194 Federal Register / Vol. 63, No. 2 / Monday, January 5, 1998 / Proposed Rules

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 98–034 Filed 1–2–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 97–245; RM–9202]

Radio Broadcasting Services; St.

Marys, WV

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by Seven

Ranges Radio Company, Inc., proposing

the allotment of Channel 287A St.

Marys, West Virginia, as the community

second local FM transmission service.

Channel 287A can be allotted to St.

Marys in compliance with the

Commission’s minimum distance

separation requirements with a site

restriction of 10.8 kilometers (6.7 miles)

southeast to avoid a short-spacing to the

licensed site of Station WZNW(FM),

Channel 288B1, Bethlehem, West

Virginia. The coordinates for Channel

387A at St. Marys are North Latitude

39–18–03 and West Longitude 81–15–

19. Since St. Marys is located within

320 kilometers (200 miles) of the U.S.-

Canadian border, concurrence of the

Canadian government has been

requested.

DATES: Comments must be filed on or

before February 9, 1998, and reply

comments on or before February 24,

1998.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner, his counsel, or consultant, as

follows: Thomas P. Taggart, Esq., P.O.

Box 374, St. Marys, West Virginia 26170

(Counsel for Petitioner).

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

97–245, adopted December 10, 1997,

and released December 19, 1997. The

full text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW, Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 1231 20th Street, Washington, DC

20036.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 98–84 Filed 1–2–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 97–246; RM–9205]

Radio Broadcasting Services; Walla

Walla, WA, and Hermiston, OR

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by Mark

Jacky Broadcasting proposing the

substitution of Channel 256C2 for

Channel 256C3 at Walla Walla,

Washington, and the modification of

Station KUJ–FM’s construction permit

accordingly. To accommodate the

upgrade, petitioner also requests the

substitution of Channel 258A for

Channel 257A at Hermiston, Oregon,

and the modification of Station

KQFM(FM)s license accordingly.

Channel 256C2 can be substituted at

Walla Walla in compliance with the

Commission’s minimum distance

separation requirements without the

imposition of a site restriction at

petitioner’s requested site. The

coordinates for Channel 256C2 at Walla

Walla are North Latitude 45–59–38 and

West Longitude 118–10–47.

Additionally, Channel 258A can be

substituted at Hermiston in compliance

with the Commission’s minimum

distance separation requirements at

Station KQFM(FM)’s presently

authorized site. The coordinates for

Channel 258A at Hermiston are North

Latitude 45–51–57 and West Longitude

119–18–45.

DATES: Comments must be filed on or

before February 9, 1998, and reply

comments on or before February 24,

1998.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner, his counsel, or consultant, as

follows: Robert Lewis Thompson, Esq.,

Taylor, Thiemann & Aitken, L.C., 908

King Street, Suite 300, Alexandria,

Virginia 22314 (Counsel for Petitioner).

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

97–246, adopted December 10, 1997,

and released December 19, 1997. The

full text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 1231 20th Street, NW.,

Washington, DC 20036.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.
Federal Register / Vol. 63, No. 2 / Monday, January 5, 1998 / Proposed Rules 195

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 98–139 Filed 1–2–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB–9, Notice No. 8]

RIN 2130–AB22

Two-Way End-of-Train Telemetry

Devices and Certain Passenger Train

Operations

AGENCY: Federal Railroad

Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: FRA proposes to revise 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 swift action

is necessary to clarify and address the

applicability of the two-way EOT

requirements to these types of

operations.

DATES: Written comments regarding this

proposal must be filed no later than

January 20, 1998. Comments received

after that date will be considered to the

extent possible without incurring

additional expense or delay.

ADDRESSES: Written comments 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,

SW., Stop 10, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

James Wilson, Motive Power and

Equipment Division, Office of Safety,

RRS–14, FRA, 400 Seventh Street, SW.,

Stop 25, Washington, DC 20590

(telephone 202–632–3367), or Thomas

Herrmann, Trial Attorney, Office of the

Chief Counsel, RCC–12, FRA, 400

Seventh Street, SW., Stop 10,

Washington, DC 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 freight 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. In this document, FRA

proposes 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. Trains of this nature

are currently being operated by the

National Railroad Passenger Corporation

(Amtrak), and prompt action is

necessary to clarify and address the

applicability of two-way EOT

requirements to these types of

operations.

The current regulations regarding

two-way EOTs provide 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 that are 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 freighttype equipment 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

train and 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 and the period permitted for

the submission of petitions for