ASRSM
BLET
BMWE
BRS
BNSF Railway Company (BNSF)
California Department of Transportation
Canadian National Railway (CN)
Canadian Pacific Railway (CP)
Conrail
CSX Transportation (CSXT)
Florida East Coast Railroad
General Electric (GE)
Genesee & Wyoming Inc.
International Association of Machinists and Aerospace Workers
IBEW
Kansas City Southern Railway (KCS)
Long Island Rail Road
Metro-North Railroad
MTA Long Island
National Conference of Firemen and Oilers
Norfolk Southern Corporation (NS)
Public Service Commission of West Virginia
Rail America, Inc.
Southeastern Pennsylvania Transportation Agency
SMWIA
STV, Inc.
Tourist Railway Association Inc.
Transport Canada
Union Pacific Railroad (UP)
UTU
Volpe Center
Wabtech Corporation
Watco Companies

    The task statement approved by the full RSAC sought immediate 
action from the Working Group regarding the need for and usefulness of 
the existing regulation related to locomotive sanders. The task 
statement established a target date of 90 days for the Working Group to 
report back to the RSAC with recommendations to revise the existing 
regulatory sander provision. The Working Group conducted two meetings 
that focused almost exclusively on the sander requirement. The meetings 
were held on May 8-10, 2006, in St. Louis, Missouri, and on August 9-
10, 2006, in Fort Worth, Texas. Minutes of these meetings have been 
made part of the docket in this proceeding. After broad and meaningful 
discussion related to the potential safety and operational benefits 
provided by equipping

[[Page 59218]]

locomotives with operative sanders, the Working Group reached consensus 
on a recommendation for the full RSAC.
    On September 21, 2006, the full RSAC unanimously adopted the 
Working Group's recommendation on locomotive sanders as its 
recommendation to FRA. The RSAC recommendation included the Working 
Group's consensus rule text, and requested that FRA draft a regulatory 
proposal related to the use of sanders on locomotives performing 
switching service at outlying locations. The Working Group's discussion 
of outlying locations was based on an apparent need to distinguish 
locations that did not have sufficient access to a sand delivery system 
from those that do have such access. FRA reviewed and accepted the 
RSAC's recommendation and developed a regulatory proposal based on that 
recommendation. The specific regulatory language recommended by the 
RSAC was amended slightly for clarity and consistency, and FRA 
independently developed proposed provisions related to the use of 
sanders on locomotives used in switching service at outlying locations.
    On March 6, 2007, FRA published a Notice of Proposed Rulemaking 
(NPRM). See 72 FR 9904. FRA solicited written comments from the public 
in the NPRM in accordance with the Administrative Procedure Act (5 
U.S.C. 553). Consideration of public comment allows FRA to access 
additional viewpoints from interested parties and include them when 
appropriate. By the close of the comment period on May 7, 2007, two 
sets of comments were received. Comments were received on May 4, 2007 
from the BLET, and on May 7, 2007 from the AAR. The comments can be 
classified into three general categories: (1) Responses to specific 
requests for comments that were made in the NPRM; (2) inquiries 
regarding the treatment of locomotives that switch position en route 
changing between lead and trailing positions in the consist under 
paragraph 229.131(b)(1) and (b)(2); and, (3) remarks concerning the 
portions of the NPRM that were developed independently by FRA (the 
definition of sand delivery system and paragraph 229.131(c)(1)).
    In order to further clarify written comments received during the 
comment period, comments were discussed by the Working Group at the 
June 8, 2007 meeting in Chicago. The discussion, although limited in 
scope, furthered FRA's understanding of the written comments that were 
received. Obviously, there can be a tremendous benefit to clarity when 
in-person oral communication is permitted, including: (1) An 
opportunity for a party to refine a comment based on one or more 
questions from the Agency or other party; (2) observations of verbal 
tone and physical expressions that facilitate better understanding; and 
(3) an opportunity to accommodate a party that is more effective at 
communicating orally than it is in writing. Based on its thorough 
review, FRA addresses each of the comments in the relevant regulatory 
paragraphs of the section-by-section analysis provided below.
    FRA continues to agree with the Working Group's determination that 
locomotive sanders provide limited safety benefits and that the primary 
benefits derived from the devices are operational. Accordingly, this 
final rule retains the NPRM's goal of preserving the limited safety 
benefits of the devices while addressing the overly restrictive nature 
of the existing provision. This rule provides appropriate relief from 
the existing requirement by creating a more precise standard. The final 
rule requires sander maintenance based on operational realities instead 
of the current time-based standard. The final rule provides relief 
according to specific identified operational conditions. The rule 
distinguishes between the following conditions: lead and non-lead 
locomotives; locomotives in road service and switching service; and, 
locomotives at locations with or without a sand delivery system. These 
distinctions better reflect current railroad operations while 
maintaining the current level of safety provided by sanders. The rule 
also harmonizes the sander requirement with the existing Canadian 
requirements by placing a fourteen-day limit on service for lead 
locomotives in road service with inoperative sanders.
    Throughout the preamble discussion of this 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 the 
minutes of the Working Group meetings. These documents have been made 
part of the docket in this proceeding and are available for public 
inspection as discussed in the 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. Technical Background

    The NPRM provided a comprehensive technical discussion addressing 
the usefulness of sand in the operation of locomotives. See 72 FR 9906-
08. The discussion evaluated: the effect of sand on adhesion, and 
braking distance; as well as the current use of sand as instructed by 
railroad operating rules and training. The discussion demonstrates that 
having operative sanders benefits the locomotive, and that the benefit 
could be realized while allowing greater operational flexibility. Two 
expected benefits from the use of sand concern extended range dynamic 
braking and lite locomotives. FRA expects the use of sand in 
conjunction with extended range dynamic braking will provide some 
benefit. Extended range dynamic braking is currently used extensively 
to slow trains and (with rolling resistance and perhaps the independent 
brake) bring them to a stop. Locomotive engineers may utilize dynamic 
brakes rather than the automatic train brake, where possible, in order 
to conserve fuel and avoid undesired emergency brake applications. FRA 
also expects that sand applied on multiple axles could be an important 
contributor to maintaining satisfactory stopping distances of lite 
locomotive consists under unfavorable conditions (wet rail, etc.). 
Locomotives are frequently moved in order to reposition power 
throughout the fleet. For these lite locomotives, sand will remain on 
the rail long enough to assist adhesion between the wheels and the rail 
for a lite locomotive consist. FRA does not believe it is necessary to 
reiterate the technical discussion in this final rule and directs 
parties interested in that discussion to the NPRM. See 72 FR 9906-08.

V. Current Regulatory Impediments

    Relaxing the locomotive sanding requirement will maintain safety 
and will allow railroads to better utilize their locomotive fleets. The 
current requirement allows a locomotive found with a defective sander 
to continue in service to the next forward location where repairs can 
be made or the next calendar day inspection, whichever occurs first. 
Under the new requirement contained in this final rule, a lead 
locomotive in an over-the-road train may continue to be utilized by the 
railroad for up to fourteen days; in the case of a trailing locomotive, 
it may continue to be utilized by the railroad until placed in a 
facility with a sand

[[Page 59219]]

delivery system or departure from an initial terminal.
    The final rule recognizes the reality that sanding may reach 
optimal effectiveness even where one or more locomotive sanders in a 
consist is inoperative. Locomotives are routinely equipped with two 
sanders at each end. Often a consist will contain multiple locomotives. 
Each locomotive in a multiple-locomotive consist distributes sand to 
the rail. As a result, when each of the locomotives in a multiple 
locomotive consist are operating with all sanders operative, the train 
potentially distributes more sand to the rail than it will utilize. At 
that point, the effect of the sand on the train would be the same if 
one or two sanders in the consist were inoperative.
    Requirements for sanders can be traced back to the steam locomotive 
era. At that time, sanding the rail was thought to enhance adhesion 
between the steam locomotive wheel and the rail. Modern diesel 
locomotives rely on wheel slip and wheel creep devices, as well as 
sand, to provide adhesion between the wheel and rail. Where sanders are 
inoperative on a diesel locomotive, the total loss of adhesion would be 
less than it would have been for a steam locomotive. Notably, any 
reduced adhesion would limit the ability of the locomotive to pull its 
train. Loss of the ability to pull the train is a productivity concern 
that is not being addressed by this final rule.
    This final rule also recognizes the fact that sanding the rail in 
braking mode provides little additional adhesion to a train, because 
train handling depends primarily on train brakes to maintain train 
dynamics. The locomotive braking has limited effect. As stated in the 
technical discussion contained in the NPRM, by the time the locomotives 
in the consist have passed over the sanded rail, little to no sand 
remains on the rail and little or no benefit is provided to train 
braking.

VI. Section-by-Section Analysis

Amendments to 49 CFR Part 229

Section 229.5 Definitions
    FRA is adding the term ``sand delivery system'' in this section. 
The term will mean a permanently stationed or fixed device designed to 
deliver sand to locomotive sand boxes that do not require the sand to 
be manually delivered or loaded. A sand delivery system will be 
considered permanently stationed if it is at a location at least five 
days a week for at least eight hours per day.
    FRA is also adding the term ``initial terminal.'' The definition of 
this term will be identical to that currently contained in 49 CFR 232.5 
and 238.5. The term will mean ``a location where a train is originally 
assembled.''
Section 229.9 Movement of Non-Complying Locomotives
    FRA is amending this section to exempt locomotives operated under 
paragraphs 229.131(b) and (c)(1) from the movement for repair provision 
contained in Sec.  229.9. In general, Sec.  229.9 currently provides 
movement for repair requirements for equipment found with non-complying 
conditions under part 229. Paragraphs 229.131(b) and (c)(1) in this 
rule contain specific requirements relating to the movement and 
continued use of locomotives with defective sander equipment. Because 
the paragraphs specifically address movement for repair, applying Sec.  
229.9 would be superfluous or conflicting, and is no longer necessary.
    FRA is also making a clarifying amendment to this section of part 
229. Section 229.9 currently contains the following exception that 
reads: ``[e]xcept as provided in * * * 229.125(h).'' The exception 
relates to locomotive auxiliary lights and although a correct citation 
when originally inserted into the regulations, later amendments to that 
section resulted in redesignation of the paragraphs. The exception 
should refer to Sec.  229.125(g). Like Sec.  229.131(b) and (c)(1), 
Sec.  229.125(g) sets forth movement for repair requirements specific 
to that section. Consequently, FRA is making this clarification in this 
regulatory proceeding.
Section 229.131 Sanders
    Paragraph (a). This paragraph establishes a general requirement 
that locomotives be equipped with operative sanders before departing an 
initial terminal. Any time a locomotive is in use before leaving the 
initial terminal, it will be required to have operative sanders. The 
term ``in use'' has been consistently applied to mean when a locomotive 
is capable of being used. Thus, the locomotive does not have to 
actually be used to be in use. Examples of a locomotive in use are when 
a locomotive has been inspected, or a locomotive is on a ready track. 
FRA agrees with the RSAC's recommendation that the initial terminal 
would be an appropriate place to initially require operative sanders, 
because it is a place where sander maintenance can usually be 
accomplished without imposing a significant burden on the railroad. In 
many instances, locations where trains are initiated are equipped with 
sand delivery systems and are capable of making repairs to the sander 
mechanisms. FRA notes that this rule will permit locomotives to be 
released from daily locomotive inspections with inoperative sanders. 
However, the rule will require sanders to be repaired or handled for 
repair under Sec.  229.9 if defective when the locomotive is preparing 
to depart from an initial terminal. In instances where repairs cannot 
be performed, a locomotive may be dispatched from an initial terminal 
but only under the strict provisions contained in Sec.  229.9. Thus, 
the locomotive could only continue in use to the nearest forward 
location where necessary repairs could be effectuated or to the 
locomotive's next calendar day inspection, whichever occurs first. FRA 
further notes that if a locomotive is at an initial terminal for its 
train and that location has a sand delivery system or is otherwise 
capable of making sander repairs, then the locomotive may not legally 
depart that location with inoperative sanders. FRA also intends to make 
clear that a locomotive's sanders will only be considered operative if 
appropriate amounts of sand are deposited on each rail in front of the 
first power operated wheel set in the direction of movement.
    FRA recognizes that this rule will be less restrictive than the 
movement for repair provisions currently contained in Sec.  229.9. In 
most instances, locomotives will likely encounter an initial terminal 
less frequently than a daily inspection. This will facilitate more 
efficient railroad operations. Under the current provision, a railroad 
will take a locomotive out of service when a sander defect is found at 
the daily inspection. By requiring operative sanders less frequently, 
the new requirement allows the railroad to keep the locomotive in 
service for longer periods of time. With more locomotives in service, 
the railroad will be able to better utilize its power throughout its 
fleet.
    Paragraph (b). This paragraph contains the requirements for 
handling locomotives used in road service where sanders become 
inoperative after departure from an initial terminal. Road service will 
be distinguished from yard service because the type of service affects 
the need for sand. Locomotives performing road service will likely be 
in longer trains and run at higher speeds than those performing 
switching service. The existing definition of switching service, as it 
appears in Sec. Sec.  229.5 and 232.5, provides background for the 
distinction between road service and switching service. Switching 
service means ``assembling cars for train movements * * * or

[[Page 59220]]

moving rail equipment in connection with work service that does not 
constitute a train movement.'' Any movement that is not considered 
``switching service'' would be considered ``road service.'' Therefore, 
any service which constitutes a ``train movement'' would be considered 
``road service'' for purposes of this section. The preamble to the 
final rule related to part 232 (66 FR 4104, January 17, 2001) contains 
detailed discussion of the factors that are to be considered when 
determining what constitutes a ``train movement.'' See 66 FR 4148-49.
    Paragraph (b)(1). This paragraph establishes requirements related 
to lead locomotives being used in road service where sanders are 
discovered to be inoperative after departure from an initial terminal. 
Once inoperative sanders are discovered on these locomotives, there are 
four triggers that will determine how long a lead locomotive will be 
permitted to remain in service with inoperative sanders. The triggers 
are: the next initial terminal; a location where it is placed in a 
facility with a sand delivery system; its next periodic inspection 
under Sec.  229.23; or fourteen calendar days from the date the sanders 
are first discovered to be inoperative, whichever occurs first.
    FRA agrees with the Working Group's determination that the four 
triggering events will ensure that sanders are repaired in a timely 
fashion while providing railroads the ability to better utilize their 
locomotive fleets. Under the existing rule, a locomotive can move only 
until the next daily inspection with inoperative sanders. Utilizing 
four different triggers allows the railroad a greater degree of 
operational flexibility. Each trigger provides a logical point at which 
sander maintenance should and can be conducted without impacting a 
railroad's operation to a significant degree. The initial terminal is 
an appropriate place to require operative sanders for the reasons 
stated in paragraph 229.131(a). When a locomotive is placed in a 
facility that has a sand delivery system it is appropriate to require a 
railroad to provide sander maintenance. Placed in a facility is 
intended to mean actually placed on trackage with access to the sand 
delivery system, and not merely passing through a location with a sand 
delivery system on the premises. Similarly, when a locomotive is given 
its required periodic inspection it is expected that the location will 
be capable of providing repairs and additional sand to the locomotive 
sanders with little burden. Permitting a lead locomotive to remain in 
service for no longer than fourteen days is reasonable as it permits 
the locomotive to reach the destination of a long-distance train run, 
ensures timely repairs to the sanders, and is more consistent with the 
current Canadian requirement.
    One commenter sought clarification on how FRA will enforce this 
rule when a lead locomotive is switched to a trailing position en 
route. As three of the triggering events are identical for both lead 
and trailing locomotives, they would be equally applicable to either 
type of locomotive and further clarification is unnecessary. With 
regard to how the calendar-day triggering event will be applied, FRA 
agrees that further clarification would be beneficial. After a lead 
locomotive is switched to a trailing position, the days will continue 
to be counted pursuant to the fourteen day requirement (along with the 
three other triggers) of this paragraph. For example, if locomotive 
XYZ-12345 is operating in the lead position and is found to have an 
inoperative sander on Monday June 25, the calculation of days pursuant 
to this paragraph begins on that day. Monday, June 25 is day one. On 
Tuesday, June 26, locomotive XYZ-12345 is switched to a trailing 
position in the consist. While in a trailing position, the days 
continue to be counted. Tuesday, June 26 is counted as day two. Under 
this scenario, the fourteenth calendar day for locomotive XYZ-12345 is 
Sunday July 8. Therefore, if the inoperative sander is not repaired 
prior to being used on or after July 9, the operating railroad would be 
in violation of this paragraph.
    Comments were also received regarding the definition of sand 
delivery system. One commenter suggested adding a requirement to have 
each railroad identify to FRA all facilities that fit within the 
definition, and obtain permission from FRA to close the facility or 
reduce hours. While this comment is insightful, FRA believes that the 
commenter's suggested requirement would be inconsistent with the spirit 
of the RSAC's consensus rule text. The rule aims to maintain safety 
while better accommodating current operational realities by providing 
more flexibility when appropriate. Adding this requirement would create 
a more rigid process that would significantly increase the burden on 
both FRA and the railroads with a marginal effect on safety. According 
to the rule that was proposed, railroads will be required to repair 
inoperative sanders when the locomotive is placed in a facility 
equipped with a sand delivery system. Formally identifying and changing 
locations through an approval process would cause delay. The delay 
would adversely affect operations and inhibit appropriate flexibility.
    Another commenter sought clarification regarding two related 
issues: (1) Whether a mobile unit, for example a mobile truck, could be 
considered a sand delivery system; and, (2) how the five day per week, 
eight hour per day, requirement will be calculated? The rule does not 
provide for special treatment for mobile units. Any unit that fits the 
definition will be treated as a sand delivery system, including mobile 
units. Railroads are expected to utilize all available information to 
accurately anticipate which locations will be equipped with a sand 
delivery system for each week. At a minimum, locations where on average 
a sand delivery system is permanently stationed (i.e. is at the 
location at least five days per week for at least eight hours per day) 
over the previous four weeks, would be determined to be a location 
equipped with a sand delivery system for the following week. This 
determination may be refuted by the railroad with additional 
information.
    Paragraph (b)(2). This paragraph contains the requirements for 
handling trailing locomotives that are being used in road service when 
sanders are discovered to be inoperative after departure from an 
initial terminal. Once inoperative sanders are discovered, the rule 
sets forth three triggering events that will determine how long a 
trailing locomotive will be permitted to remain in service with 
inoperative sanders. The triggering events in this paragraph are 
identical to those in paragraph (b)(1) except for the elimination of 
the fourteen day requirement. FRA agrees with the Working Group's 
determination that the need to provide sand to a trailing locomotive is 
less critical than it is for a lead locomotive. The engineer operating 
the train or locomotive consist may be more familiar with the lead 
locomotive than with the trailing locomotive. The engineer is likely to 
be operating from the lead locomotive, and thus, that locomotive is 
less likely to be switched out of the consist while moving over the 
road.
    The term ``trailing locomotive,'' as used in this paragraph, 
specifically refers to a locomotive that is located behind the lead 
locomotive in a train or locomotive consist. The NPRM specifically 
included ``distributed power locomotives.'' A distributed power 
locomotive, as defined in Sec.  229.5, is a locomotive that is part of 
a distributed power system that provides control to a number of 
locomotives dispersed in a consist from command signals originating in 
the lead

[[Page 59221]]

locomotive. Distributed power locomotives are also trailing locomotives 
because they are located behind the lead locomotive in the train. FRA 
sought and received comments concerning the relevance of listing 
``trailing locomotives'' and ``distributive power locomotives'' in the 
rule text. Both commenters confirmed that distributive power 
locomotives are a type of trailing locomotive. Thus, distributive power 
locomotives are covered by this paragraph whether or not they are 
specifically mentioned, because they are covered by the term ``trailing 
locomotive.'' FRA believes that it is unnecessary to list both terms 
and is removing the words ``distributive power locomotive'' in the 
final rule.
    One commenter asked how FRA will enforce this rule when a trailing 
locomotive is switched to the lead en route. FRA agrees that this issue 
will benefit from clarification. A locomotive will be considered a lead 
locomotive anytime it is placed in the lead position of the consist. If 
a locomotive is switched into the lead en route, and the sanders are 
known to be inoperative, the fourteen day requirement prescribed in 
paragraph (b)(1) applies to that locomotive (along with the three other 
triggers contained in paragraph (b)(1)) starting on the day when it is 
switched to the lead. For purposes of counting the amount of days that 
the locomotive has been in the lead, the calendar day that the 
locomotive is switched into the lead will count as day one. The date 
that the locomotive is placed in the lead is required to be recorded on 
that locomotive's bad order tag. Updating the bad order tag on the day 
that the locomotive is switched to the lead, to reflect the date that 
the locomotive was switched to the lead, will ensure that the railroad 
and FRA will be able to conveniently know the status of that locomotive 
relative to the requirements of this rule.
    Paragraph (c). This paragraph establishes requirements for handling 
locomotives used in switching service where sanders become inoperative. 
The Working Group and the full RSAC recommended that the use of sand on 
locomotives performing switching service should be distinguished from 
locomotives being used in road service as described above in paragraph 
(b). Included as part of the RSAC's recommendation to FRA in this area, 
was a request that FRA unilaterally develop criteria for the handling 
of locomotives being used in switching service that experience 
inoperative sanders. The request specifically related to the 
identification of what constitutes locomotives at ``outlying 
locations'' and the identification of the triggering events for 
repairing inoperative sanders on such locomotives. FRA accepted this 
recommendation. FRA considered the discussions and views provided by 
members of the Working Group when developing this portion of the rule.
    Rather than attempt to define what constitutes an ``outlying 
location,'' FRA believes that the most appropriate method of 
distinguishing between switching locomotives and the locations where 
they operate, is to base the determination on the existence of a sand 
delivery system at the location. FRA believes that locomotives being 
used in switching service at a location with a sand delivery system 
should be able to be maintained and handled for repair in a more timely 
manner, with less disruption to railroad operations, than locomotives 
being used in switching service at locations without sand delivery 
systems. If there is no sand delivery system at a location, then the 
railroad is required to send maintenance vehicles or crews to the 
location or is required to move the locomotive to another location to 
effectuate necessary repairs. This can have a significant impact on the 
efficiency and continuity of switching operations at certain locations. 
Thus, paragraphs (c)(1) and (c)(2) separate the requirements for 
maintaining the sanders on locomotives being used in switching service 
based on the presence of a sand delivery system at the location where 
the locomotive is being used.
    Paragraph (c)(1). This paragraph contains requirements for handling 
locomotives being used in switching service at locations that are not 
equipped with a sand delivery system. In order to remain consistent 
with the overall design of the recommendation submitted by the RSAC, 
FRA believes that some operational flexibility needs to be provided to 
locomotives being used in switching service at locations not capable of 
quickly delivering sand or making necessary repairs. As noted above, 
the simplest way of making this determination is based on whether or 
not the location has a sand delivery system. FRA believes that seven 
days is a reasonable amount of time to permit railroads to provide 
necessary sander attention to a locomotive being used in switching 
service at a location that does not have a sand delivery system. This 
amount of time is consistent and within the time frame in which 
locomotives used in switching service will need some other type of 
maintenance or attention, most likely re-fueling. The seven day mark 
appears to be a reasonable outer-limit for the requirement. The second 
triggering event in this paragraph is if the locomotive becomes due for 
its periodic inspection pursuant to Sec.  229.23 of this part.
    In the NPRM, FRA solicited and received comments on this paragraph. 
While one commenter agreed that the proposed seven day time-line was 
reasonable; another commenter suggested dividing the requirement into 
two distinct groups to allow for more precise treatment. The commenter 
explained that a requirement based on a given number of days would be 
appropriate for the inoperative sanders that are inoperative because 
they lack sand, however, sanders that are inoperative due to a 
mechanical defect should be repaired sooner if mechanical forces have 
an opportunity to inspect the locomotive. This suggestion has some 
merit, but would likely overburden enforcement resources. Dividing the 
requirement into two categories would add another layer of complexity 
to the rule. Enforcing two separate categories would raise additional 
issues that require further FRA investigation. For example, FRA would 
need to find out why the sander is inoperative in order to determine 
how to properly enforce the requirement. FRA believes that the less 
complex scheme from the proposed rule will be more effective.
    Paragraph (c)(2). This paragraph establishes requirements for 
handling locomotives used in switching service at locations equipped 
with a sand delivery system. FRA agrees with the opinions of the 
Working Group and full RSAC that sanders on these types of locomotives 
can be maintained with little burden on a railroad's operation as they 
are already at the location where sand can be delivered and effective 
repairs can be effectuated. Therefore, FRA accepts the RSAC's 
recommendation and retains the existing requirements applicable to 
these locomotives. Consequently, when sanders become inoperative on 
these locomotives they will have to be handled in accordance with the 
provisions contained in Sec.  229.9.
    Paragraph (d). This paragraph will ensure that any locomotive with 
inoperative sanders is properly tagged under the tagging provisions 
contained in Sec.  229.9(a). As paragraphs (b) and (c)(1) provide 
railroads with more flexibility with regard to using a locomotive with 
inoperative sanders than what is currently permitted by Sec.  229.9, 
FRA wants to ensure that proper notification and records are maintained 
on in-service locomotives with inoperative sanders. Thus, FRA will 
require that locomotives operating with defective sanders be tagged in

[[Page 59222]]

accordance with the provisions contained in Sec.  229.9(a). This will 
also ensure that the individuals operating the locomotive are fully 
informed as to the fact that the locomotive they are operating does not 
have working sanders.

VII. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This 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; 
February 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of this rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, 7th Floor, Washington, DC 20590. Photocopies may also 
be obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Federal Railroad Administration, 1200 New 
Jersey Ave., SE., W12-140, Washington, DC 20590.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of cost and benefit streams expected from the 
adoption of this rule. For the twenty year period the estimated 
quantified costs are minimal. For this same period the estimated 
quantified benefits have a Net Present Value of $70.6 million.
    The major benefits anticipated from implementing this rule include: 
A reduction in the number of times locomotives have sand loaded or the 
number of times the sanders are made operative. This reduction produces 
a reduction in injuries related to the operation of filling sand boxes 
on the locomotive and the number of missed days related to these 
injuries. Finally, the rule would harmonize the sander requirement with 
the Canadian rule by placing a fourteen day limit on service for lead 
locomotives being used in road service with inoperative sanders.

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 rule. Document inspection and copying 
facilities are available at the Federal Docket Management Facility 
located at 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://www.regulations.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-2005-23080.
    ``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 
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.
    For this rule over 600 railroads could potentially be affected. The 
rule will impact all locomotives except those propelled by steam power. 
Given this application, only railroads that operate steam locomotives 
exclusively, will be unaffected. For those railroads that will be 
affected the impact will be minimal, if any. The focus is on permitting 
additional flexibility in the use of locomotives with inoperative 
sanders. It is anticipated that the additional flexibility will produce 
mostly positive impacts, i.e., savings and injury reductions.
    The AISE developed in connection with this Final Rule concludes 
that this rule will not have a significant economic impact on a 
substantial number of small entities. Thus, FRA certifies that this 
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. In order to determine the significance of 
the economic impact for the final rule's Regulatory Flexibility Act 
requirements, FRA invited comments in the NPRM. No comments were 
received.

Paperwork Reduction Act

    The rule contains a substantive change of one section of the 
existing regulation, Sec.  229.131. The modification would not change 
the current information collection activity. The information collection 
burden associated with the final rule already exists under Sec.  229.9. 
OMB clearance for the current rule has been granted and no further 
approval is sought at this time.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. The OMB control number assigned for 
information collection related to this rule is OMB No. 2130-0004.

Federalism Implications

    FRA has analyzed this 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 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 
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 the 
majority of the rule to FRA, has as permanent members two organizations 
representing State and local interests: AASHTO and the Association of 
State Rail Safety Managers (ASRSM). Both of these State organizations 
concurred with the RSAC recommendation endorsing this 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 rule has no federalism 
implications, other than the preemption of state laws covering the 
subject matter of this rule, which occurs by operation of law under

[[Page 59223]]

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 
regulation is not a major Federal action significantly affecting the 
quality of the human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $132,300,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
This rule will not result in the expenditure, in the aggregate, of 
$132,300,000 or more in any one year, and thus preparation of such a 
statement is not required.

Privacy Act

    FRA wishes to inform all potential petitioners for reconsideration 
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://www.regulations.gov.

List of Subjects in 49 CFR Part 229

    Locomotives, Railroad safety, and Sanders.

The Final Rule

0
For the reasons discussed in the preamble, FRA 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 continues to read as follows:

    Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), 
(m).


0
2. Section 229.5 is amended by adding alphabetically the definitions of 
``initial terminal'' and ``sand delivery system'' to read as follows:


Sec.  229.5  Definitions.

* * * * *
    Initial terminal means a location where a train is originally 
assembled.
* * * * *
    Sand delivery system means a permanently stationed or fixed device 
designed to deliver sand to locomotive sand boxes that do not require 
the sand to be manually delivered or loaded. A sand delivery system 
will be considered permanently stationed if it is at a location at 
least five days a week for at least eight hours per day.
* * * * *

0
3. Section 229.9 is amended by revising paragraph (a) introductory text 
to read as follows:


Sec.  229.9  Movement of non-complying locomotives.

    (a) Except as provided in paragraphs (b), (c), Sec.  229.125(g), 
and Sec.  229.131(b) and (c)(1), a locomotive with one or more 
conditions not in compliance with this part may be moved only as a lite 
locomotive or a dead locomotive after the carrier has complied with the 
following:
* * * * *

0
4. Section 229.131 is revised to read as follows:


Sec.  229.131  Sanders.

    (a) Prior to departure from an initial terminal, each locomotive, 
except for MU locomotives, shall be equipped with operative sanders 
that deposit sand on each rail in front of the first power operated 
wheel set in the direction of movement or shall be handled in 
accordance with the requirements contained in Sec.  229.9.
    (b) A locomotive being used in road service with sanders that 
become inoperative after departure from an initial terminal shall be 
handled in accordance with the following:
    (1) A lead locomotive being used in road service that experiences 
inoperative sanders after departure from an initial terminal may 
continue in service until the earliest of the following occurrences:
    (i) Arrival at the next initial terminal;
    (ii) arrival at a location where it is placed in a facility with a 
sand delivery system;
    (iii) the next periodic inspection under Sec.  229.23; or
    (iv) fourteen calendar days from the date the sanders are first 
discovered to be inoperative; and
    (2) A trailing locomotive being used in road service that 
experiences inoperative sanders after departure from an initial 
terminal may continue in service until the earliest of the following 
occurrence:
    (i) Arrival at the next initial terminal;
    (ii) arrival at a location where it is placed in a facility with a 
sand delivery system; or
    (iii) the next periodic inspection under Sec.  229.23.
    (c) A locomotive being used in switching service shall be equipped 
with operative sanders that deposit sand on each rail in front of the 
first power operated wheel set in the direction of movement. If the 
sanders become inoperative, the locomotive shall be handled in 
accordance with the following:
    (1) A locomotive being used in switching service at a location not 
equipped with a sand delivery system

[[Page 59224]]

may continue in service for seven calendar days from the date the 
sanders are first discovered inoperative or until its next periodic 
inspection under Sec.  229.23, which ever occurs first; and
    (2) A locomotive being used in switching service at locations 
equipped with a sand delivery system shall be handled in accordance 
with the requirements contained in Sec.  229.9.
    (d) A locomotive being handled under the provisions contained in 
paragraph (b) and (c)(1) of this section shall be tagged in accordance 
with Sec.  229.9(a).

    Issued in Washington, DC, on October 16, 2007.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. E7-20656 Filed 10-18-07; 8:45 am]
BILLING CODE 4910-06-P