`[Federal Register Volume 73, Number 201 (Thursday, October 16, 2008)]
[Rules and Regulations]
[Pages 61512-61557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22549]



[[Page 61511]]

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Part IV





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 232



Electronically Controlled Pneumatic Brake Systems; Final Rule

  Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / 
Rules and Regulations  

[[Page 61512]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[Docket No. FRA-2006-26175, Notice No. 4]
RIN 2130-AB84


Electronically Controlled Pneumatic Brake Systems

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

ACTION: Final rule.

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SUMMARY: FRA is issuing revisions to the regulations governing freight 
power brakes and equipment by adding a new subpart addressing 
electronically controlled pneumatic (ECP) brake systems. The revisions 
are designed to provide for and encourage the safe implementation and 
use of ECP brake system technologies. These revisions contains specific 
requirements relating to design, interoperability, training, 
inspection, testing, handling defective equipment, and periodic 
maintenance related to ECP brake systems. The final rule also 
identifies provisions of the existing regulations and statutes where 
FRA is proposing to provide flexibility to facilitate the voluntary 
adoption of this advanced brake system technology.

DATES: This final rule is effective December 15, 2008. Petitions for 
reconsideration must be received on or before December 15, 2008. 
Petitions received after that date will be considered to the extent 
possible without incurring additional expenses or delays. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of December 15, 
2008.

ADDRESSES: Petitions for reconsideration: Any petitions for 
reconsideration related to Docket No. FRA-2006-26175, may be submitted 
by any of the following methods:
     Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all petitions received will be posted without 
change to http://www.regulations.gov including any personal 
information. Please see the Privacy Act heading in the Supplementary 
Information section of this document for Privacy Act information 
related to any submitted petitions, comments, or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to Room W12-140 
on the Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: James Wilson, Office of Safety 
Assurance and Compliance, Motive Power and Equipment Division, RRS-14, 
Mail Stop 25, Federal Railroad Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590 (telephone 202-493-6259); or Jason 
Schlosberg, Trial Attorney, Office of Chief Counsel, Mail Stop 10, 
Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone 202-493-6032).

SUPPLEMENTARY INFORMATION:

I. Background

    Since the inception of automatic air brakes by George Westinghouse 
in the 1870s, brake signal propagation has been limited by the nature 
of air and the speed of sound. Other adjustments have sought to 
alleviate this deficiency, but have left the basic system unaltered. As 
early as 1990, the Association of American Railroads (AAR) began 
investigating more advanced braking concepts for freight railroads, 
including ECP brake systems, which promise to radically improve brake 
propagation by using electrical transmissions of the braking signal 
through the train while still using air pressure in the brake cylinder 
to apply the force of the brake shoe against the wheel. During the past 
15 years, ECP brake technology has progressed rapidly and has been 
field tested and used on trains operating in revenue service by various 
railroads.
    FRA has been an active and consistent advocate of ECP brake system 
implementation. In 1997, FRA participated in an AAR initiative to 
develop ECP brake standards and in 1999, FRA funded, through 
Transportation Technology Center, Inc., a Failure Modes, Effects, and 
Criticality Analysis (FMECA) of ECP brake systems based on the AAR 
standards. FRA also took part in programs to develop and enhance 
advanced components for ECP brake systems.
    To further assess the benefits and costs of ECP brakes for the U.S. 
rail freight industry, FRA contracted Booz Allen Hamilton (BAH) in 2005 
to conduct a study. BAH engaged an expert panel consisting of principle 
stakeholders in ECP brake technology conversion to participate in the 
study. The expert panel made various conclusions relating to 
technological standards, safety, and efficiency. In addition, the final 
BAH report provided a comprehensive analysis and comparison of ECP and 
conventional air brake systems. On August 17, 2006, FRA announced in a 
press release its intention to issue a notice of proposed rulemaking to 
revise the federal brake safety standards to encourage railroads to 
invest in and deploy ECP brake technology. In the press release, FRA 
encouraged railroads to submit ECP brake implementation plans before 
the proposed rule changes were completed.
    In a petition dated November 15, 2006, and filed November 21, 2006, 
two railroads--the BNSF Railway Company (BNSF) and the Norfolk Southern 
Corporation (NS)--jointly requested that FRA waive various sections in 
parts 229 and 232 as it relates to those railroads' operation of ECP 
brake pilot trains. See Docket No. FRA-2006-26435. FRA held a public 
fact-finding hearing on this matter on January 16, 2007, featuring 
testimony from representatives of the petitioners, air brake 
manufacturers, and labor unions and granted a conditional waiver on 
March 21, 2007. See id.
    On September 4, 2007, FRA published a Notice of Proposed Rulemaking 
(NPRM) containing proposed revisions to the power brake regulation. See 
72 FR 50820. In the NPRM, FRA proposed revisions to the regulations 
governing freight power brakes and equipment by adding a new subpart 
addressing ECP brake systems. The proposed revisions were designed to 
provide for and encourage the safe implementation and use of ECP brake 
system technologies. The proposed revisions contained specific 
requirements relating to design, interoperability, training, 
inspection, testing, handling defective equipment, and periodic 
maintenance related to ECP brake systems. The proposed rule also 
identified provisions of the existing regulations and statutes where 
FRA believed flexibility to facilitate the introduction of this 
advanced brake system technology was necessary.
    Following publication of the NPRM in the Federal Register, FRA held 
a public

[[Page 61513]]

hearing in Washington, DC on October 4, 2007, and a public hearing in 
conjunction with a public technical roundtable in the Chicago, IL area 
on October 19, 2007. The purpose of the hearings was to receive oral 
comments regarding the specific provisions contained in the proposed 
rule and to receive evidence and to develop findings to determine 
whether FRA should invoke its discretionary authority under 49 U.S.C. 
20306 to provide a limited exemption from Sec.  20303 for freight 
trains and freight cars operating with ECP brake systems. Section 20303 
requires operators to transport rail vehicles with defective or 
insecure equipment ``from the place at which the defect or insecurity 
was first discovered to the nearest available place at which the 
repairs can be made'' to avoid incurring civil penalties related to 
such movement.
    The hearings were attended by numerous railroads, organizations 
representing railroads, labor organizations, and brake manufacturers. 
Although the comment period officially closed November 5, 2007, FRA 
continued to receive comments on the NPRM into January 2008. FRA 
received substantial oral and written testimony at the hearings and 
written comments to the NPRM from the following organizations, 
railroads, and brake manufacturers, listed in alphabetical order:
     American Association for Justice (AAJ).
     Association of American Railroads (AAR).
     Brotherhood of Locomotive Engineers and Trainmen (BLET).
     Brotherhood Railway Carmen Division, Transportation-
Communications International Union (BRC).
     General Electric Transportation and General Rail Services 
(collectively, GE).
     New York Airbrake (NYAB).
     Norfolk Southern Corporation (NS).
     Transport Workers Union of America, AFL-CIO (TWU).
     Union Pacific Railroad Company (UP).
     United Transportation Union (UTU).
     Wabtec Railway Electronics (Wabtec).
    UTU supports and incorporates by reference the comments submitted 
by BLET, TCU, TWU, and its other labor representatives.
    FRA carefully considered all the information, data and proposals 
submitted in relation to Docket No. FRA-2006-26175 when developing this 
final rule. In addition to the preceding information, FRA's knowledge 
and experience with enforcing the existing power brake regulations were 
also relied upon when developing this final rule. FRA will address and 
summarize all comments in the section-by-section analysis below and 
elsewhere as appropriate or necessary.
    Based on the oral and written comments submitted at the hearing and 
in the docket to this proceeding, FRA makes the following findings: (1) 
Safety is not compromised by allowing a train operating with ECP brakes 
and having a minimal number of ineffective or inoperative defective 
brakes to travel to its destination, not to exceed 3,500 miles, without 
any additional intermediate brake inspections; (2) the safety hazards 
caused by placing cars equipped with ECP brakes into a train with an 
incompatible brake system are no different than the hazards caused by 
placing a car equipped with conventional brakes with ineffective or 
inoperative brakes into a train operated with conventional brakes; (3) 
safety is not compromised by allowing a train operated with ECP brakes 
with at least 85 percent effective and operative brakes to haul a car 
with defective non-brake safety appliances to the nearest or nearest 
forward repair location; and (4) requiring strict compliance with the 
movement for repair provision contained in 49 U.S.C. 20303 would 
constitute a significant disincentive to the implementation and use of 
ECP brake technologies. Based on these findings, FRA has elected to 
utilize its discretionary authority provided under 49 U.S.C. 20306 to 
provide a limited exemption for freight trains and freight cars 
operating with ECP brake systems from the requirements contained in 49 
U.S.C. 20303.
    Subsequent to the close of the comment period in this proceeding, 
AAR modified two of its existing ECP brake standards, S-4200 and S-
4210, and continued to develop standards regarding hardware and 
software configuration management issues for ECP brake systems. AAR 
sought comments from its members concerning a proposed standard S-4270 
addressing the configuration management issues. As FRA is interested in 
incorporating by reference the most current standards into the final 
rule, FRA reopened the comment period on April 18, 2008, for an 
additional fifteen (15) days for the limited purpose of receiving 
comments on revised standards S-4200 and S-4210 and newly developed 
draft S-4270. FRA continues to believe that reopening the comment 
period was the most efficient method of ensuring that the most current 
industry standards were included in this final rule.
    The NPRM and this subsequent notice indicated that FRA intended to 
include S-4270 in the final rule if it was finalized by AAR with 
sufficient time for inclusion and if its final version remained 
substantially similar to the draft standard reference in the notice 
reopening the comment periods. Ultimately, AAR adopted S-4270 without 
any changes.

II. Conventional Brake Operations

    While the basic operational concept of the automatic air brake 
system, originally conceived by George Westinghouse in the 1870s, 
remains the same, it has seen continuous improvement in practice. An 
air compressor in the locomotive charges a main reservoir to about 140 
pounds per square inch (psi). With controls located in the locomotive, 
the locomotive engineer uses the main reservoir to charge the brake 
pipe--a 1\1/4\ inch diameter pipe--that runs the length of the train 
and is connected between cars with hoses. The brake pipe's compressed 
air--used as the communication medium to signal brake operations and 
the power source for braking action--then charges each car's two-
compartment reservoir to a pressure of 90 psi. Braking occurs through a 
reduction of air pressure in the brake pipe, which signals the valves 
on each car to direct compressed air from the reservoir on each car to 
its respective brake cylinder for an application of brakes. When air 
pressure is supplied to the brake cylinder--which is connected to a 
series of rods and levers that apply and release the brakes--the 
resulting force presses the brake shoes against the wheel, retarding 
the car's speed.
    While brake applications were initially directed by George 
Westinghouse's triple valve, modern applications use a control valve, 
which directs air from the brake pipe into the air reservoir when air 
pressure is rising in the brake pipe in order to charge the auxiliary 
and emergency reservoir and be ready for a brake application. To 
perform a brake application, the locomotive automatic brake valve 
reduces air pressure in the brake pipe by exhausting air, causing the 
car's control valve to direct air from the auxiliary reservoir into the 
brake cylinder. The increase in air pressure to the brake cylinder is 
approximately 2\1/2\ times the drop in brake pipe pressure. A 26 psi 
reduction in brake pipe pressure is equal to a full service brake 
application on a fully charged brake pipe, and should result in a brake 
cylinder pressure adequate to achieve a full service braking effort 
(brake force). While the control valve is directing air

[[Page 61514]]

into the brake cylinder, or holding air in the brake cylinder, it is 
unable to recharge the auxiliary reservoir on each car. The engineer 
can apply the brakes in increments, of a few psi at a time, go directly 
to a full service application, or initiate an emergency application of 
the brakes.
    Unlike a brake application, the incremental release of brakes on a 
typical freight train operating in direct release cannot be 
accomplished. Brakes can only be fully released, called a direct 
release, and only with the brakes released can the auxiliary reservoirs 
then begin to recharge. Brake applications are possible, but are more 
complicated, from undercharged brake pipe and air reservoirs. 
Recharging takes more time for a longer train, because the air has to 
be sent down the length of the train's brake pipe--which can be up to a 
mile and a half. In addition, on extremely long trains, it is often 
difficult to fully charge the brake pipe due to small air leaks 
throughout the brake pipe and cold weather.
    Brake pipe pressure can be measured by an end-of-train (EOT) 
device, which is pneumatically connected to the rear of a train 
equipped with conventional pneumatic brakes and sends signals (EOT 
Beacon) via radio indicating the brake pipe pressure to the lead 
locomotive. Current Federal regulations specify the design and 
performance standards for both one-way and two-way EOT devices. See 
Part 232, subpart E. Both EOT device designs comprise of a rear unit 
pneumatically connected to the rear of the train's last car that 
transmits an EOT Beacon to a an EOT Head End Unit--a device located in 
the cab of the lead locomotive displaying the brake pipe pressure of 
the rear car to the locomotive engineer. The two-way EOT device also 
has the capability to transmit an electronic signal from the locomotive 
to the rear end unit to initiate an emergency brake application by 
venting brake pipe pressure to atmosphere at the rear end unit.
    An emergency brake application can be initiated in several ways. 
The locomotive engineer can initiate the application by moving the 
brake handle to the emergency position, which depletes brake pipe 
pressure to zero at a faster rate than the service application by 
exhausting brake pipe air pressure at the locomotive. Emergency brake 
applications can also be initiated by opening the conductor's valve, 
located in the cab of the locomotive, or by a break-in-two, where the 
train separates between cars and the brake pipe hoses separate, thereby 
venting brake pipe pressure to zero. While performing an emergency 
brake application from the locomotive, a locomotive engineer can also 
use the two-way EOT device to initiate an emergency brake application 
at the rear of the train. This permits the emergency application to be 
simultaneously initiated from both the front and rear of the trains and 
ensures that the brakes on the cars at the rear of the train apply in 
the event a brake pipe blockage occurs.

III. ECP Brake Operations

    As early as 1990, AAR began investigating a more advanced braking 
concept for freight railroads, the ECP brake system. The ECP brake 
system radically improves the operation of the automatic air brake by 
using electrical transmissions to signal the application and release of 
brakes on each car in a train while still using compressed air to 
supply the air reservoirs on each car, which will be used to pressurize 
the brake cylinders to apply the force of the brake shoes against the 
wheels. ECP brakes also greatly simplify the brake system by 
eliminating multiple pneumatic valves used by conventional brakes and 
replacing them with printed circuit boards, each with a microprocessor, 
one electrically activated application valve, and one electrically 
activated release valve, with feedback on brake cylinder pressure for 
uniform control.
    ECP brake technology requires equipping locomotives and cars with 
special valves and electronic equipment that are unique to the 
operation of ECP brakes. While this system still requires a brake pipe 
to supply compressed air from the locomotive to each car's reservoir in 
a train, there are currently two known methods to send the electronic 
signal for ECP brake operations from the locomotive to each car in the 
train. These methods include using a hard wire electrical cable running 
the length of the train or a radio-based technology requiring a 
transmitter and a receiver installed on the cars and locomotives. At 
this time, it appears that the railroad industry has chosen to use a 
cable-based system for ECP brake operation.
    ECP brake systems still employ the automatic air brake system's 
basic concept where the locomotive supplies compressed air to each 
car's reservoir via the conventional brake pipe. Each car's brake valve 
reacts to a signal to apply the brakes by directing compressed air from 
the car's reservoir to the brake cylinder or to release the brakes by 
releasing air from the brake cylinder. The similarities between the 
conventional pneumatic and ECP brake systems end here. Instead of 
utilizing reductions and increases of the brake pipe pressure to convey 
application and release signals to each car in the train, ECP brake 
technology uses electronic signals, resulting in an almost 
instantaneous application and release of brakes on each car in the 
entire train. Since the brake pipe pressure no longer serves as the 
communication medium in ECP braked trains, the brake pipe is constantly 
being supplied or charged with compressed air from the locomotive 
regardless of whether the brakes are applied or released. In addition, 
ECP brake-equipped trains offer graduated release, where a partial 
brake release command provides a partial, proportional brake release.
    The basic ECP brake system is controlled from the Head End Unit 
(HEU) and each car is equipped with a Car Control Device (CCD), an 
electronic control device that replaces the function of the 
conventional pneumatic control valve. The CCD acknowledges and 
interprets the electronic signals from the HEU and controls the car's 
service and emergency braking functions. The CCD controls charging the 
car's air reservoir and also has diagnostic capabilities to send a 
warning signal to the locomotive in the event any component fails to 
appropriately respond to a braking command. Each CCD has a unique 
electronic address located in the Car ID Module, which is keyed to a 
car's reporting mark and number.
    Each car connects to the locomotive via special connectors and 
junction boxes. More specifically, an ECP brake-equipped train's train 
line cable--a two-conductor electric cable (8 A-WG and a 
shield)--connects the locomotive and cars and carries train line power 
to operate all CCDs and the ECP brake system's end-of-train (ECP-EOT) 
device and communicates network signals via the power voltage. A Power 
Supply Controller (PSC)--mounted within the locomotive and providing 
230 VDC of electricity--interfaces with the train line cable's 
communication network, provides power to all connected CCDs and ECP-EOT 
devices, and controls the train line power supply as commanded by the 
HEU. Under the AAR standards, a single power supply shall be capable of 
supplying power to an ECP brake-equipped train consisting of at least 
160 CCDs and an ECP-EOT device.
    Under the existing regulations, the conventional pneumatic brake 
system's EOT device can lose communication for 16 minutes and 30 
seconds before the locomotive engineer is alerted. See 49 CFR 
232.407(g). After the message is displayed, the engineer must restrict 
the speed of the train to 30 mph or stop the train if a defined heavy 
grade is involved. Per the regulations, railroads

[[Page 61515]]

must calibrate each conventional two-way EOT device every 365 days and 
incur additional maintenance and cost expenses while replacing its 
batteries.
    By contrast, an ECP-EOT device uniquely monitors both brake pipe 
pressure and operating voltages and sends an EOT Beacon every second 
from its rear unit to its HEU on the controlling locomotive. The HEU 
will initiate a full service brake application should brake pipe 
pressure fall below 50 psi or initiate an emergency brake application 
should a communication loss occur for five consecutive seconds or if 
there is a break in the train line electrical cable. An ECP-EOT device 
does not require calibration and its battery, only a back-up for the 
computer, is charged by the train line cable and is much lighter in 
weight than the conventional EOT device battery. Physically the last 
network node in the train, the ECP-EOT device also contains an 
electronic train line cable circuit--a 50 ohm resistor in series with 
0.47 micro-farad capacitor--and must be connected to the network and 
transmit status messages to the HEU before the train line cable can be 
initially powered.
    ECP brake systems have the great advantage of real-time monitoring 
of the brake system's health. In normal operation, the HEU transmits a 
message/status down the train line cable to each car. If an individual 
car's brakes do not respond properly to the HEU's brake command, or if 
air pressures are not within the specified limits for operation, a 
message indicating the problem and the applicable car number is sent 
back to the HEU, which in turn notifies the locomotive engineer of the 
problem. The ECP brake system can identify various faults, including, 
but not limited to: low brake pipe pressure; low reservoir pressure; 
low train line cable voltage; low battery charge; incorrect brake 
cylinder pressure; and offline or inoperative CCDs.
    Emergency or full service brake applications automatically occur 
when the ECP brake system's software detects certain faults. For 
instance, if the HEU detects that the percentage of operative brakes 
falls below 85 percent, a full service brake application will 
automatically occur. In addition, the brakes will automatically apply 
when the following occurs: (1) Two CCD's or the ECP-EOT report a 
``Critical Loss'' within 5 seconds; (2) the train line cable indicates 
low voltage with less than 90 percent operative brakes; (3) the ECP-EOT 
reports a low battery charge; (4) the train moves during set-up; (5) 
the train line cable becomes disconnected; or (6) the train exceeds 20 
mph in Switch Mode. Under the AAR standards, the ECP brake system shall 
also have a pneumatic back-up system on each car for an emergency brake 
application in the event of a vented brake pipe or a train separation. 
These features preserve and exceed the fail safe features of 
conventional pneumatic brake systems.

IV. Interoperability

    Due to control methodology differences, ECP brake systems are not 
functionally compatible with conventional pneumatic air brake systems. 
For instance, while conventional pneumatic air brake systems command a 
brake application by reducing the air pressure in the brake pipe, ECP 
brake systems command a brake application through a digital 
communications link transmitted on the electrical train line cable.
    Manufacturers have developed application strategies to address 
issues relating to car and locomotive fleet interchangeability. In 
particular, they have proposed three major schemes of ECP brake design: 
stand-alone systems using only ECP brakes; overlay (dual mode) systems 
capable of operating in either conventional or ECP brake mode; and 
emulation systems, also capable of operating in either conventional or 
ECP brake mode.
    Since cars with stand-alone ECP brake systems do not include a 
fully pneumatic brake control valve, they are incompatible with 
conventionally braked cars and must be operated in train sets depending 
solely upon ECP brakes. Cars using stand-alone ECP brake systems cannot 
intermix in the same train with cars using conventional pneumatic 
brakes unless (1) the train uses ECP brakes and those cars using 
conventional pneumatic brakes are transported as cars with inoperative 
brakes or (2) the train uses conventional pneumatic brakes and the cars 
using ECP brakes are transported as cars with inoperative brakes. While 
the stand-alone ECP brake system is the least expensive alternative of 
the three design types, its incompatibility with conventional pneumatic 
brake systems requires train segregation, potentially posing 
significant operational problems until the entire car fleet is 
converted to ECP brakes.
    Overlay configurations--cars equipped with both ECP CCDs and 
conventional pneumatic control valve portions--allow cars to operate 
with either ECP or conventional pneumatic brakes. To operate in ECP 
brake mode, compatible ECP equipment must be installed on the 
locomotive as well as on the freight car. While an overlay system's 
dual mode capability provides significant flexibility, railroad 
operators must purchase, install, and maintain equipment to support 
both types of brake systems for as long as dual mode capability is 
required.
    Emulation configurations use a CCD capable of operating in either 
ECP or conventional mode without requiring conventional pneumatic 
controls. One manufacturer has provided an emulation ECP brake valve 
that monitors both the digital communications cable and the brake pipe 
for a brake command. If an electrical signal is present, the ECP brake 
valve operates in ECP brake mode. If the electrical brake command 
signal is not present, then the valve will monitor the changes in the 
brake pipe pressure like a conventional pneumatic control valve and the 
CCD will use a software program to emulate the function and response of 
a conventional pneumatic valve. An emulation ECP brake system can be 
operated in any train with any mix of emulation ECP and conventional 
brake systems. In a mixed train, the emulation ECP brake system will 
monitor the brake pipe for pressure changes and set up brake cylinder 
pressure like a conventional pneumatic valve.
    In the NPRM, FRA did not propose any rules uniquely regulating 
trains or cars equipped with emulation ECP brake systems, but sought 
comments on whether or how it should regulate such systems differently 
than what was proposed. According to NYAB and Wabtec (collectively, the 
brake manufacturers), the current AAR standards do not require a 
pneumatic emulation mode, and this function should not be subject to 
FRA regulation. In the event future releases of the S-4200 
specifications add pneumatic emulation as a requirement, the brake 
manufacturers suggest that the need for FRA regulation can be addressed 
at that time. FRA concurs and the final rule does not include 
regulations uniquely affecting emulation ECP brake systems.
    Manufacturers have also addressed ECP brake compatibility with 
locomotives equipped with conventional pneumatic brakes, which must be 
equipped with an HEU unit to operate the brakes on cars equipped with 
ECP brakes. For instance, one manufacturer has developed a portable 
unit that will allow a locomotive lacking an ECP brake HEU to operate a 
train equipped with ECP brakes by converting the air pressure changes 
in the brake pipe to digital command signals that are transmitted to 
the freight cars through the electrical train line cable. The 
locomotive engineer operates the brakes with the conventional automatic 
brake valve in the control cab. The brakes,

[[Page 61516]]

however, will respond instantaneously and provide all of the benefits 
of an ECP brake system. While FRA recognizes that the technology for 
such a portable unit is in development and may provide a possible 
solution to the technological transition, it is not addressed or 
authorized by this final rule and the incorporated AAR standards.

V. Advantages of ECP Brakes Over Conventional Pneumatic Brakes

    ECP brake technology overcomes many of the physical limitations 
inherent in conventional pneumatic brake technology. Field testing of 
AAR compliant ECP brake systems over the past decade has not revealed 
any indication of a catastrophic event that could be caused by an ECP 
brake system malfunctioning. With a high level of confidence, the ECP 
brake stake holders support the implementation of ECP brake systems on 
the Nation's railroads. FRA concludes that the advantages of ECP brake 
technology will significantly improve the safety and the performance of 
train operations. Examples of such benefits include better train 
handling through simultaneous brake applications, continuous brake pipe 
charging, and graduated brake operation. Derailments are expected to 
decline significantly. ECP brake benefits also include electronic train 
management, improved performance, and real time diagnostics of the 
train's brake system.

A. Simultaneous Brake Application

    The conventional pneumatic brake system uses compressed air as the 
source for braking power and as the medium for communicating brake 
application and release commands and communicates the brake commands by 
changing brake pipe pressure through the use of the locomotive's 
automatic brake valve. These commands begin at the front of the train 
and propagate to the rear of the train at the speed of the air pressure 
moving from car to car. This slow propagation of the brake command 
contributes to uneven braking, excessive in-train and run-in forces, 
train handling challenges, longer stopping distances, safety risks of 
prematurely depleting air brake reservoirs, and a corresponding low 
brake rate until all cars in the train receive and fully respond to the 
brake command. FRA recognizes that the slow application and release of 
brakes in a train, causes excessive in-train forces, which have the 
potential to cause derailments when they occur in curves, cross-overs, 
or when heavier cars are placed at the rear of the train or after empty 
cars. When the brakes on the rear of the train release much more slowly 
than the brakes on the front of the train, the potential for a 
``string-line'' derailment--where the train stretches out until one or 
more wheels are lifted off the inside rail of a curve--increases.
    The ECP brake system reduces these problems by enabling cars to 
brake simultaneously at the command of an electronic signal. The 
electronic signal's speed ensures an instantaneous, simultaneous, and 
even activation of each car's brake valves, significantly reducing 
braking distances--40 to 60 percent for the longest trains--and 
minimizing the consequences of collisions or derailments by reducing 
the collision speed and slowing the non-derailed portion of the train.

B. Continuous Brake Pipe Charging

    Propagating a brake command signal through the reduction or 
increase of air pressure in the brake pipe represents a significant 
limitation of conventional pneumatic brakes. The same brake pipe air 
used to propagate brake commands also charges reservoirs on each 
freight car. As a result, the brake pipe must be fully charged to 
restore full braking capacity to depleted reservoirs. Partially 
depleted air from the brake pipe, which occurs during the initial stage 
of braking, prohibits repeat applications of brakes until the brake 
pipe can be recharged. A brake pipe can only be recharged once the 
brakes have been fully released. This characteristic of conventional 
pneumatic brakes contributes to the risk of run-away trains caused by 
prematurely depleted brake pipe pressure, particularly on steep grades.
    The ECP brake system reduces this risk by continuously charging the 
brake pipe. Since ECP brakes do not use the brake pipe as a brake 
command medium, the brake pipe is constantly being charged, allowing 
the locomotive engineer to operate the brake system more aggressively. 
With ECP brake systems, it is unnecessary to apply hand brakes on steep 
grades to recharge the brake pipe after the train stops on the grade.

C. Graduated Brake Application and Release

    The conventional pneumatic brake system's inability to operate 
freight trains in graduated release has long hampered train operations 
and has increased fuel consumption. The conventional pneumatic brake 
system can only operate in direct release, preventing locomotive 
engineers from reducing the braking effort without completely releasing 
and resetting the brakes. In other words, after a direct release brake 
application with a conventional pneumatic brake system, braking effort 
can be increased but not decreased without fully releasing the brakes. 
In many cases, direct release leads to unnecessary train stops or 
insufficient initial brake applications. ECP brake systems overcome 
this deficiency by operating in graduated release, which enables the 
operator to reduce braking effort to a lower level after making a brake 
application without fully releasing the brakes. As a result, the 
operator can accurately adjust the braking level as each situation 
requires, eliminating the stops required to recharge and reset the 
brakes after excessive brake applications and prior to negotiating 
hills and valleys.

D. Train Management

    The use of a train line cable allows real-time self-diagnostic 
functions to be incorporated in the brake system. The initial check of 
brake system conditions on each car and continuous monitoring of each 
car's braking functions provides immediate communication to the 
locomotive engineer of certain brake failures. The continuous 
monitoring of each car's braking functions and real-time diagnostics of 
the train's brake system is a significant advantage to the locomotive 
engineer for the operation of the train. These technical benefits also 
justify elimination of some of the currently required physical 
inspections of the train's brake system and support regulatory change 
to operate cars with non-functioning brakes out of the initial 
terminal. When the ECP brake system diagnostics detect a serious 
problem, including when the brake pipe pressure falls below 50 psi, the 
ECP brake system will automatically command a penalty brake 
application. ECP brake systems also eliminate the conventional 
pneumatic brake system's inability to apply all brakes in the train 
when there is a blockage in the brake pipe, which is handled through 
the use of a two-way EOT telemetry device not required by all trains. 
This failure will not affect brake applications in ECP brake systems, 
because each car is provided a braking command through a train line 
cable, not solely through the reduction of brake pipe pressure, which 
would not be propagated through the consist if the brake pipe is 
blocked. Therefore, ECP brake systems incorporate features that make 
them inherently safer than conventional pneumatic brakes. Using sensor-
based technology to maintain a continuous feedback loop on train 
condition for the crew and any centralized monitoring, the electrical 
communication cable network can also serve as a platform for the 
gradual

[[Page 61517]]

addition of other train performance monitoring and management controls, 
including distributed power locomotive control, hand brake on/off 
detection system, automatic activation and release of hand brakes, hot 
bearing detection, and truck oscillation and vibration. These and other 
train management features will increase the reliability and overall 
safety of train operations.

E. Improved Performance

    Ultimately, ECP brake technology also provides improved 
performance, which will contribute to safer train operations and 
significant cost savings over time. Since trains operated with ECP 
brakes can operate in graduated release, instead of direct release, 
fuel will not be wasted while pulling trains against a heavy brake 
application. Further, because all of the cars' ECP brakes release 
simultaneously, fuel will not be wasted on initial start-ups and power-
ups after a brake release.
    Operations utilizing ECP brake systems also promise increased 
average train speeds and decreased trip times. ECP brake systems allow 
the locomotive engineer to modulate the brake applications in 
territories with descending grades, thus increasing overall trip 
average speeds and reaching destinations sooner. While the slow release 
of the rear cars' brakes on conventional pneumatic braked trains cause 
drag, the brakes on ECP brake-equipped trains release simultaneously, 
improving start-up and acceleration times. Further, due to their 
shorter stopping distances, trains equipped solely with ECP brake 
systems may potentially permit higher train speeds within existing 
signal spacing, which will increase average system velocity, or permit 
use of shorter ``blocks'' between signals, facilitating greater system 
capacity.
    The instantaneous application and release of ECP brakes will result 
in more uniform braking, thus improving wheel wear and increasing brake 
shoe life. In a conventional pneumatically braked train, the brake pipe 
gradient and slower response time causes the first third of the train's 
cars to provide the majority of the braking action, thus applying 
additional pressure and heat on those cars' wheels. Since ECP brake 
systems provide instantaneous braking on all cars, such pressure will 
be more uniformly distributed along the train, thus eliminating the 
uneven braking force on the wheels of those leading cars. The ECP brake 
system also self-monitors each car's brake cylinder pressure and 
maintains the prescribed pressure, thus reducing the potential for 
creating shelling and flat spots on wheels.
    Due to minimized wheel defects, and their accompanying vibrations, 
freight cars and brake components will enjoy increased life. Further, 
instantaneous braking will also prevent draft gear assemblies from 
receiving the constant pressure caused by trains equipped with 
conventional pneumatic brake systems and will reduce lading damage by 
eliminating slack action and in-train forces caused by uneven braking. 
ECP brake systems will also reduce the number of brake parts and rubber 
diaphragms required by conventional pneumatic brake systems.

VI. Standards, Approval, and Testing

    During the past 18 years, FRA has monitored the progression of ECP 
brake technology and has observed field testing on various revenue 
trains, both freight and passenger. In 1997, FRA participated in an AAR 
initiative to develop ECP brake standards and in 1999, FRA funded, 
through the Transportation Technology Center, Inc., a FMECA of the ECP 
brake system based on AAR's Standards and Recommended Practices, S-4200 
Series. FRA also participated in programs to develop and enhance 
advanced components for ECP brake systems. After all of these efforts, 
FRA has determined that the AAR S-4200 Series of standards are 
appropriate substantively and legally for incorporation by reference in 
this rule and that the AAR Air Brake Systems Committee is an 
appropriate vehicle to rely upon in the implementation of ECP brake 
technology for this rule. FRA acknowledges that ECP brakes are an 
attractive, viable, and enabling technology with the potential to 
substantially improve the operational efficiency of trains and that by 
complying with AAR Standard S-4200, ECP braked trains offer significant 
safety and efficiency benefits in freight train handling, car 
maintenance, fuel savings, network capacity, self-monitoring, and fail-
safe operation.
    AAR administers the existing industry ECP brake standards through 
its Air Brake Systems Committee--consisting of representatives from the 
major railroads, brake manufacturers, and FRA--which requires 
demonstrated proof of compatibility, safety, and reliability of air 
brake systems to receive AAR approval. FRA is satisfied that the 
existing AAR S-4200 Series specifications, AAR approval procedures, and 
continuing oversight by the AAR Air Brake Systems Committee will best 
ensure the safety and reliability of ECP brake systems. An ECP brake 
monitoring system complying with AAR Standard S-4200 Series increases 
safety by communicating information on the location and quantity of 
defective equipment and by providing for the safe movement of equipment 
over longer distances and periods of time.

A. AAR Standards and Approval Process

    In order to assure the safety and the interoperability of ECP brake 
system designs, AAR developed the S-4200 Series of standards. The first 
five standards (S-4200, S-4210, S-4220, S-4230, and S-4250)--issued in 
1999 and updated in 2002, 2004, 2006, and 2007--specify the functional, 
operational, and interface requirements for cable-based ECP brake 
systems. AAR issued two additional standards in January 2007, 
specifying ECP brake equipment approval procedures (S-4240) and 
interoperability testing requirements (S-4260). In April 2008, AAR 
issued a standard for hardware and software configuration management 
plans (S-4270). At this time, AAR has not completed specifications for 
radio-based ECP brakes, which it considers technically immature and 
unsuitable. The purposes of the standards are to ensure that AAR-
approved electronic brake systems are interoperable between different 
manufacturers and meet high standards of safety and reliability. The 
analysis of the S-4200 Series of standards indicates that the 
performance specifications for the cable-based ECP brake concept are 
complete.
    The AAR Manual of Standards and Recommended Practices (MSRP) 
contain the following standards for cable-based ECP brake systems:
     S-4200, ECP Cable-Based Brake Systems--Performance 
requirements;
     S-4210, ECP Cable-Based Brake System Cable, Connectors, 
and Junctions Boxes--Performance Specifications;
     S-4220, ECP Cable-Based Brake DC Power Supply--Performance 
Specification;
     S-4230, Intratrain Communication Specification for Cable-
Based Freight Train Control System;
     S-4240, ECP Brake Equipment--Approval Procedure;
     S-4250, Performance Requirements for ITC Controlled Cable-
Based Distributed Power Systems;
     S-4260, ECP Brake and Wire Distributed Power 
Interoperability Test Procedures; and
     S-4270, ECP Brake System Configuration Management.
    Standard S-4200 ensures that the functionality and performance of 
freight ECP brake systems are uniform and

[[Page 61518]]

consistent among equipment from different manufacturers, that cars 
equipped with AAR-approved ECP brake systems from different 
manufacturers are interoperable, and that AAR-approved electronic brake 
systems meet a high standard of safety and reliability. This standard 
defines ECP brake system elements, specifies their functionality in 
different implementation schemes--such as stand-alone, overlays, and 
emulators--and sets the requirements for all system functions. It 
covers all primary functions of ECP brakes, including graduated brake 
application and releases, continuous reservoir charging, adjustment of 
braking level to car load, continuous fault detection, equipment status 
monitoring, and pneumatic backup. It also specifies requirements for 
all modes of train operation and provides an extensive description of 
fault response and recovery functions for all possible faults of the 
system components. The standard also establishes environmental 
requirements for the designed systems, in-service testing, and rigorous 
approval procedures for the certification process of new ECP brake 
equipment.
    Other standards in the AAR S-4200 Series contain requirements for 
critical ECP brake system components and communication protocols. 
Standard S-4210 contains the performance specifications and 
qualification test procedures for ECP brake system cables, connectors, 
and end-of-car junction boxes. The required testing verifies that the 
designed components have high reliability, will withstand harsh 
environmental conditions, and will have at least an 8-year operating 
life.
    Standard S-4220 contains performance specifications for the DC 
power supply system through the hard-wired train line cable for ECP 
brake controllers and other electronic freight car components. Since a 
DC power supply conductor will also send communication control commands 
between a locomotive and its attached cars, the standard requires 
reliable separation and absence of interference between the DC power 
supply and the communication circuits.
    Standard S-4230 contains the requirements related to intra-train 
communication systems on freight equipment used in revenue interchange 
service. The standard facilitates interoperability between freight cars 
and locomotives without limiting the proprietary design approaches used 
by individual suppliers. The communication protocol was developed for 
control of ECP brakes and multiple remote units, including distributed 
power locomotives, and for safety reporting of various car and 
locomotive components.
    Standard S-4250 contains the methodology and communication flow 
requirements for controlling the operation of multiple locomotives in a 
freight consist through the intra-train communication network that is 
shared with ECP brake system. The locomotive control through the intra-
train communication line is an alternative method of locomotive 
control, which was not available before the introduction of ECP brake 
system technology. The controlled locomotives can either trail a lead 
locomotive or be distributed (i.e., separated by cars) in a train. The 
standard establishes protocols for different types of locomotive 
controls through the intra-train line cable, depending on the location 
of the consist's multiple locomotives. While the current means of 
controlling ``distributed power'' is performed through radio control--
which is susceptible to a loss of communication and is not ``fail 
safe'' in operation--locomotives operated with ECP brake systems can be 
relied upon to function as commanded in real time and automatically 
apply the brakes in the event of a communication loss.
    Standard S-4260 contains the test procedures that must be completed 
by ECP brake manufacturers to establish interoperability baselines 
among ECP brake and wire distributed power (WDP) systems in compliance 
with the S-4200 standards series. The test procedures validate the 
functional interoperability of ECP brake and WDP systems developed by 
different manufacturers.
    Standard S-4270 defines the procedures for managing the software 
and hardware configuration for AAR-approved ECP brake systems.
    The AAR approval process and the work of the Air Brake Systems 
Committee has been the primary method of ensuring the safety and 
reliability of railroad brake systems and components for decades. 
Through its participation on the Air Brake Systems Committee, FRA can 
monitor any safety or reliability issues that may develop with ECP 
brake systems. In the event of a serious safety issue with a supplier's 
ECP brake system, FRA can appropriately respond by invoking its 
authority to intervene with additional rulemaking or an emergency 
order. FRA does not expect to use this authority, because the AAR Air 
Brake Systems Committee already has the authority to rescind AAR 
approval for brake systems that do not perform safely or reliably.
    Standard S-4240 contains the acceptance procedure for seeking AAR 
approval of ECP brake equipment. The standard requires a manufacturer 
to apply for approval by submitting certain information under 
Administrative Standard S-060. Following review and approval of the 
initial application data and test plan by the AAR Air Brake Systems 
Committee, a manufacturer maintains the burden of establishing 
compliance with Standards S-4200, S-4210, S-4220, S-4230, S-4250, S-
4260, and S-4270 to obtain conditional approval.
    For laboratory testing, an AAR representative will select 150 CCDs 
from a lot of 200 and will select HEUs, train power supplying units 
(TPSs), and ECP-EOTs from lots of four each. The testing will be 
performed on a 150-car test rack configured in accordance with AAR 
specifications. The manufacturer will provide for AAR evaluation of the 
test results, which shall include a requirements traceability and 
compliance matrix for each AAR standard and all necessary test reports, 
and then conduct interoperability laboratory testing between new ECP 
brake equipment and AAR-approved ECP brake equipment in accordance with 
standard S-4260.
    Upon satisfactory completion of the aforementioned laboratory 
tests, AAR will consider conditional approval for field testing of ECP 
brake equipment. If conditional approval is granted, 150 ECP brake CCDs 
shall be selected from a production lot of 200 test-approved CCDs, and 
100 of those selected, plus at least two ECP brake-equipped locomotives 
and one ECP-EOT device, must be placed in railroad service for 24 
months. Under conditional approval, at least 1,000 cars must be 
allotted for use. Within those 24 months, all in-service tests must be 
conducted. After those 24 months, the Air Brake Systems Committee 
continues to monitor the product for reliability and safety concerns. 
If a problem with any brake component is discovered, the Committee will 
discuss the issue and may either demand further tests or withdraw AAR 
approval.
    Full AAR approval shall be provided after 4 years if during that 
time a manufacturer furnishes AAR at specified intervals various 
service reports, which must include accurate ECP brake equipment 
malfunction records. FRA agrees with AAR's assessment that 4 years are 
needed to collect a history of reliable data with minimum failures. In 
addition, the manufacturer must provide to AAR a semiannual report 
containing any repair material for the test ECP brake equipment. Under 
the standard, AAR reserves the right to withdraw

[[Page 61519]]

conditional test approval if it determines that safety is impaired, 
reliability degrades, or incompatibility of ECP brake operation 
develops, and may require any additional testing or performance 
evaluations it deems necessary. Standard S-4240 also contains specific 
procedures that must be followed when a manufacturer intends to change 
certain ECP brake equipment physical characteristics, software, or 
electronics.
    FRA supports this effort as a timely measure for AAR to strengthen 
the regulatory package for ECP brake systems. Overall, FRA considers 
AAR approval a valuable step to ensure the reliability and safety of 
ECP brake systems and a minimum requirement for initial application of 
ECP brake systems on the Nation's railroads. However, FRA fully intends 
to monitor the application and safety of ECP and may, at its 
discretion, require additional safety analysis to be performed to 
confirm the safety of ECP brake systems installed and operating in 
revenue service. FRA reserves the right to witness the AAR approval 
testing of the product.

B. FMECA

    AAR Standard S-4200 Series was developed to support the design of a 
safer, more reliable ECP braking system when compared with conventional 
air brakes. Once the standard was created, the railroad industry 
identified the need to perform a safety and reliability assessment of 
an ECP brake system built in accordance with this standard. Since 
actual S-4200 Series compliant ECP brake systems did not yet exist, the 
industry decided to conduct a FMECA for a hypothetical ECP brake system 
that satisfied all the requirements of the standard. At FRA's 
insistence, the FMECA on AAR Standard S-4200 was performed in 1999 by 
DEL Engineering with participation of AAR, FRA and a number of experts 
with significant experience in the development and application of ECP 
brake systems.
    The FMECA team began the analysis by identifying all major ECP 
brake system components and their intended functions. The analysis 
examined each component and function and identified associated failure 
modes and effects. The failure modes were analyzed to determine 
severity, frequency of occurrence, and effectiveness of detection. The 
FMECA team created a numeric ranking criterion and determined and 
prioritized the level of risk posed by each failure mode. High-risk 
failure modes were identified and appropriate mitigation strategies 
were developed to decrease the risk.
    The FMECA team analyzed the failure modes of all ECP brake 
components, including: CCDs with the battery; HEUs on the head 
locomotive; ECP-EOT devices; train line cables, communication and power 
supplies; power supply controllers; head end line terminators; car ID 
modules; locomotive ID modules; and operative brakes. The analysis 
included different types of ECP brake systems, including stand alone, 
overlay (dual mode), and emulator and all system functional 
requirements and operating modes, including Initialization, Switch, 
Run, and Cut-out. The FMECA failure log contained about 1,500 failure 
modes. For each high-risk failure mode, the FMECA team identified 
action items and offered recommendations on how to mitigate the 
consequences of component failures or system functional failures. The 
team primarily examined single-point failures but also identified and 
evaluated some cases of combined failures that had significant safety 
consequences.
    The FMECA results confirmed that the ECP brake concept offers the 
potential for improved performance, reliability, and safety over that 
of conventional pneumatic brake systems. The FMECA concluded that no 
failure mode of an AAR-compliant ECP brake system exists that can cause 
a catastrophic accident due to single-point failure of the system 
itself. The AAR standards, as written, eliminate or mitigate critical 
outcomes of single-point failure of ECP brake systems.
    The FMECA team encouraged manufacturers to pursue ECP brake 
technology, because the potential safety and efficiency benefits will 
far outweigh any disadvantages. If designed and maintained properly, 
ECP brakes will be substantially safer and more reliable than the 
conventional pneumatic brake system they are intended to replace. AAR 
and the brake manufacturers indicated that they were completely 
satisfied that ECP brake systems are significantly safer than 
conventional pneumatic systems. They accepted the results of the FMECA 
and concluded that no modifications were necessary to the AAR standards 
related to ECP brake systems.

VII. Market Maturity and Implementation

    The U.S. market for ECP brake systems is mature enough to begin 
implementation of ECP brake technology. The equipment manufacturers 
have made a significant investment in the technology and have completed 
the preliminary design work and field testing of ECP brakes. For 
instance, they have provided technical solutions for different ECP 
brake implementation strategies, enabling non-ECP and ECP brake-
equipped cars to run in combined trains and, in some cases, allowing 
ECP brake-equipped freight cars to run in ECP brake mode using 
locomotives with conventional pneumatic brake systems. In addition, 
they are ready to supply fully operational stand-alone ECP brake 
systems, overlays, and emulators for the U.S. market, easing the 
industry's migration process. A commitment by the railroad industry to 
change over to ECP brakes is necessary to inspire additional 
technological initiatives by the manufacturers.
    ECP brake systems from the main U.S. manufacturers--all in 
different stages of AAR approval and testing in revenue service--have 
been built with the intention of complying with the AAR S-4200 Series 
of standards, proven safe through field testing, designed using fail-
safe principles, and accommodated the industry's need for different 
implementation schemes. The AAR S-4200 Series standards are intended to 
assure the necessary level of safety, reliability, interoperability, 
and ultimately the applicability of this equipment in the U.S. market. 
The equipment of existing ECP brake manufacturers incorporates the 
conventional pneumatic emergency brake system as a backup in case of 
failure of the ECP brake control. In most cases, ECP brake systems will 
support enhanced safety even if the electronics fail, because 
continuous recharging of the brake pipe will ensure availability of an 
emergency application. Therefore, the ECP brake system reduces the risk 
caused by depleted air in the case of an emergency. There is no 
instance or record of a malfunctioning ECP brake system that resulted 
in a catastrophic or critical event.
    To assess the benefits and costs of ECP brakes for the U.S. rail 
freight industry, FRA contracted with BAH in 2005 to conduct a study. 
An ECP brake expert panel of principal stakeholders in the conversion 
of the U.S. freight car fleet to ECP brake technology, including 
suppliers, railroads, private car owners, AAR, and FRA was assembled to 
participate in the study. The expert panel supported the conclusion 
that the AAR standards are sufficient for the ECP brake system designer 
to achieve a system safety level adequate for a safety-critical system. 
In particular, an AAR-compliant system, while providing a significant 
increase in safety and efficiency, does not introduce extra risks 
associated with single-point failure of the ECP system itself.

[[Page 61520]]

    The final BAH report provided a comprehensive analysis and 
comparison of ECP and conventional air brake systems. BAH acknowledged 
that while trains with ECP brake systems have been operated in North 
America, South Africa, and Australia, U.S. implementation has been 
stalled due to the absence of an acceptable implementation plan for 
conversion and hard data to support a sound economic analysis, limited 
interoperability with traditionally braked trains, and insufficient 
capital investment required for conversion. It concluded that although 
the barriers to implementation are formidable, ECP brake systems are 
economically and technically ripe for adoption and should be 
implemented in phases. BAH suggests that implementing ECP brakes on 
2,800 locomotives and 80,000 cars in the Powder River Basin (PRB) would 
cost the industry approximately $432 million. However, according to 
BAH, the annual $157 million in anticipated benefits--resulting from 
saved fuel, improved wheel and brake shoe life, and a reduction in 
necessary brake inspections--will allow railroads to recover those 
costs in less than three years. To justify the investment, the BAH 
report says, conversion must be focused first on the high-mileage, 
unit-train-type services that would most benefit from its use.
    FRA acknowledges that BAH's fuel cost estimates are underestimated 
due to subsequently rising prices. It is notable that BAH did not 
attempt to quantify potential savings relating to capacity increases or 
emissions decreases due to the difficulty in arriving at acceptable 
values. Accordingly, the report's estimated internal rate of return 
should be viewed as conservative.

VIII. Related Proceeding

    In a petition dated November 15, 2006, and filed November 21, 2006, 
BNSF and NS jointly requested that FRA waive various sections in parts 
229 and 232 as it relates to those railroads' operation of ECP brake 
pilot trains. See Docket No. FRA-2006-26435. The FRA Safety Board held 
a fact-finding hearing on this matter on January 16, 2007, featuring 
testimony from representatives of the petitioners, air brake 
manufacturers, and labor unions. On March 21, 2007, the Safety Board 
granted the petitioners' request, in part, subject to various 
conditions designed to ensure that ECP brake equipped trains subject to 
the waiver will be as safe as trains equipped with conventional brakes 
and operated under the existing rules. See id.

IX. Legal Impediments and Proposed Relief

    ECP brake operation provides for continuous electronic monitoring 
of the condition of air brake system components and brake pipe 
pressure, potentially limiting the need for certain physical brake 
inspections currently required under part 232. Accordingly, this final 
rule modifies, relaxes, and removes certain requirements, including 
intermediate terminal inspections (Sec. Sec.  232.207, 232.209, and 
232.211), single-car air brake tests (Sec.  232.305), and the required 
percent of operable brakes at initial terminal departure (Sec.  
232.103(d)), as they apply to trains operating in ECP brake mode. The 
rail industry's implementation of ECP brakes is frustrated by such 
inapplicable and inefficient statutory and regulatory requirements. 
Without a large-scale proliferation and implementation of ECP brake 
technologies, the industry will not be able to enjoy economies of scale 
and to overcome the industry-wide limits caused by interoperability 
problems. FRA seeks to improve market efficiency by providing reliable 
and suitable standards and procedures that will support investments in 
ECP brake technology.
    The current statutory and regulatory requirements, however--
including those concerning brake inspections and the operation of 
trains with defective equipment--may reduce or eliminate incentives for 
railroads to implement new ECP brake technology and take advantage of 
its operational and safety benefits. For example, 49 U.S.C. 20303 
presents an obstacle to cost-saving, safe, and efficient long hauls 
promised by ECP brakes. To avoid incurring civil penalties, operators 
are required under 49 U.S.C. 20303 to transport rail vehicles with 
defective or insecure equipment ``from the place at which the defect or 
insecurity was first discovered to the nearest available place at which 
the repairs can be made.''
    The design and operation of ECP brakes renders strict application 
of the existing statutory movement for repair provision unnecessary as 
it will reduce efficiencies and may actually reduce the safety of such 
operations. When the defective equipment is an ECP brake, stopping for 
immediate repairs is not necessary. If more than 15 percent of the 
train's AAR approved ECP brakes become inoperable, the train 
automatically stops. It should be noted that a train with 85 percent 
operative ECP brakes will still have shorter stopping distances than a 
train equipped with conventional pneumatic brakes that are 100 percent 
operative. Considering the technology's continuous self-monitoring and 
constant communication with the engineer, it is highly unlikely that a 
train equipped with ECP brakes will ever reach such a level of 
inoperability. Further, FRA continues to believe that a freight train 
operated with ECP brakes may travel non-stop to its destination, not to 
exceed 3,500 miles, without intermediate brake inspections, because 
foundation brake rigging and brake shoes will safely operate this 
distance and redundant intermediate brake inspections within that 
distance do not increase ECP brake system safety. As an added benefit, 
the increased mileage allowance would provide for coast-to-coast 
travel. In the related proceeding, Docket No. FRA-2006-26435, FRA's 
Safety Board granted the request of BNSF and NS to allow the non-stop 
movement of an ECP brake operated train to its destination, each not to 
exceed 3,500 miles.
    Nevertheless, 49 U.S.C. 20303 requires trains with defective safety 
appliances, including brakes, to travel to the nearest location where 
the necessary repairs can be made. If the nearest available location is 
in a direction other than that in which the train is traveling, the 
train with defective equipment may be required to switch the defective 
car out of the train and add it to another train traveling in the 
direction of the nearest repair location, referred to as a 
``backhaul.'' ECP brake implementation has been complicated by the ECP 
brakes system's technological incompatibility with conventional 
pneumatic brake systems. To switch a car equipped with ECP brakes into 
a technologically incompatible train operating with conventional 
pneumatic brakes will create additional safety concerns for that train.
    The potential risks involved in combining cars with incompatible 
braking systems coupled with the hazards normally associated in 
switching cars in the field, outweigh the potential harm of keeping the 
defective car in its existing ECP braked train and traveling to a 
repair location that is significantly further away. In circumstances 
where the defective safety appliance is a non-brake defect, it will 
often be safer and is certainly more efficient to allow ECP brake-
equipped trains with non-brake defective equipment to travel to the 
nearest forward repair station. Moreover, due to the ability of ECP 
brake systems to continuously monitor the brakes on each car in a train 
and to provide specific information to the locomotive engineer 
regarding the location of any car with inoperative brakes and the

[[Page 61521]]

design of such systems to prohibit operation with less than 85 percent 
operative brakes in certain situations, the need to immediately set-out 
and handle cars with defective brakes for repair is unnecessary. There 
is also no safety need to require a railroad to incur the expense and 
delay involved with cutting the defective car out of the train or to 
run the safety risk of doing so. Currently, freight cars with defective 
mechanical conditions are permitted to be hauled long distances for 
repair. See 49 CFR 215.9. In light of the technological advances 
provided by ECP brake systems, it appears logical and necessary to 
permit more flexibility in moving equipment with defective brakes when 
equipped with ECP brakes and hauled in a train operating in ECP brake 
mode. However, the language of 49 U.S.C. 20303 prevents FRA from 
providing this flexibility.
    When drafting the proposed rule in this proceeding, FRA recognized 
that the aforementioned statutory requirements governing conventional 
pneumatic braked trains may offset the increased safety and efficiency 
benefits afforded by ECP brakes, thus eliminating the incentives for 
rail operators to implement ECP brake technologies. To encourage 
implementation without hindering safety, FRA proposed to invoke its 
discretionary authority under 49 U.S.C. 20306 to exempt ECP brake-
equipped trains from the specific statutory requirements contained in 
49 U.S.C. 20303. The requirements for moving defective equipment were 
created over a century ago, during the infancy of pneumatic brakes and 
before all cars were equipped with power brakes. With many more reasons 
to stop train operation along tracks with frequent repair shops and 
exponentially more employees, the legislative drafters of that time 
could not have envisioned the type of safer and more efficient 
technologies available today.
    Recognizing the importance of upgrading rail technologies, Congress 
in 1980 passed the Rock Island Railroad Transition and Employee 
Assistance Act (the ``Rock Island Act''), which, inter alia, provides 
statutory relief for the implementation of new technologies. More 
specifically, when certain statutory requirements preclude the 
development or implementation of more efficient railroad transportation 
equipment or other transportation innovations, the applicable section 
of the Rock Island Act, currently codified at 49 U.S.C. 20306, provides 
the Secretary of Transportation with the authority to grant an 
exemption to those requirements based on evidence received and findings 
developed at a hearing.
    According to Senate Report No. 96-614, ``This section fosters rail 
technological improvements by giving the Federal Railroad 
Administration discretionary authority to grant exemptions from the 
Safety Appliance Acts' mandatory requirements when those requirements 
preclude the development or implementation of new rail technology.'' 
Senate Comm. on Commerce, Science, and Transportation, S. Rep. No. 96-
614, at 8-9 (Mar. 4, 1980) (emphases added). The House version of the 
bill includes no similar provision, but the Conference substitute adds 
that the authority granted FRA in this section must be exercised after 
a hearing, absent an agreement between labor representatives and the 
developers or operators of the new equipment or technology. Joint 
Explanatory Statement of the Committee of Conference, H. Conf. Rep. No. 
96-1041, Sec.  117, at 30 (May 20, 1980).
    Under 49 CFR 1.49(v), the Federal Railroad Administrator is 
delegated authority to carry out the functions vested in the Secretary 
by the Rock Island Act. Under this authority, FRA held two public oral 
hearings in Washington, DC on October 4, 2007, and near Chicago, IL, on 
October 19, 2007, to receive evidence and develop findings to determine 
whether FRA should invoke 49 U.S.C. 20306. While FRA solicited any 
information that would bear on this decision, it also asked a series of 
questions in the NPRM and at the hearing designed to invoke discussion 
and gather information regarding the safety of moving defective 
equipment as proposed and to determine whether existing statutory 
provisions impede the implementation of the technology.
    At the hearing, the labor unions commented on the limitations of 
the ECP brake system's self-monitoring capabilities. According to the 
labor unions, since the technology cannot monitor a variety of brake 
defects, it should not be relied upon to allow a train to operate 3,500 
miles without any intermediate brake inspections. On the other hand, 
the railroads support the increase in the allowable distance of 3,500 
miles between brake inspections, believing the safety level of trains 
operating with ECP brakes that distance should equal or exceed the 
safety level of trains operating with conventional brakes over 1,000 
miles. For the same reasons, some railroads even suggested that ECP 
brake operated trains be allowed to move 5,000 miles between Class I 
brake inspections.
    The labor unions and railroads agree that a conventional freight 
car with the brakes cut out is no different than an ECP brake-equipped 
car with the brakes cut out and that switching a defective ECP brake-
equipped car into a conventionally braked train will not increase 
current safety concerns. However, the railroads and the labor unions 
disagree when the defect is a non-brake safety appliance on a car 
equipped with ECP brakes. According to the labor unions, if a non-brake 
defect requires the car to be set out, there is no difference between a 
train operated with conventional brakes and a train operated with ECP 
brakes; the car should be set out for repair on site or moved under 
special circumstances to the nearest repair point. The railroads 
believe that such cars should be left in the train operated with ECP 
brakes for forward movement to a location where ECP brake repairs can 
be made instead of being switched out and hauled in a different 
direction. Any switching, says the railroads, causes the switching and 
pick-up crews more risk exposure.
    The labor unions assert that the regulations proposed in this 
proceeding provide sufficient incentives for the implementation of ECP 
brake systems and that the restrictions within 49 U.S.C. 20303 do not 
provide a disincentive for such implementation. The railroads, on the 
other hand, assert that strict application of 49 U.S.C. 20303 provides 
a disincentive for the implementation and use of ECP brake 
technologies. According to the railroads, they are required under 
section 20303 to handle cars with defective equipment more times than 
necessary, resulting in lost time and revenue. The resulting undue and 
unreasonable financial burden and significantly negative financial 
impact on rail operations, say the railroads, provides no relief from 
the added expense of equipping rail cars with ECP brakes and is a 
strong disincentive for ECP brake system implementation. The railroads 
claim that eliminating the requirements under 49 U.S.C. 20303 would 
provide a necessary and significant economic incentive to the 
widespread adoption of ECP braking technology in the U.S.
    Based on the comments and information submitted at those hearings, 
FRA has decided to invoke its discretionary authority under 49 U.S.C. 
20306 to exempt application of 49 U.S.C. 20303 as it applies to the 
operation of ECP brake operated freight trains and freight cars. FRA 
believes that application of section 20303 will clearly provide a 
disincentive towards the implementation of ECP brake systems, a

[[Page 61522]]

technology that promises safer operation of trains throughout the U.S.
    FRA is confident that this initiative is consistent with improving 
railroad safety. As further discussed below, through oversight of 
present train operations, including extended haul operations, FRA has 
observed that properly inspected trains can proceed for extended 
distances without loss of braking effort due to wear or damage to 
foundation brake rigging. FRA further notes that hauling of cars with 
defective safety appliances to the next forward point where repairs can 
be accomplished poses virtually no incremental risk to employees, 
particularly if defects have been identified and communicated to the 
crew of the train. In the great majority of cases, damaged or insecure 
safety appliances pose a risk only during switching operations, not 
during line haul movements. Indeed, back hauling of safety appliances 
introduces additional risk, as the car is first removed from one road 
train and then added to another for the reverse movement.

X. Additional Issues

A. Part 229

    In the ECP brake waiver proceeding, Docket No. FRA-2006-26435, BNSF 
and NS sought relief from various provisions of parts 229 and 232. In 
relation to part 229, BNSF and NS sought relief from the requirements 
relating to daily locomotive inspections and electronic record keeping. 
FRA sought comments and information whether this final rule should 
include any exceptions to part 229 for operations using ECP brake 
systems.
    No commenting party supported or suggested any exceptions to part 
229. On the contrary, UTU and BLET agreed with the FRA's proposal not 
to modify part 229 in this rulemaking. According to BLET, there is no 
basis for relief from the daily inspection or recordkeeping 
requirements of Part 229. FRA continues to believe that there is 
insufficient information available to consider any exceptions to part 
229 for operations using ECP brake systems. Thus, under this 
rulemaking, part 229 remains unaffected.
    In its comments, Wabtec lists a number of minimum requirements that 
it proposes should be added to existing event recorder parameters, 
applicable to the lead locomotive when in ECP brake operation. BLET 
filed a supplemental response in which it responded to this particular 
filing, stating that it ``cannot serve as a basis for FRA requirements 
pertaining to event recording of ECP data because of [an] omission 
[relating to the `ECP train brake source' parameter described in UP's 
comments].'' The scope of this proceeding does not include information 
relating to event recorder data. The NPRM did not discuss or seek 
comments on this issue. Accordingly, FRA will not include in this final 
rule any modifications to the regulations governing event recorders, 
since many parties interested in event recorders would not have been 
put on notice that the issue was being raised. FRA believes that these 
issues would best be resolved in a separate proceeding concerning part 
229.

B. Dynamic Brake Requirements

    At the public hearing conducted in relation to the waiver 
proceeding, BNSF requested relief from some of the dynamic brake 
requirements contained in 49 CFR part 232. On this issue, FRA only 
received comments from BLET, which indicated that relief relating to 
dynamic brake requirement is not necessary as it applies to ECP brake 
systems. According to BLET, it would be unwise and unsafe to further 
erode braking capacity by diluting the existing dynamic brake 
requirements.
    FRA remains unsure of what specific relief BNSF requested regarding 
dynamic brakes. Section 232.109 provides for the continued operation of 
a locomotive found with inoperative dynamic brakes for a period of up 
to 30 calendar days. It appears that railroads will continue to require 
locomotive engineers to rely on extended range dynamic brakes where 
they sufficiently control the braking effort without introducing 
excessive buff forces. Locomotive engineers will need to know what 
level of braking effort is available, particularly in extreme cases 
operating over territory with significantly descending grades. 
Otherwise, an engineer may lose control of the train due to brake fade 
when the speed precludes a timely application of the automatic brake 
due to insufficient dynamic brake capacity. FRA recognizes that this 
scenario is much less likely to occur with availability of ECP braking, 
but that does not mean it could not occur. FRA continues to believe 
that more flexibility in this area is not necessary and declines to 
make any such modifications in this final rule.

C. Single Car Air Brake Test Approval Procedures and Single Car Air 
Brake Tests

    The NPRM included a provision requiring the submission and approval 
of single car air brake test procedures for cars with ECP brake systems 
in accordance with the special approval procedures in Sec.  232.17. FRA 
also reserved the right to modify Sec.  232.17 to make clear the 
applicability of proposed subpart G, including, but not limited to, 
adding cross-references.
    Section 232.305(a) provides that a single car air brake test may be 
performed partially in accordance with ``Section 4.0, `Special Tests,' 
of the Association of American Railroads Standard S-486-01, `Code of 
Air Brake System Tests for Freight Equipment,' contained in the AAR 
Manual of Standards and Recommended Practices, Section E (January 1, 
2001).'' That standard has since been amended and FRA has approved the 
use of the new Standard S-486-04 as the procedure to use when 
performing a single car air brake test. Accordingly, FRA proposed to 
amend Sec.  232.305(a) by replacing the directly preceding quoted text 
with the following: ``Section 4.0, `Special Tests,' of the Association 
of American Railroads Standard S-486-04, `Code of Air Brake System 
Tests for Freight Equipment,' contained in the AAR Manual of Standards 
and Recommended Practices, Section E (January 1, 2004).''
    BLET submitted comments supporting FRA's proposed amendments to 
sections 232.17 and 232.305(a). No other comments were filed on these 
issues. Consequently, the final rule amends Sec. Sec.  232.17 and 
232.305(a).

D. Train Handling Information

    Section 232.111 requires railroads to adopt and comply with written 
procedures ensuring that railroad train crews receiving trains are 
provided accurate information concerning each train's condition. The 
continuous monitoring capabilities of ECP brake systems provide 
information regarding the location of equipment with inoperative or cut 
out brakes. BLET commented that none of the information provided by the 
ECP brake system appears to satisfy the requirements of 232.111(b) and 
that it agrees with FRA that there is no reason for excepting any 
portion of or provision contained in Sec.  232.111.
    FRA continues to see no reason to excepting any portion of or 
provision contained in Sec.  232.111. FRA continues to believe that, if 
anything, ECP brake systems' continuous monitoring capabilities will 
assist railroads in complying with the train handling information rules 
in Sec.  232.111 by monitoring defects and potentially allowing for the 
manual input of defects not monitored electronically and then

[[Page 61523]]

electronically providing such information to subsequent train crews.

E. Piston Travel Limits

    For cars equipped with 8\1/2\-inch or 10-inch diameter brake 
cylinders receiving either a Class I brake test or a periodic 
inspection while on a shop or repair track, Sec. Sec.  232.205(c)(5) 
and 232.303(c) currently limit piston travel to 7 to 9 inches. An 
industry-wide waiver currently in effect, however, permits piston 
travel limits to range from 6 to 9 inches on these types of cylinders. 
In the NPRM, FRA proposed the incorporation of that waiver into the 
rules by amending Sec. Sec.  232.205(c)(5) and 232.303(c) accordingly.
    BLET, Wabtec, and NYAB concur with FRA's proposal to incorporate 
the current, industry-wide waiver permitting piston travel limits to 
range from 6 to 9 inches by amending sections 232.205(c)(5) and 
232.303(c). Similarly, AAR states that there is no reason to refrain 
from incorporating the industry-wide waiver in the regulations. 
Consequently, this final rule amends sections 232.205(c)(5) and 
232.303(c) by revising the piston travel range limit of 7 to 9 inches 
to a range limit of 6 to 9 inches.

F. Extended Haul Trains

    Section 232.213(a)(6) requires inbound inspections for extended 
haul trains and states that, ``After April 1, 2007, the inbound 
inspection described in this paragraph shall not be required unless FRA 
provides notification to the industry extending the requirement to 
perform inbound inspections on extended haul trains.'' Section 
232.213(a)(7) requires railroads to maintain a record of all defective, 
inoperative, or ineffective brakes and all conditions not in compliance 
with parts 215 and 231 discovered during train movement. In addition, 
that section says that, ``After April 1, 2007, the records described in 
this paragraph need not be maintained unless FRA provides the 
notification required in paragraph (a)(6) of this section extending the 
requirement to conduct inbound inspections on extended haul trains.''
    In the NPRM, FRA proposed to amend Part 232 by deleting Sec. Sec.  
232.213(a)(6) and (a)(7) from the regulations. These regulations 
``sunsetted'' on April 1, 2007, without further FRA action. Since this 
proposal remains uncontested and the ``sunsetted'' provisions serve no 
purpose by remaining in the CFR, the final rule deletes Sec.  
232.213(a)(6) and (a)(7).

G. Part 238

    Amtrak informally expressed interest in potentially using ECP brake 
system technology for its Auto Train that runs from Lorton, Virginia to 
Sanford, Florida. Amtrak previously employed overlay ECP braking on 
that train, and presumably would benefit from some additional 
flexibility with respect to the conduct of intermediate inspections. 
However, since FRA does not currently have sufficient information 
regarding the use of ECP brake systems on passenger trains and 
passenger equipment, FRA did not propose any amendment to 49 CFR part 
238. FRA continues to believe that the functions of freight and 
passenger trains and cars, evidenced by the varied rules applicable to 
each, are too disparate to provide a one-size-fits-all solution for ECP 
brake integration and use.
    In the NPRM, FRA stated that it may consider Part 238's 
applicability to ECP brake systems in another rulemaking or in other 
proceedings and would consider requests for waivers relating to the 
regulation of freight trains and freight cars equipped with ECP brake 
systems for passenger trains on a case-by-case basis. BLET agrees that 
the issue of ECP brakes and Part 238 should be addressed in a separate 
rulemaking. For this reason, BLET does not believe that it is 
appropriate for FRA to regulate ECP brakes on passenger trains via the 
waiver process or on a case-by-case basis.
    FRA continues to believe that any regulations affecting the 
implementation and use of ECP brake systems on passenger trains are 
better left for a separate rulemaking proceeding relating to Part 238. 
FRA will also consider requests for waivers for such implementation and 
use on passenger trains. Although BLET expresses its opinion that a 
rulemaking would be a better venue for permitting the implementation 
and use of ECP brake systems on passenger trains, it provides no 
reasons why it would not be prudent to allow for the use of waivers to 
achieve similar goals.

XI. Section-by-Section Analysis

49 CFR Part 232

    Unless otherwise noted, all section references below refer to 
sections in title 49 of the Code of Federal Regulations (CFR). FRA 
sought comments on all proposals made in the NPRM to this proceeding.
Subpart A--General
    This subpart contains amendments to the definitions listed in 
subpart A of part 232.

Section 232.5 Definitions

    In the NPRM, FRA proposed the amendment of section 232.5 by adding 
an extensive set of definitions to introduce the regulatory relief and 
regulations applicable to ECP brake systems. FRA worded these 
definitions to mirror, to the extent possible, the definitions provided 
in existing AAR standards. FRA intends these definitions to clarify the 
meaning of important terms that are used in the text of the proposed 
rule. The definitions are carefully worded in an attempt to minimize 
the potential for misinterpretation of the rule. Some of the 
definitions introduce new concepts or new technologies.
    These new definitions acknowledge the two general types of ECP 
brake systems--dual mode and stand-alone. The definition of a dual mode 
ECP brake system, which means a brake system that can work either as a 
conventional pneumatic brake system or an ECP brake system, intends to 
cover both an overlay ECP brake system and an ECP brake system equipped 
with an emulator CCD. The definition of CCD is intended to describe an 
important and necessary part of ECP brake system technology.
    FRA did not receive any comments on the proposed definitions. 
Consequently, except for reasons set forth below, the final rule 
retains the definitions as proposed.
Subpart G--Electronically Controlled Pneumatic (ECP) Braking Systems
    FRA is adding a new subpart G to part 232. The new subpart contains 
various design and operational requirements that provide both 
regulatory relief and regulatory modification to allow implementation 
of ECP brake systems on the Nation's railroads and to ensure the safety 
of such operations.

Section 232.601 Scope

    This section contains a formal statement of the final rule's 
purpose and scope. The final rule contains specific requirements 
relating to the operation of freight trains and freight cars equipped 
with ECP brake systems and operating in ECP brake mode. The final rule 
also provides specific exceptions from various requirements contained 
in part 232 for ECP brake-equipped freight trains and freight cars.

Section 232.602 Applicability

    As a general matter, this section makes clear that these rules 
apply to all railroads that operate freight trains or freight cars 
equipped with ECP brakes on track which is part of the general railroad 
system of transportation. The final rule applies to freight trains

[[Page 61524]]

operating in ECP brake mode, freight cars equipped with ECP brake 
systems, and conventionally braked freight trains and freight cars when 
operated in conjunction with ECP brake equipment.
    The regulatory relief provided in the final rule and the need to 
ensure the safe operation of trains and vehicles equipped with this 
advanced technology requires that exception of certain existing part 
232 provisions be afforded. Many of the provisions that the final rule 
excepts either apply awkwardly or should otherwise not apply to ECP 
brake systems due to the new technology's design or additional safety 
benefits. Similarly, the addition of various requirements directly 
related to ECP brake systems is necessary to ensure that the equipment 
is properly designed, inspected, tested, maintained, and safe to 
operate.
    To fulfill these goals and to avoid an excess of confusing cross-
references, this final rule excepts specific provisions and an entire 
subpart of part 232 from application to ECP brake systems. Each section 
of subpart G contains specific exceptions from various provisions 
contained in other portions of part 232 or contain appropriately 
rewritten provisions directly applicable to ECP brake systems. Those 
portions and sections of part 232 not specifically excepted by this 
final rule remain applicable to ECP brake-equipped freight trains and 
freight cars.

Section 232.603 Design, Interoperability, and Configuration Management 
Requirements

    In order to ensure the safety and interoperability of ECP brake 
systems, this section incorporates by reference the existing AAR 
standards and approval procedures for ECP brake systems. The AAR, its 
member railroads, and various brake manufacturers have invested 
considerable time and effort in developing the identified industry 
standards addressing the design, performance, and interoperability of 
ECP brake systems. FRA has reviewed the industry standards it intended 
to incorporate by reference in this final rule and has determined that 
the standards effectively address and ensure the safe and proper 
operation of the brake system technology. As noted previously in this 
preamble, FRA funded a FMECA, which validated the safety and 
applicability of AAR's ECP brake system standards for freight 
railroads.
    FRA believes that compliance with the AAR standards identified in 
paragraph (a) will ensure the safety and efficiency of freight trains 
and freight cars equipped with ECP brakes. Implementation of ECP 
braking systems complying with these standards will bring benefits and 
efficiencies encompassing train handling, car maintenance, fuel 
savings, network capacity, self-monitoring, fail-safe operation, 
accurate and instantaneous brake commands throughout the train, and 
continuous, real-time self-diagnostics. Paragraph (a) requires all 
manufacturers to meet existing AAR standards when developing and 
installing ECP brake systems.
    Paragraph (a) incorporates the most recent AAR standards related to 
ECP brake systems. FRA recognizes that ECP brake systems are a growing 
technology and realizes that the existing AAR standards may need to 
change as the technology advances. Accordingly, this final rule 
includes two methods by which the incorporated industry standards may 
be changed. Paragraph (a) permits the submission of an alternate 
standard under the special approval procedures contained in Sec.  
232.17. In addition, paragraph (f) permits the AAR or other authorized 
representative of the railroad industry to seek modification of the 
approved industry standards through the modification procedures 
contained in Sec.  232.307. Only the party that initially submits a 
standard approved by FRA pursuant to paragraph (a) may subsequently 
seek modification of that standard under paragraph (f). For instance, 
only AAR may seek modification of its own AAR S-4200 Series Standards 
already incorporated by reference into this final rule. If another 
authorized representative of the railroad industry submits an 
alternative standard under paragraph (a) and pursuant to Sec.  232.17, 
then only that representative may seek modification of their alternate 
standard under paragraph (f).
    The modification procedures in Sec.  232.307 were developed to 
permit modification of the other incorporated AAR standards and FRA 
believes that the procedures are equally applicable to the regulations 
contained in this final rule. The industry has successfully utilized 
both these methods to change or modify industry standards incorporated 
in part 232 and FRA believes it is appropriate and necessary to provide 
this latitude for the standards related to ECP brake systems and 
components.
    BLET filed comments supporting Sec.  232.603(a) and (f) to utilize 
the alternate standards of Sec.  232.17 and the modification procedures 
of Sec.  232.307, respectively. GE requests that an exception be 
granted to certain stand-alone ECP brake systems in Sec.  
232.603(a)(1)-(6). We will address GE's comments below when providing 
analysis of Sec.  232.603(e).
    FRA recognizes that while most of the S-4200 Series apply technical 
standards concerning the mechanical attributes and capabilities of ECP 
brake systems, S-4240 and S-4270 delegate additional responsibilities 
to those manufacturing, implementing, and using ECP brakes and have 
been the subject of various comments filed in this proceeding. Thus, 
FRA believes they require further discussion.
    FRA has reviewed the approval procedures contained in AAR Standard 
S-4240 and believes that they provide an appropriate review process to 
ensure the safe and proper operation of ECP brake systems. FRA believes 
that AAR is in the best position to approve those ECP brake systems 
that will be used by its member railroads and, over time, other non-
member railroads interchanging traffic on the general rail system. FRA 
does not intend this section to necessarily preclude the introduction 
and acceptance of alterative standards subsequently approved in 
accordance with the rules.
    FRA recognizes, however, that enforcement of S-4240 against the 
railroads would be difficult without additional regulatory language. 
Accordingly, paragraph (b) requires that all ECP brake systems 
developed under the AAR standards incorporated by reference in 
paragraph (a) receive conditional or final approval under AAR Standard 
S-4240 prior to use and that they maintain such approval while in use. 
In this paragraph, FRA prohibits the use of ECP brake systems developed 
under the AAR standards incorporated in paragraph (a) that do not 
receive conditional or final AAR approval or that cease to comply with 
the incorporated AAR standards relating to ECP brake systems.
    BLET filed comments stating that it does not oppose paragraph (b). 
However, BLET believes that FRA's Railroad Safety Board should review 
petitions for conditional approval via the waiver process. FRA does not 
believe this level of scrutiny is necessary at this time. Under 
232.103(l), all conventional brake systems must comply with AAR 
Standard S-469-47. Compliance with this standard is determined by the 
AAR brake committee, subject to FRA technical oversight. There are no 
more specific FRA requirements for these systems. For similar reasons, 
FRA is incorporating into the final rule the appropriate ECP brake 
standards. FRA has successfully relied on AAR for approving

[[Page 61525]]

conventional brake standards and there is nothing suggesting why FRA 
should perform a materially different approval process oversight role 
for the ECP brake standards. For the purposes of this rulemaking, FRA 
has closely reviewed and scrutinized the ECP brake design standards 
adopted by AAR. FRA also funded and participated in a FMECA analysis of 
the S-4200 series standards. We feel confident relying on AAR's 
approval process. Just like FRA enforces Standard S-469-47 after a 
system is introduced into service, FRA will equally enforce the S-4200 
series standards on trains in service with ECP brake systems.
    In paragraph (a), FRA also requires that all ECP brake systems meet 
the configuration management requirements contained in an industry 
recognized, FRA approved standard such as AAR Standard S-4270. FRA 
believes that configuration management of ECP brake system hardware and 
software components is an absolute requirement to ensure the 
interchangeability, interoperability, compatibility and continued 
proper and safe operation of ECP brake systems. Compatibility of ECP 
hardware and software will have a direct affect on the safety and 
reliability of ECP brake systems running on the Nation's railroads.
    In the NPRM, FRA cautioned that the limited configuration 
management plan requirements in Sections 5.1 and 5.2 of AAR Standard S-
4240 may not have been sufficiently robust to adequately control ECP 
brake system components. The more recently developed AAR Standard S-
4270 eliminates this shortcoming by adequately addressing issues 
relating to configuration management, including a sufficient set of 
requirements that properly allocate the responsible party and necessary 
procedures to be followed by this party to assure proper management of 
ECP brake system software and hardware configurations.
    The AAR approval process and Air Brake Systems Committee requires 
various procedures to ensure the interoperability and 
interchangeability of AAR-approved ECP brake systems and their 
components. These same requirements and procedures have been used for 
many years to successfully manage the configuration of conventional 
pneumatic AAR approved air brake valves. Therefore, FRA believes that 
responsibility for the configuration management of AAR-approved brake 
systems and their components should continue to reside with AAR and its 
Air Brake Systems Committee.
    As discussed above, FRA has reviewed and approved AAR Standard S-
4270 and has determined that the standard should be incorporated by 
reference into this final rule. In a notice issued on April 18, 2008, 
FRA sought comments and concerns on AAR Standard S-4270, which at that 
time was in draft form, and indicated that it would consider inclusion 
of the final draft if it was timely adopted with no substantial 
changes. 73 FR 21092, 94 (Apr. 18, 2008). AAR adopted and implemented 
Standard S-4270 on April 30, 2008, without any changes from the draft 
referenced in FRA's public notice dated April 18, 2008, and placed in 
the docket to this proceeding on April 21, 2008.
    Since the NPRM was issued prior to the development of an acceptable 
configuration management plan standard, paragraph (c) as proposed 
included language delineating minimum requirements for acceptance of a 
subsequently submitted configuration management plan standard. Since 
paragraph (a) incorporates by reference AAR Standard S-4270 and 
provides for the submission of alternative standards under Sec.  
232.17, the extraneous text of proposed paragraph (c) has been removed 
from the final rule. However, FRA continues to believe that alternative 
configuration management plans must maintain the same minimum 
standards. More specifically, to receive approval in accordance with 
Sec.  232.17, a configuration management plan must be structured in 
accordance with accepted configuration management standards and define 
all of the purposes, procedures, organizational responsibilities, and 
tools to be used for ECP brake system hardware and software 
configuration management including: The purpose and scope of the 
application; control activities to be performed; responsibilities and 
authorities for accomplishing the activities; implementation schedules; 
tools and resources for executing the plan; and periodic updating of 
the plan to maintain currency.
    In the NPRM, FRA suggested that any submitted alternate 
configuration management plan be structured in accordance with accepted 
configuration management standards such as IEEE Std 28-1990, IEEE 
Standard for Software Configuration Management Plans, American National 
Standards Institute, 1990; or IEEE Std 1042-1987, IEEE Guide to 
Software Configuration Management, American National Standards 
Institute, 1987. The brake manufacturers, however, argue that these 
IEEE standards are not considered appropriate or necessary for 
achieving adequate configuration management control for ECP brake 
systems. Despite their promise to recommend alternatives, nothing on 
this issue was subsequently filed.
    The NPRM's references to the various aforementioned IEEE standards 
were provided for use by the railroads in the event that AAR did not 
develop its own configuration management standard. As previously 
mentioned, AAR issued a configuration management standard, S-4270, 
subsequent to the initial comment period in this proceeding. FRA 
understands the brake manufacturers to mean that some items specified 
in the IEEE standards may not be applicable because they are superseded 
by the more restrictive standards and processes developed by the brake 
manufacturers. While FRA concedes that this may be true, it does not 
speak to the overall applicability of the IEEE standards to any 
alternate configuration management plan that might be submitted by any 
other party. FRA expects all configuration management plans to be 
tailored to the requirements of accepted IEEE standards or a more 
restrictive, proprietary, or industry-specific standard has been 
developed and implemented. FRA believes AAR Standard S-4270 complies 
with the latter expectation.
    FRA continues to believe that any ECP brake configuration 
management plan should consider issues beyond initial approval. For 
instance, use of improper or out-of-date software versions for 
microprocessor controlled systems has been an issue in a variety of 
industries. Therefore, FRA continues to caution that any alternate 
configuration management plan should be sufficiently robust to 
adequately control ECP brake system components, especially as more 
manufacturers apply for AAR approval of ECP brake systems. Further, 
safety or reliability issues may dictate that hardware or software 
configurations be changed once ECP brake systems are put in service on 
a large scale in the U.S. FRA continues to encourage AAR, railroads, 
and manufacturers to ensure their ability to continually monitor and 
respond to hardware and software issues affecting ECP brake systems 
after initial approval.
    FRA continues to believe that AAR is capable of setting appropriate 
configuration management standards and related approval procedures and 
FRA intends to rely on AAR to monitor ECP brake component approval, 
configuration and compatibility for systems designed and approved under 
its standards incorporated herein. However, FRA, in its federal 
oversight

[[Page 61526]]

role, will continue to monitor the activities of the Air Brake Systems 
Committee and the AAR ECP brake approval process to ensure that any 
safety or reliability issues that may emerge are addressed promptly and 
comprehensively. FRA will also issue additional configuration 
management requirements for the operation of ECP brake systems if, in 
the sole opinion of the FRA, the oversight of the AAR and the AAR Air 
Brake Systems Committee proves inadequate for the continued safe 
operation of ECP brake systems. In this case, FRA may take a variety of 
approaches including requiring railroads and car owners to develop 
their own configuration management plans for monitoring ECP brake 
system interchangeability, interoperability and compatibility.
    In relation to the issue of ECP brake system configuration 
management plans, FRA received comments from BLET at the public hearing 
and written comments in response to FRA's notice seeking comment on AAR 
Standard S-4270. At the hearing, BLET stated that configuration 
management plans must conform to the requirements of part 236, subpart 
H. According to BLET, ``There is a strong likelihood that the majority 
of the routes over which ECP will be deployed also will see the 
implementation of positive train control (`PTC'). Given the manner in 
which PTC will enforce speeds and authorities, the ECP head-end unit 
and its associated appurtenances will become a core element of the PTC 
system.'' In its written comments, BLET added, ``We continue to believe 
that--to the extent ECP-equipped trains operate on routes where PTC has 
been or will be installed--the ECP technology is a processor-based 
train control system. Braking algorithms for speed and authority 
enforcement for ECP-equipped trains will differ significantly from 
those utilized for conventionally-braked trains.''
    FRA understands BLET's contention to be that, if an ECP brake 
system ``is considered a core element of PTC system'' or ``is 
considered a train control system,'' then it must comply with the 
configuration management requirements contained in Part 236, Subpart H, 
905(b)(4). While FRA acknowledges the importance of configuration 
management, it does not agree that ECP brake systems must conform to 
the requirements of part 236, subpart H. Although ECP brakes may have a 
significant impact on the safety case prepared under subpart H of part 
236 for train control systems, FRA does not consider the brake system, 
standing alone, to constitute a train control system.
    The current implementation of ECP brake technology and processor 
based train control technology are two independent industry 
initiatives. FRA recognizes the potential for the future use of both 
technologies onboard a single locomotive and FRA looks forward to such 
integration. Of course, operations that contemplate using both PTC and 
ECP brakes in a common operation must include the ECP brake system as 
an integral part of the Product Safety Plan for the train control 
system. While the ECP brake system itself is not subject to subpart H 
of part 236, ECP brakes may not be utilized with processor based train 
control systems until the impact on their use has been included in the 
required analysis of the train control system under subpart H of part 
236 and that analysis has been approved by FRA. Given the superior 
characteristics of ECP brake systems, and assuming straightforward 
integration with new train control systems, the use of ECP braking 
should be helpful in the formulation of persuasive safety case 
documents.
    FRA acknowledges BLET's concern that ``AAR's proposed S-4270 
Standard is materially inferior to the other S-4200 standards,'' and 
their strong recommendation to FRA to insist on ``(1) the use of 
identified, scientifically-proven configuration management plans, and 
(2) the delineation of `bright line' triggers governing the urgency 
with which hardware and/or software changes must be made.'' FRA further 
acknowledges BLET's concern regarding ``[delegation] to AAR's Air Brake 
System Committee oversight of [ECP brake] product approval, 
implementation, and operations.''
    In the NPRM, FRA recommended the use of acceptable IEEE software 
configuration management standards such as IEEE-828 and IEEE-1042 for 
the development of ECP brake system configuration management plans. 72 
FR 50820, 50831 (Sept. 4, 2007). As BLET notes, neither of these 
standards are referenced in the proposed AAR S-4270 standard, and the 
proposed standard passes the responsibility to develop and maintain the 
configuration management plan for the ECP brake product to the 
manufacturers. FRA, however, does not believe that such actions are 
inconsistent with either IEEE-828 or IEEE-1042, since both standards 
provide for and encourage tailoring appropriate to individual products 
and the system developers' operational needs. For example, IEEE-828 
makes the following provisions:

    This standard permits significant flexibility in preparing an 
SCM Plan. A successful Plan reflects its project environment. It 
should be written in terms familiar to its users and should be 
consistent with the development and procurement processes of the 
project. To conform to the requirements set forth in other 
applicable standards or to accommodate local practices, a Plan may 
be tailored upward, to add information, or tailored to use a 
specified format. The Plan may also be tailored downward, omitting 
information required by this standard, when specific standard 
requirements are identified as not applicable to this project. * * * 
The information may be presented in the Plan in any sequence or 
presentation style deemed suitable for the Plans users.

Similarly, IEEE-1042 states:

    The application (and thus the planning) of SCM is very sensitive 
to the context of the project and the organization being served. If 
SCM is applied as a corporate policy, it must not be done blindly, 
but rather should be done in such a way that the details of a 
particular SCM application are reexamined for each project (or phase 
for very large projects). It must take into consideration the size, 
complexity, and criticality of the software system being managed, 
and the number of individuals, amount of personnel turnover, and 
organizational form and structure that have to interface during the 
life of the software system being managed.

The AAR S-4720 standard, particularly in Sec.  3.3.2, outlines the main 
requirements to the ECP brake system configuration management plan that 
are common to the requirements of the IEEE and other standards 
referenced in the NPRM. Section 3.3.2 additionally requires that ``the 
manufacturer shall maintain a readily retrievable record of all 
software and hardware changes and make that record available to the AAR 
and FRA at any time.'' In any event, the NPRM merely stated that FRA 
expected any configuration management plan to conform to an accepted 
standard; the IEEE standards referenced were simply provided as 
acceptable examples.
    FRA would also like to address BLET's concern regarding the 
``delineation of `triggers' governing the urgency of the software/
hardware changes implementation.'' FRA has reviewed industry practice 
regarding software changes and has determined that the levels contained 
in AAR Standard S-4270 are consistent with the IEEE 1044 and 1044.1. 
These standards differentiate the urgency of software and hardware 
implementation schedules in order to assure gradual implementation 
without significantly affecting operations. FRA considers the use of 
the three levels of software and hardware implementation strategy given 
in Sec.  3.6 of S-4270 as reasonable and practically justified.

[[Page 61527]]

    To further assure and enforce compliance of the ECP brake 
manufacturers' configuration management plans with the final rule and 
appropriate standards, FRA makes vendor and railroad compliance with S-
4270 a regulatory mandate subject to regulatory oversight in paragraph 
(c) of this section in the final rule. AAR Standard S-4270 places the 
responsibility for configuration management on the brake manufacturers. 
Paragraph (c) of this section, however, requires the railroads 
implementing and using ECP brake technology to ensure that the brake 
manufacturers' configuration management plans comply with the existing 
applicable standards. FRA believes that the users of rail technologies 
are ultimately responsible for their safe use.
    Paragraph (c) also provides for regulatory oversight of 
configuration management plans, which could include a review of the 
manufacturer's commitment and adherence to the general requirements of 
accepted or scientifically proven configuration management plans. Based 
on the allowances for customization of the configuration management 
standards to support a specific vendor's mode of operation, and the 
inclusion of FRA regulatory oversight to ensure that vendor's standards 
are appropriate, FRA considers the content of S-4270 standard 
sufficient to be incorporated by reference in this final rule.
    Paragraph (d), of this section excepts a freight car or freight 
train equipped with ECP brakes from certain existing provisions 
contained in part 232. FRA recognizes that part 232 requires compliance 
with other AAR standards not applicable to ECP brake systems. For 
instance, section 232.103(l) requires compliance with AAR Standard S-
469-47 (``Performance Specification for Freight Brakes''), which 
specifies a train's air brakes must respond to the decrease and 
increase of brake pipe pressure. However, ECP brake systems respond to 
an electronic signal, not brake pipe pressure, rendering S-469-47 
inapplicable to ECP brake systems. Accordingly, paragraph (d) excepts 
ECP brake systems from the requirements of AAR Standard S-469-47.
    In addition, GE requests that an exception be granted to certain 
stand-alone ECP brake systems to the AAR standards referenced in Sec.  
232.603(a)(1)-(6), where a suitable justification is provided. To this 
end, GE supplied proposed language to be inserted in a new paragraph of 
the final rule. While FRA agrees that the rules should provide for 
alternative standards, such flexibility is already provided in the 
introductory text to paragraph (a) of this section. If GE or any other 
potential brake manufacturer seeks to enter the marketplace with ECP 
brakes relying on standards other than AAR's, then it may submit 
alternative standards for FRA approval pursuant to Sec.  232.17. 
Accordingly, a new paragraph providing for exception from the 
incorporated AAR standards under suitable justification is unnecessary.
    Moreover, paragraph (e), provides further flexibility for the 
introduction of new technologies by providing for the possible 
exceptions from the requirements of subpart F of this part. BLET 
objects to exempting railroad operators from the requirements of 
subpart F. According to BLET, the pre-revenue service acceptance 
testing plan requirements set forth in subpart F provide data and other 
information that is necessary in order to safely regulate the 
technology. BLET also asserts that ``FRA does not propose that an 
exception be granted if testing or demonstration is conducted pursuant 
to an AAR standard that has been incorporated by reference after being 
subject to public review and comment. Rather, FRA proposes a lower 
requirement, that the testing/demonstration standard only be FRA-
recognized.'' (Emphasis removed.)
    Subpart F of part 232 contains general requirements for introducing 
new brake system technologies. More specifically, it requires a pre-
revenue acceptance testing plan. As FRA views existing ECP brake system 
technology to be a fully mature and well-tested technology, FRA 
disagrees with BLET on this issue and does not believe the provisions 
contained in subpart F are applicable to this existing technology. When 
subpart F was originally added to part 232, ECP brake technology was 
just beginning to gain prominence. Since that time, experience with the 
technology is far more developed and the technology is being used on 
many different trains around the world. Moreover, FRA believes that 
requiring ECP brake systems to initially and continually comply with a 
FRA approved standard and to be approved in accordance with AAR's 
approval procedures prior to being placed in service obviates the need 
for existing ECP brake system technology to comply with the 
requirements under subpart F. Accordingly, paragraph (d)(2) provides 
for an exception from the requirements contained in subpart F freight 
trains and freight cars equipped with existing ECP brake system 
technology that has been conditionally or finally approved by AAR in 
accordance with its approval procedures prior to the effective date of 
the final rule in this proceeding. FRA has limited the exception to ECP 
brake system technologies approved by AAR as of the effective date of a 
final rule to provide an incentive to the industry to move the 
introduction of the technology along in a timely fashion.
    In anticipation of future ECP brake technologies not currently 
contemplated within the scope of the incorporated AAR standards or not 
approved by AAR prior to the effective date of a final rule in this 
proceeding, paragraph (e) provides a procedure for introducing such 
technologies without going through the pre-revenue testing procedures 
contained in subpart F. Paragraph (e) permits a party interested in 
using new ECP brake system technologies or using an ECP brake system 
technology not approved by AAR prior to the effective date of the final 
rule in this matter to file a written request with the FRA seeking an 
exception from subpart F. FRA would expect any such request to include 
a comprehensive narrative statement and any evidence or facts 
justifying the exception of the new ECP brake technology from the 
testing and demonstration requirements of subpart F. The material 
should fully explain the testing or demonstration that will be 
conducted pursuant to an FRA-recognized industry standard and ensure 
that FRA is able to monitor such testing or demonstration. FRA's 
Associate Administrator may revoke the exception in writing for any 
reason after providing an opportunity for the affected party or parties 
to respond.
    GE supports the adoption of proposed Sec.  232.603(e), but 
recommends that ``FRA clarify that `new technology' does not include 
functionally equivalent replacement components, consistent with past 
practice.'' To this end, GE suggests adding a ``new technology'' 
definition to part 232, clarifying this interpretation in the preamble 
to the final rule, or including some additional clarifying language to 
paragraph (e), indicating that in lieu of an FRA recognized industry 
standard, testing or demonstration of new technologies should be 
performed in an environment with a safety equivalent to that in 
paragraph (a).
    Subpart F, as indicated in Sec.  232.501, already addresses the 
issue of new technology. FRA intends subpart F to continue to apply to 
the introduction of new ECP brake technologies. However, as previously 
mentioned, the purpose of paragraph (e) is to provide a more liberal 
alternative to subpart F for the demonstration and testing of new ECP 
brake technologies subject to the

[[Page 61528]]

discretion of the Associate Administrator on a case-by-case basis.
    GE's suggestion that the final rule include language requiring some 
type of adherence to an FRA approved ECP brake design standard misses 
the mark, since demonstration and testing may occur before any 
determination on design standards. Chronologically speaking, new ECP 
brake technologies can be tested and demonstrated under paragraph (e) 
``right out of the box.'' Then, if the testing or demonstration results 
in an ECP brake technology worthy of use in revenue service, the 
manufacturer of that technology may need to apply for FRA approval of 
that technology's new design standard under paragraph (a) or (f). It 
appears that GE may have mixed apples (testing and demonstration) with 
oranges (subsequently seeking FRA approval or new alternative design 
standards). During the testing and demonstration phase, design 
standards may not even be contemplated.

Section 232.605 Training Requirements

    The general training requirements for railroad and contractor 
employees performing the inspection, testing, and maintenance on brake 
systems under this part are contained in Sec.  232.203. Paragraph (a) 
of this section makes clear that all of the training requirements 
contained in Sec.  232.203 are applicable to ECP brake system 
operations and requires that all railroads operating ECP brake-equipped 
trains update their training, qualification, and designation programs 
to include provisions for these operations. Accordingly, FRA expects 
that railroad and contract personnel responsible for performing brake 
system inspections, tests, and maintenance on ECP brake systems be 
trained, tested, and designated in accordance with the requirements 
contained in Sec.  232.203 on the ECP brake systems they will be 
required to inspect, test, and maintain.
    Section 232.203(c) contains general requirements or elements which 
must be part of any training and qualification plan adopted by a 
railroad or contractor. FRA continues to believe that the elements 
contained in this section are specific enough to ensure high-quality 
training and broad enough to permit a railroad or contractor to adopt a 
training plan that is best suited to its particular operation. FRA 
continues to believe that the required training must provide employees 
with the necessary knowledge, skills, and abilities to perform the 
tasks required for the various types of brake systems the individual 
employee will be required to inspect, test, or maintain. Since FRA 
expects only a limited number of employees will be involved initially 
with ECP brake operations, a railroad or contractor may tailor its 
training programs only for those individuals involved with ECP brake 
systems, based on the tasks that employee will be required to perform 
on those specific systems.
    Section 232.203(e) contains recordkeeping requirements, the 
cornerstone for training requirements accountability. FRA continues to 
believe that such records should be kept for employees inspecting, 
testing, and maintaining ECP brake-equipped freight cars and freight 
trains. Such documentation will allow FRA to judge the effectiveness of 
the training provided and will provide FRA with the ability to 
independently assess whether the training provided to a specific 
individual adequately addresses the skills and knowledge required to 
perform the tasks that the person is deemed qualified to perform. 
Moreover, requiring these records will deter railroads and contractors 
from circumventing the training requirements and discourage them from 
attempting to utilize insufficiently trained personnel to perform the 
inspections and tests required by this rule. The required records may 
be maintained either electronically or on paper in the same manner as 
required under section 232.203.
    Paragraph (a) of this section also requires ECP brake operations to 
comply with Sec.  232.203(f), which requires that each railroad or 
contractor adopt and comply with a plan to periodically assess the 
effectiveness of its training program. To ensure that affected 
employees receive timely, effective training relating to ECP brake 
technology, UTU encourages FRA to audit the training functions that are 
required under Sec.  232.605. BLET agrees with UTU that FRA should 
reserve the right to audit such training programs and also proposes 
that training programs should be submitted to FRA for approval. AAR 
argues that the regulations should not require FRA approval of railroad 
training programs, since it would delay any changes that railroads 
might want to make.
    FRA currently performs audits on the training provided to railroad 
employees and contractors under Sec.  232.203. These audits examine the 
course content, learning objectives, testing methods, refresher 
training, and methods for ensuring the effectiveness of the training. 
FRA intends to continue to audit these training programs, including 
those for transportation and mechanical employees working with ECP 
brake operations. FRA does not require submission of training programs 
relating to conventional brake operations for FRA approval and does not 
see a need to require a submission of training programs relating to ECP 
brake operations. Accordingly, paragraph (a) extends this requirement 
to employees and contractors utilizing ECP brake operations.
    In addition, FRA continues to believe that railroads and 
contractors should periodically assess the effectiveness of their 
training programs that would include an assessment of the training 
related to ECP brake systems. FRA continues to believe that periodic 
assessments may be conducted through a number of different means and 
each railroad or contractor may have a need to conduct the assessment 
in a different manner. By referencing the requirements contained in 
Sec.  232.203, paragraph (a) requires that a railroad or contractor 
institute a plan to periodically assess its training program regarding 
ECP brake systems and permits the use of efficiency tests or periodic 
review of employee performance as methods for conducting such review. 
While FRA continues to believe that many railroads are capable of 
assessing the quality of the training their employees receive by 
conducting periodic supervisory spot checks or efficiency tests of 
their employees' performance, FRA also believes that on larger 
railroads the periodic assessment of a training program should involve 
all segments of the workforce involved in the training.
    Paragraph (b) of this section requires each railroad to 
appropriately amend or modify its operating rules to include safe train 
handling procedures when utilizing ECP braking systems. The developed 
operating rules should address the equipment and territory operated by 
the railroad. FRA insists that training on proper train handling 
procedures is essential to ensuring that locomotive engineers can 
properly handle their trains with or without ECP braking systems. FRA 
also continues to believe that it should not specify the specific 
knowledge, skill, and ability criteria that a railroad must adopt into 
its locomotive engineer training program. Given the considerable 
differences among railroads, FRA believes that each railroad is in the 
best position to determine what these criteria should be and what 
training is necessary to provide that knowledge, skill, and ability to 
its employees operating ECP brake-equipped trains. However, to ensure 
that the railroads and contractors provide and complete training, 
paragraph (c) of this section

[[Page 61529]]

requires each to adopt and comply with such criteria and training 
procedures and to incorporate them into its locomotive engineer 
certification program required by 49 CFR part 240. In the final rule, 
the text of paragraph (c) has been modified from the proposed text for 
clarification purposes.

Section 232.607 Inspection and Testing Requirements

    Except for transfer trains, the existing part 232 regulations 
require that each train operating with conventional brake systems 
receive a Class I brake test at its initial terminal and when certain 
events occur en route, a Class IA brake test every 1,000 miles, and 
Class III brake tests when the train consist continuity is interrupted. 
When operating as an extended haul train, the existing regulations 
require that a Class I brake test be performed at the train's initial 
terminal and at the train's 1,500-mile location, if operating further 
than 1,500 miles. In addition, under certain circumstances, cars and 
solid blocks of cars are required to receive either a Class I or a 
Class II brake test when they are added to a train. Each of these 
inspections is expensive and time-consuming.
    An ECP brake system's self-monitoring capabilities, fail-safe 
operation, and enhanced safety and performance provide railroads the 
ability to reduce the number of physical inspections on a train. In a 
letter dated January 26, 2007, filed in the related ECP brake waiver 
proceeding, BNSF and NS assert that ``[t]his performance-based 
technology supercedes [sic] the need for a scheduled inspection based 
on the amount of mileage that can be accumulated within the boundaries 
of the U.S. rail system.'' Docket No. FRA-2006-26435. Similarly, in the 
same docket, two ECP brake manufacturers, NYAB and Wabtec, state that 
when an ECP brake system enters ``Run'' mode, it provides diagnostics, 
continuous monitoring, and fault reporting to the locomotive display. 
According to the manufacturers, ECP brakes provide to the locomotive 
monitoring and feedback of the most important brake data and ``while it 
is not economically practical to monitor for all potential brake system 
failures, the increased level of monitoring and data reporting should 
allow safely extending the distance between inspection points, coupled 
with revised railroad procedures.'' Letter dated January 29, 2007, in 
Docket No. FRA-2006-26435.
    FRA is convinced that if a train is properly and thoroughly 
inspected, with all of the defective conditions being eliminated, then 
the train is capable of traveling distances much greater than 1,000 
miles between brake inspections. FRA's experience with extended haul 
trains over the last four years has established that trains with 
conventional pneumatic brake systems that are inspected by highly 
qualified individuals can safely operate up to 1,500 miles between 
brake inspections. FRA is not aware of any significant incident or 
derailment related to a brake or mechanical component failure on an 
extended haul train. Accordingly, in paragraph (h) of this section, FRA 
excepts trains operating exclusively in ECP brake mode from the Class 
IA and Class II brake inspections currently required under Sec. Sec.  
232.207 and 232.209. Paragraph (h) also excepts such trains from en 
route Class I inspections required under Sec.  232.205(a) and (b). 
Various comments were submitted relating to these exceptions of en 
route brake inspections. Since the exceptions in paragraph (h) 
substantially relate to the other paragraphs of section 232.607, we 
will discuss them as appropriate below.
    Paragraph (a) requires continued compliance with Sec.  232.205(c)--
which describes the tasks and requirements of a Class I brake test--for 
an ECP brake-equipped train at its initial terminal. To offset safety 
concerns regarding the exceptions to intermediate inspections, FRA 
requires that Class I brake tests performed at initial terminals on ECP 
brake-operated freight trains be performed by a qualified mechanical 
inspector (QMI). FRA continues to believe that a Class I brake test 
performed on a train at its initial terminal needs to be as in-depth 
and comprehensive as possible and, thus, should be performed by an 
individual possessing the knowledge not only to identify and detect a 
defective condition in all of the brake equipment required to be 
inspected, but also to recognize the interrelated workings of the 
equipment and the ability to trouble-shoot and repair the equipment. 
Similarly, FRA will require that all of the mechanical inspections 
required to be performed on a train at its initial terminal be 
conducted by an inspector designated pursuant to 49 CFR 215.11 in order 
to ensure that all mechanical components are in proper condition prior 
to the train's departure.
    FRA believes that the regulatory relief provided by paragraph (h) 
of this section is justified by the increased level of safety provided 
by ECP brake technologies and the requirement under paragraph (a) that 
a Class I brake test of car equipped with ECP brakes be performed by a 
QMI at its initial terminal. The exceptions provided in paragraph (h), 
in conjunction with the requirements of paragraph (a), would allow most 
trains equipped and operated with ECP brakes to travel to their 
destinations without stopping for any required intermediate 
inspections. The regulatory relief provided by this elimination of 
intermediate brake tests will significantly reduce operating and train 
delay costs.
    In its comments, UP argues that it is not necessary to utilize a 
QMI to perform a Class I brake inspection for movements up to 3,500 
miles. UP instead proposes that a qualified person (QP) perform Class 1 
inspections for movements up to 3,500 miles and that a QMI be required 
to perform inspections for longer movements. UP also notes that some 
trains operated with ECP brakes may originate at a point where a QMI is 
not present and where train crews containing a QP may perform the 
inspections. AAR also objects to the requirement in paragraph (a) that 
Class I inspections on ECP brake operated trains be performed by a QMI. 
AAR asserts that the QMI requirement is more stringent than the 
existing inspection requirements for trains equipped with conventional 
brakes. According to AAR, since a QMI is not present at all initial 
terminals, requiring a QMI to perform Class I brake inspections would 
discourage railroads from implementing ECP brake systems.
    BRC supports paragraph (a), stating that a QMI will help ensure the 
proper condition of ECP brake systems prior to departure. According to 
BRC, the leeway requested by AAR and the carriers to designate any 
person as qualified is premature and should not be considered until 
data can be provided showing that inspections by a QMI are unnecessary. 
BLET wholeheartedly concurs that each Class I brake test at an initial 
terminal should be performed by a QMI. According to BLET, the 
industry's objection is without merit and its two-standard proposal 
will produce an oversight nightmare.
    FRA agrees that, at this time, a two-tiered approach requiring a 
QMI for only some Class I inspections of ECP brake operations would 
result in significant monitoring and enforcement difficulties. In any 
event, as discussed in more detail below, the final rule will only 
allow freight trains and freight cars operated with ECP brakes to 
operate to their destination, not to exceed 3,500 miles, or up to 3,500 
miles for unit or cycle trains, before receiving an additional Class I 
brake inspection. Accordingly, there will be no ``longer movements'' 
between Class I brake

[[Page 61530]]

inspections that would allow for such a two-tiered approach.
    FRA also believes that the railroads' concerns relating to QMIs are 
without merit. FRA is not mandating the railroads to operate with ECP 
brake systems. Thus, if the railroads opt to implement such systems, 
they will need to adjust their operations accordingly. FRA already 
requires that a QMI perform Class I brake inspections on extended haul 
operations, which are limited to 1,500 miles between such inspections. 
By more than doubling the allowable distance, FRA insists that there is 
an even greater need to require that a QMI perform the Class I brake 
tests on operations traveling further than the currently allowed 
distances. Moreover, the railroads' concerns are further mitigated by 
the reduction of the number of Class I brake inspections required en 
route. Since a QMI is required for extended haul operations at only 
1,500 miles, it is unclear why AAR asserts that requiring the use of a 
QMI for ECP brake operations at 3,500 miles would be more stringent.
    In light of the significant benefits provided by the extension of 
allowable distance between Class I inspections to 3,500 miles, FRA does 
not believe that requiring a QMI to perform a Class I brake test on for 
an ECP brake operation would discourage implementation of this 
technology. The railroads have had little difficulty in ensuring QMI 
placement at facilities where Class I inspections are required on 
extended haul trains. Since the number of Class I inspections for an 
ECP brake operation will be less than those for a conventional brake 
operation in extended haul status, FRA does not foresee this 
requirement becoming sufficiently burdensome to effectively discourage 
the implementation of ECP brake system technology.
    In paragraph (b), FRA permits a train operating in ECP brake mode 
to travel up to 3,500 miles or to its destination, whichever is less, 
without any additional brake inspections. FRA believes that 3,500 miles 
allows virtually all ECP brake operated trains to travel to their 
respective destinations and provides for coast-to-coast travel. FRA 
also bases this mileage amount on the fact that foundation brake 
rigging and brake shoes will safety operate this distance and redundant 
intermediate inspections will not necessarily increase ECP brake system 
safety. Because many unit or cycle trains operate in a continuous loop 
with multiple loading and unloading locations, FRA has not included the 
destination of the train as a limiting factor for them. FRA is 
specifically making this distinction in order to prevent 
misinterpretation of the final rule as it relates to unit or cycle 
trains. As these trains may have multiple destinations, a strict 
application of destination could result in Class I brake tests being 
performed more frequently than intended by this final rule. Thus, in 
paragraph (b)(2), FRA treats unit and cycle trains differently by only 
requiring them to receive Class I brake inspections by qualified 
mechanical inspectors at least once every 3,500 miles. To be clear, 
under the final rule, no freight car or freight train equipped with ECP 
brakes would be allowed to travel more than 3,500 miles without 
receiving an additional Class I brake inspection by a qualified 
mechanical inspector.
    UTU encourages FRA to continue to consistently regulate the need 
for mechanical inspections and repairs. UTU asserts that the self-
monitoring feature of ECP brake equipment will have no effect on 
monitoring the mechanical functions of the freight car involved. 
According to UTU, ECP brake equipment will not monitor the condition of 
draft gear, brake shoes and hangers, coupling devices, safety 
appliances and grab irons, sill steps, springs, hopper doors, and the 
multitude of items a normal mechanical inspection is designed to check. 
UTU also asserts that a well trained and qualified mechanical inspector 
must not be removed from the safety equation because of advanced brake 
equipment that is only designed to improve the braking functions.
    BLET agrees, asserting that continuous monitoring capability is not 
quite as robust as FRA claims. According to AAR Standard S-4260, Sec.  
3.5.4.2, ``CCDs with a low or missing battery are counted as 
inoperable, but may not be displayed as inoperable until the total 
inoperable reaches less than 90% with trainline power OFF, or less than 
85% with trainline power ON, at which time a penalty brake application 
will be commanded.''
    TWU similarly argues that ECP braking does not have capabilities to 
perform the safety critical inspections indicated in FRA Technical 
Bulletin MP&E 98-59. In contrast, says TWU, ECP brake systems, as 
designed today, while having the ability to monitor certain aspects of 
the braking system, are not designed or equipped to monitor or detect 
defects on most equipment of a train braking system, in particular the 
complex brake rigging systems on the various types of equipment. 
According to TWU, 122 of the potential 127 brake-related defects (96%) 
are not detectable by ECP brake monitoring, making clear that the 
advantages of real-time monitoring are both overstated and misleading. 
BRC asserts that the ECP brake system technology cannot detect 65 
defects. Moreover, TWU states that FRA accident data indicates that the 
highest percentage of accidents are caused by brake-related mechanical 
defects not monitored by ECP brake systems.
    TWU further asserts that, in addition to a serious decrease in the 
level of safety based on brake system considerations, the reduction in 
inspection frequency will seriously decrease the level of safety as it 
relates to other mechanical systems and components. ``There should be 
no question that reducing the number of inspections will reduce 
opportunities to detect defective equipment. The reduction in frequency 
of inspections will also reduce opportunities for detecting bent, 
broken, loose, or missing safety appliances.'' TWU points out that FRA 
previously noted that ``railroads have not conducted the excellent 
initial terminal inspections that were contemplated in 1982, when FRA 
extended the 500-mile inspection interval to 1,000 miles.'' (Citing 66 
FR 4113 (Jan. 17, 2001)). TWU also claims that from January 2005 to 
July 2007, FRA accident data includes 24 derailments, 2 collisions, and 
3 other type of accidents resulting from mechanical defects, including 
``Tiedowns, doors, etc.'' TWU asserts that a comprehensive mechanical 
inspection is critically important, citing FRA Technical Bulletin MP&E 
98-57, which states, ``In order to conduct a proper Freight Car Safety 
Standards inspection, both sides of a car must be inspected.''
    AAR counters by questioning the significance of the brake rigging 
issue. According to AAR, from 1990 to 2006, ``the industry averaged 
five mainline accidents attributable to brake rigging down and 
dragging,'' identified by FRA cause code E07C. In addition, says AAR, 
U.S. railroads have 2,415 dragging equipment detectors placed across 
the country, which provide immediate radio feedback to train crews.
    FRA understands the concerns relating to the ECP brake system's 
self-monitoring limitations. FRA acknowledges that the ECP brake system 
developed under the applicable AAR design standards does not monitor a 
number of brake components. However, FRA believes that the labor 
unions' concerns, while relevant, do not take into account a number of 
factors. By requiring a QMI to perform a Class I brake inspection at 
initial terminal on an ECP brake operated freight train, FRA expects a 
reduction in all en route brake

[[Page 61531]]

defects. While performing a Class I brake inspection every 1,000 miles 
would provide more opportunities to detect defective equipment, FRA 
believes that such detection is limited to only obvious en route 
defects and that an inspection by a QMI at initial terminal will 
significantly reduce those defects. Based on its experience with 
extended haul operations, FRA feels that a good, quality inspection 
conducted by a QMI at the initial terminal will ensure that the items 
not monitored by the ECP brake system computer will safely travel a 
distance of 3,500 miles.
    For instance, in FRA's experience, en route Class IA brake 
inspections performed subsequent to Class I brake inspections performed 
at initial terminals by QPs have significantly higher defect ratios 
than those found at en route Class I brake inspections performed on 
extended haul operations that received an earlier Class I brake 
inspection performed by a QMI. As indicated in Technical Bulletin MP&E 
07-01, issued on April 3, 2007, in addition to the numerous regular 
inspections of extended haul operations, FRA performed several formal 
week-long audits at various locations to determine the railroads' 
compliance with the regulations and whether the quality of the 
inspections and tests would justify allowing the inbound inspections 
and record-keeping requirements to sunset in April of 2007. Most of the 
non-compliance identified during the audits included the railroads' 
inability to create, maintain, and produce the required records of 
defects found during the inbound inspections. It was also noted that 
the railroads occasionally failed to perform the necessary inspections 
on cars picked-up or set-out of extended haul trains on certain 
corridors. Actual defective conditions found at inbound inspections 
were minimal.
    FRA further believes that any remaining concerns relating to en 
route defects are offset by the ECP brake system's other significant 
safety benefits, including increased train control, a reduction of in-
train forces, shorter stopping distances, and its self-monitoring 
capabilities. Moreover, while some commenters provided data on what 
portion of brake parts remain unmonitored by the ECP brake system, they 
did not establish the relationship between those parts and the quantity 
and significance of defects found and derailments caused. FRA continues 
to believe that the ECP brake system monitors the more crucial aspects 
of the brake system.
    FRA believes that TWU's references to freight car inspection 
standards and guidance are misplaced. Although freight car defects may 
be incidentally detected during a Class I brake inspection, part 232 
does not govern such issues. Freight car defects should still be found 
when cars are added to a train en route and when they are otherwise 
required to receive a freight car inspection under part 215.
    FRA also continues to believe that ECP brake system self-monitoring 
is sufficiently robust. BLET's citation of Sec.  3.5.4.2 of AAR 
Standard S-4260 is misplaced. Section 3.5.4.2 sets the limit for the 
number of CCDs that report a low or missing battery. This does not 
reference or mean inoperable CCDs. All CCDs may remain operable when 
reporting low or missing batteries. The ECP brake system is powered by 
the train line and Sec.  3.5.4.2 only indicates that a back-up battery 
is necessary to cover for a temporary loss of power. Accordingly, to 
have a battery malfunction is not critical to train brake system 
operation. The purpose of the limitation in Sec.  3.5.4.2 is to 
eliminate the possibility of train line power disappearing when back-up 
battery power is unavailable.
    FRA recognizes and appreciates the use of additional wayside 
detection equipment, which AAR claims should reduce concerns relating 
to brake rigging malfunctions. However, FRA has not had an opportunity 
to review that equipment with respect to key attributes such as network 
coverage, sensitivity, and availability, and does not require use of 
that equipment. Accordingly, FRA does not feel comfortable relying on 
such unreviewed technology, which can be removed or modified at any 
time. However, FRA does recognize that the combination of on-board and 
wayside monitoring does provide an additional layer of safety for all 
train operations and that the use of such technologies may offer 
opportunities for further liberalization of visual inspections 
requirements in the future, given proper safeguards.
    UP believes that the allowable distance between brake inspections 
using ECP brake technology should be extended to 5,000 miles, instead 
of the 3,500 miles proposed by the FRA, in order to provide a 
significant incentive for the railroad industry to implement ECP 
braking in high-mileage services. For example, says UP, an intermodal 
train with ECP braking could be operated round-trip between Chicago and 
any of the west coast ports within such a 5,000 mile limit. According 
to UP, a 5,000 mile limit for ECP brake operated trains between Class I 
brake inspections with no intermediate inspections would enable the 
operation of sets of intermodal equipment in very high-mileage, high-
utilization, rapid turnaround service.
    To support its request, UP points to the success of a previous 
operation. In April 2004, UP operated a round-trip test train 4,400 
miles at a maximum speed of 74 MPH between Chicago and East Los 
Angeles. Based on that test's findings, UP and CSX jointly operated one 
pair of high-speed trailer on flat car (``TOFC'') trains for UPS 
between Kearney, New Jersey and East Los Angeles, California, a trip 
that took 59 hours. While there was some economic penalty involved in 
this dedication of equipment, UP says that it proved that locomotives 
and cars could be selected, maintained and operated in high-speed, 
high-mileage transcontinental freight service. In addition to the Class 
I inspections performed at Kearney and East Los Angeles, three Class 1A 
inspections occurred en route. UP asserts that a 3,500 mile limit would 
have been extremely valid and useful. According to UP, the elimination 
of 3 intermediate brake inspections of 40 minutes each could have 
potentially reduced overall one-way transit time by 120 minutes or 2 
hours. An ECP brake operated train resulting in the same running time 
as a conventional brake operated train would require a lower operating 
speed and would have reduced fuel consumption and exhaust emissions.
    AAR also supports a higher limit of 5,000 miles between Class I 
inspections, asserting that it would be more consistent with FRA's 
objective in this proceeding to facilitate conversion to ECP brake 
technology and provide regulatory relief without adversely affecting 
safety. According to AAR, a 5,000 mile limit would facilitate the 
efficient operation of intermodal trains in high-mileage, rapid turn-
around service. AAR claims that there is no technical justification for 
setting the limit at 3,500 miles instead of 5,000 miles given the 
capability of ECP systems to monitor the critical functions of the air 
brakes.
    BRC supports paragraph (b), stating that the proposed distance of 
3,500 miles is ``more than generous.'' According to BRC, AAR and the 
carriers have not provided real evidence that the safety benefits 
offered by ECP brake technologies will offset any of the numerous 
safety risks that the technologies cannot detect over long distances. 
BRC asserts that without such data, the railroads' request for a 5,000 
mile allowable distance between Class I

[[Page 61532]]

brake inspections should not be considered at this time.
    After consideration of all the comments provided and based upon 
existing information available to the agency, FRA is not convinced that 
the allowable distance for ECP brake operations should exceed 3,500 
miles between Class I brake inspections. FRA believes that an extension 
of the allowable distance to 3,500 miles is justified by the increased 
safety promised by ECP brake technology and provides a suitable 
incentive for railroads to implement and use ECP brake technology. 
While FRA supports the railroads' interest in operational and fuel 
efficiency, FRA believes the extension to 3,500 miles provides such 
efficiency. Moreover, based on its experience and the lack of safety 
data supporting a 5,000 mile allowable distance between Class I brake 
inspections for ECP brake operations, FRA does not feel comfortable 
further extending the allowable distance limit at this time. The only 
example provided by UP was a 4,400 mile joint operation with CSX that 
received three Class 1A brake inspections while en route. Although such 
demonstrations, with proper documentation, are helpful, acquisition of 
further experience will be needed to achieve confidence in less 
restricted longer hauls.
    AAR and UP also commented on FRA concerns relating to brake shoe 
wear. AAR claims that brake shoe wear should not be a concern in ECP 
brake operations moving with up to 5,000 miles between brake 
inspections. According to AAR, ECP brakes reduce brake shoe wear and 
the AAR condemning thickness of 3/8'' provides an ample safety margin 
over a 5,000 mile run. UP stated that it would consider establishing 
its own minimum brake shoe criteria to properly configure the train for 
the entire round trip.
    FRA appreciates UP's offer to consider establishing its own minimum 
brake shoe criteria for trips involving more than 3,500 miles between 
Class I inspections. However, FRA cannot rely on that voluntary offer, 
which would apply only to one railroad and could be withdrawn at any 
time. In any event, FRA continues to find cars with brake shoes that 
are well past the brake shoe replacement condemning limits for trains 
equipped with conventional brakes. On some trains not permitted to 
travel beyond 1,500 miles between Class I brake inspections, brake 
shoes have been found worn into the backing plate. Accordingly, FRA 
does not feel comfortable at this time permitting trains to operate 
more than 3,500 miles between comprehensive brake inspections until 
more data can be obtained to support such an initiative.
    Currently, no extended haul train is permitted to travel more than 
1,500 miles without receiving another comprehensive brake inspection. 
For trains equipped with ECP brakes, FRA more than doubles the 
currently allowed distance to 3,500 miles. FRA acknowledges that in the 
related proceeding, Docket No. FRA-2006-26435, the Safety Board 
provided for the movement of trains equipped with ECP brakes up to 
3,500 miles. During the pendency of this rulemaking, FRA closely 
monitored those trains' operations and collected information on the 
equipment operated in those trains. FRA reserved the right to make 
appropriate modifications in the final rule based on any further data 
then available. Since cars equipped with ECP brakes have only operated 
for a limited time since the recent issuance of the waiver under Docket 
FRA-2006-26435 and are not typical of those in the general fleet with 
respect to the age of components, FRA has not received any data 
convincing it to modify the rule as proposed in the NPRM. Accordingly, 
paragraph (b) provides for a train operated with ECP brakes to travel 
to its destination, not to exceed 3,500 miles, between brake 
inspections.
    FRA acknowledges, however, that notwithstanding the proposed 
allowance of a train equipped and operated with ECP brakes to travel up 
to 3,500 miles without an additional brake inspection, instances exist 
where certain trains would require the performance of a Class I brake 
inspection en route. For instance, the regulations governing operations 
utilizing conventional brake systems require that certain tests be 
performed when a car is off a source of compressed air for more than 4 
hours. FRA acknowledges that an ECP brake-equipped train's on board 
diagnostics reduce concerns relating to cars remaining off air for 
extended periods of time. Accordingly, in this proceeding's NPRM, FRA 
proposed to extend the allowable off-air period to 24 hours. For the 
purposes of organizational clarity, the final rule includes the off-air 
requirement in paragraph (b).
    BLET opposes the 24-hour off-air limitation. According to BLET, the 
allowable off-air period should remain at 4 hours and the Class I brake 
inspections required on ECP brake operated trains after an off-air 
period exceeding 4 hours should be performed by a QMI, not a qualified 
person.
    AAR, UP, NYAB, and Wabtec all assert that the allowable off-air 
period should be extended to 120 hours (five days). According to UP, 
providing for a 120 hour off-air period will be especially relevant for 
equipment such as grain hoppers and coal cars in unit train operations 
serving grain elevators or electrical generating plants, where intact 
train sets may be parked for several days awaiting either loading or 
unloading. UP further asserts that the self-diagnostic capability of 
ECP braking systems, with results displayed in the locomotive cab upon 
powering-up the ECP train line cable, will enable this to occur without 
compromising safety. Moreover, being off-air for up to 120 hours should 
not result in any measurable or visually identifiable deterioration of 
the non-ECP brake components in the braking system. The ECP brake 
manufacturers see no technical or safety issues with extending the 
allowable off-air period to 120 hours and state that, when the ECP 
brake system initializes, self testing will verify the car is ready for 
service, including the battery charge status.
    FRA believes that an expansion of the time allowed off-air for ECP 
brake operations is justified based on the capabilities of ECP brake 
systems or the combination of those capabilities and protection against 
vandalism. Accordingly, FRA will require under paragraph (b) that an en 
route Class I brake inspection be performed by a qualified person if a 
train operating in ECP brake mode is off air for more than 24 hours. 
However, if such a train is located within an ``extended-off-air 
facility,'' as more fully described below, the time limit is extended 
to 80 hours. FRA continues to believe that dangers, although reduced, 
remain when an ECP brake-equipped train remains off air for too long. 
Thus, the final rule retains the proposed off-air time limit of 24 
hours since cars moving in service generally have a dwell time of 24 
hours or less and this limit provides sufficient flexibility while 
allowing the industry to move equipment without impacting timely 
inspections and maintaining an acceptable level of safety.
    In light of the comments filed in this proceeding and upon further 
internal deliberation, FRA believes that extending the off air 
requirement to 80 hours for trains left in extended-off-air facilities 
effectively ensures the safe operation of ECP brake systems while 
providing suitable flexibility for certain operations. FRA recognizes 
that additional flexibility may be reasonable when a freight train or 
freight car operated with ECP brakes is left at a protected location 
controlled by the shipper or consignee and not accessible to the 
railroad or potential vandals. For instance, a train or car equipped 
with ECP brakes may be dropped off at a

[[Page 61533]]

consignee's plant on one morning and will be inaccessible to the 
railroad for several days, such as over the weekend or a holiday.
    Since railroads may not be able to pick up the equipment from the 
extended-off-air facility immediately when it opens, FRA believes that 
some additional operational flexibility should be provided during this 
time. FRA also recognizes that providing a limited number of hours 
after the opening of the facility on a given day may result in 
enforcement issues when attempting to determine the actual number of 
hours the train may have been off air or in the facility.
    Accordingly, the final rule provides for the retrieval of the 
equipment up until the close of business on the fourth day it is at the 
facility. Assuming the extended-off-air facility maintains an 8-hour 
work day, this would provide a time span of up to 80 hours in that 
facility. For instance, FRA believes that the 80-hour time differential 
between the facility opening on Friday morning and closing on the 
directly subsequent Monday provides suitable flexibility for such 
operations.
    From a safety standpoint, FRA believes that an 80-hour off-air 
limitation is justified if the train is left in an extended-off-air 
facility. FRA previously expressed its belief that in certain 
circumstances the length of time that equipment is removed from a 
source of compressed air can impact the integrity and operation of the 
brake system on a vehicle or train. Particularly, FRA indicated that 
the potential for vandalism may be high due to the location where 
equipment is left standing. See 66 FR 4122 (Jan. 17, 2001). While a 
train remains off air for any period of time, it may be unattended, 
providing an opportunity for vandalism. FRA continues to believe that 
the potential for vandalism is one of various factors justifying an 
off-air limitation.
    If steps are taken to substantially reduce the potential for 
vandalism, however, FRA believes additional flexibility is justified. 
Thus, if a freight train or freight car operated with ECP brakes is at 
an extended-off-air facility and is not accessible to the carrier or 
potential vandals, FRA believes an 80-hour off-air limitation is 
warranted. For the purposes of this final rule, an extended-off-air 
facility is a private location controlled and access-restricted by a 
sole shipper or consignee. The location must be suitably designed to 
effectively and significantly reduce the possibility of vandalism. For 
instance, a suitably fenced-in power plant with sufficient entry-
prohibitive security would suffice.
    Also for the purposes of this final rule, the times the equipment 
enters and departs the extended-off-air facility shall presumptively be 
when the off-air time period begins and ends, respectively. Otherwise, 
enforcement would be difficult, since FRA would be unable to ascertain 
when a train or car went off and on air within the restricted area. 
This presumption, however, may be rebutted with evidence showing when 
the equipment actually went off air and when it was reconnected to an 
air source.
    For trains operating in ECP brake mode and off air for more than 24 
hours, the Class I brake inspection may be performed by a qualified 
person. FRA acknowledges that while a qualified mechanical inspector 
must be stationed at each route's initial terminal, it is not 
reasonable or feasible at this time to require one at each location a 
train operating in ECP brake mode is off air for more than 24 hours, 
because many of those locations will be unpredictable. Requiring a 
qualified mechanical inspector at each point a train is off air for 
more than 24 hours would likely result in a significant disincentive 
for a railroad to equip its trains with ECP brake systems.
    FRA also intends for these requirements to apply to trains 
operating in ECP brake mode, located at their initial terminals, and 
off air for more than 24 hours without the train consist being changed. 
In other words, under paragraph (b), if a qualified mechanical 
inspector performs a Class I brake test on a train operating in ECP 
brake mode at the train's initial terminal and that train then goes off 
air for more than 24 hours before departing from the initial terminal, 
another Class I brake test must be performed prior to departure. 
However, FRA believes that requiring a qualified mechanical inspector 
at an initial terminal to perform a Class I brake test twice on the 
same train with unmodified consist would be unnecessary and possibly 
too onerous. FRA does not expect this situation to occur often, since 
trains rarely sit off air for more than 24 hours after receiving a 
Class I brake test. The train will not have traveled at all, but if the 
same train spent 24 hours off air after traveling 500 miles, a Class I 
brake test by a qualified person would suffice. Thus, the second Class 
I brake test may be performed by a qualified person.
    While FRA recognizes that additional experience with ECP brakes may 
show that brake tests are no longer needed after being off air, FRA 
does not believe the evidence suffices to prove that proposition today. 
FRA's intent in providing these narrow expansions of the existing 4 
hour rule is not to alter the tenet that equipment should be retested 
when it is removed from a source of compressed air for any lengthy 
period of time. The 24 and 80 hour off-air requirements apply to any 
ECP brake operated train, regardless of whether it is a unit or cycle 
train, and replace the 4 hour off-air requirement under Sec.  
232.205(a), which is excepted under paragraph (h), as previously 
indicated. The 24 hour allowance gives railroads the flexibility to 
perform switching operations while ECP brake-equipped trains are en 
route and provide flexibility to efficiently move cars from one ECP 
brake-equipped train to another when necessary, yet retain the concept 
that such cars or trains be retested when left disconnected from a 
source of compressed air for longer periods of time. The 24 and 80 hour 
time frames are also consistent with the general dwell time that cars 
experience while en route and while in extended-off-air facilities. FRA 
further believes that a limitation on the amount of time that such 
equipment may be off air is necessary for ensuring that such equipment 
is inspected in a timely and predictable manner. If no time limit were 
imposed or if too much time was permitted, an ECP brake-equipped car 
could lawfully sit for days or weeks at various locations while en 
route to its destination and be switched in and out of numerous trains 
without ever being reinspected. Such an approach would drastically 
reduce the number of times that the brake systems on such equipment 
would ever be given a visual inspection from what is currently required 
and, in FRA's view, would seriously degrade the safety of the trains 
operating with such equipment in their consists.
    Furthermore, if an ECP brake-equipped train was allowed to be off-
air for an excessive amount of time, it would be virtually impossible 
for FRA to ensure that equipment is being properly retested as it would 
be extremely difficult for FRA to determine how long a particular piece 
of equipment was disconnected from a source of compressed air. In order 
to make such a determination, FRA would have to maintain observation of 
the equipment for days at a time. Consequently, a 24-hour limit on the 
amount of time equipment can be disconnected from a source of 
compressed air as it maintains current levels of safety and provides an 
enforceable and verifiable time limit that FRA believes provides the 
railroads some additional benefit over what is currently required both 
in terms of

[[Page 61534]]

operational efficiency and cost savings. An FRA inspector could monitor 
a 24 hour off-air period by merely returning to the same accessible 
location the very next day. FRA believes that a limited extension to 80 
hours off air at extended-off-air locations provides for further 
flexibility where the safe custodianship of the equipment is ensured 
and where the amount of off-air hours can be easily determined.
    In paragraph (c), the final rule retains the proposed requirement 
that a Class I brake test be performed by a qualified person on each 
ECP brake-equipped car added en route to a train operating in ECP brake 
mode. However, FRA believes that this requirement may not be necessary 
if other safety precautions are taken. Thus, the final rule will not 
require a Class I brake test on such cars when being added to a train 
operating in ECP brake mode if the car had previously received a timely 
and proper Class I brake test by a QMI, the train crew is provided 
documentation of that test, the car has not been off air for more than 
what is allowed under the final rule, and a proper visual inspection is 
performed prior to use or departure.
    Accordingly, if an ECP brake-equipped car has received a Class I 
brake test by a qualified mechanical inspector within the last 3,500 
miles, documentation of that test is provided to the train crew, the 
car has not been off air for more than the amount of time allowed by 
this final rule, and a proper visual inspection is conducted when the 
car is added to the train, FRA believes that it would be unnecessary to 
require an additional Class I brake test when that car is added to an 
en route train operating in ECP brake mode. However, to account for 
those cars that have not received a Class I brake test by a qualified 
mechanical inspector within the last 3,500 miles and that will be added 
to a train operating in ECP brake mode, paragraph (c) requires a new 
Class I brake test under those circumstances. Paragraph (c) is 
necessary in light of paragraph (h) excepting compliance with section 
232.205(b). Unless a car operating in ECP brake mode is off air for 
more than the allowable time frame under this final rule, it would not 
require a Class I brake test when it is added to a new train, since the 
rules contemplate that the car would have already received a Class I 
brake test within the previous 3,500 miles or at its initial terminal. 
The documentation would be required to ensure that a Class I brake test 
by a qualified mechanical inspector will be performed every 3,500 
miles. Under paragraph (c), any ECP brake-equipped car being added to a 
train operating in ECP brake mode would require a Class I brake test 
when the car has been off air for more than the allowable amount of 
time for the same reasons stated above concerning paragraph (c).
    FRA believes that a visual inspection of the car's brake components 
is a suitable replacement for an additional Class I brake test when the 
car or cars added in these circumstances have received a Class I brake 
test by a qualified mechanical inspector within the last 3,500 miles. 
The visual inspection required by paragraph (c) could be performed 
while the car is off air and in conjunction with the mechanical 
inspection required under part 215 whenever a car is added to a train. 
Thus, FRA believes that the visual inspection required by paragraph (c) 
does not impose any significant burden on the railroads as they are 
already required to visually inspect the mechanical components on any 
car added to a train under part 215. FRA also acknowledges that the 
brake systems on cars not equipped with ECP brakes would be inoperative 
after being added to a train operating in ECP brake mode. To ensure the 
safe operation of such equipment and trains, paragraph (c)(2) of the 
final rule requires that cars equipped solely with conventional brake 
systems and placed into trains operating in ECP brake mode also be 
given a visual inspection to ensure their safe operation and to ensure 
compliance with Sec.  232.15 when added to the train.
    In the event that a car would be required to receive a Class I 
brake test when added to an en route train, the final rule requires 
that the Class I brake test be performed by a qualified person for the 
same reasons stated in the above analysis. To be clear, although any 
car added to a train en route may receive a Class I inspection by a 
qualified person, the entire train's travel distance is limited to its 
destination or the distance remaining until the train or any individual 
car picked up en route has traveled 3,500 miles since its last Class I 
brake inspection performed by a qualified mechanical inspector, 
whichever is less. A Class I brake inspection by a qualified person 
does not reset the mileage clock for the entire train.
    FRA also sought comments on the application of a Class III brake 
test to an ECP brake system. NS expressed its concern that the 
specifications outlined under Sec.  232.211(c) cannot be met. According 
to NS, that section relates to the increase and decrease of brake pipe 
pressure as indicated by a rear end gauge or electronic telemetry 
device. ECP braking systems provide for the constant charge of the 
brake pipe and this rear end value will not reflect the air pressure 
differential currently experienced with conventional braking systems. 
NS asserts that since those brake reductions will be made 
electronically rather than pneumatically from the locomotive, the end 
of train device will not display a change in brake pipe pressure to 
indicate a brake application.
    A freight train operating with conventional brakes receives a Class 
III brake test at the location where its configuration is changed in 
order to ensure the integrity of the train line. Basically, a Class III 
brake test ensures that the train brake pipe is properly delivering air 
to the rear of the train. Upon further review and consideration of the 
comments, FRA recognizes that for an ECP brake system, a traditional 
Class III test may not be completely applicable.
    Accordingly, paragraph (d) requires a Class III brake test for ECP 
brake operated trains with certain modifications. Paragraph (d)(1) 
includes the locations and events that require the performance of a 
Class III brake test on an ECP brake operated train. Accordingly, Sec.  
232.211(a) is being excepted under paragraph (h). Paragraph (d)(2) 
recognizes that the Class III brake test requirements relating to using 
EOT devices to observe brake pipe pressure changes at the rear of the 
train is not practical with ECP brake operations. The diagnostic 
capabilities of ECP brake systems will identify defective brake 
conditions on all of the train's cars, including the rear car. Under 
the applicable AAR standards, this information should automatically 
appear on the ECP brake system monitor.
    Paragraph (e) includes requirements relating to the sequential 
initialization of ECP brake operated trains. The applicable AAR 
standards--as defined in Sec.  4.2.3 and its subsections in AAR 
Standard S-4200 and in Sec.  5.2 of AAR Standard S-4230--provide 
procedures for the initialization of the ECP brake system. The 
standards provide for the ECP brake system's initialization to occur by 
car either randomly or sequentially. FRA believes that the sequential 
initialization of an ECP brake system provides the train crew with the 
exact placement of the cars in the train, which can help satisfy the 
consist comparison requirements also under this paragraph. An 
electronic version of the train consist displayed on the locomotive 
cab's ECP brake system monitor can also help during emergencies and 
when identifying the exact location of cars with brake problems.

[[Page 61535]]

    Due to the possibility of an ECP brake system not recognizing the 
inclusion of cars not equipped with ECP brake systems, paragraph (e) 
requires the train crew compare the total number of cars indicated by 
the train consist documentation with the total number of cars 
identified by the ECP brake system.
    Under the existing regulations, tests and inspections include brake 
pipe service reductions and designate specific psi specifications. In 
the NPRM, FRA indicated that modifications to the brake pipe reduction 
standard are appropriate to reflect the technological differences 
between ECP brakes and conventional pneumatic brakes. Brake pipe 
pressure in ECP brake-equipped trains remains important, since these 
trains still employ a pneumatic emergency brake application for safety 
back-up purposes and rely on the pneumatic parts when used in an 
overlay system. Accordingly, for trains equipped with ECP brake 
systems, FRA proposed to replace the existing brake pipe service 
reductions and increases with an alternative requirement for an 
electronic signal that provides an equivalent application or release of 
the brakes. FRA indicated that any alternative test procedures must 
include, at a minimum, either the electronic equivalent to each 
existing test's brake pipe reduction requirements or the equivalent of 
a full service brake pipe reduction initiated by an electronic signal.
    FRA sought comments on this proposal, including the appropriate 
type of alternative test. In light of how the brake pipe's use in an 
ECP brake train will be limited to charging brake air reservoirs, FRA 
sought comments on how the existing regulatory brake pipe leakage 
limits should be modified, if at all, for ECP brakes and whether 
changes in the leakage requirements will affect the pneumatic backup 
capability of the ECP brake system. In addition, FRA indicated that 
comments should address the need to include the specific electronic 
reduction that is to be made on ECP equipped trains during the required 
brake tests and what type of electronic signals would be suitable 
equivalents to the currently mandated 20-psi and 15-psi brake 
reductions.
    NS asserts that compliance with the brake pipe service reduction 
requirements cannot be met with ECP brake operations. For instance, NS 
notes that Sec.  232.211(c) relates to the increase and decrease of 
brake pipe pressure as indicated by a rear end gauge or electronic 
telemetry device. According to NS, ECP braking systems provide for the 
constant charge of brake pipe and this rear end valve will not reflect 
the air pressure differential currently experienced with conventional 
braking. Since those brake reductions will be made electronically 
rather than pneumatically from the locomotive, NS says that the ECP EOT 
device will not display a change in brake pipe pressure to indicate a 
brake application.
    On the other hand, BLET believes that there is a need to include 
both the specific electronic reduction that is to be made on ECP brake-
equipped trains during the required brake tests and a determination of 
what type of electronic signals would be suitable equivalents to 20-psi 
and 15-psi brake reductions mandated in part 232. BLET believes that 
the appropriate alternative would be one that correlates a particular 
psi reduction with its digital percentage equivalent. According to 
BLET, assuming that the train brake command scale is relatively linear, 
a 20 psi reduction represents approximately 77 percent of a full 
service reduction and a 15 psi reduction represents approximately 58 
percent of a full service reduction. Regarding brake pipe leakage, BLET 
urges FRA to retain current regulatory limits, since overlay and 
emulator systems permit conventional pneumatic operations. Furthermore, 
AAR Standard S-4200, Sec.  3.8, states that a ``pneumatic backup (PB) 
system shall be required on each car to apply emergency brake cylinder 
pressure in the event of a vented brake pipe.'' Establishing different 
brake pipe leakage limits, says BLET, is a prescription for confusion 
and unnecessary risk.
    AAR supports retaining the existing brake pipe leakage limits. NYAB 
and Wabtec also commented, suggesting that, in order to maintain the 
same functionality as with conventional brakes, an ECP train brake 
command should be applied in the range of 80 to 85 percent to address 
both the 15 and 20 psi reduction. According to the brake manufacturers, 
the brake pipe continuity can be verified by a procedure that requires 
watching the end of train brake pipe pressure as reported to the 
locomotive.
    FRA believes that an electronic or digital equivalent of the 
current brake pipe reduction test should apply during a Class I brake 
test on ECP brake operations. Since the brake manufacturers are in the 
best position to determine that equivalent metric, FRA will rely on the 
percentages proposed by NYAB and Wabtec. Accordingly, paragraph (f)(1) 
will remain as proposed with the understanding that the electronic 
equivalents of 80 percent and 85 percent ECP train brake command shall 
replace the 15 and 20 psi reductions, respectively, when conducting 
brake tests on ECP brake systems.
    Further recognizing the disparity between the requirements of part 
232 and the reality of ECP brake technology, paragraph (f) addresses 
piston travel requirements as they apply to ECP brake operations. 
Paragraph (f) modifies certain regulatory requirements related to 
piston travel limits and adjustments during applicable brake 
inspections under part 232. For instance, under Sec.  232.205(c)(5) a 
person performing a Class I brake test must ensure that piston travel 
be adjusted to specific distances. Although FRA believes that ECP brake 
operations require specific piston travel limits, FRA recognizes that 
the piston travel limits contained in Sec.  232.205(c)(5) may not be 
fully applicable to ECP brake systems. Since the ECP brake system 
precisely measures and maintains the amount of brake cylinder pressure 
for each specified brake application, piston travel tolerances for ECP 
brakes may not require the level of specificity as those for 
conventional pneumatic brake operations. Further, FRA acknowledges that 
a ``one-size-fits-all'' requirement for ECP brake system piston travel 
may not be ideal or applicable. AAR and BLET support paragraph (f)(1). 
BLET believes that paragraph (f) adequately addresses the subject of 
nominal piston travel and AAR believes that manufacturers should be 
permitted to establish alternative minimum piston travel ranges.
    Accordingly, paragraph (f) provides flexibility for the piston 
travel limits in Sec.  232.205(c)(5) as they apply to ECP brake 
systems. While FRA limited this flexibility in the proposed rule to 
minimum piston travel limits, the final rule provides this flexibility 
to all piston travel limits in part 232 as applicable to ECP brake 
operations. FRA anticipates that recommended piston travel limits for 
each ECP brake system will be determined by the car's design, weight, 
and engineered brake ratio.
    The final rule requires that such limits be stenciled or marked on 
the car or badge plate in the same fashion FRA requires for systems and 
equipment subject to Sec.  232.103(g). FRA believes that requiring the 
affixation of a legible decal, stencil, or sticker or the equipping of 
a badge plate displaying the permissible brake cylinder pistol travel 
ranges will effectively communicate the acceptable ranges to train crew 
members and will ensure the proper operation of a car's brakes after 
being inspected. FRA believes that this information is essential in 
order for a person to properly perform the required brake inspections. 
Ultimately, all

[[Page 61536]]

modifications provided under paragraph (f) apply to part 232 as it 
relates to ECP brake operations.
    In the preamble to the NPRM, FRA anticipated that placing a car 
equipped with conventional pneumatic brakes into an ECP brake-equipped 
train may be awkward at best, requiring use of an electrical ``run 
around cable'' and manual inputs into the locomotive control system. In 
a letter dated February 5, 2007, which is part of the docket to this 
proceeding, AAR provided a list of recommended ``enhancements and 
modifications'' to Part 232 to facilitate the use of ECP brakes. In 
that communication, the AAR stated that railroads ``do not plan to 
commingle non-ECP equipment in stand-alone ECP trains.'' However, FRA 
expressed its belief that foreseeable--though rare--circumstances 
should be considered in this rulemaking to the extent possible. 
Accordingly, FRA sought comments and information on what requirements 
may be necessary to safely allow the addition of cars equipped with 
conventional pneumatic brakes into a train equipped with ECP brakes, 
including, but not limited to, the placement and securement of cables 
along cars equipped with conventional pneumatic brakes to preserve 
their continuity between non-consecutive cars equipped with ECP brakes 
and the appropriate placement in the consist of cars equipped with 
conventional pneumatic brakes.
    AAR asserts that the railroads can wrap ECP brake cables around the 
conventionally braked cars. BLET urges FRA to adopt a standard similar 
to that set forth in Sec.  229.89(a), which requires that jumpers and 
cable connections between locomotives shall be located and guarded to 
provide sufficient vertical clearance.
    In response to the comments provided, FRA has added paragraph (g) 
to ensure the safe handling of train line cables for the same reasons 
Sec.  229.89 addresses jumpers and cables. Considering the unique 
logistical and operational issues relating to train line cables--
including their placement between and throughout cars and the potential 
need to somehow bypass cars equipped with only conventional brakes--FRA 
has added additional requirements. For instance, the final rule intends 
to ensure that the train line cable does not drag, catch, or snag and 
does not interfere with any human or train movements. Paragraph (g) 
also provides the same electrical related protections provided under 
Sec.  229.89(a).

Section 232.609 Handling of Defective Equipment With ECP Brake Systems

    In Sec.  232.609, FRA modifies certain part 232 requirements as 
they apply to freight cars and freight trains equipped with ECP brake 
systems and hauling defective equipment. In particular, for such trains 
and cars, paragraph (k) excepts certain existing requirements and 
paragraphs (a) through (j) provide alternative requirements.
    Under Sec.  232.15 and 49 U.S.C. 20303, railroads may be immune to 
civil penalty liability if a car or train with certain inoperative or 
defective equipment is hauled under certain conditions. Section 
232.15(a) contains various parameters that must exist in order for a 
railroad to be deemed to be hauling a piece of equipment with defective 
brakes for repairs without civil penalty liability. The vast majority 
of the requirements contained in Sec.  232.15(a) are a codification of 
the existing statutory requirements contained in 49 U.S.C. 20303 and 
are based on the voluminous case law interpreting those provisions. The 
statutory provisions require hauling defective equipment only to the 
nearest place where necessary repairs can be made and require 100 
percent operative brakes from any location where such repairs can be 
effectuated. Thus, because many locations where trains are initiated 
with any frequency are also locations where brake system repairs can be 
effectuated, the statutory provisions essentially require 100 percent 
operative brakes from a train's initial terminal. FRA continues to 
believe that the proposed requirements relating to the movement of 
equipment with defective ECP brakes are generally consistent with the 
statutory requirements, ensure the safe and proper movement of 
defective equipment, and clarify the duties imposed on a railroad when 
moving such equipment.
    As indicated above, in light of the increased safety levels 
produced by ECP brake systems, FRA has decided to use its discretionary 
authority under 49 U.S.C. 20306 to provide an exception from the rigid 
statutory provisions and modify the regulations governing the movement 
of defective equipment concomitant to 49 U.S.C. 20303. Under certain 
circumstances, the statute and related regulations provide immunity 
from civil penalty when a train with defective equipment is hauled to 
the nearest location where the necessary repairs can be made, 
regardless of direction. Since a train equipped with an ECP brake 
system and operating in ECP brake mode with a minimum percentage of 
cars with defective ECP brakes is capable of traveling safely for long 
distances, the final rule permits the operation of such a train and any 
cars with defective ECP brakes to its destination, not to exceed 3,500 
miles, for repair without incurring a civil penalty.
    While FRA believes that a train operating in ECP brake mode with 
some ineffective or inoperative ECP brakes may continue to travel 
safely, concerns remain if such a train includes cars with defective 
non-brake or conventional pneumatic brake equipment. ECP brake systems 
do not monitor that equipment and do not otherwise reduce the danger of 
traveling with such defects. FRA is cognizant of the need for 
logistical flexibility to efficiently accomplish repairs during the 
transition from conventional pneumatic to ECP brake operations. 
Furthermore, requiring strict adherence to the statutory requirements 
related to moving defective equipment ignores the safety features 
provided by ECP brake system technology and could potentially stifle 
the industry's ability and desire to implement the technology. The 
final rule invokes this statutory and regulatory relief in paragraph 
(k) of this document, by excepting application of Sec. Sec.  
232.15(a)(2), (a)(5), (a)(6), (a)(7), (a)(8), and 232.103(d)-(e) as 
applied to ECP brake operated trains.
    Under Sec.  232.103(d), no train may depart a location where a 
Class I brake test is required to be performed on the entire train with 
any inoperative or ineffective brakes. FRA recognizes that some trains 
operated with ECP brakes may need to include cars equipped with 
conventional brakes, especially while a fleet makes the transition to 
ECP brake technology. Under such and similar circumstances, FRA 
believes that some leeway needs to be provided for trains operating in 
ECP brake mode. To provide for such flexibility, and in light of ECP 
brake operations' higher levels of safety, including shorter stopping 
distances and constant real-time monitoring of the brake system, FRA 
believes that a train operated with ECP brakes may depart its initial 
terminal with less than 100% operative brakes. However, FRA also 
acknowledges that allowing a car to depart an initial terminal with 
inoperative or ineffective brakes may permit such equipment to move 
indefinitely without receiving the proper repairs. For this and other 
reasons noted below, FRA believes there needs to be a limit on the 
types and number of cars that may depart in a train operating in ECP 
brake mode from a location where the train is required to receive a 
Class I brake test.

[[Page 61537]]

    Per paragraph (k), a train operating in ECP brake mode is excepted 
from Sec.  232.103(d), which requires that one-hundred percent of the 
brakes on a train shall be effective and operative prior to use or 
departure from any location where a Class I brake test is required to 
be performed on the train pursuant to Sec.  232.205. For ECP brake-
equipped trains, this requirement is replaced by the ninety-five 
percent effective and operative brake requirement contained in 
paragraph (a). FRA believes that this provides flexibility from the 
rules governing conventional pneumatic braking systems while rendering 
a sufficient brake failure buffer between departing an initial terminal 
with ninety-five percent effective and operative brakes and 
experiencing a penalty stop upon reaching eighty-five percent effective 
and operative brakes, as required under paragraph (d) of the final 
rule.
    The one-hundred percent effective and operative brake requirement 
contained in Sec.  232.103(d) is based on FRA's long-standing 
interpretation and application of AAR's inspection and testing 
standards as they existed in 1958 as well as the statutory provisions 
related to the use of power brakes and the movement of equipment with 
defective safety appliances. See 66 FR 4104, 4124, 4128 (Jan. 7, 2001). 
However, the design, operation, and safety benefits derived from the 
use of ECP brake systems dictate a need to modify this long-standing 
requirement. Under the AAR standards, if at any time the ECP brakes on 
a train become less than eighty-five percent operative, the train will 
automatically stop via a computer induced penalty brake application. In 
addition, it has been determined that a train with eighty-five percent 
operative ECP brakes will still have better stopping distances than a 
conventional pneumatic braked train with one-hundred percent operative 
brakes. Moreover, ECP brake system technology provides the ability to 
continuously monitor the real-time status of the braking system on each 
car in a train. This allows a locomotive engineer to always know the 
exact status of his train's braking system. In light of this increased 
level of safety, FRA believes that a partial reduction in the 
percentage of operative brakes is justified. Accordingly, for ECP brake 
operations, FRA hereby modifies the requirement to 95 percent effective 
and operative brakes, which it believes strikes a balance between the 
current regulation and the need to allow for in-transit failures that 
could compromise the operation of the train or otherwise automatically 
shut it down when it reaches 85 percent effective or operative brakes.
    Under paragraph (a), a train can only leave its initial terminal if 
a Class I brake test is performed by a qualified mechanical inspector 
and all ECP braked cars that are known to have arrived at the location 
with ineffective or inoperative brakes are repaired or handled 
accordingly. The final rule intends to ensure that at least 95 percent 
of the cars equipped with ECP brakes have effective and operative 
brakes prior to departure from an initial terminal and that cars are 
repaired in a timely fashion. The purpose of the 95 percent threshold 
is to prevent the delay or disassembly of a train for the removal or 
repair of a very small percentage of cars that are discovered to be 
defective for the first time while the railroad is conducting its in-
depth inspections required at a train's initial terminal. The 95 
percent requirement also acknowledges that some initial terminals may 
not initially have the capabilities of repairing ineffective or 
inoperative ECP braking systems. Accordingly, paragraph (b) allows for 
the movement of cars with such defects known to exist upon arrival at 
its destination to be moved only to the nearest forward location where 
repairs may be performed and restricts the car from being loaded or 
unloaded while being so moved. However, to ensure the safe operation of 
trains operating in ECP brake mode, operators are reminded that, under 
the final rule, the inclusion of such defective cars cannot make the 
train have less than ninety-five percent effective or operative brakes.
    TWU asserts that the widely recognized cornerstone of train brake 
system safety is a comprehensive train brake inspection and test at the 
initial terminal, which requires 100 percent effective brakes. 
According to TWU, there is no valid basis for extending inspection 
intervals to 3,500 miles and permitting trains to operate out of an 
initial terminal without 100 percent effective brakes. BLET is also 
strongly opposed to paragraph (a). According to BLET, AAR Standard S-
4260, Sec.  3.5.4.2, indicates that the exact status is not always 
known. Thus, says BLET, a HEU display of 95 percent operable brakes may 
not reflect all the brakes in the train that are inoperable, meaning 
that the locomotive engineer does not always know the exact status of 
the braking system. FRA notes that BLET's concern was based on a 
misunderstanding of ECP brake system design, as discussed previously 
during the analysis of Sec.  232.607(b).
    UTU contends that the overall braking capacity of each freight car 
has not changed with the introduction of ECP brake technology. 
According to UTU, when the number of operable brakes on an ECP brake-
equipped train is reduced by 5 percent, the train has lost 5 percent of 
its total braking capacity. Thus, says UTU, an ECP brake operated train 
with only 95 percent operative brakes is less safe than a conventional 
brake operated train with 100 percent operable brakes. UTU also asserts 
that the issue of allowing ECP brake-equipped trains ``to operate in 
and out of terminals, from one Class IA brake test to another with only 
95 percent of the brakes operable is also a significant degradation to 
safety.'' If these trains depart an initial terminal, says UTU, an 
additional brake failure en route may occur in potentially unsafe 
territory and not in a yard's controlled environment.
    On the contrary, UP believes that FRA's proposed limitation to not 
allow less than 95 percent effective ECP brakes per train is too 
restrictive. The current regulations allow a conventionally braked 
train to depart after a Class I brake inspection with 100 percent 
operative brakes, with a cumulative failure of up to 15 percent of the 
brakes, equivalent to operating a train with 85 percent operative 
brakes. Therefore, says UP, there is no logical reason to establish a 
more stringent requirement on an ECP braked train. AAR agrees, adding 
that FRA has determined that a train can safely operate with 85 percent 
operative brakes and that an ECP brake operated train with fewer than 
85% operative brakes will engage in a penalty brake application. 
According to AAR, no adverse safety consequences would flow from such 
an event. Since the train will automatically engage in a penalty brake 
application when it reaches that 85 percent threshold, the railroads 
assert the minimum amount of effective or operative brakes at departure 
should be a business or operational decision by the railroad.
    BRC supports paragraph (a) and objects to the railroads' proposal, 
arguing that an 85 percent operating rule ``goes against all the claims 
of operating efficiency, convenience, and incentive for the railroad 
industry to employ ECP brakes.'' According to BRC, this is especially a 
concern for ECP equipped trains traveling long distances without 
intermediate inspections. If these trains are allowed to leave the 
initial terminal at 85 percent operating capacity, the likelihood that 
these trains will have to stop and make repairs or set outs at 
intermediate locations significantly increases. UTU adds that,

[[Page 61538]]

if these trains depart an initial terminal, an additional brake failure 
en route may occur in potentially unsafe territory and not in a yard's 
controlled environment.
    FRA is not persuaded that it should modify paragraph (a) from that 
proposed in the NPRM. The purpose of paragraph (a) is to provide 
operators flexibility in an environment of technological change. 
Although FRA understands TWU's and UTU's concerns about ensuring 100 
percent effective and operative brakes on trains departing from initial 
terminals, FRA believes that the ECP brake system's self-monitoring 
system and significant increase in braking capabilities provides a 
level of comfort to maintain such flexibility without compromising 
safety. That comfort level is also increased by requiring only limited 
movement of that train for the purpose of repair.
    UTU also seems to misunderstand paragraph (a) when it asserts that 
the issue of allowing ECP brake-equipped trains ``to operate in and out 
of terminals, from one Class IA brake test to another with only 95% of 
the brakes operable is also a significant degradation to safety.'' The 
final rule does not require Class IA brake tests on trains operated 
with ECP brakes. In any event, paragraph (b), further discussed below, 
requires that each car equipped with ECP brakes, and known to have 
arrived at a location of a train's initial terminal or at a location 
where a Class I brake test is required, shall not depart that location 
with ineffective or inoperative brakes in a train operating in ECP 
brake mode, except when that initial terminal does not have facilities 
capable of repairing defective ECP brakes. Paragraph (b), however, also 
requires the entire train to stop at the nearest forward repair 
location, causing further delays. Thus, FRA expects paragraph (b) to 
provide an incentive for the operator to repair the defective brakes or 
set out those cars at the initial terminal. For these reasons, FRA 
expects the railroads to quickly ensure that all initial terminals and 
locations where Class I brake tests are otherwise performed are fully 
equipped with ECP brake repair facilities and that most repairs would 
be made at those locations so that trains will depart with 100 percent 
effective and operative ECP brakes.
    FRA intends that the only exceptions are ECP brake-equipped cars 
whose brake defects were found after arrival at the initial terminal 
and conventional brake-equipped cars. For instance, if defects to a 
car's ECP brake system were found during a pre-departure Class I brake 
inspection, the ECP brake operated train may depart and travel to 
destination. While paragraph (a) and (b) imply this as a possibility, 
paragraph (e) makes it clear.
    FRA believes that the railroads misinterpret the existing 
regulations under subpart C and this final rule's paragraph (a) as they 
relate to the minimum number of effective and operative brakes on a 
train departing from its initial terminal. Under Sec. Sec.  232.103(d) 
and (f), trains operated with conventional brakes cannot move with any 
ineffective or inoperative brakes except under the safe harbor 
provisions provided under Sec.  232.15. Even moving with the immunities 
afforded under Sec.  232.15, however, Sec.  232.103(e) absolutely 
prevents such trains from moving if the level of operative or effective 
brakes reaches 85 percent. Accordingly, FRA is not increasing the 85 
percent limitation up to 95 percent, but is decreasing the 100 percent 
limitation to 95 percent.
    In any event, FRA believes that the 95 percent limitation at 
initial terminals provides sufficient flexibility for the 
implementation of new technology and does not feel comfortable further 
reducing that amount at this time. While the railroads contend that the 
buffer between departure and the ECP brake system's potential penalty 
brake application (i.e., an automatic and immediate emergency or full 
brake application made by the ECP brake system in accordance with the 
current AAR standards) at 85 percent should be a market or operational 
decision since it is much safer than conventional brake operations at 
that level, FRA believes that the railroads fail to appreciate the 
aforementioned reasons for the 95 percent limitation and the effects no 
limitation may have. By further reducing or eliminating the limitation, 
the potential for an automatic application of the brakes at 85 percent 
effective and operative brakes increases. In such an event, the stopped 
train may delay other trains, potentially causing a serious domino 
effect of non-movement. Safety concerns also remain. FRA is certainly 
sensitive to UTU's concern that such an event may occur in unsafe 
territory, putting the train and its crew at risk. Accordingly, FRA 
does not think it reasonable to allow an ECP brake operated train to 
depart its initial terminal with as little as 85 percent effective and 
operative brakes.
    Paragraph (b)(4) also requires that a car with ineffective or 
inoperative ECP brakes be tagged in accordance with Sec.  232.15(b). 
FRA believes that Sec.  232.15(b) should equally apply to trains 
operating in ECP brake mode and should be a prerequisite for the 
movement from the initial terminal of any car with defective brakes. 
Section 232.15(b) contains the specific requirements regarding the 
tagging of equipment found with defective brake components and 
recognizes that the industry may attempt to develop some type of 
automated tracking system capable of retaining the information required 
by that section and tracking defective equipment electronically. Thus, 
paragraph (b)(4), through Sec.  232.15(b), proposes to permit the use 
of an automated tracking system in lieu of directly tagging the 
equipment if the automated system is approved for use by FRA. FRA 
continues to believe that these provisions are necessary to ensure the 
agency's ability to monitor such systems and potentially prohibit the 
use of the system if it is found deficient. The proposed rule makes 
clear that, by ensuring application of Sec.  232.15(b) to ECP brake 
systems, an automated tracking system approved for use by FRA would be 
capable of being reviewed and monitored by FRA at any time. This 
paragraph also notifies the railroads that FRA reserves the right to 
prohibit the use of a previously approved automated tracking system if 
FRA subsequently finds it to be insecure, inaccessible, or inadequate. 
Such a determination would have to be in writing and include the basis 
for taking such action.
    Paragraph (c) permits, with certain limitations, trains operating 
in ECP brake mode to move cars equipped with conventional pneumatic 
brakes. If a freight car equipped with only conventional pneumatic 
brakes would have effective and operable brakes in a train equipped 
with a ``stand-alone'' conventional pneumatic brake system, the final 
rule permits a freight train operating in ECP brake mode to move such a 
car. If a car has defective conventional pneumatic brakes--which would 
be ineffective or inoperative in a train with a ``stand-alone'' 
conventional pneumatic brake system--the final rule permits its 
movement by a freight train operating in ECP brake mode, but only if 
the movement is made in accordance with Sec.  232.15. By referring to 
Sec.  232.15, paragraph (c) intends to, amongst other things, include 
the exceptions delineated in paragraph (k) and limit the movement of 
such cars to the nearest location where repairs can be made. Paragraph 
(c) also reminds regulated parties to comply with the tagging 
requirements of Sec.  232.15(b) for the same reasons as paragraph (b). 
FRA notes that the inclusion of cars with defective or non-defective 
conventional pneumatic brakes into a train operating in ECP brake mode 
shall not cause the train to

[[Page 61539]]

have less than ninety-five percent effective and operative brakes in 
accordance with paragraph (a). FRA believes that permitting a limited 
inclusion of cars equipped with conventional pneumatic brakes will 
provide some flexibility as operators transition their fleets from 
conventional pneumatic to ECP brake systems while ensuring a 
satisfactory level of safety.
    BLET believes that Sec.  232.15(e) should apply with respect to 
placement of cars equipped with conventional brakes in trains operated 
with ECP brakes. As previously stated, FRA expects that, except for the 
sections and paragraphs specifically excepted and the limitations 
modified by the final rule, subpart C continues to be fully applicable 
and enforceable for trains and cars equipped with ECP brakes. Since the 
final rule does not except or modify Sec.  232.15(e), FRA intends its 
continued application and enforcement. While the final rule may remind 
the regulated parties that certain specific existing paragraphs in 
subpart C continue to apply (e.g., paragraphs (b)(4) and (c) 
referencing Sec.  232.15(b)), this does not imply that sections and 
paragraphs not referenced do not apply. References to more specific 
paragraphs may exist for the purposes of clarity. FRA recognizes that 
mixing technology may confuse application of the existing law. For 
instance, while it may be clear to most how Sec.  232.15 may apply to 
conventionally braked cars even in trains operated with ECP brakes, FRA 
foresees confusion when applying Sec.  232.15 to ECP braked cars in 
trains operated with conventional brakes. Thus, the final rule includes 
specific paragraph references when regulating the latter under 
paragraph (g).
    Once an ECP brake system detects that the train has less than 
eighty-five percent operative brakes, AAR standard S-4200 requires an 
automatic and immediate full service brake application. Paragraph (d) 
mirrors S-4200 by requiring a train operating in ECP brake mode to 
cease moving once less than eighty-five percent of the train's cars 
have effective and operative brakes. In other words, under paragraph 
(d), no train shall move with more than fifteen percent of its brakes 
being defective or otherwise inoperative or ineffective until certain 
conditions are met. Recognizing, however, that foundation brake rigging 
defects may not be detected by the electronic system, and that 
calculation of the percentage may require an accurate manual entry of 
the total cars in the train by the train crew, FRA proposes paragraph 
(d) to continually ensure the safe operation of trains operating in ECP 
brake mode with ineffective or inoperative brakes.
    Although there is no explicit statutory limit regarding the number 
of cars with inoperative brake equipment that may be hauled in a train, 
the fifteen percent limitation is a longstanding industry and agency 
interpretation of the hauling-for-repair provision currently codified 
at 49 U.S.C. 20303, and has withstood the test of time. This 
interpretation is extrapolated from another statutory requirement which 
permits a railroad to use a train only if ``at least 50 percent of the 
vehicles in the train are equipped with power or train brakes and the 
engineer is using the power or train brakes on those vehicles and on 
all other vehicles equipped with them that are associated with those 
vehicles in a train.'' 49 U.S.C. 20302(a)(5)(B). As originally enacted 
in 1903, section 20302, also granted the Interstate Commerce Commission 
(ICC) the authority to increase this percentage, and in 1910 the ICC 
issued an order increasing the minimum percentage to 85 percent. See 49 
CFR 232.103(e), which codifies the ICC order. FRA believes that if the 
rule is read in its entirety, there should be no confusion as to the 
movement of defective equipment, and that this provision merely sets an 
outside limit on the percentage of cars that may be hauled in any train 
with inoperative brakes. Consequently, FRA will continue to require 
that equipment with inoperative air brakes make up no more than 15 
percent of any train.
    FRA acknowledges that Sec.  232.103(e) already prevents a train's 
movement ``if less than 85 percent of the cars in that train have 
effective and operative brakes.'' However, FRA has also stated that 
Sec.  232.103(e) ``contains a clear and absolute prohibition on train 
movement if more than 15 percent of the cars in a train have their 
brakes cut out or have otherwise inoperative brakes.'' Because ECP 
brake systems are designed to automatically stop the train whenever and 
wherever the brake system has less than 15 percent operative brakes, 
FRA recognizes that some flexibility is needed to ensure that such 
trains are not stranded on the main track. To provide flexibility in 
those rare instances where a train experiences a penalty brake 
application as a result of having less than 85 percent operative 
brakes, paragraph (d) includes requirements to ensure the safe movement 
of such trains. FRA recognizes the need for some trains operating in 
ECP brake mode to continue to an appropriate repair facility or nearest 
siding after experiencing a penalty brake application. Since ECP brake 
implementation is in its infant stages, FRA acknowledges that a 
railroad may not initially have a significant number of repair 
facilities beyond the initial terminals of ECP equipped cars. 
Accordingly, paragraph (d) permits limited movement of such trains for 
repair or consist modification purposes. In any event, in light of the 
Class I inspection required under Sec.  232.607, the minimum number of 
ineffective or inoperative brakes allowed under Sec.  232.609, and an 
ECP brake system's continuous monitoring and diagnostics functions, FRA 
believes that trains operating in ECP brake mode will rarely, if ever, 
reach fifteen percent inoperative or ineffective brakes. However, FRA 
believes that paragraph (d)--in an abundance of caution and in 
anticipation of such a possibility occurring--will ensure safe and 
efficient operations. In order to move a train operating in ECP brake 
mode that experiences a penalty brake application due to having less 
than 85 percent effective and operative brakes, paragraph (d) requires 
the train crew to perform a visual inspection of the entire train, 
ensure the safe operation of the train, and determine that it is safe 
to move the train.
    Under the current regulations, visual inspections are generally 
performed when moving defective equipment since a ``qualified person'' 
must determine that the car is safe to move. It is FRA's understanding 
that most, if not all, railroads require a crew member to make a visual 
inspection of a car when a problem occurs en route. A proper visual 
inspection ensures that the brakes are cut out on a faulty car and 
eliminates the possibility of dragging or stuck brakes. A dragging or 
loose part or piece of equipment can find its way under a wheel, 
causing a derailment. A brake that will not release--due to bent or 
fouled brake rigging or a problematic control valve--will cause the 
wheel to slide. A sliding wheel will not properly traverse a switch or 
cross-over, setting up a potential derailment. A sliding wheel may also 
cause a severe flat spot to occur on the wheel, which can also lead to 
a derailment and stress on the rail. By requiring that the train crew 
ensure the safe operation of the train and determine that it is safe to 
move the train, FRA intends to make clear that it is the railroad's 
responsibility, through its crew, to do whatever is necessary to ensure 
safe train operation under the flexibility provided by paragraph (d). 
Any deviation from the requirements under paragraph (d) while moving a 
train with less than eighty-five percent

[[Page 61540]]

effective brakes would pose a significant safety hazard and violate the 
rule.
    In addition, under paragraph (d), the train's subsequent movement 
must be made in a restricted ECP brake Switch Mode to the nearest or 
nearest forward location where necessary repairs or changes to the 
consist can be made. Under AAR Standard S-4200 Sec.  4.2.6.2.2, the 
speed of an ECP brake-equipped train in Switch Mode shall not exceed 20 
mph. The purpose of the 20 mph limitation, among Switch Mode's other 
restrictions, is to ensure the safe movement of the train with less 
than ideal brake operations while allowing the train to operate to a 
location where defective braking systems can be repaired or where cars 
can be added or removed from the train so that it will have at least 
eighty-five percent effective and operative brakes.
    BLET notes that paragraph (d)(4), as proposed in the NPRM, appeared 
to prohibit a railroad from opting to move an ECP brake operated train 
with less than 85% operative brakes in Switch Mode to the nearest 
rearward repair location. If FRA intended to prohibit a backhaul, BLET 
expressed interest in FRA's rationale. The proposed rule provided for 
the movement of defective equipment to the ``nearest forward'' repair 
location and did not intend to prohibit a backhaul of equipment when 
appropriate. The purpose of FRA invoking its discretionary authority 
under 49 U.S.C. 20306 to partially except application of 49 U.S.C. 
20303 to ECP brake operations was to remove a disincentive towards ECP 
brake implementation by providing operational flexibility when hauling 
defective equipment for the purposes of repair. FRA intends to allow 
the railroads to move defective equipment to the first suitable 
location for repairs in either direction it so chooses. Accordingly, 
FRA has clarified the final rule to provide for such movement to the 
``nearest or nearest forward repair location.'' Paragraph (e) permits 
trains operating in ECP brake mode with defective ECP brakes to be used 
or hauled without civil penalty liability under part 232 to its 
destination, not to exceed 3,500 miles. Such defects must be found for 
the first time during a Class I brake test or en route. As previously 
mentioned, FRA believes that a train operating in ECP brake mode can 
safely continue to its destination with some ineffective or inoperative 
brakes. Accordingly, paragraph (e) proposes that all such trains be 
permitted to travel to its destination, not to exceed 3,500 miles, 
without incurring civil penalty liability in relation to the use of 
those brakes. Paragraph (e) also proposes that this civil penalty 
immunity be extended to such trains with ECP brake defects found at the 
initial terminal. If such defects are found after a train is put 
together in preparation for its next departure, it may be overly 
burdensome to require that the train be taken apart for repair. If a 
brake repair may be performed without taking the train apart, FRA 
acknowledges that the repair may cause undue delay. If the ECP brake 
defect is found at the location where a Class I inspection is 
performed, FRA believes that such burdens and delays may be avoided in 
light of the increased safety afforded by ECP brake systems.
    FRA believes that this flexibility needs to be afforded differently 
to defects that are known to exist upon a car's arrival at its 
destination or at a location where a Class I brake test will be 
required on the train than to defects found for the first time at the 
location where a Class I brake test is performed. If a freight car 
equipped with an ECP brake system is known to have arrived with 
ineffective or inoperative brakes at the location of a train's initial 
terminal or at a location where a Class I brake test is required under 
Sec.  232.607(b), that car is subject to the limitations in paragraph 
(b), not paragraph (e). Paragraph (b) intends to ensure that known 
defects are repaired before continued use and to prevent trains 
operating in ECP brake mode from traveling indefinitely without 
repairing their defective ECP brakes. On the other hand, by retaining 
paragraph (e) as proposed, FRA recognizes the burden placed on 
operators to comply with such a rule when it discovers the defect when 
it is in the process of putting a train together or after a train is 
already put together and inspected. Paragraph (e) recognizes that 
burden by treating the train similarly to a train that detects a 
defective ECP brake while it is en route.
    Paragraph (f) provides limited flexibility for trains operating in 
ECP brake mode with a non-brake safety appliance defect on a car 
equipped with ECP brakes. To enjoy such flexibility under paragraph 
(f), the car may only be used or hauled to the nearest or nearest 
forward location for repairs. As noted above, in light of the increased 
safety levels afforded by ECP brake system technologies, the final rule 
allows trains operating in ECP brake mode with defective ECP brakes to 
travel to its destination, not to exceed 3,500 miles. FRA does not 
believe it prudent to provide the same level of flexibility to cars 
operating in ECP brake-equipped trains with non-brake safety appliance 
defects, since an ECP brake system's increased safety level does not 
reduce the dangers of such defects. However, FRA does believe that 
flexibility should be afforded to permit the direct hauling of such 
equipment to the nearest or nearest forward repair location. To require 
the hauling of ECP brake equipment to the nearest location where 
necessary repairs can be effectuated, rather than allowing such to the 
nearest forward location, could create unnecessary safety hazards. As 
there initially will only be a limited number of ECP brake-equipped 
trains in operation at any given time, the ability to switch cars from 
one ECP train to another, merely for the purposes of getting the car to 
a closer repair facility, will be severely limited. Rather than 
requiring cars equipped with ECP brakes to be hauled in non-ECP braked 
trains, where their brakes will be inoperative, FRA believes it is 
safer to permit the car to continue in the train equipped with ECP 
brakes to the next forward location where the necessary non-brake 
safety appliance repairs can be made.
    In the event trains must include cars equipped with brake systems 
not compatible with the train's brake system, the final rule includes 
requirements to ensure the safe operation of such trains. Paragraph (g) 
allows a train operating with a conventional pneumatic brake system-
regardless of whether it is a train with ``stand-alone'' conventional 
pneumatic brakes or an ECP brake-equipped train operating in 
conventional pneumatic brake mode--to include cars with stand-alone ECP 
brake systems. To maintain an acceptable level of safety, however, 
paragraph (g) requires that such trains must have at least 95 percent 
effective and operative brakes at the conclusion of a Class I brake 
test, inclusive of all cars regardless of braking systems. Further, to 
meet the same level of safety intended by 49 CFR 232.103(d), paragraph 
(g) also requires that the train have 100 percent effective and 
operative conventional pneumatic brakes at the Class I brake test site 
when operating in conventional pneumatic mode.
    Accordingly, paragraph (g) allows trains equipped with a 
conventional pneumatic brake system--or with ECP brake systems and 
operating in conventional pneumatic brake mode--to operate with freight 
cars equipped with stand-alone ECP brake systems under limited 
circumstances. Under paragraph (g), any such train not in compliance 
with those circumstances shall not be operated. The purpose of these 
limitations is to ensure the safe operation of such trains that contain 
cars with incompatible stand-alone ECP brake systems. FRA understands 
that

[[Page 61541]]

some trains operating with conventional pneumatic brakes may need to 
carry cars with incompatible stand-alone ECP brake systems, especially 
when the implementation of ECP brake system technology is in its infant 
stages. For instance, FRA anticipates that a need may arise to move a 
new ECP brake-equipped car in a train operating with conventional 
pneumatic brakes from the car manufacturer's facility or a repair shop 
to a location where the railroad operates trains equipped with ECP 
brakes. FRA also anticipates that a dual mode ECP brake system 
operating in ECP brake mode may incur a malfunction--such as a broken 
train line cable or locomotive controller--forcing the operator to 
switch the train's operation to conventional pneumatic brake mode. As 
long as the train's total number of cars with ineffective or 
inoperative brakes does not fall below the threshold percentage 
contained in paragraph (g)--via reference to paragraph (d)--FRA 
believes that the train may safely include cars with incompatible 
stand-alone ECP brake systems.
    Paragraph (g) includes requirements for the subject train and each 
of its stand-alone ECP brake-equipped cars. For such a train to 
operate, it must comply with the minimum percentage of operative brakes 
required by paragraph (h) when at an initial terminal--which will be 
discussed below--or paragraph (d) when en route for the same reasons 
discussed in paragraph (d). Under paragraph (g), a stand-alone ECP 
brake-equipped car in a train operating with conventional pneumatic 
brakes can only be moved for delivery to a railroad receiving the 
equipment or to a location where the car may be added to a train 
operating in ECP brake mode. Otherwise, the movement of the car is 
restricted to the nearest available location where necessary repairs 
can be effectuated. In addition, such cars must be tagged in accordance 
with Sec.  232.15(b) for the same reasons as stated for the analysis of 
paragraph (b) and placed in the train in accordance with Sec.  
232.15(e). Section 232.15(e) contains the requirements regarding the 
placement of cars in a train that have inoperative brakes. The 
requirements contained in that paragraph are consistent with the 
current industry practice and are part of almost every major railroad's 
operating rules. By incorporating Sec.  232.15(e) by reference, 
paragraph (g) prohibits the placing of a vehicle with inoperative 
brakes at the rear of the train and the consecutive placing of more 
than two vehicles with inoperative brakes, as test track demonstrations 
have indicated that when three consecutive cars in a train operating 
with conventional pneumatic brakes have their brakes cut-out, it is not 
always possible to obtain an emergency brake application on trailing 
cars. To remain consistent with existing industry practice, paragraph 
(g), by referencing Sec.  232.15(e), requires that such equipment shall 
not be placed in a train if it has more than two consecutive individual 
control valves cut out or if the brakes controlled by the valve are 
inoperative.
    NS is concerned that Sec.  232.609 does not adequately allow for 
the handling of defective equipment with ECP brake systems. NS notes 
that Sec.  232.609(g)(2)(iii) requires compliance with Sec.  
232.15(e)(2), which states that ``no more than two freight cars with 
either inoperative brakes or not equipped with power brakes shall be 
consecutively placed in the train.'' Due to the efficiencies gained in 
stopping and the drastically reduced slack action, says NS, for ECP 
trains this should be increased to ``no more than five freight cars 
with defective air brakes to being cut out electronically.'' NS 
supports that no more than five cars that are electronically cut out 
shall be placed consecutively within the train, two of which may be 
pneumatically cut out. ECP brake-equipped cars that have the brakes 
electronically cut out, says NS, will retain the same rapid venting of 
brake pipe in order to produce a pneumatic emergency with no adverse 
effects on the braking system. NYAB and Wabtec make the same proposal.
    FRA sees the merit in the proposal of NS, NYAB, and Wabtec and 
continues to believe that Sec.  232.15(e)(1) should apply to the 
placement of cars equipped with ECP brakes in trains operated with ECP 
brakes, since it is always dangerous when the last car in the train is 
without braking capacity. FRA also continues to believe that no more 
than two consecutive cars should be placed in a train with their brakes 
pneumatically cut out, since the train's pneumatic brake application 
should remain available in emergency situations, especially in trains 
operating with ECP overlay systems. FRA recognizes that a train 
operated with ECP brakes may safely initiate an emergency brake 
application with up to five ECP brake-equipped cars electronically cut 
out via the car's CCD. Pneumatically cut out brakes will increase the 
length of the brake pipe, which may slow the rapid venting of brake 
pipe pressure to the point where an emergency brake application cannot 
be made. However, all effective and operative ECP brakes should be able 
to apply in an ECP brake operated train, since the train line cable 
continues to carry the emergency transmission with equal strength and 
speed throughout the entire train. Accordingly, any increase in 
consecutive cars equipped with ECP brakes with ineffective or 
inoperative brakes may only affect train handling, not train line 
braking communications.
    FRA recognizes that a railroad may be more familiar with each 
territory it traverses and may be in a better position to determine how 
many consecutive cars with electronically cut out brakes may be allowed 
without causing safety issues. However, in the interests of public 
safety, and in light of the comments made by the brake manufacturers 
and railroads, FRA believes that the performance characteristics of the 
ECP brake system will safely allow for up to five consecutive cars to 
be electronically cut out in a train.
    FRA further recognizes that a one-to-one CCD-to-car ratio does not 
exist for all cars. Intermodal cars, for example, have more platforms 
than CCDs and control valves. Accordingly, for the same reasons 
provided above, the final rule prevents more than five consecutive 
platforms with electronically cut out brakes on intermodal trains. 
Thus, to ensure sufficient train handling safety, the final rule also 
requires that the sets of consecutive cars with electronically cut out 
brakes be sufficiently spaced. FRA expects the number of cars with 
operative brakes buffering between these sets to differ depending upon 
a variety of factors including, but not limited to, the length of the 
train, the weight of the train and certain cars, the types of cars, and 
the territory. The sufficiency of buffer cars, therefore, must be 
determined by each railroad and enforced by FRA on a case-by-case 
basis.
    Paragraph (h) includes additional requirements for freight trains 
equipped and operating with conventional pneumatic brakes when 
departing an initial terminal with stand-alone ECP brake-equipped 
freight cars. On such trains, paragraph (h) allows the train to depart 
its initial terminal with at least ninety-five percent effective and 
operative brakes and up to five percent of the cars to be equipped with 
ECP brakes. However, each car equipped with conventional pneumatic 
brake systems must have effective and operative brakes and each car 
equipped with dual mode ECP brake systems must operate in conventional 
pneumatic brake mode and have effective and operative conventional 
pneumatic brakes. The five percent of cars with

[[Page 61542]]

potentially defective brakes may only be cars equipped with stand-alone 
ECP brake systems.
    Paragraph (i) provides for the electronic tagging of defective ECP 
brake equipment when being moved in a train operating in ECP brake 
mode. FRA recognizes that Sec.  232.15(b) already provides requirements 
for electronic tagging of defective equipment. However, in view of the 
ECP brake system's unique characteristics, it is not entirely clear how 
Sec.  232.15(b) would appropriately apply to electronic records 
developed, retained, and maintained by ECP brake systems. Accordingly, 
paragraph (i) contains the criteria necessary to determine whether an 
ECP brake system complies with Sec.  232.15(b).
    In the NPRM, FRA stated that, in order for an ECP brake system to 
provide electronic tagging of equipment with defective safety 
appliances, the ECP brake system must provide appropriate, constant, 
and accurate information to the crew via a display in the cab of the 
lead locomotive, and ensure that the information is securely stored and 
is accessible to FRA and appropriate operating and inspection 
personnel. To ensure the integrity of electronic tagging, FRA asserted, 
the ECP brake system must securely store the information. FRA sought 
comments on how secure a system must be.
    BLET and AAR responded to this proposal with concerns relating to 
the secure storage of information requirement. According to BLET, any 
resolution of electronic recordkeeping issues should consider the 
solutions provided by the RSAC Locomotive Safety Standards Working 
Group. AAR does not believe it likely that an employee would seek to 
override the ECP software. In any event, AAR points out that since 
there is no information security requirement for paper records, there 
is no reason to require information security for electronic records. 
FRA agrees with BLET and AAR on this issue and has not included the 
information security requirement in the final rule. However, the 
remainder of the proposal has been retained in the final rule. FRA 
continues to believe that the electronic tag information must be 
accessible for safety and oversight purposes. Paragraph (i) makes clear 
that an automated tracking system approved for use by FRA must be 
capable of being reviewed and monitored by FRA at any time. The 
information should also be accessible to subsequent train crews that 
require notification of defects.
    In the NPRM, FRA acknowledged that some railroads may also desire 
to use the ECP brake system to electronically tag defective non-ECP 
brake equipment. FRA anticipates that such electronic tagging would 
have to be manually entered into the system, since safety appliances 
are not monitored by the ECP brake system. FRA sought comments on 
whether the rule should include provisions allowing for the manual 
input of non-ECP brake defects into ECP brake systems for electronic 
tagging purposes. FRA also sought comments on what requirements and 
allowances should be made in consideration of that interest, including 
means to associate or merge ECP brake system information with 
information not monitored electronically by the ECP brake system. No 
comments were received on this issue. Accordingly, FRA has not provided 
for such electronic tagging capabilities in the final rule. This does 
not mean that a railroad is prevented from bringing an electronic 
tagging program to FRA for its approval under Sec.  232.15(b) when it 
pertains to non-ECP brake defects and utilizes the ECP brake technology 
to electronically tag and track such equipment.
    In the NPRM, FRA acknowledged that locomotive engineers may be 
distracted or subjected to information overload by multiple monitors or 
displays in the locomotive cab, thus potentially endangering the safe 
operation of the train. FRA sought comments and information on this 
issue. In Wabtec's and NYAB's experience, the additional display has 
not been an issue with the operators. In the event that an additional 
display is added, say the brake manufacturers, the information 
displayed is minimal and straight forward. In the case where ECP brake 
system information is integrated into the existing displays, ECP 
information replaces air brake information. BLET states that Appendix E 
to Part 236 addresses the issue of human-machine interface design where 
positive train control technology is implemented. Otherwise, says BLET, 
this issue is not ripe for resolution in the final rule. AAR agrees, 
stating that information overload caused by multiple monitors or 
displays in the locomotive cab is better suited for a separate 
proceeding. In light of the comments, the final rule does not include 
any requirements relating to ECP brake system monitors and displays.
    Paragraph (j) requires that the railroads adopt and comply with 
written procedures governing the movement of defective equipment. The 
procedures must comply with the related regulatory requirements, 
including those in the final rule. FRA expects each railroad to develop 
appropriate procedures regarding its handling and repair of defective 
equipment containing ECP brake systems or hauled in trains operating in 
ECP brake mode. FRA acknowledges that many railroads may already have 
such procedures in place. FRA believes that the establishment of these 
procedures is the most effective means by which to minimize the 
possibility of future accidents caused by the movement of defective 
equipment on cars and trains equipped with ECP brake systems or 
operating in ECP brake mode. Given the introduction of new technology 
and its partial incompatibility with existing systems, FRA believes the 
need for adoption and compliance with such procedures is critical for 
continued safety in the rail industry.
    BLET suggests that the procedures governed by paragraph (j) should 
be filed with, rather than merely be made available to, FRA. FRA has 
placed the burden on the railroads to be custodians of the information 
referenced in paragraph (j)(1). FRA only needs access to the 
information in certain situations and does not require ownership or 
custodianship. Accordingly, FRA sees no need to expend its resources on 
receiving and maintaining such files.
    In contrast, however, the information required in paragraph (j)(2) 
must be filed with FRA for continual enforcement purposes. FRA cannot 
be expected to enforce its rules relating to the handling of defective 
equipment without this information instantly and continually available. 
To ensure compliance with the requirements concerning the performance 
of ECP brake system repairs, paragraph (j)(2) requires railroads to 
submit to FRA, prior to operating ECP brake systems in revenue service, 
a list identifying locations where such repairs may be made. FRA 
believes that the list should encompass a sufficient number of 
locations to ensure that Class I brake tests are performed at 
appropriate intervals and that trains equipped with ECP brake systems 
do not travel further than their destination or 3,500 miles without 
being inspected and repaired at Class I brake test locations and repair 
facilities. If a railroad adds or removes any repair facility from its 
system, paragraph (j)(2) requires that the railroad amend or modify 
that list by timely notifying FRA of those changes at least 15 days in 
advance.
    Paragraph (k) explicitly excepts other portions of part 232 as they 
apply to ECP brake systems. For instance, paragraph (k) excepts 
application of Sec.  232.15(a)(2) and (a)(5) through (a)(7), which 
generally require that equipment with defective safety appliances be

[[Page 61543]]

repaired at the location where they are first discovered to be 
defective or that they be moved only to the nearest available location 
where necessary repairs can be performed. As noted above, FRA believes 
that freight cars equipped with ECP brakes and freight trains operating 
in ECP brake mode need to be provided some flexibility in being handled 
for repair and when moving equipment with defective safety appliances. 
The provisions contained in Sec.  232.15(a), if applied, would 
frequently frustrate the purpose of FRA's proposal and ignore the 
safety advances provided by ECP braking systems.
    Paragraph (k) also excepts Sec.  232.15(a)(8), which prohibits the 
movement of a defective car or locomotive in a train required to 
receive a Class I brake test at that location. As discussed in detail 
above, paragraph (a) allows a train operated with ECP brakes to leave 
its initial terminal with only ninety-five percent operative brakes 
after a Class I brake test. By doing so, paragraph (a) implicitly 
excepts trains operating in ECP brake mode from Sec.  232.103(d), which 
prohibits a train from departing from its initial terminal with any 
inoperative or ineffective brakes. Nevertheless, paragraph (k) intends 
to clearly and explicitly except Sec.  232.103(d). An explicit 
exception in this rule does not imply that there are no independent and 
implicit exceptions elsewhere. Finally, Sec.  232.103(e) ``contains a 
clear and absolute prohibition on train movement if more than 15 
percent of the cars in a train have their brakes cut out or have 
otherwise inoperative brakes,'' thus preventing a train's movement ``if 
less than 85 percent of the cars in that train have effective and 
operative brakes.'' Due to relief proposed by this section, however, 
the strict limits imposed by Sec.  232.103(e) would no longer be 
applicable to trains regulated under these proposed rules. Accordingly, 
paragraph (k) excepts Sec.  232.103(e).
    BLET does not support 232.609(k) and does not believe that FRA 
should invoke its discretionary authority under 49 U.S.C. Sec.  20306 
to exempt railroads from the requirements of 20303. As noted above in 
the discussion contained in Section IX of this document, FRA has 
considered BLET's concerns and has decided to invoke its discretionary 
authority.

Section 232.611 Periodic Maintenance

    FRA intends that all unexcepted and unmodified rules under part 232 
apply to ECP brake operations. For the purposes of further clarity, 
however, paragraph (a) of Sec.  232.611 reminds the operators of 
equipment with ECP brake systems to comply with the maintenance 
requirements contained in Sec.  232.303(b) through (d), which require 
the performance of certain tests and inspections whenever a car is on a 
shop or repair track. FRA continues to believe that a repair or shop 
track provides an ideal setting for railroads to conduct an 
individualized inspection on a car's brake system to ensure its proper 
operation. FRA also continues to believe that such inspections are 
necessary to reduce the potential of overlooking cars with excessive 
piston travel during the performance of ordinary brake inspections. If 
any problems are detected at that location, the personnel needed to 
make any necessary corrections are already present. Furthermore, 
performing these inspections at this time ensures proper operation of 
the cars' brakes and eliminates the potential of having to cut cars out 
of an assembled train and, thus, should reduce inspection times and 
make for more efficient operations.
    FRA continues to believe that Sec.  232.303(b) and (c) should apply 
to all operations, including those with ECP brake systems. Section 
232.303(b) requires testing of each car on a shop or repair track to 
determine that its air brakes apply and remain applied until a release 
is initiated. If the brakes fail to apply or to remain applied until a 
release is initiated, the car must be repaired and retested. Section 
Sec.  232.303(c) requires piston travel to be inspected and, if 
necessary, adjusted. FRA intends for this to be accomplished in 
accordance with the stencil or badge plate on cars equipped with ECP 
brakes in accordance with Sec.  232.607(f)(2).
    FRA also continues to believe that Sec.  232.303(d) should apply to 
all operations, including those with ECP brake systems. Section 
232.303(d) lists brake system components requiring inspection prior to 
releasing a car from a shop or repair track. This section requires 
inspection of a car's hand brakes, angle cocks to ensure proper 
positioning to allow maximum air flow, and brake indicators, if 
equipped, to ensure their accuracy and proper operation. A periodic 
inspection is an ideal time for the railroad to inspect these items 
while imposing the least burden on the railroad's inspection and repair 
forces.
    In addition to requiring continued compliance with Sec.  232.303(b) 
through (d), paragraph (a) requires further inspection of freight cars 
equipped with ECP brake systems prior to release from a shop or repair 
track. These additional requirements afford the inspector the 
opportunity to look at each car more thoroughly and take into 
consideration an ECP brake system's unique characteristics. For 
instance, while Sec.  232.303(d) requires inspectors to ensure that 
brake pipes are securely clamped, paragraph (a) provides the equivalent 
for ECP brake systems by requiring the secured clamping of ECP brake 
system wires. Accordingly, paragraph (a) requires inspectors to check 
the ECP brake system's wiring and brackets, electrical connections, 
electrical grounds, and any car mounted ECP brake system component. 
During such inspections, inspectors must look for problems such as 
frayed wiring, loose or damaged brackets, and wires that have become 
loose due to a fallen bracket. FRA believes that a missing bracket may 
be overlooked during a regular train yard inspection or Class I brake 
test and the final rule requires shop or repair track inspections of 
such ECP brake related components to ensure their safe operation.
    Paragraph (a)(3) as proposed required the testing of the train line 
cable's electrical grounds and impedance. NYAB and Wabtec asserted that 
paragraph (a)(3) as proposed should be removed entirely. According to 
these brake manufacturers, train line integrity tests, which should be 
performed subsequent to repairs or replacement of the ECP brake-
equipped train line or as part of a single car air brake test, do not 
require impedance testing, since they can be performed via resistance 
and grounds tests using commonly available measurements tools. AAR 
concurs with the brake manufacturers' submission, asserting that an 
impedance test is unnecessary. One of the labor representatives 
disagrees with the manufacturers, urging FRA to retain impedance 
testing of train line cables in the final rule.
    FRA believes that the main purpose of cable impedance testing is 
checking the integrity of the train line electrical cable to assure 
that there is no electrical shortage between the wires and electrical 
current leakage through the ground connections. Since the current 
leakage testing of train line cable is a routine single car air brake 
test procedure and the ECP brake system continuously monitors the 
integrity of the train line cable, the additional impedance testing of 
train line cable wires is redundant and therefore unnecessary. FRA also 
believes that independently testing for grounds (i.e., check for the 
legitimate presence of cable shield connections to the car frame) is 
not necessary since paragraph (a)(2) already requires that a single car 
air brake test include a review and repair of the ECP brake system 
electrical connections. FRA continues to believe

[[Page 61544]]

that the brake manufacturers are in the best position to determine the 
level of testing that can be integrated into a single car air brake 
test. Accordingly, the proposal that periodic testing include 
electrical impedance and grounds testing is not being included in the 
final rule.
    Paragraph (b) requires railroads to submit periodic single car air 
brake test procedures to FRA for approval and paragraph (c) requires 
railroads to comply with such submitted and approved procedures 
whenever they perform a single car air brake test. FRA must be given an 
opportunity to review and comment on any revision of the procedures by 
which these tests are performed to ensure that there is no degradation 
in safety resulting from any such modification and to ensure 
consistency in how the tests are performed. FRA notes that the review 
and approval required by paragraph (b) are necessary to prevent 
railroads from making unilateral changes to the test procedures. 
Paragraph (b) requires the industry to follow the special approval 
process contained in Sec.  232.17 in order to initially submit the 
procedures to FRA for approval.
    Paragraph (c) requires the performance of a single car air brake 
test on a car equipped with ECP brakes upon the occurrence of most of 
the events identified in Sec.  232.305. Except for the exceptions 
provided herein, FRA continues to believe that Sec.  232.305 adequately 
covers the parameters and timeliness of single car air brake tests. 
Paragraph (f), however, excepts application to a car equipped with 
stand-alone ECP brakes of Sec.  232.305(b)(2), which requires a car 
that is on a shop or repair track to receive a single car air brake 
test if one has not been performed on the car within the previous 12 
months. FRA believes that since the car's CCD performs a self-
diagnostic of the brake system each time the car is initialized and 
used in a train, there is no need to perform a single car air brake 
test on a car that has not received such a test within the last 12 
months.
    FRA acknowledges that railroads may retrofit ECP brake systems on 
existing cars equipped with conventional pneumatic brake systems. While 
Sec.  232.305(e) requires a single car air brake test on each new or 
rebuilt car prior to placing or using it in revenue service, it is 
unclear whether this rule applies to cars retrofitted with ECP brake 
systems. Accordingly, to ensure the proper and safe operation of cars 
with newly installed ECP brake systems, paragraph (d) requires the 
performance of a single car air brake test prior to placing the car in 
revenue service. FRA believes that it is essential for retrofitted cars 
to receive this test prior to returning to revenue service in order to 
ensure the proper operation of the vehicle's new brake system. Since 
this is a requirement when installing a new brake system, the cost of 
this requirement is minimal and merely incorporates the industry's 
current practices.
    FRA acknowledges that, after receiving approval of the single car 
air brake test standard from FRA in accordance with paragraph (b), a 
railroad or an industry representative may--through its experience--
subsequently determine better procedures applicable to single car air 
brake tests of cars equipped with ECP brake systems. Accordingly, FRA 
recognizes that the industry may find it necessary to modify the single 
car air brake test procedures from time to time. Section 232.307 
provides regulatory procedures for those seeking modification of an 
approved single car air brake test procedure. Paragraph (b) extends the 
application of Sec.  232.307 to single car air brake test procedures 
for cars equipped with ECP brake systems.
    FRA believes that Sec.  232.307 provides the industry with a quick 
and efficient procedure to seek modification of an incorporated or 
approved testing procedure and provides both FRA and other interested 
parties an opportunity to review potential changes prior to their 
becoming effective. The process under Sec.  232.307 permits the 
industry to modify the single car air brake test procedures and permits 
those modifications to become effective 75 days from the date that FRA 
publishes the requested modification in the Federal Register, if no 
objection to the requested modification is raised by either FRA or any 
other interested party. The process allows FRA and other interested 
parties 60 days to review and raise objections to any proposed 
modification requested by the industry and submitted to FRA. FRA 
believes the process established in Sec.  232.307 will meet the needs 
of AAR and the industry to expeditiously modify the single car air 
brake test procedures required by and approved under paragraph (b).
    FRA continues to believe that, for the process to work at optimum 
efficiency, AAR and the industry would be best served if they ensure 
that there is open communication regarding any modifications with both 
FRA and the representatives of affected employees prior to requesting 
any modification of the procedures. This will ensure that interested 
parties are fully informed of any potential modification and their 
concerns are addressed or allayed before a request for modification is 
submitted to FRA. This information and dialogue will eliminate the 
potential for objections being submitted when the requested 
modification is officially sought.
    As previously noted, for ECP brake-equipped freight cars, the final 
rule contemplates replacing application of the single car air brake 
test in Sec.  232.305(a) with a new single car air brake test submitted 
and approved under Sec.  232.611(b). To make this clear, paragraph (f) 
excepts application of Sec.  232.305(a) as it applies to all cars 
equipped with ECP brakes, regardless of whether they are dual mode or 
stand-alone. To preserve the requirement of using a qualified person to 
perform single car air brake tests on cars equipped with ECP brakes, 
however, the final rule includes appropriate language in paragraphs (c) 
and (d).
    FRA acknowledges that the self-monitoring capabilities of ECP brake 
systems may eliminate the need to perform single car air brake tests on 
a time-specific basis. Accordingly, paragraph (f) also excepts Sec.  
232.305(b)(2) as it applies to single car air brake tests for cars with 
stand-alone ECP brake systems. Since cars with dual mode ECP brake 
systems include all of the components of a conventional pneumatic brake 
system and may be operated in conventional pneumatic brake mode at any 
time, paragraph (f) does not intend to provide those cars relief from 
section 232.305(b)(2).
    BLET asserts that there should be no exception from Sec.  
232.305(b)(2). According to BLET, the FMECA recommends the continuation 
of periodic single car testing to assure power brake functionality. UP 
states that it disagrees with the FRA proposal to require a single car 
air brake test whenever an ECP braked car is shopped for a non-braking 
defect. Under current AAR rules, says UP, a conventionally braked 
freight car is only subject to a single car air brake test when the 
braking system itself is service or repaired, or if 5 years have passed 
since the last such test or if 8 years had passed since the equipment 
was built.
    UP apparently misunderstands the existing rule and the proposed 
rule. In addition to the requirements under Sec.  232.305(c) and (d) 
that cars must be tested every 5 or 8 years, Sec.  232.305(b)(2) 
requires a single air brake test when the car is found on a repair 
track ``for any reason'' and it has not received a single car air brake 
test within the previous 12-month period. Since this rule was enacted, 
it has always applied to all freight cars. The single car air brake 
test

[[Page 61545]]

is critical to ensuring the safe and proper operation of the brake 
equipment on the Nation's fleet of freight cars. When FRA issued Sec.  
232.305(b)(2), the single car air brake test was the sole method by 
which air brake equipment on freight cars is periodically tested to 
identify potential problems before they result in a brake becoming 
inoperative. It will now also apply to dual mode ECP brake-equipped 
freight cars.
    However, stand-alone ECP brake-equipped freight cars will be exempt 
from Sec.  232.305(b)(2) pursuant to paragraph (f). Accordingly, each 
stand-alone ECP brake-equipped car will not require a single car air 
brake test each time it is on a repair track. FRA believes that a 
reduction in the frequency of single car air brake tests is justified 
for stand-alone ECP brake-equipped cars in light of the ECP brake 
system's self-monitoring capabilities. However, the final rule 
maintains most of the requirements under Sec.  232.305. FRA agrees with 
BLET and the FMECA that such periodic testing should continue and FRA 
continues to believe that insufficient information exists at this time 
to completely eliminate the need to conduct periodic single car air 
brake tests on ECP brake-equipped cars.
    Section 232.305(f) was initially enacted to allow the continued 
operation of cars already in service that had received a single car air 
brake test before a more formal standard was adopted by the 2001 final 
power brake rule. While paragraph (f) of Sec.  232.611 as proposed also 
excepted the application of Sec.  232.305(f), FRA believes that Sec.  
232.305(f) should actually be removed from the rules in its entirety, 
since it no longer applies to any car, regardless of its brake system 
technology. Accordingly, Sec.  232.305(f) is hereby deleted.
    With the need for the submission and adoption of a new single car 
air brake test for ECP brake systems, FRA recognizes that the same 
flexibility initially afforded by Sec.  232.305(f) may be necessary to 
allow for the continued operation of ECP brake-equipped cars currently 
in service under the existing waivers. New paragraph (g) intends to 
provide for such flexibility by considering the last single car air 
brake test performed on any ECP brake-equipped car prior to June 15, 
2009, pursuant to the then existing standards, to be considered the 
last single car air brake test for that car. Accordingly, each such car 
would not require an additional single car air brake test in accordance 
with Sec.  232.305(e) and 232.611(d).
    Under paragraph (b), no car should be in service if it has not 
received a single car air brake test under a procedural standard 
submitted to and approved by FRA. Since no such standard has yet been 
submitted and approved, all trains under the existing waiver would be 
required to be taken out of service upon the publication of this rule. 
To avoid this unintended consequence and to provide flexibility for ECP 
brake-equipped cars already in service, paragraph (g) provides more 
time for the submission and approval of a single car air brake test 
standard submitted pursuant to paragraph (b) and Sec.  232.17.
    FRA understands that AAR has formed a group, which includes AAR 
Brake Committee members, the ECP brake manufacturers, and FRA, for the 
purpose of developing single car air brake test procedures for freight 
cars equipped with ECP brakes. FRA expects these procedures will become 
part of the AAR Standards and Recommended Practices once they are 
developed and adopted by the AAR. Accordingly, for the same reasons FRA 
implemented Sec.  232.305(f) (2001), the date that all cars equipped 
with ECP brakes will receive a single car air brake test under the 
existing standard prior to June 15, 2009, shall be considered the date 
for the last single car air brake test for that car.

Section 232.613 End-of-Train Devices

    Current FRA regulations specify design and performance standards 
for one-way and two-way EOT telemetry devices, which, at a minimum, 
have the capability of determining rear-of-train brake pipe pressure 
and of transmitting this information by radio to a receiving unit in 
the controlling locomotive. Most EOT units in service are battery 
operated and also incorporate a rear end marker required under 49 CFR 
part 221. Optional features include transmission of information 
regarding rear end motion and battery status. Most units operate on the 
same ultra high frequency (UHF), but each rear unit has a discrete 
identification code which must be recognized by the HEU before the 
message is acknowledged. The more modern two-way EOT device, in 
addition to the features of the one-way EOT device, has the ability of 
activating the emergency air valve at the rear of the train upon 
receiving an emergency brake application command from the HEU. This is 
a desirable feature in event of a blockage in the brake pipe that would 
prevent the pneumatic transmission of the emergency brake application 
throughout the entire train.
    Provisions governing the use of one-way EOT telemetry devices were 
initially incorporated into the power brake regulations in 1986. 
Pursuant to the Rail Safety Enforcement and Review Act, Public Law 102-
365 (Sept. 3, 1992), which amends the Federal Rail Safety Act (FRSA) of 
1970 (45 U.S.C. 421, 431 et seq.), FRA held rulemakings to amend the 
power brake regulations, including those concerning one-way and two-way 
EOTs. 62 FR 278 (Jan. 2, 1997); 66 FR 4104 (Jan. 17, 2001). The 
resulting regulations, contained in subpart E of part 232, specify the 
requirements related to the performance, operation, and testing of EOT 
devices for conventional pneumatic braking.
    The new ECP-EOT devices--which must comply with AAR standards such 
as S-4200 and S-4220--will provide many of the same functions that 
conventional two-way EOT devices use on trains with conventional 
pneumatic brakes. In addition to serving as the final node on the ECP 
brake system's train line cable termination circuit and as the system's 
``heart beat'' monitoring and confirming train, brake pipe, power 
supply line, and digital communications cable continuity, the ECP-EOT 
device transmits to the HEU a status message that includes the brake 
pipe pressure, the train line cable's voltage, and the ECP-EOT device's 
battery power level. Since the ECP-EOT device--unlike a conventional 
EOT device--will communicate with the HEU exclusively through the 
digital communications cable and not via a radio signal, it does not 
need to perform the function of venting the brake pipe to atmospheric 
pressure to engage an emergency brake application. However, ECP-EOT 
devices do verify the integrity of the train line cable and provide a 
means of monitoring the brake pipe pressure and gradient, providing the 
basis for an automatic- rather than engineer-commanded-response if the 
system is not adequately charged. In the case of ECP brakes, the brake 
pipe becomes a redundant- rather than primary-path for sending 
emergency brake application commands. Under certain communication break 
downs between the ECP-EOT device, the HEU, and any number of CCDs, the 
system will self-initiate an emergency brake application.
    FRA acknowledges that ECP-EOT devices, with their additional and 
changed features, may not comply with the rules under subpart E. 
Accordingly, paragraph (d) excepts trains operating in ECP brake mode 
from having to comply with subpart E of part 232 and the remainder of 
section 232.613 provides alternative requirements. Paragraph (a) 
provides for the minimum requirements under which an ECP-EOT device 
must operate. Paragraph (b) requires that each ECP brake operated 
includes a properly connected ECP-EOT device that

[[Page 61546]]

comports with the requirements under paragraph (a).
    AAR and NS noted that, similarly to trains operating with 
conventional air brake systems, a train operated with ECP brakes may 
include a locomotive as the train's rear vehicle performing the same 
function as an EOT device. According to AAR, a locomotive at the rear 
of a train can perform all the functions performed by an EOT device. 
BLET concurs with AAR and NS and proposes that Sec.  232.613(c) be 
redrafted to permit the use of a locomotive in lieu of an ECP-EOT 
device. FRA agrees because a locomotive equipped with ECP brakes 
functions the same as an ECP-EOT device. They both provide the same 
feedback loop between the HEU and end of the train. Accordingly, 
paragraph (c) provides for a locomotive equipped with ECP brakes to be 
used in lieu of an ECP-EOT device in a train operated with ECP brakes.
    NYAB and Wabtec state that a conventional EOT unit is subject to 
annual calibration to address issues relating to its radio and BP 
pressure transducer. However, since an ECP-EOT device does not require 
a radio and the ECP brake system continuously monitors the brake pipe 
pressure transducer, the brake manufacturers contend, it does not 
require annual calibration.
    FRA agrees with the brake manufacturers' comments regarding annual 
ECP-EOT device calibration. Unlike conventional EOT units, ECP-EOT 
devices do not require radios. Annual calibration of the brake pipe 
pressure transducer is not necessary in light of the ECP brake system's 
brake pipe pressure readings at each individual ECP brake operated car 
and ability to confirm train line integrity. Accordingly, the final 
rule does not require annual calibration and testing.

XII. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). FRA has prepared and placed in Docket No. FRA-2006-
26175 a Regulatory Analysis addressing the economic impact of this 
final rule. Document inspection and copying facilities are available at 
the DOT Central Docket Management Facility located in Room W12-140 on 
the Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Access to the docket may also be obtained 
electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    For purposes of analysis, FRA has assumed that this final rule will 
support business decisions by Class I railroads to convert unit train 
service, such as coal and intermodal, to ECP brake operations over a 
10-year period. This type of service is characterized by intensive 
utilization of assets and is reasonably discrete in terms of 
operational requirements. Although carload service is dispersed over 
the national rail network, unit train service tends to be concentrated 
in certain corridors. Locomotives are or could be dedicated to this 
service (e.g., as in the extensive use of high traction alternating 
current (AC) locomotives in coal service). FRA believes that, as costs 
and benefits are validated and the technology's market enjoys economies 
of scale, additional markets will benefit from ECP brake technology.
    The benefits of voluntarily implementing and using ECP brakes under 
this rule substantially exceed the costs. If the industry were to 
implement ECP brakes to the extent estimated in this final rule, it 
would cost it approximately $1.7 billion (discounted at 7%). The 
largest portion of these voluntary costs, $1.2 billion, would be the 
cost to convert freight cars to ECP brakes and the remaining costs 
relate to locomotive conversion and training. The total benefits of the 
final rule would total approximately $9.7 billion (discounted at 7%), 
if ECP brakes are adopted as estimated. Of those benefits, the $1 
billion in regulatory relief and the $1.2 billion in fuel savings 
together exceed the costs. The remaining benefits include accident risk 
reduction, environmental cleanup savings, track out-of-service time 
reduction, wheel replacement savings, and network velocity 
improvements. The expected benefits of ECP braking technology appear to 
justify the investment, provided that the conversion is focused first 
on the high-mileage, unit and unit-like train services that would most 
benefit from its use.
    As presented in the following tables, FRA estimates that the 
present value (PV), discounted at 7 percent of the total 20-year 
benefits and costs which the industry would be expected to incur if it 
elected to comply with the alternative requirements contained in this 
rule is $9.7 billion and $1.7 billion, respectively:

                                 Total 20-Year Benefits and Discounted Benefits
                                                 [At 3% and 7%]
----------------------------------------------------------------------------------------------------------------
                                                                Benefits         3% Discount       7% Discount
----------------------------------------------------------------------------------------------------------------
Highway-Rail Accident Risk Reduction......................       $25,802,114       $17,897,484       $11,513,191
Rail Equipment Accident Risk Reduction....................       286,687,494       198,859,081       127,923,151
Environmental Cleanup Savings.............................       113,296,427        78,587,395        50,554,127
Track Out-of-Service Time for Accidents...................    10,825,104,763     7,508,769,780     4,830,282,231
Regulatory Relief.........................................     2,283,662,829     1,586,425,219     1,022,855,259
Fuel Savings..............................................     2,745,000,000     1,904,052,986     1,224,849,552
Wheel Replacement Savings.................................     1,601,250,000     1,110,697,575       714,495,572
Network Velocity Improvement of 1 mph.....................     2,500,000,000     2,101,494,145     1,698,459,555
                                                           -----------------------------------------------------
    Total Benefits........................................    20,380,803,627    14,506,783,665     9,680,932,638
----------------------------------------------------------------------------------------------------------------


[[Page 61547]]


                                    Total 20-Year Costs and Discounted Costs
                                                 [at 3% and 7%]
----------------------------------------------------------------------------------------------------------------
                                                                  Costs          3% Discount       7% Discount
----------------------------------------------------------------------------------------------------------------
Freight Car Costs.........................................    $1,746,326,400    $1,467,957,882    $1,186,425,904
Locomotive Costs..........................................       582,624,000       489,752,370       395,825,320
Employee Training.........................................       231,470,835       165,421,968       111,016,540
                                                           -----------------------------------------------------
    Total Costs...........................................     2,560,421,235     2,123,132,221     1,693,267,763
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in Docket 
No. FRA-2006-26175 an Analysis of Impact on Small Entities (AISE) that 
assesses the small entity impact of this rule. Document inspection and 
copying facilities are available at the Department of Transportation 
Central Docket Management Facility located in Room W12-140 on the 
Ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590. Docket material is also available on the Federal 
eRulemaking Portal at http://www.regulations.gov. Photocopies may also 
be obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment.
    Pursuant to that authority FRA has published a final statement of 
agency policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment (49 CFR part 1201). 
The same dollar limit on revenues is established to determine whether a 
railroad, shipper, or contractor is a small entity. FRA uses this 
alternative definition of ``small entity'' for this rulemaking.
    For this rulemaking, there are approximately 523 small railroads 
that could potentially receive regulatory relief. However, railroads 
are not mandated to convert to ECP brake technology. Regulatory relief 
provides an incentive for most long-haul services to convert. Smaller 
railroads do not operate over 1,000 miles or 1,500 miles and would not 
benefit economically by converting to this technology. Hence, FRA does 
not expect this regulation to impact any small railroads.
    The small entity segment of the railroad industry faces little in 
the way of intramodal competition. Small railroads generally serve as 
``feeders'' to the larger railroads, collecting carloads in smaller 
numbers and at lower densities than would be economical for the larger 
railroads. Smaller railroads that carry unit and unit-like commodities 
often operate the train with the locomotives and cars without ownership 
of the equipment. They transport those cars over relatively short 
distances and then turn them over to the larger systems, which 
transport them relatively long distances to their ultimate destination, 
or for handoff back to a smaller railroad for final delivery. Although 
there are situations in which the relative interests of large and small 
railroads may not always coincide, the relationships between the large 
and small entity segments of the railroad industry are more supportive 
and co-dependent than competitive.
    It is also extremely rare for small railroads to compete with each 
other. As mentioned above, small railroads generally serve smaller, 
lower density markets and customers. They exist, and often thrive, 
doing business in markets where there is not enough traffic to attract 
the larger carriers that are designed to handle large volumes over 
distance at a profit. As there is usually not enough traffic to attract 
service by a large carrier, there is also not enough traffic to sustain 
more than one smaller carrier. There are also significant barriers to 
entry in the railroad industry, including the need to own rights-of-
way, build track, purchase fleets. Thus, even to the extent that the 
rule may have an economic impact, it should have no impact on the 
intramodal competitive position of small railroads.
    The AISE developed in connection with this final rule concludes 
that this final rule will only likely impact four Class I railroads 
that voluntarily choose to implement ECP brakes in their operations and 
therefore should not have any economic impact on small entities. 
Smaller railroads that carry unit and unit-like commodities often 
operate and transport trains owned by other parties over relatively 
short distances and turn them over to larger systems that, in turn, 
transport those trains relatively long distances to their ultimate 
destination or to another small railroad for final delivery. FRA 
recognizes that small entities may, in some cases, be involved in 
specific route segments for trains that originate or terminate on a 
Class I railroad. In these cases, the cars involved are more likely to 
be owned or provided by shippers or a Class I railroad. Mutual support 
arrangements and shared power practices are likely to ensure that the 
smaller railroad will not require trains equipped with ECP brakes for 
this service. Further, FRA anticipates that train operations using ECP 
brakes will be limited to long hauls of commodities such as intermodal, 
coal, ore, non-metallic minerals, motor vehicle parts, and grain for 
many years. Since small railroads do not handle such commodities, they 
will not likely receive large blocks of cars equipped with ECP brakes 
from Class I railroads.
    Since FRA does not expect small railroads to convert to ECP brake 
technology within the period of the analysis, this final rule is not 
anticipated to affect any small entities. Thus, FRA certifies that this 
final rule is not expected to have a significant economic impact on a 
substantial number of small entities under the

[[Page 61548]]

Regulatory Flexibility Act or Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
229.27--Annual tests............  30,000 locomotives  30,000 tests......  15 minutes........  7,500 hours.
232.3--Applicability--Export,     559 railroads.....  8 cards...........  10 minutes........  1 hour.
 industrial, & other cars not
 owned by railroads-
 identification.
232.7--Waivers..................  559 railroads.....  20 petitions......  40 hours..........  800 hours.
232.11--Penalties--Knowingly      559 railroads.....  1 falsified recd/   10 minutes........  .17 hour.
 falsifying a record/report.                           rpt.
232.15--Movement of Defective
 Equipment:
    --Tags......................  1,620,000 cars....  128,400 tags......  2.5 minutes.......  5,350 hours.
    --Written Notification......  1,620,000 cars....  25,000 notices....  3 minutes.........  1,250 hours.
232.17--Special Approval
 Procedure:
    --Petitions for special       559 railroads.....  4 petitions.......  100 hours.........  400 hours.
     approval of safety-critical
     revision.
    --Petitions for special       559 railroads.....  2 petitions.......  100 hours.........  200 hours.
     approval of pre-revenue
     service acceptance plan.
    --Service of petitions......  559 railroads.....  4 petitions.......  40 hours..........  160 hours.
    --Statement of interest.....  Public/railroads..  14 statements.....  8 hours...........  112 hours.
    --Comment...................  Public/railroads..  13 comments.......  4 hours...........  52 hours.
232.103--Gen'l requirements--all  114,000 cars......  70,000 stickers...  10 minutes........  11,667 hours.
 train brake systems.
232.105--Gen'l requirements for   30,000 locomotives  30,000 forms......  5 minutes.........  2,500 hours.
 locomotives--Inspection.
232.107--Air source requirements  10 new railroads..  1 plan............  40 hours..........  40 hours.
 and cold weather operations--
 Monitoring Plan (Subsequent
 Years).
    --Amendments to Plan........  50 railroads/plans  10 amendments.....  20 hours..........  200 hours.
    --Recordkeeping.............  50 railroads/plans  1,150 records.....  20 hours..........  23,000 hours.
232.109--Dynamic brake            559 railroads.....  1,656,000 records.  4 minutes.........  110,400 hours.
 requirements--status.
    --Inoperative dynamic brakes  30,000 locomotives  6,358 records.....  4 minutes.........  424 hours.
    --Tag bearing words           30,000 locomotives  6,358 tags........  30 seconds........  53 hours.
     ``inoperative dynamic
     brakes''.
    --Deactivated dynamic brakes  8,000 locomotives.  10 stencilings....  5 minutes.........  1 hour.
     (Sub. Yrs.).
    --Operating rules             5 new railroads...  5 op. rules.......  4 hours...........  20 hours.
     (Subsequent Years).
    --Amendments................  559 railroads.....  15 amendments.....  1 hour............  15 hours.
    --Requests to increase 5 mph  559 railroads.....  5 requests........  30 min/20 hrs.....  103 hours.
     overspeed restriction.
    --Knowledge criteria--        5 new railroads...  5 amendments......  16 hours..........  80 hours.
     locomotive engineers--Sub
     Yrs.
232.111--Train information        5 new railroads...  5 procedures......  40 hours..........  200 hours.
 handling.
    --Sub. Yrs.--Amendments.....  100 railroads.....  100 amendments....  20 hours..........  2,000 hours.
    --Report requirements to      559 railroads.....  2,112,000 reports.  10 minutes........  352,000 hours.
     train crew.
232.203--Training requirements--
 Tr. Prog.:
    --Sub Yr....................  15 railroads......  5 programs........  100 hours.........  500 hours.
    --Amendments to written       559 railroads.....  559 amendments....  8 hours...........  4,472 hours.
     program.
    --Training records..........  559 railroads.....  67,000 records....  8 minutes.........  8,933 hours.
    --Training notifications....  559 railroads.....  67,000 notific....  3 minutes.........  3,350 hours.
    --Audit program.............  559 railroads.....  1 plan/559 cop....  40 hours/1 min....  49 hours.
    --Amendments to validation/   559 railroads.....  50 amendments.....  20 hours..........  1,000 hours.
     assessment program.
232.205--Class 1 brake test--     559 railroads.....  1,646,000 records.  45 seconds........  20,575 hours.
 Notifications/Records.
232.207--Class 1A brake tests--   559 railroads.....  5 des. Lists......  1 hour............  5 hours.
 Subsequent Years.
    --Notification..............  559 railroads.....  5 amendments......  1 hour............  5 hours.
232.209--Class II brake tests--   559 railroads.....  1,597,400 commun..  3 seconds.........  1,331 hours.
 intermediate inspection.
232.213--Extended haul trains...  83,000 long dist.   100 letters.......  15 minutes........  25 hours.
                                   movements.
    --Record of all defective/    N/A...............  N/A...............  N/A...............  N/A.
     inoperative brakes.
232.303--Gen'l requirements--     1,600,000 frgt.     5,600 tags........  5 minutes.........  467 hours.
 single car test.                  cars.

[[Page 61549]]

 
    --Last repair track brake     1,600,000 frgt.     320,000 stncl.....  5 minutes.........  26,667 hours.
     test/single car test.         cars.
232.305--Single Car tests.......  1,600,000 frgt.     320,00 tests/       45 minutes........  240,000 hours.
                                   cars.               records.
232.307--Modification of Single   AAR...............  1 req. + 3 copies.  4 hrs. + 5 min....  4 hours.
 Car Air Brake Test Procedures
 (Old Rqmnt)--Req.
    --Affirmation Statement on    AAR...............  1 statement + 4     30 min. + 5 min...  1 hour.
     Mod. Req. to Employee                             copies.
     Representatives.
    --Comments on Modification    Public/Int.         2 comments........  60 minutes........  2 hours.
     Request.                      Parties.
232.309--Repair track brake test  640 shops.........  5,000 tests.......  30 minutes........  2,500 hours.
232.403--Unique Code............  245 railroads.....  12 requests.......  5 minutes.........  1 hour.
232.407--Operations requiring 2-  245 railroads.....  50,000 comm.......  30 seconds........  417 hours.
 way EOTs.
232.409--Insp. and Testing of     245 railroads.....  447,500 comm......  30 seconds........  3,729 hours.
 EOTs.
    --Telemetry Equipment--       245 railroads.....  32,708 mar. units.  1 minute..........  545 hours.
     Testing and Calibration.
232.503--Process to introduce     559 railroads.....  1 letter..........  1 hour............  1 hour.
 new brake technology.
    --Special approval..........  559 railroads.....  1 request.........  3 hours...........  3 hours.
232.505--Pre-revenue svc accept.  559 railroads.....  1 procedure.......  160 hours.........  160 hours.
 test plan--Sub Yr.
    --Amendments................  559 railroads.....  1 procedure.......  40 hours..........  40 hours.
    --Design description........  559 railroads.....  1 petition........  67 hours..........  67 hours.
    --Report to FRA Assoc.        559 railroads.....  1 report..........  13 hours..........  13 hours.
     Admin. for Safety.
    --Brake system technology     559 railroads.....  5 descriptions....  40 hours..........  200 hours.
     testing.
232.603--Configuration
 Management--New Requirements.
    --Configuration Management    4 railroads.......  1 plan............  160 hours.........  160 hours.
     Plan Submitted to FRA.
    --Subsequent Years..........  4 railroads.......  1 plan............  60 hours..........  60 hours.
    --Modification of Standards.  4 railroads.......  1 request + 2       8 hours + 5 min...  8 hours.
                                                       copies.
    --Affirmative statement +     4 railroads.......  4 statements + 24   1 hour + 5 min....  6 hours.
     statement copies re:                              copies.
     modification request.
    --Comments on requested       Public/Int.         4 comments........  2 hours...........  8 hours.
     modification.                 Parties.
232.605--ECP Brakes: Training--   4 railroads.......  4 programs........  100 hours.........  400 hours.
 New Requirements.
    --Adopt/Developing an ECP     4 railroads.......  2 programs........  100 hours.........  200 hours.
     Training Prog.--Yr. One.
    --Subsequent Years..........
    --ECP Brakes Training of      4 railroads.......  6,409 tr. Empl....  8 hrs/24 hrs......  105,512 hours.
     Employees--Yr. One.
    --ECP Brakes Training of      4 railroads.......  6,409 tr. Empl....  1 hour/8 hours....  30,264 hours.
     Employees--Sub. Yrs.
    --ECP Training Records--Yr.   4 railroads.......  6,409 records.....  8 minutes.........  855 hours.
     One.
    --ECP Training Records--      4 railroads.......  6,409 records.....  4 minutes.........  428 hours.
     Subsequent Years.
    --Assessment of ECP Training  4 railroads.......  4 plans...........  40 hours..........  160 hours.
     Plan.
    --Adopt Operating Rules for   4 railroads.......  4 Op. Rules.......  24 hours..........  96 hours.
     ECP Brakes.
    --Loco. Engineers--ECP        4 railroads.......  4 amended Programs  40 hours..........  160 hours.
     Brakes Systems: Criteria
     For Certification.
232.607--ECP Inspection and
 Testing--New Requirements:
    --Initial Terminal--          4 railroads.......  10,000 insp. +      90 min. + 45 sec..  15,125 hours.
     Inspections and                                   10,000 notific.
     Notification of Class I
     Brake Tests.
    --Cars added or removed en    4 railroads.......  1,000 insp. + 500   60 min. + 45 sec..  1,006 hours.
     route--Class I Br. Test.                          notific.
    --Non-ECP cars added to ECP   200 Cars..........  200 insp. + 400     5 min. + 2.5 min..  34 hours.
     Trains--Inspections and                           tags/rcds.
     Tags for Defective Cars.
232.609--Handling of Defective
 Equipment with ECP Brake
 Systems--New Requirements:
    --Freight Car w/defective     25 Cars...........  50 tags...........  2.5 minutes.......  2 hours.
     conventional brakes moved
     in train operating in ECP
     brake mode.
    --Inspections/Tagging for     20 Cars...........  20 Insp. + 40 tags/ 5 min. + 2.5 min..  3 hours.
     ECP Train moving w/less                           records.
     than 85 percent operative/
     effective brakes.

[[Page 61550]]

 
232.609--Freight Car with ECP     75 Cars...........  150 tags..........  2.5 minutes.......  6 hours.
 brake system found with
 defective non-brake safety
 appliance--Tagging.
    --Conventional Train with     500 Cars..........  1,000 tags........  2.5 minutes.......  42 hours.
     stand-alone ECP brake
     equipped cars--Tagging.
    --Procedures for handling     4 railroads.......  4 procedures......  24 hours..........  96 hours.
     ECP brake system repairs
     and designation of repair
     locations.
    --List of repair locations..  4 railroads.......  4 lists...........  8 hours...........  32 hours.
    --Notification to FRA Safety  4 railroads.......  1 notification....  1 hour............  1 hour.
     Administrator regarding
     change to repair location
     list.
232.611--Periodic Maintenance--
 New Requirements:
    --Inspections before being    500 fr. Cars......  500 insp. &         10 minutes........  83 hours.
     released from repair Shop.                        records.
    --Procedures for ECP Single   1 Railroad Rep....  1 procedure + 2     24 hours + 5 min..  24 hours.
     Car Tests.                                        copies.
     --Single Car Air Brake       2,500 fr. Cars....  2,500 tests/rcd...  45 minutes........  1,875 hours.
     Tests--Records.
    --Modification of Single Car  1 Railroad Rep....  1 mod. Proc.......  40 hours..........  40 hours.
     Test Standards.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or contact Ms. Nakia 
Jackson at 202-493-6073; or via e-mail at [email protected] or 
[email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. Comments to OMB may 
be sent by mail to: The Office of Management and Budget, 725 17th St., 
NW., Washington, DC 20503, attn: FRA Desk Officer. Comments may also be 
sent to OMB at the following address: [email protected].
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of this final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects 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.'' Under Executive Order 13132, the agency 
may not issue a regulation with Federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the proposed regulation. 
Where a regulation has Federalism implications and preempts State law, 
the agency seeks to consult with State and local officials in the 
process of developing the regulation.
    In the NPRM, FRA stated that this proposed rule has preemptive 
effect. Subject to a limited exception for essentially local safety or 
security hazards, FRA stated that its requirements will establish a 
uniform Federal safety standard that must be met, and state 
requirements covering the same subject are displaced, whether those 
standards are in the form of state statutes, regulations, local 
ordinances, or other forms of state law, including state common law. 
Section 20106 of Title 49 of the United States Code, FRA said, provides 
that all regulations prescribed by the Secretary related to railroad 
safety preempt any State law, regulation, or order covering the same 
subject matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. This is consistent with past practice at FRA and 
within the Department of Transportation. In particular, the notice of 
proposed rulemaking did not change the preemption provision of part 
232; this final rule amends the preemption provision, Sec.  232.13, to 
conform to the recent clarifying amendments to 49 U.S.C. 20106.
    AAJ filed comments expressing its belief that FRA should revise the 
``Federalism Implications'' section of the preamble to reflect 
Congress's intention that federal rail safety regulations do not 
preempt an individual's right to pursue a state tort law claim against 
a railroad company. According to AAJ, section 1528 of the 
``Implementing Recommendation of the 9/11 Commission Act of 2007'' (the 
9/11 Act) clarifies that 49 U.S.C. 20106 does not preempt State law 
causes of action. AAR disagrees, stating that, by its plain language, 
section 1528 ``is intended solely to reject a preemption

[[Page 61551]]

defense where the defendant has violated the federal standard of care 
embodied in a federal regulation or a plan created pursuant to a 
federal regulation.'' According to AAR, section 1528 does not eliminate 
preemption of common law claims, but reaffirms that state law is 
preempted whenever the Secretaries of Transportation and Homeland 
Security issue a regulation or order covering the applicable subject 
matter, unless the local safety or security hazard exception applies.
    Normal State negligence standards apply where there is no Federal 
action covering the subject matter. In Section 1528 of Public Law 110-
53, Congress clarified the availability of State law causes of action 
under section 20106 where there is Federal action covering the subject 
matter. As amended, 49 U.S.C. 20106 provides that issuance of these 
regulations preempts any State law, regulation, or order covering the 
same subject matter, except an additional or more stringent law, 
regulation, or order that is necessary to eliminate or reduce an 
essentially local railroad safety or railroad security hazard; that is 
not incompatible with a law, regulation, or order of the United States 
Government; and that does not unreasonably burden interstate commerce. 
Section 20106 permits State tort actions arising from events or 
activities occurring on or after January 18, 2002, for the following: 
(a) A violation of the Federal standard of care established by 
regulation or order issued by the Secretary of Transportation (with 
respect to railroad safety, such as these regulations) or the Secretary 
of Homeland Security (with respect to railroad security); (b) a party's 
violation of, or failure to comply with, its own plan, rule, or 
standard that it created pursuant to a regulation or order issued by 
either of the two Secretaries; and (c) a party's violation of a State 
standard that is necessary to eliminate or reduce an essentially local 
safety or security hazard, is not incompatible with a law, regulation, 
or order of the United States Government, and does not unreasonably 
burden interstate commerce. Nothing in Section 20106 creates a Federal 
cause of action on behalf of an injured party or confers Federal 
question jurisdiction for such State law causes of action.
    While this recent amendment has altered the preemptive reach of 
Section 20106, it is important to note that there are limits to this 
exception allowing state tort actions under this statute. For example, 
Congress provided an exception only for an action in State court 
seeking damages for personal injury, death, or property damage. The 
statute does not provide for the recovery of punitive damages in the 
permitted common law tort actions. In addition, the statute permits 
actions for violation of an internal plan, rule, or standard only when 
such internal plan, rule, or standard is created pursuant to a Federal 
regulation or order issued by DOT or DHS. While parties are encouraged 
to go beyond the minimum regulatory standard in establishing internal 
safety and security standards, such standards that exceed the 
requirements of Federal regulation or order are not created pursuant to 
Federal regulation or order. Accordingly, there is no clear 
authorization of a common law tort action alleging a violation of those 
aspects of such an internal plan, rule, or standard related to the 
subject matter of this regulation that exceed the minimum required by 
the Federal regulation or order.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. 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 various levels of government. FRA 
concludes that this final rule will not impose any direct compliance 
costs on State and local governments and has no federalism 
implications, other than the preemption of state laws covering the 
subject matter of this final rule, which occurs by operation of law 
under 49 U.S.C. 20106 whenever FRA issues a rule or order. Elements of 
the final rule dealing with safety appliances affect an area of safety 
that has been pervasively regulated at the Federal level for over a 
century. Accordingly, the final rule amendments in that area will 
involve no impacts on Federal relationships.

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows: (c) 
Actions categorically excluded. Certain classes of FRA actions have 
been determined to be categorically excluded from the requirements of 
these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * * (20) 
Promulgation of railroad safety rules and policy statements that do not 
result in significantly increased emissions or air or water pollutants 
or noise or increased traffic congestion in any mode of transportation.
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), 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).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $132,000,000 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. This final rule may result in the 
expenditure, in the aggregate, of $132,000,000 or more in any one year. 
However, those expenses are not mandated and would only be incurred by 
the private sector if it wishes to take advantage of the regulatory 
relief provided by this final rule. Although the preparation of such a 
statement is not required, the analytical requirements under Executive 
Order 12866 are similar to the analytical requirements under the 
Unfunded Mandates Reform Act of 1995 and, thus, the same analysis 
complies with both analytical requirements.

[[Page 61552]]

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

List of Subjects in 49 CFR Part 232

    Electronically controlled pneumatic brakes, Incorporation by 
reference, Penalties, Railroad power brakes, Railroad safety, Two-way 
end-of-train devices.

The Rule

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

PART 232--BRAKE SYSTEM SAFETY STANDARDS FOR FREIGHT AND OTHER NON-
PASSENGER TRAINS AND EQUIPMENT; END OF TRAIN DEVICES

0
1. The authority citation for Part 232 continues to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 
1.49.


0
2. Section 232.5 is amended by adding definitions car control device 
(CCD), dual mode ECP brake system, ECP, ECP brake mode, ECP brake 
system, ECP-EOT device, emulator CCD, overlay ECP brake system, stand-
alone CCD, stand-alone ECP brake system, switch mode, and train line 
cable; by revising the definition train, unit or train, cycle and 
adding the definition yard limits as follows in alphabetical order:


Sec.  232.5  Definitions.

* * * * *
    Car control device (CCD) means an electronic control device that 
replaces the function of the conventional pneumatic service and 
emergency portions of a car's air brake control valve during electronic 
braking and provides for electronically controlled service and 
emergency brake applications.
    Dual mode ECP brake system means an ECP brake system that is 
equipped with either an emulator CCD or an overlay ECP brake system on 
each car which can be operated in either ECP brake mode or conventional 
pneumatic brake mode.
    ECP means ``electronically controlled pneumatic'' when applied to a 
brake or brakes.
    ECP brake mode means operating a car or an entire train using an 
ECP brake system.
    ECP brake system means a train power braking system actuated by 
compressed air and controlled by electronic signals from the locomotive 
or an ECP-EOT to the cars in the consist for service and emergency 
applications in which the brake pipe is used to provide a constant 
supply of compressed air to the reservoirs on each car but does not 
convey braking signals to the car. ECP brake systems include dual mode 
and stand-alone ECP brake systems.
    ECP-EOT device means an end-of-train device for an ECP brake system 
that is physically the last network node in the train, pneumatically 
and electrically connected at the end of the train to the train line 
cable operating with an ECP brake system.
* * * * *
    Emulator CCD means a CCD that is capable of optionally emulating 
the function of the pneumatic control valve while in a conventionally 
braked train.
* * * * *
    Overlay ECP brake system means a brake system that has both 
conventional pneumatic brake valves and ECP brake components, making it 
capable of operating as either a conventional pneumatic brake system or 
an ECP brake system. This brake system can operate in either a 
conventionally braked train using the conventional pneumatic control 
valve or in an ECP braked train using the ECP brake system's CCD.
* * * * *
    Stand-alone CCD means a CCD that can operate properly only in a 
train operating in ECP brake mode and cannot operate in a conventional 
pneumatically braked train.
    Stand-alone ECP brake system means a brake system equipped with a 
CCD that can only operate the brakes on the car in ECP brake mode.
* * * * *
    Switch Mode means a mode of operation of the ECP brake system that 
allows operation of that train at 20 miles per hour or less when the 
train's ECP-EOT device is not communicating with the lead locomotive's 
HEU, the train is separated during road switching operations, or the 
ECP brake system has stopped the train because the percentage of 
operative brakes fell below 85%. Many of the ECP brake system's fault 
detection/response procedures are suspended during Switch Mode.
* * * * *
    Train line cable is a two-conductor electric wire spanning the 
train and carrying both electrical power to operate all CCDs and ECP-
EOT devices and communications network signals.
    Train, unit or train, cycle means a train that, except for the 
changing of locomotive power or for the removal or replacement of 
defective equipment, remains coupled as a consist and operates in a 
continuous loop or continuous loops without destination.
* * * * *
    Yard limits means a system of tracks, not including main tracks and 
sidings, used for classifying cars, making-up and inspecting trains, or 
storing cars and equipment.
* * * * *
0
3. Section 232.13 is amended by revising paragraph (a) to read as 
follows:


Sec.  232.13  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, rule, regulation, order or standard covering 
the same subject matter, except for a provision necessary to eliminate 
or reduce a local safety hazard if that provision is not incompatible 
with this part and does not impose an undue burden on interstate 
commerce. Nothing in this paragraph shall be construed to preempt an 
action under State law seeking damages for personal injury, death, or 
property damage alleging that a party has failed to comply with the 
Federal standard of care established by this part, has failed to comply 
with its own plan, rule, or standard that it created pursuant to this 
part, or has failed to comply with a State law, regulation, or order 
that is not incompatible with the first sentence of this paragraph.
* * * * *
0
4. Section 232.17 is amended by revising paragraphs (a) and (b) to read 
as follows:

[[Page 61553]]

Sec.  232.17  Special approval procedure.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of a plan under Sec.  
232.15(g); an alternative standard under Sec.  232.305, Sec.  232.603, 
or a single car test procedure under Sec.  232.611; and pre-revenue 
service acceptance testing plans under subpart F of this part.
    (b) Petitions for special approval of an alternative standard or 
test procedure. Each petition for special approval of a plan under 
Sec.  232.15(g); an alternative standard under Sec.  232.305 or Sec.  
232.603; or a single car test procedure under Sec.  232.611 shall 
contain:
    (1) The name, title, address, and telephone number of the primary 
person to be contacted with regard to review of the petition;
    (2) The plan, alternative standard, or test procedure proposed, in 
detail, to be submitted for or to meet the particular requirement of 
this part;
    (3) Appropriate data or analysis, or both, for FRA to consider in 
determining whether the plan, alternative standard, or test procedure, 
will be consistent with the guidance under Sec.  232.15(f), if 
applicable, and will provide at least an equivalent level of safety or 
otherwise meet the requirements contained in this part; and
    (4) A statement affirming that the railroad has served a copy of 
the petition on designated representatives of its employees, together 
with a list of the names and addresses of the persons served.
* * * * *
0
5. Section 232.103 is amended by revising paragraph (f) to read as 
follows:


Sec.  232.103  General requirements for all train brake systems.

* * * * *
    (f) Each car in a train shall have its air brakes in effective 
operating condition unless the car is being moved for repairs in 
accordance with Sec. Sec.  232.15 and 232.609. The air brakes on a car 
are not in effective operating condition if its brakes are cut-out or 
otherwise inoperative or if the piston travel exceeds:
    (1) 10 1/2 inches for cars equipped with nominal 12-inch stroke 
brake cylinders; or
    (2) The piston travel limits indicated on the stencil, sticker, or 
badge plate for the brake cylinder with which the car is equipped.
* * * * *
0
6. Section 232.205 is amended by revising the first two sentences of 
paragraph (c)(5) to read as follows:


Sec.  232.205  Class I brake test-initial terminal inspection.

* * * * *
    (c) * * *
    (5) For cars equipped with 8\1/2\-inch or 10-inch diameter brake 
cylinders, piston travel shall be within 6 to 9 inches. If piston 
travel is found to be less than 6 inches or more than 9 inches, it must 
be adjusted to nominally 7\1/2\ inches. * * *
* * * * *


Sec.  232.213  [Amended]

0
7. Section 232.213 is amended by removing paragraphs (a)(6) and (a)(7) 
and redsignating paragraphs (a)(8) and (a)(9) as (a)(6) and (a)(7) 
respectively.
0
8. Section 232.303 is amended by revising the first three sentences of 
paragraph (c) to read as follows:


Sec.  232.303  General requirements.

* * * * *
    (c) A car on a shop or repair track shall have its piston travel 
inspected. For cars equipped with 8\1/2\-inch or 10-inch diameter brake 
cylinders, piston travel shall be within 6 to 9 inches. If piston 
travel is found to be less than 6 inches or more than 9 inches, it must 
be adjusted to nominally 7\1/2\ inches. * * *
* * * * *
0
9. Section 232.305 is amended by revising the first sentence of 
paragraph (a) and removing paragraph (f); the revision reads as 
follows:


Sec.  232.305  Single car air brake tests.

    (a) Single car air brake tests shall be performed by a qualified 
person in accordance with either Section 3.0, ``Tests-Standard Freight 
Brake Equipment,'' and Section 4.0, ``Special Tests,'' of the 
Association of American Railroads Standard S-486-04, ``Code of Air 
Brake System Tests for Freight Equipment,'' contained in the AAR Manual 
of Standards and Recommended Practices, Section E (January 1, 2004); an 
alternative procedure approved by FRA pursuant to Sec.  232.17; or a 
modified procedure approved in accordance with the provisions contained 
in Sec.  232.307. * * *
* * * * *
0
10. Part 232 is amended by adding a new subpart G to read as follows:

Subpart G--Electronically Controlled Pneumatic (ECP) Braking 
Systems

Sec.
232.601 Scope.
232.602 Applicability.
232.603 Design, interoperability, and configuration management 
requirements.
232.605 Training requirements.
232.607 Inspection and testing requirements.
232.609 Handling of defective equipment with ECP brake systems.
232.611 Periodic maintenance.
232.613 End-of-train devices.


Sec.  232.601  Scope.

    This subpart contains specific requirements applicable to freight 
trains and freight cars equipped with ECP brake systems. This subpart 
also contains specific exceptions from various requirements contained 
in this part for freight trains and freight cars equipped with ECP 
brake systems.


Sec.  232.602  Applicability.

    This subpart applies to all railroads that operate a freight car or 
freight train governed by this part and equipped with an ECP brake 
system. Unless specifically excepted or modified in this section, all 
of the other requirements contained in this part are applicable to a 
freight car or freight train equipped with an ECP brake system.


Sec.  232.603  Design, interoperability, and configuration management 
requirements.

    (a) General. A freight car or freight train equipped with an ECP 
brake system shall, at a minimum, meet the Association of American 
Railroads (AAR) standards contained in the AAR Manual of Standards and 
Recommended Practices related to ECP brake systems listed below; an 
alternate standard approved by FRA pursuant to Sec.  232.17; or a 
modified standard approved in accordance with the provisions contained 
in paragraph (f) of this section. The incorporation by reference of the 
AAR standards identified in this section was approved by the Director 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Copies of the incorporated documents may be obtained from the 
Association of American Railroads, 50 F Street, NW., Washington, DC 
20001, 202-639-2100, www.aar.org. You may inspect a copy at the Federal 
Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC, 
202-493-6300 or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. The applicable 
standards, which are incorporated into this regulation by reference, 
include the following:
    (1) AAR S-4200, ``Electronically Controlled Pneumatic (ECP) Cable-
Based Brake Systems--Performance Requirements,'' (Adopted 1999; 
Revised: 2002, 2004, 2008);

[[Page 61554]]

    (2) AAR S-4210, ``ECP Cable-Based Brake System Cable, Connectors, 
and Junction Boxes--Performance Specifications,'' (Adopted: 1999; 
Revised 2002, 2007);
    (3) AAR S-4220, ``ECP Cable-Based Brake DC Power Supply--
Performance Specification,'' Version 2.0 (Adopted: 1999; Revised: 
2002);
    (4) AAR S-4230, ``Intratrain Communication (ITC) Specification for 
Cable-Based Freight Train Control System,'' Version 3.0 (Adopted: 1999; 
Revised: 2002, 2004);
    (5) AAR S-4240, ``ECP Brake Equipment--Approval Procedure'' 
(Adopted: 2007);
    (6) AAR S-4250, ``Performance Requirements for ITC Controlled 
Cable-Based Distributed Power Systems,'' Version 2.0 (Adopted: 2003; 
Revised: 2004);
    (7) AAR S-4260, ``ECP Brake and Wire Distributed Power 
Interoperability Test Procedures'' (Adopted: 2007); and
    (8) AAR S-4270, ``ECP Brake System Configuration Management'' 
(Adopted: 2008).
    (b) Approval. A freight train or freight car equipped with an ECP 
brake system and equipment covered by the AAR standards incorporated by 
reference in this section shall not be used without conditional or 
final approval by AAR in accordance with AAR Standard S-4240, ``ECP 
Brake Equipment--Approval Procedures'' (2007).
    (c) Configuration management. A railroad operating a freight train 
or freight car equipped with ECP brake systems shall adopt and comply 
with the configuration management plan developed in accordance with the 
AAR standards incorporated by reference in this section. FRA reserves 
the right to audit a manufacturer's configuration management plan at 
any time.
    (d) Exceptions. (1) A freight car or freight train equipped with a 
stand-alone ECP brake system shall be excepted from the requirement in 
Sec.  232.103(l) referencing AAR Standard S-469-47, ``Performance 
Specification for Freight Brakes.''
    (2) The provisions addressing the introduction of new brake system 
technology contained in subpart F of this part are not applicable to a 
freight car or freight train equipped with an ECP brake system approved 
by AAR in accordance with paragraph (b) of this section, conditionally 
or otherwise, as of the effective date of this rule.
    (e) New technology. Upon written request supported by suitable 
justification and submitted pursuant to the special approval procedures 
in Sec.  232.17, the Associate Administrator may except from the 
requirements of subpart F of this part the testing of new ECP brake 
technology, demonstration of new ECP brake technology, or both, where 
testing or demonstration, or both, will be conducted pursuant to an 
FRA-recognized industry standard and FRA is invited to monitor the 
testing or demonstration, or both.
    (f) Modification of standards. The AAR or other authorized 
representative of the railroad industry may seek modification of the 
industry standards identified in or approved pursuant to paragraph (a) 
of this section. The request for modification will be handled and shall 
be submitted in accordance with the modification procedures contained 
in Sec.  232.307.


Sec.  232.605  Training requirements.

    (a) Inspection, testing and maintenance. A railroad that operates a 
freight car or freight train equipped with an ECP brake system and each 
contractor that performs inspection, testing, or maintenance on a 
freight car or freight train equipped with an ECP brake system shall 
adopt and comply with a training, qualification, and designation 
program for its employees that perform inspection, testing or 
maintenance of ECP brake systems. The training program required by this 
section shall meet the requirements in Sec. Sec.  232.203(a), (b), (e), 
and (f).
    (b) Operating rules. A railroad operating a freight train or 
freight car equipped with an ECP brake system shall amend its operating 
rules to govern safe train handling procedures related to ECP brake 
systems and equipment under all operating conditions and shall tailor 
its operating rules to the specific equipment and territory of the 
railroad.
    (c) Locomotive engineers. A railroad operating a freight car or 
freight train equipped with an ECP brake system shall adopt and use in 
its training program under part 240 specific knowledge, skill, and 
ability criteria to ensure that its locomotive engineers are fully 
trained with the operating rules governing safe train handling 
procedures related to ECP brake systems and equipment under all 
operating conditions and tailored to the specific equipment and 
territory of the railroad.


Sec.  232.607  Inspection and testing requirements.

    (a) Trains at initial terminal. A freight train operating in ECP 
brake mode shall receive the following inspections at its point of 
origin (initial terminal):
    (1) A Class I brake test as described in Sec.  232.205(c) by a 
qualified mechanical inspector (QMI); and
    (2) A pre-departure inspection pursuant to part 215 of this chapter 
by an inspector designated under Sec.  215.11 of this chapter.
    (b) Trains en route. (1) Except for a unit or cycle train, a train 
operating in ECP brake mode shall not operate a distance that exceeds 
its destination or 3,500 miles, whichever is less, unless inspections 
meeting the requirements of paragraph (a) of this section are performed 
on the train.
    (2) A unit or cycle train operating in ECP brake mode shall receive 
the inspections required in paragraph (a) of this section at least 
every 3,500 miles.
    (3) The greatest distance that any car in a train has traveled 
since receiving a Class I brake test by a qualified mechanical 
inspector will determine the distance that the train has traveled.
    (4) A freight train operating in ECP brake mode shall receive a 
Class I brake test as described in Sec.  232.205(c) by a qualified 
person at a location where the train is off air for a period of more 
than:
    (i) 24 hours, or
    (ii) 80 hours, if the train remains inaccessible to the railroad 
and in an extended-off-air facility. For the purpose of this section, 
an extended-off-air facility means a location controlled by a sole 
shipper or consignee which restricts access to the train and provides 
sufficient security to deter vandalism.
    (c) Cars added en route. (1) Each freight car equipped with an ECP 
brake system that is added to a freight train operating in ECP brake 
mode shall receive a Class I brake test as described in Sec.  
232.205(c) by a qualified person, unless all of the following are met:
    (i) The car has received a Class I brake test by a qualified 
mechanical inspector within the last 3,500 miles;
    (ii) Information identified in Sec.  232.205(e) relating to the 
performance of the previously received Class I brake test is provided 
to the train crew;
    (iii) The car has not been off air for more than 24 hours or for 
more than 80 hours, if that train remains in an extended-off-air 
facility; and
    (iv) A visual inspection of the car's brake systems is conducted to 
ensure that the brake equipment is intact and properly secured. This 
may be accomplished as part of the inspection required under Sec.  
215.13 of this chapter and may be conducted while the car is off air.
    (2) Each car and each solid block of cars not equipped with an ECP 
brake system that is added to a train operating in ECP brake mode shall 
receive a visual inspection to ensure it is properly placed in the 
train and safe to operate and shall be moved and tagged in

[[Page 61555]]

accordance with the provisions contained in Sec.  232.15.
    (d) Class III brake test (1) A Class III brake test shall be 
performed on a freight train operating in ECP brake mode by a qualified 
person, as defined in Sec.  232.5, to test the train's brake system 
whenever the continuity of the brake pipe or electrical connection is 
broken or interrupted.
    (2) In lieu of observing the brake pipe changes at the rear of a 
freight train with the end-of-train telemetry device referred to in 
Sec. Sec.  232.211(c) and (d), the operator shall verify that the 
brakes applied and released on the rear car of the freight train by 
observing the ECP brake system's display in the locomotive cab.
    (e) Initialization. (1) A freight train operating in ECP brake mode 
shall be initialized as described in paragraph (e)(2) whenever the 
following occurs:
    (i) Class I brake test.
    (ii) Class III brake test.
    (iii) Whenever the ECP brake system is powered on.
    (2) Initialization shall, at a minimum:
    (i) initialize the ECP brake system pursuant to AAR Series Standard 
S-4200; and
    (ii) be performed in the sequential order of the vehicles in the 
train.
    (3) Whenever an ECP brake system is initialized pursuant to this 
paragraph, the train crew must ensure that the total number of cars 
indicated by the ECP brake system is the same as the total number of 
cars indicated on the train consist.
    (f) Modifications to existing brake inspections. (1) In lieu of the 
specific brake pipe service reductions and increases required in this 
part, an electronic signal that provides an equivalent application and 
release of the brakes shall be utilized when conducting any required 
inspection or test on a freight car or freight train equipped with an 
ECP brake system and operating in ECP brake mode.
    (2) In lieu of the specific piston travel ranges contained in this 
part, the piston travel on freight cars equipped with ECP brake systems 
shall be within the piston travel limits stenciled or marked on the car 
or badge plate consistent with the manufacturers recommended limits, if 
so stenciled or marked.
    (g) ECP brake system train line cable. Each ECP brake system train 
line cable shall:
    (1) be located and guarded to provide sufficient vertical 
clearance;
    (2) not cause any tripping hazards;
    (3) not hang with one end free whenever the equipment is used in a 
train movement;
    (4) not be positioned to interfere with the use of any safety 
appliance; or
    (5) not have any of the following conditions:
    (i) Badly chafed or broken insulation.
    (ii) Broken plugs, receptacles or terminals.
    (iii) Broken or protruding strands of wire.
    (h) Exceptions. A freight car or a freight train shall be exempt 
from the requirements contained in Sec. Sec.  232.205(a) and (b), 
232.207, 232.209, and 232.211(a) when it is equipped with an ECP brake 
system and operating in ECP brake mode.


Sec.  232.609  Handling of defective equipment with ECP brake systems.

    (a) Ninety-five percent of the cars in a train operating in ECP 
brake mode shall have effective and operative brakes prior to use or 
departure from the train's initial terminal or any location where a 
Class I brake test is required to be performed on the entire train by a 
qualified mechanical inspector pursuant to Sec.  232.607.
    (b) A freight car equipped with an ECP brake system that is known 
to have arrived with ineffective or inoperative brakes at initial 
terminal of the next train which the car is to be included or at a 
location where a Class I brake test is required under Sec. Sec.  
232.607(b)(1) through (b)(3) shall not depart that location with 
ineffective or inoperative brakes in a train operating in ECP brake 
mode unless:
    (1) The location does not have the ability to conduct the necessary 
repairs;
    (2) The car is hauled only for the purpose of repair to the nearest 
forward location where the necessary repairs can be performed 
consistent with the guidance contained in Sec.  232.15(f);
    (3) The car is not being placed for loading or unloading while 
being moved for repair unless unloading is necessary for the safe 
repair of the car; and
    (4) The car is properly tagged in accordance with Sec.  232.15(b).
    (c) A freight car equipped with only conventional pneumatic brakes 
shall not move in a freight train operating in ECP brake mode unless it 
would otherwise have effective and operative brakes if it were part of 
a conventional pneumatic brake-equipped train or could be moved from 
the location in defective condition under the provisions contained in, 
and tagged in accordance with, Sec.  232.15.
    (d) A freight train operating in ECP brake mode shall not move if 
less than 85 percent of the cars in the train have operative and 
effective brakes. However, after experiencing a penalty stop for having 
less than 85 percent operative and effective brakes, a freight train 
operating in ECP brake mode may be moved if all of the following are 
met:
    (1) The train is visually inspected;
    (2) Appropriate measures are taken to ensure that the train is 
safely operated to the location where necessary repairs or changes to 
the consist can be made;
    (3) A qualified person determines that it is safe to move the 
train; and
    (4) The train is moved in ECP brake Switch Mode to the nearest or 
nearest forward location where necessary repairs or changes to the 
consist can be made.
    (e) A freight car or locomotive equipped with an ECP brake system 
that is found with inoperative or ineffective brakes for the first time 
during the performance of a Class I brake test or while en route may be 
used or hauled without civil penalty liability under this part to its 
destination, not to exceed 3,500 miles; provided, all applicable 
provisions of this section are met and the defective car or locomotive 
is hauled in a train operating in ECP brake mode.
    (f) A freight car equipped with an ECP brake system that is part of 
a train operating in ECP brake mode:
    (1) that is found with a defective non-brake safety appliance may 
be used or hauled without civil penalty under this part to the nearest 
or nearest forward location where the necessary repairs can be 
performed consistent with the guidelines contained in Sec.  232.15(f).
    (2) that is found with an ineffective or inoperative brake shall be 
hauled in accordance with the following:
    (i) Sec.  232.15(e)(1).
    (ii) No more than two freight cars with brakes pneumatically cut 
out or five freight cars or five units in a multi-unit articulated 
piece of equipment with brakes electronically cut out shall be 
consecutively placed in the same train.
    (g) A train operating with conventional pneumatic brakes shall not 
operate with freight cars equipped with stand-alone ECP brake systems 
unless:
    (1) The train has at least the minimum percentage of operative 
brakes required by paragraph (h) of this section when at an initial 
terminal or paragraph (d) of this section when en route; and
    (2) The stand-alone ECP brake-equipped cars are:
    (i) Moved for the purpose of delivery to a railroad receiving the 
equipment or to a location for placement in a train operating in ECP 
brake mode or being moved for repair to the nearest available location 
where the necessary repairs can be made in accordance with Sec. Sec.  
232.15(a)(7) and (f);
    (ii) Tagged in accordance with Sec.  232.15(b); and
    (iii) Placed in the train in accordance with Sec.  232.15(e).
    (h) A train equipped and operated with conventional pneumatic 
brakes

[[Page 61556]]

may depart an initial terminal with freight cars that are equipped with 
stand-alone ECP brake systems provided all of the following are met:
    (1) The train has 100 percent effective and operative brakes on all 
cars equipped with conventional pneumatic brake systems;
    (2) The train has at least 95 percent effective and operative 
brakes when including the freight cars equipped with stand-alone ECP 
brake systems; and
    (3) The requirements contained in paragraph (g) of this section are 
met.
    (i) Tagging of defective equipment. A freight car equipped with an 
ECP brake system that is found with ineffective or inoperative brakes 
will be considered electronically tagged under Sec.  232.15(b)(1) and 
(b)(5) if the car is used or hauled in a train operating in ECP brake 
mode and the ECP brake system meets the following:
    (1) The ECP brake system is able to display information in the cab 
of the lead locomotive regarding the location and identification of the 
car with defective brakes;
    (2) The information is stored or downloaded and is accessible to 
FRA and appropriate operating and inspection personnel; and
    (3) An electronic or written record of the stored or downloaded 
information is retained and maintained in accordance with Sec.  
232.15(b)(3).
    (j) Procedures for handling ECP brake system repairs and 
designation of repair locations. (1) Each railroad operating freight 
cars equipped with ECP brake systems shall adopt and comply with 
specific procedures developed in accordance with the requirements 
related to the movement of defective equipment contained in this 
subpart. These procedures shall be made available to FRA upon request.
    (2) Each railroad operating freight trains in ECP brake mode shall 
submit to FRA's Associate Administrator for Safety a list of locations 
on its system where ECP brake system repairs will be performed. A 
railroad shall notify FRA's Associate Administrator for Safety in 
writing 30 days prior to any change in the locations designated for 
such repairs. A sufficient number of locations shall be identified to 
ensure compliance with the requirements related to the handling of 
defective equipment contained in this part.
    (k) Exceptions: All freight cars and trains that are specifically 
identified, operated, and handled in accordance with this section are 
excepted from the movement of defective equipment requirements 
contained in Sec.  232.15(a)(2), (a)(5) through (a)(8), and 232.103(d) 
and (e).


Sec.  232.611  Periodic maintenance.

    (a) In addition to the maintenance requirements contained in Sec.  
232.303(b) through (d), a freight car equipped with an ECP brake system 
shall be inspected and repaired before being released from a shop or 
repair track to ensure the proper and safe condition of the following:
    (1) ECP brake system wiring and brackets;
    (2) ECP brake system electrical connections; and
    (3) Car mounted ECP brake system components.
    (b) Single car air brake test procedures. Prior to placing a 
freight car equipped with an ECP brake system into revenue service, a 
railroad or a duly authorized representative of the railroad industry 
shall submit a procedure for conducting periodic single car air brake 
tests to FRA for its approval pursuant to Sec.  232.17.
    (c) Except as provided in Sec.  232.303(e), a single car air brake 
test conducted in accordance with the procedure submitted and approved 
in accordance with paragraph (b) of this section shall be performed by 
a qualified person on a freight car equipped with an ECP brake system 
whenever any of the events identified in Sec.  232.305 occur, except 
for those paragraphs identified in paragraph (f) of this section.
    (d) A single car air brake test conducted in accordance with the 
procedure submitted and approved in accordance with paragraph (b) of 
this section shall be performed by a qualified person on each freight 
car retrofitted with a newly installed ECP brake system prior to 
placing or using the car in revenue service.
    (e) Modification of single car test standard. A railroad or a duly 
authorized representative of the railroad industry may seek 
modification of the single car test standard approved in accordance 
with paragraph (b) of this section. The request for modification will 
be handled and shall be submitted in accordance with the modification 
procedures contained in Sec.  232.307.
    (f) Exceptions. A freight car equipped with a stand-alone or dual 
mode ECP brake system is excepted from the single car air brake test 
procedures contained in Sec.  232.305(a). A freight car equipped with a 
stand-alone ECP brake system is excepted from the single car test 
requirements contained in Sec.  232.305(b)(2).
    (g) For purposes of paragraphs (c) and (d) of this section, if a 
single car air brake test is conducted on a car prior to June 15, 2009, 
pursuant to the then existing AAR standards, it shall be considered the 
last single car air brake test for that car, if necessary.


Sec.  232.613  End-of-train devices.

    (a) An ECP-EOT device shall, at a minimum, serve as the final node 
on the ECP brake circuit, provide a cable terminal circuit, and 
monitor, confirm, and report train, brake pipe, and train line cable 
continuity, cable voltage, brake pipe pressure, and the status of the 
ECP-EOT device battery charge. The ECP-EOT device shall transmit a 
status message (EOT Beacon) at least once per second, contain a means 
of communicating with the HEU, and be equipped with a brake pipe 
pressure transducer and a battery that charges from the train line 
cable.
    (b) A railroad shall not move or use a freight train equipped with 
an ECP brake system unless that train is equipped with a functioning 
ECP-EOT device designed and operated in accordance with this subpart. 
The ECP-EOT device must be properly connected to the network and to the 
train line cable at the rear of the train.
    (c) A locomotive equipped with ECP brakes can be used in lieu of an 
ECP-EOT device, provided it is capable of performing all of the 
functions of a functioning ECP-EOT device.
    (d) Exception. A freight train operating in ECP brake mode is 
excepted from the end-of-train device requirements contained in subpart 
E of this part, provided that it is equipped with an ECP-EOT device 
complying with this section.
0
11. Appendix A to part 232 is amended by revising footnote 1 and by 
adding an entry for subpart G to the end of the table to read as 
follows:

Appendix A to Part 232--Schedule of Civil Penalties \1\
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. Generally when two or more violations of these 
regulations are discovered with respect to a single unit of 
equipment that is placed or continued in service by a railroad, the 
appropriate penalties set forth above are aggregated up to a maximum 
of $11,000 per day. An exception to this rule is the $15,000 penalty 
for willful violation of Sec.  232.503 (failure to get FRA approval 
before introducing new technology) with respect to a single unit of 
equipment; if the unit has additional violative conditions, the 
penalty may routinely be aggregated to $15,000. Although the 
penalties listed for failure to perform the brake inspections and 
tests under Sec.  232.205 through Sec.  232.209 may be assessed for 
each train that is not properly inspected, failure to perform any of 
the inspections and tests required under those sections will be 
treated as a violation separate and distinct from, and in addition 
to, any substantive violative conditions found on the equipment 
contained in the train consist. Moreover, the Administrator reserves 
the right to assess a penalty of up to $27,000 for any violation 
where circumstances warrant. See 49 CFR part 209, appendix A.

[[Page 61557]]



------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
 
                              * * * * * * *
Subpart G--Electronically Controlled Pneumatic
 (ECP) Braking Systems
232.603 Design, interoperability, and
 configuration management requirements:
    (a) Failure to meet minimum standards.....        7,500       11,000
    (b) Using ECP brake equipment without             7,500       11,000
     approval.................................
    (c) Failure to adopt and comply with a            7,500       11,000
     proper configuration management plan.....
232.605 Training Requirements:
    (a) Failure to adopt and comply with a            (\1\)        (\1\)
     proper training, qualification, and
     designation program for employees that
     perform inspection, testing or
     maintenance..............................
    (b) Failure to amend operating rules......       12,500       16,000
    (c) Failure to adopt and comply with             12,500       16,000
     proper training criteria for locomotive
     engineers................................
232.607 Inspection and testing requirements:
    (a)(1), (b), (c)(1) Complete or partial           (\1\)        (\1\)
     failure to perform inspection............
    (a)(2) Complete or partial failure to             7,500       11,000
     perform pre-departure inspection.........
    (c)(1)(iv), (c)(2) Failure to perform             4,500        6,500
     visual inspection on a car added en route
    (d) Failure to perform inspection.........        (\1\)        (\1\)
    (e)(1), (2) Failure to properly initialize        7,500       11,000
     the train................................
    (e)(3) Failure to ensure identical consist        7,500       11,000
     and system information...................
    (f)(1) Failure to apply a proper brake            (\1\)        (\1\)
     pipe service reduction...................
    (f)(2) Failure to properly adhere to the          (\1\)        (\1\)
     proper piston travel ranges..............
    (g)(1)-(4) Improperly located and guarded         7,500       11,000
     cable....................................
    (g)(5) Condition of cable and connections.        7,500       11,000
232.609 Handling of defective equipment with
 ECP brake systems:
    (a) Failure to have proper percentage of          (\1\)        (\1\)
     operative brakes from Class I brake test.
    (b) Failure to prevent a car known to             7,500       11,000
     arrive with defective brakes to depart
     location where a Class I brake test is
     required.................................
    (c) Improper movement of a car equipped           7,500       11,000
     with conventional pneumatic brakes.......
    (d) Operating with less than 85 percent           (\1\)        (\1\)
     operative brakes.........................
    (f)(2)(i) Improper placement of defective         (\1\)        (\1\)
     conventional brake equipment.............
    (f)(2)(ii) Improper placement of defective        7,500       11,000
     ECP brake equipment......................
    (g) Improper movement of defective stand-         (\1\)        (\1\)
     alone ECP brake equipment in a train
     operating with conventional pneumatic
     brakes...................................
    (h) Improper movement from initial                (\1\)        (\1\)
     terminal of stand-alone ECP brake
     equipment in a conventional brake
     operated train...........................
    (i) Failure to tag equipment..............        (\1\)        (\1\)
    (j)(1) Failure to adopt and comply with           7,500       11,000
     procedures for the movement of defective
     equipment................................
    (j)(2) Failure to submit list of ECP brake        7,500       11,000
     system repair locations..................
232.611 Periodic maintenance:
    (a) Failure to ensure the proper and safe         7,500       11,000
     condition of car.........................
    (b)-(d) Failure to perform test...........        7,500       11,000
232.613 End-of-train devices:
    (a) Failure to meet design standards for          7,500       11,000
     ECP-EOT devices..........................
    (b) Moving with an improper or improperly         9,500       13,000
     connected ECP-EOT device.................
------------------------------------------------------------------------

    Failure to observe any condition for movement of defective 
equipment set forth in Sec.  232.15(a) will deprive the railroad of 
the benefit of the movement-for-repair provision and make the 
railroad and any responsible individuals liable for penalty under 
the particular regulatory section(s) concerning the substantive 
defect(s) present on the equipment at the time of movement.
    Failure to provide any of the records or plans required by this 
part pursuant to Sec.  232.19 will be considered a failure to 
maintain or develop the record or plan and will make the railroad 
liable for penalty under the particular regulatory section(s) 
concerning the retention or creation of the document involved.
    Failure to properly perform any of the inspections specifically 
referenced in Sec.  232.209, Sec.  232.213, Sec.  232.217, and 
subpart G may be assessed under each section of this part or this 
chapter, or both, that contains the requirements for performing the 
referenced inspection.

    Issued in Washington, DC, on September 19, 2008.
Joseph H. Boardman,
Federal Railroad Administrator.
 [FR Doc. E8-22549 Filed 10-15-08; 8:45 am]
BILLING CODE 4910-06-P`