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

reconsideration of the 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 does 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 agrees

that the mixed passenger and ‘‘express’’

service currently being operated by

Amtrak is unique and needs to be

handled separately from traditional

freight operations.

None of the consists proposed to be

excepted raises any issue with respect to

the ability to stop on grade using the

rearmost available conductor’s valve.

The issue is the ability to stop within

normal signal spacing after determining

that there is a blockage in the train line.

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 has worked with Amtrak to define

further limitations adequate to ensure

safety under identified worst-case

conditions, and these limitations are set

forth in this proposal.

Need for 15-Day Comment Period

As previously discussed, 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 explained

earlier, 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.

As will be further clarified, FRA

believes that swift action must be taken

with regard to the provisions proposed

in this document and that a lengthy

comment period would be

impracticable, unnecessary, and

contrary to the public interest. A

number of freight railroads are currently

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 has occurred 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. In

addition, 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 this document include

certain restrictions on the operation and

make-up of certain passenger trains that

are proposed for exception from the

two-way EOT requirements, restrictions

that FRA believes enhance the safety of

those operations and that are not

currently mandated.

The current situation mandates swift

action to address both safety concerns

and practical operating concerns. On the

one hand, 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 development has

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

rule, Amtrak had implemented a twoway EOT system on its AutoTrain,
Federal Register / Vol. 63, No. 2 / Monday, January 5, 1998 / Proposed Rules 197

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 equipping over 100

locomotives and deploying rear-end

units at appropriate points along its

lines where trains are built. Meanwhile,

Amtrak has 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. As noted

above, passenger trains have historically

operated with small numbers of

unoccupied cars at the rear and without

difficulty from the point of view of

effective braking. However, as express

service grows and Amtrak builds trains

responsive to that growth (a

phenomenon that is well underway), the

danger increases that Amtrak’s own

internal policies for use of available

two-way EOT systems may not be

honored in the field through oversight.

That is, having clear and certain Federal

requirements becomes essential to

public safety. FRA recognizes that

previous interpretive guidance has been

excessively narrow in relation to the

safety issues presented by mixed

consists. Accordingly, FRA will employ

the criteria contained in this proposed

rule in exercising enforcement

discretion during the period of this

rulemaking.

In conclusion, FRA believes that

prompt action is necessary in order to

alleviate and avoid the concerns noted

above. Consequently, FRA is issuing

this 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 wishes to make clear that if no

substantive adverse comments are

received on this proposal within the 15-

day comment period, it will

immediately issue a final rule

containing the provisions of this

proposal. Any comments received

during this 15-day comment period will

be fully considered prior to the issuance

of a final rule. FRA intends for any final

rule issued to take effect immediately

upon publication. FRA is now soliciting

comments on this proposal and will

consider those comments in

determining whether there is a need to

amend the proposal at the final rule

stage. FRA also intends to exercise its

enforcement discretion and will not

strictly enforce the current two-way

EOT requirements against passenger

train operations during the pendency of

this proposal, provided that the

passenger train is operated in

accordance with the proposed

provisions contained in this NPRM.

Section-by-Section Analysis

FRA proposes to amend § 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.

FRA proposes conforming changes to

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

paragraph (e)(9) FRA proposes to retain

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 proposes 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 proposed 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 proposed 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 proposes to

except certain passenger trains that have

cars placed at the rear of the train that

do not have readily accessible

emergency brake valves. This proposed

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 proposed exception contained in

this subparagraph applies only to trains

of twenty-four (24) cars or fewer.

Therefore, passenger trains that have

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 FRA intends 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.

Furthermore, FRA proposes that a

locomotive that is not designed to carry

passengers should not be considered a

car for purposes of these calculations.

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)

proposes 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 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) proposes 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

proposed operating requirements that

must be followed by any passenger train

operating pursuant to this specific

exception. Such trains would be

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

crest of the grade. Furthermore, FRA

proposes 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 proposed 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 proposes to amend 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 that the criteria

contained paragraph (g) to determine

when a loss of communication between

the front and rear units will be

considered an en route failure will be

applicable to passenger train operations.

Paragraph (h) contains the operational

limitations and restrictions that are

proposed to be placed on passenger

trains that experience en route failures

of two-way EOTs. Due to the timesensitive nature of passenger operations,

FRA believes that placing a speed

restriction on these trains would not be

the most effective method of handling

en route failures of a device. Rather,

FRA believes that other operating

restrictions can be imposed to ensure

the safety of these trains. 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.

Therefore, FRA proposes that if a

passenger train is required to be

equipped with an operable device, it

shall not be permitted to descend 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. However, FRA further

proposes that passenger trains that

develop an en route failure of the twoway EOT may 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. FRA also believes

that since the train no longer has the

safety assurances provided by a twoway 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. FRA also

proposes 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 proposal has been evaluated in

accordance with existing policies and

procedures. Because the requirements

contained in this proposal 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 NPRM

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 proposal

does not have a significant impact on a

substantial number of small entities.

There are no substantial economic

impacts for small units of government,

businesses, or other organizations.

Paperwork Reduction Act

This proposal does not change any

information collection requirements.

Environmental Impact

FRA has evaluated this proposal 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 proposal does not have any

effect on the quality of the environment.

Federalism Implications

This proposal does not have a

substantial effect on the States, on the

relationship between the national

government on 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.

Request for Public Comments

FRA proposes to revise part 232

regarding two-way EOTs as set forth

below. FRA is contemplating eventually

moving the two-way EOT requirements

related to passenger train operations to

proposed part 238 containing the

Passenger Equipment Safety Standards

and would potentially seek the

consultation of the working group

currently involved with finalizing those

standards on the issues addressed in

this proposal. Consequently, FRA

solicits comments on all aspects of this

proposal whether through written

submissions, participation in the

passenger equipment working group, or

both.

List of Subjects in 49 CFR Part 232

Railroad power brakes, Railroad

safety, Two-way end-of-train devices.

The Proposal

In consideration of the foregoing, FRA

proposes to amend part 232, title 49,

Code of Federal Regulations to read 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)

and (h) to read as follows:

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

purchase of nonconforming devices.

* * * * *

(e) 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
Federal Register / Vol. 63, No. 2 / Monday, January 5, 1998 / Proposed Rules 199

and that are equipped and operated in

accordance with the following:

(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) 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.

* * *

* * * * *

(h) 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 be operated in

accordance with the following:

(1) The train 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;

(2) A member of the train crew will

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;

(3) The locomotive engineer shall

periodically make running tests of the

train’s air brakes until the failure is

corrected; and

(4) 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:

* * * * *

(g) En route failure, freight ........................................................................................................................................ 5,000 7,500

(h) En route failure, passenger ................................................................................................................................. 5,000 7,500

* * * * *

Issued in Washington, D.C., on December

29, 1997.

Donald M. Itzkoff,

Deputy Federal Railroad Administrator.

[FR Doc. 98–134 Filed 1–2–98; 8:45 am]

BILLING CODE 4910–06–P