24130 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

Regulatory Flexibility Act

Removal of these rules will not have

a significant economic impact on a

substantial number of small entities for

purposes of the Regulatory Flexibility

Act (5 U.S.C. chapter 6).

Paperwork Reduction Act

Removal of these rules will not

impose collection of information

requirements for purposes of the

Paperwork Reduction Act (44 U.S.C.

chapter 35, 5 CFR Part 1320).

List of Subjects in 48 CFR Parts 5243

and 5252

Government procurement.

Dated: April 22, 1998.

Michael I. Quinn,

Commander, Judge Advocate General’s Corps,

U.S. Navy, Federal Register Liaison Officer.

Under the authority of Sec. 810 of

Pub. L. 105–85, and for the reasons set

forth in the preamble, remove and

reserve part 5243 and Sections

5252.243–9000 and 5252.243–9001 of

title 48 of the Code of Federal

Regulations.

[FR Doc. 98–11592 Filed 4–30–98; 8:45 am]

BILLING CODE 3810–FF–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB–9, Notice No. 11]

RIN 2130–AB22

Two-Way End-of-Train Telemetry

Devices and Certain Passenger Train

Operations

AGENCY: Federal Railroad

Administration (FRA), DOT.

ACTION: Final rule.

SUMMARY: FRA is revising the

regulations regarding the use and design

of two-way end-of-train telemetry

devices (two-way EOTs) to specifically

address certain passenger train

operations where multiple units of

freight-type equipment, material

handling cars, or express cars are part of

a passenger train’s consist. Trains of this

nature are currently being operated by

the National Railroad Passenger

Corporation (Amtrak), and these

revisions are intended to clarify and

address the applicability of the two-way

EOT requirements to these types of

operations.

EFFECTIVE DATE: This rule is effective

May 1, 1998.

ADDRESSES: Any petition for

reconsideration should identify the

docket number and the notice number

and must be submitted in triplicate to

the Docket Clerk, Office of Chief

Counsel, FRA, 400 Seventh Street, S.W.,

Stop 10, Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT:

James Wilson, Motive Power and

Equipment Division, Office of Safety,

RRS–14, FRA, 400 Seventh Street, S.W.,

Stop 25, Washington, D.C. 20590

(telephone 202–632–3367), or Thomas

Herrmann, Trial Attorney, Office of the

Chief Counsel, RCC–12, FRA, 400

Seventh Street, S.W., Stop 10,

Washington, D.C. 20590 (telephone

202–632–3178).

SUPPLEMENTARY INFORMATION:

Background

On January 2, 1997, FRA published a

final rule amending the regulations

governing train and locomotive power

braking systems at 49 CFR part 232 to

add provisions pertaining to the use and

design of two-way end-of-train

telemetry devices (two-way EOTs). See

62 FR 278. The purpose of the revisions

was to improve the safety of railroad

operations by requiring the use of twoway EOTs on a variety of trains

pursuant to 1992 legislation, and by

establishing minimum performance and

operational standards related to the use

and design of the devices. See Pub. L.

No. 102–365 (September 3, 1992); 49

U.S.C. 20141.

The regulations published on January

2, 1997, regarding two-way EOTs,

provided an exception from the

requirements for ‘‘passenger trains with

emergency brakes.’’ See 49 CFR

232.23(e)(9). The language used in this

exception was extracted in total from

the statutory exception contained in the

statutory provisions mandating that

FRA develop regulations addressing the

use and operation of two-way EOTs or

similar technology. See 49 U.S.C.

20141(c)(2). A review of the legislative

history reveals that there was no

discussion by Congress as to the precise

meaning of the phrase ‘‘passenger trains

with emergency brakes.’’ Consequently,

FRA is required to effectuate Congress’

intent based on the precise language

used in that and the other express

exceptions and based on the overall

intent of the statutory mandate. See 49

U.S.C. 20141(c)(1)–(c)(5). Furthermore,

any exception contained in a specific

statutory mandate should be narrowly

construed. See Chesapeake & Ohio Ry.

v. United States, 248 F. 85 (6th Cir.

1918) cert. den., 248 U.S. 580; DRG R.R.

v. United States, 249 F. 822 (8th Cir.

1918); United States v. ATSF Ry., 156

F.2d 457 (9th Cir. 1946).

The intent of the statutory provisions

related to two-way EOTs was to ensure

that trains operating at a speed over 30

mph or in heavy grade territory were

equipped with the technology to

effectuate an emergency application of

the train’s brakes starting from both the

front and rear of the train. The specific

exceptions contained in the statute were

aimed at trains (i) that do not operate

within the express parameters or (ii)

that are equipped or operated in a

fashion that provides the ability to

effectuate an emergency brake

application that commences at the rear

of the train without the use of a two-way

EOT. See 49 U.S.C. 20141(c)(1)–(c)(5).

Based on the intent of the statute and

based upon a consistent and narrow

construction of the specific language

used by Congress in the express

exceptions, FRA believes it is clear that

Congress did not intend the phrase

‘‘passenger trains with emergency

brakes’’ to constitute a blanket

exception for all passenger trains. If that

was Congress’ intent, it would not have

added the qualifying phrase ‘‘with

emergency brakes.’’

In FRA’s view, this language limits

the specific statutory exception to

passenger trains equipped with a

separate emergency brake valve in each

car throughout the train and, thus, to

passenger trains possessing the ability to

effectuate an emergency application of

the train’s brakes from the rear of the

train. Therefore, passenger trains that

include RoadRailers, auto racks,

express cars, or other similar vehicles

designed to carry freight that are placed

at the rear of the train, that are not

equipped with emergency brake valves,

would not fall within the specific

statutory or regulatory exception as they

are incapable of effectuating an

emergency brake application that

commences at the rear of the train.

Further, FRA does not believe that

Congress envisioned a significant

number of express or intermodal cars

being hauled at the rear of passenger

trains when the specific exception was

included in the statute.

FRA believes that Congress intended

to except only those trains traditionally

considered to be passenger trains, which

would include passenger trains

containing baggage and mail cars as

these have consistently been considered

passenger equipment with emergency

brakes. However, passenger trains

which operate with numerous

inaccessible baggage or mail cars

attached to the rear of the train that lack

any ability to effectuate an emergency

brake application from the rear of the
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24131

train would, in FRA’s view, fall outside

the specific statutory and regulatory

exception for ‘‘passenger trains with

emergency brakes.’’

Subsequent to the issuance of the

final rule on two-way EOTs published

on January 2, 1997 and the period

permitted for the submission of

petitions for reconsideration of that rule,

Amtrak raised concerns regarding the

applicability of the final rule to some of

its passenger train operations,

particularly those which recently began

to operate with numerous express,

material handling cars, or RoadRailers

entrained in the consist. These concerns

focused on FRA’s enforcement guidance

provided to its field inspectors, which

stated that the exception for ‘‘passenger

trains with emergency brakes’’ was

intended to apply only to trains

traditionally considered to be passenger

trains, a category that would include

passenger trains containing a limited

number of baggage and mail cars at the

rear of the train. This guidance was

based on the reasoning provided in the

preceding discussion. Amtrak

contended that FRA’s interpretive

guidance was an improper reading of

the statutory and regulatory exception

and did not adequately consider the

superior braking capabilities of

passenger equipment. Although FRA

disagrees that its guidance was

improper, FRA did agree that a closer

examination of the applicability of the

two-way EOT requirements to passenger

trains needed to be performed in light

of the superior braking ratios of

passenger cars and the presence of

emergency brake valves on the

passenger cars in mixed train consists,

which provide certain safety assurances

that are not present in traditional freight

operations. Consequently, FRA agreed

that the mixed passenger and ‘‘express’’

service currently being operated by

Amtrak is unique and needed to be

handled separately from traditional

freight operations.

Amtrak currently operates a number

of trains that include numerous material

handling cars, express cars, auto racks,

mail cars, and/or RoadRailer

equipment. These types of rolling

equipment are either not equipped with

emergency brake valves or, if equipped

with such valves, they are not accessible

to any member of the train crew.

Amtrak expects that the operation of

this type of rolling equipment will

continue to grow and that many of its

trains will eventually have a number of

these vehicles in their consists. As

noted above, FRA believes that a

passenger train operated with this

rolling equipment falls outside the

statutory and regulatory exception to the

two-way EOT requirement for

‘‘passenger trains with emergency

brakes,’’ and thus, would be required

under the existing rules to be equipped

with an operative two-way EOT or

alternative technology. However, FRA

also recognizes the unique nature of

these types of mixed operations and

realizes that the safety assurances

provided by the braking ratios and the

presence of emergency brake valves at

various locations through much of the

consist on certain mixed passenger

trains make requiring the use of a twoway EOT unnecessary.

To gain a perspective on the stopping

characteristics and safety implications

of the mixed passenger train operations,

FRA requested the Volpe National

Transportation Systems Center (Volpe)

to review the information and

procedures used by Amtrak in

developing various stopping distance

calculations submitted to FRA. In

addition, FRA requested that Volpe

develop and analyze its own data

regarding these types of mixed

passenger trains. In making their

calculations, both Volpe and Amtrak

used variables of grade; train

configuration; and the number, weight,

and types of cars and locomotives

expected to be used in these types of

operations. Although all of the

calculations were based on worse-case

scenarios (e.g., the angle cock was

assumed to be closed just behind the

last car with an accessible emergency

brake valve, and only friction braking—

tread or disc brakes of locomotives and

cars—was considered available to stop

the train), all stops were achieved on the

specified grade used in the calculation.

In making its calculations Volpe used

a MathCad program to compute

stopping distances. Volpe used the

results of its calculations as a check

against the results Amtrak had produced

and submitted to FRA. Volpe concluded

that Amtrak’s procedures predicted

longer (more conservative) stopping

distances than the approach taken by

Volpe. Amtrak’s results were also

compared to the requirements of the

Amtrak Communication and Signal

Department, Specification S–603, Curve

8, which is used to determine stopping

distances for passenger equipment for

signal block spacing. Curve 8 values for

stopping distances are augmented by a

factor of 25 percent to account for

conditions which may impair brake

performance. The absolute (actual)

signal block spacing on the Northeast

Corridor is actually greater than any of

the stopping distances produced by

either Volpe or Amtrak in their

calculations. Therefore, stopping

distances within established signal

blocks should not be a problem. The

process Amtrak used was sufficiently

conservative so that predicted stopping

distances were greater than would be

experienced in reality. Nevertheless,

FRA worked with Amtrak to define

further limitations adequate to ensure

safety under identified worst-case

conditions, and these limitations were

set forth in this proposal.

Based on the information provided by

Amtrak and the independent

calculations conducted by Volpe, FRA

published an NPRM on January 16,

1998, proposing to revise the regulations

on two-way EOTs to specifically address

certain passenger train operations where

numerous freight-type cars, material

handling cars, or express cars are part of

a train’s consist. See 63 FR 2647

(January 16, 1998). In the NPRM, FRA

stated that swift action was necessary

with regard to the provisions proposed

and that a lengthy comment period

would be impracticable, unnecessary,

and contrary to the public interest. It

was noted that a number of freight

railroads were expressing concern and

apprehension over permitting these

mixed passenger trains to operate over

their rails in light of FRA’s abovementioned interpretive guidance. In

fact, at least one instance was found in

which a mixed Amtrak train was

detained for six hours by a freight

railroad until a two-way EOT was

applied because the freight railroad

refused to permit the train to operate

without the device. FRA also believed

that requiring Amtrak to acquire a

number of two-way EOTs and operate

under the provisions of the current

regulatory scheme during a lengthy

comment period would impose a

substantial and unwarranted financial

and operational burden without

improving the safety of Amtrak

operations. Furthermore, the proposals

contained in the NPRM included certain

restrictions on the operation and makeup of certain passenger trains that were

proposed for exception from the twoway EOT requirements, restrictions that

FRA believe will enhance the safety of

those operations and that are not

currently mandated.

In addition to the concerns discussed

above, FRA also believed that swift

action was necessary because Amtrak is

continuing to take delivery of express

and other equipment and to build this

line of business in order to close its

operating deficit and to support

continued intercity rail passenger

service in a time of declining support

from the public treasury. The public’s

interest in continued rail passenger

service warrants reasonable flexibility to

achieve this business objective. This
24132 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

development corresponded with the

implementation of two-way EOT

requirements, rapidly complicating

what appeared at the outset to be a

relatively straightforward issue. Prior to

the effective date of the two-way EOT

rule, Amtrak implemented a two-way

EOT system on its AutoTrain,

previously the only Amtrak train

operated with any significant number of

unoccupied cars at the rear of the train.

Anticipating the need to equip other

trains as the express business grows,

Amtrak is in the process equipping over

100 locomotives and deploying rear-end

units at appropriate points along its

lines where trains are built. Amtrak also

committed to FRA to operate cars with

cables for head-end power transmission

(such as mail and baggage cars) at the

front of trains where practicable given

constraints on loading and unloading, in

order limit the number of cars to the

rear of the train that are beyond the last

car with an accessible emergency valve.

However, as Amtrak’s express service

grows and Amtrak builds trains

responsive to that growth (a

phenomenon that is well underway),

there is an increased danger that

Amtrak’s own internal policies for use

of available two-way EOT systems

would not be honored in the field

through oversight. Thus, FRA believed

that having clear and certain Federal

requirements regarding the use of twoway EOTs were essential to public

safety.

Based on the concerns noted above,

FRA issued the NPRM with a comment

period of only 15 days in order to

quickly address the applicability of the

two-way EOT requirements to mixed

passenger train operations. FRA made

clear that if no substantive adverse

comments were received on the NPRM

within the 15-day comment period, it

would immediately issue a final rule

containing the provisions of the

proposal. FRA also made clear in the

NPRM that it intended for any final rule

issued to take effect immediately upon

publication.

Written comments on the NPRM have

been received from Amtrak,

Consolidated Rail Corporation (Conrail),

and the Brotherhood of Locomotive

Engineers (BLE). The relatively brief

comments received from Amtrak and

Conrail do not substantively affect the

approach taken in the NPRM and

primarily relate to clarifying the

language used in the proposed

provisions of the NPRM or the

discussion contained in the section-bysection analysis of the NPRM.

Therefore, these specific comments will

be directly addressed in the section-bysection analysis of this final rule. In

Amtrak’s written comments, Amtrak

also requests that trains consisting of six

or fewer mail or express cars be

specifically excepted from the

requirements for the use of a two-way

EOT. As the NPRM and this final rule

are specifically and narrowly focused on

mixed passenger train operations, FRA

believes that this rulemaking is not the

appropriate forum for addressing

Amtrak’s request. Furthermore, such a

request has much broader industry-wide

implications than the issues addressed

in this rulemaking and would involve

consideration of additional safety

concerns and the performance of

detailed research not focused on or

contemplated in this proceeding.

In its written comments, Conrail

raises a concern regarding the

responsibility and potential liability of a

host railroad if a passenger train

operates on its line while not in

compliance with the requirements of

this rule. The responsibilities of the host

railroad with regard to this rule are the

same as they are for any of the

requirements contained in part 232. See

232.0(e). As a matter of policy,

enforcement actions for noncompliance

with this rule will generally be imposed

on the railroad or individuals

responsible for the operation of the train

(i.e., Amtrak in most cases), unless the

host railroad causes the violation of

such requirements.

The BLE submitted brief written

comments on the NPRM, generally

objecting to any amendments to the twoway EOT regulations. The BLE agrees

with FRA that Congress did not discuss

the potential for mixed passenger train

operations and generally asserts that

when passenger equipment is used in

conjunction with freight equipment it

should be equipped with a two-way

EOT. The BLE does not provide any

specific data or cite to any potential

safety or operational problems involved

with excepting certain mixed passenger

trains from the requirements for use of

a two-way EOT. Furthermore, the BLE

does not object either to the data

assembled and assessed by FRA

regarding mixed passenger trains or to

the additional safety assurances that

exist on these types of trains that are not

present in traditional freight operations.

Consequently, based on the discussion

above and contrary to the broad

assertions of the BLE, FRA believes that

it would be in the public interest and

that there is more than sufficient safety

justification for excepting certain mixed

passenger trains from the requirements

related to the use of two-way EOTs.

After reviewing the above noted

comments received on the NPRM, FRA

concludes that no substantive adverse

comments have been provided that

cause FRA to further consider or delay

the implementation of the requirements

proposed in the NPRM. Furthermore,

FRA has received no requests for a

public hearing on the NPRM.

Consequently, the final rule that is being

issued by FRA revising the regulations

on two-way EOTs to specifically address

certain passenger train operations where

numerous freight-type cars, material

handling cars, or express cars are part of

a train’s consist is virtually identical to

the proposal contained in the NPRM

published on January 16, 1998.

Section-by-Section Analysis

FRA is amending § 232.23 by revising

paragraphs (e) and (g) and by adding a

new paragraph (h) to specifically

address passenger train operations that

include using cars that do not have

readily accessible emergency brake

valves.

Paragraph (e) of § 232.23 contains a

listing of the trains that are excepted

from the two-way EOT requirements.

Conforming changes have been made to

paragraphs (e)(8) and (e)(9). In

paragraph (e)(9) FRA retains the

exception for passenger trains in which

all of the cars in the train are equipped

with a readily accessible emergency

brake valve, as discussed in detail

above.

In paragraph (e)(10) FRA adds an

exception to the requirements regarding

two-way EOTs for passenger trains that

operate with a car placed at the rear of

the train that is equipped with an

emergency brake valve readily

accessible to a crew member in radio

communication with the locomotive

engineer of the train. FRA intends for

this exception to be applicable to

passenger trains containing cars that do

have a readily accessible emergency

brake valve at the rear of the train. FRA

believes this exception is justified as it

is virtually identical to the exception

granted to freight trains with an

occupied caboose (contained in

paragraph (e)(3)) since it would permit

an emergency application of brakes to

be initiated from the occupied car at the

rear of the passenger train.

In paragraph (e)(11) FRA provides an

exception for certain passenger trains

that have cars placed at the rear of the

train that do not have readily accessible

emergency brake valves. This exception

is intended to recognize the safety of

these types of trains if configured and

operated in accordance with the

provisions of this exception. The

exception contained in this

subparagraph applies only to trains of

twenty-four (24) cars or fewer.

Therefore, passenger trains that have
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24133

more than 24 cars in the consist and that

do not fall within the exceptions

contained in subparagraphs (e)(9) or

(e)(10) would be required to be

equipped with an operative two-way

EOT device or alternative technology. It

should be noted that a locomotive that

is used for power and/or controlling

purposes and is not designed to carry

passengers will not be considered a car

for purposes of these calculations.

Therefore, locomotives hauled dead in

tow would be required to be counted as

a car for purposes of these calculations.

In the NPRM, FRA proposed that each

bogie used in RoadRailer operation be

counted as a car for purposes of

calculating the number of cars in a

passenger train consist. See 63 FR 2649.

In its written comments, Amtrak

objected to this method of calculating

the number of cars in a train as it would

artificially inflate the number of cars in

a train. Amtrak stated that a string of

RoadRailer equipment will always

have at least one more bogie than the

total number of RoadRailer vans since

bogies include at least one couplermate.

It was not FRA’s intention to artificially

inflate the number of cars in the train by

proposing such a method of calculation.

FRA’s use of the term ‘‘bogie’’ was

intended to refer to the intermediate

bogies not the couplermates. However,

after consideration of Amtrak’s

comments, FRA believes it would be

confusing and possibly lead to incorrect

calculation of the number of cars in a

train if bogies are used as the

determining factor. Consequently, in

order to avoid confusion and clarify the

intent of the final rule, FRA will

calculate the number of cars in a train

containing RoadRailer equipment by

counting each RoadRailer van as a car.

It should be noted that this method of

calculation is solely for the purpose of

applying the exception contained in this

paragraph. In order to accurately

calculate the percentage of operative

brakes pursuant to §§ 232.1 and 232.12,

it is necessary to consider the brakes on

all the bogies in the train.

Based on data and information

submitted by Amtrak and reviewed by

Volpe and based upon Volpe’s

independent analysis regarding

passenger train braking ratios and the

response of passenger train brakes, FRA

believes that certain mixed passenger

trains can be safely operated without

being required to be equipped with a

two-way EOT or alternative technology,

provided certain operational and train

configuration restrictions are

maintained. Paragraph (e)(11)(i) requires

that if the total number of cars in a

passenger train consist is twelve (12) or

fewer, a car located no less than halfway

through the consist (counting from the

first car in the train) must be equipped

with an emergency brake valve readily

accessible to a crew member. For

example, in a consist containing twelve

(12) cars, the sixth (6th) car (or a car

closer to the rear) in the consist must

have a readily accessible emergency

brake valve; likewise, in an eleven (11)

car consist, the sixth (6th) car (or a car

closer to the rear) must have a readily

accessible emergency brake valve, since

all half numbers will be rounded up.

Paragraph (e)(11)(ii) requires that if the

total number of cars in a passenger train

consist is from thirteen (13) to twentyfour (24), a car located no less than twothirds (2⁄3) of the way through the

consist (counting from the first car in

the train) must be equipped with an

emergency brake valve readily

accessible to a crew member. For

example, in a twenty-one (21) car

consist, the fourteenth (14th) car (or a

car closer to the rear) must have a

readily accessible emergency brake

valve.

In addition to these trainconfiguration requirements, paragraphs

(e)(11)(iii) and (iv) contain certain

operating requirements that must be

followed by any passenger train

operating pursuant to this specific

exception. Such trains are required to

have a train crew member occupy the

rearmost car equipped with a readily

accessible emergency brake valve and

remain in constant radio

communication with the locomotive

engineer whenever the train is operating

over a section of track with an average

grade of two percent or higher over two

continuous miles. FRA recommends

that the engineer alert the train crew

member approximately ten (10) minutes

prior to descending the heavy grade, so

the crew member will be in place at the

crest of the grade. Furthermore, the final

rule requires that the crew member not

leave his or her position until the

locomotive engineer advises that the

train has traversed the grade. FRA

believes that these operational

requirements will ensure that

immediate action can be taken by a

member of the train crew to effectuate

an emergency brake application

whenever the train is descending a

heavy grade.

FRA is also amending paragraph (g) to

indicate that the operating limitations

that will be imposed on a passenger

train required to be equipped with a

two-way EOT that experiences an en

route failure of the device will be

contained in paragraph (h). It should be

noted that FRA intends the criteria

contained paragraph (g) for determining

when a loss of communication between

the front and rear units will be

considered an en route failure to be

applicable to passenger train operations.

Paragraph (h) contains the operational

limitations and restrictions that are

being placed on passenger trains that

experience en route failures of two-way

EOTs. Conrail, in its written comments,

voiced concern that the language

contained in the proposed rule text did

not accurately reflect the operating

restrictions discussed in the preamble.

Consequently, in this final rule FRA has

rewritten and reorganized paragraph (h)

to make it more understandable and to

clarify FRA’s intent.

Due to the time-sensitive nature of

passenger operations, FRA believes that

placing a speed restriction on passenger

trains is not the most effective method

of handling en route failures of a twoway EOT. Rather than delaying the

movement of a passenger train that

experiences an en route failure of a

device, FRA believes that certain

operating restrictions can be imposed on

the train and its crew to ensure the

safety of these trains, particularly in

non-heavy-grade territory. However,

FRA believes that in order to realize the

benefits of a two-way EOT as

contemplated by Congress, the device

must be operative when the train

descends a heavy grade. Thus, FRA will

only permit a passenger train to

continue to operate under the operating

restrictions contained in this paragraph

in other than heavy grade territory.

Consequently, paragraph (h)(1) has been

slightly modified from the NPRM and is

intended to strictly prohibit a passenger

train that is required to be equipped

with an operable device, from

descending an average grade of two

percent or more for two continuous

miles until an operable device is

installed or an alternative method of

initiating an emergency brake

application from the rear of the train is

achieved.

Paragraph (h) has been further

modified to make clear that the

operating restrictions contained in

paragraph (h)(2) are applicable to all

passenger trains that experience en

route failures of the two-way EOT and

that are operating on other than heavy

grade territory (i.e., two percent for two

continuous miles). Paragraph (h)(2) is

intended to permit passenger trains that

develop an en route failure of the twoway EOT to continue to operate over

track that is not in heavy grade territory

as long as a crew member occupies the

rearmost car with a readily accessible

emergency brake valve and remains in

constant radio communication with the

locomotive engineer. In addition, FRA

believes that since the train no longer
24134 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

has the safety assurances provided by a

two-way EOT, the engineer must

periodically test the braking

characteristics of the train by making

running brake tests. If the engineer

suspects the brakes are not functioning

properly, immediate action shall be

taken to bring the train to a stop until

corrections can be made. Paragraph

(h)(3) requires that all en route failures

of the devices must be corrected either

at the next location where the necessary

repairs can be made or at the next

location where a required brake test of

the train is to be conducted, whichever

point the train arrives at first.

Regulatory Impact

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule has been evaluated in

accordance with existing policies and

procedures. Because the requirements

contained in this final rule clarify the

applicability of the two-way EOT

regulations to a specific segment of the

industry and generally reduce the

regulatory burden on these operators,

FRA has concluded that this final rule

does not constitute a significant rule

under either Executive Order 12866 or

DOT’s policies and procedures.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) requires a review

of rules to assess their impact on small

entities. FRA certifies that this final rule

does not have a significant impact on a

substantial number of small entities.

Because the requirements contained in

this final rule clarify the applicability of

the two-way EOT regulations to a

specific segment of the industry and

generally reduce the regulatory burden

on these operators, FRA has concluded

that there are no substantial economic

impacts for small units of government,

businesses, or other organizations.

Paperwork Reduction Act

This final rule does not change any

information collection requirements.

Environmental Impact

FRA has evaluated this final rule in

accordance with its procedures for

ensuring full consideration of the

potential environmental impacts of FRA

actions, as required by the National

Environmental Policy Act (42 U.S.C.

4321 et seq.), other environmental

statutes, Executive Orders, and DOT

Order 5610.1c. It has been determined

that this final rule does not have any

effect on the quality of the environment.

Federalism Implications

This final rule does not have a

substantial effect on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Thus, in

accordance with Executive Order 12612,

preparation of a Federalism Assessment

is not warranted.

List of Subjects in 49 CFR Part 232

Penalties, Railroad power brakes,

Railroad safety, Reporting and

recordkeeping requirements, Two-way

end-of-train devices.

The Rule

In consideration of the foregoing, FRA

amends part 232, title 49, Code of

Federal Regulations as follows:

PART 232—RAILROAD POWER

BRAKES AND DRAWBARS

1. The authority citation for part 232

is revised to read as follows:

Authority: 49 U.S.C. 20102, 20103, 20107,

20108, 20110–20112, 20114, 20133, 20141,

20301–20304, 20701–20703, 21301, 21302,

21304, and 21311; and 49 CFR 1.49(c), (g),

and (m).

2. Section 232.23 is amended by

revising paragraphs (e) introductory

text, (e)(8), and (e)(9) and adding a new

sentence to the beginning of the

introductory text of paragraph (g), and

adding new paragraphs (e)(10), (e)(11),

(g)(2) and (h) to read as follows:

§ 232.23 Operations requiring use of twoway end-of-train devices; prohibition on

purchase of nonconforming devices.

* * * * *

(e) Exceptions. The following types of

trains are excepted from the

requirement for the use of a two-way

end-of-train device:

* * * * *

(8) Trains that operate exclusively on

track that is not part of the general

railroad system;

(9) Passenger trains in which all of the

cars in the train are equipped with an

emergency brake valve readily

accessible to a crew member;

(10) Passenger trains that have a car

at the rear of the train, readily accessible

to one or more crew members in radio

contact with the engineer, that is

equipped with an emergency brake

valve readily accessible to such a crew

member; and

(11) Passenger trains that have

twenty-four (24) or fewer cars (not

including locomotives) in the consist

and that are equipped and operated in

accordance with the following trainconfiguration and operating

requirements:

(i) If the total number of cars in a

passenger train consist is twelve (12) or

fewer, a car located no less than halfway

through the consist (counting from the

first car in the train) must be equipped

with an emergency brake valve readily

accessible to a crew member;

(ii) If the total number of cars in a

passenger train consist is thirteen (13) to

twenty-four (24), a car located no less

than two-thirds (2⁄3) of the way through

the consist (counting from the first car

in the train) must be equipped with an

emergency brake valve readily

accessible to a crew member;

(iii) Prior to descending a section of

track with an average grade of two

percent or greater over a distance of two

continuous miles, the engineer of the

train shall communicate with the

conductor, to ensure that a member of

the crew with a working two-way radio

is stationed in the car with the rearmost

readily accessible emergency brake

valve on the train when the train begins

its descent; and

(iv) While the train is descending a

section of track with an average grade of

two percent or greater over a distance of

two continuous miles, a member of the

train crew shall occupy the car that

contains the rearmost readily accessible

emergency brake valve on the train and

be in constant radio communication

with the locomotive engineer. The crew

member shall remain in this car until

the train has completely traversed the

heavy grade.

* * * * *

(g) En route failure of device on a

freight or other non-passenger train.

Except on passenger trains required to

be equipped with a two-way end-oftrain device (which are provided for in

paragraph (h) of this section), en route

failures of a two-way end-of-train device

shall be handled in accordance with this

paragraph. * * *

* * * * *

(2) [Reserved]

(h) En route failure of device on a

passenger train. (1) A passenger train

required to be equipped with a two-way

end-of-train device that develops an en

route failure of the device (as explained

in paragraph (g) of this section) shall not

operate over a section of track with an

average grade of two percent or greater

over a distance of two continuous miles

until an operable two-way end-of-train

device is installed on the train or an

alternative method of initiating an

emergency brake application from the

rear of the train is achieved.

(2) Except as provided in paragraph

(h)(1) of this section, a passenger train
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24135

required to be equipped with a two-way

end-of-train device that develops an en

route failure of the device (as explained

in paragraph (g) of this section) shall be

operated in accordance with the

following:

(i) A member of the train crew shall

be immediately positioned in the car

which contains the rearmost readily

accessible emergency brake valve on the

train and shall be equipped with an

operable two-way radio that

communicates with the locomotive

engineer; and

(ii) The locomotive engineer shall

periodically make running tests of the

train’s air brakes until the failure is

corrected; and

(3) Each en route failure shall be

corrected at the next location where the

necessary repairs can be conducted or at

the next location where a required brake

test is to be performed, whichever is

reached first.

3. Appendix A to Part 232, ‘‘Schedule

of Civil Penalties,’’ is amended by

revising the heading of the entry for

§ 232.23 and revising the entry for

§ 232.23(g) and adding an entry for

§ 232.23(h), to read as follows:

Appendix A to Part 232—Schedule of

Civil Penalties

* * * * *

Section Violation Willful violation

* * * * *

232.23 Operating

standards:

Section Violation Willful violation

* * * * *

(g) En route failure,

freight or other

non-passenger 5,000 7,500

(h) En route failure,

passenger 5,000 7,500

* * * * *

Issued in Washington, D.C., on April 24,

1998.

Jolene M. Molitoris,

Administrator.

[FR Doc. 98–11408 Filed 4–30–98; 8:45 am]

BILLING CODE 4910–06–P