[Federal Register Volume 63, Number 84 (Friday, May 1, 1998)]
[Rules and Regulations]
[Pages 24130-24135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11408]


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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.

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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 two-way 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<SUP></SUP>, 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

[[Page 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<SUP></SUP> 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<SUP></SUP> 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 two-way 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 above-mentioned 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 make-up of certain passenger trains that were proposed 
for exception from the two-way 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

[[Page 24132]]

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 two-way 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-by-section analysis of the NPRM. Therefore, these specific 
comments will be directly addressed in the section-by-section 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 two-way 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 Sec. 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 Sec. 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

[[Page 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<SUP></SUP> 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<SUP></SUP> equipment will always have at least one more 
bogie than the total number of RoadRailer<SUP></SUP> 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<SUP></SUP> equipment by counting each 
RoadRailer<SUP></SUP> 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 Secs. 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 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. 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 train-configuration 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 two-way 
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 two-way 
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

[[Page 24134]]

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:


Sec. 232.23  Operations requiring use of two-way 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 train-configuration 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-of-train 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

[[Page 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 Sec. 232.23 and 
revising the entry for Sec. 232.23(g) and adding an entry for 
Sec. 232.23(h), to read as follows:

Appendix A to Part 232--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
                                                                Willful 
                     Section                       Violation   violation
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
232.23  Operating standards:                                            
                                                                        
                  *        *        *        *        *                 
(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