[Federal Register Volume 70, Number 232 (Monday, December 5, 2005)]
[Rules and Regulations]
[Pages 72382-72385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23571]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 234 and 236

[Docket No. FRA-2001-10160]
RIN 2130-AA94


Standards for Development and Use of Processor-Based Signal and 
Train Control Systems; Clarification and Correcting Amendments

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

ACTION: Final rule; clarification and correcting amendments.

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SUMMARY: FRA is clarifying preamble language and correcting rule text 
language in FRA's Standards for Development and Use of Processor-Based 
Signal and Train Control Systems, a final rule published on March 7, 
2005 (PTC Rule). First, some language in the section-by-section 
analysis portion of the preamble to the PTC Rule inadvertently differs 
from the actual regulatory language, and FRA is noting the unintended 
variation to avoid confusion. Second, FRA is clarifying language 
regarding the applicability of new 49 CFR part 236, subpart H (the 
Processor-Based Standards) to highway-rail grade crossing warning 
systems (HGCWS). FRA wants to ensure that the rule language conforms 
with FRA's initial intent that the regulation apply to only certain 
HGCWS. Therefore, FRA is adding a provision to clarify which HGCWS 
products may be excluded from the requirements of the PTC Rule. FRA is 
also adding a provision to clarify that certain HGCWS products excluded 
from the requirements of the Processor-Based Standards may, at the 
option of the railroad, be made subject to the Processor-Based 
Standards. Third, FRA is adding a provision to clarify which HGCWS 
products shall be included in the software management control plans 
pursuant to 49 CFR 236.18. Finally, FRA is correcting a minor error in 
which a provision of the Processor-Based Standards was incorrectly 
cited.

DATES: This rule is effective January 4, 2006.

FOR FURTHER INFORMATION CONTACT: Tom McFarlin, Staff Director, Signal 
and Train Control Division, Office of Safety, FRA 1120 Vermont Avenue, 
NW., Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6203); or 
Melissa Porter, Trial Attorney, Office of Chief Counsel, FRA, 1120 
Vermont, NW., Mail Stop 10, Washington, DC 20590 (telephone: 202-493-
6034).

SUPPLEMENTARY INFORMATION: On March 7, 2005, FRA published the PTC 
Rule, which establishes performance-based standards for the development 
and use of processor-based signal and train control systems. 70 FR 
11052. Since the publication of the PTC Rule, FRA has determined that 
certain provisions need clarification or correction. First, FRA notes 
that some incorrect terms and an incorrect date were included in the 
section-by-section analysis portion of the preamble, all of which 
differ from the actual regulatory text. FRA is correcting the errors to 
prevent misinterpretations. Second, in 49 CFR 234.275, ``Processor-
Based Systems,'' FRA is clarifying the category of HGCWS to which it 
intended portions of the PTC Rule to apply. (All references in this 
final rule to a section or other provision are references to a section 
or other provision in title 49 of the Code of Federal Regulations, 
unless otherwise noted). FRA is correcting that section to include a 
provision to exclude certain HGCWS products from the requirements of 
the PTC Rule, as the agency similarly did for signal and train control 
system products in Sec.  236.911. FRA is further correcting Sec.  
234.275 to make it explicit that a railroad has the right to qualify an 
excluded product and make it subject to the Processor-Based Standards. 
Third, FRA is clarifying what HGCWS should be included in a railroad's 
software management control plan, pursuant to Sec.  236.18. Finally, 
FRA is correcting an erroneous section reference in Sec.  
236.913(c)(1). The section referenced does not exist. FRA more 
specifically discusses these issues in the ``Section-by-Section 
Analysis'' below.

Section-by-Section Analysis

1a. Preamble Language for Sec.  236.18, ``Software Management Control 
[Plan]''

    In the section-by-section analysis of Sec.  236.18, FRA referred to 
the correct term ``software management control plan'' variously as 
``software management control'' and ``software management plan.'' FRA 
notes that ``software management control'' and ``software management 
plan'' are

[[Page 72383]]

intended to refer to ``software management control plan.''

1b. Preamble Language for Sec.  236.911, ``Exclusions''

    In the section-by-section analysis of Sec.  236.911, FRA 
erroneously stated that ``[p]aragraph (a) provides that the subpart 
does not apply to products in service as of May 6, 2005.'' The 
referenced date should have read ``June 6, 2005'' rather than ``May 6, 
2005.'' FRA does not believe that this error has created significant 
confusion because the date is correct in the regulatory text itself, 
but in an effort to eliminate any possible confusion, we are pointing 
out that the date cited in the analysis should have been June 6, 2005.

Corrections to Regulatory Text

2. Section 234.275, ``Processor-Based Systems''

    As issued in the PTC Rule, Sec.  234.275(b) requires that HGCWS 
containing ``new or novel technology or that provide safety-critical 
data to a railroad signal [sic] system'' comply with part 236, subpart 
H, the Processor-Based Standards. Section 236.911, ``Exclusions,'' 
provides that products designed in accordance with subparts A through G 
of part 236, that were in development as of March 7, 2005, may be 
excluded from the requirements of the Processor-Based Standards, but 
FRA inadvertently did not provide a similar exclusion for products 
designed in accordance with 49 CFR part 234, ``Grade Crossing Signal 
System Safety,'' subparts A through D. Several railroads and suppliers 
submitted notifications to FRA by June 6, 2005, of various products 
that were in development, some of which contain processor-based 
highway-rail grade crossing warning systems, subsystems, or components 
(i.e., products that were designed in accordance with 49 CFR part 234, 
subparts A through D).
    In order to clarify that the exclusion from the Processor-Based 
Standards also applies to HGCWS products under development as of March 
7, 2005, FRA is amending Sec.  234.275(c) accordingly. The reasons for 
this decision are similar to those provided for excluding certain 
products pursuant to Sec.  236.911, ``Exclusions'': (1) it would be too 
costly for the railroads and suppliers to re-do work and analysis for a 
product on which development efforts have already begun, and (2) it 
would be unfair to subject later implementation of such technology to 
the requirements of the Processor-Based Standards. In addition, FRA 
will provide railroads and suppliers with the option to later elect to 
qualify an excluded product under the Processor-Based Standards. 
Therefore, in this technical amendment, FRA is adding a provision in 
Sec.  234.275(b) to exclude from the requirements of the Processor-
Based Standards, those processor-based highway-rail grade crossing 
warning systems, subsystems, or components that meet all of the 
following criteria: (1) Currently under development, (2) designed in 
accordance with 49 CFR part 234, subparts A through D, and (3) not in 
service as of December 5, 2005, but will be placed in service as of 
December 5, 2008. Railroads and suppliers will, however, be required to 
submit a notification to FRA regarding the product under development by 
March 6, 2006 and the product must be placed in service as of December 
5, 2008. Any railroad or supplier that previously submitted a 
notification letter to FRA pursuant to Sec.  236.911 regarding a HGCWS 
need not submit a new notification letter. FRA will consider the 
previously submitted letter when determining whether a product should 
be excluded.
    If read literally, the last sentence of Sec.  234.275(c) as issued 
in the PTC Rule requires more HGCWS to be subject to the software 
management control plan requirement of Sec.  236.18 than FRA intended. 
In particular, the rule language currently indicates that any existing 
products that both are used at HGCWS and provide safety-critical data 
to, or receive safety-critical data from, a railroad signal or train 
control system, are required to be included in the software management 
control plan, even if they are not processor-based, pursuant to Sec.  
236.18. The intent of requiring a software management control plan 
under Sec.  236.18 is to ensure that the proper and intended version of 
software not required to be included in a Product Safety Plan pursuant 
to Sec.  236.907 of this chapter, is documented and maintained 
throughout the life-cycle of the system. Only processor-based systems 
involve software, and thus the inclusion of a non-processor-based HGCWS 
in a software management control plan would provide no benefit, but 
would only add unnecessarily to the cost of implementation of the PTC 
Rule. In addition, FRA did not intend for HGCWS that receive 
information from a signal or train control system to be subject to the 
requirements of Sec.  236.18. FRA is therefore restructuring Sec.  
234.275 to correct these errors and to clarify the intended 
requirements of the regulation.

3. Section 236.913, ``Filing and Approval of PSPs''

    FRA is amending Sec.  236.913(c)(1) as issued in the PTC Rule to 
correct an incorrect regulatory reference. The reference to non-
existent Sec.  236.917(e)(1) should be changed to Sec.  236.917(a)(1). 
Accordingly, the regulatory text is changed to reflect the correct 
regulatory cite.

Notice and Comment Procedures

    Because these corrections and clarifications do no more than revise 
the PTC Rule to meet FRA's original intent when issuing the rule, 
notice and comment procedures are ``impracticable, unnecessary, or 
contrary to the public interest within the meaning of section 553 
(b)(3)(B) of the Administrative Procedure Act. Public comment is 
unnecessary because in making these technical amendments, FRA is not 
exercising discretion in any way that would be informed by public 
comment. In addition, this revised rule poses no addition burden on any 
person, but rather provides a benefit to those who were inadvertently 
made subject to the PTC Rule, who are now no longer subject to the PTC 
Rule's requirements. Therefore, FRA is proceeding directly to this 
final rule.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures and is not considered significant under 
Executive Order 12866 or under DOT policies and procedures. The 
technical changes made in this rule will not increase the costs or 
alter the benefits associated with this regulation beyond what was 
originally measured in the cost benefit analysis completed for the PTC 
Rule. The technical changes will, in fact, reduce the cost of complying 
with the rule back to the level contemplated when FRA completed its 
initial cost-benefit analysis. However, this cost reduction has not 
been specifically calculated. Because these technical amendments and 
corrections will bring the rule into compliance with FRA's original 
cost-benefit analysis, FRA does not believe it necessary to re-
calculate the costs and benefits.

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. 
This final rule amends and clarifies existing requirements. Because the 
technical amendments contained in

[[Page 72384]]

the document generally clarify requirements currently contained in the 
PTC Rule or allow for greater flexibility in complying with the PTC 
Rule, FRA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities under the 
provisions of the Regulatory Flexibility Act.

Paperwork Reduction Act

    There are no paperwork requirements associated with this final 
rule.

Environmental Impact

    FRA has evaluated this rule in accordance with its procedures for 
ensuring full consideration of the environmental impact 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. The rule meets the criteria establishing this as a non-major 
action for environmental purposes.

Federalism Implications

    This final rule will not have a substantial effect on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. State and local officials were involved in 
developing the PTC Rule through the Railroad Safety Advisory Committee 
(RSAC). The RSAC has as permanent members two organizations 
representing State and local interests: The American Association of 
State Highway and Transportation Officials and the Association of State 
Rail Safety Managers. RSAC regularly provides recommendations to the 
FRA Administrator for solutions to regulatory issues that reflect 
significant input from its State members. Thus, in accordance with 
Executive Order 13132, preparation of a Federalism Assessment was not 
warranted in the PTC Rule and is not warranted for this final rule 
either.

Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each Federal agency ``shall, unless otherwise prohibited by law, 
assess the effects of Federal Regulatory actions on State, local, and 
tribal governments, and the private sector (other than to the extent 
that such regulations incorporate requirements specifically set forth 
in law).'' Sec. 201. Section 202 of the Act further requires that 
``before promulgating any general notice of proposed rulemaking that is 
likely to result in promulgation of any rule that includes any Federal 
mandate that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$120,700,000 or more in any 1 year, and before promulgating any final 
rule for which a general notice of proposed rulemaking was published, 
the agency shall prepare a written statement * * *'' detailing the 
effect on State, local, and tribal governments and the private sector. 
The rule issued today does not include any mandates, which will result 
in the expenditure, in the aggregate, of $120,700,000 or more in any 
one year, and thus preparation of a statement is not required.

Need for Correction

    As published, the PTC Rule contains errors that need to be 
corrected.

List of Subjects

49 CFR Part 234

    Highway safety, Railroad safety.

49 CFR Part 236

    Railroad safety, Reporting and recordkeeping requirements.

The Final Rule

0
In consideration of the foregoing, FRA corrects chapter II, subtitle B, 
of title 49, Code of Federal Regulations as follows:

PART 234--[AMENDED]

0
1. The authority citation for part 234 continues to read as follows:


    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.


0
2. Revise Sec.  234.275 to read as follows:


Sec.  234.275  Processor-based systems.

    (a) Applicable definitions. The definitions in Sec.  236.903 of 
this chapter shall apply to this section, where applicable.
    (b) Use of performance standard authorized or required.
    (1) In lieu of compliance with the requirements of this subpart, a 
railroad may elect to qualify an existing processor-based product under 
part 236, subpart H of this chapter.
    (2) Highway-rail grade crossing warning systems, subsystems, or 
components that are processor-based and that are first placed in 
service after June 6, 2005, which contain new or novel technology, or 
which provide safety-critical data to a railroad signal or train 
control system that is governed by part 236, subpart H of this chapter, 
shall also comply with those requirements. New or novel technology 
refers to a technology not previously recognized for use as of March 7, 
2005.
    (3) Products designed in accordance with subparts A through D of 
this part, which are not in service but are in the developmental stage 
prior to December 5, 2005 (or for which a request for exclusion was 
submitted prior to June 6, 2005 pursuant to Sec.  236.911 of this 
chapter), may be excluded from the requirements of part 236, subpart H 
of this chapter upon notification to FRA by March 6, 2006, if placed in 
service by December 5, 2008 (or March 7, 2008 for those products for 
which a request for exclusion was submitted to FRA prior to June 6, 
2005). Railroads may continue to implement and use these products and 
components from these existing products. A railroad may at any time 
elect to have products that are excluded made subject to 49 CFR part 
236, subpart H, by submitting a Product Safety Plan as prescribed in 
Sec.  236.913 of this chapter and otherwise complying with part 236, 
subpart H of this chapter.
    (c) Product safety plan justifications. The Product Safety Plan 
(see Sec.  236.903 of this chapter) must explain how the performance 
objective sought to be addressed by each of the particular requirements 
of this subpart is met by the product, why the objective is not 
relevant to the product's design, or how safety requirements are 
satisfied using alternative means. Deviation from those particular 
requirements is authorized if an adequate explanation is provided, 
making reference to relevant elements of the Product Safety Plan, and 
if the product satisfies the performance standard set forth in Sec.  
236.909 of this chapter. (See Sec.  236.907(a)(14) of this chapter.)
    (d) Specific requirements. The following exclusions from the 
latitude provided by this section apply:
    (1) Nothing in this section authorizes deviation from applicable 
design requirements for automated warning devices at highway-rail grade 
crossings in the Manual on Uniform Traffic Control Devices (MUTCD), 
2000 Millennium Edition, Federal Highway Administration (FHWA), dated 
December 18, 2000, including Errata <greek-i>1 to MUTCD 2000 Millennium 
Edition dated June 14, 2001 (http://mutcd.fhwa.dot.gov/).
    (2) Nothing in this section authorizes deviation from the following 
requirements of this subpart:
    (i) Sec.  234.207(b) (Adjustment, repair, or replacement of a 
component);
    (ii) Sec.  234.209(b) (Interference with normal functioning of 
system);
    (iii) Sec.  234.211 (Security of warning system apparatus);
    (iv) Sec.  234.217 (Flashing light units);

[[Page 72385]]

    (v) Sec.  234.219 (Gate arm lights and light cable);
    (vi) Sec.  234.221 (Lamp voltage);
    (vii) Sec.  234.223 (Gate arm);
    (viii) Sec.  234.225 (Activation of warning system);
    (ix) Sec.  234.227 (Train detection apparatus)--if a train 
detection circuit is employed to determine the train's presence;
    (x) Sec.  234.229 (Shunting sensitivity)--if a conventional track 
circuit is employed;
    (xi) Sec.  234.231 (Fouling wires)--if a conventional train 
detection circuit is employed;
    (xii) Sec.  234.233 (Rail joints)--if a track circuit is employed;
    (xiii) Sec.  234.235 (Insulated rail joints)--if a track circuit is 
employed;
    (xiv) Sec.  234.237 (Reverse switch cut-out circuit); or
    (xv) Sec.  234.245 (Signs).
    (e) Separate justification for other than fail-safe design. 
Deviation from the requirement of Sec.  234.203 (Control circuits) that 
circuits be designed on a fail-safe principle must be separately 
justified at the component, subsystem, and system level using the 
criteria of Sec.  236.909 of this chapter.
    (f) Software management control for certain systems not subject to 
a performance standard. Any processor-based system, subsystem, or 
component subject to this part, which is not subject to the 
requirements of part 236, subpart H of this chapter but which provides 
safety-critical data to a signal or train control system shall be 
included in the software management control plan requirements as 
specified in Sec.  236.18 of this chapter.

PART 236--[AMENDED]

0
3. The authority citation for part 236 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20501-20505; 28 U.S.C. 2461, 
note; and 49 CFR 1.49.

0
4. Amend Sec.  236.913 by revising paragraph (c)(1) to read as follows:


Sec.  236.913  Filing and approval of PSPs.

* * * * *
    (c) * * *
    (1) Not less than 180 days prior to planned use of the product in 
revenue service as described in the PSP or PSP amendment, the railroad 
shall submit an informational filing to the Associate Administrator for 
Safety, FRA, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 
20590. The informational filing must provide a summary description of 
the PSP or PSP amendment, including the intended use of the product, 
and specify the location where the documentation as described in Sec.  
236.917(a)(1) is maintained.
* * * * *

    Issued in Washington, DC on November 17, 2005.
Joseph H. Boardman,
Administrator, Federal Railroad Administration.
[FR Doc. 05-23571 Filed 12-2-05; 8:45 am]
BILLING CODE 4910-06-P